President Donald Trump's big bid to expel foreign students who condemn the Gaza war has been put at a standstill by federal judges who repeatedly ruled against the government.
First, former Columbia graduate student Mahmoud Khalil was arrested and transported hundreds of miles from his home. Then, a graduate student at Tufts University in Massachusetts, rümeysa Öztürk was kicked out of the street by masked plainclothes federal agents. Georgetown University postdoctoral scholar and professor Badar Khan Suri was arrested at his home, while another Colombian student, Mohsen Mahdawi, was detained in his naturalization interview.
However, since then, federal judges rejected the government’s arguments regarding court jurisdiction and continued to detain three of the four students. Federal judges released Öztürk, Mahdawi and Suri. And, a ruling is expected to be soon on the possible release of Khalil.
The federal appeals court imposed a setback in a separate setback against the government, upholding the order of the lower court to transfer Öztürk to Vermont for a bail hearing and release Mahdawi. Late last month, a judge issued an injunction that prohibits the government from ending the legal status of international students at American universities.
The judge has been appointed by Republican and Democratic presidents, including Trump.
“It’s exciting to see the courts recognize that what the government does is unconstitutional,” said Esha Bhandari, deputy director of the ACLU. “This reinforces the importance of an independent judiciary that can protect individual rights and checks when the executive branch overturns.”
Assistant Homeland Security Secretary Tricia McLaughlin predicted in a statement to NBC News that the government will eventually prevail in court. "These rulings delay justice and try to surrender to the president's constitutional vested powers," she said. "We want the High Court to defend us in this regard. We have the law, facts and common sense."
The Justice Department did not respond to a request for comment.
The Trump administration's main legal argument is that foreign students and scholars can be deported under the obscure provisions of the Immigration and Nationality Act of 1952. The law allows the Secretary of State to delete non-citizens in the country who have “potentially serious adverse foreign policy consequences for the United States.”
Trump administration officials argued that students participating in the protest supported Hamas, a foreign terrorist organization, to contribute to anti-Semitism on university campuses.
Khalil and other students have denied the allegations of anti-Semitism and provided support to Hamas or any other terrorist group, who said they have not participated in the protests that support Hamas. None of the four faced any public criminal charges.
The government has not disclosed any evidence to link students to Hamas or praise the group, which the United States designated as a foreign terrorist organization in 1997.
Lawyers representing students believe that their clients’ detention and expulsion efforts are retaliation against constitutionally protected free speech and advocating Palestinian rights.
Khalil, a law permanent resident, played a key role in Columbia student protests last year by leading negotiations between protesters and university officials. Another Colombian student, Mahdawi, is an outstanding organizer of the pro-Palestinian demonstrations on campus. Graduate student Öztürk wrote a column in Tufts University’s student newspaper, criticizing the university’s response to the Gaza war.
Last week, a federal judge in New Jersey ruled that the administration’s claim that Khalil’s beliefs and speech had adverse effects on U.S. foreign policy. This is the first time the judge said the government's main reason for expelling Khalil was likely unconstitutional.
U.S. District Court Judge Michael Farbiarz said Secretary of State Marco Rubio failed to "certain with certainty" that Khalil's alleged behavior affected U.S. relations with another country, adding that deportation of Khalil under the rules would be "unprecedented."
In response to a request for comment, a State Council spokesman said: "We do not comment on pending litigation."
Lora Ries, director of the Heritage Foundation’s Center for Border Security and Immigration, said the judges unfairly stopped Trump.
“There are many radical judges rulings against the Trump administration,” Rees said. “In addition to what we saw in Trump’s first term, there is a clear effort to slow down many efforts to enforce immigration laws.”
Daniel Kantroom, a professor at Boston University’s Law School, predicts that judges will continue to rule the favor of international students.
"I think the court will see this period as a period where the judiciary should and needs to exert more force and authority than in other cases," Cantrum said. "Just to lower the tone a little bit and bring us back to a more normal interaction between the three branches."
In April, U.S. District Judge Geoffrey Crawford ruled that Mahdawi, 34, a permanent U.S. resident, was born and raised in a refugee camp on the West Bank and should be released from a bail Vermont immigration detention facility. Crawford said Mahadawi's continued detention could have a shocking impact on protected remarks. ”
The government opposed the release of Mahadawi, citing law enforcement records, show that he was “involved and supported anti-Semitic violence” and “for this purpose, he had an interest in guns and facilities in facilities.”
But in a court order, Crawford said law enforcement has determined that the allegations against Mahadaway by the owner of a Vermont gun store was unconfirmed.
In May, U.S. District Court Judge William Sessions III released Öztürk from custody, writing: “The government has no evidence other than professional editors,” Öztürk called on Tufts to acknowledge the war in Gaza. "Literally, there is no evidence here," Sessions said.
Sessions said Öztürk's continued detention violated her First Amendment and due process rights. He added that this may be justified: “If the government brings a legal case for this, it is not the case.”
There are no cases involving the deportation of foreign students condemning the Gaza war before the Supreme Court, but may be in the future.
Conor Fitzpatrick, senior attorney for the Foundation for Supervision of the Individual Rights and Expression of the nonprofit civil liberties organization, said the Supreme Court has not yet addressed the intersection of executive power, immigration law and freedom of expression. Before the United States, the fate of foreign students and scholars in the United States was still uncertain.
“It’s a feeling of uneasiness for international students and international teachers to feel candid in their opinion,” Fitzpatrick said. “They are worried about risking immigration status, which is the harm of long-term withdrawal.”
John Yoo, a law professor at the University of California, Berkeley, who served as a senior Justice Department official during the George W. Bush administration, said the cases would pose unique challenges to the Supreme Court.
"Two things that this court has very support are colliding," Yoo said. "The Roberts Court has great respect for the overall administration. On the other hand, the court is also very protective of freedom of speech."
"It will cause a lot of tension in the court," he added.