So to Speak Podcast Transcript: On Mahmoud Khalil

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: All right, folks. Welcome back to So to Speak: The Free Speech Podcast where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. Today, we’re looking at the story that’s captured the headlines involving Mahmoud Khalil. To do so, we are joined by Marc Randazza, who is a First Amendment attorney with Randazza Legal Group. Marc, welcome back.

Marc Randazza: Thank you. Yeah. I love being on this show.

Nico Perrino: We also have a new guest who I hope will love being on this show as well. Jeffrey Rubin is an immigration attorney with Rubin Pomerleau in Boston. Jeff, welcome onto the show.

Jeffrey Rubin: Thank you, Nick for having me. I appreciate it.

Nico Perrino: All right. So, let’s set the scene a little bit. Mahmoud Khalil is a green card holder who was detained around 8:30 p.m. on Saturday, March 8th. He was quickly moved to Jena, Louisianna. According to the Notice to Appear document which I’m holding in my hands right now from the Department of Homeland Security, he is being sent to Jena, Louisiana for deportation under the Immigration and Nationality Act which allows the Secretary of State to deport someone if they believe that the individual’s presence or activities in the United States would have potentially serious, adverse foreign policy consequences for the United States.

So, why are they going after Mahmoud Khalil? Why is this something that is capturing headlines? Well, he was involved in the Columbia protests, which have a mix of unprotected, unlawful conduct such as vandalism, building occupations, and what not and lawful speech. Sorting out who was responsible for what is very difficult. But in the Khalil affair, you look at the statements from the government officials justifying his arrest and detention. You have Marco Rubio saying that we’re revoking visas and green cards of Hamas supporters in America so they can be deported.

President Trump hailed the arrest of Khalil saying we know there are more students at Columbia and other universities across the country who have engaged in pro-terrorist, anti-Semitic, anti-American activity. The Trump administration will not tolerate it. The Press Secretary, Karoline Leavitt said, “This is an individual who organized group protests that not only disrupted college campus classes and harassed Jewish American students and made them feel unsafe on their own college campus but also distributed pro-Hamas propaganda, fliers with the logo of Hamas.”

I’ve been doing some research on Khalil. It’s kind of unclear what role he had in the protests. I believe he was a mediator or a negotiator between the university and the coalition of student groups that partook in the encampment. He also, obviously, had some sympathies for the encampment and the post October 7th protests that he would describe as pro-Palestinian. Marco Rubio and the Trump administration clearly are calling them pro-Hamas. But the justifications obviously raise First Amendment questions, free speech questions. What are the rights of foreign nationals in this country? Permanent, lawful residents with green cards.

So, we’re going to try and unpack that all here. That’s why we’ve got a First Amendment attorney. That’s why I’ve got an immigration attorney. But, Marc, I’ll start with you looking at it with a First Amendment perspective.

Marc Randazza: Well, to start off, these are my irony pills that I was going to take extra of them. Because if you take what this conservative government is saying, this sounds like woke ass bullshit from campuses over the past generation. Look, I get it. Let me also set the stage with saying I despise this Khalil guy. I despise anybody who has any support for Hamas. I sit around a table of Jews, and I am the one who is more pro-Israel than any of them. I get yelled at by them for being too pro-Israel. But from a free speech perspective, this is chilling. This is a guy who we let in the country. Maybe we shouldn’t have.

This is a guy we gave a green to. Maybe we shouldn’t have. But having made those mistakes, he is now afforded due process. He is now afforded First Amendment rights. So with him being here, for the government to say that the thing we have against him is that he supports a movement we don’t like and that he’s engaged in protests that we don’t like, I can’t think of anything less American. Accuse the guy of jaywalking for God’s sakes. Accuse the guy of something unlawful even if it doesn’t fit the facts. Because you know if the government had a fact that was more than protest, wouldn’t they put it out there?

Nico Perrino: Can they deport this guy for a good reason or no reason? I mean, what is the law as applied to someone in his situation with a green card?

Jeffrey Rubin: Right. Let’s go right to the statute. Serious, adverse foreign policy consequences.

Marc Randazza: That’s to get rid of him, right, Jeff?

