Mahmoud Khalil Can Be Arrested Again, Appeals Court Rules

A 2-1 conservative majority on a federal appeals panel on Thursday reversed a ruling that had blocked federal officers from arresting Mahmoud Khalil, handing the Trump administration a win in its effort to crack down on and in some cases remove pro-Palestinian voices from the country.

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

The majority held that Khalil needs to go through the entire immigration removal process — up to a final order of removal and appeal to the Board of Immigration Appeals — before he can ask the federal court system to review his claims. The ruling could allow federal immigration authorities to detain him once again, restarting a process that began with Secretary of State Marco Rubio invoking a rarely used statute to assert that Khalil’s presence would have “potentially serious adverse foreign policy consequences.”

Judges Thomas Hardiman, a Bush appointee, and Stephanos Bibas, a Trump appointee, issued the ruling. 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-Palestine activist should instead have stayed within the immigration court system before exhausting his options there.

The upshot of the ruling is that the government can detain non-U.S. citizens for months or even years based solely on their speech. It does not completely deny them a means to appeal their detention; it instead dramatically restricts it. Khalil, and those like him, will have to go through the executive branch’s immigration courts before finally moving on to a last-ditch appeal in federal court.

Only then, per the ruling, can Khalil and others like him raise basic Constitutional challenges around their arrest.

The opinion is somewhat academic. For the past year, the Trump administration has acted with speed, in many cases before lawsuits in federal courts can have a potential impact. In March, the administration sent hundreds of Venezuelans to El Salvador’s CECOT prison as a federal judge ordered the government to return planes that were already en route.

Khalil was detained late at night on March 8 in New York City before ICE spirited him first to a holding facility in New Jersey and later to Louisiana. That spawned a fight over what court could hear his case: Khalil’s advocates argued for New Jersey or New York. The Trump administration wanted Louisiana, where he was held pending removal proceedings.

The Manhattan federal court decided to transfer Khalil’s habeas corpus case to New Jersey, finding that he was located there when attorneys first sued on his behalf. In June, a New Jersey federal judge ordered him released.

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

The 1996 law that the majority cited, the Immigration and Nationality Act, was likely not intended to “foreclose all forms of meaningful judicial review,” she wrote.