Cyrus Mehta & Kaitlyn Box*

The Great Betrayal: Supreme Court’s Ratification Of Trump’s Termination of CHNV Parole

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On March 25, 2025, DHS terminated parole programs that had allowed an estimated 530,000 Cubans, Haitians, Nicaraguans, and Venezuelans to enter the United States legally in 2022 and 2023. The federal register notice stated that “Paroled aliens, including those paroled under the CHNV parole programs, may apply for any immigration benefit or status for which they may be eligible, including discretionary employment authorization under the [8 CFR 274a.12(c)(11)] employment eligibility category…” However, on February 14, 2025 USCIS implemented an administrative hold on processing of all applications for benefits filed by CHNV parolees, as well as individuals who entered the United States pursuant to the United for Ukraine program, or the Family Reunification Parole process.

DHS’ termination of these parole programs was quickly challenged through litigation. See Svitlana Doe, et al., v. Noem, et. al., No. 25-cv-10495 (D. Mass. Apr. 14, 2025). On April 14, 2025, the United States District Court for the District of Massachusetts temporarily stayed the early termination of the CHNV parole programs, as well as EADs issued in connection with these programs. The district court held that Plaintiffs were likely to succeed in their claims that DHS’ termination of the program was arbitrary and capricious, reasoning that the Federal Register Notice

“gave no explanation or support for the conclusion that the CHNV programs were addressing relevant humanitarian concerns through something other than case-by-case determinations. The FRN also gave no rationale for its conclusion that such humanitarian concerns no longer justified the existing parole programs and offered no reasons for categorically revoking parole despite the humanitarian concerns previously articulated by DHS. Finally, despite asserting that “DHS believes that consideration of any urgent humanitarian reasons for granting parole is best addressed on a case-by-case basis consistent with the statute, and taking into consideration each alien’s specific circumstances,” 90 Fed. Reg. at 13612, the FRN provides for no individual case-by-case determination as to the humanitarian concerns facing each parolee whose parole is being truncated.”

DHS appealed to the First Circuit, which declined to overturn the stay, and ultimately to the Supreme Court.

On May 30, 2025, the Supreme Court issued an abbreviated order blocking the district court’s stay. This order in effect allows DHS’ termination of the parole programs to continue even while the First Circuit makes a decision on the merits of the case. In her dissent, joined by Justice Sotomayor, Justice Ketanji Brown Jackson argued that the Court’s order “undervalues the devastating consequences of allowing the Government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending…While it is apparent that the Government seeks a stay to enable it to inflict maximum predecision damage, court-ordered stays exist to minimize—not maximize—harm to litigating parties.”

The Trump administration’s abrupt termination of the program leaves hundreds of thousands of individuals vulnerable to being placed in removal proceedings and potentially returned to turbulent and unsafe home countries. It also puts into doubt the validity of the EAD under 8 CFR 274a.12(c)(11). Although the EAD under (c)(11) may be valid on its face if it has not expired, a public announcement of the termination of the program would put employers on notice that impacted employees are no longer authorized to work under 8 USC 1324(a)(1)(A) and (2). The Supreme Court order has stayed the District Court’s order that prevented the DHS from terminating CHNV parole, including (c)(11) EADs issued pursuant to the program.   Still, employers may not know whether the (c)(11) EAD is associated CHNV parole or some other kind of parole, and it may be discriminatory to ask an employee to provide the basis for the (c)(11) EAD. EADs issued to CHNV parolees bear the same code as EADs issued to other parolees, unlike, for example, DACA EADs, which have a different code from other deferred action cases. Moreover, it is entirely plausible that that many CHNV parolees may have c(8) EADs by now based on pending I-589 asylum applications, and 8 USC 1324(a)(B) does not obligate an employer to ask. Employers have to walk a fine line to avoid discrimination in requesting additional documents from employees to determine if an employee is no longer work authorized.  AILA advises  that “organizations employing CHNV parolees should evaluate the risks and potential consequences associated with identifying this specific population of their workforce, how to update I-9 records and confirm these individuals’ continued (in)eligibility to work in the United States, providing these individuals with an opportunity to present other documents from the List of Acceptable Documents, and the potential impact on the organization’s workforce planning strategies and the continuity of their business operations.” See AILA Doc. No. 25042408.

The Supreme Court’s ratification of this betrayal is even more disappointing, however. Individuals who entered the United States pursuant to these parole programs did so legally, only to have the rug cruelly ripped out from under them.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta & Kaitlyn Box*

Fighting Back Trump’s Attacks on Foreign Students

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In recent weeks, the Trump administration has launched a concerted assault on international students and their ability to remain in the U.S.  In the latest volleys against Harvard University, the Trump administration ordered the revocation of Harvard’s Student and Exchange Visitor Program (SEVP) certification, which will ban the university from enrolling international students and force international students currently studying at Harvard to transfer or risk falling out of status. After Harvard filed a complaint, a U.S. district court judge ordered the ban to be halted temporarily in the face of ongoing litigation. International students reportedly make up more than a quarter of Harvard’s student body.

According to reports, U.S. Immigration and Customs Enforcement has also recently began sending warning notices to certain F-1 students who have been enrolled in the Optional Practical Training (OPT) program for more than 90 days but have not reported any employment status.

The notices afford impacted students 15 days to update their Student and Exchange Visitor Information System (SEVIS) record with employment information. If no action is taken, the student’s SEVIS record could then be terminated for a violation of status on the grounds that they failed to timely report OPT employment or exceeded the maximum permissible 90-day period of unemployment during OPT. The notice further warns that failure to take corrective action may result of the student being placed in removal proceedings.

Moreover, the administration has evidenced a desire to thwart international students’ ability to remain in the U.S. and work post-graduation. Joseph Edlow, nominated by the president to be the Director of USCIS, stated the following of the OPT program during his Senate confirmation hearing:

“I think the way in which OPT has been handled over the past four years, with the help of certain decisions coming out of the D.C. Circuit Court, have been a real problem in terms of misapplication of the law.

[…]

What I want to see would be essentially a regulatory and sub-regulatory program that would allow us to remove the ability for employment authorizations for F-1 students beyond the time that they are in school.”

Endlow was undoubtedly referring to the U.S. Court of Appeals for the D.C. Circuit’s decision in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”), which upheld the STEM OPT extension as authorized under the Immigration and Nationality Act. Washtech was analyzed at length in a prior blog, which is excerpted here. The case involved a challenge to the rule permitting eligible students in STEM fields to seek an additional 24 month OPT extension beyond the usual 12 month OPT period by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. Washtech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court upheld the STEM OPT extension, reasoning that it is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Practical training has been authorized even prior to the enactment of the INA in 1952.

