Feds refuse judge's order to release activist facing deportation
Supporters of Mahmoud Khalil rally outside the federal courthouse in Newark on March 28, 2025. (Reena Rose Sibayan for New Jersey Monitor)
Federal authorities refused a judge's order Friday to release Columbia University activist Mahmoud Khalil, arguing that the order only barred them from detaining him on the basis of an obscure 1952 law that allows deportations for foreign policy reasons.
U.S. District Court Judge Michael Farbiarz had ruled Wednesday that federal authorities lacked grounds to hold Khalil, a permanent resident who's been detained since March for helping to organize pro-Palestinian protests. His detention was likely unconstitutional, the judge decreed, ordering authorities to free him or ask the 3d Circuit Court of Appeals by Friday morning to step in.
But in a letter to the court Friday, government attorneys argued they were no longer detaining Khalil based on the Immigration and Nationality Act of 1952 and instead held him based on a separate federal statute that allows authorities to keep immigrants in custody during removal proceedings.
'Detaining Khalil based on that other ground of removal is lawful,' the attorneys wrote. 'An alien like Khalil may be detained during the pendency of removal proceedings regardless of the charge of removability.'
Secretary of State Marco Rubio in April released a memo justifying Khalil's deportation that argued his support of pro-Palestinian protests would have 'potentially serious adverse foreign policy consequences for the United States.'
Farbiarz on Wednesday had noted the government could argue Khalil, who has no criminal convictions or charges, could be detained because some information on his lawful permanent resident application was allegedly inaccurate. But he'd cautioned that argument would be ineffective here because green card holders are virtually never detained for that reason.
'That strongly suggests that it is the Secretary of State's determination that drives the Petitioner's ongoing detention — not the other charge against him,' the judge wrote Wednesday.
Attorney Ian Fernando Hinonangan, who represents Khalil, echoed the judge's own words and said federal authorities' reasoning for his continued detention was part of a campaign of retaliation for Khalil's First Amendment-protected speech.
While the judge's order allowed officials to continue efforts to remove Khalil that were not based on Rubio's memo, it did not explicitly permit them to continue detaining him for other reasons, Hinonangan wrote in a Friday declaration.
'The post-hoc charge is an undisputed continuation in the fabric of retaliatory motive and hence 'carries the taint of unconstitutional conduct,'' Hinonangan said.
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