On January 15, the U.S. Court of Appeals for the Third Circuit issued an opinion in the case of Mahmoud Khalil — the Columbia University graduate student and Palestinian “activist” who become a poster boy for Trump II immigration “overreach” after the secretary of State concluded his “activities and presence ... in the United States” had “potentially serious adverse foreign policy consequences”, triggering removal proceedings. That precedent underscores a point I’ve made repeatedly of late: Congress has largely barred U.S. district court review of immigration matters. Expect similar precedent opinions to follow, at least until the Supreme Court weighs in.
The Khalil Case, in Brief
In 2022, Khalil was admitted on an F-1 nonimmigrant student visa to attend Columbia University in New York City, where he played a disputed role in campus protests (some violent) over the war between Israel and Hamas in Gaza.
Thereafter, in November 2024, he adjusted his status to lawful permanent resident (“green card holder”) premised on his marriage to a U.S. citizen.
ICE arrested Khalil in early March, relying on a letter issued by Secretary of State Marco Rubio that concluded Khalil’s “activities and presence ... in the United States would have potentially serious adverse foreign policy consequences and would compromise a compelling foreign policy interest”.
Given Rubio’s determination, ICE placed Khalil into removal proceedings and charged that he was removable on the “foreign policy” ground of deportation, section 237(a)(4)(C) of the Immigration and Nationality Act (INA).
It states, in pertinent part: “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.”
Directly after his arrest, Khalil, through counsel, filed a petition for writ of habeas corpus seeking release with the U.S. District Court for the Southern District of New York (S.D. N.Y.).
Habeas actions are premised on detention, but ICE didn’t detain him in New York, though it did briefly hold him at the agency’s Elizabeth (N.J.) Detention Facility before transferring him to an immigration detention center in Louisiana based on an alleged “bedbug issue” that barred his continued detention in Elizabeth.
Because he was in New Jersey when he filed his petition, an S.D. N.Y. district court judge transferred his case, Khalil v. Joyce, to the U.S. district court in New Jersey (D. N.J.) — not to the Western District of Louisiana (W.D. La.) where he was then being held, as the government had requested.
The matter was assigned to Judge Michael Farbiarz of the D. N.J., and on June 11, Judge Farbiarz enjoined the government from both removing and detaining Khalil based on Rubio’s foreign policy determination. Finally, on June 20, he directed DHS to release Khalil in a brief, two-page order.
Khalil was released, though by that point ICE had lodged an additional deportation charge, alleging he was removable under section 237(a)(1)(A) of the INA for having failed to “disclose certain information” when he applied for his green card.
Specifically, ICE alleged, Khalil failed to mention that he’d been a “political affairs officer for the United Nations Relief and Works Agency for Palestine Refugees” (UNWRA) and had previously been employed “as a program manager by the Syria Office in the British Embassy in Beirut”.
On June 20 (the same day as the D. N.J.’s release order), an immigration judge in Louisiana found Khalil removable on both the “foreign policy” ground and under the section 237(a)(1)(A) charge and denied an asylum application he had filed as relief from removal.
In a July 17 order, Judge Farbiarz found that the “the immigration judge concluded [Khalil] is not eligible for asylum — for reasons that she explicitly stated are not based on the Secretary of State’s determination”. On that basis, he held that the asylum decision did not violate his injunction.
He concluded, however, that other parts of the immigration judge’s decision were at odds with his order and directed the immigration court to consider whether Khalil was eligible for a separate form of relief, a waiver to the “fraud at adjustment” ground of removability under section 237(a)(1)(H) of the INA.
In response, on September 12, the immigration judge issued a decision denying that waiver and ordering Khalil removed under section 237(a)(1)(A) of the INA.
Thereafter, on September 17, counsel for Khalil wrote a letter to the D. N.J. complaining the immigration judge’s order “is part and parcel of [the government’s] broader effort to retaliate against [Khalil] for his constitutionally protected expression in support of Palestinian rights” that “represents a substantial threat to [Khalil’s] liberty, family integrity and if ultimately removed, his physical safety”.
Nonetheless, Khalil filed a timely administrative appeal from the immigration judge’s decision to the Board of Immigration Appeals (BIA) on October 9, which the BIA accepted on October 14.
Here’s where it gets really interesting: On October 28, counsel for Khalil filed a letter with Judge Farbiarz, “alert[ing] the Court to relevant developments in his immigration case”, specifically that the BIA had directed counsel to file an opening brief by November 12, with a government response by December 3.
In essence, Khalil was complaining that the BIA was hearing his case too quickly; at the parties’ request, the BIA subsequently agreed to hold its decision in abeyance.
