25-1113
Mahdawi v. Trump
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2025
(Argued: September 30, 2025 Decided: July 21, 2026)
No. 25-1113
MOHSEN MAHDAWI,
Petitioner-Appellee,
-v.-DONALD J. TRUMP, in his official capacity as President of the United States, DAVID
T. WESLING, in his official capacity as Acting Boston Field Office Director, Immigration and Customs Enforcement, Enforcement and Removal Operations, J
DOE, in official capacity as Vermont Sub-Office Director of Immigration and
Customs Enforcement, Enforcement and Removal Operations, DAVID J.
VENTURELLA, in his official capacity as Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement, MARKWAYNE MULLIN,
in his official capacity as Secretary of The United States Department of Homeland Security, MARCO A. RUBIO, in his official capacity as Secretary of State,
TODD BLANCHE, in his official capacity as Acting U.S. Attorney General,
Respondents-Appellants. 1
1Mahdawi filed his habeas petition against Patricia Hyde in her official capacity as Acting Boston Field Office Director for U.S. Immigration and Customs Enforcement’s Enforcement and Removal Operations, and against Todd Lyons in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement. David T. Wesling is the
1
Before: LIVINGSTON, NARDINI, and MENASHI, Circuit Judges.
A host of federal government officials—the Respondents-Appellants—
appeal from an April 30, 2025, order of the United States District Court for the District of Vermont ordering the release of Petitioner-Appellee Mohsen Mahdawi from federal immigration custody pending review of his petition for a writ of habeas corpus. Mahdawi, a lawful permanent resident of the United States, had challenged his pre-removal detention as violating various statutes and constitutional provisions, including the First Amendment and the Due Process Clause of the Fifth Amendment. We conclude that Section 242(b)(9) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1252(b)(9), channels Mahdawi’s claims initially to the administrative process. Accordingly, we VACATE the district court’s order and REMAND to the district court to dismiss the petition.
Judge Menashi joins the opinion of the court and files a concurring opinion.
FOR PETITIONER-APPELLEE: MICHAEL K.T. TAN (Nathan Freed Wessler,
Brian Hauss, Esha Bhandari, Brett Max
Kaufman, Noor Zafar, Sidra Mahfooz, on the
brief), American Civil Liberties Union
Foundation, New York, NY.
Andrew B. Delaney, Martin Delaney & Ricci
Law Group, Barre, VT.
Cyrus D. Mehta, David A. Isaacson, Cyrus
D. Mehta & Partners PLLC, New York, NY.
current Acting Field Office Director, and David J. Venturella is the current Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement, and they are automatically substituted as parties under Federal Rule of Appellate Procedure 43(c)(2). The Clerk of Court is respectfully directed to amend the official case caption accordingly.
2
Lia Ernst, Monica H. Allard, Hillary A. Rich,
ACLU Foundation of Vermont, Montpelier,
VT.
Naz Ahmad, Mudassar Hayat Toppa,
Shezza Abboushi Dallal, CLEAR Project,
Main Street Legal Services, Inc., Long Island
City, NY.
Luna Droubi, Matthew Melewski, Keegan
Stephan, Beldock Levine & Hoffman LLP,
New York, NY.
FOR RESPONDENTS-APPELLANTS: TYLER J. BECKER (Yaakov M. Roth, Drew C.
Ensign, Alanna T. Duong, Dhruman Y.
Sampat, on the brief), for Brett A. Shumate,
Assistant Attorney General, Civil Division,
United States Department of Justice,
Washington, D.C.
Eugenia A.P. Cowles, United States
Attorney’s Office for the District of
Vermont, Burlington, VT.
DEBRA ANN LIVINGSTON, Circuit Judge:
This case presents the question whether the United States District Court for
the District of Vermont erred by exercising jurisdiction over the habeas petition of
Mohsen Mahdawi (“Mahdawi”) notwithstanding 8 U.S.C. § 1252(b)(9), which
provides that “no court shall have jurisdiction, by habeas corpus . . . or by any
other provision of law,” to review any questions of law and fact, “including
3
interpretation and application of constitutional and statutory provisions, arising
from any action taken or proceeding brought to remove an alien from the United
States,” except on a petition for review (“PFR”) of a final order of removal. 2 We
conclude that the district court erred. In immigration matters, our Constitution
is clear: “The power to regulate immigration—an attribute of sovereignty essential
to the preservation of any nation—has been entrusted by the Constitution to the
political branches of the Federal Government.” United States v. Valenzuela-Bernal,
458 U.S. 858, 864 (1982) (citation omitted). “[O]ver no conceivable subject is the
legislative power of Congress more complete.” Reno v. Flores, 507 U.S. 292, 305
(1993) (alteration in original) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). Our
2
Section 242(b)(9) of the Immigration and Nationality Act (“INA”), as amended, provides:
(9) Consolidation of questions for judicial review
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory provisions,
arising from any action taken or proceeding brought to remove an alien
from the United States under this subchapter shall be available only in
judicial review of a final order under this section. Except as otherwise
provided in this section, no court shall have jurisdiction, by habeas corpus
under section 2241 of title 28 or any other habeas corpus provision, by
section 1361 or 1651 of such title, or by any other provision of law (statutory
or nonstatutory), to review such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9).
4
decision today implements the scheme Congress enacted, which affords
Petitioner-Appellee Mahdawi the opportunity to raise his claims before a federal
circuit court in a petition for review of a final order of removal, but which prohibits
this collateral attack on ongoing removal proceedings. 8 U.S.C. § 1252(b)(9).
This case comes before us on appeal of a release order that the district court
issued after Mahdawi, a lawful permanent resident then in immigration custody,
filed a habeas petition. Detained and placed into removal proceedings by the
United States Government (“the Government”), Mahdawi challenged the basis for
his removal. On the day of his arrest, he filed a habeas petition requesting that
the district court, among other actions, invalidate a determination by Secretary of
State Marco Rubio (the “Rubio Determination”) that Mahdawi threatens American
foreign policy (and thus is removable under the INA), bar the Government from
targeting aliens for removal based on their “protected speech advocating for
Palestinian rights,” and order his release. Joint App’x at 18. The district court
granted his motion for release pending review of this habeas petition on the basis
that Mahdawi would likely succeed in showing that the Government unlawfully
targeted him based on First Amendment protected activity. We conclude that the
district court should not have reached this question because it did not have subject
5
matter jurisdiction over the habeas petition. 8 U.S.C. § 1252(b)(9). We therefore
VACATE the district court’s order and REMAND with instructions for the district
court to dismiss the petition for lack of jurisdiction.
BACKGROUND
I. Factual Background 3
Mahdawi, 35, was born and raised in the West Bank, but he has lived for
more than a decade in the United States, where he is a resident of the State of
Vermont. Mahdawi was granted a B-1/B-2 visitor visa in June 2014, and he
entered the country in July 2014. Shortly thereafter, his then-wife, an American
citizen, filed a Form I-130, Petition for Alien Relative, on his behalf before the U.S.
Citizenship and Immigration Services (“USCIS”) office, and he concurrently filed
a Form I-485, Application to Register Permanent Residence or Adjust Status. In
January 2015, Mahdawi became a conditional permanent resident and, in 2018, a
lawful permanent resident without condition.
3
The factual background presented here is derived primarily from the district court’s April 30, 2025, Opinion and Order on Motion for Release. To the extent relevant to the legal question we address, we “consider the District Court’s factual findings that are predicate to a jurisdictional ruling under clear error review.” Hussein v. Maait, 129 F.4th 99, 110 (2d Cir. 2025).
6
In 2021, some seven years after entering the United States, Mahdawi
enrolled as an undergraduate at Columbia University. He is currently a master’s
student in Columbia’s School of International and Public Affairs. After Israel
responded to Hamas’s October 7, 2023, attack by taking military action in the Gaza
Strip, Mahdawi became a vocal opponent of the war, and he participated in
student demonstrations. Mahdawi v. Trump, 781 F. Supp. 3d 214, 220–21 (D. Vt.
2025).
The removal proceedings at issue here commenced on April 14, 2025, when
Homeland Security Investigations agents arrested Mahdawi at a USCIS facility in
Colchester, Vermont, following the conclusion of a naturalization interview. The
agents thereafter transferred him to a different USCIS facility and placed a Notice
to Appear (“NTA”) in his jacket. 4 The NTA states that Mahdawi is removable
because Secretary of State Marco Rubio has determined that Mahdawi’s “presence
or activities in the United States would have potentially serious adverse foreign
policy consequences for the United States.” Joint App’x at 263 (citing INA
§ 237(a)(4)(C)(i) (codified at 8 U.S.C. § 1227(a)(4)(C)(i))). The Rubio
An NTA formally commences removal proceedings against an alien.
4
See 8
U.S.C. § 1229(a)(1).
7
Determination alleges, inter alia, that Mahdawi has called for the destruction of
Israel and was identified at protests at Columbia “as having engaged in
threatening rhetoric and intimidation of pro-Israeli bystanders.” Id. at 341.
The NTA ordered Mahdawi to appear before a Department of Justice
immigration judge (“IJ”) at a Louisiana detention facility on May 1, 2025. Id. at
263. On the day of his arrest, agents transported Mahdawi to the airport in
Burlington, Vermont to fly him to Louisiana, but they missed the flight.
II. Procedural History
Mahdawi’s attorney filed a petition for a writ of a habeas corpus on April
14, 2025, the day of Mahdawi’s arrest. The petition states that “[t]his case
concerns the government’s retaliatory and targeted detention and attempted
removal of Mr. Mahdawi for his constitutionally protected speech.” Id. at 1. It
alleges that the Government has “adopted a Policy of targeting noncitizens for
removal on the basis of First Amendment protected speech which advocates for
Palestinian rights.” Id. at 16. In its prayer for relief, the petition requests, among
other things, that the district court “[v]acate and set aside Respondents’ unlawful
Policy of targeting noncitizens for removal based on First Amendment protected
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speech advocating for Palestinian rights,” “[v]acate and set aside the Rubio
Determination,” and order Mahdawi’s release. Id. at 18.
That same day, Mahdawi’s attorney also filed an emergency motion for a
temporary restraining order (“TRO”) barring Mahdawi’s removal from Vermont,
which the district court (Sessions, J.) granted. Judge William K. Sessions III then
marked the case unrelated to a pending habeas case in the same district court,
Ozturk v. Hyde, No. 25-CV-374, and the clerk of court randomly reassigned the case
to Judge Geoffrey W. Crawford on April 15, 2025. A week later, on April 22, 2025,
Mahdawi filed a motion for release from immigration custody. On April 24, the
district court (Crawford, J.) extended the TRO.
In a sworn declaration to the district court in support of his immediate
release, Mahdawi described himself as dedicated “to understanding how to
achieve a lasting peace for Palestinians and Israelis, particularly through the study
of conflict resolution.” 5 Mahdawi, 781 F. Supp. 3d at 220 (quoting Joint App’x at
5
In the district court, Mahdawi sought and received approval to file his declaration under seal because it “contain[ed] sensitive personal information.” Unopposed Mot. for Leave to File Certain Exhibits Under Seal at 1, Mahdawi v. Trump, No. 25-CV-389 (D. Vt. Apr. 22, 2025), ECF No. 24; see Joint App’x at 588 (order granting the motion). Seemingly without ever seeking or obtaining the approval of the district court or this Court to lift the sealing order, the parties filed the declaration as part of their public Joint Appendix. See Joint App’x at 254–66; see also id. at 271–75.
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255). In “over 125 letters” filed with the district court, friends and others attesting
to know Mahdawi “describe[d] him as a person who seeks common ground
between students who support Israel’s military response to the atrocities
committed by Hamas and those who express outrage against the level of
destruction and civilian casualties.” Id. at 221, 223 (citing, inter alia, Joint App’x
at 50–253).
