A Department of Justice lawyer argued before a federal appeals court on Tuesday that a lower court’s decision to block the detention and deportation of activist Mahmoud Khalil was “fundamentally flawed” and should be overturned.
During a hearing at the U.S. Court of Appeals for the 3rd Circuit, DOJ attorney Drew Ensign contended that the New Jersey district court lacked jurisdiction over the case. He argued that Khalil’s challenge, filed as a habeas corpus petition, was an improper legal maneuver and that the case belongs exclusively within the immigration court system.
“Habeas is the path the petitioner has chosen, and the district court indulged that unlawful detour by issuing an indefensible injunction,” Ensign stated, urging the appellate court to reverse the decision. He accused Khalil’s lawyers of attempting to “circumvent the carefully designed and articulated scheme that Congress has created for judicial review” of immigration matters.
The case centers on Mahmoud Khalil, a lawful permanent resident and Columbia University graduate who was a prominent organizer of campus protests critical of the Israeli government. He has been fighting deportation since his arrest in March, when the government accused him of violating immigration laws through advocacy it deemed contrary to U.S. national security interests.
In June, U.S. District Judge Michael Farbiarz blocked the deportation, ruling that the government had violated Khalil’s First Amendment rights, and ordered him released on bail. Judge Farbiarz also challenged a subsequent decision by an immigration judge based on a newer government allegation that Khalil had fabricated information on his green card application. Khalil’s lawyers are contesting that claim separately.
During Tuesday’s hearing, one of the three appellate judges questioned the DOJ’s jurisdictional argument. The judge noted that Khalil’s lawyers filed the petition in New Jersey without knowing his exact location, as he had been moved rapidly between facilities in New York, New Jersey, and Louisiana after his arrest.
“The lawyers didn’t know,” the judge remarked. “What else do they do, unless we’re creating a black hole of jurisdiction?”
The appellate court has not yet indicated when it will issue a ruling.
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