Trump’s policy to deport activists is unconstitutional, Khalil’s lawyers say

New York: The Trump administration’s policy of deporting some foreign nationals who participate in pro-Palestinian protests is unconstitutional, lawyers for a detained Columbia University student said. In their first filing since US authorities articulated the legal basis for arresting Mahmoud Khalil, his lawyers urged US District Judge Jesse Furman in Manhattan to immediately release him from immigration detention because his free speech rights were violated. “The government’s unlawful policy of targeting noncitizens for arrest and removal based on protected speech is…viewpoint discrimination in violation of the First Amendment,” Khalil’s lawyers, led by Amy Belsher of the New York Civil Liberties Foundation, wrote in a Thursday night court filing.

A spokesperson for the Justice Department, which is representing the government in court, said in a statement, "Being in the United States as a non-citizen is a privilege, not a right ... Mahmoud won’t be missed.” Khalil’s case has become a flashpoint in Republican President Donald Trump’s pledge to deport some participants in the pro-Palestinian protests that swept US college campuses after militant group Hamas’ October 2023 attack and Israel’s subsequent military campaign.

Earlier this week, Justice Department lawyers representing the government said Khalil, 30, was subject to deportation because Secretary of State Marco Rubio had determined that his presence or activities in the country could have “serious adverse foreign policy consequences for the United States.”

The provision the government cited in justifying Rubio's ability to declare Khalil deportable is part of the 1952 Immigration and Nationality Act and has rarely been invoked, legal experts have said, meaning there is little precedent for courts to turn to in determining its constitutionality. Khalil’s lawyers said that statute was not meant to silence dissent.

The government did not elaborate in court papers on how Khalil could harm U.S. foreign policy. Trump, without evidence, has accused him of supporting Hamas, and Rubio told reporters earlier this week that noncitizen protesters who disrupt campus life should have their visas revoked.

In their filing, Khalil's lawyers sought to push back on the Trump administration's portrayal of their client. They called him a "mediator and negotiator" and pointed to a spring 2024 interview with CNN in which he said, "I believe that the liberation of the Palestinian people and the Jewish people are intertwined."

Khalil, who is of Palestinian descent and became a US lawful permanent resident last year, was arrested by Department of Homeland Security agents on Saturday night at his university residence in Manhattan. The government said he was then brought to an immigration detention center in New Jersey and later flown to Louisiana, where he is currently being held. Furman has temporarily blocked Khalil’s deportation while his lawyers’ challenge to the legality of his arrest, known as a habeas corpus petition, plays out. Even before the block, there was no indication the student activist’s deportation was imminent.

In a court filing on Friday, Khalil's lawyers said they planned to file a further motion later in the day asking Furman to grant him bail. They said if he continues to be detained, he could miss the birth of his first child. Khalil's wife, an American citizen, is eight months pregnant.

Epicenter of protests

Khalil's case could ultimately test where courts draw the line between protected speech guaranteed to citizens and noncitizens alike under the US Constitution’s First Amendment, and the executive branch’s view that some protests in the US can undermine foreign policy.

Columbia, the epicenter of anti-Israel protests at dozens of US college campuses last spring, has become a prime target of the Trump administration, which has accused it of an inadequate response to antisemitism on campus and allowing Jewish students to be intimidated.

Protest organizers say criticism of Israel’s military assault on Gaza is being wrongly conflated with antisemitism.

Last week, the federal government canceled about $400 million in grants and contracts to Columbia because of what it described as antisemitism. On Thursday, Department of Homeland Security agents searched two student residences at Columbia pursuant to judicial warrants, its president said, though no one was arrested and no items were removed. The university has expelled some students who occupied a university building during a protest last spring.