At a stated term of the United States Court of Appeals for the Second Circuit, held… v. 25-1019 Patricia Hyde

1
25-1019; 25-1113
Öztürk v. Hyde; Mahdawi v. Trump
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 19 th day of September, two thousand twenty-five.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
RICHARD J. SULLIVAN,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
EUNICE C. LEE,
BETH ROBINSON,
MYRNA PÉREZ,
ALISON J. NATHAN,
SARAH A. L. MERRIAM,
MARIA A. KAHN,
Circuit Judges.
_____________________________________
RUMESYA ÖZTÜRK,
Petitioner-Appellee,
v. 25-1019
PATRICIA HYDE, IN HER OFFICIAL
CAPACITY AS THE NEW ENGLAND
FIELD DIRECTOR FOR U.S.
IMMIGRATION AND CUSTOMS

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ENFORCEMENT, MICHAEL KROL, IN
HIS OFFICIAL CAPACITY AS HSI NEW
ENGLAND SPECIAL AGENT IN
CHARGE, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, TODD
LYONS, IN HIS OFFICIAL CAPACITY AS
ACTING DIRECTOR, U.S. IMMIGRATION
AND CUSTOMS ENFORCEMENT, KRISTI
NOEM, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY, MARCO A. RUBIO, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF
STATE, DONALD J. TRUMP, IN HIS
OFFICIAL CAPACITY AS PRESIDENT OF
THE UNITED STATES,
Respondents-Appellants.
_____________________________________
MOHSEN MAHDAWI,
Petitioner-Appellee,
v. 25-1113
DONALD J. TRUMP, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
UNITED STATES, PATRICIA HYDE, IN
HER OFFICIAL CAPACITY AS ACTING
BOSTON FIELD OFFICE DIRECTOR,
IMMIGRATION AND CUSTOMS
ENFORCEMENT, ENFORCEMENT AND
REMOVAL OPERATIONS, J DOE, IN

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OFFICIAL CAPACITY AS VERMONT
SUB-OFFICE DIRECTOR OF
IMMIGRATION AND CUSTOMS
ENFORCEMENT, ENFORCEMENT AND
REMOVAL OPERATIONS, TODD LYONS,
IN HIS OFFICIAL CAPACITY AS ACTING
DIRECTOR, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, KRISTI
NOEM, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY, MARCO A. RUBIO, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF
STATE, PAMELA BONDI, IN HER
OFFICIAL CAPACITY AS U.S.
ATTORNEY GENERAL,
Respondents-Appellants.
_____________________________________
For Respondents-Appellants in
Öztürk and Mahdawi:
D REW C. E NSIGN, Alanna T. Duong, Yaakov
M. Roth, Civil Division, United States
Department of Justice, Washington, D.C.
Michael P. Drescher, Acting United States
Attorney for the District of Vermont,
Burlington, VT.
For Respondents-Appellants in
Öztürk:
For Respondents-Appellants in
Mahdawi:
Sarah S. Wilson, Civil Division, United
States Department of Justice, Washington,
D.C.
Dhruman Y. Sampat, Ernesto H. Molina,
Civil Division, United States Department of
Justice, Washington, D.C.

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For Petitioners-Appellees Rumesya
Öztürk and Mohsen Mahdawi:
E SHA B HANDARI (arguing on behalf of
Rumesya Öztürk), Brett Max Kaufman,
Brian Hauss, Noor Zafar, Sidra Mahfooz,
American Civil Liberties Union Foundation,
New York, NY.
N AZ AHMAD (arguing on behalf of Mohsen
Mahdawi), Ramzi Kassem, Mudassar Hayat
Toppa, Shezza Abboushi Dallal, CLEAR
Project, Main Street Legal Services, Inc.,
Long Island City, NY.
Lia Ernst, Monica H. Allard, ACLU
Foundation of Vermont, Montpelier, VT.
For Petitioner-Appellee Rumesya
Öztürk:
Jessie J. Rossman, Adriana Lafaille, Rachel
E. Davidson, Julian Bava, American Civil
Liberties Union Foundation of
Massachusetts, Inc., Boston, MA.
Mahsa Khanbabai, North Easton, MA.
Matthew D. Brinckerhoff, Katherine
Rosenfeld, Vasudha Talla, Sonya Levitova,
Emery Celli Brinckerhoff Abady Ward &
Maazel LLP, New York, NY.
For Petitioner-Appellee Mohsen
Mahdawi:
Nathan Freed Wessler, American Civil
Liberties Union Foundation, New York, NY.
Hillary A. Rich, ACLU Foundation of
Vermont, Montpelier, VT.
Andrew B. Delaney, Martin Delaney & Ricci
Law Group, Barre, VT.

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Luna Droubi, Matthew Melewski, Keegan
Stephan, Beldock Levine & Hoffman LLP,
New York, NY.
Cyrus D. Mehta, David A. Isaacson, Cyrus
D. Mehta & Partners PLLC, New York, NY.
Following the issuance of the motion panel’s opinion in Öztürk v. Hyde on
May 7, 2025, and its opinion in Mahdawi v. Trump on May 9, 2025, denying the
government’s motion to stay in both cases and denying the government’s request
for a writ of mandamus in both cases, a petition for panel rehearing and rehearing
en banc was filed in each case. An active judge of the Court requested a poll on
whether to rehear the motions en banc. A poll having been conducted and there
being no majority favoring en banc review, the petition for rehearing en banc is
hereby DENIED.
Steven J. Menashi, Circuit Judge, joined by Michael H. Park, Circuit Judge,
concurs by opinion from the denial of rehearing en banc.
Alison J. Nathan, Circuit Judge, joined by Eunice C. Lee, Beth Robinson,
Myrna Pérez, Sarah A. L. Merriam, and Maria A. Kahn, Circuit Judges, concurs
separately by opinion in the denial of rehearing en banc.
Barrington D. Parker and Susan L. Carney, Circuit Judges, filed a statement
with respect to the denial of rehearing en banc.
Raymond J. Lohier, Jr., and Joseph F. Bianco, Circuit Judges, took no part in
the consideration or decision of the petition.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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25-1019; 25-1113
Ozturk v. Hyde; Mahdawi v. Trump
MENASHI , Circuit Judge, joined by PARK , Circuit Judge, concurring in
the denial of rehearing en banc:
In these cases, a motions panel issued opinions denying
motions for stays pending appeal. See Ozturk v. Hyde, 136 F.4th 382
(2d Cir. 2025); Mahdawi v. Trump, 136 F.4th 443 (2d Cir. 2025). The
government has petitioned for rehearing en banc of those decisions.1
In my view, the motions panel erred by authorizing the use of
habeas to collaterally attack ongoing removal proceedings. Congress
has provided that “no court shall have jurisdiction, by habeas
corpus … or by any other provision of law,” to review any questions
of law or fact “arising from any action taken or proceeding brought
to remove an alien from the United States” except on a petition for
review of a final order of removal. 8 U.S.C. § 1252(b)(9). Moreover,
“no court shall have jurisdiction to hear any cause or claim” that arises
from “the decision or action” to “commence” removal proceedings.
Id. § 1252(g). While these jurisdictional bars may still allow aliens to
challenge the conditions of their confinement during removal
proceedings, the statutes do not permit the use of habeas to
“challeng[e] the decision to detain them in the first place or to seek
removal.” Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) (plurality
opinion). Yet that is precisely how the motions panel allowed habeas
to be used in these cases. In doing so, the motions panel created
conflicts with other circuits and decided questions of exceptional
importance that would normally justify rehearing en banc. See Fed. R.
App. P. 40(b).
1 See Petition for Rehearing, Ozturk v. Hyde, No. 25-1019 (2d Cir. May 18,
2025), ECF No. 82; Petition for Rehearing, Mahdawi v. Trump, No. 25-1113
(2d Cir. May 18, 2025), ECF No. 93.

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2
Under the circumstances, however, the en banc court will not
rehear the decisions of the motions panel to deny the stays pending
appeal. Briefs have already been filed in the merits appeals, and the
legal questions will be decided on the merits. The opinion of the
motions panel will not constrain what the merits panel may decide
either as law of the case or through precedent.
I
The motions panel erred by treating removal and detention in
anticipation of removal as separate processes for purposes of the
jurisdictional provisions of the Immigration and Nationality Act
(“INA”). The motions panel concluded that challenges to
immigration detention are “independent of, or wholly collateral to,
the removal process.” Ozturk, 136 F.4th at 397; Mahdawi, 136 F.4th at
450. But that is wrong.
Both petitioners here were detained in anticipation of removal.
The record before the motions panel indicated that Mahdawi was
detained after the Secretary of State determined that his presence in
the United States would have “serious adverse foreign policy
consequences,” Mahdawi, 136 F.4th at 447, and that Ozturk was
detained after the State Department revoked her student visa on a
similar basis, see Ozturk, 136 F.4th at 388-89. “On a warrant issued by
the Attorney General, an alien may be arrested and detained pending
a decision on whether the alien is to be removed from the United
States.” 8 U.S.C. § 1226(a). That is the authority the government
exercised here. It did not detain the petitioners for any reason
independent of its decision to commence removal proceedings. It
detained them because of those proceedings. Neither petitioner has
alleged a reason for his or her detention that is not also the reason for
the government’s decision to commence removal proceedings.

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See, e.g., Habeas Petition at 1, Mahdawi v. Trump, No. 25-1113 (2d Cir.
May 1, 2025), ECF No. 7 (seeking habeas relief based on the
government’s alleged “retaliatory and targeted detention and
attempted removal of Mr. Mahdawi for his constitutionally protected
speech”) (emphasis added).2
Congress has—in three separate provisions of the INA—
directed that courts may not entertain a habeas challenge under these
circumstances because challenges to removal must be decided on a
petition for review of a final order of removal.
A
First, § 1252(g) provides that “no court shall have jurisdiction
to hear any cause or claim by or on behalf of any alien arising from
the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any
alien under this chapter.” 8 U.S.C. § 1252(g). The Supreme Court has
2 The concurring opinion on behalf of the panel indulges the fiction that
Ozturk was “arrested solely due to an op-ed article she had written” and
that Mahdawi was “arrested solely in retaliation for his … advocacy work.”
Post at 1-2. In fact, the reason for their arrests was the decision to initiate
removal proceedings; the Attorney General may detain aliens pending
removal proceedings under 8 U.S.C. § 1226(a). The reason for their removals
is the determination of the Secretary of State that their conduct—including
the conduct the concurring opinion identifies—undermined U.S. foreign
policy. It is possible to reach the conclusion that the reasons for the removals
are actually the “sole[]” reasons for the detentions only by ignoring the fact
that the petitioners have been placed in removal proceedings. While
petitioners may make “challenges to detention that are independent of
challenges to removal orders” by challenging the conditions of their
confinement, the petitioners here instead challenged the grounds for the
removal proceedings. H.R. Rep. No. 109-72, at 176 (2005) (Conf. Rep.), as
reprinted in 2005 U.S.C.C.A.N. 240, 301.

