The government’s recent decision to jail and purport to “revoke” the green card of Mahmoud Khalil, a prominent pro-Palestine student activist from Columbia University, sent shock waves through universities around the country. Although President Donald Trump said throughout the presidential campaign that he would detain and deport foreign students who protested Israel’s conduct of the war in Gaza, most observers did not imagine his administration would target lawful permanent residents. Yet that is precisely what Secretary of State Marco Rubio stated he intends to do, asserting on Sunday that “[w]e will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.”
As several commentators have already noted, the government’s action constitutes a profound threat to free speech on university campuses and beyond—a freedom that we believe was already on life support after aggressive measures universities had taken to discipline and discourage pro-Palestine protest activity since shortly after October 7, 2023. In fact, the government has long targeted non-citizens engaged in pro-Palestine political activism for deportation, including even lawful permanent residents. (One of us has successfully represented several such Palestinians in the past).
But is such targeting legal in Khalil’s case? Answering that question requires us to assess two sets of important legal rules: those concerning the procedures the government may utilize to deport lawful permanent residents; and those concerning their substantive constitutional rights in the deportation context—including their rights under the Due Process Clause and the First Amendment. Some of those rules are clear, while the law involving others is murkier than it may first appear.
Procedure: Can the Government Unilaterally “Revoke” Khalil’s Status as a Green Card Holder?
No.
Neither Rubio nor anyone else in our government can simply “revoke” the status of a lawful permanent resident, and thereby render them subject to deportation. The immigration laws give lawful permanent residents (“LPRs” or “green card” holders), “the privilege of residing permanently in the United States” (emphasis added). Talk of “revoking” Khalil’s “visa” is thus extremely misleading. Lawful permanent residency is not a visa at all, it is a status. And that status cannot be unilaterally revoked.
To obtain authority to deport a green card holder, the government must charge (or accuse, as this is not a criminal matter) them with a condition under the immigration laws that in some way makes them “deportable.” “Deportable” is a term of art under the immigration laws. It refers to conduct defined in a set of provisions—most though not all involving criminal activity—codified at 8 U.S.C. 1227(a).
To prove that an LPR is deportable, the government must convene a “removal hearing” before an immigration judge. At that hearing, government attorneys must prove deportability by “clear and convincing” evidence. A number of provisions define the procedures for conducting removal hearings with some specificity. Under those rules, the government must afford LPRs (as well as others in removal proceedings) notice of the charges against them, a right to confront the evidence against them and present their own evidence in response, and a lawyer if they can afford one. Perhaps most important in Khalil’s case, the Supreme Court has held that the law does not permit the government to deport a non-citizen on grounds that are too vague to provide fair notice of what they did wrong—a point we return to below.
Anyone familiar with the law governing criminal procedure will recognize that the procedures we have described are not nearly as robust as those used to convict people of crimes (whether citizens or not). For example, we have said nothing about judicial independence, and that is because the judges at removal hearings are Immigration Judges—administrative law judges operating within the Department of Justice who can be fired by the Attorney General. (The Trump Administration has already fired a number of them). In addition, removal hearings lack many of the procedural protections available to criminal defendants, including a right to appointed counsel, the right to trial by jury, and in many cases the right to seek release from pre-trial detention at a bond hearing (although Khalil appears to have that right under the charges apparently advanced by the government thus far).
While they are far from perfect, what matters for now is that the procedures we have described are the “sole and exclusive” procedures for deporting people admitted to the United States, including lawful permanent residents; and that they embody the basic concept that federal immigration officials “may [not] disregard the fundamental principles that inhere in due process”—a principle the Supreme Court established more than a hundred years ago. As it explained again, fifty years later, “[o]nce [a non-citizen] lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.” For that reason, the government may not “capriciously take [] from him” (or her, or they) their right to reside in the United States.
What does this mean for Khalil (and others in the future who may be similarly situated)? It means that he is entitled to the procedural protections set forth in federal law for non-citizens facing deportation, which include the basic elements of due process. He cannot be deported just on the President’s or Secretary of State’s say-so. While 237(a)(4)(C) itself makes the Secretary of State’s determination central to the question of deportability, no provision of immigration law grants the President, the Secretary of State, or anyone else unilateral authority to “revoke” LPRs of their status—by Executive Order or otherwise. They must follow the procedures described above.
Substance: Can the Government Deport Khalil for the Reasons It has Given?