While there is no explicit authorization in the INA for OPT, it has been around for over 70 years and predates the Immigration and Nationality Act of 1952, as the court emphasized in Washtech.  Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. One can argue the reverse of Lollilard v. Ponce in a challenge to a proposed DHS rule that would limit or eviscerate OPT. OPT is so baked into the longstanding interpretation of  INA § 101(a)(15)(F)(i) ought to be, which allows a student to enter the U.S. in F-1 status to complete a course of study, and affords additional time beyond the course of study through Optional Practical Training. This is how Congress intended § 101(a)(15)(F)(i) to operate over the several decades even as it amended the Immigration and Nationality Act of 1952 several times. Thus, any curtailment of OPT would arguably not be authorized under INA § 101(a)(15)(F)(i).

Any efforts by the Trump administration to abolish OPT could also be vulnerable to challenges under the Administrative Procedure Act (APA). Abolishing OPT would clearly have a devastating impact on U.S. schools, as international student are likely to enroll in fewer numbers if they cannot pursue practical experience in their fields of study. Perhaps the Trump administration would argue that international students in the workforce limit the ability of U.S. workers to get jobs. However, any attempt to argue that international students attending U.S. schools do not add value to the United States appears to clash with INA § 101(a)(15)(F)(i), which makes clear that international student are a Congressionally authorized category of nonimmigrant visa classification, which is implicitly beneficial to the US.

In 2020, in Department of Homeland Security v. Regents of the University of California, the Supreme Court held that the Trump administration had run afoul of the APA when it rescinded the Deferred Action for Childhood Arrivals (DACA) program. Cyrus Mehta discussed this case in a prior blog. The Court found the rescission of DACA to be “arbitrary and capricious,” noting that “[w]e do not decide whether DACA or its rescission are sound policies,” but only “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” Chief Justice Roberts’ opinion faulted the administration for not factoring reliance interests, as DACA recipients had enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program. The consequences of the rescission would “radiate outward” to DACA recipients’ families, including their 200,000 US citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. Justice Roberts also cited a Brief for 143 Businesses as Amici Curiae, which estimated that hiring and training replacements would cost employers $6.3 billion.  In addition, excluding DACA recipients from the lawful labor force may result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. The reliance interests at issue in any effort to rescind OPT would be similarly weighty. International students enroll in degree programs and pay tuition to U.S. universities in reliance on the assumption that they will be able to gain practical experience in their field of study through OPT employment after graduation. If international students are deterred from studying in the U.S., American universities will suffer, as will U.S. employers who can no longer employ talented foreign graduates. Economists too find OPT to be an economic boon to America  and prohibiting OPT will find it musth more difficult for US companies to  retain talent.

Trump does not only want to attack and curb practical training but also  wants to prevent international students from having the opportunity to come to the U.S. and study at Harvard, America’s most prestigious university. Without international students, who should be able their mind or express their views without fear, Harvard will not be Harvard and the American University that has long commanded respect and prestige throughout the world will sink in Trump’s swamp. Finally, Trump has also detained and attempted to remove foreign students for expressing lawful speech that his administration disfavors, and so far the courts are pushing back on grounds that their detention was retaliatory and unconstitutional as we have discussed in our blog on our client  Mohsen Mahdawi’s successful challenge to his unlawful detention.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta & Kaitlyn Box*

Federal Judge Releases Mohsen Mahdawi After Being Detained for  Lawful Speech

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By Cyrus D. Mehta and Kaitlyn Box*

On April 30, 2025, Judge Geoffrey Crawford of the United Stated District Court for the District of Vermont ordered in Mahdawi v. Trump that our client, Mohsen Mahdawi, a long-time lawful permanent resident and Columbia university student activist advocating for the human rights of Palestinians, be released from ICE detention.

Mahdawi’s arrest, like that of fellow activist Mahmoud Khalil, was based on his lawful speech that is disfavored by the Trump administration.  A determination issued by Secretary of State Marco Rubio on March 15, 2025 alleges that Mahdawi’s involvement in pro-Palestinian activism “undermines U.S. policy to combat anti-Semitism around the world and in the United States, in addition to efforts to protect Jewish students from harassment and violence in the United States” and “potentially undermine[s] the peace process underway in the Middle East by reinforcing anti-Semitic sentiment in the regional [sic] and thereby threating the U.S. foreign policy goal of peacefully resolving the Gaza conflict.”

Mahdawi was arrested on April 14, 2025 at the conclusion of his naturalization interview at a USCIS office in Vermont. Following his arrest, ICE attempted to move Mahdawi to Louisiana, but before ICE was able to make him board a flight to Louisiana,  Judge William K. Sessions III of the United Stated District Court for the District of Vermont granted a temporary restraining order preventing him from being removed from the state. This was based on a  habeas petition that was quickly filed which asserts that Mahdawi’s detention violated his constitutional rights. More background information about the case is available on the ACLU’s website.

Mahdawi’s release comes as the first major victory in the case. In his decision ordering Mahdawi’s release, Judge Crawford called the setting of the case “extraordinary” and noted that “Legal residents – not charged with crimes or misconduct – are being arrested and threatened with deportation for stating their views on the political issues of the day. Our nation has seen times like this before, especially during the Red Scare and Palmer Raids of 1919-1920 that led to the deportation of hundreds of people suspected of anarchist or communist views”. Mahdawi thanked his supporter and gave a comment outside the courthouse following his release, stating “We are pro-peace and anti-war”. In a May 2, 2025 op ed in the New York Times, Mahdawi echoed these sentiments, stating:

Despite spending 16 nights in a jail cell, I never lost hope in the inevitability of justice and the principles of democracy. I wanted to become a citizen of this country because I believe in the principles that it enshrines. When Judge Geoffrey W. Crawford ruled in my favor, he reassured me, along with the American people, that there is still reason to hope in those principles. But the road to justice is long. My freedom is intertwined with the freedom of the other students, who exercised the same free speech rights as I did yet languish in jail, and is intertwined with that of the Palestinians, who are fighting for their right to life and justice, too.

The American government accuses me of undermining U.S. foreign policy, a patently absurd pretext for deportation for political speech that the Trump administration dislikes. The government is scraping the bottom of the barrel in its attempts to smear me. My only “crime” is refusing to accept the slaughter of Palestinians, opposing war and promoting peace. I have simply insisted that international law must be respected. I believe the way to a just and long-lasting peace for Palestinians and Israelis is through diplomacy and restorative justice.

