Long before Democrats and liberal activists accused Trump of trampling on the rights of pro-Hamas visa holders in the U.S., the Biden administration rolled out a visa-restriction policy targeting Israelis that was riddled with political bias and vague language, but received little resistance or protest, a legal expert told Fox News Digital.
“One is a valid judgment,” legal expert and senior fellow at the Heritage Foundation’s Margaret Thatcher Center for Freedom, Eugene Kontorovich, explained of President Donald Trump’s restrictions and revocations of visas belonging to pro-Hamas students in the U.S.
“The other was just using the visa system to punish one’s political enemies,” he continued of a 2023 Biden visa policy.
The Trump administration is in the midst of working to revoke visas and green cards belonging to pro-Hamas students in the U.S. who participated in the widespread anti-Israel protests and riots that rocked college campuses during the last school year. The effort has been met with backlash from Democrats who say Trump is attacking the First Amendment rights of individuals who protested Israel.
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Kontorovich spoke to Fox News Digital Wednesday in a phone interview where he explained that Trump’s actions are not only within his legal bounds but also “far more restrained” than previous administrations’ “politicized visa” policies, including a Biden policy that restricted Israelis.
The Biden administration announced in December 2023, just months after war broke out in Israel on October 7, 2023, that it would restrict visas to those believed to have undermined peace and stability in the West Bank. The restriction was a part of the Biden administration’s efforts to achieve a two-state solution for peace in Israel and Palestine, the New York Times reported at the time.
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“Today, the State Department is implementing a new visa restriction policy targeting individuals believed to have been involved in undermining peace, security, or stability in the West Bank, including through committing acts of violence or taking other actions that unduly restrict civilians’ access to essential services and basic necessities,” the State Department said in a press release in December 2023. “Immediate family members of such persons also may be subject to these restrictions.”
In February 2024, Biden signed an executive order imposing sanctions on “persons undermining peace, security, and stability in the West Bank” as he decried “extremist settler violence” in the West Bank. Under the order, sanctioned individuals had their bank accounts frozen and their credit cards canceled and were restricted from conducting basic life activities.
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Kontorovich explained that the language of the announcement was vague and allowed for the Biden administration to punish individuals who disagreed with the administration’s policies on a two-state solution.
“The executive order of Biden says, we can ban people who disagree with our notion, even if they don’t encourage or participate in violent activities. Whereas there is nothing in U.S. law that says the two-state solution is the be-all and end-all.”
“Half the congressmen in Congress probably don’t support the two-state solution, whereas Hamas is a designated foreign terror,” he continued. “Opposing the two-state solution, not a designated terror organization. Hamas kidnaps and rapes people, murders people. Opponents of the two-state solution don’t do that.”
Despite the alleged political motivation behind the policy, it was within Biden’s legal bounds, as presidents have broad power to deny entry to foreign nationals.
Kontorovich called the Biden-era visa policy a “Jew ban” — which plays off of the “Muslim ban” title for the travel ban policies under the first Trump administration — as it targeted “Israeli Jews based on political viewpoints that are extremely common amongst Israeli Jews.”
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The international law expert and George Mason Antonin Scalia Law School professor continued that Democrats and activist groups did not sound the alarm or speak out against the Biden visa policy at the time, noting that the “Biden administration was doing so many bad things to Israel, this was kind of not at the top of the list” for rebuke.
He added that despite the silence in 2023, Democrats this year are “going to bat for a guy who was working with a group that openly and actively supported murderous foreign terrorist organizations,” referring to Columbia University graduate Mahmoud Khalil, who was a top pro-Hamas protest organizer on campus in 2024.
“It just shows you how much this outrage is manufactured,” he said. “Also, how what Trump is doing is not some kind of new wild, crazy Trumpian thing. It’s actually far more restrained than politicized visa policies of prior administrations. Those just didn’t get the manufactured outrage.”
Democrats and activists have slammed the Trump administration over the ICE detention of Khalil at his Columbia University-owned apartment in Manhattan March 8. The Department of Homeland Security said he was a former Columbia graduate student who “led activities aligned to Hamas, a designated terrorist organization.”
Khalil helped lead the anti-Israel protest that plagued the campus in April 2024, including as a negotiator for radical agitators students on campus as they set up a tent encampment and took over an academic building, Hamilton Hall.
He served as a leader of a group called Columbia United Apartheid Divest, which demanded that Columbia completely divest from Israel amid the country’s war with Hamas that began on Oct. 7, 2023. The group said its main goal was to “challenge the settler-colonial violence that Israel perpetrates with the support of the United States and its allies,” according to an op-ed published in the Columbia Spectator in November 2023.
DHS additionally reported that Khalil “led activities aligned to Hamas, a designated terrorist organization.”
The 47th president signed an executive order in January, putting pro-Hamas protesters in the U.S. on student visas on notice that they will be deported.
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“To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you,” the president said in a Jan. 30 fact sheet on the executive order. “I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before.”
Khalil was born in Syria in 1995 and has been in the U.S. on a green card, according to various reports. He is under investigation as a possible threat to U.S. national security, with investigators reportedly finding “antisemitic and hateful” posts on Khalil’s social media accounts, White House sources told Fox News Tuesday.
Liberal lawmakers and activists have described his arrest as an attack on the First Amendment, which protects the freedom of speech and assembly. The administration and legal experts, however, argue that the case is not focused on First Amendment rights but on national security and immigration.
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Kontorvich explained that the Trump administration is not targeting students on visas who said “bad or scary things,” the administration is instead targeting foreign nationals with suspected ties to a longstanding designated terror organization.
“It’s not like they just went out and designated some group they didn’t like,” he added. “It’s not like designing BLM a terror organization.”
The legal scholar also noted that the Trump administration likely took on its most difficult revocation and deportation case first, as Khalil holds a green card, which permits permanent residence to foreigners, while visas allow for temporary residence.
“The test for revoking permanent status is harder than just a visa holder,” he said. “And the government is going to have to show evidence that he supported Hamas, sort of actively, openly endorsed violence. From what I’ve seen, all that’s true, and that’s probably enough to revoke his visa. But by focusing on that, the pro-Hamas, Democrats have basically conceded that for visa holders, this will be totally fine. I think Trump is dealing with the hardest case first with permanent residence.”
A senior State Department official told Fox News that Khalil is deportable under Section 237(a)(4)(C) of the Immigration and Nationality Act. The section of the immigration law states: “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”
There is no requirement that a crime be committed under this section of the law. Instead, it provides broad power to the secretary of state to declare an alien deportable.
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