The Government’s principal argument before the district court was that the
court lacked jurisdiction to consider the question of release. But in response to
Mahdawi’s motion, the Government produced a 2015 police report containing the
statement of a Vermont gun store owner who claimed that Mahdawi had visited
the store twice, sought to purchase a sniper rifle and a machine gun, and stated
that he “used to build . . . submachine guns to kill Jews while he was in Palistine
[sic].” 6 Joint App’x at 343–44. According to the police report, the gun store
owner put police in touch with the owner’s friend, who asserted Mahdawi had, on
another occasion, expressed interest in purchasing firearms, and stated “I like to
Later in 2015, Mahdawi’s then-wife asked police to “take possession of her
6
personally owned 12GA Mossberg Shotgun” in the wake of a “non-physical argument” with Mahdawi, according to a separate police report produced by the Government. Joint App’x at 347. The couple divorced shortly thereafter.
10
kill Jews.” Id. at 344–45. Several months later, in November 2015, a Federal
Bureau of Investigation (“FBI”) special agent interviewed Mahdawi about the
alleged statements, which Mahdawi denied making. The agent’s investigation
ended that same year. 7
The Government also pointed to an incident in 2019 in which Mahdawi was
stopped by Customs and Border Protection officers at the border and was
allegedly found in possession of LSD, methamphetamine, and mushrooms that
tested positive for opiates, as well as $4,125 in cash. Mahdawi was charged by
the Vermont State Police, but the charges were ultimately dismissed and the
record expunged after Mahdawi completed a diversion program. Before the
district court, Mahdawi denied possessing illegal drugs on this occasion.
7
The district court ordered the Government to produce the FBI agent who interviewed Mahdawi at the hearing on the motion for release. The FBI agent appeared, but the Government objected to his testifying on the ground that “questioning [him] about his investigation could compromise national security concerns.” Mahdawi, 781 F. Supp. 3d at 221. The Government indicated it had no “material disagreement” with Mahdawi’s account of the FBI interview, while noting that “the investigation turned up information that was corroborative” of the police report but “not subject to disclosure” in open court. See Tr. of Mot. for Release at 14–16, Mahdawi v. Trump, No. 25-CV-389 (D. Vt. May 2, 2025), ECF No. 57. The Government offered to brief whether the information could be presented to the court on an ex parte basis. Id. at 16, 18. But the matter was dropped when Mahdawi elected not to call the FBI agent given the Government’s statement that the agent had closed his inquiry after interviewing Mahdawi. Id. at 15– 16, 21.
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After briefing and argument, the district court ordered Mahdawi’s release
on April 30, 2025. In its Opinion and Order on Motion for Release, the district
court first examined “in a preliminary manner” the Government’s arguments that
the district court lacked jurisdiction under various provisions of the INA: 8 U.S.C.
§§ 1252(g), 1252(a)(5), 1252(b)(9), and 1226(e). Mahdawi, 781 F. Supp. 3d at 223.
The district court noted that the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009–546, and
the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, contain various
jurisdiction-stripping provisions, but it concluded that there was “a sufficient basis
for jurisdiction to proceed to the issue of release or detention,” and that the court
would “return to this issue after briefing is complete on the motion to dismiss.”
Id. at 223–24, 228. After determining that Mahdawi’s release was appropriate
under this Court’s decision in Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001), the district
court denied the Government’s request for a stay of the release order.
The Government appealed that same day to this Court, seeking review of
the district court’s April 24 TRO extension and April 30 release order. The next
day, May 1, 2025, the Government filed a lengthy motion for a stay pending
appeal, seeking emergency relief by May 6, 2025. It also moved to consolidate
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this appeal with its appeal in Ozturk v. Hyde, No. 25-1019. An applications judge
granted the expedited argument request and referred the motions to the motions
panel hearing a similar motion for a stay pending appeal in Ozturk. After hearing
arguments, the motions panel denied the motion to consolidate this case with
Ozturk and denied the motion for a stay. Mahdawi v. Trump, 136 F.4th 443, 447
(2d Cir. 2025). Because the discretionary decision whether to issue a stay requires
examining the requesting party’s likelihood of success on the merits, the motions
panel evaluated the Government’s merits arguments. See Nken v. Holder, 556 U.S.
418, 434 (2009) (outlining the stay factors). The motions panel concluded that
“the provisions on which the government relies do not state, let alone clearly state,
a jurisdictional bar on review of Mahdawi’s detention claims” and thus
determined “these jurisdictional challenges are unlikely to succeed.” Mahdawi,
136 F.4th at 449.
The Government petitioned for rehearing by the motions panel and en banc.
Two days later, the Government moved to expedite the appeal and to set “oral
argument during the first available sitting in September [2025].” Opposed Mot.
to Expedite Consideration of Appeal and Proposed Briefing Schedule at 3 (May
20, 2025), Dkt. 94.1. The motions panel granted the Government’s request and
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directed that this case be heard in tandem with Ozturk. This Court subsequently
denied the Government’s petition for rehearing of the stay denial. See Mahdawi
v. Trump, 155 F.4th 187, 188 (2d Cir. 2025). The matter was duly assigned to this
merits panel, which heard oral argument in September 2025. 8
DISCUSSION
We first address the precedential effect of the motions panel’s order denying
a stay and conclude that we are not bound by this order. Turning next to the
merits of this appeal, and reviewing de novo “the legal conclusion as to whether
subject matter jurisdiction exists,” Lyndonville Sav. Bank & Trust Co. v. Lussier, 211
F.3d 697, 701 (2d Cir. 2000), we conclude that 8 U.S.C. § 1252(b)(9) strips the district
court of jurisdiction over Mahdawi’s claims because, as the Third Circuit recently
8
On February 17, 2026, Mahdawi informed the Court “that on February 11, 2026, following a hearing, the immigration court . . . terminated removal proceedings against Mr. Mahdawi without prejudice.” Mahdawi FRAP 28(j) Letter at 1 (Feb. 17, 2026), Dkt. 226.1. The IJ had issued a written order on February 13, 2026, concluding that the Government had not properly authenticated the Rubio Determination and thus failed to establish Mahdawi was removable under 8 U.S.C. § 1227(a)(4)(C)(i). See id. at 4–5. The Government appealed the IJ’s ruling and Mahdawi filed a cross-appeal with the Board of Immigration Appeals (“BIA”) “on the basis that the immigration court should have terminated removal proceedings with prejudice.” Mahdawi FRAP 28(j) Letter at 1 (Mar. 16, 2026), Dkt. 227.1. The BIA subsequently reinstated the removal proceedings and remanded for further proceedings. See Mahdawi FRAP 28(j) Letter at 4–10 (May 5, 2026), Dkt. 230.1. Mahdawi immediately filed a PFR with the First Circuit. See Mahdawi FRAP 28(j) Letter at 1, 4 (June 10, 2026), Dkt. 232.1. Shortly thereafter, the IJ ordered removal. See id. at 5. Mahdawi’s PFR remains pending before the First Circuit.
14
concluded in Khalil v. President, United States, 164 F.4th 259, 274 (3d Cir. 2026),
Mahdawi’s claims “raise legal questions challenging the government’s very basis
for trying to remove . . . him.” 9 Accordingly, we vacate the district court’s order
and remand to the district court with instructions to dismiss Mahdawi’s habeas
petition.
I. The Motions Panel’s Decision
As an initial matter, we address the effect on this panel’s deliberations of the
motions panel order denying the Government a stay of the release order. In a
footnote, the Government argues that the motions panel’s opinion, “while
published, is not binding on the merits panel because the inquiry with respect to
the motion for stay of the district court’s order differs from the merits panel’s
inquiry . . . .” Gov’t Br. at 9 n.2 (citing E. Bay Sanctuary Covenant v. Biden, 993 F.3d
640, 660 (9th Cir. 2021)). We agree. The motions panel’s opinion, while entitled
to thoughtful consideration, is not binding.
Under the discretionary doctrine of the law of the case, “‘when a court
decides upon a rule of law, that decision should continue to govern the same issues
Given this determination, we need not reach the Government’s alternative
9
arguments that § 1226(e), § 1252(a)(5), and § 1252(g) also bar jurisdiction.
15
in subsequent stages in the same case.’” Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816 (1988) (citation omitted). But this rule does not apply to
the decision of a motions panel, particularly one tasked, as here, with predicting
the likelihood of success of a jurisdictional challenge. Several reasons support
this conclusion. As we have said:
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.
Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999) (citation omitted); see
also Hassoun v. Searls, 976 F.3d 121, 134 (2d Cir. 2020) (“‘[N]early every . . . Circuit,’
including this one, has held that a merits panel ‘may revisit [a] motions panel’s
decision on jurisdiction.’” (alterations in original) (quoting Rezzonico, 182 F.3d at
149)); 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 4478.5 (3d ed. 2025).
For all these reasons, “[a] merits panel may revisit a decision made by a
motions panel.” Paskar v. U.S. Dep’t of Transp., 714 F.3d 90, 95 (2d Cir. 2013)
16
(citing Rezzonico, 182 F.3d at 149). Sister circuits have reached the same
conclusion. See Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir. 1991) (“We are free
to reexamine the motion panel’s determination of that question unembarrassed by
the law of the case doctrine . . . .”); United States v. Houser, 804 F.2d 565, 568 (9th
Cir. 1986) (“[W]hile a merits panel does not lightly overturn a decision made by a
motions panel during the course of the same appeal, we do not apply the law of
the case doctrine as strictly in that instance as we do when a second merits panel
is asked to reconsider a decision reached by the first merits panel on an earlier
appeal.”), abrogated on other grounds by Christianson, 486 U.S. at 816–17 & n.5. And
this result is unsurprising, given that “[t]he law of the case doctrine presumes a
hearing on the merits,” which is usually lacking before motions panels. United
States v. Hatter, 532 U.S. 557, 566 (2001); see United States v. U.S. Smelting Refin. &
Mining Co., 339 U.S. 186, 199 (1950) (“We think that it requires a final judgment to
sustain the application of the rule of the law of the case just as it does for the
kindred rule of res judicata.”).
To be sure, we have sometimes said, invoking the law of the case doctrine,
that “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
17
79, 83 n.3 (2d Cir. 2017) (citing Lora v. O’Heaney, 602 F.3d 106, 109 (2d Cir. 2010)).
This language derives from Lora, which relies on Rezzonico to conclude that
“[a]lthough a merits panel will not ordinarily revisit a ruling by a motions panel
‘absent cogent or compelling reasons,’ we ‘may revisit the motions panel’s
decision on jurisdiction.’” Lora, 602 F.3d at 109 (quoting Rezzonico, 182 F.3d at
149). Tellingly, however—and contrary to the dicta in Lora—the panel opinion in
Rezzonico applies the “cogent or compelling reasons” standard to the
reconsideration of final decisions in previous appeals, not to rulings by a motions
panel. See Rezzonico, 182 F.3d at 149 (“[W]e do not revisit such a final decision
‘absent “cogent” or “compelling” reasons.’” (quoting Doe v. N.Y.C. Dep’t of Soc.
Servs., 709 F.2d 782, 789 (2d Cir. 1983))). 10 Thus, we agree with the Government
that we are not bound by the motions panel’s interlocutory determination that the
Government is unlikely to succeed in its jurisdictional challenge. We may revisit
10Notably, this is also the context in which Doe, upon which Rezzoncio relies, endorses the “cogent and compelling reasons” standard. See Doe, 709 F.2d at 783, 788– 89 (describing a prior, final appellate decision, not a motions panel decision, and citing, inter alia, United States v. Fernandez, 506 F.2d 1200, 1203–04 (2d Cir. 1974)). And Fernandez, the case that Doe cites for this language, in turns relies on a definition of the law of the case in Moore’s Federal Practice—a definition that explains that the rule applies to “a successive appeal.” Fernandez, 506 F.2d at 1203 (quoting 1B JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE ¶ 0.404[10] at 573–74 (2d ed. 1974)); see id. (referencing “[a]n issue decided on a prior appeal”).
18
the subject of jurisdiction, free of any constraint imposed by the doctrine of law of
the case. See Rezzonico, 182 F.3d at 149.
