Khalil Complains BIA is Considering His Appeal Too Quickly

Mahmoud Khalil’s counsel filed a letter this week with a federal judge in New Jersey complaining the Board of Immigration Appeals (BIA, the DOJ appellate administrative tribunal in removal cases) is moving too quickly. Khalil is the Columbia University graduate and Palestinian “activist” who has become a cause célèbre since the secretary of State concluded his “activities and presence . . . in the United States would have potentially serious adverse foreign policy consequences”. The complaint about the speed of the case is a novel one, and one that helps explain why Congress wanted U.S. district court judges out of the immigration business.

 A Compressed History of the Case

While I have described the tortuous history of this case numerous times in the past, here’s a compressed timeline for those new to the saga. 

In 2022, Khalil was admitted on an F-1 nonimmigrant student visa to attend Columbia, an Ivy League university in Manhattan, where he played a disputed role in campus protests over the late war in Gaza. 

Thereafter, in November 2024, he adjusted his status to lawful permanent resident (“green card holder”) based on his marriage to a U.S. citizen.

In early March, ICE arrested Khalil based on a letter issued by Secretary of State Marco Rubio 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”.

Premised on Rubio’s determination, 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.”

Shortly after his arrest, Khalil, through counsel, filed a petition for writ of habeas corpus seeking release on March 9 with the U.S. District Court for the Southern District of New York.

On the one hand, Khalil wants his federal district court case to move as quickly as possible, and on the other he’s complaining to the same court that his BIA appeal is moving too quickly.

Habeas is premised on detention, however, and ICE didn’t detain him in New York, though it briefly held him at the agency’s Elizabeth Detention Facility in New Jersey before transferring him to an immigration detention center in Louisiana (based on an alleged “bedbug issue” that precluded his continued detention 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 U.S. district court in New Jersey (D. N.J.) — not to the Western District of Louisiana where he was then being held, as the government had requested.

The case was assigned to Judge Michael Farbiarz of the D. N.J., who retains jurisdiction over Khalil.

On June 11, Judge Farbiarz enjoined the government from both removing and detaining Khalil based on Rubio’s foreign policy determination, and on June 20, he directed DHS to release Khalil in a brief, two-page order.

Khalil was released, though by that point ICE had lodged an additional deportation charge, alleging he was removable under section 237(a)(1)(A) of the INA. 

Specifically, ICE alleged Khalil failed to “disclose certain information” when he applied for his green card, including that he had served “as the political affairs officer for the United Nations Relief and Works Agency for Palestine Refugees” (UNWRA) and previously been employed “as a program manager by the Syria Office in the British Embassy in Beirut”. 

Part 9 of the application for adjustment of status, Form I-485, requires applicants to list every “organization, association, fund, foundation, party, club, society, or similar group” they have ever been “involved in, or in any way associated with” in the United States or anywhere else. 

That question and others are in the Form I-485 because section 245(a) of the INA requires adjustment applicants to establish, inter alia, they are “admissible to the United States for permanent residence”. 

The answers are meant to alert adjudicators to possible grounds of inadmissibility, and one of those grounds, section 212(a)(6)(C)(i) of the INA, renders inadmissible “Any alien who, by … willfully misrepresenting a material fact, seeks to procure (or has … procured) a visa … or other benefit”.

In essence, the government charges that Khalil willfully misrepresented the fact that he had not worked for UNWRA or the Syria Office by omitting those facts when he applied for adjustment and thus obtained his green card through fraud.

On June 20 (the same day as the D. N.J.’s release order), an immigration judge in Louisiana found Khalil removable on both the “foreign policy” ground and under the section 237(a)(1)(A)/212(a)(6)(C)(i) charge and denied an asylum application he had filed as relief from removal. 

In a July 17 order, Judge Farbiarz concluded the “the immigration judge concluded [Khalil] is not eligible for asylum — for reasons that she explicitly stated are not based on the Secretary of State’s determination.” On that basis, he held that the asylum decision did not violate his injunction.

He concluded, however, that other parts of the immigration judge’s decision were at odds with his order and directed the immigration court to consider whether Khalil was eligible for a separate form of relief, a waiver to the “fraud at adjustment” ground of removability under section 237(a)(1)(H) of the INA.

Dutifully, on September 12, the immigration judge issued a decision denying that waiver and ordering Khalil removed on the section 237(a)(1)(A)/212(a)(6)(C)(i) charge.

Five days later, counsel for Khalil wrote a letter to Judge Farbiarz complaining the immigration judge’s order “is part and parcel of [the government’s] broader effort to retaliate against [Khalil] for his constitutionally protected expression in support of Palestinian rights” that “represents a substantial threat to [Khalil’s] liberty, family integrity and if ultimately removed, his physical safety”. 

