Green card holders like Columbia University’s Mahmoud Khalil are entitled to due process before having their permanent residency taken away.
At 11:30 a.m. this morning, Judge Jesse Furman of the U.S. District for the Southern District of New York, will hold a conference to schedule briefing in the matter of a legal permanent resident recently detained by Immigration and Customs Enforcement (ICE) following his participation in pro-Palestinian protests.
The matter began on Saturday evening, when ICE officers entered Mahmoud Khalil’s apartment complex, housing owned by Columbia University, from which Khalil earned a master’s degree in December. When Kahlil returned home after an evening out with his wife, who is a U.S. citizen and eight months pregnant, the ICE agents informed him that his student visa had been revoked. When Khalil indicated that he no longer had a student visa and instead had received legal permanent resident (LPR) status, what is colloquially known as a “green card,” the officers told him that this, too, had been revoked. No such process for immediate revocation of permanent residency exists.
While the current charges have not yet been revealed, Khalil will soon receive a Notice to Appear (NTA) providing the alleged grounds for deportation under which ICE attorneys will seek to obtain an order of removal. These ICE attorneys, under the Office of the Principal Legal Advisor (OPLA), bear the burden of demonstrating by clear, unequivocal, and convincing evidence that an individual is deportable from the United States. When they seek to do so for a legal permanent resident, they must assert certain grounds that would cause an individual to lose their green card. One cannot simply be stripped of their residency, even by Secretary of State Marco Rubio.
Green card holders like Khalil are entitled to due process before having their permanent residency taken away.
This process is typically conducted through a removal proceeding, in front of an immigration judge, who makes a determination of the law as applied to the specific facts of the case. In general, these proceedings simulate a trial, in which opposing counsel litigate in an effort to demonstrate that their perspective on a particular issue is the more salient one. The immigration judge is actually an employee of the Department of Justice (and subject to the oversight of Attorney General Pam Bondi) and the prosecuting attorney is an employee of the Department of Homeland Security (and subject to the orders of Secretary Kristi Noem). Regardless of the outcome, a decision can typically be appealed to the Board of Immigration Appeals and, eventually, the court of appeals in the circuit in which the case started.
In this instance, there will likely be a hostile fight waged over jurisdiction since Khalil is a resident of New York City, where he was arrested. His attorney will likely argue that this case is within the purview of the U.S. Court of Appeals for the Second Circuit, a more favorable venue that held, in Ragbir v. Homan (2019), that an assertion of an individual’s First Amendment rights can present a constitutional claim against selective immigration enforcement. Khalil was later detained in Newark, New Jersey, located in the Third Circuit, before being summarily transferred to a detention facility in Jena, Louisiana, which is located in the Fifth Circuit, a jurisdiction that is traditionally more hostile to these types of claims. These questions of the jurisdictional choice of law in a particular case are usually hotly contested due to rapid and unforeseen ICE transfers of detainees.
Once the government has initiated proceedings by filing an NTA, it will need to assert a specific ground for removal. While many believe that LPR status provides permanent protection against deportation, it does not. There are many reasons for which an individual can lose their green card and be deported from the United States. For example, residing outside the United States for more than six months creates a presumption of abandonment upon return, per the Immigration and Nationality Act (INA) § 101(a)(13)(C)(ii). Moreover, there are manifold grounds for both inadmissibility and deportability, which could potentially cause the revocation of one’s status. In reality, legal permanent residence is a much more precarious status than citizenship, which can be lost only through voluntary renunciation or denaturalization, a process that the federal government may pursue if an individual obtained citizenship through fraud or mistake.
There are two ways that immigration officials can seek to have an individual removed from the United States once they are a legal permanent resident. The first way is governed by a set of rules that apply when an individual applies to adjust status (change from another visa category) to permanent residency or when a legal permanent resident returns to the United States from a trip abroad. Grounds for deportation can include health-related reasons, such as testing positive for communicable diseases, and others, such as falsely claiming citizenship, unlawfully voting, and committing genocide or torture. There are also a number of criminalized activities that could complicate one’s ability to gain permanent residency or reenter the U.S. as a green card holder, such as possession or distribution of drugs (even if no conviction is obtained), prostitution, crimes involving moral turpitude (a notoriously vague category), or multiple criminal convictions with an aggregate sentence of five years or more.
