Can Trump Legally Deport Mahmoud Khalil? What About Free Speech? Here’s What Experts Say
Everything you need to know about the Trump administration’s attempt to deport the Columbia student protest negotiator and what’s next.
The Trump administration's communication around the arrest of Columbia University student protest negotiator, Mahmoud Khalil, a green card holder, has brought more questions than answers. Not only is it unclear what evidence, if any, the administration is using to initiate deportation proceedings, but his arrest has also spurred questions about the rights of permanent residents and whether the administration can simply go after someone based on their speech.
Here’s what legal experts say about his arrest, the Trump administration’s actions so far, and what it could mean for other immigrants:
Can a green card holder even be deported? What authority is the Trump administration using to detain Khalil and possibly deport him?
Yes, a green card holder (or lawful permanent resident) can be deported. The most common way is if they committed a crime.
But in Khalil’s case, he has not been charged with any crime. Instead, Secretary of State Marco Rubio personally signed off on targeting Khalil using a narrow, little-used authority from the Immigration and Nationality Act (INA), as Zeteo previously reported.
Under the provision – section 237(a)(4)(C)(i) – an immigrant who is not a citizen or US national, but “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.”
While the provision has an exception for conduct deemed “lawful” in the US (such as free speech), the exception has an exception: if the secretary of state “personally determines that the alien's admission would compromise a compelling United States foreign policy interest.” That personal determination seems to be driving Rubio’s insistence that the Trump administration can deport legal permanent residents whom it deems to be “pro-Hamas.”
A White House official told the Free Press that “the allegation here is not that [Khalil] was breaking the law,” but rather that he is a “threat to the foreign policy and national security interests of the United States.”
It’s worth mentioning that the Jewish publication Forward called the INA a “McCarthy-era antisemitic law” that was widely viewed at the time of its passage in 1952 as a way to target “Eastern European Jewish Holocaust survivors suspected of being Soviet agents.”
What constitutes someone having “potentially serious adverse foreign policy consequences for the United States”? Is it constitutional?
The INA provision is extremely vague and doesn’t define any specific metrics the secretary of state must follow in determining whether someone has potentially serious adverse foreign policy consequences for the country.
The provision is rarely used – “that’s how powerful it is,” said Charles Kuck, an immigration attorney and adjunct professor of law at Emory University and the University of Georgia.
The Department of Homeland Security on Saturday accused Khalil of leading “activities aligned to Hamas” and said authorities detained Khalil “in support of President Trump’s executive orders prohibiting anti-Semitism.” The Trump administration has not provided any specific evidence on which it is basing its determination. Khalil’s legal team has rejected the Trump administration’s claim that Khalil supported a terrorist organization. Khalil himself emailed the university a day before his arrest, worried about his safety, saying he had been harrassed and attacked online by pro-Israel groups that had called for his deportation.
John Sandweg, former acting director for ICE, told CNN that provisions like the one the Trump administration is using to detain Khalil are typically cited if immigration authorities accuse someone of “providing direct financial or operational support to a terror organization.”
He added, “It is far less common for ICE to allege that political views or speech renders a green card holder deportable under the terrorism grounds as that raises significant First Amendment concerns.”
That said, immigration courts, more generally, are often given “wide discretion” in categorizing whether people are “engaging in terrorist activities,” according to Karla McKanders, the director of the NAACP’s Legal Defense Fund’s Thurgood Marshall Institute.
Because the INA provision is so rarely used, it’s hardly been tested in federal court.
It’s worth noting, however, that a district court in 1996 did find that the provision was “unconstitutionally vague,” said Lindsay Nash, an associate professor at Cardozo School of Law and co-director of the Kathryn O. Greenberg Immigration Justice Clinic.
