Mahmoud Khalil v. President United States of America

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 25-2162 & 25-2357
MAHMOUD KHALIL
v.
PRESIDENT UNITED STATES OF AMERICA, et al.
Appellants
(D.N.J. No. 2:25-cv-01963)
________________
SUR PETITION FOR REHEARING
________________
Present: HARDIMAN, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS,
FREEMAN, MONTGOMERY-REEVES, CHUNG, and MASCOTT, Circuit Judges.
The petition for rehearing filed by the Appellee in the above-entitled case having
been submitted to the judges who participated in the decision of this Court and to all the
other available circuit judges of the circuit in regular active service,1 and no judge who
fully concurred in the decision having asked for rehearing,2 and a majority of the judges of
the circuit in regular service not having voted for rehearing, the petition for rehearing by
the panel and the Court en banc, is denied.
BY THE COURT,
s/ Thomas M. Hardiman
Circuit Judge
1 Judges Krause, Restrepo, Freeman, Montgomery-Reeves and Chung vote for rehearing
en banc. Judge Krause, joined by Judges Restrepo and Freeman, files the attached dissent
sur denial of rehearing en banc.
2 Judge Freeman filed a partial dissent as to subject matter jurisdiction but joined the
remainder of the Court’s opinion.

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Dated: May 22, 2026
Tmm/cc: All Counsel of Record

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1
K RAUSE , Circuit Judge, joined by RESTREPO and FREEMAN,
Circuit Judges, dissenting sur denial of rehearing en banc.
Federal courts have “no more right to decline the exercise
of jurisdiction which is given, than to usurp that which is not
given.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404
(1821). So, when the scope of a statute limiting our jurisdiction
is unclear, we are duty-bound to follow “the general rule that
the narrower construction of a jurisdiction-stripping provision
is favored” and to apply a “strong presumption in favor of
judicial review of administrative action.” E.O.H.C. v. Sec’y
U.S. Dep’t of Homeland Sec., 950 F.3d 177, 184 (3d Cir. 2020)
(citation modified). And when reviewing a constitutional
challenge to the detention of a person with significant ties to
this country, we are required to secure the protections of the
Suspension Clause. See U.S. Const. art. I, § 9, cl. 2. Here, by
denying the petition for rehearing en banc and endorsing the
panel majority’s opinion, our Court has done the opposite,
interpreting 8 U.S.C. § 1252(b)(9) in a way that contravenes
the plain reading of the statute, ignores canons of statutory
construction, strains precedent, vitiates the Great Writ, and
imperils the civil liberties of Petitioner Mahmoud Khalil and
similarly situated noncitizens.
Khalil’s case is exceptional in many ways. As a lawful
permanent resident, he is “entitled to broad constitutional
protections,” Osorio-Martinez v. Att’y Gen., 893 F.3d 153, 174
(3d Cir. 2018) (citation modified), including “a right to due
process” when “threatened with deportation,” Landon v.

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2
Plasencia, 459 U.S. 21, 32-33 (1982). But, as pleaded in his
habeas petition, Khalil was specifically targeted for detention
and removal because he exercised his First Amendment right
to speak on matters of public concern: advocating for
Palestinian rights as a student leader at Columbia University.
Five plainclothes officers from the United States Department
of Homeland Security (DHS) arrested Khalil at his home in
New York City—without a warrant—in front of his wife, who
was eight months pregnant at the time. By the next afternoon,
DHS officers had transported Khalil across the country in
shackles, after which he was subjected to more than 100 days
of detention in Louisiana, “sleep[ing] in a bunker without a
pillow or blanket” and unable to witness the birth of his first
child. App. 1044.
Confronted with compelling First and Fifth Amendment
claims, the District Court properly exercised subject-matter
jurisdiction over Khalil’s habeas petition. Nonetheless, the
panel majority held that Ҥ 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.”
Khalil v. President, United States, 164 F.4th 259, 273 (3d Cir.
2026) (per curiam). For the reasons set out in Judge Freeman’s
compelling dissent, that conclusion is mistaken. Rather than
disturbing settled precedent and abdicating our duty to
meaningfully review Khalil’s constitutional claims, we should
be granting the petition for rehearing en banc. Because our
Court declines to do so, I respectfully dissent.