Jeffrey Rubin: Right. By the way, I was raised Jewish. Both parents. I was, bar mitzvah in 1983. I have been an immigration attorney. I fell right into the field as it became sort of a new interpretation of a new statute at the time. It was when the 1996 IIRI bill came out. It was a big bill signed by Bill Clinton. I got into immigration right around 1998. This, to me, is a first impression. This is the first time I’ve seen anything like this. The last time I saw anything like this was maybe the special registration against Muslim people after post-911. Again, this was not applied to lawful, permanent residents.

Here is the difference here is that this gentleman is a lawful, permanent resident meaning that he has already been vetted and screened. Certainly, there are three bodies of immigration law. There’s citizenship. There's a disability. There’s removability. We’re dealing with removability here. They could have a suspicion that you’re selling drugs and deny you a green card. They can deny you citizenship if you say I’m a Communist, or I support totalitarianism, or terrorism. But here’s a lawful, permanent resident. You are demonstrating an intent to reside in the United States permanently.

Certainly, the green card could be taken away if you show an intent not to reside here permanently. You’re outside of the country for more than a year. You’re just only in the United States for one day every year. You’re not showing an intent to be here all the time. If you commit certain crimes and you’re convicted, then those are also grounds for removability. So, just looking right at the law. You have to have been selling drugs, possession of certain, be engaged in acts of violence, and be convicted. There’s been lots of different definitions of that.

Now, here, what would be the reasonable ground to believe that he would have potentially serious, adverse foreign policy consequences? Well, just getting students on a campus to voice their opinion, or freedom of assembly, or freedom of speech in protest, something that they view to be too many innocent civilians dying on one side of Israel reacting to the October 7th events with too much force or not doing it in a way that would spare more civilian lives, I don’t see how this gets to foreign policy consequences.

Marc Randazza: Let’s make it even more offensive. Let’s say he was protesting saying North Korea should rule the United States because they have a better system. Hail, Juche. Even if he was a Nazi, for God’s sake. It seems to me problematic if that’s all you’ve got. There is a First Amendment interplay here. Right. Kleindienst versus Mandel was a 1972 Supreme Court case where they didn’t want to let a Belgian Marxist into the country on a visa. Now, it’s one thing to say that the First Amendment did not, a 6-3 decision, saying the First Amendment doesn’t guarantee the right to compel admission of a foreign national into the country.

So, we can have a membrane that you can’t get through with certain ideas or certain things that might be protected as First Amendment protected speech once you got here. But that’s to break through that outer shell. Once you’re through the shell, you know, Bridges versus Wixon was a Supreme Court case in 1945 where they wanted to deport an Australian immigrant who was affiliated with the Communist party. We’re talking 1945. A darn good time to throw Communists out of the United States. But even then, they said you couldn’t deport him because legal resident aliens possess First Amendment rights to free speech and free press.

Deporting him solely on guilt by association without any evidence of personal involvement in illegal activities is unconstitutional. We haven’t overruled that. So, this is inconsistent with Bridges versus Wixon. But it’s just inconsistent with what we are as a people.

Nico Perrino: I want to step back and ask you about the distinction about two things that Marc was talking about. Someone who wishes to get into the country and someone who is already here. You were saying earlier that it sounds like if you were here and you’re either a student visa holder or a green card holder, to get deported typically what needs to happen is you need to be charged and convicted with a crime.

Jeffrey Rubin: Right. A student visa is temporary. That’s what Secretary of State Rubio relied upon in his compelling, to many people, discussion of why the government is doing this. They said if we knew before he came in he was going to be riling up people, preventing students from attending classes, getting everybody into a tiff about Hamas, and promoting propaganda about Hamas; we wouldn’t have let him into the country. Now, that is true. There’s a wide discretion. There’s a lot more grounds to deny somebody to be here temporarily.

The issue here is once here permanently, why wouldn’t you get the full protections of the Constitution if you’re going to be in a place that celebrates all of these freedoms through our U.S. Constitution if you are going to be here permanently? So, I do think that it is a slippery slope. It is very alarming if that’s all it is. I’d love to see what the government has to offer beyond being present at protests or, as you said, a go between the students and the administrators or even handing out leaflets or so forth that support his position. I thought that maybe there would be some sort of financial connection.

