Mahmoud Khalil Can Be Arrested Again, Appeals Court Rules

A 2-1 conservative majority on a federal appeals panel Thursday overturned a decision that blocked federal agents from arresting Mahmoud Khalil, giving the Trump administration a victory in its efforts to suppress and, in some cases, eliminate pro-Palestinian voices in the country.

The ruling is unlikely to take effect immediately, as Khalil’s lawyers are expected to request a full session of the Third Circuit Court of Appeals to rehear the case. But it marks a defeat for the pro-Palestinian activist, whose nighttime detention by ICE agents last year over his pro-Palestinian advocacy was an early, high-profile example of the administration’s rapid crackdown on those it views as political opponents.

The majority held that Khalil must go through the entire deportation process – up to the final order of deportation and appeal to the Board of Immigration Appeals – before he can ask the federal court system to review his claims. The move could allow federal immigration authorities to detain him again, restarting a process that began when Secretary of State Marco Rubio invoked a rarely used law to argue that Khalil’s presence would have “potentially serious negative foreign policy consequences.”

Justices Thomas Hardiman, a Bush appointee, and Stephanos Bibas, a Trump appointee, issued the decision. Judge Arianna Freeman, a Biden appointee, dissented.

Hardiman and Bibas ruled that a New Jersey federal district judge did not have the authority to order Khalil’s release and that the pro-Palestinian activist should instead have remained in the immigration court system before exhausting his options.

The result of this decision is that the government can detain non-U.S. citizens for months or even years based solely on their speech. This does not completely deny them the possibility of appealing their detention; on the contrary, it restricts it considerably. Khalil, and those like him, will have to go through the executive branch’s immigration courts before finally being able to make a last-ditch appeal in federal court.

Only then, according to the ruling, will Khalil and others like him be able to raise fundamental constitutional challenges surrounding their arrest.

The opinion is somewhat academic. Over the past year, the Trump administration has acted expeditiously, in many cases before lawsuits in federal courts could have a potential impact. In March, the administration sent hundreds of Venezuelans to CECOT prison in El Salvador, even though a federal judge ordered the government to return planes already en route.

Khalil was arrested late on the night of March 8 in New York before ICE took him first to a detention center in New Jersey and then to Louisiana. This led to a fight over which court could hear his case: Khalil’s lawyers argued for New Jersey or New York. The Trump administration wanted Louisiana, where he was being held pending deportation proceedings.

Manhattan federal court decided to move Khalil’s habeas corpus case to New Jersey, finding that he was there when lawyers first filed the lawsuit on his behalf. In June, a federal judge in New Jersey ordered his release.

In a dissent, Freeman said Khalil’s assertion that his constitutional rights had been violated was sufficient to allow immediate intervention by a federal district court without having to go through the entire immigration court process.

The 1996 law cited by the majority, the Immigration and Nationality Act, was probably not intended to “prohibit any form of meaningful judicial review,” she wrote.