Is It Constitutional to Deport the Ringleader of Columbia University’s Pro-Hamas Demonstrations?

Summary

• DHS has arrested and plans to seek the deportation of Mahmoud Khalil, who, according to the White House press secretary, “organized group protests [at Columbia University] that not only disrupted college campus classes and harassed Jewish-American students and made them feel unsafe on their own college campus, but also distributed pro-Hamas propaganda flyers”.
• A senior DHS official has indicated that the basis for Khalil’s arrest is the foreign policy ground of deportation, which provides that “an alien whose presence or activities in the [U.S.] the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the [U.S.] is deportable”.
• But is it constitutional to deport Khalil on this basis? The foreign policy ground of deportation has been used — and thus tested in court — very rarely. In 1996, a federal district court ruled in Massieu v. Reno that it was unconstitutional for being 1) void for vagueness, 2) in violation of the Due Process Clause of the Fifth Amendment, and 3) an unconstitutional delegation of legislative power to the executive branch. In essence, “Absent a[n alien’s] meaningful opportunity to be heard, the Secretary of State’s unreviewable and concededly ‘unfettered discretion’ … is … unconstitutional.” The district court’s decision was overturned on appeal, but the appeals court did not address the constitutional issues.

• The Supreme Court in 2018 in Trump v. Hawaii upheld President Trump’s reliance on § 212(f) of the Immigration and Nationality Act to institute a “travel ban” for nationals of certain high-risk countries. Section 212(f) provides that “Whenever the President finds that the entry of any aliens or of any class of aliens into the [U.S.] would be detrimental to the interests of the [U.S.], he may … suspend the entry of [such] aliens.” As the Court noted, a president’s power under § 212(f) is extraordinary — it “exudes deference to the President in every clause”. The Court found it “questionable” that § 212(f) requires the president “to explain [his] finding with sufficient detail to enable judicial review” and that “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere”. The Court further stated that “‘any rule of constitutional law that would inhibit the flexibility’ of the President ‘to respond to changing world conditions should be adopted only with the greatest caution,’ and our inquiry into matters of entry and national security is highly constrained.”

  However, Trump v. Hawaii dealt with the prevention of entry of aliens, and as the Court noted, “foreign nationals seeking admission have no constitutional right to entry”. It had explained in 2020 that “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” However, unlike § 212(f)’s bar to entry, the foreign policy ground of deportation applies exclusively to aliens who have already been admitted to the United States. And it has long been the case, as the Supreme Court has ruled, that “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law”.

• There is a real risk that federal courts, including the Supreme Court, could adopt the reasoning of the district court in Massieu and declare the foreign policy ground of deportation unconstitutional. On the other hand, the Supreme Court upheld President Trump’s use of the similarly “unfettered” discretion that Congress granted him in § 212(f) and found it questionable whether he had to “explain that finding with sufficient detail to enable judicial review”. Of course, § 212(f) involves a bar to entry, rather than a ground of deportation for aliens already here who possess constitutional due process rights.

This one is going to be a nail-biter.

Introduction

Former President Biden eloquently proclaimed that “[t]he bloody hands of the terrorist organization Hamas” had unleashed “pure, unadulterated evil”, with “[m]ore than 1,000 civilians slaughtered”, “[p]arents butchered using their bodies to try to protect their children”, “[s]tomach-turning reports of … babies being killed”. Biden also called Hamas’s attacks against Israeli civilians “a campaign of pure cruelty — not just hate, but pure cruelty — against the Jewish people” and stated that Hamas unleashed “the deadliest day for Jews since the Holocaust … that [had] reminded us all [of] that expression I learned from my dad early on: ‘Silence is complicity.’”

Well, if silence regarding mass murder is complicity, what should we call the celebration of mass murder? That enters a whole other realm. And, given that it’s safe to assume Hamas would gladly have killed every Jew in Israel had it had the opportunity, the celebration of Hamas’s mass murder is not too far removed from the celebration of genocide.

And yet, persons in the U.S., apparently both citizen and alien, have indeed celebrated Hamas’s mass murder. This has been most notably documented on U.S. college and university campuses.

Which brings me to the arrest of Mahmoud Khalil. Steven Nelson reported in the New York Post on March 11th that:

• White House press secretary Karoline Leavitt revealed … that ex-Columbia University student Mahmoud Khalil is in the process of being deported for allegedly circulating “pro-Hamas propaganda flyers” — with President Trump saying later in the day that he watched “tapes” of Khalil’s anti-Israel activism and wanted to “get him the hell out of the country.”

