Still the wrong approach for the Mahmoud Khalil case

I recently wrote about the government’s missteps when commencing removal proceedings against Mahmoud Khalil, the Columbia graduate student currently detained by US Immigration and Customs Enforcement (ICE). My concern was the charge of removability the government chose to proceed with – that his presence in the United States could have serious adverse foreign policy consequences – was ill-advised and sloppily presented.

As I anticipated, the government exercised its right to amend the charging document in Khalid’s proceedings. Unfortunately, unlike before, a copy of the amended charging document has yet to make its way to social media, so I have not seen it, and I am making these statements based on recent news articles. Nevertheless, based on this reporting, I feel comfortable saying to the government: You’re getting warmer, but you’re not quite there yet.

The government has now charged Khalil with an additional ground of removability which basically says, we can take away your green card and deport you because we never should have approved it in the first place. Some may immediately say, “Wait, that’s not fair – you had the opportunity to deny the case, and you didn’t. You can’t just go back and have a re-do. Isn’t that ‘double jeopardy’ and isn’t that not allowed?”

No, it is not ‘double jeopardy’ and it is very much allowed in the immigration laws. Immigration law is ‘civil’ not ‘criminal’ in nature. And, although many courts have repeatedly stated that the consequences of ‘civil immigration law’ (i.e., banishment from the country) can be much more severe than ‘criminal law’ (a fine, probation, or even jail), the protections afforded to criminal defendants are simply not guaranteed in the Constitution and therefore not provided in the civil, immigration context. This, for example, is why the reporting and hysteria about Khalid not receiving his Miranda warnings (“you have the right to remain silent, anything you say…..”) when arrested by ICE is nonsensical. This wasn’t a criminal arrest. No Miranda warnings necessary. Similarly, this same report’s claim that Khalid’s removal proceedings were brought under the Alien Enemies Act, which the administration is using to deport alleged Venezuelan gang members, is also not correct, but rather attention-grabbing overreach.

So yes, the government can absolutely say, “We’re going to take away your green card because we never should have given it to you originally.” This happens all the time. But what the government must do, and so far failed to do, is explain why the permanent resident application should not have been approved originally. Based on current reporting, the government is stating that Khalid committed fraud in his green card application by failing to disclose certain information, and had he disclosed that information, his application would have been denied.

What is this information the government alleges Khalil failed to disclose on his application? According to the articles, the government claims he failed to mention (1) that he previously worked for the Syria office of the British Embassy in Beirut; (2) that he was a member of UNRWA, the United Nations Relief and Works Agency for Palestine Refugees, and (3) that he was a member of the group Columbia University Apartheid Divest (CUAD).

When I first read these allegations, my mind went to the courtroom scene in A Few Good Men, when Col. Jessup (Jack Nicholson) says to Lt. Kaffee (Tom Cruise), “Phone calls and foot lockers? Please tell me that you have something more, Lieutenant. These two Marines are on trial for their lives. Please tell me their lawyer hasn’t pinned their hopes to a phone bill.”

Working at the embassy of one of our allies? Working for a UN agency that assists Palestinian refugees? Being a member of a university student group opposed to Israel? Please tell me that you have something more, ICE.

Materiality

To sustain a ground of removability for failing to disclose or providing incorrect information for an immigration benefit, the government must show that the information was “material.” Materiality in this context has been the subject of plenty of litigation and interpretation, but the basic, long-held concept is this: did the withholding of the information in question cut off a line of inquiry? In other words, had Khalil disclosed the fact that he worked at the British Embassy, or for UNRWA, or was a member of CUAD – would that have caused further questioning, or investigation, or inquiry that could have led to the denial of his green card application?

This analysis and standard is very generous to the government because it can almost always be said: had you told us about X, we would have asked you about Y. For this reason, it is certainly reasonable for one to say, yes, had Khalil mentioned these affiliations the questioning or investigations might have continued and that could have potentially led to a denial, so yes, his misrepresentations or omissions were “material” and for that reason the government has met its burden to sustain this ground of removal. It is quite possible and even reasonable for an immigration judge to make that finding.

But, it is also quite possible that an immigration judge can reasonably say: sure, you didn’t tell the government about X, so they didn’t ask you about Y, but what is so bad about Y that we should be concerned with? Had he told us about Y, would that have made a difference? What is it about working at the British Embassy in Lebanon that would have caused Khalil to be inadmissible to the United States? What about UNRWA or CUAD? Does working for or being affiliated with those groups disqualify one from visiting or living in the United States?

Don’t get me wrong, I am no fan of UNRWA or CUAD. I made my thoughts well known about UNRWA very early in this conflict. We know what UNRWA is and what they stand for and it is certainly true that some of their members’ activities in direct support of Hamas and on October 7 have been documented. But having said that, I am not sure that as a country we are, or should be, at the point where just being affiliated with or having worked for UNRWA makes you unable to live in or visit the United States. Because that is what ICE is alleging here: had you told us about working for UNRWA, we would not have approved your green card application. Had you told us that you are part of a student group that calls Israel an apartheid state and seeks the university’s financial divestment from Israel, then we would not have approved your green card.

The mandate of UNRWA has long outlived its usefulness, their intransigence and actions for decades have perpetuated the Israeli-Palestinian conflict, and any assertion that Israel is a colonial, apartheid state that should be boycotted is utterly ridiculous. And still, this all seems way too close to the argument that Khalil is being removed because the government simply does not like who he is, who he associated with, or what he stands for. I am no fan of any of those things, but those reasons are still perilously close to that slippery slope of infringing on his First Amendment rights of freedom of expression and association. The government should steer far away from putting this reasoning.

So, please tell me that you have something more, ICE. Please tell me you have a video clip or a statement in which he praised the October 7 terrorist massacre, or in which he calls for it to be repeated, or in which he praises Hamas, or something similar. As I explained in my last piece, such statements connect the dots in a straight line of a non-citizen, espousing support for terrorist activity or a terrorist organization which leads directly to a sustained ground of removability. The government’s latest attempt to amend and add a ground of removability gets us closer to what I think its case needs to be, but it’s not quite there yet.