8 U.S.C. § 1252(b)(9) Channels Speech-Based “Retaliatory Removal/Detention” Habeas Claims to the Petition-for-Review Process (and Merits Panels May Revisit Motions-Panel Jurisdiction Views)

3.1. Precedents Cited

A. Immigration power backdrop

• United States v. Valenzuela-Bernal, Reno v. Flores, and Fiallo v. Bell were invoked for the familiar proposition that immigration regulation is principally entrusted to the political branches. Their role here was contextual: the panel framed § 1252(b)(9) as a congressional design choice entitled to implementation by courts, not judicial rebalancing.

B. The zipper clause’s pedigree and scope

• Reno v. Am.-Arab Anti-Discrimination Comm. (AADC) supplied the Supreme Court’s characterization of § 1252(b)(9) as an “unmistakable ‘zipper’ clause” and “general jurisdictional limitation,” anchoring the panel’s understanding that Congress intended consolidation and channeling rather than parallel district-court litigation.
• Monsalvo v. Bondi was cited for the proposition that § 1252 makes PFRs the exclusive means for judicial review of “all questions of law,” reinforcing exclusivity and channeling as the interpretive baseline.
• Second Circuit and related interpretive support came from Calcano-Martinez v. Immigr. & Naturalization Serv., Xiao Ji Chen v. U.S. Dep't of Just., and the Third Circuit’s explanation in Bonhometre v. Gonzales, used to show Congress’s intent to streamline and avoid “piecemeal review.”
• The court also emphasized the breadth of “any” via Patel v. Garland (quoting Babb v. Wilkie), using ordinary textualism to resist narrowing constructions that would carve out constitutional “application” claims tied to removal.

C. Distinguishing “collateral detention” claims from “basis-for-removal” claims

• Jennings v. Rodriguez was the doctrinal fulcrum. The panel adopted the plurality’s “arising from” approach and its cautionary hypotheticals (assault/tort scenarios) to define the outer boundary of § 1252(b)(9). But it stressed that Jennings involved detainees who were not challenging the decision to seek removal or the process determining removability; they sought bail hearings for prolonged detention.
• By contrast, the panel relied heavily on Khalil v. President, United States, which held that claims challenging the government’s “very basis” for removal (and thus detention) are channeled by § 1252(b)(9). Khalil provided the closest factual/claims analogue and an articulated anti-piecemeal rationale the Second Circuit essentially adopted.
• The Third Circuit’s E.O.H.C. v. Sec'y U.S. Dep't of Homeland Sec. appeared in the court’s discussion of “now-or-never” arguments. While E.O.H.C. recognized circumstances where meaningful later review may be unavailable, the panel—again following Khalil v. President, United States—rejected “irreparable-now” timing as sufficient where the legal question is bound up with removability.
• The First Circuit’s approach to “inextricably intertwined” channeling was referenced through Aguilar v. U.S. Immigr. & Customs Enf't Div., supporting the notion that rights-to-counsel and similar claims can be channeled when they are entwined with the removal proceeding.

D. “Artful pleading” and indirect challenges

• Delgado v. Quarantillo (and the Ninth Circuit’s Morales-Izquierdo v. Dep't of Homeland Sec.) supplied the “substance of the relief” principle: courts look past labels to whether the requested relief functionally attacks removal. That logic supported treating Mahdawi’s “detention” framing as an indirect attack on removal.
• Consistent reasoning from other circuits—Gonzalez-Alarcon v. Macias and Martinez v. Napolitano—reinforced that when release is sought on the theory that a removal order (or the basis for removal) is unlawful, the suit is barred by the INA’s channeling regime.

E. Whether § 1252(b)(9) applies only after a final order

• Mahdawi drew on the dissent in Jennings v. Rodriguez and the prefatory language of § 1252(b). The panel rejected this and relied on:
  • Lamar, Archer & Cofrin, LLP v. Appling to construe “with respect to” broadly (as broadening, not narrowing), and
  • the concurrence in Jennings v. Rodriguez (Thomas, J.) to show that limiting § 1252(b)(9) to only final orders would improperly read “or such questions of law or fact” out of the statute.
  • Marks v. United States was used to explain why the Jennings plurality—not the dissent—governs the controlling approach.

