No Winners in Last Wednesday’s Khalil Decision
By: Susan L. Greene
New Jersey District Court Judge Michael Farbiarz ruled last Wednesday on Mahmoud Khalil’s petition for a preliminary injunction, one that, if granted, could have seen Khalil freed from the Louisiana prison in which he is now held. “Judge denies Mahmoud Khalil’s request to stop deportation proceedings,” read one headline. That is true. “Federal judge blocks deportation of Palestinian activist Mahmoud Khalil,” read another. That is also true. “Trump admin’s effort to deport Mahmoud Khalil is likely unconstitutional, judge rules,” read still another. Also, true. Khalil will remain in jail. The government’s ability to deport foreign students is in limbo. Wednesday’s 106-page decision produced no winners.
Khalil is a 30-year-old former Columbia University student, a Syrian born citizen of Algeria, and a legal permanent resident of the United States. He was also the first high profile detainee in the government’s recent efforts to crackdown on foreign student activists involved in campus mayhem and the only one who remains incarcerated as the deportation proceedings against him play out. Khalil is a leader of Columbia University Apartheid Divest (CUAD), an anti-Israel group that supports Palestinian liberation “by any means necessary, including armed resistance” and a leader of the Columbia encampment and the occupation of campus buildings that followed it.
U.S. Immigration and Customs Enforcement Officers took Khalil into custody on March 8, with an order that he be deported under the Immigration and Nationality Act. First, the government alleged only that Khalil’s presence compromised a compelling foreign policy interest (specifically, combatting antisemitism and protecting Jewish students). Later, the government added the allegation that Khalil withheld information on his application for lawful permanent resident status, including his work for the United Nations Relief and Works Agency (UNRWA). That would prove to be a prudential addition. Thus began a government-initiated deportation proceeding, which is now playing out in an immigration court in Louisiana. A parallel, Khalil-initiated proceeding is now playing out in federal district court in New Jersey. There, in Mahmoud Khalil v. Donald Trump, et al., Khalil has filed a habeas corpus petition and, last Wednesday, the court ruled on Khalil’s preliminary injunction in that case.
There, the court denied Khalil’s request for a preliminary injunction on the narrow ground that Khalil did not show that he was likely to succeed on his alleged failure to disclose information on his application for lawful permanent resident status. Such a failure is, itself, an independent ground for removal. This is bad news for Khalil.
But the court also had bad news for the government, issuing a lengthy rebuke of its use of the Immigration and Nationality Act to remove noncitizens whose presence would “compromise a compelling United States foreign policy interest.” The court cited the government’s failure to identify any country other than the United States in connection with its “foreign policy” interests, concluding that the government was “not acting in relation to ‘foreign policy’ in the first place.” That failure, said the court, showed that the law would “allow removals for conduct not affirmatively determined by the [government] to have impacted any foreign country,” leaving the rule, effectively, “standardless.” That, decided the court, opens the door to an unconstitutionally vague standard and impermissibly arbitrary enforcement. On that count, concluded the court, Khalil was likely to succeed on the merits. This part of the decision calls into question the government’s use of the Immigration and Nationality Act to deport foreign students for their activities on campus, dealing a potentially major blow to the administration’s efforts to root out antisemitism on college campuses.
With no clear winners, the saga of Mahmoud Khalil marches on. Two cases are still pending and there is no resolution of either in sight.
