A Judge Said the Excuse for Arresting Mahmoud Khalil Was Unconstitutionally Vague. Why Isn’t Khalil Free?
Mahmoud Khalil, a legal permanent resident who was the first target of President Donald Trump’s crusade against foreign students he calls “terrorist sympathizers,” could soon be released from custody thanks to a preliminary injunction that a federal judge in New Jersey granted this week. The reasoning behind that injunction underlines the chilling impact of Trump’s attempt to treat speech he does not like as a deportable offense.
Khalil, a former Columbia University graduate student, was arrested in Manhattan on March 8 and since then has been confined to an immigration detention facility in LaSalle, Louisiana. His case ended up in the U.S. District Court for the District of New Jersey because that is where he was detained when his lawyers filed a habeas corpus petition.
The government “can have little or no interest in applying the relevant underlying statutes in what is likely an unconstitutional way,” U.S. District Judge Michael Farbiarz wrote on Wednesday. His preliminary injunction bars the government from “detaining” or “removing” Khalil “based on” Secretary of State Marco Rubio’s determination that his pro-Palestinian activism poses a threat to U.S. foreign policy interests.
Farbiarz stayed his injunction until 9:30 this morning to allow for a government appeal of his decision. That deadline came and went without an appeal. An Immigration and Customs Enforcement (ICE) official nevertheless told Khalil’s lawyers “the government has no immediate plans to release him,” The New York Times reports.
ICE may be relying on a secondary justification for Khalil’s detention that the government added after his arrest generated controversy because of its First Amendment implications: When Khalil applied for a green card, the government claims, he failed to fully disclose his associations and employment history. But according to declarations from three immigration law experts, Farbiarz noted on Wednesday, “lawful permanent residents are virtually never detained pending removal for the sort of alleged omissions in a [green card] application that [Khalil] is charged with here.” As Farbiarz saw it, that evidence “strongly suggests that it is the Secretary of State’s determination that drives [Khalil’s] ongoing detention—not the other charge against him.”*
Rubio’s determination was based on 8 USC 1227(a)(4)(C)(i), which authorizes the removal of noncitizens when the secretary of state “has reasonable ground to believe” their “presence or activities” in this country “would have potentially serious adverse foreign policy consequences for the United States.” Specifically, Rubio claimed in a two-page memo invoking Section 1227, Khalil had participated in “antisemitic protests” that “foster[ed] a hostile environment for Jewish students.”
Those activities, Rubio averred, “undermine U.S. policy to combat anti-Semitism around the world and in the United States” as well as “efforts to protect Jewish students from harassment and violence in the United States.” He added that “condoning anti-Semitic conduct and disruptive protests in the United States would severely undermine” a “significant foreign policy objective,” which he described as “champion[ing] core American interests and American citizens.”
Rubio was alluding to Khalil’s prominent role in protests at Columbia against Israel’s war with Hamas in Gaza. But he did not cite any specific evidence that Khalil had promoted antisemitism—a charge that Khalil vehemently denies. Nor did Rubio accuse Khalil of breaking the law in any way. In fact, the memo acknowledged that the case against Khalil was based on “past, current, or expected beliefs, statements, or associations that are otherwise lawful.”
Although that concession meant Rubio was required to cite “a compelling U.S.
foreign policy interest,” he described the relevant interest as merely “significant.” That was by no means the only problem with his memo. In a 101-page opinion published on May 28, Farbiarz concluded that Khalil was likely
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