II. The Scope of § 1252(b)(9)
We now turn to § 1252(b)(9). Enacted in 1996 as part of IIRIRA, § 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 title shall be available only in judicial review of a final order [of
removal].” IIRIRA, Pub. L. No. 104-208, § 306(a)(2), 110 Stat. 3009–546, 3009–610
(codified as amended at 8 U.S.C. § 1252(b)(9)). And as to habeas jurisdiction
specifically, Congress amended § 1252(b)(9) in 2005 expressly to provide that
“[e]xcept as otherwise provided in this section, no court shall have jurisdiction, by
habeas corpus under section 2241 of title 28, United States Code, or any other
habeas corpus provision, . . . or by any other provision of law (statutory or
nonstatutory), to review such an order [of removal] or such questions of law or
fact.” REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a)(2), 119 Stat. 231, 311
(codified as amended at 8 U.S.C. § 1252(b)(9)); see also id. § 106(a)(1), 119 Stat. at
310 (codified as amended at § 1252(a)(5)) (establishing similar habeas jurisdictional
19
bar to “judicial review of an order of removal”). As the Supreme Court has
recognized, § 1252(b)(9) is an “unmistakable ‘zipper’ clause” and “a general
jurisdictional limitation.” Reno v. Am.-Arab Anti-Discrimination Comm. (AADC),
525 U.S. 471, 482–83 (1999); see also Monsalvo v. Bondi, 604 U.S. 712, 723 (2025)
(“Section 1252 permits individuals to petition for judicial review of ‘final orders of
removal’ and indicates that those petitions supply the exclusive means for
securing ‘[j]udicial review of all questions of law.’” (alteration in original) (citing
8 U.S.C. § 1252(b)(9))). In other words, § 1252(b)(9) channels judicial review of
removal-related questions into a single PFR of a final order of removal. 11
In his habeas petition, Mahdawi principally asserts that the Government
unlawfully targeted him for removal based on First Amendment protected speech,
and he asks the district court to “[v]acate and set aside” both the Rubio
Determination and the Government’s alleged policy of targeting noncitizens for
11
See also Calcano-Martinez v. Immigr. & Naturalization Serv., 232 F.3d 328, 340 (2d Cir. 2000) (explaining that Congress enacted § 1252(b)(9) in IIRIRA to “consolidat[e] all claims that may be brought in removal proceedings into one final petition for review of a final order in the court of appeals”), aff’d, 533 U.S. 348 (2001); Xiao Ji Chen v. U.S. Dep't of Just., 471 F.3d 315, 324 n.3 (2d Cir. 2006) (noting that the REAL ID Act, by specifically addressing habeas review, “‘limit[ed] all aliens to one bite of the apple . . . [and thereby] streamline[d] what the Congress saw as uncertain and piecemeal review of orders of removal.’” (second and third alterations in original) (quoting Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005))).
20
removal based on “First Amendment protected speech advocating for Palestinian
rights.” 12 Joint App’x at 18. The district court concluded that § 1252(b)(9) does
not bar jurisdiction over these claims on the theory that “[t]he legal questions
presented by Mr. Mahdawi’s petition for habeas corpus . . . do not ‘arise from’ the
Government’s decision to place him in removal proceedings.” Mahdawi, 781
F. Supp. 3d at 228. For the following reasons, we disagree.
First, under the text of § 1252(b)(9), the relevant inquiry is whether the legal
or factual questions raised by Mahdawi’s habeas petition “aris[e] from any action
taken . . . to remove [him].” 8 U.S.C. § 1252(b)(9) (emphasis added). And here, the
plain meaning of “any action taken . . . to remove an alien” encompasses both the
Secretary of State’s removability determination and the Government’s
commencement of removal proceedings against Mahdawi allegedly based on
conduct protected by the First Amendment. As the Supreme Court has
repeatedly said, “the word ‘any’ has an expansive meaning.” Patel v. Garland, 596
U.S. 328, 338 (2022) (quoting Babb v. Wilkie, 589 U.S. 399, 405 n.2 (2020)). But even
the narrowest definition of “any action taken . . . to remove an alien” would
12While principally pressing a First Amendment claim, Mahdawi also contends that the Government violated the Fifth Amendment’s Due Process Clause, the Administrative Procedure Act, the doctrine of Accardi v. Shaughnessy, 347 U.S. 260 (1954), and the non-delegation doctrine.
21
include a removability determination under the INA and the prioritization of an
individual’s removal premised on conduct alleged to be protected under the First
Amendment.
Next, the legal issues presented in Mahdawi’s habeas petition “aris[e] from”
the Rubio Determination and the decision to place him in removal proceedings.
Relying principally on the plurality opinion in Jennings v. Rodriguez, 583 U.S. 281
(2018), Mahdawi argues otherwise, claiming that his detention in alleged violation
of both the First and Fifth Amendments is separate and apart from the underlying
removal proceedings, and is therefore not subject to § 1252(b)(9). We again
disagree.
Jennings addressed whether § 1252(b)(9)’s jurisdictional bar reached claims
that were both collateral to and essentially independent of removal proceedings.
Specifically, the Jennings plurality considered whether § 1252(b)(9) deprived the
Court of jurisdiction over the legal issue whether particular INA provisions
require the prolonged detention, without bail hearings, of aliens in removal
proceedings. See 583 U.S. at 292–95 (opinion of Alito, J., joined by Roberts, C.J.,
and Kennedy, J.). The plurality noted that the applicability of § 1252(b)(9) “turns
on whether the legal questions that we must decide ‘aris[e] from’ the actions taken
22
to remove these aliens.” Id. at 293 (alteration in original). And it rejected the
most “expansive” interpretation of “arising from”:
[S]uppose that a detained alien brings a state-law claim for
assault against a guard or fellow detainee. Or suppose that an alien
is injured when a truck hits the bus transporting aliens to a detention
facility, and the alien sues the driver or owner of the truck. The
“questions of law and fact” in . . . those cases could be said to “aris[e]
from” actions taken to remove the aliens in the sense that the aliens’
injuries would never have occurred if they had not been placed in
detention. But cramming judicial review of those questions into the
review of final removal orders would be absurd.
Id. (third alteration in original).
Without attempting a comprehensive assessment of § 1252(b)(9)’s reach, the
plurality noted that the respondents subjected to prolonged detention in Jennings
(like the aliens in these two hypotheticals or others who might assert a claim under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), “based on allegedly inhumane conditions of confinement” while in
immigration detention) did “not challeng[e] the decision to detain them in the first
place or to seek removal,” nor “any part of the process by which their removability
[would] be determined.” 583 U.S. at 293–94. Instead, respondents merely
sought access to bail hearings for those in prolonged confinement. In such
23
circumstances, the plurality concluded that respondents’ habeas claim did not fall
within the reach of § 1252(b)(9)’s jurisdictional bar.
But Mahdawi’s case is simply not the same. Mahdawi’s habeas petition,
unlike a challenge to the length or conditions of confinement, “raise[s] legal
questions challenging the government’s very basis for trying to remove (and thus
detain[ ]) him.” Khalil, 164 F.4th at 274. As the Third Circuit recognized in
Khalil, such detention claims, inextricably intertwined with the claim that removal
itself is unlawful, are barred by § 1252(b)(9)’s zipper clause, which “channel[s]
‘most claims that even relate to removal’ into PFRs.” Id. at 275 (quoting E.O.H.C.
v. Sec’y U.S. Dep’t of Homeland Sec., 950 F.3d 177, 184 (3d Cir. 2020)). If this were
not the case, as the Third Circuit thoughtfully reasoned in Khalil, § 1252(b)(9)’s
zipper clause would be wholly undone, resulting in “the very ‘piecemeal
litigation’ that § 1252(b)(9) is designed to prevent.” Id. (citing E.O.H.C., 950 F.3d
at 184); see also Luna v. Holder, 637 F.3d 85, 93 (2d Cir. 2011) (describing Congress’s
addition of § 1252(b)(9) in IIRIRA as “rejecting the existing dual tracks of review
of orders of removal in habeas courts and courts of appeals”).
Mahdawi makes four arguments as to why § 1252(b)(9) does not channel his
claims into the PFR process, but none of them is persuasive.
24
First, he argues that § 1252(b)(9)’s jurisdictional bar arises only after a final
order of removal has issued, and that it has no application where removal
proceedings are ongoing. Mahdawi bases this argument on the prefatory clause
to § 1252(b) as a whole, which says that the subsection applies “[w]ith respect to
review of an order of removal.” 13 8 U.S.C. § 1252(b); see Jennings, 583 U.S. at 355
(Breyer, J., dissenting, joined by Ginsburg and Sotomayor, JJ.) (pointing to the
prefatory clause and arguing that § 1252(b)(9)’s jurisdictional bar was inapplicable
because “[t]he respondents challenge their detention without bail, not an order of
13
The text reads as follows:
(b) Requirements for review of orders of removal
With respect to review of an order of removal under subsection (a)(1),
the following requirements apply: . . .
(9) Consolidation of questions for judicial review
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory provisions,
arising from any action taken or proceeding brought to remove an alien
from the United States under this subchapter shall be available only in
judicial review of a final order under this section. Except as otherwise
provided in this section, no court shall have jurisdiction, by habeas corpus
under section 2241 of Title 28 or any other habeas corpus provision, by
section 1361 or 1651 of such title, or by any other provision of law (statutory
or nonstatutory), to review such an order or such questions of law or fact.
8 U.S.C. § 1252(b).
25
removal”). But “[u]se of the word ‘respecting’ in a legal context generally has a
broadening effect, ensuring that the scope of a provision covers not only its subject
but also matters relating to that subject.” Lamar, Archer & Cofrin, LLP v. Appling,
584 U.S. 709, 717 (2018) (emphasis added). And here, as Justices Thomas and
Gorsuch point out in their separate opinion concurring in part and concurring in
the judgment in Jennings, § 1252(b)(9)’s prohibition on habeas review “refers to
review of ‘all questions of law and fact’ arising from removal,” and specifies that
§ 1252(a)(1)’s PFR process constitutes “the only means for reviewing” not only a
final order of removal, but “‘such an order or such questions of law or fact.’” 583
U.S. at 320 (Thomas, J., concurring in part and concurring in the judgment, joined
by Gorsuch, J.) (quoting § 1252(b)(9)). Interpreting § 1252(b)(9) to govern only
removal orders ignores this language and effectively “reads ‘or such questions of
law or fact’ out of the statute.” Id.
Moreover—and conclusively—if Mahdawi’s reading of the prefatory clause
were correct, the Jennings plurality would have had no occasion to draw its
distinction between those claims presenting “questions of law and fact” bound up
with the Government’s ongoing removal efforts (and thus subject to § 1252(b)(9)’s
jurisdictional bar) and other claims collateral to the removal process. If the zipper
26
clause in § 1252(b)(9) applied only after a final order of removal, as Mahdawi
contends, there would be no reason for the Jennings plurality to contemplate that
it might bar challenges to “the decision to detain . . . in the first place or to seek
removal . . . .” Jennings, 583 U.S. at 294. Mahdawi’s argument draws not on the
plurality’s analysis, but upon two sentences from the dissent. But as the Third
Circuit correctly recognized in Khalil, citing Marks v. United States, 430 U.S. 188, 193
(1977), it is the plurality’s reading of § 1252(b)(9) that binds us. Khalil, 164 F.4th at
278.
On the assumption that we reject his claim that § 1252(b)(9) applies only in
the context of final orders of removal, Mahdawi next presses the argument that
the Government has detained him to punish speech with which it disagrees and
that this retaliatory detention claim, based on the First Amendment, is
independent of any challenge to his removal. The motions panel accepted this
argument, concluding that such a claim “may be resolved without affecting
pending removal proceedings” and that Mahdawi’s detention may “violate the
Constitution—quite separate from the removal procedures followed by the
immigration courts.” Mahdawi, 136 F.4th at 452.
