A Ruling Against Mahmoud Khalil Highlights Marco Rubio's Vast Power To Deport People for Their Opinions
An immigration judge's decision reinforces the constitutional argument against the law that the secretary of state is invoking.
Jamee E. Comans, an immigration judge in Louisiana, today ruled that the Trump administration had met the statutory requirements for deporting former Columbia graduate student Mahmoud Khalil, a legal permanent resident who was targeted because of his prominent role in anti-Israel protests at Columbia University. That decision underlines the vast power that a federal law gives Secretary of State Marco Rubio to deem someone "subject to removal" based on the opinions he expresses.
"This court is without jurisdiction to entertain challenges to the validity of this law under the Constitution," Comans said as she delivered her ruling. But the constitutionality of the law and Rubio's use of it against Khalil is the focus of litigation in New Jersey, where U.S. District Judge Michael Farbiarz has blocked Khalil's deportation pending resolution of the case. Comans' decision reinforces Khalil's constitutional arguments by showing how easy it currently is to deport someone whose views offend the secretary of state.
On Tuesday, Comans said she would terminate the deportation case against Khalil unless the government provided evidence to support its claim that he is subject to removal. In response, the government submitted a two-page memo in which Rubio avers that allowing Khalil to remain in the United States "would have potentially serious adverse foreign policy consequences and would compromise a compelling U.S. foreign policy interest"—specifically, the government's interest in "combat[ting] anti-Semitism around the world and in the United States."
That legal rationale, which is based on a provision of the Immigration and Nationality Act (INA) codified as 8 USC 1227(a)(4)(C)(i), had already been widely reported, and the memo does not flesh it out with details specific to Khalil. It merely claims that Khalil, along with another green-card holder whose name is redacted, participated in "antisemitic protests and disruptive activities." Rubio's haziness underlines the startling breadth of the statute he is invoking, which not only encompasses constitutionally protected speech but also gives the secretary of state seemingly unlimited discretion to decide when people are subject to deportation because of their views.
The government does not claim that Khalil, who was arrested by immigration agents in Manhattan on March 8 and transferred to a detention facility in Louisiana after a brief stop in New Jersey, has committed any crime. In fact, Rubio's memo acknowledges that the case against Khalil is based on "past, current, or expected beliefs, statements, or associations that are otherwise lawful."
In general, a foreign national is neither excludable nor deportable "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." But the INA makes an exception when "the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest." The only statutory requirement to invoke that exception is that the secretary of state "has reasonable ground to believe" that someone's "presence or activities" would "have potentially serious adverse foreign policy consequences for the United States."
It is not hard to see why Maryanne Trump Barry, President Donald Trump's late sister, concluded that Section 1227(a)(4)(C)(i) is "unconstitutionally vague" in 1996. Barry, then a federal judge in New Jersey, noted that "the range of circumstances that could warrant deportation" under that provision "is virtually boundless."
The law grants the secretary of state "unrestrained power," Barry noted, "authoriz[ing] a heretofore unknown scope of executive enforcement power vis-a-vis the individual with utterly no standards provided to the Secretary of State or to the legal aliens subject to its provisions." It "provides absolutely no notice to aliens as to what is required of them," she added, and "represents a breathtaking departure" from "well established legislative precedent which commands deportation based on adjudications of defined impermissible conduct by the alien in the United States."
Khalil's case illustrates the law's vagueness. Rubio says "information" provided by the Department of Homeland Security (DHS) indicates that Khalil participated in "antisemitic protests and disruptive activities" that fostered "a hostile environment for Jewish students in the United States." The memo lists a "DHS letter on Mahmoud Khalil" and two "subject profile[s]" of him as "attachments." But according to Khalil's lawyers, the government did not submit those documents or any other information beyond the memo as evidence in the immigration case.
We can surmise that the DHS documents include descriptions of the anti-Israel protests at Columbia, which often featured speech that was arguably or explicitly antisemitic. Columbia University Apartheid Divest (CUAD), for example, supports "liberation by any means necessary, including armed resistance," and has celebrated the barbaric Hamas attack that set off the war in Gaza. The group went so far as to retract an apology for the comments of a student protester who said, during a disciplinary hearing, that "Zionists don't deserve to live," adding, "Be grateful that I'm not just going out and murdering Zionists."
A federal lawsuit that survivors of the Hamas attack filed in Manhattan last month argues that CUAD, four other pro-Palestinian groups at Columbia, and three activists, including Khalil, are liable for damages under the Anti-Terrorism Act and the the Alien Tort Statute for "aiding and abetting Hamas' continuing acts of international terrorism and violations of the law of nations." Although the plaintiffs portray Khalil and the other defendants as "expert propagandists and recruiters" for Hamas, that claim is based almost entirely on constitutionally protected speech.
Even if Khalil openly praised Hamas or expressed hatred of Jews, those opinions would be protected by the First Amendment. But the lawsuit does not cite evidence that Khalil has done either of those things. The plaintiffs instead rely on guilt by association.
Khalil played a conspicuous role as a negotiator for pro-Palestinian protesters at Columbia. The complaint describes him as "the public face and de facto president" of CUAD. It adds that, "upon information and belief," Khalil is "also the de facto president" of two other groups named as defendants: Columbia Students for Justice in Palestine and the Columbia-Barnard Jewish Voice for Peace.
