An appeals court Thursday reopened the possibility that Mahmoud Khalil, the Columbia University graduate and pro-Palestinian protester jailed for months by the Trump administration, could be detained as the government seeks to deport him.
Khalil’s rearrest would not come immediately, and his lawyers plan to appeal. Still, the ruling from the 3rd US Circuit Court of Appeals marks a major blow to Khalil, whose case became an early and high-profile example of the White House’s crackdown on pro-Palestinian speech.
A legal permanent resident whose wife and son are American, Khalil was the first of a number of students to be arrested after participating in demonstrations on college campuses against Israel’s war in the Gaza Strip.
He was arrested in March and detained for more than three months in Louisiana, even as others in similar situations were released by the courts. He was also prevented from being present for the birth of his son.
In a split opinion, two of the three judges on the appeals court, Thomas Hardiman and Stephanos Bibas, found that the New Jersey district judge who oversaw Khalil’s petition for release was not the proper authority to have ruled on it. The matter should have initially been addressed by an immigration court, the majority said.
But a third circuit judge, Arianna J. Freeman, disagreed, saying that Khalil had claimed that the government violated his fundamental rights and proved that he was irreparably injured during his detention.
Hardiman was appointed by President George W. Bush, Bibas by President Donald Trump during his first term, and Freeman by President Joe Biden.
Baher Azmy, a lawyer with the Center for Constitutional Rights who represents Khalil, said: “We are disappointed with and strongly disagree with the majority opinion, but take heart in the very powerful and persuasive dissenting opinion. We’ll continue to fight with all available legal options.”
Immigration courts are part of the executive branch, not the judicial branch, and are overseen by the Justice Department. Those courts are the first to address deportation proceedings, which were initiated when Khalil was first detained.
But Khalil’s lawyers filed a writ of habeas corpus — a legal action for challenging incarceration — with a district judge seeking his release and the prevention of those proceedings.
On Thursday, the circuit judges found that the New Jersey district judge, Michael E. Farbiarz, lacked what is known as subject-matter jurisdiction, or the power to oversee certain types of matters, and ordered that he dismiss Khalil’s habeas petition. They suggested that Khalil’s release had not been Farbiarz’s to grant, throwing his continued freedom into question.
The judges said that provisions of the Immigration and Nationality Act, the key law that governs immigration, suggested that Khalil could not challenge his detention or the government’s attempt to remove him in Farbiarz’s court without first going through the immigration court process.
The ruling, if it were to stand, would have major implications for anyone detained as the Trump administration sought to deport them. It would remove the most effective means that immigration lawyers have for freeing their clients from detention while they are in immigration proceedings. For that reason, Thursday’s decision will almost certainly be reviewed by a full panel of 3rd Circuit judges.
Mayor Zohran Mamdani of New York City issued support for Khalil on Thursday afternoon, writing on social media that his arrest last year had been “an attack on all of our constitutional rights.”
Mamdani added: “As the crackdown on pro-Palestinian free speech continues, Mahmoud is being threatened with rearrest. Mahmoud is free — and must remain free.”
Khalil appeared with Mamdani during the mayoral campaign, and one of Khalil’s lawyers, Ramzi Kassem, is serving as chief counsel in Mamdani’s administration.
Khalil was initially detained on the basis of a determination by Secretary of State Marco Rubio, who argued that Khalil’s very presence in the United States contributed to the spread of antisemitism. Rubio cited a rarely used statute as the legal rationale for Khalil’s deportation.
Khalil’s lawyers have pointed toward comments Khalil has made condemning antisemitism, and Khalil has rejected the idea that protesting against Israel is inherently antisemitic.
Shortly after his detention, once Khalil’s lawyers had filed the habeas petition in US District Court, the administration added a new rationale for his deportation. It said that Khalil had failed to disclose membership in several organizations when he applied for legal residency in March 2024, a claim that Khalil’s lawyers said was baseless.
Farbiarz, a former prosecutor, proceeded methodically in addressing Khalil’s case. But in May, he found the law cited by Rubio was most likely unconstitutional and the following month ordered Khalil’s release.
In recent months, Khalil’s lawyers reached an agreement with the Trump administration that his immigration proceedings would be paused. His case was being considered by the Board of Immigration appeals, the appeals level of immigration court.
Thursday’s decision could ultimately mean that the deportation proceedings will continue if Farbiarz dismisses Khalil’s petition as instructed. But the next step for Khalil’s lawyers would be to ask a full panel of 3rd Circuit judges to weigh in, which would pause all proceedings.
This article originally appeared in The New York Times.
Sign in to read the full article.
Sign in with Google