The ongoing saga of Mahmoud Khalil — Columbia University graduate and “Palestinian activist” — took its latest turn on September 12, when Immigration Judge (IJ) Jamee Comans of the Jena (La.) Immigration Court denied his pending application for a waiver and ordered him removed from the United States to Algeria or in the alternative to Syria. Expect more action to follow, and for the Supreme Court to eventually get district courts back in their proper lane.
A Condensed Timeline
Khalil first came to the United States in 2022 on an F-1 nonimmigrant student visa to attend Columbia University. Thereafter, in November 2024, he adjusted his status to lawful permanent resident (“green card holder”) based on his marriage to a U.S. citizen.
In early March, ICE arrested Khalil based on a letter issued by Secretary of State Marco Rubio concluding 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”.
ICE consequently placed Khalil into removal proceedings and charged him with removability under 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.”
Shortly after he was arrested, Khalil, through counsel, filed a petition for writ of habeas corpus seeking release on March 9 before the U.S. District Court for the Southern District of New York.
Habeas actions are based on detention, however, and ICE never detained him in New York, but it did briefly hold him at the Elizabeth Detention Facility in New Jersey before transferring him to an immigration 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 a district court judge in New York transferred his case, Khalil v. Joyce, to the district court in 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 case was assigned to Judge Michael Farbiarz of the D. N.J., where it remains.
In a June 11 opinion, Judge Farbiarz enjoined the government from both removing and detaining Khalil based on Rubio’s foreign policy determination, and on June 20, directed DHS to release Khalil in a brief, two-page order.
Khalil was released, but well before that point ICE had lodged an additional charge, alleging he was removable under section 237(a)(1)(A) of the INA, because:
he failed to disclose certain information in his adjustment of status application, including: (1) his service as the political affairs officer for the United Nations Relief and Works Agency for Palestine Refugees [UNWRA]; and (2) his employment as a program manager by the Syria Office in the British Embassy in Beirut.
The “Failure to Disclose” Charge
Let me explain.
Adjustment of status under section 245 of the INA is a convenience Congress provided to aliens present here who are eligible to receive immigrant visas, as it allows them to receive those visas and immigrate without departing the United States and going through consular processing abroad.
Pursuant to section 245(a) of the INA, however, an adjustment applicant must satisfy three requirements to receive a green card: (1) file an adjustment application (Form I-485); (2) prove that he or she is “eligible to receive an immigrant visa and is admissible to the United States for permanent residence”; and (3) establish “an immigrant visa is immediately available to him at the time his application is filed” (emphasis added).
Under section 212(a)(6)(C)(i) of the INA, “Any alien who, by ... willfully misrepresenting a material fact, seeks to procure (or has ... procured) a visa ... or other benefit provided under this chapter is inadmissible.”
Logically, a green card is “a benefit provided” by the INA, and omitting key facts in an adjustment application can constitute a “willful misrepresentation” (rendering the alien inadmissible) if it’s “clear from the evidence that the alien consciously concealed information”.
Of course, Khalil had been admitted to the United States (as a nonimmigrant student) before he applied to adjust his status and omitted those facts, but Congress knew DHS wouldn’t always catch willful misrepresentations or omissions until well after the fact.
Consequently, section 237(a)(1)(A) of the INA renders deportable, “Any alien who at the time of ... adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time” — such as for fraud or willfully misrepresenting a material fact under section 212(a)(6)(C)(i).
The June 20 Order
The same day Khalil was released, June 20, IJ Comans issued a written order finding Khalil removable on both the “foreign policy” ground and under the section 237(a)(1)(A)/212(a)(6)(C)(i) charge and denying him asylum.
In a July 17 order, Judge Farbiarz concluded the IJ “conducted an extensive and close written analysis of the asylum issue, spanning six single-spaced pages and based on live testimony”.
He continued: “In light of this, 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 asylum decision did not violate his injunction.
He concluded, however, that certain portions of the IJ’s June 20 decision were at odds with his order.