27
But Mahdawi’s habeas petition alleges that he was targeted for removal—not
just detention—based on First Amendment protected activity. See Joint App’x at
1, 16 (stating that “[t]his case concerns the government’s retaliatory and targeted
detention and attempted removal of Mr. Mahdawi for his constitutionally
protected speech” and alleging that the Government “has adopted a Policy of
targeting noncitizens for removal on the basis of First Amendment protected
speech which advocates for Palestinian rights”). As in Khalil, Mahdawi’s
arguments against detention are thus “identical to his arguments against
removal.” 14 Khalil, 164 F.4th at 276. Accordingly, and notwithstanding his
efforts to elide the point, Mahdawi’s retaliatory detention claim requires a court to
decide “legal questions” that arise from “the actions taken to remove” him, and it
14
Though Mahdawi’s brief before this Court focuses on his First Amendment claim, the district court also found that Mahdawi raised a Fifth Amendment Due Process challenge to his detention. As the Third Circuit explained in Khalil, some such claims are “detention-specific” and thus fall outside § 1252(b)(9)’s reach. Khalil, 164 F.4th at 277. For instance, a petitioner might “challenge[ ] the statutory framework that permits his detention without bail,” Demore v. Kim, 538 U.S. 510, 517 (2003), or challenge “inhumane conditions of confinement,” Jennings, 583 U.S. at 293 (plurality opinion). Here, however, Mahdawi’s Fifth Amendment claim “just repackages his challenges to his removal.” Khalil, 164 F.4th at 277. In other words, it “rises or falls with the others” because they all turn on the validity of the Government’s alleged removal policy. Id.; see Joint App’x at 16 (claiming, in habeas petition, that “[t]he sole basis for Mr. Mahdawi’s detention is to punish him for his speech and to chill similar speech”). In such circumstances, and as in Khalil, Mahdawi “cannot plead around § 1252(b)(9) by calling his challenge to removal a challenge to his detention.” Khalil, 164 F.4th at 277.
28
thus falls within the scope of § 1252(b)(9). Jennings, 583 U.S. at 293 (plurality
opinion); see id. at 295 n.3; Khalil, 164 F.4th at 275–76.
The interpretation of § 1252(b)(9) we adopt today is consistent with how we
have understood a related INA provision, § 1252(a)(5), which provides that “a
petition for review filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for judicial review of an order of
removal.” 8 U.S.C. § 1252(a)(5). In Delgado v. Quarantillo, we concluded that
§ 1252(a)(5) stripped the district court of jurisdiction where a litigant was
“indirectly challenging her reinstated order of removal” by “seek[ing] to force an
adjudication on the merits of an I-212 application.” 643 F.3d 52, 55 (2d Cir. 2011).
Delgado argued that she was not directly challenging her order of removal, and
that even if she were to successfully obtain an I-212 waiver, this would not “’per
se prevent her removal.’” Id. (quoting Delgado’s brief). But we noted that
obtaining an I-212 waiver was “a necessary prerequisite to [Delgado’s] 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
‘. . . adjustment of status to that of [a lawful permanent resident]’ would render
the reinstatement order ‘invalid.’” Id. (second and fourth alterations in original)
29
(quoting Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1082–83 (9th Cir.
2010)); see also id. (noting that “whether the district court has jurisdiction will turn
on the substance of the relief that a plaintiff is seeking”). In such circumstances,
where the substance of the relief sought by Delgado amounted to an attack on the
order of removal, we concluded that Delgado could not “evade the restrictions of
section 1252(a)(5)” through artful pleading. Id. at 55–56.
Following Delgado, in Gonzalez-Alarcon v. Macias, the Tenth Circuit similarly
rejected a petitioner’s argument “that his habeas petition [did] not seek review of
a removal order but merely attack[ed] his detention.” 884 F.3d 1266, 1274–75
(10th Cir. 2018). The court explained that when an alien “seeks release from
detention,” if “his claim is based on the alleged invalidity of his order of removal”
“he is seeking ‘judicial review of an order of removal’ which is barred.” Id. at
1275 (emphasis added) (quoting 8 U.S.C. § 1252(a)(5)). The Ninth Circuit has
likewise held that “[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) (citations omitted).
30
By its terms, § 1252(b)(9) sweeps more broadly than § 1252(a)(5), providing
not only that a PFR “shall be the sole and exclusive means for judicial review of an
order of removal,” 8 U.S.C. § 1252(a)(5), but also that outside the prescribed
procedure for consideration of the PFR in a court of appeals, “no court shall have
jurisdiction, by habeas corpus . . . or by any other provision of law,” to review
either the order of removal or any “questions of law and fact . . . arising from any
action taken or proceeding brought to remove an alien from the United States.”
8 U.S.C. § 1252(b)(9). It would be anomalous, at best, to conclude that
§ 1252(b)(9), unlike § 1252(a)(5), permits courts to exercise jurisdiction over claims
that necessarily challenge removal simply because they are framed as a challenge
to detention.
Citing the Third Circuit’s decision in E.O.H.C., Mahdawi next argues that
even assuming his retaliatory detention claim turns on the same legal questions he
would press in a PFR to challenge the lawfulness of his removal, the distinct injury
associated with his detention claim renders any substantive overlap irrelevant.
Section 1252(b)(9) does not bar his detention claim, Mahdawi urges, because he
seeks relief “that a court of appeals cannot meaningfully provide on petition for
review of a final order of removal.” Mahdawi Br. at 36–38 (quoting E.O.H.C., 950
31
F.3d at 180). In other words, Mahdawi urges that the district court has
jurisdiction over his “now-or-never” claim on the theory that if his challenge to the
legality of his detention is deemed to fall within the channeling contemplated by
§ 1252(b)(9), relief will come too late to redress the injury of being unlawfully
detained for any period during the administrative process. Id.
This is incorrect. Moreover, this is the very claim that the Third Circuit
itself has now rejected, concluding that “assert[ing] an injury that cannot be
remedied later” does not alone suffice to avoid § 1252(b)(9)’s jurisdictional bar.
Khalil, 164 F.4th at 275. Section 1252(b)(9), by its terms, “channels ‘legal
questions’ that are ‘bound up with (and thus “aris[e] from”) an “action taken” to
remove’ an alien.” Id. (alteration in original) (quoting Tazu v. Att’y Gen. U.S., 975
F.3d 292, 299 (3d Cir. 2020)); see also Aguilar v. U.S. Immigr. & Customs Enf’t Div.,
510 F.3d 1, 13–14 (1st Cir. 2007) (concluding that a right-to-counsel claim was
channeled to the PFR because it was “inextricably intertwined with” the alien’s
removal proceeding). A now-or-never habeas claim must thus raise not only an
alleged injury that will occur before the conclusion of removal proceedings, as the
Third Circuit concluded, but also “legal or factual questions” (such as a challenge
to the conditions in a facility in which an individual is detained) that are not bound
32
up in the ongoing removal proceedings and that “a court of appeals will not later
be able to review meaningfully on a PFR.” Khalil, 164 F.4th at 274–75.
The Third Circuit concluded, correctly, that this result is apparent from the
text of § 1252(b)(9), which ensures that removal proceedings are not hamstrung by
collateral habeas attacks raising legal questions that could be pursued in removal
proceedings. See Johnson v. Whitehead, 647 F.3d 120, 124 (4th Cir. 2011) (“Congress
[in § 1252(b)(9)] has specifically prohibited the use of habeas corpus petitions as a
way of obtaining review of questions arising in removal proceedings.”). In the
words of our sister circuit:
[Section 1252(b)(9)] ensures that petitioners get only one bite at
the apple. Letting petitioners raise now-or-never injuries through
habeas based on claims that can be litigated later would subvert that
channeling scheme. If, for instance, a detained alien claimed that the
INA section that made him removable was unconstitutionally vague,
he could bring that claim right away on habeas (because illegal
detention cannot be remedied later). With a final judgment in hand,
the winning side could use issue preclusion or law of the case in the
later PFR, leaving that court nothing to decide. See Paulo v. Holder,
669 F.3d 911, 918 (9th Cir. 2011) (holding that habeas finding that alien
was not removable precluded relitigating that issue in removal
proceedings). That prospect would encourage the very “piecemeal
litigation” that § 1252(b)(9) is designed to prevent. E.O.H.C., 950
F.3d at 184.
Khalil, 164 F.4th at 275.
33
Mahdawi argues, finally, that channeling his claims into the PFR process
deprives him of any meaningful opportunity for review. But as our sister circuit
observed in Khalil, “[o]ur legal system routinely forces petitioners—even those
with meritorious claims—to wait to raise their arguments.” Id. Congress struck
a balance in § 1252(b)(9) that “does not foreclose meaningful review,” but
promotes “the orderly adjudication of claims” by “requir[ing] bringing legal
questions later if they can be answered later.” Id. at 275–76.
Moreover, Mahdawi could have sought release pending his removal
through the administrative process. Though individuals charged as removable
by the Secretary of State pursuant to 8 U.S.C. § 1227(a)(4) may not receive a bond
hearing in the first instance, see 8 C.F.R. § 1003.19(h)(2)(i)(C) (2026), the
Government stated in its briefing and confirmed at oral argument that Mahdawi,
when detained, could have sought an administrative hearing pursuant to Matter
of Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999). As the Supreme Court has recognized,
a detained alien in a Joseph hearing is “entitled to raise any nonfrivolous argument
available to demonstrate that he was not properly included in a mandatory
detention category.” Demore, 538 U.S. at 514; see also 8 C.F.R. § 1003.19(h)(2)(ii)
(2026). If the individual succeeds at the hearing, an IJ will “consider the question
34
of bond.” Joseph, 22 I. & N. Dec. at 806. The IJ can then order release on bond if
the alien has “demonstrate[d] to the satisfaction of the Immigration Judge that his
release would not pose a danger to property or persons, and that the respondent
is likely to appear for any future proceeding.” Matter of Salas Pena, 29 I. & N. Dec.
173, 174 (B.I.A. 2025). The denial of relief may be appealed to the BIA.
Mahdawi did not seek a Joseph hearing and, at oral argument, asserted that
such a hearing would be futile in his case. But a Joseph hearing provides “the
opportunity to offer evidence and legal authority on the question whether the
[Government] has properly included [an alien] within a category that is subject to
mandatory detention.” 22 I. & N. Dec. at 805. “[L]egal authority” includes
provisions of the Constitution. See Gov’t Suppl. Submission after Oral Arg.,
Khalil, No. 25-2162 (3d Cir. Oct. 22, 2025), Dkt. 122 (invoking a “recent [Department
of Justice] Policy Memorandum” that affirms IJs can decide constitutional
questions, including “‘constitutional challenges to the application of statutes’”
(quoting the memorandum)). And Joseph holds that “a lawful permanent
resident will not be considered ‘properly included’ in a mandatory detention
category” (thus entitling the detained individual to an administrative bail hearing)
“when an Immigration Judge or the Board is convinced that the [Government] is
35
substantially unlikely to establish at the merits hearing, or on appeal, the charge
or charges that would otherwise subject the alien to mandatory detention.” 22
I. & N. Dec. at 806.
As the Supreme Court has affirmed, that means a detainee receives
“individualized review” of the legality of his detention at the outset. Demore, 538
U.S. at 514 n.3; see also Nielsen v. Preap, 586 U.S. 392, 418 n.8 (2019) (“Detainees who
deny that they satisfy any § 1226(c) predicate may challenge their mandatory
detention in a Joseph hearing.”). And in the event that removal proceedings
involving a detained individual are unreasonably prolonged, this Court’s
precedent provides that a petitioner may file a habeas petition and challenge his
detention “on the ground that it [has] reached an unreasonable length.” 15 Velasco
Lopez v. Decker, 978 F.3d 842, 852 (2d Cir. 2020).
Mahdawi argues that channeling his First and Fifth Amendment claims into
a PFR will deprive him of a meaningful opportunity for review because
constitutional challenges to detention cannot be heard on a PFR of a removal order
and that even if this were not the case, neither the IJ nor the BIA can develop the
15 If a district court concludes detention has been unreasonably prolonged, it may “order[ ] a new [bond] hearing at which the Government [will be] called upon to justify continued detention.” Velasco Lopez, 978 F.3d at 855.
36
factual record needed for consideration of his arguments. 16 Once again, we
disagree.
