Ep. 238: On Mahmoud Khalil

Summary

Episode Summary: Ep. 238: On Mahmoud Khalil So to Speak: The Free Speech Podcast Release Date: March 18, 2025

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Introduction to the Episode

In Episode 238 of So to Speak: The Free Speech Podcast, hosted by Nico Perino of the Foundation for Individual Rights and Expression (FIRE), the focus centers on the controversial deportation case of Mahmoud Khalil. This episode delves into the intricate balance between free speech rights and immigration laws, featuring insightful discussions with two legal experts: Mark Randazza, a First Amendment attorney with Randazza Legal Group, and Jeffrey Rubin, an immigration attorney with Rubin Pomerleau in Boston.

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Background on Mahmoud Khalil's Case

The episode opens with a detailed account of Mahmoud Khalil's detention and subsequent deportation proceedings. Khalil, a lawful permanent resident (green card holder), was detained at approximately 8:30 PM on March 8 and swiftly relocated to Jena, Louisiana, for deportation under the Immigration and Nationality Act (INA). The INA permits the deportation of individuals if their presence or activities in the U.S. pose "potentially serious adverse foreign policy consequences."

Mark Randazza outlines Khalil's involvement in the Columbia protests, which included both unlawful conduct—such as vandalism and building occupations—and lawful expressions of dissent. The government's justification for Khalil's deportation was bolstered by statements from prominent officials like Marco Rubio and former President Trump, who labeled Khalil as a supporter of Hamas and condemned his activities as pro-terrorist and anti-Semitic.

Mark Randazza [02:33]: "Is an individual who organized group protests that not only disrupted college campus classes and harassed Jewish American students and made them feel unsafe on their own college campus, but also distributed pro Hamas propaganda flyers with the logo of Hamas."

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Legal Framework and Implications

The discussion progresses to the legal underpinnings of Khalil's case, particularly focusing on the intersection of First Amendment rights and immigration law.

First Amendment Rights for Green Card Holders

Jeffrey Rubin emphasizes the protections afforded to lawful permanent residents under the First Amendment, arguing that Khalil's deportation based solely on his speech and association sets a dangerous precedent.

Jeffrey Rubin [05:20]: "This is chilling. I mean, this is a guy who we let in the country and maybe we shouldn't have. This is a guy we gave a green card to, maybe we shouldn't have."

Rubin references pivotal Supreme Court cases such as Kleindist vs. Mandel (1972) and Bridges vs. Wixon (1945), underscoring that deporting individuals solely based on their speech or associations without evidence of illegal activities is unconstitutional.

Grounds for Deportation under Immigration Law

Nico Perino provides an overview of the categories within immigration law: citizenship, admissibility, and removability. He questions whether Khalil's activities genuinely meet the threshold for deportation under the INA, given the lack of concrete evidence linking him to actions that would have serious adverse foreign policy consequences.

Nico Perino [05:37]: "What would be the reasonable ground to believe that he would have potentially serious adverse foreign policy consequences while just getting students on a campus to voice their opinion, or freedom of assembly or freedom of speech and protest..."

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Analysis by Experts

Jeffrey Rubin's Perspective (First Amendment)

Rubin passionately defends Khalil's First Amendment rights, criticizing the government's broad interpretation of "adverse foreign policy consequences." He argues that mere participation in protests, even those deemed pro-Hamas, should not constitute grounds for deportation without substantive illegal conduct.

Jeffrey Rubin [14:45]: "The one thing that makes us truly exceptional as a country is our commitment to wide open and robust debate."

Rubin warns against the slippery slope of allowing the government to suppress dissenting voices, emphasizing that upholding free speech is fundamental to American values.

Nico Perino's Perspective (Immigration Law)

Perino, with 27 years of experience in immigration law, critiques the Department of Homeland Security's (DHS) use of vague statutes to target individuals like Khalil. He highlights inconsistencies and contradictions within immigration laws, pointing out that the statute used for Khalil's deportation lacks specificity and may be applied arbitrarily.

Nico Perino [22:11]: "There is a lot of illogical, nonsensical, contradictory immigration laws. They write statutes, they write regulations. They don't agree with each other."

Perino also shares insights from his professional experience, noting the absence of concrete evidence against Khalil and the potential misuse of immigration laws to serve as "thought police."

Mark Randazza's Insights

Randazza supplements the discussion by exploring the broader implications of Khalil's case, referencing other public figures who might face similar scrutiny under stringent immigration enforcement. He underscores the philosophical conflict between upholding constitutional rights and enforcing immigration regulations.

Mark Randazza [21:08]: "If you view freedom of speech as a fundamental human right, you cannot deny it to someone, regardless of their citizenship status, to the extent you are subject to the jurisdiction of the country."

Randazza also touches upon jurisdictional complexities in Khalil's case, such as his transfer across circuits and the strategic reasons behind relocating detainees to states like Louisiana.

