Petition for Writ of Certiorari — Donald J. Trump, President of the United States, et al., Petitioners v. Badar Khan Suri
Supreme Court briefSep 21, 2026
Ask Donna
What actually matters in this document.
Text
No. XX-XX
In the Supreme Court of the United States
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS
v.
BADAR KHAN SURI
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
D. JOHN SAUER
Solicitor General
Counsel of Record
BRETT A. SHUMATE
Assistant Attorney General
SARAH M. HARRIS
Deputy Solicitor General
DREW C. ENSIGN
Deputy Assistant
Attorney General
HARRY GRAVER
JOSHUA S. HA
Assistants to the
Solicitor General
ALANNA T. DUONG
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
The Immigration and Nationality Act strips district
courts of jurisdiction over any claims by an alien “arising from” “any action taken or proceeding brought to
remove an alien from the United States,” 8 U.S.C.
1252(b)(9), or “the decision or action” “to commence
[such] proceedings,” 8 U.S.C. 1252(g), and instead
makes a “petition for review filed with an appropriate
court of appeals” the “sole and exclusive means for judicial review” of such claims, 8 U.S.C. 1252(a)(5).
The question presented is whether, notwithstanding
8 U.S.C. 1252, an alien detained pending his removal
proceedings may challenge that detention in a habeas
petition based on claims that also go to the validity of
his being removed.
(I)
PARTIES TO THE PROCEEDING
Petitioners (respondents-appellants below) are
Donald J. Trump, President of the United States;
Markwayne Mullin, Secretary of Homeland Security;
Marco Rubio, Secretary of State; Todd Blanche, Attorney General of the United States; David J. Venturella,
Acting Director, U.S. Immigration and Customs Enforcement (ICE); Robert Guadian, Washington Field
Office Director, ICE; and Jeffrey Crawford, Warden of
Farmville Detention Center.
Respondent (petitioner-appellee below) is Badar
Khan Suri.
RELATED PROCEEDINGS
United States District Court (E.D. Va.):
Suri v. Trump, No. 25-cv-480 (Mar. 20, 2025) (enjoining respondent’s removal pending district court
proceedings)
Suri v. Trump, No. 25-cv-480 (May 14, 2025) (granting motion for release on bond)
United States Court of Appeals (4th Cir.):
Suri v. Trump, No. 25-1560 (July 1, 2025) (denying
stay pending appeal)
Suri v. Trump, No. 25-1560 (July 23, 2026) (affirming district court’s release order and order enjoining removal)
Secretary Mullin, Attorney General Blanche, Director Venturella, and Director Guadian are automatically substituted for their
predecessors. See Sup. Ct. R. 35.3.
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statutory provisions involved ...................................................... 1
Introduction................................................................................... 2
Statement ...................................................................................... 5
A. Legal background ............................................................. 5
B. Factual and procedural background ............................... 8
Reasons for granting the petition ............................................. 13
A. The decision below is wrong ........................................... 13
B. The decision below creates a circuit conflict ................ 20
C. The decision below warrants this Court’s review ........ 22
Conclusion ................................................................................... 25
Appendix A — Court of Appeals Opinion (July 23, 2026) .... 1a
Appendix B — District Court Order (Mar. 20, 2025) ......... 89a
Appendix C — District Court Order (May 14, 2025) .......... 91a
Appendix D — District Court Hearing Transcript
(May 14, 2025) ........................................... 93a
Appendix E — Court of Appeals Stay Order
(July 1, 2025) ........................................... 130a
Appendix F — Statutory provisions ................................... 158a
TABLE OF AUTHORITIES
Cases:
Alvarez v. U.S. ICE, 818 F.3d 1194 (11th Cir. 2016),
cert. denied, 582 U.S. 930 (2017 ) ................................. 21, 22
Blanche v. Lau, 146 S. Ct. 1981 (2026) .................................. 5
Campos-Chaves v. Garland, 602 U.S. 447 (2024) ................. 5
DHS v. Thuraissigiam, 591 U.S. 103 (2020) ........................ 8
Dubin v. United States, 599 U.S. 110 (2023) ...................... 18
Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020)..........6, 19
(III)
IV
Cases—Continued:
Page
Jennings v. Rodriguez, 583 U.S. 281 (2018) ........... 15, 16, 19
Khalil v. President,
164 F.4th 259 (3d Cir. 2026) ...................... 2, 3, 14-17, 20, 21
Mahdawi v. Trump,
183 F.4th 103 (2d Cir. 2026) ..........................4, 14, 17, 20, 21
Mullin v. Doe, 146 S. Ct. 2121 (2026) .................................. 20
Nasrallah v. Barr, 590 U.S. 573 (2020) ................................. 6
Nielsen v. Preap, 586 U.S. 392 (2019) ................................... 7
Öztürk v. Hyde, 155 F.4th 187 (2d Cir. 2025) ..................... 21
Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471 (1999) ........................................... 7, 19
Riley v. Bondi, 606 U.S. 259 (2025) ....................................... 6
Yellen v. Confederated Tribes of the Chehalis
Reservation, 594 U.S. 338 (2021) ...................................... 19
Constitution, statutes, and regulations:
U.S. Const.:
Amend. I ........................................................................... 10
Amend. V .......................................................................... 10
Administrative Procedure Act, 5 U.S.C. 701 et seq............ 10
All Writs Act, 28 U.S.C. 1651(a) ........................................... 10
Immigration and Nationality Act, Tit. 8,
8 U.S.C. 1101 et seq. .............................................................. 2
8 U.S.C. 1101(a)(15)(J) ...................................................... 8
8 U.S.C. 1101(a)(47)(B) ..................................................... 6
8 U.S.C. 1182(a) ................................................................. 5
8 U.S.C. 1225 ...................................................................... 4
8 U.S.C. 1225(b)(2)(A) ....................................................... 7
8 U.S.C. 1226 ...................................................................... 7
8 U.S.C. 1226(a) ....................................................... 4, 7, 24
8 U.S.C. 1227(a) ......................................................... 5, 7, 9
V
Statutes and regulations—Continued:
Page
8 U.S.C. 1227(a)(4)(C) ....................................................... 9
8 U.S.C. 1227(a)(4)(C)(i) ................................................... 5
8 U.S.C. 1229a .................................................................... 5
8 U.S.C. 1229a(a)(3) ........................................................... 5
8 U.S.C. 1231(a)(2)(A) ..................................................... 24
8 U.S.C. 1252(a)(1)............................................................. 6
8 U.S.C. 1252(a)(5)....................................................... 2, 13
8 U.S.C. 1252(b) ............................................... 17, 18, 158a
8 U.S.C. 1252(b)(1) .................................................. 6, 158a
8 U.S.C. 1252(b)(9) ........ 2, 6, 7, 11-15, 17-19, 21, 23, 163a
8 U.S.C. 1252(g) ................. 2, 7, 11-13, 15, 17, 21, 23, 163a
8 C.F.R.:
Section 236.1(b).................................................................. 7
Section 1003.19 .................................................................. 7
22 C.F.R. 41.12 ......................................................................... 8
Miscellaneous:
ICE, Annual Report Fiscal Year 2024
(Dec. 19, 2024), https://perma.cc/LRJ4-PHTK ........... 8, 22
In the Supreme Court of the United States
No. XXXX
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS
v.
BADAR KHAN SURI
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a88a) is reported at 184 F.4th 260. The orders of the district court (App., infra, 89a-92a) are available at 2025
WL 914757 and 2025 WL 1392143.
JURISDICTION
The judgment of the court of appeals was entered on
July 23, 2026. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are reprinted in the
appendix to this petition. App., infra, 158a-164a.
(1)
2
INTRODUCTION
This case presents an important question of immigration law that has divided the circuits: Must aliens challenge the grounds for their removal solely through the
petition-for-review process that Congress prescribed under Title 8 of the U.S. Code, or can aliens detained pending removal proceedings file habeas petitions that collaterally attack the bases for those removal proceedings?
The answer is clear: The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., channels all challenges that go to the validity of an alien’s removal exclusively through the petition-for-review process in the
courts of appeals, as the Third Circuit correctly held.
Khalil v. President, 164 F.4th 259, 275-276 (2026) (per
curiam). Aliens cannot end-run that channeling scheme
by filing habeas petitions that collaterally attack the bases for their removal, simply by repackaging legal objections to their later removal as present defects with
their current detention pending that removal. Instead,
the INA strips district courts of jurisdiction over nearly
all claims “arising from” removal proceedings—including “all questions of law and fact * * * arising from any
action taken or proceeding brought to remove an alien
from the United States,” as well as those “arising from
the decision or action by [the government] to commence
[removal] proceedings.” 8 U.S.C. 1252(b)(9) and (g).
The “sole and exclusive means for judicial review” of
such claims is a “petition for review filed with an appropriate court of appeals.” 8 U.S.C. 1252(a)(5). That naturally includes claims raised by an alien that reduce to
the assertion it is illegal to detain him for all of the same
reasons that it is ultimately illegal to remove him.
Accordingly, “the INA bars [an alien] from attacking
his detention and removal in a habeas petition” prem-
3
ised on claims that can be “review[ed] later on” in a petition for review. Khalil, 164 F.4th at 281. The entire
point of the INA’s channeling scheme is to ensure aliens
“get just one bite at the apple—not zero or two.” Ibid.
If an alien can raise a claim immediately in habeas that
he could also raise later in a PFR, then this design will
collapse under the weight of duplicative litigation.
This case illustrates the problem. Secretary of State
Rubio determined that respondent’s Hamas associations and advocacy compromised the United States’
foreign-policy interests, thereby rendering him deportable. The Department of Homeland Security thus initiated respondent’s removal proceedings, and also ordered that he be detained pending those proceedings.
The very next day, respondent filed a habeas petition
in district court, claiming that he was being unlawfully
targeted for his advocacy and associations. But those
claims—which go to the validity of his apprehension, detention, and removal in equal force—all stem from respondent’s objection to being placed in removal proceedings in the first place. That is, his challenge to his
detention is entirely derivative of his challenge to his
being removed; and in turn, if respondent is able to use
these claims to challenge his detention, he can simply
front-run the PFR process entirely, and get a court to
answer now the same legal questions that go to the legality of his removal. See App., infra, 66a, 86a-88a (Wilkinson, J., dissenting).
This case also exemplifies a recurrent fact pattern
that has divided the circuits, with the Third Circuit
holding the INA bars such claims, and the Second Circuit recently granting en banc review to settle conflicting answers to this question between a merits and stay
panel in the same case. See Khalil, 164 F.4th at 273;
4
Mahdawi v. Trump, 183 F.4th 103, 123 (2d Cir. 2026).
As for the decision below, the Fourth Circuit expressly
“disagree[d]” with the Third Circuit, and the merits
panel of the Second Circuit. App., infra, 54a; see id. at
54a-55a & n.25. In contrast, that court of appeals held
that aliens have an unrestricted ability to file habeas petitions in district court so long as those petitions are
nominally framed as targeting their detention, even
when they raise claims that substantively challenge the
validity of their removal. Id. at 41a-42a, 58a-59a.
This clear divide in the circuits warrants this Court’s
review now. As Judge Wilkinson observed in dissent,
the decision below “rips an irreparable hole in the INA’s
jurisdiction-channeling scheme,” “which the Supreme
Court must once more” remedy. App., infra, 66a, 75a.
And it hazards consequences that extend far beyond the
immediate fact pattern. The decision to detain an alien
pending removal is made with the decision to initiate removal. See 8 U.S.C. 1225, 1226(a). As a result, under
the decision below, virtually “[e]very alien who is detained pending removal will now have a pathway into
district court for a thinly veiled habeas challenge to his
removability,” just by restyling the supposed defects
with his later removal as problems with his anticipatory
detention. App., infra, 66a (Wilkinson, J., dissenting).
That is all practically disastrous. The existing circuit
conflict threatens intolerable disuniformity in the administration of the INA. Tens of thousands of aliens are
detained every year pending removal proceedings. For
those in the Fourth Circuit, “[t]he duplication and delay
that will result” will be “immeasurable,” App., infra, 88a
(Wilkinson, J., dissenting), with spillover consequences
affecting immigration enforcement nationwide, as repeat
parallel litigation drains sparse federal resources.
5
This case is an ideal vehicle for resolving the question presented. The Court may also wish to grant review alongside any petition for certiorari in Khalil,
which is currently due with this Court on October 19,
2026. Khalil v. Trump, No. 26A90 (Sept. 17, 2026).
Granting both petitions would guard against the possibility that either case might become moot (for example,
due to the alien’s departure), and thus could help to ensure that this Court will be able to resolve this significant jurisdictional question during this Term.
STATEMENT
A. Legal Background
1. The INA establishes a detailed framework for the
removal of aliens who enter or remain in this country
without authorization, or engage in conduct that renders them inadmissible or deportable. Campos-Chaves
v. Garland, 602 U.S. 447, 451 (2024). “The INA specifies the respective grounds of inadmissibility and deportability with which the Government can charge an
alien.” Blanche v. Lau, 146 S. Ct. 1981, 1986 (2026); see
8 U.S.C. 1182(a), 1227(a). Relevant here, the INA provides that an alien “is deportable” if the “Secretary of
State has reasonable ground to believe” that the alien’s
“presence or activities in the United States” “would
have potentially serious adverse foreign policy consequences for the United States.” 8 U.S.C. 1227(a)(4)(C)(i).
2. Except where the INA otherwise specifies, a removal proceeding under 8 U.S.C. 1229a is the “sole and
exclusive procedure” for determining whether an alien
may be “removed from the United States.” 8 U.S.C.
1229a(a)(3). Removal proceedings under Section 1229a
typically include a hearing before an immigration judge
(IJ), and can include an appeal to the Board of Immigration Appeals (BIA). See 8 U.S.C. 1229a. Once an IJ
6
issues an order of removal, that order becomes “final”
upon the earlier of when the BIA affirms it, or when the
period of time to appeal to the BIA runs out. 8 U.S.C.
1101(a)(47)(B); Riley v. Bondi, 606 U.S. 259, 267 (2025).
The INA also establishes a framework for “[ j]udicial
review of a final order of removal.” 8 U.S.C. 1252(a)(1).
That review is initiated by the filing of a “petition for
review” in the appropriate court of appeals “not later
than 30 days after the date of the final order of removal.” 8 U.S.C. 1252(b)(1). The INA generally provides that, subject to exceptions not applicable here, “a
petition for review filed with an appropriate court of appeals * * * shall be the sole and exclusive means for
judicial review of an order of removal entered or issued
under any provision of [the INA].” 8 U.S.C. 1252(a)(5).
The INA’s jurisdiction-stripping or channeling provisions ensure that the PFR process is “the sole and exclusive means for judicial review of an order of removal.”
8 U.S.C. 1252(a)(5). Most relevant here, Section
1252(b)(9) provides: “Judicial review of all questions of
law and fact * * * arising from any action taken or proceeding brought to remove an alien from the United
States * * * shall be available only in judicial review of
a final order under this section.” 8 U.S.C. 1252(b)(9).
This Court has described Section 1252(b)(9) as a “zipper
clause,” because it is designed to “consolidate[]”—that
is, zip—an alien’s “various challenges arising from [a]
removal proceeding” into a single “petition for review
* * * considered by the courts of appeals.” Nasrallah
v. Barr, 590 U.S. 573, 580, 589 (2020). This consolidation
is meant to broadly “eliminat[e] review in the district
courts.” Id. at 580; accord Guerrero-Lasprilla v. Barr,
589 U.S. 221, 230-231 (2020). The zipper clause declares
“no court shall have jurisdiction” to review orders of re-
7
moval or “such questions of law or fact” outside of the
PFR process. 8 U.S.C. 1252(b)(9).
Section 1252(g) supplements the prohibition on judicial review outside the PFR process. It states that, except
as otherwise provided in the INA, “no court shall have
jurisdiction to hear any cause or claim by or on behalf
of any alien arising from the decision or action * * * to
commence proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. 1252(g). As
with the zipper clause, Section 1252(g) aims to curb “the
deconstruction, fragmentation, and hence prolongation
of removal proceedings,” Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 487 (1999).
3. The INA also contains various provisions that
vest the Executive with significant authority to detain
aliens pending removal proceedings and before final removal. The relevant provision here, 8 U.S.C. 1226, empowers the government to “arrest[]” and “detain[]” “an
alien” “pending a decision on whether the alien is to be
removed from the United States.” 8 U.S.C. 1226(a); see
Nielsen v. Preap, 586 U.S. 392, 397 (2019). The government must decide whether to detain an alien under Section 1226 upon initiating removal proceedings, 8 C.F.R.
236.1(b), which detention decision may normally be revisited in bond hearings, 8 C.F.R. 1003.19.1 While detaining aliens during their removal proceedings entails
“considerable expense” for the government, allowing
This case does not present questions about the scope of 8 U.S.C.
1225(b)(2)(A), which mandates detention of certain aliens who are
“applicant[s] for admission.” Respondent is not an applicant for admission because he was already “in and admitted to the United
States” on a visa. 8 U.S.C. 1227(a); see C.A. Doc. 126, at 1 (Mar. 24,
2026). Questions regarding the scope of Section 1225(b)(2)(A) are
presented in the government’s pending petition for a writ of certiorari in Putra v. Lopez-Campos, No. 25-1415 (filed June 22, 2026).
1
8
them to “reside in this country” carries the “risk that
[they] may not later be found.” DHS v. Thuraissigiam,
591 U.S. 103, 108 (2020). In any given year, DHS holds
tens of thousands of aliens in detention pending completion of their removal proceedings. See ICE, Annual
Report Fiscal Year 2024, at 21-26 (Dec. 19, 2024),
https://perma.cc/LRJ4-PHTK (2024 Annual Report).
B. Factual And Procedural Background
1. Respondent Badar Khan Suri is a native and citizen of India who arrived in the United States in 2022 on
a non-immigrant J-1 visa to work as a postdoctoral fellow at Georgetown University. App., infra, 3a. J-1 visas are given to aliens who have “no intention of abandoning” their “residence in a foreign country,” but wish
to “com[e] temporarily to the United States” to enroll
in an approved program for teaching, training, studying,
or conducting research. 8 U.S.C. 1101(a)(15)(J); see 22
C.F.R. 41.12.
