Appointments Clause Challenges Do Not Expand Habeas Review of Issued Expedited Removal Orders

1. Introduction

In Alawieh v. Mullin, the First Circuit addressed whether a constitutional challenge to the authority of immigration officers could overcome Congress’s restrictions on judicial review of expedited removal orders. The court held that an allegation that officers were improperly appointed does not transform an admittedly issued removal order into an order that was never issued. The distinction between an order’s existence and its legal validity controlled the outcome.

The appellant, Dr. Rasha Alawieh, is a Lebanese citizen who had worked as a transplant nephrologist at Brown University Health and taught at Brown University’s medical school. After completing medical fellowships in the United States, she obtained an employer-sponsored H-1B visa in June 2024. The respondents included Department of Homeland Security Secretary Markwayne Mullin, other federal officials, and Customs and Border Protection officers involved in her inspection and removal. Yara Chehab appeared in the proceedings as Alawieh’s next friend.

Alawieh’s case raised serious questions about the authority to order removal, the availability of habeas corpus, and the consequences of cancellation of an employment-based visa. The appellate decision, however, resolved only the threshold jurisdictional question. It did not decide whether the officers’ appointments were constitutional or whether Alawieh’s removal and visa cancellation were substantively lawful.

2. Factual Background and Procedural History

Inspection and removal

After visiting family in Lebanon, Alawieh arrived at Boston Logan Airport on March 13, 2025. CBP inspected her as an applicant for admission, searched her cellphone, questioned her, and detained her overnight.

The search revealed photographs and videos involving Hassan Nasrallah, Hezbollah fighters and martyrs, and Ayatollah Ali Khamenei. Some material had recently been deleted. Hezbollah has been designated by the United States as a foreign terrorist organization since 1997. Alawieh denied supporting Hezbollah and explained that her interest in Nasrallah and Khamenei concerned their religious significance to her as a Shia Muslim. She also explained her attendance at a commemoration of Nasrallah’s death and described earlier travel to several countries as religious pilgrimages.

CBP concluded that Alawieh was inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I), stating that her true intentions could not be determined because of information discovered during inspection. She said that she did not fear persecution if returned to Lebanon. On March 14, an officer served her with a completed Notice and Order of Expedited Removal, which she signed. Her H-1B visa was revoked under 22 C.F.R. § 41.122(e)(2), and the removal resulted in a five-year bar on applying for readmission under 8 U.S.C. § 1182(a)(9)(A)(i).

These circumstances explain the administrative decision and the litigation. They were not findings by the appellate court that Alawieh supported terrorism, misrepresented her intentions, or was properly classified as inadmissible.

The habeas proceedings

An original habeas petition was filed on Alawieh’s behalf approximately one hour before her departure flight. The district court promptly prohibited her transfer outside Massachusetts without forty-eight hours’ notice. It subsequently found that CBP had not learned of the order before her departure and therefore had not violated it by placing her on the flight.

After her removal, Alawieh filed an amended petition on May 5, 2025. She requested:

• A declaration that the expedited removal order violated the Appointments Clause and Suspension Clause;
• An order placing her in removal proceedings before an immigration judge;
• A pre-deprivation hearing concerning immigration detention;
• A declaration that revocation of her H-1B visa violated the Administrative Procedure Act;
• Reinstatement of her visa and an award of attorneys’ fees.

In Alawieh v. Tweedie, 808 F. Supp. 3d 205 (D. Mass. 2025), the district court dismissed the amended petition for lack of jurisdiction. It separately dismissed the original petition as moot. The appeal concerned the dismissal of the amended petition.

3. Summary of the Opinion

The First Circuit affirmed the jurisdictional dismissal. Its central conclusions were:

1. Expedited removal restrictions applied. Alawieh was an applicant for admission subject to inspection and the expedited removal framework.
2. The general jurisdictional bar covered her challenge. Section 1252(a)(2)(A)(i) restricts review of individual determinations and claims arising from or relating to expedited removal orders.
3. The narrow habeas exception did not authorize review. Under §§ 1252(e)(2)(B) and (e)(5), courts may determine whether an order was actually issued and whether it concerns the petitioner—not whether the order is legally valid.
4. The Appointments Clause theory challenged validity, not issuance. Alawieh did not dispute that the order had been completed, delivered to her, and signed by her.
5. Other questions remained unresolved. The court did not decide the merits of the appointments challenge, whether the amended petition was moot, or the government’s alternative systemic-challenge argument. Alawieh did not pursue her Suspension Clause argument on appeal.

