An Essay on the Immigration Case of Mahmoud Khalil

The arrest of a lawful permanent resident for leading protest activities has been in the news.

This Guest Post by Minyao Wang looks at that case:

According to press reports, Secretary of State Marco Rubio has invoked Section 237(a)(4)(C) of the INA to remove Mahmoud Khalil.  This section, which parallels an identical exclusion provision found in Section 212(a)(3)(C), empowers the Secretary to remove a foreign national if the Secretary “has reasonable ground to believe” that the person’s “presence or activities” here “would have potentially serious adverse foreign policy consequences.”  It is clear that when Congress enacted this provision, it did not believe that the First Amendment would immunize a foreign national from removal.  This is reflected in Section 212(a)(3)(C)(iii), which Section 241(a)(4)(C)(ii) incorporates by reference, stipulating that conduct that is otherwise “lawful within the United States” could still lead to removal as long as the Secretary of State personally determines that the person’s continued presences in the U.S. would “compromise a compelling United States foreign policy interest.”

This provision is seldom used and there is very limited reported caselaw. However, the Board of Immigration Appeals held in In re Ruiz-Massieu that the Secretary of State’s determination is binding within the Executive Branch. An Immigration Judge has no authority to second-guess that determination. This makes sense. Immigration judges are mere delegates of the Attorney General. It would be unthinkable for delegates of a Cabinet officer to revisit the policy choices made by the Secretary of State.

As a result, Secretary Rubio’s determination regarding Mr. Khalil can be challenged, if at all, at an Article III court.  There appears to be only one decision that addressed Section 237(a)(4)(C)’s constitutionality. In a lengthy and scholarly opinion written by (here is the poetic irony) President Trump’s sister, Judge Maryanne Trump Barry, it was held that this statutory section (then part of Section 241) was unconstitutional because it (i) was too vague, (ii) deprived respondent of a meaningful opportunity to be heard, and (iii) was an unconstitutional delegation of legislative power. 

On an expedited schedule, then Third Circuit Judge Samuel Alito reversed on procedural grounds.  Judge Alito held that a respondent must exhaust administrative remedies before seeking judicial review.  And judicial review must be sought through a petition for review of a final deportation order, submitted to an appropriate federal court of appeals.  Under Alito’s reading of the law, judicial review cannot be obtained through a habeas petition at a district court.

The parties in the Khalil matter are sparring now over which district court has appropriate jurisdiction.  A judge in either New York or Louisiana will first have to decide whether to follow Judge Alito’s procedural lead.  It is not clear anything could be gained by doing so.  Under the Board’s precedent, there is basically no room to overturn Secretary Rubio’s decision, and an order of removal is all but inevitable.  At some point, a federal court, whether an appellate court reviewing a final order of removal or a district court reviewing a habeas petition, will have to squarely address the constitutional issues that Judge Barry wrestled with and then-Judge Alito punted almost 30 years ago.  A court will have to find a balance between honoring our country’s bedrock principles on freedom of speech and exercising our sovereign power to decide who can enter and remain.

KJ