This is significant, but administration tactics have created openings for district judges to intrude in such cases.
T here have been significant developments in the Trump administration’s effort to remove Mahmoud Khalil, the Syrian-born former Columbia graduate student and pro-Hamas campus agitator beloved — of course — of the Council on American-Islamic Relations. These developments have been complicated by the administration’s tactics, which have enabled Khalil to seek relief from a federal district court that shouldn’t be involved in the case.
Khalil first entered the United States legally, on a student visa. He married an American citizen (they now have a child) and, on that basis, was permitted to adjust his status to lawful permanent resident alien. This required providing truthful answers on a government form.
As we covered extensively, the Trump administration initially sought to deport Khalil, notwithstanding that he was legally in the United States; the government relied on a rarely invoked immigration-law provision that empowers the secretary of state to remove any alien whose presence in the United States is deemed by the secretary to be detrimental to American foreign policy concerns. This provision is constitutionally fraught because, in theory, it permits the apprehension and deportation of aliens whose objectionable activities would be First Amendment–protected if engaged in by American citizens.
In overhauling immigration law in the mid-’90s, Congress sought to streamline removal proceedings. Federal district judges were largely cut out of the process. The alien gets a hearing before an immigration judge (IJ), and then there is an appeal to the Board of Immigration Appeals (BIA). Neither of those tribunals is a judicial court; rather, they are components of the Justice Department. Only after the BIA issues its ruling is there an appeal to a federal judicial court — namely, a circuit court of appeals (in the circuit where the immigration proceedings took place). The circuit is essentially limited to legal issues and relies on the factual findings of the IJ and BIA.
Nevertheless, the irregular actions of the Trump administration in seeking mass deportations have created openings for district judges to intrude. We’ve discussed, for example, the president’s dubious Alien Enemies Act proclamation, which maintains that the Tren de Aragua international criminal gang has engaged in an “invasion” of or “predatory incursion” in the United States. (A divided panel of the Fifth Circuit ruled against the president earlier this month, in W.M.M. v. Trump.) In connection with deportations of legal aliens based on their role in campus unrest (the category pertaining to Khalil), instead of litigating removal cases in the place where the relevant alien is lives, the administration has arrested legal aliens and whisked them to Louisiana (for IJ proceedings), often via Texas. This creates grounds for the aliens to challenge their detention in habeas corpus, over which district judges do have jurisdiction.
Texas and Louisiana are in the Fifth Circuit, which tends to be more Trump administration–friendly than, say, the First and Second Circuits (centered in the Boston and New York metropolitan areas), where a number of aliens have been apprehended. Because habeas corpus is a claim that a person’s detention or conditions of confinement violate the law, a habeas petition must be filed in the district in which the alien is detained. Consequently, the Trump administration has tried to move aliens to its preferred venues before lawyers for the aliens can mobilize to file the petition closer to home.
In Khalil’s case, he sought habeas in the Southern District of New York (SDNY), where he was arrested. By the time his lawyers filed the petition, however, arresting agents had already transported him to the District of New Jersey (DNJ). Even though Khalil was thereafter transferred to Louisiana, the SDNY allowed his case to be transferred to the DNJ, where it has been presided over by Judge Michael Farbiarz, a Biden appointee — and a deliberate and meticulous jurist, regardless of whether one agrees with all of his rulings.
Judge Farbiarz eventually ruled that (a) the contested foreign policy provision likely violates the First Amendment, (b) Khalil could be released on bail while his removal proceedings went forward, and (c) the government was enjoined from removing him based on Secretary Marco Rubio’s determination.
In the interim, however, there emerged a second ground for removing Khalil from the country: When he sought to adjust his status from student visa holder to permanent resident alien, Khalil had failed to disclose that (1) he had served as the political affairs officer for the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA), which, to summarize what I’ve previously contended, is functionally an arm of Hamas; and (2) he had worked for the Syria Office in the British Embassy in Beirut, Lebanon. These were material misrepresentations rendering Khalil removable under federal immigration law. (See Sections 1182(a)(6)(C)(i) and 1227(a)(1)(A) of Title 8, U.S. Code.)
On July 17, IJ Jamee Comans of the Justice Department’s immigration court in Louisiana, ruled that Khalil was removable, under both the foreign policy provision relied on by Rubio and on the second, legally independent ground of material misrepresentation. Thereafter, Judge Farbiarz intruded into the material misrepresentation issue, directing Comans to determine whether Khalil is entitled to a waiver of removal.
This is a complicated question, involving the esoterica of immigration law (e.g., the legal significance of representations one makes at the time of admission as opposed to when seeking adjustment of status). The matter is expertly analyzed by Andrew (Art) Arthur, the former immigration judge who does invaluable work at the Center for Immigration Studies.
My purpose here is not to dig into those weeds, which Art has done better than I could. It is instead to highlight a point I have made a number of times: By the hardball tactics and unhinged rhetoric with which the Trump administration has gone about deportations, it has invited district judges into the thicket of removal proceedings from which Congress sought to exclude them, and it has insured that these interventions would be hostile.
