Federal Judge Orders Trump Administration Not to Detain or Deport Another Columbia Student

Essentially, Yunseo Chung is free while Mahmoud Khalil is detained because she beat the government to the courthouse.

D uring the initial days of the Mahmoud Khalil saga, I observed that the key question in the dispute over the government’s effort to deport a lawful permanent resident alien (i.e., a green card holder) is who decides?

That is, the Trump administration is relying on Section 1227(a)(4)(C) of the immigration law, which authorizes the government to deport an alien — including a lawful permanent resident (LPR), the highest category of legal alien — if “the Secretary of State has reasonable ground to believe” the alien’s presence or activities “would have potentially serious adverse foreign policy consequences for the United States.” So, the question is: Does the Secretary of State unilaterally make this decision, on the theory that the executive branch has the constitutional responsibility to conduct foreign policy and expertise regarding adverse consequences to that mission? Or does the court make the decision, on the theory that the statute requires the secretary’s decision to be supported by reasonable grounds, thereby inviting the judge to decide whether the executive branch’s decision is reasonable?

On Tuesday, a federal judge reportedly determined that she, not Secretary of State Marco Rubio, would decide what American foreign policy reasonably requires.

Judge Naomi Reice Buchwald, a Clinton appointee, ruled that that the government may not even detain, much less deport, Yunseo Chung, a 21-year-old student at Columbia University. Like Khalil, she is a lawful permanent resident alien (a green-card holder). Though not as prominently involved as Khalil in the post–October 7 pro-Hamas campus agitation, Chung’s activities were sufficiently egregious that she was arrested by New York City police for her participation in a sit-in at Barnard College.

Physically impeding the operations of a campus and security personnel is conduct, not speech. Chung was cited in a desk ticket with obstruction of government administration, and Columbia’s administration suspended her for a few days. She had also previously been investigated by the Columbia administration for vandalism — posting fliers on campus with pictures of the board of trustees and the words “Wanted for Complicity in Genocide,” according to the Wall Street Journal. Vandalism, too, is criminal action, not protected speech. Chung was not suspended or otherwise disciplined, her lawyers say, in connection with that incident. She has not been convicted of a crime.

The sympathetic factor in the case of Chung, who is 21 and in her third year as a Columbia undergrad, is that she was brought to the United States from South Korea at the age of seven. Her lawyers claim that America is and has been her real home. Nevertheless, she is not a citizen; she is an alien.

Under Section 1227(a)(4)(C), the secretary of state has authority to determine that an alien be deported due to the foreign policy ramifications of her presence in our country — regardless of whether the alien is illegally in the U.S.; is here on, say, a student, work, or tourist visa; or, as in Chung and Khalil’s cases, is in the LPR category (and is thus considered, in many U.S. legal contexts, a “U.S. person”).

The Trump administration has determined, correctly in my view, that the well-justified perception of American campuses as hotbeds of antisemitism and sharia-supremacist organizing — to the benefit of Hamas, a designated foreign terrorist organization, material support for which is a federal felony — is detrimental to foreign policy. Obviously, aspects of our foreign policy include supporting Israel in the multi-front war being waged by Iran and its jihadist proxies; engaging in combat operations against jihadists in Yemen and Syria; pressuring Iran on its nuclear-weapon ambitions; and encouraging Middle East regimes to isolate the revolutionary jihadist regime in Tehran that is aligned with anti-American regimes in Russia, China, and Venezuela (among others). There is nothing unreasonable about Secretary Rubio’s determination that the pursuit of American foreign policy interests is connected to the suppression of lawless campus agitation by non-Americans that benefits Hamas and targets Jews.

Nevertheless, it shouldn’t matter whether I or Judge Buchwald believes this determination is reasonable, since neither one of us has any constitutional responsibility for foreign policy or American national security. Those decisions are the preserve of the executive branch, under both Article II of the Constitution and the express statutory grant by Congress in Section 1227(a)(4)(C). That statute deals with deportation authority, and incorporates Section 1182(a)(3)(C), which applies to the exclusion of aliens.

Specifically, the Section 1227 provision includes the “exceptions” in Section 1182(a)(3)(C). In effect, this provides a defense to deportation for activities that the First Amendment protects in the United States — beliefs, speech, and associations. Importantly, though, there is an exception to this exception: It does not apply if “the Secretary of State personally determines that the alien’s admission would compromise [or, derivatively, that the alien’s deportation would promote] a compelling United States foreign policy interest.”

If Rubio makes this call, it is his call to make.

Chung is free while Khalil is detained because she beat the government to the SDNY courthouse.

As we recounted regarding Khalil’s case, he was arrested in Manhattan (in Columbia-owned housing near campus). His lawyers filed a habeas corpus petition in the SDNY, but by then Khalil had been moved to New Jersey (ultimately enroute to Louisiana, where his deportation hearing is scheduled before an immigration judge later this week). Hence, SDNY Judge Jesse Furman transferred the case to New Jersey since a habeas petition must be filed against the government custodian in the district where the petitioner is at the time of the filing.

Chung, by contrast, got wind that the feds were looking for her in Manhattan but evaded arrest. In the interim, her lawyers filed an anticipatory petition in the SDNY since it was clearly the government’s intention to take her into custody there.

To my knowledge, Judge Buchwald has not issued a written opinion. Instead, at a hearing in court on Tuesday, she directed the government not to arrest or deport Chung, who did not attend the hearing (apparently for fear of being arrested). According to the New York Times, she asserted that “nothing in the record” indicated that Chung posed a danger to the community or a “foreign-policy risk,” or that she had communicated with terrorist organizations. I assume there is nothing along those lines in the record because the government has not yet supplied it (this having been an emergency petition brought by the person being sought); presumably, Secretary Rubio has not entered the fray — at least within the four corners of the lawsuit brought on Chung’s behalf.

Buchwald issued a temporary restraining order. Snarking that there were to be “no trips to Louisiana here” (a reference to the feds’ rapid transfer of Khalil to a judicial clime perhaps more hospitable to Trump than the SDNY), the judge directed the government to provide notice to the court and Chung’s counsel if it sought to detain Chung on any basis other than deportation under Section 1227(a)(4)(C). That seems like a dubious directive to me — what if Chung allegedly has committed or proceeds to commit a crime, or to do so outside the SDNY’s jurisdiction? But clearly, while she is considering whether to issue a preliminary injunction (the next step after a TRO), Buchwald seeks to ensure that the government does not arrest Chung on grounds that her counsel would portray as “a pretext for First Amendment retaliation.”

Interestingly, after the hearing, Buchwald signed the TRO proposed by Chung’s counsel, but she crossed out counsel’s proposed findings that (a) Chung had “demonstrated that she will suffer irreparable harm”; (b) Chung is “substantially likely to prevail” on the merits of her claim that the government’s arrest and deportation of her would violate the First Amendment, the Fifth Amendment’s due process clause, and federal immigration law; and (c) the balance of equities tip in favor of a TRO. Under federal jurisprudence, these findings are the prerequisites for the issuance of a TRO. Unless and until she issues a written ruling — rather than scratching out what she declines to adopt from Chung’s proposed order — her basis for issuing the TRO is unclear.

Since Judge Buchwald is substituting her foreign policy judgment for that of the secretary of state, she ought to explain herself better.