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If the Trump administration had a solid case for arresting Columbia University protest organizer Mahmoud Khalil, why did it have to resort to an end run around the law governing revocation of a green card by citing an obscure section of a 1952 statute? That question is at the heart of a report from Forbes Magazine under the headline "Can Marco Rubio Revoke Mahmoud Khalil’s Green Card? What To Know About Little-Known Law Used To Justify Protester’s Arrest."
Perhaps of more importance in the long run, why was Trump willing to trample the First Amendment of the U.S. Constitution, prompting one news outlet to report under the headline "The arrest of a pro-Palestinian immigrant should worry every American;You don’t have to agree with Mahmoud Khalil to care about what happens to him (more on that in a moment).
First, let's examine the Forbes article, which begins with the following summary from senior news reporter Alison Durkee:
Topline
The Trump administration used a little-known provision of federal immigration law to arrest pro-Palestinian protester Mahmoud Khalil, the White House confirmed Tuesday, giving Secretary of State Marco Rubio broad authority to declare individuals “deportable”—though the administration will still have to argue in court why Khalil poses a threat.
Did someone in the administration pick a law that (they hope) will allow Rubio to do Trump's dirty work -- trying to justify actions that cannot be justified under U.S. law? That's how it appears, as Durkee reports:
Key Facts
The Trump administration arrested Khalil, a permanent resident and student at Columbia University, on Saturday after Khalil helped lead the university’s pro-Palestinian protests—with President Donald Trump claiming he’s “a Radical Foreign Pro-Hamas Student” and his detainment is “the first arrest of many to come.”
Confirming reports from The New York Times and CNN, White House Press Secretary Karoline Leavitt said Khalil’s arrest was justified under a provision of the Cold War-era Immigration and Nationality Act of 1952 (INA), which allows the Secretary of State to declare someone “deportable” if they have “reasonable ground to believe” that the immigrant’s “presence or activities in the U.S. … would have potentially serious adverse foreign policy consequences for the United States.”
That allows the Trump administration to push for Khalil’s deportation without formally charging him with a crime—which is typically what’s required to revoke someone’s green card—but the activist’s case will still have to play out in court, where the administration will have the burden of proof in showing why Khalil poses a foreign-policy threat to the U.S. and should be deported.
Confirming reports from The New York Times and CNN, White House Press Secretary Karoline Leavitt said Khalil’s arrest was justified under a provision of the Cold War-era Immigration and Naturalization Act of 1952 (INA), which allows the Secretary of State to declare someone “deportable” if they have “reasonable ground to believe” that the immigrant’s “presence or activities in the U.S. … would have potentially serious adverse foreign policy consequences for the United States.”
That allows the Trump administration to push for Khalil’s deportation without formally charging him with a crime—which is typically what’s required to revoke someone’s green card—but the activist’s case will still have to play out in court, where the administration will have the burden of proof in showing why Khalil poses a foreign policy threat to the U.S. and should be deported.
Rubio will have to provide “clear and convincing evidence” in court that Khalil “is this massive security problem,” Bill Hing, associate dean for faculty scholarship at the University of San Francisco School of Law and founder of the Immigrant Legal Resource Center, told Forbes Tuesday—which Hing predicted would be difficult to prove, given the evidence that’s public about Khalil and his protesting activities.
Citing anonymous sources, The Times reports the Trump administration intends to justify invoking the provision by arguing the U.S. has a policy to combat antisemitism and “it would undermine this policy objective to tolerate Mr. Khalil’s continued presence in the United States.”
Hing and legal experts cited by The Times said this provision has rarely been invoked in past immigration cases, with Hing suggesting the administration may have had an easier time in court arguing Khalil promoted or supported a terrorist group, which could also be grounds for losing his green card and would have required a lower burden of proof.
Trying to prove Khalil is a national-security risk will be a tall order, one expert says. Durkee addresses a number of issues surrounding the standard Team Trump will have to meet. She writes:
What Has The White House Said About Justifying Mahmoud Khalil’s Arrest?
“Secretary Rubio reserves the right to revoke the visa of Mahmoud Khalil,” Leavitt said at a press briefing Tuesday, adding that under the Immigration and Nationality Act, “the Secretary of State has the right to revoke a green card or a visa for individuals who … are adversarial to the foreign policy and national security interests of the United States of America.”
What Has Marco Rubio Said About Mahmoud Khalil?
“We will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported,” Rubio said on X Sunday, sharing a link to an article about Khalil’s arrest. He has not otherwise commented on the case or explicitly said he personally ordered the activist’s green card to be revoked.
Crucial Quote
“What they're doing is rare, but their burden of proof is high,” Hing told Forbes about the Trump administration using the “foreign policy” justification for Khalil’s arrest. “It'll be interesting to see what they can come up with, because on the face of what's been public so far, there's no evidence that he's a national security risk or that he's supporting a terrorist organization.”