There is a terrorism bar materially supporting terrorism. Again, that is also for admissibility but it certainly could be logically extended to somebody being removed. But I don’t see any evidence that there was any financial support, any attempts to engage in any actual warfare or activity here that supports Hamas. I think that the words pro-Hamas are thrown around, but I know that from people that object to innocent civilians dying in any war or any situation. They’re not necessarily pro whatever group happens to be governing that country.

So, there is a huge difference between protesting, freedom of assembly, freedom of speech, and actually participating in, supporting, and being in the way of some foreign policy approach from the U.S. government.

Nico Perrino: I was looking at some stuff over the weekend. People were throwing out different green card holders or individuals here on visas. People like John Oliver, Christopher Hitchens, or Jordan Peterson, for example, who are very public. They speak out. They come to America. They’re public intellectuals. Charlie Cook even from National View, who is now a citizen, but was previously a green card holder. You could only imagine if you’re one of these individuals and you’re contrary to the administration. If you’re Christopher Hitchens, contrary to the Clinton administration, for example, in the ‘90s.

You might see this precedent play out. Keep your mouth shut. But I wanted to ask you, Jeff, because this is something that’s also going around a lot. That he lied on his application. “And if you tell us when you apply for a visa I’m coming to the U.S. to participate in pro-Hamas events, that runs counter to the foreign policy interest of the United States of America. It’s that simple. So, you lied. If you had told us that you were going to do that, we never would have given you the visa. Now, you’re here. Now, you do it. you lied to us. You’re out.” I had looked at what I had seen floating around on the internet about some of these green card applications.

I hadn’t seen anything that had matched language endorsed or espoused terrorist activity. I had seen a lot of questions that related to things that are more like material support like financials.

Jeffrey Rubin: But, Nick, you have a copy of the Notice to Appear.

Nico Perrino: I do. I do. They’re not citing any of that.

Jeffrey Rubin: So, what does it say to us? Where does it say that he’s been involved in a misrepresentation? Because that’s always on a Notice to Appear. That’s a very easy one to put down there. You misrepresented material X when you applied to either have your visa, student visa, or when you applied for lawful, permanent residence. So, there are waivers for that. That part is not on there. It’s not on there.

Marc Randazza: The one thing that truly makes us exceptional as a country is our commitment to wide open and robust debate. I want this guy thrown out of the country. I’m thrilled with the idea of this guy getting sent to Gaza and let him go live in the filth of Gaza. I want him gone. I would love to see when these people are blocking the entrances to buildings, you know, 1960s style police coming in with truncheons beating them. Love to see it. But you know what? I’m not willing to give up what it is to be America for that. I’m allowed to have those emotions. I have those emotions.

But then, what kicks in is I’m a God damn American. The first thing you out to think is when you start feeling that way, you better check yourself. Take a look at the First Amendment and say what am I willing to surrender to get rid of these people that I dislike. When people say, well, he’s an alien, he doesn’t have these rights. First of all, I think he does. But if he doesn’t, well, why don’t we experiment with an amendment that is not so damn important. Let’s go stick some troops to go live with green card holders and see how the Third Amendment holds up.

If we’re just going to put a couple of sergeants on your couch for a few days, then we’ll see if they have Third Amendment rights if they have First Amendment rights. Right? I mean, we can’t do unlawful search and seizure on people. We don’t deprive them of council. We don’t deprive them of due process. Everybody gets due process. Everybody gets freedom of speech here. Everyone no matter how gross you are. Everybody gets to have freedom of speech here. So, why shouldn’t this jerk off?

Jeffrey Rubin: By the way Marc, there are some things out there saying that he shared Sabbath dinners with Jewish people. He was participating with the concept of seder. He was not accused of any other crimes. I want to be careful to not be xenophobic here. I think that one of the first clients I had back in 2005 was a Palestinian not recognized by the U.S. government as that. He was recognized as being stateless. He did have Jordanian citizenship. But was here. Had violated a technical part of his visa. They did the same thing. Locked him up. Looked to remove him. Essentially, all he had was the asylum claim.

