Update: Judge Cuts Columbia Grad Khalil Loose

On Friday, Columbia University graduate and campus protestor Mahmoud Khalil left an ICE detention facility in Louisiana “wearing a keffiyeh and raising his right fist” after U.S. District Court Judge Michael Farbiarz ordered his release. Why he was ordered released is quite the tale, but suffice it to say that the government is appealing the order.

A Quick Recap

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

Khalil denies having engaged in unlawful activities, but in March, ICE arrested him in New York City and Secretary of State Marco Rubio found his “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).

Khalil was briefly detained by ICE in Elizabeth, N.J., before he was moved to a separate facility in Jena, La., ostensibly due to “bedbug” issues in the first detention site.

During Khalil’s brief stop in New Jersey, however, his attorney filed a habeas petition seeking his release with the U.S. District Court for the Southern District of New York — which covers Manhattan.

The government asked the New York judge to transfer the case to a U.S. District Court in Louisiana that covers Jena, but instead on March 19, the court transferred the case to the U.S. District Court for the District of New Jersey (which covers Elizabeth), where it was assigned to Judge Fabiarz.

In a (106-page) May 28 opinion and order, Judge Fabiarz held that the foreign policy ground of removability in section 237(a)(4)(C) of the INA was likely unconstitutional as applied to Khalil, though he left a second charge of removability lodged by ICE against Khalil undisturbed.

The Second Charge

Khalil adjusted his status from nonimmigrant student to LPR last November, and the government alleges that when he filed that application (under section 245 of the INA):

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.

Pursuant to section 212(a)(6)(C)(I) of the INA, “Any alien who, by … willfully misrepresenting a material fact, seeks to procure (or has … procured) a visa … or other benefit provided under this chapter is inadmissible”.

Not surprisingly, a green card is “a benefit provided” by the INA, and omitting key facts in an application can constitute a “willful misrepresentation” if it’s “clear from the evidence that the alien consciously concealed information”.

Of course, Khalil’s already been admitted to the United States (as a nonimmigrant student) and adjusted his status, but Congress anticipated that DHS may not always catch willful misrepresentations or omissions until well after the fact.

Consequently, section 237(a)(1)(A) of the INA provides that, “Any alien who at the time of … adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time” — such as for fraud or willfully misrepresenting a material fact under section 212(a)(6)(C) — “is deportable”.

That 237(a)(1)(A)/212(a)(6)(C) “willful misrepresentation of a material fact” charge is the second ground of removability ICE has lodged against Khalil, and the remaining one in his case.

While the habeas case was playing out before Judge Fabiarz in New Jersey, Khalil’s administrative removal case was proceeding before the immigration court in Jena.

On April 11, an immigration judge in Jena found Khalil removable on the foreign policy ground and — although it’s not clear from published reports — apparently concluded he was removable on the willful misrepresentation ground, as well.

Khalil filed an application for asylum (under section 208 of the INA) and withholding of removal (under section 241(b)(3)(A) of the INA), which the immigration judge reportedly denied on June 20, ordering him to remain in detention.

Judge Fabiarz’s June 11 Opinion and June 13 Order

In a June 11 opinion, Judge Fabiarz enjoined the government from both removing and detaining Khalil based on Rubio’s foreign policy determination.

As I explained on June 16, that opinion was confusing because in the middle of it, the court concluded, “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.

That said, Judge Fabiarz did not enjoin the government from seeking Khalil’s removal on the willful misrepresentation ground or from detaining him on that ground. Due to the confusion that reference created, however, on June 13 the court issued yet another order clarifying that he had not, in fact, enjoined removal on the willful misrepresentation ground.

Khalili’s June 16 Letter to the Court, and the Government Response

On June 16, Khalil’s counsel filed a letter with Judge Fabiarz, seeking to block the government from detaining him on the willful misrepresentation ground.

Counsel argued:

Given this Court’s factual finding [in its June 11 opinion], drawing on undisputed evidence, that the detention of U.S. lawful permanent residents on this basis “virtually never” occurs … the decision to continue [his] detention on this basis further underscores [the government’s] unlawful, retaliatory purpose, and independently provides additional grounds for release during the pendency of his long-running habeas proceedings.