In March 2025, Secretary Rubio determined that respondent’s continued “presence or activities in the
United States would have potentially serious adverse
foreign policy consequences for the United States.” 25cv-10685 D. Ct. Doc. 315, at 56-57 (D. Mass. Jan. 22,
2026). Based on information supplied by multiple federal immigration-enforcement agencies, the Secretary
found that respondent’s father-in-law is “a senior Hamas figure,” and respondent had personally “expressed
support” for Hamas leadership. 25-cv-10685 D. Ct. Doc.
315-15, at 19-21. The Secretary also concluded that respondent was “involve[d] in antisemitic activities” in the
United States, including “actively spread[ing] [Hamas]
propaganda[,] promot[ing] antisemitism on social media,”
and contributing to a “hostile environment for Jewish
students” on Georgetown’s campus. 25-cv-10685 D. Ct.
9
Doc. 315, at 56-57. Secretary Rubio thus determined
that respondent’s “activities and presence” “in the United
States” risked undermining the Nation’s broader “policy
to combat antisemitism around the world and in the
United States,” and also risked impairing the “peace
process underway in the Middle East” and efforts at
“peacefully resolving the Gaza conflict.” Id. at 57.
As a result of Secretary Rubio’s determination under
8 U.S.C. 1227(a)(4)(C), respondent became “deportable” under the INA. See 8 U.S.C. 1227(a). Days later,
DHS issued a “Notice to Appear” to respondent, notifying him of the Secretary’s determination and his removability based on that ground. D. Ct. Doc. 26-1, at 6
(Apr. 1, 2025).
DHS also filed the Notice to Appear with the Immigration Court, initiating removal proceedings. D. Ct.
Doc. 26-1, at 6. Those removal proceedings have continued in parallel with the court proceedings below. In November 2025, the IJ found respondent to be removable.
Respondent’s removal proceedings remain pending before the IJ.
2. On the same day that it served respondent with
the Notice to Appear, DHS arrested respondent in Arlington, Virginia pursuant to an administrative warrant.
D. Ct. Doc. 26-1, at 2. DHS initially detained respondent in Arlington, Virginia, and then transferred him to
a facility in Alvarado, Texas, following brief stops in
central Virginia and Louisiana. Id. at 2-4.
Soon after respondent’s arrest, he filed a habeas petition in the United States District Court for the Eastern District of Virginia, D. Ct. Doc. 1 (Mar. 18, 2025),
which he amended twice, D. Ct. Docs. 34 (Apr. 8, 2025),
92 (June 30, 2025). Respondent raised various constitutional and administrative claims, all arguing (as rele-
10
vant) that respondent’s detention was the product of an
unlawful “Policy” whereby the United States would “retaliate against and punish” aliens “supportive of Palestinian rights or critical of Israel[]” by apprehending, detaining, and removing them. D. Ct. Doc. 92, at 32, 36;
see id. at 2 (defining supposed “Policy”). Among other
things, respondent maintains that this initiative—
brought to bear on him by the “Rubio Determination”—
renders his detention retaliatory (in violation of the
First Amendment), punitive and discriminatory (in violation of the Fifth Amendment), and unlawful under the
Administrative Procedure Act. See id. at 3, 31-39. As
for relief, the petition principally asks for the court to
enjoin the “Policy,” declare it unlawful, and order his release. Id. at 39-41.
3. Over the course of three proceedings, the district
court ordered that the government release respondent
and prohibited the government from removing him.
On March 20, 2025, the district court issued an ex
parte order under the All Writs Act, 28 U.S.C. 1651(a),
for the sole purpose of “preserv[ing] its jurisdiction
* * * pending a ruling on the Petition.” App., infra, 89a.
That order provided that respondent “shall not be removed from the United States unless and until the
Court issues a contrary order.” Id. at 89a-90a.
Next, on May 6, 2025, the district court denied the
government’s motion to dismiss respondent’s habeas
petition. D. Ct. Doc. 60. The court rejected the government’s argument that the court lacked habeas jurisdiction because respondent had not been physically present in the Eastern District of Virginia when he had filed
his original habeas petition. D. Ct. Docs. 59, at 9 (May
6, 2025); D. Ct. Doc. 60, at 1.
11
Finally, on May 14, 2025, the court granted respondent’s motion to return him to Virginia from Texas and
to release him on bail during the pendency of his habeas
proceedings, concluding respondent raised “substantial
constitutional claims” that he was detained in retaliation for his advocacy and associations. App., infra, 91a92a, 116a-121a. As relevant here, the court rejected the
government’s argument that the INA—specifically,
Sections 1252(b)(9) and 1252(g)—stripped that court of
jurisdiction to award such relief. Id. at 115a-116a. The
court also declined to stay its order pending appeal. Id.
at 92a, 126a.
4. The government timely appealed the district
court’s March 20 order not to remove respondent and
its May 14 order to release him from custody. D. Ct.
Doc. 66 (May 15, 2025). It also sought a stay of the district court’s release order. C.A. Doc. 4 (May 23, 2025).
a. In July 2025, the Fourth Circuit denied the government’s motion to stay the district court’s May 14 order pending appeal. App., infra, 152a. As relevant
here, the court held that the government had not made
a “strong showing” that either Sections 1252(b)(9) or
1252(g) stripped the district court of jurisdiction over
respondent’s habeas petition (and related motion for
bail). Id. at 144a-150a.
Judge Wilkinson dissented. App., infra, 153a-157a.
He would have held that “when the government detains
an alien under § 1226(a) * * * the detention arises from
the commencement of proceedings or adjudication of
cases.” Id. at 155a-156a. Respondent’s motion was thus
the very sort of “collateral attack[] on [his] deportation
proceeding” that the INA’s jurisdictional bars precluded. Id. at 156a.
12
b. In July 2026, the Fourth Circuit affirmed the district court’s orders compelling the government to release respondent and prohibiting his removal. App., infra, 1a-65a. The court of appeals rejected the government’s arguments that the INA had stripped the district court of jurisdiction. Id. at 33a. As for 8 U.S.C.
1252(b)(9), the court primarily held that it only applied
once there was an “order of removal,” and no such order
had been entered yet here. Id. at 44a-46a. As for
8 U.S.C. 1252(g), the court distinguished between challenges regarding one’s detention and challenges concerning one’s removal. In that court’s view, Section
1252(g) had nothing to say about the former, because
removal is a “legally separate” governmental action,
distinct from the decision to “commence [removal] proceedings.” App., infra, at 36a. The Fourth Circuit acknowledged that its decision conflicted with those of the
Third and Second Circuits, which had both held the INA
“deprived a district court of jurisdiction over * * * similar habeas petition[s].” Id. at 54a-61a & n.25.2
Judge Wilkinson again dissented. App., infra, 66a88a. In his view, respondent’s suit should have been
barred under both Sections 1252(b)(9) and 1252(g), because the decision to detain respondent arose from both
an action taken to remove him, as well as the decision to
commence removal proceedings against him. Id. at 71a85a. In dramatically narrowing those bars, Judge WilOn September 3, 2026, the Second Circuit sua sponte granted
rehearing en banc in that case. 25-1113 C.A. Doc. 244.1. That court
also ordered that proceedings be held in abeyance “in the event that
the Supreme Court in this or another matter grants certiorari on
the following question which is presented in this case: whether the
district court lacked subject matter jurisdiction to grant habeas relief to the petitioner in light of any provision of 8 U.S.C. § 1252.” Id.
at 2.
2
13
kinson warned, the panel created an “ill-conceived and
unpersuasive loophole[]” that will be exploited by thousands of aliens, all of whom now have a ready “pathway”
to district court to collaterally attack their removal, just
by restyling their claims as attacks on their detention.
Id. at 66a, 87a.
REASONS FOR GRANTING THE PETITION
The Fourth Circuit below held that any alien detained during his removal proceedings can immediately
challenge that detention in a habeas petition filed in district court, even where the alien’s detention claims are
all derivative of his legal objections to his ultimate removal. That decision contravenes the INA, avowedly
conflicts with an indistinguishable decision of the Third
Circuit, and threatens significant disruption. Now, any
alien detained in the Fourth Circuit can front-run the
PFR process by collaterally attacking his removal in a
habeas petition nominally directed toward his detention
pending that removal. This Court’s review is warranted
to resolve a circuit conflict over a question of immigration jurisdiction that affects tens of thousands of cases.
A. The Decision Below Is Wrong
The INA strips jurisdiction from the federal district
courts over any claim “arising from” either “any action
taken or proceeding brought to remove an alien from
the United States,” or “the decision or action” “to commence [removal] proceedings.” 8 U.S.C. 1252(b)(9) and
(g). Instead, the INA provides that a “petition for review filed with an appropriate court of appeals” shall be
the “sole and exclusive means for judicial review of an
order of removal.” 8 U.S.C. 1252(a)(5). Those provisions
foreclose aliens from collaterally challenging the bases
for their removal by filing habeas petitions that raise
the same basic claims just as defects to their detention.
14
1. The Fourth Circuit agreed (with some understatement) that respondent’s detention-related claims
had “substantial substantive overlap” to his removalrelated claims. App., infra, 42a. Even so, it held that
“none of the pertinent INA provisions deprive the district court of habeas jurisdiction” over the claims respondent presses in his habeas petition, because his habeas petition seeks “relief from detention” rather than
“relief from removal.” Id. at 33a, 42a; see id. at 62a-65a
(upholding district court’s authority to grant release
pending the resolution of the habeas petition).
The decision below defies the INA’s plain text. The
INA’s zipper clause is clear: “Judicial review” of “all
questions of law and fact” “arising from any action
taken or proceeding brought to remove an alien from
the United States” is “available only in judicial review
of a final order” via a PFR filed in a court of appeals.
8 U.S.C. 1252(b)(9) (emphases added). As a result, “legal questions challenging the government’s very basis
for trying to remove” an alien may be reviewed only in
a PFR. Khalil v. President, 164 F.4th 259, 274 (3d Cir.
2026) (per curiam). That is so, critically, even when a
legal question also goes to the validity of an alien’s detention. Where detention claims are “inextricably intertwined with the claim that removal itself is unlawful,” Mahdawi v. Trump, 183 F.4th 103, 117 (2d Cir.
2026), they necessarily raise “questions of law” “arising
from” “proceeding[s] brought to remove an alien,”
8 U.S.C. 1252(b)(9).
As such, so long as a legal question can be resolved
by a court of appeals by way of a PFR, that question
must be resolved by a court of appeals on a PFR—
again, even if that question would also speak to the legality of a subsequent step in the removal process, such
15
as apprehension or detention. See Khalil, 164 F.4th at
274. Otherwise, the very questions the INA insists
must wait for the court of appeals would be already answered by a district (and circuit) court in the context of
detention, perhaps before a removal order even issues.
Section 1252(g) reinforces the conclusion that the
INA bars habeas petitions like respondent’s. Again,
that provision states that, “[e]xcept as provided in this
section,” “no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from
the decision or action * * * to commence proceedings,
adjudicate cases, or execute removal orders.” 8 U.S.C.
1252(g). If a “cause or claim” challenging an alien’s detention is substantively identical to a challenge about
the government’s decision to “commence proceedings”
in the first place, Section 1252(g) applies in equal force.
Ibid. An alien cannot accomplish indirectly what the
INA expressly prohibits him from doing directly.
This Court’s precedents further undercut the Fourth
Circuit’s position. In Jennings v. Rodriguez, 583 U.S.
281 (2018), Justice Alito’s opinion for the plurality observed that whatever the outer bounds of the zipper
clause, it covers aliens “challenging the decision to detain them in the first place or to seek removal.” Id. at
294; see id. at 315-318 (Thomas, J., concurring in part
and concurring in the judgment) (adopting broader
reading). That describes respondent’s habeas petition
to a tee, which challenges the very decision to detain
him as part of the government’s decision to seek to remove him. See App., infra, 73a-75a (Wilkinson, J., dissenting). Indeed, respondent’s entire suit rises and falls
on the notion that Secretary Rubio’s determination is
unlawful (as the product of an illegal targeting “Policy”), tainting his apprehension, detention, and removal.
16
That is precisely what the Jennings plurality said falls
within the heartland of Section 1252(b)(9)—a collateral
attack on removal, resting on claims that go to the validity of any removal order. See Khalil, 164 F.4th at
276.
The Fourth Circuit’s rule creates a roadmap for circumventing the INA’s careful jurisdiction-channeling
scheme. Indeed, the decision below makes pre-PFR review of the legality of an alien’s removal “available as a
matter of course.” App., infra, 75a (Wilkinson, J., dissenting). Once more, in the Fourth Circuit, an alien can
now take arguments that his removal is unlawful and
repackage them as arguments for why his detention in
service of that removal is unlawful. That alien can present them to the nearest district court the day after he
is served with a Notice to Appear. Id. at 7a, 9a. Should
he succeed in district court, he can “use issue preclusion
or law of the case in the later PFR, leaving that court
nothing to decide,” Khalil, 164 F.4th at 275—thus requiring the government “to litigate the alien’s removability in two forums and win in both,” App., infra, 87a
(Wilkinson, J., dissenting). That quagmire replaces the
INA’s system of consolidated review with “the paralysis
of duplicative process” and subverts the scheme’s entire
point, which was to “prevent district courts from interfering in removal proceedings.” Id. at 86a-87a.
2. The Fourth Circuit’s contrary justifications lack
merit.
First, the Fourth Circuit rested its holding on the
distinction between removal and detention. App., infra,
42a. Because “relief from detention” is not the same as
“relief from removal,” that court reasoned, aliens may
file any habeas petitions challenging their detention
17
pending removal, even when that challenge is based on
grounds that would also invalidate their removal. Ibid.
That reasoning misreads the zipper clause, which is
triggered by “all questions of law” that “aris[e] from”
removal actions or proceedings. 8 U.S.C. 1252(b)(9)
(emphasis added); see Khalil, 164 F.4th at 274-276.
Whatever relief a habeas petition seeks, the plain meaning of the zipper clause is that the petition cannot present “questions of law” that can otherwise be brought in
a PFR. See p. 14-15, supra. It thus does not matter
whether an alien is challenging a distinct action (detention) or asserting a distinct injury (from such detention); so long as the petition rests on legal questions
whose answers would dictate the validity of any removal, those questions must wait for the PFR process.
Mahdawi, 183 F.4th at 120.
The Fourth Circuit’s reasoning also runs afoul of
Section 1252(g). Where a “cause or claim” targets in
substance the decision to “commence [removal] proceedings” to begin with, it falls naturally within Section
1252(g)’s terms, even if the requested relief runs directly against a distinct governmental action. 8 U.S.C.
1252(g). Once more, this case illustrates the point. Respondent’s theory is that his detention pending completion of his removal proceedings is unlawful because the
government should never have initiated those proceedings in the first place. In every way that matters, his
habeas petition is a challenge to DHS’s “decision * * *
to commence [removal] proceedings.” Ibid.
Second, relying on Section 1252(b)’s title (“Requirements for review of orders of removal”), the court of appeals held that the zipper clause applies only once an
order of removal has been issued. App., infra, 44a-46a.
Thus, where—as here—an alien challenges his deten-
18
tion pending removal before any such order has issued,
Section 1252(b)(9) has no role to play. See id. at 44a.
This too defies the text. Under the zipper clause’s
plain terms, “[j]udicial review of all questions of law and
fact” “arising from” removal proceedings “shall be
available only in judicial review of a final order.”
8 U.S.C. 1252(b)(9) (emphasis added). The natural implication is not that judicial review is permitted until
there is an order of removal—at which point, the only
next stop would be a court of appeals. Instead, Section
1252(b)(9) provides that there is no judicial review until
there is an order of removal, because that is the sole
means for obtaining judicial review. If there is no “final
order,” judicial review is “deferr[ed]” “until there is”
one. App., infra, 76a (Wilkinson, J., dissenting).
That is confirmed by the fact that Section 1252(b)(9)
is also clear that absent such a final order of removal,
“no court shall have jurisdiction” “to review such an order or such questions of law or fact” (emphasis added).
If Section 1252(b)(9) only applied once a final order of
removal was issued, the latter clause would make no
sense. See App., infra, 76a (Wilkinson, J., dissenting).
The text’s best reading must control over Section
1252(b)’s title. Dubin v. United States, 599 U.S. 110,
121 (2023). Especially so because there is no tension
between the two. Contrary to the court of appeals’ assumption, the channeling requirement just described is
a “[r]equirement[]” “[w]ith respect to review of an order
of removal,” 8 U.S.C. 1252(b), because it limits what a
federal court may review until there is a final order.
Further, the Fourth Circuit’s view is in serious tension with this Court’s precedents. In Jennings, this
Court considered a pre-final-order detention challenge,
and nowhere in the plurality’s analysis did it suggest
19
that the absence of a final order answers the Section
1252(b)(9) question. To the contrary, the plurality affirmed that Section 1252(b)(9) would encompass aliens
“challenging the decision to detain them in the first
place,” which by definition would come before any order
of removal becomes final. Jennings, 583 U.S. at 294; see
also id. at 315-318 (Thomas, J., concurring in part and
concurring in the judgment). Similarly, in Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S.
471 (1999), this Court recognized that Section 1252(b)(9)
would have “channel[ed] judicial review” of a challenge
brought “[a]lmost immediately” after removal proceedings began, but for the fact that the suit predated Section 1252(b)(9)’s effective date. Id. at 473, 483.
Adopting the Fourth Circuit’s view would also produce a “highly counterintuitive result.” Yellen v. Confederated Tribes of the Chehalis Reservation, 594 U.S.
338, 360 (2021). Under the Fourth Circuit’s interpretation, Section 1252(b)(9) would make judicial review perversely more available when there is no final order of
removal. App., infra, 44a-46a. Rather than “consolidate judicial review * * * into one action,” GuerreroLasprilla v. Barr, 589 U.S. 221, 230 (2020), the Fourth
Circuit’s approach would incentivize a profusion of district court suits throughout the duration of removal proceedings.