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A. The Panel Majority’s Obstacle-Laden Path to
Relinquishing Jurisdiction
In declining jurisdiction over Khalil’s claims, the panel
majority (1) circumvented the brightline rule of Chehazeh v.
Attorney General, 666 F.3d 118 (3d Cir. 2012),
(2) misinterpreted the holding of E.O.H.C. v. Secretary, United
States Department of Homeland Security, 950 F.3d 177 (3d
Cir. 2020), and (3) recast the nature of Khalil’s
detention-specific habeas claim. Below, I discuss each error in
turn.
1. Evading Chehazeh’s Requirement of a Final
Order of Removal
In Chehazeh, we held unequivocally that § 1252(b)(9)
“applies only with respect to review of [a final] order of
removal”; it does not strip federal courts of jurisdiction where,
as was true at the time of the panel majority’s writing, there is
no such order against the noncitizen. 666 F.3d at 133 (citation
modified). Other Courts of Appeals agreed,1 even after the
Supreme Court addressed the scope of § 1252(b)(9) in
Jennings v. Rodriguez, 583 U.S. 281 (2018).2 The panel
majority, however, declares that the Supreme Court’s
1 See Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir.
2006); Madu v. U.S. Att’y Gen., 470 F.3d 1362, 1367 (11th Cir.
2006).
2 See Öztürk v. Hyde, 136 F.4th 382, 399 (2d Cir. 2025); Suri
v. Trump, No. 25-1560, 2025 WL 1806692, at *8-9 (4th Cir.
July 1, 2025).

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“fractured” opinions interpreting § 1252(b)(9) in Jennings
“abrogated” the Chehazeh rule. Khalil, 164 F.4th at 277.
That conclusion is in error. Where a “fragmented”
Supreme Court does not agree on a single rationale for a
decision, we engage in a Marks analysis and identify the
opinion’s holding “as that position taken by those Members
who concurred in the judgments on the narrowest grounds.”
Marks v. United States, 430 U.S. 188, 193 (1977) (citation
modified). The panel majority asserts that Justice Alito’s
opinion for three-Justices represents the narrowest grounds for
the result in Jennings. Khalil, 164 F.4th at 278. But “what [the
panel] majority extrapolates from Justice Alito’s opinion”
cannot “constitute the Marks holding of the Court,” because it
is “incompatible with the views of the remaining five Justices
who participated in Jennings.” Id. at 284 (Freeman, J.,
dissenting). In addition, the panel majority misunderstands the
opinion’s “case-specific” reasoning. Id. at 283 (Freeman, J.,
dissenting). Justice Alito explained that the Court need not
“attempt to provide a comprehensive interpretation” of
§ 1252(b)(9)’s scope because “it [was] enough to note that” the
petitioners were not raising claims that might pose harder
questions. Jennings, 583 U.S. at 294 (opinion of Alito, J.). The
panel majority concedes that this case-specific reasoning did
not expressly abrogate Chehazeh, yet it proceeds to declare that
Justice Alito’s suggestions about the circumstances in which
“§ 1252(b)(9) would strip jurisdiction,” in some future case,
nevertheless had a broader impact and “necessarily rejected”
the interpretation of § 1252(b)(9) we adopted in Chehazeh.

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Khalil, 164 F.4th at 277-78. It is the panel majority’s opinion
that rejects our interpretation in Chehazeh, not Jennings.
Compounding that error, the panel majority describes its
version of Justice Alito’s rule—that “district courts [can]
adjudicate some, but not all, habeas challenges arising from
actions taken before entry of a final order of removal”—as
narrower than the dissenting Justices’ rule that “district courts
[can] adjudicate all such challenges.” Id. at 278. That framing
has it backwards. The question before the Supreme Court in
Jennings was whether, against the backdrop of a “strong
presumption in favor of judicial review of administrative
action” and a “general rule that the narrower construction of a
jurisdiction-stripping provision is favored,” Congress had
stripped federal courts of jurisdiction under § 1252(b)(9). Id.
at 285 (Freeman, J., dissenting) (citation modified). The
dissenting Justices’ narrower position, in other words,
maintained the default presumption of judicial review by
limiting the scope of § 1252(b)(9).3 The panel majority, in
contrast, jettisons that presumption and gives the
jurisdiction-stripping provision its most expansive scope.
3 See Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1288 (11th Cir.
2020) (en banc) (Martin, J., dissenting) (noting that “our job in
interpreting the jurisdiction-stripping provisions of the INA is
to determine the degree to which Congress clearly intended to
remove this Court’s ability to review executive action” and
concluding that the “narrower reading of the statute (allowing
more judicial review) resolves [such] ambiguity better than the
broad interpretation (allowing much less judicial review)”).

