The Khalil Case and the Difference Lawful Permanent Resident Status Makes

The government’s attempt to remove Mahmoud Khalil, a lawful permanent resident (LPR) of the United States and student at Columbia University, is a marked departure from long-standing law and practice. Immigration officials have not claimed that Khalil, whose U.S. citizen wife is awaiting the birth of their first child, has engaged in unlawful conduct. Rather, officials have invoked a rarely used provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(4)(C), that renders a noncitizen removable when the secretary of state has found that his or her continued presence creates “potentially serious” risks for U.S. foreign policy.

Since Fong Haw Tan v. Phelan (1948), the Supreme Court has recognized that deportation of an LPR is a “drastic measure”—a “forfeiture” of ties with family, friends, and community. The Court has required a “clear statement” from Congress that the legislature’s plan included this harsh result. That clear statement is absent here.

A clear statement approach would build on Congress’s long-standing treatment of lawfully admitted immigrants. It would also preserve the fabric of the INA and free expression. The current provision stemmed from congressional discontent with executive branch efforts to curtail the content of foreign nationals’ speech. The Conference Report on the Immigration Act of 1990—far-reaching legislation that included the foreign policy provision—stated that the authority Congress granted could “not be based merely on … the possible content of an alien’s speech.” In a case such as the attempted removal of Khalil, who participated in campus protests, Congress wished to limit the secretary of state’s authority to situations of “imminent harm to the lives or property of United States persons abroad or to property of the United States government abroad.” Immigration officials have not even attempted to make that showing here.

Without a clear statement from Congress signaling that this broad authority extends to LPRs, courts should hold that LPRs are beyond the provision’s scope. 

Background on Khalil’s Case

Many of the factual and legal issues in Khalil’s case are now familiar, discussed in earlier commentary by Ahilan Arulanantham and Adam Cox, Ilya Somin, and Matthew Boaz. In 2022, Khalil entered the United States on a student visa; he became an LPR in November 2024 based on his marriage to Noor Abdalla, a U.S. citizen and dentist by trade who is now 8 months pregnant with the couple’s first child. Before attending Columbia, Khalil, according to an interview in Reason, had worked with two British government programs in the Middle East.

While a graduate student at Columbia’s School of International and Public Affairs (SIPA), Khalil acted as a spokesperson and negotiator for groups at Columbia protesting Israel’s response in Gaza to the Oct. 7, 2023, attacks by Hamas, a designated foreign terrorist organization under U.S. law. The protests included an encampment on Columbia’s campus. Many protesters wore masks or keffiyeh that concealed their faces; Khalil kept his face fully visible throughout the protests, which surely facilitated his selection for removal by the U.S. government.

At one point in the spring of 2024, protests spilled over into occupation of Hamilton Hall and injury of a security guard at that facility. In the protesters’ dealings with Columbia, Khalil negotiated on their behalf. Ultimately, Columbia called in the New York Police Department to end that episode. Recently, Columbia formally expelled several students linked to the occupation.

Although Columbia was calmer in the fall 2024 semester, turbulence occurred again in the spring term. In an ugly episode, a masked group disrupted a class at Barnard College, a school affiliated and contiguous with Columbia. Barnard moved promptly to expel students linked to the class disruption. No evidence links Khalil to this action. Khalil was present during a sit-in at Barnard’s library protesting the expulsions, although reporting of the episode cast him again in a negotiating mode, using his megaphone to amplify a cell phone call from Barnard’s president, Laura Rosenbury. In another episode from the spring term, a group protesting the Barnard expulsions occupied an administration building. Participants in the occupation of this building injured a security guard, who was hospitalized, and prevented senior Barnard officials from leaving the premises. Reports do not indicate that Khalil was present for this event.

Khalil was not disciplined by Columbia or arrested by local law enforcement for his role in these or other episodes. However, perhaps in part due to the ease of identifying him, agents of the Department of Homeland Security division of Immigration and Customs Enforcement (ICE) arrested Khalil on March 8 and set in motion plans for Khalil’s removal from the United States. After a short period of detention in lower Manhattan, ICE agents transferred Khalil first to New Jersey and then to a facility in Louisiana, far away from his pregnant wife. Lawyers for Khalil filed a petition for habeas corpus, which on March 19 resulted in a ruling transferring jurisdiction to the United States District Court for the District of New Jersey.

