Habeas Shmabeas Says the Second Circuit (in a Footnote)

Habeas Shmabeas Says the Second Circuit (in a Footnote) In my most recent Verdict column, I offered some thoughts about a strange invitation for amicus briefing from the Board of Immigration Appeals (BIA). The BIA asked for views about whether it is bound by Supreme Court precedent "even in situations where an application of that precedent would require the Board to find a statute or regulation unconstitutional." As I explained in the column, of course the BIA is generally bound by Supreme Court precedent, but in certain circumstances that restriction can conflict with a prohibition on the BIA declaring acts of Congress unconstitutional. My column explained that there can be a conflict in cases involving as-applied challenges to federal statutes, depending on how broadly or narrowly one construes Supreme Court precedent. In order to explore what I took to be an interesting question, my Verdict column took the BIA amicus invitation at face value, but I cautioned at the end that one must be mindful that the BIA could well be acting in bad faith, as it is now packed with Trump appointees. In today's essay, I'll say a few words about the case that appears to have triggered the BIA invitation. The BIA invitation apparently arises out of removal proceedings involving Mohsen Mahdawi, a U.S. permanent resident who argues that Secretary of State Marco Rubio determined Mahdawi's continued presence in the U.S. was contrary to the country's foreign policy interests as retaliation against Mahdawi for his pro-Palestinian speech while studying for a master's degree at Columbia University. My best guess is that the BIA wishes to reject Mahdawi's First Amendment argument on the ground that accepting it would require it to declare a federal law or regulation unconstitutional, notwithstanding Supreme Court precedent limiting the government's power to engage in retaliation for free speech. Because I regard the Trump/Rubio policy of removing lawfully present non-citizens in retaliation for free speech as unconstitutional, I would want the BIA to conclude with respect to Mahdawi's case that it is indeed bound by Supreme Court precedents regarding retaliation for free speech. I thus considered accepting the BIA's invitation and filing a short amicus brief to that effect. However, as I noted in the column, the stakes of the general question the BIA posed are mixed: If the BIA seeks to avoid honoring immigrants’ statutory rights (and thus to defy Congress), it could broadly favor its obligation to follow precedent and downplay the prohibition on finding laws unconstitutional; it would then rule that it is merely applying binding precedent in refusing to honor statutory rights it deems unconstitutional. Conversely, if the BIA seeks to defy judicial precedent recognizing constitutional rights that override some statute, it could broadly favor the prohibition on declaring laws unconstitutional and announce that the relevant judicial precedents are distinguishable from any case before it. Accordingly, I'm not going to file with the BIA, although any lawyers reading this essay or the Verdict column are welcome to borrow any parts of my analysis they might find useful. The Verdict column concludes by observing that any ruling by the BIA on the question it posed in its amicus invitation would be reviewable by the courts. But in the meantime, the courts--that is, a federal district court and the U.S. Court of Appeals for the Second Circuit--have already been involved. Upon his arrest, Mahdawi filed a successful habeas petition and was released from custody after spending 16 days in detention in the spring of 2025. The government appealed that release order, and last week the Second Circuit held that the habeas petition was improper. The court said that 28 U.S.C. § 1252(b)(9) makes appellate review of a final order of removal the exclusive means by which Mahdawi can challenge the Rubio determination's constitutionality in federal court. In so ruling, it agreed with the Third Circuit's decision in Mahmoud Khalil's case. Then, two days after the Second Circuit decision in Mahdawi's case, a 2-1 panel of the Fourth Circuit reached a contrary decision in Suri v. Trump. Because there is now a clear Circuit split, a Supreme Court cert grant in one of these cases is reasonably likely. For now, I'll focus on the Mahdawi case, but the balance of this essay is relevant to the common issue in all of these cases. In light of the text of § 1252(b)(9) alone, the holding of the Second Circuit (and of the Third Circuit) is reasonable. However, Mahdawi also invoked the Supreme Court's 2018 decision in Jennings v. Rodriguez, which held (en route to a decision unfavorable to the immigrant respondents) that § 1252(b)(9) should not be read to block federal court adjudication of every case in which an attempt to remove a noncitizen is the but-for cause of the challenge. The Second Circuit distinguished Jennings, concluding that the Rubio determination in Mahdawi's case was more closely