Immigration Judge Says Columbia Grad, Palestinian Activist Is Deportable

On Friday, an immigration judge (IJ) ruled that Mahmoud Khalil, a Columbia University graduate student and green card holder, was removable under section 237(a)(4)(C) of the Immigration and Nationality Act (INA). That ruling was premised on a determination by Secretary of State Marco Rubio about Khalil’s “participation and role[] in antisemitic protests and disruptive activities, which foster[] a hostile environment for Jewish students in the United States”. The IJ’s ruling was a largely ministerial act, and marks the beginning of what promises to be a very long legal process.

Mahmoud Khalil. On March 8, ICE officers arrested Khalil, a former nonimmigrant student and current lawful permanent resident (LPR), that is, a “green card” holder.

Although the BBC has reported that Khalil, “a prominent figure during the Gaza war protests at Columbia University in the spring of 2024”, was born in Syria to parents who were Palestinian refugees, Rubio’s letter states that he was born in Algeria in January 1995.

There does not appear to be much dispute over where he grew up, however. His U.S. citizen wife, Noor Abdalla, has been quoted as stating that Khalil “was a Palestinian refugee in Syria and then when things started happening in Syria, he was a Palestinian and Syrian refugee in Lebanon”.

After obtaining a bachelor’s degree in computer science from the Lebanese American University, he worked for Jusoor, a Syrian-American nonprofit, before managing the Syria Chevening Programme, which offers scholarships in the United Kingdom under the aegis of the British Embassy in Beirut.

According to Al Jazeera and other outlets, he entered the United States on an F-1 student visa in 2022, to study toward a master’s degree (which he later received) at Columbia University’s School of International and Public Affairs in Manhattan.

Politico has described Khalil as “a lead negotiator representing the student protesters to the Columbia administration during the school’s ‘Gaza Solidarity Encampment’” in the spring of 2024. That article continues:

The student group behind the encampment — Columbia University Apartheid Divest, or CUAD — had two main demands: that Columbia cut all its ties to Israel, including divesting and halting plans to build a “global center” in Tel Aviv, and that the protesters themselves receive amnesty for their actions.

Specifically, Politico notes that Khalil “took on a role as a negotiator representing CUAD, which also made him relatively public compared with many of the other protesters who were conscious about obscuring their appearances”.

Apparently, those “other protesters” had good reason to be conscious of “obscuring their appearances”: On April 30, 2024, Khalil received an e-mail from Columbia informing him that he was being suspended, “citing his alleged participation in the encampment”, though that suspension was dropped the next day.

Khalil reportedly first met his wife in 2016 in Lebanon, “when she joined a volunteer program Khalil was overseeing at a non-profit group that provides educational scholarships to Syrian youth”, and the couple married in New York in 2023. He received his LPR status through that marriage in November 2024.

The government has alleged Khalil failed to disclose his earlier employment with the United Nations Relief and Works Agency for Palestine Refugees in the Near East, better known as “UNRWA”, when he applied for his green card.

If true, that could be a red flag in his case. The Biden administration paused funding to UNRWA in January 2024, in response to Israeli claims that 12 of the group’s employees participated in the October 7, 2023, Hamas attacks in southern Israel. Congress later barred the dispersal of funds to UNRWA two months later on the same grounds.

The “Foreign Policy” Ground of Deportation in Section 237(a)(4)(C). After his arrest, DHS charged Khalil under section 237(a)(4)(C) of the INA, which in clause (i) 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 is the sole instance in section 237 of the INA where Congress gives the secretary of State any power to direct the removal of an alien otherwise lawfully present in the United States, and as I explained on March 11, that’s not the only thing that distinguishes it from the other grounds of deportability.

Unlike most of those grounds, assessing removability under section 237(a)(4)(C) of the INA may require an IJ to engage in a two-part analysis. The first part is determining whether the secretary of State has made a foreign policy determination under section 237(a)(4)(C)(i).

If the secretary has made such a determination, the alien respondent could putatively argue that determination is improper because it’s based on legally protected grounds. Let me explain.

By reference to its exceptions in the counterpart “foreign policy” ground of inadmissibility in section 212(a)(3)(C), Congress in section 237(a)(4)(C)(ii) has stated that if the secretary bases his conclusion on “the alien’s past, current, or expected beliefs, statements, or associations” that “would be lawful within the United States”, an IJ can only deem the alien deportable if the secretary “personally determines that the alien’s admission would compromise a compelling United States foreign policy interest”.

Which brings me to the last distinction between this ground and the rest — the degree that the IJ must accept that determination, the “lawful activities” exception aside.

The sole binding precedent governing adjudications under section 237(a)(4)(C) is a decision issued by the Board of Immigration Appeals (BIA) in June 1999, Matter of Ruiz-Massieu, when the ground was codified at section 241(a)(4)(C) of the INA.

As the BIA held there:

A letter from the Secretary of State conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination, is presumptive and sufficient evidence that the alien is deportable under section 241(a)(4)(C)(i) of the Act, and the Service is not required to present additional evidence of deportability. [Emphasis added.]