The judgment therefore left the administrative action undisturbed because judicial review was unavailable in this proceeding, not because the court approved the underlying removal decision.

4. Statutory Framework

The opinion turns on the interaction between Congress’s expedited removal procedure and its unusually narrow provision for habeas review.

Only the second habeas category—whether Alawieh had been ordered removed—was relevant to her appellate theory. She did not claim United States citizenship, lawful permanent residence, refugee admission, or an asylum grant.

5. Legal Reasoning

A. An allegedly invalid order remains an issued order

Alawieh argued that the CBP officers who ordered her removal had not been appointed consistently with the Appointments Clause. On her theory, they lacked constitutional authority to act, rendering the removal order void ab initio—invalid from its inception. She therefore characterized her claim as asking whether an order had legally issued within § 1252(e)(2)(B).

The court rejected that characterization. Section 1252(e)(5) expressly defines the permitted inquiry into whether a petitioner “was ordered removed.” That inquiry concerns whether an order actually exists and identifies the petitioner, not whether the official issuing it acted lawfully.

The completed and delivered order was undisputed. Alawieh’s challenge consequently required examination of the legal authority behind an existing order. Calling the order void could not convert that merits question into the narrow issuance inquiry Congress authorized.

B. Constitutional characterization did not supply the asserted jurisdiction

The court did not hold that Appointments Clause objections are unimportant or necessarily incorrect. It held that this particular statutory exception did not authorize adjudication of Alawieh’s objection. A constitutional argument about an officer’s authority remained a challenge to the order’s validity.

The reasoning is important because it prevents litigants from expanding § 1252(e)(2)(B) simply by describing an alleged legal defect as sufficiently fundamental to erase the order’s existence. At the same time, the opinion should not be read as deciding that every conceivable constitutional challenge to immigration action is barred in every procedural setting.

C. Jurisdiction, mootness, and constitutional entitlement to habeas are separate questions

Alawieh relied on precedent recognizing that consequences continuing after release can preserve a habeas controversy. The court explained that a continuing controversy does not itself establish statutory jurisdiction. Whether a case remains live and whether Congress has authorized a court to hear it are distinct inquiries.

The court also separated the district court’s Suspension Clause analysis from the statutory issue on appeal. Because Alawieh did not pursue her Suspension Clause challenge, the appellate court did not decide whether that constitutional provision independently required review in her circumstances.

D. The court did not adopt the government’s alternative systemic-challenge theory

The government argued that, if the appointments challenge escaped the individual-review bar, it would constitute a systemic challenge subject to § 1252(e)(3). That provision directs specified challenges to the District Court for the District of Columbia and imposes a sixty-day filing period tied to implementation of the challenged measure.

The First Circuit did not reach this alternative. The opinion therefore neither classified Alawieh’s claim as a systemic challenge nor established that the District of Columbia route would have afforded her relief.

E. Alternative remedies did not produce merits review

The amended petition sought declarations, injunctions, further immigration proceedings, and visa reinstatement as well as habeas relief. The court nevertheless affirmed dismissal of the petition under the applicable jurisdictional restrictions. It did not separately decide that visa revocation complied with the Administrative Procedure Act or announce a universal rule governing judicial review of all H-1B revocations.

6. Precedents Cited and Their Influence

A. The district court decision: Alawieh v. Tweedie

Alawieh v. Tweedie, 808 F. Supp. 3d 205 (D. Mass. 2025), supplied the judgment under review. It concluded that the amended claims did not fall within the statutory habeas exceptions and rejected the Suspension Clause argument by applying Supreme Court precedent. The First Circuit affirmed the statutory jurisdictional ruling without independently deciding the abandoned constitutional issue.

