from the chilling-effects dept
We’ve written a few times about the case of Mahmoud Khalil, a Columbia University grad student who was one of the first people detained by ICE and told he was being kicked out of the country solely because Marco Rubio said he doesn’t belong here. No due process. No hearing. Just Rubio’s arbitrary say-so.
A federal court has now rightly ruled that this is all nonsense, and the government has no legitimate claim to detain or deport him on this basis. Though, the judge immediately gives the US government 40 hours to appeal, so Khalil is not yet free.
If you don’t recall, Khalil was seized by ICE agents and pulled away from his pregnant, American-citizen wife. The agents initially told him his visa had been revoked—apparently not realizing he was a green card holder, not a visa holder. When confronted with this basic factual error, they pivoted on the spot to claim his green card was also revoked, sending the government scrambling to reverse-engineer some legal justification for what they’d already done.
Judge Michael Farbiarz finds the entire argument wholly unconvincing. Indeed, he notes that it seems clear that the decision to detain and deport Khalil appears to be wholly arbitrary and/or based on his protected First Amendment activity (he was active in protesting Israel’s actions against Gaza).
Faced with the obvious First Amendment problem, the government tried to argue that Khalil’s detention wasn’t really about his protest activities. Instead, they claimed it was about something a post-hoc fishing expedition turned up: an alleged minor paperwork discrepancy in his green card application.
The judge wasn’t buying it. If this paperwork issue was really the driving force, why is Khalil being detained when others with similar alleged discrepancies aren’t? As the court notes:
Maybe the Petitioner would be detained, in any event, on that second basis. And if so, it might be argued, there would not be any incremental chilling effect from detaining the Petitioner for an additional reason, the Secretary of State’s determination.
But that argument does not work.
The reason: the evidence is that lawful permanent residents are virtually never detained pending removal for the sort of alleged omissions in a lawful-permanent-resident application that the Petitioner is charged with here. And that strongly suggests that it is the Secretary of State’s determination that drives the Petitioner’s ongoing detention — not the other charge against him.
In other words, the government’s paperwork excuse is bullshit. If people aren’t normally detained for these alleged omissions, then why is Khalil? The answer is obvious: the only actual basis the government is using to detain Khalil is Rubio’s “determination” that his free speech activities were somehow unwelcome here.
From there, the court finds that Rubio’s arbitrary determination has already harmed Khalil, costing him a job, harming his reputation, and chilling his speech. Indeed, the court notes that the government doesn’t contest any of this.
The judge then makes the obvious point about where the public interest lies:
“[T]he public has no interest in the enforcement of what is very likely an unconstitutional statute.” Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1290 (11th Cir. 2013); accord, e.g., Schrader v. Dist. Att’y of York Cnty., 74 F.4th 120, 128–29 (3d Cir. 2023); Chamber of Com. of U.S. v. Edmondson, 594 F.3d 742, 771 (10th Cir. 2010).
And on the other side of the ledger, there is a chilling effect on speech. See Amalgamated Transit Union Loc. 85, 39 F.4th at 109 (“There is a strong public interest in upholding the requirements of the First Amendment. And, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.”) (cleaned up).
The government will almost certainly appeal, so this isn’t over yet. But it is yet another example of a court looking at what the Trump regime is doing and saying “what the fuck, that’s not right…” And it still won’t take back the many months that Khalil was locked up for no good reason, missing the birth of his child, and losing out on many opportunities.
Filed Under: chilling effects, deportation, detained, donald trump, free speech, mahmoud khalil, marco rubio, protests
