Mohsen Mahdawi, a Palestinian student at Columbia University and a U.S. green card holder, walked free from federal custody last Wednesday afternoon and was welcomed by a crowd of supporters outside a Vermont courthouse.
“We will not fear anyone because our fight is a fight for love, democracy, and humanity — and I am saying it clear and loud to President Trump and his cabinet: I am not afraid of you,” Mahdawi said to the crowd waiting for him outside the Burlington courthouse, to enthusiastic cheers and applause.
Sixteen days earlier, on April 14, Mahdawi had been detained by immigration authorities when he went in for his American citizenship interview. A federal judge granted him bail on April 30, and likened his arrest to McCarthy-era crackdowns.
To understand the ramifications of Mahdawi’s release and its impact on other similar cases across the United States, Documented spoke to a range of legal experts, including First Amendment specialists and immigration attorneys, who offered differing views on Mahdawi’s release as legal precedent. However, they were unanimous in stating that the decision by U.S. District Court Judge Geoffrey Crawford in Vermont was significant on several counts.
“It’s a very visible indication of the constraints that our constitutional system imposes on the power of the government,” said Genevieve Lakier, professor of law and specialist in First Amendment rights at the University of Chicago Law School. The Trump administration is “acting as if they have unlimited, unconstrained power to do whatever they want with non-citizens in the United States, and this is a very powerful indication that that is in fact not true,” she said.
The government’s pursuit of student activists in particular, Lakier added, has been with the goal of suppressing speech around Palestine. The unpredictable, somewhat haphazard nature of recent arrests under an immigration law from 1952 heightens the fears of international students, she said. Even a relatively small number of arrests increases the likelihood of activists’ self-censorship and would consequently have a chilling effect on free speech, said Lakier.
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The most visible cases in which students have recently been arrested by immigration authorities have been in relation to their advocacy for Palestine at university campuses.
Conor Fitzpatrick, supervising senior attorney at the Foundation for Individual Rights and Expression (FIRE), told Documented, “We see it as a very positive sign that the courts are seeing the Trump administration’s actions for what they are, which is an attack on free speech and the First Amendment, and an attempt to arrest, detain, and eventually deport people who express views that the Trump administration does not like.”
Recalling the Power of Precedent
Lakier noted that the idea of foreigners coming to the U.S. with “radical ideas and undermining national security or the public welfare” has been around for a long time.
During the Red Scares of the 1910s through the 1950s, the U.S. government used immigration law to deport thousands of suspected communists or “subversives,” using legal frameworks around immigration to limit the speech of immigrants. As the government embraced a deep paranoia of communist influence, courts for the first time began manifesting those fears into law.
The Vermont district court’s ruling may signal a shift in how effective the government’s efforts could be in using immigration laws to suppress speech.
Columbia graduate student Mahmoud Khalil, one of the lead negotiators on behalf of protesters at the Gaza Solidarity Encampment in Columbia last April, was arrested on March 8 by immigration authorities from his university residential building.
In light of Mahdawi’s ruling, Khalil’s counsel filed a notice early on May 2, drawing connections between Mahdawi’s and Khalil’s cases.
“Like Mr. Khalil, the petitioner in Mahdawi raised First and Fifth Amendment challenges to detention, both of which the district court found substantial,” Khalil’s attorneys stated. They further argued that Mahdawi — like Khalil — posed no risk of flight or danger to the community and should therefore be released from custody.
Mahdawi had been arrested by immigration authorities under a provision of the Immigration and Nationality Act of 1952, which grants the federal government the power to deport non-citizens whom the Secretary of State has “reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States.”
In the order releasing Mahdawi on bail, the district court in Vermont stated, “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, […] during the McCarthy period in the 1950s when thousands of non-citizens were targeted for deportation due to their political views.”
The Vermont ruling, whose value as a legal precedent is not binding, can still hold what is known as “persuasive authority.”
“It’s not at all clear at this point how important these decisions would be,” said Lakier. “I think they tell us where the winds are blowing, and they reveal something about the problems that the Trump administration has invited by being so clearly aggressive and repressive in its approach.”
Katherine Franke, a constitutional law expert and recently retired Columbia Law School professor who has closely followed the cases of Mahdawi, Khalil, and others, told Documented that federal court judges are under an “incredible amount of pressure” as a result of the administration circumventing legal norms.
“We’re watching the federal judiciary undergoing a very intense stress test,” she said. “The judges are quite aware that the rules are being broken in almost all of these cases by the administration. And they have to think about what role they are willing to play and what risks they themselves personally are willing to take in enforcing the law in the face of such enormous abuse of executive power.”