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Potential Consequences and Broader Implications

The experts discuss the broader ramifications of Khalil's deportation on free speech and immigration policies in the United States. They express concerns that such actions may foster anti-Semitism and other forms of hate by targeting individuals based on their political beliefs or associations, rather than concrete illegal activities.

Nico Perino [28:48]: "If you're going to be this heavy handed with somebody just voicing an opinion, is this going to exacerbate anti Semitism and is it going to in the future?"

Rubin draws parallels with historical instances where suppressing speech backfired, citing the suppression of Hitler's speeches in Weimar Germany as a catalyst for further extremism.

Jeffrey Rubin [19:03]: "When we actually take something that, you know, take. Take a point of view that really, I'd rather see us make fun of it than ban it, you know, you ennoble it."

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Conclusion and Final Thoughts

As the episode draws to a close, the hosts and guests reiterate the importance of upholding constitutional protections for all individuals within the United States, regardless of their immigration status. They advocate for a more nuanced and legally sound approach to immigration enforcement that respects free speech and due process.

Mark Randazza and Jeffrey Rubin express skepticism about Khalil's deportation ultimately holding up in court, given the constitutional challenges it poses and the lack of substantial evidence against him.

Jeffrey Rubin [37:17]: "Then I'm going to say, okay, but does it comport with the First Amendment? And in this situation, I see us having, you know, this seems to fail the logic gate at two junctures."

Nico Perino emphasizes the need for immigration laws to be restructured for clarity and fairness, ensuring that deportations are based on legitimate grounds rather than vague and politically motivated justifications.

Nico Perino [25:30]: "So the rule of law, right? So when somebody comes... it's got to be more than just words on paper."

The episode concludes with a call to listeners to engage with FIRE's platforms for further information and to support the mission of defending free speech rights.

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Notable Quotes with Timestamps

• Mark Randazza [02:33]: "Is an individual who organized group protests that not only disrupted college campus classes and harassed Jewish American students and made them feel unsafe on their own college campus, but also distributed pro Hamas propaganda flyers with the logo of Hamas."

• Jeffrey Rubin [05:20]: "This is chilling. I mean, this is a guy who we let in the country and maybe we shouldn't have. This is a guy we gave a green card to, maybe we shouldn't have."

• Jeffrey Rubin [14:45]: "The one thing that makes us truly exceptional as a country is our commitment to wide open and robust debate."

• Mark Randazza [21:08]: "If you view freedom of speech as a fundamental human right, you cannot deny it to someone, regardless of their citizenship status, to the extent you are subject to the jurisdiction of the country."

• Jeffrey Rubin [19:03]: "When we actually take something that, you know, take. Take a point of view that really, I'd rather see us make fun of it than ban it, you know, you ennoble it."

• Jeffrey Rubin [37:17]: "Then I'm going to say, okay, but does it comport with the First Amendment? And in this situation, I see us having, you know, this seems to fail the logic gate at two junctures."

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Final Remarks

Episode 238 of So to Speak: The Free Speech Podcast offers a compelling examination of Mahmoud Khalil's deportation case, highlighting the tensions between immigration enforcement and constitutional freedoms. Through expert analysis and robust debate, the episode underscores the necessity of maintaining clear and fair legal standards to protect free speech rights for all individuals within the United States.

For more in-depth discussions and future episodes, listen to So to Speak on your preferred podcast platform or subscribe to their YouTube channel and Substack page.

Transcript

[Nico Perino]

Somewhere I read of the freedom of speech.

[Mark Randazza]

You're listening to so to Speak, the free speech podcast brought to you by fire, the foundation for individual Rights and Expression. All right, folks, welcome back to so to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through the law, philosophy and stories that define your right to free speech. Today we're looking at the story that's captured the headlines involving Mahmoud Khalil. And to do so, we are joined by Mark Randazza, who is a First Amendment attorney with Randazza Legal Group. Mark, welcome back on.

[Jeffrey Rubin]

Thank you. Yeah, I love being on the show.

[Mark Randazza]

We also have a new guest who I hope will love being on the show as well. Jeffrey Rubin is an immigration attorney with Reuben Pomerlow in Boston. Jeff, welcome on to the show.

[Nico Perino]

Thank you, Nick, for having me. Appreciate it.

[Mark Randazza]

All right, so let's, let's set the scene a little bit. Mahmoud Khalil is a green card holder who was detained around 8:30pm on Saturday, March 8. He was quickly moved to Jena, Louisiana, and according to the notice to appear document which I'm holding in my hands right now from the Department of Homeland Security, he is being sent to Jena, Louisiana for deportation under the Immigration and Nationality act, which allows the secretary of State to deport someone if they believe that the individual's presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States. So why are they going after Mahmoud Khalil? Why is this something that is capturing headlines? Well, he was involved in the Columbia protests, which have a mix of unprotected unlawful conduct, such as vandalism, building occupations and whatnot, and lawful speech and sorting out who is responsible for what is very difficult. But in the Khalil affair, you look at the the statements from the government officials justifying his arrest and detention, and you have Marco Rubio saying, that we're revoking the visas and green cards of Hamas supporters in America so they can be deported. President Trump hailed the arrest of Khalil, saying, we know there are more students at Columbia and other universities across the country who have engaged in pro terrorist, anti Semitic, anti American activity. And the Trump administration will not tolerate it. The press secretary, Caroline Levitt, said, this.

