The first legal battle for Mahmoud Khalil, the recent Columbia University graduate who was arrested and moved to Louisiana last week, is the fight to keep his case in New York.

The issue may seem minor compared with the First Amendment concerns raised by the arrest of Khalil, a legal permanent resident who was a prominent figure in pro-Palestinian demonstrations on the Columbia campus and who the Trump administration is seeking to deport.

But where Khalil’s case is heard could have profound consequences, not just for him but for anyone else the White House targets for removal from the United States. If Khalil remains in Louisiana, his case is likely to end up in one of the nation’s most conservative appeals courts, which could determine whether the law the government has cited as the rationale for his detention is allowed to stand.

The White House has accused Khalil of siding with Hamas terrorists during the Columbia protests and spreading antisemitism. That accusation, which Khalil’s lawyers deny, is not criminal, and in fact, Khalil has not been charged with any crime.

Rubio Cites Little Used Law to Justify Detention

Instead, Marco Rubio, the secretary of state, has cited a little-used law to justify the detention. The measure says Rubio can initiate deportation proceedings against any noncitizen whose presence in the United States he deems a threat to the country’s foreign policy aims.

That law, which would seem to grant the Trump administration almost unchecked power in deporting noncitizens, appears not to have been reviewed by an appeals court, which could determine whether it is constitutional. And if Khalil’s immigration case plays out in Louisiana, it will most likely be appealed to the 5th U.S. Circuit Court of Appeals, which presides over federal court cases that come from Louisiana, Texas and Mississippi.

It is one of the country’s most conservative appeals courts. Most of its judges were nominated by Republican presidents, including six by President Donald Trump during his first term.

“The 5th Circuit is the court I’d least want to be in if I were Khalil,” said Steve Vladeck, a professor at Georgetown University’s law school who studies constitutional issues and has written about Khalil’s case. He added, “It is a court where immigrants in general have a historically poor track record, and it’s a court in which judges are going to be most sympathetic to the government’s ability to point at someone and say, ‘You supported Hamas.’”

If judges in that court were to decide against Khalil, he could appeal to the Supreme Court. But there is no guarantee that the justices in Washington would take his case, and even if they did, and found in his favor, the government is likely to continue to revoke green cards in the interim, citing the same statute that informs Khalil’s case. Other detainees might have little legal basis to fight the government’s accusations.

Khalil’s Immigration Case to Play Out

On the other hand, were Khalil’s immigration case to play out in New York — where his lawyers first called for his release — any appeal would arrive at the 2nd U.S. Circuit Court of Appeals. That court includes more judges appointed by Democratic presidents and is widely considered a less partisan venue. And in the meantime, Khalil, were he to be released, would have access to his family. His wife, Noor Abdalla, is expecting a baby next month.

Lawyers for Khalil have sought his release and return to New York since he was arrested on the evening of March 8. The timing of his arrest and transfer to Louisiana is key to understanding their case.

Video of the arrest filmed by Abdalla and released by the American Civil Liberties Union shows that agents from the Department of Homeland Security handcuffed Khalil in the lobby of his apartment building, which is owned by Columbia. After his wife, holding back tears, repeatedly asked where Khalil was being taken, the agents responded “26 Federal Plaza,” the address of New York’s downtown immigration court. Amy Greer, one of Khalil’s lawyers, was told the same thing.

Greer worked through the night on a legal filing known as a habeas petition, a vehicle for challenging unlawful detentions. Occasionally, she checked an online locator to make sure of Khalil’s location. At 1:35 a.m. March 9 and again at 4:29 a.m., the locator said that Khalil was in New York.

She filed her petition at 4:40 a.m. in a New York federal court. But the government has since argued that Khalil arrived in New Jersey more than an hour before that. He was taken there, they say, because the New York facility does not have beds or overnight medical staff, and Immigration and Customs Enforcement policy dictates that no detainee should be held in such a facility for longer than 12 hours.

Kahlil Brought Back into New York

Around noon March 9, Khalil was brought back into New York, to Kennedy International Airport. He was then flown to Dallas and then to Louisiana, where he has been held since.

The following day, the New York judge with whom the petition was filed, Jesse Furman, ordered the government not to remove Khalil from the country. There is no indication that the government has ignored the judge as it may have in other recent deportation cases. Khalil’s first hearing in immigration court is scheduled for March 27.

The arguments in front of Furman have piled up, with Khalil’s lawyers imploring the judge to return their client to New York, and the government insisting that the proper venue for his case is the district in which he is currently being held.

Furman could rule as early as Monday. He has insisted that he has no view on the issues at play in the case — which include core concerns about First Amendment rights amid Trump’s immigration crackdown and vow to fight antisemitism — but has acknowledged their importance.

If Furman decides the case should not be heard in New York, Khalil’s lawyers have asked for the opportunity to transfer it to New Jersey. If the case were to play out there, any appeal would be heard in yet another appeals court — the 3rd U.S. Circuit Court of Appeals — and Khalil would be closer to his family.

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This article originally appeared in The New York Times.

By Jonah E. Bromwich/Marco Postigo Storel
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