How Mahmoud Khalil’s Attorneys Plan to Fight for his Release
Lawyers trying to free the Columbia University activist point to a legal exception undermining the Trump administration’s argument. The post How Mahmoud Khalil’s Attorneys Plan to Fight for his Release appeared first on The Intercept.
Since the arrest of Mahmoud Khalil, his attorneys have fought any suggestion that this case is about whether their client committed a crime or is a threat to national security. Instead, they say, it’s about the U.S. government stifling Khalil’s advocacy for Palestine.
Even the government agrees it’s not about committing a crime.
According to court filings obtained by The Intercept, the government’s main argument against Khalil rests on a civil law provision within the Immigration and Nationality Act, which governs the country’s immigration and citizenship system. The provision, known as Section 237(a)(4)(c)(i), gives the secretary of state the authority to request the deportation of an individual who is not a U.S. citizen, if they have “reasonable ground to believe” the individual’s presence in the country hurts the government’s foreign policy interests.
Department of Homeland Security agents arrested Khalil, a Syrian-born Palestinian whose family is from Tiberias, in the lobby of his Columbia University apartment on Saturday. After initially alleging they had revoked his student visa, they said they had instead revoked Khalil’s green card. Authorities then secretly transported Khalil, a U.S. permanent resident, from New York to New Jersey, then to an immigration detention facility in Louisiana where judges are known to be more favorable to the government’s legal arguments.
In a notice for Khalil to appear in immigration court in Louisiana where he remains jailed, the government cites the specific provision and states: “The Secretary of State has determined that your presence or activities in the United States would have serious adverse foreign policy consequences for the United States.” Government lawyers have not, however, provided any evidence, in court filings or hearings, to support their claim. Khalil refused to sign the notice.
Khalil’s legal team plans to fight the government’s “foreign policy” provision in both the push for his release in federal court and in his deportation proceedings in immigration court, said Baher Azmy, legal director of the Center for Constitutional Rights and a member of Khalil’s legal team. A Manhattan federal district court judge temporarily halted Khalil from being deported while his lawyers continue to push for his release and transfer back to New York, where his attorneys can represent him more easily and he can be closer to his wife who is eight months pregnant.
Khalil’s attorneys plan to contest his detention on free speech grounds under the First Amendment and by challenging the government’s use of the “foreign policy” provision. By evoking the “foreign policy” provision, the Trump administration is making a clear statement not just about its foreign policy goals but also free speech, Azmy said.
“The United States government thinks Mahmoud’s speech in favor of Palestinian human rights and to end the genocide is not only contrary to U.S. foreign policy, which is something in itself, but that that dissent provides grounds for arrest, detention, and deportation,” Azmy said. “It’s an astonishing claim.”
Central to their challenge in court will likely be another provision within the Immigration and Nationality Act that exempts noncitizens facing deportation under the government’s “foreign policy” provision. The exception, known as Section 212(a)(3)(C)(iii), says that an individual cannot be deported under the “foreign policy” provision cited by the government if their “past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.”
“The government doesn’t get to decide what you can talk about and what you cannot talk about based on whether or not it helps the U.S.”
In other words, since Khalil’s past activities were protected free speech under the First Amendment, he should not be deported under the “foreign policy” provision cited by the government, Azmy said. The Department of Homeland Security has said it arrested Khalil, a lead negotiator for Palestine solidarity protesters at Columbia, for having “led activities aligned to Hamas.” But even if such alignments exist, advocacy is protected activity in the U.S., Khalil’s attorneys maintain.
“If there is constitutionally protected speech,” Azmy said. “It doesn’t matter if it goes adverse to the foreign policy interests of the United States — it’s still protected. The government doesn’t get to decide what you can talk about and what you cannot talk about based on whether or not it helps the U.S.”
Khalil’s legal team said the “foreign policy” provision giving the secretary of state the ability to request a deportation is rarely used, and when it has been evoked it is to deny visas for foreign officials who have interfered with democracy in their respective countries or officials with a poor human rights record. And the exception to the provision that prohibits deportations exists to ensure that it would not be used to specifically crack down on people’s speech, Azmy said.
“Any kind of removal proceeding because the government disagrees with a political perspective would be unlawful,” Azmy said. “So Congress wrote that into the statute, mindful of what the Constitution requires.”
There is an obvious counterargument for government lawyers seeking to deport Khalil. They can turn to an exemption within the exemption that still gives the secretary of state leeway to further argue for deportation if the State Department can provide “a facially reasonable and bona fide determination” that the individual’s presence and activities in the U.S. “compromises” U.S. foreign policy interest, according to the provision and previous immigration case law.
