American diplomats are supposed to serve at least one tour on the visa line overseas, interviewing would-be visitors. It’s important work that has the side benefit of supplying some good stories. The Mahmoud Khalil case reminds me of a story from my first tour at Consulate General Jerusalem in 1990, interviewing mainly Palestinians on the West Bank.
One day we received a handwritten letter in Arabic addressed to the American Consul. It was from a woman in a small West Bank village who wanted to inform us of the visa fraud perpetuated by her husband. When they married over 20 years before, he had promised her that he would get a visa, go to the US, marry an American woman, become an American citizen, then divorce the American and bring her over to the US. He used to visit her in the family house in the village once a year, bringing presents for their children. But eventually she came to realize that her no-good husband had no intention of bringing her to the US. So she wanted to let us know. An experienced visa officer told me this kind of letter was not uncommon.
This guy was living the dream of multiple wives in different countries. Multiple wives are of course permitted in traditional Muslim societies though not in most Arab countries outside the Gulf. A young British-educated academic in the West Bank once introduced me to his “mums” (plural). In the US, hiding this practice results in the revocation of US residence and deportation because of fraud.
The relevance of this story to Mr. Khalil is the possibility of fraud in his visa application. That form asks “Have you ever, or do you intend, to provide financial assistance or other support to terrorists or terrorist organizations?” Less than a year after arriving at Columbia on a student visa, 30 year-old Khalil was leading American undergraduates in actions in support of Hamas after its October 7 attack. Hamas is a charter member of the US terrorism list. Had he truthfully answered the questions on the visa form – or perhaps had the visa officer checked out his social media – then he should have been denied a visa.
But Mr. Khalil slipped through the visa vetting process. Then he married a US citizen, which allowed him to adjust status to permanent resident and get a pathway to citizenship. Now he will get his day in immigration court facing deportation. The US media have misleadingly reported his subsequent deportation proceedings as the Trump administration punishing his protected speech.
If Khalil had merely led peaceful pro-Hamas demonstrations, then deporting him would indeed raise an interesting freedom of speech issue: Can an alien (in this case a lawful permanent resident alien) be deported solely for speech that would be protected for US citizens under the First Amendment? That is not clear. Certainly lawful permanent residents don’t enjoy all of the rights of US citizens (e.g., they don’t vote). But the specific issue of deporting an alien solely for protected speech hasn’t been directly addressed by the US Supreme Court. Some lower courts have said you can do this, on the theory that since pro-terrorism speech is a valid basis for excluding someone from entering the US, so it is also a basis for deporting someone who has already entered. Other courts say no, that once an alien enters the US, he or she enjoys the same speech protections as a US citizen. Two recent podcasters are worth listening to on this, former prosecutor Andrew McCarthy and law professor Eugene Volokh. I could argue it both ways, but it’s not relevant to the Khalil case.
Khalil was involved in illegal occupations of buildings (Alexander Hall at Columbia which was vandalized and a school janitor injured, and the Barnard library where classes were disrupted). He served as the negotiator on behalf of the occupying students with the university, pressuring the administration to accommodate student demands based on their illegal activity. He helped organize an illegal encampment on the campus that denied access to “Zionist” students. Therefore the First Amendment defense will not get him off, because many of his actions are not protected speech. (Note: These are state crimes, but no one expects Alvin Bragg, the partisan New York County district attorney, to follow up in these cases with prosecutions.)
Secretary of State Rubio did not rely on either Khalil’s potential criminal activity (aiding and abetting break-ins) or Khalil’s possible visa fraud to explain the decision to deport. Instead Rubio cited this provision of the Immigration and Nationality Act: “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”
Does Secretary Rubio have reasonable ground to believe there are potentially serious adverse foreign policy consequences in this case? I believe so. Allowing pro-Hamas actions on US college campuses that incite violence (such as occupying university buildings) and threaten Jewish students undercuts the US policy of combating antisemitism overseas. Passivity could also hurt relations with allies that oppose Hamas, e.g., Israel and the UAE.
Ultimately Khalil’s deportation may present a constitutional issue, but that would be a separation of powers issue. Can a federal judge substitute her or his judgment for that of the secretary of state on what is a reasonable decision in foreign policy? The constitution gives the President (and designees) plenary power in the conduct of most foreign affairs. In the statute cited above, the Congress recognizes that power in deportations. Thus I feel confident that the federal bench – at some level – will side with the secretary of state’s judgment in this area.
It would be more difficult to deport a foreign student who had solely expressed antisemitic hate speech or expressed support for Hamas. That free speech issue, however, is not what we are facing in the Khalil case.
