Philadelphia-based court hears appeal in pivotal freedom of speech case regarding Columbia student detained by ICE

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The 3rd Circuit Court of Appeals heard oral arguments in the high-profile case of Khalil v. Trump, a constitutional and immigration battle with far-reaching implications for free speech, executive power and the limits of federal immigration authority.

At the center of the case is Mahmoud Khalil, a lawful permanent resident and recent Columbia University graduate who was detained by immigration agents in March after helping organize pro-Palestine protests on campus.

After the hearing Tuesday, Khalil addressed supporters and media, expressing optimism despite the fact he continues to face deportation. He said the lawyers for the Trump administration were “defending the indefensible.”

“They’re trying to stop the federal court from looking at my case because they know they don’t have a case against me,” he said. “So we’ll keep fighting the legal fight until the end, and we are pretty confident that we’ll prevail at the end.”

His attorneys describe Khalil’s arrest as a politically motivated act of retaliation. A vocal leader during campus protests in spring 2024, Khalil was detained without warning, separated from his pregnant wife and flown to a remote facility in Jena, Louisiana, where he was held for 104 days.

The fight over jurisdiction

Shortly after his detention, Khalil’s legal team filed a habeas petition in the U.S. District Court for the Southern District of New York, based on the fact he lived in the district and was arrested there. The government responded the case should be heard in Louisiana, where he was ultimately being detained.

In the end, the petition was transferred to the U.S. District Court for the District of New Jersey once it was confirmed that Khalil was held there before being moved to Louisiana.

At the center of the case is a clause in the Immigration and Nationality Act known as the “foreign policy ground,” which allows the secretary of state — currently Marco Rubio — to unilaterally declare that a noncitizen’s speech poses a threat to U.S. foreign policy. The Trump administration claims that justifies Khalil’s arrest and attempted deportation.

In June, however, U.S. District Judge Michael E. Farbiarz ruled otherwise, calling the move likely unconstitutional. He granted Khalil bail and barred the government from using the foreign policy justification to detain or remove him.

The administration appealed to the 3rd Circuit of Appeals, which hears cases originating in New Jersey, arguing that Fabiarz never had legal authority to hear Khalil’s case because Khalil was no longer in the state. At Tuesday’s hearing, Deputy U.S. Assistant Attorney General Drew Ensign opened by challenging the judges’ jurisdiction.

“The District of New Jersey did not validly acquire jurisdiction,” Ensign told the panel, arguing that the petition should have been filed where Khalil was held in Louisiana. He called the entire process “improper” and said the bail order and injunction were legally defective.

The judges appeared skeptical, noting Khalil had a right to challenge his detention and that was made difficult by the fact the government misled his attorneys about where Khalil was being held.

“The district court there found that counsel for the government persistently and repeatedly misrepresented where Mr. Khalil was when he was in New Jersey and told his attorneys and his family that he was in New York,” Judge Arianna Freeman, a Biden appointee, said to Ensign. “He was given misinformation and his attorneys followed that information to file in New York.”

The three-judge panel comprised Freeman; Thomas Hardiman, a George W. Bush appointee; and Stephanos Bibas, who was appointed by President Donald Trump during his first term.

First Amendment or foreign policy?

Khalil’s case has galvanized a broad coalition of civil liberties advocates who warn that the Trump administration is trying to rewrite the rules of free expression — starting with immigrants. His attorneys say this is part of a broader pattern of retaliatory prosecution. A related case in Boston uncovered internal Department of Homeland Security documents that flagged student activists for surveillance based on Palestine-related speech.

Brett Max Kaufman, senior staff attorney at the American Civil Liberties Union, said the government’s use of immigration law to silence protected political speech sets a dangerous precedent.

“People in our government didn’t like the protected pro-Palestine speech of a lawful permanent resident,” Kaufman told the court. “So they detained him, sent him far away to Louisiana and began efforts to remove him from the country — while proudly warning others that they might be next.”

Bobby Hodgson, assistant legal director of the New York Civil Liberties Union, added that the facts of the case well demonstrate that it does not fall within the scope of the secretary of state’s power on a foreign policy grounds, which was not written to allow the government to suppress a viewpoint.

“I think that is the quintessential case where the right is the strongest and the protections are the strongest, and also where the government has the lowest interest in imposing its power in a viewpoint discriminatory way,” Hodgson said. “So when you balance those factors, I think everything weighs in favor of a First Amendment.”

What’s next?

Even after the injunction, the Trump administration has continued trying to remove Khalil through other means. After the “foreign policy” basis was blocked, the government introduced new allegations — claiming Khalil misrepresented facts in his green card application. His lawyers call the new charges “post hoc and pretextual,” and part of the same retaliatory campaign.

An immigration judge ruled against Khalil on these new grounds but his team appealed to the Board of Immigration Appeals.

“Those charges are baseless and obviously as part and parcel of the broader project of retaliation,” said Baher Azmy, legal director at the Center of Constitutional Rights, who also worked on Khalil’s case. It all “stems from the same sort of rotten root, their desire to punish him for speaking out on behalf of Palestinian human rights,” he added.

The case has become a rallying point for advocates concerned with immigrant rights, campus free speech and unchecked executive power.

“The implications are much broader and they’re broader than people who are speaking up for Palestinian human rights,” said Ramzi Kassem, founder and co-director of Creating Law Enforcement Accountability and Responsibility. “It’s a template that can be mobilized against any issue set that this administration disagrees with, whether it’s reproductive rights, LGBTQ rights or racial justice, this model could be applied to those issues.”

Outside the courtroom, Khalil referred to the dozens of people who showed up to support him.

“This case is about every single person in this country, whether they’re citizens or not,” he said. “This case is about their freedom of speech and their ability to dissent and their ability to speak up, especially about Palestine — about the genocide that’s happening.”

Editor’s note: This article was updated to include the three judges who heard the case.