The Trump administration should have proceeded against Khalil in New York, where it apprehended him. Had it done so, there would have been no grounds to involve the SDNY or judges of any other district court. Yes, after proceedings before an IJ and the BIA, the administration would have had to defend any removal order in the Second Circuit; but if its legal arguments were strong enough, it would likely have prevailed (especially on the material misrepresentations ground). And, if the administration lost in the Second Circuit, it could then have sought review by the Supreme Court (which is usually open to taking cases if the president seeks review).
The implication of its furtive post-arrest transfer of Khalil from New York was that the administration perceived a need to forum shop in order to win. The Justice Department should always be ready to litigate in the proper venue. I am not pretending that Trump hasn’t faced undue obstinacy (beyond the obstinacy Trump has courted) from Democratic-appointed judges in blue states; but administrations of both parties win cases on the other party’s turf all the time.
There is not necessarily a reason to arrest a legal alien — here, a green-card holder who desperately wanted to stay in the country, not flee it — let alone transport the alien a thousand miles away. By taking Khalil into custody and shipping him out of New York in the dead of night, the administration invited a habeas petition challenging the grounds for and manner in which he was being detained. Naturally, this has evolved into Judge Farbiarz’s intrusion into all the immigration-law issues in the case, including those as to which Congress has denied jurisdiction to the district courts.
Judge Farbiarz’s proper role in this case is tenuous at best. To repeat, Khalil was in the DNJ at the time his attorneys filed the habeas petition in the SDNY. This was an understandable misstep; the government was frustrating efforts by Khalil’s lawyers to track down where he was being detained; hence, they filed in the district where he’d been arrested a few hours earlier (and where, if this had been a criminal case, he’d have been required to be presented promptly before the court).
Still, that doesn’t change the jurisdictional facts. By the time Khalil’s location was sorted out, he was en route to Louisiana (I believe he may have been brought to Texas first). In habeas, again, the petition must be filed in the federal district where the petitioner is at the time. Yet, the SDNY rationalized that because the government didn’t tell Khalil’s lawyers that he was in the DNJ when they were seeking to file the petition, the petition should be deemed as if it had been properly filed in the DNJ, and the case thus transferred there. This was fair, but I’m not sure it was right (sadly, they’re not always the same thing).
The SDNY should have dismissed the petition because it lacked jurisdiction; if it was inclined to advise Khalil’s lawyers (which is not the court’s job) it could have suggested filing a habeas petition in the Western District of Louisiana (Khalil was eventually detained in the ICE Processing Center in Jena, La.). That would have been right even if it didn’t seem as fair. After all, a district court has no power to dictate where the executive branch conducts removal proceedings, so Khalil’s lawyers were going to have to deal with tribunals in Louisiana one way or another.
But let’s assume for argument’s sake that the case’s landing in DNJ Judge Farbiarz’s lap was appropriate. The basis for Khalil’s arrest in Manhattan and transfer to Louisiana was the foreign policy removal claim. Farbiarz ruled on that (we can debate whether the ruling is correct). He then granted Khalil’s release from custody and preliminarily enjoined the government from removing him from the country on that ground. Habeas is about confinement, not the merits of removal claims. Once Farbiarz ruled on the confinement issues, that should have been the end of his role in the case. Unless the Trump administration defies his injunction, which it has not done, his legitimate participation in the matter should be over.
The judge has no business wading into the question of whether Khalil is separately removable under the material misrepresentation ground. In a normal removal case, that would be adjudicated by an IJ (as it has been here). There would then be an appeal to the BIA and, finally, review by a circuit court of appeals (here, the Fifth Circuit). In the BIA and the circuit, Khalil would be free to posit his waiver arguments and any other legal objections he has to removal — whether on the material misrepresentation ground or on the foreign policy ground.
As long as the government is not currently trying to deport Khalil, Farbiarz should not be interfering. If at some point, the Fifth Circuit rules in the government’s favor on the foreign policy removal ground, it can be sorted out whether the circuit’s ruling on the merits vitiates Farbiarz’s restraining order. (I suspect it would; but I also believe the Fifth Circuit could avoid any friction with Farbiarz by upholding removal on the material misrepresentation ground; that would also obviate the need to wrestle with the tough constitutional issues posed by the foreign policy ground.)
It was not Farbiarz’s business to press IJ Comans on the question whether there were valid legal objections to Khalil’s removal on material misrepresentation grounds. Farbiarz’s concern was whether Khalil’s detention violated the law. He has no other jurisdiction in this case.
Not to be a broken record, but the Supreme Court is eventually going to have to restore order and keep the district judges in their very narrow lane. But the judges have strayed from that lane because the Trump administration has taken irregular enforcement steps, rather than trusting that the very government-friendly immigration laws were sufficient to remove aliens who shouldn’t be in the country. To the extent there are flaws, which have slowed the pace of removals, it is because Congress has failed to provide adequate resources for detention and adjudication. The removal laws are sound.