Did Mahmoud Khalil suffer a "major blow" at the Third Circuit today? Or just another technical detour on his way to permanent limbo status in the US?
One thing is certain – Khalil is in no risk for immediate deportation. A 2-1 decision from the Third Circuit Court of Appeal reversed the district court's ruling that released him from custody based on a habeas corpus petition and a hearing on the merits of the State Department's actions. However, the relatively technical decision does not actually reverse the merit-oriented findings, but rather rules that the district court did not have the authority to hear that petition in the first place.
The Wall Street Journal reports this as a "major blow" for the Columbia University protester-cum-Hamas propagandizer:
In a 2-1 decision, judges from the U.S. Court of Appeals for the Third Circuit on Thursday said the law requires Khalil to fully exhaust his options in immigration court before challenging his detention and deportation in federal court.
“That scheme ensures that petitioners get just one bite at the apple—not zero or two,” the judges wrote. “But it also means that some petitioners, like Khalil, will have to wait to seek relief for allegedly unlawful government conduct.”
The appeals court ordered district court Judge Michael Farbiarz, of New Jersey, to dismiss Khalil’s habeas petition and vacate several of his prior decisions on the case.
Thursday’s decision doesn’t mean Khalil will immediately be rearrested since his lawyers will have time to appeal the decision before it goes into effect. But the order could set back months of proceedings in the New Jersey court, which had ruled in Khalil’s favor on several issues.
How major is this blow, really? In technical terms, it's significant. Khalil had found a sympathetic district court and won several rulings on the merits of his challenge to detention and deportation. Technically, those decisions must be treated as though they never existed at all, and Khalil has to start over with an immigration judge for all of these arguments. That's basically a Square One position, with the State Department and Homeland Security given the benefit of doubt on claims of his disqualification to reside in the US over his Hamas propagandizing.
However. Upon reading the opinion, it appears that the appellate panel did not address the merits of the disqualification or consider it to any great extent. The court seems focused almost entirely on the sequence of the legal battle rather than any conclusions on whether Khalil violated any conditions of his visa that allowed him to live in the US. By going directly to federal court rather than an immigration court to challenge the deportation order, Khalil wasted everyone's time. The court ruled that Khalil had to raise these issues in immigration court, and only after a negative finding would he have standing to challenge the ruling in federal court. When the dissenting judge objected to this finding on the basis of emergency, the other two judges rebutted that the American legal system has processes that exist for a reason:
The statute’s purpose (as Supreme Court and circuit precedent have described it) confirms our reading too. Section 1252(b)(9) works as a “zipper” clause, channeling “most claims that even relate to removal” into PFRs. Reno v. AADC, 525 U.S. 471, 483 (1999) (first quotation); E.O.H.C., 950 F.3d at 184 (second quotation). It 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.
Our dissenting colleague responds that “the word ‘questions’ in the title and text of §1252(b)(9) . . . cannot bear the weight” we place on it. Partial Dissent 22. According to her, the word “questions” “sheds no light on the meaning of ‘arising from’ ” because the former term does not modify the latter. Id. We agree that the word “questions” does not modify “arising from.” But that proves nothing. As she acknowledges, “[o]ur discussion in E.O.H.C. controls the meaning of ‘arising from.’ ” Id. at 23. Yet E.O.H.C. held only that now-or-never claims do not “arise from” “action[s] taken or proceeding[s] brought to remove an alien.” 950 F.3d at 185–86; 8 U.S.C. §1252(b)(9). The repeated statutory references to “questions” show that what makes a claim now-or-never is that it raises questions that cannot be reviewed later, on a petition for review of a final order of removal.
Our colleague also worries that our reading of §1252(b)(9) “renders meaningful review hollow,” since a PFR court cannot later redress harms incurred from, say, unconstitutional immigration detention. Partial Dissent 20. But our legal system routinely forces petitioners—even those with meritorious claims—to wait to raise their arguments. Consider an innocent defendant who was convicted of a serious crime and imprisoned because his trial lawyer was ineffective. His detention is wrongful: He did not actually commit the crime. But that does not entitle him to seek immediate release through habeas; first, he must exhaust his direct appeal. See, e.g., 28 U.S.C. §2254(b)(1)(A). That delay does not foreclose meaningful review. It just streamlines the process for seeking it. Congress has the power to balance concerns about the orderly adjudication of claims with concerns about remedying harms from illegal detention. The balance that Congress struck in §1252(b)(9) requires bringing legal questions later if they can be answered later.
In other words, the First Amendment concerns raised by Khalil doesn't actually create an emergency that requires defiance of the legal process. But that's pretty much all that the ruling decides. Since Khalil's release was ordered on the basis that the district court believed he would win that challenge on the merits of his substantive claims, and the court didn't have the authority to hear those claims until after an immigration court ruled, Khalil's basis for release has evaporated.
The final paragraph sums it up:
The immigration laws enacted by Congress ordinarily require an alien to challenge his deportation in a PFR—unless he raises questions that a court of appeals could not meaningfully review in that context. That scheme ensures that petitioners get just one bite at the apple—not zero or two. But it also means that some petitioners, like Khalil, will have to wait to seek relief for allegedly unlawful government conduct. Because Khalil raises legal questions that a PFR court can meaningfully review later on, the INA bars him from attacking his detention and removal in a habeas petition. We will therefore VACATE and REMAND to the District Court with instructions to dismiss the petition.
In other words: Go back to Start.
The impact of the ruling has apparently been stayed while Khalil's attorneys decide whether to appeal for an en banc review or to appeal to the Supreme Court. Will Khalil get a reversal of this opinion with either option? Possibly, but the panel appears to have a solid basis for its ruling. Even if the ruling sticks, though, all it means is that Khalil will start over in immigration court. If he loses in that venue, then he can challenge deportation in federal court. He may very well win again with the same arguments presented earlier. The most likely outcome from this ruling is that everyone will return again in the exact same positions as now, only with all of the boxes checked.
To the extent that this court upheld proper due process and removed any shortcuts in this case, it's a win. In relation to Khalil, though, it's likelier that this is just a technical decision that will change very little for partisans on either side of this case.
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