He wasn’t a lawful, permanent resident. So, it was actually someone understandable. But the guy ended up being a researcher for rheumatology for kids at children’s hospital and had published articles. The immigration judge when the Homeland Security prosecutor came right out – I tried to point these things out that this is who he is. There was an objection made because we want to just have blanket opinions about people based on their religion or what part of the world they’re from. Is this the type of person we really want to deport?

There are many, many people from Syria and the Middle East that are extremely important members of our society, citizens, doctors, and researchers. But all that being said, what does it take to get deported? I guess that’s all it takes is to show up at school and say I don’t like the fact that so many people are dying in a war that the U.S. is involved with. Since I don’t agree with what the current President has to say about – certainly, we all want Jewish people respected. We want to celebrate Judaism. I am Jewish. I went to a party just this past Friday night. We don’t want Jewish people harassed. We don’t want Jewish people to feel uncomfortable.

I don’t want antisemitism to proliferate. Sometimes, I think maybe that’s what’s the flipside of all of this. If you’re going to be this heavy handed with somebody just voicing an opinion, is this going to exacerbate antisemitism?

Marc Randazza: Good point.

Jeffrey Rubin: In the future make it easier to deport people who just simply disagree with –

Marc Randazza: Great point. I argue this about hate speech issues with my European friends. I teach a Freedom of Expression course in Italy every year. I cannot drill it through the heads of people there no matter how hard I try. At some point trying to ban some kind of speech ennobles it. You know. Hitler was not allowed to speak in Weimar, Germany. Goebbels used that as a justification. It almost romanticized Hitler’s speeches. He put out a poster that said two billion people, which was the population of the planet at the time, can speak in Germany but not this man. Why do you think that is? When we actually take a point of view that really I’d rather see us make fun of it than ban it.

You ennoble it. Where is there more antisemitism in Europe or here? Because it’s banned in Europe. It’s illegal in Europe. But I'd rather walk down the street in the United States with a name like Rubin than down the streets of Mau Maus or down the streets of Paris. Even much to my chagrin, I’m also an Italian citizen. I don’t think we’re doing a very good job of policing antisemitism in Italy despite the fact that you’ve got Carabinieri surrounding every synagogue to try to protect them. We are doing a much better job in the United States of policing hate speech than they are in places where they actually police hate speech.

Nico Perrino: Well, you mentioned that it’s very hard for you to get it through an Italian’s head, the harms in policing hate speech. How it has this boomerang effect. A backfire. The Streisand effect. It becomes that poisoned fruit so to speak.

Marc Randazza: Yeah. It becomes punk rock kind of.

Nico Perrino: Yeah, I guess. But here in the United States just watching the conversation surrounding the Khalil affair unfold, it seems like what Americans just don’t understand is why someone who is not a citizen of this country would be bestowed with Constitutional rights. I happen to think that the Declaration of Independence was correct. That we are endowed by our Creator with certain inalienable rights among them life, liberty, and the pursuit of happiness. Core to liberty is freedom of speech.

Marc Randazza: God, I love that.

Nico Perrino: If you view freedom of speech as a fundamental human right, you can’t deny it to someone regardless of their citizenship status to the extent you are subject to the jurisdiction of the country which is bound to accept it.

Marc Randazza: Yes. Damn, preach, brother!

Nico Perrino: But then, I just have this whole body of immigration law that I’m looking at. I’m watching the conversation unfold around you having different requirements for applicants. Then once you’re here, maybe there are different requirements for visa holders and green card holders.

Jeffrey Rubin: That’s a great point. It highlights that there are a lot of illogical, nonsensical, contradictory immigration laws. They write statutes. They write regulations. They don’t agree with each other. They propose a statute like this to simply let the Secretary of State determine what makes a serious adverse to foreign policy. So, that is why I’ve had some fun for the past 27 years, and why it’s so easy sometimes to litigate in the federal court. We even had a case go all the way to the U.S. Supreme Court in 2018, which turned immigration law on its head for a while. It was basically statutory.