The Third Circuit
On June 20, DOJ filed a Notice of Appeal with the Third Circuit of Judge Farbiarz’s release order, and 131 circuit-court docket entries later, on January 15, the circuit court issued its opinion, per curiam (unsigned, for the court as a whole).
It was a split decision, with two circuit judges on the three-judge panel (Thomas Hardiman, a George W. Bush appointee, and Stephanos Bibas, a Trump I appointee) in the majority and Judge Arianna Freeman (a Biden appointee) in dissent.
Rejecting the government’s arguments, the majority concluded the D. N.J. did have habeas jurisdiction over Khalil’s case, even though he was being held in Louisiana.
Caught in the “Zipper Clause”
What Judge Farbiarz lacked, however, was subject matter jurisdiction over the matter, thanks to section 242(b)(9) of the INA.
That provision is popularly known as the “zipper clause” because it’s intended to streamline judicial review of immigration questions into one circuit — not district — court “petition for review” (PFR) filed “with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings” to avoid lengthy piecemeal litigation that would improperly slow the removal process.
The zipper clause, captioned “consolidation of questions for judicial review”, states, in pertinent part:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, 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 under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus ... or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
The key phrase there is “arising from” because it begs the question of which legal and factual claims arise “from any action taken or proceeding brought to remove the alien from” this country and which don’t.
In its February 2020 opinion in E.O.H.C. v. Secretary, citing the Talmud, the Third Circuit answered that question in terms of "If not now, when?"
As the circuit explained, “When a detained alien seeks relief that a court of appeals cannot meaningfully provide on petition for review of a final order of removal” — in that case, claimed harm under the Trump I “Remain in Mexico” policy — section 242(b)(9) of the INA “does not bar consideration by a district court”.
The majority concluded, however, that Judge Farbiarz lacked subject-matter jurisdiction because: “Each of the legal questions Khalil raises in his petition can be decided later, on a PFR.”
That would be true even if the BIA skipped the foreign policy ground of removal on administrative appeal and held solely that Khalil failed to disclose material facts when applying for a green card and is thus removable under section 237(a)(1)(A) of the INA.
That’s because the majority concluded that the zipper clause “has nothing to say about questions that cannot be raised now or later. Those claims are unreviewable for reasons unrelated to the INA.”
And “because the arguments Khalil has offered to challenge the detention necessarily challenge the government’s decision to commence removal proceedings, the PFR court will be able to review those ‘legal questions’ once the Board enters a final order of removal” (cleaned up).
As the majority explained:
In essence, [Khalil] argues that his detention is impermissible retaliation and unlawful because it depends on the unconstitutionally vague foreign policy ground. So his ‘punitive detention’ claim rises or falls with the others. We judge pleadings not by their labels, but by their substance. Khalil cannot plead around [section 242(b)(9) of the INA] by calling his challenge to removal a challenge to his detention. [Citations omitted.]
Unless the alien seeks review by the Third Circuit as a whole, or certiorari from the Supreme Court, this case is now in the hands of the BIA, and if the Board orders him removed and Khalil seeks further judicial review, it will be with the Fifth Circuit, which has jurisdiction over the immigration judge in Louisiana.
The Broader Implications of “One Bite at the Apple”
The majority’s opinion has broader implications for more significant questions than just whether Judge Farbiarz had jurisdiction over Mahmoud Khalil’s various (and sundry) claims.
The zipper clause in section 242(b)(9) of the INA notwithstanding, district courts retain habeas jurisdiction over “conditions-of-confinement claims”. But as the majority explained:
True conditions-of confinement challenges attack the conditions at the detention center as “inhumane.” Examples include depriving inmates of needed insulin, halal, or kosher food. Khalil’s argument has nothing to do with the conditions in which he was being held, but the mere fact of detention. [Citations omitted.]
They also putatively have jurisdiction over habeas claims alleging the INA permits bond hearings that the executive branch refuses to hold, at least until some higher court says otherwise.
Notably, however, as the majority concluded:
The immigration laws enacted by Congress ordinarily require an alien to challenge his deportation in a PFR — unless he raises questions that a court of appeals could not meaningfully review in that context. That scheme ensures that petitioners get just one bite at the apple — not zero or two. But it also means that some petitioners, like Khalil, will have to wait to seek relief for allegedly unlawful government conduct.
Any number of soi-disant, though questionable, habeas claims have cropped up in Trump II immigration cases; given that Congress has largely cut the district courts out of review in section 242 of the INA, it’s no wonder the inexperienced judges considering them aren’t sure how to proceed.
When in doubt, lower courts generally find they have jurisdiction and then leave the question for appeal. The Third Circuit’s opinion in Khalil’s case, however, is the first Trump II precedent that clearly limits the jurisdiction of district courts in immigration cases under the “zipper clause” in section 242(b)(9) of the INA — but it likely won’t be the last.