Background
Mahmoud Khalil, a lawful permanent resident, was arrested without a warrant and detained for over one hundred days. He filed a habeas petition alleging violations of his First and Fifth Amendment rights. The panel majority held that a specific statute stripped the District Court of jurisdiction, requiring Khalil to wait for a final order of removal to raise his claims. A petition for rehearing en banc was filed but denied.
The court’s reasoning
The court denied the petition for rehearing en banc because a majority of the judges did not vote for it. The dissenting judges argued that the panel majority incorrectly interpreted the jurisdiction-stripping statute, ignored the presumption in favor of judicial review, and failed to apply precedents regarding now-or-never claims and detention-specific challenges.
The dissent
Federal courts have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.
Krause
What it means going forward
The denial of rehearing en banc leaves the panel’s decision in place, which restricts the ability of federal district courts to hear certain constitutional challenges to immigration detention before a final order of removal is issued.
Podcast (federal-narrative-summaries): Play in new window | Download