Khalil v. Joyce: A Habeas Win, A Third Circuit Reversal, and the “Zipper Clause” Question
- Citation
- Khalil v. Joyce, 777 F. Supp. 3d 369 (D.N.J. 2025); Khalil v. Joyce, No. 25-2162 (3d Cir. Jan. 15, 2026) (Hardiman, Bibas, JJ.; Freeman, J., dissenting); en banc petition pending
- Court
- U.S. Court of Appeals for the Third Circuit
- Statute
- 28 U.S.C. § 2241; 8 U.S.C. § 1227(a)(4)(C); 8 U.S.C. § 1252(b)(9)/(g); First and Fifth Amendments
- Holding
- District court’s release order vacated; INA § 1252(b)(9)/(g) (the “zipper clause”) channels challenges into the PFR process and strips district-court habeas jurisdiction over removal-related claims; constitutional merits not reached.
Mahmoud Khalil was born in a Palestinian refugee camp in Syria. He is a Columbia University graduate and a lawful permanent resident of the United States. On March 8, 2025, DHS arrested him at his Columbia residence; within days he had been transferred to a detention facility in Louisiana. The Secretary of State invoked 8 U.S.C. § 1227(a)(4)(C) — the “foreign policy” deportability ground — on the theory that his pro-Palestinian organizing harmed U.S. foreign-policy interests.
The district-court win
Habeas was filed in S.D.N.Y. and immediately transferred to the District of New Jersey, where Khalil had actually been when the petition was filed. Judge Michael Farbiarz presided. On April 1, 2025, the court denied the government’s motion to transfer the case further to Louisiana under the “known custodian” rule, applying the well-established “unknown custodian” exception that has prevented forum-manipulation through interstate detainee transfer in dozens of recent immigration habeas cases.
On June 11 and June 20, 2025, the court issued the orders that produced the headlines. The detention on the foreign-policy ground was, the court held, likely unconstitutional; the asserted basis was the petitioner’s speech, the speech was protected, and the resulting detention chilled core First Amendment activity. Khalil was released on bail after 104 days in custody.
The Third Circuit reversal
The Third Circuit’s January 15, 2026 ruling vacated the release order. The opinion (by Judges Hardiman and Bibas, with Judge Freeman in dissent) does not reach the constitutional merits. Instead, the panel holds that 8 U.S.C. § 1252(b)(9) — the “zipper clause” that channels challenges “arising from any action taken or proceeding brought to remove an alien” into the petition-for-review process — deprives district courts of habeas jurisdiction over the constitutional challenges Khalil raised.
“The challenges Khalil presents are inseparable from the removal proceedings he faces. Section 1252(b)(9) channels them into the petition-for-review process.”
Judge Freeman’s dissent emphasized the historical scope of habeas: the Suspension Clause requires meaningful access to the writ for challenges to executive detention, and statutory channeling cannot evade that constitutional minimum. The dissent also distinguished detention challenges from removal-order challenges, observing that the former have traditionally been habeas matters even where the latter are channeled into PFR.
The en banc petition
An en banc petition is pending as of this writing. The case is widely viewed as a leading vehicle for Supreme Court review of the relationship between § 1252(b)(9) and § 2241 in the First Amendment retaliation context. The stakes are unusually high. If the Third Circuit’s reading prevails, district-court habeas as a vehicle for challenging speech-based detention is materially curtailed; pre-final-order detainees would have to wait for a final order, exhaust through the BIA, and then seek a PFR — a process that takes years and during which detention typically continues.
Significance
For habeas practice, the Third Circuit’s ruling is the most consequential procedural restriction the immigration habeas docket has absorbed in the past decade. The companion Second Circuit oral argument in Ozturk and Mahdawi on September 30, 2025 will produce a circuit-level ruling on the same question; if the Second Circuit reaches a different conclusion, the resulting split makes Supreme Court review almost inevitable.
For lawful permanent residents and visa holders detained on speech grounds, the practical effect is significant. The post-Khalil universe of options for challenging First Amendment retaliation depends on which circuit’s law applies and on how district courts apply the Third Circuit’s framework even outside its formal reach. The pre-Khalil practice — file habeas in the district of confinement, raise constitutional claims, seek release — is significantly harder to maintain.
Filed under First Amendment Detentions. Published June 20, 2025 (D.N.J. release); January 15, 2026 (3d Cir. reversal).