Federal Judge in Vermont Orders Palestinian Green Card Holder Released

On April 30, federal Judge Geoffrey W. Crawford of the U.S. District Court for the District of Vermont ordered DHS to release Mohsen Mahdawi, a Palestinian national and lawful permanent resident (“LPR”, i.e., green card holder), while his habeas challenge to the government’s attempt to remove him from the United States proceeds.

Mohsen Mahdawi. According to the court’s order, Mahdawi is 34-years-old and was born and grew up in the West Bank.

He was admitted to the United States in July 2014, apparently as a nonimmigrant, though it’s not clear under which nonimmigrant category he entered.

He attained LPR status a few months later in January 2015, ostensibly adjusting through his then-wife, a U.S. citizen.

Despite the fact that he lives in White River Junction, Vt., and owns a cabin “that he built himself” in the neighboring town of Vershire, he’s been an undergraduate student at Columbia University in Manhattan since 2021. He plans to graduate this month, and is scheduled to start a master’s program at Columbia’s School of International and Public Affairs in September.

It’s unclear from the court’s order how Mahdawi supported himself between the point he arrived in the United States and his matriculation at Columbia. Curiously, however, the judge highlights his claims that “he found comfort and healing in spiritual communities”, joining “the First Universalist Society in Hartland, Vermont”, and studying Buddhism.

Once at Columbia, however, as per the court’s order, Mahdawi “dedicated himself ‘to understanding how to achieve a lasting peace for Palestinians and Israelis, particularly through the study of conflict resolution’”.

One could argue there was a degree of peace between the Palestinians and Israelis prior to the events of October 7, 2023, but in any event the invasion of southern Israel that day by the militant group Hamas (which controls the adjacent Gaza region) scuttled any chance of it lasting, at least in the short term.

More than 1,200 people were killed in that attack, 200-plus more were kidnapped, and even the UN has been forced to conclude that there are “reasonable grounds to believe that conflict-related sexual violence — including rape and gang-rape — occurred across multiple locations of Israel and the Gaza periphery during” those attacks.

None of the atrocities of that day, however, were sufficient to stir Mahdawi to action.

Rather, it was only “after Israel took military action in Gaza in fall 2023” in response to October 7th that he became “outspoken in opposition to the war”, “speaking publicly about the importance of respecting international law, human rights, and the need for a permanent ceasefire and a peaceful resolution”.

The Government’s Allegations. Better late than never, I guess, but in any event the government paints a different picture of Mahdawi.

They claim that not long after he arrived, in the summer of 2015, a gun shop owner in Windsor, Vt., approached local police to report that Mahdawi had come to his establishment on two occasions, “expressing an interest in learning more about firearms and buying a sniper rifle and an automatic weapon”.

What’s more, the shop owner told the cops that Mahdawi had claimed to have “had considerable firearm experience and used to build modified 9mm submachine guns while he was in Palestine”.

The shop owner also directed the police to what the court described as “a fellow gun enthusiast”, who was a volunteer tour leader at the “Precision Museum” in Windsor.

That “enthusiast” claimed Mahdawi had told him during a conversation at the museum that, “I like to kill Jews.”

In addition, the government also told the court that Mahdawi was “stopped at the border” in January 2019 “and found to be carrying drugs”, and that when he was in the course of separating from his wife in 2018, “the couple quarreled and the ex-wife surrendered a firearm to the police for safekeeping”.

Mahdawi’s Response. Not surprisingly, the local police conveyed the “gun enthusiast” shop owner’s concerns to the FBI, prompting an agent from the bureau to interview Mahdawi in 2015.

He apparently admitted to the agent that he had visited the gun shop and the Precision Museum but denied having ever “discussed buying weapons or killing Jews”.

Instead, he claimed he went to the shop to find out whether he had to register a shotgun his wife had given him for a gift and visited the nearby museum “because it is just a few blocks from where he lived, and he is interested in machines and previously studied engineering”.

Mahdawi claimed “the FBI agent was satisfied with his explanation and closed the investigation”, and he denied having illicit drugs during the 2019 stop, describing it as “prescription medication”. Regardless, he was given diversion for that incident and his record has since been expunged.

Note that Judge Crawford demanded that the government produce the FBI agent in question, even though DOJ “raised concerns that questioning” him “could compromise security concerns”, and while Mahdawi claimed the FBI investigation into him is “closed”, the government argued that it “ended”.

Both parties agreed that “there were no other charges against Mahdawi or other unfavorable action”, though the government argued “it has some other information it has not shared with the court”.

As for the “domestic incident”, the judge described it as “an argument that led to no charges”, noting: “Today his wife is a close friend and supporter.”

Mahdawi’s Arrest and Removal Charges. Mahdawi claims that “after the November 2024 election, certain groups launched a deportation campaign against” him and “declared that they reported me to the Trump administration so that I may be deported for my speech in support of Palestinian rights”.

Still, he continued to seek naturalization and went to a planned naturalization interview in Colchester, Vt., on April 14 — even though he “’suspected that the Trump administration would use the interview as an opportunity to target and detain” him for his speech.

