The Board of Immigration Appeals today denied Mahmoud Khalil’s motion to reopen his removal case. In Matter of M-K-, 30 I&N Dec. 84 (BIA 2026), Interim Decision #4250, a three-judge panel led by Chief Appellate Immigration Judge Malphrus concluded that Khalil’s claim of a lack of due process is “speculative, based on a series of false assumptions and fallacious reasoning, and wholly unsupported by the actual evidence in the record.” The Board denied the motion, denied a request for discovery, denied a request for remand, and closed the opinion by “unequivocally” rejecting the “baseless contentions” the motion advanced.
The decision is the second precedential opinion the BIA has issued in Khalil’s case. The first, published in April 2026 as Matter of M-K-, 29 I&N Dec. 556 (BIA 2026), dismissed his appeal from an Immigration Judge’s September 2025 finding that he was removable under Immigration and Nationality Act (INA) § 237(a)(4)(C)(i), the foreign policy ground of removability. Secretary of State Marco Rubio determined that Khalil’s presence in the United States would have “potentially serious adverse foreign policy consequences” based on his “participation and role in antisemitic protests and disruptive activities which fosters a hostile environment for Jewish students in the United States.” Khalil disputes that characterization; his advocates describe his conduct as pro-Palestinian advocacy protected by the First Amendment. The constitutional questions remain live in the parallel federal court litigation, where the Third Circuit denied rehearing en banc in Khalil v. President, 176 F.4th 295 (3d Cir. 2026), and Khalil has filed a petition for certiorari with the U.S. Supreme Court.
This piece explains what today’s decision holds, what the motion to reopen argued, how the BIA responded to each argument, and three features of the opinion that warrant attention beyond the ruling itself: the media bias framework the BIA constructed to discount Khalil’s evidence, the Board’s explicit defense of its own recent institutional restructuring, and the professional responsibility warning the Board directed at Khalil’s counsel. Matter of M-K- is the eleventh precedential immigration decision in about six weeks that shifts law in the government’s direction, following Matter of DIJI, Matter of A-E-V-M-, Matter of S-K-E-, Matter of Kamalov, Matter of V-S-A-, Matter of A-V-O-, Matter of Cuber, Matter of Mendez Maldonado, Matter of Borges Borsoi, and Matter of K-K-U-J-.
Mahmoud Khalil is a native of Syria and a citizen of Algeria. He was a graduate student at Columbia University and became a prominent figure in the pro-Palestinian protests on that campus in 2024. In March 2025, the Department of Homeland Security (DHS) served him with a Notice to Appear (Form I-862), the charging document that initiates removal proceedings, and detained him at the LaSalle Immigration Court in Jena, Louisiana. In September 2025, an Immigration Judge found him removable and denied his applications for relief and protection from removal, including a motion to remand.
Khalil appealed to the BIA. On April 9, 2026, a three-Appellate-Immigration-Judge panel dismissed his appeal. On April 15, 2026, the Board voted to designate the decision as precedent, and the opinion was published as Matter of M-K-, 29 I&N Dec. 556 (BIA 2026). Meanwhile, Khalil pursued parallel federal habeas corpus litigation. In Khalil v. Trump, 786 F.Supp.3d 871 (D.N.J. 2025), the U.S. District Court for the District of New Jersey initially granted him a preliminary injunction (a court order requiring or prohibiting specific conduct while a case proceeds). That injunction was later vacated on appeal in Khalil v. President, 164 F.4th 259 (3d Cir. 2026). The Third Circuit denied his petition for rehearing en banc in Khalil v. President, 176 F.4th 295 (3d Cir. 2026), and the mandate has been stayed pending Khalil’s petition for a writ of certiorari (a formal request that the Supreme Court agree to hear the case) with the U.S. Supreme Court.
After the Board issued its April 2026 precedent decision, Khalil filed a motion to reopen the removal proceedings. That motion is the subject of today’s decision.
A motion to reopen is a request that the BIA (or an Immigration Judge, depending on where the case sits) revisit a previously decided case, typically on the basis of new evidence that was not previously available and that would likely change the result. The governing regulation, 8 C.F.R. § 1003.2(c)(1), states that a motion to reopen for the purpose of presenting additional evidence will only be granted if the evidence was not previously available and would likely change the result. The respondent must also establish prima facie eligibility for the underlying relief sought, meaning a reasonable likelihood that the statutory requirements for relief would be satisfied.
