EVERYTHING THAT JUST HAPPENED TO MAHMOUD KHALIL MIGHT (BUT SHOULD NOT) BE LEGAL

yes, they really can do that--if we let them

The arrest, detention, and pending removal proceedings of Mahmoud Khalil are a complex, rapidly evolving situation. The following was written as of the night of March 10, 2025, and I will note (with date stamps) any updates or amendments which account for new information appropriately in the following as things happen going forward.

A lot of people learned today that the Department of Homeland Security can arrest a lawful permanent resident of the United States in New York City, detain him without bond, overnight him thousands of miles away to central Louisiana, and initiate proceedings to revoke his greencard on terrorism grounds. They can do all of this without a criminal warrant or a criminal charge filed with a federal court, and for no better reason than his principled public opposition to a genocide six thousand miles away from the home he shares with his pregnant U.S. citizen spouse. And, as we all know by now, they did do all of these things yesterday to one of the most prominent student voices at Columbia University against Israel’s war on Gaza.

And when I say that ICE “can” do these terrible things to non-citizens, I don’t just mean that they have the will and operational capacity. I think that we all intuitively understand that anyone asking “can they do this?” in relation to any given thing that the federal government is doing as of March 2025 sounds like (and may in fact be) a credulous fool. ICE answers only to the President, and if they are doing it they can do it until a federal court tells them not to.¹ (But as previously noted in this space, I will always still believe that it’s worth noticing that they can’t.)

What I mean as a lawyer when I say that ICE can do these things is that they may do them, because Congress has, to a limited but still very dangerous degree, given them full permission to detain and deport anyone in any status short of U.S. citizenship for things that are and should be protected by the First Amendment.

I’m going to tell you why, but first I just need to acknowledge that I have been doing this way too long because the only thing about the arrest of anti-genocide activist Mahmoud Khalil that actually surprised me was that ICE didn’t actually know his current immigration status when they came to his door.

They walked in telling him that they were revoking his student visa, and were notably surprised when he produced a greencard.

From his attorney Anne Greer:

Clown shit.

“He revoked the greencard [which he just found out about five seconds ago] too”?

Straight-up unrefined clown shit. ICE, man.

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A few basic concepts before we get to the law which permits all of this:

Anyone who is not a U.S. citizen can be subject to removal (aka “deportation”) proceedings in a US immigration court if the Department of Homeland Security initiates these proceedings via civil charges for violations of the Immigration and Nationality Act. Lawful “permanent” (scare quotes intentional) residents, better known as people with “greencards,” are subject to this just the same as anyone else, and while the majority of these proceedings will be initiated by convictions for deportable crimes there are a few things (e.g. terrorism and gang affiliation) which do not require that any criminal charges have ever been brought so long as DHS can show a judge “clear and convincing” evidence of pertinent allegations. LPRs can be detained by ICE simply upon allegation of such charges, and in certain circumstances (including arguably this one) they can be held without the chance to be released on an order of bond from an immigration judge under INA 236(c).

And I hope I don’t really even need to say this, but no matter what an ICE officer tells you current law gives them no legal authority to simply “revoke” a greencard without a full review by an immigration judge in removal proceedings. (Even if Khalil had still been on a student visa—which would be much easier to revoke—he still would have been seeing a judge to consider any defenses to his removal.)

Anyway, when I first read about Mahmoud Khalil’s arrest last night I assumed that ICE was planning to charge him as deportable for having “endorsed or espoused” a designated terrorist organization (namely Hamas) under the extremely (and, I believe, unconstitutionally) broad deportability grounds which were added to the Immigration and Nationality Act twenty years ago. It looks like they are going a different, far less expected, direction—but I think you should know what the law on this is anyway, because it’s pretty bad and both Trump and Rubio have invoked it before.

OPTION 1: INA 212(a)(3)(B) TERRORISM GROUNDS OF REMOVABILITY AS EXPANDED BY THE REAL ID ACT OF 2005

In what world is this arrest legal? a friend texted me today.

The one we have been living in since 9/11, I responded.

Shortly after it was safe to go back to classrooms, I taught my usual immigration policy course at Northeastern University to a room full of people born either immediately before or not long after September 11, 2001. It was the first time I had truly confronted the reality of people who didn’t know what life was like before 9/11. I was barely 42 at the time, but I have never felt older than when I had to try to explain what a massive sociolegal shift it was when the government could start doing—or at least considering—pretty much anything it wanted in the name of protecting us from “terrorism.”