He claims that he answered all of the interviewer’s questions, passed his test, “and signed a document affirming that he was willing to take the Oath of Allegiance to the United States”.

The interviewing official then left the room, according to Judge Crawford, claiming “he needed to ‘check’ on some information and would be right back”. Shortly thereafter, “three masked agents wearing Homeland Security Investigations (‘HSI’) jackets and their supervisor entered the room” and arrested him.

He was charged with removal under section 237(a)(4)(C)(i) of the Immigration and Nationality Act (INA), the same ground of removability lodged against fellow Columbia University alum Mahmoud Khalil.

That provision 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”.

Curiously, that 29-page decision doesn’t delve deeply into the bases for the charge against Mahdawi, except to note that Secretary of State Marco Rubio accused Mahdawi of “‘engaging in threatening rhetoric and intimidation of pro-Israeli bystanders’ at a protest”.

“The Wheel of History Has Come Around Again”. I’ll skip Judge Crawford’s rather lengthy analysis finding he has the authority to release Mahdawi under his habeas authority, aside from noting that my colleague George Fishman and I drafted many of the INA provisions he referenced when we were staffers on the House Judiciary Committee.

Respectfully, the bases for his release order are much more important — and significant — than the legal method of how the judge got to the conclusion he had the authority to order that release.

In essence, the court accepted the alien’s argument that he’s being “detained … in retaliation for his protected speech or to chill the speech of others”, and that his detention is either punishment for his speech, or to deter others from speaking, or both.

This is a politically charged case, in every sense of, a fact the court conceded in stating that Mahdawi’s “speech” was “the heart of an ongoing political debate among the American people”.

For that reason, the judge should have issued a straightforward and bloodless decision, lest critics conclude he was taking a side in that debate or rendering an opinion focused not so much on whether this alien should be detained as on the administration’s immigration and campus-protest policies.

But “straightforward and bloodless” doesn’t describe that order. Consider the following, on pages 24 and 25 of Judge Crawford’s opinion:

The court … considers the extraordinary setting of this case and others like it. Legal residents — not charged with crimes or misconduct — are being arrested and threatened with deportation for stating their views on the political issues of the day. Our nation has seen times like this before, especially during the Red Scare and Palmer Raids of 1919-1920 that led to the deportation of hundreds of people suspected of anarchist or communist views.

…

Similar themes were sounded during the McCarthy period in the 1950s when thousands of non-citizens were targeted for deportation due to their political views. Again, the fever passed, but not before Justice Jackson was moved to dissent in U.S. ex rel. Knauff v. Shaughnessy (1950), writing in a habeas case concerning the exclusion of a German war bride:

“Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern.”

Respectfully, it could be argued that the country is slowly emerging from a different sort of “McCarthy period”, wherein the speech rights of those holding views contrary to those advanced by a vocal and powerful minority were chilled.

History teaches that “red scares” come in all different shades, but in any event a jurist should leave it to historians to write the history while they call balls and strikes.

The court’s failure to do so casts many of its factual findings into question — most prominently its conclusions about the statements Mahdawi is alleged to have made at the unnamed gun store and the Precision Museum circa 2015.

Judge Crawford concludes:

Had the statements attributed to Mr. Mahdawi been true, they would have resulted in some official response. In a case of the dog that did not bark, the FBI concluded its investigation without taking action. That decision gives rise to a reasonable inference that the agency charged with the protection of the public from crime found no basis for proceeding against Mr. Mahdawi in any venue.

Two questions: (1) does Judge Crawford know how criminal investigations work; and (2, relatedly) has he read his own decision?

I’ve spent the better part of three decades in and around law enforcement, and there are plenty of crimes law enforcement officers — local cops, state troopers, FBI and HSI agents, etc. — find were committed but never charge. There are therefore a multitude of reasons that this dog may not have barked.

In that vein, on what grounds would “the agency charged with the protection of the public from crime” have indicted Mahwadi criminally for saying “I like to kill Jews”, or for claiming to have “built modified 9mm submachine guns while he was in Palestine”?

While the former is odious, both statements are “speech”, and thus it’s curious that the same judge who uses purple prose in discussing the need for First Amendment limitations on the government’s power to punish speakers in the civil immigration context also somehow questions why Mahdawi wasn’t charged criminally for making statements.

The same goes for the alien’s inquiries about “buying a sniper rifle and an automatic weapon”. Gun store owners are asked that or similar questions regularly, but simply asking the question is not a predicate for charging on either the federal or state level.

Those statements only become salient in the context of the grounds of removal lodged by the secretary of State, again that Madhawi has “engaged in threatening rhetoric and intimidation of pro-Israeli bystanders at a protest”. In those circumstances, a base desire to kill Jews and experience making firearms in a country dedicated to Israel’s annihilation become extremely relevant.

When issuing high-profile decisions in cases that involve issues at “the heart of an ongoing political debate among the American people”, judges should be as dispassionate as possible. That’s not what happened in this case, however.