A Judge Said the Excuse for Arresting Mahmoud Khalil Was Unconstitutionally Vague. Why Isn't Khalil Free?
U.S. District Judge Michael Farbiarz highlights the chilling impact of Marco Rubio's dubious rationale for deporting students whose views offend him.
Mahmoud Khalil, a legal permanent resident who was the first target of President Donald Trump's crusade against foreign students he calls "terrorist sympathizers," could soon be released from custody thanks to a preliminary injunction that a federal judge in New Jersey granted this week. The reasoning behind that injunction underlines the chilling impact of Trump's attempt to treat speech he does not like as a deportable offense.
Khalil, a former Columbia University graduate student, was arrested in Manhattan on March 8 and since then has been confined to an immigration detention facility in LaSalle, Louisiana. His case ended up in the U.S. District Court for the District of New Jersey because that is where he was detained when his lawyers filed a habeas corpus petition.
The government "can have little or no interest in applying the relevant underlying statutes in what is likely an unconstitutional way," U.S. District Judge Michael Farbiarz wrote on Wednesday. His preliminary injunction bars the government from "detaining" or "removing" Khalil "based on" Secretary of State Marco Rubio's determination that his pro-Palestinian activism poses a threat to U.S. foreign policy interests.
Farbiarz stayed his injunction until 9:30 this morning to allow for a government appeal of his decision. That deadline came and went without an appeal. An Immigration and Customs Enforcement (ICE) official nevertheless told Khalil's lawyers "the government has no immediate plans to release him," The New York Times reports.
ICE may be relying on a secondary justification for Khalil's detention that the government added after his arrest generated controversy because of its First Amendment implications: When Khalil applied for a green card, the government claims, he failed to fully disclose his associations and employment history. But according to declarations from three immigration law experts, Farbiarz noted on Wednesday, "lawful permanent residents are virtually never detained pending removal for the sort of alleged omissions in a [green card] application that [Khalil] is charged with here." As Farbiarz saw it, that evidence "strongly suggests that it is the Secretary of State's determination that drives [Khalil's] ongoing detention—not the other charge against him."*
Rubio's determination was based on 8 USC 1227(a)(4)(C)(i), which authorizes the removal of noncitizens when the secretary of state "has reasonable ground to believe" their "presence or activities" in this country "would have potentially serious adverse foreign policy consequences for the United States." Specifically, Rubio claimed in a two-page memo invoking Section 1227, Khalil had participated in "antisemitic protests" that "foster[ed] a hostile environment for Jewish students."
Those activities, Rubio averred, "undermine U.S. policy to combat anti-Semitism around the world and in the United States" as well as "efforts to protect Jewish students from harassment and violence in the United States." He added that "condoning anti-Semitic conduct and disruptive protests in the United States would severely undermine" a "significant foreign policy objective," which he described as "champion[ing] core American interests and American citizens."
Rubio was alluding to Khalil's prominent role in protests at Columbia against Israel's war with Hamas in Gaza. But he did not cite any specific evidence that Khalil had promoted antisemitism—a charge that Khalil vehemently denies. Nor did Rubio accuse Khalil of breaking the law in any way. In fact, the memo acknowledged that the case against Khalil was based on "past, current, or expected beliefs, statements, or associations that are otherwise lawful."
Although that concession meant Rubio was required to cite "a compelling U.S.
foreign policy interest," he described the relevant interest as merely "significant." That was by no means the only problem with his memo. In a 101-page opinion published on May 28, Farbiarz concluded that Khalil was likely to prevail in his claim that Rubio's rationale was unconstitutionally vague as applied to him: It failed to give clear notice of prohibited conduct, as required by the Fifth Amendment right to due process, and it invited discriminatory enforcement.
Farbiarz noted that Rubio had repeatedly cited the purported domestic impact of Khalil's activities, which on its face had nothing to do with foreign policy, and conspicuously failed to claim those activities had affected U.S. relations with any particular country. Farbiarz thought that omission was striking in light of Section 1227's legislative and enforcement history.
When that provision was enacted in 1990, Farbiarz found, it was "expected to be used in contexts in which the underlying conduct (a) took place mainly abroad, not inside the United States, and (b) was determined by the Secretary to impact U.S. relations with another country." The way the law had been deployed prior to Khalil's arrest pointed in the same direction: "Section 1227 was generally meant to be used, and has been used, for conduct (a) that entirely or all but entirely took place outside the United States and (b) that, as determined by the Secretary, would impact U.S. relations with a foreign country."