Third, the Fourth Circuit put significant weight on
the presumption in favor of judicial review. App., infra,
33a-34a, 55a-56a. But that presumption has little or no
purchase here; the INA “does not foreclose meaningful
review,” but “just streamlines the process for seeking
it” by channeling all claims into a single round of litigation. Id. at 80a (Wilkinson, J., dissenting). Regardless,
where, as here, Congress has spoken to the “jurisdic-
20
tion” of the federal courts in a provision cabining “judicial review,” 8 U.S.C. 1252(b)(9), courts should honor
that plain language and not artificially expand judicial
power at the expense of Congress’s intended direction.
See Mullin v. Doe, 146 S. Ct. 2121, 2134 (2026).
B. The Decision Below Creates A Circuit Conflict
The Fourth Circuit expressly created a circuit conflict on the question presented. In that circuit, an alien
who is detained during his removal proceedings may
take all the claims he would normally make in a petition
for review and repackage them immediately in a district
court habeas challenge to his detention. By contrast, in
the Third Circuit, such petitions are barred by the INA.
While the Second Circuit has since granted rehearing
en banc of its decision addressing the same question,
p. 12 n.2, supra, the en banc court’s decision would not
eliminate the conflict. And the Second Circuit has already anticipated the possibility of this Court’s review,
ordering that its en banc proceedings will be held in
abeyance should this Court take up the question presented. Ibid.
1. The Fourth Circuit conceded that its reading
“disagree[d] with” the one adopted by the Third Circuit,
as well as that of a merits panel of the Second Circuit.
App., infra, 54a-55a & n.25. Both of those courts interpreted the INA to preclude virtually identical attempts
to collaterally attack an alien’s removal via habeas petitions. Khalil, 164 F.4th at 281; Mahdawi, 183 F.4th at
123.
In both Khalil and Mahdawi, DHS placed an alien
into removal proceedings upon Secretary Rubio’s determination that his presence was adverse to the Nation’s
foreign-policy interests. That determination was based
on, among other things, the aliens’ participation in “an-
21
tisemitic protests,” engagement in “threatening rhetoric and intimidation of pro-Israeli bystanders,” and
“call[s] for Israel’s destruction.” 25-cv-10685 D. Ct.
Doc. 315, at 27-28, 36-37. Both aliens were detained
pending removal; both filed habeas petitions challenging that detention; and both rested those challenges on
the ground their detention (along with their apprehension and potential removal) stemmed from the same
supposed policy that respondent alleges is unlawful.
Khalil, 164 F.4th at 267; Mahdawi, 183 F.4th at 110111.
In both cases, the court of appeals held that Section
1252(b)(9) precluded the alien’s suit. Khalil, 164 F.4th
at 273-281; Mahdawi, 183 F.4th at 114-123. The Second
Circuit panel expressly agreed with the Third Circuit
and relied heavily on that court’s reasoning. Mahdawi,
183 F.4th at 113. Again, the Fourth Circuit admittedly
“diverge[d]” from these decisions. App., infra, 15a.
2. The decision below creates further tension with
other courts of appeals as to the scope of Section 1252(g).
The Fourth Circuit’s holding that Section 1252(g) can
be entirely evaded by restyling a suit challenging removal as a challenge to detention pending that removal
is “in direct conflict with the Eleventh Circuit[].” App.,
infra, 84a (Wilkinson, J., dissenting); see Öztürk v.
Hyde, 155 F.4th 187, 190 (2d Cir. 2025) (Menashi, J.,
concurring in the denial of rehearing en banc) (making
a similar point). The Eleventh Circuit has instead interpreted Section 1252(g) as covering the “decision” to
“detain [an alien] during his removal proceedings” as
“closely connected to the decision to commence proceedings.” Alvarez v. U.S. ICE, 818 F.3d 1194, 1203
(2016), cert. denied, 582 U.S. 930 (2017).
22
The decision below attempted to distinguish the Eleventh Circuit’s decision in Alvarez as involving Bivens
claims that concerned conduct while the alien was detained. App., infra, 40a-41a n.17. But Alvarez did not
only concern such claims—it also involved a distinct
“challenge to ICE’s decision to require Alvarez to attend removal proceedings,” as well as “challenges to
ICE’s decision to take him into custody and to detain
him during his removal proceedings.” 818 F.3d at 1203.
Those claims, the Eleventh Circuit held, were squarely
barred by Section 1252(g). Id. at 1203-1204. The
Fourth Circuit made no effort to explain how its decision was consistent with those holdings. Nor could it.
C. The Decision Below Warrants This Court’s Review
1. The question presented is remarkably important.
Whether an alien can collaterally attack his removal by
filing a habeas petition challenging his detention potentially affects thousands upon thousands of cases, well
beyond the immediate fact pattern at issue here. See
App., infra, 88a (Wilkinson, J., dissenting). As Judge
Wilkinson explained, at least within the Fourth Circuit,
virtually “[e]very alien who is detained pending removal
will now have a pathway into district court for a thinly
veiled habeas challenge to his removability,” just by restyling the supposed defects with his later removal as
problems with his current detention. Id. at 66a. That
“neuter[s] Congress’s jurisdiction-channeling scheme,”
“leaves the statute in tatters,” and places a significant
operational burden on the government’s ability to administer an efficient immigration system. Id. at 75a,
88a (Wilkinson, J., dissenting).
The practical problems created by this circuit conflict are particularly acute given the mechanics of immigration enforcement. The Executive detains tens of
23
thousands of aliens every year as part of pending removal proceedings. See, e.g., 2024 Annual Report 2126. Such detainees frequently cross state lines while being transferred to their ultimate detention facility. See
D. Ct. Docs. 26-1; D. Ct. Doc. 57-1 (May 2, 2025). Based
on the Fourth Circuit’s view of habeas jurisdiction, see
App., infra, 16a-33a, any alien detainee who is detained
in the Fourth Circuit at any point may well be able to
take advantage of the decision here, id. at 33a.
Left unchecked, such suits risk producing an overwhelming litigation burden on both the government and
the courts. App., infra, 87a-88a (Wilkinson, J., dissenting). Each such suit will require the government “to litigate the alien’s removability in two forums and win in
both.” Id. at 87a. And even where an alien’s claims are
meritless, the existence of those claims will still drain
governmental time and resources, further impeding any
efforts at an efficient system of immigration enforcement nationwide. Id. at 87a-88a. Simply put, the “duplication and delay that will result” from the decision below are “immeasurable.” Id. at 88a.
2. This case also presents an excellent vehicle for resolving the question presented. The Fourth Circuit addressed both Sections 1252(b)(9) and 1252(g) in its decision and avowedly created a circuit conflict with other
court of appeals decisions arising from similar facts. At
a minimum, the Court should grant review in this case.
That being said, to ensure that these important issues are resolved expeditiously, this Court should also
grant certiorari in Khalil. Justice Alito has extended
the time to file a petition for a writ of certiorari in Khalil
until October 19, 2026.3 If the petitioner ultimately files
The government opposed the extension request in Khalil. See
Gov’t Br., Khalil v. Trump, No. 26A90 (July 17, 2026). At the time,
3
24
by that date, this Court should grant review in that case
as well. Doing so would guard against the possibility of
mootness present in cases like this, where removal proceedings remain ongoing. For instance, should an alien
be provided and accept the option of voluntary departure, his habeas claims would be rendered moot. Should
the alien be ordered removed, he would no longer be detained under Section 1226(a). Compare 8 U.S.C.
1226(a), with 8 U.S.C. 1231(a)(2)(A). And should the alien’s removal proceedings be terminated in his favor,
there may be no petition for review in the case at all.
See App., infra, at 81a (Wilkinson, J., dissenting).
as the government emphasized in its brief, that case did not “satisfy
the Court’s ordinary certiorari criteria” because there was no “circuit split.” Id. at 8-9. Now that the decision below has since engendered a conflict, granting certiorari in Khalil is appropriate and
would facilitate this Court’s timely and warranted review.
25
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
BRETT A. SHUMATE
Assistant Attorney General
SARAH M. HARRIS
Deputy Solicitor General
DREW C. ENSIGN
Deputy Assistant
Attorney General
HARRY GRAVER
JOSHUA S. HA
Assistants to the
Solicitor General
ALANNA T. DUONG
Attorney
SEPTEMBER 2026
APPENDIX
TABLE OF CONTENTS
Page
Appendix A — Court of Appeals Opinion (July 23, 2026) ..... 1a
Appendix B — District Court Order (Mar. 20, 2025) .......... 89a
Appendix C — District Court Order (May 14, 2025) .......... 91a
Appendix D — District Court Hearing Transcript
(May 14, 2025) ......................................... 93a
Appendix E — Court of Appeals Stay Order
(July 1, 2025).......................................... 130a
Appendix F — Statutory provisions:
8 U.S.C. 1252(b) and (g) ....................... 158a
(I)
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 25-1560
BADAR KHAN SURI, PETITIONER-APPELLEE
v.
DONALD TRUMP, IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE UNITED STATES; ROBERT GUADIAN,
IN HIS OFFICIAL CAPACITY AS FIELD OFFICE DIRECTOR
OF WASHINGTON, IMMIGRATION AND CUSTOMS
ENFORCEMENT; DAVID J. VENTURELLA, ACTING
DIRECTOR, U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT; MARKWAYNE MULLIN, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF THE UNITED
STATES DEPARTMENT OF HOMELAND SECURITY;
MARCO RUBIO, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF STATE; TODD BLANCHE, IN HIS
OFFICIAL CAPACITY AS ACTING ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE,
RESPONDENTS-APPELLANTS
AND
JEFFREY CRAWFORD, IN HIS OFFICIAL CAPACITY AS
WARDEN OF FARMVILLE DETENTION CENTER,
RESPONDENT
THE INTERCEPT MEDIA, INC., MOVANT
IMMIGRATION LAWYERS, LAW PROFESSORS, AND
SCHOLARS; HABEAS SCHOLARS; FREE SPEECH FOR
PEOPLE, AMICI SUPPORTING APPELLEE
(1a)
2a
Argued: Mar. 17, 2026
Decided: July 23, 2026
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Patricia Tolliver Giles, District Judge.
(1:25-cv-00480-PTG-WBP)
Before WILKINSON, HARRIS, and BENJAMIN, Circuit
Judges.
Affirmed by published opinion. Judge Benjamin
wrote the opinion, in which Judge Harris joined. Judge
Wilkinson wrote a dissenting opinion.
DEANDREA GIST BENJAMIN, Circuit Judge:
Dr. Badar Khan Suri came to the United States after
receiving a J-1 exchange visa for a postdoctoral fellowship at Georgetown University. He and his wife reside
in Rosslyn, Virginia, and have publicly opposed the war
in the Gaza Strip on social media. As a result of their
social media posts and associations, Suri was detained
outside of his home by masked Immigration and Customs Enforcement (ICE) officers and was informed that
he would be deported from the country. After detaining
him, the Government—unbeknownst to Suri’s family
and counsel—moved him from state to state and detention center to detention center over the span of just a
few days.
Suri filed a habeas petition in the United States District Court for the Eastern District of Virginia, where
he lived, was first detained, and where the first three
detention facilities holding him were located. The Gov-
3a
ernment sought to dismiss Suri’s habeas petition, contending that the district court lacked habeas jurisdiction
because Suri was no longer detained in Virginia. The
district court denied the Government’s motion, finding
that it had jurisdiction.
The Government appeals, asserting that habeas jurisdiction was not established, and even if it was, certain
provisions of the immigration code stripped the district
court of subject matter jurisdiction.
We disagree with the Government and affirm the district court in full. The district court had jurisdiction to
hear Suri’s habeas petition, and no provision within the
immigration code deprived it of subject matter jurisdiction.
I. Background
A. Dr. Suri & His Arrest by ICE
Dr. Badar Khan Suri is an Indian national. He earned
a Ph.D. in Peace and Conflict Studies at Jamia Millia Islamia, a university in New Delhi. After Suri completed
his Ph.D., he applied for and received a postdoctoral fellowship at Georgetown University in Washington, D.C.
In 2022, Suri arrived in the United States on a J-1
exchange visa1 to begin the fellowship. At Georgetown,
Suri taught a course on Majoritarianism and Minority
Suri was participating in the J-1 exchange visitor program as a
“research scholar,” which is “a foreign national whose primary purpose is conducting research, observing, or consulting in connection
with a research project at research institutions, corporate research
facilities, museums, libraries, post-secondary accredited academic
institutions, or similar types of institutions. 22 C.F.R. § 62.4(f ). “A
research scholar may also teach or lecture where authorized by the
sponsor.” Id.
1
4a
Rights in South Asia. His wife, Mapheze Saleh, and his
three children arrived in the United States soon after he
began his fellowship. His children were admitted to the
United States on derivative J-2 visas and thus are dependent on their father’s status to enter and remain in
the country. At the time of Suri’s arrest, he and his family resided in Rosslyn, Virginia.
Saleh is a United States citizen of Palestinian descent; her father and some of her family still live in Gaza.
During the war in Gaza, Saleh lost several family members and friends and often publicly voiced her opposition
to the war on social media. On “a handful of occasions,”
Suri also made social media posts “expressing support
for the Palestinian people, criticizing the death toll in
Gaza, affirming international law principles, and criticizing U.S. support for Israel’s war in Gaza.” J.A. 105.2
In early March 2025, the United States Department
of State announced a new program called “Catch and
Revoke,” where it would use artificial intelligence to review “tens of thousands of student visa holders’ social
media accounts” for evidence of “alleged terrorist sympathies.” J.A. 110. The goal was to “cancel the visas of
foreign nationals who appear to support Hamas or other
designated terror groups.” Id. Once identified, Secretary of State Marco Rubio would issue a determination,
finding that the noncitizen’s presence in the United
States compromises American foreign policy interests.
The United States Department of Homeland Security
(DHS) would then work to locate, apprehend, detain,
and, ultimately, seek to deport these individuals. The
Citations to “J.A.” refer to the joint appendix filed by the parties.
The J.A. contains the record on appeal from the district court. Page
numbers refer to the “J.A. #” pagination.
2
5a
government proceeded to put its program into action,
detaining students and scholars like Mahmoud Khalil,
Rümeysa Öztürk, and others on the stated basis of their
political speech and associations. See Am. Ass’n of
Univ. Professors v. Rubio, 802 F. Supp. 3d 120 (D. Mass.
2025).
Suri became one of the government’s first targets under this program. DHS Assistant Secretary for Public
Affairs Tricia McLaughlin announced on the social media platform X, that:
Suri was a foreign exchange student at Georgetown
University actively spreading Hamas propaganda
and promoting antisemitism on social media. Suri
has close connections to a known or suspected terrorist, who is a senior advisor to Hamas. The Secretary
of State issued a determination on March 15, 2025
that Suri’s activities and presence in the United
States rendered him deportable under INA [Immigration and Nationality Act] section 237(a)(4)(C)(i).
J.A. 302-03.3
McLaughin mistakenly wrote that Suri was a foreign exchange
student, as he was a J-1 research scholar. And the Government has
yet to disclose Rubio’s March 15 determination memorandum on
the record in this case. That said, the court takes judicial notice
that this memo appears to have been disclosed as part of litigation
in the District of Massachusetts, and it states that Suri was designated removable as a foreign policy threat solely based on what
Secretary Rubio determined to be his “direct connection to Hamas
leadership,” his “involvement in antisemitic activities” on campus,
and his “actively spread[ing] [Hamas] propaganda and promot[ing]
antisemitism on social media.” Certified Administrative Record,
Am. Ass’n of Univ. Professors v. Rubio, No. 25-cv-10685-WGY (D.
Mass. Jan. 22, 2026), ECF No. 315 at 56-57.
3
6a
DHS then made a custody determination that Suri
would be detained pursuant to 8 U.S.C. § 1226(a), which
provides that a noncitizen “may be . . . detained pending a decision on whether the [noncitizen] is to be removed from the United States.” 8 U.S.C. § 1226(a); J.A.
84.
On March 17, 2025, at approximately 9:30 p.m., 4 Suri
was returning home after teaching and observing iftar,
the evening meal that ends the daily Ramadan fast. He
noticed several black, unmarked cars near his apartment building. Before he could enter his apartment building, a man wearing a face covering and dark clothing approached him and asked if he was Badar. He responded
that he was. Suri then called his wife to come downstairs. The masked officers told Suri and his wife that
they were from DHS; that Suri’s “student visa” had
been revoked; and that he was being arrested because
of his “social media.” J.A. 113-14. Suri clarified that he
had a J-1 exchange visa, but the officer told him that “it
was the same thing, and that it was also revoked.” J.A.
114. Suri was then escorted into the dark-colored SUV.
During the transport, officers informed him that “someone high up in the Secretary of State’s office doesn’t
want you here,” and that he would be deported “today.”
J.A. 135.
B. Movement Between States and Detention Centers
Over the first 11 hours after Suri’s arrest, he was
moved to three different detention centers.
Suri was first taken directly to ICE’s Enforcement
and Removal Operations (“ERO”) Washington Field OfUnless otherwise specified, all references to time are in Eastern Daylight Time (“EDT”).
4
7a
fice in Chantilly, Virginia. At the ICE field office in
Chantilly, officers presented Suri with his notice to appear (“NTA”).5 The NTA listed “1209 Sunflower Ln, Alvarado, Texas 760092810” as his current residence—an
address Suri had neither lived at nor been to. That address turned out to be the address of the Prairieland Detention Center in Texas. Suri asked about the incorrect
Texas address, and an officer explained to him that it
“was just computer generated, and it might be changed
later on.” J.A. 135. The NTA also listed a hearing date
for May 6, 2025, before an immigration judge at “27991
Buena Vista Blvd, Los Fresnos, Texas 78566, Prairieland Detention Center.” However, that address is not
the Prairieland Detention Center but the Port Isabel
Detention Center, which is approximately 500 miles
away from the Prairieland Detention Center. Soon after, Suri was told that he would be transferred to
Farmville, Virgina. He was allowed to call Saleh to inform her that he was being taken to Farmville, and that
he had an immigration hearing in Texas on May 6, 2025.
The next day, March 18, at approximately 2:30 a.m.,
Suri arrived at the Farmville Detention Center. After
only a few hours in Farmville, he was transferred again,
this time to Richmond, Virginia. Suri reached the ERO
Washington Office near Richmond, Virginia at 7:50 a.m.