Section 237(a)(1)(H) Waiver
Specifically, Judge Farbiarz directed IJ Comans to consider whether Khalil was eligible for a waiver under section 237(a)(1)(H) of the INA.
It states, in pertinent part:
The provisions of [section 237(a)(1) of the INA] relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in [section 212(a)(6)(C)(i) of the INA], whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in [section 237(a)(4)(D) of the INA] who-
(i)(I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under sections 1182(a)(5)(A) and (7)(A) of the INA] which were a direct result of that fraud or misrepresentation. [Emphasis added.]
On July 31, IJ Comans vacated the portion of her order finding Khalil was removable on the foreign policy ground, and on September 12, issued an order denying (inter alia) his application for a waiver under section 237(a)(1)(H) of the INA.
The IJ’s Order
Specifically, IJ Comans concluded Khalil wasn’t statutorily eligible for that waiver, and alternatively that he had failed to show he merited that waiver in the exercise of discretion.
Discretion is the easier part. The IJ considered his equities, namely his U.S. citizen wife (who is “gainfully employed”) and son, and concluded the hardship they’d suffer if he were to be removed “is consistent with that which would ordinarily be expected to result from a family member’s removal”.
Moreover, she found that there were significant “negative equities” in his case, “[w]holly independent from consideration of the foreign policy determination by the U.S. Secretary of State”, including his lack of “long-time residence in this country”, that his “employment is limited to internships through the university while enrolled in school”, that “he has not presented any evidence he was employed in any other capacity”, absence of “evidence of property or business ties”, and “[m]ore importantly” his status as “a conditional lawful permanent resident” who “has not yet reached the pivotal point of adjusting status permanently” (emphasis in original).
Not surprisingly, she also considered his fraud when applying for adjustment as a negative discretionary factor:
This Court finds that the Respondent is an intelligent, ivy-league educated individual that understood the bold, capitalized letters at part 8, page 9 on the I-485 required the disclosure of his affiliations with UNRWA and [Columbia University Apartheid Divest, “CUAD”]. This Court further finds that the Respondent understood the consequences and that the candid disclosure of his affiliations might lead to an additional line of questioning and the ultimate denial of his application for conditional permanent residency. This Court finds that Respondent’s lack of candor on his I-485 was not an oversight by an uninformed, uneducated applicant. This Court finds that the Respondent’s purposeful, non-disclosure was not a misrepresentation by another which imputed consequences to the Respondent. Rather, this Court finds that Respondent willfully misrepresented material fact(s) for the sole purpose of circumventing the immigration process and reducing the likelihood his application would be denied. This Court cannot and will not condone such an action by granting a discretionary waiver. To do so, would encourage future applicants to take the gamble of materially misrepresenting facts and then seeking a waiver if it is somehow discovered by the U.S. government. [Emphasis added.]
Which brings me to the availability of the waiver itself. Note that section 237(a)(1)(A) of the INA states: “Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.” (Emphasis added.)
As noted, the IJ found Khalil deportable based on nondisclosures at the “time of [his] adjustment of status” under that divisible phrase.
The problem, the IJ concluded, is that under the highlighted portions of section 237(a)(1)(H) above, a waiver is only available to an alien who was inadmissible at the time of entry — not at the time of adjustment like Khalil — because the words “adjustment of status” do not appear in that subparagraph.
In a 2015 decision in Matter of Agour, however, a divided (2-1) panel of the Board of Immigration Appeals (BIA) nonetheless concluded: “Adjustment of status constitutes an ‘admission’ for purposes of determining an alien’s eligibility to apply for a waiver under section 237(a)(1)(H).”
It was a split decision because it ran counter to the BIA’s 1984 decision in Matter of Connelly, which held that an earlier iteration of that waiver in section 241(f) of the INA (1982) “only waives excludability grounds that existed at the time of an alien's entry into the United States” — not during adjustment.
As I recently explained, Congress replaced “excludability” with “inadmissibility” in 1996 when it shifted the focus for aliens arriving in the United States from whether they had “entered” to whether they had been “admitted”; “entry” still appears in section 237(a)(1)(A), but section 237(a) itself makes clear that the grounds of deportability therein only apply to aliens “in and admitted to the United States”.
