Khalil Decision Worse Than Predicted

On Friday, April 11, an immigration judge ruled that U.S. Immigration and Customs Enforcement (ICE) sustained its charge of removability meaning Mahmoud Khalil could be removed from the United States. This decision and its consequences are even worse than I wrote about in either my first (Wrong Approach, Right Result for Mahmoud Khalil) or second (Still the wrong approach for the Mahmoud Khalil case) piece on this topic.

My first piece described the government’s horribly drafted and legally deficient document placing Khalil into removal proceedings. Beyond those not-insignificant-concerns (which were apparently corrected), my larger issue was the ground of removability chosen by the government to pursue which relies on the Secretary of State’s finding that Khalil’s presence or activities would have potentially serious adverse foreign policy consequences for the United States. Days later, the government added additional factual allegations and a new charge of removability asserting Mahmoud Khalil made false representations on his immigration paperwork and therefore could be stripped of his green card. A potentially better strategy, I opined, while commenting that the allegations appeared weak and that stronger evidence to support this fraud charge from the government was needed.

In the end, the only evidence presented by the government to establish Mahmoud Khalil’s removability was an undated, two-page memorandum from the Secretary of State Marco Rubio to the Secretary for Homeland Security informing her that he determined Khalil’s presence, “in the United States would have potentially serious adverse foreign policy consequences and would compromise a compelling foreign policy interest.” The foreign policy interest cited was, “to combat anti-Semitism around the world, and in the United States, in addition to efforts to protect Jewish students from harassment and violence in the United States.” Based solely on this memo, the immigration judge found Khalil could be removed from the United States.

And just that quickly, the opportunity to clearly state to the world that non-citizens are not welcome in the United States if you endorse or espouse support for terrorist activity or a terrorist organization, was lost. The government abandoned the fraud charge of removability by submitting no additional evidence (which I was hoping to see) to support those charges and proceeded solely on the ‘foreign policy threat’ charge. As I wrote previously, I feared this path was wrong and would venture perilously close to First Amendment issues the government would be wise to avoid. But I was wrong. Instead of avoiding this dangerously slippery slope of free speech issues, the administration has seemingly and happily done the exact opposite creating more issues than necessary.

Why am I so disappointed and negative about this decision? Many reasons.

First, the immigration lawyer in me knows the decision to use this statute, and the way it was used, was just plain wrong. In the Congressional deliberations that took place when this law was enacted, they wrote: “It is the intent of the conference committee that this authority would be used sparingly and not merely because there is a likelihood that an alien will make certain remarks about the United States or its policies.” H.R. Conf. Rep. No. 955 at 6794, 101st Cong., 2d Sess. at 129 (1990). Hmmm, it looks like there was a concern about the First Amendment and that this statute could be misused to silence unpopular opinion – and Congress explicitly warned against it. This point will surely not be missed by Khalil’s attorneys when they appeal this case.

Next, the wording of the Rubio memorandum has things backwards…the tail is wagging the dog! The memorandum begins: “I am writing to inform you (the DHS Secretary) that upon notification from the Department of Homeland Security’s Homeland Security Investigations (DHS/ICE/HSI) on March 7, 2025, that [other redacted name] and Mahmoud Khalil, both Lawful Permanent Residents, are deportable aliens under INA section 237(a)(4)(C). I understand that ICE now intends to initiate removal charges against them, based on assurances from DHS/ICE/HSI.”

This has things backwards. Does this language not imply, if not openly state, that ICE went to Rubio and said, “Hey, Marco, we want to get rid of this guy, can you tell us you don’t want him here? Can you write us a memo…and don’t date it, because the date of the memo became an issue in the only published case law on this statute plus it is awfully suspicious that you are being notified by us on March 7, 2025, the day before we have already decided we are going to pick him up!” The proper use of this statute envisions a person in the United States causing such disruption to our foreign policy that the Secretary of State says he must go. Not, “we want to get rid of him, so let’s find a significant foreign policy justification for why he has to leave.” So yes, I have major concerns about whether the use of this statute and memo to support the charge of removability will, or even should, stand up on appeal.

But as a Zionist, American Jew, I have even more concerns about this decision. There is certainly a side of me, and an opinion I am sure shared by many in the Jewish community, that says: “thank goodness, finally an administration standing up for and fighting for us!” And yes, that is positive; though I fear the negatives could be greater.

Why has the government completely avoided the “Khalil supported and espoused support for terrorist activity and a terrorist organization” theory that in and of itself renders him removable from the country? Why does the Rubio memorandum not mention the words “terrorist” or “Hamas” but rather ties itself in a knot attempting to create a foreign policy crisis over “antisemitism” and “the Jews.” Excuse my skepticism, but I do not think this administration has an enduring love for the Jews; rather, there are larger political forces at play.

First, us Jews have historically been good scapegoats – some might say “the best” – and should this case go down in flames, we are an easy target for the extreme right to blame. Doesn’t make much sense, right? Scapegoating never does. Next, I am concerned about the government’s use and over-use the term ‘antisemitism.’ Just like other terms thrown around too easily in the public discourse these days (racism, genocide, apartheid), if everything is antisemitism, then the term becomes diluted and nothing is antisemitism.  At a time when Jewish organizations and individuals fight to give significance and meaning to and gain acceptance of claims of antisemitism, I fear this hurts that objective.  Plus, like it or not, being antisemitic or espousing antisemitic views IS protected First Amendment protected speech, which yes, does apply to non-citizens like Khalil. Advocating for Palestinian rights or for a ceasefire or for the boycotting, divesting from or sanctioning of Israel is also protected First Amendment speech. We may not like it. We may think that crosses the line into antisemitism, but it remains protected First Amendment speech.

Lastly, I sadly see this case adding fodder to the Executive Branch vs. Judicial Branch separation of powers debate this administration seems to be pushing. When this case gets to federal court (which it will), I foresee Khalil’s legal team attacking the Rubio memo (like I did above) and say, “this has nothing to do with foreign policy!” at which point certain heads in the White House will explode screaming, “we’re the Executive Branch and WE decide what is and what is not foreign-policy related.” And for months (or longer) as the case is litigated, and accusations from the administration of ‘over-stepping, activist, un-elected judges’ fill our newsfeeds, all we will hear is “antisemitism” this or that and “the Jews” do this or that. The opportunity to have clearly and simply stated to the world that terrorist supporting non-citizens are not welcome in the United States having been lost.

Don’t get me wrong: I am all for combatting antisemitism and protecting Jewish students from harassment and violence, as written in the Rubio memo, but I am dismayed in the manner the government pursued these goals here (and in hundreds of similar cases of foreign students having their visas cancelled). If you want to deport someone for supporting or espousing support for terrorist activity or organizations? Fine, say that and do that. If you want to deport someone for violently protesting, or destruction of property, or assault or similar? Fine, charge them criminally and deport on those grounds. Those actions would have been wholly appreciated and welcomed by me. This mess: not so much.