Introduction
A foreign national spoke out against a country he accused of killing his family. After fleeing that country to escape persecution, the U.S. government arrested him and tried to deport him. The U.S. government was protective of its relationship with the foreign country he criticized and wanted to silence him through deportation.
It used a little-known provision of the Immigration and Nationality Act (INA) that says the Secretary of State can claim their presence could have adverse consequences for foreign policy. A judge called his case “Kafkaesque,” meaning nightmarish, bizarre, and illogical, but the government was allowed to proceed with his deportation. The story is familiar but not new: it’s what happened to Mario Ruiz Massieu, whom the U.S. government tried to deport in 1993.
This is also similar to the story of Mahmoud Khalil, whom ICE detained on March 8, 2025, under the pretext of the INA’s same foreign policy provision. The U.S. government targeted Khalil because of his principled advocacy for Palestinians and his role as a lead negotiator for Columbia students protesting their university’s investments in Israel. All people in the U.S., including non-citizen immigrants, have the right to free speech through the First Amendment. Khalil, however, is a legal permanent resident. The government is pursuing his unconstitutional deportation to drive fear into the heart of the movement for Palestine. Khalil’s story is not an anomaly but shows how U.S. immigration law is actually a weapon against the people both inside and outside the country.
The country’s first immigration laws were developed in 1790. These laws codified white supremacy and set hard limits on the types of people who could enter and enjoy full privileges of citizenship. In 1952 the original Immigration and Nationalities Act shifted the focus to preventing undesirables who held communist and pro-worker beliefs. The foreign policy provision was enacted in 1990 as an extreme show of force given to the state to target and isolate individuals.
From white supremacy to anti-communism to global dominance, each successive period subsumes what came before, rooted in the interests of the capitalist ruling class: preserving and expanding capital’s dominance over working people and oppressed nations in the U.S. and abroad.
To the roots: White supremacy and the class function of immigration law
Immigration law serves two complementary functions: external exclusion and internal discipline.
Exclusion operates through borders and legal barriers to entry. The government uses race, nationality, and economic class as gatekeeping criteria for particular working-class populations deemed as threats. Pro-communist immigrants, whether from Cuba, China, or Italy, are not allowed to become citizens. Banning entire peoples means that the government can entrench racial demographics and prevent the development of solidarity. If the only Venezuelans one meets are anti-socialist, it is hard to perceive the mass support of the Bolivarian Revolution.
Discipline, on the other hand, works against people who are here. Immigrants fear deportation. To avoid that, they may accept lower wages and keep quiet about violations of their rights as workers. Even when immigrants have legal status, their status is often tethered to their employer or their school. This effectively gives their boss or university the power to deport them. For non-immigrants, employers use the threat of replacement by immigrant workers to accept less and pit workers against each other.
The first such law, the 1790 Naturalization Act, set up an explicit class and racial barrier for citizenship. Only free white persons could become citizens. Free white persons excluded Indigenous peoples, slaves, indentured servants, and anyone not European or their descendants.
Less than 10 years later, Congress enacted its first deportation law, the Alien and Sedition Acts of 1798. This was the first legal connection drawn between U.S. foreign policy and immigration. The U.S. at the time was at war with Revolutionary France. Under this law, the President could arrest and deport French revolutionaries and others deemed “dangerous to the peace and safety of the United States.” The law is still in force today and has been invoked by President Trump to deport Venezuelan immigrants.
The 19th century was marked by European and American colonization and attacks on China in what would be known in China as the Century of Humiliation. China, the country that invented silk, tea, paper, and gunpowder, had been a trading partner with Europe for nearly 300 years. The European market was in high demand for Chinese goods but had little to offer in return. They were forced to pay the Chinese in precious metals, running up a trade deficit. Over time the British began importing opium–the base ingredient of heroin–and began addicting the population.
When the Chinese imperial government attempted to ban opium sales, the colonial powers found their solution: the Opium Wars [1]. They pried open China’s internal markets and flooded the country with opium, overruling China’s attempts to ban opium sales [2]. Ten percent of China’s population became addicted to opium. China was subjugated to Western capital. Many Chinese workers were forced into super-exploitative overseas labor as a result.
Many of these workers ended up in the U.S., where slavery had ended and the construction of the transcontinental railroad demanded massive amounts of cheap labor. Nine in 10 workers on the strategic infrastructure were Chinese [3]. Capitalists not only ruthlessly exploited Chinese workers (many died of overwork before the end of their labor contracts) but also stoked racial prejudices and played off white workers against Chinese workers. When white workers went on strike, capitalists hired Chinese workers as underpaid replacements. Some white workers–aspiring to be capitalists or not seeing themselves as members of the international working class–lashed out against Chinese workers and blamed them for being paid less and working more. In the 1870s, white workers violently expelled and even lynched Chinese workers in their communities [4].
