Weeks of Trump administration attacks on both speech and immigrant rights have come to a head this week with the ICE detention of Mahmoud Khalil, a legal permanent resident and Palestinian graduate of Columbia University who had been involved in organizing campus protests. Donald Trump himself took credit for the detention on Truth Social, tying the organizer, without evidence, to Hamas.
In the aftermath, protesters, journalists, commentators, and elected officials were shocked not only that Khalil had been detained but that he did not immediately show up in ICE’s detainee locator; he then showed up suddenly in Louisiana, prompting many people to call his arrest an authoritarian disappearance. In Bluesky threads and online discussions, commentators wondered if it was legal for the agency to take him into custody before any such charges were filed. Few seemed to realize that this sequence of events is broadly “normal”—not in the sense of being justifiable but in the sense that this is relatively routine. In other words, what looks like a certain injustice when viewed strictly through the prism of the spirit of our democracy, if not morality, is actually the system operating precisely as it’s been designed.
The perturbing truth is that the government legally does not need to criminally charge Khalil with anything—not now and not necessarily at any point in a removal process. The detention itself is probably illegal on constitutional grounds. Here, the Trump administration has left little doubt at this point that the targeting was driven by protected speech. (As an unnamed White House official told The Free Press, the Bari Weiss-led newsletter for very online reactionaries, “The allegation here is not that [Khalil] was breaking the law.”) But outside of that, these proceedings are otherwise lawful. The federal government is fully empowered to put noncitizens, up to and including permanent residents, in removal proceedings and summarily detain them in what is laughably called ICE’s “nonpunitive” detention while their cases move forward in immigration court.
Detained New Yorkers are, in fact, very often transferred to rural areas in the deep South because that’s where the agency has its highest density of detention space through private prison corporations, such as the GEO Group, as well as contracts with local counties. At no point in this process does a judge have to intervene— administrative warrants that ICE can use to take someone into custody need only be signed by supervisors in the agency itself, based on allegations of civil violations of immigration law that are eventually laid out in a charging document called a notice to appear, or NTA, which we still haven’t seen for Khalil.
At this stage, Khalil’s lawyers have gotten a federal judge to block any potential deportation by filing a habeas corpus petition resting on the First Amendment concern. It’s possible that the administration has been so vocal about targeting him for speech as a sort of stress test around what they can get away with, but the harsh fact of the matter is that, absent all that public noise, it’s unlikely that Khalil would have had any foothold to challenge the detention because the feds are, in essence, allowed to do exactly what they’ve done.
By law, nonimmigrant visas such as F-1 student visas can be revoked in a discretionary and unappealable way over all sorts of subjective determinations—for example, that a visa holder has “immigrant intent.” Permanent residency has much stronger protections, and as some others have noted, cannot simply be revoked; certainly not by the State Department, which does not issue residency determinations. There’s been confusion over ICE agents’ reported assertion that Khalil’s green card had been terminated, but these agents are grunts, no more versed in the law than a beat cop.
Some reporting points to the government leaning on an obscure portion of immigration law that allows a secretary of state to find deportable an “alien whose presence or activities in the United States … would have potentially serious adverse foreign policy consequences,” but this is not automatic, in the same way that being charged with a crime doesn’t mean you’re convicted. If that’s the route the government is taking, it will have to present a case in immigration court while simultaneously fending off the federal constitutional case. None of that stops it from being legally able to arrest and hold him as this all plays out.
In the immigration courts, Trump’s DHS will be helped along by the fact that immigration judges are not actually independent federal judges but employees of the Justice Department, in a system where the appellate division is handpicked by the attorney general, currently MAGA acolyte Pam Bondi, who also serves as a kind of individual Supreme Court for cases of their own choosing. The first Trump administration remade the immigration courts in its own image, and it’s likely to keep doing so now. Khalil will have the benefit of a parallel federal habeas case, but most people who will end up getting caught in this dragnet will not. They will instead be left to the whims of a court system under the direct supervision of Trump’s attorney general.
For all the acute and persistent faults of the criminal justice system, what many are coming to find out now is that it is a paragon of due process and transparency compared to the immigration system. Whenever this case actually makes its way to immigration court, I imagine a lot of people will be shocked to learn that these court records are not publicly available anywhere, either electronically or in person, that the courtrooms are tiny (I’ve had a tough time cramming my class of 12 people into a courtroom for observation), and that there are no recordings and certainly no cameras allowed. I’ve had to fight with ICE to let me into immigration courtrooms that are presumptively open to the public, where I’ve watched all manner of quasi-judicial follies, such as ICE agents failing to actually bring up detainees with scheduled court dates (oops!), and at least a dozen or more hearings in a row in which proceedings pass by without any of the nominal respondents having a lawyer. The fact that Khalil is being represented at all makes him better protected than most of those who endure this grisly process.
All of this—the open-ended detention without any judicial sign-off, the ability to credibly threaten a green card without any underlying criminal charges, the private detention—is the culmination of a punitive and national security state approach to immigration that gained steam through the 1990s. Its seeds were planted in the latter part of the Reagan era, grew under the disastrous 1996 expansion of enforcement and deportation under Clinton, and were further supercharged after the September 11 attacks. In the aftermath, immigration functions were stripped from the nominally independent Department of Justice and put under the auspices of the Department of Homeland Security, thus consolidating power under the executive.
That the Trump administration can use these tools to maximum effect toward its autocratic ends is only possible because the tools were created and maintained by successive legislatures and presidential administrations, which saw them as perhaps unsavory but useful powers to hold over the least legally protected class in American jurisprudence, the noncitizen. While much of the consternation around this particular case centers on the presumption that Khalil’s detention was plainly illegal, the most concerning part about this saga is that it’s not.
