An immigration judge who works for the Justice Department ordered Mahmoud Khalil’s removal to Algeria or Syria, but lawyers for the pro-Palestinian activist who’s been targeted by the Trump administration are still pressing for relief in an independent federal court.
Khalil’s attorneys laid out the latest in a New Jersey federal court filing Wednesday to U.S. District Judge Michael E. Farbiarz, a Biden appointee who has overseen some of Khalil’s litigation, which has been playing out in different courts following his March arrest. The lawful permanent U.S. resident argues that the administration has been retaliating against him for speaking out for Palestinians. (He was born in Syria and is a citizen of Algeria.)
Farbiarz ordered his release in June, finding Khalil wasn’t a flight risk or danger to the community, and the litigation has continued as the administration keeps pressing for his deportation.
The DOJ immigration judge, Jamee Comans, ruled Sept. 12 that Khalil isn’t entitled to a waiver of his removal. While noting factors in his favor like having family ties via his U.S. citizen wife and infant son, the immigration judge wrote that she “lacks authority to question foreign policy determinations” by the administration, which has claimed Khalil’s presence “has potentially serious adverse foreign policy consequences for the United States.”
Comans said that deference alone precludes a waiver. Noting that Farbiarz previously precluded removal on that ground, she gave additional reasons as well, citing what she called Khalil’s “fraud” during the immigration application process when he “failed to disclose his involvement” in pro-Palestinian groups.
Khalil and his lawyers have rejected the fraud claim as a post-hoc justification to retaliate against him after Farbiarz ruled that he couldn’t be deported on the foreign policy ground. One of Khalil’s lawyers, Ramzi Kassem, said that when “the immigration prosecutor, judge, and jailor all answer to Donald Trump, and that one man is eager to weaponize the system in a desperate bid to silence Mahmoud Khalil, a U.S. permanent resident whose only supposed sin is that he stands against an ongoing genocide in Palestine, this is the result.” Kassem said the “plain-as-day First Amendment violation that also puts on sharp display the rapidly free-falling credibility of the entire U.S. immigration system.”
In their Wednesday filing to Farbiarz, Khalil’s lawyers said the government’s continued pursuit of his removal based on what they called the “Post-Hoc Charge,” as well as what they called the “highly unusual developments” in his immigration proceedings, “is part and parcel” of the government’s retaliation “for his constitutionally protected expression in support of Palestinian rights.” They said it’s a “substantial threat” to his “liberty, family integrity and if ultimately removed, his physical safety.”
As for what’s next in the litigation, they noted that they have 30 days from Sept. 12 to appeal Comans’ order to the Board of Immigration Appeals, which, like DOJ immigration judges, is housed within the executive branch, not the judicial branch, like Farbiarz.
His lawyers told Farbiarz that, given the administration’s targeting of Khalil, they expect the appellate board to swiftly approve Comans’ order, which, they wrote, would mean Khalil “will lose his lawful permanent resident status, including his right to reside and work in the United States, and have a final order of removal against him.” That’s not the end of the case, because Khalil can appeal the removal order in federal court. But, as they explained to Farbiarz, the circuit in which that appeal would proceed — the New Orleans-based 5th Circuit — “almost never grants stays of removal to noncitizens pursuing petitions for review of BIA decisions.” That led them to tell Farbiarz that “the only meaningful impediment” to Khalil’s removal would be a prior order from him to block removal while federal habeas corpus proceedings are pending. They concluded by telling the New Jersey judge that they will be pressing their litigation in his court regarding Khalil’s claim that the administration’s action against him is “pretextual First Amendment retaliation.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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