A Louisiana immigration judge will rule on Mahmoud Khalil’s release today. Here’s how we got here

CNN

By Lauren Mascarenhas and Gloria Pazmino, CNN

(CNN) — A Louisiana immigration judge is set to decide Friday whether to release Palestinian activist and Columbia University graduate Mahmoud Khalil one month after he was arrested by federal agents following a deportation order from the Trump administration.

Assistant Chief Immigration Judge Jamee Comans ordered the federal government to turn over evidence supporting its order to remove Khalil, a legal permanent resident, from the US by Wednesday evening or she would move to terminate the case, according to Khalil’s lawyers.

In response to the request, the federal government submitted a memo Wednesday from Secretary of State Marco Rubio alleging Khalil is deportable because of his “beliefs, statements or associations” that would compromise US foreign policy interests.

The memo, which is undated and initialed by Rubio, contained no allegations of criminal activity.

Khalil’s attorneys have challenged the accusations against him in federal and immigration court, saying he is being targeted over his pro-Palestine activism in violation of his constitutionally protected right to free speech.

“That’s what this case is really centered on: The rights of people in this country, citizens and immigrants alike, who are all protected by the Constitution and by the First Amendment to be able to speak out, whatever their views may be,” Marc Van Der Hout, an immigration attorney for Khalil, said during a briefing with reporters Thursday afternoon.

During Friday’s hearing, the government will be required to show it has met its burden of proof that it can deport Khalil. The graduate’s attorneys said the hearing would have “momentous implications.”

“Whether the government can act in violation of the Constitution to deport someone is front and center and our position is that it cannot,” said Johnny Sinodis, an immigration attorney for Khalil.

That decision will come down to whether Khalil is technically deportable, New York University law professor Adam Cox told CNN. If the government does not have the evidence it needs to argue for his removal, he may be released.

It’s important to remember that even if the judge finds that Khalil is deportable, it doesn’t mean that he will be deported right away, Cox told CNN.

“People who are deportable can seek relief from deportation,” he said.

While a federal district judge has blocked Khalil’s deportation until his case can be heard in court, Khalil’s lawyers have expressed concern that if Comans rushes to make a decision Friday, he will be deprived of the chance to challenge the government’s accusations.

Khalil’s attorneys said they will contest the evidence at the hearing and ask for an opportunity to depose Rubio.

“We have the right, Mr. Khalil has the right under due process to confront the evidence against him,” Van Der Hout said.

Here’s how we got here

As a graduate student at Columbia University, Khalil served as a prominent negotiator for student protesters in talks with the Ivy League school’s administration over last spring’s contentious campus encampment to protest Israel’s war in Gaza.

Khalil’s case has sparked a firestorm of controversy since the night in March when he was arrested outside his university residence where he was living with his wife, a US citizen, who is nine months pregnant. He was transferred to a Louisiana detention center, where his immigration proceedings will take place. A separate federal case, in which Khalil is suing the federal government over his arrest, is playing out in New Jersey.

The administration ordered Khalil’s deportation “based on information provided by the DHS/ICE/HSI regarding the participation and roles of (redacted) and Khalil in antisemitic protests and disruptive activities, which fosters a hostile environment for Jewish students in the United States,” Rubio stated in the memo submitted Wednesday.

The actions and continued presence of Khalil in the US “undermine U.S. policy to combat anti-Semitism around the world and in the United States, in addition to efforts to protect Jewish students from harassment and violence in the United States,” the memo continues.

Khalil’s lawyers told CNN they do not expect the federal government to provide additional evidence to fulfill the judge’s request. Van Der Hout said the government had submitted evidence showing that Khalil was involved in protest negotiations at Columbia, but has not submitted evidence supporting the foreign policy allegation.

“The Rubio letter is the only piece of evidence going to the main charge in this case,” Van Der Hout said Thursday. “There is zero else.”

Van Der Hout also challenged the government’s description of antisemitism.

“What is the antisemitism? It is criticizing Israel and the United States for the slaughtering that is going on in Gaza, in Palestine. That’s what this case is about,” Van Der Hout said.

While ICE maintains that its detention of individuals is “non-punitive,” some immigration attorneys say that the agency is strategically isolating disfavored immigrants from their attorneys, families and support systems.

Khalil is among the first of a string of students or faculty members at college campuses across the country – living in the US as permanent residents or through work or student visas – who have been detained by federal agents as part of the administration’s immigration crackdown. More than 400 students, faculty and researchers have had their visas revoked this year.

Rare immigration law provision

The Trump administration, which accused Khalil of being a Hamas supporter, said it’s acting on a section of US immigration law that provides broad authority to revoke a person’s immigration status if the Secretary of State deems their “activities in the United States would have potentially serious adverse foreign policy consequences” to the country.

“For cases in which the basis for this determination is the alien’s past, current, or expected beliefs, statements, or associations that are otherwise lawful, the Secretary of State must personally determine that the alien’s presence or activities would compromise a compelling U.S. foreign policy interest,” the newly released memo from Rubio reads.

That provision that the Trump administration is trying to use against Khalil – and other activists – is incredibly vague, Cox, the law professor, told CNN.

Cox recently joined a group of 150 immigration lawyers and legal scholars in filing an amicus brief in Khalil’s federal case.

In the years since that provision was created in 1990, the provision was used in just 15 of 11.7 million removal cases, the brief notes. Of those 15, only five involved detention throughout the case and just four ultimately resulted in deportation, the experts noted.

While the authors did not have insight into the details of each case, they said they were unaware of the provision ever before being used against a lawful permanent resident “where the underlying conduct was itself political speech.”

“It may well be that Mr. Khalil’s case is unprecedented in the history of this provision and in the history of the United States. At a minimum, the government’s assertion of authority here is extraordinary—indeed, vanishingly rare,” the brief notes.

With that provision being used against other students swept up in Trump’s immigration crackdown, Cox says the decision made in Khalil’s case Friday could be important for cases to come.

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