Marco Rubio Personally Signed Off to Detain Mahmoud Khalil on 'Foreign Policy Grounds,' Sources Confirm
The government is staking its entire case to deport Khalil on whether Rubio “personally” thinks the Columbia student protest negotiator would “compromise” US foreign policy.
Marco Rubio personally signed off on the arrest of Palestinian Columbia University student protest negotiator Mahmoud Khalil, using a narrow, little-used authority given to the secretary of state, per two sources within the Department of Homeland Security and the State Department.
The authority, a provision of the Immigration and Nationality Act (INA), reads: “An alien 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.”
In other words, the provision – section 237(a)(4)(C)(i) of the act – gives the secretary of state power to deport any person who is not a citizen or national of the US, if they meet the threshold for "reasonable ground” of belief that they may have “potentially serious adverse foreign policy consequences” for the nation. Interestingly, the “quotas and ideological litmus test” of the INA, enacted in 1952, “were widely understood at the time to target Eastern European Jewish Holocaust survivors suspected of being Soviet agents,” the Jewish publication the Forward pointed out this week.
A State Department source, who spoke to Zeteo on the condition of anonymity, said that not only is the government using this justification to pursue Khalil, but that there are in fact “multiple targets” – a notion affirmed by another source familiar with the case, raising the question of whether Rubio will continue signing off on each case personally.
The State Department has not publicly disclosed the specific evidence on which it based its decision to order the arrest of Khalil, who is a green card holder. The INA provision explicitly says people “shall not be excludable or subject to restrictions or conditions on entry into the United States” because of their “past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.” But it allows for an exception – if the secretary of state “personally determines that the alien's admission would compromise a compelling United States foreign policy interest.”
The Board of Immigration Appeals has said that under the provision the State Department is using to detain Khalil, a 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.”
The provision, however, 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. “Of course, there's never been a secretary of state as manipulatable as our current Secretary Rubio. Most of them would stand their ground and would follow due process considerations,” he told Zeteo.
Free Speech Concerns
The federal government appears to be staking its entire case to deport Khalil on whether Rubio “personally” believes Khalil would “compromise” US foreign policy.
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.”
The official added: “He was mobilizing support for Hamas and spreading antisemitism in a way that is contrary to the foreign policy of the US.” Khalil has previously denied such allegations.
The use of the INA provision to go after someone based on their speech is so unprecedented that immigration law experts appear at odds over what specific evidence, if any, Rubio would have to provide to supersede any First Amendment concerns. Courts have previously found that lawful permanent residents share the caliber of First Amendment rights as US citizens do.
Stephen Yale-Loehr, a retired immigration law professor at Cornell Law School, told Time magazine that courts have ruled that a “non-citizen with a final removal order could not be removed if the removal was only because they were retaliating against their free speech.”
It appears unlikely that an immigration court would go against Rubio in Khalil’s case, Kuck said, but there could be grounds to challenge the constitutionality of using the provision itself in federal court.
When asked about the use of the provision, the State Department told Zeteo that non-citizens are deportable under “INA section 237(a)(4)(C)… if the Secretary of State determines” that their “presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States. In such cases, the Secretary of State notifies the Secretary of the Department of Homeland Security, who has the authority to initiate removal charges.”
DHS spokesperson Tricia McLaughlin said in a statement on Sunday that ICE detained Khalil “in support of President Trump’s executive orders prohibiting anti-Semitism.” Khalil “led activities aligned to Hamas,” McLaughlin added, without providing evidence. A State Department spokesperson initially told Zeteo they cannot comment on individual visa cases, but that the department has broad authority to revoke visas under the INA.
Rubio shared a news story of Khalil’s arrest, writing on Twitter on Sunday: “We will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.”
‘What’s the Limit?’
If successfully prosecuted, Rubio’s involvement in Khalil’s case would have significant consequences on free speech and the expansion of executive power, Kuck said, especially regarding the federal government’s power to deport and detain migrants.
“What is the limit?” Kuck posed. “Instead of being, you know, you're pro-Palestinian, let's say you're so anti-Trump that it impacts foreign policy. Oh my gosh, because you attacked the president verbally, can you be deported for that if you're a permanent resident? That seems to be beyond the pale. So then the question becomes, what's the line?"
Rubio's pursuit of such a fundamental shakeup of the American project contrasts with his own words from 2017:
"You see that the Republican party today controls the White House, the Senate and House, and yet you have people with the freedom in this country to be able to stand up and oppose that,” he said on the Senate floor. “We’ve seen that across the country in demonstrations, and in speeches, and in all sorts of protected speech…We are truly blessed to be able to live in a country where opposing the party in power does not mean you go to jail.”
A federal judge on Monday temporarily blocked the deportation of Khalil until at least Wednesday when a hearing is scheduled on a petition challenging Khalil’s detention. Khalil has also asked ICE to transfer him from Louisiana, where he’s being held, back to New York.
Members of Congress, some Columbia and Barnard faculty members, and scores of civil rights groups have condemned Khalil’s detention as a free speech violation. A protest has been planned in front of the federal courthouse in lower Manhattan beginning at 11:30 AM ET on Wednesday.
Prem Thakker is Zeteo’s policial reporter. Pablo Manríquez is a reporter and editor of Migrant Insider.
Editor’s note: This story has been updated with a comment from the State Department.
Check out Zeteo’s previous reporting on Mahmoud Khalil’s detention:
Sub human Marco
Petition for the immediate release of Greencard holder, Mahmoud Khalil
https://actionnetwork.org/letters/demand-the-immediate-release-of-columbia-student-pro-palestine-advocate-mahmoud-khalil-from-dhs-detention