On September 25, the Board of Immigration Appeals (BIA) – the appellate DOJ tribunal that reviews agency immigration decisions — issued an order in Matter of M-K-, defending itself and the Executive Office for Immigration Review (“EOIR”, the department component that oversees both the Board and the immigration courts) against claims of bias. It didn’t take much sleuthing to determine that the alien respondent in this matter is Syrian-born, Algerian national, Columbia University graduate, and “Palestinian activist” Mahmoud Khalil.
The Truncated Version of the Saga’s First Chapters
Khalil was admitted to the United States in 2022 as a nonimmigrant on an F-1 student visa to attend Columbia, where he played a disputed role in protests (some violent) over the then-ongoing war between Israel and Hamas in Gaza on the school’s New York City campus.
In November 2024, he adjusted his status to lawful permanent resident (“green card holder”), based on his marriage to a U.S. citizen.
ICE arrested Khalil in March 2025, relying on a letter issued by Secretary of State Marco Rubio in which he concluded Khalil’s “activities and presence ... in the United States would have potentially serious adverse foreign policy consequences and would compromise a compelling foreign policy interest”.
Based on Rubio’s determination, ICE placed Khalil into removal proceedings and charged that he was removable on the “foreign policy” ground of deportation, section 237(a)(4)(C) of the Immigration and Nationality Act (INA).
That provision states, in pertinent part: “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”
Almost immediately after his arrest, Khalil, through counsel, filed a habeas petition seeking release with the U.S. District Court for the Southern District of New York (S.D. N.Y.).
Habeas actions are based on detention, however, and ICE didn’t detain him in New York, though it did briefly hold him at the Elizabeth Detention Facility in New Jersey before transferring him to an detention center in Louisiana (due to an apparent “bedbug issue” in Elizabeth).
Because he was in New Jersey when he filed his petition, on March 19 an S.D. N.Y. judge transferred his case to the U.S. District Court for the District of New Jersey (D. N.J.) — not to a federal court in the Western District of Louisiana where he was then being held, as the government had requested.
The matter was assigned to D. N.J. Judge Michael Farbiarz, and on June 11, 2025, the court enjoined the government from both removing and detaining Khalil based on Rubio’s foreign policy determination. Nine days later, he directed DHS to release Khalil in a brief, two-page order.
Khalil was released, but by that point ICE had lodged an additional deportation charge, alleging he was removable under section 237(a)(1)(A) of the INA for having failed to “disclose certain information” when he applied for his green card.
In particular, ICE alleged, Khalil failed to mention he had been a “political affairs officer for the United Nations Relief and Works Agency for Palestine Refugees” (UNWRA) and had previously been employed “as a program manager by the Syria Office in the British Embassy in Beirut”.
On June 20, 2025 — the same day as the D. N.J.’s release order — an immigration judge in Louisiana found Khalil removable on both the “foreign policy” ground and under the section 237(a)(1)(A) charge and denied an asylum application he had filed as relief from removal.
In a July 17, 2025, order, Judge Farbiarz found the “the immigration judge concluded [Khalil] is not eligible for asylum — for reasons that she explicitly stated are not based on the Secretary of State’s determination”. On that basis, he held that the asylum decision did not violate his injunction.
He concluded, however, that other parts of the immigration judge’s decision were at odds with his order and directed the immigration court to consider whether Khalil was eligible for a separate form of relief, a waiver to the “fraud at adjustment” ground of removability under section 237(a)(1)(H) of the INA.
In response, on September 12, 2025, the immigration judge issued a decision denying that waiver and ordering Khalil removed under section 237(a)(1)(A) of the INA.
On September 17, counsel for Khalil wrote a letter to the D. N.J. complaining the immigration judge’s order “is part and parcel of [the government’s] broader effort to retaliate against [Khalil] for his constitutionally protected expression in support of Palestinian rights” that “represents a substantial threat to [Khalil’s] liberty, family integrity and if ultimately removed, his physical safety”.
Despite that plaint, Khalil nonetheless filed a timely administrative appeal from the immigration judge’s decision to the BIA on October 9, 2025.