F. Meaningful review, record development, and tools for factfinding

• The panel answered the “meaningful review” objection by emphasizing that constitutional challenges can be raised in the PFR process, citing Argueta v. Holder (and § 1252(a)(2)(D)’s preservation of review for “constitutional claims or questions of law”).
• For record-development concerns, the panel relied on Khalil v. President, United States and invoked mechanisms such as Hobbs Act transfer/remand procedures, with supporting examples from Gallo-Alvarez v. Ashcroft and a concurrence in Reno v. Am.-Arab Anti-Discrimination Comm. (AADC).
• On possible Suspension Clause concerns, the panel cited Boumediene v. Bush and Iasu v. Smith to underscore that Mahdawi did not carry a developed burden showing PFR is an inadequate substitute for habeas, and it treated the argument as waived because it was relegated to a footnote.

G. Stays, “law of the case,” and merits-panel freedom to revisit motions-panel rulings

• The panel’s refusal to treat the stay decision as binding relied on Christianson v. Colt Indus. Operating Corp. (law-of-the-case framing), and Second Circuit authority emphasizing discretion and the special imperative to reconsider jurisdiction: Rezzonico v. H & R Block, Inc., Hassoun v. Searls, and Paskar v. U.S. Dep't of Transp..
• Supporting out-of-circuit authority included Johnson v. Burken and United States v. Houser, while United States v. Hatter and United States v. U.S. Smelting Refin. & Mining Co. were cited for the proposition that “law of the case” presumes merits-type resolution and typically requires a final judgment to apply with full force.
• The panel also clarified confusion created by dicta in Lora v. O'Heaney and references in N.Y. Pet Welfare Ass'n v. City of New York, tracing the “cogent or compelling reasons” language back to final appellate decisions via Doe v. N.Y.C. Dep't of Soc. Servs. and United States v. Fernandez.

H. Administrative alternatives to immediate habeas release

• The panel pointed to Matter of Joseph (and Supreme Court discussion in Demore v. Kim and Nielsen v. Preap) as an administrative mechanism for contesting inclusion in a mandatory detention category and potentially obtaining a bond hearing if the government is “substantially unlikely” to establish the charge.
• It further cited Matter of Salas Pena for the bond standard once a detainee is eligible for bond consideration.
• As a backstop against unreasonably prolonged detention, the panel cited Velasco Lopez v. Decker for the availability of habeas to challenge detention length (as distinct from challenging the basis for removal).

I. The concurrence’s additional jurisdictional and procedural barriers

• Judge Menashi’s concurrence invoked Ozturk v. Hyde (Menashi, J., concurring) to argue that § 1252(g) and § 1252(a)(2)(B) independently bar review. It also argued that even a genuine detention-only challenge would run into § 1226(e), relying on Demore v. Kim, Jennings v. Rodriguez, Parra v. Perryman, and criticizing reliance on Singh v. Holder and Gutierrez-Chavez v. INS.
• On Suspension Clause history and substitutes, the concurrence discussed DHS v. Thuraissigiam, INS v. St. Cyr, and Swain v. Pressley (by analogy through its reasoning).
• On permissible habeas categories and limits, it referenced Zadvydas v. Davis, Ziglar v. Abbasi, Wilkinson v. Dotson, and Munaf v. Geren, and (as an example of “indefinite” detention theory) Black v. Almodovar.
• On exhaustion, it relied on Second Circuit administrative-exhaustion doctrine: Howell v. INS (quoting Guitard v. U.S. Sec'y of the Navy and Kennedy v. Empire Blue Cross & Blue Shield), and the Ninth Circuit approach in Leonardo v. Crawford, with district-court examples such as Monestime v. Reilly.

3.2. Legal Reasoning

A. The operative statutory test: do the “questions of law and fact” “arise from” removal actions?

The court treated § 1252(b)(9) as a jurisdictional channeling rule keyed to the source of the questions presented, not to how the petitioner labels the lawsuit. Because Mahdawi asked the district court to (i) vacate the Rubio Determination and (ii) set aside an alleged speech-targeting removal policy—while characterizing his detention as retaliatory—the panel found the questions necessarily “arising from” actions taken to remove him. The “detention” claim did not stand apart from removability; it was the same dispute in different packaging.