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6
Our holding in Chehazeh that § 1252(b)(9) channels claims
into a petition for review only when there is a final order of
removal remains good law after Jennings. Under Chehazeh,
because Khalil was not subject to a final order of removal at
the time of his appeal, § 1252(b)(9) did not relieve our Court
of its “virtually unflagging obligation” to hear each of Khalil’s
claims. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77
(2013) (citation modified).
2. Redefining E.O.H.C.’s Exception for
Now-or-Never Claims
E.O.H.C. poses an independent obstacle to the panel
majority’s conclusion. In that case, we held that § 1252(b)(9)
does not strip our jurisdiction to resolve “now-or-never
claims.” 950 F.3d at 185. We explained that petitioners raise
“now-or-never claims” when “seek[ing] relief that courts
cannot meaningfully provide alongside review of a final order
of removal.” Id. at 186 (emphasis added). Yet the panel
majority’s opinion states that E.O.H.C. “left open” the question
of whether a claim “alleg[ing] an injury that cannot
be remedied later through a PFR” constitutes a now-or-never
claim. Khalil, 164 F.4th at 274. E.O.H.C. unambiguously
answered that question in the affirmative. See id. at 288-90
(Freeman, J., dissenting) (explaining in detail the ways our
precedent resolved this purportedly open question).
Khalil alleged such an injury: the loss of his First
Amendment freedoms while detained. See id. at 286-88
(Freeman, J., dissenting). As was the case in Jennings, “[b]y

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the time a final order of removal was eventually entered, the
allegedly [unlawful] detention would have already taken
place,” 583 U.S. at 293 (opinion of Alito, J.), so the District
Court properly exercised its jurisdiction to grant “relief that
courts [could not] meaningfully provide alongside review of a
final order of removal,” E.O.H.C., 950 F.3d at 186; see also
Jennings, 583 U.S. at 293 (opinion of Alito, J.) (“[C]ramming
judicial review of [unlawful detention] into the review of final
removal orders would be absurd.”).4 Had the panel majority
applied our precedent as written, § 1252(b)(9) would pose no
obstacle to our review of Khalil’s now-or-never claims. But
by instead sidestepping our holding in E.O.H.C., the panel
majority withdraws from our Court’s obligation to provide an
avenue for meaningful review and relief.
3. Mischaracterizing Khalil’s Detention-Specific
Claim
Khalil brought a “detention-specific claim” that the
Government “violated the Fifth Amendment’s Due Process
Clause by arresting and confining him to punish him.” Khalil,
164 F.4th at 277. So even after bypassing our holdings in
Chehazeh and E.O.H.C., the panel majority still had to
confront Supreme Court precedent holding that § 1252(b)(9)
does not bar review of detention-specific claims, such as
4 The relief granted by the District Court was only “fleetingly
obtained” now that this Court’s decision renders Khalil subject
to re-detention. Khalil v. President, United States, 164 F.4th
259, 287 (3d Cir. 2026) (Freeman, J., dissenting).

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challenges to the conditions or length of confinement. Id. at
277, 279 (citing Jennings, 583 U.S. at 293-94). The panel
majority overcomes this final obstacle only by framing
Khalil’s claim as “just repackag[ing] his challenges to his
removal,” and attempting to “plead around § 1252(b)(9) by
calling his challenge to removal a challenge to his detention.”
Id. at 277. But it is the panel majority that repackages the claim
actually pleaded.
In the District Court, Khalil claimed, among other things,
that the Government took him into custody and detained him,
without legitimate justification, in violation of the Due Process
Clause of the Fifth Amendment, and he sought to be released
from that custody. Before the Immigration Judge, Khalil
sought relief from removal, including by challenging the
charges of removability under 8 U.S.C. § 1227(a)(1)(A) and
(a)(4)(C), and seeking a waiver pursuant to 8 U.S.C.
§ 1227(a)(1)(H). Those detention arguments plainly stand
independent of Khalil’s claims for relief from removal. Yet
the panel majority maintains that Khalil’s due process claim
“aris[es] from” the challenges to his removal. Khalil, 164 F.4th
at 274. That blinks reality, and we should acknowledge as
much.
Khalil’s amended habeas petition seeks various forms of
relief as to multiple claims, which is perfectly permissible.
Pleading for “relief in the alternative or different types of
relief,” Fed. R. Civ. P. 8(a)(3), “is, of course, authorized by the
Federal Rules of Civil Procedure,” Howard Hess Dental
Lab’ys Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 256 (3d Cir.