Secretary of State Marco Rubio has said Khalil’s case “is not about free speech” but about “people that don’t have a right to be in the United States to begin with.”
“I think being a supporter of Hamas and coming into our universities and turning them upside down and being complicit in what are clearly crimes of vandalization, complicit in shutting down learning institutions,” he said in Ireland on Wednesday, after a visit to Saudi Arabia for ceasefire talks with Ukrainian officials. “If you told us that’s what you intended to do when you came to America, we would have never let you in. And if you do it once you get in, we’re going to revoke it and kick you out.”
Rubio’s words rang hollow to a longtime New Jersey-based immigration attorney Robert Frank, one of the few attorneys to have represented a client in the U.S. who faced deportation under the same “foreign policy” provision evoked in Khalil’s case. During his 50 years of practice as an immigration attorney, Frank said a case decided in 1999 was the only time he had seen the government use the provision.
In the late 1990s, Frank represented former Mexican attorney general Mario Ruiz Massieu, who had fled Mexico and entered the U.S. on a temporary visa to avoid a slew of criminal charges, ranging from money laundering to embezzlement and torture. The U.S. government had ordered his deportation by using the “foreign policy” provision after Mexico requested his return, following several failed extradition attempts. Then-Secretary of State Warren Christopher argued that keeping him would strain the U.S. relationship with Mexico. The government eventually won the case, and in 1999 Massieu was ordered to be deported.
“You can see the clear foreign policy connection — the government of Mexico is asking the U.S. to get involved — whereas this present case [with Khalil], you don’t have that at all,” Frank told The Intercept.
“What is the foreign policy effect of this fellow talking pro-Palestinian or pro-Hamas — how does that affect the foreign policy of the United States?” Frank said, adding, “Israel may not be happy with saying things in favor of Hamas,” but that’s not grounds for deportation under the provision.
Frank challenged the provision in his client’s 1990s case, arguing that an immigration court judge should preside over whether his client would be deported or not, rather than the secretary of state alone. An immigration judge sided with Frank and halted the deportation. However, the Board of Immigration Appeals, which is under the Department of Justice, overturned the decision upon government appeal.
While government attorneys have yet to argue their claim under the “foreign policy” provision in court, the White House has made unsubstantiated claims linking Khalil with Hamas, the Palestinian militant and political group that governs Gaza, which the U.S. includes on its Foreign Terrorist Organizations list.
White House press secretary Karoline Leavitt told reporters on Tuesday that Khalil had “organized group protests that not only disrupted college campus classes and harassed Jewish-American students and made them feel unsafe on their own college campus, but also distributed pro-Hamas propaganda flyers with the logo of Hamas.”
“We have a zero tolerance policy for siding with terrorists,” she said.
Leavitt added that the Department of Homeland Security had provided her copies of the flyers, which the White House press office later privately shared with the conservative tabloid the New York Post. The flyers include the cover of a pamphlet published by Hamas, and widely shared online, titled “Our Narrative: Operation Al-Aqsa Flood,” and another flyer showing a boot crushing the Star of David with the message “Crush Zionism.” Leavitt and the Post made the accusations without offering evidence that ties Khalil himself to the flyers.
Azmy dismissed the claims and said government attorneys have not introduced the flyers as evidence in their case against Khalil and haven’t referred to them in court. Even if campus protesters had passed out those flyers, such actions would be protected under the First Amendment, he said.
“We don’t concede for a moment he did any of this,” Azmy added. “And even if the Trump administration is choosing to deport people for flyers, then we have much bigger problems on our hands — it’s a form of tacky authoritarianism.”
During a press conference outside a Manhattan courthouse where a hearing took place Wednesday for Khalil’s case, hundreds of protesters had gathered. Thousands more marched across the country throughout the last several days, demanding Khalil’s release.
Ramzi Kassem, one of Khalil’s attorneys and the founding director of the Creating Law Enforcement Accountability & Responsibility at the City University of New York, said the “foreign policy” provision “is not intended to be used to silence pro-Palestinian speech, or any other speech, that the government happens to dislike.”
“This case is not going to set the precedent that the government wants it to set, whether its federal court or immigration court,” he said before a crowd of protesters. “And you already know that just by looking behind you that it’s not having the effect that the government wants it to have with people’s solidarity with Palestinians.”
The post How Mahmoud Khalil’s Attorneys Plan to Fight for his Release appeared first on The Intercept.