[Nico Perino]

Is an individual who organized group protests that not only disrupted college campus classes and harassed Jewish American students and made them feel unsafe on their own college campus, but also distributed pro Hamas propaganda flyers with the logo of Hamas.

[Mark Randazza]

I've been doing some research on Khalil and It's, and it's kind of unclear what role he had in the protests. I believe he was a mediator or negotiator between the university and the student groups, the coalition of student groups that partook in the encampment. He also obviously had some sympathies for the encampment and the post October 7th protests that he would describe as pro Palestinian. Marco Rubio and the Trump administration clearly are calling them pro Hamas. But the justifications obviously raise First Amendment questions, free speech questions. What are the rights of foreign nationals in this country? Permit lawful permanent residents with green cards. So we're going to try and unpack that all here. That's why we've got a First Amendment attorney. That's why we've got an immigration attorney. But Mark, I maybe want to start with you.

[Jeffrey Rubin]

Yeah.

[Mark Randazza]

Looking at from a First Amendment perspective.

[Jeffrey Rubin]

Well, to start off, these are my irony pills that I was going to take like extra of them because if you take what the government, this, you know, this conservative government is saying, this sounds like woke ass bullshit from campuses over the past generation. They don't, you know, look, I get it. And let me also set the stage with saying I despise this Khalil guy. I despise anybody who has any support for Hamas. I am, I mean I, I sit around a table of Jews and I am the one who's most more pro Israel than any of them. I get yelled at by them for being too, too pro Israel. But from a free speech perspective, this is chilling. I mean this is, this is a guy who we let in the country and maybe we shouldn't have. This is a guy we gave a green card to, maybe we shouldn't have. But having made those mistakes, he is now afforded due process. He is now afforded First Amendment rights. So with him being here for the government to say that the thing we have against him is that he supports a movement we don't like and that he's engaged in protests that we don't like. I can't think of anything less American. Well, accused the guy of jaywalking, for God's sakes. Accuse the guy of something unlawful even if it doesn't fit the facts. Because you know, if the government had a fact that was more than protest, wouldn't they put it out there?

[Mark Randazza]

Well, well, Jeff, can they, can they deport this guy for good reason or no reason? I mean, what is the law as applied to someone in his situation with a green card?

[Nico Perino]

Right now let's go right to the statute. Serious adverse foreign policy Consequences.

[Jeffrey Rubin]

Now, that's to get rid of them, right, Jeff?

[Nico Perino]

Right. And by the way, I was raised Jewish. Both parents, I was Bar Mitzvahed 1983. I have been an immigration attorney. I fell right into the field right as it became sort of a new interpretation of a new statute. At the time, it was 1996. This IRA, IRA came out as a big bill signed by Bill Clinton. And I got into immigration right around 1998. And this, to me, is a first impression. This is the first time I've seen anything like this. The last time I saw anything like this was maybe the special registration against Muslim people after post 9 11. But again, this was not applied to lawful permanent residents. Here's the difference here is that this gentleman is a lawful permanent resident, meaning that he has already been vetted and screened, and he has. And certainly there are three bodies of immigration law. There's citizenship, there's admissibility, and then there's removability. We're dealing with removability here. They could have a suspicion that you're selling drugs and deny you a green card. They can deny you citizenship if you say, I'm a communist or I support totalitarianism or terrorism, but here's a lawful permanent resident. You are demonstrating an intent to reside in the United States permanently. Certainly a green card could be taken away if you show an intent not to reside here permanently, you're outside of the country for more than a year, or you're just only in the United States for one day every year. You're not showing an intent to be here all the time. If you commit certain crimes and you're convicted, then those are also grounds for removability. So just looking right at the law, you have to have been selling drugs, possessing certain drugs, being engaged in acts of violence and being convicted. And there's been lots of different definitions of that. Now here, what would be the reasonable ground to believe that he would have potentially serious adverse foreign policy consequences while just getting students on a campus to voice their opinion, or freedom of assembly or freedom of speech and protest something that they view to be too many innocent civilians dying on one side, or Israel reacting to the October 7th events with. With, you know, too much force or not doing it in a way that would spare more civilian lives? I don't see how this gets to foreign policy consequences. Right.