• “Mahmoud Khalil was an individual who was given the privilege of coming this country to study at one of our nation’s finest universities and colleges. And he took advantage of that opportunity, of that privilege by siding with terrorists, Hamas terrorists who have killed innocent men, women and children,” Leavitt said at her regular White House briefing.

  “This is an individual who organized group protests that not only disrupted college campus classes and harassed Jewish-American students and made them feel unsafe on their own college campus, but also distributed pro-Hamas propaganda flyers with the logo of Hamas,” she said.

• The posters that Khalil allegedly circulated include one calling on readers to “Crush Zionism” and depicting a boot stepping on the Jewish Star of David.

  Another image hails “Operation Al-Aqsa Flood,” the code name for Hamas’s Oct. 7, 2023, massacre of about 1,200 people across southern Israel, and bears the logo of the “Hamas Media Office.”

  A different flyer bears an image of the terrorist group’s late leader Yahya Sinwar and the words “Sometimes History Needs A… Push Flood.”

• [“T]hat’s what this individual distributed on the campus of Columbia University,” Leavitt told the White House press corps.

The Foreign Policy Ground of Deportability

On what basis does the Department of Homeland Security (DHS) plan to pursue deportation proceedings against Khalil? I have written that DHS should attempt to remove aliens who are deportable on the basis of having “endorsed or espoused terrorist activity”, and that at the top of the priority list should be those foreign students who have endorsed or espoused the genocidal views of Students for Justice in Palestine chapters justifying the slaughter of every Jewish man, woman, and child living in Israel as a “settler” and “lounger” who is fair game for death in pursuit of the “liberation” of Palestine “from the river to the sea” through “confrontation by any means necessary”.

However, it does not appear that DHS will base its case for removal on any of the terrorism grounds of deportability. I must give kudos to my colleague Andrew Arthur for predicting early on the 11th that “Khalil was arrested … because the secretary of State has concluded that his presence in this country ‘would have potentially serious adverse foreign policy consequences for the United States.’” Arthur noted that “If I’m right, expect to see the Trump administration rely more heavily on the foreign policy removal charge … in response to pro-Hamas activity in the United States — and also expect a raft of legal challenges to follow.”

Later on the 11th, Alaa Elassar, Priscilla Alvarez, Gloria Pazmino, and Michelle Watson reported for CNN that “a senior Homeland Security official” confirmed that the foreign policy ground of deportation was indeed the basis for Khalil’s arrest and “didn’t rule out it could be used in future cases as well”.

What is the “foreign policy” ground of deportation? The Immigration and Nationality Act (INA) provides that “an alien whose presence or activities in the [U.S.] the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the [U.S.] is deportable”, with the proviso that:

An alien [other than an official of a foreign government] shall not be [deportable] … because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the [U.S.], unless the Secretary of State personally determines that the alien’s admission would compromise a compelling [U.S.] foreign policy interest.

As to the proviso, the conference report to the Immigration Act of 1990 stated that “[i]t 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 critical remarks about the [U.S.] or its policies” and that the authority “be used only in unusual circumstances”.¹ The report also stated that:

[T]he following include some of the circumstances in which exclusion [on the basis of foreign policy] might be appropriate: when an alien’s mere entry into the [U.S.] could result in imminent harm to the lives or property of [U.S.] persons abroad or to property of the [U.S.] government abroad (as occurred with the former Shah of Iran) or when an alien’s entry would violate a treaty or international agreement to which the [U.S.] is party.²

The report was discussing the foreign policy ground of exclusion for aliens who had not entered the U.S., which the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) later transformed into a ground of inadmissibility for aliens who have not been admitted to the U.S. (whether or not they are physically present here). While the report did not discuss the analogous ground of deportability (then for aliens who had entered the U.S. and post-IIRIRA for aliens who have been admitted to the U.S.), the Immigration Act of 1990 provided that the “beliefs, statements, or associations” exception “shall apply to deportability … in the same manner as [it] appl[ies] to excluability”.

Is the Foreign Policy Ground of Deportability Constitutional?

Massieu v. Reno

This ground of deportability has been used — and thus tested in court — very rarely. In 1996, a federal district court in New Jersey ruled in Massieu v. Reno that it was unconstitutional as being 1) void for vagueness, 2) in violation of the Due Process Clause of the Fifth Amendment, and 3) an unconstitutional delegation of legislative power to the executive branch.

