Federal Courts Keep Rejecting the Rubio Memo Strategy. Khalil Remains Detained Anyway.

Since federal immigration agents arrested Mahmoud Khalil at his New York City apartment building on March 8, 2025, the legal scaffolding the Trump administration built to justify his detention has been collapsing piece by piece. Khalil is still locked up.

What the Courts Have Actually Said

In May 2025, U.S. District Judge Michael E. Farbiarz in New Jersey issued a detailed opinion finding that the foreign policy grounds used to detain Khalil are likely unconstitutional. The judge concluded Khalil would likely succeed on a vagueness argument against Section 1227 of the Immigration and Nationality Act, as the ACLU reported. Farbiarz called the government's use of that provision "unprecedented" and warned that if the provision could be applied to Khalil, similar statutes could eventually be used "not just in the removal context, as to foreign nationals, but also in the criminal context, as to everyone."

The court stopped short of ordering Khalil released at that stage, asking his legal team for additional information before ruling on the preliminary injunction and his bail motions. As of June 20, 2026, that final ruling has NOT been issued.

The Memo That Started This

The government's core evidence, filed in immigration court in April 2025, was a two-page memo signed by Secretary of State Marco Rubio arguing that Khalil's presence in the United States undermines U.S. foreign policy, specifically efforts to combat antisemitism and protect Jewish students. Khalil's lead immigration attorney Marc Van Der Hout told a press conference, as reported by Anadolu Agency, that the government submitted "no other evidence" alongside the memo. Attorney Johnny Sinodis called the document a filing with "not a single shred of proof" that Khalil poses a threat.

Khalil holds a green card and is married to a U.S. citizen. ICE revoked his permanent residency at arrest, according to his attorney Amy Greer.

Sarsour Is Out. Khalil Is Not.

The Sarsour case, covered in detail in our June 20 reporting, illustrates how the same Rubio memo strategy has fared across multiple detentions. Salah Sarsour, president of the Islamic Society of Milwaukee, was arrested March 30, 2025, on immigration grounds. On June 18, 2026, U.S. District Judge James Hanlon, a 2018 Trump appointee, ordered Sarsour released, finding evidence supporting a substantial First Amendment retaliation claim, according to Urban Milwaukee. Sarsour's case now proceeds in immigration court while he is free.

Khalil has been in ICE detention in Jena, Louisiana for over 15 months. He was forced to miss the birth of his child.

The Government's Strongest Argument

The administration's position is that the Secretary of State has broad statutory authority under the INA to determine that a non-citizen's presence is against U.S. foreign policy interests, and that judicial review of that determination should be narrow. Rubio's memo specifically frames Khalil's activism as undermining U.S. efforts to fight antisemitism, a legitimate federal policy objective regardless of how one views the underlying politics. Supporters of the administration's approach argue that green card holders are NOT citizens, that the executive branch has historically wide latitude over foreign nationals and immigration, and that courts have generally deferred to the State Department on foreign policy judgments.

Those arguments have not prevailed so far in these specific courts. Judge Farbiarz found the statutory provision itself too vague to survive constitutional scrutiny as applied here, which is a different and harder problem for the government than simply losing a discretion argument.

Where This Goes Next

Khalil's team has three active legal tracks: the preliminary injunction ruling still pending before Judge Farbiarz, a bail motion, and a motion to return him to New Jersey from Louisiana. The ACLU of New York and ACLU of New Jersey, alongside attorneys from Dratel & Le, are handling the case.

Khalil has NOT been charged with any criminal wrongdoing, and no disciplinary proceedings against Rubio or DHS officials have been announced. These are civil and immigration proceedings.

The genuine unresolved question is whether Judge Farbiarz, having already signaled the statute is likely unconstitutional as applied, will issue a preliminary injunction that actually frees Khalil before the underlying immigration case concludes. That ruling, still pending as of June 20, 2026, is the next concrete legal milestone in a case that has now stretched more than 15 months.