Trial Over Trump Targeting Pro-Palestinian Student Activists

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1:43This is Bloomberg Law with June Grosso from Bloomberg Radio. Colombia graduate student and pro-Palestinian activist Mahmoud Khalil has become a symbol of the Trump administration's crackdown on international students at several American universities. Khalil was the first target of Trump's effort to deport non-citizen students with pro-Palestinian or anti-Israeli views. He spent 104 days in federal immigration detention before being released last month. They tried to portray me as a violent person. They tried to portray me as a terrorist, as some lunatic, but not presenting any evidence, not presenting any shred of credibility to their claims.

2:37Until this week, legal proceedings have focused on the detentions of individual students. But now a federal judge in Boston is holding the first trial challenging the Trump administration's policy of revoking visas, arresting, detaining and deporting non-citizen students and faculty who engage in pro-Palestinian advocacy. Groups representing university professors say the policy is chilling free speech on campuses in violation of the First Amendment. But lawyers for the government argue that no such policy exists. My guest is immigration law expert Leon Fresco, a partner at Holland & Knight. Leon, there have been lots of orders by judges over these arrests of non-citizen students, but this is the first trial.

3:25Explain how we got to this point. The Trump administration has been trying to crack down on what it believes is excessive protests on university campuses by foreign students, and it thinks that there are some number of students that are coming to the United States that are not coming for legitimate academic reasons, but are instead coming to rabble rouse or cause trouble or otherwise create anti-Semitic activities in schools. And so what it's been doing is it's been revoking visas and it's been revoking them in a number of matters. It's been actually either just saying to students they can't re-enter if they leave.

4:03Sometimes it's been actually terminating them from the student visa database. And in other times, for people who are actually lawful permanent residents, it's actually revoked their lawful permanent residence status. And all under a provision in the Immigration Code, which says that the Secretary of State can revoke either lawful permanent residency or a student visa, either one, any immigration status that's not citizenship. the Secretary of State can revoke that status if the Secretary of State believes that doing so is necessary because the foreign national is acting contrary to the interests of the foreign policy of the United States.

4:43And so in other cases involving specific individuals like Mahmoud Khalil or other individuals, the judges have just taken these claims at face value and said, okay, I'm going to rule on the legality of the question of whether what Secretary Rubio is doing violates the First Amendment or not. and that statute is unconstitutional either on its face or in the way it's being applied such that these foreign students are not being allowed to express themselves under the First Amendment. But in this case, this particular judge who's known for basically not taking any claims at face value has decided that he would actually bring this to a trial.

5:24So what's the main issue in the trial? So what he's having a trial on is whether the Secretary of State, Marco Rubio, is actually revoking these visas in good faith because he's concerned about the foreign policy of the United States, or whether it's being done as a pretext to violate the First Amendment rights of these foreign national students. Now, the problem is there are a lot of precursor issues in this case, like whether this judge even has jurisdiction to be doing any of this, whether this should be done in a removal process, whether this statute doesn't even permit any judicial review of any kind.

6:01And so the judge is sort of skipping all of those steps and is saying, yes, I have jurisdiction. I can review all of this. And it's just basically trying to get to the end of the book first and say, I'm going to actually just get to the merits of this. What is the administration doing? Is it illegal? And then leading to the courts all of these questions later, the threshold questions about whether he even had jurisdiction to do any of this in the first place, where these cases are supposed to be brought, et cetera. So, Leon, the judge said that the trial is likely to center on the question of whether non-citizens lawfully present in the country have the same free speech rights as citizens.

6:42Is there case law on that? Well, there actually is case law on that, and that case law is pretty bad. There's a case called Harris-Yadis v. Shaughnessy from the 1950s, and it dealt with actual lawful permanent residents of the United States, so not non-immigrant visa holders like student visa or visitor visa holders. These were actual lawful permanent residents, and many of them in that case had U.S. citizen spouses and U.S. citizen children. Some had U.S. citizen grandchildren. And the issue was there was a statute that said not just current communists, but even former members of the Communist Party could be deported.