Then, in an interesting (and likely unprecedented) turn of events, Khalil filed a letter with the D. N.J. on October 28, 2025, “alert[ing] the Court to relevant developments in his immigration case”, specifically that the BIA had directed counsel to file an opening brief by November 12, 2025, with a government response due three weeks later.
Essentially, Khalil was dissatisfied that the BIA was hearing his case too quickly — an issue that played a role in the BIA’s latest opinion.
In the interim, on June 20, 2025, DOJ filed a Notice of Appeal with the Court of Appeals for the Third Circuit of Judge Farbiarz’s release order and on January 15, the circuit court issued its split, 2-1 opinion, per curiam (unsigned, for the court as a whole).
While the majority concluded the D. N.J. had habeas jurisdiction over Khalil’s case even though he was being held in Louisiana, it concluded Judge Farbiarz lacked subject matter jurisdiction over Khalil’s claims under the “zipper clause” in section 242(b)(9) of the INA.
Congress wrote that provision to streamline judicial review of immigration questions into one circuit — not district — court “petition for review” (PFR) filed “with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings” to avoid lengthy piecemeal litigation that would improperly slow the removal process.
Hence, it’s the zipper clause because “it zips together all judicial review of immigration proceedings into a single action at the court of appeals”.
On May 22, the Third Circuit denied Khalil’s request for rehearing en banc (by all the judges on the court), effectively ending the New Jersey federal court’s adjudication of his case.
Matter of M-K- I
On April 9, the BIA issued its first opinion in Matter of M-K-, using only Khalil’s initials to designate him under regulations that bar the disclosure of asylum claims (even though it was apparent from the facts in the opinion that it was him), and a few days later designated that opinion as precedent.
The Board first concluded that Rubio’s letter was “presumptive and sufficient evidence” that “M-K-“ is removable under section 237(a)(4)(C)(i) of the INA.
It next held that the respondent’s “failure to disclose his involvement with” UNRWA on his adjustment application “constitutes a material misrepresentation rendering him removable under section 237(a)(1)(A) of the INA”.
Additionally, the BIA concluded the immigration judge properly denied his request for a waiver, given that the equities in M-K-‘s case “were outweighed by the negative factors, including the Secretary of State’s letter that the respondent’s presence in the United States would have potentially serious adverse foreign policy consequences”.
Finally, the Board affirmed the immigration judge’s denial of asylum and associated humanitarian relief.
Matter of M-K- II
Thereafter, Khalil through counsel filed a motion to reopen, which the BIA’s dismissed in its latest opinion, Matter of M-K- (Matter of M-K- II).
Respondent therein asked the Board to reopen to terminate the government’s case or, alternatively, to remand the matter back to the immigration court, contending that “he was denied a fair hearing”.
Counsel for the respondent threw everything except the kitchen sink at the Board and EOIR, but as the BIA summarized his main arguments:
(1) because multiple Appellate Immigration Judges may have recused from voting on whether to publish the Board’s initial decision (but were not involved in the outcome of the panel decision itself); (2) those recusals necessarily occurred for one — and only one — reason (as opposed to the myriad of possible reasons for recusal); (3) that one reason was that the recused Appellate Immigration Judges previously pressured or influenced the presiding Immigration Judge in the respondent’s case; and (4) because of that improper influence, the respondent is entitled to a new hearing or the termination of his proceedings. [Emphasis in original.]
“The first three points are without foundation and do not logically follow”, the Board concluded, “rendering the fourth point completely unsupported”.
Specifically, the respondent contended that “at least three” BIA members improperly influenced the manner in which the immigration judge decided his case “based on their recusals” and that a “pattern of unusual decisions” by the immigration court and the BIA — “especially the expeditious manner in which the case was adjudicated — violated his right to an impartial hearing before a neutral adjudicator”.
“The Ultimate Question Is: Were the Board Members Correct? Did they Get the Law Right?”
Among the documents M-K- submitted with his motion to reopen was “a May 8, 2026, New York Times article”, and although no link to that article and no headline was provided in Matter of M-K- II, the BIA appears to be referring to a piece published by the paper on that date, “Mahmoud Khalil Hurtles Toward Potential Deportation as U.S. Speeds Case”.
