Deportation Of Aliens

Deportation is a very hot topic these days. For purposes of this post I’ll assume that Trump will win out on the issue of deporting those who are illegally present in the US. A much more important issue is that of deporting Permanent Resident Aliens (PRAs), aka, “Green Card Holders” for exercising their 1st Amendment rights under the Constitution. That is what Trump proposes to do with his Anti-Semitism full court press.

The reason this issue is so important is that the true object of this nationwide Anti-Semitism Inquisition is patently NOT to deport large numbers of people. The impetus for this Inquisition arose and has flourished in the context of criticism of Zionist ideology, which is seen as justifying crimes against humanity: Genocide and Ethnic Cleansing. The true purpose of the Inquisition is to shut people up, to shut down all criticism of a foreign country, Israel, beyond what rabid Zionists are willing to allow. This will be accomplished by making an example of a few as a reminder to all. If a few PRAs are branded as “terrorists” or “supporters of terrorism” and are deported, the others will shut up. Mission accomplished.

But this Inquisition is definitely not confined to aliens in our midst. In the same way, if a few American citizens are branded as “Anti-Semites” and lose their employment and social standing—become outcasts, as it were—the others will, largely, shut their mouths for fear of the consequences. In the jargon of constitutional law, their exercise of their 1st Amendment right to free speech will have been chilled by government action. While Inquisitions of this sort are, arguably, a grand old American tradition (against which the courts have struggled), such witchhunts threaten our basic freedoms as Americans. It’s one thing for Americans to call each other names, it’s quite a different matter for the government to take sides in this way.

While Jewish Americans of the Zionist persuasion are spearheading this Inquisition—supported by some whom I refuse to call “Christians”—there are other Jews who reject the ideology of Zionism. This is also an important matter. In support of their Inquisition, the Zionists have adopted a highly contentious definition of “Anti-Semitism” that conflates opposition to a racist ideology (Zionism) with anti-Semitism. This conflation is rejected by other Jews, especially but not exclusively, the younger generation:

https://nypost.com/2025/03/16/us-news/actress-debra-winger-says-she-has-debt-to-pay-over-jewish-upbringing-while-protesting-mahmoud-khalil-bust/

“… I grew up with and believed [i]n what the state of Israel has done and what they haven’t done and how they’re conflating Judaism with Zionism,” she said of some pro-Israel advocates.

Now, the effect of the Inquisition is to brand Jews who reject the Zionist ideology as “Anti-Semites”—in effect, as renegades or even as non-Jews. This is so by the terms of that highly contentious definition of “Anti-Semitism” that Trump has adopted (and is widely supported in Congress). Why Trump believes it’s a wise use of his powers to take sides in this dispute is a puzzle. Trump has repeatedly held himself out as an authority of some sort on the nature of Jewishness, labeling Chuck Schumer as a “Palestinian”—a person most people, including Schumer himself, consider to be a Jew. While Trump is entitled to his opinion, under our Constitution, enforcing that opinion by EO seems more questionable. What makes it worse is the widespread perception that Trump is simply doing and saying what he has been paid to do by Zionists in the Israel Lobby.

From my perspective it would be a Good Thing for the SCOTUS to get involved and to shut down this Inquisition, and that right speedily. For the good of the nation. While Roberts’ jurisprudential style of incrementalism has much to recommend it in ordinary circumstances, there are times that call for a non-incremental approach. I think this is one of those times.

In the meantime, a certain measure of sanity could be restored by the application of traditional legal and constitutional standards regarding the deportation of PRAs. I append here two selections. In this first piece, taken from a Congressional exposition, you can access the footnotes by clicking on the hyperlinks:

ArtI.S8.C18.8.7.2 Aliens in the United States

Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In 1903, the Court in the Japanese Immigrant Case reviewed the legality of deporting an alien who had lawfully entered the United States, clarifying that an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population could not be deported without an opportunity to be heard upon the questions involving his right to be and remain in the United States.¹ In the decades that followed, the Supreme Court maintained the notion that once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.²

This is not strictly correct—not all people within our borders have identical rights. So, for example, PRAs do not have a right to vote in federal elections. But, in general, PRAs do enjoy the same rights, including First Amendment rights, free from criminal prosecution—although not free from deportation, which is a distinct, non-criminal, matter. These distinctions—”fine legal quibbles”—do matter.

Eventually, the Supreme Court extended these constitutional protections to all aliens within the United States, including those who entered unlawfully, declaring that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.³ The Court reasoned that aliens physically present in the United States, regardless of their legal status, are recognized as persons guaranteed due process of law by the Fifth and Fourteenth Amendments.⁴ Thus, the Court determined, [e]ven one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.⁵ Accordingly, notwithstanding Congress’s indisputably broad power to regulate immigration, fundamental due process requirements notably constrained that power with respect to aliens within the territorial jurisdiction of the United States.⁶

However, as we will see in the next paragraph, the standards of due process in these matters are not the same as in, for example, criminal prosecutions. Furthermore, there is no small degree of uncertainty attached to these matters.

Yet the Supreme Court has also suggested that the extent of due process protection may vary depending upon [the alien’s] status and circumstance.⁷ In various opinions, the Court has suggested that at least some of the constitutional protections to which an alien is entitled may turn upon whether the alien has been admitted into the United States or developed substantial ties to this country.⁸ Thus, while the Court has recognized that due process considerations may constrain the Federal Government’s exercise of its immigration power, there is some uncertainty regarding the extent to which these constraints apply with regard to aliens within the United States.