 

Although Mahdawi’s release is only the first step, his case sends an important message that a noncitizen cannot be detained solely due to his lawful speech that the administration disfavors. His release under the pending habeas petition in the federal court in Vermont is quite separate from the removal case under which the Trump administration wants to deport him under INA 237(a)(4)(C). A noncitizen can be removed under this provision if the Secretary of State has determined that the noncitizen’s presence or activities, even if lawful,  would potentially have serious adverse foreign policy consequences.    In his decision to release  the pending habeas petition, Judge Crawford ruled that Mahdawi met the heightened standard by demonstrating a “substantial claim” and “extraordinary circumstances” under Mapp v. Reno. The substantial claims asserted by Mahdawi were the infringement of his First Amendment and due process rights, as well as the impact of detention on the efficacy of the habeas remedy. The extraordinary circumstances present in the instant case included the lack of a flight risk or danger to the community posed by Mahdawi, as well as the broader-reaching implications of permitting a lawful permanent resident to be detained based on protected speech. Judge Crawford also took into consideration the fact that Mahdawi’s arrest after the naturalization interview was a honey trap, stating that he “presented himself at the USCIS office in Colchester even though he had suspicions that he would be detained”.

There are over 12.7 million lawful permanent residents in the United States, many of whom may now fear that they will suffer the same fate, if they post on social media, write op-eds, or publish research that may come in the cross hairs of this administration. There are also millions of foreign students and noncitizens on temporary visas who risk detention based on lawful speech that the administration does not like.  As Judge Crawford stated in his decision, “Noncitizen residents like Mr. Mahdawi enjoy First Amendment rights in this country to the same extent as United States citizens”. They must be free to exercise those rights without fear of arrest, imprisonment, or deportation. Mahdawi himself urged his supporters to “Stay positive and believe in the inevitability of justice.”

The Trump administration has already appealed this decision to the Second Circuit Court of Appeals, and the legal team representing Mahdawi, which includes our law firm; the ACLU; ACLU of Vermont, Luna Droubi of Beldock Levine & Hoffman LLP; Andrew Delaney of Martin Delaney & Ricci Law Group; and CLEAR. will continue to vigorously defend Judge Crawford’s decision upholding the freedom to speak without fearing retaliation or punishment. We are inspired by Mahdawi’s optimism and belief in the inevitability of justice.

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

DHS Reverses Course, Restores Student SEVIS Records—But Future Remains Uncertain

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In the wake of a wave of dozens of lawsuits and emergency court orders following sudden revocations of the visas of foreign students and scholars and deletion of thousands of Student and Exchange Visitor Information System (SEVIS) records by the Department of Homeland Security (DHS) without notice or explanation, which have thrown foreign students’ lives into chaos, the agency suddenly reversed course on April 25, 2025, and restored many foreign students’ SEVIS records, along with their legal status. 

The administration sent out mixed signals, however, as DHS officials were quoted as saying that this action was temporary while the agency worked on a new, unspecified policy. Tricia McLaughlin, a DHS spokesperson, said, “We have not reversed course on a single visa revocation. What we did is restore SEVIS access for people who had not had their visa revoked.” A statement from a government attorney in one of the lawsuits said, “ICE is developing a policy that will provide a framework for SEVIS record terminations. Until such a policy is issued, the SEVIS records for plaintiff(s) in this case (and other similarly situated plaintiffs) will remain Active or shall be re-activated if not currently active and [U.S. Immigration and Customs Enforcement] will not modify the record solely based on the NCIC finding that resulted in the recent SEVIS record termination.”

“It is good to see ICE recognize the illegality of its actions canceling SEVIS registrations for these students. Sad that it took losing 50 times. What we don’t yet know is what ICE will do to repair the damage it has done, especially for those students who lost jobs and offers and had visas revoked,” said Charles Kuck, an attorney for some of the foreign student plaintiffs. Some affected students have already left the United States, while others are in hiding or not attending class, according to reports. 

Colleges and universities have had to deal with the uncertainty and other effects of these actions on their students, scholars, and programs; their ability to conduct research; and concerns about whether U.S. universities will be able to attract top talent in the future.

Although many students can heave a sigh of relief and return to their classrooms, not all the terminations have been restored, and we know students in F-1 status waiting with baited breath for similar positive action. 

My colleague Jeff Joseph, ponders in a LinkedIn post:

“What remains unresolved, unfortunately, is the shrapnel that remains from this illegal action: 

(1) SEVIS has been restored, but the visas were also revoked as a result of the illegal SEVIS termination, and , guess what? Visa revocations are NOT subject to judicial review, so there may be no way to challenge that (although I am looking for brilliant minds to brainstorm with me on this); 

(2) The only way to challenge the visa revocation is in removal proceedings, but it is not entirely clear how a student would challenge a DOS determination in immigration court. The jurisdiction of the judge over a DOS determination is not entirely clear; 

(3) When your visa is revoked, you become deportable. So, all 4,700 of these students are still subject to arrest, transfer to Louisiana or Texas, detention, and deportation; unless we can figure out how to resolve number 3 above, this problem will haunt these students; 

(4) It is great that ICE is creating a policy about how and when they can terminate SEVIS and all, but that, itself, is illegal. ICE can’t create rules that moderate conduct and create penalties without doing so through formal rulemaking and notice and comment. So, creating this policy may solve part of the TROs, but attorneys will just amend the complaints to challenge the rulemaking power of the agency as well as the fact that it is ultra vires to when ICE is allowed to terminate status in the statute. They can’t create new reasons to terminate status that are not statutory; 

(5) Is SEVIS status or not? ICE has taken inconsistent positions on this in litigation and in their own public facing guidance and in prior litigation. The Courts want to know. DSOs want to know. Employers want to know. Students want to know; and

(6). Will the period between when the students registrations terminated and now considered lawful status? If not, that would impact future applications for change of status. Will USCIS recognize what ICE does in SEVIS and honor the reinstatement of status nunc pro tunc?

As you can see, we stopped the bleeding, but still need to deal with the surgery.”

Cyrus Mehta

How the Major Questions Doctrine Can Undo some of Trump’s  Policies, Including On Birthright Citizenship

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By Cyrus D Mehta and Kaitlyn Box*

Introduced by the Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022), the major questions doctrine holds that, “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”. Until now, the doctrine has largely been used by the conservative-majority Supreme Court to thwart Biden-era policies, but a recent New York Times op ed by Aaron Tang highlights the doctrine’s potential to be a tool in challenging Trump’s actions, including those relating to immigration. 

