Long Story Short: Columbia Grad Mahmoud Khalil Detained, for Now

On the afternoon of Friday, June 13, Judge Michael Farbiarz of the U.S. District Court for the District of New Jersey issued an order making clear that he had not earlier directed DHS to release Columbia graduate student Mahmoud Khalil. That was the culmination of my long online day following the back-and-forth at the district court, but to make a long story short, the government can legally detain Khalil — at least until he asks an immigration judge in Louisiana to be released.

Mahmoud Khalil

To recap, in early March, ICE arrested Khalil, a lawful permanent resident (i.e., “green card holder”) who AP described as “a Palestinian activist … who has played a prominent role” in protests at Columbia University’s Manhattan campus.

That followed an April 2024 expose in the New York Post on individuals it deemed “the extremist student leaders of the anti-Israel protest camp bringing Columbia to its knees”, including Khalil.

Khalil denies any involvement in unlawful activities at Columbia or anywhere else, but regardless, in March Secretary of State Marco Rubio issued a letter concluding Khalil’s “activities and presence … in the United States would have potentially serious adverse foreign policy consequences and would compromise a compelling foreign policy interest”.

On that basis, ICE placed Khalil into removal proceedings and charged him with removability under the “foreign policy” ground of deportation, section 237(a)(4)(C) of the Immigration and Nationality Act (INA).

That provision states, in pertinent part: “An 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 is deportable.”

There is an exception, in clause (ii) of that provision, that references back to the complementary “foreign policy” ground of inadmissibility in section 212(a)(3)(C)(iii) of the INA.

Under that exception, an alien is not removable under either of the foreign policy grounds of removal in section 237 or section 212 “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”.

The secretary of State, however, can override that exception, but only if he “personally determines that the alien’s admission” or continued presence in the United States “would compromise a compelling” U.S. “foreign policy interest”.

As Rubio’s letter shows, he cut right to the chase in his determination, forestalling a claim by Khalil that he was simply engaged in lawful activities by concluding that the alien’s continued presence would compromise a compelling foreign policy interest, by “undermining U.S. policy to combat anti-Semitism around the world”, as well as its “efforts to protect Jewish students from harassment and violence in the United States”.

Khalil v. Joyce

Khalil was arrested in New York, and shortly thereafter, he filed a petition for writ of habeas corpus seeking release on March 9 before the U.S. District Court for the Southern District of New York.

ICE didn’t detain him in New York, however, briefly holding him in at the Elizabeth Detention Facility in New Jersey before transferring him to an immigration detention center in Louisiana (due to an apparent “bedbug issue” in Elizabeth).

Because he was in New Jersey when he filed his petition, on March 19 a district court judge in New York transferred his case, Khalil v. Joyce, to the district court in New Jersey — not to a federal court in the Western District of Louisiana where he was then being held, as the government had requested.

Enter Judge Farbiarz

Now in the New Jersey court, the matter was assigned to Judge Farbiarz, and to his credit, he understands when he is issuing his decisions and orders in this high-profile case that he is not simply writing for the parties, but also for outsiders unfamiliar with immigration law, let alone byzantine federal district court procedures.

For example, even a layman could read his (106-page) May 28 opinion and order in which he held the foreign policy ground of removability in section 237(a)(4)(C) of the INA is likely unconstitutional as applied to Khalil, and clearly understand his reasoning. Not that he was correct, of course.

The “Failure to Disclose” Charge

But even assuming the court was correct on the constitutionality of the foreign policy ground, the government alleges Khalil is also removable on a second charge, under section 237(a)(1)(A) of the INA, because:

he failed to disclose certain information in his adjustment of status application, including: (1) his service as the political affairs officer for the United Nations Relief and Works Agency for Palestine Refugees [UNWRA]; and (2) his employment as a program manager by the Syria Office in the British Embassy in Beirut.

Let me explain. Khalil came as a nonimmigrant student and received his green card last November based on a petition filed by his U.S. citizen wife.

When he made that switch in statuses, he filed an I-485, “Application to Register Permanent Residence or Adjust Status”.

Part 9 in that application asks: “Have you EVER been a member of, involved in, or in any way associated with any organization, fund, foundation, party, club, society, or similar group in the United States or in any other location in the world?” (Emphasis in original).

An applicant who answers “Yes” to that question is given ample space to list not only the group or groups, but also the nature of the organization (“illicit or legitimate”) and the applicant’s “involvement in the organization, including role or position(s) held, whether illicit or legitimate”.

To constitute a ground of removal, any omitted fact must be “material”, and in this instance, a failure to mention the fact that he worked for UNWRA would appear to satisfy that standard.

As my colleague Nayla Rush explained in April 2024, UNWRA is one of two refugee agencies run by the UN (the other being the UN High Commissioner for Refugees) and over time UNWRA’s “assistance ‘has progressively acquired an eminently political dimension that has gradually become embedded in the Palestinian nation-building process’”.