That degree of uncertainty is what is at play in the Khalil case. Marco Rubio claims the right to deport Khalil as a threat to national security—the implication being that criticism of the Zionist ideology and of widely recognized genocide and ethnic cleansing by the state of Israel is somehow a threat to America’s national security. The question arises whether Rubio’s claim and the measures he has employed—in effect, attempting to shield Khalil from the jurisdiction of federal courts—comports with due process requirements. This next article is a good overview of what’s involved.

Can the Trump administration legally deport Palestinian rights advocate Mahmoud Khalil? 3 things to know about green card holders’ rights

The author, who is a professor of immigration law at UC Davis, first presents the factual record in the Khalil case. I’ll skip that and go to the three things the author wants us to know—which I believe is a fair presentation of the law as it currently stands. As stated above, there is some uncertainty, especially regarding due process matters.

1. Limited political rights

Lawful permanent residents are people born in other countries who can legally work and live in the U.S. for as long as they like. They may enlist in the U.S. armed forces, apply to become U.S. citizens, and are legally protected against discrimination by private employers.

States also generally cannot discriminate against lawful permanent residents – though states may require certain groups of people, such as teachers or police, to have U.S. citizenship.

Between 1820 and 1920, noncitizens routinely participated in different aspects of government, including voting, holding office and jury service in many states and territories.

These days, states and the federal government generally allow only citizens to serve on juries, hold political positions and vote. With a few exceptions, such as voting in some local elections, permanent residents are not able to do any of these things.

2. Limited public benefits

The distinction between noncitizens and citizens extends to other areas of life, such as public benefits.

The Supreme Court has frequently stated, “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”

In practice, this means that the federal government – and to a much lesser extent, states – do not offer public benefits, …

3. Reversal of immigration status

Finally, unlike citizens, lawful permanent residents can lose their legal immigration status.

Congress has enacted many grounds for deporting a noncitizen, or stopping them from entering the country.

Some courts have found that the U.S. government can deport a lawful permanent resident because of national security or terrorism concerns, even if the person has not committed a crime.

The Trump administration argues that they can deport lawful permanent residents like Khalil under the 1952 Immigration and Nationality Act, which states that a lawful permanent resident can be deported if the secretary of state has reasonable ground to believe that this person “would have potentially serious adverse foreign policy consequences for the United States.”

So, note the terms of the Act: “serious adverse foreign policy consequences”. Rubio is claiming that protests against genocide by the state of Israel could have “serious adverse foreign policy consequences” for the United States.

The Trump administration had initiated deportation proceedings against Khalil on this ground.

U.S. law also provides that any non-citizen can be deported if the secretary of state and the attorney general jointly determine that the person is associated with terrorism, or poses a threat to the U.S. In addition, the law says an immigrant can be deported if they “endorse or espouse terrorist activity or persuades others” to endorse or espouse terrorist activity or support a terrorist organization.

Still, lawful permanent residents are entitled to certain basic rights, such as retaining a lawyer to represent them in administrative hearings and court before they are deported.

By contrast, the U.S. government cannot deport a U.S. citizen for any reason. However, sometimes U.S. citizens are deported by mistake.

Indeed, the Supreme Court has found that while it is constitutional to execute a military member for desertion in wartime, it would be cruel and unusual punishment to deprive them of citizenship.

Legal grounds for deporting noncitizens

There have been few recent court cases testing the scope of deporting lawful permanent residents on national security grounds based on pure speech.

In 1999, the Supreme Court ruled that if a person is deportable, they are deportable – even if there is some other reason that motivated the government’s deportation proceedings, such as a suspicion that the non-citizen is involved with crime or terrorism.

The Supreme Court also then held that the government could deport non-citizens for technical visa violations, even if the case was based on the government’s belief that the non-citizens were associated with a terrorist group.

Here’s the important consideration, which explains why Rubio wants to keep Khalil outside the jurisdiction of federal courts.

There is also some precedent arguing that deportation based on “adverse foreign policy consequences” is too broad and nonspecific to be constitutional.

Indeed, Marianne Trump Barry, the sister of the president, held this opinion when she was a federal judge in the mid-1990s. But Samuel Alito, then an appeals court judge, overturned Barry’s ruling on procedural grounds in 1996.

For its part, the Supreme Court has occasionally held that very broad and indeterminate deportation grounds are “void for vagueness,” meaning so sweeping and imprecise that they are unconstitutional.

Khalil’s lawyers appeared with U.S. government lawyers before a federal judge in New York on March 12. Their goal: to get Khalil moved from internment in Louisiana back to internment in New York. But that may well be just the beginning of a long haul for the Palestinian student. Courts have proved reluctant to second-guess security grounds rationales in immigration cases. For these reasons, cases like Khalil’s may go on for years.

So, we see that the uncertainties are unlikely to be quickly resolved. The litigation could go on for years, if the potential deportee is lucky enough to fall into the clutches of the federal courts rather than being whisked out of the country. But who wants to be detained for years while the lawyers argue about due process, vagueness, etc.?

And that’s the point. This is all designed, in the final analysis, to shut people up. To prevent Americans from hearing alternative points of view—alternative to the narrative of Zionist ideology which our elected representatives are paid to support. The threat presented by the likes of Khalil—or Debra Winger, for that matter, or various university presidents or board members—seems less to US national security than to the political establishment. As established by the financial power of the Israel Lobby.