The government countered that request in a letter filed the next day, arguing that Judge Fabiarz had already concluded that Khalil’s detention on the willful misrepresentation charge “remains lawful” and noting that there’s an administrative mechanism for him to challenge his detention before the immigration court and the Board of Immigration Appeals (BIA) that he was “improperly attempting to circumvent” by seeking release from the U.S. district court.

Importantly, the government also argued that section 236(e) of the INA bars “judicial intervention over” immigration detention and release decisions.

That provision states, in pertinent part, that: “No court may set aside any action or decision by [DHS] regarding the detention of any alien or the revocation or denial of bond or parole.”

Judge Fabiarz’s June 20 Order

Notwithstanding the government’s opposition, Judge Fabiarz directed DHS to release Khalil in a brief, two-page order on June 20.

The court ostensibly explained why it was ordering Khalil’s release from the bench (no transcript is available), but that order differs significantly from Judge Fabiarz’s prior orders.

As I have explained in this past, this particular jurist seems aware that he is writing for laymen in the public and the press, and for that reason has painstakingly explained every finding he made.

That terse June 20 order, on the other hand, refers just to pleadings filed by the parties, and leads the reader to speculate why he ruled as he did.

It appears, however, that the court’s logic went like this: (1) Few aliens charged with deportability for omitting facts from adjustment applications are detained; (2) the government first tried to detain and remove Khalil on a foreign policy ground the court has concluded is constitutionally infirm; and (3) by detaining Khalil on the willful misrepresentation charge, the government is retaliating against him for exercising his First Amendment rights.

I am unfamiliar with any district court release decision that hinged on the likelihood an alien in an average case would be detained for a specific charge. Some 96 percent of Mexican asylum claims are denied; does that mean a judge can simply pretermit them all?

Or more saliently, if most aliens with drunk driving arrests are released on bond, should some malicious intent be read into the continued detention of those arrested with a blood alcohol content three or four times the legal limit of .08 (.05 in Utah)?

Technically, ICE could charge me if, for example, I failed to mention when applying for adjustment that I was in a fraternity in college because it would cut off a line of inquiry into how I comported myself in my Greek days.

If I were credibly accused of assault or drug trafficking while in the fraternity, though, not mentioning such association would suggest I was hiding facts that could lead an objective observer to conclude I was a danger to the community and thus unfit for release.

In Khalil’s case, he failed to mention his association with UNWRA, U.S. funding to which was suspended 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”.

As I noted in analyzing Judge Fabiarz’s June 16 order:

The Columbia University protests … 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.

Significant Remaining Issues

As explained above, the government has filed a notice of appeal in this case. Expect the government to argue that Judge Fabiarz never had authority to issue most of his decisions in this case to begin with.

On March 23, the government filed an opposition to Khalil’s motion for release before the district court in which it lays out its arguments, but they all essentially come back to one point: This case has not proceeded the way Congress intended.

In section 242(b)(9) of the INA, Congress meant to prevent “piecemeal review of nonfinal deportation decisions” by consolidating them in one final, post-administrative review before the circuit courts — which is why the Supreme Court has referred to that provision as an “unmistakable ‘zipper’ clause”.

It states:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States … shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by [any] habeas corpus provision … or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. [Emphasis added.]

I’m familiar with this provision because as a staffer, I drafted the references eliminating habeas review as part of the REAL ID Act of 2005.

As noted, Khalil has been in administrative removal proceedings before the immigration court in Louisiana. While the immigration judge there couldn’t consider the constitutionality of either of the grounds of removal, she did have authority to order Khalil’s release.

That immigration judge has apparently ordered Khalil removed and detained (those proceedings are often not public, and don’t seem to have been open to the public here), but he can appeal that decision as a matter of right to the BIA.

Only after the BIA considered his case, the government will argue, should Khalil have been allowed, under section 242 of the INA, to seek Article III judicial review of the constitutionality of his removal by filing a petition — not with a district court in New Jersey, but here, with the Court of Appeals for the Fifth Circuit in New Orleans.

But this appeal won’t go to the Fifth Circuit, it will go to the Third Circuit in Philadelphia, because that court hears appeals from the U.S. district court in New Jersey.

Regardless of how that court rules, expect this matter to eventually make its way to the Supreme Court.

Of all the decisions the district court issued here, the most significant — the one ordering release from ICE custody — was the most poorly explained, and arguably the most assailable. Regardless, Mahmoud Khalil walked out of ICE detention on Friday, “wearing a keffiyeh and raising his right fist”.