District court found administration’s targeting likely unconstitutional, but Third Circuit overturned ruling on jurisdictional grounds

October 19, 2026, Washington, D.C. – Palestinian advocate Mahmoud Khalil today asked the Supreme Court to hear his case. He is challenging an appellate ruling that federal courts do not have jurisdiction to review the legality of immigration detention until immigration proceedings have been exhausted. This would deprive immigrants of the right to habeas corpus and force them to remain in detention for months or potentially years, even if the very point of the detention was to punish and chill First Amendment rights. The district court had found his targeting by the Trump administration likely unconstitutional and ordered his release, but the Third Circuit Court of Appeals overruled that decision on jurisdictional grounds.

Mr. Khalil’s petition for a writ of certiorari to the Supreme Court argues that the federal courts have always had the authority to hear a claim that one is being unconstitutionally detained by the executive and to order one’s release, particularly when the very point of a detention is to retaliate and punish someone for constitutionally protected speech. The case will have far-reaching consequences for all detained migrants by giving the Trump administration vast power to detain on unlawful or pretextual bases.

“This case is about whether I, and all immigrants in this country, can actually challenge this administration’s unlawful attempts to detain and deport people solely in retaliation for their First Amendment protected speech,” said Mr. Khalil.

In March 2025, the Trump administration set out to punish Mr. Khalil – a lawful permanent resident married to a U.S. citizen – for his First Amendment protected advocacy as part of a broader effort by the White House to weaken the Palestinian rights movement in the U.S. It relied on an obscure provision of the immigration laws, the so-called “Foreign Policy Ground,” to declare Mr. Khalil’s constitutionally protected advocacy “adverse to the foreign policy interests of the United States” – a sweeping provision that had never been used to punish someone for protected speech. 

DHS abducted him from his home in New York and placed him in a Louisiana detention center 1,300 miles away, where he spent 104 days, missing the birth of his first child – and where he would still be today, eighteen months later, if not for the district court’s intervention. The administration admitted they sought to make an example out of his detention to scare other Palestine advocates and has since used its control over immigration proceedings to force his removal, also taking highly unusual steps in his case to ensure a pre-determined outcome 

Mr. Khalil received a final order of removal, which he has appealed to the Fifth Circuit. The government moved him across four states in two days in order to keep him far from his family, community, and counsel, and to place him in their preferred forum within a circuit that consistently rules in favor of executive power, including during the Trump administration. His habeas case was heard in the Third Circuit because he was held in New Jersey at the time his habeas petition was filed. Meanwhile, his immigration removal proceedings occurred in Louisiana immigration courts, where he had been detained, and resulted in a final order of removal. He is separately appealing the removal order to the Fifth Circuit, because that is where he was held in detention. 

In his federal habeas case, the district court found the Foreign Policy Ground so vague and sweeping that its use against Mr. Khalil for mere speech would likely be unconstitutional and later ordered his release from detention over the government’s insistence he remain jailed. The government appealed, and, in a split decision in January, the Third Circuit ruled that federal district courts cannot review his constitutional challenge until his administration-controlled immigration proceedings are completed. The law, however, grants the federal courts the authority to review immigrants’ constitutional challenges to punitive and retaliatory detention, his lawyers say. This was the conclusion of the Fourth Circuit in a recent decision that creates a split with the Third Circuit, and the entire Second Circuit recently decided of its own accord to review the Second Circuit panel’s decision in a similar case, suggesting it would likely agree with the Fourth Circuit. 

“Our most fundamental constitutional principles have always prevented the president from sending people into detention on a whim or out of spite,” said Baher Azmy, Legal Director of the Center for Constitutional Rights. “Access to the critical protections of habeas corpus is an essential check on the kind of arbitrary detention here, which the administration wants free reign to accomplish, by punishing Mr. Khalil for nothing other than constitutionally protected speech.” 

“The federal government jailed Mr. Khalil for his speech,” said Alina Das, Director of the NYU Immigrant Rights Clinic, Washington Square Legal Services, Inc. “This not only violates his First and Fifth Amendment rights, it chills the speech of other members of our community – U.S. citizens and noncitizens alike – who fear retaliation against themselves or their loved ones. The Supreme Court must uphold the power of habeas courts to free people from retaliatory detention and prevent the weaponization of the immigration system to punish dissent.” 

In his petition for certiorari by the Supreme Court, Mr. Khalil is represented by the Center for Constitutional Rights, New York University School of Law’s Immigrant Rights Clinic, Van Der Hout LLP, and Dratel & Lewis.

For more information, please see the Center for Constitutional Rights case page.