A Ruling Against Mahmoud Khalil Highlights Marco Rubio’s Vast Power To Deport People for Their Opinions
Jamee E. Comans, an immigration judge in Louisiana, today ruled that the Trump administration had met the statutory requirements for deporting former Columbia graduate student Mahmoud Khalil, a legal permanent resident who was targeted because of his prominent role in anti-Israel protests at Columbia University. That decision underlines the vast power that a federal law gives Secretary of State Marco Rubio to deem someone “subject to removal” based on the opinions he expresses.
“This court is without jurisdiction to entertain challenges to the validity of this law under the Constitution,” Comans said as she delivered her ruling. But the constitutionality of the law and Rubio’s use of it against Khalil is the focus of litigation in New Jersey, where U.S. District Judge Michael Farbiarz has blocked Khalil’s deportation pending resolution of the case. Comans’ decision reinforces Khalil’s constitutional arguments by showing how easy it currently is to deport someone whose views offend the secretary of state.
On Tuesday, Comans said she would terminate the deportation case against Khalil unless the government provided evidence to support its claim that he is subject to removal. In response, the government submitted a two-page memo in which Rubio avers that allowing Khalil to remain in the United States “would have potentially serious adverse foreign policy consequences and would compromise a compelling U.S. foreign policy interest”—specifically, the government’s interest in “combat[ting] anti-Semitism around the world and in the United States.”
That legal rationale, which is based on a provision of the Immigration and Nationality Act (INA) codified as 8 USC 1227(a)(4)(C)(i), had already been widely reported, and the memo does not flesh it out with details specific to Khalil. It merely claims that Khalil, along with another green-card holder whose name is redacted, participated in “antisemitic protests and disruptive activities.” Rubio’s haziness underlines the startling breadth of the statute he is invoking, which not only encompasses constitutionally protected speech but also gives the secretary of state seemingly unlimited discretion to decide when people are subject to deportation because of their views.
The government does not claim that Khalil, who was arrested by immigration agents in Manhattan on March 8 and transferred to a detention facility in Louisiana after a brief stop in New Jersey, has committed any crime. In fact, Rubio’s memo acknowledges that the case against Khalil is based on “past, current, or expected beliefs, statements, or
associations that are otherwise lawful.”
In general, a foreign national is neither excludable nor deportable “because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.” But the INA makes an exception when “the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.” The only statutory requirement to invoke that exception is that the secretary of state “has reasonable ground to believe” that someone’s “presence or activities” would “have potentially serious adverse foreign policy consequences for the United States.”
It is not hard to see why Maryanne Trump Barry, President Donald Trump’s late sister, concluded that Section 1227(a)(4)(C)(i) is “unconstitutionally vague” in 1996. Barry, then a federal judge in New Jersey, noted that “the range of circumstances that could warrant deportation” under that provision “is virtually boundless.”
The law grants the secretary of state “unrestrained power,” Barry noted, “authoriz[ing] a heretofore unknown scope of executive enforcement power vis-a-vis the individual with utterly no standards provided to the Secretary of State or to the legal aliens subject to its provisions.” It “provides absolutely no notice to aliens as to what is required of them,” she added, and “represents a breathtaking departure” from “well established legislative precedent which commands deportation based on adjudications of defined impermissible conduct by the alien in the United States.”
Khalil’s case illustrates the law’s vagueness. Rubio says “in
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