The Absurdity of the Ruling Against Mahmoud Khalil

The judge claimed she didn't have the authority to disagree with Rubio's claims against Mahmoud. Actually, her job is to do precisely that.

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On Friday, an immigration judge in Louisiana ruled that the United States government could deport the Palestinian refugee and green card holder Mahmoud Khalil for exercising his First Amendment rights by speaking out against the genocide in Gaza and the support for that genocide by his government and the school at which he was pursuing his graduate studies, Columbia University.

This is far from the end of the fight to keep Mahmoud in the USA with his wife—an American citizen—and the child the couple are expecting later this month. There are already many messages out there supporting Mahmoud and condemning the ruling against him and the slide into authoritarianism that Mahmoud’s draconian persecution represents.

Here, though, I’d like to examine a somewhat more technical—but I think still very important—point, and that is the question of the verdict and the judge’s logic in rendering it.

The limits and powers of an immigration judge

Mahmoud’s case was decided by Judge Jamee Comans, a Louisiana immigration judge. Unlike judges in civil and criminal courts, an immigration judge is not part of the judicial branch of government. They are employees of the executive branch and work under the authority of the Attorney General.

Judge Comans doesn't have jurisdiction over the immensely weighty constitutional questions that are involved in Mahmoud’s case. That is, in fact, the excuse she used in affirming that the government has the right to deport Mahmoud.

But Judge Comans’ authority is based on questions of due process. An immigration judge is there to decide whether the rules are being followed by both the government and the immigrant. And on simple points of due process, this should be a no brainer. Instead, we have a judge with no brain, and even less spine.

The basis for Comans’ decision consisted entirely of a two-page memo Secretary of State Marco Rubio sent to the court. The memo cites no evidence, but merely says that the Department of Homeland Security gave the State Department some information that justified Mahmoud’s deportation. The memo does not elaborate at all on what that information was.

Rubio’s memo draws its power from Section 237 of the Immigration and Nationality Act (INA), which provides that the Secretary can order the deportation of a non-citizen “…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…”

The idea that Mahmoud Khalil had an adverse effect on US foreign policy goals is based ENTIRELY on his exercise of his free speech rights. Mahmoud has never been arrested or charged with a crime in his life. The university actually requested that he be a go-between for them with the protesting students precisely because of his reasonableness and easy-going demeanor.

Comans claims that she does not have the authority to question the Secretary of State’s determination.

That is nonsense. The very beginning of the legal description of immigrant judges’ authority plainly states, “In any proceeding conducted under this part the immigration judge shall have the authority to determine deportability and to make decisions, including orders of deportation…”

It’s clear she did have the authority to decide the merits of the deportation order. She chose not to do so.

Are there constitutional issues at stake?

Again, Comans is correct in asserting that she doesn’t have jurisdiction over constitutional questions. She is not, in the strictest sense of the word, a judge, but rather a special officer tasked with deciding on immigration cases.

But the fact that she hasn't got jurisdiction on constitutional matters doesn't mean those constitutional rights don't exist. On the contrary, it means they do, as they are guaranteed by the Constitution to all persons in the United States, and that most certainly includes permanent residents. That includes Mahmoud’s right to free speech and assembly, and, as the Fourteenth Amendment so helpfully asserts, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The due process clause applies not only to citizens but to “any person” under the rule of U.S. law, a fact the Supreme Court has reinforced repeatedly over the years.

The default, if a person with authority has no jurisdiction over constitutional questions is the protection of constitutional rights. It is the government that bears the burden of proof to establish that an immigrant or legal resident has violated the law or, in this case, to have so imperiled U.S. foreign policy goals as to be eligible to have their residency status revoked and face expulsion.

It is the government, even in this case, that must establish that mere speech on a college campus can threaten American foreign policy concerns in such a significant way that we disregard the First Amendment and punish that speech. It must prove that Mahmoud represented such a threat that the government was justified in kidnapping a permanent, lawful U.S. resident who has never been accused, much less convicted of even the most minor criminal offense and separating him from his wife and soon-to-arrive child, both of whom are American citizens.