The Jena Immigration Court is in the jurisdiction of the Fifth Circuit and the IJ looked to language in a published decision issued by that circuit that defined the term “admission” for purposes of a “similar waiver under” section 212(h) of the INA as excluding “post-entry adjustment of status”.
“Following this line of reasoning,” IJ Comans concluded, “the omission of adjustment of status within the language of” section 237(a)(1)(H) of the INA “supports a finding that Congress never intended the waiver to apply to aliens seeking post entry adjustment of status, because the plain language limits the waiver to those who are inadmissible at the time of admission”.
Ignoring a BIA decision directly on point based on circuit precedent applied by implication, as the IJ did here, is a tricky business.
But the IJ’s reasoning is more convincing than the majority decision in Matter of Agour (from which, again, there was a dissent), so don’t be surprised if on appeal the Board vacates its 2015 decision — not because of anything having to do with Khalil, but because the majority there was wrong as a matter of interpretation.
The September 17 Letter to Judge Farbiarz
Khalil’s counsel was not happy with this outcome, and sent a letter to Judge Farbiarz complaining that the IJ’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”.
In that September 17 letter, counsel indicated Khalil intends to ask Judge Farbiarz to immerse himself even more in Khalil’s case. The question is whether he will.
In that vein, I’ll note that Congress repeatedly went out of its way in the “judicial review” provisions in section 242 of the INA to limit the jurisdiction of trial-level U.S. district court judges. Here’s how all of this should play out.
Both section 240 of the INA, which governs IJ removal proceedings, and the regulations implementing it allow Khalil to appeal the IJ’s order to the BIA.
If the Board affirms IJ Comans, section 242(b) of the INA allows him to file a petition for review “with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings”, in his case, the Fifth Circuit.
Counsel argues in its letter, however, that: “Compared to other courts of appeals, including those in the Third and Second Circuits, the Fifth Circuit almost never grants stays of removal to noncitizens pursuing petitions for review of BIA decisions.”
Those references are telling: the Third Circuit has jurisdiction over New Jersey; and the Second Circuit covers New York.
Judge Farbiarz may want to check out all of section 242, and in particular the “zipper clause” in section 242(b)(9), which states:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. [Emphasis added.]
That is a clear statement of Congress’s intent to channel claims like Khalil’s away from trial-level district court judges (like Judge Farbiarz) directly to the circuit courts, where all the alien’s claims — discretionary, statutory, and constitutional — can be considered.
“Pentagon to Send 600 Lawyers to Serve as Temporary Immigration Judges”
To his credit, Judge Farbiarz has been very precise in his determinations up to this point. Not that I agree with everything he’s done, but he’s been punctilious in explaining why he did it and the facts are clear for appeal.
Keep his actions, and the actions of his other colleagues on the district court bench who have considered claims in Trump II-era immigration cases, in mind however when many of the advocates promoting such cases decry the administration’s efforts to appoint “temporary immigration judges” (TIJs), a proposal I discussed on September 5.
Days before, AP reported that 600 lawyers from the Department of War would be detailed on a rotational basis to serve as TIJs and hear removal cases, including the following quote:
The head of the American Immigration Lawyers Association decried bringing in temporary judges who lack expertise in immigration law, saying “it makes as much as sense as having a cardiologist do a hip replacement.”
“Expecting fair decisions from judges unfamiliar with the law is absurd. This reckless move guts due process and further undermines the integrity of our immigration court system”.
Few if any district court judges have any experience — let alone “expertise” — in immigration, particularly given that Congress has almost completely shut them out of the process. And yet, lawyers continue to file immigration cases with them.
The IJ’s decision ordering Khalil removed should next be considered by the Board of Immigration Appeals, and then the Fifth Circuit — as Congress decrees. That’s not the path Khalil has chosen, so don’t be surprised if the Supreme Court eventually intervenes to get everybody back in their proper lanes.