A red herring: Even the government hasn’t accused him of illegal speech, nor have they charged him with any criminal or (non-immigration) civil violation at all

A red herring: Even the government hasn’t accused him of illegal speech, nor have they charged him with any criminal or (non-immigration) civil violation at all. If his speech was of that constitutionally unprotected kind, they very likely would have done so. The government has made two accusations against Khalil, both related to immigration law only. The one which motivated today’s ruling is the less legally interesting one, about misrepresentation in his permanent residence application. There are a bunch of questions over who intended what, what was or wasn’t material or willful, what would or wouldn’t have affected the decision to grant permanent residence, and who manages to meet what required burden of proof. It’s probably selective prosecution of that immigration law claim because of his protected speech, but unfortunately the Supreme Court has already upheld that in the immigration law context even though it’s usually unconstitutional otherwise. The immigration law claim they started with against him is a very vague and broad one which basically lets the Secretary of State freely decide in his discretion that a noncitizen’s speech is sufficiently bad for foreign policy, even if it’s otherwise legal, and then render the person deportable. President Trump’s late sister Maryanne Trump Barry, a former US federal judge, previously ruled this provision unconstitutional, and her ruling was only overturned on procedural grounds that have nothing to do with the merits. We will see what happens in Khalil’s case. He might get deported if he can’t overcome the misrepresentation claims, or he might get to stay if he manages both to overcome that and to get the scary broad foreign policy ground of deportability ruled as unconstitutional in his case (or in general). It will probably be one of those two outcomes. Upholding the foreign policy ground of deportability as constitutional would give a frightening amount of unreviewable control to one political appointee. Permanent residents deserve more certainty than that about how to keep their status secure. But none of that has to do with the kind of illegal speech that normally falls outside First Amendment protections in criminal court, since even the government hasn’t claimed that Khalil did that.