Lawsuits have been filed challenging Trump’s  tariffs questioning whether there is clear authorization as they present a matter of vast economic and political significance. Like his tariffs, Trump’s efforts to freeze federal funding, interfere with the states’ administration of their elections and slash the government using the Department of Government Efficiency “DOGE”) are all areas of major national significant that Congress has not authorized the president to decide, the lawsuits claim.

Even if the immigration arena, lawsuit’s invoking the major  questions doctrine challenging Trump’s modification of birthright citizenship question whether federal law has granted the president authority to revoke birthright citizenship. 

In a previous blog we examined the role of the major questions doctrine in the immigration context in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”) and Texas v. DHS. The dissent in Washtech indicated that the issue of whether DHS’ 2016 Optional Practical Rule for students in F-1 visa status exceeds its statutory authority was a “major question”, and finding that the doctrine applied, directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle. The major questions doctrine arose again in Save Jobs USA v. DHS, which involved a challenge to the regulation providing work authorization to some H-4 spouses.  There, the D.C. Circuit was not compelled by an argument that Washtech  should be disregarded because it did not address the major questions doctrine, holding that because Washtech had already interpreted the relevant regulations after West Virginia v. EPA, it remained good law. The court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. 

Trump may  be hoisted by his own petard through the major questions doctrine in a birthright citizenship case. Santa Clara County California, in a lawsuit aimed at blocking the implementation of the Trump administration’s executive order restricting birthright citizenship, invoked the major questions doctrine. On page 17 of its brief, Santa Clara County states: 

Even if Section 301(a) could be construed to leave any ambiguity about the meaning of the phrase “subject to the jurisdiction thereof,” there is no basis for any argument that in 1952 Congress intended that such an ambiguity serve as a delegation of broad authority to the President to define the parameters of a statute, let alone a constitutional right. It is difficult to imagine any question of greater “economic and political significance” than the scope of a provision that describes what group of people constitutes the American polity and may participate in its sovereignty. See, e.g., West Virginia v. EPA, 597 U.S. 697, 721 (2022) (statutory ambiguities should not lightly be construed to delegate decision making authority on major questions of economic or political importance). Given these stakes, it is untenable to read the INA as granting the President the authority to resolve or disturb the statutory meaning.

As Tang points out, the major questions doctrine was developed by the Supreme Court at a time when Chevron required the court to give broad discretion to agency decisions. As our previous blog discusses, courts may have now have more latitude to strike down agency actions since the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned Chevron and instructed courts to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the Administrative Procedure Act  requires”. 

The major questions doctrine can now serve as yet a further tool for courts to employ in resisting the Trump administration’s efforts to make sweeping and destructive changes to immigration law and policy through executive power. Another example is the Trump administration’s broad interpretation of the Alien Enemy Act beyond an armed conflict, to include migration and drug smuggling as an “invasion”, thus triggering sweeping executive removal power. Would the courts consider whether a matter of such “vast … political significance” ought to be decided by the executive branch absent clearer instruction from Congress under the major questions doctrine? 

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Is Secretary Rubio’s Bare Bone’s Letter Deserving of Deference in Khalil’s Deportation Case?

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By Cyrus D. Mehta and Kaitlyn Box*

On April 11, 2025, Immigration Judge Jamee Comans in Louisiana ruled that Mahmoud Khalil, a Columbia University graduate and pro-Palestine activist, can be deported. Judge Comans stated that “the department has met its burden to establish removability by clear and convincing evidence”, referring to Rubio’s letter. She also declined to address Khalil’s constitutional claims, stating that the immigration court “is without jurisdiction to entertain challenges to the validity of this law under the Constitution”. Khalil can now appeal his case to the Board of Immigration Appeals, and ultimately to a court of appeals.

Our previous blog addressed Khalil’s case and considered how much deference should be afforded to the Secretary of State’s determination in the post-Chevron era. The immigration enforcement against Khalil is based INA 237(a)(4)(C)(i), which provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. Pursuant to 212(a)(3)(C)(iii), the government bears the burden of proving “by clear, unequivocal, and convincing evidence that the Secretary of State has made a facially reasonable and bona fide determination that an alien’s presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States” in order to establish that a noncitizen is deportable under this provision. 

A two-page memorandum from Secretary of State Marco Rubio outlining that Khalil’s presence in the U.S. would have seriously adverse consequences on U.S. foreign policy has now been made publicly available. The analysis provided in Rubio’s memorandum is thin, and stately merely that the determination is based on Khalil’s participation in “antisemitic protests and disruptive activities” and “citations for unlawful activity during these protests” which “undermine U.S. policy to combat anti-Semitism around the world and in the United States, in addition to efforts to protect Jewish students from harassment and violence in the United States”. The determination references five attached exhibits, which do not appear to have been made available to the public. It does not appear that Secretary Rubio’s determination has been provided to the chairmen of the Judiciary and Foreign Affairs Committees of the House and to the Judiciary and Foreign Relations Committee of the Senate as required by INA 212(a)(3)(C)(iv) as yet.

As discussed at length in our previous blog, the 2024 Supreme Court decision Loper Bright Enterprises v. Raimondo, which abolished Chevron deference, could provide a means of challenging the level of deference given to the Secretary’s determination.  Although a 1999 Board of Immigration Appeals (BIA) case, Matter of Ruiz-Massieu, held that a determination letter from the Secretary of State “conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination” is sufficient to satisfy INA 212(a)(3)(C)(iii),  this case was decided pre-Loper Bright. Secretary Rubio’s letter provided no thorough discussion of Khalil’s allegedly threatening or antisemitic activities. The letter of Secretary Christopher Warren in the Ruiz-Massieu case  was far more detailed that Rubio’s bare boned letter.  As such, it is hoped that a court of appeals will not give deference to the determination as proof that Khalil’s presence in the US is contrary to US foreign policy interests.

In a future case, an IJ ought not rubber stamp such a bare bones letter as it does not meet the facially reasonable and bona fide determination that the person’s presence or activities in the United States would have potentially serious adverse foreign policy. If an IJ is not courageous enough to do this, and the Board of Immigration Appeals rubber stamps the IJ,  the courts of appeals would certainly have the authority under Loper Bright to cast aside deference after being presented with such a meagre letter from the Secretary of State. This is in addition to also arguing that INA 237(a)(4)(C)(i) violates a person’s First Amendment rights, is void for vagueness and represents an impermissible delegation of legislative power to the executive

 *Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

After Chevron’s Demise, Should Courts Be Giving Deference to the Trump Administration’s  Foreign Policy Considerations When Deporting a Noncitizen?

