Judge says DHS can keep Mahmoud Khalil, pro-Palestinian protester, in detention

Mahmoud Khalil, the Palestinian student who became the most prominent anti-Israel activist targets for deportation by the Trump administration, thought he was on the verge of being released Friday.

Then Homeland Security said it wasn’t going to happen after all.

And a federal judge refused to overrule the department and order his release.

Judge Michael Farbiarz had ruled earlier this week that Mr. Khalil could not be detained on the grounds that his pro-Palestinian activities interfered with U.S. foreign policy. He said that was unconstitutionally vague.

He also said it’s rare that the government detains migrants whom it accuses of providing inaccurate information on their green card application forms.

But the Justice Department said Friday that’s what it plans to do, and the judge said he won’t stop them.

“It would be plainly unlawful to detain the petitioner on a charge the court preliminarily enjoined. But by their letter the of this afternoon … the respondents have now represented that the petitioner is being detained on another, second charge. That second charge has not been preliminarily enjoined by the court,” the judge said.

August E. Flentje, a Justice Department lawyer, said if Mr. Khalil wants to contest the second charge, he will need to so in arguments to Homeland Security officers and then in an immigration courtroom — not in the U.S. district court where he had been arguing his case.

“These administrative processes are the proper avenues for Khalil to seek release — not having a federal district court hold that the government cannot detain Khalil on a charge that the court never found to be unlawful,” Mr. Flentje said.

The lawyer said: “An alien like Khalil may be detained during the pendency of removal proceedings regardless of the charge of removability.”

Mr. Khalil’s lawyers had been preparing for his release, sending emails to U.S. Immigration and Customs Enforcement wondering why preparations hadn’t been made.

They said Mr. Khalil had even already posted his bond.

“I was, and am, writing to ask about tomorrow [and] what time he might be available to be released,” Marc Van Der Hout, one of Mr. Khalil’s lawyers, said in an email to ICE in Louisiana, where he is being held.

But the government had demurred in response to those emails, sending Mr. Khalil’s team rushing to Judge Farbiarz to demand he order the release.

The judge refused, agreeing with the government that Mr. Khalil must now take his arguments to the immigration courts or Homeland Security itself.

Mr. Khalil, a legal permanent resident, was one of the lead negotiators for pro-Palestinian protests at Columbia University.

Trump officials say his behavior interfered with U.S. foreign policy. Secretary of State Marco Rubio flexed a power under law that allows him to revoke status of someone found to be detrimental to foreign policy.

That’s the action Judge Farbiarz struck down.

The government also raised the issue of misinformation on his immigration application, which can also render someone out of status.

Judge Farbiarz said Mr. Khalil’s lawyers didn’t properly contest that issue in their legal arguments.