Team Trump will have to clear several hurdles to make anything stick to Khalil. One wonders if the administration knew Khalil was a permanent resident with a green card before the arrest was ordered. A less hot-headed president -- one with more knowledge of, and respect for, the law -- might have decided going after Khalil was a bad idea. In my view, the only certainty at the moment is that Trump has gift-wrapped a strong civil-rights lawsuit for Khalil, one that could put a significant amount of money in the young man's pocket. The ACLU has agreed to represent Khalil, so he has the kind of legal firepower that might make Trump wish he had approached this situation with a cooler head. (Question: How much is Trump going to cost the U.S. government, and U.S. citizens, by taking ill-considered actions that produce defendants armed with lawsuits? Will Elon Musk and DOGE be able to identify enough savings to cover the costs of judgments against Trump in court? Heck, they might be lucky to break even -- and that assumes DOGE can find any actual fraud that, if stamped out, will lead to savings. If Trump follows through with his vow to order "many" protester arrests, which likely will be unlawful, the bill for you and me could get mountainous. )
What is coming in the Khalil case? Durkee takes a look:
What Will Happen To Mahmoud Khalil Next?
Rubio declaring Khalil “deportable” does not mean the Trump administration can unilaterally deport him, as the activist is still entitled to due process and the government must prove in court why he should be deported. A federal judge has already blocked Khalil from being deported while the case moves forward. It’s unclear how long it will take for those legal proceedings to play out: The immigration legal process could potentially take years, American Immigration Council fellow Aaron Reichlin-Melnick said on X, though Hing told Forbes the government will likely try to expedite this case and hold a hearing potentially within the month, as they “don't want to look like they're dragging their feet.” Khalil’s attorneys have also asked the court to release Khalil from detention and have him moved back to New York from Louisiana, where he is now being detained. Khalil is entitled to a bond hearing that would decide whether he can be released from detention while the case over his deportation moves forward, at which the Trump administration would have to prove that there’s a risk of Khalil fleeing or that he’s a danger to society in order to justify him remaining in detention. That could result in Khalil being released from detention within a few days, Hing said.
What To Watch For
The Trump administration could continue to use the provision allowing Rubio to order certain people “deportable” as it goes after more protesters who aren’t U.S. citizens, which Republican leaders have vowed to do. “If you are on a student visa and you're an aspiring young terrorist who wants to prey upon your Jewish classmates, you're going home,” House Speaker Mike Johnson, R-La., said Tuesday when asked about Khalil’s arrest, even though the activist was on a green card—which grants the right to permanent residency, unlike a student visa. Hing predicted to Forbes that the administration targeting Khalil will lead to a “chilling effect” among other noncitizen student protesters, saying the activist’s arrest has already “sent a message.” “The message [that students are] getting and receiving is, I better be careful,” Hing said. “And so I might want to restrain myself from going out and doing what I did last spring.”
Key Background
Federal immigration agents arrested Khalil at his Columbia-owned residence Saturday night, detaining him initially in Elizabeth, New Jersey, before transferring him to a detention center in Louisiana. There is no evidence of Khalil committing a crime or any sort of violence, but he was one of the leaders and public faces behind Columbia’s pro-Palestinian protests last year, which became an epicenter for college demonstrations that took place across the country. Those protests sparked a backlash from Republicans and some school alumni, who argued the protesters’ rhetoric was antisemitic. Khalil’s arrest came days after the Trump administration announced it was revoking $400 million in federal funds to Columbia over the school’s purported “continued inaction in the face of persistent harassment of Jewish students,” and after Trump said on Truth Social last week his administration would “find, apprehend, and deport” students who engaged in “pro-terrorist, anti-Semitic, anti-American activity.” The activist’s arrest has sparked protests and widespread condemnation from civil rights organizations, Democrats and even some on the far right, who argue Khalil is being prosecuted for exercising his First Amendment rights. “This arrest is unprecedented, illegal, and un-American,” Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said in a statement, arguing the Trump administration was “claiming the authority to deport people with deep ties to the U.S. and revoke their green cards for advocating positions that the government opposes.”
As for First Amendment issues surrounding the Khalil case, Nicole Narea examines those in a piece at Vox under the headline "The arrest of a pro-Palestinian immigrant should worry every American":
Civil rights advocates are accusing the Trump administration of trampling the First Amendment following the arrest of an immigrant who was involved with pro-Palestinian protests at Columbia University.
US Immigration and Customs Enforcement reportedly showed up at Mahmoud Khalil’s university-owned apartment in Manhattan on Saturday and arrested him without telling him or his pregnant US citizen wife why. They later informed his attorney that they were revoking his green card, claiming that Khalil had “led activities aligned to Hamas” but not charging him with a crime. On Monday, a federal judge in New York temporarily blocked Khalil’s deportation amid a legal battle over his future.
The case may test First Amendment protections, especially for noncitizen legal residents. But it could also have broad implications for every American.
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