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A Department of Justice lawyer argued to an appeals court on Tuesday that a lower court’s decision to block activist Mahmoud Khalil’s detention and removal was “fundamentally flawed” and should be reversed.
DOJ lawyer Drew Ensign’s arguments came as he faced pointed questions during a hearing from the U.S. Court of Appeals for the 3rd Circuit in a turbulent months-long court case centered on noncitizens’ constitutional rights.
Ensign said the New Jersey district court that sided with Khalil did not have proper jurisdiction over Khalil’s case and that Khalil’s habeas corpus petition was not the right vehicle to challenge his detention and removal. Ensign said the immigration courts, which are under the purview of the DOJ, were the correct venue.
“Habeas is the path the petitioner has chosen, and the district court indulged that unlawful detour by issuing an indefensible injunction,” Ensign said. “This court should reverse.”
FEDERAL JUDGE SIDES WITH ANTI-ISRAEL RINGLEADER MAHMOUD KHALIL, HALTS TRUMP ADMINISTRATION’S DEPORTATION BID
Khalil, a Columbia University graduate who became a ringleader of campus protests against the Israeli government, has been fighting to stay in the United States since March, when the DOJ first accused him of violating immigration laws because of his advocacy for Palestine and perceived sympathy for Hamas terrorists.
Khalil, who is a lawful permanent resident, was arrested at the time and deemed removable by an immigration judge because of what the Trump administration said was speech that was at odds with the United States’ national security posture.
In June, Judge Michael Farbiarz, a Biden appointee based in New Jersey, blocked the immigration judge’s decision, saying Khalil’s First Amendment rights were violated, and the judge ordered Khalil released on bail.
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In a subsequent order, Farbiarz also took issue with an immigration judge’s new decision, which found Khalil was removable based on a newer allegation by the Trump administration that Khalil fabricated information on his green card application. Khalil’s lawyers are now separately challenging that claim.
Ensign, who has been arguing on behalf of the Trump administration in several controversial immigration lawsuits, accused Khalil’s lawyers of attempting to bypass immigration laws, which have established a process where immigration courts can make decisions about deportations and defendants can appeal those decisions.
Khalil’s lawyers are attempting to “circumvent the carefully designed and articulated scheme that Congress has created for judicial review,” Ensign said.
One judge on the three-judge panel that heard the case on Tuesday said Khalil’s attorneys should not be faulted for filing a habeas corpus petition in New Jersey in March because they did not know their client’s true location at the time. Khalil’s arrest and detention took place over a whirlwind few days, where he was detained in New York, moved to New Jersey, then moved to Louisiana.
“The lawyers didn’t know,” the judge said. “They had to prepare for the worst. What else do they do, unless we’re creating a black hole of jurisdiction?”
The appellate court judges did not say when they would make a decision, but one could come at any time.
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