Your Introduction to Mahmoud Khalil’s Deportation Case and the Legal Battle Ahead

This post focuses on the fundamentals of Mahmoud Khalil’s case, including the core legal and ethical questions, why attorneys are already calling it "sloppy", and why this is really about Marco Rubio.

The arrest, detention, and possible deportation of Palestinian green card holder Mahmoud Khalil is sending shockwaves throughout the immigration law community as attorneys begin to unpack the sketchy legal justifications involved in the case, expose shoddy paperwork filed by immigration officials, and warn of the implications of Mahmoud’s arrest for other lawful immigrants. Mahmoud is a lawful immigrant who has been neither charged with a crime nor alleged to have committed any crime; instead, the entire basis of his detention and possible deportation is Mahmoud’s role in student protests at Columbia University.

This post is not a hot take. Instead, this post will give you a foundation for understanding what’s going on so that you have a basis for following what will undoubtedly be one of the most significant cases in recent history. I realize that for many of you, any story associated with the war in Gaza or with activism in the United States surrounding Israel’s role in the war might feel too heavy or too politically charged to read about. I empathize with you. That’s why I am not interested in rehashing the entire public debate over the ongoing violence in the Middle East.

Instead, just as I have always promised you in this newsletter, I aim to make the immigration system more legible to you, regardless of your politics, by emphasizing what is interesting and important rather than drawing you into polarizing debates you can find elsewhere. That doesn’t mean that I don’t have a values-based perspective on world events, it just means that I would rather help you understand how the immigration game works rather than convince you to play for my team.

The fact that I feel the need to include this preamble is the first lesson about Mahmoud’s case. Mahmoud’s identity as a Palestinian and the alleged basis for deportation is designed to provoke maximum indifference and polarization so that the underlying legal and institutional mechanisms can be established and potentially expanded to others. That’s why I want to bring you along with me to examine the mechanics of how Mahmoud’s case works through the eyes of immigration experts who are still piecing together this puzzle.

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Let’s start with three general observations to orient ourselves to this case.

First, Mahmoud Khalil has quickly become what I call a “high profile deportation case.” High profile cases like those of Emma Goldman, John Lennon, activist Ravi Ragbir, or President Obama’s uncle Onyango Obama tend to attract disproportionate attention and resources, and serve as a lightning rod for public debate. Sometimes high profile cases are simply the result of famous people getting caught up in regular immigration paperwork issues, while other times the government’s attempt to make a singular example of someone is what launches the case into the public eye. The reason it’s important to recognize this as a high profile case is that high profile cases often deviate from the trajectory of more “routine” cases, and this, in turn, changes how we interpret various legal and political moves in the case. To give one concrete example, high profile cases tend to attract the best (and usually the most expensive) legal minds, which is not the kind of representation that most people can attract or afford.

Second, a dominant theme of the analysis and interpretation of Mahmoud’s case is how his case both is and is not unique. This calculation of the “uniqueness” of Mahmoud’s case says as much about the identity and expertise of the person making it as it does about Mahmoud’s case itself. Here’s what I mean. Because the immigration debate has been dominated by the phrase “illegal immigration,” many people will be shocked to learn that immigrants who are in the country lawfully can be stripped of their status and deported with remarkably few protections. It’s not just immigrants in the country unlawfully that are arrested and detained, green card holders and even U.S. citizens are arrested and detained by immigration authorities more often than most people are aware. And the recent legal history of these less-well-known enforcement practices features Palestinians as targets. At the same time, the specific law that might allow the U.S. to deport Mahmoud is extraordinarily rare in recent history. So you can see how Palestinians in the United States might not see Mahmoud’s treatment as unique, and attorneys might not see the detention of a green card holder as unique—even if the facts of the case (especially the lack of criminal charges) strike the majority of Americans as outside the range of cases they are used to reading about.

Third, like most high profile deportation cases, the thing you think the case is about is not what the case is about. To put it differently, while it is true that the social context for this case includes student activism, this fact is, in a way, the least interesting technical detail about the case. This is because if the underlying legal mechanism for Mahmoud’s possible deportation is allowed to stand, it can easily be expanded beyond the context in which the case originally emerged and any future expansion of this draconian power will be further aided by our collective indifference or even active support of Mahmoud’s treatment. This is why I find it fascinating to read and listen to immigration attorneys who are analyzing this case as it unfolds and as we receive more documents about the case. There’s more to learn and surprises along the way. And this is why I continue to emphasize curiosity as a powerful tool for fostering productive conversation.

