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IMMIGRATION MARCH 28, 2025 | The Indian Eye 34
Challenging the Foreign Policy Ground
of Removability in Defense of Free Speech
and the Rights of Green Card Holders
BY CYRUS D. MEHTA AND KAIT- at unknown place on or about though the government must or its policies. … Furthermore, and flimsy, this too could be
unknown date as a unknown prove through clear and con- the conferees intend that the the basis of a challenge that it
LYN BOX* manner”, language wholly in- vincing evidence that a green “compelling foreign policy in- does not meet the “compel-
O n March 8, 2025, DHS applicable to Khalil. Moreover card holder is deportable, the terest” standard be interpreted ling” standard.
clause 3 also states that he ad-
Secretary’s
determination
Because Khalil is a green
as a significantly higher stan-
Mahmoud
arrested
justed his status to permanent
dard than the general “poten-
meets that heavy burden based
card holder, he also has a
Khalil, a Columbia
University graduate and Pal- residence under INA 212(a) on a 1999 BIA precedent, Mat- tially serious adverse foreign strong basis to distinguish his
case from Matter of Ruiz-Mas-
(3)(C), which makes no sense.
ter of Ruiz-Massieu.
policy consequences standard.”
estinian activist, and purport- There is no basis to adjust sta- The statute may nonethe- Congress considered ex- sieu. Ruiz-Massieu, a Mexican
edly revoked his green card. tus to permanent residence un- less provide Khalil some hope amples that might meet the official, entered the US as a
Khalil was detained under INA der INA 212(a)(3)(C). for challenging his detention “compelling” standard, such temporary visitor and was ap-
237(a)(4)(C)(i) that provides Clause 4 of the NTA in- and removal. INA 237(a)(4) as when a noncitizen’s pres- prehended a day after he ar-
for the deportation of a non- vokes INA 237(a)(4)(C)(i) that (C)(ii) contains a freedom of ence would violate a treaty or rived based on accusations of
citizen if the Secretary of State provides for the deportation of speech and association safe international agreement that corruption. Khalil, meanwhile,
has determined that their pres- a noncitizen if the Secretary of harbor incorporated by refer- the United States is a party to is a lawful permanent resident
ence or activities would have State has determined that their ence to the inadmissibility pro- or the admission of the former who engaged in constitutional-
adverse policy consequences. presence or activities would visions at INA 212(a)(3)(C) Shah of Iran into the U.S. for ly protected speech. Perhaps,
The Notice to Appear (NTA) have adverse policy conse- (iii) prohibiting deportation medical treatment in 1979, a courageous Immigration
issued to Khalil was sloppily quences. Facially, INA 237(a) “because of the alien’s past, which sparked the Iranian Judge (IJ) will be persuaded
drafted; clause 3 is particularly (4)(C)(i) renders it difficult current, or expected beliefs, Hostage Crisis, according to by this argument distinguishing
disjointed and includes a refer- for a respondent to challenge statements or associations, if the AILA Advisory. Khalil’s case from Ruiz-Mas-
ence to a noncitizen who “was a negative determination. Al- such beliefs, statements, or As yet, Khalil does not sieu and terminate the remov-
admitted to the United States
associations would be law- stand accused of having en- al proceedings. Even if the IJ
ful”. In order to invoke gaged in unlawful activities denies, Khalil can appeal to
an exception for the safe (See Arulanantham and Cox, the Board of Immigration Ap-
harbor protection, the March 12, 2025, Justsecurity. peals, where he will probably
Secretary of State must org). There is thus a chance also lose, and then to the Court
“personally determine[e] that he could avail of the safe of Appeals. If his hearing is in
that the alien’s presence harbor provision. However, Louisiana, the 5th Circuit will
would compromise a Secretary Rubio’s letter as- not be as friendly as the Second
compelling US foreign serting that Khalil’s presence Circuit, assuming he can suc-
policy interest.” Accord- would compromise a compel- cessfully transfer to New York
ing to an AILA Advisory, ling US foreign policy interest if his habeas petition in the
in drafting this provision, has not yet been made public Southern District of New York
Congress replaced the (if at all there is such a letter) prevails.
phrase “seriously adverse” as of the date of this blog, and Khalil has a very good
with “compelling”, and there is similarly no evidence chance of constitutionally at-
required the government that Rubio notified his deter- tacking INA 237(a)(4)(C) in
to prove an actual com- mination to the chairmen of a court of appeals on grounds
promise to U.S. foreign the Judiciary and Foreign Af- that it violates his First Amend-
policy rather than merely fairs Committees of the House ment rights as an LPR as estab-
“potential” compromise, and to the Judiciary and For- lished by the Supreme Court in
thereby establishing a eign Relations Committee of Bridges v. Wixon, and is also
stricter standard. In a con- the Senate under INA 212(a) void for vagueness. A federal
m of ference report issued at (3)(C)(iv). If Rubio issued this district court has also found the
CYRUS D. MEHTA & PARTNERS PLLC the law was passed, Con- letter after March 9, the date statute unconstitutional (the
gress explained how this
when the NTA was served, this
judge Maryanne Trump Barry
standard should be ap- oversight could potentially pro- who made the ruling was none
plied to protected speech: vide a basis for termination of other than Trump’s late sis-
“It is the intent of the the removal proceedings with ter) in 1996 in Ruiz Massieu v.
conference committee prejudice, along with the slop- Reno. The court held that the
that this authority would pily drafted clause #3 in the statute was unconstitutional
be used sparingly and not NTA. Moreover, letter of the because it impermissibly vague,
merely because there is Secretary of State in Matter deprives noncitizens of a mean-
a likelihood that an alien of Ruiz-Massieu was quite de- ingful opportunity to be heard,
2 6th Floor will make critical remarks tailed. If there is a letter from and represents an impermis-
about the United States Rubio that was hastily written sible delegation of legislative
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