7:22They were just identified for deportation. And this was in the height of the Cold War. And these folks argued, wait a second, I'm not even in the Communist Party anymore. I've renounced my affiliation with the Communist Party, and they said the courts shouldn't be able to deport me because even if I was a communist, what difference would it make if I wasn't actually violently seeking to overthrow the government? If I was just some sort of communist who just was an economic person, not trying to overthrow the government, why would I be deported for my First Amendment values? And that court in 1952 said, no, in these statutes involving non-citizens, the First Amendment does not overcome the security concerns and the legitimate security concerns of the government, even if the person is a lawful permanent resident.

8:12So if the Supreme Court actually upholds that doctrine here again in 2025 or 2026, whenever it gets this case, then it will remain the same, which is that when you're not a citizen of the United States, your First Amendment rights are not superior to the rights of the government to be able to deport you for conduct that they feel is deportable conduct. We shall see. And the judge is also going to consider whether the Secretary of State is revoking these visas in good faith. The other issue that they're trying to get at in this trial is, yes, first, what First Amendment rights do the non-citizens have?

8:52But then number two, the judge may say, well, fine, that's all fine and dandy, but if the adjudications here are pretextual, and I can find that they're completely pretextual, meaning there actually is no threat to foreign policy of any kind, I can still halt these deportations. deportations, because fine, maybe the statute does allow a deportation when there's conduct that's a threat to the U.S. foreign policy. So for instance, the number one version of this would be that some dictator gets a visitor visa and comes to the United States, and nobody likes that this dictator is being given safe haven to visit the United States.

9:29So that would be the number one version of this. But at the end of the day, that might also be something that's not subject to judicial review. And that's what the Court of Appeals, the District Court, and the Supreme Court are going to need to decide, is this issue about whether the Secretary of State is actually acting in good faith in a particular case, something that a judge actually can review in the first place. And none of this is settled law. None of this is established. All of this is being made up at the beginning now as issues of first impression. I think this judge is going to say he has jurisdiction, which is why he's going through a trial.

10:05But we're going to have to see where the First Circuit ultimately goes down on this and also where the Supreme Court actually says at the end of the day, what actually happens? What is the procedure that needs to be followed when the Secretary of State decides that someone is acting contrary to the foreign policy interests of the United States? Can it be challenged in the district court? Does it have to be challenged in the administrative removal proceeding? And then depending on which court, what is the nature of the challenge. Can you actually prove this is pretextual or does the administration get enough deference that you really can't even challenge it at all?

10:40And so those are going to be the questions we're going to be deciding in the next year or so. Let's move from the First Circuit to the Fifth Circuit, the most conservative circuit in the country. And it upheld an injunction that stops a Texas anti-immigration law from being enforced in a victory for immigrants' rights. Is that a surprise coming from the Fifth Circuit? Well, it is a surprise in the sense it was a two-to-one decision with one of the Republican judges taking the side that the statute from Texas was unconstitutional. If you recall what happened in this, this was during the Biden administration when the state of Texas was saying that there was an inundation of people coming into the United States.

11:23The Biden administration didn't want to do anything about it, so it needed to act. and the state of Texas passed a law basically saying we can do three things that have never been done before. Number one, we can actually deport people ourselves to the border of Texas and Mexico. Maybe we can't bring them into Mexico, but what we can do is take them to the U.S. side of the actual physical border. And what we can say to them is if you try to come back into the interior, if you don't actually then take the next step yourself and go into Mexico, then we're going to prosecute you for a crime. And if we do it a second time, it'll be an even worse crime.

12:03And so from that perspective, the question was, does that violate federal law? There was a district court injunction that said that, yes, this violates federal law under the Arizona versus United States case that came during the Obama administration. In 2012, that was the Arizona law where Arizona said, we're going to basically take matters into our own hands and enforce immigration law and ask people for their papers. And if they're not here legally, we will arrest them and prosecute them for misdemeanor. That was ruled to be unconstitutional. So this is further than that. and in a 2-1 decision, the Court of Appeals upheld in a permanent way the stay that it had issued that had prevented this Texas statute from going into effect in the first place.

