Three days after Immigration and Customs Enforcement (ICE) agents arrested Mahmoud Khalil, the White House confirmed the recent Columbia graduate hadn’t been charged with a crime. Instead, Khalil’s arrest had been personally ordered by Secretary of State Marco Rubio.
“The secretary of state has the right to revoke a green card or visa for individuals who are adversarial to the foreign policy and national security interests of the United States,” White House Press Secretary Karoline Leavitt told reporters. Khalil, she claimed, had “organized group protests” that disrupted classes and harassed Jewish American students. On top of that, she said, he had “distributed pro-Hamas propaganda: flyers with the logo of Hamas.”
Contrary to Leavitt’s statement, Rubio can’t just snap his fingers and order someone’s deportation. But the provision of the law she cited, the Immigration and Nationality Act (INA), is very real. It’s an obscure McCarthy-era statute passed at the height of Cold War paranoia — meant to help root out “subversives” from every area of public life.
Khalil’s arrest marks a turning point in both the Trump administration’s immigration policy and its stance toward dissidents, and Trump has promised there will be more. The administration already has “multiple targets” in addition to Khalil, a State Department source told Zeteo. And Leavitt told reporters that the administration is “using intelligence” collected by the Department of Homeland Security (DHS) to identify other international students who have been involved in campus protests, potentially flagging them for deportation.
The Trump administration is going after Khalil with section 237(a)(4)(C)(i) of the INA, under which the secretary of state can in fact declare any noncitizen — even legal permanent residents — “deportable,” but only an immigration judge can revoke someone’s green card. Congress passed the INA (also known as the McCarran-Walter Act, after its two red-hunting sponsors) in 1952 at the height of the McCarthy era, when politicians saw the specter of communism everywhere. One of its sponsors, Rep. Francis Walter, went on to chair the infamous House Un-American Activities Committee.
Like Trump, McCarran and Walter were panicked by a wave of immigrants. The 1948 Displaced Persons Act had welcomed 200,000 war refugees from Europe — and some legislators were convinced the newcomers had been infiltrated by America’s political enemies. One Mississippi lawmaker claimed the refugees were “bringing with them communism, atheism, anarchy, and infidelity.” The INA was meant to assuage these fears by giving the attorney general the right to deport noncitizens who had been convicted of certain crimes, as well as those who were affiliated with communist and anarchist groups.
Political affiliation is typically a form of protected speech, and even amid this paranoia, the INA was supposed to have limits. Our own asylum and refugee laws grant protection to people who have been persecuted in their countries of origin due to factors including their “political opinion” and “membership in a particular social group.”
The INA addresses this contradiction by noting that people can’t be excluded or deported from the United States due to their “past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.” But there’s a loophole: if “the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.”
What counts as a “compelling” US foreign policy interest? That’s largely up to the secretary of state. The Board of Immigration Appeals (BIA) — a Department of Justice agency that reviews immigration decisions — clarified in 1999 that all it requires is a letter conveying that someone’s presence in the US is a foreign policy threat. The letter must state “facially reasonable and bona fide reasons for that determination,” but no other evidence of deportability is required.
That still doesn’t mean that Rubio can unilaterally order Khalil’s deportation. Only an immigration judge can make the final call, and Khalil is entitled to a legal process, including a hearing before the judge. (More likely, a series of hearings, since immigration cases often take months or years to adjudicate.) Immigration courts are under the purview of the Executive Office for Immigration Review (EOIR), an agency within the DOJ.
These courts, to be clear, are not exactly an independent judiciary: immigration judges are DOJ employees, and in Khalil’s case, the government doesn’t need to provide much more evidence. Even so, there is a degree of due process. “There will still be defenses to removal, but the Secretary’s letter will generally meet the burden of proof that the noncitizen is deportable,” a former DHS official told The Verge. But there are also some avenues for relief. “He can ask for cancellation of removal, asylum, withholding of removal, deferral of removal.” At the very least, the process can’t be carried out in a covert, lightning-fast arrest that resembles nothing so much as a totalitarian government disappearing its critics.
Each of Khalil’s options has different legal requirements and different outcomes. To be granted asylum, for example, Khalil would have to prove that he faces persecution in the country he’ll be returned to due to his race, religion, nationality, political opinion, or membership in a particular social group. To get cancellation of removal, he’d have to prove that he is related to US citizens or lawful permanent residents who would suffer exceptional and unusual hardship if he’s forced to leave the country, among other requirements, including “good moral character” and 10 years of continuous presence in the US.