B. Direct support for the issuance–validity distinction

Osorio-Martinez v. Att'y Gen., 893 F.3d 153 (3d Cir. 2018), was the principal appellate authority supporting the court’s reading. There, petitioners argued that special immigrant juvenile status invalidated their removal orders. The Third Circuit held that § 1252(e)(2)(B) did not authorize review of that validity argument. The First Circuit used the case to show that a later or independent legal objection to removal does not become an inquiry into whether an order exists.

Castro v. U.S. Dep't of Homeland Sec., 835 F.3d 422 (3d Cir. 2016), supplied the formulation quoted through Osorio-Martinez: review concerns whether an immigration officer issued the relevant “piece of paper” and whether the petitioner is the person named in it. That formulation reinforced the narrow, documentary character of the statutory inquiry.

D.A.M. v. Barr, 486 F. Supp. 3d 404 (D.D.C. 2020), presented an especially close analogy to Alawieh’s theory. The petitioners argued that removal under an invalid regulation was void from the outset. The district court distinguished orders that were unlawfully issued from orders that, as a matter of law, were not issued. The First Circuit cited this distinction to demonstrate why the label void ab initio did not establish jurisdiction.

C. Cases illustrating genuinely reviewable issuance questions

Martinez v. Hyde, No. 25-11613, 2025 WL 1859273 (D. Mass. June 17, 2025), involved detention for anticipated expedited removal where DHS failed to produce evidence that a removal order existed. The district court exercised jurisdiction to determine whether an order had been issued and granted the petition when the government failed to establish that fact. Unlike Alawieh, that petitioner disputed the existence of the operative order.

Dugdale v. U.S. Customs & Border Protection, 88 F. Supp. 3d 1 (D.D.C. 2015), involved an order lacking a necessary supervisory signature. The district court treated that defect as bearing on whether the order “in fact was issued.” The First Circuit distinguished that situation from Alawieh’s challenge to the constitutional authority of the officers.

These decisions show that the statutory exception is not empty. Courts can investigate the existence and issuance of an order. The opinion does not, however, comprehensively define which execution defects fall on the issuance side of the line; it establishes that Alawieh’s appointments theory did not.

D. The Suspension Clause authority: Dep't of Homeland Sec. v. Thuraissigiam

Dep't of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020), concerned a request for another opportunity to seek asylum outside the narrow issues reviewable under § 1252(e)(2). The Supreme Court held that the statutory restriction did not violate the Suspension Clause in that setting, explaining that the Clause does not guarantee habeas review beyond the protection afforded by the writ at the founding.

The district court relied on that decision to reject Alawieh’s Suspension Clause argument. On appeal, the First Circuit explained why this reliance did not conflict with its own mootness precedent. Because the Suspension Clause claim was not pursued, Thuraissigiam provided context rather than an independently adjudicated constitutional ground for the appellate disposition.

E. Collateral consequences and mootness: Leitao v. Reno

Leitao v. Reno, 311 F.3d 453 (1st Cir. 2002), held that release from detention does not necessarily moot a habeas petition if collateral consequences remain and a court can remedy them. Alawieh invoked her five-year readmission bar as such a consequence.

The First Circuit distinguished Leitao because it addressed mootness in a different context, not the jurisdiction-stripping provisions at issue here. A case may present ongoing adverse consequences yet remain outside a court’s statutory authority. The court therefore left unresolved whether Alawieh’s amended petition was moot.

F. Authorities governing the standard of review

Samayoa v. Bondi, 146 F.4th 128 (1st Cir. 2025), supported de novo review of the legal questions concerning the INA. McCants v. Alves, 67 F.4th 47 (1st Cir. 2023), citing Dorisca v. Marchilli, 941 F.3d 12 (1st Cir. 2019), supplied the corresponding rule that dismissal of a habeas petition is reviewed de novo.

These authorities concern appellate methodology: the panel independently assessed the jurisdictional question rather than deferring to the district court’s legal interpretation. They did not themselves expand the statutory grounds for review.