12:50Now, what's interesting about this is the factual backdrop, and we're going to be talking about factual backdrops a lot today, but the factual backdrop of this case is completely different now than it was back when the Biden administration was in office and there were these concerns about the amount of people streaming in to the state of Texas. Now, pretty much everyone would admit, I would think, that there aren't anybody streaming into the state of Texas anymore, that this traffic has stopped in its entirety. And so the question is, what is this emergency that Texas is claiming is necessary now in order to have a law like this?

13:27And I think that's going to be its biggest problem if it tries to move forward to the Supreme Court. Coming up next, a judge blocks the administration from denying all asylum claims at the southern border. You're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work, I'm Carol Masser. Social media posts on sleep outnumber those on exercise by 3 to 1 and those on diet by 5 to 1, according to consumer researcher Ryla Global Consulting. And so it may come as no surprise that there are seemingly no limits to what we will do to get a good night's sleep.

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16:34A D.C. federal judge has barred the Trump administration from expelling asylum seekers, saying President Trump overstepped his legal and constitutional authority. Judge Randolph Moss said portions of Trump's January 20th executive order violate the Immigration and Nationality Act and the U.S. Constitution's separation of powers. The U.S. Constitution can't be read to grant the president or his delegues authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted. I've been talking to immigration attorney Leon Fresco of Holland and Knight. Has the Trump administration been denying asylum claims?

17:19Correct. What has happened since the Trump administration has taken power in January of 2025 is they tightened a regulation that was already being challenged through the Biden administration. What the Biden administration was saying was you can't come across the border illegally and ask for asylum. You have to make an appointment using the CBT1 app and go to a port of entry and ask for asylum at the port of entry. But if you try to go in between the ports of entry, you are not going to be allowed asylum. You're going to be pushed back into Mexico because you're going to be banned. So that was a provision that the Biden administration has.

17:59When Trump comes into power, he then says, not only will you be pushed back, not only will there be this ban, but there's not going to be a legal way to come into the port of entry. We're closing the CBP1 app. We're closing the parole programs that allow you to apply to come in legally. And so there's no way in, period. There's no asylum. There's no requesting it at the ports of entry. There's no requesting parole. Nothing. There's no way to ask for refugee status if you're just basically trying to arrive to the United States to ask for refugee status, a.k.a. asylum. There's no way to do that.

18:33And so when that happens, there literally is a provision in the law that you can challenge that in the district court for the District of Columbia. And that's what people did. They first challenged the Biden administration. That case never got to a decision. So it got converted into a challenge to the Trump administration's policies. And now, after a lot of excessive briefing back and forth, because the Supreme Court had issued doctrines earlier in the Biden administration saying you can't get preliminary injunctive relief like this, you can only basically get summary judgment, and then that has to go all the way up to the Supreme Court before something like this can be stopped.

19:14So they were saying that district courts and circuit courts under various statutory regimes don't have the jurisdiction to enjoin these kinds of asylum programs. They can only enter a final judgment saying that they think it's illegal, and then that has to work its way up to the Supreme Court, who then has to decide whether it's illegal or not. And so that's what's happened here. A district judge from the District of Columbia has said, this is illegal. You have to provide some way for people who are outside of the United States who, when they arrive at the United States, are able to apply for asylum.

19:50You can't just have a wholesale ban on people applying for asylum, and that that's what basically happened here. And so that the executive orders and regulations that have been issued by the Trump administration banning asylum are declared illegal. Now, that declaration won't go into effect again unless and until the Supreme Court allows it to go into effect. But nevertheless, if the Supreme Court agrees that there has to be some way for people to apply for asylum, then the numbers will eventually change from the zero numbers that we have now. I mean, they may not change immediately because there will be this game of sort of, you know, touching the stove and seeing what happens when you touch the stove, etc.

20:33But once people touch the stove enough to see that, no, the government does indeed have to let them in and let them apply for asylum, then you will see people doing this again. I mean, asylum is a pretty basic concept in this country through our history. What do you think the Supreme Court will do? Well, it's difficult because if you're actually going to look at this, and I always try to use the either AI judge or the robot judge, the judge that has no political sentiment of any kind. It's hard to read the statutory framework, which says that regardless of how you entered the United States, if you're in the territory of the United States, you're permitted to apply for asylum, which is what the statute literally says, and then say, well, there's no way to apply for the asylum.