As of March 24, the government has advanced two grounds for Khalil’s removal. The most recent ground, which the government added on March 23, charges that Khalil failed to disclose certain employment and affiliations in this petition for LPR status. Under 8 U.S.C. § 1182(a)(6)(C)(i), a noncitizen is inadmissible if the noncitizen sought to enter the United States or obtain LPR status through willful misrepresentation of facts bearing on the application. The government has charged that Khalil, when submitting his LPR application, failed to disclose that he had worked for the United Nations Relief and Works Agency (UNRWA), which Israel has charged Hamas has infiltrated. In addition, the government has alleged that Khalil failed to provide complete dates for his work with the British government in the Middle East, and omitted mention of membership in the Columbia University Apartheid Divest (CUAD) group, an umbrella organization of many university groups seeking that Columbia cut ties with Israel.

The newly added fraud charge is a fact-intensive inquiry; it is too early in the case to determine the merits of the government’s claims. Our attention here centers on the government’s other removal ground, which relies on 8 U.S.C. 1227(a)(4)(C)—a provision that hinges on the secretary of state’s finding that the noncitizen’s presence in the United States would harm U.S. foreign policy. The secretary of state has apparently invoked this provision in the case of another LPR and Columbia student, Yunseo Chung, a national of South Korea who has resided in the United States since she was 7 years old. The relationship of this provision to LPRs such as Khalil and Chung takes up the balance of this piece.

The Statutory Scheme

The INA includes interlocking statutory subsections that bear on Khalil’s removal under the foreign policy provision. According to the Notice to Appear (NTA) starting proceedings that ICE filed with the immigration court, ICE relied on 8 U.S.C. § 1227(a)(4)(C), which provides for the removal of “an alien” when the secretary of state has “reasonable grounds to believe” that the noncitizen’s continued presence or actions in the United States would have “potentially serious adverse foreign policy consequences.” Importantly, this vague but high threshold rises even further when the secretary has acted “because of … beliefs, statements, or associations” of the noncitizen that would constitute political speech. In most contexts, expressions of political or religious beliefs by a noncitizen would receive protection under the First Amendment. When otherwise lawful speech has triggered the secretary of state’s finding, a subsection of the INA cross-referenced in § 1227, 8 U.S.C. § 1182(a)(3)(C)(iii), provides for removal only when “the Secretary of State personally determines” that the noncitizen’s presence would “compromise a compelling United States foreign policy interest” (emphases added).

The context of the provision bears out this sense of the provision’s meaning. Congress included the provision on First Amendment activity in § 1182(a)(3)(C)(iii) in 1990 to limit the executive branch, which had repeatedly used the content of speech as a basis for denying noncitizens admission to the United States. The specific mention of speech and association in this subsection was intended to curb that long-standing tendency. The legislative history of § 1227 supports this point. Congress emphasized that the authority in the subsection should be used “sparingly” and only in “unusual circumstances.”

Congress also emphasized the two-tier aspect of the authority, which imposed both the personal involvement of the secretary of state and the higher “compelling … interest” requirement when removal would implicate free-speech concerns. The conference report analyzing the provision gave two examples of a valid use: (a) action to prevent “imminent harm” to U.S. persons or property abroad, or (b) remedying a treaty violation. A third example arose in 1994, when Secretary of State Warren Christopher applied this ground to initiate removal from the United States of an allegedly corrupt senior Mexican official being sought in connection with a major U.S.-Mexico anti-crime effort. The Board of Immigration Appeals (BIA) upheld that action in Matter of Ruiz-Massieu (in which one of the authors of this post, David Martin, represented the U.S. government before the BIA).