In that vein, U.S. funding to the organization (and funding by more than a dozen other countries) was cut off under the Biden administration in January 2024 “after Israel accused 12 of its 13,000 employees of participating in the deadly Hamas attack on Israel on Oct. 7, 2023, which triggered the Gaza war”.

The Columbia University protests, of course, are in response to Israel’s invasion of Gaza following that Hamas attack, which suggests Khalil of all people should have listed his UNWRA employment on his I-485. But if the government’s allegations are true, he didn’t.

Back to Judge Fabiarz

Which brings me to Judge Fabiarz’s June 11 opinion and order in this case, in which he enjoined the government from removing or detaining Khalil based on Rubio’s foreign policy determination, while staying his order until 9:30 a.m. on June 13 to give the government a chance to seek a stay from the Third Circuit.

Again, that 14-page opinion is written in the simplest of terms, and if you only read the order part, you likely wouldn’t be confused by what he ordered.

The confusion arises in the heart of the opinion, in which the court goes on at length about how “the evidence is that lawful permanent residents are virtually never detained pending removal for the sort of alleged omissions in a lawful-permanent-resident application that the Petitioner is charged with here” — that is the failure to disclose his alleged work for UNWRA and his work for the British Embassy.

The “evidence” in question consists of three declarations submitted to the court by Khalil: one by Kerry Doyle (de facto general counsel of ICE under Biden, about whom I have written at length elsewhere); one by Stacy Tolchin, a private practitioner; and one by practitioner and law professor Ira Kurzban.

“Based on those declarations”, the court concluded:

as a matter of fact … it is overwhelmingly likely that the Petitioner would not be detained based solely on the lawful-permanent-resident application charge. Rather, the Court finds, the Petitioner’s detention almost surely flows from the charge that is based on the Secretary of State’s determination.

The Van Der Hout E-Mails

Note that Judge Fabiarz never said in his order that Khalil had to be released — just that he could not be detained on the foreign policy ground. Still, given the three pages he spent on his finding that aliens are rarely if ever detained on the “failure to disclose” charge, it sure looked like he was ordering release, and in fact he even ordered Khalil to pay a nominal $1 bond for his injunction to take effect (which was paid).

Lest you think I am overly obtuse, however, Khalil’s attorney, Marc Van Der Hout, apparently had the same misapprehension.

On March 13, he submitted to the court a series of e-mails he and his staff sent ICE asking when, in accordance with the court’s order, Khalil would be “available to be picked up” — assuming that the government didn’t seek an immediate stay of the court’s order (which it didn’t).

The Flentje Letter

By that point on Friday, I had begun writing up my analysis of Judge Fabiarz’s opinion and order — only to be stopped in my tracks by the next submission in Khalil, a letter to the court that DOJ’s special counsel for immigration litigation, August Flentje, submitted that afternoon.

In that letter, Flentje reiterated that the court “expressly noted that its holdings ‘have no impact on efforts to remove’” Khalil “for reasons other than” the Rubio letter, and that while Judge Fabiarz “made a factual finding that it was unlikely that Khalil would be detained on another basis”, he “never held that it would be unlawful for” the government “to detain Khalil based on another charge”. (Emphasis in original).

Consequently, Flentje explained, Khalil was now being held on another charge, of failing to disclose material facts on his I-485.

If Khalil wants to seek bond from ICE or the immigration judge hearing his case in accordance with the regulations, Flentje noted, he can always do so, but as he argued in conclusion: “These administrative processes are the proper avenues for Khalil to seek release — not having a federal district court hold that the government cannot detain Khalil on a charge that the Court never found to be unlawful.”

Judge Fabiarz, Redux

At this point, I wasn’t sure how or whether Judge Fabiarz would respond, but he quickly answered both the Van Der Hout E-mails and the Flentje letter by issuing another order clarifying his June 11 order.

Specifically, he explained therein that he had not enjoined the second (failure to disclose) ground, and in fact, Khalil had never “put forward factual evidence as to why it might be unlawful to detain him on the second charge” and also “failed to make meaningful legal arguments” rebutting that charge.

He also agreed with Flentje that Khalil can certainly ask the immigration judge to release him, but “to the extent” that he was asking for “relief from this Court”, it was denied.

Not to fault Judge Fabiarz, as I think he is taking pains to make the facts in Khalil as simple as possible for outsiders in this high-profile case to understand. In the course of that, however, he appears to have confused the parties, and this pundit as well.

Long story short: While the government can’t remove or detain Khalil based on Secretary Rubio’s foreign policy determination, it still has a second pending “failure to disclose” charge to fall back on — both to detain Khalil and seek his deportation. For now.