Law360 (August 28, 2026, 5:04 PM EDT) -- An emerging circuit split on whether district courts can hear habeas claims from noncitizens who say the government wants to deport them for their political speech raises questions about how quickly they can challenge the constitutionality of their detention before an independent judge.

The Second and Third circuits have sided with the Trump administration in the cases of Palestinian green-card holders Mohsen Mahdawi and Mahmoud Khalil, holding that any constitutional challenge to their detention must be funneled through the petition-for-review process at the conclusion of immigration proceedings.

The Fourth Circuit, meanwhile, has ruled against the government in the case of Badar Khan Suri, holding that district courts can weigh constitutional challenges to immigration detention separately in habeas cases, before removal proceedings conclude.

Khalil said he will seek U.S. Supreme Court review after the Third Circuit denied his petition for en banc review, while Mahdawi has indicated he will seek en banc review from the Second Circuit. The split may ultimately be settled by the Supreme Court, which in 2018 issued a ruling that muddled district courts' jurisdiction. In the meantime, though, experts say the stakes are high for those detained under Section 237(a)(4)(C)(i) of the Immigration and Nationality Act, which gives the secretary of state sole discretion to initiate removal proceedings against any noncitizen the secretary reasonably believes poses "serious adverse foreign policy consequences" for the U.S.

Mahdawi, Khalil and Suri remain free for now as a result of their habeas cases, but if the government prevails, noncitizens detained under the provision of the INA could face prolonged detention while their immigration cases play out first in immigration court, then at the Board of Immigration Appeals, with a final stop in the circuit courts, where any constitutional challenges to detention would be resolved.

That process could take months at a minimum, and could drag on for several years, according to UCLA Law professor Ahilan Arulanantham.

"If the government can detain you for your speech, and you don't get to challenge that until you've gone all the way through immigration court and the Board of Immigration Appeals, and a decision at the court of appeals, then the reality is they'll be able to imprison you for at least a couple of years in most cases before any federal court has the power to address whether that's consistent with the First Amendment," Arulanantham said.

Secretary of State Marco Rubio exercised his authority in a number of high-profile cases last year involving students like Khalil, Mahdawi and Suri over their pro-Palestinian activism, but used that authority in April to revoke the green card of the son, daughter-in-law and grandchild of Masoumeh Ebtekar, who at 19 years old served as a spokeswoman for the students who seized the U.S. Embassy in Tehran in 1979 and took 52 Americans hostage.

Ebtekar's son, Eissa Hashemi, his wife Maryam Tahmasebi and their son, identified in court filings as S.M.H., have been detained in Texas ever since without the option for a bond hearing. In their habeas petition, the family alleges that they were subjected to an online harassment campaign, and ultimately targeted for removal and detained because of their Iranian origin, familial associations and their decision to refrain from denouncing his mother's acts, in violation of their First Amendment rights.

In January, an online petition popped up urging the Trump administration to deport Hashemi, citing his refusal to publicly denounce "his mother's actions or legacy."

The petition to deport Hashemi also urged the Chicago School of Professional Psychology, where Hashemi taught, to cut ties with him, arguing that "academic institutions must not provide legitimacy, platforms, or employment to individuals who are directly connected to oppressive regimes responsible for crimes against humanity."

More than 140,000 people signed the petition.

In an April 11 statement announcing the termination of their green cards, Rubio said "the Trump administration will never allow America to become a home for foreign nationals tied to anti-American terrorist regimes."

In a July 27 filing, attorneys for the family urged the district court to rule in line with the Fourth Circuit in Suri's case, emphasizing that the Supreme Court has consistently "balked" at government attempts to use removal-focused jurisdiction-stripping provisions of the INA to block challenges to immigration detention.

The Fourth Circuit correctly found that challenges to detention are distinct from removal challenges, the filing said.

U.S. District Judge Xavier Rodriguez, who is presiding over the family's habeas case, has not ruled on whether the court has jurisdiction yet.

But on Aug. 18, Judge Rodriguez denied the family's motion for release on bond, deeming their request "a motion to expedite."

"This court has received hundreds of habeas corpus petitions in recent months. This petition will be assessed, and the court will issue a ruling, in due course," Judge Rodriguez said.

According to the family's attorneys, Hashemi was granted voluntary departure, which the July 27 filing said would ordinarily end his removal proceedings and render the jurisdictional bars identified by the Second and Third circuits in Mahdawi and Khalil's cases inapplicable. The government, meanwhile, denied a request from Tahmasebi and S.M.H. to voluntarily depart from the U.S. to Turkey, according to court filings.

A State Department spokesperson declined to address a series of questions from Law360 about the free speech implications of requiring noncitizens to wait until the petition for review process to challenge the constitutionality of their detention, saying the agency generally does not comment on ongoing litigation.

"The Trump administration is protecting our nation and its citizens by upholding the highest standards of national security and public safety through our immigration process," the spokesperson said. 

The jurisdictional dispute in these cases largely traces back to the Supreme Court's 2018 decision in Jennings v. Rodriguez , which Arulanantham argued twice on behalf of detained immigrants who were challenging prolonged detention without bond hearings.

Jennings primarily concerned whether detained immigrants are entitled to periodic bond hearings during their detention, but prior to answering that question, the justices had to confront the same jurisdictional issue currently dividing the circuit courts in the foreign policy removal cases.

