Wrong Approach, Right Result for Mahmoud Khalil

The White House recently released an Executive Order stating, “[i]t shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.” Most in the Jewish, Zionist community were thrilled with such strong, unambiguous support and the public statements from the president and the White House that they would move to deport those terrorist-supporting non-citizens who harassed and intimidated Jewish and pro-Israel students on college campuses.

I was less enthusiastic. As an immigration attorney for nearly 30 years, including 12 with the federal government, I cautioned that the public, media-attention-grabbing statements made by the president went far beyond what was in the E.O. and that any attempt to use the immigration laws to remove a non-citizen on these grounds would have to be narrowly tailored to specific facts that support a specific ground of removability. How wrong I was.

On Saturday, March 7, U.S. Immigration and Customs Enforcement officers arrested Mahmoud Khalil and placed him into removal proceedings alleging he was removable from the United States. Khalil, who is a lawful permanent resident (“green card” holder), is a Columbia University graduate student who led the violent, anti-Israel and antisemitic protests and the student encampments that harassed and intimidated Jewish students following Hamas’ October 7, 2023 attack. His participation and role in those activities is not in question. As the spokesperson for the protesters, the Trump Administration apparently chose him as the test case for their authority to deport “pro-Hamas” students from the United States envisioning him as the poster child for how this administration supports the Jewish and pro-Israel community that won’t stand for terrorist supporting hate speech and activities by non-U.S. citizens. Instead, Mahmoud Khalil has unfortunately become the poster child for the anti-Israel and antisemitic voices claiming their first-amendment rights are being trampled by an over-zealous government.

First, a copy of the document commencing Khalil’s removal proceedings that is floating around the internet is deeply flawed and embarrassing. When I was with the government, removal proceedings brought against a lawful permanent resident required counsel review for legal sufficiency. And, any investigation or operation involving a sensitive subject, high-profile target, or one that could garner significant media attention was reviewed and approved up the chain of command to mitigate those concerns. A case of this magnitude required, yet obviously failed, to receive such review as there are clear factual and legal errors and ambiguities that call the entire document and the proceeding’s validity into question.

But beyond those errors which can likely be fixed by amending the charging document in court, I am astounded by the grounds of removability chosen by the government to support Khalil’s removal. The government could have taken a clean, straight-line approach easily supported by publicly available evidence to support a ground of removability, and sent a definitive, strong message to all: non-citizen supporters of terrorism and terrorists are not welcome in the United States. Instead, their approach is an ambiguous, circuitous charge that can certainly give rise to first-amendment concerns and sets a dangerous precedent for future use of this rarely used statute.

For example, among many other scenarios, our immigration laws hold a non-citizen removable from the United States if they endorse or espouse terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization. Terrorist activity (among many other scenarios) is defined as the use of any explosive, firearm, or other weapon or dangerous device with intent to endanger the safety of one or more individuals or to cause substantial damage to property. Hamas is a U.S.-designated and internationally recognized terrorist organization.

With readily available content found online, the government could “clearly and convincingly” (the standard the government must meet) establish that Mahmoud Khalil fits within that definition. Can anyone reasonably or rationally assert he hasn’t endorsed or persuaded others to endorse terrorist activity or Hamas? No, they can’t. Case closed. Removability sustained. U.S. citizen wife and child? Irrelevant, good-bye, no exceptions. And to answer the question many have, no, a conviction is not required to sustain this, or many other grounds of removability.

But that is not the tack the government chose. Instead, the government asserts Mahmoud Khalil is removable because the Secretary of State has reasonable grounds to believe his presence or activities would have potentially serious adverse foreign policy consequences for the United States. Who makes this determination, Secretary Rubio himself? On what basis? What activities? What foreign policy consequences? Was it something he said? Something he believes in? What do ‘serious adverse’ vs. just ‘adverse’ foreign policy consequences look like? Do we see the problem here? There are no standards, no definitions and no idea whatsoever on what basis the Secretary of State has made such a determination. What “clear and convincing” evidence must the ICE attorneys present to the immigration judge to prove their case?

Do we still not see the problem? The argument could reasonably be made – though I do not believe or agree with it – that he is simply being removed because he is pro-Palestinian and anti-Zionist. And, that argument continues, because it is the policy of the United States to support the State of Israel, his views and activities run counter to the foreign policy of the United States, and he therefore must go. This is a tremendously slippery slope I do not think the government should be stepping on or coming anywhere close to. It is therefore not unreasonable for people to make the assertion that he is being removed for expressing his constitutionally protected First Amendment rights to free expression and protest. And by choosing this charge, the government has now unwittingly created a folk-like hero for the far-left, antisemitic, anti-Zionists.

So why go down that road especially when, as I have explained above, they could have reached the same result in a cleaner, straight-line, unambiguous way? As a non-citizen, you are removable from the United States if you endorse or espouse support for terrorist activity or a terrorist organization. You, Mahmoud Khalil, are not a U.S. citizen and you endorsed and supported terrorist activity and a terrorist organization. Goodbye. There’s your talking points for the Sunday morning news programs.

The opportunity was there for the government to make a clean, clear argument distinguishing between lawful and unlawful protest and speech as it relates to non-citizens. Khalil certainly had the right to lawfully and peacefully protest for Palestinian rights, or in favor of a ceasefire, or even to make ridiculous claims that Israel is an apartheid state or is committing genocide. As a non-citizen, Khalil did enjoy First Amendment rights to voice those beliefs. The government’s approach unnecessarily conflates a ground of removal narrowly tailored to one’s activities in support of terrorist activity and a terrorist organization, and a different ground of removability that has the potential to question infringement on even a non-citizens’ freedom of expression. So, while I believe the government’s approach here is flawed and messy, its ability to seek Mahmoud Khalil’s removal is certainly legally sound and will likely be successful. A result I certainly will be happy to see.

Non-citizens enjoy many, if not most, rights of citizens; however, until they become citizens, they remain guests. And, like a guest in your home, if that person acts in a way you yourself decide is not the way you want your guests to behave, you have the absolute right to ask them to leave. That is exactly what is happening here. Congress has established, over more than 100 years, criteria that non-citizens must adhere to enjoy the privilege of being a guest in our country. Those standards are not a secret and any applicant for permanent resident status, such as Mahmoud Khalil, is asked about those standards and made aware that running afoul of those standards can place their residency at risk. Mahmoud Khalil is a smart guy – a graduate student at Columbia. He was well aware of the limits of his activities, and he chose to accept the risk of so blatantly ignoring those limits. He now will face the consequence – removal from the United States – that he so rightly deserves.