Judge Says US Bid to Deport Mahmoud Khalil Likely Violates Constitution

The secretary of state had determined that Khalil’s presence ‘compromises a compelling foreign policy interest.’

Mahmoud Khalil speaks to members of media about the Revolt for Rafah encampment at Columbia University during the ongoing conflict between Israel and the terrorist group Hamas in Gaza, in New York City on June 1, 2024. Jeenah Moon/File Photo/Reuters

The Trump administration’s efforts to deport a pro-Palestinian activist at Columbia University were ruled likely unconstitutional by a federal judge.

In a May 28 ruling, Judge Michael Farbiarz put a pause on the removal of Mahmoud Khalil, saying the government’s argument—that the immigrant was a potential threat to U.S. foreign policy interests due to his beliefs—allowing his removal would open removal proceedings to arbitrary enforcement.

The Department of Homeland Security detained Khalil on March 8 following his participation in pro-Palestinian protests at Columbia University. He was later transferred to the Louisiana detention facility.

In addition to an allegedly inaccurate application for lawful permanent residence, Khalil’s presence “compromises a compelling foreign policy interest,” Secretary of State Marco Rubio determined, prompting the federal government to work toward his removal.

Rubio’s office argued that Khalil’s activities undermine U.S. policy against anti-Semitism.

Pro-Palestinian protests broke out across the United States in the aftermath of the Oct. 7, 2023, Hamas-led attack on Israel that killed and kidnapped civilians.

Israel’s retaliatory military campaign in Gaza led to campus protests calling for a cease-fire and criticizing the United States for supporting Israel, a longtime ally.

President Donald Trump issued several executive orders in January of this year aimed at combating anti-Semitism and protecting the United States from foreign terrorists.

One mandates stricter screening and vetting procedures, including social media activity, as grounds for non-entry, and the other calls for the prosecution and removal of citizens and noncitizens engaged in anti-Semitic activities.

When addressing the administration’s arguments, the judge cited the vagueness doctrine, saying that if the removal were upheld, it could set a problematic precedent.

The judge said as part of a broad warning in his ruling that “If Section 1227 can apply, here, to the Petitioner, then other, similar statutes can also one day be made to apply. Not just in the removal context, as to foreign nationals. But also in the criminal context, as to everyone.”

Section 1227 has been frequently applied to conduct that impacts U.S. relations with other nations, and has application to policy that would undermine American interests.

Farbiarz, however, didn’t go so far as to order Khalil’s release from the Louisiana jail, saying his attorney did not offer a sufficient response to the other charge brought by the secretary of state’s office: that he did not disclose personal details relating to his residency application.

Attorneys for Khalil argued it was illegal for the administration to retaliate against their client for his part in organizing protests on campus regarding the Israel-Hamas war.

Following the ruling by Farbiarz, the ACLU, which is representing Khalil, said: “The district court held what we already knew: Secretary Rubio’s weaponization of immigration law to punish Mahmoud and others like him is likely unconstitutional.

“We will work as quickly as possible to provide the court the additional information it requested, supporting our effort to free Mahmoud or otherwise return him to his wife and newborn son.”

Khalil is one of several protesters arrested in connection with their pro-Palestinian activism, including another student at Columbia, Mohsen Mahdawi, who was a West Bank refugee and now permanent resident of the United States; a Tufts University student, Rumeysa Ozturk, a native of Turkey; and a Georgetown University scholar, Badar Khan Suri, an Indian national. In all three cases, the students have been released and continue to fight their cases.

The ACLU said that Khalil’s team “awaits a full and final ruling on the preliminary injunction motion, in addition to Mr. Khalil’s pending motions for release on bail and for him to be returned to New Jersey.”