There’s a Legal Loophole That Trump Can Wield Against Any Naturalized Citizen

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If you have been following the Mahmoud Khalil deportation saga, you are likely familiar with the controversial statute that the administration has deployed to justify rescinding his green card and deporting him. This “foreign policy” provision, historically deployed sparingly, authorizes deportation if the secretary of state determines that a noncitizen’s continued presence would have “potentially serious adverse foreign policy consequences.” In Khalil’s case, the current secretary of state, Marco Rubio, concluded that he was subject to this ground because he had engaged in “antisemitic conduct and disruptive protests” that created “a hostile environment for Jewish students.”

The nature of this initial charge against Khalil—declaring him a foreign policy threat based on political activism—prompted a wave of outrage and media attention, much of it focused on the constitutional implications of deporting a person for their lawful political activities and speech. Recognizing, perhaps, that the Constitution could hinder their attempts to deport Khalil, the government filed three additional deportation charges. These charges, which have largely flown under the radar, allege that Khalil omitted three important pieces of information in his green card application: 1) that he had been a member of the United Nations Relief and Works Agency for Palestine Refugees, a UN agency that provides aid to Palestinian refugees and which has been alleged to have links to Hamas; 2) that he had been a member of Columbia University Apartheid Divest, a coalition of student organizations dedicated to pro-Palestinian advocacy; and 3) that he had incorrectly stated the dates of his employment by the Syria Office of the British Embassy in Beirut. These omissions, it is asserted, render Khalil deportable under a statute that authorizes deportation for those who have procured an immigration benefit—such as a green card—by fraud or by willfully misrepresenting a material fact. (Khalil and his attorneys have contested all three allegations.)

The updated charges don’t seem to implicate the First Amendment, and even those sympathetic to Khalil’s plight would likely agree that a person who lies to receive a benefit should lose the benefit once those lies are uncovered. In one court filing, the administration’s lawyers describe Khalil’s free speech arguments as a “red herring” because the fraud-based grounds provide an “independent basis to justify removal.”

These arguments have a seductive logic; however, it is vital that the public—and the judiciary—not take the bait. Acquiescing to the Trump administration’s attempts to deport Khalil and other lawful residents based on misrepresentations in their application materials could be just as dangerous as permitting deportations based on speech or political opinion. This is because, in a bizarre feature of our immigration system, it is virtually impossible to obtain a green card without making some kind of misrepresentation during the application process. If cases like Khalil’s become the norm, millions of permanent residents and naturalized U.S. citizens will become susceptible to deportation.

The reason for this is found in the forms used to apply for immigration benefits. To request a green card, for example, a noncitizen completes a 24-page application that contains roughly 100 questions, many of which are confusing, ambiguous, and/or overbroad. The question that Kahlil allegedly failed to answer truthfully, for example, asks in its current form if the applicant has:

EVER been a member of, involved in, or in any way associated with any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other location in the world?

Consider the breadth of this question: An applicant is asked to describe—under penalty of perjury—every “organization” or “similar group” that they have been “in any way associated with.” Is one expected to include their membership in WeightWatchers or their stint as treasurer of the Barry Manilow Fan Club? More ominously, is an applicant who joined a support group for an eating disorder or pornography addiction required to disclose their membership in these groups? For the average 40-year-old applicant, the list of “groups” that she has “in any way associated with” could extend into the hundreds.

In this context, what some media outlets have described as Kahlil’s efforts to “hide” or “cover up” his past group memberships seem much less sinister. Faced with this ludicrously broad question, Kahlil either ventured his best guess as to which group memberships are relevant, or, more likely, he simply answered “no” to this largely unanswerable question. In fact, if the New York Post is to be believed, Khalil posted his work for the UNRWA to his publicly available LinkedIn profile—hardly the actions of a person attempting to cover up nefarious activities.

If the “group” question were the only tricky question in the application, Khalil’s alleged omissions might be more difficult to defend. However, this question is just the tip of the nonsense iceberg that is an immigration form. One particularly notorious question, which has flummoxed noncitizens for decades, directs the applicant to provide every instance in which she has

EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime, or convicted)?

You are reading that correctly—one is expected to provide a detailed list of every single instance in their life when they sped, jaywalked, drank alcohol underage, or unlawfully used marijuana. And speaking of marijuana, the application also demands to know whether the applicant has

EVER violated … any controlled substance law or regulation of a state, the United States, or a foreign country?