In the wake of this racist hatred the government enacted the Chinese Exclusion in 1882, codifying the “Yellow Peril” myth–the idea that the immigration of Chinese workers constituted an invasion that threatened white society and its values [5]. Building on decades of anti-Chinese laws at the state and local level, the law banned (though did not prevent) the immigration of Chinese workers and made them ineligible to become U.S. citizens.
It remained in force until 1943, when China and the U.S. were both fighting Japan in World War II. Through the law, U.S. capitalists cemented the divide between Chinese workers and white workers, to the detriment of all workers. Expressly based on their race, Chinese workers were banned from legally immigrating to the U.S. and would be subject to deportation if they came anyway. Chinese workers in the U.S. were made permanent non-citizens. The fundamental purpose of this immigration law was not to protect “American” labor but to prevent unity with Chinese workers and cement racial hierarchies.
20th century immigration law: Crushing dissent
By the 1920s, much had changed in the world. Revolution had swept over Russia and for the first time peasants and poor working people ran their own government. Fearing this radical shift, the U.S. unleashed the Palmer Raids—violent mass arrests, beatings, and deportations targeting communists, anarchists, and labor activists. The top priority of the U.S. was to prevent the spread of communist ideas and communists themselves.
The 1924 Immigration Act was written to do just that. Designed by open eugenicists, the law racialized Eastern and Southern Europeans, imposed highly restrictive quotas on their immigration, and all but banned the immigration of Asians. The quotas were pegged to U.S. demographics in 1890–roughly coinciding with the closure of the frontier in the western U.S.–attempting to entrench the dominant position of white people of Northern European descent.
The law racialized Eastern Europeans, who previously were viewed as their own separate nationalities. The U.S. ruling class responded to the Russian revolution through antisemitic and anticommunist tropes like Judeo-Bolshevism. Most Jewish working people at that time were communist. The law’s racialization of Eastern Europeans built on the reaction to the world’s first successful socialist revolution, including antisemitic tropes like “Judeo-Bolshevism” that conflated Jews and Communists, and mass arrests and deportations of suspected socialists [6]. In essence, the law defined who should be considered “American” on racial terms. President Coolidge’s signing statement for the law was that “America must remain American,” and the U.S. State Department describes the law’s “most basic purpose” as “to preserve the ideal of U.S. homogeneity” [7].
Beyond the external exclusionary aspect of the 1924 Immigration Act, it also increased internal repression: for the first time, it authorized deportation of any immigrant who had overstayed or entered without a visa, expanding the class of workers made especially vulnerable in a way that “American” workers were not.
After World War II, the U.S. updated explicit racial quotas with a new focus: ideological control. The 1952 McCarran-Walter Act, also known as the Immigration and Nationality Act (INA), modernized the U.S. immigration system while entrenching its racist and ideological foundations. Though it eliminated the outright ban on Asian immigration—a concession made during World War II to align with Asian allies—it maintained strict racial quotas designed to preserve the demographic dominance of whiteness (expanded to include non-Communist Italians, Poles, and Jews). Immigration restrictionists still hoped to achieve “the preservation of whiteness” through the system, reflecting the enduring legacy of the 1924 Immigration Act [8]. But the INA also introduced a new dimension of repression: ideological exclusion. In the context of anti-communist hysteria—fueled by the Soviet Union’s nuclear advancements, the Chinese Revolution and the Communists’ victory, the Korean War, and the trial of Julius and Ethel Rosenberg—the law barred entry to anyone affiliated with communist or “subversive” organizations. This provision was not merely about keeping communism at bay abroad; it was a tool for policing thought domestically.
The law’s ideological exclusions mirrored the McCarthy-era purges that targeted communists in government, universities, and Hollywood. Leaders of the Communist Party were prosecuted and imprisoned under the Smith Act, while the INA ensured that foreign-born radicals—or even those merely suspected of socialist sympathies—could be denied entry or deported. This created a chilling effect, reinforcing the internal disciplinary function of immigration law: it discouraged dissent among immigrants already in the U.S., who feared deportation if they expressed views deemed threatening to the state. Even President Truman, despite his Cold War anti-communism, recognized the law’s blatant racism and vetoed it, only to be overridden by a Congress gripped by reactionary fervor.