Khalil, by contrast, "acted solely within the United States," Farbiarz noted, and Rubio "did not affirmatively determine that [his] conduct had any impact on U.S. relations with another country." Section 1227's legislative background and enforcement history "do not suggest in 'the common mind' that removal might be sought in these circumstances," Farbiarz wrote. "Rather, they underscore that a Section 1227 removal of the kind at issue here is unprecedented—not within the realm of conduct that the statute normally covers, of which an ordinary person would have notice."
The alleged connection between Khalil's domestic conduct and the global fight against antisemitism presents all sorts of puzzles for anyone keen to avoid deportation, Farbiarz noted:
How is an ordinary person to have notice that his conduct in America may have the impact that Section 1227 requires? How will he know whether people are hearing his words? That they are being influenced by them? That he is being seen by others as a kind of role model? What facts will he need to look to in order to answer these questions? Is he to read foreign newspapers to see whether he is being covered and how? In what languages? Newspapers from what places? Should he look to YouTube? TikTok? How thoroughly must he search for himself online? And critically: how much influence abroad is enough? When will he have a sense that his influence has risen to the high level of "compromis[ing]"…a compelling American foreign policy interest?
Someone who "wishes to steer clear of the possibility of being removed from the United States under Section 1227," Farbiarz observed, will "have to go quiet, or he will have to figure these things out." But "having people go quiet because they cannot readily determine how to stay on the right side of the law" is "one of the things vagueness doctrine exists to guard against."
When a law implicates First Amendment rights, as it does in this case, the need for clarity is especially important. Yet "Section 1227 is vaguer than other statutes that have been struck down" as unconstitutionally vague, Farbiarz wrote. "Section 1227 has been applied here in a surprising way—one that lessens the notice that an 'ordinary person' receives and leaves enforcement fully 'standardless.' [Rubio] has not determined that [Khalil's] conduct has impacted U.S. relations with another country. But that is what Section 1227 requires. And the statute's legislative and enforcement history [does] not foreshadow [Rubio's] determination. Moreover, Section 1227, as applied here, requires hard thinking to even know whether it is being triggered."
The vagueness problem, Farbiarz added, is only compounded if we give Rubio a pass by reading "foreign policy interest" to encompass U.S. "relations with the external world as a whole," as opposed to a specific country. Drawing on government documents, Farbiarz listed 33 potential "foreign policy interests," noting that the list could be expanded to several pages. "What notice is provided if 'foreign policy interest' can mean relations with other countries—plus the 33 things noted above, plus the many multiples of the 33 that might have been put down here?" he wrote. "Not very much. What sort of limits on enforcement discretion does this list imply? Only light ones."
If such vagueness is tolerated in this context, Farbiarz warned, it could easily spread to the criminal code, implicating the rights of U.S. citizens as well as foreign visitors. To underline that point, he quoted from a 1996 opinion by U.S. District Judge Maryanne Trump Barry (the president's late sister), which he described as "the first and only time
before today that a federal court has written substantively" about Section 1227.
"Imagine, for a moment, how quickly our constitutional hackles would rise if a local
police chief were granted the power to arrest any person whose mere presence would
cause potentially serious adverse consequences for the public peace," wrote Barry, who deemed Section 1227 unconstitutionally vague on its face. "If the hypothetical police chief statute would be void for vagueness (as it obviously would), then so, too, must be Section 1227."
It remains unclear whether the Trump administration will comply with Farbiarz's injunction by releasing Khalil or keep him in custody based on its post-hoc rationale for deporting him: that he did not supply all the information he should have when he applied for a green card.* But federal judges have issued similar orders in other cases involving students whose criticism of the Israeli government was deemed contrary to U.S. foreign policy interests.
Badar Khan Suri, a Georgetown University graduate student who was detained in March, was freed on May 14. Columbia student Mohsen Mahdawi, who was detained at his U.S. citizenship interview on April 14, was released two weeks later. Romeysa Ozturk, a Tufts University graduate student who was arrested on March 25 because of an op-ed piece she published in the school newspaper, was released on May 9.
Those deportation cases, like Khalil's, are still pending. But they may ultimately fail, largely for the reasons that Farbiarz has described in great detail. The due process problems intersect with the obvious First Amendment issue: Trump is trying to punish people for constitutionally protected speech, and the Supreme Court has said freedom of speech extends to "aliens residing in this country," not just U.S. citizens.
*Update: In a letter to Farbiarz on Friday afternoon, the government's lawyers said they are indeed now relying on the failure-to-disclose rationale that the judge had already suggested was pretextual. One of Khalil's lawyers, Marc Van Der Hout, said that charge is "completely bogus and completely retaliatory for his First Amendment activity." But Farbiarz said Khalil had yet to present "factual evidence as to why it might be unlawful to detain him on the second charge" or "make meaningful legal arguments" on that score.