Although this question is at least arguably understandable, it is also the most perilous, because an admitted violation of a controlled substance law in any country may subject a person to exclusion or deportation. Thus, a person who honestly answers that they have smoked marijuana could be denied a green card to which they are otherwise entitled.

The government has historically brought charges only for egregious omissions or misrepresentations, such as failing to disclose a membership in a paramilitary death squad. From this approach, common to both Republican and Democratic administrations, emerged something of an unspoken agreement between immigrants and the immigration bureaucracy: immigrants omit information in their applications and, absent evidence of serious misconduct, immigration officers approve those applications despite the overwhelming likelihood that the applicants were not entirely truthful. So ingrained was this arrangement that immigration officials often counseled applicants to exclude information in their paperwork: Khalil’s lawyers filed an affidavit from an immigration attorney who described how her clients would volunteer group memberships during an immigration interview, only to be instructed by the official not to include the information (suborning perjury, arguably), because the question wasn’t aimed at that type of group membership. It follows that millions of applications have been filed over the years with some untruth inside, with the vast majority being approved.

By pursuing these charges against Khalil, the government appears to have discarded this historical understanding. If so, virtually every green-card holder’s immigration file contains a metaphorical “take-back” card that the administration can attempt to play at any time. Even naturalized U.S. citizens are not safe; with Stephen Miller proclaiming that denaturalization efforts will be “turbocharged” in the coming years, the number of people vulnerable to “take-back” deportations may climb into the millions. Indeed, the belief that every permanent resident or naturalized U.S. citizen is deportable if you just do enough research has already begun to seep into the public consciousness; calls for Zohran Mamdani’s denaturalization—based on, you guessed it, misrepresentations in his citizenship application—began almost immediately after he became the presumptive nominee for mayor of New York City.

Mercifully, the Supreme Court may be cognizant of both the incomprehensibility of immigration paperwork and the weighty consequences of denaturalization and green card rescission. In Maslenjak v. U.S., the most recent denaturalization case to come before the Supreme Court, the justices, highlighting some of the silliest questions on the citizenship application form and noting the insanity of taking a person’s citizenship away for failing to disclose a speeding violation, refused in 2017 to affirm a lower court’s ruling that even trivial falsehoods could result in denaturalization. Instead, the court confirmed that disqualifying misrepresentations must be “material,” meaning that “the misrepresented fact was sufficiently relevant … that it would have prompted reasonable officials … seeking only evidence concerning citizenship qualifications, to undertake further investigation.”

Although this relatively strict standard would seem to crimp the administration’s “turbocharged” rescission effort, the administration clearly believes it has found a loophole. The materiality standard, which requires the court to determine the actions of a “reasonable official,” falters when one considers that every single immigration official currently reports to the attorney general, secretary of state, or secretary of the Department of Homeland Security—outspoken supporters of the efforts to deport student activists on specious grounds. Indeed, the administration is already workshopping a version of this argument, noting in Khalil’s case that their enforcement actions are entitled to a “presumption of regularity” by the courts.

It’s difficult to overstate the damage that would result if courts were to take this bait. Given the administration’s fondness for enemies lists, it would be easy to isolate all political opponents who are not natural-born citizens, gather their immigration file, identify the inevitable omission or falsehood in their paperwork, and initiate deportation/denaturalization proceedings against them. Furthermore, the administration can use this power to create a veneer of legitimacy for deportations based on illegitimate motives—such as political opinion, religion, or even ethnic background. The administration, facing roadblocks in their attempt to deport Mahmoud Khalil for his pro-Palestinian activism, instead deports him for covering up his membership in CUAD and UNRWA—two organizations devoted to pro-Palestinian activism and aid. The First Amendment blocks the front door, so the government uses “fraud” to try to sneak in the back.

If and when the Khalil case comes before the Supreme Court, the court should hold that any attempts to deport or denaturalize a person based on an answer they provided in any of the recent versions of the immigration application are invalid. There is precedent for this; in the 1958 case Nowak v. United States, the court refused to sustain a fraud-based denaturalization charge based on the applicant’s failure to disclose his Communist Party membership on his citizenship application because the question at issue “was not sufficiently clear.”

The “don’t ask, don’t tell” approach to nonsensical immigration forms was tolerable when the government could be trusted not to abuse the “take-back” cards they have been provided. However, the Khalil case makes clear that stronger protections will be needed in the coming years to avoid arming the administration with potentially unlimited denaturalization and deportation powers.

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