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The Trump administration is relying on an obscure provision of immigration law to justify deporting Mahmoud Khalil, a legal permanent resident, setting up a high-stakes legal battle between the first amendment and what the government claims are its foreign policy powers.
Khalil, a Columbia University graduate who became a leader of pro-Palestinian protests on the campus, was arrested on 8 March by immigration agents. After his arrest, immigration officials said they were seeking to deport him under a provision of federal law that gives the US secretary of state, currently Marco Rubio, the power to deport someone if their presence in the country is deemed to “have potentially serious adverse foreign policy consequences for the United States”.
The US constitution gives the president tremendous power over foreign affairs. The Trump administration is now trying to use that authority to dramatically expand its immigration powers and curtail rights for immigrants.
“They’re trying to read foreign policy and national security and national interests all very broadly. And this seems sort of on the piece with that, trying to now create essentially foreign policy authority to deporting green card holders,” said Ahilan Arulanantham, a co-director of the center for immigration law and policy at the University of California, Los Angeles.
The provision being cited in Khalil’s case has rarely been used and the scope of the secretary of state’s discretion is unclear, said Stephen Yale-Loehr, a retired immigration law professor.
Courts have generally found that non-citizens such as Khalil, a legal permanent resident, have the same first amendment protections that citizens do. The question in Khalil’s case is how far those protections extend against a determination by the secretary of state that a foreign national should be deported.
Khalil’s lawyers are currently fighting to get him moved back to New York from Louisiana, where he is currently being held, and plan to ask a federal judge for his release from detention so that he can be present for the birth of his first child, due next month. The broader issues could take much longer to litigate.
“The primary issue in the case, I think, that is going to be litigated is whether this is unconstitutional first amendment retaliation,” said Ramya Krishnan, a lawyer at the Knight First Amendment Institute at Columbia. “If the first amendment means anything, it means that the government can’t lock you up or deport you because of your political views. That’s literally the most important thing about this country.”
Krishnan said that the provision Rubio is relying on to pursue Khalil’s immigration can’t be used to override constitutional freedoms. “Whatever the text of the statute says, it’s subject to the first amendment. And the theory of the case that they’re advancing here is astonishingly broad,” she added.
Federal law also blocks the government from removing someone “because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest”. In a legal filing on Thursday, Khalil’s lawyers said it was obvious he was being punished for his viewpoints.
“Neither Secretary Rubio nor any other government official has alleged that Mr Khalil has committed any crime or, indeed, broken any law whatsoever,” they wrote. “The Rubio Determination was exclusively motivated by Mr Khalil’s lawful, constitutionally-protected past, current, or expected beliefs, statements, or associations.”
Trump administration officials have not formally laid out the case for why they believe Khalil threatens the foreign policy interests of the United States. The White House told the outlet the Free Press that Khalil’s arrest would be a “blueprint” for investigating other students.
“This is not about free speech. This is about people that don’t have a right to be in the United States to begin with,” Rubio told reporters on Wednesday. “You pay all this money to these high-priced schools that are supposed to be of great esteem, and you can’t even go to class. You’re afraid to go to class because these lunatics are running around with covers on their face, screaming terrifying things,” Rubio said. “If you told us that’s what you intended to do when you came to America, we would have never let you in. If you do it once you get in, we’re going to revoke it and kick you out.”
Tom Homan, Donald Trump’s “border czar”, suggested on Wednesday that Khalil had exceeded the protections of the first amendment.
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“When you are on campuses – I hear ‘speech’, ‘freedom of speech,’ ‘freedom of speech’ – can you stand at a movie theater and yell ‘fire’? Can you slander? Free speech has limitations,” he said.
Arulanantham said so far it seemed like the government was “running headlong into supreme court precedent and right into the teeth of the first amendment”.
The government “can’t act to retaliate against people for their first amendment activity. And so I think you can look at that statute and say clearly the authority is very broad, but whether it is so broad as to encompass targeting people for their first amendment activity is a different question.”
Adam Cox, an immigration law professor at New York University, said that the government would probably meet skeptical judges if it argued that Khalil’s speech was the basis for its decision to deport him. But, he said, if the government argued that it had a non-speech basis for deporting Khalil, that could improve their case. Khalil’s lawyers would probably argue that such a rationale was pretextual – meaning concealing the government’s actual intent – but courts might be reluctant to investigate such claims.
There isn’t really a legal precedent for a case like Khalil’s, experts said. The closest example seems to be a case from the 1990s in which the secretary of state, Warren Christopher, relied on the provision to deport Mario Ruiz Massieu, a former deputy attorney general of Mexico who faced an arrest warrant in the country. After immigration judges refused to deport him, Christopher issued a letter saying that returning Massieu was important to maintaining cooperation between the United States and Mexico.
Brian Hauss, a senior staff attorney with the American Civil Liberties Union who is on Khalil’s legal team, said that Congress intended for the provision to apply to “a high-ranking foreign adversary … or a non-citizen who violates a treaty or international agreement to which the United States is a party. In other words, Congress did not intend to apply the foreign policy bar to protesters.”
A federal judge in New Jersey said the provision was unconstitutional. The decision was later reversed on procedural grounds.
If courts embrace the Trump administration’s efforts to justify removals on foreign policy grounds, it could have a profound impact.
“If the government has an objective to promote fossil fuel use across the globe, for example, then the Secretary of State could deem climate science advocates – or even noncitizens who own green technology firms – deportable on the ground that their residency ‘undermines the policy objective’ of promoting fossil fuels,” Cox and Arulanantham wrote in a post on Just Security.
“Rather than the statute setting the terms of deportability in advance, it would license the Secretary of State to turn nearly any activity into a basis for deportability after the fact,” they wrote.