Like the petitioner in Khalil, Mahdawi argues that the Government
unlawfully targeted him for removal pursuant to a policy punishing aliens’ proPalestinian speech. But this “alleged policy is a ‘matter[ ] on which the validity
of the final order is contingent,’” and it thus can be litigated on a PFR, which
Mahdawi has now filed. Khalil, 164 F.4th at 276 (alteration in original) (quoting
Massieu v. Reno, 91 F.3d 416, 422 (3d Cir. 1996) (Alito, J.)); cf. Argueta v. Holder, 617
F.3d 109, 112 (2d Cir. 2010) (noting appellate courts “retain jurisdiction to review
all ‘constitutional claims or questions of law raised upon a petition for review’”
16
In a footnote, Mahdawi also claims that “reading section 1252(b)(9) to bar [his] detention challenge would raise serious questions under the Suspension Clause” of the Constitution. Mahdawi Br. at 38 n.16 (citing U.S. CONST., art. I, § 9, cl. 2). But Mahdawi has not successfully pointed to any ambiguity in § 1252(b)(9)’s channeling provision, much less raised “a head-on constitutional challenge” to this provision. Preap, 586 U.S. at 420 (“While respondents might have raised a head-on constitutional challenge to [the statutory provision], they did not.”). See also Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (noting “‘settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived’” (citation omitted)); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Pursuant to this rule, we have held that an argument made only in a footnote was inadequately raised for appellate review.”). At any rate, even assuming arguendo that Mahdawi had developed a Suspension Clause argument and did not waive it, he has not “met [his] burden of establishing that the [PFR] process is, on its face, an inadequate substitute for habeas corpus.” Boumediene v. Bush, 553 U.S. 723, 792 (2008); see Iasu v. Smith, 511 F.3d 881, 888 (9th Cir. 2007) (concluding that the REAL ID Act does not facially violate the Suspension Clause in the context of review of final orders of removal).
37
(quoting 8 U.S.C. § 1252(a)(2)(D))). Indeed, “the courts of appeals generally may
provide meaningful review as to any properly exhausted claims directly attacking
a final order of [removal].” Massieu, 91 F.3d at 422. Mahdawi’s argument to the
contrary is without support.
As for the development of the factual record, we are unpersuaded by
Mahdawi’s claim that the PFR process does not afford litigants like him a
meaningful opportunity to develop the necessary facts to present their claims. To
be sure, as the motions panel noted, a court of appeals considering a PFR “is
obliged to ‘decide the petition only on the administrative record on which the
order of removal is based.’” Mahdawi, 136 F.4th at 452 (emphasis removed)
(quoting 8 U.S.C. § 1252(b)(4)(A)). But “aliens in immigration proceedings may
put on testimony and exhibits, which become part of the record.” Khalil, 164 F.4th
at 279 (citing 8 C.F.R. § 1240.9). And even if this were not the case, the
Government has affirmed that “the INA ‘does not preclude a court of appeals from
obtaining additional fact-finding if the agency record is inadequate’ either through
the Hobbs Act’s remand process, by appointing a special master, or through
another ‘appropriate mechanism’ born out of ‘constitutional necessity.’” 17 Id. at
17
The Third Circuit noted in Khalil that a provision of the Hobbs Act, 28 U.S.C.
38
280 (quoting the Government’s post-argument letter); see also Gallo-Alvarez v.
Ashcroft, 266 F.3d 1123, 1129 (9th Cir. 2001) (“Because genuine issues of material
fact remain, we transfer the consolidated cases to the district court pursuant to 28
U.S.C. § 2347(b)(3) . . . .”); AADC, 525 U.S. at 496 n.2 (Ginsburg, J., concurring in
part and concurring in the judgment) (“While it is best left to the courts of appeals
in the first instance to determine the appropriate mechanism for factfinding
§ 2347(b)(3), “lets the PFR court remand a case to a district court for a hearing with more factfinding if (1) the agency has not held a hearing before taking the challenged action, (2) it need not do so by law, and (3) there are genuine issues of material fact” to be resolved. Khalil, 164 F.4th at 280.
Section 2347(b)(3) provides as follows:
(b) When the agency has not held a hearing before taking the action
of which review is sought by the petition, the court of appeals shall
determine whether a hearing is required by law. After that determination,
the court shall—
(1) remand the proceedings to the agency to hold a hearing, when a
hearing is required by law;
(2) pass on the issues presented, when a hearing is not required by
law and it appears from the pleadings and affidavits filed by the parties that
no genuine issue of material fact is presented; or
(3) transfer the proceedings to a district court for the district in which
the petitioner resides or has its principal office for a hearing and
determination as if the proceedings were originally initiated in the district
court, when a hearing is not required by law and a genuine issue of material
fact is presented. The procedure in these cases in the district court is
governed by the Federal Rules of Civil Procedure.
28 U.S.C. § 2347(b).
39
necessary to the resolution of a constitutional claim, I am confident that provision
for such factfinding is not beyond the courts of appeals’ authority.”). We thus
again agree with our sister circuit that “a PFR court has the tools to supplement
the factual record if needed.” Khalil, 164 F.4th at 281.
* * *
Congress has specifically prohibited the use of habeas corpus petitions to
review any questions of law or fact, “including interpretation and application of
constitutional and statutory provisions,” arising from actions taken to remove an
alien from the United States, channeling such questions to courts of appeals on
review of a PFR. 8 U.S.C. § 1252(b)(9); see also Whitehead, 647 F.3d at 124
(“Congress has specifically prohibited the use of habeas corpus petitions as a way
of obtaining review of questions arising in removal proceedings.”). In so doing,
“Congress intended to delay federal court review of claims by aliens against whom
[removal] proceedings have been instituted until the conclusion of the
administrative proceedings.” Massieu, 91 F.3d at 422. Mahdawi invites us to
undo this scheme, interpreting § 1252(b)(9) so as to produce the very proliferation
of parallel proceedings on the same essential matters that this statutory provision
was designed to avoid. We decline his invitation, and leave in place the scheme
40
legislated by Congress. Accordingly, we vacate and remand to the district court
with instructions to dismiss the petition.
CONCLUSION
For the foregoing reasons, we VACATE the district court’s order and
REMAND for the district court to dismiss Mahdawi’s habeas petition for lack of
jurisdiction.
41
25-1113
Mahdawi v. Trump
MENASHI, Circuit Judge, concurring:
The court correctly holds that the zipper clause of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(b)(9),
prohibits a federal court from entertaining Mahdawi’s habeas
petition. Mahdawi argues that his arrest and detention violate the
First and Fifth Amendments of the Constitution. “But those actions
were taken to effectuate the removal of the petitioner[] and relied on the same rationale. The arguments the petitioner[] ha[s] offered to
challenge the detention[] necessarily challenge the government’s
decision to commence removal proceedings.” Ozturk v. Hyde, 155
F.4th 187, 192 (2d Cir. 2025) (Menashi, J., concurring in the denial of rehearing en banc). Because Mahdawi’s challenge raises “questions of
law and fact … arising from any action taken or proceeding brought
to remove an alien from the United States,” it cannot be considered
by a federal court except on a petition for review of a final order of removal. 8 U.S.C. § 1252(b)(9).
As I have previously explained, other provisions of the INA
also bar a federal court from considering Mahdawi’s habeas petition.
Pursuant to 8 U.S.C. § 1252(g), a federal court may not review “[t]he
decision of the government to commence removal proceedings
against an alien,” and that decision “includes the detention of the
alien pending the removal determination.” Ozturk, 155 F.4th at 190
(Menashi, J., concurring in the denial of rehearing en banc). Pursuant to 8 U.S.C. § 1252(a)(2)(B), a federal court “may not entertain a
challenge to a discretionary decision under the INA.” Id. at 194.
Because “the statute that authorizes the detention pending removal
proceedings in the first place clearly confers discretion,” id. (citing 8 U.S.C. § 1226(a)), the jurisdictional bar of § 1252(a)(2)(B) also
prevents a federal court from considering the petition in this case.
I join the majority opinion and write separately to address two
additional points. First, Mahdawi frames his habeas claim as a
challenge to his detention rather than his removal. The majority opinion correctly concludes that his claim actually challenges his removal. See ante at 24. But even if Mahdawi’s framing were correct—and his claim
represented a bona fide challenge to his detention—the federal courts
would still lack jurisdiction over this case. Pursuant to 8 U.S.C.
§ 1226(e), the federal courts may not review a discretionary detention decision of the Attorney General. And that bar on judicial review does not violate the Suspension Clause.
Second, Mahdawi failed to exhaust the available administrative
remedies before seeking relief from a federal court. Even if there were jurisdiction to consider Mahdawi’s habeas petition, therefore, the lack of exhaustion would require his petition to be dismissed or at least
stayed until those remedies are exhausted.
I
Mahdawi purports to challenge his detention rather than his
removal. His claim, however, attacks the basis of his removal. The
majority opinion correctly concludes that despite Mahdawi’s
characterization, his claim raises “questions of law and fact … arising from any action taken or proceeding brought to remove an alien from
the United States.” 8 U.S.C. § 1252(b)(9). But even if Mahdawi had
brought a challenge to his detention independent of his removal, his
habeas petition would still need to be dismissed. The INA gives the
Attorney General the discretion to decide whether to detain an alien
pending removal proceedings. See id. § 1226(a). And § 1226(e)
provides that the federal courts lack jurisdiction to review those
discretionary decisions.
2
A
Pursuant to § 1226(e), “[t]he Attorney General’s discretionary
judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the
Attorney General under this section regarding the detention of any
alien or the revocation or denial of bond or parole.” Id. § 1226(e). The Attorney General takes an “action” or makes a “decision” about “the
detention of an[] alien” even when detention is mandatory. See id.
§ 1226(c). 1 When detention is discretionary, see 8 U.S.C. § 1226(a), the Attorney General makes both a “discretionary judgment” regarding
detention and a “decision” regarding detention. Neither a
discretionary judgment nor a detention decision is subject to judicial review.
Under § 1226(a), the Attorney General has discretion to decide
whether an alien should be detained pending removal proceedings.
The statute provides that “[o]n 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. … [A]nd
pending such decision, the Attorney General … may continue to
detain the arrested alien; and … may release the alien.” Id.
§ 1226(a)(1)-(2) (emphasis added). Our court has recognized that
“[u]nder § 1226(a), Congress has delegated to the Attorney General
the discretion to detain noncitizens during the pendency of their
removal proceedings.” Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d
1 See Miranda v. Garland, 34 F.4th 338, 368 (4th Cir. 2022) (Richardson, J., concurring in part, dissenting in part, and concurring in the judgment) (“The Attorney General will sometimes act or make decisions that are not subject to his discretionary judgment, such as mandatory detention actions under § 1226(c).”).
3
Cir. 2020). It follows that § 1226(e) bars a federal court from reviewing an exercise of that discretion.
The Supreme Court has said as much. In Demore v. Kim, the
Supreme Court held that § 1226(e) did not bar a “challenge” to “the
statutory framework that permits [an alien’s] detention without bail.” 538 U.S. 510, 516-17 (2003). The Court explained that § 1226(e) “deals with challenges to operational decisions, rather than to the legislation establishing the framework for those decisions.” Id. at 517 (quoting
Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999)). But the Court
acknowledged that a challenge to an operational decision would be
barred. The Court emphasized that the alien in Demore did “not
challenge a ‘discretionary judgment’ by the Attorney General or a
‘decision’ that the Attorney General has made regarding his detention
or release.” Id. at 516. Challenges to such judgments or decisions may not proceed.
The three Justices who declined to join that part of Demore did
not disagree with that point. Those Justices would have gone further
to hold that § 1226(e) also barred challenges to the statutory
framework because such challenges implicate the Attorney General’s
decisions. 2 So the entire Supreme Court in Demore indicated that
§ 1226(e)—at a minimum—bars the federal courts from reviewing the
detention decisions of the Attorney General.
2 See Demore, 538 U.S. at 536 (O’Connor, J., concurring in part and
concurring in the judgment) (arguing that the majority concludes “that § 1226(e) does not bar challenges to § 1226(c) itself, as opposed to decisions implementing that subsection,” but while “the Court’s opinion today relies heavily on this distinction, I see no basis for importing it into the plain language of the statute”) (internal quotation marks omitted).