[Jeffrey Rubin]

Even if he was pro. I mean, let's. Let's make it even more offensive. You know, let's say he was protesting, saying, you know, north Korea should rule the United States because they have a better system. Hail Juche. Or, you know, even if he was a Nazi, for God's sake. I mean, I, you know, it seems to me problematic if that's all you've got. And There is a First Amendment interplay here, right? Like Kleindist vs. Mandel was a 1972 Supreme Court case where they didn't want to let a Belgian Marxist into the country on a visa. Now, it's one thing that to say, and the First Amendment did not, as a 6 to 3 decision, saying that the First Amendment doesn't guarantee the right to compel admission of a foreign national into the country. So we can have a membrane that you can't get through with certain ideas or certain, you know, certain things that might be protected as First Amendment protected speech once you got here. But that's. Once you, that's, that's. That's to break through that outer shell. But once you're through the shell, you know, Bridges vs. Wixson was a Supreme Court case in 1945 where they wanted to deport an Australian immigrant who was affiliated with the Communist Party. And we're talking 1945, a darn good time to throw Communists out of the United States. But even then, how they said you couldn't deport him because legal resident aliens possess First Amendment rights to free speech and free press. And deporting him solely on guilt by association without any evidence of personal involvement in illegal activities is unconstitutional. We haven't overruled that. So this is, you know, this is inconsistent with Bridges vs. Wilson Wixon, but it's just inconsistent with what we are as a people.

[Mark Randazza]

Jeff, I want to step back and ask you about the distinction between two things that Mark was talking about. Someone who wishes to get into the country and someone who is already here. You were saying earlier that it sounds like if you're here and you're either a visa, student visa holder or a green card holder to get deported, typically what needs to happen is you need to be charged and convicted with a crime.

[Nico Perino]

Right? Right. So to. A student visa is temporary. And that's what Secretary of State Rubio relied upon in his compelling, to many people discussion of why the government's doing this. They said if we knew before he came in he was going to be riling up people, preventing Jewish students from attending classes, getting everybody into a tiff about Hamas and promoting propaganda about Hamas, we wouldn't have let him into the country. Now, that is true that there's a wide discretion and there's a lot more Grounds to deny somebody to be here temporarily. The issue here is, once here permanently, why wouldn't you get the full protections of the Constitution? If you're going to be in a place that celebrates all of these freedoms through our U.S. constitution, you're going to be here permanently. So I do think that it is a slippery slope. It is very alarming. If that's all it is, I'd love to see what the government has to offer beyond being present at protests or as you say, being a go between, between the students and administrators, or even support even handing out leaflets or so forth that support his position. I thought that maybe there would be some sort of financial connection. There is a terrorism bar, materially supporting terrorism. But again, that is also for admissibility, but certainly could be logically extended to somebody being removed. But I don't see any evidence that there was any financial support, any attempts to engage in any actual warfare or activity here that, you know, supports Hamas. I think that the words pro Hamas are thrown around, but I know that from people that object to innocent civilian diet dying in any war or any situation, they're not necessarily pro whatever group happens to be governing that country. So there is a huge difference between protesting freedom of assembly, freedom of speech, and actually participating and supporting and being in the way of some foreign policy approach from the US Government.

[Mark Randazza]

I was looking at some stuff over the weekend. People were throwing out different green card holders or individuals here on visas, people like John Oliver or Christopher Hitchens or Jordan Peterson, for example, who are very public. They speak out, they come to America, they're public intellectuals. Charlie Cook, even from National Review, he's now a citizen, but was previously a green card holder, who you can only imagine, if you're one of these individuals and you're. You're contrary to the administration, if you're Christopher Hitchens, contrary to the Clinton administration, for example, in the 90s, how you might seeing this precedent play out, Keep your mouth shut. But I wanted to ask you, Jeff, because this is something that's also going around a lot, that he lied on his application.

[Caroline Levitt]

And if you tell us when you apply for a visa, I'm coming to the US to participate in pro Hamas events that runs counter to the foreign policy interest of the United States of America. It's that simple. So you lied. You came. If you had told us that you were going to do that, we never would have given you the visa. Now you're here. Now you do it. You lied to us. You're out.

[Mark Randazza]

Now. I had looked at what I had Seen floating around on the Internet, some of these green card applications. And I hadn't seen anything that had matched the language, endorse or espouse terrorist activity. I had seen a lot of questions that related to things that are more like material support, like financial.

[Nico Perino]

But Nick, you have a copy of the notice to appear?

[Mark Randazza]

I do, I do.

[Nico Perino]

They're not citing any of that to read to us. Where does it say that he's been involved in a misrepresentation? Because that's always on the notice to appear. That's a very easy one to put down there. You misrepresented material facts when you applied to either have your visa or student visa or when you apply for lawful permanent residence. And so there are waivers for that. But it's not on there. That's not on there.

[Jeffrey Rubin]

The one thing that makes us truly exceptional as a country is our commitment to wide open and robust debate. And I want this guy thrown out of the country. Like, I'm thrilled with the idea of this guy getting sent to Gaza and let him go live in the filth of Gaza. I want him gone. I, I would love to see when these people are blocking the entrances to buildings, you know, 1960s style police coming in with truncheons, beating them. Love to see it.