In contrast to the government’s actions in Ruiz-Massieu, the government has clearly attempted to remove Khalil “because of” political beliefs that he has expressed in the course of the Columbia protests. Those beliefs include opposition to Israel’s Gaza campaign and insistence that Columbia cut ties with Israel and companies doing business there. The secretary of state’s finding that Khalil’s presence in the United States has adverse foreign policy consequences is integrally related to those political beliefs. If Khalil had stated other beliefs, such as the belief that Columbia had a bad football team, Khalil’s beliefs would have no plausible “foreign policy consequences.” If the foreign policy provision applies to Khalil at all, the connection between that finding and Khalil’s political beliefs would require a more rigorous inquiry under the statute’s two-tier structure. Since Khalil’s beliefs are integral to the secretary of state’s finding, the secretary would have to “personally determine[] that … [Khalil’s continued presence] would compromise a compelling United States foreign policy interest.”

Interpreting the Statute to Accommodate LPRs’ Reliance Interests

Congress was strikingly cautious in the sequence of enactments that led up to the 1990 adoption of the two-tiered State Department role. That caution suggests a reading that protects LPRs’ reliance interests: excluding LPRs from the removal provision’s scope, in the absence of a clear statement from Congress.

Applied to LPRs, a broad interpretation of the secretary of state’s authority under 8 U.S.C. § 1227(a)(4)(C) would upset legitimate expectations. The Due Process Clause requires that individuals receive fair notice of the risk of government sanctions or coercion. Vague and unduly broad standards, such as the criterion in 8 U.S.C. § 1227(a)(4)(C), undermine notice. Vague criteria play “gotcha” with their targets, forcing individuals to guess which conduct will land them on the wrong side of the law. Just as important, vague criteria give government officials vast discretion on whom they will select as the targets of state coercion, raising the risk of targeting opposing political views or membership in a particular ethnic group.

Vague removal criteria pose a special threat to LPRs, who by definition have made a lasting commitment to the United States, foregoing opportunities elsewhere. LPRs often have spouses, children, or parents who are U.S. citizens. Moreover, they are closely involved with employers and community institutions, sometimes serving in the U.S. armed forces or acting as first responders. These are ties established with full permission of the U.S. government. The terms “lawful” and “permanent” in the very name of the status connote commitment and reliance. As David Martin argued in a piece in the 2001 Supreme Court Review, courts should continue to respect the sharply distinct structural hierarchy that pervades our immigration system. For at least a century, judicial decisions and statutes have placed LPRs in a uniquely favored position among noncitizens.

The Supreme Court reinforced this point in its 2018 decision Sessions v. Dimaya. Adjudicating a removal action against a longtime lawful permanent resident, the Court held a removal ground invalid, observing “that the most exacting vagueness standard should apply in removal cases. ... ‘in view of the grave nature of deportation,’ – a ‘drastic measure,’ often amounting to lifelong ‘banishment or exile.’” This careful approach characterizes the Supreme Court’s commitment to providing LPRs with clear notice of immigration consequences. The Court has struck down some statutes and limited the scope of others, as Hiroshi Motomura points out. For example, in Dimaya, the Court struck down a criminal law provision cross-referenced in immigration law that classified as a “crime of violence”—a removable offense under the INA—any offense that, “by its very nature, involves a substantial risk that physical force against the person or property of another may be used.” The Court concluded that the statute’s quixotic quest for a crime’s elusive “nature” rendered the statute unconstitutionally vague.

The secretary of state’s power under 8 U.S.C. § 1227(a)(4)(C) has similar effects, when applied to LPRs. An LPR has no way of predicting what ramifications constitute “potentially serious adverse foreign policy consequences” or “compromise a compelling United States foreign policy interest.” Instead of rational prediction, the LPR is relegated to guesswork. The price of guessing wrong is removal from the United States, along with separation from family, friends, and community. Moreover, officials can select from a broad range of speech, targeting speech that opposes them. No matter what partisan affiliation an official has shown, discretion this broad is a recipe for abuse. The authors of this piece do not offer an opinion on application of the foreign policy provisions to non-LPRs. However, given LPRs’ reliance interests, application to LPRs would be unfair.