Khalil’s motion did not seek relief from removal. It sought termination of the proceedings or a remand based on his assertion that he was denied a fair hearing. The evidence he presented in support of the motion was primarily a May 8, 2026 New York Times article and three affidavits from former EOIR officials: Andrea Sáenz (a former Appellate Immigration Judge), Dana Leigh Marks (a former Immigration Judge), and Ryan R. Wood.
The motion’s theory rested on four related claims. First, that multiple Appellate Immigration Judges recused from the vote to publish the April 2026 precedent decision, and that those recusals implied prior involvement in the case. Second, that the prior involvement necessarily meant those judges had pressured or influenced the presiding Immigration Judge. Third, that the expedited handling of the appeal further reflected impropriety. And fourth, that broader institutional bias at EOIR, including the recent reduction of the Board from 28 to 15 members, Reduction in Force (RIF) removals of Appellate Immigration Judges, hiring practices, and Acting Director policy memoranda, makes fair adjudication of Khalil’s case (and other cases) impossible under the current EOIR structure.
The Board denied the motion in full. Its holding, as stated in the syllabus: “Reopening is unwarranted because the respondent’s claim of a lack of due process is speculative, based on a series of false assumptions and fallacious reasoning, and wholly unsupported by the actual evidence in the record.”
The Board also denied Khalil’s request for discovery (a formal process by which a party obtains evidence from another party) and his request for remand (a return of the case to the Immigration Judge for further proceedings). The final substantive paragraph of the opinion states that “most, if not all, of the respondent’s arguments are meritless and raise questions as to whether they have been brought in good faith,” and closes: “We unequivocally reject his baseless contentions that there was any inappropriate influence on the adjudication of his case, and we emphasize that the outcome of his case was determined based on nothing other than the applicable law and the record before us.”
The Board’s analysis takes each of Khalil’s arguments in turn.
On the recusal argument, the Board held that the process of deciding whether to publish a precedential decision is separate from the merits panel that decides the outcome of an appeal, citing 8 C.F.R. § 1003.1(g)(3). Any Appellate Immigration Judges who recused from the publication vote by definition did not sit on the merits panel that decided Khalil’s appeal. The Board also noted that some of the alleged recusals occurred after the April 9, 2026 merits decision was issued. And the Board observed that recusals may occur for many reasons that have nothing to do with pressure on a presiding Immigration Judge, including prior involvement in parallel federal court litigation (Khalil has been in federal habeas litigation since March 2025, and EOIR employees may have worked with the Civil Division of the Justice Department in defending that litigation).
On the expedited docketing argument, the Board pointed to 8 C.F.R. § 1003.1(a)(2)(i)(C), which gives the Chief Appellate Immigration Judge authority to set priorities and time frames for case resolution. The Board has long prioritized detained cases, cases with collateral federal litigation, and cases of significant public interest. Khalil’s own motion describes his case as “one of the most high-profile immigration cases in the country,” which the Board reads as concession that priority docketing was warranted. The Board also cites Matter of B-N-K-, 29 I&N Dec. 96, 100 (BIA 2025), for the proposition that Immigration Judges and the Board have a duty to promptly and fairly bring removal proceedings to a close.
On the institutional bias argument, the Board defended each of the structural changes Khalil pointed to as evidence of unfairness. The reduction of the Board from 28 to 15 members was implemented under 90 Fed. Reg. 15525-01 (April 14, 2025), a regulatory action described as intended to “increase the consistency of Board decisions and facilitate an efficient en banc process.” The RIF removals were carried out under 5 C.F.R. §§ 351.601(a) and 351.502(a), which the Board notes require selection in inverse order of retention standing. The Board attaches significance to the increase in published decisions from 28 in FY2025 to 73 in FY2026, characterizing that increase as achievement of the regulatory goal of efficiency. And the Board cites a 5.1% federal circuit court reversal rate for administrative agency appeals as evidence that “the Board’s decisions are, in the main, generally legally correct.”
One of the more unusual features of Matter of M-K- is the framework the Board constructs for evaluating Khalil’s New York Times article. The Board writes that “a domestic media article consisting primarily of opinions with minimal (and anonymously-sourced) facts will almost never be sufficient evidence to warrant reopening,” then observes that “nearly every well-known domestic media outlet operates with a particular ideological valence which must be accounted for in assessing the persuasiveness of its reporting and its evidentiary weight.”