[Nico Perino]

But you know what?

[Jeffrey Rubin]

But, but you know what? I'm not willing to give up what it is to be America for that. I'm allowed to have those emotions. I have those emotions. But then what kicks in is I'm a goddamn American. And if the first thing you ought to think is when you want to, if you start feeling that way, you better check yourself, take a look at the first Amendment and say, what am I willing to surrender to get rid of these people that I dislike? And you know, when people are saying, well, he's an alien, he doesn't have these rights, first of all, he does. But if he doesn't, well, why don't we experiment with an amendment that, you know is not so damn important, like, let's go stick some troops to go live with green card holders and see how the third Amendment holds up. Because, you know, if we're just going to put a, you know, put a couple of sergeants on your couch for a few days and we'll see if they have Third Amendment rights. They have First Amendment rights, right? I mean, we, we can't do unlawful search and seizure on people. We don't deprive them of counsel, we don't deprive them of due process. Everybody gets due process. Everybody gets Freedom of speech here, everyone, no matter how gross you are, NAMBLA gets to have freedom of speech here. So why shouldn't this jerk off?

[Nico Perino]

And by the way, Mark, there is, you know, some, some things out there saying that he, you know, shared Sabbath dinners with, with Jewish people. He was participating in Passover Seder. He was not accused of any other crimes. That's why I want to be careful to be xenophobic here. I think that the one of the first clients I had back in 2005 was a Palestinian not recognized by the US government as that recognized as being stateless. I mean he did have Jordanian citizenship, but was here had violated a technical part of his visa and they did the same thing, locked him up, looked to remove him and essentially all he had was an asylum claim. He wasn't a lawful permanent resident. So it was actually somewhat understandable. But the guy ended up being a researcher for rheumatology for kids at Children's Hospital and had published articles and yeah, the immigration judge, when the Homeland Security prosecutor came right out and I tried to point these things out that he, this is who he is and there was an objection made because we just want to, you know, blanket have opinions about people based on their religion or what part of the world they're from said is this the type of person we really want to deport? And you know, there are many, many people from Syria and Middle east that extremely important members of our society, citizens, doctors, researchers. But all that being said, what does it take to get deported? I guess that's all it takes is to show up at a school and say, you know what? I don't like the fact that so many people are dying in a war that the US is involved with. And since I don't agree with what the current president has to say about, you know, certainly we all want Jewish people respected and we want to celebrate Judaism. I am Jewish. I went to a forum party on this past Friday night. You know, we don't want Jewish people harassed. We don't want, you know, Jewish people to feel uncomfortable. I don't want antisemitism to proliferate. But sometimes I think that maybe this is the flip side of all of this. If you're going to be this heavy handed with somebody just voicing an opinion, is this going to exacerbate anti Semitism and is it going to in the future?

[Jeffrey Rubin]

Good point.

[Nico Perino]

Make it easier to deport people who just simply disagree with.

[Jeffrey Rubin]

That's a great point. You know, because, you know, when, when you got a, you know, I Argue this with. About hate speech issues with, with my European friends. I teach a freedom of expression course in Italy every year and I cannot drill it through the heads of people there, no matter how hard I try. That at some point, you know, you have to. Trying to ban some kind of speech ennobles it, you know, I mean, Hitler was not allowed to speak in Weimar Germany. Goebbels used that as a justification. It almost romanticized Hitler's speeches. He put out a poster that said, 2 billion people, which was the population of the planet at the time, can speak in Germany, but not this man. Why do you think that is? And when we actually take something that, you know, take. Take a point of view that really, I'd rather see us make fun of it than ban it, you know, you ennoble it. Where is there more anti Semitism? Europe or here? Because it's banned in Europe, it's illegal in Europe, but I'd say, you know, I'd way rather, rather walk down the street in the United States with a name like Ruben than down the streets of Malmo or down the streets of Paris or even, you know, much to my chagrin, I don't, you know, I'm also an Italian citizen. I don't think we're doing a very good job of policing anti Semitism in Italy, despite the fact that, you know, you got carabinieri surrounding every synagogue to try to protect them. You know, we are not, we are doing a much better job in the United States of policing hate speech than they are in places where they actually police hate speech.

[Mark Randazza]

Well, you, you mentioned that it's very hard for you to get it through Italian's head, the, the harms in policing hate speech and how it has this boomerang effect. It backfires. Creates a Streisand effect. Yeah, it becomes a point, you know, that poison fruit, so to speak, becomes.

[Jeffrey Rubin]

Punk rock kinda, you know.

