1. The Court Recognized That Advocacy for Palestinian Rights Is Protected Speech
Perhaps the clearest statement in the order is this:
“In sum, Mr. Sarsour’s speech in support of Palestinian rights is protected by the First Amendment.”
That finding is significant. Mr. Sarsour argued that his detention was not simply an immigration enforcement action, but retaliation for engaging in constitutionally protected political advocacy. The Court agreed that his advocacy falls within the protections of the First Amendment.
2. The Government Failed to Rebut the Retaliation Claim at This Stage
To obtain release while his habeas petition remains pending, Mr. Sarsour was required to demonstrate that he had raised a substantial constitutional claim. The Court found that he had done so.
As Judge James P. Hanlon explained:
“…it’s sufficient for the Court to find that by providing no evidence in response to Mr. Sarsour’s motion, Respondents have not shown that they would have detained Mr. Sarsour even in the absence of his protected speech.”
In other words, at this stage of the litigation, the government did not present evidence demonstrating that Mr. Sarsour’s detention would have occurred regardless of his protected political advocacy.
3. The Court Found a “Substantial” First Amendment Claim
The Court emphasized that it was not deciding the ultimate merits of Mr. Sarsour’s constitutional claims.
Instead, it concluded that the evidence presented was sufficient to establish a substantial First Amendment retaliation claim deserving further judicial review.
Judge Hanlon wrote:
“The Court only concludes, on the present record, that Mr. Sarsour has raised a ‘substantial’ First Amendment retaliation claim, which could render his detention unlawful.”
That finding formed the legal basis for granting Mr. Sarsour’s release while the habeas petition remains pending.
4. The Court Rejected the Government’s Jurisdiction Argument
The government argued that federal court lacked authority to hear Mr. Sarsour’s habeas petition because his claims were intertwined with his removal proceedings. The Court disagreed. Judge Hanlon concluded that Mr. Sarsour was not challenging whether removal proceedings could be initiated. Instead, he was challenging the legality of his ongoing detention, a claim that falls within the traditional scope of federal habeas review. That allowed the federal court to continue considering his constitutional claims.
5. Why the Court Ordered His Release
Applying the legal standard governing release while a habeas petition is pending, the Court found both a substantial constitutional claim and extraordinary circumstances supporting release.
Among the factors the Court considered were:
- The substantial First Amendment retaliation claim.
- The potential chilling effect on protected speech.
- Mr. Sarsour’s health concerns while detained.
- His longstanding ties to the United States and his community.
- His lack of flight risk or danger to the public.
- The unusual nature of the foreign-policy removal ground invoked by the government.
The Court ordered Mr. Sarsour released on his own recognizance without bond, ankle monitoring, or home confinement. He must continue residing in Wisconsin, attend all court proceedings, and participate in his immigration case.
What the Court Did Not Decide
It is equally important to understand what this ruling does not resolve.
- The Court did not decide whether Mr. Sarsour is ultimately removable under immigration law.
- The Court did not grant his habeas petition.
- And the Court did not issue a final ruling on his constitutional claims.
Those questions remain before this Court or the immigration court.
What the Court did decide is that Mr. Sarsour raised serious constitutional questions, including a substantial First Amendment retaliation claim, that justified his immediate release while those claims continue to be litigated.
MLFA’s Role
The Muslim Legal Fund of America serves as co-counsel, for Mr. Sarsour in his federal habeas proceedings and represents him in his ongoing immigration case. His legal team also includes ACLU of Illinois, Beldock Levine & Hoffman, and the HMA Law Firm.
For more than 25 years, MLFA has defended individuals facing government overreach and constitutional violations. Mr. Sarsour’s case reflects that continuing commitment to protecting the rights guaranteed under the Constitution and ensuring that those rights remain meaningful for everyone.