Most pertinent to this case, ICE can also allege inadmissibility based on national-security-related grounds, collectively known as Terrorism-Related Inadmissibility Grounds (TRIG bars). An individual who has already gained legal permanent residency can also be found deportable for these terrorism-related grounds. In general, this statute is “breathtaking in its scope.”However, the type of terrorist activity that it describes is unlikely to encompass the political speech in which Khalil has participated. The TRIG provision requires engaging in or inciting terrorist activity, being the representative of a terrorist organization, or being the spouse or child of someone found inadmissible under these grounds. Terrorist activities include hijacking, kidnapping, violent attacks, or threats to commit any of these acts. Finally, the TRIG bar can apply to those who endorse or espouse terrorist activities or encourage others to endorse or espouse terrorist activities. While Hamas has been designated as a terrorist organization since 1997, there is no indication that Khalil has any direct connection to the organization, apart from vague accusations from various members of the Trump administration. Despite allegedly “leading activities aligned to Hamas,” there is no evidence that Khalil has provided any support to the organization, or, at least, the government has yet to provide it. Rather, it appears that he is being targeted for his political speech.
Khalil is unlikely to be found inadmissible since he was granted LPR status, though deportation proceedings can be initiated if authorities find, retroactively, that he was inadmissible at the time of adjustment of status because of material misrepresentations or fraud, or subsequent discovery of other grounds of inadmissibility. And, as mentioned above, many grounds of inadmissibility, including terrorism-related grounds, can also serve as grounds for deportability.
There are other grounds for deportation, many of which mirror the aforementioned inadmissibility grounds. They also include security and terrorism grounds, as well as other criminal grounds, such as conviction for a firearm offense, a crime of domestic violence, certain crimes involving moral turpitude, and aggravated felonies such as murder, rape, and certain theft offenses.
The most likely relevant provision for this case provides that a legal permanent resident is deportable if the “Secretary of State has reasonable grounds to believe that his or her presence or activities in the U.S. would have potentially serious adverse foreign policy consequences of the U.S.” While it may seem surprising that political speech can serve as the basis for deportability, under the McCarran-Walter Act of 1952 (also known as the Immigration and Nationality Act), political beliefs have served as a grounds for deportability, preventing the entry of celebrated novelists for their espoused political beliefs. While many of these limitations were lifted following the passage of the Immigration Act of 1990, membership in the Communist Party is still grounds for prohibiting naturalization in the United States.
In general, the provision that permits the secretary of state to initiate removal proceedings is seldom used, and there are limitations. For example, individuals cannot be deported solely because of past, current, or expected beliefs, statements, or associations if such matters are lawful within the U.S. However, those limitations do not apply if the secretary of state personally determines that the alien’s continued presence would compromise a compelling U.S. foreign policy interest. In order to make such a determination, Secretary Rubio is required to notify the Senate Judiciary and Foreign Relations Committees and the House Judiciary and Foreign Affairs Committees, though there is no indication that he has done so.
While there is limited guidance and case law about how this provision of the INA should apply, a conference report from the INA of 1990 provides some instructive clarification about what is expected from Rubio:
It is the intent of the conference committee that this authority would be used sparingly and not merely because there is a likelihood that an alien will make certain remarks about the United States or its policies … Furthermore, the conferees intend that the “compelling foreign policy interest” standard be interpreted as a significantly higher standard than the general ‘potentially serious adverse foreign policy consequences’ standard … . The fact that the Secretary of State personally must inform the relevant Congressional committees when a determination of excludability is made under this provision is further indication that the conferees intend that this provision be used only in unusual circumstances.
In general, removal proceedings are initiated by the Department of Homeland Security, through the filing of an NTA. Though the secretary of state is permitted in exceptional circumstances to identify an individual as deportable, the same procedural mechanisms apply. Indeed, filing an NTA is simply the first step in a potentially lengthy process before an official order of removal is issued. Once an order is issued, ICE is granted the lawful authority to physically remove an individual and deport them to their place of birth or nationality, or another willing third country. Under either inadmissibility or deportability, the proceedings are the same, though an individual alleged to be inadmissible has the burden of proof that he is not. The burden is on Homeland Security to prove deportability, and even if it does, various forms of relief might be available to prevent an individual’s removal.
Because Khalil is presently detained in the Central Louisiana Processing Center in Jena, Louisiana, another important matter is whether he will be released during the pendency of his proceedings. While it is not clear whether Khalil has been charged nor, if so, what those charges are, most individuals subject to deportation proceedings are eligible for a bond hearing unless the federal government alleges his detention is for national security purposes. If he is able to proceed with a bond hearing, Khalil has the burden of demonstrating that he is not a danger to the community and not a flight risk. Though he has many equities that way in his favor, bond hearings are notoriously wide ranging, as immigration judges can base their decisions on any information presented by either party. The federal rules of evidence do not apply.
There is still important information outstanding in the federal government’s case against Khalil, but for now, he faces a challenging case due to his circumstances. He is being held in a remote detention facility, far from his immigration attorney and family, and is seeking his relocation to New York through the All Writs Act. The outcome of this case will have important implications for political speech and the utilization of an obscure portion of the INA to initiate removal proceedings.
– Matthew Boaz, Published courtesy of Lawfare.