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By Cyrus D. Mehta and Kaitlyn Box*

The Department of State has revoked the visas of hundreds of  students in recent weeks. This disturbing measure comes after the Trump administration has taken numerous actions targeting students involved in pro-Palestine protests for immigration enforcement actions in recent weeks, including the arrest of student activist Mahmoud Khalil, who is a lawful permanent resident, as well as the arrest of a researcher at Tufts University  in F-1 status, Rumeysa Ozturk,  who has been targeted for deportation for merely writing an op-ed in the student newspaper that was critical of Tufts and Israel.

We have discussed in detail the arrest and detention of Columbia University student activist Mahmoud Khalil. The Notice to Appear (NTA) issued to Khalil invokes INA 237(a)(4)(C)(i), which provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. Pursuant to 212(a)(3)(C)(iii), the government bears the burden of proving “by clear, unequivocal, and convincing evidence that the Secretary of State has made a facially reasonable and bona fide determination that an alien’s presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States” in order to establish that a noncitizen is deportable under this provision. INA 237(a)(4)(C)(i) has also been invoked in many of the notices allegedly rescinding the status of F-1 students in the SEVIS system. 

Although the government can charge a noncitizen on other grounds including under INA 237(a)(1)(B) based on the revocation of the underlying nonimmigrant visa in the passport, a lawful permanent resident who has otherwise not been convicted of a crime, supported terrorism or made misrepresentations in their green card process can only be charged under INA 237(a)(4)(C)(i), which is so broad that it can be used against just about any noncitizen  whose views may be disfavored by the government and thus have serious adverse foreign policy consequences for the United States. A revised NTA charged Khalil under INA 237(a)(4)(C)(i) and for making material omissions in his green card application under INA 237(a)(1)(A). 

A letter from Secretary of State Marco Rubio asserting that Khalil’s presence in the United States would have seriously adverse consequences on U.S. foreign policy has not yet been made public or provided to the chairmen of the Judiciary and Foreign Affairs Committees of the House and to the Judiciary and Foreign Relations Committee of the Senate as required by INA 212(a)(3)(C)(iv). Even at the recent hearing in immigration court, the government has not yet provided government has not any evidence to support the charge under INA 237(a)(4)(C)(i).  Even if a letter from Secretary Rubio is issued and the immigration court rubber stamps the Secretary’s letter, the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo could mean that it will be afforded less deference if the case is appealed to a court of appeals. 

A 1999 Board of Immigration Appeals (BIA) case, Matter of Ruiz-Massieu, held that a determination letter from the Secretary of State “conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination” is sufficient to meet this high standard. Ruiz-Massieu, however, involved a Mexican official who entered the US as a visitor and was apprehended a day after he arrived based on accusations of corruption. The BIA’s holding in this case is thus readily distinguishable from that of Khalil, who is a lawful permanent resident and engaged in constitutionally protected speech. 

Moreover, Loper Bright abolished the longstanding Chevron doctrine, which required courts to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but clarified that cases decided under the Chevron framework were not automatically overruled. In the absence of Chevron, courts tend to apply the lower Skidmore standard, which asserts that the level of deference an agency’s decision merits depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U. S. 134 (1944).

Given the demise of Chevron, a respondent like Khalil will have more room to argue that the BIA’s decision in Ruiz-Massieu is not only distinguishable from his own case, as the government is not entitled to the same deference that it had under Chevron. The BIA’s determination in Ruiz-Massieu that a determination from the Secretary of State that a noncitizen’s presence in the U.S. would have adverse foreign policy consequences is, alone, sufficient to meet the “clear and convincing” standard may not be sufficiently well reasoned even to survive a Skidmore analysis. Under Skidmore, factors like the thoroughness of the agency’s analysis and the validity of its reasoning influence the degree of discretion that is warranted. In her dissent in Ruiz-Massieu, Board Member Lory Rosenberg argued that the statutory language of old INA 241(a)(4)(C) is “not clear, and it does not resolve the question…regarding the effect of the letter submitted by the Secretary of State.” Rosenberg pointed to the Congressional Record of the 1990 amendment that created this provision as evidence that Congress’ intent as the amount of discretion  that should be afforded to the Secretary is unclear as it was not “fully debated nor clearly understood in practical terms…” These inconsistencies in the BIA’s interpretation could result in deference not being afforded even under a Skidmore standard. 

In Moctezuma-Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024), the Sixth Circuit addressed the question of how much deference should be afforded to the BIA’s interpretation of “exceptional and extremely unusual hardship” at INA  240A(b)(1)(D) post-Chevron. The court laid out a two part test for determining whether an agency’s interpretation should still be given deference after Loper Bright. First, the statute in question must contain “broad, flexible standards like ‘appropriate’ and ‘reasonable’”, and it must “pair that language with words that expressly empower the agency to exercise judgment”. The Sixth Circuit in Moctezuma -Reyes v. Garland held that the BIA’s interpretation of § INA  240A(b)(1)(D) does not warrant deference because it “contains no such language vesting the BIA with discretion to determine the meaning of ‘exceptional and extremely unusual hardship’”. 

INA 237(a)(4)(C)(ii) contains a freedom of speech and association safe harbor incorporated by reference to the inadmissibility provisions at INA 212(a)(3)(C)(iii) prohibiting deportation “because of the alien’s past, current, or expected beliefs, statements or associations, if such beliefs, statements, or associations would be lawful”.  In order to invoke an exception for the safe harbor protection, the Secretary of State must “personally determine[e] that the alien’s presence would compromise a compelling US foreign policy interest.” Although the language of this provision is quite broad, and permits the Secretary of State the authority to make a “personal determination”, the language of INA § 240A(b)(1)(D) is similarly expansive, yet the Sixth Circuit held that it did not afford the BIA sufficient discretion. Under the Moctezuma -Reyes v. Garland test, it is thus possible that the Secretary of State’s determination would be afforded less discretion in the post-Chevron era.  

We have also addressed in the prior blog that there is a strong basis to constitutionally attack INA 237(a)(4)(C)(i) on grounds that it violates a person’s First Amendment rights, is void for vagueness and represents an impermissible delegation of legislative power to the executive. We also believe that under Loper Bright a court should not rubber stamp a letter without more from the Secretary of State to the immigration court that a noncitizen’s presence would compromise a compelling US foreign policy interest.  

