The Khalil Case and the Difference Lawful Permanent Resident Status Makes
The government’s attempt to remove Mahmoud Khalil, a lawful permanent resident (LPR) of the United States and student at Columbia University, is a marked departure from long-standing law and practice. Immigration officials have not claimed that Khalil, whose U.S. citizen wife is awaiting the birth of their first child, has engaged in unlawful conduct. Rather, officials have invoked a rarely used provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(4)(C), that renders a noncitizen removable when the secretary of state has found that his or her continued presence creates “potentially serious” risks for U.S. foreign policy.
Since Fong Haw Tan v. Phelan (1948), the Supreme Court has recognized that deportation of an LPR is a “drastic measure”—a “forfeiture” of ties with family, friends, and community. The Court has required a “clear statement” from Congress that the legislature’s plan included this harsh result. That clear statement is absent here.
A clear statement approach would build on Congress’s long-standing treatment of lawfully admitted immigrants. It would also preserve the fabric of the INA and free expression. The current provision stemmed from congressional discontent with executive branch efforts to curtail the content of foreign nationals’ speech. The Conference Report on the Immigration Act of 1990—far-reaching legislation that included the foreign policy provision—stated that the authority Congress granted could “not be based merely on … the possible content of an alien’s speech.” In a case such as the attempted removal of Khalil, who participated in campus protests, Congress wished to limit the secretary of state’s authority to situations of “imminent harm to the lives or property of United States persons abroad or to property of the United States government abroad.” Immigration officials have not even attempted to make that showing here.
Without a clear statement from Congress signaling that this broad authority extends to LPRs, courts should hold that LPRs are beyond the provision’s scope.