Mahmoud Khalil, a thirty-year-old born in Syria who recently graduated with a master’s degree from Columbia University, was arrested by U.S. immigration authorities on Saturday. Khalil, who is of Palestinian ancestry, had become a prominent participant in the protests against Israel’s war in Gaza that rocked Columbia in the aftermath of October 7th. Though Khalil is a legal permanent resident of the United States, the government says that it has revoked his green card and plans to deport him. On Truth Social, Donald Trump wrote that Immigration and Customs Enforcement had “proudly apprehended” Khalil, and that this arrest would be the first of “many to come.”
Khalil is currently being held in Louisiana; his lawyers are trying to get him moved back to New York City, and to prevent his deportation. The case is expected to turn on exactly what basis the government had to arrest him. (Trump and others in his Administration have claimed that they are protecting college campuses from antisemitism.) To talk about the legal issues involved, I recently spoke by phone with Lindsay Nash, an associate professor at Cardozo School of Law and the co-director of the Kathryn O. Greenberg Immigration Justice Clinic. During our conversation, which has been edited for length and clarity, we discussed the obscure and potentially unconstitutional legal provision that the Trump Administration might end up relying upon, how ICE’s power became so unchecked, and whether courts will be extra sensitive to the possibility that someone is being punished for speech the government dislikes.
Broadly speaking, what rights do permanent residents of the United States have if they are not citizens?
There are certain constitutional rights that people in the U.S. have regardless of their immigration status, especially to things like due process in the context of removal proceedings. There are also protections for people who are lawful permanent residents. Legal decisions distinguish between people who are here on more temporary forms of status and people who are here as green-card holders, who have been explicitly given the permission to be here on a permanent basis. These differences can affect how your status is rescinded, and the terms of people’s right to seek release if they are detained.
In terms of this case, what would give ICE the legal right to arrest and deport Mahmoud Khalil?
There are a number of different “grounds” for deportation that could give ICE the authority to charge someone as deportable. The most common one we see is if somebody has a certain kind of criminal conviction. That’s not the case here, at least from the reporting I have read, because the White House has said that he wasn’t breaking the law. But that’s the typical case that we see for somebody who has status and who is a lawful permanent resident.
There are other grounds for deportation that we don’t see as much. Some of the ones that are being suggested as the basis for this case are very, very rare. They are based on much more amorphous allegations, such as threats to foreign policy, or allegations related to terrorism. Those would not require a criminal conviction.
The charging document states that this was based on some kind of foreign-policy determination by the Secretary of State. There’s a legal provision [of the Immigration and Nationality Act] that says a non-citizen “whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” That’s incredibly vague. The one decision I’ve seen addressing this provision actually found it unconstitutionally vague. That decision was, interestingly, issued by President Trump’s sister when she was a federal district-court judge, in 1996. She found that the law was unconstitutional because it denied a non-citizen due process by not giving him a meaningful opportunity to contest the charges, and that it was unconstitutionally vague because it gave non-citizens no way to know what it prohibited, and that it gave the Secretary of State unbounded discretion that permitted no check on potential abuse. She also found that it was an unconstitutional delegation of power to the Secretary because it left deportability determinations to the “wholly unguided and unreviewable discretion of the Secretary of State.”
But if the judge found the statute unconstitutional, and it wasn’t appealed, why did the law stay on the books?
That case was appealed. The appellate court reversed the decision, but not because it disagreed with the lower court’s view of the statute. It just held that the non-citizen would have to go through the standard immigration-court process, and couldn’t go directly to the district court. In general, if a court finds a statute unconstitutional in a particular case, it doesn’t necessarily invalidate it for everyone. As in this case, it might just issue an injunction that prevents a deportation proceeding.
But it’s never been litigated at a higher level than a district court?
Not to my knowledge. This is used very rarely. I have never heard in my entire career of any case on this ground. I had to look up what it was, because it seemed so odd that the Secretary of State would even be involved in this kind of charge. Normally, the Department of Homeland Security draws the conclusion that they have reason to believe that a person is deportable. It’s also problematic because it essentially seems to give the Secretary of State the authority to more or less decide that someone is deportable, which is something that we would expect an immigration judge to do after charges have been lodged and the person has an opportunity to present evidence on their behalf.
You’re saying that there’s not much debate about whether this legal provision could be used as a justification for deporting Khalil. But there would be a larger question of whether that provision is constitutional?
Yes, exactly. That would be the argument. We know what one court thinks, which seems right to me, but I think that would be something that would be raised by Khalil’s attorneys.
Does ICE need to have a standard such as probable cause to arrest a non-citizen?
They should. They’re supposed to have reason to believe that a person is deportable, which has been equated to probable cause. They should have that at the arrest stage. But unlike in other contexts, such as criminal proceedings, where you would expect a judge to review whether there was probable cause, there is no mechanism for that in the immigration context. And so there’s an enormous amount of discretion at the front end of this process. But ICE would ultimately have to present charging documents that explain what the charges are. Right now, Khalil and his attorneys are in litigation in the Southern District of New York, asking the court to transfer him back to New York. I don’t know when ICE is going to make the charges public or even known to Khalil.
It seems problematic that ICE can make arrests without a forum to litigate whether the standards they used are sufficient.
It does seem problematic, and it is problematic, because it allows ICE to make arrests based on all kinds of bias, based on reasons that don’t hold water. There are all kinds of reasons that we ask judges to play this role in other contexts. The idea that ICE can detain people on the basis of its own conclusions or biases, and then decide later how it wants to charge the person, is extremely problematic.
The Immigration and Nationality Act also states that you can deport a non-citizen who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” I assume the government will have to provide some sort of evidence that Khalil did this, if they want to rely upon it.