The reference to “the Service” in that excerpt is to the Immigration and Naturalization Service, which was abolished in March 2003, with its immigration-court prosecution duties assigned by Congress to ICE.

In other words, the IJ must accept a determination by the secretary of State that the alien’s “presence or activities” in this country “would have potentially serious adverse foreign policy consequences”, unless the alien argues the activities underpinning that determination were lawful. Absent that, the ICE lawyer doesn’t have to do anything other than hand up the State Department determination.

Memorandum from Rubio to the Secretary of DHS. Which is what the ICE deputy chief counsel in Jena, La., (where Khalil is being detained) did on April 9.

Rubio’s determination is contained in an undated two-page memorandum addressed to “the Secretary of Homeland Security”, attachment A to the deputy chief counsel’s April 9 submission to the court.

Forestalling a claim by Khalil that he was being deported due to lawful activities, Rubio determined that Khalil’s “activities and presence” in the United States would not only “have potentially serious adverse foreign policy consequences” (section 237(a)(4)(C)(i)), but also that his activities and presence “would compromise a compelling U.S. foreign policy interest” (section 237(a)(4)(C)(ii)).

According to Rubio, his determinations were based on information he received from ICE’s Homeland Security Investigations (HSI), “regarding the participation and role[] of Khalil in antisemitic protests and disruptive activities, which foster[] a hostile environment for Jewish students in the United States”.

He continued: “The public actions and continued presence of … Khalil in the United States undermine U.S. policy 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.”

The IJ’s Decision. As explained above, normally when an alien respondent disputes charges of removability, the IJ will hear arguments and accept evidence from the parties that affirm and dispute those charges (respectively).

The BIA’s decision in Matter of Ruiz-Massieu and the language of section 237(a)(4)(C)(ii) of the INA took those processes off the table, and according to NPR, after reviewing the memorandum, the IJ hearing the case correctly stated that she lacked authority to question Rubio’s determination.

Not that the ministerial nature of her role in these proceedings has prevented outlets from delving into the IJ’s past. Give her a break.

Possible Relief. Just because the IJ found Khalil to be removable does not mean he’s been ordered removed, at least not yet. The IJ gave him until April 23 to file any potential applications he has for relief.

Asylum is the most logical relief Khalil might seek, and notably none of the bars to asylum in section 208(b)(2) of the INA specifically preclude an IJ from granting that protection to an applicant removable on the foreign policy ground.

That said, persecutors are explicitly barred from receiving asylum, and ICE may argue that Khalil’s “role in antisemitic protests and disruptive activities, which fosters a hostile environment for Jewish students in the United States” rises to the level of persecution on account of race and religion.

And asylum is discretionary relief, meaning the IJ can deny that protection to an alien based on facts and factors outside the application itself even if the alien satisfies all the statutory requirements for asylum in section 208. Rubio’s determination itself would plainly be an adverse discretionary factor.

Applications for asylum are also generally considered to be applications for withholding of removal under section 241(b)(3) of the INA, protection commonly referred to as “statutory withholding”.

I analyzed the differences between asylum and statutory withholding at length on April 4 in the context of a different case, but the biggest difference between the two is that the IJ lacks discretion to deny statutory withholding to an applicant who satisfies the requirements for that protection, though as with asylum, is barred from granting it to a persecutor.

All of those applications depend on the country that DHS would attempt to send Khalil to: Algeria, where the State Department claims he was born; Syria, where he apparently grew up; Lebanon, where he last worked; or the Palestinian Authority, ostensibly another option given his background.

The District Court Cases. Khalil may, however, simply accept an administrative order of removal to instead challenge both Rubio’s determination and the legality of section 237(a)(4)(C) in an Article III federal court.

Through counsel, he filed a petition for writ of habeas corpus in the U.S. District Court for the Southern District of New York on March 9, the day after he was arrested.

The government filed a motion to dismiss or alternatively transfer that case to the U.S. District Court for the Western District of Louisiana (where he is being detained) on March 12, but on March 19, the judge transferred the case instead to the U.S. District Court for the District of New Jersey, the place where Khalil was detained before being sent to Jena.

The court’s March 19 order also prevents the government from deporting Khalil “unless and until the transferee court orders otherwise”. The district court judge in New Jersey issued his own order on March 19, also barring the government from removing Khalil.

Pending before that court is a motion for an injunction, filed by Khalil on March 17, which seeks to enjoin Rubio’s determination as well as to block the government “from enforcing their Policy of targeting for detention and removal noncitizens who engage in constitutionally protected expressive activity in the United States in support of Palestinian rights or critical of Israel”. That should tell you where this is headed.

Both sides are likely itching for a fight, Khalil to protest that he’s being railroaded for simply expressing his constitutionally protected views and DOJ to put the campus protest movement at Columbia University (and elsewhere) in the dock. Before it’s done, expect an already overwhelmed Supreme Court to be called to weigh in at least once.