As it always is, immigration policy was the tip of the spear for the new post 9/11 legal order, the leading indicator for our lost liberties. From the low-key Muslim registry of the NSEERS program to the waves of post 9/11 deportations to ridiculously delayed citizenship proceedings for people from Muslim-majority countries to the creation and expansion of ICE itself, it’s always going to be easier to do the things the government might most want to be able to do to citizens to everyone else.

In the first round of post 9/11 legislation, allegations of membership in or “material support” for a terrorist organization were added as grounds of “inadmissibility”—which is to say that they could be used to deny you a visa or lawful permanent residency, but not as grounds for deportation proceedings for people who already had greencards. (Presumably the idea was that you should actually have to be charged with a crime to be deported for terror connections, which just feels so painfully quaint now as I write that out.)

But that all changed with, of all things, the REAL ID Act of 2005.

Have you gotten your REAL ID yet? I haven’t. Maybe you haven’t either. It’s just one of those annoying little life tasks that we’ve all been putting off, like cleaning your gutters or finally deleting your X account. But because federal law is weird like that, the same REAL ID Act of 2005 which is forcing you to stop by the DMV with your passport sometime in the next couple of months includes a provision which could fully justify the revocation of Mahmoud Khalil’s greencard without so much as a single criminal charge filed, let alone proven.

Along with creating a burdensome new standard for state driver’s licenses—against which nearly all the states immediately revolted to the point that it took at least 15 years to get anywhere near compliance²—REAL ID established harder rules for asylum and easier ones for ICE agents looking to deport people with unpopular political opinions.

Most significantly, REAL ID designated all prior grounds of inadmissibility for terrorism allegations also be grounds for removability. But it also expanded them.

Just to save myself some time, here’s a complete list from the Congressional Research Service of terror-related grounds of inadmissibility and removability, including the much broader ones that REAL ID added to INA 212(a)(3)(B). N.B. the next to last provision especially:

“Espouses or endorses terrorist activity” or persuading others to do the same “to support a terrorist organization” is—well, that’s a lot. That’s a lot of things.

In its official announcement justifying his arrest, DHS claimed that Khalil “led activities aligned to Hamas.” But “aligned to” is not a legal term, and it barely even sounds like English.³

I know what you’re thinking, so I’ll just say it here before we move on:

Isn’t pretty much any anti-Zionist sentiment “aligned to” Hamas? Isn’t the belief that Israel is actively perpetuating genocide in Gaza “aligned to Hamas”? And Hamas fighters presumably believe, as I do, in the sustaining power of a hearty breakfast. Is this belief not “aligned to Hamas”?

TBD! But one thing I can say for sure is that the phrase “aligned to” does not appear in the Immigration and Nationality Act. And working from what we already knew from Trump’s executive order on “antisemitism” signed on January 30th and former Senator (and current Secretary of State) Marco Rubio’s previously-stated enthusiasm for this provision in a letter he sent shortly after October 7, 2023 providing immigration authorities with some cool ideas about how to better deport student protesters—both of which cited this provision—I was very surprised that this will not (so far as we know as of now) be the stated basis for Khalil’s removal proceedings.

So what will be?

OPTION 2: INA 212(a)(3)(C) FOREIGN POLICY GROUNDS

A few hours after I started drafting this, the NYT reported that they were being told by anonymous sources that the administration intends to invoke INA 212(a)(3)(C) to try to remove Mahmoud Khalil through the obscure “foreign policy” grounds of deportation which allows the Secretary of State to determine that any given non-citizen—literally just one person—presents some kind of threat to US foreign policy.

As stated in the equivalent grounds of deportability:⁴

An alien 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 is deportable.

This is a weird one. I have been practicing deportation defense for 18 years and while I had read it with some idle interest I have never once heard of this provision ever being used against anyone.

But when you really step back from it a minute this is quite an admission unto itself: our Secretary of State is confirming that Israel’s domestic policy of war crimes and apartheid is our foreign policy, and that opponents to Zionism present “potentially serious adverse foreign policy consequences to the United States.”

