DOJ’s Constitutional Dodge: When One Detention Reason Fails, Just Try Another

Legal Issues

from the try-try-again dept

When a federal judge ruled last week that Marco Rubio can’t just declare that the US can detain green card holder Mahmoud Khalil based on the Secretary of State’s “vibes check” assessment of his political beliefs, you might think Khalil would finally be free to return to his family.

You’d be wrong. The DOJ has decided to play the classic bureaucratic shell game: “Oh, that reason for detaining him was unconstitutional? No problem—we’ve got another one.”

On Friday, his lawyers asked the judge to order Khalil’s release.

Mr. Khalil submits this letter to respectfully request this Court order Mr. Khalil’s release pursuant to this Court’s June 11, 2025 order and opinion enjoining Mr. Khalil’s removal and detention based on the Secretary of State’s determination. ECF 299. In accordance with the Court’s Order, Mr. Khalil has satisfied the requirements for this preliminary injunction and has posted his Bond. ECF 300. The Government has not filed a notice of appeal of this Court’s Order by the Court-ordered deadline for the preliminary injunction to be in effect. Nor has the Government represented that Mr. Khalil is being detained based on any ground other than the one the Court enjoined. See Exhibit A (email exchange between Respondents and Mr. Khalil’s immigration Counsel). The Government has declined to provide information about plans for Mr. Khalil’s release today. See id. Consistent with the Court’s factual finding that “it is overwhelmingly likely that the Petitioner would not be detained based solely on the lawful-permanent-resident application charge,” and that “detention almost surely flows from the Secretary of State’s determination,” this Court should order his release forthwith.

The DOJ responded by saying that the court ruling makes no difference regarding Khalil’s detainment, because they have other reasons to keep him locked up.

The Court expressly noted that its holdings “have no impact on efforts to remove the Petitioner for reasons other than the Secretary of State’s determination.” ECF No. 299 at 13 n.14. And, while the Court made a factual finding that it was unlikely that Khalil would be detained on another basis, id. at 10, the Court never held that it would be unlawful for Respondents to detain Khalil based on another charge of removability. Khalil is charged as removable on a ground other than the Secretary of State’s determination. See ECF No. 90-1 at 5. Khalil is now detained based on that other charge of removability. Detaining Khalil based on that other ground of removal is lawful. 8 U.S.C. § 1226(a). An alien like Khalil may be detained during the pendency of removal proceedings regardless of the charge of removability.

This is prosecutorial gamesmanship at its most cynical. The DOJ is essentially admitting that their primary justification for detention was so weak that a federal judge had to step in and stop it. But rather than acknowledge they got it wrong and release Khalil, they’re doubling down by dusting off what appears to be a backup charge.

It’s the legal equivalent of a cop who pulls you over for “speeding” but then, when that doesn’t stick, decides you were actually violating some obscure taillight regulation. Except in this case, a man has been separated from his wife and newborn for months based on what we now know was an unconstitutional determination.

Procedurally, they may be correct, and the judge acknowledges as much in his order, basically saying that Khalil did not challenge other reasons he may be detained, and he should probably challenge those before an immigration judge:

It would plainly be unlawful to detain the Petitioner on a charge the Court preliminarily enjoined.

But by their letter of this afternoon, at ECF 304, the Respondents have now represented that the Petitioner is being detained on another, second charge.

That second charge has not been preliminary enjoined by the Court.

As the Court noted at some length on May 28, (1) the Petitioner did not put forward factual evidence as to why it might be unlawful to detain him on the second charge, and (2) the Petitioner failed to make meaningful legal arguments as to that second charge….

The Petitioner has not sought appellate review as to the Court’s May 28 holdings.

As the Respondents note in their letter today, a number of avenues are now available to the Petitioner, including a bail application to the immigration judge presiding over the immigration case.

That’s basically saying “hey, the rest of this is in the immigration judge’s hands.” While frustrating, that may be legally accurate.

But it also goes to show just how unnecessarily aggressive the Trump regime and Rubio are being here. There are no good reasons to keep Khalil locked up. Hell, there were no good reasons to detain him in the first place. Even if the government believed that he should be deported (and they’ve yet to show any good evidence to support that), most people in such situations get a notice of when and where to appear before an immigration judge — not grabbed from their home in front of their pregnant wife and whisked off to an unknown lockup for months.

And now we know that the main stated reason for his detention was bogus. It just seems like the Trump regime is doing this out of spite and general assholishness, rather than for any good reason. Hopefully the immigration judge recognizes that.

Filed Under: detention, doj, mahmoud khalil, marco rubio, state department