The officers did not allow him to call his wife to inform
her of his new location. They also did not explain the
reason for his transfer. Suri’s stay in Richmond, however, was brief.
The NTA was issued around 9:47 p.m. on March 17, 2025—while
Suri was still in Chantilly, Virginia. Suri v. Trump (Suri II), 785
F. Supp. 3d 128, 135 (E.D. Va. 2025).
5
8a
Suri was removed from his cell in Richmond, shackled, put in a van, and driven away. When he asked an
officer where they were going, the officer replied that he
was not supposed to tell. After about an hour, Suri arrived at an airport and was put onto an airplane, along
with several other shackled detainees. The airplane departed for Louisiana at 2:47 p.m.
On March 18 at 5:03 p.m., Suri arrived in Alexandria,
Louisiana. At 6:42 p.m., he was booked into the Alexandria Staging Facility—a “super deportation center” where
he could be “deported at any time.” Suri was detained
in Louisiana for three nights. After his first transfer from
Chantilly to Farmville, Suri was unable to contact his
wife or anyone else regarding his rapid transfers across
state lines.
On March 20, Suri was told that he would be transferred to New York the next day, presumably to be deported. But on the morning of March 21, Suri was told
that he instead would be driven to Texas. That evening
at approximately 7:30 p.m., Suri arrived at the Prairieland Detention Center. It would be Suri’s longest stop,
as he was held there until his release on May 14, 2025.
C. Suri’s Representation & Habeas Petition
On the evening Suri was arrested by ICE officers,
Saleh’s friend, Ashraf Nubani, notified attorney Hassan
Ahmad of what had occurred. The next morning, Ahmad
formally agreed to represent Suri. Ahmad discussed the
details of Suri’s arrest and detention with Saleh. She
believed that Suri was being held in the Farmville Detention Center, since that was the last thing Suri shared
with her about his location.
9a
On March 18 at 2:11 p.m., Ahmad entered his appearance in Suri’s immigration proceedings, which allowed
him to view Suri’s NTA. Although the NTA listed a Texas
address as Suri’s current residence, Ahmad did not rely
on it (as Suri had never lived there) and continued to believe Suri was detained in Virginia, based on Saleh’s information. Ahmad, working with other counsel, immediately began drafting a habeas petition. The team repeatedly checked the ICE online detainee locator, but
Suri did not appear in the system. Unbeknownst to Ahmad, on the afternoon of March 18, Suri was in Richmond but en route to board a flight to Alexandria, Louisiana. At 5:59 p.m.—after Suri had landed in Alexandria, Louisiana, but before he was booked into the Alexandria detention facility—his habeas petition was filed
in the United States District Court for the Eastern District of Virginia.
Suri’s petition claimed that Secretary Rubio’s determination and Suri’s “targeting, arrest, transfer, and ongoing detention” violated the First Amendment and his
Fifth Amendment right to due process. J.A. 21-24. As
to his detention specifically, Suri alleged that he was detained “not to facilitate deportation, or to protect against
risk of flight or dangerousness,” but instead solely to retaliate against him for his speech. J.A. 23. And his detention, he further alleged, was an “attempt to chill” his
future speech and that of others “who express support
for Palestinian rights.” J.A. 22. Suri requested that the
district court, inter alia, enjoin his transfer to another
jurisdiction, order his immediate release, and “[d]eclare
that [the Government’s] actions to arrest and detain
[him] violate the First Amendment and Due Process
Clause of the Fifth Amendment.” J.A. 25. Moreover, in
an amended petition filed after he was detained for mul-
10a
tiple weeks, Suri claimed that he was being held in “degrading and harmful conditions” in which he was “forced
to sleep on the floor of an overcrowded TV room, deprived of all but a few hours of sleep,” “denied clean undergarments and adequate nutrition,” and “subjected,
with no valid basis whatsoever, to more severe restrictions and treatment than other detained individuals
despite posing no danger to others.” J.A. 125-26.
On March 19, two days after Suri was taken and
moved without explanation through four detention centers, his name finally appeared in ICE’s online detainee
locator. It showed that he was being held at the Alexandria Staging Facility in Louisiana. Suri’s counsel then
filed a motion requesting the district court to direct the
Government to return him to the Eastern District of Virginia and to bar Suri’s removal from the United States
while his petition was pending.
II. Procedural History
On March 20—the same day the Government notified
Suri that he would be transferred to New York for deportation and the same day Suri’s counsel filed the motion to bar his removal—the district court entered an order prohibiting the Government from removing Suri
from the United States “unless and until the [c]ourt issues a contrary order.” Suri v. Trump (Suri I), 2025
WL 914757, at *1 (E.D. Va. Mar. 20, 2025). The district
court issued its order pursuant to its authority to preserve its jurisdiction under the All Writs Act (“AWA”),
28 U.S.C. § 1651. Id.
The Government moved to dismiss Suri’s habeas petition, or in the alternative, to transfer venue.
11a
The district court issued an opinion and order denying the Government’s motion. See Suri v. Trump (Suri
II), 785 F. Supp. 3d 128, 133-49 (E.D. Va. 2025). The
district court explained that although habeas jurisdiction is usually conferred where a petition is filed in the
district of confinement and the respondent has custody
over the petitioner, there are well-recognized exceptions. See Suri II, 785 F. Supp. 3d at 137-38. It found
that the circumstances here fit within two exceptions to
the default habeas jurisdiction rules: the unknown custodian exception, and the exception borne out of Justice
Kennedy’s concurrence in Rumsfeld v. Padilla, 542 U.S.
426 (2004) (Kennedy, J., concurring). See id. at 140-48.
The district court found that the unknown custodian
exception applied because Suri was “held in an undisclosed location by an unknown custodian.” Id. at 141
(quoting Padilla, 542 U.S. at 450 n.18). It stated that no
“diligent attorney could have known that [Suri] was in
Louisiana at the time he filed the petition.” Id. at 142.
The district court noted that Suri’s NTA did not reference Louisiana, the ICE online detainee locator had no
information on him, and Suri was not permitted to contact his wife until the evening of March 19, after his petition was already filed. See id. at 142, 144. Further,
“even if it were possible for [Suri’s] counsel to have discovered he was in Louisiana at 5:59 p.m., [his] counsel
would not have known who to identify as [Suri’s] immediate custodian.” Id. at 142. Suri was not booked at the
Alexandria Staging Facility until 6:42 p.m.—“almost an
hour after the petition was filed.” Id. The district court
specifically noted that even the Government could not
identify Suri’s immediate custodian. Id.
12a
The district court also found that the exception borne
out of Justice Kennedy’s concurrence in Padilla applied.
Id. at 144-48. Justice Kennedy wrote that there should
be an exception “if there is an indication that the Government’s purpose in removing a prisoner were to make
it difficult for his lawyer to know where the habeas petition should be filed” or “if the Government did inform
the lawyer where a prisoner was being taken but kept
moving him so filing could not catch up to the prisoner.”
Id. at 144-45 (citing Padilla, 542 U.S. at 454 (Kennedy,
J. concurring)). “In these situations, Justice Kennedy
believed that ‘habeas jurisdiction would lie in the district
or districts from which [the petitioner] had been removed.’ ” Id. at 145 (quoting Padilla, 542 U.S. at 454
(Kennedy, J. concurring)). The district court found that
the Government’s NTA was “design[ed] to forum shop
and spirit [Suri] away from this [d]istrict before his
counsel could file a petition,” as the Government was
“fully aware that listing [Suri’s] current residence . . .
would determine which immigration court would have
jurisdiction over his proceedings.” Id. at 146. And the
Government’s “myriad contradictory explanations combined with the inability for [Suri’s] exceptionally diligent counsel to keep up with [Suri’s] abnormal and rapid
movement across state lines demands more flexible jurisdictional rules.” Id. at 148.
Lastly, the district court declined to exercise its discretion to transfer Suri’s petition to Louisiana or Texas.
Id. It stated that doing so would ratify the Government’s “attempt at forum shopping,” and would force
Suri to litigate his case “many states away from his lawyers and family,” which would “meaningfully deprive
him of their ability to aid in his representation for the
duration of these habeas proceedings.” Id.
13a
Suri’s counsel filed a motion for release on bail. The
district court held a bail hearing and subsequently ordered for Suri “to be immediately released.” Suri v.
Trump (Suri III), 2025 WL 1392143, at *1 (E.D. Va.
May 14, 2025). The district court conditioned his release, expressly requiring Suri to “participate in his removal proceedings.” Id.
The Government appealed the district court’s order
not to remove Suri and the bail release order. It also
petitioned for a stay of the release order pending appeal
and for mandamus. 6
This court issued an opinion denying the Government’s requests for stay and mandamus. See Suri v.
Trump (Suri IV), 2025 WL 1806692, at *1 (4th Cir. July
1, 2025). The court held that “the equities lie firmly in
Suri’s favor,” as it agreed with the district court that
“the unknown-custodian exception squarely applies.”
Id. at *4, *6; see also id. at *6 n.6 (adopting Justice Kennedy’s reasoning from his Padilla concurrence as an alternative basis for holding that the district court had habeas jurisdiction). The court also held that the Government’s argument that certain provisions of the immigration code deprived the district court of jurisdiction over
While not relevant to the Government’s appeal here, it requested
this court to issue a writ of mandamus “because the district court’s
order amounts to judicial usurpation of the Executive’s exclusive statutory powers and preeminent constitutional powers over immigration.” Suri v. Trump (Suri IV), 2025 WL 1806692, at *9 (4th Cir.
July 1, 2025). This court denied the request, as the Government’s
“only substantive argument is that the district court lacked jurisdiction over Suri’s habeas petition,” and it already concluded that
“the district court did possess habeas jurisdiction.” Id.
6
14a
Suri’s habeas petition were unlikely to succeed. See id.
at *7.
The Government now appeals, arguing that the district court lacked jurisdiction to enter its order to bar
removal and its order granting release on bail. Appellant’s Br. (ECF No. 36) at 10 7 (hereinafter “Opening
Br.”). The Government raises four main arguments.
First, it asserts that Suri failed to satisfy the default habeas requirements of naming an immediate custodian
and filing his petition in the district of confinement. Id.
at 8. It further doubts whether any exception to the normal habeas rules exists. Id. at 8-9. Second, the Government argues that the district court abused its discretion
in refusing to transfer Suri’s habeas petition to Texas or
Louisiana. Id. at 37-41. Third, even if the district court
had habeas jurisdiction, the Government believes three
provisions of the INA stripped the district court of authority to address Suri’s claims regarding his detention.
Those provisions, the Government says, preclude district
court review of the Executive’s authority to initiate removal proceedings, and that decision is inextricably intertwined with the decision to detain. Id. at 9; 8 U.S.C.
§§ 1252(a)(5), (b)(9), (g). Finally, the Government contends that the district court erred in invoking the AWA
because it “was not at risk of losing jurisdiction (assuming it had any to begin with).” Opening Br. at 9-10. As
discussed below, we hold that none of these arguments
withstand scrutiny. We address each in turn.
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
Page numbers for citations to ECF documents utilize the page
numbers in the red header on each document.
7
15a
III. Analysis
This case is one of several that have arisen over the
past year and a half presenting the same basic fact pattern: A student or scholar, in the United States on a
valid student or exchange visa, is detained by DHS on
the stated basis of his or her political speech, beliefs, or
associations; shuttled across jurisdictions rapidly and
often in secret; and detained for allegedly unconstitutional reasons and under allegedly unconstitutional conditions pending removal. And in each case, the Government insists that judicial review of the allegedly unconstitutional detention can come only after removal proceedings that can last for months or years. Until then,
according to the Government, a detained noncitizen has
no judicial recourse.
We disagree. For the reasons explained below, Congress’ habeas jurisdiction statutes and Supreme Court
case law permitted Suri to file a habeas petition in the
district from which he was removed. And no provision
of the INA deprived the district court of subject-matter
jurisdiction to hear Suri’s challenges to his allegedly unconstitutional detention. Our holding today aligns with
this court’s ruling on the Government’s stay motion, see
Suri IV, 2025 WL 1806692, as well as the Second Circuit’s rulings on stay motions in two similar cases, see
Öztürk v. Hyde, 136 F.4th 382 (2d Cir. 2025); Mahdawi
v. Trump, 136 F.4th 443 (2d Cir. 2025). We recognize
that it diverges from the Third Circuit’s determination
in Khalil v. President, United States, 164 F.4th 259 (3d
Cir. 2026). But in our view, denying judicial review of
detention claims like Suri’s misreads Congress’ statutes
and undermines the protections guaranteed all persons
on American soil by the writ of habeas corpus. See
16a
Lochnar v. Thomas, 517 U.S. 314, 324 (1996) (identifying
writ of habeas corpus as the Constitution’s “best and
only sufficient defen[s]e of personal freedom” (internal
quotation marks omitted)).
A. Habeas Jurisdiction 8
We review “the district court’s factual findings with
respect to jurisdiction for clear error and the legal conclusion that flows therefrom de novo.” Velasco v. Gov’t
of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004).
1. The Default Habeas Rules
For centuries, the writ of habeas corpus has been understood as a vital instrument to secure “freedom from
unlawful restraint as a fundamental precept of liberty.”
Boumediene v. Bush, 553 U.S. 723, 739 (2008). The writ’s
protections are at their peak where a petition challenges
“ ‘the legality of Executive detention,’ ” rather than incarceration following criminal conviction. Rasul v.
Bush, 542 U.S. 466, 474 (2004) (quoting INS v. St. Cyr,
533 U.S. 289, 301 (2001), superseded by statute as recognized in Nasrallah v. Barr, 590 U.S. 573, 580-81 (2020)).
And “[t]he very nature of the writ demands that it be
administered with the initiative and flexibility essential
The questions before us dually concern whether the district
court had personal and subject-matter jurisdiction over Suri’s habeas petition. See Kanai v. McHugh, 638 F.3d 251, 258 (4th Cir.
2011) (recognizing habeas jurisdiction as a matter of personal or venue
jurisdiction); see also Reno v. Am.-Arab Anti-Discrimination Comm.
(AADC), 525 U.S. 471, 482, 492 (1999) (describing 8 U.S.C. § 1252(g)
as a “narrow” jurisdictional bar that may deprive a federal court of
jurisdiction over a respondent’s claims). Because there is no mandatory “sequencing of jurisdictional issues,” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999), we begin with whether the
district court had habeas jurisdiction.
8
17a
to insure that miscarriages of justice within its reach are
surfaced and corrected.” Harris v. Nelson, 394 U.S. 286,
291 (1969). 28 U.S.C. § 2241(a) provides district courts
with the authority to grant writs of habeas corpus “within their respective jurisdictions.”
In Rumsfeld v. Padilla, the Supreme Court explained
the contours of habeas jurisdiction. 542 U.S. 426, 434-36
(2004). Generally, a habeas petition seeking to challenge
present physical custody should be filed “in the district
of confinement” and “the proper respondent to a habeas
petition is ‘the person who has custody over [the petitioner].’ ” Id. at 434, 447 (alteration in original) (quoting
28 U.S.C. § 2242). Petitioners are generally required to
name “some person who has the immediate custody of
the party detained” 9 rather than “the Attorney General
or some other remote supervisory official.” Id. at 435.
When applying these rules, we generally look to where
the petitioner was confined when their petition was filed.
See United States v. Little, 392 F.3d 671, 680 (4th Cir.
2004) (noting that because petitioner was confined in
Texas when his petition was filed, the Western District
of North Carolina was an improper venue).
Even where these default habeas rules appear to be
unsatisfied, those rules are not absolute. Two exceptions to the default habeas rules apply in this case: the
unknown custodian exception and the exception borne
out of Justice Kennedy’s concurrence in Padilla. 542
The Supreme Court has described an immediate custodian as a
person that has “the ability to produce the prisoner’s body before
the habeas court.” Padilla, 542 U.S. at 435; see also Wales v. Whitney, 114 U.S. 564, 574 (1885).
9
18a
U.S. at 454 (Kennedy, J., concurring). Below, we discuss
and apply each in turn.
2. The Unknown Custodian Exception 10
When a detainee is held in a secret location, their attorneys “cannot be expected to file in the jurisdiction
where [they are] held” as it “is impracticable to require
the attorneys to file in every jurisdiction.” Demjanjuk
v. Meese, 784 F.2d 1114, 1116 (D.C. Cir. 1986) (Bork, J.,
in chambers) (allowing suspected war criminal held in
confidential location to file a habeas petition in the D.C.
Circuit). Thus, “it is essential that [the] petitioner not
be denied the right to petition for a writ of habeas corpus” because they are in an unidentifiable location. Id.
The Government wrongly asserts that this “so-called
unknown custodian exception” in Demjanjuk was “never
actually recognized by the Supreme Court.” Opening
Br. at 25. The Supreme Court in Padilla expressly recognized the unknown custodian exception, stating that
when “a prisoner is held in an undisclosed location by an
unknown custodian, it is impossible to apply the immediate custodian and district of confinement rules.” 542
U.S. at 45 n.18. It seems the Supreme Court took the
exception as a given, explaining that there, the “identity
of the immediate custodian” was not “shrouded . . . in
secrecy.” Id. at 449 n.17. Additionally, this court has
previously applied the unknown custodian exception in
United States v. Moussaoui, 382 F.3d 453, 465 (4th Cir.
2004). There, the court held that because the petiWhile the exception is commonly known as the “unknown custodian exception,” it also encompasses the exception to the default
“district of confinement” rule. See Suri IV, 2025 WL 1806692, at
*4.
10
19a
tioner’s immediate custodian was unknown, it was
proper to name “Secretary of Defense Donald Rumsfeld” as the ultimate custodian. Id. at 465. The Government ignores Moussaoui—binding circuit precedent—
underscoring the weakness of its position. We refuse to
indulge the Government’s invitation to disregard both
the Supreme Court’s express recognition of the unknown
custodian exception and our precedent applying it. It is
firmly established, and “[t]his case is a prime example
for why the unknown-custodian exception exists.” Suri
IV, 2025 WL 1806692, at *5.
As explained below, the exception applies here because both Suri’s district of confinement and immediate
custodian were unknown.
a. Suri’s District of Confinement was Unknown
First, “it is impossible” to apply the district of confinement rule because Suri was “held in an undisclosed
location.” Padilla, 542 U.S. at 45 n.18. Immediately after Suri’s arrest, he was rapidly moved to three locations
in Virginia over eleven hours. J.A. 209-12. While officers allowed Suri to inform his wife of his first move from
Chantilly to Farmville, Suri’s requests to inform his wife
about the subsequent transfers from Farmville to Richmond and Richmond to Louisiana were denied. See J.A.
136-37 ¶14 (requesting to call his wife in Farmville but
“was refused”); id. ¶ 15 (requesting to call his wife in
Richmond but “was denied”); id. ¶ 19 (explaining that
when he requested to call his wife in Louisiana, officers
told him to use a phone that required an access code,
which they did not give him). At one point, even Suri did
not know where he was going to be transferred. Id. ¶ 16
(noting that when he was on a van to Louisiana, “[n]o
one would tell me where I was going, despite my re-
20a
peated inquiries”). Further, ICE’s online detainee
tracker did not provide any location information for Suri
until the day after the petition was filed. J.A. 36. And
Suri’s NTA offered no indication where he might be located, as it contained no reference to Louisiana. The
only information available to Suri’s counsel came from
Saleh’s last conversation with Suri, when Suri said he
was being held in Farmville. J.A. 53. We agree with the
district court that “it is not clear how any other diligent
attorney could have known that [Suri] was in Louisiana
at the time he filed the petition.” Suri II, 785 F. Supp.
3d at 142. Based on the information known to Suri’s
counsel, the Eastern District of Virginia was the only
logical place to file the petition. 11
Such opaque and unpredictable conduct by the Government left Suri’s counsel with no meaningful way to
comply with the district of confinement rule. We hold
The Government insists that, under Padilla, what matters for
the unknown custodian analysis are “the facts as they actually existed,” or perhaps the facts known to the petitioner himself, rather
than “the facts available to [the petitioner’s] counsel at the time of
filing.” Opening Br. at 18 (internal quotation marks omitted). So as
long as someone knew where Suri was, the government’s logic goes,
the exception does not apply. That claim is entirely unsupported by
Padilla, whose analysis of the unknown custodian exception turned
precisely on the counsel’s knowledge: The Court found the unknown
custodian exception not to apply because, in the majority’s view, Padilla’s counsel in fact knew where Padilla was detained. See 542 U.S.
at 449 nn.17, 18. As Judge Bork’s opinion makes clear, what matters
for this analysis is the ability of the “petitioner’s attorneys . . . to
file in the jurisdiction where petitioner is held.” Demjanjuk, 784
F.2d at 1116. If a petitioner’s attorneys do not know his location,
Judge Bork commonsensically concluded, they “cannot be expected
to file in the jurisdiction where petitioner is held.” Id.
11
21a
that these circumstances warrant the use of the exception to the default district of confinement rule.
b. Suri’s Immediate Custodian was Unknown
Second, applying the immediate custodian rule is also
“impossible” because Suri was held “by an unknown custodian.” Padilla, 542 U.S. at 45 n.18. The habeas pleading statute expressly requires that a petitioner’s custodian only be named “if known.” 28 U.S.C. § 2242. Setting aside the fact that Suri’s counsel could not have
known Suri was in Louisiana when they filed the habeas
petition, they also could not have known who to identify
as Suri’s immediate custodian. As a reminder, at 5:59
p.m., when Suri’s petition was filed, he had recently landed
in Louisiana from Richmond by plane, but had not yet
been booked into the Alexandria Staging Facility. J.A.
36. It was not until 6:42 p.m.—43 minutes after his petition was filed—that Suri was booked into the Alexandria Staging Facility. J.A. 204. Accordingly, at 5:59
p.m., it is uncertain whether Suri even had an immediate
custodian—that is, a warden or individual “with day-today control over” him. Moussaoui, 382 F.3d at 465. It
is telling that the Government itself could not identify
who Suri’s “immediate custodian was while he was on a
plane to Louisiana or while he was in Louisiana before
he was booked” into the Alexandria Staging Facility.
Suri II, 785 F. Supp. 3d at 142. Thus, we hold that the
uncertainty surrounding Suri’s immediate custodian
places this case within the “limited and special circumstance[]” where it is proper to name an ultimate custodian, such as then-secretary of the Department of Homeland Security Kristi Noem. Demjanjuk, 784 F.2d at 1116;
see Brian R. Means, Federal Habeas Manual § 1:93
(2025) (“[W]here the immediate custodian is unknown,
22a
the writ may be served on the prisoner’s ultimate custodian.”).
In sum, the unknown custodian exception is valid and
squarely applies. Thus, we affirm the district court and
hold that “[j]urisdiction is therefore proper in Suri’s
last-known location, and the only place his attorney reasonably could have filed a petition: the Eastern District
of Virginia.” Suri IV, 2025 WL 1806692, at *6.
3. Justice Kennedy’s Exception
Given the district court’s exceptional and uncontested factual findings of governmental secrecy and forum-shopping, we also hold that the exception borne out
of Justice Kennedy’s concurrence in Padilla applies.12
The application of Justice Kennedy’s concurrence in Padilla is
not novel. Its principles were recognized and applied by the First
Circuit in Vasquez v. Reno, and by this court in Suri IV. See 233
F.3d 688, 696 (1st Cir. 2000) (holding that the default rules do not
apply in the “extraordinary circumstance” where the government
“spirited a[] [noncitizen] from one site to another in an attempt to
manipulate jurisdiction”); see also 2025 WL 1806692, at *6 n.6 (“As
an alternative basis for our conclusion, we adopt Justice Kennedy’s
reasoning from his concurrence in Padilla.”).
Application of this exception also follows from the reasoning of
Padilla itself. After all, six of the nine justices in Padilla were
concerned about the risk of government efforts to “shroud [the petitioner’s location] in secrecy” in order to evade jurisdiction. Padilla, 542 U.S. at 459 n.3 (Stevens, J., dissenting); see id. at 454
(Kennedy, J., concurring). The concurrence disagreed with the dissent only as to the factual predicate—whether the government had
in fact “refused to tell Padilla’s lawyer where he had been taken.”
See id. at 454 (Kennedy, J., concurring). Indeed, Justice Kennedy’s
concurrence made clear that, had the government refused to share
Padilla’s location with his counsel, or told his counsel but then
moved him “so a filing could not catch up to the prisoner,” Justices
12
23a
In Padilla, Justice Kennedy wrote separately and
acknowledged another exception where:
[T]here is an indication that the Government’s purpose in removing a prisoner were to make it difficult
for his lawyer to know where the habeas petition should
be filed, or where the Government was not forthcoming with respect to the identity of the custodian and
the place of detention. In cases of that sort, habeas
jurisdiction would be in the district court from whose
territory the petitioner had been removed.
542 U.S. at 454 (Kennedy, J., concurring).
Justice Kennedy gave specific examples of when or
how this exception may apply:
In this case, if the Government had removed Padilla
from the Southern District of New York but refused
to tell his lawyer where he had been taken, the District Court would have had jurisdiction over the petition. Or, if the Government did inform the lawyer
where a prisoner was being taken but kept moving
him so a filing could not catch up to the prisoner, again,
in my view, habeas jurisdiction would lie in the district or districts from which he had been removed.
Id.
His reasoning and provided examples proved strikingly predictive—prescient even—as it almost perfectly
parallels the circumstances of Suri’s arrest and detention. In the first 11 hours after Suri’s arrest, he was
Kennedy and O’Connor would have sided with the dissent and found
jurisdiction. See id. Thus, far from mere “dicta,” as the government tries to label it, Justice Kennedy’s proposed exception was a
decisive issue in the case.
24a
moved to three different detention centers. While the
district court noted a recent pattern of swift transfers of
immigration detainees that filed First Amendment detention petitions, “such rapid transfers do not appear to
be a part of the normal course of operations in this jurisdiction.” Suri II, 785 F. Supp. 3d at 147; see also id.
(quoting Virginia immigration attorney declaration stating that she has “never seen ICE arrest someone in Virginia and move them as far away as Texas in less than
24 hours”). Suri’s counsel formally agreed to represent
Suri, discussed the details of Suri’s detention with Suri’s
wife, entered his appearance in the immigration proceedings, and filed a writ of habeas corpus in the district
court, all within 21 hours of Suri’s arrest. Remarkably,
Suri’s counsel expeditiously drafted and filed his habeas
petition within three hours and 48 minutes of entering
his notice of appearance in Suri’s immigration proceedings, yet that was still too slow. Id. And because Suri
was repeatedly denied the chance to update his wife or
lawyer, and ICE’s online detainee tracker offered no updates, we think that this would make it highly difficult
(or impossible) for any diligent lawyer to “catch up” on
their client’s location. Id.
The district court also made several factual findings
—which the Government does not dispute or challenge
—that support the application of this exception. Those
factual findings, which we hold are free from “clear error,” Velasco, 370 F.3d at 398, were based in part on the
Government’s answers that were “either non-responsive
or riddled with inconsistencies” and further support use
of this exception. Suri II, 785 F. Supp. 3d at 145.
First, the district court found that the Government’s
“goal in moving [Suri] was to make it difficult for [Suri]’s
25a
counsel to file the petition and to transfer him to the
Government’s chosen forum.” Id. at 146. The Government rationalized to the district court that it was actually “bedspace concerns” that motivated Suri’s removal
from Virginia. Id. at 145. Yet the Government concedes
that Suri was transferred out of a facility with “some
bedspace” to “a facility that did not have bedspace.” Id.
In Louisiana, Suri was not assigned to a bed in a dorm.
J.A. 115. He slept in the “TV room” 13 on a plastic frame
with a thin plastic mattress and no pillow. Id. And in
Texas, Suri was “placed in a dormitory that ha[d] a 36person capacity but ha[d] been filled with at least 50 people since he arrived,” leaving Suri to sleep “on a plastic
cot on the floor for two weeks before being moved to a
bed.” Suri II, 785 F. Supp. 3d at 145. If the Government
were truly concerned about “potential overcrowding”
and “bedspace,” it would have kept Suri in Virginia. The
factual findings here actually seem to be more severe
than the circumstances Justice Kennedy contemplated
in Padilla, as the Government rapidly and continuously
moved Suri while denying his requests to inform his wife
of his detention transfer developments.
Second, the district court found that the Government’s “design was to forum shop and spirit [Suri] away
from this District before his counsel could file a petition.” Id. at 146. The district court asked the Government “whether it was normal for the NTA to list a detention facility as a non-citizen’s current residence.” Id.
The Government responded that it did so “because the
non-citizen’s location determines the ‘court and docket,
as well as the date and time for initial appearances.’ ” Id.
“The ‘TV room’ is a common room where the television is on
every day from 5:00 a.m. to 2:00 a.m.” J.A. 115.
13
26a
(quoting Declaration of Mark Graham (D. ECF No. 571) at 4). Yet the record reflects that Suri was not located
in Texas at the time he was served his NTA. 14 And because the Government “also knew that the Prairieland
Detention Center was not [Suri’s] most recent residence,”
the district court found that the Government sought to
shop for a more favorable forum. Id. Notably, the Government “doesn’t contest the district court’s finding that
it apparently intended to deport Suri on March 21.”
Suri IV, 2025 WL 1806692, at *5. “Without that order,
Suri may well have been deported without the reasonable notice and opportunity for judicial review that ‘all
nine Justices agree[]’ is due.” Id. (quoting A.A.R.P. v.
Trump, 605 U.S. 91, 95 (2025)). These undisputed factual findings demonstrate the Government’s lack of candor regarding Suri’s place of detention and its deliberate attempt to manipulate venue.
“[C]ommon-law habeas corpus was, above all, an adaptable remedy.” Boumediene, 553 U.S. at 779. “Its preThe district court reviewed the Government’s supplemental declaration where it expressly stated that the “the decision to detain
[Suri] was made while he was at the Chantilly Field Office, and that
the NTA was issued after the detention facility was decided.” Suri
II, 785 F. Supp. 3d at 146 (emphasis added). But this directly contradicted the Government’s later testimony that “the custody determination to detain [Suri] in Texas was made before the NTA was
issued.” Id. What’s more, the Government’s initial statement that
the decision to detain Suri was made at the Chantilly Detention Center could not have been true. Suri was arrested at 9:30 p.m. Since
his apartment was at least 30 minutes away and his NTA was signed
at 9:47 p.m., the decision to detain him in Texas—which had nothing
to do with bedspace—must have been made before he arrived at the
Chantilly Detention Center. This inconsistency further supports the
finding that the Government was not forthcoming with respect to its
preferred ultimate place of detention for Suri.
14
27a
cise application and scope changed depending upon the
circumstances.” Id. Drawing on the writ’s flexible application, and the district court’s thorough and uncontested factual findings, we adopt Justice Kennedy’s exception in Padilla as another reason why habeas jurisdiction was proper where Suri was removed from—the
Eastern District of Virginia. Padilla, 542 U.S. at 454
(Kennedy, J., concurring).
B. Transfer
The Government argues that even if the Eastern District of Virginia “initially” had jurisdiction, the district
court “should have transferred the case once it became
aware that Suri had been removed from the district before the filing of the habeas petition.” Opening Br. at
37-38.
We review a district court’s denial of a request to
transfer to a new venue for abuse of discretion. Nichols
v. G.D. Searle & Co., 991 F.2d 1195, 1200 (4th Cir. 1993).
We hold that the district court did not abuse its discretion by declining to transfer Suri’s petition.
To begin, jurisdiction in the habeas statute does not
refer to a district court’s subject matter jurisdiction. See
Padilla, 542 U.S. at 434 n.7. Rather, it is better “understood as a question of personal jurisdiction or venue.”
Id. at 451 (Kennedy, J., concurring); see also Kanai v.
McHugh, 638 F.3d 251, 257-58 (4th Cir. 2011) (same).
This distinction matters because a lack of subject matter
jurisdiction typically requires dismissal, while issues of
personal jurisdiction or venue are subject to waiver and
may, at a district court’s discretion, be addressed through
transfer.
28a
Here, there are only three places where this case
could arguably be heard: Virginia, Louisiana, or Texas.
The Government thinks this case should be heard in
Louisiana or Texas. Opening Br. at 24. But interestingly, it does not commit to a position on whether the
transfer should have occurred to Louisiana or Texas.
See id. at 37-41. Suri thinks that this case is properly
heard in Virginia.
We think this decision can be made through simple
process of elimination. First, Louisiana is out because
the Government never sought transfer to Louisiana in
the district court. See Berg v. Kingdom of the Neth., 24
F.4th 987, 998 (4th Cir. 2022) (holding that the appellant’s transfer request to the District of Columbia was
forfeited because he failed to request the district court
to transfer his case to the District of Columbia in the
first instance); see also Kanai, 638 F.3d at 258 (similar).
We can’t hold that the district court abused its discretion in failing to transfer the case to Louisiana when it
was never asked to transfer the case to Louisiana. Suri
II, 785 F. Supp. 3d at 140 (noting that “neither party
contends that the Western District of Louisiana is the
proper jurisdiction to hear the petition”). And second,
any argument for Texas is unavailing, as there is no reason to think—and the Government points to no case
indicating—that a habeas petition challenging present
confinement could be filed in a district to which a petitioner had not yet been. See 28 U.S.C. § 1406(a) (allowing transfer to a district where the case “could have been
brought”); id. § 1631 (same). It is undisputed that Suri’s
habeas petition was filed three days before he was
moved to Texas.
29a
Accordingly, we cannot say that the district court
abused its discretion in refusing to transfer Suri’s habeas petition out of Virginia. Frankly, Virginia is the
only plausible and reasonable venue. The district court
astutely looked to the Supreme Court’s reasoning in
Braden v. 30th Jud. Circuit Court of Kentucky, where it
applied “traditional venue considerations” when the default habeas rules “became untenable.” Suri II, 785
F. Supp. 3d at 148-49 (citing 410 U.S. 484, 493-94, 499
(1973) (weighing where “the relevant events occurred”
and whether it would be “no less convenient for the respondent and the Commonwealth of Kentucky” to litigate the petitioner’s claims in Kentucky)). In applying
those traditional venue considerations, the district court
found that the Eastern District of Virginia would be the
most suitable venue for four distinct reasons. First, because the Eastern District of Virginia was the jurisdiction in which Suri “resides, was arrested, and was originally detained.” Id. at 148. Next, it recognized that forcing Suri to litigate in Louisiana or Texas, “many states
away from his lawyers and family, would meaningfully
deprive him of their ability to aid in his representation
for the duration of these habeas proceedings.” Id.
Third, there was “no prejudice” for the Government “to
litigate in the Eastern District of Virginia.” Id. at 149.
And finally, the district court found that Suri “ha[d]
strong connections to this District” whereas to Texas
and Louisiana, he “d[id] not,” id. at 148-49. All those considerations squarely support the district court’s refusal
to transfer the case from the Eastern District of Virginia.
The Government provides two arguments in response
to the district court’s application of traditional venue
considerations.
30a
First, the Government cites three recent out-of-circuit district court cases to assert that “other courts faced
with situations similar to Suri’s have concluded that
transfer would be appropriate.” Opening Br. at 38. But
those decisions support—rather than undermine—that
the district court acted within its discretion by keeping
this case in the Eastern District of Virginia.
We start with Öztürk v. Trump, 777 F. Supp. 3d 26
(D. Mass. 2025), and Khalil v. Joyce, 771 F. Supp. 3d 268
(S.D.N.Y. 2025). As here, the Öztürk and Khalil petitioners were rapidly moved from detention center to detention center, with Louisiana as the government’s target jurisdiction. Öztürk, 777 F. Supp. 3d at 30-32; Khalil, 771 F. Supp. 3d at 275-77. But a fundamental difference in Öztürk and Khalil from this case is that the petitioners in both cases consented to transfer, requesting
their petitions be transferred to neighboring states.
Öztürk, 777 F. Supp. 3d at 33, 43 (requesting to be transferred from Massachusetts to Vermont); Khalil, 771
F. Supp. 3d at 286-87 (requesting to be transferred from
New York to New Jersey). And in both cases, the district courts denied the government’s requests to transfer the cases across the country to Louisiana and granted the petitioners’ requests to transfer to a neighboring
state. Öztürk, 777 F. Supp. 3d at 43; Khalil, 771 F. Supp.
3d at 287. What’s more, the district court in Khalil expressly found that forcing the petitioner to litigate in
Louisiana would be prejudicial, as it would mean “litigating far from his lawyers, from his eight-monthspregnant wife, and from the location where most (if not
all) of the events relevant to his petition took place.” 771
F. Supp. 3d at 287. So despite the Government’s contention that these cases support discretionary transfer, these
cases in fact support Virginia as the appropriate venue
31a
here. The reasoning in Öztürk and Khalil mirror the
district court’s reasoning as to why transferring Suri’s
case across the country would be unjust. See Suri II,
785 F. Supp. 3d at 149.
Additionally, Suri’s petition was filed before he was
booked into the Alexandria Staging Facility in Louisiana, unlike in Öztürk and Khalil where their petitions
were filed after the petitioners were undisputably already booked in the neighboring states’ detention center. 777 F. Supp. 3d at 43 (finding that “Ozturk was confined overnight in Vermont when the Petition was filed
[in Massachusetts]”); 771 F. Supp. 3d at 276-77 (finding
that Khalil was already booked in New Jersey when his
petition was filed in New York).
The Government also relies on Dvortsin v. Noem,
2025 WL 1751968 (D. Colo. June 12, 2025), but that case
is equally unavailing. In Dvortsin, the government sought
to transfer a habeas petition filed by a Colorado family
from Colorado to Texas. Id. at *3. There, the district
court applied the default habeas rules because it found
that both the unknown custodian exception and the exception out of Justice Kennedy’s concurrence in Padilla
did not apply. See id. at *4-5. The district court reasoned that there was no evidence of concealment, as the
detainee “likely had multiple telephone calls” after arriving at the Texas facility; the Texas facility was apparently designed to house families; and the family was only
“moved once, to Texas.” Id. at *5. And importantly, the
district court found that transferring the case to Texas
would be at “the convenience of [the] parties and witnesses.” Id. at *6. Here, the factual findings were
starkly different, as the district court found that it would
be in the interest of justice for Suri’s case to be heard in
32a
Virginia, Suri was moved to multiple detention centers,
he was not allowed to contact his wife or attorney for
most of the moves, and the Government’s purpose in
moving Suri “was to forum shop and spirit [him] away
from this District before his counsel could file a petition.” Suri II, 785 F. Supp. 3d at 146.
Second, the Government clings to dicta in Judge Bork’s
in chambers opinion in Demjanjuk, where he wrote that
if it becomes “known that petitioner is held in a jurisdiction other than this one, a judge of this circuit would be
divested of jurisdiction.” 784 F.2d at 1116. At the outset, the Supreme Court in Padilla only endorsed the unknown custodian exception from Demjanjuk, not the entirety of the opinion. See 542 U.S. at 450 n.18. And
Demjanjuk’s brief statement in dicta contains no analysis or support. If we were to follow it, it would conflict
with the Supreme Court’s holding in Ex Parte Endo,
which stands for the proposition that “when the Government moves a habeas petitioner after she properly files
a petition naming her immediate custodian, the District
Court retains jurisdiction and may direct the writ to any
respondent within its jurisdiction who has legal authority to effectuate the prisoner’s release.” Padilla, 542
U.S. at 441. Endo also held that the “objective” of habeas relief “may be in no way impaired or defeated by
the removal of the prisoner . . . from the district since
the suit was begun.” 323 U.S. 283, 307 (1944). Under
the unknown custodian exception, Suri’s petition was
properly filed in the Eastern District of Virginia; the
Government’s behavior that would potentially strip the
original district court of jurisdiction conflicts with the
motivation for Endo’s rule.
33a
The Government states that Endo’s rule does not apply here, “where [Suri]’s counsel knew that [he] was not
detained in the Eastern District [of Virginia] before filing the habeas petition.” Reply Br. (ECF No. 88) at 14.
But this is plainly wrong and a misrepresentation of the
facts. As the district court found, Suri was taken to an
airport in Richmond, Virginia “[u]nbeknownst to anyone” and placed on a flight that departed to Louisiana.
Suri II, 785 F. Supp. 3d at 136. Meanwhile, Suri’s counsel was working diligently to file Suri’s habeas petition
that day, relying on Saleh’s statement that Suri was being held at the Farmville Detention Center. Id. at 13536.
Accordingly, we hold that the district court did not
abuse its discretion by declining to transfer Suri’s habeas petition.
C. Jurisdiction-Stripping Statutes
Next, the Government asserts that “[e]ven if the district court had jurisdiction over Suri’s habeas petition,”
three provisions of the INA—8 U.S.C. §§ 1252(g),
1252(b)(9), and 1252(a)(5)—“separately stripped the district [court] of jurisdiction to order relief.” Opening Br.
at 41. We disagree and hold that none of the pertinent
INA provisions deprive the district court of habeas jurisdiction.
We review “the district court’s factual findings with
respect to jurisdiction for clear error and the legal conclusion that flows therefrom de novo.” Velasco, 370 F.3d
at 398.
Before addressing each statutory provision, some
background is necessary to understand the interplay between the INA provisions and judicial review here. The
34a
Supreme Court has required both a “ ‘clear statement of
congressional intent to repeal habeas jurisdiction’ ” and
a “ ‘clear indication’ of congressional intent . . . when a
proposed [statutory] interpretation would push ‘the
outer limits of Congress’ power.’ ” DHS v. Thuraissigiam, 591 U.S. 103, 137 (2020) (quoting St. Cyr, 533 U.S.
at 298-300). There is a “ ‘strong presumption in favor of
judicial review of administrative action,’ ” id., and the
Supreme Court instructs that we should interpret
“ ‘statutes [to] allow judicial review . . . absent [a] clear
statement.” Kucana v. Holder, 558 U.S. 233, 237 (2010)
(first alteration in original & citation omitted). That
“presumption can only be overcome by ‘clear and convincing evidence’ of congressional intent to preclude judicial review.” Guerrero-Lasprilla v. Barr, 589 U.S. 221,
229 (2020) (quoting Reno v. Cath. Social Servs., Inc., 509
U.S. 43, 64 (1993)). As explained below, there is “no indication at all that Congress intended to strip district
courts of jurisdiction over habeas challenges to unconstitutional immigration detention.” Suri IV, 2025 WL
1806692, at *7. In fact, Congress’ intent here aligns with
the strong presumption favoring judicial review. Congress expressly confirmed that there would be no “preclu[sion of] habeas review over challenges to detention
that are independent of challenges to removal orders.”
H.R. Rep. No. 109-72, at 175 (2005) (Conf. Rep.). Rather
than broadly foreclosing review, Congress intended that
any “eliminat[ion of] habeas review [would] only [be]
over challenges to removal orders.” Id.
It comes as no surprise, then, that each and every
time the Government has tried to invoke these removalfocused jurisdiction-stripping provisions to foreclose
challenges to immigration detention, the Supreme Court
has balked. See, e.g., Zadvydas v. Davis, 533 U.S. 678,
35a
688 (2001); Clark v. Martinez, 543 U.S. 371 (2005); Jennings v. Rodriguez, 583 U.S. 281, 292-295 (2018) (plurality); id. at 355 (Breyer, J., dissenting); Nielsen v. Preap,
586 U.S. 392, 401-02 (2019); Johnson v. Guzman Chavez,
594 U.S. 523 (2021); Johnson v. Arteaga-Martinez, 596
U.S. 573 (2022). This unbroken line of caselaw also accords with common sense: if a noncitizen is challenging
their detention pending removal, then waiting for their
removal proceedings does them no good. They have already been detained, allegedly in violation of the Constitution. This “absurd” reading of the INA would make
such detention claims “effectively unreviewable,” and the
Supreme Court has repeatedly refused to embrace it.
Jennings, 583 U.S. at 293 (plurality).
With the presumption in favor of judicial review, Congress’ intent, and Supreme Court precedent in mind, we
address each INA provision in turn.
1. 8 U.S.C. § 1252(g)
The Government first points to § 1252(g), which provides that “no court shall have jurisdiction to hear any
cause or claim by or on behalf of any [noncitizen] arising
from the decision or action by the Attorney General to
[(1)] commence proceedings, [(2)] adjudicate cases, or
[(3)] execute removal orders against any alien under this
chapter.” 8 U.S.C. § 1252(g) (emphasis added).
The Supreme Court has held that § 1252(g) is a “narrow[]” bar on judicial review that is cabined “to three
discrete actions”: a decision “to ‘commence proceedings,
adjudicate cases, or execute removal orders.’ ” Reno v.
American-Arab Anti-Discrimination Comm. (AADC),
525 U.S. 471, 482 (1999) (quoting 8 U.S.C. § 1252(g)).
Section 1252(g) is “directed against a particular evil: attempts to impose judicial restraints upon prosecutorial
36a
discretion.” AADC, 525 U.S. at 485 n.9. Since AADC,
the Supreme Court has reaffirmed § 1252(g)’s narrow
ambit, expressly “reject[ing] as ‘implausible’ ” any interpretation of § 1252(g)’s “arising from” language that
would “cover[] ‘all claims arising from deportation proceedings’ or impose[] ‘a general jurisdictional limitation.’ ” Dep’t of Homeland Sec. v. Regents of the Univ.
of Cal., 591 U.S. 1, 19 (2020) (quoting AADC, 525 U.S. at
482). Instead, the “arising from” language should be
read “to refer to just those three specific actions themselves.” Jennings v. Rodriguez, 583 U.S. 281, 294 (2018)
(citing AADC, 525 U.S. at 482-83).
The § 1252(g) action at issue here is the decision to
“commence proceedings” against a noncitizen. The Government contends that Suri, by challenging his initial
detention, is also challenging “the Attorney General’s
decision to commence removal proceedings against
him.” Opening Br. at 45. In other words, it views Suri’s
unlawful detention claims as “inextricably intertwined”
with—and thus arising from—“the decision to commence removal proceedings.” Id. at 45, 47.
We disagree for two main reasons. First, Suri’s habeas claims challenging his detention are legally separate from the Government’s decision to begin removal
proceedings against him. And second, § 1252(g) cannot
be read to reach claims that are wholly independent of
the removal process.
a. Suri’s Detention Challenge is Legally Separate from
the Government’s Decision to Commence Removal Proceedings
At the outset, Suri’s habeas petition does not challenge the Government’s decision to commence removal
37a
proceedings against him. See J.A. 10-25; 97-129.15 As
noted above, his petition alleges that the decision to detain him and the conditions of his detention —as distinct
from the decision to seek removal—were made in order
to retaliate against him for First-Amendment protected
activities and associations and to chill his speech and
that of others. Suri, in other words, challenges his detention and the policy that produced that detention. See
id. And further, the district court’s order granting
Suri’s release on bond specifically requires Suri to “participate in his removal proceedings” as a condition of his
release. Suri III, 2025 WL 1392143, at *1 (E.D. Va. May
14, 2025).
This distinction of what Suri is challenging matters,
because challenges to detention proceedings do not fall
within the “particular evil” § 1252(g) narrowly targets—
namely, the attorney general’s decision to commence removal proceedings. AADC, 525 U.S. at 485 n.9. Section
1252(g) notably “does not speak to detention at all.”
Öztürk v. Hyde, 155 F.4th 187, 208 (2d Cir. 2025) (Nathan, J., concurring with five judges in denial of en banc
review).
Section 1252(g) does not speak to detention because
the decision to detain a noncitizen and the decision to
remove one are legally separate. Removal proceedings
are commenced by the filing of an NTA with an immigration court. See 8 C.F.R. § 1239.1. The decision to
detain is not commenced with the filing of an NTA, and
Suri’s original petition separately sought to enjoin his “targeting . . . for removal,” J.A. 25, but his amended petition (the one
the district court preliminarily granted below) challenged only his
“targeting . . . for apprehension, detention, and transfer,” not removal. J.A. 128-29.
15
38a
may occur before or after the filing of an NTA. It follows
that detention is not a necessary predicate to or consequence of the government’s decision to commence removal proceedings against a noncitizen. See Parra v.
Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (holding
that a habeas petition “concern[ing] detention while the
administrative process lasts . . . may be resolved without affecting pending [removal] proceedings”). Importantly, the Government was not legally required to
detain Suri to adjudicate his case. 16 Indeed, the government routinely initiates removal proceedings against individuals without detaining them. See, e.g., Brief for Petitioners at *8-9, United States v. Texas, 2022 WL
4278395 (Sep. 12, 2022) (No. 22-58) (noting that “perennial constraints on detention capacity” prevent the Executive from detaining everyone subject to removal).
The INA’s statutory framework further supports
that the Government’s decision to detain and its decision
At oral argument, the Government represented to this court that
Suri’s “detention is mandatory under the foreign policy charge.”
Oral Argument at 00:25:58-00:26:01, Badar Suri v. Donald Trump,
No. 25-1560 (4th Cir. argued Mar. 17, 2026), https://www.ca4.uscourts.
gov/OAarchive/mp3/25-1560-20260317.mp3. We asked the Government if it was “sure of that,” id. at 00:26:03, to which it responded
that it was “80% sure” Suri’s detention was mandatory, id. at 00:26:07.
As it turns out, Suri’s detention was not mandatory but permissive,
as the Government later conceded in a 28( j) letter that the statutory source for Suri’s detention was 8 U.S.C. § 1226(a). See ECF
No. 126 at 1; see also id. § 1226(a) (providing that a noncitizen “may
be arrested and detained pending a decision on whether the [noncitizen] is to be removed from the United States.” (emphasis added)).
We caution that representations to this court—particularly representations on matters as significant as whether Suri’s detention
was mandatory—must be correct, not “80% sure” or what counsel
believes might be correct.
16
39a
to remove are legally distinct. The INA treats detention
and removability as separate, each governed by different provisions and justified on different grounds. Compare 8 U.S.C. § 1226 (detention statute) with 8 U.S.C.
§ 1227 (removability statute).
Courts also “routinely exercise jurisdiction over such
[detention] challenges.” Suri IV, 2025 WL 1806692, at
*7 (citing Castaneda v. Perry, 95 F.4th 750, 762 (4th Cir.
2024) (exercising jurisdiction over a habeas challenge to
present immigration confinement)); Kong v. United
States, 62 F.4th 608, 620 (1st Cir. 2023) (holding that
“§ 1252(g)’s jurisdictional bar for claims ‘arising from’
the government’s decision to “execute removal orders”
does not preclude jurisdiction over Kong’s challenges to
the legality of his detention”); Madu v. Att’y Gen., 470
F.3d 1362, 1368 (11th Cir. 2006) (holding that Madu
brought a constitutional detention challenge and did not
challenge the government’s exercise of discretion); Parra,
172 F.3d at 957 (holding that Parra’s claims concerned
detention and that he did not request the district court
to block one of the three governmental actions set out in
§ 1252(g)). Recently, the Second Circuit (twice) and this
court in Suri IV rejected the government’s argument
that § 1252(g) precluded a district court’s jurisdiction.
The Second Circuit specifically held that § 1252(g) did
not strip the district court of jurisdiction because the habeas petitioner’s “claims of unlawful and retaliatory detention [were] independent of, and collateral to, the removal process,” so the petitioner’s “detention [did] not
arise from the government’s ‘commence[ment] [of ] proceedings.’ ” Öztürk v. Hyde, 136 F.4th 382, 397-98 (2d
Cir. 2025)); see also Mahdawi v. Trump, 136 F.4th 443,
449-51 (2d Cir. 2025) (same).
40a
Accordingly, detention challenges lie outside
§ 1252(g)’s three narrow limits on judicial review.
The Government’s insistence that AADC changes
this outcome is misplaced. The Government claims that
AADC is persuasive because “the Supreme Court held
that a previous version of § 1252(g) precluded jurisdiction over claims similar to Suri’s.” See Opening Br. at
43 (citing 525 U.S. at 474, 487-92). We are unpersuaded
for a couple of reasons.
In AADC, the Supreme Court held that because the
respondents challenged “the Attorney General’s decision to ‘commence proceedings,’ ” Section 1252(g) “deprive[d] the federal courts of jurisdiction over respondents’ claims.” Id. at 486, 492. The Government correctly
points out some similarities between AADC and this
case, such as the AADC respondents’ allegations that
the government “was selectively enforcing immigration
laws against them in violation of their First and Fifth
Amendment rights.” Id. at 474. That said, the Government fails to note a key difference: the AADC petitioners sought “to prevent the initiation of deportation proceedings,” id. at 474,—i.e., the “commence[ment] [of removal] proceedings,” id. at 482. And further, the AADC
petitioners’ habeas claims were not like Suri’s because
they “did not sound in unlawful detention at all”—
another reason why AADC is “of no help to the
[G]overnment.” Suri IV, 2025 WL 1806692, at *8 (quoting Öztürk, 136 F.4th at 398). 17
Nor do we find the Government’s use of Gupta v. McGahey, 709
F.3d 1062 (11th Cir. 2013) or Alvarez v. U.S. ICE, 818 F.3d 1194
(11th Cir. 2016) persuasive. The Eleventh Circuit in Gupta held that
§ 1252(g) barred the plaintiff from bringing certain claims under
17
41a
b. Section 1252(g) Does Not Reach
Suri’s Detention Claims
The Government urges us to take a broad reading of
§ 1252(g), contending that Suri’s detention claims “arise
from” the decision to commence removal proceedings because resolving Suri’s unlawful detention claims on free
speech retaliation grounds “may [also] be determina-
Bivens because the challenged “actions were taken in an effort to
secure Gupta and prevent potential danger to Disney World while
he awaited a determination of his removal.” 709 F.3d at 1065. And
in Alvarez, the Eleventh Circuit held that while § 1252(g) did not
strip the court of jurisdiction, the plaintiff lacked an available remedy under Bivens. 818 F.3d at 1205, 1212-13. As a preliminary matter, Alvarez’s holding seems to cut against the Government. See id.
at 1204-05. Further, both cases are appeals of Bivens actions, where
ICE officials were sued after the plaintiffs were released from detention, rather than here, where Suri filed a habeas petition for current unlawful detention. Gupta, 709 F.3d at 1063–64; Alvarez, 818
F.3d at 1195–96. Neither decision demonstrates that § 1252(g) divests the district court of jurisdiction to adjudicate Suri’s habeas detention challenge.
To the extent Gupta or Alvarez could be read to foreclose habeas
review of unlawful immigration detention, that reading cannot be
reconciled with AADC’s narrow construction of § 1252(g)’s “arising
from” language, 525 U.S. at 482, or Jennings’ reaffirmation that
§ 1252(g) targets only the three discrete acts. Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) (“[W]e read the language [in § 1252(g)]
to refer to just those three specific actions themselves.” (citing AADC,
525 U.S. at 482-83)). Courts have accordingly either confined Alvarez and Gupta to their facts or refused to follow them outright as
they run headlong into Supreme Court precedent. Gonzalez Cortes
v. Holt, 2025 WL 4666433, at *5 n.6 (W.D. Okla. Nov. 5, 2025) (collecting cases); Maldonado v. Olson, 795 F. Supp. 3d 1134, 1144 (D.
Minn. 2025); Rivero v. Mina, 817 F. Supp. 3d 1278, 1283 (M.D. Fla.
2026); Villa v. Normand, 2025 WL 3188406, at *4-5 (S.D. Ga. Nov.
14, 2025).
42a
tive” in Suri’s removability proceedings. See Opening
Br. at 52-53.
“But overlap, even substantial substantive overlap,
does not make one claim arise out of the other, or necessitate that one claim controls the outcome of the other.”
Öztürk, 136 F.4th at 400 (emphasis added). And regardless, the Government has yet to “point[] to a single case
holding that § 1252(g) strips jurisdiction over” a First
Amendment retaliation challenge to unlawful detention.
Suri IV, 2025 WL 1806692, at *8. We are persuaded by
the Second Circuit’s conclusion in Öztürk’s that “jurisdiction will turn” not on the legal basis of the claim, but
instead “on the substance of the relief that a plaintiff is
seeking,” i.e., relief from detention versus relief from removal. 136 F.4th at 400 (quoting Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011)) (addressing a similar
argument as to review under 1252(b)(9)). Öztürk’s explanation of this distinction makes practical sense.
While removal challenges “can be heard in a petition for
review after an order of removal has been entered by an
immigration judge and affirmed by the Board of Immigration Appeals,” id., constitutional challenges (like the
ones raised by Suri) have no place and cannot be heard
in removal proceedings. See Matter of C-, 20 I. & N.
Dec. 529, 532 (BIA 1992) (noting that “it is settled that
the immigration judge and this Board lack jurisdiction
to rule upon the constitutionality of the Act and the regulations”).
What’s more, Suri raises due process challenges to
his detention—claims that are wholly independent of his
First Amendment retaliation claim. See J.A. 123-27; see
also Mahdawi, 136 F.4th at 450 n.3 (holding that “[s]o
long as part of his challenge to his detention falls outside
43a
of § 1252(g), his petition survives, as does the district
court’s authority to order his release”). Accepting the
Government’s position would mean that, by simply asserting a First Amendment retaliation claim in his removal proceedings, § 1252(g) would foreclose Suri from
bringing: (1) any related detention claims, including his
First Amendment retaliation detention claim, as well as
(2) any independent claims such as his due process
claims or challenges to the conditions or duration of his
present confinement. In other words, if a petitioner files
a habeas petition that includes multiple detention claims
and just one of those claims has some substantive overlap with his separate ongoing removal proceedings, his
entire detention petition would be barred by § 1252(g).
That result would be “staggering,” Jennings, 583 U.S.
at 293, and would “eviscerate habeas corpus for noncitizens whenever the government detains them and also
seeks to remove them,” Öztürk, 155 F.4th at 208 (Nathan, J., concurring in denial of en banc). Any potential
risk of “systemic damage” “from allowing parallel adjudications,” Suri IV, 2025 WL 1806692, at *12 (Wilkinson,
J., dissenting), is far outweighed by the deprivation of
liberties held by all who reside in the United States. 18
The dissent further contends that our holding today has created
a “loophole” for parallel proceedings, which would require the government to litigate a noncitizen’s removability in two forums. Diss.
Op. at 84, 85. But that is not true. Under § 1252(g), regardless of
whether there is an order of removal, jurisdiction would be stripped
if a petitioner, explicitly or in substance, challenged the government’s
decision to commence removal proceedings. That provision thus
forecloses the “conclusory” detention challenges that the dissent
fears: the argument that the noncitizen “cannot be detained pending
removal because [he] cannot be removed.” Id. (internal quotation
marks omitted). Suri’s detention challenge does not fit that mold.
18
44a
Time and time again, the Supreme Court has stressed
that § 1252(g) is a “narrow” bar to judicial review on
three very specific actions. Regents, 591 U.S. at 19; see
also Jennings, 583 U.S. at 294 (citing AADC, 525 U.S.
at 482-83). Yet the Government asks us to wave away
explicit Supreme Court commands by giving one of
§ 1252(g)’s discrete actions a new broad and unnatural
reading. We refuse to do so.
2. 8 U.S.C. § 1252(b)(9)
We turn next to 8 U.S.C. § 1252(b)(9), which provides
that, “[j]udicial review of all questions of law and fact
. . . arising from any action taken or proceeding brought
to remove [a noncitizen] . . . shall be available only in
judicial review of a final order.” But § 1252(b)(9) cannot
be read in isolation. Section 1252(b)(9) is a subsection
within § 1252(b), which is titled “Requirements for review of orders of removal.” Id. § 1252(b). Section
1252(b) sets out that the “following requirements apply”
“[w]ith respect to review of an order of removal under
subsection (a)(1).” Id. § 1252(b). So, the provisions that
follow § 1252(b)—§ 1252(b)(1) through (9)—are requirements that apply only to the review of an order of removal.
Here, Suri is not seeking judicial review of an order
of removal. Thus, § 1252(b)(9) (or any of § 1252(b)’s subsections) does not apply. See Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997) (determining a statute’s meaning requires reviewing “the specific context in which
that language is used, and the broader context of the
As we have explained, he brings challenges to the Government’s decision to detain him, and the conditions of his detention, that are independent of and do not turn on the decision to commence removal
proceedings against him.
45a
statute as a whole” (emphasis added)). This straightforward reading is well established, as this court has twice
held that § 1252(b)(9) applies only with respect to review
of an order of removal. In Casa De Maryland v. United
States Department of Homeland Security, this court
held that § 1252(b)(9) “doesn’t help the government . . .
because it ‘applies only with respect to review of an order of removal under [8 U.S.C. § 1252(a)(1)].’ ” 924 F.3d
684, 697 (4th Cir. 2019) (alteration in original). 19 And in
Miranda v. Garland, the court again held that § 1252(b)(9)
does not preclude jurisdiction over a challenge to the legality of detention and bond procedures. 34 F.4th 338,
The dissent contends that our precedent in Casa de Maryland
does not, in fact, confine § 1252(b)(9) to review of final orders of removal. Instead, it argues that Casa de Maryland holds only that
§ 1252(b)(9) does not apply when the government has not even commenced removal proceedings against the plaintiff. Diss. Op. at 75.
We read Casa de Maryland differently. There, the government insisted that § 1252(b)(9) barred review of the administration’s decision rescinding the Deferred Action for Childhood Arrivals program
not because it thought removal proceedings had commenced, but because the Executive’s decision to defer action on a removal is a “question[] of law or fact arising from any action taken to remove a[] [noncitizen]” that could be brought, if anywhere, only in the petition-forreview process. United States Opening and Response Br., Casa de
Maryland v. DHS, No. 18-1521(L) (4th Cir. Aug. 1, 2018), ECF No.
33, at 28-30. Under the dissent’s reading of the statute—like the
government’s there—review in that case would thus have been “with
respect to review of an order of removal,” 8 U.S.C. § 1252(b)(9),
whether or not removal proceedings had commenced, because it necessarily “relat[ed] to” such a (potential) order. Diss. Op. at 73-74.
But Casa de Maryland rejected that expansive reading of the statute. And it did so, by its terms, not based on whether removal proceedings had commenced—which would not have resolved the dispute as the government presented it, or as anyone in that case or this
one construes the statute—but rather whether there was an actual
“order of removal” at issue. Casa de Maryland, 924 F.3d at 687.
19
46a
353 n.6 (4th Cir. 2022). Multiple circuit courts have also
read § 1252(b)(9) to only apply when an order of removal
is at issue20, as have more recent decisions addressing
challenges analogous to the one 21. This alone could end
our § 1252(b)(9) analysis.
Taking a different tack, our dissenting colleague argues that the legislative history alters the text’s apparent plain meaning. Diss. Op. at 65-67. While we appreciate the dissent’s reliance on legislative history, we disagree with the dissent’s reading and its ability to overcome the force of the statutory text and our precedent.
Quoting from a House Conference Report, the dissent
rightly notes that Congress amended 8 U.S.C. § 1252(b)(9)
in the REAL ID Act of 2005 to overturn the main holding in Immigration & Naturalization Services v. St.
Cyr, 533 U.S. 289 (2001). But that fact does little to aid
the dissent’s argument, because Congress’ essential problem with St. Cyr was that it allowed a district court, sitting in habeas, to review certain noncitizens’ final orders
of removal issued by the BIA. H.R. Rep. No. 109-72, at
173 (2005); see St. Cyr, 533 U.S. at 311-13. And what
20
See Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006)
(holding that “[b]y its terms, [§ 1252(b)(9)] does not apply to federal
habeas corpus petitions that do not involve final orders of removal”);
Singh v. Gonzalez, 499 F.3d 969, 978 (9th Cir. 2007) (explaining that
“[b]y virtue of their explicit language, both §§ 1252(a)(5) and
1252(b)(9) apply only to those claims seeking judicial review of orders of removal”); Madu v. U.S. Att’y Gen., 470 F.3d 1362, 1367 (11th
Cir. 2006) (holding that § 1252(b)(9) does not apply to cases that do
not “involve review of an order of removal”).
21
See Suri IV, 2025 WL 1806692, at *9 (“There is no such order here,
so these provisions don’t apply.”); Öztürk v. Hyde, 136 F.4th 382, 399
(2d Cir. 2025) (rejecting the government’s argument because “[n]o
such order of removal is at issue here”); Mahdawi, 136 F.4th 443, 45152 (2d Cir. 2025) (same).
47a
Congress did in response was to make clearer that such
orders of removal may not be reviewed in habeas proceedings. See REAL ID Act of 2005, Pub. L. 109-13, 119
Stat. 231, 311 (2005). To be sure, the Conference Report
also discussed concerns with review of issues that arise
in removal proceedings, even before a final order of removal issues. But it did nothing in the REAL ID Act to
address that issue. Quite to the contrary, the Conference Report makes crystal clear that its revisions were
intended “to eliminate habeas review only over challenges to removal orders,” and not to “preclude habeas
review over challenges to detention that are independent of challenges to removal orders.” H.R. Rep. No. 10972, at 175 (emphasis added). That legislative history
cannot remotely bear the weight our dissenting colleague asks it to. In fact, it supports Suri’s reading of
the text.
The Government contends that Jennings v. Rodriguez, 583 U.S. 281 (2018) and Khalil v. President, U.S.,
164 F.4th 259 (3d Cir. 2026), alter the plain reading of
§ 1252(b)(9) adopted by this court and many others. We
disagree.
a. Jennings v. Rodriguez, 583 U.S. 281 (2018)
In Jennings, noncitizens in ongoing removal proceedings brought habeas corpus petitions that challenged the
length of their detention. 583 U.S. at 290-91. There, six
Justices agreed that § 1252(b)(9) did not strip federal
courts of jurisdiction over the habeas petitions. Id. at
294-95 (Alito, J., plurality opinion, joined by Chief Justice Roberts and Justice Kennedy) (“Under these circumstances § 1252(b)(9) does not present a jurisdictional
bar.”); id. at 355 (Breyer, J., dissenting opinion, joined
by Justice Ginsburg and Justice Sotomayor) (“Jurisdic-
48a
tion also is unaffected by 8 U.S.C. § 1252(b)(9).”). Those
Justices did not agree on the exact scope of § 1252(b)(9)
—just that § 1252(b)(9) did not strip jurisdiction over
the Jennings detainees’ habeas petitions.
In times where the Supreme Court cannot agree on a
single rationale for a decision, courts must engage in a
Marks analysis. See Marks v. United States, 430 U.S.
188, 193 (1977). Marks provides that the holding of a
divided Supreme Court “may be viewed as that position
taken by those Members who concurred in the judgment[] on the narrowest grounds.” Id. (cleaned up). “This
analysis must account for any dissenting opinions that
were necessary to the holding with respect to a given
legal question.” Khalil, 164 F.4th at 283 (Freeman, J.,
dissenting) (citing United States v. Jacobsen, 466 U.S.
109, 116-17 & n.12 (1984)). Much of the disagreement on
§ 1252(b)(9) stems from what Jennings actually holds—
and in turn, when § 1252(b)(9) is understood to strip jurisdiction. Below, we apply Marks to identify the narrowest grounds of Jennings’ jurisdictional implications.
The relevant portion of the Jennings’ plurality opinion is Part II (583 U.S. at 292-95), where Justice Alito
discusses whether the Court had “jurisdiction to entertain respondents’ claims” under § 1252(b)(9), id. at 292.
Justice Alito held that § 1252(b)(9) did “not present a
jurisdictional bar,” but found it “not necessary . . . to
attempt to provide a comprehensive interpretation” of
§ 1252(b)(9). Id. at 294-95. Instead, Justice Alito made
a case-specific decision, writing that:
For present purposes, it is enough to note that respondents are not asking for review of an order of removal; they are not challenging the decision to detain
them in the first place or to seek removal; and they
49a
are not even challenging any part of the process by
which their removability will be determined. Under
these circumstances, § 1252(b)(9) does not present a
jurisdictional bar.
Id. at 294-95.
Justice Breyer, writing separately, agreed with Justice Alito that jurisdiction was unaffected by § 1252(b)(9).
To Justice Breyer, § 1252(b)(9) would have no effect outside of challenges to orders of removal. Jennings, 583
U.S. at 355 (Breyer, J., dissenting). Justice Thomas, however, disagreed with Justice Alito and Justice Breyer’s
opinions on § 1252(b)(9). In his view, because “a majority of the Court ha[d] decided to exercise jurisdiction,”
the judgment “should have [been] vacated” “[b]ecause
§ 1252(b)(9) deprives courts of jurisdiction.” Id. at 326
(Thomas, J., concurring in part, joined by Justice Gorsuch).
Thus, a majority agreed that § 1252(b)(9) did not
strip jurisdiction over the Jennings detainees’ habeas
petitions. While Justice Alito found it unnecessary to
comprehensively interpret § 1252(b)(9), whereas Justice
Breyer did, together, their opinions garnered a majority
that concluded § 1252(b)(9) did not “present a jurisdictional bar.” Id. at 295 (Alito, J., plurality opinion); see
also id. at 355 (Breyer, J., dissenting in part).
Having identified the “position taken by those Members who concurred in the [§ 1252(b)(9)] judgment,” we
turn to determining the “narrowest grounds” as required by Marks. 430 U.S. at 193. Considering both Justice Alito and Justice Breyer’s opinions, Justice Alito’s
opinion is the narrower holding under Marks because it
adopts a case-specific application of § 1252(b)(9), rather
than adopting an exact interpretation.
50a
So contrary to the Government’s contention, the
Marks holding in Jennings does not abrogate or overrule our precedent interpreting § 1252(b)(9) because it
deliberately declined to “provide a comprehensive interpretation [of § 1252(b)(9)].” 583 U.S. at 294. Six Justices
in Jennings agreed that whatever the exact scope of
§ 1252(b)(9) may be, it did not strip jurisdiction over the
Jennings detainees’ habeas petitions. A case-specific
holding that deliberately declines to say what § 1252(b)(9)
means cannot be taken to overrule this court’s precedent saying what it does mean. 22 Accordingly, Casa De
Maryland and Miranda continue to guide our analysis.
And we could, again, end our analysis on § 1252(b)(9)
here.
But even if we treated the Marks holding in Jennings
as having abrogated Casa De Maryland and Miranda,
applying that case-specific holding to the facts here
would yield the same result. Justice Alito held that irrespective of § 1252(b)(9)’s precise scope, it “does not
present a jurisdictional bar” when a petitioner is not
seeking review of: (1) “an order of removal”; (2) “the
decision . . . to seek removal”; or (3) “the process by
which . . . removability will be determined.” Regents,
591 U.S. at 19 (quoting Jennings, 583 U.S. at 293, 294). 23
Put another way, the Jennings plurality did not decide—as the
dissent and Government insist—that a challenge to “the decision
to detain [petitioners] in the first place” would be barred. 583 U.S.
at 294; see Diss. Op. at 76. It merely decided the inverse: that a
claim that did not constitute such a challenge was not barred. See
Khalil, 164 F.4th at 284 (Freeman, J., dissenting). The Government’s reliance on Jennings thus rests on a basic logical fallacy and
cannot overcome the force of this circuit’s binding precedent.
23
The Jennings plurality opinion’s reasoning on § 1252(b)(9) was
reaffirmed and applied by a majority of the Supreme Court in Re22
51a
The pertinent question is “whether the legal questions”
arise from an action taken to remove a noncitizen—not
“whether detention is an action taken to remove [a
noncitizen].” Jennings, 583 U.S. at 295 n.3. Here, Suri
is not challenging Justice Alito’s first or third listed
characteristic. He does not request review of an order
of removal or any part of the process by which his removability will be determined.
