Friday's news in the Khalil and Abrego Garcia cases underscores both the role courts can play in checking immigration abuses and the limits they often confront.
If this was really Kagan's first solo dissent, that's a bit striking. Why did she pick this case?
I did not watch the Garfield series, not having the channel, but I did try to read the book it apparently was based on. I couldn't get into the whole thing. It was too diffuse for me. Oh well.
Thank you for your update on these two very troubling cases.
If your time permits, please write about the origin of immigration courts which, if I am correct, were created by statute and were placed under DOJ in the executive branch. How can individuals such as Khalil and Abrego be assured of fair treatment when challenging executive branch action? I think lawyers and judges (generally speaking) are saving our country right now, but placing "courts" in the executive branch (DOJ and agencies) violates the separation of powers, doesn't it? As these two cases illustrate, this arrangement jeopardizes the principle of fair and impartial treatment.
I searched Wikipedia (for what it's worth) for "Immigration court" and it redirected to "Executive Office for Immigration Review" (EOIR), which I suppose is the formal name. Apparently "court" should be in quotation marks. Likewise, an "immigration judge" (2) is not an Article III judge or an administrative law judge (3), which I suppose is why Professor Vladeck puts "judge" in quotation marks in that context.
Wikipedia says "EOIR was created in 1983 by the Department of Justice (DOJ) as part of an internal reorganization," and "[a]n immigration judge is appointed by, and works under the direction of, the U.S. Attorney General."
That means that Mahmoud Khalil has no hope within the immigration system. I don't know if he'll have an opportunity to seek redress in an actual court of law. I consider his arrest a great travesty of justice.
Great commentary, as always, but I do have a few nits to pick.
Granted that this administration is stripping immigration courts of the independence Congress intended, a very significant development, I would nonetheless ask you to reconsider your choice to use quotation marks for those courts and their judges.
Also, Tennessee is in the Mississippi watershed and is not part of the eastern seaboard, and certainly not the middle district.
The "Middle District of Tennessee" is a federal judicial district. States are comprised of judicial districts. I'm not sure what the reference to the eastern seaboard is about though.
"Abrego Garcia as the symbol of mass removals to El Salvador’s Terrorism Confinement Center (CECOT) based upon invented facts and in defiance of a prior order specifically barring his removal to El Salvador."
I know I'm going further than probably many folks want to go right now, but I do wonder what the First Amendment implications of Kahlil's case are for US citizens as well as for foreign students and scholars. As you suggest, his rights and those of others are constitutionally protected. If his ability to speak his mind is under threat, it feels like a small step to trying to fence in ours. It will be very interesting to see how sharp a distinction the Supreme Court draws, if they do intervene. Of course, they could duck the issue entirely.
"His case became the first high-profile detention in what became a broader campaign against foreign students and scholars engaged in (constitutionally protected) pro-Palestinian advocacy."
It's clear to me that the Trump administration wants to use any potentially lawful means to suppress criticism of Israel's treatment of Palestinians, with the arrest and threat to deport Mahmoud Khalil (and others) serving as an example to frighten others in to submission.
President Trump's 2025 executive order on combating antisemitism (1) punishes speech considered antisemitic, incorporating the International Holocaust Remembrance Alliance's working definition of that term (2). The IHRA's definition is so vague and broad that it encompasses a great deal of protected political speech. It's also incorporated into the proposed Antisemitism Awareness Act (3).
President Trump has utter contempt for the principles underlying our Constitution and our democracy. I wouldn't be at all surprised if he calls for Israel's president Isaac Herzog to be deported from Israel, given Herzog's recent denunciation of violent Jewish West Bank "settlers" and "brutal acts" against Palestinian detainees. (4)
The post–Louisiana v. Callais GVRs and Alito's post-Dobbs dissent in Danco Laboratories v. Louisiana both feel to me like they're admitting that a common criticism of the Court is true: Their rulings are intended to achieve a specific policy goal—killing the VRA, banning abortion—and they're instructing lower courts to act "in light of" that purpose, not the (otherwise inapplicable) substance of the decisions themselves.
If that's the attitude with which some of the conservative justices are approaching cases, Kavanaugh's complaints about lower courts defiance of unexplained rulings makes more sense; no legal explanation is needed when it's the policy effect that's intended to be binding.
The Mahmoud Khalil case is rather complicated, given the various avenues he's pursuing. At this point, does he have any realistic hope of getting to a federal (Article III) court before the Trump administration deported him, or is he likely to have to pursue his case from a foreign country (if they don't dump him in CECOT)?
If he can get to a federal court, is there a realistic change that it would declare that his arrest, detention, and attempted deportation are unconstitutional?
