The Designation

On April 9, the Board of Immigration Appeals denied Mahmoud Khalil’s appeal and upheld the order removing him from the United States. On April 16, the Board did something different: it designated that decision as binding precedent, publishing it as Matter of M-K-, 29 I&N Dec. 556.

These are different legal acts. The BIA decides thousands of immigration appeals each year. Nearly all are unpublished, binding only on the parties involved. Under 8 CFR 1003.1(g), the Board’s permanent members can vote to designate a decision as precedent, or the Attorney General can direct it. Once designated and published, the decision binds every immigration judge, every BIA panel, and the Department of Homeland Security in all future proceedings raising the same legal issues.

The Board did not merely rule against Khalil. It ruled that his case would govern what happens to the next person.

Two rules are now the immigration system’s official position. First: when the Secretary of State certifies that a non-citizen’s presence poses “potentially serious adverse foreign policy consequences,” that certification is “presumptive and sufficient evidence” of removability. Immigration judges cannot look behind the letter. They cannot examine the factual basis for the Secretary’s determination, question the reasoning, or weigh contrary evidence. The letter is the finding.

Second: Khalil’s failure to disclose a UNRWA internship --- funded through Columbia University --- on his green card application constitutes willful material misrepresentation sufficient for removal. Every future applicant who omits a similar association faces the same binding standard.

Khalil’s individual case is not resolved. The New Jersey federal injunction remains in place. His habeas corpus petition is before the Third Circuit. He is in the United States and cannot currently be deported. The federal courts have not ruled on whether applying Section 237(a)(4)(C)(i) to political advocacy violates the First Amendment.

The binding precedent is not waiting for them.

Every immigration judge in the country is now bound by a decision that no federal court has reviewed for constitutionality. This is not a malfunction. The BIA’s authority to designate precedent and the federal courts’ authority to review it operate on different timelines, through different mechanisms. The precedent is valid and binding until a federal court says otherwise. No federal court has said anything yet.

Khalil is simultaneously the person whose constitutional rights are being adjudicated and the cited authority for doing the same thing to the next person. His name is in the rulebook. The rulebook applies now. The case that wrote his name there is pending.

The consequence is operational. The next Secretary of State certification targeting a non-citizen’s political speech does not need to win a constitutional argument before an immigration judge. It cites Matter of M-K-. The judge is bound. The constitutional challenge, if one comes, moves to federal court --- months or years later, after the removal order, after the enforcement mechanism has activated. The precedent front-loads the authority. The constitutional check arrives after the fact.

If the Third Circuit rules in Khalil’s favor, and if the ruling reaches the BIA’s statutory interpretation, the precedent falls. That is a real possibility. But between April 16 and that ruling --- however long it takes --- the immigration system operates on Matter of M-K-. Every case processed in that interval uses Khalil as the authority for what can be done to the next person.

He organized protests at Columbia. The government made him a case. The Board made the case a rule. The rule is binding. The case is not over.

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