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2010), and “overlap, even substantial substantive overlap, does
not make one claim arise out of the other, or necessitate that
one claim controls the outcome of the other,” Öztürk v. Hyde,
136 F.4th 382, 400 (2d Cir. 2025).
Even if the merits of Khalil’s detention-specific claim did
“rise[] or fall[] with the others,” Khalil, 164 F.4th at 277—
which they do not—the panel majority’s concern that an earlier
review of that claim could have preclusive effect or trigger
law-of-the-case doctrine in subsequent petition-for-review
proceedings would not negate our duty to reach the merits of
that claim now. To the contrary, we should recognize that
“human rights do not cower before the speculative perils of
duplicative litigation.” Suri v. Trump, No. 25-1560, 2025 WL
1806692, at *1 n.1 (4th Cir. July 1, 2025).5 Yet even as it
acknowledges that a claim challenging a detainee’s excessively
long detention or deprivation of “insulin, halal, or kosher food”
would not ‘arise from’ the detainee’s removal proceedings
under § 1252(b)(9) and would therefore be reviewable, Khalil,
5 See also Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 128 (2014) (Scalia, J.) (“[A] court . . .
cannot limit a cause of action that Congress has created merely
because ‘prudence’ dictates.”); Will v. Hallock, 546 U.S. 345,
355 (2006) (explaining that preclusion concerns have “not
been thought to protect values so great” as to warrant
exceptions to jurisdictional rules); Def. Distributed v. Att’y
Gen. of N.J., 167 F.4th 65, 74 (3d Cir. 2026) (explaining that
the law-of-the-case doctrine “is not an inexorable command”
and “does not limit the tribunal’s power” to decide a case
(citation modified)).

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164 F.4th at 279 (citing E.O.H.C., 950 F.3d at 186), the panel
majority elides Khalil’s distinct challenge to his detention on
Fifth Amendment grounds and his challenge to the propriety of
his removal. To the extent the panel majority’s attempt to
distinguish Khalil’s detention-specific claim relies on a belief
that both the removal and detention challenges “depend[] on”
a determination of whether 8 U.S.C. § 1227(a)(4)(C)’s foreign
policy ground is “unconstitutionally vague,” id. at 277, it fails
to recognize that Khalil’s Fifth Amendment claim stands
independent of his challenge to § 1227(a)(4)(C). Khalil seeks
relief from detention that he asserts “is punitive as it bears no
reasonable relation to any legitimate government purpose.”
App. 1052 (citation modified); see also Zadvydas v. Davis, 533
U.S. 678, 690 (2001) (indicating that civil detention violates
due process if it is punitive in its intent or excessive in relation
to any legitimate government interest in detention). That claim
is detention-specific, notwithstanding any overlap between it
and his claims that his removal is unconstitutional.6
6 See Öztürk, 136 F.4th at 399 (explaining that if “the
government arrested and detained [a noncitizen] to prevent
speech with which it disagrees,” that act “would be a violation
of the Constitution—quite separate from the removal
procedures followed by the immigration courts”). If, as the
panel majority contends, we lack jurisdiction to review
Khalil’s detention-specific claim, what principled reason
would we have to review habeas claims alleging detention on
account of race, religion, or other protected grounds, so long as
the noncitizen is in removal proceedings? Under the panel
majority’s view, none.

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Thus, setting aside the panel majority’s mishandling of our
precedent, under Jennings alone, we have an obligation to
review Khalil’s unquestionably detention-specific claim,
which seeks release from detention “without affecting [his]
pending removal proceedings.” Öztürk, 136 F.4th at 399.
B. The Deleterious Consequences of the Panel
Majority’s Decision
Only by straining precedent and conflating Khalil’s distinct
claims can the panel majority conclude that Congress, via
§ 1252(b)(9), has taken this case out of our hands. The
consequences are profound.
The panel majority’s reading of § 1252(b)(9) violates the
Suspension Clause. Throughout our Nation’s history,
Congress has taken great care “to preserve the writ [of habeas
corpus] and its function” by refraining from stripping our
jurisdiction in ways that may violate the Suspension Clause.
Boumediene v. Bush, 553 U.S. 723, 773 (2008); see U.S.
Const., art. I, § 9, cl. 2. Here, the panel majority eschews the
canon of constitutional avoidance and, instead, simply declares
that “the availability of the PFR process satisfies the
Suspension Clause.” Khalil, 164 F.4th at 279. Challenging
executive detention as unlawful and unconstitutional, however,
is at the “core” of the habeas writ, Dep’t. of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103, 119 (2020), particularly where,
as here, an individual is (1) detained “by executive order,
rather than, say, after being tried and convicted in a court,”
Boumediene, 553 U.S. at 783, and (2) a lawful permanent

