The Third Circuit's 6-5 en banc denial in Mahmoud Khalil's deportation case sends the First Amendment immigration dispute toward the Supreme Court.
The full U.S. Court of Appeals for the Third Circuit voted 6-5 to deny en banc rehearing in the deportation case of Mahmoud Khalil, a Columbia University graduate and lawful permanent resident detained by U.S. Immigration and Customs Enforcement for his pro-Palestinian advocacy [1]. The ACLU, which represents Khalil alongside the Center for Constitutional Rights, announced immediately after the denial that it will petition the Supreme Court for review [2].
Khalil was detained by ICE in connection with his activism and has been held while removal proceedings advance in immigration court. The underlying dispute centers on whether federal district courts have jurisdiction to adjudicate First Amendment challenges to immigration detention before those administrative proceedings run their course [1]. The earlier Third Circuit panel ruling allowed the government's immigration case to proceed without requiring a district court to first resolve Khalil's constitutional claims, and the en banc court's 6-5 vote to deny rehearing leaves that panel decision intact [2].
The jurisdictional question carries substantial practical weight. If courts must wait until administrative proceedings conclude before entertaining constitutional challenges, the government can effectively insulate politically sensitive deportations from early judicial scrutiny for months or years [2]. The five-judge dissent within the en banc court signals that the question is genuinely contested among the circuit's own judges, a factor that may strengthen the case for Supreme Court certiorari [1]. The ACLU has framed the case as a direct test of whether the First Amendment imposes any meaningful check on the executive branch's use of immigration enforcement against political speech [2].
Brett Max Kaufman and Baher Azmy are among the counsel leading Khalil's legal team [2]. The government has maintained that its removal grounds are lawful and that standard immigration procedures, not emergency federal court intervention, are the proper vehicle for resolving the dispute. Khalil's team disputes that characterization and argues that allowing removal to proceed without prior constitutional review would render any eventual vindication meaningless [1].
The ACLU's certiorari petition is expected in the coming weeks [2]. The Supreme Court will decide whether to take up the case, a decision that could determine the scope of judicial review available to noncitizens who face deportation proceedings they contend are driven by protected political expression [2].