[Mark Randazza]

Yeah, yeah, I guess. But here in the United States, just watching the conversation surrounding the Khalil affair unfold, it seems like what Americans just, I don't understand is why someone who's not a citizen of this country would be bestowed with constitutional rights. I happen to think that the Declaration of Independence was correct, that we were endowed by our creator with certain inalienable rights, among them life, liberty and the pursuit of happiness. And core to liberty is freedom of speech. And if God, I love that. If you view freedom of speech as a fundamental human right, you cannot deny it to someone, regardless of their citizenship status, to the extent you are subject to the, the jurisdiction of the country, which is.

[Jeffrey Rubin]

And so preach, brother.

[Mark Randazza]

But then I just have this, I, I, this whole body of immigration law that I'm looking, I'm watching the conversation unfold around. You have different requirements for, for applicants, and then once you're here, maybe there's like, different requirements for visa holders and green card holders.

[Nico Perino]

That is a great point. And it highlights that there is a lot of illogical, nonsensical, contradictory immigration laws. They write statutes, they write regulations. They don't agree with each other. They propose a statute like this to simply let the Secretary of State determine what makes it seriously adverse at foreign policy. So that is why I've had some fun for the past 27 years. Years. And why it's so easy sometimes to litigate in the federal court. And we even had a case go all the way to the US Supreme Court 2018, which turned immigration law on its head for a while. It, you know, it was basically statutory. They were supposed to put some information on the piece of paper to start the deportation process, the time and date of the first court hearing. And, you know, immigration officials act unreasonably and illogically all the time. That results in these draconian consequences, like people getting deported. Not putting the date and time on a piece of paper to start the deportation process. Well, they'd mail you the date and time years later when the people had moved or couldn't find it, and then they say, well, you're deported and we're just going to grab you and toss you out of the country. So this, to me, just seems more proof that they don't want immigration laws necessarily to be taken seriously. To your point, Nick, when you step over the border from Mexico with just whatever you have on your back, you're supposed to be accorded the protections of the Constitution. I think it was John Ashcroft who said back in the mid-2000s that they should not have constitutional protections. And that was a decision that he made simply as the attorney general at the time. These unilateral decisions that are made all the time by attorney generals, and, and that was actually structural.

[Jeffrey Rubin]

And let's change the Constitution, you know. Yeah, I mean, if you want me to support an amendment that says, you know, if you, if you've come across the border illegally, you don't get, you don't get constitutional protections, I'll vote for it. But until we change it, it's got to be more than just words on paper. The Soviet Constitution protected freedom of speech and freedom of conscience better than the United States Constitution did. If you just looked at the words. But in practice, it didn't work that way. And Scalia used. Scalia taught my con law class one day and gave a beautiful lecture on that that I'll never reproduce. But he talked about how it's got to be more than just words on paper. So they have due process, they have free speech rates. This is something that happens the moment you set foot on American soil. And that's the great thing about it. We can look at people like Hamas and say, no, the way that you run your place sucks. The way that we run our country. This is the superiority of our system that we can tolerate dissent. That would get you thrown off a roof in Gaza or get you thrown in jail in, in Korea or in North Korea, hell, even in South Korea might get you thrown in jail. So this is, this is the majesty of it. This is why I choose to protect this constitution and not my other constitution, which happens to be the Italian constitution. You know, let somebody else do that job, Jeff.

[Nico Perino]

Yeah, well, when you start pushing students, when you start, you know, harassing students, you know, you know that now you're committing crimes, right? So how about charge them, as you alluded to before with a crime, first be convicted of that crime, and then, you know, have him removed for that. But when you start getting into this just broad approach of, well, we're now the thought police, we're now the, you know, we're going to say, you can't even speak out about something that the US Disagrees with. It does. It's chilling. And it's meant to chill. You know, the Muslim travel ban was meant to chill. This is meant to chill. And that is, you know, the problem with this administration is that there's a chill being placed on the First Amendment. And it seems to me that the First Amendment is only for certain people and not for everybody. And that is not the value our country was founded upon.

[Mark Randazza]

So, Jeff, am I right then, to kind of close out here that when you're taking immigration clients and they're. They get one of these notices to appear and they're going to be deported, that they're charged with a crime? Typically?

[Nico Perino]

Yes, absolutely. Or what you alluded to earlier, there may have been a misrepresentation on that green card application. There may be something that they found out that made them ineligible, but that.

[Mark Randazza]

Would be on the notice to appear, Right?

[Jeffrey Rubin]

Yeah, Jeff, that's how. I'm curious.

[Nico Perino]

They can amend it, but it's got to be there.

[Jeffrey Rubin]

Can he. Can they go back and say, now I'm not saying there's any evidence of this, but when this guy came into the country, if he was lying on his application, can you then revoke his status because of that?

[Nico Perino]

If it was set aside, the First Amendment issue, willful and material, he intended to do it, and it actually mattered. It couldn't just be something that they pick out of the sky, but it actually mattered to eligibility, then. Sure.

[Jeffrey Rubin]

Right. Okay.

[Nico Perino]

On that notice.