They were supposed to put some information on a piece of paper to start the deportation process, the time and date of the first court hearing. Immigration officials act unreasonably and illogically all the time. That results in these Draconian consequences like people getting deported. Now, putting the date and time on a piece of paper to start the deportation process, well, they mail you the date and time years later. People have moved or couldn’t find it. They say, well, you’re deported. We’re just going to grab you and toss you out of the country.

So this, to me, just seems more proof that they don’t want immigration laws necessarily to be taken seriously. To your point, Nick, when you step over the border from Mexico with just whatever you have on your back, you’re supposed to be accorded the protections of the Constitution. I think it was John Ashcroft who said back in the mid-2000s that they should not have Constitutional protections. That was a decision he made simply as the Attorney General at the time. These unilateral decisions are made all the time by Attorney Generals. That was actually –

Marc Randazza: Then, let’s change the Constitution. If you want me to support an amendment that says if you come across the border illegally you don’t get Constitutional protections. I’ll vote for it. But until we change it, it’s got to be more than just words on paper. The Soviet Constitution protected freedom of speech and freedom of conscience better than the United States Constitution did if you just looked at the words. But in practice, it didn’t work that way. Scalia taught my Com Law one day and gave a beautiful lecture on that I’ll never reproduce. But talked about how it’s got to be more than just words on paper.

So, they do due process. They have free speech rights. This is something that happens the moment you set foot on American soil. That’s the great thing about it. We can look at people like Hamas and say, no, the way that you run your place sucks. The way that we run our country. This is the superiority of our system that we can tolerate dissent that would get you thrown off a roof in Gaza or get you thrown in jail in North Korea. Hell, even in South Korea it might get you thrown in jail. This is why I choose to protect this Constitution and not my other Constitution, which happens to be the Italian Constitution. I’ll let somebody else do that job.

Jeffrey Rubin: When you start pushing students, when you start harassing students, now you’re committing crimes. Right. So, how about charging them as you alluded to before with a crime first. Be convicted of that crime. Then, have him removed for that. But when you start getting into this broad approach of, well, we’re now the through police. We’re going to say now you can’t even speak out about something that the U.S. disagrees with. It’s chilling. It’s meant to chill.

You know, the Muslim travel ban was meant to chill. This is meant to chill. The problem with this administration is that there’s a chill being placed on the First Amendment. It seems to me that the First Amendment is only for certain people and not for everybody. That is not the value our country was founded upon.

Nico Perrino: Jeff, am I right to kind of close out here, that when you’re taking immigration clients and get one of these notices here that they’re going to be deported that they’re charged with a crime typically?

Jeffrey Rubin: Yes. Absolutely or what you alluded to earlier. There may have been a misrepresentation on that green card application. It may be something that they found out that made them ineligible.

Nico Perrino: That would be on the Notice to Appear, right?

Jeffrey Rubin: Yes. They can amend it but it’s still going to be there.

Marc Randazza: Can they go back and say, I’m not saying there’s any evidence of this, but when this guy came into the country, if he was lying on his application, can you then revoke his status because of that? Set aside the First Amendment issue.

Jeffrey Rubin: Willful and material. He intended to do it. It actually mattered. It couldn’t just be something they picked out of the sky, but it actually mattered to eligibility, then sure. But we’re not seeing that on that notice.

Marc Randazza: When it comes to immigration stuff, this is the guy I call. He’s the only immigration lawyer I know who’s done a Supreme Court case on immigration law. He’s forgotten more about it than I’ll ever know. So what I’m learning from you today is two things. 1) If you’re going to let them in, there is that shell. We could go back and retroactively say you lied. But it’s got to be a material lie. You had to have known it at the time. So for all we know, he came into the United States full of stars and stripes and eagle screams and then landed here. All of a sudden, fell into a bad crowd and started thinking otherwise.

Jeffrey Rubin: Yeah. Or October 7th happened. It was a horrible, horrible, miserable day for Jews and for Israel, of course.

Nico Perrino: For the whole world.

Jeffrey Rubin: Then, the Israeli government reacted. Then, he takes issue with whether the Israeli military should be going into schools or hospitals if they’re being used as human shields. But here’s the thing. Are we going to deport people for just simply staging a protest even if we disagreed?