As to vagueness, the court concluded that:

• [T]he void-for-vagueness doctrine … requires that prohibitory statutes define the conduct proscribed with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” [quoting the Supreme Court’s 1983 decision in] Kolender v. Lawson. … [F]or over forty years, courts … have examined deportation statutes for a constitutionally required degree of specificity [citing the Supreme Court’s 1951 decision in Jordan v. De George].

• [T]here is no conceivable way that an alien could know … how to conform his or her activities to the requirements of [the foreign policy ground of deportation]. Of course, it is even less likely that an alien could know that his or her mere presence here would or could cause adverse foreign policy consequences when our foreign policy is unpublished, ever-changing, and often highly confidential.

• This court recognizes that neither the legislature nor the judiciary possesses the institutional competence to question the Secretary of State’s decisions on matters of foreign policy. … [but] Congress cannot hide behind this required deference as a justification for granting the Secretary carte blanche to declare an alien’s deportability at will. … [T]he fact that Congress might not have been able to provide more definite standards does not excuse it from its constitutional obligation to do so.

As to due process, the court ruled that “For many of the same reasons … the [foreign policy ground] also deprives aliens … of due process of law by denying them a meaningful opportunity to be heard.” It explained that:

[A]liens are entitled to due process of law in deportation proceedings [citing the Supreme Court’s 1993 decision in Reno v. Flores]. It is equally clear, however, that aliens are not entitled to the full panoply of procedural protections afforded to defendants in criminal cases. … [I]t is the task of the court to determine what process is due under the circumstances.

“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner” [quoting the Supreme Court’s 1976 decision in Mathews v. Eldridge]. … [T]his court must apply the … three-part balancing test enunciated … in Mathews…. [and] must consider: (1) the importance to all aliens of not being imprisoned, forced to leave the [U.S.], and sent to the country of our government’s choosing; (2) the adequacy of the hearing afforded and the likelihood that increased procedures would diminish the risk of an erroneous deprivation of liberty; and (3) the governmental interest, as well as that of the public, in allowing the Secretary of State to declare an alien deportable in the interests of our foreign policy as well as the increased cost of requiring additional procedures.

The court then turned against the government the “unfettered discretion” the foreign policy ground gives to the secretary of State:

As the government itself has forcefully argued, plaintiff’s deportability … has been conclusively pre-determined by the Secretary. Accordingly, while plaintiff will be given his … hearing before an [immigration judge] IJ, the hearing will be a sham. The real decision already has been made off-stage, and, according to the government, that decision is an unreviewable exercise of the Secretary’s “unfettered discretion.”… Thus, the only form that a meaningful hearing … could take would be for [the] Secretary [of State] and [the Mexican President] … to take the witness stand, be cross-examined by plaintiff, and submit the reasonableness of their positions to the judgment of the IJ. The notion is ludicrous. The government has repeatedly asserted, and this court agrees, that plaintiff is not entitled to probe the grounds or the reasonableness of the Secretary’s decision. …

The government does not deny that plaintiff will be deprived a meaningful hearing. Rather, it contends that, because Congress has committed deportability determinations under [the foreign policy ground] to the executive’s “unfettered discretion”, “the fact that the Secretary of State’s [determination] … is essentially unreviewable poses no constitutional problems.” … The government grossly misinterprets the law. As the Supreme Court stated over a century ago, the due process clause “is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will” [quoting the Supreme Court’s 1855 decision in Murray’s Lessee v. Hoboken Land and Improvement Co.].

The court ruled that “Absent a meaningful opportunity to be heard, the Secretary of State’s unreviewable and concededly ‘unfettered discretion’ … is … unconstitutional … both on its face and as applied.”

As to delegation of powers, the court ruled that “For many of the same reasons … [the foreign policy ground] also is an unconstitutional delegation of legislative power to the executive.” The court explained:

“That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution” [quoting the Supreme Court’s 1892 decision in Field v. Clark]. … It has long been recognized, however, that some level of legislative delegation is necessary to the efficient administration of the ever-broadening regulatory course charted by Congress. … The delegation doctrine … functions to ensure that Congress will remain the nation’s primary policy maker by requiring it to articulate intelligible standards to guide (1) the exercise of the delegatee’s authority, and (2) the judiciary’s ability to review the exercise of that authority against a congressionally mandated policy.

