As I noted elsewhere on March 11, the Trump regime, via Secretary of State Marco Rubio, is seeking to deport Palestinian political activist and US legal permanent resident Mahmoud Khalil on the grounds that his “presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States.” The Department of Homeland Security (DHS) made Khalil’s Notice to Appear summons public today. The language in Khalil’s Notice to Appear is drawn directly from Section 237(a)(4)(C)(i) of the Immigration and Nationality Act (INA), as amended.
Earlier today, the New York Times reported that Khalil’s lawyers had effectively been denied the opportunity to speak privately with their client by DHS officials. Published reports indicate that Khalil was arrested at his New York home, transferred temporarily to a DHS facility in New Jersey, and then rendered to yet another facility in Louisiana. While any actual deportation proceeding for Khalil would take place before an immigration judge, his treatment and statements by Trump and other of his officials will almost certainly figure in First Amendment and related due process claims Khalil’s lawyers seem likely to file.
It’s worth noting that the INA provision being employed against Khalil has rarely been used, and its sweepingly broad language may well be challenged on constitutional grounds.
Trump’s own statement that Khalil’s deportation under Section 237(a)(4)(C)(i) was “to be the first of many” was inherently prejudicial and would also seem to raise potentially serious constitutional and statutory red flags that might significantly impact judicial review of Khalil’s case. Such a statement suggests a predetermined enforcement campaign targeting multiple individuals rather than individualized determinations based on specific evidence.
The 1886 Supreme Court decision in Yick Wo v. Hopkins, 118 U.S. 356, established that arbitrary enforcement, even of facially neutral laws, violates due process under the Fourteenth Amendment. A little-used statutory provision now being employed against at least one Palestinian political activist and possibly in the future other Palestinian political activists would seem to be heading into “arbitrary enforcement” territory.
The First Amendment implications of Trump-directed actions against Khalil are also ominous.
In the Times piece referenced above, the paper noted that White House spokesperson Karoline Leavitt had said on Tuesday that “Mr. Khalil had sided with terrorists and accused him of participating in protests at which pro-Hamas fliers were handed out. She did not respond to an email requesting clarification as to whether Mr. Khalil passed out the fliers himself.”
In its 2010 decision in Holder v. Humanitarian Law Project, the Supreme Court made clear that the federal “material support” statute governing terrorism investigations and crimes (18 U. S. C. §2339B(a)(1)) “does not prohibit independent advocacy or membership” in a group alleged or known to be a U.S. government designated terrorist organization. To date, federal officials have produced no documentary evidence that Khalil’s conduct has involved anything other than the political advocacy the nation’s highest court has said is First Amendment-protected speech.
If Justice Department officials have evidence that Khalil is an agent of a foreign power or acting on the basis of directions received from a foreign power (read Hamas), then they would be on far stronger ground in this case. They have produced no such evidence, and given Trump’s intemperate public statements about Khalil and pro-Palestinian activists generally, there’s at least a fair chance that the federal government’s case against Khalil will get above-average scrutiny from any federal judge involved in this case. And it should.