Judge says Rubio “likely” violated Constitution in ordering Mahmoud Khalil deported

A federal judge has ruled that Secretary of State Marco Rubio likely violated the constitution when he stripped Mahmoud Khalil of his green card and ordered him deported over his pro-Palestinian activism at Columbia University.

But in a lengthy, mixed ruling, U.S. District Judge Michael Farbiarz for the District of New Jersey declined, for now, to order Khalil released from federal immigration detention in Louisiana, where he’s been held since ICE agents arrested him in New York City on March 8. Judge Farbiarz said Khalil had not yet proven that his detention is causing him “irreparable harm,” and gave him more time to provide evidence that it is.

But he also suggested that even if Khalil is able to prove that, the government may, for now, be justified in detaining him on a separate charge it filed against him in immigration court alleging he committed fraud by failing to provide certain personal details on his application for a green card last year.

Khalil’s lawyers had claimed that the charge was baseless, and that the government only filed it, days after his arrest, as retaliation for his speech. But the judge ruled Khalil did not provide enough evidence for that First Amendment retaliation claim, and denied his request to be released on those grounds. Khalil’s lawyers are trying to convince an immigration judge in Louisiana to throw out that charge. That same judge ruled last month that she had no authority to question Rubio’s decision to deport Khalil.

In Wednesday’s ruling, the federal judge in New Jersey said that he would soon issue another order detailing the next steps in the case.

In a statement issued by the ACLU, Khalil’s lawyers vowed to keep fighting for his release.

“The district court held what we already know: Secretary of State Rubio’s weaponization of immigration law to punish Mahmoud and others like him is likely unconstitutional,” they wrote. “We will work as quickly as possible to provide the court the additional information it requested supporting our effort to free Mahmoud or otherwise return him to his wife and newborn son.”

The State Department did not immediately respond to a request for comment.

ICE agents arrested Khalil in the lobby of his New York apartment building after Rubio said he had determined that his pro-Palestinian activism at Columbia University was antisemitic, disruptive, and threatened the United States’s foreign policy goals of eradicating antisemitism around the world. He relied on an obscure federal statute that gives the Secretary of State sole authority to order someone deported if he determines their presence in the country “compromises a compelling United States foreign policy interest.”

In his ruling, Farbiarz wrote that Rubio likely misused the statute by targeting Khalil over his activism.

“The Secretary’s determination deserves, and gets the highest respect. But arbitrary enforcement,” Farbiarz wrote, “can also be a danger, when one person is given the job, if his determination veers too far away from the standard set down by Congress. Here, the Secretary’s did.”

Khalil’s was the first arrest under President Donald Trump’s crackdown on students who joined campus protests against Israel’s war in Gaza.

His lawyers, for months, have argued his detention is illegal and part of a broader attempt by the Trump administration to suppress constitutionally protected free speech. They are fighting his deportation on several fronts, and have also asked an immigration judge to grant him asylum.