intertwined with his habeas petition than the claims in Jennings. That too is plausible, although a closer question. The question is closer still, and the Second Circuit strikes me as incorrect, in light of a further point Mahdawi raised in a footnote that the Second Circuit in turn addressed in its own footnote: relegating detainees to raising their constitutional claims only by means of a challenge to a final order of removal could violate the Suspension Clause; thus, the argument goes, the court should have invoked constitutional avoidance to read § 1252(b)(9) as not to preclude a habeas challenge to detention pending removal. To my mind, this objection should have been persuasive. The Second Circuit nonetheless rejected the Suspension Clause avoidance argument. That was partly because the court thought that the footnote in Mahdawi's brief was inadequate to raise the issue for appellate review, but the court also opined on the merits of the argument. It denied that there is "any ambiguity in § 1252(b)(9)" that could be construed to avoid the constitutional question. That strikes me as wrong, given that the Jennings Court has already said that § 1252(b)(9) does not apply to every conceivable case. The no-ambiguity reading is also belied by the fact that the Fourth Circuit in Suri thought that the best reading of § 1252(b)(9) does allow habeas actions challenging detention on First Amendment grounds. The dissent in Suri said that an avoidance argument rooted in the Suspension Clause was "[l]urking in the majority's analysis," but the Suri majority did not expressly rely on constitutional avoidance or the Suspension Clause. If two appeals courts can find that the same language means different things, that bespeaks ambiguity. Meanwhile, the Second Circuit approach is at odds with the practice of the Supreme Court to find ambiguity in seemingly categorical language when Suspension Clause issues are raised. For example, in INS v. St. Cyr, the Court applied constitutional avoidance to allow a habeas petition by a noncitizen challenging removal notwithstanding statutory language that seemed to preclude it, prompting a dissent by Justice Scalia accusing the majority of "fabricat[ing] a superclear statement, 'magic words' requirement." Section 1252(b)(9) contains at least as much ambiguity as the statute at issue in St. Cyr. Echoing the Third Circuit and presaging the Fourth Circuit dissent, the Second Circuit's footnote offered an additional reason for rejecting the Suspension Clause argument. Even where there is a constitutional right to habeas under the Suspension Clause, the court noted, Congress may provide an adequate substitute for habeas. Mahdawi, the court went on, had not met his burden of establishing that the opportunity to file a petition for review of a final order of removal is an inadequate substitute. One might think that makes sense in a case like Mahdawi's, because he is not currently in detention. He will be able to present the argument that his detention and removal violate the First Amendment in his petition for review of his final removal order. That petition is currently pending in the First Circuit. Mahdawi was originally detained in Vermont, which is why his habeas case ended up in the Second Circuit. His petition for review is in the First Circuit because the immigration proceeding was in Massachusetts. There might be reason to doubt that it can proceed now, given that there may still be administrative proceedings (as evidenced by the BIA invitation of amicus briefs), but those precise details need not concern us now. The important point is that whenever there is a final removal order, Mahdawi will have an opportunity to challenge its constitutionality in federal court. That, the Second Circuit, Third Circuit, and the dissent in the Fourth Circuit all say is an adequate substitute for habeas. But they're all pretty plainly wrong about that. Yes, Mahdawi is not currently in custody, but if the Second Circuit is right, then even when he was in custody, he should have had no ability to file habeas or its equivalent to challenge the lawfulness of the custody. And under the logic of the Second Circuit (and the Third and the dissent in the Fourth), that would be true whether the detained immigrant remained in custody pending removal for 16 days, 16 weeks, 16 months, or 16 years. Finally, no one contends that process within the executive branch is an adequate substitute for habeas. The Second Circuit, the Third Circuit, and the dissenting judge in the Fourth Circuit all contend that the petition-for-review process is the adequate substitute. But because that comes only after a final order of removal, it inevitably delays consideration of a petition for months or years after the initiation of proceedings. Immigrants detained for any substantial amount of time during that period have no ability to challenge their detention as such, even where, as in these cases, they present very strong constitutional objections. That's hardly an adequate substitute for habeas. --Michael C. Dorf