The Board supports this framework with three citations. It cites the AllSides Media Bias Chart, a private-sector media rating website at allsides.com, as authority for the proposition that media outlets have documentable ideological valence. It cites John K. MacIver Institute for Public Policy, Inc. v. Evers, 994 F.3d 602, 611 (7th Cir. 2021), for the proposition that specific named outlets, including the New York Times, are “liberal leaning.” And it cites a 2020 Washington and Lee Law Review article by Barry Sullivan and Christina Camody Tilley for the proposition that media coverage of the Supreme Court “focuses primarily on the justices’ presumed political and policy preferences rather than the legal issues they confront in the case before them, which can undermine public confidence in the Court as an institution.”
The Board concludes that a media publication that is based on anonymous factual sourcing, contains disputed facts, and is “clearly biased against the agency and in favor of the subject of the case warrants minimal, if any, weight.”
Federal court opinions, and BIA precedent decisions, rarely construct evidentiary frameworks for discounting news reporting by reference to third-party media bias rating websites. Whatever one thinks of the AllSides Chart as a resource, its citation as authority in a federal appellate immigration decision is a novel move. The framework the Board articulates in Matter of M-K- will now be available to Immigration Judges and future BIA panels evaluating the evidentiary weight of news reporting in other cases, including cases with far less public profile than Khalil’s.
A second unusual feature of Matter of M-K- is the Board’s explicit defense of its own recent restructuring. Precedent decisions typically confine themselves to interpreting statutes and regulations as applied to the case at hand. Matter of M-K- devotes several paragraphs to explaining and justifying institutional changes that have been contested in the immigration bar and in reporting for over a year.
On the Board’s size reduction, the opinion cites the April 2025 interim final rule reducing the Board from 28 to 15 members, states the regulatory rationale, and identifies a data point (published decisions rising from 28 to 73 in one fiscal year) as evidence that the restructuring produced its stated benefits. On the RIF removals of Appellate Immigration Judges, the opinion recites the regulatory framework at 5 C.F.R. §§ 351.601(a) and 351.502(a) and characterizes the effect on tenured Appellate Immigration Judges as “a function of the RIF regulations themselves, rather than any sort of targeting by the agency.” On the argument that outcomes of recent precedent decisions demonstrate bias, the opinion states that outcome disagreement does not establish bias and cites Liteky v. United States, 510 U.S. 540, 555 (1994).
The 5.1% federal circuit court reversal rate deserves particular attention. The Board offers this figure as evidence that “the Board’s decisions are, in the main, generally legally correct.” That framing overreads the number. Circuit court reversal rates for administrative agency appeals are low across the board, not just for immigration decisions. Most petitions for review are denied on procedural grounds or under deferential standards of review that do not test whether the underlying decision was “correct” in any objective sense. The 5.1% figure reflects the deferential posture of federal courts reviewing agency action more than it reflects the substantive accuracy of the underlying decisions. Citing the reversal rate as a self-endorsement of accuracy blurs a distinction that federal courts themselves are careful to preserve.
The third feature of Matter of M-K- worth flagging is the professional responsibility warning the Board directs at Khalil’s counsel. The opinion describes some of the arguments in Khalil’s motion as “inappropriate and irresponsible,” then continues: “and potentially a violation of standards of professional responsibility.” The opinion cites three sources for that framework. Model Rule of Professional Conduct 8.2(a), which prohibits a lawyer from making statements the lawyer knows to be false or with reckless disregard as to truth or falsity concerning the qualifications or integrity of a judge. California Rule of Professional Conduct 8.2(a), the state analog. And 8 C.F.R. § 1003.102(g), (j), and (n), the EOIR professional responsibility regulations governing practitioners before Immigration Courts and the Board.
Khalil’s counsel is Marc Van Der Hout, a San Francisco-based immigration attorney with over four decades of experience representing high-profile political cases and one of the most well-known immigration lawyers in the United States. A precedent decision suggesting that an attorney of Van Der Hout’s standing may “potentially” have violated professional responsibility rules by presenting due process arguments on behalf of a client is unusual. The professional responsibility rules the Board cites are designed to prevent lawyers from making reckless or knowingly false statements about judges. The line between such statements and zealous advocacy for a client’s due process rights in a high-profile case is not always self-evident.
The Board’s invocation of professional responsibility rules against arguments the Board itself has just dismissed as unfounded creates a difficult dynamic for future practitioners. Attorneys who bring due process challenges to BIA outcomes, particularly in high-profile cases, will now do so in the shadow of a precedent decision suggesting such arguments may carry professional responsibility risk. Whether that chilling effect on advocacy is a feature or an unintended consequence, practitioners should be aware of it.
