Jurisprudence
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If you have been following the Mahmoud Khalil deportation saga, you are likely familiar with the controversial statute that the administration has deployed to justify rescinding his green card and deporting him. This “foreign policy” provision, historically deployed sparingly, authorizes deportation if the secretary of state determines that a noncitizen’s continued presence would have “potentially serious adverse foreign policy consequences.” In Khalil’s case, the current secretary of state, Marco Rubio, concluded that he was subject to this ground because he had engaged in “antisemitic conduct and disruptive protests” that created “a hostile environment for Jewish students.”
The nature of this initial charge against Khalil—declaring him a foreign policy threat based on political activism—prompted a wave of outrage and media attention, much of it focused on the constitutional implications of deporting a person for their lawful political activities and speech. Recognizing, perhaps, that the Constitution could hinder their attempts to deport Khalil, the government filed three additional deportation charges. These charges, which have largely flown under the radar, allege that Khalil omitted three important pieces of information in his green card application: 1) that he had been a member of the United Nations Relief and Works Agency for Palestine Refugees, a UN agency that provides aid to Palestinian refugees and which has been alleged to have links to Hamas; 2) that he had been a member of Columbia University Apartheid Divest, a coalition of student organizations dedicated to pro-Palestinian advocacy; and 3) that he had incorrectly stated the dates of his employment by the Syria Office of the British Embassy in Beirut. These omissions, it is asserted, render Khalil deportable under a statute that authorizes deportation for those who have procured an immigration benefit—such as a green card—by fraud or by willfully misrepresenting a material fact. (Khalil and his attorneys have contested all three allegations.)
The updated charges don’t seem to implicate the First Amendment, and even those sympathetic to Khalil’s plight would likely agree that a person who lies to receive a benefit should lose the benefit once those lies are uncovered. In one court filing, the administration’s lawyers describe Khalil’s free speech arguments as a “red herring” because the fraud-based grounds provide an “independent basis to justify removal.”
These arguments have a seductive logic; however, it is vital that the public—and the judiciary—not take the bait. Acquiescing to the Trump administration’s attempts to deport Khalil and other lawful residents based on misrepresentations in their application materials could be just as dangerous as permitting deportations based on speech or political opinion. This is because, in a bizarre feature of our immigration system, it is virtually impossible to obtain a green card without making some kind of misrepresentation during the application process. If cases like Khalil’s become the norm, millions of permanent residents and naturalized U.S.