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4
held that § 1252(g) bars the claims of aliens that the government is
“selectively enforcing immigration laws against them in violation of
their First and Fifth Amendment rights” because such claims
represent a “challenge to the Attorney General’s decision to
‘commence proceedings’ against them.” Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 474, 487 (1999) (quoting 8 U.S.C.
§ 1252(g)). The decision of the government to commence removal
proceedings against an alien includes the detention of the alien
pending the removal determination. See 8 U.S.C. § 1226(a). In other
words, the decision to detain is a “specification of the decision to
‘commence proceedings’ which … § 1252(g) covers.” Reno, 525 U.S. at
485 n.9.
Other circuits have recognized this straightforward point.
“By its plain terms,” § 1252(g) “bars us from questioning [the
government’s] discretionary decisions to commence removal” of an
alien, which include the “decision to take him into custody and to
detain him during his removal proceedings.” Alvarez v. ICE, 818 F.3d
1194, 1203 (11th Cir. 2016).3 As a result, “claims stemming from the
decision to arrest and detain an alien at the commencement of
removal proceedings are not within any court’s jurisdiction.” Limpin
v. United States, 828 F. App’x 429, 429 (9th Cir. 2020). 4 The
3 See also Gupta v. McGahey, 709 F.3d 1062, 1065 (11th Cir. 2013) (“Securing
an alien while awaiting a removal determination constitutes an action taken
to commence proceedings.”); Suri v. Trump, No. 25-1560, 2025 WL 1806692,
at *11 (4th Cir. July 1, 2025) (Wilkinson, J., dissenting) (“[W]hen the
government detains an alien under § 1226(a)—which authorizes detention
‘pending a decision on whether the alien is to be removed’—the detention
arises from the commencement of proceedings or adjudication of cases.”).
4 See also Sissoko v. Rocha, 509 F.3d 947, 949-50 (9th Cir. 2007) (“Sissoko’s
detention arose from Rocha’s decision to commence expedited removal
proceedings. As a result, 8 U.S.C. § 1252(g) applies to the Sissokos’

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jurisdictional bar of § 1252(g) does not distinguish between different
grounds for such a claim. The decisions of the motions panel
authorizing such claims despite § 1252(g) created a conflict with these
circuits.
B
Second, § 1252(b)(9) provides that “[j]udicial 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
under this subchapter shall be available only in judicial review of a
final order.” 8 U.S.C. § 1252(b)(9). Congress specified that “no court
shall have jurisdiction, by habeas corpus under [28 U.S.C. § 2241] or
any other habeas corpus provision … or by any other provision of law
(statutory or nonstatutory), to review such an order or such questions
of law or fact.” Id.; see also id. § 1252(a)(5) (applying the same
jurisdictional bar to “judicial review of an order of removal”). While
§ 1252(b)(9) may not bar claims challenging the conditions or scope of
detention of aliens in removal proceedings, it does bar claims
“challenging the decision to detain them in the first place.” Jennings,
583 U.S. at 294 (plurality opinion).5 By making such a challenge, the
claim. … [W]e hold that 8 U.S.C. § 1252(g)’s jurisdiction-stripping language
covers the Sissokos’ false arrest claim. The claim directly challenges Rocha’s
decision to commence expedited removal proceedings.”); Jimenez-Angeles v.
Ashcroft, 291 F.3d 594, 599 (9th Cir. 2002) (“We construe § 1252(g), which
removes our jurisdiction over ‘decisions to commence proceedings’ to
include not only a decision in an individual case whether to commence, but
also when to commence, a proceeding.”) (alterations omitted).
5 See also Jennings, 583 U.S. at 317 (Thomas, J., concurring in part and
concurring in the judgment) (“Section 1252(b)(9) is a ‘general jurisdictional
limitation’ that applies to ‘all claims arising from deportation proceedings’
and the ‘many decisions or actions that may be part of the deportation

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6
habeas claims require a court to answer “legal questions” that arise
from “an action taken to remove an alien,” so the claims “fall within
the scope of § 1252(b)(9).” Jennings, 583 U.S. at 295 n.3 (plurality
opinion). The habeas claims in these cases do exactly that.
Again, other circuits have reached this conclusion. When an
alien “seeks release from detention,” if “his claim is based on the
alleged invalidity of his order of removal” or his anticipated removal,
“he is seeking ‘judicial review of an order of removal’ which is
barred.” Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1275 (10th Cir.
2018) (quoting 8 U.S.C. § 1252(a)(5)). Thus, “[w]hen a claim by an
alien, however it is framed, challenges the procedure and substance
of an agency determination that is ‘inextricably linked’ to the order of
removal, it is prohibited by section 1252(a)(5).” Martinez v. Napolitano,
704 F.3d 620, 623 (9th Cir. 2012).
Our court has previously reached the same conclusion. In
Delgado v. Quarantillo, an alien subject to a reinstated removal order
brought a mandamus action to compel the government to adjudicate
her Form I-212 application for a waiver of inadmissibility. See 643 F.3d
52, 54 (2d Cir. 2011). We explained that “[o]btaining such a waiver is
a necessary prerequisite to her ultimate goal of adjustment of status”
and that “an adjustment-of-status challenge is inextricably linked to
the reinstatement of an alien’s removal order” because it amounts to
process.’ Detaining an alien falls within this definition—indeed, this Court
has described detention during removal proceedings as an ‘aspect of the
deportation process.’ … The phrase ‘any action taken to remove an alien
from the United States’ must at least cover congressionally authorized
portions of the deportation process that necessarily serve the purpose of
ensuring an alien’s removal.”) (alterations and citation omitted) (quoting
Reno, 525 U.S. at 482-83; Demore v. Kim, 538 U.S. 510, 523 (2003); and 8 U.S.C.
§ 1252(b)(9)).

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a challenge to the removal order. Id. at 55 (internal quotation marks
and alteration omitted). We recognized that the alien was “indirectly
challenging her reinstated order of removal, and accordingly, we
[held] that section 1252(a)(5)’s jurisdictional bar applies equally to
preclude such an indirect challenge.” Id.
In the Ozturk and Mahdawi cases, the petitioners sought a
declaration that the government’s “actions to arrest and detain
Petitioner violate the First Amendment and the Due Process Clause
of the Fifth Amendment.” Habeas Petition at 22, Ozturk v. Hyde,
No. 25-1019 (2d Cir. Apr. 24, 2025), ECF No. 19; Habeas Petition at 18,
Mahdawi v. Trump, No. 25-1113 (2d Cir. May 1, 2025), ECF No. 7. But
those actions were taken to effectuate the removal of the petitioners
and relied on the same rationale. The arguments the petitioners have
offered to challenge the detentions necessarily challenge the
government’s decision to commence removal proceedings. In other
words, the petitioners claimed that the detentions are unlawful
because the government has no lawful grounds for removing them in
the first place.
The proceedings before the district courts illustrate the point.
The district court in Mahdawi recognized that the Secretary of State
has determined that Mahdawi’s “presence and activities in the United
States would have serious adverse foreign policy consequences and
would compromise a compelling U.S. foreign policy interest.”
Mahdawi v. Trump, 781 F. Supp. 3d 214, 222 (D. Vt. 2025). That
determination was based on information the government collected
showing that:
Mahdawi, though his leadership and involvement in
disruptive protests at Columbia University, has engaged
in anti-Semitic conduct through leading pro-Palestinian
protests and calling for Israel’s destruction. Mahdawi

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has been identified at those protests as having engaged
in threatening rhetoric and intimidation of pro-Israeli
bystanders. The activities and presence of Mahdawi in
the United States undermines U.S. policy to combat anti-
Semitism around the world and in the United States, in
addition to efforts to protect Jewish students from
harassment and violence in the United States. Under E.O.
14188, Additional Measures to Combat Anti-Semitism, it
is the policy of the United States to combat antisemitism,
using all available and appropriate legal tools to hold to
account the perpetrators of unlawful anti-Semitic
harassment and violence. Consistent with E.O. 14150,
America First Policy Directive to the Secretary of State,
the foreign policy of the United States champions core
American interests and American citizens and
condoning anti-Semitic conduct and disruptive protests
in the United States would severely undermine that
significant foreign policy objective. Moreover, protests of
the type led by Mahdawi potentially undermine the
peace process underway in the Middle East by
reinforcing anti-Semitic sentiment in the region[] and
thereby threatening the U.S. foreign policy goal of
peacefully resolving the Gaza conflict.
Memorandum of the Secretary of State to the Secretary of Homeland
Security at 1-2, Mahdawi v. Trump, No. 25-CV-389 (D. Vt. Apr. 28,
2025), ECF No. 42-1. Based on this reasoning, the government
determined that Mahdawi “is a deportable alien” under 8 U.S.C.
§ 1227(a)(4)(C)(i). Id. at 1. The district court reviewed the legality of
this explanation from the government about why Mahdawi was
removable as well as other public statements in which the

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government articulated its policy of removing aliens who have
engaged in activities that conflict with the U.S. foreign policy.6
Based on the government’s justification for removing
Mahdawi, the district court concluded that Mahdawi had raised “a
‘substantial claim’ of First Amendment retaliation” because the
government took an “adverse action” against him based on
“protected speech.” Mahdawi, 781 F. Supp. 3d at 230-31. “Such an act,”
it said, “would be a violation of the Constitution.” Id. at 228. The
holding of the district court is not limited to Mahdawi’s conditions of
confinement but challenges the government’s decision to commence
removal proceedings. The district court decided that the Constitution
prohibits the government from taking an “adverse action” based on
its reasons for removing Mahdawi; that decision impermissibly
resolved legal questions arising from “the decision to seek
removal”—and it called the removal into question. DHS v. Regents of
the Univ. of Cal., 591 U.S. 1, 19 (2020) (alteration omitted) (quoting
Jennings, 583 U.S. at 294 (plurality opinion)).
Similarly, the district court in Ozturk observed that the “basis
offered by the government to justify Ms. Ozturk’s arrest is an
assessment by the Department of Homeland Security (‘DHS’) and ICE
that she ‘had been involved in associations that “may undermine U.S.
foreign policy by creating a hostile environment for Jewish students
and indicating support for a designated terrorist organization”
including co-authoring an op-ed that found common cause with an
6 See Mahdawi, 781 F. Supp. 3d at 231 (“The fact sheet also promises to
deport or revoke the student visas of ‘all Hamas sympathizers on college
campuses, which have been infested with radicalism like never before.’ It
threatens: ‘To all the resident aliens who joined the pro-jihadist protests, we
put you on notice: come 2025, we will find you, and we will deport you.’”)
(citation omitted).

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organization that was later temporarily banned from campus.’”
Ozturk v. Trump, No. 25-CV-374, 2025 WL 1420540, at *3 (D. Vt. May
16, 2025) (quoting Memorandum from the National Security Division
of the Department of State at 6, Ozturk v. Trump, No. 25-CV-374 (D. Vt.
Apr. 11, 2025), ECF No. 91-1). But that assessment was not made to
justify Ozturk’s arrest. It was the justification by which the State
Department “approved revocation” of Ozturk’s “F-1 visa.”
Memorandum from the National Security Division of the Department
of State, supra, at 6. The district court nevertheless relied on this
justification—alongside “statements by the Secretary of State
describing the purpose of the government’s actions”—to conclude
that Ozturk had a substantial “First Amendment retaliation claim”
based on “a causal connection between protected speech by
Ms. Ozturk and adverse action by the government.” Ozturk, 2025 WL
1420540, at *6-7.
The district courts in these habeas proceedings have
scrutinized the government’s reasons for commencing removal
proceedings and declared those reasons to be unlawful. It makes
sense in these cases that the arguments against detention cannot be
separated from the arguments against removal; the government had
no reason aside from its decision to commence removal proceedings
for detaining the petitioners. But that also means that the district
courts decided “questions of law and fact, including interpretation
and application of constitutional and statutory provisions,” that have
arisen from the government’s actions “to remove an alien from the
United States.” 8 U.S.C. § 1252(b)(9). Congress has barred the use of
habeas to mount these challenges to the removal proceedings, even
“indirectly.” Delgado, 643 F.3d at 55. The jurisdictional bar applies to
the “questions of law” the district courts have decided; it does not

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depend on a formal distinction between the discrete actions the
government has taken to remove the aliens. 8 U.S.C. § 1252(b)(9).7
C
Third, § 1252(a)(2)(B) provides that “no court shall have
jurisdiction to review” any judgment regarding the granting of
discretionary immigration relief or “any other decision or action of
the Attorney General or the Secretary of Homeland Security the
authority for which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of Homeland
Security.” 8 U.S.C. § 1252(a)(2)(B). Even if there were any remaining
ambiguity as to whether an alien could challenge the decision to
detain him during removal proceedings—on the dubious theory that
the detention was somehow neither part of the decision to commence
removal proceedings nor an action taken to remove the alien—
Congress added this third jurisdictional bar to clarify that courts may
not entertain a challenge to a discretionary decision under the INA.
The motions panel concluded that § 1252(a)(2)(B) was unlikely to bar
jurisdiction here because the statute that authorizes the Attorney
General to decide where a detainee is held, 8 U.S.C. § 1231(g)(1), “uses
the obligatory ‘shall’ rather than a permissive ‘may.’” Ozturk,
136 F.4th at 395.
7 The other concurrence insists that “§ 1252(b)(9) poses no barrier” because
the “petitioners do not challenge orders of removal.” Post at 9. But
§ 1252(b)(9) is not limited to direct challenges to orders of removal. It bars
review of “all questions of law and fact … arising from any action taken or
proceeding brought to remove an alien.” 8 U.S.C. § 1252(b)(9). Section
1252(b)(9) is an “unmistakable ‘zipper’ clause” that “channels judicial
review of all” of the “decisions and actions of the INS.” Reno, 525 U.S. at
483.

