The Great Writ

The Khalil case is the “poster boy” case for the government’s attempt to deport student activists protesting Israel. Khalil was a fairly high profile figure during the protests at Columbia in New York. He was the first of several students detained by ICE. His case may involve the most voluminous examination of a variety of issues – in large part because the Federal District Court judge in question is more than thorough. The following post was published on May 5.

A week ago, the Federal District Court for the District of New Jersey issued its hefty (108 page) opinion regarding jurisdiction for Mahmoud Khalil’s habeas corpus petition.  The Court thoroughly confronted the issues raised by the Government in every habeas case recently filed involving the Executive’s recent spate of detentions for purpose of removal.  In Khalil’s case, the Government argued specifically that 8 USC §1252(b)(9) and §1252(g) stripped federal district courts of all jurisdiction pertaining to cases involving removal of aliens. 

The §1252(b)(9) issue was extensively addressed by the court in the Ozturk case, and that court concluded that it did not apply – primarily because the claims stated in her petition didn’t “arise from” and action taken to remove an alien from the United States.  As Judge Sessions noted, such a conclusion “stretches the boundaries of the text and the facts in this case.”  Judge Farbiarz reached a different conclusion in Khalil.  He concluded that “there can be no doubt that review of the legality of the Petitioner’s detention ‘arises from’ the Secretary’s determination.”  At first blush, this conclusion would seem fatal for Khalil.  However, the Court took a step back and focused on the when §1252 applies in general.  The Court concluded, much like the Court in Ozturk, that §1252 only applies to cases in which there has been a final removal order – which was not the case here.  Now, one might think, this seems fatal to the Government’s argument.  However, the Court noted that there existed 3^rd Circuit precedent for applying §1252 to cases in which the final removal order had yet to be entered.  Specifically, the Court cited EOHC v. Secretary United States Department of Homeland Security for the proposition that §1252 could apply even when no final order of removal has been issued.  However, in such a situation, the Court observed that precluding federal district court review pursuant to §1252 would only be appropriate when the claim could get “meaningful review” without immediate federal district court intervention.

It is this concept of meaningful review that spells trouble for the Government’s position.  As may be recalled, Judge Farbiarz has been focused on this issue for some time and specifically requested the parties to answer two questions designed to illuminate the issue of meaningful review.  For three reasons, the Court concluded that Khalil could not get meaningful review of his claims within the immigration court structure.  First, immigration courts are not legally permitted to provide the relief (i.e. striking down the Secretary of States determination) that the Petitioner seeks.  Second, immigration courts cannot meaningfully develop the case legally or factually.  Third, immigration courts cannot bring to bear the expertise necessary to resolve these contested issues.

Finally, the Court focused on §1252(g) which, the Court noted, deprives the district court of jurisdiction to review three actions undertaken by the Attorney General: the decision to commence proceedings, the adjudication of these cases, and the execution of removal orders.  The Court concluded that none of these actions are at issue in the Petitioner’s claims, and thus §1252(g) is inapplicable as well.  The Petitioner is focused on the declaration of the Secretary of State, which isn’t one of the three actions enumerated in §1252(g).

Thus, this case will proceed in federal court on the constitutionality of the declaration made by the Secretary of State regarding the foreign policy consequences of Khalil’s speech – although the Court did leave open the issue of “venue” in an ancillary order issued on the same day as the opinion.  In addition, since this decision was released, the Court further declined to certify it for interlocutory appeal because it was not an “order” but rather an opinion – which is not subject to interlocutory appeal.