Marc Randazza: Jeff, the other wing of this is we can throw you out. Now, set aside I may jump in as a First Amendment lawyer and say we shouldn’t be able to. But we can throw you out if you do something, I think you said, serious, adverse foreign policy consequences.

Jeffrey Rubin: Right.

Marc Randazza: But whatever there has to be doing work. I mean, it’s serious, adverse foreign policy consequences.

Jeffrey Rubin: This does seem to be extremely broad. What happens to overly broad statutes? Are they enforced?

Marc Randazza: Well, it all depends on the politics of the federal judge and the politics of the other party nowadays.

Jeffrey Rubin: So, this guy, I don’t know how old he is. I guess he’s in his 20s. I don’t see how this passes the muster. I don’t see this example. I don’t understand why the government would want to use this as the example to meet this very obscure statute. I think it’s much –

Nico Perrino: I think when they arrested him they thought he was just on a student visa. Then, they arrive at his door. He says I’m a green card holder. I guess he got his green card according to the Notice to Appear in November of 2024. So fairly recent. But you would imagine, okay, you get your student visa before you arrive at Columbia. He graduates from Columbia in December of 2024. So, he’s had the student visa for a while presumably before October 7th. October 7th happens.

Jeffrey Rubin: You don’t get your green card that fast. Right.

Nico Perrino: Yeah. Presumably before they give him the green card, they’re looking into him. Right? At least whatever is on the application.

Jeffrey Rubin: Oh, of course.

Marc Randazza: In the prior administration, probably not. They probably were like, great, we want more of these kinds of douche bags. But the things is having let him in, we’ve got to show Constitutional respect.

Nico Perrino: Let Jeff get in here on that process.

Jeffrey Rubin: Yeah. The process typically takes years. I mean, if you look at the processing time for 45, which is the form you use to get a green card, then that is taking at least a year and a half. They take fingerprints. Often, there’s an interview. At the interview, there’s many questions asked on that form. He was fully vetted. There was absolutely nothing that they had on him before they gave him a green card. Certainly, they would have sought to deny a green card.

I’ve seen people get denied green cards all the time for the most minimal of behavior. Shoplifting a $5.00 pack of gum. This was a long process. But more than that it does just chill me as an immigration attorney. Just when I thought I’d seen it all, you know, here comes this. So, how do you –

Marc Randazza: I was just going to ask you that without revealing any particular attorney/client advice, are you finding yourself advising your clients maybe they’ve got to be more careful about what they say? Or did you advise them about that before?

Jeffrey Rubin: There’s been all sorts of nonsensical approaches since Trump took office. People traveling with green cards that are supposed to be let back in are now getting detained for hyper technicality, you know, it’s not even a violation. They’re just making a stretch to say there’s been violations. Maybe your green card is under review at the immigration court. Like you said due process but ignore due process. But saying, hey, the fact that it’s even under review, we’re going to take you into custody and not let you into the country. But here, it’s much different. I can’t find myself with any logic to advise anybody of anything.

The other alarming aspect is they took him into custody and moved him down, as you said, to Louisiana to a remote place. Something that I usually see reserved for people who have been convicted of selling large amounts of fentanyl or committing acts of violence like attempted murder or gun violations, you know, what would be considered serious by the government.

Marc Randazza: To move him to Louisiana or to move him at all?

Jeffrey Rubin: Just to arrest him. To be arrested, they have to show that he’s a flight risk or a danger to the community. So, again, we’re getting into this danger to the community because he’s speaking.

Marc Randazza: Yes, I’ve got a problem with that too. Okay. Again, this is where I’m ignorant and why you are here.

Jeffrey Rubin: Where’s the flight risk? He’s married to a U.S. citizen. She’s eight months pregnant. Again, I don’t know him. I don’t know what more the government is going to allege. Certainly, we don’t want to promote antisemitism in the is country. I grew up supporting Israel and all of Judaism. With that being said, I have many friends who are not Jewish and may be Christian, Muslim, or what have you. We know that there’s a lot of different sides to this situation in the Middle East. It’s gone on for thousands of years. It really just feels contrary to everything I’ve seen as an immigration attorney of 27 years. Have the bar be higher.