4
The Supreme Court reiterated that conclusion in Jennings v.
Rodriguez. In that case, a three-Justice plurality wrote:
As we have previously explained, § 1226(e) precludes an
alien from “challenging a ‘discretionary judgment’ by
the Attorney General or a ‘decision’ that the Attorney
General has made regarding his detention or release.”
But § 1226(e) does not preclude “challenges to the
statutory framework that permits the alien’s detention
without bail.”
583 U.S. 281, 295 (2018) (plurality opinion) (alterations and citation omitted) (quoting Demore, 538 U.S. at 516-17). The Jennings plurality
allowed the case to proceed because the respondents were
“challenging the extent of the Government’s detention authority
under the ‘statutory framework’ as a whole.” Id. at 295-96. And “[i]f
that challenge fails, they are then contesting the constitutionality of the entire statutory scheme under the Fifth Amendment.” Id. at 296.
The plurality reasoned that “[b]ecause the extent of the Government’s
detention authority is not a matter of ‘discretionary judgment,’
‘action,’ or ‘decision,’ [the] respondents’ challenge to ‘the statutory framework that permits their detention without bail’ falls outside of
the scope of § 1226(e).” Id. (alteration and citation omitted) (quoting Demore, 538 U.S. at 517).
Justice Thomas wrote separately to say that he continued “to
agree with Justice O’Connor’s concurring opinion in Demore v. Kim,
which explained that § 1226(e) unequivocally deprives federal courts
of jurisdiction to set aside any action or decision by the Attorney
General regarding detention.” Id. at 323 n.6 (Thomas, J., concurring in part and concurring in the judgment) (internal quotation marks and
citation omitted). The Jennings dissenters did not address § 1226(e).
See id. at 326-56 (Breyer, J., dissenting). So the four Justices who
5
addressed the provision agreed that § 1226(e) bars a claim that
challenges a detention decision of the Attorney General.
In this case, Mahdawi does not challenge the “statutory
framework” that permits his detention. Instead, he argues that the
Attorney General exercised her discretion unlawfully by targeting him
based on speech. 3 Whether her decision was lawful or not, however,
Attorney General Bondi made a “discretionary judgment” when she
detained Mahdawi. Even if Mahdawi were correct that her
discretionary decision was unconstitutional, that would be a merits
question that § 1226(e) bars the federal courts from considering. Cf.
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 487 (1999)
(explaining that pursuant to another jurisdictional provision of the
INA, “habeas relief” is “unavailable” for an immigration detainee’s
claim of selective enforcement in violation of the First Amendment).
To be sure, the Second Circuit once asserted that § 1226(e)
“does [not] ‘limit habeas jurisdiction over constitutional claims or
questions of law.’” Velasco Lopez, 978 F.3d at 850 (quoting Singh v.
Holder, 638 F.3d 1196, 1202 (9th Cir. 2011)). We adopted that
conclusion from the decision of the Ninth Circuit in Singh, which said that “[t]he Supreme Court held in Demore that § 1226(e) does not strip a district court of its traditional habeas jurisdiction, ‘bar constitutional challenges’ or preclude a district court from addressing a habeas
petition ‘challenging the statutory framework that permits the
petitioner’s detention without bail.’” Singh, 638 F.3d at 1202
(alterations omitted) (quoting Demore, 538 U.S. at 516-17). The Ninth
Circuit added that “although the Attorney General’s ‘discretionary
3 See, e.g., Appellee’s Br. 1 (“[B]ecause the government disagreed with the content of his peaceful, First Amendment-protected speech, Respondents detained him in April 2025.”).
6
judgment shall not be subject to review,’ claims that the discretionary process itself was constitutionally flawed are ‘cognizable in federal court on habeas because they fit comfortably within the scope of § 2241.’”
Id. (emphasis added) (alteration omitted) (quoting Gutierrez-Chavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002)). 4
The Ninth Circuit misread Demore in that case, so our court was
wrong to rely on it. As detailed above, the Supreme Court held only
that § 1226(e)’s “clear text does not bar respondent’s constitutional
challenge to the legislation authorizing his detention without bail.”
Demore, 538 U.S. at 517 (emphasis added). The Supreme Court never
said that “discretionary judgments” of the Attorney General—the
judgments that § 1226(e) squarely immunizes from judicial review—
could be challenged in court. The Court said that only the statutory
4 In addition to the idea that § 1226(e) does not reach constitutional or legal claims, the Ninth Circuit might be understood to suggest that § 1226(e) distinguishes between the Attorney General’s decision and the process
leading to that decision. But that distinction is untenable. See Mullin v. Doe, No. 25-1083, 2026 WL 1825840, at *8-10 (U.S. June 25, 2026) (concluding that a bar on judicial review of a “determination” by the Secretary of Homeland Security forecloses review of “procedural or substantive questions”
regardless of “whether the term ‘determination’ is understood to mean a discrete decision or a process leading up to a final decision”) (emphasis added); see also Nouritajer v. Jaddou, 18 F.4th 85, 89 (2d Cir. 2021) (“Plaintiffs cannot end-run this jurisdictional bar ‘by artfully framing a challenge to the agency’s substantive decision as a procedural claim.’”) (quoting Doe v. McAleenan, 926 F.3d 910, 915 (7th Cir. 2019)); Amgen, Inc. v. Smith, 357 F.3d 103, 113 (D.C. Cir. 2004) (“If a no-review provision shields particular types of administrative action, a court may not inquire whether a challenged agency decision is arbitrary, capricious, or procedurally defective.”); DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 506 (D.C. Cir. 2019) (“DCH’s proposed distinction between methodology and estimates would eviscerate the
statutory bar, for almost any challenge to an estimate could be recast as a challenge to its underlying methodology.”).
7
framework could be challenged, see id. at 516-17, and Jennings
reaffirmed that view, see Jennings, 583 U.S. at 295 (plurality opinion).
The holding in Demore “does not mean that § 1226(e) fails to
preclude constitutional challenges to the Attorney General’s
authority under § 1226(a).” Miranda, 34 F.4th at 368 (Richardson, J.,
concurring in part, dissenting in part, and concurring in the
judgment). Demore and Jennings involved challenges to “detention
prescribed by the statute,” and challenges to that statutory framework “focus on Congress’s judgment.” Id. Following Demore, the federal
courts may entertain “‘constitutional challenges to the legislation,’ i.e., to the statutory framework,” but “not to decisions by the executive
enforcing that legislation.” Id. at 368-69 (alteration omitted) (quoting Demore, 538 U.S. at 516-17).
That basic distinction explains the other types of claims that a
detained alien may bring despite the jurisdictional bars of the INA:
challenges to an indefinite detention and to conditions of
confinement. The Supreme Court has entertained a challenge to an
indefinite detention because the alien may challenge “the extent of the Attorney General’s authority under the … statute” as long as he does
“not seek review of the Attorney General’s exercise of discretion.”
Zadvydas v. Davis, 533 U.S. 678, 688 (2001). If the detained alien can demonstrate that his pending removal “proceedings are a sham or
that the government is otherwise unlikely to effectuate the removal[]
at the reasonably foreseeable conclusion of those proceedings,” then
he may argue that “the detention no longer appear[s] to serve the
[statutory] purpose of facilitating ongoing removal proceedings” and
has instead become “indefinite.” Black v. Almodovar, 156 F.4th 171,
183-89 (2d Cir. 2025) (Menashi, J., dissenting from the denial of
rehearing en banc); see Zadvydas, 533 U.S. at 699 (“[O]nce removal is
8
no longer reasonably foreseeable, continued detention is no longer
authorized by statute.”).
Challenges to conditions of confinement—such as “claims
about inhumane treatment, assaults, or negligently inflicted injuries
suffered during detention”—also address “actions that go beyond the
Government’s lawful pursuit of its removal objective.” Jennings, 583
U.S. at 319 (Thomas, J., concurring in part and concurring in the
judgment). Thus, “a detained alien who needs halal or kosher food,
or a diabetic who alleges that the Government is depriving him of
insulin,” may seek judicial relief. E.O.H.C. v. Sec’y U.S. Dep’t of
Homeland Sec., 950 F.3d 177, 186 (3d Cir. 2020). Because detainees
challenging conditions of confinement do not “claim an entitlement
to release,” DHS v. Thuraissigiam, 591 U.S. 103, 119 (2020), the
Supreme Court has “left open the question” of whether the proper
avenue for seeking relief is “to challenge their confinement conditions via a petition for a writ of habeas corpus,” Ziglar v. Abbasi, 582 U.S. 120, 144 (2017). 5 But the Court has said that “detainees may seek
injunctive relief” to address at least some “decisions concerning the
conditions of confinement.” Ziglar, 582 U.S. at 144 (emphasis added).
5 See Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring) (“It is one thing to say that permissible habeas relief, as our cases interpret the statute, includes ordering a quantum change in the level of custody, such as release from incarceration to parole. It is quite another to say that the habeas statute authorizes federal courts to order relief that neither
terminates custody, accelerates the future date of release from custody, nor reduces the level of custody.”) (internal quotation marks and citation omitted); see also Thuraissigiam, 591 U.S. at 127 (identifying “the ‘core’ of habeas as ‘a remedy for unlawful executive detention’”) (quoting Munaf v. Geren, 553 U.S. 674, 693 (2008)).
9
The jurisdictional bar of § 1226(e) would not prevent challenges
to an indefinite detention or to conditions of confinement because
such claims do not require a court to review the decision of the
Attorney General to detain an alien pending removal proceedings.
Mahdawi does not allege that his detention is indefinite—he has been
detained pending removal proceedings—nor does he object to the
conditions of his confinement. Because his challenge, even if
construed as directed at his detention rather than his removal, would
attack “the decision to detain” itself, § 1226(e) would bar the claim. Jennings, 583 U.S. at 294 (plurality opinion). Pursuant to § 1226(e), a federal court may not entertain Mahdawi’s challenge to the
discretionary decision of the Attorney General to detain him.
B
The question then arises of whether § 1226(e)—as applied even
to challenges to detention that do not implicate the grounds for
removal—violates the Suspension Clause. Justice O’Connor observed
in Demore that “[b]ecause § 1226(e) plainly deprives courts of federal habeas jurisdiction over claims that [an alien’s detention] is
unconstitutional, one could conceivably argue that such a repeal
violates the Suspension Clause.” 538 U.S. at 537 (O’Connor, J.,
concurring in part and concurring in the judgment).
Justice O’Connor correctly explained that § 1226(e) does not
violate the Suspension Clause. “[I]n 1789, and thereafter until very
recently, the writ was not generally available to aliens to challenge
their detention while removal proceedings were ongoing.” Id. at 539.
Because the Suspension Clause, “at a minimum, ‘protects the writ as
it existed in 1789,’ when the Constitution was adopted,” the very
recent practice falls outside the scope of the clause. Thuraissigiam, 591 U.S. at 116 (quoting INS v. St. Cyr, 533 U.S. 289, 301 (2001)). Congress
10
has therefore permissibly limited immigration detainees to habeas
claims that fall outside of the § 1226(e) bar and to administrative
remedies, such as Joseph hearings, that the executive branch makes
available.
1
“[A]ny argument that § 1226(e) violates the Suspension Clause
is likely unavailing.” Demore, 538 U.S. at 537 (O’Connor, J., concurring in part and concurring in the judgment). The constitutional analysis
begins with “the common-law writ as it existed in 1789,” Boumediene
v. Bush, 553 U.S. 723, 746 (2008), so “[t]he constitutionality of
§ 1226(e)’s limitation on habeas review therefore turns on whether the writ was generally available to those in [Mahdawi’s] position in 1789
(or, possibly, thereafter) to challenge detention during removal
proceedings,” Demore, 538 U.S. at 537-38 (O’Connor, J., concurring in
part and concurring in the judgment).