It's perfectly clear to me that the sole reason the Trump administration is pursuing Mr. Khalil is to silence criticism of Israel.
To have this one man MADE the poster man for immigration disgusts me.
Having to find just the legal terms to make something stick OR terms to set him free .
Do these ppl not realize God is watching?
Do these ppl not realize that WE THE PROPLE ARE ALSO WATCHING?
Maybe look at his case like it was your grown child . Would you really be looking for every single loop so you can hang him?
And don’t
Forget he said he would go to Mexico or Cuba willingly: I do not believe in our power to overcome this admin as long as ablanche is auditioning for thr bigger job he thinks is already his.
A few procedural points as to Khalil. With a decision by the BIA, ICE could normally act to remove him absent a stay granted by the 5th Circuit in conjunction with his petition for review. No insight as to the 5th Circuit normal practice on stay motions. Even if removed, he could continue to pursue his petition for removal. No idea how the the case in the 3d Circuit could affect this. He can certainly make his constitutional arguments as part of his petition for review with the 5th Circuit. The immigration court system cannot entertain constitutional arguments so there may be questions as to the sufficiency of the record. Does access to the Article 3 court through the petition for removal satisfy the Suspension Clause? That may be a critical issue. The allegation and charge as to irregularities with his adjustment of status could be critical. That could still be there even if there is a ruling that a lawful permanent resident can't be removed on the determination of one officer, even if that officer is the Secretary of State.
Wow, can't believe only Kagan got it right on the Havana docks case. Imagine that Cuba had sold a pass that gave the holder the right to transverse any piece of property and enter any structure in the country on one day in 1970 (then in the far future). That is a time limited interest so would that really create essentially unbounded liability for the use of any property in Cuba?!?
But it's good to see the justices really get it wrong in non-partisan cases to. Shows you that it doesn't require malice to reach the wrong conclusion.
Please give us a succinct short paragraph explaining what you just wrote hundreds/thousands of words about.
tl;dr!
If this was really Kagan's first solo dissent, that's a bit striking. Why did she pick this case?
I did not watch the Garfield series, not having the channel, but I did try to read the book it apparently was based on. I couldn't get into the whole thing. It was too diffuse for me. Oh well.
Thank you for your update on these two very troubling cases.
If your time permits, please write about the origin of immigration courts which, if I am correct, were created by statute and were placed under DOJ in the executive branch. How can individuals such as Khalil and Abrego be assured of fair treatment when challenging executive branch action? I think lawyers and judges (generally speaking) are saving our country right now, but placing "courts" in the executive branch (DOJ and agencies) violates the separation of powers, doesn't it? As these two cases illustrate, this arrangement jeopardizes the principle of fair and impartial treatment.
I searched Wikipedia (for what it's worth) for "Immigration court" and it redirected to "Executive Office for Immigration Review" (EOIR), which I suppose is the formal name. Apparently "court" should be in quotation marks. Likewise, an "immigration judge" (2) is not an Article III judge or an administrative law judge (3), which I suppose is why Professor Vladeck puts "judge" in quotation marks in that context.
Wikipedia says "EOIR was created in 1983 by the Department of Justice (DOJ) as part of an internal reorganization," and "[a]n immigration judge is appointed by, and works under the direction of, the U.S. Attorney General."
That means that Mahmoud Khalil has no hope within the immigration system. I don't know if he'll have an opportunity to seek redress in an actual court of law. I consider his arrest a great travesty of justice.
[1] https://en.wikipedia.org/wiki/Executive_Office_for_Immigration_Review
[2] https://en.wikipedia.org/wiki/Immigration_judge
[3] https://en.wikipedia.org/wiki/Administrative_law_judge
Great commentary, as always, but I do have a few nits to pick.
Granted that this administration is stripping immigration courts of the independence Congress intended, a very significant development, I would nonetheless ask you to reconsider your choice to use quotation marks for those courts and their judges.
Also, Tennessee is in the Mississippi watershed and is not part of the eastern seaboard, and certainly not the middle district.
If Wikipedia is accurate (never a sure thing), "immigration judges are quasi-judicials", so "immigration quasi-judge" may be a reasonable compromise.
https://en.wikipedia.org/wiki/Immigration_judge
The "Middle District of Tennessee" is a federal judicial district. States are comprised of judicial districts. I'm not sure what the reference to the eastern seaboard is about though.
"Abrego Garcia as the symbol of mass removals to El Salvador’s Terrorism Confinement Center (CECOT) based upon invented facts and in defiance of a prior order specifically barring his removal to El Salvador."
