ICE Arrests Palestinian ‘Activist’

AP reports that ICE officers arrested Columbia University graduate student Mahmoud Khalil, whom the outlet describes as a “a Palestinian activist … who has played a prominent role” in the school’s anti-Israel protests, on Saturday. Agents would only have taken Khalil, who apparently is a green card holder, into custody if they think he’s removable, but his ground of removability has not been publicly disclosed. My guess is that the administration is relying on a ground of removal that vests vast discretion in the secretary of State — and that it will start using it a lot more often.

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

The paper reported that Khalil — who is both Palestinian and Syrian — was “one of the protesters’ lead negotiators” in a standoff with the university over a tent encampment on the its New York City campus. As per the Post:

Khalil — who did his undergraduate degree in Beirut — told the Columbia Daily Spectator that he has not participated in any of the protests over the past week and a half because he is worried about losing his student visa that allows him to remain in the US.

Khalil was a political affairs officer with UNRWA — the United Nations’ agency that supports Palestinian refugees — from June through November 2023, according to LinkedIn.

UNRWA lost hundreds of millions of dollars in funding earlier this year when an Israeli dossier suggested that agency workers were linked to the Oct. 7 terror attack.

Earlier this week, an Independent Review Group announced that a nine-week probe found a lack of serious evidence that the group had legitimate connections with Hamas.

Regardless of what the “Independent Review Group” found, the Biden administration and more than 12 other countries paused funding to UNRWA in March 2024 in response to Israel’s claims.

In addition, on the day he took office, Trump ordered a pause on all foreign assistance pending an assessment of whether that spending was aligned with his administration’s policies, including funding to UNRWA.

While the Supreme Court rejected an emergency appeal from the administration to a district court order releasing that aid, it’s unclear whether any of it has been disbursed. In any event, it does not appear that any money has gone to UNRWA since Biden blocked it last year.

Confusingly, press reports indicate that Khalil has both a student visa and lawful permanent resident status (“LPR”, that is, a green card). By law, one cannot be both a nonimmigrant and an immigrant, so there’s likely a lot more to his immigration history, and my guess is that he recently adjusted his status.

Section 237(a)(4)(C)(i). Even more confusing is the specific ground of removal in Khalil’s case.

Generally — and somewhat elliptically — LPRs can only be taken into ICE custody, detained, prosecuted, and removed if they have done something that would render them deportable on one or more of the grounds of deportation in section 237 of the Immigration and Nationality Act (INA).

The criminal grounds in section 237(a)(2) of the INA are the most common immigration charges lodged against LPRs, but nothing suggests that Khalil has a criminal record per se.

It’s more likely that the government is alleging that Khalil is removable under the “security and related grounds” of removal in section 237(a)(4) of the INA. Let me explain.

AP interviewed Khalil’s attorney, Amy Greer, and she claims that ICE officers told her that “they were acting on State Department orders to revoke Khalil’s student visa”.

That itself is confusing, because aside from issuing visas at consulates abroad, the State Department usually doesn’t get involved in immigration issues domestically.

Except when the department actively gets involved in domestic immigration issues.

Which brings me to section 237(a)(4)(C)(i) of the INA. It 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”.

Certain online pundits have posited that Khalil is being charged under the terrorism provisions in section 237(a)(4)(B), but: (1) it’s arguable at best that Khalil has committed any act that would subject him to removal under that provision; and (2), section 237(a)(4)(C)(i) is a much easier charge for ICE to sustain.

Having argued such cases, I can assure you that proving an alien is deportable on terrorism grounds is complex given that few terrorists admit as much.

More importantly, however, such charges can place the U.S. government in a quandary where sustaining removability requires the disclosure of classified evidence or facts related to ongoing criminal investigations — which intelligence and law-enforcement agencies are loath to do.

All that’s required under section 237(a)(4)(C)(i), on the other hand, is a letter from the secretary of State.

The leading case interpreting this ground of deportability is Matter of Ruiz-Massieu. The respondent, a Mexican national, had served as the deputy attorney general of that country in 1993 and then again from May 1994 until he resigned his post in November of that year.

On March 2, 1995, Ruiz-Massieu was admitted to the United States as a nonimmigrant tourist, only to be arrested that same day by Customs officers when he attempted to leave with $26,000 in cash that he had failed to disclose he was carrying.

He was charged with deportability under section 241(a)(4)(C)(i) of the INA, the pre-1996 precursor to section 237(a)(4)(C)(i).

That charge was based on a determination by then-Secretary of State Warren Christopher that a failure to send Ruiz-Massieu back home:

would jeopardize our ability to work with Mexico on law enforcement matters. It might also cast a potentially chilling effect on other issues our two governments are addressing. … Should the U.S. Government not return Mr. Ruiz Massieu to Mexico, our support of such reforms [of the Mexican judicial system] would be seen as hollow and self-serving and would be a major setback for President Zedillo and our combined efforts to chart a new and effective course of U.S.-Mexican relations.

A district court judge enjoined the respondent’s deportation, ruling that this ground of deportability was unconstitutional, only to have that injunction dissolved by the Court of Appeals for the Third Circuit, which held that Ruiz-Massieu had to go through the administrative process first.

The immigration judge held that the INS had failed to prove that Ruiz-Massieu was deportable, specifically finding that the agency had “failed to show by clear, unequivocal, and convincing evidence that the opinion of the Secretary of State was reasonable”.

INS appealed that decision to the Board of Immigration Appeals (BIA) in a case argued by the agency’s district counsel, David Martin, then and now one of the leading experts in immigration law.

The BIA noted that, “the role of the Secretary of State under section 241(a)(4)(C)(i) is sui generis. In no other deportation provision is the Secretary assigned such authority” — again suggesting that this is the ground in Khalil’s case.

Importantly, the BIA concluded that:

The argument that deportability under section 241(a)(4)(C)(i) of the Act should be decided in the same manner as other grounds of deportation is unavailing. No other ground of deportation assigns a specific and essential role to the Secretary of State. The fact that this ground has been included in the same section as other grounds of deportation that do require a more active fact-finding role by the Immigration Judge is irrelevant: this is a ground of deportability, and regardless of who is responsible for making the determination of deportability, and under what standard of proof, it was perfectly reasonable for Congress to include it among the other grounds of deportability. [Emphasis added.]

Given that and other legal determinations, the BIA held:

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.]

That’s not a high bar for ICE to clear, but as the BIA noted in Ruiz-Massieu, this ground has only “been used very rarely”.

As you can see, I’ve relied on a lot of suppositions and guesswork to get to the conclusion that Khalil was arrested by ICE because the secretary of State has concluded that his presence in this country “would have potentially serious adverse foreign policy consequences for the United States”.

If I’m right, expect to see the Trump administration rely more heavily on the foreign policy removal charge in section 237(a)(4)(C)(i) of the INA in response to pro-Hamas activity in the United States — and also expect a raft of legal challenges to follow.