[Jeffrey Rubin]

So, yeah, look, when it comes to immigration stuff, this is the guy I call because he's the only immigration lawyer I know that's done a Supreme Court case on immigration law. Forgotten more about it than I'll ever know. But so what you're. What I'm learning from you today is there's two things. There's. One, if. If you're gonna let him in there, is that. That shell. And we could go back and retroactively say you lied, but it's got to be a material lie, and he had to have known it at the time. So for all we knew, he came into the United States full of stars and stripes and, you know, an eagle screams and then landed here and all of a sudden fell in with a bad crowd and started thinking otherwise.

[Nico Perino]

Yeah. Or October 7th happened. It was a horrible, horrible, miserable day for Jews and for Israel, of course. And then. And then the Israeli government reacted. And then, you know, he takes issue with whether. Whether, you know, the Israeli military should be going into schools or hospitals if they're being used as human shields. And, you know, but here's the thing. But then the other people for. For just simply staging a protest. And even if we disagree, the other.

[Jeffrey Rubin]

But, Jeff, the other. The other wing of this is we can throw you out now, set aside. I may jump in as a First Amendment lawyer and say we shouldn't be able to, but we can throw you out if you do something that. I think you said serious adverse foreign policy consequences.

[Nico Perino]

Right.

[Jeffrey Rubin]

So, you know, but every word there has to be doing work. I mean, it's serious adverse foreign policy consequences.

[Nico Perino]

This seems to be extremely broad. And what happens to overly broad statutes? Are they enforced?

[Jeffrey Rubin]

Hey, well, it all depends on the politics of the federal judge and the politics of the other party nowadays.

[Nico Perino]

So. I'm sorry, so this is. This is. This kid's not. This guy. I don't know how old. I guess he's in his 20s. But, you know, he. I don't. I don't see how this passes the. The muster. I don't see how this. This example is what. And I don't understand why the government would want to use this as the example to meet this, this very obscure statute. Well, I think it's a much higher burden.

[Mark Randazza]

I think when they arrested him, they thought he was just on a student visa. Then they arrived at his door and he says, I'm a green card holder. And I guess he got his green card according to the notice to appear in November of 2024. So. So fairly recent, but you would, you would imagine. Okay, so you get your student visa before you arrive at Columbia. He graduates from Columbia in December of 2024. So he's, he's had the student visa for a while, presumably before October 7th. October 7th happens in 2020.

[Nico Perino]

Green card. That fast, Right, Right.

[Mark Randazza]

Yeah. But then, so like, presumably before they give him the green card, they're looking into him, right? Like if there's. Or is it just on the application.

[Jeffrey Rubin]

In the prior administration? Probably not. They probably were like, this is great, we want more of these kinds of douchebags. But, but the thing is, you know, having let him in, we gotta, we gotta treat him with constitutional respect.

[Mark Randazza]

Well, we'll let Jeff get in here. Like on that process.

[Nico Perino]

Yeah, no, the process takes typically years. I mean, if you look at the processing time for 45, which is the form you use to get a green card, then that is taken at least a year and a half. They take fingerprints. Often there's an interview and at the interview there's many questions asked on that form. And he was fully vetted. There was absolutely nothing that they had on him before they gave him a green card or certainly they would have stopped to deny him green card. I see people denied green cards all the time for the most minimal of behavior. Shoplifting a five dollar sticker, pack of gum. You know, this, this was a long process. You know it. But more than that, it does just chill me as a immigration attorney. Just when I thought I'd seen it all, you know, here comes this. And so how do you, what do you.

[Jeffrey Rubin]

That's. I was just going to ask you that, you know, without revealing any particular attorney client advice, are you finding yourself advising your clients that maybe they got to be more careful about what they say? Or did you advise them about that before?

[Nico Perino]

There's been all sorts of nonsensical approaches since Trump took office. People traveling with green cards are supposed to be let back in. And now getting detained for hyper technical. What they view, you know, it's not even a violation. They're just making a stretch to say there's been violations because maybe your Green card is under review at the immigration court. Like you said, due process. But ignoring due process, saying, hey, the fact that it's even under review, we're going to take you into custody and not let you into the country. But here much different. I can't find myself with any logic to advise anybody of anything. The other alarming aspect is they took him into custody and moved him down, as you said, to Louisiana to a remote place. Something that I usually see reserved for people who have been convicted of selling large amounts of fentanyl, of committing acts of violence, you know, like attempted murder or, you know, gun violations that, you know, would have been considered serious by.

[Jeffrey Rubin]

The government to move him to Louisiana or to move him at all, just.

[Nico Perino]

To even arrest him. I mean, really, okay, like what is the ground for like, so to be arrested they have to show that he's a flight risk or danger to the community. So again, okay, we're getting into this danger to the community because he's speaking.

[Jeffrey Rubin]

So I got a problem with that too. Okay, so again, this is where I'm ignorant, why you're here now.