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

A Foreign Student Whose Visa Has Been Revoked by Trump Should Still Be Able to Continue to Attend School

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By Cyrus D. Mehta and Kaitlyn Box*

The revocation students’ visas has caused alarm and panic. Our blog advises that the revocation of a visa in the passport does not necessarily result in a violation of nonimmigrant status. The student may still be able to continue their studies at the school.  

On March 27, 2025, Secretary of State Marco Rubio announced at a press conference that the Department of State had revoked the visas of approximately 300 foreign students. This disturbing measure comes after the Trump administration has taken numerous actions targeting students involved in pro-Palestine protests for immigration enforcement actions in recent weeks, including the arrest of student activist Mahmoud Khalil, who is a lawful permanent resident, as well as the arrest of a researcher at Tufts University  in F-1 status, Rumeysa Ozturk,  who has been targeted for deportation for merely writing an op-ed in the student newspaper that was critical of Tufts and Israel.  There have been other cases of Indian students whose visas have been revoked such as  Bader Suri and Ranjana Srinvasan (discussed in this article that quotes Cyrus Mehta). 

The State Department has the authority to revoke the underlying visa in the passport under INA 221(i), however, a student can still maintain F-1 visa status while in the US and there is no change in the Student Exchange and Visitor Program.  Until Trump took office on January 20, 2025, the State Department revoked the visa if the student had been arrested in the US for a minor offense, such as driving while intoxicated. The student was still considered to be maintaining F-1 status and could continue to study. Similarly, an individual who was in H-1B status when the underlying H-1B visa got revoked could continue to work for the H-1B employer in the U.S.. If the nonimmigrant in F-1 or H-1B status  departed the US, they would need to apply for a new visa in their passport. 

 ICE has now sneakily usurped the functions of the Designated Student Officer by cancelling F-1 student status in the Student Exchange and Visitor Program (SEVIS) without warning, according to Zeteo. Even  if the visa is revoked and the F-1 status has been terminated in SEVIS, a foreign student can still continue to study and if placed in deportation proceedings should challenge the deportation before an Immigration Judge. According to  a  The Times of India article by Lubna Kably,  hundreds of international students have received emails from the State Department warning them to self-deport or face arrest and deportation. “The crackdown is based on social-media reviews being conducted by DOS (which includes Consulate officials). Thus, even new student applications . . . will also come under such social media scrutiny.” Kably reports that some students have received the emails “for something as innocuous as sharing a social media post.”

In  a prior blog written in 2017 when Trump during his first administration revoked visas based on country bans, we explained that revocation of a visa does not necessarily prevent a noncitizen from maintaining status in the U.S. For example, if a student was issued an F-1 and has already been admitted into the United States in F-1 status when the visa is revoked under a travel ban pursuant to INA 212(f), the revocation of the visa would not impact this student’s ability to maintain F-1 status so long as she is enrolled in the designated school and is complying with all the other terms of her status, such as not engaging in unauthorized employment. If the student leaves the United States, however, she will not be able to come back to the United States without obtaining a new visa. Similarly, an individual whose H-1B visa is revoked may continue to maintain H-1B status but must remain in the employment of the petitioning entity that applied for the H-1B visa classification on his behalf. This individual may also seek an extension of status or change of status while in the United States.  

Note that a nonimmigrant whose visa has been revoked is  subject to removal. INA 237(a)(1)(B) provides:

“Present in violation of law – Any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorization admission into the United States as a nonimmigrant) has been revoked under section 221(i) is deportable.”

Even if one is not in violation of the INA, but their nonimmigrant visa has been revoked, they can be placed in removal proceedings. If the sole basis of placing the individual in removal proceedings was due to the revocation, under INA 221(i), the revocation can be challenged in removal proceeding. 

As INA 237(a)(1)(B) makes clear that a nonimmigrant whose visa was revoked but has otherwise been maintaining status is still in status until they are removed, there is no basis for DHS or a university to terminate impacted students’ F-1 status until they are removed. If a student is in proceedings and not detained, they can still attend school and maintain status. This principle applies even if a student’s F-1 status in SEVIS is terminated.

The Trump administration has been detaining students after their visa has been revoked.  If the student is detained after removal proceedings have been initiated, a habeas petition may be filed to obtain release of the student. The student should also challenge the deportation in immigration court on the grounds that the revocation has no basis especially when the student was engaged in lawful protected speech as in Khalil’s case. While the student is contesting the grounds of deportation, they can continue their studies in the school. 

A school, unlike an employer, is not obligated to verify a student on an I-9 form. A foreign student can be enrolled in a school even if they are not in F-1 or H-1B status. A noncitizen who is a DACA recipient or who has a pending I-485 adjustment of status application can be erolled.  Indeed, a foreign student who is not in any status based on violating their status or overstaying a visa can still be enrolled in school. A school need not issue a Form I-20 to enroll a student in F-1 status. There is no benchmark for a school to know the status of a student who is enrolled.  Thus, even if DHS has cancelled the student’s status in SEVIS the student should still be able to continue their studies in school.

If the student has successfully overcome the grounds of deportation, the student’s F-1 status can be restored. If the student has received an e mail, as described in the Times of India article, that the visa has been revoked, then if the student also learns that their SEVIS record has been terminated, the student should challenge the SEVIS termination in federal court through the Administrative Procedure Act on grounds that the action was arbitrary, capricious and the student was not given any warning or notice to respond. The visa revocation itself cannot be challenged in federal court before removal (deportation) proceedings, but if the student is placed in deportation, they can challenge the proceedings in immigration court. If a student is also detained upon the initiation of deportation proceedings, they can file a habeas petition in federal district court to challenge their detention as well as seek a bond hearing before an immigration judge.  And ultimately, at the end of those deportation proceedings, the student could seek review in federal court of the visa revocation.

Although there is a vicious, unprecedented crackdown on foreign students under the Trump administration, with the help of lawyers and legal organizations, they should stand firm and challenge the revocation of their visas, the termination of their status, and their deportation.  A foreign student who has protested, either on social media or through actual participation, against the military action in Gaza does not necessarily become a Hamas supporter. The student is protesting because they have been moved by tens of thousands of deaths of civilians including children. Demonstrating compassion for human suffering should not result in the student’s exile. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Trump and Dick the Butcher Have the Same Impulse: “Let’s Kill All the Lawyers”

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The White House issued a memo on March 22, 2025 ominously titled Preventing Abuses of the Legal System and the Federal Court.

