The Declaration - Parallax Cafe

On April 9, the Board of Immigration Appeals denied Mahmoud Khalil’s appeal and upheld the administrative removal order against him. He has not been deported. A federal district court in New Jersey issued an injunction blocking execution of the order while his habeas corpus case works through the Third Circuit. He remains in the United States.

The legal question before the courts is whether the government’s stated ground for removal — that Khalil’s speech posed “potentially serious adverse foreign policy consequences for the United States” — is constitutional. The Secretary of State signed a memo making that determination. Under Section 237(a)(4)(C)(i) of the Immigration and Nationality Act, a Secretary of State can certify that a non-citizen’s presence is potentially harmful to US foreign policy interests, and that certification can trigger removal proceedings. The provision has existed since 1952. It has been used against suspected foreign agents. It was last applied against someone in Khalil’s position — a legal permanent resident whose only identified conduct was organized, public, political speech — in the McCarthy era.

Khalil was a graduate student at Columbia. He helped organize pro-Palestinian demonstrations. He is not accused of providing material support to a designated organization. He is not accused of violence, incitement to violence, or espionage. The government’s case is that his advocacy endangered American foreign policy interests, and that this is enough.

Khalil’s response to the BIA’s decision: “I have committed no crime. I have broken no law. The only thing I am guilty of is speaking out against the genocide in Palestine — and this administration has weaponized the immigration system to punish me for it.”

The courts may rule in his favor. The injunction holds; the Third Circuit may uphold it; the constitutional question may ultimately resolve against the government. His attorneys at the ACLU and the Center for Constitutional Rights are arguing that the First Amendment’s protection of political speech applies to legal permanent residents engaged in political advocacy, and that using immigration enforcement to punish speech is unconstitutional retaliation regardless of the statutory mechanism they used to do it.

They may be right. The courts are deciding.

But the declaration has already been made. The government has demonstrated that it will apply this tool against a legal permanent resident whose only conduct was organized political advocacy. The speech it applied it against is Palestinian advocacy. The standard it applied is “potentially serious adverse foreign policy consequences” — a standard requiring no proof of harm, only a cabinet secretary’s certification that harm is possible.

The tool’s power is not contingent on the deportation succeeding. Its power is in the demonstration that the attempt is available.

This is where the chilling effect operates, and where it is hardest to observe. Khalil himself did not stop. The visible advocates at Columbia and other universities continued. The activists most committed to their cause will absorb the risk, as they always have. The chilling effect is not on them. It is on the newly-arrived graduate student who signed a petition in October and has since recalculated. It is on the visiting scholar from a country that already has a fraught relationship with US immigration bureaucracy. It is on the legal permanent resident who has dependents, who is not willing to become a test case, who has more to lose than a fight worth having.

The silence of those people is precisely what is not visible and not recorded. Absence of speech does not produce data. What produces data is the number of visas denied, the number of removal orders issued, the Federal Register entries. The chilling effect is the gap between those numbers and the political speech that would have occurred without the threat of immigration consequences.

Khalil is in the record. The unrecorded are not.

The Third Circuit will rule on whether Khalil can be deported. It will not rule on whether the attempt was made.

Sources