The court contended that “The [congressional] ‘policy’ [here] is purely precatory and, rather than guiding the Secretary’s exercise of authority, does little more than inform him that Congress has given him the absolute power to deport.” The court conceded that:

[It is true that] in regard to legislation with foreign policy implications, Congress must be allowed to delegate broader discretion to the President and his agents out of respect for the executive’s residual authority over foreign affairs and the impracticability of requiring Congress to dictate with precision in an area in which it lacks the expertise to do so.

The court ruled, however, that “the unprecedented delegation at issue here is … unconstitutional”, explaining that:

[T]his court [cannot] conceive of a way to judicially circumscribe the discretion afforded to the Secretary so as to impose a “recognized standard” upon the Secretary’s otherwise “totally unrestricted freedom of choice.”… [T]he “potentially serious” standard … is wholly illusory. First, the term “potentially” removes any definiteness or immediacy requirements that may otherwise have been attributable to the statute’s directive. In addition, the paltry legislative history … indicates that the phrase “potentially serious” is something less than “compelling,” but that it imposes no floor or balancing equation to guide the Secretary in the exercise of his delegated authority. Indeed, the Conference Report reveals that Congress itself had no idea what standards might be embodied in the phrase “compelling,” and, a fortiori, what limitations were contained in the lower threshold of “potentially serious.”

The court also discussed the Supreme Court’s 1965 decision in Zemel v. Rusk, in which the appellant had “challenge[d] the [Passport] Act on the ground that it does not contain sufficiently definite standards for the formulation of travel controls by the Executive”. The court noted that:

The government cites Zemel for the proposition that:

because of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congress — in giving the Executive authority over matters of foreign affairs — must of necessity paint with a brush broader than that it customarily wields in domestic areas.

In the very next sentence, however, which the government does not cite, the Court stressed that “[t]his does not mean that simply because a statute deals with foreign relations, it can grant the Executive totally unrestricted freedom of choice.” That is exactly what Congress has done with [the foreign policy ground of deportability]. [Emphasis added by Massieu.]

The district court ruled that “by leaving deportability determinations to the wholly unguided and unreviewable discretion of the Secretary of State, [the foreign policy ground] represents an unconstitutional delegation of legislative power”.

An appeals court overturned the district court’s decision, ruling that the district court “lacked jurisdiction to entertain plaintiff’s claims” because the plaintiff had failed to exhaust administrative remedies before going to federal court. The appeals court did not address the constitutional issues raised by the district court and, on remand, the Board of Immigration Appeals (BIA) in In re Mario Salvador Ruiz-Massieu did not (and indeed could not) address these issues.

The BIA ruled, pursuant to the statutory language of the foreign policy ground of deportation, that as long as the secretary of State’s determination was bona-fide and reasonable, the immigration judge could not second-guess the decision:

We conclude that Congress’ decision to require a specific determination by the Secretary of State, based on foreign policy interests, to establish deportability … coupled with the division of authority in [the INA] between the Attorney General and the Secretary of State, make it clear that the [latter’s] reasonable determination … should be treated as conclusive evidence of … deportability. The Immigration Judge thus erred in holding that the [INS] is obliged to present clear, unequivocal, and convincing evidence in support of the Secretary of State’s belief. The requirement that the [INS] demonstrate that the respondent is deportable … is met by the Secretary of State’s facially reasonable and bona fide determination that the respondent’s presence here would cause potentially serious adverse foreign policy consequences for the [U.S.].

The BIA “appl[ied] the standard of facial reasonableness that was adopted by the Supreme Court in [its 1972 decision in Kleindienst v. Mandel]”:

[W]hen the Executive exercises this power [to exclude aliens] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The BIA explained its rationale:

• The respondent’s position would … require an evaluation of what, in fact, are the foreign policy interests of the [U.S.], and [possibly whether they] are themselves reasonable.

  Such review is not contemplated by … the [foreign policy ground of deportation].

• [I]t would be impossible to question or alter th[e Secretary’s] decision without proceeding to an examination of the foreign policy of the [U.S.] and balancing the various considerations of that policy against alternative competing policies.

• [The Immigration Judge] required the [INA] to convince her by clear, unequivocal, and convincing evidence that the Secretary’s opinion is reasonable. … This standard … would entangle the Immigration Court in matters of foreign policy and involve that court in weighing the importance of various factors in an area in which it has no special expertise.

