rparloff.bsky.social
Senior Editor, Lawfare. Ex-Fortune staff. Published in ProPublica, NYT, New York, New Yorker, Yahoo Finance, Air Mail, etc. Practiced law a long time ago.
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The dissenting justices had written that the "remedial orders" were not before SCOTUS. Of course, they're dissenters, so it's hard to know what the majority thought. And the majority didn't say squat.
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For the outlandish backstory of the case, at which a 6-3 majority of SCOTUS shrugged its shoulders, see @qjurecic.bsky.social 's account in @lawfaremedia.org at link below.
Original working title: "DHS v DVD -- WTF?"
www.lawfaremedia.org/article/the-...
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The next tweet in the thread links to the explanation.
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The US Court of Appeals for the Second Circuit live-streams its arguments. I’ll try to post the link tomorrow before it starts.
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... The June 11 & 18 rulings related to the dispute I described below.
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bsky.app/profile/rpar...
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... In the run-up to the argument, the court denied three Trump motions: On 6/11 it denied his motion to put off argument; on 6/18 it denied his motion to substitute DOJ as counsel; & 6/20 it denied his emergency (2d) motion to put off argument. ...
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DOJ sought a 7-day stay of the release order, while it considers an appeal, but Judge Farbiarz denied it. He's not going to issue a written ruling. He's going to write an order that Khalil be released TODAY subject to conditions set by a magistrate judge.
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based on
not a flight risk
no danger to community
chilling effect detention having on his speech right now
"substantial" due process claim that detention is being used to punish Khalil for political (1st Am-protected) speech.
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... At that point Khalil’s attys asked Farbiarz to rule on the still-open bail motion they’d filed March 20. On Friday, at noon, Farbiarz will hold a telephone hearing and, apparently, finally do so.
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... Then, on 6/13, after Khalil showed Farbiarz that DHS was now, indeed, detaining Khalil solely on the post-hoc charge, Farbiarz *again* denied relief, stating that Khalil’s attys had failed to prove to him that it was unlawful to detain Khalil for that. ...
/20
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... So on 6/11 Judge Farbiarz found as a fact that “it is overwhelmingly likely that [Khalil] would not be detained based solely on the lawful-permanent-resident-application charge.”
YET FARBIARZ STILL REFUSED TO BAR DHS FROM DOING SO. ...
/19
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... He quoted one of Khalil's experts who said it was “incredibly rare” to see an lawful permanent resident detained on this basis and she’d only seen that happen to aliens with criminal convictions. ...
/18
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... On 6/11, Judge Farbiarz seemed persuaded. In a 14-page single-spaced order he wrote: “the evidence is that lawful permanent residents are virtually never detained” for the sort of alleged omissions involved here. ...
/17
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... Finally, let’s get back to the retaliation issue. Does DHS typically treat alleged omissions on a greencard application as a basis for *detention*? Khalil’s attys offered 3 experts—a scholar, a practitioner, and a former ICE atty—who all said: “No.” ...
/16
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... At a parallel hearing before an immigration judge on 5/22, Khalil testified about putative omissions 1 and 3. DHS did not cross-examine him. In DHS’s written summation to the immigration judge, filed 6/2, it didn't even discuss either claim. ...
/15
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... Putative omission 3 was that Khalil failed to disclose his membership in a group called Columbia Univ. Apartheid Divest (CUAD). Khalil says he wasn’t a member & the protests that spurred this accusation happened *after* he submitted his application ...
/14
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... Putative omission 1 was that Khalil failed to disclose employment with UNRWA (the UN refugee agency). Khalil says he wasn’t employed there; it was an unpaid internship for which he received Columbia course credit. ...
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... The second was that Khalil allegedly failed to disclose ongoing employment with the British embassy. But on 5/22/25, an immigration judge dismissed that claim. Khalil had left that job in 2022, 1.5 years before he filled out his greencard application. ...
/12
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... So what are the putative omissions? There are three. Let’s call them “putative omissions” 1, 2, and 3, and then let’s start with #2. ...
/11
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... Early this month Khalil’s attys filed more declarations. They cited caselaw showing that an omission on a greencard application could result in removal only if it was “willful, material & made with intent to deceive”—an allegation they say DHS has never made. ...
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... And a sixth judge preemptively ordered protection for a sixth protester, Yunseo Chung, on the same grounds, before she’d even been arrested. The US Court of Appeals for the Second Circuit rebuffed DHS’s attempts to stay Ozturk’s & Mahdawi’s releases. ...
/9
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... Meantime, other judges have released five other alien protesters whom, they found, DHS had unconstitutionally detained in retaliation for 1st Am protected speech: Ruymesa Ozturk; Mohsen Mahdawi; Mohammed H[oque]; Efe Ercelik; Badar Khan Suri. ...
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... That seems to be because Khalil was arguing all along that his arrest, detention & attempted removal—on *both* the Rubio charge *&* the post-hoc charge—were all unconstitutional retaliation for 1st Amendment protected speech. ...
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... On 5/28, he found that the law Rubio invoked was likely unconstitutionally vague as applied. (101 pp single-spaced.) But Farbiarz said Khalil had presented insufficient evidence for him to rule on the post-hoc charge: the alleged application omissions. ...
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... Since then, Judge Farbiarz has issued multiple rulings, but, so far as I can tell, has never addressed bail or the key 1st Am. questions.
On 4/1, he found he had venue. (67 pp single-spaced.)
On 4/29, he found he had jurisdiction. (108 pp single-spaced.) ...
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... A few days later DHS added a second purported basis for removing Khalil, which his lawyers call “the post-hoc” charge: it claims that Khalil made certain misrepresentations (omissions, really) on his greencard application in March 2024. ...
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On 3/9, Khalil sued seeking release, alleging retaliation for 1st Amendment protected speech.
On 3/11 DHS told Khalil that the reason he was being removed was Secy Rubio’s finding that his presence in US had “serious adverse foreign policy consequences.” ...
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Khalil is a lawful permanent resident Columbia grad student who participated in Gaza protests. No criminal record. Palestinian. On 3/8 he was detained in his lobby in NYC as he returned with his US citizen wife, who was then 8-months pregnant. ...
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H, a 20yo Bangladeshi, had been charged with a misdemeanor in 2023 for altercation at Palestinian protest. His case was resolved with no jail time in 2024. On 3/28/25 DHS revoked visa & detained him. Judge Blackwell ordered him released 5/5 & now grants habeas, ordering him to stay released.
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