Two weeks after Mahmoud Khalil, a legal permanent resident and pro-Palestinian activist at Columbia University, was detained and set for deportation, the government quietly added new allegations to its case.
Secretary of State Marco Rubio had first invoked a rarely cited law, saying Mr. Khalil’s presence in the United States facilitated the spread of antisemitism.
The new allegations were more mundane: that Mr. Khalil had failed to disclose his membership in several organizations, including a United Nations agency that provides relief to Palestinian refugees, when he applied for permanent residency.
On Wednesday, the government’s strategy appeared to have worked. Judge Michael E. Farbiarz of Federal District Court in New Jersey declined to release Mr. Khalil from an immigration facility in Louisiana, even though he found that the use of the foreign policy law in Mr. Khalil’s detention was most likely unconstitutional.
Mr. Khalil’s case is playing out in two courts. Judge Farbiarz has the power to free him and to determine the broad constitutionality of the administration’s attempts to deport him. An immigration court judge in Louisiana is considering the more narrow question of whether the United States has satisfied the basic legal requirements for a deportation.
Mr. Khalil’s lawyers had sought a preliminary injunction that, in addition to ordering his release, would block the Trump administration from using the law to deport other noncitizens who had spoken out in support of Palestinians, or had been critical of Israel.
In his 101-page ruling, Judge Farbiarz wrote that Mr. Khalil was “likely to succeed” on the argument that the federal statute being used was “unconstitutionally vague.”
The foreign policy law was “unconstitutional as applied” to Mr. Khalil, who “acted solely within the United States,” Judge Farbiarz wrote. The judge wrote further that Mr. Rubio had failed to “affirmatively determine” that Mr. Khalil’s actions had affected U.S. relations with another country. Deporting him under the statute, the judge wrote, would be “unprecedented.”
But he stopped short of freeing Mr. Khalil, writing that Mr. Khalil had yet to put forth evidence about “the various other things he must prove.”
Mr. Khalil’s defense, Judge Farbiarz wrote, had not made a “substantial argument” on the second set of allegations against him. In fact, he wrote that Mr. Khalil was “not likely to succeed” in challenging the efforts to remove him for failing to disclose his membership in certain organizations.
In a statement, Mr. Khalil’s lawyers cast the decision as a victory.
“The district court held what we already knew: Secretary Rubio’s weaponization of immigration law to punish Mahmoud and others like him is likely unconstitutional,” they wrote. “We will work as quickly as possible to provide the court the additional information it requested supporting our effort to free Mahmoud or otherwise return him to his wife and newborn son.”
Mr. Khalil, who was detained in March, was a prominent leader of pro-Palestinian demonstrations on Columbia University’s campus last year. He is being held in a facility in Jena, La., where an immigration judge in April ruled that the Trump administration had met the basic legal requirements to deport him on the foreign-policy accusation. That judge, Jamee E. Comans, has not yet ruled on the second set of allegations against Mr. Khalil.
A hearing last week afforded him the chance to change her mind. Mr. Khalil, who recently saw his 1-month-old son for the first time over the objections of the government, testified that deportation could mean death for him.
After Mr. Khalil was detained, a Homeland Security Department spokeswoman claimed that he had led activities “aligned to Hamas.” Karoline Leavitt, the White House press secretary, accused him of “siding with terrorists” and of participating in protests at which “pro-Hamas” fliers were handed out.
Those allegations have not been substantiated. Evidence submitted in Mr. Khalil’s immigration case revealed no clandestine support for Hamas. His lawyers have pointed to comments he made on CNN saying that “antisemitism and any form of racism has no place on campus and in this movement.”
Near the end of Wednesday’s written opinion, Judge Farbiarz suggested that in detaining Mr. Khalil, Mr. Rubio’s office had enforced the law in a cavalier way. Arbitrary enforcement, the judge wrote, can be a danger when it “veers too far away from the standard set down by Congress.”
“Here, the Secretary’s did,” he wrote.
Santul Nerkar is a Times reporter covering federal courts in Brooklyn.
Jonah E. Bromwich covers criminal justice in the New York region for The Times. He is focused on political influence and its effect on the rule of law in the area’s federal and state courts.
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