Past rulings found there was no legitimate reason to detain Mr. Khalil and that trying to deport him on “foreign policy grounds” is likely unconstitutional

September 10, 2025, New York — Today, Mahmoud Khalil’s legal team filed its response to the government’s appeal of several previous district court orders. The brief urges the Third Circuit Court of Appeals to affirm the lower court’s rulings that ordered Mr. Khalil’s release on bail and found that Secretary of State Marco Rubio’s justification for arresting and seeking to deport Mr. Khalil on the basis of his protected speech is likely unconstitutional. 

The Trump administration has tried to deport Mr. Khalil using an obscure provision of the Immigration and Nationality Act that the administration claims allows it to detain and deport noncitizens — including lawful permanent residents like Mr. Khalil — based solely on an assertion from Secretary of State Marco Rubio that their lawful speech could affect U.S. foreign policy interests. The government is asking the court to permit it to redetain Mr. Khalil and to move forward with Mr. Khalil’s removal on the basis of this “foreign policy ground.”

“The government’s arguments are meritless and should be rejected. The Trump administration had no legitimate reason to detain Mahmoud Khalil and the district court rightly held that its efforts to remove him were likely unconstitutional,” said Bobby Hodgson, Assistant Legal Director at the New York Civil Liberties Union. “Ideas are not illegal, and no administration should ever be able to weaponize immigration law or unilaterally incarcerate people for expressing opinions with which they disagree.”

“Mahmoud Khalil should never have been detained,” said Noor Zafar, senior staff attorney with the ACLU’s Immigrants’ Rights Project. “The government’s argument essentially boils down to an assertion that, because it is using immigration laws to detain and deport Mahmoud for his advocacy in support of Palestinian rights, the district court did not have authority to review the constitutionality of its actions. The district court rightly rejected this dangerous and unprecedented argument, which not only chills Mahmoud’s speech but that of other noncitizens who seek to speak up on this pressing issue of our time.”

“The government’s draconian policy to silence voices supporting Palestinian rights – through the maximal coercion of arrest, detention, and deportation – is both a throwback to the historic eras of Red Scare repression and a new, aggressive step in the administration’s authoritarian design,” said Center for Constitutional Rights Legal Director Baher Azmy. “The courts historically and now are the last check for our constitution and democracy.”

On June 11, U.S. District Court of New Jersey Judge Michael E. Farbiarz issued a preliminary injunction prohibiting the government from detaining or seeking to remove Mr. Khalil based on the likely unconstitutional “foreign policy ground.” The following week, the court ordered Mr. Khalil’s release on bail as his habeas case continues, finding that the government had no legitimate basis to detain him. 

After Mr. Khalil’s release, the government appealed both rulings, as well as a July 16 order finding that the government had failed to comply with the court’s initial preliminary injunction. The government also sought an emergency stay of several aspects of the district court’s orders from the Third Circuit, which was denied on July 30. The appeal is now moving forward on an expedited basis.

Mr. Khalil is represented by Dratel & Lewis, the Center for Constitutional Rights, CLEAR, Van Der Hout LLP, Washington Square Legal Services, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), the ACLU of New Jersey, and the ACLU of Louisiana.

For all case materials, please see here.