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That conclusion was incorrect because the statute confers
discretion on the Attorney General to decide which places of
detention are “appropriate.” 8 U.S.C. § 1231(g)(1). And the Attorney
General “may expend” appropriated funds “to acquire, build,
remodel, repair, and operate facilities.” Id.
More important, the statute that authorizes the detention
pending removal proceedings in the first place clearly confers
discretion. “On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on whether the alien
is to be removed from the United States.” Id. § 1226(a) (emphasis
added). Additionally, except when detention is mandatory based on
the alien’s criminal history, “pending such decision, the Attorney
General … may continue to detain the arrested alien.” Id. (emphasis
added). Indeed, the motions panel acknowledged that the detention
decision “was not directed by § 1226(a)” and “not mandated by the
mere fact that [the petitioner’s] case was under adjudication.” Ozturk,
136 F.4th at 398 (emphasis omitted); see also Mahdawi, 136 F.4th at 451.
That means it was a discretionary decision under the INA that is
insulated from judicial review. But the motions panel authorized
review of the decision nonetheless.
The other concurrence relies on our decision in Nethagani v.
Mukasey for the proposition that “when a statute authorizes the
Attorney General to make a determination, but lacks additional
language specifically rendering that determination to be within his
discretion … the decision is not one that is ‘specified to be in the
discretion of the Attorney General’ for purposes of
§ 1252(a)(2)(B)(ii).” 532 F.3d 150, 154-55 (2d Cir. 2008) (alteration
omitted). Our decision in Nethagani implicates another circuit split,
see, e.g., Estrada-Martinez v. Lynch, 809 F.3d 886, 892 n.2 (7th Cir. 2015)
(disagreeing with Nethagani), over a different line of cases that the

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13
Supreme Court has addressed, see Wilkinson v. Garland, 601 U.S. 209,
217 (2024) (explaining that the application of a “statutory standard”
to “a given set of facts is reviewable as a question of law under
§ 1252(a)(2)(D)”).8 In any event, Nethagani does not apply here.
In Nethagani, we considered “the two provisions [that]
authorize the Attorney General (respectively) to ‘determine’ or
‘decide’ that the alien was convicted of a particularly serious crime.”
532 F.3d at 154 (alterations omitted) (quoting 8 U.S.C. § 1158(b)(2)(A);
id. § 1231(b)(3)(B)). That determination or decision involves the
application of statutory standards “for crimes that are particularly
serious per se” and of standards set forth in BIA precedent. Id. at 155.
We agreed with the Third Circuit that “[t]he terms ‘decide’ or
‘determine’ are not, standing alone, sufficient to ‘specify’ discretion”
because those terms describe “the application of facts to principles”
that an adjudicator would undertake. Alaka v. Att’y Gen., 456 F.3d 88,
96 (3d Cir. 2006) (alterations omitted); see Nethagani, 532 F.3d at 155
(agreeing with Alaka).
These cases look nothing like that one. Here, § 1226(a) expressly
provides that an alien “may be arrested and detained” and that “the
Attorney General … may continue to detain the arrested alien.”
8 U.S.C. § 1226(a) (emphasis added); see Alaka, 456 F.3d at 98
(recognizing that discretion has been “‘specified’ sufficiently to bar
our review when” the statute states that the official “‘may’ (rather
than ‘shall’)” undertake the action). The statute not only authorizes a
8 See also Dor v. Garland, 46 F.4th 38, 43-44 (1st Cir. 2022) (explaining that
“what standard governs ‘particularly serious crime’ determinations for
non-aggravated felons in deportation proceedings” is a question of law
under § 1252(a)(2)(D) because it involves “the application of a legal
standard to undisputed or established facts”).

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14
decision that is “so subjective as to provide no meaningful legal
standard,” Alaka, 456 F.3d at 99, but the statute provides no legal
standard to limit the Attorney General’s discretion at all. “As a result,
the government’s decision to detain is one of the ‘discretionary
determinations’ that the INA provides ‘some measure of protection’
from judicial intervention.” Suri, 2025 WL 1806692, at *11 (Wilkinson,
J., dissenting) (quoting Reno, 525 U.S. at 485).
D
The motions panel’s evasion of the three separate limitations on
our jurisdiction has resulted in the possibility of contradictory rulings
from the federal courts of appeals in the same case. In the Second
Circuit, habeas proceedings have proceeded to challenge the
petitioners’ detentions, and the Second Circuit has essentially decided
that it was unlawful to detain the petitioners in order to remove
them.9 But removal proceedings continue in the Fifth Circuit, and the
Fifth Circuit may decide that the removals are lawful. So even though
the legal arguments are the same, and Congress has authorized
detention whenever the removal proceedings are permissible,10 the
result in these cases may be that it is unconstitutional for the
9 See Ozturk, 136 F.4th at 399 (“She asserts that the government arrested and
detained her to prevent speech with which it disagrees. Such an act would
be a violation of the Constitution.”); Mahdawi, 136 F.4th at 452 (“He asserts
that the government arrested him to punish speech with which it disagrees.
But doing so would violate the Constitution.”).
10 See 8 U.S.C. § 1226(a); Jennings, 583 U.S. at 317 (Thomas, J., concurring in
part and concurring in the judgment) (“As the Court explains today,
Congress either mandates or permits the detention of aliens for the entire
duration of their removal proceedings.”).

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15
government to detain aliens pending removal for a reason that allows
the government to remove them.
Congress channeled judicial review of removal proceedings
into a single proceeding to avoid such an incoherent result. By
enacting § 1252(b)(9), “Congress plainly intended to put an end to the
scattershot and piecemeal nature of the review process that
previously had held sway in regard to removal proceedings.” Aguilar
v. ICE, 510 F.3d 1, 9 (1st Cir. 2007) (citing H.R. Rep. No. 109-72, at 174).
It designed the statutes “to consolidate and channel review of all legal
and factual questions that arise from the removal of an alien into the
administrative process, with judicial review of those decisions vested
exclusively in the courts of appeals.” Id.
It is reasonable to conclude, as we have said, that the
jurisdictional bars do not prevent the adjudication of a claim that is
“unrelated to any removal action or proceeding,” Delgado, 643 F.3d at
55 n.3 (quoting Ruiz v. Mukasey, 552 F.3d 269, 274 n.3 (2d Cir. 2009)),
or “independent of challenges to removal orders,” H.R. Rep. No. 109-
72, at 176. But when the petitioners are “challenging the decision to
detain them in the first place” because the removal proceedings are
allegedly unlawful, that is a challenge to the removal proceedings that
Congress has barred. Jennings, 583 U.S. at 294 (plurality opinion); see
also id. at 314 (Thomas, J., concurring in part and concurring in the
judgment) (“§ 1252(b)(9) removes jurisdiction over [aliens’] challenge
to their detention.”).
E
The other concurrence dismisses as “frivolous” the
government’s argument that it has suffered an irreparable injury
because it has been prevented from exercising its statutory authority.
Post at 10. The motions panel similarly insisted that “the government

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16
has not demonstrated in what way it is being enjoined by a court from
effectuating statutes enacted by representatives of its people.”
Mahdawi, 136 F.4th at 454 (internal quotation marks and alteration
omitted).
That argument is bizarre. Congress has authorized the
executive branch to decide whether and where to detain an alien
pending removal proceedings. See 8 U.S.C. §§ 1226(a), 1231(g)(1).
Judicial orders entered in defiance of jurisdictional limitations—
based on the dubious conclusion that detentions pending ongoing
removal proceedings are unlawful—have now prevented the
government from exercising that statutory authority. The Supreme
Court has “long held that, ‘any time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers
a form of irreparable injury.’” Labrador v. Poe, 144 S. Ct. 921, 923 (2024)
(Gorsuch, J., concurring in the grant of stay) (alteration omitted)
(quoting Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in
chambers)); accord New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S.
1345, 1351 (1977) (Rehnquist, J., in chambers) (“[A]ny time a State is
enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable injury.”).
The motions panel decided that judicial interference with the
detention does not matter because “nothing prevents the government
from continuing … the removal proceedings it has commenced.”
Ozturk, 136 F.4th at 402; Mahdawi, 136 F.4th at 455. But “detention is
necessarily a part of this deportation procedure.” Demore, 538 U.S. at
524 (alteration omitted) (quoting Carlson v. Landon, 342 U.S. 524, 538
(1952)). Congress has authorized the executive branch to detain an
alien pending immigration proceedings to provide “time to
determine an alien’s status without running the risk of the alien’s
either absconding or engaging in criminal activity before a final

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17
decision can be made.” Jennings, 583 U.S. at 286 (majority opinion).
The detention “serves the purpose” of preventing deportable aliens
“from fleeing prior to or during their removal proceedings, thus
increasing the chance that, if ordered removed, the aliens will be
successfully removed.” Demore, 538 U.S. at 528. The Supreme Court
“has recognized detention during deportation proceedings as a
constitutionally valid aspect of the deportation process.” Id. at 523
(emphasis added).
In these cases, the government exercised its statutory authority
to implement removal proceedings that involved detention of the
aliens while the proceedings were ongoing. “[T]he inability to enforce
its duly enacted plans clearly inflicts irreparable harm on the State.”
Abbott v. Perez, 585 U.S. 579, 603 n.17 (2018).
II
The foregoing considerations justify en banc rehearing in these
cases because the motions panel decided questions of exceptional
importance in a way that conflicts with the decisions of other circuits.
See Fed. R. App. P. 40(b). At this stage of the litigation, however, the
only appellate proceedings have involved the decisions of a motions
panel to deny motions for stays pending appeal based on the
government’s jurisdictional arguments. Those decisions will not
constrain a subsequent merits panel—in this case or in others.
A
“Nearly every Circuit, including this one, has held that a merits
panel may revisit a motions panel’s decision on jurisdiction.” Hassoun
v. Searls (Hassoun II), 976 F.3d 121, 134 (2d Cir. 2020) (internal
quotation marks and alterations omitted); see also Paskar v. U.S. Dep’t
of Transp., 714 F.3d 90, 95 (2d Cir. 2013) (“A merits panel may revisit
a decision made by a motions panel.”). “Because law of the case

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18
doesn’t bind an appellate court even as to final orders, it follows that
the doctrine is even less binding in the context of interlocutory
orders.” Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999).
We have offered “[s]everal reasons” for that conclusion:
First, … the law of the case doctrine is discretionary, not
mandatory. The doctrine expresses, in shorthand
fashion, a practice of courts generally not to reconsider
that which has already been decided. But it does not
purport to be a legally binding limitation on the court’s
authority to reconsider such matters. Second, a motions
panel’s decision is based on an abbreviated record and
made without the benefit of full briefing by the parties,
which may result in a less than thorough exploration of
the issues. Third, reexamination of a question regarding
our jurisdiction is especially important whenever there is
reason to believe that it may be lacking.
Id. (citation omitted). That is how the circuit courts have generally
understood the effect of a decision of a motions panel on the law of
the case:
Rulings—predictions—as to the likely outcome on the
merits made for preliminary injunction purposes do not
ordinarily establish the law of the case, whether the
ruling is made by a trial court or by an appellate court.
The same approach applies to similar preliminary relief
rulings, as attachment or an appellate injunction pending
appeal. A fully considered appellate ruling on an issue of
law made on a preliminary injunction appeal, however,
does become the law of the case for further proceedings
in the trial court on remand and in any subsequent
appeal.
18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 4478.5 (3d ed. 2025) (footnotes omitted). An