Still, Khalil filed a timely notice of appeal from the immigration judge’s decision to the BIA on October 9, as permitted under 8 C.F.R. § 1003.38, which the BIA accepted on October 14.

 The October 28 Letter to Judge Farbiarz

Eight days later, the Board directed Khalil to file his opening brief in the case by November 12, prompting Khalil’s counsel to request a 21-day extension on the grounds counsel “did not anticipate needing to devote time to briefing his appeal during this three-week period” because “historically appeals of nondetained cases typically have not been set for briefing for well over a year after a notice of appeal is filed”.

Which brings me to the October 28 letter counsel for Khalil filed with Judge Farbiarz, “alert[ing] the Court to relevant developments in his immigration case”, specifically that the BIA had directed counsel to file an opening brief by November 12, with a government response by December 3. 

Counsel cites declarations from three “immigration experts who are already familiar to this Court” in arguing, “The extraordinarily rapid pace of BIA proceedings so far risks severely impairing immigration counsel’s ability to adequately brief the numerous issues in Mr. Khalil’s administrative appeal.”

Note that on October 20, attorneys for Khalil submitted a letter to the magistrate judge in the D. N.J. case arguing their “priority is to obtain expedited discovery, which [Khalil] believes is necessary to allow the Court to move promptly toward a final resolution of his claims challenging the government’s punitive actions”.

Keep in mind also that the October 28 letter to the D. N.J. is the 402nd document been docketed in Khalil v. Joyce. The issues here are well-plowed ground at this point.

So, on the one hand, Khalil wants his federal district court case to move as quickly as possible, and on the other he’s complaining to the same court that his BIA appeal is moving too quickly. 

 What Congress Intended

It’s questionable whether a federal district court judge could tell the attorney general’s designate, the Board of Immigration Appeals, to slow its roll, but this underscores why, as I explained on September 23, “Congress repeatedly went out of its way in the ‘judicial review’ provisions in section 242 of the INA to limit the jurisdiction of trial-level U.S. district court judges”. 

Section 242 of the INA is captioned “Judicial review of orders of removal”, and in it, Congress told Article III federal courts how they are supposed to handle appeals from administrative immigration decisions. 

That section assigns limited jurisdiction to federal district courts on certain ancillary matters, including (on transfer from the circuit courts) disputes over whether an alleged alien is in fact “a national of the United States”, the validity of removal orders in criminal “failure to depart” cases under section 243 of the INA, and challenges to the validity of the expedited removal system under section 235(b)(1) of the INA (but only in the U.S. District Court for the District of Columbia).

Aside from that, all petitions for review of administrative removal decisions are supposed to be filed under section 242(b)(2) of the INA “with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings” – and then only when the case is “final”. 

In fact, the “zipper clause” in section 242(b)(9) of the INA (“Consolidation of questions for judicial review”) 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 under this subchapter 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.]

Even assuming the D. N.J. had habeas jurisdiction while Khalil was detained (which DOJ is appealing), I am not sure why it retains that jurisdiction now that he’s been released, let alone why counsel for Khalil is implicitly asking that court to serve as the docket master for the BIA. 

From my experience (and I have a lot), BIA’s handling of appeals varies from case to case, so there’s nothing exceptional about the briefing schedule it set in this one. 

And, even if the BIA expedited Khalil’s administrative appeal, that was not uncommon under the Clinton administration when I was intimately involved with high-profile cases (like this one) and likely remains fairly common. 

Nor does it make such expedited treatment improper, though if it were, that would be an issue for the circuit court on review under section 242 of the INA, not the district court now.

If the BIA rules quickly it will do one of three things: (1) dismiss the government’s case, allowing him to remain indefinitely; (2) remand the matter to the immigration judge so he can seek a waiver; or (3) affirm the immigration court, allowing Khalil to file a petition for review under section 242.

As noted above, however, under section 242(b)(2), that appeal from an adverse BIA decision must be filed in the Fifth Circuit, not the Third Circuit (which has jurisdiction over New Jersey), and Fifth Circuit law is not commonly thought of as immigrant-friendly. 

Khalil seemingly relies so heavily on the opinions of “experts” to explain to the D. N.J. how immigration court and BIA proceedings are supposed to work because the district court is unfamiliar with how they do work. But that unfamiliarity is a feature, not a bug in this instance, given that Congress expressly cut district courts out of most immigration decisions. 

Immigration law isn’t rocket science, but aspects of it can be arcane to those unfamiliar with the INA. Most federal district court judges have no experience in immigration law and procedure – and that’s both because Congress cut them out of the review process and, in part, why it did so. 

Regrettably, the Supreme Court will likely have to intervene at some point in this or a similar case to explain Congress’s black-letter restrictions on district courts’ review authority in the INA. When that day comes, I have a well-thumbed copy I can lend the justices.