If those claims are accurate, it is fair to attribute those groups' views, including CUAD's endorsement of "armed resistance" and "liberation by any means necessary," to Khalil. Yet the inference that Khalil was in charge of those groups seems to be based mainly on his role as "the primary spokesperson and negotiator" for student protesters, a function that does not necessarily mean he agreed with all of the views they expressed. And although the lawsuit cites inflammatory Instagram messages promoting "intifada," Khalil has complained that he was blamed for "social media posts that I had nothing to do with."
The lawsuit is notably short of statements by Khalil himself that could reasonably be viewed as antisemitic. The complaint says, for example, that Khalil "led a rally where activists chanted 'from the river to the sea,' an antisemitic [slogan] used by Hamas to call for Israel's destruction." But it does not say whether Khalil himself chanted that slogan or endorsed the sentiment behind it.
Khalil, for his part, says he supports a peaceful solution to the Israeli-Palestinian conflict. "As a Palestinian student, I believe that the liberation of the Palestinian people and the Jewish people are intertwined and go hand by hand, and you cannot achieve one without the other," he told CNN last year. "Our movement is a movement for social justice and freedom and equality for everyone." He disavowed anti-Jewish sentiment, saying, "There is, of course, no place for antisemitism."
One might reasonably be skeptical of those self-serving statements, even though Khalil made them long before he was threatened with deportation. But for what it's worth, Khalil's portrayal of his views is echoed by Jewish friends who insist he opposes violence and is not remotely antisemitic.
One of those friends, a Columbia professor who identifies herself as "an American Jewish woman who believes in the importance of Israel as a Jewish homeland," describes Khalil as "someone working to be part of the solution towards a peaceful resolution to the conflict in Palestine and Israel." She says he "has never expressed support for Hamas" or "endorsed any form of extremism."
Another friend, a Columbia student who says "Judaism has always been central to my identity," reports that Khalil attended "Shabbat dinners I hosted with my friends" and "always approached our traditions with kindness." She portrays Khalil as a calming influence during a rally four days after the Hamas attack.
"When people hurled insults and profanities at me and my classmates," the student says, "Mahmoud was the first to step in and de-escalate the situation. He never raised his voice, never used harsh language, never resorted to aggression—he spoke calmly and respectfully, shielding students, including me, a Jewish student, from harm. He put himself between me and an aggressor, prioritizing my safety over his own. That is not the behavior of an antisemite—that is the behavior of an ally and a friend."
At another protest that November, the student adds, "I witnessed firsthand Mahmoud's unwavering commitment to protecting Jewish students. When an unaffiliated individual began shouting antisemitic slogans, Mahmoud was the first to intervene, immediately de-escalating the situation and ensuring the safety of those present. This came as no surprise—I already knew Mahmoud as someone I could trust to stand up for me and my community."
For many Jews (including me), engaging in anti-Israel protests immediately after the Hamas attack was inherently offensive, and even Khalil's avowed views will strike anyone looking for nuance as tendentious. His lawyers say he "has called Israel's actions in Gaza a genocide and characterized the United States as financing and facilitating such violence." But none of this necessarily makes him antisemitic.
Rubio is not interested in parsing such distinctions, and the law on which he is relying does not require him to do so. Nor does it require him to justify his implausible claim that allowing one pro-Palestinian activist to remain in the United States would have any significant implications for the government's stance against antisemitism. After all, every American has a constitutional right to openly express hatred of Jews, and that legal tolerance of bigotry in no way means the government endorses those opinions.
Khalil's lawyers argued, unsuccessfully, that resolution of his immigration case required testimony from Rubio that would elucidate his reasoning. Khalil "has the right under due process to confront the evidence against him, and that's what we want to examine Secretary of State Rubio about," one of his attorneys told The New York Times.
The focus of Khalil's legal battle now shifts to New Jersey, where Farbiarz is considering his constitutional arguments. In a brief supporting Khalil's challenge, the Foundation for Individual Rights and Expression (FIRE) argues that the deportation threat constitutes viewpoint-based discrimination, which is presumptively unconstitutional, and amounts to government retaliation for constitutionally protected speech. FIRE says that would be true even if Khalil had expressed support for Hamas, because "philosophical support for a terrorist organization (let alone mere overlap of certain political beliefs) is fully protected by the First Amendment."
FIRE agrees with the president's sister that Section 1227(a)(4)(C)(i) is "unconstitutionally vague, especially if the only deportable activity is protected speech." But as Trump sees it, the chilling effect of the law's indeterminate scope is a feature, not a bug. "Any student that protests," he said during his 2024 campaign, "I throw them out of the country. You know, there are a lot of foreign students. As soon as they hear that, they're going to behave."
In an emailed statement on Friday, FIRE Legal Director Will Creeley summed up the stakes of the case: "Can expressing an opinion that the government doesn't like justify a green card holder's arrest, detention, and deportation? That's what this case comes down to—and it's a question the courts must answer. The government is holding up a provision of the Immigration and Nationality Act that purports to say 'yes.' But the principles enshrined in the First Amendment say 'no.'"
Giving "a single government official sweeping and nearly unchecked power to pick and choose individuals to deport based on beliefs alone, without alleging a single crime, crosses a line that should never be crossed in a free society," Creeley said. "The only 'crime' the government has offered [is] that Mahmoud Khalil expressed a disfavored political opinion. If that's a crime in America, every single one of us is guilty."
[This post has been updated with comments from Will Creeley.]