Here are the two key paragraphs therein:
Internal board documents obtained by The New York Times show that the case was considered high priority even before the board officially received it. A note from an internal case-tracking file from June said that, even though Mr. Khalil had been released several days earlier, the case was to be handled as if he were still in detention, which would speed it along.
. . .
The board made its decision within nine days of the final court papers being filed in the case. Such decisions typically come years after papers are filed in cases in which the noncitizen is not detained.
Two observations. First, based on my experience as an associate general counsel at the then-INS in the agency’s National Security Law Division during the Clinton and George W. Bush administrations, I can assure you high-profile cases (like Khalil’s) are almost always prioritized with the goal of completing them as expeditiously as possible, consistent with due process.
Second, and as the BIA noted, an interest in expeditious completion would be particularly keen in a situation like this one, where the secretary of State has concluded the alien’s very “presence in the United States would have potentially serious adverse foreign policy consequences and would compromise a compelling United States foreign policy interest”.
To be fair (and more modest than usual), you likely don’t need my experience to comprehend either of these facts, but you must read 19 paragraphs into the Times article before you come to the following:
David McConnell, a former senior Justice Department official who handled immigration appeals, said that the speed of the decision and the number of recusals were “very unusual” but not necessarily a signal of something nefarious. During previous administrations, he said, senior officials would occasionally fast-track cases that presented pressing legal issues.
“They can move quickly when there is some particular reason to do it,” Mr. McConnell said. “The ultimate question is: Were the board members correct? Did they get the law right?” [Emphasis added.]
Technically, that’s two questions, and I answer both in the affirmative.
The Subsequent Publishing of Matter of M-K- I
As for the subsequent publishing of the previously unpublished Matter of M-K- I, the Board in its latest opinion explained it had:
dismissed the respondent’s appeal and denied his motion to remand in a detailed, three-Appellate Immigration Judge panel decision on April 9, 2026. The en banc Board then voted on April 15, 2026, to designate the decision as precedent under 8 C.F.R. § 1003.1(g)(3). The fact that some Appellate Immigration Judges may have recused themselves from the case ipso facto shows that they took no part in the case at the Board. And, as discussed above, there is no credible evidence to connect the recusals to any improper pressure on the presiding Immigration Judge. [Emphasis added; citation omitted.]
That highlighted fact should be self-evident, as well.
A Broader Attack on the BIA and Immigration Courts
The respondent elsewhere broadened his attack, contending (as the BIA put it) that “the Immigration Courts and the Board are currently incapable of providing all respondents a fair hearing” due to those tribunals “hiring practices” and EOIR’s “policy directives” and “actions inconsistent with district court rulings”.
With respect to the last contention, as the Seventh Circuit has explained, “A single district court decision ... has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district.” Accordingly, the BIA isn’t required to follow district court rulings aside from those involving the same alien or aliens who were the subjects of such rulings.
As for EOIR’s hiring practices, and in particular the BIA’s recent “reduction in force” (RIF) from 28 to 15 members), the Board noted that those steps were taken to “increase the consistency of Board decisions and facilitate an efficient en banc process, thereby improving the quantity and value of Board precedents”, were properly announced in the Federal Register, and affected the most recently hired members, consistent with federal RIF regulations.
More generally, the BIA concluded that “the respondent’s assertion that no fair adjudication by the Board is possible” was “unsupported by his own evidence”, which showed that “10.31% of aliens received favorable appellate outcomes during the covered period”. Those respondents likely aren’t complaining about fairness.
Further, the Board noted that, as of March 31, the circuit court “reversal rate for Administrative Agency Appeals — most of which are petitions for review of Board cases — was only 5.1%”, suggesting that the other 94.9 percent of the time the BIA gets it right but in any event a statistic that significantly weakens M-K-‘s fairness claims.
The Saga Continues
On these and other grounds, the BIA dismissed M-K-‘s motion to reopen.
The saga of Mahmoud Khalil continues. Last month he filed the opening brief for his petition for review of Matter of M-K- I with the Fifth Circuit, and in July he asked the Supreme Court for more time to seek its review of the Third Circuit’s order, which remains pending. The alien who has long complained the Board of Immigration Appeals considered his case too quickly is doing everything he can to slow down the government’s efforts to remove him.