How Cold War Precedents Shape First Amendment Protections for Legal Permanent Residents Today
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In recent months, several immigration enforcement actions have taken place against legal permanent residents (LPRs or green card holders), a group generally thought of as relatively secure in their immigration status. Some of these events have illustrated how political expression related to Palestine and U.S. foreign policy has become a battleground for immigration enforcement and executive power. Mahmoud Khalil and Yunseo Chung, two LPRs studying at Columbia University, were subjected to deportation proceedings in March due to their participation in pro-Gaza protests. These events raise questions as to the extent to which LPRs are protected by the First Amendment, specifically when their political speech conflicts with U.S. government’s priorities in foreign policy. The answer is one with surprising historical roots.
Mahmoud Khalil v. Donald Trump
Mahmoud Khalil, an LPR, was arrested in New York on March 8th, 2025, with no prior notice in his home in a Columbia University residential apartment building. Khalil had no criminal record and had not been accused of any crime prior to his arrest. Khalil had helped organize and played an organizational role in student pro-Palestinian protests at Columbia University, including serving as a lead negotiator for the Gaza Solidarity Encampment. Following his arrest, Khalil was detained for over three months on two charges. The first was the previously little-known and seldom used “foreign policy grounds” provision of the Immigration and Nationality Act (INA) which allows for deportation if the Secretary of State deems an alien's presence in the U.S. poses "potentially adverse foreign policy consequences". The second charge was immigration fraud, encompassing allegations of willful misrepresentation of material facts on Khalil’s green card application in order to conceal group memberships such as his affiliation with the campus group Columbia University Apartheid Divest (CUAD) and employment history such as a past six-month unpaid internship with the United Nations Relief and Works Agency (UNRWA) that could have affected his eligibility to obtain a green card. These allegations have been called “baseless” by Khalil’s lawyers, who have provided documentation showing the UNRWA internship on Khalil’s green card application, and argued that CUAD is not an official organization with individual members, but rather a coalition of various student groups. In his habeas corpus petition, Khalil alleged retaliation in violation of the First Amendment and due process violations under the Fifth and Fourteenth Amendments. He specifically argued that the government had detained him not due to criminal action or because his presence in the U.S. posed a threat to the government’s foreign policy, but as punishment for his political speech. This would not only violate his freedom of speech and political expression as guaranteed by the First Amendment, but also his right not to be imprisoned without fair legal process as guaranteed by the Fifth and Fourteenth Amendments.
In late June, Federal Judge Michael Farbiarz agreed that the government’s actions raised serious constitutional concerns and ordered for Khalil to be released on bail after 104 days in federal custody. The judge indicated that detention on the basis of political expression is unconstitutional, particularly for LPRs entitled to due process protections. However, this ruling might not stand in the end. Khalil’s legal battle is ongoing, and a ruling on September 12th ordered his deportation to either Algeria or Syria. His lawyers are currently appealing this ruling.
Yunseo Chung v. Trump
Another story following this same phenomenon is that of 21-year old Yunseo Chung, an LPR student at Columbia University who has lived in the U.S. since the age of seven. Unlike Mahmoud Khalil, Chung does not appear to have been a prominent figure in demonstrations at Columbia. However, she had participated in protests and advocacy for Palestinian rights and criticized the university’s disciplinary actions against student activists.
Following her participation in a protest on March 5, 2025, Chung was arrested and subsequently faced a series of adverse government actions, including the revocation of her LPR status, the issuance of an administrative arrest warrant, and the execution of search warrants at her residence. According to the complaint, these actions were taken under a government policy that targets noncitizen students for immigration enforcement based on their protected political speech and perceived support for Palestinian rights rather than criminal conduct. The complaint also details a broader context in which high-level government officials, including the President and Secretary of State, have made public statements and issued executive orders explicitly linking immigration enforcement to campus protest activity, particularly protests critical of U.S. foreign policy and supportive of Palestinian rights. The complaint alleges that these actions are part of a pattern of retaliation against noncitizens for their exercise of First Amendment rights.
Chung’s case highlights [[the question of to what extent LPRs are protected by First Amendment rights]], as her advocacy efforts were met with immigration enforcement measures that could result in her deportation. Chung’s legal battle is still ongoing, and deportation proceedings are pending. On June 5, a federal judge issued a preliminary injunction temporarily barring Immigration and Customs Enforcement (ICE) from arresting or detaining her, arguing that attempts to deport her constitute an assault on her First Amendment rights to free speech.
Legal Precedent
The law the government is invoking to justify the deportation of LPRs like Mahmoud Khalil and Yunseo Chung is the McCarran-Walter Act, officially known as the Immigration and Nationality Act (INA) of 1952. The Act came about during the Cold War and played a major role in shaping American immigration policy at the time as it authorized the deportation of LPRs on ideological grounds, particularly alleged associations with communist organizations. The Act has now been used to justify the deportation of LPRs by classifying LPR status as conditional, subjecting holders to revocation of status if deemed "national security threats” or found to have political associations that are only protected by the First Amendment for U.S. citizens.
Two Supreme Court cases from this time period, Harisiades v. Shaughnessy (1952) and Galvan v. Press (1954) tested the constitutionality of the McCarran Act, and, in doing so, established key legal precedents for the deportation of LPRs based on political affiliation. In Harisiades v. Shaughnessy, the Supreme Court upheld the government’s authority to deport three LPRs due to past Communist Party membership. The petitioners had argued that their deportation was in violation of the First Amendment, but the Court rejected this claim, asserting that advocacy of government overthrow constituted unprotected speech. It further affirmed that Congress had almost unlimited authority over deportation for LPRs, and reasoned that deportation is a civil rather than criminal proceeding. As a result, the application of ex post facto laws which would forbid the retroactive application of criminal statutes were not applicable. In Galvan v. Press, the Court extended the precedent from Harisiades v. Shaughnessy to punish previously held political affiliations, even if said affiliations were legal at the time. When Jua Galvan, an LPR, was placed in deportation proceedings due to previous Communist Party membership, Galvan argued that he had not known of the party’s advocacy of violence, and as such his deportation was unconstitutional. The Court ruled that a person's ignorance of the Communist Party’s violent aims was irrelevant for deportation purposes, and that knowingly having joined the Party was reason enough for deportation.
Together, both decisions demonstrate how the Supreme Court established a legal foundation that classifies deportation as a civil matter, allowing the government to sidestep constitutional protections that would apply in criminal proceedings. The precedents for Khalil and Chung’s immigration proceedings, forged in the context of the Cold War, have been reawakened today amid a new wave of ideological, political, and national security concerns. The government’s invocation of the INAto justify the removal of LPRs on national security and policy grounds underscores how unreliable First Amendment protections remain for all noncitizens when their speech is perceived by the government as conflicting with U.S. foreign policy interests.
Adelaida del Valle is a senior at Brown University studying Behavioral Decision Sciences. She is a Blog Writer for the Brown Undergraduate Law Review, and can be reached at adelaida_del_valle@brown.edu.
Simon Juknelis is a second-year at Brown University studying Computer Science and Applied Mathematics. He is an editor for the Brown Undergraduate Law Review and can be reached at simon_juknelis@brown.edu.