Judge: Trump detention of Mahmoud Khalil likely unconstitutional

MANHATTAN (CN) — The Trump administration’s relentless bid to deport Columbia University student and Palestinian activist Mahmoud Khalil is likely unconstitutional, a federal judge ruled Wednesday.

But U.S. District Judge Michael Farbiarz declined to release Khalil from Immigration and Customs Enforcement custody just yet, finding that Khalil failed to adequately respond to the government’s charge that he failed to properly disclose some personal details in his permanent residency application.

However, the Joe Biden appointee found that the government’s broader allegations against Khalil — that he poses a threat to U.S. foreign policy — are “likely unconstitutionally vague” as applied to him.

Farbiarz acknowledged that Congress empowered the secretary of state to seek removal of foreign nationals if they compromise American foreign policy interests. And in a memo cited in the judge’s ruling, Secretary of State Marco Rubio indeed deemed Khalil’s advocacy as having “potentially serious adverse foreign policy consequences.”

“But the secretary did not affirmatively determine that the petitioner’s alleged conduct has impacted U.S. relations with other countries,” Farbiarz said in his 106-page ruling Wednesday. “Indeed, the secretary’s determination says nothing about any country other than America. It also does not mention a region of the world that encompasses particular countries.”

Khalil was the first of several noncitizens to be detained for removal by the Trump administration for advocating on his college campus against Israel’s ongoing bombing campaign in the Gaza Strip. To justify the deportations, administration officials have pointed to a little-used provision in U.S. immigration code, which states:

“An alien 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.”

But Farbiarz noted historically that provision has been used for conduct that “entirely or all but entirely took place outside the United States.” Using that statute to deport Khalil for protest activity inside the U.S. would be “unprecedented” and “not within the realm of conduct that the statute normally covers,” he wrote.

Still, Khalil will remain in a Louisiana immigration detention facility since Khalil didn’t sufficiently explain the government’s other charge against him: that he lied on his permanent residency application.

The Trump administration claims Khalil hid that he worked for the United Nations Relief and Works Agency for Palestinian Refugees on that paperwork.

“The petitioner’s legal briefs still make no substantial argument as to the failure-to-disclose claim — even as lengthy supplemental briefs have been filed,” Farbiarz wrote, adding that he cannot order Khalil’s release until this has been addressed.

Khalil will get another shot to respond to that point and push once more for his release — Farbiarz ruled that he will be allowed to supplement the record in the coming days.

Federal agents detained Khalil, a lawful resident and green card holder, on March 8 in the lobby of his Manhattan apartment building. He was subsequently transferred to a holding facility in Newark, New Jersey, before being moved to another one in Jena, Louisiana.

Khalil’s legal team argues the Trump administration is unlawfully trying to deport him for his leadership role in the highly publicized pro-Palestinian protests at Columbia University last spring. Khalil served as a negotiator on behalf of students, pushed the Ivy League college to divest from Israel.

President Donald Trump acknowledged Khalil’s detention in March, promising that it was “the first arrest of many to come.” Since then, several other international students have been arrested for their varying degrees of involvement with pro-Palestinian protests, in a trend that First Amendment experts have decried as an affront to free speech.

Khalil has now been detained for nearly 12 weeks. The ordeal forced him to miss the birth of his first child on April 21.

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