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19
“initial ruling on appealability … often is made by a motions panel,
frequently without the benefit of the arguments that may be made
after full briefing and with the understanding that reconsideration by
the merits panel is appropriate.” Id.
We and other circuits have relied on these considerations to
conclude that the decision of a motions panel is “without precedential
authority” on a subsequent panel. Kaplan v. Rand, 192 F.3d 60, 68 (2d
Cir. 1999).11 The opinion of a motions panel resolving a motion for a
stay pending appeal predicts the likelihood of success before a merits
panel that will itself resolve the merits.12 Even when an opinion of
the merits panel has failed to materialize—because the case became
moot before the merits were addressed—we have declined to vacate
an earlier opinion of a motions panel addressing a stay motion
because there were “no legal consequences of the court’s opinion for
the parties, in terms of preclusion or even precedent.” Hassoun II, 976
F.3d at 134. Other circuits have similarly concluded that “the
necessarily tentative and preliminary nature of a stay-panel opinion
precludes the opinion from having an effect outside that case.”
11 See also Kell v. Benzon, 925 F.3d 448, 462 n.12 (10th Cir. 2019) (“Because
Kozeny was issued by a two-judge motions panel, we would ordinarily
discount the opinion’s precedential value.”) (discussing In re Kozeny,
236 F.3d 615, 619-20 (10th Cir. 2000)); Wallace v. FedEx Corp., 764 F.3d 571,
583 (6th Cir. 2014) (“[T]he decisions of motions panels are generally
interlocutory in nature (and, thus, not strictly binding upon subsequent
panels).”).
12 See SEC v. Citigroup Glob. Markets Inc., 673 F.3d 158, 161 (2d Cir. 2012)
(“The merits panel is, of course, free to resolve all issues without preclusive
effect from this ruling. … [O]ur ruling, to the extent it addresses the merits,
finds only that the movant has shown a likelihood of success and does not
address the ultimate question to be resolved by the merits panel—whether
the district court’s order should in fact be overturned.”).

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20
Democratic Exec. Comm. of Fla. v. Nat’l Republican Senatorial Comm.,
950 F.3d 790, 795 (11th Cir. 2020). Those circuits have explained that
“[a]n order granting a stay pursuant to F.R.A.P. 8 is not a final
adjudication of the merits of the appeal” and, “[t]o the extent that it
deals with the merits of the appeal, it is only a prediction as to the
likelihood of how they will be resolved.” FTC v. Food Town Stores, Inc.,
547 F.2d 247, 249 (4th Cir. 1977).
B
The other concurrence suggests that the decision of a motions
panel might create “dispositive precedent” such that opinions from
our shadow docket of emergency motions will preclude any future
merits panels from reconsidering the same issues with full briefing on
a full record. Post at 16. That is incorrect.
The Supreme Court has explained that “interim orders are not
conclusive as to the merits” but only “inform how a court should
exercise its equitable discretion in like cases.” Trump v. Boyle, 145 S. Ct.
2653, 2654 (2025). A “stay order is not a ruling on the merits, but
instead simply stays [a lower-court] injunction pending a ruling on the
merits.” Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (Kavanaugh, J.,
concurring in grant of applications for stays). The point is to allow the
court “to decide the merits in an orderly fashion—after full briefing,
oral argument, and our usual extensive internal deliberations—and
ensure that we do not have to decide the merits on the emergency
docket.” Id. A “decision on the interim legal status” of some action
might “often constitute a form of precedent (de jure or de facto) that
provides guidance … during the years-long interim period until a
final decision on the merits.” Trump v. CASA, Inc., 145 S. Ct. 2540, 2570
(2025) (Kavanaugh, J., concurring). But the decision to grant or to

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21
deny interim relief during that period does not resolve the legal
questions.
The Justices have sometimes, “in denying emergency relief,
stressed that ‘equitable considerations’ counseled against preliminary
relief,” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 721 n.10 (2007) (alteration omitted) (quoting Bustop, Inc. v. Bd. of
Ed., 439 U.S. 1380, 1383 (1978) (Rehnquist, J., in chambers)), and the
Court has emphasized that “[t]he propriety of preliminary relief and
resolution of the merits are of course ‘significantly different’ issues,”
id. (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 393 (1981)). We
understand the scope of a stay decision in light of the traditional
equitable principles that apply “whenever a court order may allow or
disallow anticipated action before the legality of that action has been
conclusively determined.” Nken v. Holder, 556 U.S. 418, 434 (2009); see
also Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S.
308, 318 (1999) (“[T]he equity jurisdiction of the federal courts is the
jurisdiction in equity exercised by the High Court of Chancery in
England at the time of the adoption of the Constitution and the
enactment of the original Judiciary Act.”). 13 Those principles are
“heavily influenced by the division of jurisdiction” in which the Court
of Chancery would provide “preliminary relief in cases where the
13 The Supreme Court has explained that “[a]n appellate court’s power to
hold an order in abeyance while it assesses the legality of the order has
been … preserved in the grant of authority to federal courts” under the All
Writs Act, Nken, 556 U.S. at 426 (citing 28 U.S.C. § 1651(a)), which “invests
a court with a power essentially equitable,” Clinton v. Goldsmith, 526 U.S.
529, 537 (1999). The Act authorizes a federal court to “issue all writs
necessary or appropriate in aid of their respective jurisdictions” but only
insofar as the issuance is “agreeable to the usages and principles of law.”
28 U.S.C. § 1651(a).

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22
final decision on the merits was reserved to the courts of law.” 14
Under those circumstances, when the Court of Chancery decided
whether a party had a likelihood of success on the merits, it was not
deciding a legal question but instead predicting what the law courts
would do. The analysis reflected “the awkwardness of protecting
common law rights in a court unqualified to declare whether the
rights existed. The theme was comity, not premature adjudication.”15
“The rationale for predicting the strength of the plaintiff’s case rather
than adjudicating it on the spot” extended “from a reluctance to pass
on common law rights to an unwillingness to reach the merits without
a full hearing”; as a result, “even in cases where Chancery itself
ultimately would decide the merits, the court began to predict rather
than assess the merits” when deciding whether to grant preliminary
relief.16 The judges explained “that avoiding premature decision was
an end in itself, perhaps even the court’s ‘great object.’”17
In the context of a stay pending appeal, we continue to describe
the determination of a likelihood of success as a prediction about
14 John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev.
525, 527 (1978).
15 Id. at 532; see Great W. Ry. Co. v. Birmingham & Oxford Junction Ry. Co., 41
Eng. Rep. 1074, 1076 (Ch. 1848) (“[T]he Court will in many cases interfere
and preserve property in statu quo during the pendency of a suit, in which
the rights to it are to be decided, and that without expressing, and often
without having the means of forming, any opinion as to such rights.”); see
also Hunter v. Thomas, 173 F.2d 810, 812 (10th Cir. 1949) (“Habeas corpus is
a civil proceeding. It is a legal, not an equitable, remedy.”) (footnote
omitted).
16 Leubsdorf, supra note 14, at 533 (emphasis added).
17 Id.

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23
what the merits panel will do rather than an independent legal
determination:
In deciding whether the court should stay the grant or
denial of a preliminary injunction pending appeal, the
motions panel is predicting the likelihood of success of
the appeal. That is, the motions panel is predicting rather
than deciding what our merits panel will decide. In
resolving the merits of a preliminary injunction appeal,
our merits panel is deciding the likelihood of success of
the actual litigation.
E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 660 (9th Cir. 2021).18
The distinctive treatment of a stay makes sense because “a stay
operates upon the judicial proceeding itself. It does so either by
halting or postponing some portion of the proceeding, or by
temporarily divesting an order of enforceability.” Nken, 556 U.S. at
428. In other words, a stay “suspend[s] judicial alteration of the status
quo.” Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regul.
Comm’n, 479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers).19
18 Similarly, “[t]o obtain a stay pending the filing and disposition of a
petition for a writ of certiorari, an applicant must show” both “a reasonable
probability that four Justices will consider the issue sufficiently meritorious
to grant certiorari” and “a fair prospect that a majority of the Court will vote
to reverse the judgment below.” Hollingsworth v. Perry, 558 U.S. 183, 190
(2010) (emphasis added). Those are also predictive judgments.
19 We might treat injunctions differently because “[a]n injunction and a stay
have typically been understood to serve different purposes.” Nken, 556 U.S.
at 428. An injunction “is a means by which a court tells someone what to do
or not to do” and thereby “directs the conduct of a party, and does so with
the backing of its full coercive powers.” Id. The applicable case law
accordingly provides that injunctive relief “may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC,
555 U.S. 7, 22 (2008) (emphasis added). The approach accords with the

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24
As a result, “a stay order actually says nothing about the
parties’ legal rights.” 20 The purpose of the stay decision is “to
preserve the appellate court’s role to decide the appeal (regardless of
which way the court rules)” and to “provid[e] meaningful judicial
review to parties (again, regardless of which way the court rules).”21
That purpose often requires the motions panel “to risk the improper
deprivation of rights in the meantime”—that is, to discount what
might be the better view of the merits in light of the paramount
remedial considerations.22
concern that, “if courts dispense injunctions without regard to the merits,
plaintiffs who are in the wrong will be just as likely to secure relief as those
who have rights.” Leubsdorf, supra note 14, at 547. But “Professor
Leubsdorf did not apply his theory” requiring direct consideration of the
merits “to stays pending appeal.” Jill Wieber Lens, Stays of Injunctive Relief
Pending Appeal: Why the Merits Should Not Matter, 43 Fla. St. U. L. Rev. 1319,
1358 n.165 (2016).
20 Lens, supra note 19, at 1340.
21 Id.; see Hadden v. Dooley, 74 F. 429, 431 (2d Cir. 1896) (“[W]hen the
questions which naturally arise upon the transactions make them a proper
subject for deliberate examination, if a stay of proceedings will not result in
too great injury to the defendants, it is proper to preserve the existing state
of things until the rights of the parties can be fairly and fully investigated
and determined by evidence and proofs which have the merit of accuracy.”)
(internal quotation marks omitted).
22 Lens, supra note 19, at 1340; see NetChoice, LLC v. Fitch, No. 25-A-97, 2025
WL 2350189, at *1 (U.S. Aug. 14, 2025) (Kavanaugh, J., concurring in the
denial of the application to vacate stay) (concurring in the denial of an
“application for interim relief” because even though the applicant had
“demonstrated that it is likely to succeed on the merits,” it had not
“sufficiently demonstrated that the balance of harms and equities favors it
at this time”).