Tussles Over Jurisdiction
Despite the recent ruling on Mahdawi’s case, the outcomes of other cases may hinge on one key element: their jurisdiction. In recent weeks, federal prosecutors have been locked in a legal tussle with petitioners’ legal teams over the location of their cases.
Just as in the case of Mahmoud Khalil, federal attorneys sought to move Mahdawi to Louisiana, which lies in the Fifth Circuit. “The administration,” said Lakier, “thinks, correctly, that the Fifth Circuit is much less sympathetic to these kinds of First Amendment interests brought on behalf of immigrants than the Second Circuit.”
According to Franke, by staying in his home state of Vermont, in the Second Circuit, Mahdawi was more likely to face a sympathetic judge. If their cases could be heard in a “jurisdiction that has a different inclination in terms of how to interpret the law,” she said, “we see that we’re able to actually make the process work the way it’s supposed to.”
Franke added, “That is part of what I found so refreshing about the opinion in Mohsen’s case in Vermont, is that it felt like we were back for a moment to regular law.”
The habeas corpus petition of Khalil, who was denied even a temporary release to attend the birth of his first child, is currently being heard by a district court in New Jersey that falls under the Third Circuit, despite the Trump administration’s continued efforts to have the petition be heard in Louisiana instead, where Khalil had been quickly shuttled after his detention.
Another detained student, Rümeysa Öztürk, faces a similar legal battle. Öztürk, a PhD student at Tufts University, has been detained in Louisiana since she was grabbed off a Boston sidewalk on March 25 — despite a federal court order mandating that she remain in Massachusetts. On April 18, a federal judge ordered Öztürk’s transfer from Louisiana to Vermont by May 1. Federal prosecutors appealed the order, and a hearing has been set for May 6 to argue the case.
Öztürk remains in detention. But it’s possible that Mahdawi’s ruling may offer her defense team an opening. According to Mary Holper, clinical professor and director of the Immigration Clinic at Boston College Law School, the recent Mahdawi ruling counters efforts by the government to place individuals in “retaliatory detention,” where they are punished for their speech. In addition, she said, it leads to a chilling effect — “taking someone in so that other people will be scared to talk.”
The impact of such detentions as a means of suppressing speech is far-reaching, argue legal experts. “Someone is suffering detention, and our government is paying something like $250 a day to detain that person, and it’s just a waste. Waste of money, waste of human capital, waste of life, you’re taking away someone from their loved ones in the community,” said Holper.
“There are two legal issues at stake,” said Holper. “One of them is, can this person be deported?” And the second, she says, is whether they should be detained while fighting against their deportation.
In Mahdawi’s case, the district court’s answer to the latter question was an emphatic ‘no’.
The intersections between the First Amendment and immigration law have also long been murky, said Lakier. “When we’re in the immigration context, we don’t have ordinary free speech rights,” she said. “The government gets to make all kinds of viewpoint-based decisions that they otherwise would not be permitted to do under the First Amendment.”
The recent ruling in Vermont, however, could indicate that the Trump administration may have crossed a line in suppressing speech by detaining activists. “This seems like it’s arbitrariness, it’s aggressiveness, it’s disregard for ordinary forms of protest and notice,” said Lakier who added that Mahdawi’s release does not settle the matter of immigrant detention for reasons of speech, but it may provide the basis for future rulings. If courts continue to judge in favor of detained students, a judicial consensus may begin to form.
Unfinished Business
Reacting to the order releasing Mahdawi, his lawyer Shezza Abboushi Dallal said in a statement, “It is a victory for all people in this country invested in their ability to dissent and speak and protest for causes they are morally drawn to.”
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Mahdawi’s team knows that their work is far from over. After all, Mahdawi is only out on bail, and proceedings in his cases will continue, just with him outside an immigration detention facility instead of inside it. For Khalil, Öztürk, and Badar Khan Suri, a Georgetown University scholar who has been similarly detained, the cases continue, but with them still in custody.
The Trump administration has not relented in its attempts to pursue removal proceedings for these individuals, each accused not of any crime, but of having been involved in advocacy for Palestinian rights, which the State Department has cited in its memos and statements as having potentially adverse foreign policy consequences for the United States.
Fitzpatrick said Mahdawi’s order was a reaffirmation of the constitutional “guarantee to everyone in the United States” of their right to freedom of speech. He believes that, “despite all of the rhetoric coming out of the administration, when the rubber meets the road, the Constitution will stand tall.”