With the groundwork laid, here are a few emerging themes in Mahmoud’s case so far.

As you might recall, a Notice to Appear (NTA) is the document that begins removal proceedings (i.e., the deportation process in court) for non-citizens. Basically it’s a type of civil charging document that says that the government wants to try to deport someone. The NTA requires the government to allege why they think the subject of the NTA should be deported. Let’s look at Mahmoud’s NTA more closely, because it’s a mess.

Allegation #1 and #2 say that Mahmoud is not a citizen of the United States and that he is from Syria (where he was born to Palestinian refugees) and has Algerian citizenship. That’s standard stuff. Since immigration laws only apply (mostly) to non-citizens, the government needs to start by showing that the person is subject to immigration laws. Nothing unusual there.

Allegation #3 is where it gets messy. Allegation #3 is where it gets sloppy. Allegation #3 claims that Mahmoud entered at an unknown place and manner OR that he adjusted status under section 212(a)(3)(C). Attorneys have had a field day with this. First, DHS checked the box above that says that Mahmoud had been admitted and is now removable, contradicting the first part of allegation #3. Second, attorneys have pointed out that the two parts of allegation #3 are contradictory. Some speculate that whoever prepared the NTA was using macros to insert pre-formatted text and sloppily forgot to delete the first half of allegation #3. Third, 212(a)(3)(C) has nothing to do with “adjustment of status”; it’s a bar to entry for giving material support to terrorism. Adjustment of status is section 245(a). (Thanks to the amazing Ava Benach for clarifying these points online.)

Mahmoud's Notice to Appear

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In short, the NTA that was filed in this enormously high profile test case is a mess. Like I said above, whether you view this as unique or not depends on how familiar you are with DHS’s failure over the years to properly or completely fill out NTAs. For example, an OIG report from 2021 found that 20 percent of NTAs issued by CBP contained significant errors, and ICE has been observed issuing NTAs with fake times and dates of hearings. You get the idea. But to screw up such a high profile deportation case and then to sign off on the NTA, as Supervisory Special Agent Timothy Moran did, feels like the kind of bureaucrat complacency that emerges from a lack of meaningful accountability.

Now we’re getting to the meat of the matter. The final allegation, allegation #4, says, “The Secretary of State has determined that your presence or activities in the United States would have serious adverse foreign policy consequences for the United States.” This refers to section 237(a)(4)(C)(i), a section of the Immigration and Nationality Act (INA) that lists grounds for deportability and clearly includes a provision that appears to give the Secretary of State the power to make someone deportable for vague “foreign policy” reasons.

Secretary of State Marco Rubio has already chimed in on X, claiming that the administration “will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.” No evidence has been provided to date that Mahmoud was a supporter of Hamas and other than public statements, that government has not actually even alleged this. In a way, the case of Mahmoud is not really about Mahmoud—it’s about Marco Rubio and whether you think Marco Rubio should have the power to deport anyone that Trump tells him to, including lawful green card holders.

But do they need to allege anything at all or provide any evidence of these allegations? Or can the Secretary of State of the United States determine, on a whim and without evidence, that someone’s mere presence in the country undermines foreign policy and therefore can be stripped of their status and deported? In truth, even though we like to say that Congress is the branch that makes the laws, the laws that Congress made give the Attorney General, the Secretary of State, and ultimately the President of the United States an enormous amount of latitude in areas of immigration law. (See The President and Immigration Law by Adam Cox and Cristina Rodríguez for a great discussion of this.)

So is that it? Is Mahmoud toast? My colleague Ahilan Arulanantham at UCLA and Adam Cox at NYU writing for Just Security say, not so fast. In their excellent and authoritative legal analysis of where things stand, they point out that the provision under which the Trump administration is attempting to deport Mahmoud has already been ruled unconstitutional because it is so vague and expansive that, if allowed to stand, it would give the Secretary of State unlimited authority to deport anyone at any time—a clear violation of any sense of due process. I’ll refer to you their article for more discussion of the legal history, but let’s just note that there is a lot of tarmac left to Mahmoud’s case before it takes off and it could very well end up before the Supreme Court. On the question of how to place Mahmoud’s case in the United States’s history of exercising this particular law to deport people, they have this to say:

“Whatever happens next, we can already say that Khalil’s case involves an assertion of government power over lawful permanent residents far beyond what we have seen in decades, if ever.”