Comans’ decision could have dire implications even beyond Mahmoud Khalil’s case

This judge knows that the government's case is absurd on its face and that it has offered no evidentiary support for its charges against Mahmoud. She knows that Mahmoud has not gotten due process based on any legitimate argument to revoke his green card and expel him. She could have easily ruled in just such a manner. Her refusal may have been motivated by cowardice, by prejudice, or by stupidity. It was not motivated by consideration of the law or of relevant immigration standards.

If Comans’ ruling stands, it establishes a precedent that says the government can meet the legal requirements for deporting a permanent resident based only on a letter from the Secretary of State that says, without any supporting evidence or testimony whatsoever, that the immigrant’s presence and activities in the United States jeopardize American foreign policy goals.

The accusation against Mahmoud, on its face, demands the highest bar for proof. There is no need for it if the person in question is engaging in espionage, or similar criminal activity. We have laws and immigration regulations to cover that. The same is true for someone acting clandestinely as a foreign agent, or in any other way obstructing American foreign policy. Constitutionally protected speech does not fall into that category.

Comans is also setting a precedent regarding due process, as she is effectively saying that a wild accusation without substantiation satisfies that requirement. The opportunity to use that against anyone who is not a full citizen of the United States would be absolutely open, and, eventually, would be used as precedent for doing the same to citizens.

Even worse, the notion that an accusation that protected speech "enables antisemitism," is an absurdity, and one that stretches the law that Rubio is using beyond any reasonable standard.

Once and for all, let this be made clear: antisemitism has NO INHERENT CONNECTION to criticizing Israel's genocide of Palestinians nor of demanding that the US and Columbia University stop supporting said genocide.

Indeed, antisemitism has no inherent connection to criticism of Israel at all. That is not to say that someone who is seeking to spread anti-Jewish hate might not use criticism of Israel to express it. If someone’s only problem with Israel is that it is a majority Jewish country, rather than it being an ethnocratic, settler-colonial, apartheid state whose flouting of international law and list of human rights crimes beggars the imagination, that would be antisemitism. But criticism of Israel, including objecting to its ethnocratic nature and extremist and supremacist nationalism is perfectly legitimate. That it might make some uncomfortable does not change it from legitimate political criticism to antisemitism.

To codify criticism of Israel in immigration regulations, to code criticism of Israel as antisemitism for the purpose of using American foreign policy as a cudgel against immigrants is as antisemitic an act as any currently being engaged in by any state or large organized body in the world. Its use in such a manner doesn’t just risk endangering Jews; history shows conclusively that treating Jews as an exceptional case in such a manner is the primary way European rulers intentionally fanned the flames of antisemitism to protect themselves at our expense for centuries.

Finally, the issue of antisemitism is not a foreign policy issue. It's a domestic one, and hence it doesn't qualify under the antiquated law that Rubio is using. Calling “the fight against antisemitism” a foreign policy issue, especially when that fight, as it is being pursued, is opposed by a wide spectrum of American Jews who are dedicated to fighting ACTUAL antisemitism rather than this made-up version strains credulity beyond all reason.

Substantive due process is clearly within the mandate of an immigration judge. Comans’ contention that she doesn’t have the authority to disagree with Rubio on due process is definitionally wrong, for the reasons I noted earlier. Indeed, if she were right, it basically means the judge is useless; who, other than government officials, can violate due process in these cases? If she can’t rule on that, what is she doing there? Again, constitutional rights are presumptive. To override them, it is the government that has to make the case, not the immigrant that has to argue why their rights matter.

On clear due process grounds, this case doesn't come close to meeting any reasonable standard. Thus, Judge Comans' excuse that she doesn't have jurisdiction over constitutional issues is true but wholly irrelevant to the matter of Mahmoud Khalil's right to his freedom and well-earned ability to stay in this country as a permanent resident, a status that required years of effort to attain.

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