It was not. “[H]istorical evidence suggests that [Mahdawi]
would not have been permitted to challenge his temporary detention
pending removal until very recently.” Id. at 538. 6 In fact, “not until
6 Cf. Yamataya v. Fisher, 189 U.S. 86, 100 (1903) (“[I]t has been settled that the power to exclude or expel aliens belonged to the political department of the government, and that the order of an executive officer invested with the power to determine finally the facts upon which an alien’s right to enter this country, or remain in it, depended, was ‘due process of law, and no other tribunal, unless expressly authorized to do so, was at liberty to reexamine the evidence on which he acted, or to controvert its sufficiency.’”) (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892)); Fong Yue Ting v. United States, 149 U.S. 698, 709 (1893) (“In England, the only question that has ever been made in regard to the power to expel aliens has been whether it could be exercised by the king without the consent of parliament. It was formerly exercised by the king, but in later times by parliament, which passed several acts on the subject between 1793 and 1848. Eminent
11
1952 did [the Supreme Court] entertain such a challenge,” and in that
case the Court “reaffirmed the power of Congress to order the
temporary detention of aliens during removal proceedings.” Demore,
538 U.S. at 539 (O’Connor, J., concurring in part and concurring in the judgment). Given that background, Justice O’Connor—joined by
Justices Scalia and Thomas—would have held in Demore that
Ҥ 1226(e) unambiguously bars habeas challenges to the Attorney
General’s decisions regarding the temporary detention of criminal
aliens under § 1226(c) pending removal.” Id. at 540. Congress did not
violate the Suspension Clause by adopting § 1226(e) because “in 1789,
and thereafter until very recently, the writ was not generally available to aliens to challenge their detention while removal proceedings were
ongoing.” Id. at 539.
The other six Justices in Demore did not express disagreement
with that conclusion but simply did not reach the issue of the
Suspension Clause. 7 The Supreme Court continues to evaluate what
is “required by the Suspension Clause” by reference to “the writ of
habeas corpus as it was understood when the Constitution was
adopted.” Thuraissigiam, 591 U.S. at 136. That understanding shows
that the Suspension Clause does not require a federal court to
English judges, sitting in the judicial committee of the privy council, have gone very far in supporting the exclusion or expulsion, by the executive authority of a colony, of aliens having no absolute right to enter its territory or to remain therein.”) (citations omitted).
7 As described above, those Justices concluded that § 1226(e) did not bar the detainee’s challenge to “the statutory framework that permits his
detention without bail” because he did “not challenge a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.” Demore, 538 U.S. at 516-17 (majority opinion).
12
entertain a habeas petition challenging the decision of the Attorney
General to detain an alien pending removal proceedings.
2
Other jurists have relied on different grounds to conclude that
§ 1226(e) does not violate the Suspension Clause. The Supreme Court
has explained that “Congress could, without raising any constitutional questions, provide an adequate substitute” for the
availability of the writ of habeas corpus. St. Cyr, 533 U.S. at 314 n.38. “[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not
constitute a suspension of the writ of habeas corpus.” Swain v.
Pressley, 430 U.S. 372, 381 (1977). 8
Applying that standard, courts have concluded that “the
alternative remedies provided to review the mandatory detention
determination under § 1226(c) are adequate substitutes for habeas
corpus.” Alphonse v. Moniz, No. 21-CV-11844, 2022 WL 279638, at *6
(D. Mass. Jan. 31, 2022) (Saylor, C.J.). 9 Those courts have observed
that “[m]andatory detention under § 1226(c) may be challenged in a
Joseph hearing” and “[a]n adverse decision in the Joseph hearing may
be appealed to the BIA.” Alphonse, 2022 WL 279638, at *6 (citing
8 See also Alexandre v. U.S. Att’y Gen., 452 F.3d 1204, 1206 (11th Cir. 2006) (“If a substitute remedy provides the same scope of review as a habeas remedy, it is adequate and effective.”); Perez v. Barr, 957 F.3d 958, 963 (9th Cir. 2020).
9 See also P.L. v. ICE, No. 19-CV-1336, 2019 WL 2568648, at *3 (S.D.N.Y. June 21, 2019) (explaining that it would not violate the Suspension Clause for aliens who have “challenged their detention” to lack access to habeas relief because the aliens “still have the ability to bring their claims in a BIA proceeding or to file a petition for review”).
13
8 C.F.R. § 1236.1(d)(3)). Moreover, district courts retain “jurisdiction to address whether the length of [a] petitioner’s detention comports
with due process.” Id.; see Zadvydas, 533 U.S. at 699. Alongside these avenues for relief, the “process established in § 1252 to appeal a
removal order to the BIA, and subsequently to the circuit court,
provides an adequate substitute to habeas relief.” Alphonse, 2022 WL
279638, at *6 n.7; see 8 U.S.C. § 1252(b)(2). 10
When a detained alien such as Mahdawi is determined to be
ineligible to be released on bond pending removal proceedings, the
alien may request a Joseph hearing. 11 The Joseph hearing allows the
10 See also Guerrero-Lasprilla v. Barr, 589 U.S. 221, 234 (2020) (“Congress’[s] amendments are designed to provide an adequate and effective alternative to habeas corpus in the courts of appeals.”) (internal quotation marks omitted).
11 Some aliens detained pending removal proceedings pursuant to
§ 1226(a) may be released on bond. See 8 U.S.C. § 1226(a); 8 C.F.R. § 1003.19; id. § 1236.1(c)(8). “At a bond hearing conducted pursuant to … § 1226(a), the burden of proof is on the [alien] to demonstrate to the satisfaction of the Immigration Judge that his release would not pose a danger to property or persons, and that the respondent is likely to appear for any future
proceeding.” Matter of Salas Pena, 29 I. & N. Dec. 173, 174 (BIA 2025). If the alien disagrees with the decision of the IJ, he may appeal to the BIA. See 8 C.F.R. § 1236.1(d)(3). Some aliens, however, are ineligible to be released on bond. That category includes aliens detained under § 1226(c)—the
mandatory detention provision—as well as aliens such as Mahdawi who
were charged as removable under 8 U.S.C. § 1227(a)(4). An alien so charged is subject to discretionary detention by the Attorney General under
§ 1226(a). But if the Attorney General decides to detain the alien, “an immigration judge may not redetermine conditions of custody imposed.” 8 C.F.R. § 1003.19(h)(2)(i); id. § 1003.19(h)(2)(i)(C). It makes sense that if the United States has determined that an alien’s “presence or activities in the United States” has “potentially serious adverse foreign policy
consequences for the United States”—and has further determined that the alien should be detained pending the removal proceedings—an agency
14
alien to “seek[] a determination by an immigration judge that the alien is not properly included” in the category of those ineligible for bond. 8 C.F.R. § 1003.19(h)(2)(ii). 12 At the hearing, the government has “the initial burden of showing there is ‘reason to believe’ that the alien is deportable or inadmissible under a ground” that renders him
ineligible for a bond hearing. De La Rosa v. Barr, No. 19-CV-6418, 2019 WL 5842906, at *2 n.1 (W.D.N.Y. Nov. 7, 2019) (quoting Joseph,
22 I. & N. Dec. at 803-04). The “‘reason to believe’ standard is
equivalent to [the] ‘probable cause’ standard.” Id. (quoting Matter of U-H-, 23 I. & N. Dec. 355, 356 (BIA 2002)). “Once the Government has
carried that burden,” the alien “may secure a bond hearing only if he
or she is able to affirmatively demonstrate that the Government’s
charges are meritless, and therefore, he or she is not ‘properly
included’” in the category of aliens ineligible for bond. Id. (quoting Joseph, 22 I. & N. Dec. at 806-07). “If a detainee is found not to be
‘properly included’” in that category, “she may then seek release on
bond under 8 U.S.C. § 1226(a).” Gayle, 12 F.4th at 328 (quoting Joseph, 22 I. & N. Dec. at 806).
adjudicator would not be able to countermand that decision. 8 U.S.C.
§ 1227(a)(4). But an alien who falls into this category still receives a Joseph hearing at which he may contest his classification as an alien ineligible for bond.
12 See Demore, 538 U.S. at 514 (explaining that the Joseph hearing entitles the alien “to raise any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category”); Gayle v. Warden Monmouth Cnty. Corr. Inst., 12 F.4th 321, 328 (3d Cir. 2021) (“Under Joseph, such detainees are entitled to a hearing before an Immigration Judge (IJ) to determine ‘whether the Government has properly included them
within a category that is subject to mandatory detention.’”) (alterations omitted) (quoting Matter of Joseph, 22 I. & N. Dec. 799, 805 (BIA 1999)).
15
In this case, Mahdawi could have obtained a Joseph hearing. See
Appellant’s Br. 32; Appellee’s Br. 38. But like the litigant in Demore, he “forwent a hearing” and “instead filed a habeas corpus action.”
Demore, 538 U.S. at 514. If Mahdawi had exhausted the administrative
remedies available to him, the government would have been required
to establish probable cause to believe that Mahdawi qualifies as “[a]n alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious
adverse foreign policy consequences for the United States.” 8 U.S.C.
§ 1227(a)(4)(C)(i); see J. App’x 263. If the Secretary’s determination that Mahdawi falls under § 1227(a)(4)(C)(i) could be shown to be
unlawful—under the First Amendment or otherwise—the IJ might
conclude that the government failed to meet its burden. Alternatively, even if the government could meet the probable cause standard based
on the Secretary’s determination, Mahdawi could have argued that
the government was “substantially unlikely to establish that he is in
fact subject to mandatory detention” because the Secretary’s
determination violated the First Amendment or another law. Demore,
538 U.S. at 514 n.3. In short, Mahdawi would have received a standard
bond hearing unless (1) the government established that there was
probable cause to believe he was removable under § 1227(a)(4), and
(2) Mahdawi failed to establish that the government’s case against
him lacked merit. 13
13 See Joseph, 22 I. & N. Dec. at 806 (“[A] lawful permanent resident will not be considered ‘properly included’ in a mandatory detention category when an Immigration Judge or the Board is convinced that the [government] is substantially unlikely to establish at the merits hearing, or on appeal, the charge or charges that would otherwise subject the alien to mandatory
detention.”); id. at 809 (explaining that if the alien “is not properly included in a mandatory detention category,” then “the lawful permanent resident
16
Mahdawi asserts that the IJ and the BIA in this process would
not consider his constitutional arguments because those adjudicators
“do not have jurisdiction to decide constitutional issues.” Appellee’s Br. 38. 14 But that is incorrect. As the government observes, IJs and the BIA frequently address constitutional questions. See Appellant’s
Reply Br. 31 n.3. The Department of Justice has explained:
[A]djudicators [in the Executive Office for Immigration
Review] may generally consider arguments arising out
of constitutional law, as they have done for many
years. … To that end, all EOIR adjudicators should
maintain familiarity with established jurisprudence on
constitutional law issues likely to arise in proceedings
before them, particularly issues related to the First,
Fourth, Fifth, and Seventh Amendments, the
Appointments Clause, and the major questions and
nondelegation doctrines. 15
One decision of the BIA, for example, found “no violation of the
Establishment Clause of the First Amendment in review of a visa
could be considered by the Immigration Judge for release under the general bond provisions”).
14 “No one disputes,” however, that Mahdawi may raise his constitutional challenges in a petition for review of a final order of removal. Khalil v. President, 164 F.4th 259, 280 (3d Cir. 2026). “And the availability of the PFR process satisfies the Suspension Clause.” Id. at 279; see also id. at 275 (explaining that a “delay does not foreclose meaningful review” or entitle a petitioner “to seek immediate release through habeas”).
15Executive Office for Immigration Review, U.S. Department of Justice, PM 25-45: Consideration of Constitutional Arguments in Agency
Adjudications at 3 (Sept. 5, 2025), https://perma.cc/8D74-23HT.