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resident with close relationships to the United States and
“broad constitutional protections,” Osorio-Martinez, 893 F.3d
at 174 (citation modified). The grave implications of the panel
majority’s treatment of the Suspension Clause warrant review
by the full Court.
Even if the petition-for-review process could remedy the
First Amendment injuries Khalil alleges during his removal
proceedings—which for the reasons described above, it
cannot—it undoubtedly fails to satisfy the Suspension Clause
regarding his detention-specific claim. As to that latter claim,
“the question [is] whether the statutory review procedures
for . . . detainees seeking release from custody provide[] an
adequate substitute for a habeas petition seeking release,”
Thuraissigiam, 591 U.S. at 127, not whether the
petition-for-review process provides an adequate substitute for
a habeas petition seeking “vacatur of his removal order” or
other relief that may fall outside the traditional scope of the
common-law writ, id. at 117-18 (citation modified). And
because “the allegedly excessive detention would have already
taken place” when Khalil’s “final order of removal was
eventually entered,” his detention-specific claim will be
“effectively unreviewable” under the purported substitute for
habeas review. Jennings, 583 U.S. at 293. Thus, the
petition-for-review process is not an adequate substitute for
Khalil’s habeas petition seeking release.
In the wake of the panel majority’s decision, Khalil’s only
ostensible opportunity for meaningful review depends on
multiple contingencies beyond our Court’s control: (1) that

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when reviewing Khalil’s petition for review,7 the Fifth Circuit
will apply the panel majority’s novel reading of the Hobbs Act
to “remand [the] case to a district court for a hearing with more
factfinding,” Khalil, 164 F.4th at 280 (citing 28 U.S.C.
§ 2347(b)(3)); and (2) that the Government will honor the
assurances it made at oral argument to “not object to a
district-court remand if Khalil sought one from the PFR court,”
id. These would be shaky foundations for meaningful review
even if Khalil’s due process and First Amendment claims were
before our Court.8 But they are not. By denying en banc
rehearing, we have taken ourselves out of the picture entirely,
7 Khalil must bring his petition for review of the Board of
Immigration Appeals’ (BIA) removal decision in the United
States Court of the Appeals for the Fifth Circuit because that is
“the court of appeals for the judicial circuit in which the
immigration judge completed the proceedings.” 8 U.S.C.
§ 1252(b)(2).
8 The BIA’s recent opinion entering a final order of removal
against Khalil illustrates this point. The panel majority
discounted Judge Freeman’s concern that the Fifth Circuit
“may not obtain fact-finding, raising the prospect that Khalil
will not be able to develop an adequate factual record for his
constitutional claims” because, “given the Government’s
concessions,” it deemed that circumstance “unlikely.” Khalil,
164 F.4th at 281 (citation modified). Yet the BIA paid no
attention to the Government’s concessions, instead declaring
that it is “not bound by statements of Government counsel
during the litigation of Khalil before the Third Circuit.” Matter
of M- K-, 29 I. & N. Dec. 556, 559 n.5 (BIA 2026). Though it
would be unfortunate, the Fifth Circuit could do the same.

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closing our courthouse doors to Khalil without reckoning with
the possibility that the doors will never be opened in a forum
where he can develop a record pertinent to the constitutional
claims at issue.
The panel majority is troubled that our hearing of Khalil’s
claim might allow “piecemeal litigation” over a noncitizen’s
removal and thus seeks to “ensure[] that petitioners get only
one bite at the apple” when challenging their removal. Id. at
275. But that fear is not well-founded for the reasons Judge
Freeman and I have explained. And far more troubling are the
consequences of our decision today: Khalil may well have no
bite at the apple.
* * *
The Judiciary “serves as an inseparable element of the
constitutional system of checks and balances,” Commodity
Futures Trading Comm’n v. Schor, 478 U.S. 833, 850 (1986)
(citation modified), protecting civil liberties and checking
legislative and executive discretion. We cannot fulfill that role
if we write ourselves out of relevance and leave the Executive
Branch to check itself. Because the panel majority’s decision
“handcuffs the Judiciary’s ability to perform its constitutional
duty to safeguard individual liberty and dismantles a critical
component of the separation of powers,” Thuraissigiam, 591
U.S. at 159 (Sotomayor, J., dissenting), I respectfully dissent
from the denial of rehearing en banc.

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