Both asylum and cancellation of removal would let Khalil keep his green card. Withholding and referral of removal, on the other hand, would do just that: prevent DHS from deporting him, perhaps indefinitely, without granting him any legal status.
During a hearing in a New York federal court on Wednesday, Judge Jesse Furman ruled that Khalil can have two privileged calls with his attorneys. This, however, was not an immigration hearing: it was related to the habeas corpus petition Khalil’s attorney, Amy Greer, filed after his arrest, requesting his release from ICE detention. Greer submitted the filing around 4AM on Sunday, just hours after his arrest — but DOJ attorneys claim that by that point, Khalil was at an ICE facility in New Jersey, which means Furman wouldn’t have jurisdiction.
Khalil is now at an ICE detention center in Jena, Louisiana, and the government’s attorneys said he has been issued a notice to appear in immigration court there — an early step in the deportation process. The habeas petition will play an important part in the future of his case, affecting his ability to stay in the US. The DOJ wants Khalil’s attorney to file an amended habeas petition in either New Jersey or Louisiana, which would put it before a different judge. And if that request isn’t granted and Khalil isn’t released, his immigration proceedings will likely take place in Jena, where immigration judges are known for their abysmally low asylum grant rates.
Jurisdiction is paramount in a case like this, especially given that the legal rationale behind Khalil’s potential deportation is extremely unusual.
As recently as the 1980s, the US used other provisions of McCarran-Walter to initiate deportation proceedings against journalists, academics, and activists who criticized the American government or promoted “world communism.” But the former DHS official said she hadn’t seen anything like Khalil’s case in the 10 years she worked for the department.
The 1999 BIA case, one of the most recent examples of the secretary of state singling someone out for deportation, had nothing to do with protesting or ideology. It involved a former Mexican government official who was arrested for trying to return to Mexico with $26,000 in undeclared cash. The secretary of state’s justification was that the case involved “a man connected through his circle of family and friends to the center of power in Mexican politics” and that the US and Mexico had worked hard to “cooperate to confront criminality on both sides of the border.”
Khalil is not a former government official; he is a recent graduate of a Columbia master’s program who has been involved with campus protests. His arrest resembles that of the so-called LA 8, a group of noncitizens, most of whom were students, who were arrested in 1987 for their alleged connection to the Popular Front for the Liberation of Palestine.
Under the McCarran-Walter Act, the LA 8’s supposed connection to the Popular Front — a Marxist organization — made them deportable. But each of them denied being members of the group. Eventually, six of the eight were deported on technical visa violations — but two activists, Khader Hamide and Michel Shehadeh, fought their deportations for 20 years until an immigration judge dismissed their cases in 2007. Like Khalil, both Hamide and Shehadeh were legal permanent residents; their status gave them more of a fighting chance than they would’ve had if they’d been in the US on student visas.
Even in comparison to that incident, this case marks a new evolution of the law. Khalil isn’t being targeted for alleged connections to communism, but for vague notions of threatening our “foreign policy” and alleged sympathy for — but no affiliation with — a terrorist group. And Trump and Leavitt’s recent statements suggest that Rubio will use the same statute to go after other protesters.
Matt Cameron, a Boston-based immigration attorney, said the provision Rubio is using to target Khalil is often used to prevent certain people from entering the US — to declare them “inadmissible.”
“It’s using immigration policy as foreign policy. It makes sense that provision exists as a matter of inadmissibility,” Cameron said. For example, the US often denies visas to people from so-called “recalcitrant countries” that refuse to accept deportees. In January, Rubio imposed visa restrictions on Colombian officials after the government refused to accept deportations on military planes. But denying foreign nationals entry into the US is different than trying to deport them after they’re already here, Cameron said.
“The deportability provision is very concerning, because it only requires a letter from the secretary of state, and you could potentially upend somebody’s life, after many, many years here, who has strong ties to the country,” Cameron told The Verge. “The entire purpose of the distinction between inadmissibility is to make it harder to remove somebody who is here than it is to just keep them from coming. You have more rights once you’re here, once you’re a resident, once you’re on that path to citizenship.”
That’s the theory, at least.