The underlying charge of removability in Khalil’s case comes from INA § 237(a)(4)(C)(i), the foreign policy ground of removability. That provision authorizes removal of any noncitizen 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.” It is a rarely invoked authority. Historically it has been used against foreign officials, suspected agents of foreign powers, and small numbers of others where a specific foreign policy interest of the United States was implicated by the person’s presence.
The Secretary of State’s determination in Khalil’s case reads: he is removable because his “participation and role in antisemitic protests and disruptive activities which fosters a hostile environment for Jewish students in the United States” would compromise a compelling United States foreign policy interest. Khalil and his advocates contest that characterization on First Amendment grounds and dispute the underlying factual basis. The constitutional questions raised by the application of § 237(a)(4)(C)(i) to advocacy speech are the subject of active litigation in the federal courts, most recently at the Third Circuit and now pending on a petition for certiorari to the Supreme Court.
Today’s decision does not revisit or reconsider the foreign policy removability ground itself. That question is not before the Board on this motion. But the foreign policy ground supplies the context for everything else in the case, and the constitutional questions it raises will be answered, if they are answered at all, in the federal courts rather than at the BIA.
Matter of M-K- now supplies binding precedent for how the BIA will evaluate motions to reopen based on due process claims involving recusals, expedited docketing, media evidence, and structural change at EOIR. Practitioners bringing such motions in future cases should assume the following.
Recusal-based inferences will not succeed without direct evidence of the specific impropriety alleged. A pattern of recusals from a publication vote is not enough. Nor is speculation about why judges recused. The Board expects direct evidence that a specific decision-maker was in fact influenced by a specific improper communication or interest.
Expedited docketing will not by itself establish prejudgment. The Board’s authority to prioritize cases under 8 C.F.R. § 1003.1(a)(2)(i)(C) is broad, and the fact that a case moved quickly is not evidence that the outcome was predetermined.
News reporting will face the media bias framework the Board articulated in Matter of M-K-. Articles based on anonymous sourcing, articles from outlets identified as ideologically leaning against the agency, and articles focused on non-legal issues rather than the legal analysis at issue are likely to receive minimal evidentiary weight.
Affidavits from former EOIR officials will face similar scrutiny. The Board specifically notes that the three affidavits Khalil submitted came from officials who had not been employed by EOIR for at least a year, who based their opinions on information provided by Khalil without independent verification, and who did not acknowledge the possibility of alternative innocent explanations. The Board characterizes this as “confirmation bias” and treats it as a basis for discounting the affidavits.
Systemic institutional bias claims based on structural changes at EOIR will not succeed without a nexus to the specific case. The Board’s response is essentially that structural changes are within the agency’s regulatory authority, that outcome disagreement does not establish bias, and that circuit court reversal rates are low enough to indicate general accuracy.
Matter of M-K- is significant, but its scope has limits worth stating clearly.
The decision does not decide the constitutional questions in Khalil’s underlying case. Those questions, including the constitutionality of the application of INA § 237(a)(4)(C)(i) to advocacy speech, are pending in the federal courts. The Third Circuit’s denial of rehearing en banc did not resolve them on the merits, and the Supreme Court has not yet acted on the petition for certiorari.
The decision does not eliminate motions to reopen based on due process claims. What it does is set a demanding standard for such motions when they rely on inferences from recusal patterns, docket speed, or structural change rather than direct evidence of case-specific impropriety.
The decision does not eliminate federal court review. Khalil has already filed a petition for review with the Fifth Circuit challenging the April 2026 precedent decision. Petitions for review of BIA decisions are the standard vehicle for federal appellate review of removal orders, and that pathway remains available.
The decision does not address whether the Board’s recent structural changes were themselves lawful. That question, to the extent it is justiciable, would be litigated in a different forum. What Matter of M-K- does is decline to treat those changes as evidence of institutional bias in the adjudication of a specific case.
The decision does not change the professional responsibility framework governing attorneys who practice before the Board. The Model Rules, state bar rules, and 8 C.F.R. § 1003.102 continue to operate as they did before. What the decision adds is a precedent-level example of the Board flagging attorney conduct under those rules in the context of a due process motion.
For attorneys who represent respondents in politically charged or high-profile removal cases, Matter of M-K- changes the strategic calculus for due process challenges.
Build the record with case-specific direct evidence. General patterns, structural observations, and inferences from recusals or docket speed will not carry a motion. Direct evidence that a specific decision-maker was influenced by a specific improper communication or interest is what the Board says it requires.