[Nico Perino]

Where's the flight risk? He's married to a US citizen, he's eight months pregnant. And again, I don't know him. I don't know what more the government is going to allege. Certainly we don't want to promote anti Semitism in this country. You know, I grew up supporting Israel and all of Judaism. That being said, I have many friends who are not Jewish, maybe Christian, Muslim, what have you. We know that there's a lot of different sides to this, this situation in the Middle east that's going on for thousands of years. It really is just, it feels just contrary to everything I've seen as an immigration attorney in 27 years. And like when it just be higher.

[Mark Randazza]

The jurisdiction question is interesting. So he is arrested and apparently he's brought to New. He first he's brought to the Federal Center, I guess in Manhattan, but then transported over to New Jersey and then transported to Louisiana. So habeas corpus petition was filed in the 2nd Circuit because that's where he was living and that's where the notice to appear comes from, 26 Federal Plaza, New York, New York. But at the time the habeas petition was filed, which I think was like 4:40am on March 9, he was arrested. At 8:30pm on March 8, he was actually in New Jersey, which is outside the second Circuit. And so now there's this jurisdictional question. And then he was transferred to Louisiana and there's Speculation. He was transferred to Louisiana for Louisiana for one and or two reasons. One being that's the last place you go before you get deported. Or two and. Or two, which is. It's in the fifth Circuit and they'd get better court precedent in the fifth Circuit.

[Nico Perino]

We'll have to save this for another podcast. But, you know, this is. When I first started practicing back in 1998, there was one, one detention center up in New Hampshire which had a very small amount of people. And of course, detention tactics have been. Have exploded. And these are administrative laws. This is an administrative body of law, the immigration law. I don't think it was intended to be used in such a criminal way. And this is the mojo sometimes of immigration officials to move them around from state to state to avoid the jurisdictional application of federal law in that particular state. So, you know, this is exactly intentional. And we've seen it over and over. We've had to fight many jurisdictional issues to. During COVID for example, there was immigration court hearings from Virginia by video, and they tried to apply that law to all the people that are up here in Boston, and we had to fight for that. And this has been going on for many years. But, yeah, I think that the immigration laws maybe need to be rewritten more consistent with a criminal code in mind. My prediction is that he's not deported. But what do you think, Mark?

[Jeffrey Rubin]

I mean, I play one position, you know, and it's the First Amendment guy. And I want to at least see everybody who gets deported to have done something to warrant it. You know, that's. I mean, it's not just First Amendment due process.

[Nico Perino]

Do we have anything.

[Jeffrey Rubin]

I'll take. I'll take anything that you say fits the standard. So.

[Nico Perino]

Right. That's why we have. We're a country of laws, right? So the rule of law, right?

[Jeffrey Rubin]

So when somebody comes. If somebody comes to me, if. And they say, hey, we're going to put you in charge of whether we deport somebody or not. My first question is going to be, Jeff, does it meet the standard? And if you say, yes, it meets the standard. Historically, this has happened. You know, we've thrown people out for this in the past. This isn't new.

[Nico Perino]

Right.

[Jeffrey Rubin]

Then I'm going to. Then I'm going to say, okay, but does it comport with the First Amendment? And in this situation, I see us having, you know, this seems to fail the logic gate at two junctures. Juncture, one you can't come up with in 27 years of practice. And then I presume practicing for 27 years. You have a wealth of knowledge going back at least 75 years of how these laws have been been applied and you can't come up with a single example of this happening before.

[Nico Perino]

Right?

[Mark Randazza]

Well, I think more is going to come out about this case. It's going through the courts. I was listening to something on the radio from another immigration attorney talking to Bloomberg saying there's like 12 different constitutional issues at play, perhaps in this one case. But in the meantime, Mark and Jeff, I appreciate you both taking the time to speak with us today.

[Jeffrey Rubin]

Appreciate you and appreciate all, all that FIRE does. You know, you guys are simultaneously, you know, right wing slaves and left wing slaves by everybody, which means you're right in the right spot and doing everything right. So it's a, it's anything I can ever do for fire you, you got it.

[Mark Randazza]

I appreciate it.

[Nico Perino]

Mark and Jeff, thank you for having me. Thank you for having me.

[Mark Randazza]

That's Mark Randazza, who is a First Amendment attorney with Randazza Legal Group, and Jeffrey Rubin, who is an immigration attorney with Rubin Pomerleau in Boston. I am Nico Perino and this podcast is recorded and edited by a rotating roster of my FIRE colleagues including Sam Lee, Aaron Reese and Chris Maltby. It is co produced by Sam Lee. To learn more about so to Speak, you can subscribe to our YouTube channel or substack page, both of which feature video versions of this conversation. You can follow us on X by searching for the handle Free Speech Talk and you can send feedback if you have it to sotospeakire.org Again, that is so to speak at the fire.org if you enjoyed this episode, please leave us a review wherever you get your podcasts, Apple Podcasts or Spotify Work Review help us reviews help us attract new listeners to the show. And until next time, I thank you all again for listening.