The phrase “The first thing we do, let’s kill all the lawyers” is from William  Shakespeare’s Henry VI said by a character called Dick the Butcher in Act IV, Scene II. This phrase has been seized upon to disparage the legal profession and lawyers as crooked and overpriced. Perhaps Stephen Miller, advisor to President Trump on restricting immigration,  who may have had a hand in authoring the memo, also understands lawyers in this way and worse as “[threatening] our national security, homeland security, public safety, or election integrity.”

But there is another meaning to this phrase. Dick the Butcher is a murderous thug and  Jack Cade’s right hand man who is leading a rebellion against King Henry. They kill anyone who can read and burn all books and documents they encounter as it will be be easier for them to take over an ignorant population  over one where eveyone understands their rights. In order for their rebellion to succeeed  Dick is suggesting that they must eradicate the lawyers, the defenders of justice, who stand in their way. Lawyers are the last defense who stand in the way of tyranny.

Trump, and his henchman Miller, like Dick the Butcher, are now attacking the immigration bar through this memo. Supposedly unethical lawyers are standing in their way to dismantle an immigration system that allows the persecuted to seek protection in the US. The memo suggests ways  to “kill the lawyers” by sanctioning and disciplining them through an assortment of court and disciplinary rules.

Obviously, there is no truth to this assertion. The immigration bar and  lawyers in Big Law doing immigration pro bono are ethical. Otherwise, they would have been sanctioned and disbarred by vigilant disciplinary authorities.  Trump is engaging in delirious fantasy.  Lawyers must stand firm together notwithstanding this nonsensical bluster and continue to ethically represent noncitizens in asylum and other immigration cases. If lawyers fall and capitulate,  like Paul Weiss did, who will defend the defenders of the Constitution?

The entirety of this absurd memo that at first brush seems like comical satire is real and reproduced here:

SUBJECT:      Preventing Abuses of the Legal System and the Federal Court

Lawyers and law firms that engage in actions that violate the laws of the United States or rules governing attorney conduct must be efficiently and effectively held accountable.  Accountability is especially important when misconduct by lawyers and law firms threatens our national security, homeland security, public safety, or election integrity.

Recent examples of grossly unethical misconduct are far too common.  For instance, in 2016, Marc Elias, founder and chair of Elias Law Group LLP, was deeply involved in the creation of a false “dossier” by a foreign national designed to provide a fraudulent basis for Federal law enforcement to investigate a Presidential candidate in order to alter the outcome of the Presidential election.  Elias also intentionally sought to conceal the role of his client — failed Presidential candidate Hillary Clinton — in the dossier.

The immigration system — where rampant fraud and meritless claims have supplanted the constitutional and lawful bases upon which the President exercises core powers under Article II of the United States Constitution — is likewise replete with examples of unscrupulous behavior by attorneys and law firms.  For instance, the immigration bar, and powerful Big Law pro bono practices, frequently coach clients to conceal their past or lie about their circumstances when asserting their asylum claims, all in an attempt to circumvent immigration policies enacted to protect our national security and deceive the immigration authorities and courts into granting them undeserved relief.  Gathering the necessary information to refute these fraudulent claims imposes an enormous burden on the Federal Government.  And this fraud in turn undermines the integrity of our immigration laws and the legal profession more broadly — to say nothing of the undeniable, tragic consequences of the resulting mass illegal immigration, whether in terms of heinous crimes against innocent victims like Laken Riley, Jocelyn Nungaray, or Rachel Morin, or the enormous drain on taxpayer resources intended for Americans.

Federal Rule of Civil Procedure 11 prohibits attorneys from engaging in certain unethical conduct in Federal courts.  Attorneys must not present legal filings “for improper purpose[s],” including “to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”  FRCP 11(b)(1).  Attorneys must ensure that legal arguments are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”  FRCP 11(b)(2).  And attorneys must ensure that their statements about facts are “reasonably based” on evidentiary support, or a belief that such evidence actually exists.  FRCP 11(b)(3)-(b)(4).  When these commands are violated, opposing parties are authorized to file a motion for sanctions.  FRCP 11(c).  The text of the rule specifically addresses and provides for sanctions for attorneys and their firms as well as for recalcitrant parties given the solemn obligation that attorneys have to respect the rule of law and uphold our Nation’s legal system with integrity.  Furthermore, Rule 3.1 of the Model Rules of Professional Conduct provides that, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

Unfortunately, far too many attorneys and law firms have long ignored these requirements when litigating against the Federal Government or in pursuing baseless partisan attacks.  To address these concerns, I hereby direct the Attorney General to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.

I further direct the Attorney General and the Secretary of Homeland Security to prioritize enforcement of their respective regulations governing attorney conduct and discipline.  See, e.g., 8 C.F.R. 292.1 et seq.; 8 C.F.R. 1003.101 et seq.; 8 C.F.R. 1292.19.

I further direct the Attorney General to take all appropriate action to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity.  In complying with this directive, the Attorney General shall consider the ethical duties that law partners have when supervising junior attorneys, including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate.

I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.

I further direct the Attorney General, in consultation with any relevant senior executive official, to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.  If the Attorney General identifies misconduct that may warrant additional action, such as filing frivolous litigation or engaging in fraudulent practices, the Attorney General is directed to recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney, termination of any contract for which the relevant attorney or law firm has been hired to perform services, or any other appropriate actions.

Law firms and individual attorneys have a great power, and obligation, to serve the rule of law, justice, and order.  The Attorney General, alongside the Counsel to the President, shall report to the President periodically on improvements by firms to capture this hopeful vision.

 

Cyrus Mehta

Challenging the Foreign Policy Ground of Removability in Defense of  Free Speech and the Rights of Green Card Holders

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By Cyrus D. Mehta and Kaitlyn Box*

On March 8, 2025, DHS arrested Mahmoud Khalil, a Columbia University graduate and Palestinian activist, and purportedly revoked his green card. Khalil was detained under INA 237(a)(4)(C)(i) that provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. The Notice to Appear (NTA) issued to Khalil was sloppily drafted; clause 3 is particularly disjointed and includes a reference to a noncitizen who “was admitted to the United States at unknown place on or about unknown date as a unknown manner”, language wholly inapplicable to Khalil. Moreover clause 3 also states that he adjusted his status to permanent residence under INA 212(a)(3)(C), which makes no sense. There is no basis to adjust status to permanent residence under  INA 212(a)(3)(C). 

