The Great Writ

In the continuing process of migrating some of my more recent and relevant posts to this new platform I offer a post I published on June 4 regarding the litigation surround Khalil.

Last week, in Khalil v. Trump, Judge Farbiarz issued a 106-page order and opinion denying in part and granting in part (sort of) Khalil’s motion for a preliminary injunction. The media’s focus—understandably—was on the Court’s conclusion that portions of 8 U.S.C. §1227 are unconstitutionally vague as applied to him. Specifically, a section of §1227 permits the deportation of a resident alien for actions that “compromise a compelling United States foreign policy interest.” In this case, Secretary of State Rubio found that Khalil had compromised the U.S. foreign policy of combatting antisemitism worldwide. However, the Court concluded that “the Secretary did not affirmatively determine that the Petitioner’s alleged conduct has impacted U.S. relations with other countries.” This vagueness finding is significant for Khalil—and potentially for others facing deportation on similar grounds—but the overall impact of the Court’s decision is not nearly as favorable to him.

When analyzing a motion for a preliminary injunction, a court must determine whether the petitioner is likely to succeed on the merits of his claim. Khalil alleges that he is being detained unlawfully. Success in this habeas case would not affect other immigration proceedings or prevent his deportation on grounds unrelated to §1227. In fact, the Government argued that Khalil is also subject to deportation for failing to disclose affiliations with certain organizations when applying for permanent residency. According to the Government, this failure amounted to obtaining his status “by fraud or by willfully misrepresenting a material fact.” Khalil’s detention could be based on this alone.  The Court found that Khalil had done practically nothing to rebut this allegation. While he did reference the non-disclosure issue, it was only to support his broader claim that the Government was targeting him for his protected expressive activity. Khalil provided no affidavits, deposition testimony, or other supporting documents. Notably, his second amended habeas petition was not even a verified petition, which could have served as evidence. As a result of these omissions, the Court concluded that Khalil was unlikely to succeed on the merits of his claim related to the failure to disclose and therefore declined to issue a preliminary injunction on that basis. This means that if the Court ultimately rules against Khalil on this issue, his detention would be justified regardless of any constitutional concerns under §1227. In essence, that would render the constitutional claim moot.

Even on the constitutional issue, Khalil did not achieve a complete victory. While the Court agreed that §1227 was unconstitutionally vague as applied to him, it also found that Khalil had not satisfied all the requirements for a preliminary injunction. Specifically, he failed to provide evidence of “irreparable harm.” The harm Khalil claimed—his inability to continue engaging in protected First Amendment expression due to his detention—would not be caused by the unconstitutional portion of §1227 if he could still be lawfully detained for other reasons, such as the failure to disclose. The Court concluded that other forms of irreparable harm might be asserted and invited Khalil to submit additional evidence to that effect. That is where things currently stand.

Ultimately, this decision highlights the habeas corpus dilemma that has always been at the core of this case and cases similar to it. If Khalil’s detention under §1227 is successfully challenged, but a separate lawful basis for detention remains, then the habeas remedy – release from detention – may not be available.  This is true for all students currently detained under similar circumstances. Without unlawful detention, habeas corpus offers no relief.  Habeas only offers release from detention when the detention is unlawful. While it is undoubtedly easier for them to challenge deportation proceedings if they are not in custody, this may be the only practical benefit of a successful habeas petition in these cases.