The INA thus exemplified the dual role of U.S. immigration law: external exclusion (filtering entrants by race and ideology) and internal discipline (suppressing radical thought and labor organizing). Like the Chinese Exclusion Act and the 1924 Immigration Act before it, the law served capital’s interests—this time, by aligning immigration policy with the Cold War imperative of crushing socialist movements at home and abroad.
The 1990 amendment: Suppressing free speech
By 1990, the decline and imminent collapse of the Soviet Union and the rapprochement between the U.S. and China had rendered overt anti-communism obsolete as a justification for repression. At the same time, the U.S. was close to achieving global unipolar dominance. It had weakened the Soviet Union, had overthrown left-leaning governments in Latin America, Africa, and Asia, and was preparing to jealously guard its status as the world’s sole superpower. The U.S. ruling class needed a new pretext for domestic discipline, and an amendment to the INA adding a foreign policy provision fit the bill. The amendment passed with bipartisan support and little debate, reflecting ruling class agreement on foreign policy. The provision allows deportation whenever the Secretary of State declares that a noncitizen’s presence may have adverse consequences on U.S. foreign policy—a term left deliberately vague. A mirror provision also prohibits the entry of any person the Secretary of State deems adverse to foreign policy. In practice, this means the Secretary of State has full discretion to say that anyone’s presence in the country could affect “foreign policy.”
Congress anticipated that the Secretary of State could use the foreign policy provision to punish speech protected by the First Amendment, which has long been understood to apply to citizens and legal residents alike [9]. On paper, the provision includes a “safe harbor” for protected speech, prohibiting deportation based on lawful beliefs or associations. In practice, this protection is meaningless. The Secretary of State can override it simply by declaring a “compelling foreign policy interest,” a standard so elastic it can be met with a rote recitation of the standard in a two-page letter, as in Mahmoud Khalil’s case. This creates a legal black hole: noncitizens can be deported for speech that is perfectly lawful, based on secret determinations they cannot challenge.
The foreign policy provision was further strengthened by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which stripped lower courts of the power to review most deportations. Instead, immigrants facing deportation must defend themselves before immigration judges, who are part of the executive branch, not the judicial branch, and cannot rule on the constitutionality of the laws they are tasked to enforce. The result is a system where the executive branch acts as prosecutor, judge, and executor of deportation—a system designed to evade accountability.
“Massieu v. Reno:” Foreign policy provision scrutinized
The first major test of the foreign policy provision came in the 1990s, when the Clinton administration sought to deport Mario Ruiz Massieu. Massieu was a former Mexican official who had charged Mexican government officials with responsibility for the assassination of his brother and covering up the investigation. He faced retaliatory criminal charges and death threats in Mexico, so he fled the country and legally entered the U.S. where his family had a home. He was quickly detained by immigration officials. Mexico tried to extradite him but failed in U.S. courts on four separate attempts due to lack of evidence The U.S., close to the right-wing Mexican government at the time, instead invoked the new foreign policy provision and started deportation proceedings.
Massieu fought back and in 1996, in a bizarre irony of history, Judge Maryanne Trump Barry, the sister of Donald Trump, delivered a rare but fleeting victory for civil liberties. She ruled the foreign policy provision unconstitutional on three grounds:
- Its vagueness made it impossible for anyone to know when the Secretary of State could invoke it;
- It denied targets due process–a meaningful opportunity to challenge the Secretary of State’s determination of adversity to foreign policy; and
- it improperly delegated legislative power to the executive branch because it provided no standards for courts to assess the Secretary of State’s determination.
Her opinion exposed the provision as a tool of arbitrary repression: it gave the Secretary of State “unfettered and unreviewable discretion to deport any alien lawfully within the United States…because that person’s mere presence here would impact in some unexplained way on the foreign policy interests of the United States,” while “no one outside the Department of State and, perhaps, the President ever knows what our nation’s frequently covert foreign policy is at any given time.”
This victory was short-lived. On appeal, a Third Circuit panel including future Supreme Court Justice Samuel Alito reversed the decision on a technicality. The Third Circuit ruled that Massieu had to first exhaust his arguments in immigration courts before appealing back to the Third Circuit, which only then could decide the constitutionality of the foreign policy provision. The decision forced Massieu into a dead end. Immigration judges lack the power to decide whether a law is unconstitutional. Back in immigration court, an immigration judge rubber-stamped the Secretary of State’s determination that Massieu’s presence posed adverse consequences to U.S. foreign policy and ordered him deported to Mexico, despite death threats he had received there. After a years of protracted litigation, he died under house arrest in New Jersey in 1999.