Clause 4 of the NTA invokes INA 237(a)(4)(C)(i) that provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. Facially, INA 237(a)(4)(C)(i) renders it difficult for a respondent to challenge a negative determination. Although the government must prove through clear and convincing evidence that a green card holder is deportable, the Secretary’s determination meets that heavy burden based on a 1999 BIA precedent, Matter of Ruiz-Massieu. 

The statute may nonetheless provide Khalil some hope for challenging his detention and removal. INA 237(a)(4)(C)(ii) contains a freedom of speech and association safe harbor incorporated by reference to the inadmissibility provisions at INA 212(a)(3)(C)(iii) prohibiting deportation “because of the alien’s past, current, or expected beliefs, statements or associations, if such beliefs, statements, or associations would be lawful”.  In order to invoke an exception for the safe harbor protection, the Secretary of State must “personally determine[e] that the alien’s presence would compromise a compelling US foreign policy interest.” According to an AILA Advisory, in drafting this provision, Congress replaced the phrase “seriously adverse” with “compelling”, and required the government to prove an actual compromise to U.S. foreign policy rather than merely “potential” compromise, thereby establishing a stricter standard. In a conference report issued at the law was passed, Congress explained how this standard should be applied to protected speech: 

“It is the intent of the conference committee that this authority would be used sparingly and not merely because there is a likelihood that an alien will make critical remarks about the United States or its policies. … Furthermore, the conferees intend that the “compelling foreign policy interest” standard be interpreted as a significantly higher standard than the general “potentially serious adverse foreign policy consequences standard.”

Congress considered examples that might meet the “compelling” standard, such as when a noncitizen’s presence would violate a treaty or international agreement that the United States is a party to or the admission of the former Shah of Iran into the U.S. for medical treatment in 1979, which sparked the Iranian Hostage Crisis, according to the AILA Advisory. 

As yet, Khalil does not stand accused of having engaged in unlawful activities (See Arulanantham and Cox, March 12, 2025, Justsecurity.org). There is thus a chance that he could avail of the safe harbor provision. However, Secretary Rubio’s letter asserting that Khalil’s presence would compromise a compelling US foreign policy interest has not yet been made public (if at all there is such a letter) as of the date of this blog, and there is similarly no evidence that Rubio notified his determination to the chairmen of the Judiciary and Foreign Affairs Committees of the House and to the Judiciary and Foreign Relations Committee of the Senate under INA 212(a)(3)(C)(iv). If Rubio issued this letter after March 9, the date when the NTA was served, this oversight could potentially provide a basis for termination of the removal proceedings with prejudice, along with the sloppily drafted clause #3 in the NTA.  Moreover, letter of the Secretary of State in Matter of Ruiz-Massieu was quite detailed. If there is a letter from Rubio that was hastily written and flimsy, this too could be the basis of a challenge that it does not meet the “compelling” standard. 

Because Khalil is a green card holder, he also has a strong basis to distinguish his case from Matter of Ruiz-Massieu. Ruiz-Massieu, a Mexican official, entered the US as a temporary visitor and was apprehended a day after he arrived based on accusations of corruption. Khalil, meanwhile, is a lawful permanent resident who engaged in constitutionally protected speech. Perhaps, a courageous Immigration Judge (IJ) will be persuaded by this argument distinguishing Khalil’s case from Ruiz-Massieu and terminate the removal proceedings. Even if the IJ denies, Khalil can appeal to the Board of Immigration Appeals, where he will probably also lose, and then to the Court of Appeals. If his hearing is in Louisiana, the 5th Circuit will not be as friendly as the Second Circuit, assuming he can successfully transfer to New York if his habeas petition in the Southern District of New York prevails.

Khalil has a very good chance of constitutionally attacking INA 237(a)(4)(C) in a court of appeals on grounds that it violates his First Amendment rights as an LPR as established by the Supreme Court in Bridges v. Wixon, and is also void for vagueness. A federal district court has also found the statute unconstitutional (the judge Maryanne Trump Barry who made the ruling was none other than Trump’s late sister) in 1996 in Ruiz Massieu v. Reno. The court held that the statute was unconstitutional because it impermissibly vague, deprives noncitizens of a meaningful opportunity to be heard, and represents an impermissible delegation of legislative power to the executive, stating that the provision: “represents a breathtaking departure both from well established legislative precedent which commands deportation based on adjudications of defined impermissible conduct by the alien in the United States, and from well established precedent with respect to extradition which commands extradition based on adjudications of probable cause to believe that the alien has engaged in defined impermissible conduct elsewhere.” The court’s holding was later reversed by the Third Circuit Court of Appeals on other grounds.  If the Trump administration prevails, who is to stop them from using it, for example, against a noncitizen who promotes green technology because if undermines the policy objective of promoting fossil fuels of this administration? 

While Khalil has an uphill climb, he does have opportunities for challenging his deportation in Immigration Court first, the Court of Appeals, and even in the Supreme Court. The robust dissent of BIA members Rosenberg and Schmidt will also provide ammunition to attack the statute in the Court of Appeals. The dissent disagreed with the majority’s position that the Secretary of State’s letter alone “was conclusive and dispositive on the issue of deportability, and that the Immigration Judge erred in requiring the Service to provide something more than the Secretary’s letter to satisfy its burden of proving, according to the language of the statute, that ‘the Secretary of State has reasonable ground to believe [that the respondent’s presence] would have potentially serious adverse policy consequences.’” Board Members Rosenberg and Schmidt instead argue in the dissent that the decision of the IJ should be adopted, which held that “the plain language of section 241(a)(4)(C)(i) [predecessor to INA 237(a)(4)(C)] requires that the Service prove (1) the Secretary’s belief; (2) the Secretary’s concern regarding the respondent’s presence in this country; and (3) the ‘reasonable ground to believe’ that the respondent’s presence would have serious adverse foreign policy consequences.”

It is important that Khalil  successfully challenges the deportation ground against him in order to uphold the right to free speech and the rights of green card holders to express them without fear. Even if one does not agree with the speech, and finds it repugnant, so long as the speech is lawful,  the government should not have the power to retaliate by detaining and deporting a noncitizen. If the government has the power to retaliate against noncitizizen green card holders, even US citizens will no longer be immune from similar retaliation. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

A version of this post was published on LinkedIn at https://www.linkedin.com/pulse/lets-fight-uphold-our-rights-free-speech-green-card-holders-mehta-ngede/?trackingId=RzyvcsXtR6C56C5VSuOWMw%3D%3D