17
petition filed by a religious organization.” 16 The adjudicators in
immigration cases “are fully competent to decide most constitutional
issues arising in EOIR proceedings and have done so for decades.”17
The Office of Legal Counsel has also rejected “the view that agencies
lack the power to adjudicate certain constitutional issues.” 18 It noted that “recent scholarship has documented the ‘long history’ of agencies ‘engaging with constitutional questions,’” 19 and it explained that “an agency’s intimate familiarity with the statutes and regulations it
administers may make it particularly well suited to address most
other constitutional questions” besides the limited set of “structural challenges to their own enabling acts.” 20 Even though Mahdawi was
determined to be ineligible for a bond hearing, he could have pursued
a Joseph hearing at which he would have been entitled to challenge the determination of ineligibility with “any nonfrivolous argument
available.” Demore, 538 U.S. at 514.
In sum, § 1226(e) prohibits a federal court from reviewing a
discretionary detention decision made by the Attorney General under
§ 1226(a). It does not offend the Suspension Clause to prohibit a
detained alien from challenging that decision in habeas. Even though
16 Id. (describing Matter of Church Scientology Int’l, 19 I. & N. Dec. 593, 603 (BIA 1988)).
17 Id. at 4.
18 The Merit Systems Protection Board’s Authority to Adjudicate
Constitutional Questions within an Administrative Proceeding, 49 Op.
O.L.C. (Sept. 26, 2025), 2025 WL 2817559, at *6.
19 Id. (quoting Yonatan Gelblum, The Myth that Agency Adjudications Cannot Address Constitutional Claims, 32 Geo. Mason L. Rev. 223, 243-45, 255-56 (2025)).
20 Id. (internal quotation marks omitted); see also infra notes 28-29 and accompanying text.
18
immigration detainees have alternative administrative avenues for
relief, Mahdawi did not even attempt to pursue those remedies.
II
Mahdawi’s failure to exhaust the available administrative
remedies means that even if the jurisdictional bars could be overcome, the district court still would be required to dismiss or to stay his
habeas petition. See Monestime v. Reilly, 704 F. Supp. 2d 453, 456
(S.D.N.Y. 2010) (“A habeas petitioner generally must exhaust
administrative remedies before seeking federal court intervention.”). 21
The exhaustion requirement in this context is not judicially
created, despite what some district courts have suggested. 22 As our
court has explained, the “exhaustion requirement arises as a result of the administrative remedies available to [the alien] pursuant to the
21 See also Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (“When a petitioner does not exhaust administrative remedies, a district court
ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.”); Cepeda v. Shanahan, No. 15-CV-9446, 2016 WL 3144394, at *2 n.3 (S.D.N.Y. Apr. 22, 2016) (“A stay is appropriate when the [c]ourt has jurisdiction over the habeas petition but the petitioner must, or should, seek administrative relief first.”).
22 See, e.g., Araujo-Cortes v. Shanahan, 35 F. Supp. 3d 533, 538 (S.D.N.Y. 2014) (“There is no statutory requirement that a habeas petitioner exhaust his administrative remedies before challenging his immigration detention.
Since Congress is silent on the issue, courts have applied a judicially created requirement that, generally, a petitioner must exhaust his administrative remedies before seeking federal court intervention.”); Garcia v. Shanahan, 615 F. Supp. 2d 175, 179 (S.D.N.Y. 2009) (“[I]t is a matter of the [c]ourt’s discretion whether a petitioner must exhaust his administrative remedies before applying for relief in federal court.”).
19
statutory and regulatory schemes.” Howell v. INS, 72 F.3d 288, 293 (2d Cir. 1995). The requirement follows from the applicable legislative
and administrative framework.
“Under the doctrine of exhaustion of administrative remedies,
‘a party may not seek federal judicial review of an adverse
administrative determination until the party has first sought all
possible relief within the agency itself.’” Id. at 291 (quoting Guitard v. U.S. Sec’y of the Navy, 967 F.2d 737, 740 (2d Cir. 1992)). “The
requirement of exhaustion ‘may arise from explicit statutory
language or from an administrative scheme providing for agency
relief.’” Id. (quoting Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993)).
In Howell, we held that an alien could not seek relief from a
federal court regarding the denial of her application for adjustment of status “once deportation proceedings commenced, because she failed
to exhaust her administrative remedies.” Id. at 293. In those
proceedings, the alien had “the opportunity, pursuant to the
regulations, to renew her application for adjustment of status before
an immigration judge,” and we explained that she “must pursue these
remedies rather than seek review in the district court.” Id.
Thus, even if Mahdawi were able ultimately to challenge his
detention via habeas in federal court, he would be required first to
exhaust his administrative remedies. As in Howell, there are
“administrative remedies available to [Mahdawi] pursuant to the
statutory and regulatory schemes involving [immigration detention],” and Mahdawi “must pursue these remedies rather than
seek review in the district court.” Id.
We have identified “established exceptions to the exhaustion
rule.” Id. at 291. But none apply here. First, “[e]xhaustion of
20
administrative remedies may not be required” when “irreparable
injury may occur without immediate judicial relief.” Id. (quoting
Guitard, 967 F.2d at 741). But Mahdawi has not identified the kind of
injury that would excuse exhaustion. Mahdawi may seek the same
relief he sought from the district court—release from detention
pending removal proceedings—through a Joseph hearing. Even if he
did not prevail in that hearing and remained detained, as an
immigration detainee Mahdawi would be on the priority calendar for
removal proceedings. “Since its creation in 1983, EOIR has prioritized all cases involving individuals in detention or custody, regardless of the custodian.” 23 EOIR has established a performance metric that
“[n]inety-five percent (95%) of all non-status detained removal cases
should be completed within 60 days of filing of the Notice to Appear
(NTA), reopening or recalendaring of the case, remand from the
Board of Immigration Appeals (BIA), or notification of detention.” 24
A report of the Government Accountability Office records the actual
“[m]edian number of days from case start to initial completion” for
detained aliens for fiscal years 2016 through 2023. 25 In 2023 it was 47 days; in 2022 it was 50 days; in 2021 it was 50 days; in 2020 it was 92 days; in 2019 it was 52 days; in 2018 it was 39 days; and in 2017 it was 40 days. 26
23 Executive Office for Immigration Review, U.S. Department of Justice, PM 25-47: Case Priorities and Immigration Court Performance Measures
at 2 (Sept. 12, 2025), https://perma.cc/K99B-Z2B9.
24 Id. at 7 (footnotes omitted).
25 Government Accountability Office, GAO-25-106867: Immigration
Courts: Actions Needed to Track and Report Noncitizens’ Hearing
Appearances (Dec. 19, 2024), https://perma.cc/7CWR-3A7N.
26 Id.
21
“[O]ur legal system routinely forces petitioners—even those
with meritorious claims—to wait to raise their arguments.” Khalil, 164 F.4th at 275. And the Supreme Court has reiterated its “longstanding
view that the Government may constitutionally detain deportable
aliens during the limited period necessary for their removal
proceedings.” Demore, 538 U.S. at 526. The circumstances here do not
require a departure from that normal rule.
Second, exhaustion of administrative remedies may not be
required when “available remedies provide no genuine opportunity
for adequate relief” or an “administrative appeal would be futile.”
Howell, 72 F.3d at 291 (quoting Guitard, 967 F.2d at 741). An exhaustion requirement may be “improper” when the “administrative remedy
furnishes no effective remedy at all.” McCarthy v. Madigan, 503 U.S.
140, 156 (1992) (Rehnquist, C.J., concurring in the judgment). As
explained above, however, immigration adjudicators entertain
constitutional claims such as Mahdawi’s. 27
27 In the case argued alongside this one, Ozturk v. Hyde, No. 25-1019, the alien received relief from an IJ on constitutional grounds. See In re Rumeysa Ozturk (Immigr. Ct. Boston Jan. 29, 2026) (“[T]he Court must determine whether the [visa] revocation legally supports removal where such
revocation would violate the Constitution. The DHS has not met its burden by proving removability by clear and convincing evidence because the DHS may not rely on language of a purported visa revocation if such revocation exceeds statutory or constitutional limits.”), available at Immigration Court’s Decision, Ozturk v. Hyde, No. 25-1019 (2d Cir. Feb. 10, 2026), ECF No. 238; see also ACLU, Press Release, Immigration Judge Terminates Removal
Proceedings Against Child Development Scholar Rumeysa Ozturk (Feb. 9,
2026), https://perma.cc/G6YF-8GGA. In Mahdawi’s removal proceedings,
the BIA suggested that constitutional claims should be raised “in any
appeal from an administratively final order.” In re Mohsen Khader Mahdawi (BIA Apr. 29, 2026), available at Rule 28(j) Letter Regarding Board of Immigration Appeals Decision, Mahdawi v. Trump, No. 25-1113 (2d Cir. May
22
Third, exhaustion may not be required when “in certain
instances a plaintiff has raised a substantial constitutional question.” Howell, 72 F.3d at 291 (quoting Guitard, 967 F.2d at 741). Some
constitutional claims concern errors that are not “correctable by the
administrative tribunal.” Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir. 1985). “EOIR adjudicators,” for example, “cannot consider structural
constitutional challenges to their own existence, which they cannot
remedy.” 28 That sort of constitutional claim could be excused from
exhaustion based on “administrative law’s well-known exhaustion
exception for constitutional claims that an agency cannot consider.”
Singh v. Rosen, 984 F.3d 1142, 1155 (6th Cir. 2021). 29 But not all
5, 2026), ECF No. 230. To the extent that the BIA believed it could not consider a constitutional claim, it was mistaken. See supra notes 15-20 and accompanying text.
28 Executive Office for Immigration Review, supra note 15, at 3 n.5. But “even if EOIR could not consider such a structural constitutional challenge in the first instance, it would nevertheless be bound to apply any circuit court or Supreme Court precedent that had addressed such a challenge,” in which case “it would simply be applying established precedent, just as it does in all other cases.” Id.; see also Gelblum, supra note 19, at 227 (identifying decisions of the Supreme Court “declining to require
administrative exhaustion of structural constitutional claims” and
“describing the supposed uselessness of administratively exhausting
constitutional challenges to agency structure, stating that agencies are ‘generally ill suited to address structural constitutional challenges’”) (quoting Axon Enter., Inc. v. FTC, 598 U.S. 175, 195 (2023)).
29 But cf. Elgin v. Dep’t of the Treasury, 567 U.S. 1, 22-23 (2012) (considering the argument of the petitioners that “their constitutional claims are not the sort that Congress intended to channel through the MSPB because they are outside the MSPB’s expertise” and responding that the petitioners
“overlook the many threshold questions that may accompany a
constitutional claim and to which the MSPB can apply its expertise,” that “preliminary questions unique to the employment context may obviate the
23
constitutional claims fall under that exception. The Ninth Circuit has held that an alien challenging his detention on constitutional due
process grounds had not “demonstrated grounds for excusing the
exhaustion requirement.” Leonardo, 646 F.3d at 1161. In this case,
Mahdawi also raises a constitutional claim that the agency can
adjudicate.
Mahdawi had administrative remedies available and did not
exhaust those remedies. Because he has not “demonstrated grounds
for excusing the exhaustion requirement,” even if there were
jurisdiction over his petition, the district court would still have been required to “either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies.” Id. at 1160-61.
* * *
Mahdawi purports to challenge his detention, but his habeas
petition instead challenges the basis of his removal. For that reason, the court correctly holds that the petition raises “questions of law and fact … arising from any action taken or proceeding brought to
remove an alien from the United States” that the district court lacked jurisdiction to decide. 8 U.S.C. § 1252(b)(9).
In my view, § 1252(g) and § 1252(a)(2)(B) also bar the federal
courts from entertaining the petition. See Ozturk, 155 F.4th at 190-94 (Menashi, J., concurring in the denial of rehearing en banc). Moreover, even if the petition were construed as a bona fide challenge to
Mahdawi’s detention, it still would need to be dismissed pursuant to
need to address the constitutional challenge,” and that “the challenged statute may be one that the MSPB regularly construes, and its statutory interpretation could alleviate constitutional concerns”).
24
§ 1226(e). That provision precludes judicial review of a discretionary decision of the Attorney General regarding the detention of an alien
pending removal proceedings. That denial of jurisdiction does not
violate the Suspension Clause. And even if Mahdawi could somehow
overcome the jurisdictional bars, he had administrative remedies
available that he failed to exhaust. I join the majority opinion and
concur for these additional reasons.
25