Appeals Court: Judge had No Jurisdiction to Release Mahmoud Khalil

Appeals Court: Judge had No Jurisdiction to Release Mahmoud Khalil

The U.S. Court of Appeals for the Third Circuit ruled that District Judge Michael Farbiarz in New Jersey did not have jurisdiction to release anti-Israel Columbia University student Mahmoud Khalil.

From the opinion:

Our conclusion about habeas jurisdiction requires us to answer a second question: Did the Immigration and Nationality Act (INA) strip the New Jersey District Court of subject matter jurisdiction? It did. Because the INA channels “[j]udicial review of all questions of law . . . arising from any action taken or proceeding brought to remove an alien from the United States” into a single petition for review filed with a federal court of appeals, we hold that the District Court lacked jurisdiction over Khalil’s removal proceedings. 8 U.S.C. §1252(b)(9).

Khalil shot to fame during Columbia’s anti-Israel protests as the lead negotiator.

The drama started last March. ICE detained Khalil in compliance with President Donald Trump’s orders prohibiting antisemitism.

The administration said that Khalil led activities aligned with Hamas, so it revoked his visa.

Links:

• March 9: ICE Detain Columbia Activist in Trump Crackdown on Pro-Palestinian Protests (Update: White House Responds)
• April 11: Judge Says Trump Can Deport Mahmoud Khalil
• June 11: Judge Temporarily Blocks Mahmoud Khalil’s Deportation, Allows His Release
• June 21: Judge Orders Release of Mahmoud Khalil

Well, there’s a pesky rule called district-of-confinement, which states that district courts can grant habeas relief only “within their jurisdictions.”

Let’s concentrate on the INA. The Third Circuit said that the District Court has habeas jurisdiction, but it needed subject-matter jurisdiction:

The District Court correctly held that it had habeas jurisdiction over Khalil’s petition. But that was only half of the jurisdictional puzzle. The District Court also needed subject-matter jurisdiction over the action. Yet various provisions of the INA limit an alien’s ability to collaterally attack (challenge) ongoing immigration proceedings through habeas. The District Court did not see those limits as barring subject matter jurisdiction over Khalil’s claims. We disagree. As we explain, 8 U.S.C. §1252(b)(9) strips the District Court of jurisdiction, requiring Khalil to wait to raise his claims until he files a petition for review (PFR) of a final order of removal. So we need not reach the government’s alternative argument that §1252(g) also bars jurisdiction.

Besides jurisdiction, the Third Circuit cited 8 U.S.C. §1252(b)(9) to dispute Khalil’s claims that his removal and detention are unlawful.

The Third Circuit stressed: “That subsection provides: ‘Judicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order [of removal].’ (emphasis added).”

Language is important, which is why the court emphasized those phrases:

Khalil does not dispute that his detention is an “action taken” as a part of his removal proceedings. See Carlson v. Landon, 342 U.S. 524, 538 (1952) (detention is “necessarily” a part of the removal process). And removal proceedings are “proceedings brought to remove an alien.” E.O.H.C. v. Sec’y, U.S. Dep’t of Homeland Sec., 950 F.3d 177, 184 (3d Cir. 2020). The question is whether Khalil’s claims “aris[e] from” that action or proceeding.

Khalil described his claims as “now-or-never ones” since “his injuries are ongoing and his rights are ‘being violated, now.'”

Well, a “now-or-never” claim “raises questions that cannot be reviewed later, on a petition for review of a final order of removal.”

In other words, there is a process, and if it’s not followed, we end up in chaos.

“Letting petitioners raise now-or-never injuries through habeas based on claims that can be litigated later would subvert that channeling scheme,” wrote the court. “If, for instance, a detained alien claimed that the INA section that made him removable was unconstitutionally vague, he could bring that claim right away on habeas (because illegal detention cannot be remedied later).”

You’re not special, Khalil:

Each of the legal questions Khalil raises in his petition can be decided later, on a PFR. He challenges a broad array of alleged governmental misconduct under the First and Fifth Amendments, as well as the Administrative Procedure Act (APA) and Accardi v. Shaughnessy, 347 U.S. 260 (1954). (He also seeks release on bail, but that is a remedy, not an independent claim.) But addressing any of those claims would require deciding whether removing Khalil would be unlawful—the very issue decided through the PFR process. To be sure, the immigration judge’s order of removal is not yet final; the Board has not affirmed her ruling and has held the parties’ briefing deadlines in abeyance pending this opinion. But if the Board ultimately affirms, Khalil can get meaningful review.

[Featured image via YouTube]

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