Yes, a judge will have to decide that. We don’t know what the basis for that is going to be. But nothing they’ve said so far seems like it would support this definition. Still, we have plenty of experience with D.H.S. making inflammatory allegations that are legally or factually problematic and that can’t be upheld, and in fact aren’t upheld by courts.
How much are the free-speech issues at play here likely to matter? Will the courts give extra leeway to someone who is seemingly being punished by the government for exercising free speech?
I do think it matters. This is not the first time that First Amendment-type claims have come up in the context of deportation proceedings. And there are some challenges to making these claims on behalf of people who are facing deportation, or using First Amendment claims to challenge the commencement of removal proceedings. But we also have some good precedent from the first Trump Administration, when the Second Circuit considered a case in which the Trump Administration detained someone who was a very important immigrants’-rights advocate. This was a case called Ragbir v. Homan.
Basically, the Supreme Court concluded in 1999 that a non-citizen unlawfully in this country has no constitutional right to make a claim of selective enforcement as a defense against his deportation. But it left open the possibility that it would reach a different result in what it described as the “rare case in which the alleged basis of discrimination is so outrageous.” So when the first Trump Administration targeted Ravi Ragbir, the Second Circuit found that it was one of those outrageous cases that would fit within that exception. That Second Circuit decision has been vacated on other grounds related to the way that Ragbir brought that claim, but the decision created an important road map for how to think about these types of issues and what would constitute the type of outrageous discrimination that would allow someone to raise this type of selective-enforcement claim.
And that case has a lot of parallels to what we’re seeing here. It involved speech that the Court said was at the heart of what the First Amendment protects: speech on a matter of public concern, speech concerning political change. And this is the kind of speech that I think is what the Administration is trying to target.
Given that the Administration says this case is about national security, will courts grant it more deference?
I think the Administration is trying to bring those issues of national security in. But, you know, at the same time, we have Trump talking about it in the context of going after what he called “anti-American activity” on campuses.
This was in his Truth Social post.
Yeah, so I think courts will have to consider what the real concerns are, and what the government is using as pretext to go after speech that it doesn’t like, or speech that it sees as contrary to its political goals. Courts really should be able to recognize this tactic as an effort to silence criticism of the Administration and to chill political speech. And so we don’t know what evidence the government has in this case—if it has any evidence—but, hopefully, the Court will look at that evidence and they’ll look at these other statements and be able to recognize that you can’t just use national security as a magic word and make a constitutional problem go away.
So something like the Truth Social post could matter?
Yeah, I think that it might. It depends on how much Khalil’s attorneys can show that what Trump is saying was really the basis for the arrest. I’m not familiar with every statement that Trump and Rubio have made or what other evidence they have, but if the lawyers can make the case that Trump essentially directed this arrest, and they have all these statements about his motivation, I think there’s a good case to be made that that was the real basis for this arrest. We saw some similar considerations by courts in the first Trump Administration, when Trump made a lot of racist remarks about people from different countries, and then his Administration terminated Temporary Protected Status for people from those countries. And so there’s good examples of how litigants have been able to show through these statements what was really motivating some of the Trump Administration’s decisions.
Aside from Khalil and what might happen to him, which is obviously horrific, what are you most concerned about going forward?
This creates a really dangerous precedent because it would permit the Administration to go after people who criticize Trump, or who do anything that he perceives to be a slight against him or his political goals. We’ve seen this in other contexts with this Administration, and I really worry that it would chill the important political speech of immigrants’-rights activists and people who are directly impacted by his enforcement actions, or people whose families and communities are directly impacted by these enforcement actions. These are people who should be in a position to speak about what is happening and what the impacts are.
If the Trump Administration is permitted to take this kind of action on such very broad and vague grounds, I don’t see why there would be a clear limit on what else it could do. It’s a very slippery slope to making this argument in other kinds of cases where he disagrees with people who are speaking up against his Administration’s policies.
Khalil has, arguably, a really good defense because courts may be interested in how much he may have been targeted for his outspoken speech. I wonder about people who are targeted who don’t have such a strong argument there.
I do think that, because of the public nature of this, there will be strong evidence about what the Administration is doing and why. And that might not exist in every case. Hopefully, in other cases people can get internal memoranda and understand why they have been targeted. But, yes, it will be much harder in other cases. And, frankly, it will be harder for a lot of people because this is a case where the defendant, fortunately, has really excellent counsel.
But people don’t have a right to counsel in deportation proceedings. And so that makes it all the more difficult to marshal any of this kind of evidence about what’s really going on, especially when you’re detained. There will be a lot of people who will be in a vulnerable position if the Administration were to use this tactic more broadly, and in a less public way.
So, if you’re a permanent resident, you do not necessarily have the right to counsel? If you do have counsel, then you can obviously use it, but none is going to be provided to you by a court?
You don’t have the right to a government-funded attorney in most places. These are some jurisdictions that do provide counsel to people who are facing deportation while they’re detained. And those are really important protections for people who are detained in those areas. But that’s not the majority of people who are facing deportation. There are all kinds of difficulties even contacting counsel when people are detained. People could be detained and deported without being able to really raise any type of claim.
Thinking about that, and about ICE not properly enforcing probable cause, and about the way this law concerning the Secretary of State’s discretion was written and might still be utilized—as with so much regarding Trump, it does suggest that our system is just completely unprepared for someone who’s willing to use the full power of the office in this manner.
I think that’s definitely true. It also underscores something that people have said in other Administrations, which is even more clear now: ICE, in particular, has long needed more constraints. And this is exactly why. ♦