A Clear Statement Rule as Protection for LPRs

Applying a clear statement rule to § 1227(a)(4)(C) resolves cases like Khalil’s and preserves the courts’ historic sensitivity to unfair treatment of persons with lawfully acquired permanent status. The legislative history of this section, including the various enacted changes during the 1990s, as Congress wrestled with the foreign-policy removal ground, shows no attention to whether LPRs are to be covered. Courts should therefore reject its application to LPRs. LPRs would be subject to removal, of course, but under ordinary grounds and procedures. Such a ruling, unlike a ruling of constitutional invalidity, leaves the field open for future refinement or expansion by Congress in light of future adverse foreign developments, if necessary.

Harvard’s John Manning has noted that clear statement rules promote stability and continuity, by requiring hard evidence that Congress sought to upset abiding values and established practices. As then law professor (now Justice) Amy Coney Barrett observed, clear statement rules impel the legislature to “stop and think” before taking precipitous action.

The framers were familiar with clear statement rules, which predate the Constitution. In 1784, Alexander Hamilton argued the famed case of Rutgers v. Waddington, in which a New York tribunal found that the peace treaty between the United States and Britain ending the Revolutionary War also protected loyalist U.S. residents who had obeyed British military orders. In Rutgers, the tribunal found for a tenant who during the war paid rent to the British military occupation force for operating a brewery. After the war, the U.S. owner of the brewery sought back rent from the tenant, citing a New York state law that purported to authorize this remedy. Agreeing with Hamilton, the tribunal found that under international law, the treaty prevailed, immunizing the wartime tenant. The tribunal also acknowledged the importance of compliance with international law for the new republic, canvassing an array of international law scholars known to the framers. At Hamilton’s urging, the tribunal applied a clear statement rule, noting that a drastic step such as “repeal of the law of nations … could not have been in contemplation … when the Legislature passed this statute.” Observing that the New York statute did not mention international law at all, the tribunal warned that a faithful agent such as a court should not lightly assume that the New York legislature would have addressed a “subject of the highest national concern” through mere “silence” and implication.

More recently, the Supreme Court has used clear statement rules in other contexts involving immigration and national security. In Vartelas v. Holder, the Supreme Court construed an immigration statute as merely being prospective, not retroactive, in application. Retroactive application would have barred the readmission of an LPR who traveled to Greece to visit family despite having a criminal conviction that preceded the effective date of the statute. The Court noted: “We have rejected arguments for retroactivity in similar cases, and in cases in which the loss at stake was less momentous.” The Court viewed the potential forfeiture here as unfair—“a harsh penalty”—because it would have changed the rules governing ordinary life decisions, such as visiting family abroad.

National security cases tell a similar tale. In Ex parte Endo, the Court in 1944 set the stage for ending the Japanese American internment during World War II, holding that Congress had not clearly stated its intent to authorize detention of concededly loyal Japanese Americans. See Patrick Gudridge’s analysis. The Court, in an opinion by Justice William O. Douglas, noted that a broader interpretation of the law to permit such detention would have posed tensions with due process. Similarly, Kent v. Dulles, a Cold War case in which Justice Douglas also wrote for the Court, held that the secretary of state lacked power, absent a clear statement from Congress, to deny a passport to a U.S. citizen because of that citizen’s left-wing political views. The Court suggested that such a clear statement of intent to punish speech would have posed problems under the First Amendment. However, because the Court relied on the clear statement rationale, it did not definitively decide the free speech issue.

A clear statement approach to § 1227(a)(4)(C) would continue the tradition set by these celebrated cases. As then-Professor Barrett explained, clear statement rules have the virtue of giving the legislature room to deliberate. The passage of time will often clarify issues and provide more information. If circumstances develop that prod the legislature to action, it can follow the Court’s guidance and expressly outline a plan that includes marked departures from current norms and practice. At that time, courts will have a sharper backdrop against which to assess the legislature’s handiwork. In the here and now, however, the clear statement rule’s “pause button” preserves stability.

Conclusion

Our focus has been on the disruption to the legitimate expectations of LPRs caused by applying § 1227(a(4)(C) to this group. There is no evidence from the provision’s text, context, or statutory history that such a disruptive impact fits Congress’s plan. At this juncture, therefore, a clear statement rule is the most straightforward approach to upholding the reliance interests of an LPR such as Mahmoud Khalil against the standardless discretion that the secretary of state’s current posture invites.