G. Supporting jurisdictional dispositions

Ishak v. Gonzales, 422 F.3d 22 (1st Cir. 2005), and Bouarfa v. Mayorkas, 604 U.S. 6 (2024), appeared in the concluding footnote as supporting examples of affirmance of jurisdictional dismissals under § 1252. The panel did not develop their underlying facts or treat them as the principal source of its issuance–validity distinction.

7. Impact and Critical Assessment

A. A narrower path for structural constitutional challenges

The decision makes clear that, in the First Circuit, an Appointments Clause challenge cannot enter through § 1252(e)(2)(B) merely by asserting that the resulting order was legally nonexistent. Future petitioners invoking that provision must identify a genuine issuance or identity question rather than an objection to the authority underlying an acknowledged order.

B. Reinforcement of the statutory limits on expedited removal review

The opinion aligns the First Circuit with the Third Circuit’s restrictive interpretation of the habeas exception. Its practical effect is to preserve a narrow judicial check on whether an order exists and concerns the detained person while excluding broader examination of its substantive or constitutional validity through that exception.

C. Significance for returning visa holders

Alawieh’s prior residence, professional employment, and H-1B visa did not prevent the court from treating her as an applicant for admission upon her return. The case illustrates the potentially severe consequences of expedited removal for a returning temporary visa holder. It does not establish that such individuals lack every procedural or constitutional protection; those broader questions were not decided.

D. A boundary that may generate further litigation

The contrast between a missing supervisory signature in Dugdale and the alleged constitutional defect here leaves an important boundary for future cases: when does a defect prevent issuance, and when does it merely make an issued order unlawful? The panel resolved the appointments argument before it but did not supply a complete taxonomy of defects.

The decision also exposes a tension between strict statutory limits and meaningful review of structural constitutional objections. Its reasoning prioritizes Congress’s express definition of the permissible inquiry. Because the Suspension Clause issue was not pursued, the opinion does not resolve whether a separately preserved constitutional argument could require a different analysis in another case.

E. Nonreviewability is not substantive approval

The most important interpretive caution is that the judgment did not validate CBP’s assessment of Alawieh’s religious explanations, cellphone contents, intentions, or immigration eligibility. Nor did it approve the officers’ appointments. The court held that it could not reach those questions through the asserted jurisdictional route.

8. Complex Concepts Simplified

Expedited removal

A statutory process allowing immigration officers to remove certain noncitizens without ordinary proceedings before an immigration judge, subject to specified protections and limited review.

Jurisdiction stripping

Congress’s restriction or removal of a court’s authority to decide particular categories of disputes. A substantial legal objection does not, by itself, establish that authority.

Habeas corpus

A judicial procedure traditionally used to challenge unlawful detention. Its availability in immigration cases is affected by statutory limits and constitutional protections.

Appointments Clause

The constitutional provision governing appointment of federal officers. Alawieh alleged that the officers exercising removal authority had not been constitutionally appointed; the court did not decide that allegation.

Suspension Clause

The constitutional protection against suspension of the privilege of habeas corpus except in specified emergencies. The scope of the historically protected writ matters when assessing restrictions on habeas review.

Void ab initio

Invalid from the beginning. Here, describing an order that way did not establish that the order had never been issued for purposes of the statutory exception.

Mootness and collateral consequences

A case is generally moot when no live dispute remains that judicial relief can address. Continuing consequences may preserve a dispute, but they do not independently create jurisdiction.

De novo review

Independent appellate consideration of a legal question, without deference to the lower court’s legal conclusion.

9. Conclusion

Alawieh v. Mullin establishes a focused jurisdictional rule: an Appointments Clause attack on an acknowledged expedited removal order challenges its validity, not whether it was issued. It therefore falls outside the limited inquiry authorized by §§ 1252(e)(2)(B) and (e)(5).

The decision reinforces strict limits on habeas review while preserving the distinction between an unissued order and an allegedly unlawful one. Its significance lies in that jurisdictional boundary—not in any approval of Alawieh’s removal, visa cancellation, or the constitutional authority of the officers involved.