A federal judge on Friday determined that Mahmoud Khalil, the pro-Palestinian activist from Columbia University, will remain in Immigration and Customs Enforcement (ICE) detention after the federal government pivoted its legal strategy.

The Trump administration argued Friday it could detain Khalil, a green card holder, under the justification he kept some of his prior work off his application for permanent residency.

The change comes after District Judge Michael Farbiarz ruled Wednesday the federal government could not detain Khalil due to Secretary of State Marco Rubio’s determination he is a threat to U.S. foreign policy. 

“Khalil is now detained based on that other charge of removability,” the government argued Friday. “Detaining Khalil based on that other ground of removal is lawful.”

The decision isn’t a shock after Farbiarz said in his Wednesday ruling the Trump administration could appeal or keep detaining Khalil based off other justifications.  

“To be sure, it might be argued that the Petitioner would be detained anyway. After all, as noted above, the Department of Homeland Security is seeking to remove the Petitioner based not only on the Secretary of State’s determination but also on a second basis, the Petitioner’s alleged failure to accurately complete his lawful-permanent-resident application,” he wrote at the time.     

The federal government waited until the last moment to present their argument, after Farbiarz originally said Khalil, an Algerian citizen, was to be released by 9:30 a.m. on Friday morning.  

That time came and went, and Khalil was not released, with his lawyers submitting a filing asking the judge to explicitly order his release. The judge gave the Trump administration until 1:30 p.m. to respond.  

Khalil, the lead negotiator for Columbia’s pro-Palestinian encampment last spring, was arrested on March 8, becoming the first known activist to come under the wrath of the Trump’s administration’s foreign student crackdown.    

He has been in detention for three months and missed the birth of his first child.  

“The most immediate and visceral harms I have experienced directly relate to the birth of my son, Deen. Instead of holding my wife’s hand in the delivery room, I was crouched on a detention center floor, whispering through a crackling phone line as she labored alone,” he wrote in court filings last week. 

“I listened to her pain, trying to comfort her while 70 other men slept around me,” he added. 

There are other pro-Palestinian activists who have been released while their immigration proceedings play out in the courts.