I need to do some more thinking and research on this, but my first take was that this is actually kind of worse than labelling Khalil a terrorist. It’s normalizing the idea of the Secretary of State having the unilateral authority to initiate deportation proceedings one person he doesn’t like at a time, and presumably his personal certification of the situation is going to put a giant thumb on the deportation scale for any immigration judge. This is so completely unprecedented that I don’t really have a full analysis on it yet, but if they want a fight on this they are absolutely going to get one.

Generally speaking the Secretary of State oversees visas issued abroad at consular posts and U.S. Citizenship and Immigration Services handles in-country immigration, so it was pretty weird to see Marco Rubio talking about revoking greencards the other day. At least now we know what he meant.

But surely this can’t actually cover First Amendment-protected activity? I mean, it that can’t possibly be—

This section shall not apply to an alien because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.⁵

…

I will have much more to say on all of this very soon, as well as a direct warning to U.S. citizens and/or anyone at all who has not been publicly opposing the desolation of Gaza because from everything we know from how the first Trump administration was trying to reclassify “terrorism” the arrest and detention of Mahmoud Khalil should deeply concern anyone who opposes this regime. This only goes bad places, if we let it.

Anyway, I know that I have just spent pages explaining why something awful may also be lawful, so let me just say this as clearly as I can: this is not okay. This is very, very bad, and I would be disappointed if your takeaway from what I have said here were to be well at least it’s not totally lawless! And while I know that anyone invested enough to have read this far into this piece has likely had their attention in the right place, this is extremely not the time to look away. No one should be ripped from their families and lose their lives as they know them for political speech or student organizing, let alone personal opinions which stand in opposition to the foreign policy of the United States.

That last bit feels as I write it early on Tuesday morning to be such a useless, pathetic, baby-brained thing to say. But that doesn’t mean it doesn’t need to be said at the most inconvenient possible times through the loudest available megaphone. This is far (far) from the first time that ICE has come for someone for no other reason than what they have said, but this is by far the most urgent of those arrests in our lifetimes. This arrest is plainly unconstitutional. It is illegal. But is not necessary unlawful,⁶ and I thought you should know that.

As they well knew when they authorized this arrest at the highest levels of the federal government, this confluence of Palestine and immigration enforcement could be enough to actually start to push people offline and into the streets—as I was encouraged to see that it did today in New York in significant numbers, and as it should until Mahmoud Khalil is home safe with his family. They want to make an example of him, and we have a concomitant responsibility to show them that it’s not working.

But, as always, the problem is not Donald Trump. Trump and Rubio are rank authoritarians, but they are just using the proto-fascist legal tools which Congress handed them after 9/11—and the deportation force which Barack Obama expanded even more efficiently than George W. Bush did. The many threats to our civil liberties which arose well before the World Trade Center site had been cleared were one of the things which made my decision to go to law school the following year, and I have been watching the exceptions for terrorism grow ever since.

Those exceptions are a black hole at the edges of the Constitution which threaten to swallow it whole. Our rights are only as good as the people overseeing and enforcing them, but nothing is inevitable and all of this can still be stopped.

Free Mahmoud Khalil.

1. So far as I have been hearing they are more or less respecting orders from federal judges, but the term is young

2. I’ve been watching the plight of REAL ID with some amusement (got to take it where you can find it in the law these days!), as it was originally supposed to be in effect nationally as of 2008… then 2011…then 2013… and onward until the current hard deadline of May 7, 2025. The proposed rule last fall to extend this out to 2027 is at least one Biden thing which I think Trump will be happy to leave alone.

3. TIL that “aligned to” is an actual expression in English, and a way to describe things which are philosophically or conceptually aligned rather than something which is physically aligned with another object. It still sounds wrong, and I don’t like it, but it’s also by far the least objectionable thing in the screenshot at the top of this story.

4. For anyone new to my work, I use “removability” and “deportability” (which are functionally, if not quite legally equivalent) interchangeably, with a preference for the latter because it sounds much more human and includes a word that non-lawyers immediately understand as an act of state violence

5. We’re back now to the INA 212 inadmissibility section, which works in conjunction with the INA 237 deportability provisions and is referenced by incorporation to them. I just wanted to keep the flow without explaining all of that

6. In the sense that it was at least facially based in law that exists and can be cited