The prosecution of Mahmoud Khalil: Imperialism on the domestic front
In March 2025, ICE detained Mahmoud Khalil, a Palestinian graduate student at Columbia University and prominent critic of Israel’s ongoing–and U.S.-supported–genocide of Palestinians, under the same foreign policy provision. Khalil, a lawful permanent resident married to a U.S. citizen, had committed no crime—his only offense was organizing protests against genocide [10]. The case against Khalil reflects the internal function of the foreign policy provision–and U.S. immigration law in general– as a repressive tool of the ruling class to defend imperialism.
ICE arrested Khalil in New York, moved him to New Jersey, and moved him again to an immigrant jail in Louisiana, where the government chose to prosecute his deportation [11]. While in New Jersey, Khalil filed a habeas corpus case to challenge his detention in federal district court, arguing that his detention violated his rights to free speech and due process under the First and Fifth Amendments. After Khalil had endured 104 days of detention, the federal district court judge granted his request for release on bail. Still, the government is withholding Khalil’s passport, and both of his cases are proceeding in parallel.
The government’s justifications and evidence for prosecuting Khalil are even weaker than those it invoked against Massieu. No foreign country has requested Khalil’s extradition or has accused him of any crimes. The government is relying on fake tabloids and Zionist doxxing groups like Betar [12], who identified Khalil on January 29 as a target for deportation [13], claimed credit for his arrest, and said it has “already submitted names of hundreds of terror supporters to the Trump administration” [14]. The only connection to U.S. foreign policy is the targets of Khalil’s critical speech: Zionism and U.S. support for Israel’s ongoing genocide of Palestinians. U.S. foreign policy falsely brands people resisting imperialism, Zionism, and genocide as antisemitic and terrorists.
The initial charging document the government issued against Khalil contained only a naked assertion that Khalil’s “presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States” [15]. When the immigration judge required the government to submit all evidence that Khalil could be deported, the government submitted only an undated, two-page letter asserting that the foreign policy interest in Khalil’s deportation is “compelling,” along with backwards and unfounded accusations of antisemitism [16]. The letter recognizes that the foreign policy provision’s safe harbor applies, as it tacitly acknowledges that the case against Khalil is based on his “past, current, or expected beliefs, statements, or associations that are otherwise lawful.” Based on the letter alone, the immigration judge ruled that she had no room to question the Secretary of State’s determination and ordered the deportation of Khalil.
Khalil is likely appealing the immigration judge’s ruling to the Board of Immigration Appeals, which will almost certainly affirm the ruling. After that, Khalil can appeal to the Fifth Circuit–known as the most conservative federal appellate court–and the constitutional infirmities of the foreign policy provision can be considered in an appellate court for the first time. Though the government cannot legally deport Khalil until his case is resolved, the government has recently shown a brazen disregard of court orders on deportations [17].
At the same time, Khalil is pursuing his habeas corpus claims in federal district court in New Jersey–the same court that decided Massieu v. Reno and whose rulings are appealable to the Third Circuit. The district court rejected the government’s arguments that Khalil’s case belongs in immigration court alone, in large part because Khalil’s constitutional claims cannot be considered in immigration court [18]. The Third Circuit may need to reconsider the application of the exhaustion requirement it previously articulated in Massieu, given the abundant clarity that it is futile to challenge the constitutionality of the foreign policy provision and the Secretary of State’s determinations in immigration court.
If Khalil were to prevail and win a decision that the foreign policy provision is unconstitutional, the government’s efforts to deport immigrants whose speech it does not like will become more difficult as courts impede deportations under the provision. But even failed deportation cases can serve as repressive weapons–to a large extent, the process is the punishment. It would be cold comfort for detained immigrants to know that after years of litigation, they will not be deported. The only way to deny imperialism that repressive victory is for anti-imperialists–immigrants and non-immigrants alike–to rise up and speak out.
Khalil’s case is not an anomaly. The Trump administration has already used the foreign policy provision against other outspoken students, like Rumeysa Ozturk of Tufts University and Yunseo Chung from Columbia University. While some have been released, many others have not. The threat is not limited to immigrants or legal residents; the government has reportedly considered deporting U.S. citizens to prison camps in El Salvador [19]. The escalation is a deliberate attempt to silence dissent. Already, the government’s use of the foreign policy provision against Khalil and others is blowing back, as thousands have taken to the streets in protest [20]. For every voice the government silences or removes, thousands must emerge in resistance.
