‘Distraction’ to Say Khalil Deportation Case a Free Speech Issue, Experts Say

“This isn’t about protesting. It’s about unlawful conduct.”

By Vita Fellig, JNS

Reps. Rashida Tlaib (D-Mich.), Ilhan Omar (D-Minn.) and 12 fellow members of Congress wrote to U.S. Homeland Security Secretary Kristi Noem on March 11 accusing federal officers of a “direct assault on the freedom of speech of everyone in this country” when they arrested Mahmoud Khalil, a recent Columbia University graduate who led anti-Israel protests on the Ivy League campus.

Legal experts told JNS that the Columbia University Apartheid Divest leader’s deportation case is about alleged fraud and terror ties, not the First Amendment.

“People try to distract from what’s actually going on by framing it as a speech issue,” Tal Fortgang, a legal policy fellow at the Manhattan Institute, told JNS. “This isn’t about protesting. It’s about unlawful conduct.”

Immigration officers arrested Khalil on March 8, and the anti-Israel activist is currently being held in Jena, La., where an immigration judge ruled that he can be deported. A federal judge in New Jersey is also reviewing the case.

Fortgang told JNS that under federal immigration law, the executive branch has wide discretion in national security-related immigration cases.

“In a criminal case, the government has to prove guilt beyond a reasonable doubt,” he said. “But immigration court isn’t criminal. It’s civil. And the standard is just whether it’s more likely than not that someone violated their visa terms or supported a terrorist group.”

The Trump administration has said that Khalil “led activities aligned to Hamas, a designated terrorist organization.”

“This isn’t just one student expressing a political opinion,” Fortgang said. “It’s an organized effort by a group, whose activities mirror and advance the propaganda goals of a U.S.-designated terrorist organization.”

Fortgang said that while non-U.S. citizens may have some speech protections, those protections are not absolute, especially if speech supports or aligns with a terrorist organization.

“Even if he was just holding up a sign that said ‘I love Hamas,’ that kind of speech could still be grounds for deportation,” he said. “If you’re a non-citizen and your speech aligns with or supports a terrorist group, even indirectly, the government can remove you, and if you lied on your visa application to hide affiliations, that’s fraud.”

According to U.S. Department of Homeland Security notice to appear, the U.S. secretary of state determined that Khalil’s “presence or activities in the United States would have serious adverse foreign policy consequences for the United States.”

The Syrian native and Algerian citizen failed to disclose on his visa application that he was a political affairs officer at the U.N. Relief and Works Agency, an ongoing employee of the Syria office in the British embassy in Beirut and a member of Columbia University Apartheid Divest, per the notice to appear.

Erielle Azerrad, an associate at Holtzman Vogel, told JNS that legal permanent residents like Khalil are subject to immigration law, which outline the ways that one can be deported, including for drug abuse, firearm offenses, domestic violence, marriage fraud and national security threats.

“When it comes to deportation, people tend not to realize there are only two legal categories—citizen and non-citizen, or as the law calls it, ‘alien and non-alien,’” Azerrad told JNS.

“Whether someone is a legal permanent resident or here on a student visa, it doesn’t matter for the purposes of deportation or denial of entry. You’re treated the same,” she said. “The idea that there’s some kind of protective halo around permanent residents and that the First Amendment can shield them from deportation is simply false.”

According to Azerrad, the law states clearly that “any alien whose presence or activities the secretary of state reasonably believes could cause serious adverse foreign policy consequences is deportable.”

“It doesn’t specify what kind of visa they have. It just says ‘alien,’” she said. “Green card holders do get important benefits, and it can feel like you’ve made it once you have one. But a green card doesn’t mean you’re exempt from the rules that apply to all non-citizens.”

David Litman, senior analyst at Committee for Accuracy in Middle East Reporting and Analysis, told JNS that Khalil’s conduct isn’t protected expression.

“Khalil spent the past year and a half leading an organization that effectively made large areas of Columbia University off-limits for Jewish Zionist students, and anyone with a differing viewpoint,” he said. “It’s a very cynical but clever strategy—one we’ve seen play out in multiple arenas, whether in the actual battlefield in Gaza or in the information war here in the United States, where legal protections are exploited in bad faith.”

Litman told JNS that anti-Israel protesters at Columbia “were breaking into buildings, illegally occupying university property and engaging in violence and harassment.”

“In the case of Hamilton Hall, they effectively kidnapped staff,” he said. “People should be far more outraged that those breaking the law are now trying to hide behind one of our most fundamental rights of free speech to shield themselves from the consequences of their clearly unlawful actions.”

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