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25
So when a motions panel decides to grant or to deny a stay
pending appeal, it decides whether to preserve the status quo ante
based on a prediction of what the merits panel will decide. It is
making a predictive judgment rather than a law-declaring one.
Denying those predictive judgments binding effect not only
respects the nature of the decisions but also prevents the shadow
docket from overtaking our normal appellate procedures. Some
jurists have worried that “forecasting the merits risks prejudging
them,” Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland
Sec., 108 F.4th 194, 200 (3d Cir. 2024), or that a preliminary merits
ruling “can create a lock-in effect” that may “predetermine the case’s
outcome … on the underlying merits question,” Labrador, 144 S. Ct. at
934 (Kavanaugh, J., concurring in the grant of stay). Treating the stay
decisions as having conclusively resolved the legal questions would
not merely create the risk of prejudgment; it would institutionalize
prejudgment by binding future panels to the prediction made in the
course of evaluating a motion for a stay. That is the wrong approach:
Lock-in would be less concerning if there was little
chance of error in the initial decision by the motions
panel. But the chance of error is significant simply due to
the circumstances. Those circumstances include a lack of
familiarity with the case, less than full appellate briefing,
and possibly no hearing, all within a “compressed
timeframe not conducive to deliberate decision-
making.”23
In fact, “[i]t is not uncommon to think and decide differently when
one knows more.” CASA, 145 S. Ct. at 2572 (Kavanaugh, J.,
concurring); see also Ritter v. Migliori, 142 S. Ct. 1824, 1824 (Alito, J.,
23 Lens, supra note 19, at 1345 (footnote omitted) (quoting Kevin J. Lynch,
The Lock-In Effect of Preliminary Injunctions, 66 Fla. L. Rev. 779, 800 (2014)).

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26
dissenting from the denial of the application for stay) (“[A]s is almost
always the case when we decide whether to grant emergency relief, I
do not rule out the possibility that further briefing and argument
might convince me that my current view is unfounded.”). The other
concurrence agrees that legal questions are best decided with “the
benefit of adversarial briefing and argument,” and it objects to the
“discussion of such complicated issues with little briefing and no
argument.” Post at 20-21. We resolve legal questions in the light of our
normal appellate procedures rather than in the shadows of the
emergency motions docket.
C
The other concurrence simultaneously suggests that (1) it is
“not worthy of en banc review” to reconsider the decision of a motions
panel on a stay pending appeal, and (2) the decision of the motions
panel might bind every future merits panel to which the same legal
issues are presented. Post at 3. Those propositions cannot both be true.
If the other concurrence were correct that the stay opinions in these
cases “created dispositive precedent,” id. at 16, that would plainly
make the cases worthy of en banc review. If, however, “this [c]ourt has
never reviewed en banc a motions panel decision on a stay pending
appeal,” id. at 3, that is a strong clue that we have not previously
regarded such decisions as binding.24
24 Cf. N.C. Utilities Comm’n v. FCC, 552 F.2d 1036, 1045 (4th Cir. 1977)
(explaining that “the rule of interpanel accord serves … to allocate
decisionmaking power between coequal panels subject to reversal by the
Court of Appeals en banc” but when “en banc review … is
prevented … strict application of the rule of interpanel accord seems
unwarranted”); Thomas v. Bryant, 938 F.3d 134, 189 (5th Cir. 2019) (Willet, J.,
dissenting) (“[I]f the full court cannot take it en banc, then perhaps the other
members of this court—who never had the opportunity to reject or bless

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27
We have not. Despite all the recent high-profile discussion of
the precedential effect of decisions issuing interim emergency relief,
the other concurrence rests its case to the contrary only on tendentious
readings of scattered language in a couple of older cases.
First, the other concurrence suggests that we decided that all
shadow docket decisions were binding in a two-sentence holding in
2003. In Khan v. Ashcroft, 352 F.3d 521 (2d Cir. 2003), our court
considered whether a prior decision called Domond remained valid
following the decision of the Supreme Court in St. Cyr. We explained
that it did. We said that “[w]e see nothing in St. Cyr II that detracts
from the result or reasoning of Domond,” and “the same
considerations and principle that led us to reach a different decision
in Domond than we had reached in St. Cyr I lead us to conclude that
Domond remains good law in the wake of the Supreme Court’s
decision in St. Cyr II.” Id. at 523-24.25 The Khan panel then noted that
a motions panel had previously granted a motion to vacate a stay of
removal of an alien and, in doing so, decided “at least for purposes of
considering the pending motion to lift the stay, that Domond remains
what the panel did here—should not be bound by it in a future case.”), on
reh’g en banc sub nom. Thomas v. Reeves, 961 F.3d 800 (5th Cir. 2020).
25 Given that extensive discussion, “[t]he opinion’s discussion elsewhere”
about a motions panel’s treatment of Domond was “thus ‘unnecessary to the
disposition of the case before it.’” United States v. Johnson, 143 F.4th 184, 186
(2d Cir. 2025) (Lohier, J., concurring in the denial of rehearing en banc)
(quoting Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 508 (2d
Cir. 1996)). I agree that “[w]here a decision rests on two or more grounds,
none can be relegated to the category of obiter dictum.” Id. at 190 (Menashi,
J., concurring in the denial of rehearing en banc) (quoting Woods v. Interstate
Realty Co., 337 U.S. 535, 537 (1949)). But several members of our court have
rejected that conclusion. See id. at 195 n.1 (Merriam, J., dissenting from the
denial of rehearing en banc).

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28
binding authority in this Circuit.” 352 F.3d at 524 (quoting Mohammed
v. Reno, 309 F.3d 95, 103 (2d Cir. 2002)). The stay of removal in
Mohammed was odd in that the district court had also decided that the
alien was not entitled to habeas relief. And the motions panel was
uncertain that the appropriate way to resolve the propriety of the stay
was by motion rather than through a normal appeal.26
When the question of the validity of Domond arose again in
Khan, the alien argued “that the words ‘at least for purposes of
considering the pending motion to lift the stay’ indicate that the
Mohammed panel ‘did not intend for other courts to be bound by its
decision.’” 352 F.3d at 524. Our court responded that “[w]e reject the
contention that the Mohammed panel’s view of Domond was somehow
intended to be less than precedential.” Id. Neither the court nor the
parties addressed whether the decision of a stay panel binds a
subsequent panel. The litigation focused on what the Mohammed
panel intended by its qualifying phrase “at least for purposes of
considering the pending motion to lift the stay.” On the assumption
that the import of that phrase is what mattered, the Khan court
decided that the phrase did not change the fact that “[t]he question of
Domond’s continued validity was essential to an evaluation of
Mohammed’s entitlement to a stay.” Id. That sounds reasonable to
me, but the unquestioned assumption is what matters here.
Second, the other concurrence notes that we said in Hassoun II
that “[v]acatur pursuant to Munsingwear is an exception to the regular
26 See Mohammed, 309 F.3d at 98 n.2 (“Neither party has considered whether
the appropriate procedure for challenging an order granting a stay pending
appeal is a motion to lift the stay or an appeal from the order. In the absence
of attention to the issue, we will assume that the Government’s motion is a
suitable device.”).

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29
procedure for establishing and revising precedents.” 976 F.3d at 135.
It suggests that the use of the word “precedents” means that we
decided stay panel decisions are binding. But when we vacate a
decision pursuant to Munsingwear, we are normally vacating the
decision of a district court that has become moot pending appeal. The
decision of a district court is a “precedent” in that it is a judicial
decision, but no decision of a district court is ever binding as a
precedential matter.27 In fact, for that proposition Hassoun II cited the
decision of the Supreme Court in U.S. Bancorp Mortgage Company v.
Bonner Mall Partnership, 513 U.S. 18, 26 (1994), which in turn quoted
Justice Stevens:
Judicial precedents are presumptively correct and
valuable to the legal community as a whole. They are not
merely the property of private litigants and should stand
unless a court concludes that the public interest would
be served by a vacatur.
Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27,
40 (1993) (Stevens, J., dissenting). Sure enough, Justice Stevens was
describing what should happen when the “parties to a case pending
on appeal ask the appellate court to vacate the judgment entered by the
trial court.” Id. at 34 (emphasis added). No one thinks judgments
entered by trial courts are binding on other courts. In this context,
“precedents” simply means judicial decisions.
Third, the other concurrence thinks it is some kind of gotcha
that I myself have cited the opinion of a stay panel in a subsequent
opinion. See Chen v. Garland, 43 F.4th 244, 250 (2d Cir. 2022) (“As
27 See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision of a federal
district court judge is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same judge in a different
case.”) (quoting 18 Moore’s Federal Practice § 134.02[1] [d] (3d ed. 2011)).

-- 34 of 59 --

30
always, ‘because we have an obligation to assure ourselves of
jurisdiction under Article III, we begin there.’”) (alteration omitted)
(quoting Hassoun v. Searls (Hassoun I), 968 F.3d 190, 195 (2d Cir. 2020)).
But I have also cited summary orders, out-of-circuit decisions, district
court decisions, and law review articles. That does not mean that I
regard all those authorities as binding precedents. The quotation of a
stay decision for this truism about jurisdiction does not mean that the
court was bound by it.28 It means that the panel concluded that what
the stay opinion said was correct.
Fourth, the other concurrence argues that when Hassoun II said
that the opinion of a stay panel had “no legal consequences … for the
parties, in terms of preclusion or even precedent,” 976 F.3d at 134, it
must have intended “precedent” to be limited only to party-specific
consequences such as preclusion. That is not what it meant. But that
is an especially weird argument for the other concurrence to make
because it simultaneously argues that the very same word in the next
three sentences of the same paragraph must refer to “precedent” as
binding for future cases. See post at 17-19. That is a lot of weight to put
on a single word that apparently means radically different things
from sentence to sentence.
The focus of a Munsingwear analysis is on the effect for the
parties, but that can also include a precedential effect. See Hassoun II,
976 F.3d at 133 (noting that, “as a repeat player before the courts,” the
government “has an institutional interest in vacating adverse rulings
of potential precedential value”) (quoting Arevalo v. Ashcroft, 386 F.3d
19, 20-21 (1st Cir. 2004)). In Hassoun II, we explained that “a motions
panel’s jurisdictional ruling is ‘persuasive, but not binding,’” id. at 134
28 In this instance, however, Hassoun I was merely quoting the decision of
the Supreme Court in Trump v. Hawaii, 585 U.S. 667, 697 (2018).

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31
(quoting E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265 (9th
Cir. 2020)), and that the “stay-panel opinion cannot spawn binding
legal consequences regarding the merits of the case,” id. (quoting
Democratic Exec. Comm., 950 F.3d at 795).
D
Even if Hassoun II were incorrect about the binding effect of the
decision of a motions panel, that would not end the matter. We
further explained that if the decision of a motions panel “will be
binding within th[e] circuit with respect to future requests for similar
preliminary relief” or have other “legal consequences” for the
government or another party, vacatur would be appropriate. Id. at
135 n.9 (emphasis added); accord Democratic Exec. Comm., 950 F.3d
at 795 n.2 (“[I]n a rare case where a party could identify any ruling
within a stay-panel opinion that would have precedential effect
beyond the preliminary decision on the stay, then vacatur may be
warranted if the case were to become moot.”). Under the case law,
therefore, either the opinion of a motions panel will not bind future
panels as law of the circuit or a party affected by the precedential
effect of such an opinion would be entitled to vacatur should the case
become moot before the merits are decided. See United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950); Azar v. Garza, 584 U.S. 726,
730-31 (2018) (vacating an order of the court of appeals denying a
motion for a stay pending appeal).
These considerations affect whether the en banc court will
rehear the stay decisions. In these cases, the government sought the
stays on a brief timeline and only on the basis of its jurisdictional
arguments.29 The case may look different to a merits panel “with[]
29 See Oral Argument Audio Recording, Mahdawi v. Trump, No. 25-1113, at
7:07 (the government explaining that its arguments are “based on the

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32
the benefit of the arguments that may be made after full briefing.”
18B Wright, Miller & Cooper, supra, § 4478.5. Because merits briefs
have been filed, the merits appeals will be heard in tandem on an
expedited timeline, and the stay decisions will not bind the panel that
will conclusively decide the issues, it is not unreasonable for the en
banc court to await a decision on the merits.
* * *
Our protocols for conducting a rehearing en banc appear to
formally but not practically allow for the reconsideration of a stay
decision before the merits appeal is heard. But that obstacle is a
problem only if the stay decision will control how the issues are
decided on the merits.30 The opinions of the motions panel denying
the stays wrongly decided questions of exceptional importance about
the scope of our jurisdiction. But those opinions will not prevent the
court from arriving at a correct understanding of the applicable
jurisdictional limits.
jurisdictional bars rather than on the underlying merits” because the merits
were not at issue “in these proceedings right now before you”); id. at 6:44
(the government explaining that “[w]e have not taken a position” on the
constitutional issues).
30 See supra note 24.