While the discussion above makes clear that Trump and Rubio cannot simply order Khalil’s deportation, it does not resolve whether he could be deported after a hearing in front of an Immigration Judge. Answering that question is made more difficult by the fact that the ICE agents who arrested Khalil refused to tell him (or his attorney) why he was being charged with being deportable. The New York Times has since reported, however, that the government has invoked a rarely used “foreign policy” ground of deportation. That provision, located in section 237(a)(4)(C) of the Immigration and Nationality Act, makes deportable any “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” (emphasis added). [Update: Minutes after this article was published, the Washington Post published a charging document in which the government cited this provision.]
The statute contains a (freedom of speech and association) safe harbor, incorporated by reference to the inamissibility provisions, prohibiting deportation “because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States,” but then contains an exception for the safe harbor: “unless the Secretary of State personally determines that the alien’s [presence] would compromise a compelling United States foreign policy interest” (emphasis added).
According to the Times reporting, Rubio has concluded that Khalil falls under this provision because (and here it is useful to quote the full explanation)
the protests that Mr. Khalil played a key part in were antisemitic and created a hostile environment for Jewish students at Columbia, the people with knowledge of the matter said. Mr. Rubio’s argument, they said, is that the United States’ foreign policy includes combating antisemitism across the globe and that Mr. Khali’s residency in the nation undermines that policy objective.
Two features of this purported justification stand out. First, if section 237(a)(4)(C) of the INA means what this explanation says it means, the statute gives an almost entirely undefined deportation power to the Secretary of State. The Secretary can of course declare nearly anything to be a “foreign policy objective.” Once having cleared that very low bar, the Secretary can then declare deportable any noncitizen so long as the Secretary has “reasonable ground to believe” their presence “undermines that policy objective.” If the government has an objective to promote fossil fuel use across the globe, for example, then the Secretary of State could deem climate science advocates—or even noncitizens who own green technology firms—deportable on the ground that their residency “undermines the policy objective” of promoting fossil fuels. Additional examples are easy to imagine. At bottom, rather than the statute setting the terms of deportability in advance, it would license the Secretary of State to turn nearly any activity into a basis for deportability after the fact. Importantly, no non-citizen could know what conduct might or might not run afoul of the Secretary’s foreign policy objectives, making it impossible for them to conform their conduct to the law.
That feature of the government’s reported claim against Khalil suggests a constitutional problem with the government’s case. The Supreme Court has long held that a person cannot constitutionally be punished under a criminal statute that is so vague as to deny a person notice of the conduct that could leave them criminally liable. Such statutes are “void for vagueness,” a violation of due process. The Supreme Court held in 1951 that the void-for-vagueness doctrine applied to deportation statutes. And just a few years ago, the Court applied that ruling to strike down a deportation statute on vagueness grounds, although the Justices were somewhat divided on exactly how it applied. Thus, if section 237(a)(4)(C) is understood to be as capacious as Rubio appears to think it is, then it may be void for vagueness.
Indeed, despite its rare use, section 237(a)(4)(C) has already been found unconstitutional by a federal court on this ground. That court, in what appears to be the only federal court decision addressing this deportation provision, concluded that the very statute itself (not the specific rationale given by the Secretary of State in a case) was unconstitutionally vague because “there is no conceivable way that an alien could know, ex-ante, how to conform his or her activities to the requirements of the law… [I]t is even less likely that an alien could know that his or her mere presence here would or could cause adverse foreign policy consequences when our foreign policy is unpublished, ever-changing, and often highly confidential.” That decision was later reversed on unrelated grounds—the appellate court ruled that the judge should have waited for the immigration courts to consider the case first. But if the court’s analysis of the due process issues is correct, then it is unconstitutional—a violation of due process—to deport Khalil under this statute.
Second, if the Trump administration believes that Khalil is deportable solely on the basis of the protests in which he engaged, then it looks an awful lot like the administration plans to deport him because of the content of his speech on matters of political significance. To be sure, the language of the explanation reported by the New York Times gestures toward federal civil rights laws by suggesting that the protests created a “hostile environment for Jewish students at Columbia.” The question of when speech violates federal civil rights laws or falls outside the protection of the First Amendment is a complex one. But we can bracket that question for the moment, because at least at this juncture no federal official has argued that Khalil is being deported for violating civil rights laws or anything of the sort. “The allegation here is not that he was breaking the law,” a White House official said. Instead, the circumstances of his arrest, as well as public statements by both the White House and the State Department, strongly suggest that the government arrested Khalil and placed him in deportation proceedings because he engaged in political protest.