B. Rejecting a “final-order-only” reading

Mahdawi argued § 1252(b)(9) applies only after a final removal order issues, relying on the prefatory “with respect to review of an order of removal” language. The panel rejected this as inconsistent with the text that separately covers “such questions of law or fact,” and as inconsistent with the analytical structure of Jennings v. Rodriguez, which only makes sense if § 1252(b)(9) can operate during ongoing proceedings.

C. Jennings as a limiting principle—not an escape hatch

The panel read Jennings to prevent absurd results (forcing unrelated injury claims into PFR review), but not to authorize district-court habeas when the petitioner challenges the government’s basis for removal. The key dividing line is functional: is the petitioner challenging only the conditions/length/incidents of detention (collateral), or challenging the decision to remove (and thus to detain) (channeled)?

D. “Now-or-never” timing does not defeat the channeling scheme

The panel’s answer to Mahdawi’s urgency argument was structural: Congress chose to delay federal-court review of removal-tethered legal questions until the administrative process and PFR posture, and allowing immediate habeas on those same questions would recreate the “piecemeal litigation” Congress sought to eliminate. Timing urgency matters only if the questions are not meaningfully reviewable later and are not bound up with removal.

E. “Meaningful review” exists in the PFR system, and record-development tools remain available

The panel emphasized that constitutional claims can be reviewed in PFR proceedings and that immigration proceedings can generate an evidentiary record. Where additional factfinding is constitutionally necessary, the court aligned with Khalil v. President, United States in concluding that courts of appeals have tools to supplement the record (including remand/transfer mechanisms), undermining the argument that channeling necessarily deprives petitioners of a fair opportunity to litigate.

F. Practical alternative: administrative custody review (Joseph hearing) and unreasonable-length habeas

The panel’s decision is not framed as leaving detainees without any relief pathway. It identified (i) a Matter of Joseph hearing as a route to contest inclusion in a detention category and potentially obtain bond consideration, and (ii) the Second Circuit’s unreasonable-length detention doctrine (Velasco Lopez v. Decker) as a separate, detention-specific habeas avenue once detention becomes unreasonably prolonged—provided the claim does not simply restate the unlawfulness of removal itself.

G. Reconsidering the published stay decision

The panel carefully separated predictive stay analysis (likelihood of success) from merits adjudication. It concluded motions-panel determinations—especially on jurisdiction—do not bind merits panels, both because they are interlocutory and because federal courts must vigilantly reassess subject-matter jurisdiction.

3.3. Impact

A. For immigration habeas in the Second Circuit

• Channeling principle reinforced and specified: A habeas petition alleging that detention is unconstitutional because the removal effort is unconstitutional (e.g., retaliatory targeting, invalid removability determination, unlawful policy animating the proceeding) is barred by § 1252(b)(9) and must be pursued through the administrative process and PFR.
• Jennings narrowed to its collateral-detention lane: The decision limits Jennings-based arguments to claims truly collateral to removability (e.g., bail-hearing entitlement, detention conditions, unrelated injuries), not claims that require adjudicating whether the government’s basis for removal is unlawful.
• “Now-or-never” reframed: Irreparable time pressure is not enough; the relevant question is whether the legal/factual issues are bound up with removal. This will deter emergency habeas filings that ask district courts to decide, at the outset, constitutional challenges that go to removability itself.

B. For First Amendment/speech-based selective-enforcement theories

• Forum shift: Speech-based challenges to being targeted for removal are not extinguished, but they are redirected: the principal federal adjudication must occur in PFR review (after administrative exhaustion), rather than in immediate district-court habeas seeking release and vacatur of key removal predicates.
• Remedy sequencing: The decision makes release pending litigation harder to obtain via district-court habeas when the asserted constitutional defect is the removal effort itself. Petitioners may need to pursue administrative custody mechanisms and reserve constitutional merits for the PFR track.

C. Institutional and procedural effects

• Stay litigation precedent limited: Published motions-panel orders denying stays—even when they opine on jurisdiction—will carry persuasive weight but not binding effect; merits panels retain authority (and arguably duty) to revisit jurisdiction.
• Cross-circuit convergence: By aligning with Khalil v. President, United States, the Second Circuit strengthens a developing consensus that § 1252(b)(9) blocks district-court litigation of removal-tethered constitutional attacks during ongoing proceedings.