An immigration judge did not violate the First Amendment when she relied in part on a Facebook post featuring a picture of a white police officer having his throat cut to determine the immigrant’s alleged dangerousness, a federal district court in New York has ruled. 

Aboubacar K. Dembele, a native and citizen of the Ivory Coast, arrived in the United States at age three.  He had to go to court to face charges of disorderly conduct, assault, menacing, and harassment.

When he left court, officials with the Immigration and Customs Enforcement (ICE) arrested him and instituted removal proceedings against him.  Removal proceedings mean that the government seeks to remove or deport the non-citizen. 

Dembele had to appear before an immigration judge for a bond hearing.  The government asserted that Dembele should be removed because he posed a danger to the community.  Part of this evidence consisted of a Facebook post – an image of a white police officer having his throat cut by a masked figure in an American flag. 

Judge denies bond, saying she takes seriously "explicit or implicit" threats against law enforcement

The immigration judge denied bond to Dembele, reasoning that he posed a danger to the community.  She relied in part on the Facebook post, stating that she “takes very seriously any threat against law enforcement officials, whether explicit or implicit.”

Dembele appealed the denial of bond to the Board of Immigration Appeals.  He also filed a writ of habeas corpus in federal district court in New York.  He contended that the immigration judge violated his First Amendment rights by relying in part on a Facebook post that was not a true threat or incitement to imminent lawless action – narrow, unprotected categories of speech.

U.S. District Judge J. Paul Oetken ruled in Dembele v. Decker that his petition cannot be heard until he exhausts his appeal before the Board of Immigration Appeals.  However, in his ruling, the judge discussed whether the Facebook post was protected speech and whether an immigration judge could rely on such speech.

Federal judge: Courts routinely rely on defendants' speech in determining detainment before trial

Judge Oetken first reasoned that the Facebook image “is fairly tenuous evidence of dangerousness: though no doubt graphic, shocking, and perhaps disturbing.”  The judge then reasoned that the picture was a piece of artwork that was making a political statement and not a true threat or incitement to imminent lawless action. 

However, Judge Oetken ruled that the immigration judge could rely on the Facebook post, as courts routinely rely on defendants’ speech in determining whether they should be detained prior to trial.  He cited cases in which judges have relied on defendants’ rap music videos or tattoos in determining potential dangerousness.   

Judge Oetken concluded that the immigration judge did not punish Dembele for his political beliefs but merely relied on the expression as possibly relevant evidence of his conduct or possible conduct. 

David L. Hudson, Jr. is a Visiting Associate Professor of Legal Practice at Belmont University Law School.  He also is the author or co-author of several First Amendment books, including The First Amendment: Freedom of Speech (2012).