According to Nash, the judge, who was none other than Donald Trump’s sister, Maryanne Trump Barry, essentially said that “providing the secretary of state [the ability] to determine deportability” deprives the court of the role it would “normally have in reviewing these types of determinations.” The law, the court said, also doesn’t give non-citizens a way to know what is prohibited, and it violated procedural due process because “it provides no opportunity to be heard on the charges against you before you're determined to be deportable,” Nash told Zeteo. Ultimately, the court found the provision was an “unconstitutional delegation of legislative power to the executive.”
However, that ruling was thrown out by an appeals court, which did not comment on the constitutionality of the provision but rather said the district court did not have jurisdiction in the case.
In 1999, the Board of Immigration Appeals, which did not address the constitutionality issues, said that under the INA provision, the letter from the secretary of state “conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination, is presumptive and sufficient evidence that the alien is deportable.”
What about the First Amendment?
Courts have previously found that green card holders, who are lawful permanent residents, are protected by the Constitution, including First Amendment rights. “Technically, the text of the First Amendment does not distinguish between citizens and non-citizens – so all persons in the US should be entitled to First Amendment protections,” McKanders told Zeteo.
While Kuck said it’s unlikely an immigration judge would go against Rubio’s determination, Khalil likely has a strong case in federal court.
“It seems to me constitutionally suspect to simply be able to deport someone who is protected by every right of the US constitution without due process,” Kuck said. “I do not believe that when Congress created that provision, it was thinking about a student protesting at a college, and how that could possibly impact the actual foreign policy of the United States. And I think that's a determination that is absolutely subject to judicial review,” he added. “I think the First Amendment absolutely trumps the Immigration Nationality Act.”
For his part, Rubio has said that “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.”
Yet, when asked about Khalil’s case on Wednesday, Trump border czar Tom Homan said that there are “limits” to free speech.
What happens next in Khalil’s case?
For now, Khalil remains detained in an ICE facility in Louisiana. A federal judge in New York has ordered the government not to deport Khalil while a challenge to his detention is pending. Khalil’s legal team has asked for their client to be moved to New York and released. The government has argued the case should be moved to New Jersey or Louisiana.
Separately, Khalil is scheduled to appear before an immigration judge in Louisiana on March 27.
What could Khalil’s case mean for other green card holders or legal permanent residents? Or those with student visas?
Trump has said there are more arrests to come, and sources within the government told Zeteo there are “multiple targets” beyond Khalil who the administration plans to use the provision to deport. If the Trump administration successfully deports Khalil under the INA provision it is using, legal experts expect the government will continue to target immigrants over their speech.
“The Trump administration's message is clear that it will abuse the law in its racist targeting of immigrant Palestinians, Arabs, Muslims, and others,” said Laila Ayub, immigration attorney and director of Project ANAR, an Afghan community immigration justice organization.
Sophie Dalsimer, an immigration attorney and co-director of Health Justice at New York Lawyers for the Public Interest, added: “The arrest and detention of Mahmoud Khalil represents an extremely disturbing weaponizing of federal law enforcement to punish and silence free speech.”
But she warned that while it may be easier for the Trump administration “to target visa holders, and then [lawful permanent residents], … it is not likely to stop there.”
McKanders agreed. “The topline is that this appears to be a retaliatory deportation for exercising First Amendment rights,” she said.
“The impact expands broader than one case. It is the chilling effect this executive action will have on curtailing both citizen and noncitizens speech as both groups will be afraid that their actions, although protected under the First Amendment, will be criminalized.”
Prem Thakker is Zeteo’s political reporter. Send tips via email or Signal (premthakker.35).
ICYMI – Check out more from Zeteo on Mahmoud Khalil:
I don't know how the Secretary of State could miss the one outstanding example of an immigrant whose "presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States", because his actions already have met the requirements for deportation under this law--Elon Musk.
Rubio trump so lame A tea bagger and a traitor friggin around with a college student protesting a genocide. While everyone’s attention on this , human beings , babies , children getting massacred in Ukraine and Palestine. There is absolutely no bottom for these bastards