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25-1019; 25-1113
Öztürk v. Hyde; Mahdawi v. Trump
1
N ATHAN, Circuit Judge, joined by L EE , ROBINSON, PÉREZ , MERRIAM,
and KAHN, Circuit Judges, concurring in the denial of rehearing en
banc:
These cases concern the allegedly retaliatory detentions of two
students—Rümeysa Öztürk and Mohsen Mahdawi—as part of a
wave of arrests and immigration status revocations of lawfully
admitted students in the early months of 2025.
At the time of her arrest, Rümeysa Öztürk was a graduate
student at Tufts University who had been living lawfully in
Massachusetts on a student visa. Öztürk v. Hyde, 136 F.4th 382, 388 (2d
Cir. 2025). In March 2025, masked and heavily armed plainclothes
officers arrested and detained her without warning and drove her
away from her home in an unmarked vehicle, through New
Hampshire, to Vermont. Id. at 389. A day later, she was locked in a
correctional facility over fifteen hundred miles away in Louisiana. Id.
Öztürk brought a habeas petition seeking release, alleging that she
had been arrested solely due to an op-ed article she had written a year
earlier in support of Palestinian rights in her school newspaper—a
violation of her First Amendment rights. Id. at 387–89.
When he was detained, Mohsen Mahdawi was an
undergraduate student at Columbia University and a lawful
permanent resident. Mahdawi v. Trump, 136 F.4th 443, 446 (2d Cir.
2025). After living in the United States for over a decade, he appeared
for a naturalization interview in April 2025, in Vermont, his state of
residence. Id. Mahdawi passed his citizenship test—but he did not
become a citizen. Id. Instead, at the interview’s conclusion, armed
and masked officers arrested Mahdawi and attempted to transport

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2
him to Louisiana. Id. at 446–47. Due to a missed flight, he was placed
in a detention center in Vermont. Id. at 446. He brought a habeas
petition there to challenge his detention, alleging that he had been
arrested solely in retaliation for his peaceful antiwar advocacy
work—a violation of his First Amendment rights. Id.
In both cases, the district court concluded that it had
jurisdiction to hear the habeas petitions and then issued the orders at
the heart of these appeals. In Öztürk, Judge William K. Sessions III of
the District of Vermont ordered that Öztürk be physically transferred
from Louisiana to Vermont for a bail hearing. Öztürk v. Trump, 779 F.
Supp. 3d 462, 497–98 (D. Vt. 2025). In Mahdawi, Judge Geoffrey W.
Crawford of the District of Vermont ordered Mahdawi released on
bail pending further proceedings. Mahdawi v. Trump, 781 F. Supp. 3d
214, 235 (D. Vt. 2025). The government appealed in both cases and
filed emergency stay motions. It argued that the district courts lacked
jurisdiction to order Öztürk transferred from Louisiana to Vermont
and to release Mahdawi on bail. A motions panel rejected the
government’s arguments and denied its stay motions, holding that
the government was unlikely to succeed in its argument that
Congress had deprived the federal courts of jurisdiction to consider
the students’ habeas petitions, that it had failed to show irreparable
harm, and that the balance of the equities favored the students.1
The government now petitions for the stay motions to be
reheard en banc. As we explain below, we concur in the denial of
1 The district court subsequently released Öztürk on bail. Öztürk v. Trump, No.
2:25-CV-374, 2025 WL 1355667, at *1 (D. Vt. May 9, 2025). The government neither
sought a stay nor appealed the release order.

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3
rehearing en banc. Procedurally, the posture of these cases heavily
disfavors en banc review. Substantively, posture notwithstanding, the
stay-motion panel opinions are correct. We also write to express our
view that the rest of the issues Judge Menashi’s concurrence
comments on are better left to a merits panel.
I
En banc review is not particularly common in our circuit. That
is often said to be a testament to our traditionally collegial
temperament. Jon O. Newman, Foreword: In Banc Practice in the Second
Circuit, 1989–93, 60 Brook. L. Rev. 491, 503 (1994). It is also a
manifestation of the fact that we must primarily carry out our work
in three-judge panels, as has been the case since the Judiciary Act of
1891 (also called the Evarts Act), ch. 517, § 2, 26 Stat. 826 (establishing
“in each circuit a circuit court of appeals, which shall consist of three
judges, of whom two shall constitute a quorum”). Although any
member of our Court might have something they deem worthy of
saying about a matter on which they are not on the panel, doing so
while bypassing the process and ignoring the high standard for
rehearing en banc is profoundly disruptive to our work. Once one
non-panel member weighs in, others may feel compelled to respond.
Pretty soon, a matter that no member of our Court deems worthy of
en banc review has demanded the same amount of the full Court’s
attention and resources as a real en banc proceeding.
The decisions on these stay motions are not worthy of en banc
review. As far as we are aware, this Court has never reviewed en banc
a motions panel decision on a stay pending appeal. At the
government’s request, the underlying appeals will be heard by a

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4
merits panel on an expedited basis, with briefing already concluded
and oral argument weeks away. The government’s decision to seek
expedited consideration of the merits of its interlocutory appeals
while simultaneously seeking en banc review of the stay opinions
(without any request for expedition) is—at a minimum—odd. This
posture is reason enough to deny rehearing en banc. Indeed, the
government’s petition for rehearing en banc in this posture borders on
frivolous, as is cogently demonstrated by the fact that no member of
the Court dissents from its denial.
II
Since the entire Court agrees that rehearing en banc is
inappropriate, the matter should have ended there. However, Judge
Menashi has made the unusual decision to weigh in now on how the
merits-panel-to-be should resolve the jurisdictional questions posed
by this case, offering several arguments as to why he thinks the stay
opinions are incorrectly reasoned. Because of this disruption and
because he is wrong in several ways, a response is required.
Most importantly, Judge Menashi is wrong on the merits of the
jurisdictional questions implicated in these cases. In a sentence, the
district courts have habeas jurisdiction because petitioners challenge
the legality of their detention, not a removal order. The Fourth Circuit
has reached the same conclusion. See Suri v. Trump, No. 25-1560, 2025
WL 1806692, at *7–9 (4th Cir. July 1, 2025). And we are unaware of
any court, when considering a challenge to allegedly retaliatory
detention pending removal, to have disagreed with us.2 As the stay-
2 That is why Judge Menashi’s cited cases, particularly concerning 8 U.S.C.
§ 1252(g), do not form a circuit split with the stay opinions.

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5
motion panel opinions demonstrate, each of the government’s
jurisdiction-stripping arguments ignores relevant Supreme Court and
Second Circuit authority and misses the mark, especially because we
must “take account . . . of the presumption favoring interpretations of
statutes [to] allow judicial review . . . absent clear statement.” Kucana
v. Holder, 558 U.S. 233, 237 (2010) (quotation marks omitted). That
command from the Supreme Court, which helps avoid Suspension
Clause issues that may stem from overly broad readings of the INA’s
jurisdiction-stripping provisions, see Luna v. Holder, 637 F.3d 85, 93 (2d
Cir. 2011), is nowhere discussed in the government’s petition for
rehearing or Judge Menashi’s concurrence. But under existing law,
the government needed to show that the courts below lacked
jurisdiction over each and every challenge in the students’ petitions,
and it failed. See Öztürk, 136 F.4th at 397 n.6; Mahdawi, 136 F.4th at
450 n.3.
We start with 8 U.S.C. § 1252(g). That section prohibits the use
of any habeas provision to challenge “three discrete [government]
actions[.]” Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525
U.S. 471, 482 (1999). The one purportedly at issue here is the
government’s decision to “commence proceedings” against a
noncitizen. 8 U.S.C. § 1252(g). However, Supreme Court precedent
makes clear that this bar is only “narrow[ly]” applied to the discrete
action barred. AADC, 525 U.S. at 482. As the First Circuit has said,
§ 1252(g) “does not preclude jurisdiction over . . . challenges to the
legality of [a noncitizen’s] detention.” Kong v. United States, 62 F.4th
608, 609 (1st Cir. 2023). The reason is simple—detention is but one of
“many . . . decisions or actions that may be part of the deportation

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6
process,” but it is outside the “three discrete actions” § 1252(g)
cordons off. AADC, 525 U.S. at 482. It is therefore irrelevant that
Ҥ 1252(g) does not distinguish between different grounds for such a
[detention] claim,” ante at 5, because it does not speak to detention at
all.
Under Judge Menashi’s and the government’s theory, Congress
used three specific words—“commence,” “adjudicate,” and
“execute”—to accomplish something extraordinarily general:
eviscerate habeas corpus for noncitizens whenever the government
detains them and also seeks to remove them. Supreme Court
precedent and the text of § 1252(g) do not allow this, and it is also
clear that it is not what Congress intended. H.R. Rep. No. 109-72, at
175 (2005) (Conf. Rep.), as reprinted in 2005 U.S.C.C.A.N. 240, 300
(explaining that jurisdiction-stripping provisions “would not
preclude habeas review over challenges to detention that are
independent of challenges to removal orders”). Congress was
concerned with curbing the “frequent[]” use of “habeas corpus
petitions to seek review of removal decisions,” but did not
“withdraw[] habeas relief from those seeking release from unlawful
detention.” Kong, 62 F.4th at 615. And if there is any doubt, we read
statutes with the presumption of judicial review, not of jurisdiction
stripping. Kucana, 558 U.S. at 237. The government’s elephant simply
does not fit in this mousehole. See Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 468 (2001).
It is equally erroneous to argue that the district courts lacked
jurisdiction over these students’ petitions because of 8 U.S.C.
§ 1252(a)(2)(B)(ii). That section bars jurisdiction where Congress has

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7
expressly “set out the Attorney General’s discretionary authority in
the statute.” Kucana, 558 U.S. at 247. But when arguing that this
section deprived the district courts of jurisdiction by virtue of 8 U.S.C.
§§ 1226(a) and 1231(g), the government ignores our precedent
holding that § 1252(a)(2)(B)(ii) is inapplicable in the absence of
“additional language specifically rendering [a] determination to be
within [the Attorney General’s] discretion (e.g., ‘in the discretion of
the Attorney General,’ ‘to the satisfaction of the Attorney General,’
etc.).” Nethagani v. Mukasey, 532 F.3d 150, 154–55 (2d Cir. 2008). You
will find no mention of that principle or of any contrary binding
authority on this point in the petition for rehearing. Perhaps that is
because the statutory provisions in issue, 8 U.S.C. §§ 1226(a) and
1231(g), are bereft of the necessary specific language and thus do not
prevent the district courts from entertaining the habeas petitions here.
And though Judge Menashi takes up the task on the government’s
behalf, ante at 12–14, his attempt at distinguishing Nethagani, as well
as accusing it of creating a circuit split, falls flat.
First and most importantly, Nethagani is our law, and it
squarely controls our interpretation of the INA’s jurisdictional
provisions in this context. Judge Menashi’s attempt at distinguishing
cannot explain (and thus he does not attempt to explain) at all how
his preferred reading of § 1231(g) satisfies the “additional language”
test. And though Judge Menashi points to § 1226(a)’s use of “may,”
that term still falls far short of the specific language referring to the
Attorney General’s discretion that is required by Nethagani.
No more troubling is Judge Menashi’s drive-by reference to a
circuit split. He cites no cases holding that § 1252(a)(2)(B)(ii) outright