The limits of the law and the necessity of resistance
The foreign policy provision is not an aberration but the latest iteration of a bipartisan system designed to serve empire and capital. From the beginnings of U.S. immigration law, the powers to exclude and deport have served to maintain racial hierarchy, advance the exploitation of labor, protect capital, and punish dissent. From the Chinese Exclusion Act to today’s deportations, immigration law has always been a weapon of class war—one that divides workers, shields capital, and silences critics of U.S. imperialism.
Legal challenges, while necessary, cannot defeat this system. The ruling class can count on courts to yield to their executive power, from the Third Circuit’s procedural dodging in Massieu to the Louisiana immigration judge’s rubber-stamping of Khalil’s deportation. Even when judges like Judge Barry rule against the government, the process alone is repressive and the government finds ways to sidestep adverse rulings.
Nor can mere awareness blunt weapons like the foreign policy provision. The only effective counter to this repression is mass resistance. Khalil’s detention has already sparked nationwide protests. Every attempt at deportation must be met with collective action. The struggle cannot be confined to courtrooms or narrowly defined targets of the day—it is inextricably linked to global movements of workers, students, and all people against U.S. imperialism at home and abroad.
As the labor slogan goes, an injury to one is an injury to all. The more the state wields immigration law as a weapon, the more the people must wield solidarity as a shield. Free Palestine and free us all.
References
[1] Ken Hammond, China’s Revolution and the Quest for a Socialist Future (New York: 1804 Books, 2023), 7-8.[2] Ibid.
[3] Lakshmi Gandhi, “A History of Indentured Labor Gives ‘Coolie’ Its Sting,” NPR, 25 November 2013. Available here.
[4] Katie Dowd, “140 years ago, San Francisco was set ablaze during the city’s deadliest race riots,” SFGATE, 23 July 2017, available here; “This Day in History: Oct. 24, 1871: Los Angeles Chinatown Massacre,” Zinn Education Project, available here.
[5] Sheila Xiao, “The Legacy of the Chinese Exclusion Act of 1882,” Liberation School, 6 May 2018. Available here.
[6] Jarrod Grammel, “The Palmer Raids and the First Red Scare: The Roots of Liberal Anticommunism in the United States,” Peace, Land, & Bread, 25 February 2021. Available here.
[7] “The Immigration Act of 1924 (The Johnson-Reed Act),” U.S. Department of State, Office of the Historian. Available here.
[8] Andrew M. Baxter and Alex Nowrasteh, “A Brief History of U.S. Immigration Policy from the Colonial Period to the Present Day,” CATO Institute, 3 August 2021. Available here.
[9] See Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953); Bridges v. Wixon, 326 U.S. 135 (1945).
[10] Khalil’s activity can be seen in The Encampments, a documentary film released a few weeks after he was detained. Michael T. Workman and Kei Pritsker, directors, The Encampments, Watermelon Pictures, 2025.
[11] Devorah Levy-Pearlman, “Fight to Free Mahmoud Khalil exposes the black hole of Louisiana’s ICE jails,” Liberation News, 3 April 2025. Available here.
[12] Chloe Atkins, “Government’s Case against Mahmoud Khalil is Reliant on Tabloid Accounts, Review of Evidence Shows,” NBC News, 15 April 2025. Available here.
[13] Will Oremus, “Meet the Militant Jewish Group backing Trump’s Deportation Push,” The Spokesman-Review, 29 March 2025. Available here.
[14] Joshua Mitts and David Pozen, “In Defense of our Shared Values,” Columbia Daily Spectator, 13 February 2025. Available here.
[15] “Notice to Appear,” U.S. Department of Homeland Security, 9 March 2025. Available here.
[16] “Submission of Documents,” U.S. Department of Homeland Security, 9 April 2025. Available here.
[17] Teresa Paez, “ICE Deports Legally Protected Maryland Father to El Salvador’s ‘Mega Prison’,” Liberation News, 8 April 2025, available here; Nicholas Riccardi and Regina Garcia Cano, “Trump Administration Deports Hundreds of Immigrants even as Judge Orders their Removals be Stopped,” Associated Press, 17 March 2025, available here.
[18] Khalil v. Joyce, Opinion, No. 25-cv-01963 (D.N.J. April 29, 2025). Available here.
[19] Chris Walker, “White House Press Sec Says Trump’s Seriously Considering Deporting US Citizens,” Truthout, 9 April 2025. Available here.
[20] Brian Becker, “‘First They Came for the Palestinian’: Arrest of Mahmoud Khalil Sparks Nationwide Movement,” BreakThrough News, 12 March 2025. Available here.
