The State Department is increasingly using broad authority to deny and revoke visas to punish speech by noncitizens critical of the Trump administration’s agenda or its allies.
Secretary of State Marco Rubio said this week that visa revocations are “under way” for those who celebrated the killing of Charlie Kirk, a conservative activist and founder of Turning Point USA.
Although the State Department has nearly unlimited authority to deny and revoke visas, it hasn’t previously wielded that power to crack down on speech like it has during the first months of President Donald Trump’s second term.
The government has already said it’s revoked visas this year from critics of Israel. And it recently announced all visa holders will be subjected to “continuous vetting” for eligibility without sharing other details about those plans. That comes amid broader efforts at immigration and homeland security agencies to deny benefits like green cards or visas based on political viewpoints, including promotion of “anti-American ideologies.”
The threats will have a chilling effect on First Amendment rights, critics say. But foreign nationals have an extremely difficult path to contesting revocations thanks to narrow judicial review and limited information behind terminations.
“We’ve never seen an administration using this broad authority to weaponize immigration law in this way,” said immigration attorney Mahsa Khanbabai.
Wide Latitude
Consular officers have almost boundless authority to deny a visa to immigrants or travelers seeking to enter the US. Judicial review of those decisions is blocked in most cases by the doctrine of consular nonreviewability, which emerged from a series of US Supreme Court decisions.
The State Department has similar latitude under the Immigration and Nationality Act to revoke visas from people already in the US. Because the visa is only a travel document and is separate from a foreign national’s lawful status in the US, their ability to remain in the country wouldn’t necessarily be affected by its cancellation.
But they could be denied a new visa if they leave the US and seek to re-enter later, blocking them from returning to jobs or completing studies.
“If you’re a foreigner and you’re out there celebrating the assassination of someone who was speaking somewhere, I mean, we don’t want you in the country,” Rubio said this week.
The statute allows for visas to be terminated at the secretary of state’s discretion when new information comes to light affecting recipients’ eligibility, including arrests. The Foreign Affairs Manual—the handbook for consular officers—includes endorsements or espousing support for terrorist organizations as a basis for denying eligibility.
The Trump administration has also cited an INA provision giving the secretary of state authority to order deportations if they have reason to believe an individual’s presence would have “adverse foreign policy consequences” for the US.
The agency isn’t required to identify the specific reason behind a visa revocation beyond identifying a statutory provision—if a visa holder is notified at all. There’s also no formal hearing involved in the revocation process.
“I don’t believe the statute can be read to give the Secretary of State authorization to violate someone’s constitutional rights,” said immigration attorney Jesse Bless. “Will they find another reason and not be explicit? Probably.”
Policing Speech
The State Department in previous administrations hasn’t scrutinized the public comments of visa holders to such a degree, instead focusing resources on potential fraud and criminal violations affecting visa eligibility, said Carl Risch, managing partner at Kurzban Kurzban Tetzeli & Pratt.
“They’re trying to find a way to discourage people from using speech in a way they find to be politically objectionable and they’re trying to drag visas into that kind of policymaking,” he said.
The agency declined to respond to questions about specific plans to revoke visas over comments about Kirk’s death.
Although looking for offensive speech to rescind visas may be new, the government didn’t previously have the tools to do so or the digital track record of foreign visitors to examine, said Simon Hankinson, a senior research fellow at the Heritage Foundation’s Border Security and Immigration Center.
Social media presents a new option to “to dig a little deeper and find out what people say,” he said.
“If you’re a foreign national, you’re held to a different standard,” he said. “You don’t have unlimited free speech.”
Legal Challenges
Few court cases have tested the lawfulness of recent visa revocation efforts. Although decisions on individual visa cases are generally seen as off limits for court review, a handful of recent lawsuits have challenged the mass cancellations of F-1 student visas.
Those terminations, part of a Student Criminal Alien Initiative, were based on hits in a law enforcement database, rather than comments or activism by students. Federal complaints in Massachusetts and the District of Columbia have argued the State Department violated the Administrative Procedure Act as well as due process under the Fifth Amendment.
Attorneys say a policy of canceling visas en masse over comments about Kirk without individual review of cases could lead to similar challenges.
Placing visa holders in removal proceedings would also entitle them to judicial review. Several lawsuits have challenged deportation orders for student activists, including Tufts University graduate student Rumeysa Ozturk, whose visa was revoked based on a student newspaper op-ed. Khanbabai is counsel in her case.
A habeas petition and complaint included First Amendment claims and asked a federal court to set aside a policy targeting noncitizens based on constitutionally protected speech. Although she’s been freed from detention, her case is ongoing.
A 2009 ruling by the US Court of Appeals for the Second Circuit, however, left open the possibility of judicial review when a US citizen’s First Amendment rights are implicated by a visa denial.
Constitutional challenges will be difficult to bring if a visa revocation isn’t clearly linked to speech about a topic like Kirk, attorneys said.
Bless said foreign nationals will have to weigh potential visa consequences for comments on social media.
“You have to be smart,” he said. “They are dead serious.”
To contact the reporter on this story:
To contact the editors responsible for this story: