Mahmoud Khalil’s Case Shows How Trump Is Using Immigration Courts to Serve His Agenda

What you need to know:

A recent decision in Mahmoud Khalil’s federal case could bar immigrants from challenging their wrongful detentions until their immigration cases are complete.The set-up of our immigration courts allows for overreach by the Executive Branch.The Trump administration is purposefully using this unchecked power to pursue its deportation agenda and suppress constitutionally protected speech.

This January, a federal appeals court ruled that it didn’t have jurisdiction to decide whether Mahmoud Khalil’s targeting and detention by the Trump administration was constitutional. If upheld, this decision will exacerbate a weakness in our court system that impacts immigrants.

Mahmoud – a green card holder who was singled out for his pro-Palestine speech – filed a lawsuit in federal court challenging his detention and the basis for the immigration charges against him as unconstitutional. Separately, Mahmoud is fighting his deportation proceedings in immigration court. Yet in a two-to-one decision, a federal appeals court said no federal court could rule on the merits of Mahmoud’s constitutional claims until after the immigration courts come to a final decision in his deportation proceedings.

The NYCLU and the rest of Mahmoud’s legal team – which includes the ACLU, the ACLU of New Jersey, the ACLU of Louisiana, Dratel & Lewis, the Center for Constitutional Rights, CLEAR, Van Der Hout LLP, and Washington Square Legal Services – will continue to fight to ensure Mahmoud remains free. While the appeals court ruling has not gone into effect, the Trump administration has already celebrated it as a victory. The decision highlights the challenges people facing unconstitutional detention confront in our immigration courts.

How Did We Get Here?

Mahmoud was abducted by ICE agents from the lobby of his university-owned apartment building in March of last year following the issuance of a memo by Secretary of State Marco Rubio which claimed that Mahmoud’s constitutionally protected speech in support of Palestinian human rights, critical of Israel and U.S. support for Israel, could have “adverse foreign policy consequences” for the United States. Relying on this memo, ICE invoked an obscure, rarely-used provision of immigration law to initiate deportation proceedings against Mahmoud in immigration court and detain him. In doing so, ICE acknowledged that it had searched for, and could not find, any other immigration charge that might apply to Mahmoud.

Shortly after his arrest, Mahmoud was transferred to an immigration detention facility in Louisiana. This was a strategic move by the Trump administration in the hopes of getting an immigration judge loyal to their agenda. Louisiana immigration judges have a reputation for being particularly harsh: they reject an average of 84 percent of asylum claims. The government kept Mahmoud thousands of miles from his family in the “black hole” of Louisiana’s detention centers, where legal help often remains out of reach.

Mahmoud’s legal team filed a hybrid habeas petition and civil lawsuit in federal court demanding his release and challenging the constitutionality of the government’s actions.

After over 100 days in detention, during which time Mahmoud missed the birth of his first child, the federal judge in Mahmoud’s case issued two decisions that led to his release: first, the district court ruled that the Rubio memo, claiming that Mahmoud’s speech could have “adverse foreign policy consequences,” was likely unconstitutional and blocked his detention and deportation on that basis. Then, when the government shifted its justification for Mahmoud’s detention to newly lodged, false, and retaliatory immigration charges about alleged misrepresentations on his green card application, the district court rejected this pretext and ordered Mahmoud’s release on bail pending his immigration proceedings.

The government appealed both decisions to the Third Circuit Court of Appeals, which overturned them on technical grounds, finding that the federal district judge did not have jurisdiction over Mahmoud’s claims and that Mahmoud must exhaust his appeals in immigration court before a federal court can rule on whether his detention and the immigration charges are unconstitutional.

How Could This Decision Impact Other Immigrants?

By this logic, individuals like Mahmoud who ICE has unlawfully detained could be forced to sit in detention for years while their immigration cases play out before having the chance to contest the wrongful detention they have already endured.

The law does not require ICE to detain everyone who has an ongoing case in immigration court, but the Trump administration has been detaining thousands of people in the hopes that they will give up on their cases and “voluntarily” leave the United States.

Unlike federal, state, and local courts, immigration courts fall under the Executive Branch. It’s clear the Trump administration is using this control to violate people’s constitutional rights. Under the 14th Amendment, all persons, regardless of citizenship or immigration status, have the right to due process and equal protection under the law; and under the 1st Amendment, all people (including noncitizens) have the right to free speech. But, as Mahmoud’s complex case shows, the separate systems of immigration and federal courts do not uphold these rights equally.

Which Cases Go to Each Court?

Federal courts hear both civil and criminal cases that involve federal laws, the Constitution, or treaties. Criminal cases in federal court are brought by the U.S. Department of Justice and can include certain criminal charges for immigration offenses, such as illegal reentry into the country after deportation. Civil cases in federal court often involve claims by individuals that the government has violated, or is currently violating, their constitutional rights. Habeas petitions, a special kind of civil case in federal court, are brought by individuals in custody challenging the legality of their detention.

The government frequently summons people to immigration court for removal proceedings (sometimes called deportation proceedings), which are civil administrative hearings that determine whether a noncitizen has violated U.S. immigration law and is deportable, and whether they are eligible for relief, such as asylum or other protections. In the past, officials usually targeted immigrants with criminal records – but that has changed under Trump. The majority of immigrants arrested by ICE during his first year back in office were not convicted of any crime.

Because immigration courts involve civil proceedings, they do not hear cases involving criminal charges.

Which Agencies Oversee Each Court?

Federal courts, which were established by Article III of the U.S. Constitution, make up the independent Judicial Branch of the United States government. As the judiciary, they serve as a vital check and balance on the two other branches: the Executive and the Legislative.

Immigration courts, by contrast, are administrative tribunals within the Executive Branch, overseen by the Department of Justice – the same branch that enforces immigration laws. The Department of Justice’s Executive Office for Immigration Review oversees these courts, and the Attorney General of the United States – a presidential appointee – has ultimate authority over them. This means that immigration judges currently work for Pam Bondi, and ultimately for President Trump, who could fire them if displeased with their decisions.

Who Appoints the Judges?

Federal judges are nominated by the President and confirmed by the Senate, per procedures laid out in the Constitution. They have tenure for life.

Immigration judges are not political appointees and are not subject to Senate confirmation. They are hired through a competitive hiring process, like other federal employees, and appointed by the U.S. Attorney General. They do not have life tenure and can be fired by their supervisors in the Executive Branch.

In 2019, the first Trump administration sought to decertify the labor union representing immigration judges, which helped shield judges from being fired for decisions that the government disliked. The effort succeeded, and the union decertified in 2022.

In 2025, Trump fired nearly 100 immigration judges, many of whom had previously worked as lawyers arguing on behalf of immigrants trying to remain in the U.S. The administration’s agenda was made clear in the title used by the Department of Justice for their replacements: “deportation judges.” The Trump administration makes no effort to hide the fact that they want to hire judges loyal to their agenda who will remove as many immigrants as possible.

Do People in Immigration Court Have the Same Rights as People in Federal Court?

No. Because immigration courts are administrative—and because they are housed within the Executive Branch—immigrants at risk of deportation do not have the same rights as criminal defendants or even civil litigants in federal court.

They are entitled to an attorney, but the government will not provide one for them if they cannot afford one, and they will have to represent themselves – even if they are children.

An immigration judge, not a jury of their peers, decides their cases. Federal rules of evidence, which govern which evidence is admissible in federal court, do not apply. An immigration judge can admit any evidence they deem material and relevant, including so-called “secret evidence,” and even hearsay.

Why is There Such a Backlog in Immigration Cases, and How Does This Impact People With Open Cases?

The backlog in immigration cases dates back many years, and as of December 2025 stands at 3.4 million. Trump’s firing of immigration judges will likely raise this number.

To deport more people quickly, the administration has expanded the use of “expedited removal.” Previous administrations – and the way immigration laws are crafted – limited this fast-track process to people who had been in the country for fewer than two years and people apprehended near the border. But the Trump administration has unlawfully used this policy to quickly deport people after snatching them from federal courthouses when they arrive for required immigration appointments, denying due process to asylum seekers and others who have done everything the byzantine immigration system asked of them.

Another way the Trump administration denies people’s constitutional rights is through unlawful detentions like Mahmoud’s. If the Third Circuit’s decision in Mahmoud’s case is allowed to stand and applied more broadly, it would mean that more people – even children – may sit trapped in squalid immigration detention centers for the two years that people wait, on average, for a decision in their immigration cases before they could ever challenge their detention as unlawful.

Where Can People Appeal Their Decisions?

A person in federal court can generally appeal the court’s decision in a federal circuit court of appeals.

A person in immigration court can appeal the immigration judge’s decision to the Board of Immigration Appeals – another agency housed within the Executive Branch. After they have obtained the BIA’s decision, they can then appeal to a federal circuit court of appeals. Only at this stage are they finally before a federal court run by the independent Judiciary Branch, separate from immigration courts and the Executive Branch that controls them. Still, they are limited in the types of issues they can challenge, and the types of decisions made by immigration courts they can appeal.

For this reason, being able to file a case immediately in federal district court raising time-sensitive constitutional issues, as Mahmoud did, plays a vital role in protecting immigrants’ legal rights. The government only released Mahmoud because of the timely intervention of a federal court that found his detention and the so-called Rubio memo likely unconstitutional.

The set-up of our immigration courts has always left the door open for interference from the Executive Branch. Trump is capitalizing on this weakness to chase his goal of record high deportations and, in the case of Mahmoud Khalil, to retaliate against him for his speech and to chill the speech of others. We are planning to seek review of the Third Circuit decision because, unless it is vacated, untold others who have committed no crime could be left without means to challenge their unconstitutional detentions. Our nation’s courts should be a check on Trump’s powers, not a tool for his authoritarian agenda.