Nico Perrino: The jurisdiction question is interesting. So, he is arrested. First, he’s brought to the Federal Center, I guess, in Manhattan but then transported over to New Jersey and then transported to Louisiana.

Marc Randazza: That was slick.

Nico Perrino: His corpus petition was filed in the 2nd circuit because that’s where he was living. That’s where the Notice to Appear comes from. 26th Federal Plaza, New York, New York. But at the time the habeas petition was filed, which I think was 4:40 a.m. on March 9th. He was arrested on March 8th. He was actually in New Jersey which is outside the 2nd circuit. So now, there’s this jurisdictional question. Then, he was transferred to Louisiana.

There’s speculation he was transferred to Louisiana for one and or two reasons. One being that’s the last place you go before you get deported and/or two which is in the 5th circuit. They get better court precedent in the 5th circuit.

Jeffrey Rubin: We’ll have to save this for another podcast. But when I first started practicing back in 1998, there was one detention center up in New Hampshire which had a very small number of people. Of course, detention tactics have exploded. These are administrative laws. This is an administrative body of law, the immigration law. I don’t think it was intended to be used in such a criminal way. This is the mojo sometimes of immigration officials to move them around from state to state to avoid the jurisdictional application of federal law in that particular state.

So, this is exactly intentional. We’ve seen it over and over. We’ve had to fight many jurisdictional issues. During COVID, for example, there were immigration court hearings from Virginia by video. They tried to apply that law to all the people that are up here in Boston. We had to fight for that. This has been going on for many years. Yeah, I think that maybe the immigration laws need to be rewritten to be more consistent with the criminal code in mind. My prediction is that he is not deported. But what do you think, Marc?

Marc Randazza: I mean, I play one position. It’s the First Amendment guy. I want to at least see everybody who gets deported to have done something to warrant it. Now, it’s not just the First Amendment.

Jeffrey Rubin: But what is that something?

Marc Randazza: Due process. Anything. I’ll take anything that you say fits the standard.

Jeffrey Rubin: Right. That’s why we are a country of laws. Right. So, it’s a rule of law.

Marc Randazza: Right. If somebody comes to me and they say, hey, we’re going to put you in charge of whether we deport somebody or not, my first question is going to be, Jeff, does it meet the standard? If you say, yes, it meets the standard, historically this has happened, we’ve thrown people out for this in the past. This isn’t new. Then, I’m going to say, okay, but does it comport with the First Amendment?

In this situation, this seems to fail the logic gate at two junctures. Juncture one, you can’t come up with in 27 years of practice, and practice I presume in 27 years you have a wealth of knowledge going back at least 75 years of how these laws have been applied. You can’t come up with a single example of this happening before.

Jeffrey Rubin: Right.

Nico Perrino: Well, I think more is going to come out about this case. It’s going through the courts. I was listening to something on the radio from another immigration attorney talking to Bloomberg saying there’s like 12 different Constitutional issues at play perhaps in this one case. In the meantime, Marc and Jeff, I appreciate you both taking the time to speak with us today.

Marc Randazza: I appreciate you. I appreciate all that FIRE does. You guys are simultaneously right wing slaves and left wing slaves by everybody, which means you’re right in the right spot doing everything right. So, anything I can ever do for FIRE, you’ve got it.

Nico Perrino: I appreciate it, Marc. Jeff, thanks again.

Jeffrey Rubin: Thank you for having me.

Nico Perrino: That’s Marc Randazza, who is a First Amendment attorney with Randazza Legal Group and Jeffrey Rubin, who is an immigration attorney with Rubin Pomerleau in Boston. I am Nico Perrino. This podcast is recorded and edited by a rotating roster of my FIRE colleagues including Sam Li, Aaron Reese, and Chris Maltby. It is co-produced by Sam Li. To learn more about So to Speak, you can subscribe to our YouTube Channel or Substack page, both of which feature video versions of this conversation.

You can follow us X by searching for the handle Free Speech Talk. You can send feedback, if you have it, to sotospeak@thefire.org. Again, that is sotospeak@thefire.org. If you enjoyed this episode, please leave us a review wherever you get your podcasts, Apple podcasts, or Spotify will work. Reviews help us attract new listeners to the show. Until next time, I thank you all again for listening.