In a highly fractured opinion, six justices ultimately concluded that Section 1252(b)(9) of the INA did not strip the courts of jurisdiction over the detainees' claims, which the justices said could be brought immediately in district court in habeas cases rather than going through the petition-for-review process.

However, there was no five-justice majority united behind a single rationale on the jurisdictional question in Jennings, which Arulanantham said led the Third Circuit in Khalil's case to treat Justice Samuel Alito's three-justice plurality on that issue as controlling.

The plurality determined that the detention claims were not sufficiently tied to the removal process for the jurisdictional bar to kick in, but the Third Circuit in Khalil's case said the jurisdictional bar was triggered because his constitutional challenge to his detention was too closely intertwined with the underlying removal proceedings.

Arulanantham said the Third Circuit "egregiously" misanalyzed the Jennings v. Rodriguez decision, and treated it as having wiped out earlier precedent allowing habeas challenges to immigration detention.

But the detainees prevailed on the jurisdictional question in Jennings, Arulanantham noted, with the justices expressly declining to decide how Section 1252(b)(9) might apply in other circumstances.

"I think their reading of what happened in Rodriguez … is completely out of left field," Arulanantham said of the Third Circuit's reasoning.

The distinction could determine how long the Hashemi family has to wait for a federal court to consider their constitutional claims.

In the meantime, the family's ongoing detention while their habeas case proceeds underscores the plight that detained immigrants are facing, well before they would even get to the petition-for-review process, according to Columbia Law School professor Elora Mukherjee, who has represented immigration lawyers and professors who filed an amicus brief in support of Khalil in the Third Circuit.

Those forced to wait to challenge their detention in circuit court at the end of removal proceedings likely won't make it that far, she said.

"Overwhelmingly, non-citizens who are in detention do not reach the petition for review stage because immigration detention conditions are deplorable in many detention centers around the country. Non-citizens are giving up on viable cases, and they're choosing to 'self deport' or accept their removal orders instead of fighting," Mukherjee said.

A June U.S. Government Accountability Office report found that detainees at Camp East Montana in El Paso, Texas — the nation's largest immigration detention center — have experienced inadequate recreation space, gaps in medical care and unsanitary conditions that could potentially lead to disease, inhumane treatment and other unsafe conditions. 

Those who persevere through such conditions may face other obstacles if required to go through the petition-for-review process — an immigration court system that the Trump administration has reshaped to limit immigration relief and release from detention on bond.

Asylum grant rates plunged from 38.2% in August 2024 to just 2% as of February, according to statistics from the Transactional Records Access Clearinghouse.

And since January 2025, BIA decisions have overwhelmingly ruled against the immigrant, according to a February report from the National Immigration Project, which found that only one of 77 board decisions between Jan. 31, 2025, and Feb. 13, 2026, was favorable to the noncitizen.

In July 2025, acting ICE Director Todd Lyons issued a directive instructing ICE officers to stop referring unlawful immigrants for bond hearings. That essentially made anyone who entered the U.S. unlawfully subject to mandatory detention until their immigration cases conclude, no matter how long they've been in the U.S.

The Board of Immigration Appeals bolstered Lyons' directive in In the Matter of Yajure Hurtado, holding that same month that immigration judges lack authority to consider bond requests or grant bond to noncitizens who entered the U.S. without admission.

Cyrus D. Mehta of Cyrus D. Mehta & Partners PLLC, who is a member of Mahdawi's legal team, said this renders the immigration court system ineffective for seeking release on bond, which he said means that any detained noncitizen who wants to challenge the constitutionality of their detention could be made to wait "a year or two, or longer" if forced through the petition-for-review process.

"Every day that you're detained, if there's a constitutional violation, is very problematic," Mehta said.

In addition to the Fifth Circuit, where the Iranian family is detained, the question of whether district courts have jurisdiction over habeas claims from individuals detained under Section 237(a)(4)(C)(i) is percolating up in at least one other circuit.

In June, U.S. District Judge James Patrick Hanlon in the Southern District of Indiana, which sits in the Seventh Circuit, ordered ICE to release Salah Salem Sarsour, a Palestinian green-card holder of 33 years.

The Trump administration arrested Sarsour in March under Rubio's authority and initiated removal proceedings against him, which Sarsour claimed in a habeas petition was retaliation for his pro-Palestinian speech and advocacy in relation to his status as a board member for American Muslims for Palestine.

Judge Hanlon said delaying review of the constitutionality of Sarsour's confinement could negate the very purpose of habeas to allow detained individuals to challenge the legality of their detention before a neutral judge, and would leave him suffering the very constitutional injury he was seeking relief from.

The Trump administration appealed Judge Hanlon's decision to the Seventh Circuit on Aug. 18.

Arulanantham said allowing the government to detain noncitizens for months or years before a federal court reviews whether their detention complies with the Constitution could send a powerful message to noncitizens engaged in political activism.

"If the government not only can go after them, but they can keep them locked up for years before they have to explain why to the court, then the chilling effect will be truly profound," Arulanantham said.

--Additional reporting by Elaine Briseño. Editing by Kelly Duncan.

Update: This article has been updated with a comment from the State Department.
Correction: A previous version of this article misstated who Cyrus D. Mehta represents. The error has been corrected.

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