Invented facts = lies
I know I'm going further than probably many folks want to go right now, but I do wonder what the First Amendment implications of Kahlil's case are for US citizens as well as for foreign students and scholars. As you suggest, his rights and those of others are constitutionally protected. If his ability to speak his mind is under threat, it feels like a small step to trying to fence in ours. It will be very interesting to see how sharp a distinction the Supreme Court draws, if they do intervene. Of course, they could duck the issue entirely.
"His case became the first high-profile detention in what became a broader campaign against foreign students and scholars engaged in (constitutionally protected) pro-Palestinian advocacy."
It's clear to me that the Trump administration wants to use any potentially lawful means to suppress criticism of Israel's treatment of Palestinians, with the arrest and threat to deport Mahmoud Khalil (and others) serving as an example to frighten others in to submission.
President Trump's 2025 executive order on combating antisemitism (1) punishes speech considered antisemitic, incorporating the International Holocaust Remembrance Alliance's working definition of that term (2). The IHRA's definition is so vague and broad that it encompasses a great deal of protected political speech. It's also incorporated into the proposed Antisemitism Awareness Act (3).
President Trump has utter contempt for the principles underlying our Constitution and our democracy. I wouldn't be at all surprised if he calls for Israel's president Isaac Herzog to be deported from Israel, given Herzog's recent denunciation of violent Jewish West Bank "settlers" and "brutal acts" against Palestinian detainees. (4)
[1] https://www.whitehouse.gov/presidential-actions/2025/01/additional-measures-to-combat-anti-semitism/
[2] https://holocaustremembrance.com/resources/working-definition-antisemitism
[3] https://en.wikipedia.org/wiki/Antisemitism_Awareness_Act
[4] https://www.nytimes.com/2026/05/24/world/middleeast/israel-herzog-violence.html
The post–Louisiana v. Callais GVRs and Alito's post-Dobbs dissent in Danco Laboratories v. Louisiana both feel to me like they're admitting that a common criticism of the Court is true: Their rulings are intended to achieve a specific policy goal—killing the VRA, banning abortion—and they're instructing lower courts to act "in light of" that purpose, not the (otherwise inapplicable) substance of the decisions themselves.
If that's the attitude with which some of the conservative justices are approaching cases, Kavanaugh's complaints about lower courts defiance of unexplained rulings makes more sense; no legal explanation is needed when it's the policy effect that's intended to be binding.
I hope that I'm wrong.
I’m sure the Court would disagree with me in its rush to shield this executive, but Thuraissigiam seems a very poor fit for Khalil.
Excellent, as usual. Not only in breaking down the legal issues & their possible consequences, but also in adding the human coloring of the dynamics.
The Mahmoud Khalil case is rather complicated, given the various avenues he's pursuing. At this point, does he have any realistic hope of getting to a federal (Article III) court before the Trump administration deported him, or is he likely to have to pursue his case from a foreign country (if they don't dump him in CECOT)?
If he can get to a federal court, is there a realistic change that it would declare that his arrest, detention, and attempted deportation are unconstitutional?
It's perfectly clear to me that the sole reason the Trump administration is pursuing Mr. Khalil is to silence criticism of Israel.
To have this one man MADE the poster man for immigration disgusts me.
Having to find just the legal terms to make something stick OR terms to set him free .
Do these ppl not realize God is watching?
Do these ppl not realize that WE THE PROPLE ARE ALSO WATCHING?
Maybe look at his case like it was your grown child . Would you really be looking for every single loop so you can hang him?
And don’t
Forget he said he would go to Mexico or Cuba willingly: I do not believe in our power to overcome this admin as long as ablanche is auditioning for thr bigger job he thinks is already his.
Great update.
Thank you.
A few procedural points as to Khalil. With a decision by the BIA, ICE could normally act to remove him absent a stay granted by the 5th Circuit in conjunction with his petition for review. No insight as to the 5th Circuit normal practice on stay motions. Even if removed, he could continue to pursue his petition for removal. No idea how the the case in the 3d Circuit could affect this. He can certainly make his constitutional arguments as part of his petition for review with the 5th Circuit. The immigration court system cannot entertain constitutional arguments so there may be questions as to the sufficiency of the record. Does access to the Article 3 court through the petition for removal satisfy the Suspension Clause? That may be a critical issue. The allegation and charge as to irregularities with his adjustment of status could be critical. That could still be there even if there is a ruling that a lawful permanent resident can't be removed on the determination of one officer, even if that officer is the Secretary of State.
Wow, can't believe only Kagan got it right on the Havana docks case. Imagine that Cuba had sold a pass that gave the holder the right to transverse any piece of property and enter any structure in the country on one day in 1970 (then in the far future). That is a time limited interest so would that really create essentially unbounded liability for the use of any property in Cuba?!?
But it's good to see the justices really get it wrong in non-partisan cases to. Shows you that it doesn't require malice to reach the wrong conclusion.