In 2011 in Sarango v. Attorney General, the Third Circuit positively cited the BIA’s conclusion in Ruiz-Massieu that “the Secretary of State’s reasonable determination … should be treated as conclusive evidence of the respondent’s deportability”.

Trump v. Hawaii

Contrary to the conclusion of the district court in Massieu that the foreign policy ground of deportation is an “unprecedented delegation” by Congress, the Supreme Court had noted in Zemel that:

Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations which either leave the exercise of the power to his unrestricted judgment or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs.

Further, § 212(f) of the INA provides that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the [U.S.] would be detrimental to the interests of the [U.S.], he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

As I have written, in the Supreme Court’s 2018 decision in Trump v. Hawaii, the Court concluded in regards to President Trump’s September 24, 2017, proclamation “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”, pejoratively pegged as a “Muslim ban”, that President Trump “lawfully exercised [his] discretion [under § 212(f)] based on his findings … that entry of the covered aliens would be detrimental to the national interest” and that “the language of §[ 212](f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority”.

The Court noted the extraordinary level of discretion that § 212(f) provides to the president:

• By its plain language, §[ 212](f) grants the President broad discretion to suspend the entry of aliens into the [U.S.].

• [Section 212(f)] exudes deference to the President in every clause. … It is therefore unsurprising that we have previously observed that §[ 212](f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA … . ([citing the Court’s 1994 decision in Sale v. U.S., in which it found] it “perfectly clear” that President Reagan could “establish a naval blockade” to prevent illegal migrants from entering the [U.S.]).

The Court then concluded that the president’s need to justify his findings is quite limited:

• The sole prerequisite set forth in §[ 212](f) is that the President “find[]” that the entry of the covered aliens “would be detrimental to the interests of the [U.S.].”

• Plaintiffs believe that the [Proclamation’s] findings are insufficient…. that [it] fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk.

• Such arguments are grounded on the premise that §[ 212](f) not only requires the President to make a finding that entry “would be detrimental…” but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable. … But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of [President Trump’s] findings cannot be sustained. The 12-page Proclamation — which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions — is more detailed than any prior order … under §[ 212](f). [In 1996] President Clinton … explain[ed] in one sentence why suspending entry of members of the Sudanese government and armed forces “is in the foreign policy interests of the [U.S.]”… .

  [P]laintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§ 212(f)] authority” [quoting the Court’s decision in Sale].

The Court then emphasized the enhanced deference due to the president in the context of his carrying out his responsibilities regarding foreign affairs and national security:

• [W]hen the President adopts “a preventive measure … in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions” [quoting the Court’s 2010 decision in Holder v. Humanitarian Law Project].

• “Any rule of constitutional law that would inhibit the flexibility” of the president “to respond to changing world conditions should be adopted only with the greatest caution, and our inquiry into matters of entry and national security is highly constrained” [quoting the Court’s decision in Mathews].

Trump v. Hawaii dealt with the prevention of entry by aliens. And, as the Supreme Court noted in its decision, “foreign nationals seeking admission have no constitutional right to entry”. The Court explained in 2020 in DHS v. Thuraissigiam that it has “often reiterated th[e] important rule” that “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned,” (quoting the Court’s 1950 decision in United States ex rel. Knauff v. Shaughnessy) and that “an alien seeking initial admission to the [U.S.] requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative” (quoting the Court’s 1982 decision in Landon v. Plasencia).

However, unlike § 212(f)’s bar to entry, the foreign policy ground of deportation applies exclusively to aliens who have already been admitted to the United States, not aliens seeking entry. And, as the Supreme Court ruled in its 1950 decision in Shaughnessy v. United States ex rel. Mezei, “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law”. Thus, it is not clear whether the Supreme Court would necessarily sign off on the same level of “unfettered” deference in the case of deportation as in the case of an entry bar.

Conclusion

There is a real risk that federal courts, including the Supreme Court, could adopt the reasoning of the district court in Massieu and declare the foreign policy ground of deportation to be unconstitutional. On the other hand, the Supreme Court upheld President Trump’s use of the similarly “unfettered” discretion that Congress granted in § 212(f) and found it questionable whether the president had to “explain that finding with sufficient detail to enable judicial review”. Of course, § 212(f) involves a bar to entry, rather than a ground of deportation for aliens already here who possess constitutional due process rights.

This one is going to be a nail-biter.

End Notes

¹ H. Rept. 101-955 at 129 (1990).

² Id. at 130.