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 These differences can affect how your status is rescinded, and the terms of people’s right to seek release if they are detained.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.