Khalil’s attorneys have made exactly that argument in their lawsuit challenging his immigration detention, framing the government’s conduct as involving “retaliation” for Khalil’s speech on a matter of significant public concern (the war in Gaza) and “prior restraint” on Khalil’s plans to speak on such issues in the future.
The Supreme Court long ago stated, without qualification, that “[f]reedom of speech and of press is accorded aliens residing in this country.” The case in which the Court made this statement, Bridges v. Wixon, concerned an Australian union organizer who lived much of his life in Southern California. Various U.S. government officials repeatedly targeted him for his pro-labor speech activities, but the Supreme Court protected him twice—first from jail and contempt of court in Bridges v. California, and later from deportation in Bridges v. Wixon.
However, some view the Bridges cases as the high water mark for non-citizens’ free speech rights. Plenty have tried in the intervening decades to narrow the Court’s broad language—arguing, for example, that unauthorized immigrants, or perhaps even temporary residents, are beyond the protection of the First Amendment. Here, of course, such arguments are irrelevant: while the government appears to have initially mistakenly believed that Khalil was on a student visa, he is in fact a lawful permanent resident. That status insulates his speech claims against these sorts of arguments.
Nonetheless, in the decades since Bridges v. Wixon was decided, the Supreme Court on several occasions ruled against non-citizens who argued that immigration decisions violated their free speech rights. During the Red Scare it rejected the First Amendment claims of Communist Party members who challenged both their detention and their deportation for being Communist Party members. Two decades later, in 1972, the Court rejected a lawsuit by citizens who had invited a Communist professor to speak at a conference, after his visa application was rejected. And in the late 1990s, the Court rejected the free speech claim of Palestinian students who alleged that the government targeted them for deportation because of their activism.
To be sure, in none of these cases has the Court walked back its statement that noncitizens living in the United States are protected by the First Amendment. When the Supreme Court upheld the deportation of former communist party members during the Red Scare, it did so by concluding that the deportations were permitted by the First Amendment, which at the time was less protective of the speech rights of citizens and noncitizens alike. And when the Court in 1972 rejected the speech claims of citizens who argued that the exclusion of the Communist professor they had invited was pretextual, the Court ducked the core free speech question, holding only that it would not peek behind the facially valid reason given for the visa denial in order to sort out whether the professor had really been excluded because of his speech. As one of us has argued, both here and elsewhere, the Court’s approach in these cases suggested that it was applying ordinary principles of free speech and constitutional law, not some special watered-down set of protections for noncitizens.
Irrespective of this history, of course, there is little doubt that several members of the Roberts Court are hostile to constitutional protections for immigrants and highly deferential to the executive branch in foreign affairs and immigration matters. Thus Khalil would surely face a largely unsympathetic audience should his case find its way to them. However, Khalil’s case is arguably stronger than any of the others for several reasons. First, as we noted, the ground of deportation as currently invoked contains virtually no objective standards that could constrain the government from using it to target protected speech, making it possible for a court to strike down the law because of the serious risk it poses to free speech rights, but to do so on void-for-vagueness grounds that have been endorsed by this Supreme Court very recently. In other words, it gives the Court a clear off ramp without having to reach the thornier First Amendment questions. Second, at least thus far the only deportable conduct alleged against Khalil appears to be his speech activity, thus eliminating the complicated questions about pretext and selective enforcement that plagued the last two major immigration speech cases to reach the Supreme Court. Third, and relatedly, the deportation provision invoked by the government contains, on its face, an exception openly authorizing deportation because of a person’s speech—so long as the Secretary of State makes a personal determination that the ideological deportation is warranted (according to the “compelling United States foreign policy interest” standard). If the government chooses to invoke this provision in Khalil’s case, there will be no way for the Supreme Court to duck the core First Amendment questions as it has done in past cases. From the current record, the only way for the Court to sustain his deportation would be to openly overrule its own decisions and hold that the Constitution does not protect the free speech rights of lawful permanent residents.
The highly unusual provision invoked against Khalil in this case raises a whole host of other complicated legal problems, including concerns under non-delegation doctrine; concerns that it may involve the impermissible “pre-judgment” of the outcome of a removal hearing; and others. Moreover, it is conceivable the government could bring other claims against Khalil. In particular, the terrorism-related grounds of deportability are also extraordinarily broad in scope, although not quite as broad as the provision under which he has apparently been charged thus far. Separate legal questions also could arise if the government attempts to keep Khalil detained pending his potential deportation.
But whatever happens next, we can already say that Khalil’s case involves an assertion of government power over lawful permanent residents far beyond what we have seen in decades, if ever.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions