'Unsavory Characters'

Re-learning Resistance to Deportation Decisions by Department Heads

(Image of Former Attorney General Herbert Brownell, Jr. during an interview for Eyes on the Prize)

“And/Or”

Where does the power of a federal Department head to single out an individual for deportation come from, and what, if any limits exist when such a thing happens?

Many in the U.S. are asking this question this week following DropSite’s coverage of the arrest of Columbia student Mahmoud Khalil on Saturday. Khalil, who was reportedly a “lead negotiator” in pro-Palestine actions on campus, had just left iftar and headed home to the university residence where he lived with his wife, who is eight months pregnant.

According to a statement by Khalil’s immigration attorney, Amy Greer, the ICE agents responsible for the arrest announced their intention to revoke his student visa—a move long advocated for by opponents of campus activists organizing for a free Palestine, and one promised by the Trump administration.

Upon being informed that Khalil had no student visa to revoke because he was a permanent resident, ICE’s interlocutor switched gears, informing Greer they’d revoke his green card instead.

Secretary of State Marco Rubio shared an Associated Press story featuring a photo of Khalil and a description of his arrest on X with the statement: “We will be revoking the visas and/or [sic] green cards of Hamas supporters in America so they can be deported.”

Khalil is reportedly en route to a for-profit ICE prison in Louisiana, where he will presumably go before a federal Immigration Judge (assuming there are any left to promptly hear his case after the purge).

One might ask, “if the U.S. Secretary of State has publicly declared you’ll have your green card revoked and be deported, what exactly is the point of putting you in front of an Immigration Judge?” After all, they’re simply DOJ employees with no real independence, as the recent firings and demotions demonstrate. What’s more, any decision by the Board of Immigration Appeals can be unilaterally reviewed and overturned by the Attorney General. Something tells me fellow Floridian and current U.S. Attorney General Pam Bondi is unlikely to break ranks from Secretary Rubio on this one.

Immigration lawyers and those familiar with the US immigration code will realize Khalil may have mandatory (withholding/CAT) or discretionary relief available to him that could prevent his removal to Algeria, where he is apparently a national. He could, as an initial matter, demonstrate that DHS cannot bear its burden of sustaining a terrorism-related deportability charge grounded in so-called “Hamas-aligned” student speech and protest by preponderance of the evidence, which would result in the dismissal of his removal proceeding and the triggering of his right to release. His U.S.-citizen spouse and the impending addition to their family might, in combination with a length of sufficient period of time in the U.S. and good moral character, entitle him to cancel the removal the U.S. has promised to carry out. Or his fear of persecution or torture upon deportation could require the U.S. not to remove him to the country or countries where an IJ concludes he’d more likely than not face such mistreatment.

Yet, if Khalil prevails on any of those grounds, the U.S. Attorney General might simply elect to try and deport him anyway.

Have we seen anything like this before?

Students of the history of immigration law will answer with a resounding, “Of Course.”

‘Unsavory Characters’

Herbert Brownell was born in Nebraska in 1904. A Yale law grad, his most important client as a lawyer, prior to representing the United States (not the President) as Attorney General, was Greek shipping magnate (and future husband to JFK’s widow) Aristotle Onassis (Onassis was actually born in Smyrna, Turkey and emigrated to Argentina). In order to help Onassis around a prohibition on the sale of WW2-era shipping tankers to non-U.S. citizens, Brownell used his perch at a white-shoe New York law firm to concoct a series of corporate shells and straw man transactions that all went back to Onassis in the end.

For this conduct, which Brownell apparently orchestrated in private practice, the United States Department of Justice charged Onassis with violating the citizenship requirements of shipping laws on February 5, 1954. CIA, FBI, and Justice all apparently participated in the effort to wage lawfare on the empire Onassis was building, which, incidentally, was shipping for China and Korea at the time, too.

Ultimately, Onassis paid some money and his partners/alleged co-conspirators walked away mostly unscathed on the backs of some aggressive lawyering.

Two years before Onassis was indicted, as the CIA, FBI, and Justice were surveilling the network his lawyer helped create to play around the margins of U.S. shipping laws, that very same lawyer exercised his power under federal immigration laws to rid the U.S. of a different set of “undesirables.”

In 1952, Attorney General Brownell, issued a secret list of around 100 “unsavory characters” he planned to deport. Sicilian-born Joseph Accardi was one of the names on that list. He entered the U.S. unlawfully through Canada by train, so his deportability was never in question. He didn’t have a visa (student or otherwise) or a green card. He only had his U.S. citizen wife and children, and his years of potential good moral character and right behavior in the U.S., which could, based on the laws in effect at the time, entitle him to apply to an immigration judge for discretionary relief from deportation, using the law some now might call “7-year cancellation of removal.” If the IJ declined to exercise discretion, he could challenge that decision at the Board of Immigration Appeals, and eventually, seek habeas relief through District Court. The odds of avoiding deportation through that pathway were likely slim (though not as slim as they are today), but they weren’t nil. Certainly not the fait accompli deportation would be for someone on the Brownell’s “unsavory characters” list.

What landed Accardi on this list? The answer had a lot to do with his brother, Samuel Accardi, who Brownell and the DOJ successfully denaturalized for lying about arrest history while applying for citizenship. Whereas Joseph Accardi had been named in a 1937 indictment for an illicit liquor still and labeled one of several “minor hoodlums” by Treasury agents, his brother Sam Accardi was a mob boss in Newark. All this made Joseph a “known racketeer,” according to the feds. However, when Joseph’s case reached the U.S. Supreme Court for the second time, in 1955, the dissenting Justices observed:

It is significant that, on the very day Attorney General Brownell referred to Accardi as a "racketeer," the Board of Immigration Appeals found as a fact from evidence that he was "considered a person of good moral character." Moreover, there was no evidence before the Board to show that Accardi was or ever had been a "racketeer."

Shaughnessy v. Accardi, 349 U.S. 280 (1955).

History is a bit fuzzy here (to me, anyway), but it appears as though Brownell may have put the wrong Accardi on his list of people to deport.

Sam Accardi ended up fleeing to Turin, Italy during the process of his denaturalization in federal district court. For years, he ended up running his enterprises from there, then moved to Toronto before the U.S. indicted and extradited him. He apparently died in prison. Joseph Accardi, it seems, ended up being deported.

When Joe’s first habeas petition reached the Supreme Court, the government lost. Shaughnessy v. Accardi, 347 U.S. 260 (1954). The crux of the case was whether the Attorney General’s then-speculative inclusion of him on a list of people to deport violated federal regulations apportioning various levels of discretion in making determinations about deportation between the Board of Immigration Appeals and the Attorney General. If the AG had already decided to deport Joe, what did it matter if the BIA hadn’t been able to decide his case for discretionary relief? He wasn’t entitled to discretion, after all. And the AG could simply reverse the BIA. So went the dissent’s reasoning.

The Supreme Court majority held Joe Accardi had a right to avail himself of the procedures for contesting and seeking relief from deportation that are spelled out by federal regulations, and the alleged violation of those procedures by AG Brownell rendered his deportation order fatally defective. The so-called “Accardi Rule”, then, prohibits the federal government from carrying out a deportation after violating its own regulations promulgated to provide for due process and procedural avenues in deportation proceedings.

Ultimately, he lost in his second trip to the Supreme Court. The adjudicators and lower courts (with the exception of dissenters) concluded that even though Brownell’s “unsavory characters” list turned out to be real, and Accardi turned out to be on it, that didn’t mean the BIA necessarily followed it when it denied him discretionary relief.

If you actually believe that holding is defensible in the real world, you’ll probably believe Mahmoud Khalil’s removal proceeding in Louisiana won’t be a predetermined, performative matter. Or, as Justice Black, joined by Justice Frankfurter in dissenting to the Supreme Court’s decision in Accardi II, put it,

I think that petitioner proved beyond all peradventure that the Attorney General did "prejudge" Accardi's case as alleged.