—Ahilan Arulanantham and Adam Cox

That’s the legal side of things. The larger question looming over the entire case is whether the Trump administration’s targeting of Mahmoud represents a return to the longstanding yet overlooked practice of targeting immigrants based on their politics and their exercise of free speech rather than criminal activity. Julia Rose Kraut wrote an entire book on this that I only started reading yesterday titled Threat of Dissent A History of Ideological Exclusion and Deportation in the United States. In it, Kraut describes the history of the political repression of immigrants in the United States and the chilling effect it has not only on immigrants’s ability to exercise free speech. As she emphasizes, this is not limited to the McCarthyist past, but is very much baked into immigration laws today. She concludes, quite ominously:

“An under­ lying perpetual fear of subversion, the perception of foreigners as the source of subversion, and the use of ideological exclusion and deportation as a tool of po­liti­cal repression are not relegated to the past. While the persons feared, the beliefs, expressions, and associations deemed subversive, and the methods and technology used have shifted over time, the perceived threat of dissent remains.” —Julia Rose Kraut

Like high profile politically motivated deportation cases in the past, Mahmoud’s case is already prompting widespread concerns about what this means for civil rights beyond Mahmoud and even beyond immigrants. Adam Serwer writing for The Atlantic crystallizes the argument that I have seen a lot of immigration attorneys make: Mahmoud is a test case. Let me reiterate an earlier point: if we see Mahmoud’s case as being about his own actions surrounding the Columbia student protests, it’s easy to think that this case is limited to an individual or to other students in a similar situation. That would certainly be cause for concern in itself, don’t get me wrong. But if we understand Mahmoud as a test case, that means that the Trump administration is trying to set a precedent that will take flight from its original context and could be exercised as part of the broader retaliatory project that he promised on the campaign trail when he described himself as his supporters’ “retribution.”

If this “retribution” continues, Adam Serwer worries that it won’t stop with immigrants.

“It does not matter if you approve of Khalil’s views. It does not matter if you support the Israelis or the Palestinians. It does not matter if you are a liberal or a conservative. It does not even matter if you voted for Trump or Kamala Harris. If the state can deprive an individual of his freedom just because of his politics, which is what appears to have happened here, then no one is safe. You may believe that Khalil does not deserve free speech or due process. But if he does not have them, then neither do you. Neither do I.” —Adam Serwer, The Atlantic

There are a lot of other details here that I wish I had time to explore at greater length. It appears that ICE arrested Mahmoud without so much as a warrant, raising questions about whether it was a legal arrest in the first place. Once detained, Mahmoud was moved to a rural detention center across the country in Louisiana—a common tactic to limit Mahmoud’s access to attorneys and avoid giving protestors a place to target for organizing. Mahmoud’s wife is eight months pregnant; I can’t imagine what she must be going through. But for now, I hope the essay above gives you enough of a foundation to follow the case of Mahmoud as it unfolds over the coming months and probably years. Thank you for reading and please feel free to contribute your perspective in the comments.

Addendum

I want to add a few references and resources below that emerged after I published the post above. First, I want to remind us of Trump’s executive order back on January 29, 2025, titled “Additional Measures to Combat Anti-Semitism” and the subsequent “fact sheet” that includes the following paragraph at the end, which clearly foreshadows Mahmoud’s case.

Now, President Trump has promised that the Federal Government will: […] Deport Hamas Sympathizers and Revoke Student Visas: “To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you. I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before.”

Second, I am adding a link to the NPR interview with Troy Edgar, the deputy secretary of the Department of Homeland Security, who defended the arrest and detention of Mahmoud Khalil. I don’t know how to say it more plainly than this: Edgar’s remarks are incomprehensible that fail to provide any clarity about Khalil’s case other than to confirm my suspicions that the administration is winging it.

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