Anticipate the media bias framework when relying on news reporting. If you plan to submit a news article as evidence, prepare to address the outlet’s reputation, the anonymity or attribution of the sources cited, the specificity of the factual allegations, and the article’s connection to a legal (rather than political) analysis of the case.
Anticipate the affidavit framework when relying on statements from former EOIR officials. If you plan to submit affidavits from former Immigration Judges or Board members, prepare to address the affiants’ direct knowledge of the specific matter, their independent verification of the underlying facts, their acknowledgment of alternative explanations, and their distance from the current EOIR institutional context.
Preserve the record for federal court review. Petitions for review at the courts of appeals apply their own standards and will consider due process arguments the Board rejects. The record built at the BIA is what the circuit court will examine. Preservation matters even where the Board’s response to your argument is dismissive.
Weigh the professional responsibility considerations that Matter of M-K- flags. The Model Rules and state bar rules governing attorney statements about judges remain what they were before this decision. Zealous advocacy for a client’s due process rights is protected by well-established professional standards. The line between reckless attacks on judicial integrity and legitimate due process challenges is a matter for careful judgment in each case. Consult with professional responsibility counsel if the framing of your motion raises concerns.
Who is the respondent in Matter of M-K-?
The BIA anonymized the caption as Matter of M-K-. The respondent’s identity in the parallel federal court litigation is public record: Mahmoud Khalil, a Columbia University graduate whose federal habeas litigation is captioned Khalil v. Trump, 786 F.Supp.3d 871 (D.N.J. 2025), and Khalil v. President, 164 F.4th 259 (3d Cir. 2026), later denied rehearing en banc at 176 F.4th 295 (3d Cir. 2026).
What is a motion to reopen?
A motion to reopen is a request to the BIA (or an Immigration Judge) to revisit a previously decided case based on new evidence that was not previously available and that would likely change the result. The governing regulation is 8 C.F.R. § 1003.2(c)(1). The respondent must also establish prima facie eligibility for the underlying relief sought.
What is the foreign policy ground of removability?
INA § 237(a)(4)(C)(i) authorizes removal of any noncitizen 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.” The provision has historically been rarely used. Its constitutional application to speech-based conduct is the subject of ongoing litigation in the federal courts.
Can Khalil still challenge the removal order?
Yes, through the pathways that were already in progress. Khalil has filed a petition for review with the U.S. Court of Appeals for the Fifth Circuit challenging the April 2026 Matter of M-K- decision. He has also filed a petition for a writ of certiorari with the U.S. Supreme Court seeking review of the Third Circuit’s decision denying rehearing en banc in his parallel federal habeas litigation. Today’s decision denies his motion to reopen at the BIA, but it does not resolve the pending federal court cases.
What is the AllSides Media Bias Chart?
The AllSides Media Bias Chart is a private-sector project maintained by AllSides, LLC, at allsides.com, that categorizes news outlets by perceived ideological lean. The BIA cited it in Matter of M-K- as authority for the proposition that domestic media outlets have documentable ideological valence, which the Board treated as a basis for discounting the New York Times article Khalil submitted. Federal appellate opinions rarely cite private-sector media bias rating websites as authority.
Does this decision affect other immigration cases?
Yes. As a precedent decision, Matter of M-K- binds Immigration Judges and future BIA panels considering motions to reopen based on due process claims involving recusals, expedited docketing, media evidence, affidavits from former EOIR officials, and structural bias claims. The framework the Board articulates in Matter of M-K- is now the applicable standard.
Where can I find Matter of M-K-?
Matter of M-K-, 30 I&N Dec. 84 (BIA 2026), Interim Decision #4250, is a precedent decision of the Board of Immigration Appeals decided September 25, 2026 and available here. The prior decision in the same case is Matter of M-K-, 29 I&N Dec. 556 (BIA 2026) and available here. Both are available through the Department of Justice Executive Office for Immigration Review website.
Novo Legal Group is a bilingual, community-rooted human rights firm. Every attorney on our team is fluent in English and Spanish. We publish same-day analysis when federal decisions shift the ground under our clients, because we know our clients need to make decisions with the current state of the law in view. Our litigation team handles removal defense in immigration court, motions to reopen and rescind, appeals to the Board of Immigration Appeals, petitions for review before federal courts of appeals including the Ninth and Tenth Circuits, and federal habeas corpus petitions. Matter of M-K- is exactly the kind of decision where the record you build in the immigration court is what a federal circuit court will examine. If you have a case that may implicate due process arguments about EOIR procedures, or if you are considering federal court challenges to a BIA outcome, contact us. We will tell you what we would do.