Kafka in Louisiana
A judge ruled that Mahmoud Khalil must go. The government never had to explain why.
Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested.
So begins The Trial, Franz Kafka’s haunting novel about a man arrested by agents of an unnamed authority for a crime that is never revealed.
From The Trial, and other nightmarish scenarios in the work of Franz Kafka, we get the adjective Kafkaesque, used to describe real-world experiences marked by absurdity, helplessness, and bureaucratic cruelty.
There may be no better descriptor for the country we now find ourselves living in—perhaps the country we were always living in, but have never seen so clearly.
This week, an immigration judge in Louisiana ruled that Mahmoud Khalil, a lawful permanent resident, could be deported on the basis of an undated two-page memo from Secretary of State Marco Rubio.
Rubio’s memo invokes INA § 237(a)(4)(C)(i), a provision of the Immigration and Nationality Act, which states that any “alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”
INA § 237(a)(4)(C)(i) gives the administration enormous discretion. But Congress added a crucial First Amendment safeguard: it prohibits deportation “because of the alien’s past, current, or expected beliefs, statements or associations, if such beliefs, statements, or associations would be lawful.”
The only way for the administration to get around this safeguard is for the Secretary of State to personally determine that the individual’s presence “would compromise a compelling [U.S.] foreign policy interest.”
At first glance, the exception doesn’t seem so different from the original standard. But it is. It requires an actual compromise of a compelling foreign policy interest—not mere speculation about a potential consequence.1
It's a distinction that appears to have eluded Secretary Rubio. As "proof" that U.S. foreign policy interests had been compromised, Rubio cited unspecified DHS “information” alleging Khalil participated in “antisemitic protests and disruptive activities” that supposedly fostered “a hostile environment for Jewish students.”
Secretary Rubio didn’t tell us what Mahmoud Khalil did or how his actions have compromised a compelling foreign policy interest. He just recited the words of the exception like a magic incantation.
And it was enough for the immigration judge in charge of Mr. Khalil’s case.
Despite claiming that "nothing [was] more important to this court than Mr. Khalil's due process and fundamental fairness," the judge accepted Rubio’s vacuous two-page memo as sufficient to establish removability by “clear and convincing evidence.”
That is the Kafkaesque core of the process that Mahmoud Khalil has been afforded. Whatever basis Secretary Rubio has to believe that compelling U.S. foreign policy interests have actually been compromised by those actions, the Secretary has not been required to make them known.
As Mr. Khalil’s lawyer stated, the hearing was “a charade of due process, a flagrant violation of his right to a fair hearing, and a weaponization of immigration law to suppress dissent.”
And it’s not a breakdown in the system—it is the system.
Immigration judges are not part of an independent judiciary under Article III of the Constitution. They work for the Executive Office for Immigration Review (EOIR), which is a sub-agency of the Department of Justice, the same executive branch agency that seeks to deport the people who appear before them.
Since 1983, the vast majority of immigrants facing deportation appear before such judges.2 They are not guaranteed legal counsel. And they are often ordered deported in proceedings that last only minutes.
And, as Mahmoud Khalil himself noted in his statement to the judge, they often languish in jail far longer than he did before ever seeing a judge. “I just hope that the urgency that you deemed fit for me,” he said, “is afforded to the hundreds of others who have been here without a hearing for months.”
This is what passes for due process in U.S. immigration courts.
Thankfully, Mr. Khalil still has a pending habeas petition in the District of New Jersey, where a district court has stayed his deportation and where his lawyers are arguing that he has been targeted for constitutionally protected speech.
But that does not lessen the horror of this moment, in which a “court” has just sanctioned the extraordinary power Secretary Rubio claims: the ability to target any noncitizen for deportation based on a belief he need not prove.
Kafka described Josef K.’s legal purgatory in a similar way:
In general, the proceedings were kept secret not only from the public but also from the accused. Only as far as possible, of course, but that was to a very great extent. The accused was not allowed to see the court documents either, and it was very difficult to deduce anything from the hearings about the documents on which they were based, especially for the accused, who was prejudiced and had all sorts of worries to distract him.
Procedure without evidence is not justice.
Authority without transparency is not accountability.
And a legal system that punishes political speech while shielding the state from scrutiny is not law.
It is power.
Kafka understood this kind of horror: not a world without law, but a world in which law becomes so distorted, so self-justifying, so severed from truth and humanity, that it becomes indistinguishable from tyranny.
“It’s characteristic of this judicial system,” Kafka wrote, “that a man is condemned not only when he is innocent but also in ignorance.”
Ignorance, in Kafka’s telling, meant being denied not only justice, but understanding of the charges, of the evidence, and of the rules themselves.
The question is not whether this can happen here.
It already has. It already does.
The only question now is what we are willing to do to stop it.
For deeper legal analysis, on which I have heavily relied, please visit this helpful post by Cyrus D. Mehta and Kaitlyn Box at The Insightful Immigration Blog.
In 2022, the American Immigration Lawyers Association submitted a statement on the unfairness of this process to the Subcommittee on Immigration and Citizenship of the House Judiciary entitled “Why America Needs an Independent Immigration Court System”
I’m still operating from the belief that words matter, which feels sillier and sillier.
This passage really struck me. “Secretary Rubio didn’t tell us what Mahmoud Khalil did or how his actions have compromised a compelling foreign policy interest. He just recited the words of the exception like a magic incantation.” So much of what is going on is at the expense of logic and evidence.