Further, Suri’s detention claims regarding due process, see J.A. 123-26, are independent from and do not
implicate the second listed characteristic: the Government’s “ ‘decision . . . to seek removal.’ ” Regents, 591
U.S. at 19 (ellipsis in original) (quoting Jennings, 583
U.S. at 294). Specifically, Suri alleges that the Government has not shown that “a husband to a U.S. citizen, a
father of three young children, and with no criminal history [] needs to be detained.” J.A. 125. Suri seeks relief
from a “punitive” detention that bore “no ‘reasonable relation’ to any governmental purpose,” id. (quoting
Zadvydas v. Davis, 533 U.S. 678, 690 (2001)), such as
“preventing flight,” or “protecting the community.”
Zadvydas, 533 U.S. at 690; see also id. at 690-91 (indicating that civil detention violates due process if it is punitive in its intent or excessive in relation to the goals of
appearance of noncitizens at immigration proceedings
gents. See 591 U.S. at 19 (quoting Jennings, 583 U.S. at 294-95 (plurality opinion), and citing id. at 355 (Breyer, J., dissenting)). We
note that Regents’ quotation of the critical language from Jennings
omitted any reference to a “decision to detain,” and that Regents
favorably cited Justice Breyer’s Jennings dissent and its narrow
construal of § 1252(b)(9). Öztürk, 155 F.4th at 209 (Nathan, J., concurring in the denial of rehearing en banc). Further, Regents expressly held that § 1252(b)(9) “is certainly not a bar where, as here,
the parties are not challenging any removal proceedings.” Id.
52a
and preventing danger to the community). These claims
are specific to his detention. Further, the dissent is
wrong to say that cases like Suri’s “will grind removal
proceedings to a halt.” Diss. Op. at 64; see also id. at 85.
Suri’s custody release does not negate any order of removal that may ultimately be issued against him, and he
is specifically required to “participate in his removal
proceedings” as a condition of his release. Suri III, 2025
WL 1392143, at *1. And considering Justice Alito’s inquiry on where the legal questions arise from, it is evident that Suri’s due process claims arise from whether
his detention was justified, not the Government’s decision to seek removal.
To the extent there is substantive overlap in the First
Amendment legal questions that are to be answered in
his habeas and removal proceedings, those questions
still arise from two separate governmental actions. The
Government’s act of detaining Suri to prevent speech
with which it disagrees is “a violation of the Constitution
—quite separate from the removal procedures followed
by immigration courts.” Öztürk, 136 F.4th at 399.24 Suri’s
detainment raises constitutional questions—legal questions that are to be decided here, in federal court. And
Judge Krause, dissenting from the Third Circuit’s denial of rehearing en banc in Khalil v. Trump, questioned that if courts lack
jurisdiction to hear detention-specific claims with some constitutional implications, “what principled reason would [the court] have
to review habeas claims alleging detention on account of race, religion, or other protected grounds, so long as the noncitizen is in removal proceedings?” 176 F.4th 295, 299 n.6 (3d Cir.2026) (Krause,
J., dissenting from denial of rehearing en banc). We find that concern and observation compelling—and the implication unavoidable:
under the Government’s position, such claims would be effectively
foreclosed altogether.
24
53a
for the reasons stated in our discussion of § 1252(g) in
Section III.C.1.b., the same is still true: “overlap, even
substantive overlap, does not make one claim arise out
of the other, or necessitate that one claim controls the
outcome of the other.” Öztürk, 136 F.4th at 400. “The
Constitution does not yield to administrative convenience, and due process is not suspended merely because
two courts may be asked similar questions.” Suri IV,
2025 WL 1806692, at *1 n.1. Whatever concern about
piecemeal litigation in detention and removal proceedings
—where petitioners may potentially be granted two
chances to argue their claims—is no match for the far
more troubling reality of petitioners who are afforded
no opportunity for a hearing at all.
The distinction mentioned in Öztürk is practically
significant because immigration judges and the Board of
Immigration Appeals (BIA) lack jurisdiction to decide
constitutional challenges. Immigration judges handling
analogous adjacent removal proceedings have already
found that they lack jurisdiction to do so. See Khalil,
164 F.4th at 291 (Freeman, J., dissenting). If an immigration judge cannot develop a factual record on constitutional claims, then a court of appeals reviewing a final
order of removal will have a deficient factual record before it. And courts of appeals are obligated to decide
such petitions for review “only on the administrative
record on which the order of removal is based.” 8 U.S.C.
§ 1252(b)(4)(A). The Government’s stance would effectively ensure that, in cases like this, courts of appeals
would have no factual record to assess its conduct at all.
The Government’s stance on § 1252(b)(9) yields the
exact type of results that the Supreme Court would find
“absurd.” Jennings, 583 U.S. at 293. The Government
54a
asserts that judicial review would be proper once a final
order of removal has been issued. See Reply Br. at 34.
But here, no final order of removal has been issued in
Suri’s adjacent removal proceedings. Indeed, a “final
order of removal might never come.” Khalil, 164 F.4th
at 291 (Freeman, J., dissenting) (citing E.O.H.C. v. Sec’y,
U.S. Dep’t of Homeland Sec., 950 F.3d 177, 186 (3d Cir.
2020)). Further, Suri’s “core argument is that his free
speech and due process rights are being violated, now.”
Mahdawi, 136 F.4th at 452. As was the case in Jennings, “[b]y the time a final order of removal [would be]
eventually entered, the allegedly excessive detention
would have already taken place.” 583 U.S. at 293. Even
if Suri prevails in his removal proceedings, the Government’s reading of § 1252(b)(9) would leave him with no
recourse for his unlawful detention.
Accordingly, we decline to interpret § 1252(b)(9) in a
manner that would deprive Suri “of any meaningful
chance for judicial review.” Id.
b. Khalil v. President, United States,
164 F.4th 259 (3d Cir. 2026)
The Third Circuit departed from both of the Second
Circuit’s decisions on stay motions and this court in Suri
IV because it read Jennings’ analysis on § 1252(b)(9) differently. See Khalil, 164 F.4th at 274, 277-79. We respectfully disagree with its interpretation. 25
On July 21, 2026, the Second Circuit held that § 1252(b)(9) deprived a district court of jurisdiction over a similar habeas petition.
See Mahdawi v. Trump (Mahdawi II), 2026 WL 2090981 (2d Cir.
July 21, 2026). Mahdawi II largely reiterates the Third Circuit’s
reasoning in Khalil. Thus, for the reasons set forth in our discussion of § 1252(b)(9), and those developed below through distin25
55a
To begin, the Khalil majority entirely omits any mention of the Supreme Court’s strong default presumption
that absent a clear statement, statutes should be interpreted to allow judicial review of administrative action.
See Thuraissigiam, 591 U.S. at 137; see also Kucana,
558 U.S. at 237. That presumption can only be overcome
“by clear and convincing evidence of congressional intent to preclude judicial review.” Guerrero-Lasprilla,
589 U.S. at 229 (cleaned up). Khalil’s failure to grapple
with that presumption substantially undermines its reasoning overall. See Khalil v. Trump, 176 F.4th 295, 297
(3d Cir. 2026) (Krause, J., dissenting from denial of rehearing en banc) (writing that the panel majority “jetti-
guishing Khalil, we remain unpersuaded that § 1252(b)(9) strips
jurisdiction over Suri’s habeas petition that challenges the constitutionality of his detention.
But there is one particular point worth addressing. The Second
Circuit stated that Mahdawi was not deprived of any meaningful
opportunity for review of his detention because, per the Government’s representation in that case, he “could have sought release
pending his removal through the administrative process” pursuant
to Matter of Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999). Mahdawi
II, 2026 WL 2090981, at *11. But the Government has made no
such representation before this court. In fact, the Government
here said the opposite—that “once the decision to detain pending
removal proceedings was made, an immigration judge has no authority to redetermine that custody decision.” ECF No. 126 at 1.
And even if such a hearing were available, we see no authority (besides, again, Government representations in other courts that were
not made here) indicating that Suri could use such a hearing to
challenge the constitutionality of his detention or removal. Still, it
is telling that the Second Circuit did not embrace our dissenting
colleague’s position that Suri would have no way to bring constitutional challenges to his detention and seek release pending his removal, or that the Constitution would permit such an outcome.
56a
sons” the default presumption of judicial review and
gives § 1252(b)(9) “its most expansive scope”).
With that strong presumption left unaddressed, Khalil turned to Jennings. Khalil held that under Marks,
the Jennings plurality opinion “strongly suggested that
§ 1252(b)(9) would strip jurisdiction over claims with
closer connections, like ‘challeng[es] [to] the decision to
detain them in the first place or to seek removal,’ challenges to ‘any part of the process by which . . . removability will be determined,’ and requests to ‘review . . .
an order of removal.’ ” 164 F.4th at 277 (quoting Jennings, 583 U.S. at 294). And based off that “strong implication,” id. at 278, the Third Circuit concluded that
Jennings abrogated its precedent, Chehazeh v. Att’y
Gen., 666 F.3d 118 (3d Cir. 2012), which is analogous to
our circuit’s precedent Casa De Maryland and Miranda.
But, for the reasons we just explained, the Third Circuit overreads the Marks holding of Jennings. Again,
under Marks, we look to the position of the concurring
Justices on the narrowest grounds. See 430 U.S. at 193.
Justice Alito expressly declined “to provide a comprehensive interpretation” of § 1252(b)(9). Jennings, 583
U.S. at 294. Thus, it is an overstatement to understand
the language in Jennings as “strongly suggest[ing] that
§ 1252(b)(9) would strip jurisdiction over claims with
closer connections,” Khalil, 164 F.4th at 277, when it declined to provide an interpretation of the statute, opting
instead for a case-specific holding “[f ]or present purposes.” See Jennings, 583 U.S. at 294. The Third Circuit thus “read[] Justice Alito’s opinion to say more”
than it does. Khalil, 164 F.4th at 284 (Freeman, J., dissenting). In light of Jennings’ express refusal to pro-
57a
vide a comprehensive interpretation of § 1252(b)(9), it
cannot be read to require us to overrule our precedent—
something we “do not lightly” do. Hulburt v. Black, 925
F.3d 154, 161 (4th Cir. 2019) (en banc).
Additionally, even though Justice Alito did not adopt
Justice Breyer’s interpretation of § 1252(b)(9) (which
also accords with Casa De Maryland, Miranda, and
Chehazeh), he also did not reject it; he simply declined
to get to the merits of a § 1252(b)(9) interpretation. See
Jennings, 583 U.S. at 294. This avoidance is notable,
given that Justice Alito did directly engage with Justice
Thomas’ opposing view on § 1252(b)(9). See id. at 295
n.3 (holding that “[w]e do not follow [Justice Thomas’]
logic.”).
What’s more, the Khalil majority’s Marks holding “is
incompatible with the views of the remaining five Justices who participated in Jennings.” Khalil, 164 F.4th
at 284 (Freeman, J., dissenting). Six Justices agreed
that § 1252(b)(9) did not strip jurisdiction over the Jennings detainees’ habeas petitions. Jennings, 583 U.S. at
294-95 (plurality opinion), and id. at 355 (Breyer, J., dissenting). As mentioned above, Justice Thomas recognized that he was in the minority on the jurisdictional
question, and he joined only the portions of Justice Alito’s
opinion that addressed the merits of the claims. Id. at
314 (Thomas, J., concurring in part) (“But because a majority of the Court believes we have jurisdiction, and I
agree with the Court’s resolution of the merits, I join
Part I and Parts III-VI of the Court’s opinion.”). And
beyond that, Khalil’s reading of Jennings seems incompatible with the Supreme Court’s characterization of
Jennings two years later. Compare Khalil, 164 F.4th at
277 (holding that the “plurality strongly suggested that
58a
§ 1252(b)(9) would strip jurisdiction over” “challenges to
the decision to detain them in the first place or to seek
removal,” “challenges to ‘any part of the process by
which removability will be determined,’ and requests to
‘review an order of removal’ ” (emphasis added) (cleaned
up)) with Regents, 591 U.S. at 19 (Ҥ 1252(b)(9) does not
present a jurisdictional bar where those bringing suit
‘are not asking for review of an order of removal,’ ‘the
decision . . . to seek removal,’ or ‘the process by which
. . . removability will be determined.’ ” (cleaned up)).
Accordingly, we decline to follow Khalil’s reading of
Jennings and decline to overturn our precedent limiting
the application of § 1252(b)(9) to review of final orders
of removal.
We also remain unpersuaded by the other arguments
the Third Circuit embraced in Khalil. Even if § 1252(b)(9)
were not limited to review of final orders of removal, we
disagree that it would preclude judicial review here because some of Suri’s detention claims raise “legal questions” that may also arise in his removal proceedings.
Khalil, 164 F.4th at 275. Suri’s First Amendment challenges to his detention are distinct from his First Amendment challenges to his removal; whether the Government has chosen to detain Suri to punish his speech and
associations and to chill and deter future speech, and
whether it constitutionally may do so, are different questions from whether the Government has and may seek
to remove Suri because of his speech and associations.
Suri is not arguing that he may not be detained pending
removal because he may not be removed. See Diss. Op.
at 85. His argument is that even if he can be removed,
the decision to detain him pending removal is independently constitutionally flawed. See, e.g., J.A. 124.
Moreover, Suri also raises challenges to his conditions
59a
of confinement and restrictions on his speech and religious practice in detention that are entirely unrelated to
any legal claim he might advance in removal proceedings. We thus depart from the Third Circuit’s suggestion that Suri’s detention challenges necessarily “rise[]
or fall[] with” his removal challenges. Khalil, 164 F.4th
at 277.
The Third Circuit also agreed with our colleague
Judge Wilkinson that challenging unconstitutional immigration detention in a habeas court “ ‘circumvent[s]
the usual immigration process’ ”—and thereby both disregards Congress’ desire for streamlined, efficient immigration proceedings and risks conflicting orders from
different tribunals. Khalil, 164 F.4th at 279 (quoting
Suri IV, 2025 WL 1806692, at *10 (Wilkinson, J., dissenting)). We are not convinced that postponing Suri’s
challenges to his allegedly unconstitutional detention—
“cramming judicial review of those questions into the review of ” a final order of removal, assuming one ever issues, Jennings, 583 U.S. at 293—would do much for administrative efficiency. As mentioned earlier, and as the
Third Circuit acknowledged, immigration courts typically cannot hear constitutional claims of the kind Suri
brings. Khalil, 164 F.4th at 280-81. So during administrative removal proceedings—which, as far as the record reflects, are still pending in Suri’s case after more
than a year—there is no risk of duplicative proceedings
or conflicting orders on Suri’s constitutional challenge.
And while courts of appeals on a petition for review of a
final order of removal may hear such constitutional
claims, id., they cannot engage in the fact-finding that
claims of this kind will often require—and must instead
remand to a different district court or rely on some
other, unspecified special “mechanism” for factfinding,
60a
id. at 280. That is hardly a model of streamlined administrative efficiency. And § 1252(b)(9)’s text does not
command it. Rather, § 1252(b)(9) reasonably confines
“questions of law and fact” “arising from” removal to removal proceedings in immigration court and petitions
for review therefrom, and it leaves the doors of habeas
courts open to questions of law and fact arising from detention.
Finally, we disagree with the Third Circuit’s suggestion that barring Suri, Khalil, and others like them from
challenging their detention by way of habeas presents
no constitutional concerns because it merely “delay[s]”
judicial review (until review of final orders of removal)
and does not entirely “foreclose” it. Id. at 275-76, 279.
It is true, as the Third Circuit emphasized, that defendants must exhaust the direct appeal process before petitioning a district court in habeas. Id. at 275 (citing 28
U.S.C. § 2254(b)(1)(A)). But that is not the same thing
at all. A prisoner challenging his criminal conviction has
already been found guilty by a neutral tribunal, after a
process replete with constitutional safeguards and protections. Suri, by contrast, was picked up on the street
by masked ICE agents, and no court or other tribunal—
apart from the district court whose jurisdiction the Government rejects—has tested the alleged grounds for his
detention or heard his constitutional challenges. That
difference matters. See, e.g., Rasul, 542 U.S. at 476.
Moreover, we think the Third Circuit failed to give
the appropriate weight to the “delay” in question. Suri’s
claim is that his detention pending removal is itself unconstitutional. Contrary to the view of the Third Circuit, Khalil, 164 F.4th at 274, that is a “now or never”
injury; if it is not redressed until after removal proceed-
61a
ings, then it cannot be redressed at all. Put differently,
because Suri’s injury is “here-and-now,” and any ruling
on his detention claims during the petition for review
“would come too late to be meaningful,” he has the right
to have those detention claims heard now. Cf. Axon Enter., Inc. v. Fed. Trade Comm’n, 598 U.S. 175, 191-92
(2023); see Khalil, 164 F.4th at 286 (Freeman, J., dissenting) (“[T]o assess whether a claim is now-or-never,
we ask whether a court of appeals can meaningfully redress the alleged injury when that court reviews a final
order of removal. If not, the noncitizen need not wait for
the final order to seek redress.”).
3. 8 U.S.C. § 1252(a)(5)
The Government’s final provision is § 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.” The Government argues that
like § 1252(b)(9), § 1252(a)(5) “channel[s] all challenges
to removal proceedings into the federal circuit courts
under the petition for review process.” Opening Br. at
54. But for the same reasons stated in Section III.C.2.,
§ 1252(a)(5) does not bar the district court’s review of
Suri’s habeas petition. It only applies to an order of removal, and no order of removal is at issue here.
* * *
Accordingly, we reject the Government’s contention
that §§ 1252(g), (b)(9), or (a)(5) stripped the district court
of jurisdiction to hear Suri’s habeas petition.
62a
D. All Writs Act
Lastly, the district court ordered that Suri not “be
removed from the United States unless and until the
Court issues a contrary order.” Suri I, 2025 WL 914757,
at *1. It did so pursuant to its “authority to preserve its
jurisdiction under the All Writs Act.” Id. The Government contends that the district court’s use of the AWA
was “overbroad.” Opening Br. at 63. The Government
is wrong.
We review the district court’s entry of injunction under the AWA for abuse of discretion. See In re March,
988 F.2d 498, 500 (4th Cir. 1993).
The AWA provides that “all courts established by Act
of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. § 1651(a).
The Supreme Court “consistently has construed the All
Writs Act to authorize a federal court ‘to issue such commands . . . as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in the exercise of jurisdiction otherwise
obtained.’ ” Pa. Bureau of Corr
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.