. . .

The inevitablity of what was to happen to Accardi after his name was put on the "Attorney General's proscribed list on alien deportees" is rather strongly indicated by the fact that not one of these aliens has ever been granted final discretionary relief allowing him to remain in this country.

. . .

It is my opinion that petitioner proved that the Attorney General's publicized program made it impossible to expect his subordinates to give Accardi's application that fair consideration which the law requires. The use of administrative bodies as agencies of justice under law is seriously weakened by proceedings such as these. We should adhere to the spirit of our first opinion, and require that the Board hold a fair hearing in Accardi's case after "the recall or cancellation" of this "list," as the Court of Appeals ordered. [Footnote 3] The implications of the Attorney General's program and statements must be repudiated before this Board can be considered the kind of free and impartial tribunal which our system of justice demands.

This is Regular?

I’m not saying Khalil wins a termination motion or a habeas based on Accardi. (Though I’m also not convinced he loses, either.) Instead, the point of this long, meandering dive into immigration legal history is to ask whether the process by which Khalil and tens of thousands of others are currently being arrested, imprisoned, and deported, can rightly be described as “regular” at this moment in history.

I would humbly submit the answer is “no.” The number and impact of the executive orders governing how the U.S. will determine who can stay and who will go is the definition of an “irregular” state of affairs. While there are similarities in history, and analogous cases in law, the whole point of the present regime is to break from the regular order of things and establish a new order of the day.

This agenda holds possibility for people resisting the state violence of deportation. That is because most of the immigration detention and removal adjudication system, and the process for challenging it, hinges on the doctrinal Presumption of Regularity. In short, government officials’ statements and paperwork need not be tested for veracity or subjected to confrontation or cross-examination, and hearings need not be conducted in many cases, because of the presumptive reliability of these government officials. The presumption turns on the expectation that the government functions regularly, and its employees will behave about the same as they always have.

Is DOGE “regular”? Is the nationwide expansion of expedited removal “regular”? Is the deployment of active-duty military assets to the U.S.-Mexico border “regular”? How about the rendition of people living in the U.S. to Guantanamo Bay, Cuba? “Regular?” Soon, it will be. But for now, it’s not. And in that reality—the very reality of the massive change U.S. immigration law and policy is undergoing—lies the catalyst for resistance.

Leaning into the absence of regularity in today’s processes will grind the adjudicative system to a halt, create pathways to challenging the lies agencies tell federal judges, and facilitate class-wide equitable, if not full injunctive, relief.

Set aside the quaint notion in the Accardi II dissent about deprivation of a fair and neutral adjudicator where one’s deportation is a foregone conclusion dictated from on high. Focus on the absence of regularity, and what it means. The cases are there. The law remains good (for now). And the delegitimizing impact of calling bullshit on unpleasant things when there’s a strong odor of bovine feces emanating from the government’s files is real and powerful, because it forces adjudicators to pick a side: Am I going to gaslight myself and the bar by pretending, despite everything those in charge are telling us, that everything’s just as regular today as it was on January 19? Or am I going to retain some modicum of self-respect and historical perspective by simply applying the law to the facts, and requiring the government to do the things it must when those in the maw of the deportation system rebut the presumption of regularity? I’m interested to hear what happens if anyone tries this, but can understand why no one will.

For what it’s worth, when I filed a motion to terminate a client’s proceeding based on the white supremacist statements by former Attorney General Jeff Sessions, the TA (now an IJ) told me off-record, something to the effect of “Mr. Free, You’re a very gutsy advocate. I don’t know a single immigration attorney in the bar who’d have filed this motion.” The government consented to a continuance for biometrics instead of seeking a deportation order that day, as I recall, and the client was able to adjust status to lawful permanent resident before the IJ.