A U.S. appeals court panel has moved to deny a petition challenging the detention and deportation of Palestinian activist Mahmoud Khalil, giving President Donald Trump’s administration a boost.
In a 2-1 decision Thursday, the justices concluded that the federal court that ordered Khalil’s release last year lacked jurisdiction over the matter.
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The ruling could allow Mr. Khalil, who missed the birth of his first child when he was detained by immigration authorities last year, to be rearrested. However, the order does not take effect immediately, and Khalil has indicated he intends to appeal.
“Today’s verdict is extremely disappointing, but it does not shake our resolve,” Khalil said in a statement.
“While the door may have been opened to the possibility of future re-detention, our commitment to Palestine and justice and accountability has not been closed. I will continue to fight with full determination, using all legal means, until my rights, and the rights of others like me, are fully protected.”
The Palestinian activist was born in Syria, is an Algerian citizen, is a legal permanent resident, and is married to a US citizen.
Khalil, who was pursuing a graduate degree at Columbia University in New York, was one of dozens of international students targeted for deportation by the Trump administration for criticizing Israel.
Rights advocates say the campaign violates U.S. free speech rights to silence criticism of foreign countries.
On Thursday, New York City Mayor Zoran Mamdani expressed concern about the ruling.
“The arrest of Mahmoud Khalil last year was not just a gruesome act of political repression, but an attack on all of our constitutional rights,” Mamdani wrote in X. “Now, as the crackdown on pro-Palestinian free speech continues, Mahmoud is under threat of re-arrest. Mahmoud is free and must remain free.”
Mr. Khalil’s case proceeded along two tracks. He challenged his removal in federal court, through a habeas corpus petition arguing that his detention was unlawful, and in administrative immigration court.
The Appeals Board upheld the government’s argument that, pursuant to the Immigration and Nationality Act (INA), only immigration courts have jurisdiction in this matter.
“Our findings demonstrate an important principle of habeas corpus and immigration law,” the court said.
“The system established by Congress to govern immigration proceedings provides Mr. Khalil with a meaningful forum to later present his case in the form of a petition for review of the final order of removal. Accordingly, we remove and remand with instructions denying Mr. Khalil’s habeas petition.”
The immigration court is part of the Justice Department, rather than an independent judiciary, raising questions about whether Mr. Khalil’s claims will be given a fair hearing.
An immigration judge has already sided with the government and ruled that Mr. Khalil could be deported.
Secretary of State Marco Rubio invoked a rarely used provision of the INA to target Mr. Khalil and other pro-Palestinian students, asserting the power to remove individuals deemed to have a “negative foreign policy” impact on the United States.
The immigration court system allows Mr. Khalil to appeal his case to the Board of Immigration Appeals (BIA) before it is filed in a federal appeals court.
But it’s unclear whether the immigration system allows Mr. Khalil to properly argue that his constitutional rights, or freedom of speech, have been violated, a possibility that Justice Arianna Freeman highlighted in her dissenting opinion.
“Mr. Khalil alleges that the government has violated his fundamental constitutional rights. Mr. Khalil also alleges and proves that he suffered irreparable injury while in custody,” Freeman wrote.
Citing a 1991 Supreme Court decision, he added, “Given precedent and principles of statutory interpretation, we conclude that it is ‘extremely unlikely that Congress intended to withhold any form of meaningful judicial review of his claims.'”
It is unclear what immediate impact the ruling will have on Mr. Khalil’s broader case and the ordeal of other students like him. A federal court released several students, including Turkish scholar Rumaysa Ozturk, on a habeas petition.
Last year, a judge ruled in a separate civil case that the Trump administration’s push for deportations based on speech by pro-Palestinian students was illegal.
Mr. Khalil’s lawyers can ask the entire Third Circuit to consider the panel’s decision before taking the case to the Supreme Court.
Bobby Hodgson, assistant general counsel at the New York Civil Liberties Union, which represents Palestinian activists, said Thursday’s ruling “undermines the role of federal courts in preventing serious constitutional violations.”
“The Trump administration violated the Constitution by targeting Mahmoud Khalil, detaining him thousands of miles from his home, and retaliating against him for his speech,” Hodgson said in a statement.
“Dissent is not grounds for detention or deportation. We will continue to pursue all legal options to ensure that Mr. Mahmoud’s rights are vindicated.”
