Federal Court Denies Government Dismissal Motion in Visa and Green Card Holder Surveillance Lawsuit
A federal district court rejected a government motion to dismiss a lawsuit challenging a federal automated surveillance program targeting the online speech and social media accounts of visa and green card holders. Filed originally in October 2025 by three major labor unions, the case moves forward following a ruling issued by Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York on October 1, 2026.
Challenging Automated Viewpoint Surveillance
Since taking power, the Trump administration has utilized automated tools and artificial intelligence to monitor online speech and social media profiles held by noncitizens legally present in the United States. The program targets individuals expressing views deemed unfavorable by the government, including criticism of the Trump administration, support for Palestine, criticism of Israel, and statements classified as hostile to American culture, founding principles, or traditional American views. Public intimidation campaigns and threats of adverse immigration actions have accompanied this monitoring.
This is just patently false. We have officials working continuously to identity, revoke or deny foreigners’ visas who espouse hatred for America or its people. This is a top priority. College students who witness such conduct can use the ICE tip line. Also: there is no “speech… https://t.co/zIev967MQd”
In response to these enforcement actions and public threats, the United Automobile Workers (UAW), Communications Workers of America (CWA), and American Federation of Teachers (AFT) filed a joint lawsuit against the Departments of State and Homeland Security. Legal representation for the labor unions is provided by the Electronic Frontier Foundation, Muslim Advocates, and the Media Freedom & Information Access Clinic.
Judge Hellerstein Rejects Immigration Act Barriers
Attorneys for the government sought to dismiss the lawsuit by arguing that federal immigration statutes stripped district courts of jurisdiction to hear the claims. Specifically, the government invoked provisions of the Immigration and Nationality Act, including the zipper clause under 8 U.S.C. § 1252(b)(9), alongside § 1252(g) and § 1252(f)(1).
Judge Hellerstein rejected each statutory barrier. Relying on the Second Circuit’s decision in Ozturk v. Hyde, it held that the zipper clause bars only challenges to a particular individual’s removal proceedings, not a lawsuit like ours that challenges the constitutionality of the surveillance program itself. Hyde, the court determined that the zipper clause bars only individual removal proceedings rather than systemic constitutional challenges to surveillance programs collateral to active deportations. While § 1252(f)(1) limits specific forms of injunctive relief regarding individual removals, it does not prevent a federal court from blocking an unlawful surveillance program that suppresses constitutionally protected speech.
Organizational and Associational Standing Established
To secure standing, plaintiffs must demonstrate a concrete injury in fact. The district court found that the unions established both organizational standing and associational standing.
Organizational standing was substantiated by evidence showing that the surveillance program directly impaired the unions’ core responsibilities of organizing members and advocating for collective goals. Members have withdrawn from union leadership roles, stopped participating in union activities online and in person, removed their names from union webpages, and avoided participating in bargaining surveys. The court dismissed the government’s claim that these withdrawals were mere overreactions, noting that the surveillance does not need to target pro-union views to have a chilling effect.
Regarding associational standing, the court evaluated the objective chilling effect on members’ First Amendment rights. The court highlighted that the threat of adverse immigration consequences under harsh crackdowns is enough to deter a person of ordinary firmness from exercising free speech rights, and that the chilling effect of the program can itself be an injury when plaintiffs are surveilled.
Next Steps in Litigation
With the motion to dismiss denied, the Departments of State and Homeland Security must now file an answer to the unions’ complaint. The litigation will transition into the discovery phase, where plaintiffs anticipate uncovering additional operational details regarding the scope and execution of the federal surveillance apparatus.
“This threat of adverse immigration consequences, under a government whose harsh immigration crackdowns has been heavily publicized and reported on, is certainly enough to ‘deter a person of ordinary firmness from the exercise of First Amendment rights.’ It is objectively reasonable that noncitizens would limit their expression of disfavored viewpoints under the Challenged Surveillance Program given the credible threat of adverse immigration action from the Government.”
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