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8
strips federal courts of habeas jurisdiction to order the transfer or
bond hearing of an immigrant whose place of detention was arranged
pursuant to § 1231(g) or authorized pursuant to § 1226(a). Whatever
tension exists between Nethagani and other circuits’ decisions more
generally is simply not at issue in these cases. At base, if Judge
Menashi were arguing for this issue to be heard en banc, these would
be relevant, yet flimsy, arguments. But since he is not, they simply do
nothing to undermine the correctness of the stay panel’s opinions
with respect to § 1252(a)(2)(B)(ii).
With respect to 8 U.S.C. § 1252(b)(9), the government fares little
better. The umbrella provision of § 1252(b) begins: “With respect to
review of an order of removal under subsection (a)(1), the following
requirements apply: . . . .” 8 U.S.C. § 1252(b). As this text makes clear,
§ 1252(b) sets out requirements only with respect to review of an
order of removal. Since there are no orders of removal for these
petitioners, § 1252(b)(9) does not apply. But even if there were,
§ 1252(b)(9) bars district court review only of claims “arising
from . . . action[s] taken or proceeding[s] brought to remove an
alien[.]” 8 U.S.C. § 1252(b)(9). The Supreme Court has held that this
section “does not present a jurisdictional bar where those bringing
suit are not asking for review of an order of removal, the
decision . . . to seek removal, or the process by which . . . removability
will be determined.” Dep't of Homeland Sec. v. Regents of the Univ. of
Cal., 591 U.S. 1, 19 (2020) (quotation marks omitted). Glaringly
ignoring the statutory text and the Supreme Court’s explanation in
Regents, Judge Menashi and the government instead rely on dicta in
the opinion of three Justices in Jennings v. Rodriguez, 583 U.S. 281

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9
(2018).3 But that portion of Jennings merely “note[d]” that the
jurisdictional question before the Court might have been more
difficult if petitioners were challenging “an order of removal; . . . the
decision to detain them in the first place[;] . . . [or] the process by
which their removability [would] be determined.” Jennings, 583 U.S.
at 294. Judge Menashi and the government overread this language to
suggest that Jennings supports the inverse proposition—that
§ 1252(b)(9) bars jurisdiction over habeas challenges to “the decision
to detain.” Reliance on this dicta is especially unwarranted when
Regents, which was decided after Jennings, does not include the
“decision to detain” language in its quote of Jennings. See 591 U.S. at
19. Regents then proceeds to favorably cite a portion of Justice
Breyer’s dissent in Jennings that holds jurisdiction to be “unaffected”
when petitioners challenge “their detention without bail” and “not an
order of removal.” Jennings, 583 U.S. at 355 (Breyer, J., dissenting); see
also Regents, 591 U.S. at 19.
In short, petitioners do not challenge orders of removal—no
such orders even yet exist—and so § 1252(b)(9) poses no barrier.
Nonetheless, the government insists that the petitions impermissibly
intrude on the students’ removal proceedings because their
constitutional challenges to their detention could substantively
overlap with a potential challenge to a final removal order. But
substantive overlap alone does not transform two independent claims
3 Cf. United States v. Johnson, 143 F.4th 184, 189 (2d Cir. 2025) (Menashi, J.,
concurring in the denial of rehearing en banc) (describing dicta as “a comment on
how the court would decide some other, different case” (quotation marks
omitted)).

-- 46 of 59 --

10
into one. Instead, our analysis must turn “on the substance of the
relief that a plaintiff is seeking.” Delgado v. Quarantillo, 643 F.3d 52,
55 (2d Cir. 2011). The students here seek release from their
unconstitutional detention, which has been at the remedial heart of
the Great Writ throughout our constitutional history. Preiser v.
Rodriguez, 411 U.S. 475, 498 (1973) (describing “immediate release or
a speedier release from . . . confinement” as “the heart of habeas
corpus”); Paul D. Halliday, Habeas Corpus: From England to Empire
246 (2d ed. 2012) (“[T]he Writ of Habeas Corpus ordained by the
Common Law of the Land, as a remedy for such as were unjustly
imprisoned, to procure their Liberty; and it is a mistaken notion that
this Writ is of a modern date.” (quoting Giles Jacob, A New Law-
Dictionary 348 (1729))).
In any event, rehearing en banc is even less warranted because
the panel decided the issues in the posture of motions for stays
pending appeal. The government does not so much as mention
irreparable injury—one of the two “most critical” factors in the stay
analysis. Nken v. Holder, 556 U.S. 418, 434 (2009). And for good
reason. Before the motions panel, the government contended only
that the district courts’ exercise of jurisdiction prevented it from
“effectuating statutes” and thus caused it irreparable injury. This
argument is frivolous. Neither Öztürk’s nor Mahdawi’s
constitutional challenge to their detention disrupts—and nothing
prevents the government from continuing with—the removal
proceedings it has commenced. The Third Circuit recently concluded
the same in a comparable context. See Order at 2, Khalil v. Trump, No.
25-2357 (3d Cir. July 30, 2025) (Hardiman, Bibas, Freeman, JJ.) (per

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11
curiam) (“Appellants’ motion to stay pending appeal the district
court’s . . . order that Appellee shall be released from immigration
custody is denied. Appellants have not demonstrated irreparable
harm.” (capitalization altered)).
Judge Menashi contends the opposite, citing a few single-
Justice statements as well as a footnote in Abbott v. Perez for the
proposition that “the inability to enforce its duly enacted plans clearly
inflicts irreparable harm on the State.” 585 U.S. 579, 602 n.17 (2018).
But that quote is wrenched from its context, in which the Supreme
Court quite unsurprisingly concluded that a state’s inability to
conduct an election under its laws constituted irreparable harm. Id.
at 602–03. And the Supreme Court contrasted that situation with one
in which a state’s election law is invalidated “long before the next
scheduled election,” which would obviate the need for a stay because
the pendency of the litigation—like here—would not interfere with
the state’s ultimate enforcement of the law. Id. at 602.
Judge Menashi is also wrong to imply that detention is an
essential aspect of conducting removal proceedings, because the
government has already conceded that petitioners’ detention in this
case is not mandatory. See Öztürk, 136 F.4th at 398; Mahdawi, 136 F.4th
at 451. More importantly, the government did not argue in seeking a
stay that the transfer or release of these petitioners would prevent the
government from ultimately removing them.
The final factor, the balance of the equities, goes similarly
undiscussed by the government and Judge Menashi. Before the
motions panels, the government made the feeble argument that
potential logistical difficulties and concerns about judicial

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12
micromanagement outweighed Öztürk’s interest in attending her
habeas corpus proceedings in person and Mahdawi’s interest in his
freedom. We had little difficulty concluding that the balance of the
equities tipped in the students’ favor then, and we have little
difficulty reaching the same unchallenged position now.
In the stay context, it was the government’s burden to show that
it was likely to succeed on the merits; that it would suffer irreparable
injury; and that the equities favored a stay. As explained above, the
government’s arguments, which Judge Menashi’s opinion echoes,
show none of these.
In short, rehearing a motion for a stay pending appeal en banc
is particularly inappropriate where the motions panel got it right and
the movant fails even to mention other critical factors relevant to its
entitlement to a stay.
III
Judge Menashi’s unusual concurrence does not merely wade
into this case by expressing a view on the merits. It also dives
headfirst into two issues that were unbriefed by any party and
unaddressed by either stay opinion, and which are certainly better left
to future merits panels: whether a published opinion on a stay motion
becomes law of the case and whether such an opinion carries
precedential weight. His concurrence attempts to paint a clear picture
in which such opinions have no bearing at all on any future panels.
Whatever one thinks about law of the case and precedential weight,
the waters are far murkier than Judge Menashi would have one
believe.
It is thus helpful to begin by setting the terminological stage.

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13
Relevant to this discussion are the distinctions among the concepts of
“law of the case,” “preclusion,” and “precedent.”
Under our law of the case doctrine, “when a court decides upon
a rule of law, that decision should generally continue to govern the
same issues in subsequent stages in the same case.” Rezzonico v. H &
R Block, Inc., 182 F.3d 144, 148 (2d Cir. 1999) (quotation marks omitted
and alteration adopted). That is a discretionary doctrine “of sound,
albeit not inexorable, practice,” permitting adjustment of prior rulings
for “‘cogent’ or ‘compelling’ reasons.” Doe v. N.Y.C. Dep’t of Soc.
Servs., 709 F.2d 782, 789 (2d Cir. 1983).
Preclusion doctrine, by contrast, prevents the relitigation of
certain claims (called “claim preclusion”) and issues (called “issue
preclusion”) by the same parties in new litigation following a final
judgment on the merits. See Rezzonico, 182 F.3d at 148. This doctrine,
too, is the subject of a host of qualifications and exceptions. See, e.g.,
Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008) (noting “the rule against
nonparty preclusion” as well as “six established categories” of
exceptions).
And finally, the concept of precedent measures the binding
effect of one case’s legal holdings in other cases involving different
parties. Precedent can be vertical (as in how the Supreme Court’s
decisions bind us, or how our published decisions bind the in-circuit
district courts) or horizontal (by virtue of our rule prohibiting
subsequent panels from overturning prior panel decisions absent
either a change in governing law or en banc review).
With that, let’s start with areas of agreement. First, the stay
opinions currently constitute vertical precedent and are binding on

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the district courts in this Circuit.4 Judge Menashi does not suggest
otherwise. Second, the merits panel that will hear these cases is not
bound by the stay panel opinions. We do not suggest otherwise.
In our view, that is where the easy answers end. But Judge
Menashi presses forward, suggesting that because the stay opinions’
holdings may be revised pursuant to our law of the case doctrine
(again, we agree), those opinions “will not constrain a subsequent
merits panel.” Ante at 17. Here is where the murkiness begins. After
all, “a merits panel will not ordinarily revisit a ruling by a motions
panel absent cogent or compelling reasons.” N.Y. Pet Welfare Ass’n v.
City of New York, 850 F.3d 79, 83 n.3 (2d Cir. 2017) (deferring when the
motions panel had “the complete record before it and full briefing on
the issue”); see also United States v. Apple, 787 F.3d 131, 137 (2d Cir.
2015) (applying law of the case from a ruling on a stay motion); Shomo
v. City of New York, 579 F.3d 176, 186 (2d Cir. 2009) (applying law of
the case from a motion panel’s order dismissing the appeal); Ollman
v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 251 (2d Cir. 2008)
(similar). Complicating things further, these doctrines may work
differently for preliminary jurisdictional holdings. See, e.g., Lora v.
O’Heaney, 602 F.3d 106, 109 (2d Cir. 2010) (revisiting an “implied”
jurisdictional holding reached by a motion panel “based on an
4 Likewise, when the Supreme Court issues a preliminary legal holding in an
interim order, lower courts are bound by that holding as a matter of vertical
precedent. See Nat’l Insts. of Health v. Am. Pub. Health Ass’n, 145 S. Ct. 2658, 2664
(2025) (Gorsuch, J., concurring in part and dissenting in part) (“[E]ven probabilistic
holdings[,] such as [a] top-line conclusion that the Government is likely to succeed
in showing the District Court lacked jurisdiction[,] . . . must inform how a lower
court proceeds in like cases.” (cleaned up)).

