Deport Mahmoud Khalil is likely unconstitutional

Trump administration’s bid to deport Mahmoud Khalil is likely unconstitutional, judge rules

For now, the pro-Palestinian activist who organized protests at Columbia will remain in jail.

By Erica Orden

A federal judge ruled Wednesday that the Trump administration’s effort to deport pro-Palestinian activist Mahmoud Khalil is likely unconstitutional, but the judge stopped short of freeing him from jail.

Instead, Khalil must present further legal arguments for why he should be released, U.S. District Judge Michael Farbiarz wrote in a 106-page decision.

Khalil, a legal U.S. resident and recent Columbia University graduate student, has not been charged with any crime. But he has been detained in Louisiana since March, after authorities arrested him in the lobby of his university residence and put him into deportation proceedings.

Khalil was the first of a group of foreign-born pro-Palestinian academics who were swept up by the Trump administration even though they had green cards or valid student visas. Judges have ordered several of the other academics released from jail, but Khalil has remained locked up while fighting his deportation on two parallel tracks: Farbiarz’s courtroom in New Jersey and a separate immigration court proceeding in Louisiana.

During Khalil’s time in jail, his wife gave birth to their first child.

In seeking to remove Khalil from the country, the Trump administration invoked a rarely used provision of federal law that allows the deportation of any noncitizen if the secretary of State determined the person’s “presence or activities” in the U.S. “would have serious adverse foreign policy consequences.”

Farbiarz, a Biden appointee, ruled Wednesday that Secretary of State Marco Rubio likely acted unconstitutionally when he used that provision to target Khalil.

Rubio, the judge wrote, never explained whether Khalil’s activities “affected U.S. relations with any other country,” and as a result, his use of the provision was likely “unconstitutionally vague.”

“An ordinary person would have had no real inkling that a Section 1227 removal could go forward in this way,” the judge continued, referring to the section of federal law that contains the deportation provision.

But that does not mean Khalil should automatically be released, Farbiarz wrote. The judge said he wants additional briefing on other issues, including the government’s claim that Khalil omitted relevant information, including his membership in several organizations, when he applied for his green card.

Khalil and his lawyers have argued that the administration is illegally retaliating against him for his role in organizing campus protests of the Israel-Hamas war.

“The district court held what we already knew: Secretary Rubio’s weaponization of immigration law to punish Mahmoud and others like him is likely unconstitutional,” Khalil’s lawyers said Wednesday in response to Farbiarz’s ruling. “We will work as quickly as possible to provide the court the additional information it requested supporting our effort to free Mahmoud or otherwise return him to his wife and newborn son.”

While Khalil’s case has been pending before Farbiarz, an immigration judge in Louisiana ruled that Khalil can be deported as a national security risk. Immigration judges are employees of the Justice Department and ordinarily do not grapple with constitutional questions as extensively as U.S. district judges.

Khalil is expected to appeal the immigration judge’s ruling. He cannot be deported immediately because Farbiarz previously barred the government from removing him from the country while his legal challenge is pending.