21:20Because what's happening is the administration is using a second statute which says that they can pick places or reasons, discretionary reasons, why people cannot get asylum. So, for instance, let's say there's some new AI crime that nobody thought of when they read the statute. They can say anybody who's committed this AI crime can't get asylum. Okay, fine. Nobody thought of that when there was a statute. Fair enough. But people did think of the fact that if you came illegally, you could apply for asylum because that's literally what it says in the statute. So can that be a reason? Is that really a permissible reason that you can use your discretion for to not allow people to get asylum?

22:04because that's literally one that's covered in the statute. It's not like AI where it would be a brand new thing nobody thought about, which was the whole point of Congress giving this authority to add new discretionary reasons why somebody couldn't get asylum. This is one that was already contemplated. So I do think if you have a disinterested, nonpolitical, computerized judge, it would seem to me that that judge would say, yeah, there has to be some way you can apply for asylum if you enter the United States. But we're going to see what the Supreme Court does, because the Supreme Court may just say, I get all that, and that's fine and dandy, but I don't want to return to the state of affairs in the Biden administration, where there were hundreds of thousands of people coming each month across the border.

22:54And so they may just say, too bad. We'll really just have to see where the the Supreme Court will go down. As I sit here now, I cannot make a good faith prediction because of other cases we'll talk about in a second, where I would never have guessed the Supreme Court would have ruled the way it did. And I think the Supreme Court is just tired of interventions that don't allow the Trump administration to enforce immigration laws. And so they may just say, look, if the Congress wants to do something, that's great. But if the Congress isn't going to do anything, we're not going to new cap the president's ability to enforce immigration law.

23:30Yeah, I mean, on the emergency docket, the Supreme Court has basically given Trump everything he asked for regarding immigration, including last Friday, where they said he can deport people to third countries. Correct. So in this case, here's what happened. You had eight individuals from all over the world, the notorious sort of countries we can't deport people to, Cuba, Laos, Cambodia, et cetera. And so what the Trump administration is basically trying to accomplish is it's basically saying, look, I think these countries are acting in a pretextual manner, not allowing us to deport their citizens back to their country.

24:11If we actually make things onerous enough and difficult enough, they'll eventually start taking their people back, whether it's directly or if we deport them to very strange places, then those individuals will starve to death unless those countries accept them back. So they will eventually give them a travel permit to go back to Cambodia or Laos or Cuba or something, because they're not just going to let people starve to death in the middle of some strange country. So it tried to test out this theory in South Sudan. It tried to deport people from Cuba and Laos and Cambodia and other places, eight people to South Sudan.

24:50But in the process of trying to do that, it didn't allow these individuals to raise a claim that they would be subject to torture if they were deported to South Sudan. And so there was a district judge who said, stop that. You can't continue this process. And the problem was by the time that order was entered, the individuals were already in Djibouti. And I think this is another issue of bad facts make bad laws, because now there was eight people in Djibouti where the U.S. basically was stuck. What was it supposed to do with these people? You know, do you do trials for whether they're going to be tortured or not?

25:26Who are these Americans having to take care of these people in Djibouti? You know, they can't go home now. It was a big mess. And so I think the Supreme Court was worried about just this logistical nightmare of having at least a month or two or maybe more of hearings and trials for these eight individuals to make claims about whether they would face torture in South Sudan. And so basically threw its hands up and said, you know what, we're done with this. Allow these people to be sent to South Sudan. But in the meantime, that's created a precedent now where the Trump administration will be able to send anybody to South Sudan or Libya or any other country it wants to.

26:06You won't have an opportunity to be able to raise a claim that you would be tortured in that country. You can only raise a claim that you will be tortured in your country of citizenship, but they'll say, fine, okay, so you'll be tortured in your country of citizenship, whatever that may be, but who cares? We're now going to send you to Libya or South Sudan or some other country. And so I did not expect the Supreme Court to not allow for some due process to be able to make these claims, but that is where we are. And so at the moment, unless the Supreme Court comes back and revisits this later, which, by the way, it has done in other issues.