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abbreviated record . . . without the benefit of full briefing” (quotation
marks omitted)). Or they may not. See N.Y. Pet Welfare, 850 F.3d at 83
n.3 (holding no cogent or compelling reason required revisiting
motion panel’s finding of jurisdiction). Ultimately, whether the stay
opinions’ jurisdictional holdings constitute law of the case is for the
future merits panel to decide, hopefully with the benefit of
adversarial briefing and argument.
But that is not the only difficult question for which Judge
Menashi volunteers an oversimplified answer. He also argues that
the stay opinions are neither law of the case nor precedential for other
cases.5 He makes that argument about precedent mostly by
extrapolating from the law of the case context, despite the fact that
those doctrines are meaningfully distinct and interact in some
5 Judge Menashi is incorrect to suggest that the Supreme Court’s recent practice
answers these difficult questions. To that end, he strikingly modifies the Supreme
Court’s discussion of its own precedents in Trump v. Boyle, injecting the word
“only” into the sentence: “Although our interim orders are not conclusive as to
the merits, [here, Judge Menashi breaks up the quote to replace “they” with “but
only”] inform how a court should exercise its equitable discretion in like cases.”
145 S. Ct. 2653, 2654 (2025); ante at 20. Sure enough, add some words, and the
meaning will change. And that’s ignoring that Boyle resulted in the application of
precedent created in a prior interim order, rather than the rejection of it. See 145 S.
Ct. at 2654 (applying the rule from Trump v. Wilcox, 145 S. Ct. 1415 (2025)). If
anything, the result in Boyle demonstrates the precedential value of interim
opinions, such as the Supreme Court’s recent opinion concerning the propriety of
nationwide injunctions, which was likewise decided on a briefed-and-argued stay
motion. See Trump v. CASA, Inc., 606 U.S. 831, 841 (2025) (“The Government is
likely to succeed on the merits of its argument regarding the scope of relief.”). But
it is difficult to understand how, under Judge Menashi’s view, CASA’s legal
holdings would be precedent for the Supreme Court in a subsequent case raising
the same issues.

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16
counterintuitive ways. And Judge Menashi does so by mustering bits
and pieces of law from other circuits but dismissing our own,
including one from the year 2020, as “a couple of older cases.” Ante
at 27. Although we think the issue difficult and best left for a future
panel to resolve, we note that two binding Second Circuit precedents
cut against Judge Menashi’s assertion.
In Khan v. Ashcroft, 352 F.3d 521 (2d Cir. 2003), a merits panel of
this Court faced the question whether a published opinion by a stay-
motion panel in an unrelated case created dispositive precedent. We
held that it did. Id. at 524–25. In particular, the question was whether
the Court was bound by a stay-motion panel’s holding that a different
case, Domond v. INS, 244 F.3d 81 (2d Cir. 2001), was still good law.
The stay-motion panel held that it was. See Khan, 352 F.3d at 524. And
because the “question of Domond’s continued validity was essential to
an evaluation of [a party’s] entitlement to a stay,” this Court
“reject[ed] the contention that” the stay-motion panel’s “view . . . was
somehow intended to be less than precedential.” Id. Indeed, even in
the face of standard cabining language in stay opinions (“at least for
purposes of considering the pending motion to lift the stay . . .”), Khan
found that the stay-motion panel’s holding was “equally applicable
in the instant case” and cited other cases in which that motions panel’s
opinion was “relied on by this Court in addressing the merits of
petitions for habeas corpus.” Id. at 524–25 (citing as an example
Rankine v. Reno, 319 F.3d 93, 100–01 (2d Cir. 2003)). Judge Menashi’s
attempt to distinguish Khan away—suggesting that the Court spent
several paragraphs musing about the nature of precedent without

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17
relying on it—strains credulity.6
The other “older case[]” Judge Menashi attempts to distinguish
away is his own, Hassoun v. Searls (Hassoun II), 976 F.3d 121 (2d Cir.
2020). But Hassoun II, in denying a motion to vacate a published stay
opinion pursuant to United States v. Munsingwear, Inc., 340 U.S. 36
(1950), is right in line with Khan. In the first instance, a panel of this
Court granted the government’s motion for a stay of Adham Amin
Hassoun’s release from immigration detention. Hassoun v. Searls
(Hassoun I), 968 F.3d 190, 193 (2d Cir. 2020). Thereafter, Hassoun was
removed from the United States, which mooted his claim for release,
and he sought vacatur of the stay opinion. Hassoun II, 976 F.3d at 125.
We declined to vacate Hassoun I, explaining about the stay-motion
panel’s opinion: “Judicial precedents are presumptively correct and
valuable to the legal community as a whole. They are not merely the
property of private litigants and should stand unless a court
concludes that the public interest would be served by a vacatur.” Id.
at 134–35 (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P’Ship, 513
U.S. 18, 26 (1994)).7 We noted that “[v]acatur pursuant to
6 Judge Menashi tucks into a footnote his belief that Khan’s discussion of precedent
is mere dicta because the Khan Court also independently arrived at the same
conclusion as the Mohammed panel. Ante at 27 n.25. But even if that is true, “where
a decision rests on two or more grounds, none can be relegated to the category of
obiter dictum.” Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949); see also Pyett
v. Pa. Bldg. Co., 498 F.3d 88, 93 (2d Cir. 2007) (“An alternative conclusion in an
earlier case that is directly relevant to a later case is not dicta; it is an entirely
appropriate basis for a holding in the later case.”), rev’d on other grounds sub nom.,
14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).
7 Faced with the inconvenience of Bancorp, Judge Menashi now locates the origin
of the “presumptively correct and valuable” phrase in Justice Stevens’s dissenting

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18
Munsingwear is an exception to the regular procedure for establishing
and revising precedents.” Id. at 135 (emphasis added). But we held
Munsingwear did not apply, because we saw “no realistic probability”
that the stay-motion panel’s decision would “spawn legal
consequences” for the parties. Id. at 134. We explained that, in such
circumstances, “a decision poses little risk of prejudice to the parties,
[and] the heavy weight of precedent and regular procedure greatly
exceeds the light, if existent, danger of unfair preclusive effect.” Id. at
135 (emphasis added and quotation marks omitted). In other words,
the stay-motion panel’s opinion was precedential but not preclusive,
and therefore vacatur was inappropriate. Hassoun II decided that the
precedent of Hassoun I would stand.
Judge Menashi, who authored both Hassoun I and II, now takes
a precedent-for-me-but-not-for-thee approach. He does so by
ignoring the actual discussion of precedent in Hassoun II as well as the
outcome, which was a decision to leave the Hassoun I motion panel
opinion standing as precedent rather than vacate it. He instead
focuses on three words in Hassoun II that he takes out of context:
“Because there are no legal consequences of the court’s opinion for
the parties, in terms of preclusion or even precedent, vacatur is
inappropriate.” 976 F.3d at 134 (emphasis added). But read in
context, that sentence refers to the precedential effect on parties—i.e.,
opinion in Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27,
41 (1993) (Stevens, J., dissenting), which considered the propriety of vacating trial
court orders. Ante at 28–29. Fair enough. But Bancorp—the decision Hassoun II
quotes at length—concerned whether to vacate a published Court of Appeals
decision. See 513 U.S. at 20. And Hassoun II invoked Bancorp on a motion to vacate
a published stay opinion of our Court, just like this case.

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19
by operation of law of the case—rather than precedential effect in
future cases. To interpret one imprecise phrase in Hassoun II as Judge
Menashi does now would also read it to contradict the rest of the same
paragraph, which referred to the stay opinion as “precedent” three
times. Id. at 134–35. (Why else, for example, would we have
proclaimed that “precedents are presumptively correct and valuable
to the legal community as a whole,” id. at 134, if we were talking about
something that was not precedential?) Moreover, it would require
sticking one’s head in the sand about the conclusion in Hassoun II,
which was not to vacate the stay opinion precedent. Worse, it would
contravene the Munsingwear doctrine itself, which instructs courts to
balance the public benefits of precedents against the individual
burdens created by preclusion. See Bancorp, 513 U.S. at 26–27; see also
Munsingwear, 340 U.S. at 39–40.8 And finally, it would render Hassoun
II itself non-precedential, as an opinion decided on a motion to vacate.
8 Judge Menashi, citing Hassoun II, Munsingwear, and Azar v. Garza, 584 U.S. 726
(2018), further speculates that “either the opinion of a motions panel will not bind
future panels as law of the circuit or a party affected by the precedential effect of
such an opinion would be entitled to vacatur should the case become moot before
the merits are decided.” Ante at 31. That entirely hypothetical scenario is best left
to a future panel that actually confronts it. Nevertheless, of Hassoun II,
Munsingwear, and Garza, only Garza resulted in vacatur—there, because the case
became moot due to “the unilateral action of the party who prevailed in the lower
court.” 584 U.S. at 729 (quotation marks omitted); see also Hassoun II, 976 F.3d at
135 n.9 (Menashi, J.) (distinguishing Garza from Hassoun on the ground that
Hassoun “did not become moot through the voluntary, unilateral action of the
prevailing party”). That only reinforces that vacatur is an equitable remedy
dependent on the behavior of the parties, especially since “[j]udicial precedents
are presumptively correct and valuable to the legal community as a whole . . . and
should stand unless a court concludes that the public interest would be served by
vacatur.” Bancorp, 513 U.S. at 26 (quotation marks omitted).

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20
Cf. Srour v. New York City, 117 F.4th 72, 86 (2d Cir. 2024) (relying on
Hassoun II’s vacatur holding); see also Chen v. Garland, 43 F.4th 244, 250
(2d Cir. 2022) (Menashi, J.) (citing Hassoun I, 968 F.3d at 195).
In our view, it is difficult to predict with perfect clarity the
future effects of the stay opinions as law of the case or as precedent.
The relevant authorities on these issues can be tested if the stay
opinions’ holdings are invoked as law of the case before the merits
panel or as horizontal precedent in another matter—hopefully with
the benefit of adversarial briefing and argument on this issue that we
lack on consideration of this en banc petition. And after that, with the
further benefit of the merits panel’s decisions, the full Court may
consider whether these cases satisfy our criteria for en banc review.9
In the meantime, Judge Menashi suggests that if “the stay
opinions in these cases created dispositive precedent, that would
plainly make the cases worthy of en banc review.” Ante at 26
(quotation marks and citation omitted). Again, we think these
questions are far more complicated than that ultimatum lets on. If the
stay opinions are indeed precedential, that is most likely so only in
the interim between now and when the merits panel resolves the
appeal, taking into account whatever law of the case deference it
deems appropriate.10 That is why en banc review at this stage is
9 Thus, contrary to Judge Menashi’s suggestion, nothing about these cases
“prevent[s]” en banc review such that “the rule of interpanel accord [is]
unwarranted.” Cf. ante at 26 n.24 (parenthetically quoting N.C. Utils. Comm’n v.
FCC, 552 F.2d 1036, 1045 (4th Cir. 1977)).
10 True, not all stay panel decisions end up before a merits panel. A case may
become moot in the interim. In those circumstances, Hassoun II instructs courts to
balance the burdens of preclusive-but-unreviewed judgments against the public

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21
improper—not because the stay opinions are categorically
nonprecedential, but because it is simply unnecessary and premature
to involve the entire Circuit before the merits panel hears the cases.
And yet, here we are. It is unfortunate that Judge Menashi has
seized upon the short period between consideration of the stay
motion and merits in these cases to publish his thoughts and force
discussion of such complicated issues with little briefing and no
argument. If any of our procedures could be described as a “shadow
docket,” ante at 20, it would be this anomalous one at his instigation.
Our response, including on the merits, is motivated not by any
desire to further litigate the active and ongoing issues in these cases,
but out of necessity in order to present an even-handed account in
this unusual procedural context. Any further exploration of these
questions is best left for the merits panel and any future case that
requires it. For now, these cases are procedurally, substantively, and
prudentially ill-suited for en banc review, and so we concur in the
denial of rehearing en banc.
benefits that flow from published precedents. We see no reason that the same
would not be true in these cases.

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25-1019; 25-1113
Öztürk v. Hyde; Mahdawi v. Trump
PARKER AND C ARNEY, Senior Circuit Judges, in support of the denial of
rehearing en banc:
As members of the three-judge panel that decided the case, we
fully endorse the concurrence filed by our third panel member, Judge
Nathan, in the Court’s denial of the petition for rehearing en banc.1
1 Senior judges have no vote on a petition for rehearing en banc. See 28 U.S.C.
§ 46(c); Fed. R. App. P. 40(c). However, this Court’s protocols permit senior judges
who were members of the original panel in a case subject to a petition for rehearing
en banc to file a statement expressing their views where, as here, an active judge
has filed an opinion respecting that petition.

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