Before moving forth to the nuts and bolts, let’s clear the air. Mahmoud Khalil is not in this country on a visa. Rather, he is a legal permanent resident (aka LPR) of the United States. The government pretty much* concedes that he is an LPR in the Notice to Appear filed with the Immigration Court against Khalil. A Notice to Appear is the immigration court equivalent of an indictment, and it contains the charges of deportation to which Khalil must respond in Court.

No one is “revoking” his visa or green card. To be removed from the country, one of two things must happen: (i) Khalil stipulates to the order of deportation; or (ii) there is a final hearing in immigration court, and Khalil loses.**

Since Khalil was admitted and became a legal permanent resident, he is entitled to due process. This is different from those seeking admission to the U.S., as they are requesting a privilege to enter, and have no constitutional rights. Even those who passed through our gates illegally are afforded due process and “may be expelled only after proceedings conforming to traditional standards of fairness.”

As of March 9, Khalil was in an immigration jail in Jena, Louisiana, and his lawyers filed a petition for a writ of habeas corpus in the SDNY while Khalil was at Elizabeth Detention Facility in New Jersey. Khalil is legally entitled to ask for a bond from an immigration judge, while his habeas petition remains pending. I’ve read that the petition was granted, and that his lawyers are also arguing for his release in immigration court.

Now, when deciding whether to release Khalil on bond, the immigration Judge considers whether he is a danger to people or property, whether he is a flight risk, or whether he is a threat to national security. This sounds familiar to the standards in criminal court, but what may keep him inside while all this plays out will probably be none of those factors.

This is where I say that I’m not judging his lawyers or their strategy, but I will tell you what may get him released.  Armchair, something something, Tuesday morning quarterbacks. I don’t know the timing of Khalil, his family, or his people going to the press, but immigration courts – particularly those for detained folks – can be particularly isolated places. They can be very far behind when it comes to current events and country conditions, in this country and elsewhere.

Allegation  number 4 in the Notice to Appear can stick out (it’s for his pro-Hamas activities, but no specifics are ever listed), but there are no charges of him being convicted of anything, particularly anything involving drugs or large sums of money. Present a nice bond package to the court, get a judge who may follow the law, and ordinarily, you may get him out.

Now that this is all over the news, it’s too hot, and his chances of being released on bond by an immigration judge are very low, even with a spectacular argument for bond. One shot for him is that he scores an Immigration Judge who senses that she is about the get fired by Trump (many have been fired, and many more will be), and cuts him loose as an ultimate middle finger to the orange man on her way out. The same may apply to the final hearing, also known as the individual hearing.

There are no juries in immigration Court, and the Judge has the final say. Now that Khalil is in immigration court, the government has to prove allegation number 4, and the single charge of removal which claims that Marco Rubio has “reasonable ground” to believe Khalil’s stay in the U.S. will have adverse foreign policy consequences. Khalil can cross examine government witnesses, and present evidence. Hell, he may even subpoena Rubio and others to testify in court. I know I would. Aside from fighting the factual accusations for deportation (e.g., “what flyer?”), Khalil’s got a great First Amendment argument for his defense, and FIRE already did a damn fine job explaining it.

The stakes are higher when the government has made it crystal clear that it will not abide by Court orders coming from Article III Judges. It’s one thing to be sent to an immigration jail, and then sent back to your country of origin. It’s another to be sent to one of Bukele’s Spartan accommodations.

Khalil, and his views, may be repugnant to many. But to state the obvious, and to raise the sights, he gets the same protections as any other person who made it through our borders. Besides, the government has already smelled blood and made it clear that it’s not giving him (or his family) an inch. Giving no quarter would be the best response.

*”Pretty much” because someone specializing in bureaucratic prose placed “OR” before the statement that Khalil is an LPR. In practice, he can defend himself in immigration court as an LPR.

**Should he lose in immigration court, he can appeal to the Board of Immigration Appeals. If he loses there, he can appeal to the Circuit Court of Appeals. There is a huge backlog in immigration courts to begin with. This process could take years, unless he remains inside and decides not to fight further.