The Next Chapter in the Saga of Mahmoud Khalil

After reviewing public statements then swirling around the arrest and detention of Columbia University graduate student Mahmoud Khalil, on March 11, I published my analysis concluding that DHS was charging Khalil under the rarely used section 237(a)(4)(C) of the Immigration and Nationality Act (INA). My assumption has now been proven correct, so here’s how I expect the next chapter of this saga to play out.

Section 237(a)(4)(C)(i) of the INA. If you’ve been following the reporting on this case, you’re likely fairly familiar with section 237(a)(4)(C) of the INA, but briefly, clause (i) therein renders deportable any alien “whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States”.

That clunky legislative language has been repeated endlessly in the last few days, usually followed by speculation about what Khalil did to trigger the State Department’s conclusion that his “presence or activities” adversely affects our foreign policy, and what aspect of our foreign policy the department is focusing on.

All parties generally agree that Khalil played some role in pro-Palestinian protests on the Columbia University campus in New York City.

Those protests were organized in response to Israel’s military actions in Gaza following the October 7, 2023, Hamas incursion into the southwestern part of Israel, during which the terrorist group killed nearly 1,200 people and took 251 others hostage.

Aside from those basic facts, as I told CNN last week, the reporting about Khalil’s activities is all over the place, and provides more heat than light.

For example, BBC reports:

Activists supporting Israel have accused Mr Khalil of being a leader of Columbia University Apartheid Divest (Cuad), a student group that demanded, among other things, the university to divest from its financial ties to Israel and a ceasefire in Gaza.

Mr Khalil has denied that he led the group, telling the Associated Press (AP) that he only served as a spokesperson for protesters and as a mediator with the university.

Then there’s the former British diplomat who worked with Khalil in Beirut, Lebanon, and who describes him thusly: “You couldn’t meet a kinder or nicer person to work with. He’s thoughtful. He’s intelligent. He’s conscientious.”

That description appears to be at odds with claims made by White House press secretary Karoline Leavitt, who accused Khalil of being the organizer of “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”.

Note that Hamas, formally the “Harakat al-Muqawama al-Islamiyya (Islamic Resistance Movement)”, is a U.S.-designated foreign terrorist organization (FTO), and has been for more than 27 years.

Perhaps the State Department believes Khalil’s actions and statements “endorse or espouse” Hamas’s terrorist activities, or that he is attempting to “persuade others to endorse or espouse” the group’s activities and goals.

If so, his presence here would clearly “have potentially serious adverse foreign policy consequences for the United States” in its relations not only with Israel (a key Middle East ally), but also with other allies throughout the region that are uneasy with Hamas, even if they have not explicitly condemned either the group or the October 7 attacks.

Or perhaps the diplomats in Foggy Bottom are concerned that ongoing harassment of students at an Ivy League university makes it less likely that other foreign students would choose to come to this country to study, which itself would have an adverse impact on U.S. foreign policy.

Keep in mind that Columbia itself boasts that it has “has one of the largest international student and scholar populations” in the United States, with nearly 40 percent of its Fall 2023 enrollment consisting of foreign students.

Section 237(a)(4)(C)(ii) of the INA. Fortunately, there will likely be some clarification concerning Khalil and his activities at Columbia in the coming weeks — not in the court of public opinion but in a court of law.

Even though Khalil has been charged with removability, that doesn’t mean that he will be immediately deported or necessarily that he will be deported at all.

Despite what you may hear, ICE must still present its charges against Khalil in removal proceedings before an immigration judge at a time and place to be set. Given that he is currently in the agency’s custody, those proceedings will likely begin sooner rather than later.

Again, you have likely heard all about the 237(a)(4)(C)(i) charges against Khalil, but you likely know nothing about the next clause in that section of the INA, 237(a)(4)(C)(ii).

Overly simplistically, by reference to an exclusion in the foreign policy grounds of inadmissibility in section 212(a)(3)(C) of the INA, it bars the deportation of an alien on section 237(a)(4)(C) grounds “because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States”.

It’s unclear from the statutory language whether this exception is an element of the charge that ICE must prove or is a defense that Khalil can assert, but regardless Khalil will likely be able to argue before the immigration court that the State Department’s determination is invalid because everything that he did in this country was perfectly legal and protected by the First Amendment.

Assuming, of course, that everything that he has done in this country is perfectly legal. Leavitt, for one, appears to have her doubts.

Regardless, the Trump administration is likely eager to put the protests that have occurred at Columbia and countless other colleges and universities across the United States over the past 17 months on trial, which is essentially what will likely occur.

That said, Khalil’s supporters are likely equally anxious to present their side of the issue.

Note that I have used the word “likely” a number of times in the preceding paragraphs. That’s because the section 237(a)(4)(C)(ii) exception comes with its own exception.

Secretary of State Marco Rubio can still lodge the foreign policy charge of deportation against Khalil even if the alien’s “beliefs, statements, or associations would be lawful within the United States”, but it would require Rubio to “personally determine” that the alien’s presence here “would compromise a compelling United States foreign policy interest”.

Rubio has expressed his own opinions about Khalil publicly, telling reporters on March 12, “This is not about free speech. This is about people that don’t have a right to be in the United States to begin with.”

That said, the State Department’s assessment of Khalil has not been released publicly, so it’s unclear whether the secretary has already made that “compelling United States foreign policy interest determination”. If I had to guess, that could go either way.

Relief. Even if Khalil is found to be removable, he can still apply for relief from removal.

The most common relief in this instance would be asylum, which does not expressly bar applicants removable under section 237(a)(4)(C) of the INA from being granted protection.

It does, however, exclude aliens who have engaged in persecution, who have been convicted of a “particularly serious crime”, or who have committed “a serious nonpolitical crime outside the United States”, or if there are “reasonable grounds” to believe the alien is “a danger to the security of the United States”.

Certain aliens removable on terrorism grounds aren’t eligible, either, but again, removability under section 237(a)(4)(C) of the INA is not an express statutory exception to an asylum grant. Whether the government alleges that any of those bars would apply to Khalil remains to be seen.

Of course, asylum is also a discretionary form of relief, and an immigration judge or other adjudicator may determine that an alien removable under section 237(a)(4)(C) doesn’t merit a grant. That said, other forms of humanitarian relief are mandatory, and Khalil may qualify for one or more of those.

Contrary to what you may have heard, Mahmoud Khalil has due process rights, and both he and the government likely have their own points to make as this case proceeds. With that in mind, remember — facts are much clearer in a court of law than they are in the court of public opinion.