Introduction

A U.S. green card (permanent residency) grants a foreign national important status that allows them to legally live and work in the United States. Many people believe that once they obtain a green card, they can live in the United States permanently and enjoy rights similar to those of U.S. citizens. Under existing immigration law, criminal offenses such as aggravated felonies, crimes of moral turpitude, and drug or sex offenses have been the typical grounds for deporting a permanent resident, and participating in or supporting terrorist activity has also been applied as a ground for deportation.

Recently, however, the Trump administration has been actively invoking INA § 237(a)(4)(C) of the Immigration and Nationality Act (INA), enacted in 1952, in an attempt to expand the grounds for deporting permanent residents. In particular, the administration has declared its intent to push forward with deportation whenever it determines that a particular protest or statement poses a threat to U.S. foreign policy or national security.

The recent arrest of Mahmoud Khalil, a Palestinian activist and permanent resident, raises important legal questions about the possibility of deporting a green card holder. This case has become a source of controversy over the interpretation and application of the Immigration and Nationality Act of 1952 (hereinafter, the "INA"), which forms the foundation of U.S. immigration law. This column will explain the legal grounds and key issues surrounding the possibility of deporting a permanent resident.

The Meaning and Application of the Immigration and Nationality Act (INA) of 1952

The Immigration and Nationality Act of 1952 (hereinafter, "INA") is an important law that forms the foundation of modern U.S. immigration law. Although it has been amended hundreds of times since its enactment, its basic structure and principles still originate from the 1952 INA.

The main content of the 1952 INA can be summarized in a few points. First, it clearly established a national-origin immigration quota system and repealed some of the discriminatory provisions against immigrants of Asian origin. It also set priorities for family-sponsored and skills-based immigration, and restricted the issuance of visas or green cards to individuals involved in communist or anti-American activities.

One of the most controversial provisions of this law in particular is INA § 237(a)(4)(C). This provision allows the government to revoke a permanent resident's visa or green card and deport them if they have engaged in conduct that is adverse to U.S. foreign policy or national security. In addition, INA § 212(f) grants the President of the United States the authority to bar the entry of individuals or groups from a particular country.

At the time of its enactment, the 1952 INA was a law created to stop the spread of communism during the Cold War era. In particular, it included provisions that allowed for visa cancellation or deportation on ideological grounds. The Trump administration is now attempting to push forward with deportation measures against permanent residents based on this law's provisions relating to national security and foreign policy. This is an example that shows how national security and foreign policy considerations are having a major impact on immigration policy.

Overview of the Mahmoud Khalil Case

The recent case of Mahmoud Khalil is an example that illustrates the legal issue of whether a permanent resident can be deported because of particular conduct. Mr. Khalil is of Palestinian descent, was born in Syria, and recently obtained his green card lawfully after marrying a U.S. citizen. He is known to have been a lead organizer of the anti-Israel protests that took place at Columbia University last year. The U.S. Department of Homeland Security (DHS), invoking an executive order issued by President Trump, arrested Mr. Khalil on the claim that he "could pose a serious threat to U.S. foreign policy and national security," revoked his green card, and initiated deportation proceedings against him. In carrying out these deportation proceedings, DHS is citing INA § 237(a)(4)(C) of the Immigration and Nationality Act of 1952 as its ground. Subparagraph (C) is the foreign-policy ground: it allows the deportation of a permanent resident when the Secretary of State has reasonable ground to believe that the person's presence or activities would have potentially serious adverse foreign policy consequences for the United States. National-security and terrorism-related grounds are set out separately in subparagraphs (A) and (B) of the same section 237(a)(4).

The issue is the dispute over whether Mr. Khalil's statements or conduct at the protests actually amount to conduct that threatens national security, or whether they fall within the freedom of speech guaranteed by the Constitution (the First Amendment). Mr. Khalil's attorneys argue that his conduct falls within the freedom of speech guaranteed by the Constitution. This case is likely to become an important legal precedent going forward on the boundary between a permanent resident's legal status and freedom of speech.

The Legal Grounds for Deporting a Permanent Resident

A permanent resident has the right to reside lawfully in the United States, but in certain circumstances, they can be deported. First, criminal conduct is a typical ground for deportation. Criminal offenses such as an aggravated felony, a crime of moral turpitude, and drug or sex offenses all serve as grounds for deportation. A person can also be deported for involvement in terrorist activity. Next, a person can also be deported on grounds related to national security and foreign policy. This includes participating in or supporting terrorist activity, engaging in activity that is adverse to U.S. foreign policy, and engaging in political or social activity that could pose a threat to the U.S. government. Recently, citing INA § 237(a)(4)(C), the Trump administration has been revoking Mahmoud Khalil's green card and proceeding with deportation on the claim that he "is posing a serious threat to U.S. foreign policy." However, in order for this provision to apply, the U.S. government must present specific evidence that Mr. Khalil has posed a serious threat to U.S. foreign policy or national security, and the final determination on this will be made by the courts. Mr. Khalil's case is raising an important legal debate over where the boundary lies between a permanent resident's legal status and freedom of speech.

Legal Issues and Concerns

The most important issue in Mr. Khalil's case is whether his protest activity falls within the freedom of speech guaranteed by the U.S. Constitution. Freedom of speech is a fundamental right guaranteed by the First Amendment to the U.S. Constitution, but the Trump administration argues that Mr. Khalil's statements at the protests amounted to advocacy for Hamas and Hezbollah, which it claims constitutes indirect support for terrorist activity. Legal experts and human rights organizations, however, take a different view from the Trump administration, arguing that Mr. Khalil's protest activity and statements are far removed from direct incitement to violence or specific support for terrorism, and amount to nothing more than the expression of a political opinion. These competing arguments create a clash between freedom of speech and national security, and it is likely that this will ultimately be resolved by a judicial determination. Furthermore, because INA § 237(a)(4)(C), the provision the Trump administration is relying on as the ground for Mr. Khalil's deportation proceedings, is based on national security and foreign policy, there is a risk that applying this provision too broadly — interpreting a particular political opinion or expression as a threat to national security — could lead to an abuse of legal authority by making it possible to deport permanent residents or foreign nationals on that basis. This case has also generated a significant reaction in the international community. Human rights organizations and legal experts are concerned that this case could lead to broad deportation measures against permanent residents and foreign nationals. In particular, if the government designates particular political activity or expression as a threat to national security and strengthens deportation proceedings on that basis, anxiety within the permanent resident and immigrant communities is bound to grow.

Conclusion

A permanent resident is guaranteed the right to reside lawfully in the United States, but in certain circumstances, they can face the risk of deportation. In particular, because the U.S. government is strengthening its authority to revoke green cards and carry out deportations in connection with national security and foreign policy, permanent residents should carefully consider the possibility that their conduct could lead to legal problems. If this uncertainty feels like a burden and you already meet the eligibility requirements to apply for citizenship, considering a citizenship application now could be a decision well suited to the current climate. The Mahmoud Khalil case is raising an important legal debate over where the boundary lies between a permanent resident's legal status and freedom of speech, and the outcome of this debate — which is likely to be decided by the courts — is expected to have a significant impact on the direction of U.S. immigration law going forward.

Disclaimer: This column is provided for general informational purposes only and does not constitute legal advice for any specific case. For matters concerning your individual immigration situation, please consult an immigration attorney.

Law Office of Jin D. Cho, P.C.

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