INA § 1252(b)(9) Channels Reviewable Legal Questions into Petitions for Review (Not Habeas), Even When Harms Are Immediate

Case: Mahmoud Khalil v. President, United States of America, et al. (Nos. 25-2162 & 25-2357)
Court: U.S. Court of Appeals for the Third Circuit
Date: January 15, 2026
Disposition: District Court orders vacated; remanded with instructions to dismiss habeas petition for lack of subject-matter jurisdiction under the INA.

1. Introduction

This Third Circuit decision sits at the intersection of two bodies of law that frequently collide: (1) the traditional rules that govern habeas corpus jurisdiction under 28 U.S.C. § 2241, and (2) Congress’s immigration “channeling” provisions that largely route judicial review of removal-related disputes into a single petition for review (“PFR”) in a court of appeals.

The appellee, Mahmoud Khalil, is a lawful permanent resident whose removal proceedings were initiated after the Secretary of State invoked the INA’s foreign-policy removability ground, 8 U.S.C. § 1227(a)(4)(C), asserting that Khalil’s “presence or activities” would have “potentially serious adverse foreign policy consequences.” The government later added a fraud/misrepresentation removability charge under 8 U.S.C. §§ 1227(a)(1)(A) and 1182(a)(6)(C)(i).

After Khalil’s arrest and rapid transfers between New York, New Jersey, and Louisiana facilities, his counsel filed a habeas petition in the Southern District of New York. The case was transferred to the District of New Jersey, which entered three consequential orders: (i) preventing removal, (ii) ordering release from custody, and (iii) directing the government to “cause” the immigration judge to vacate/amend aspects of her decision. The government appealed, presenting a two-part jurisdictional puzzle: whether the District of New Jersey had (a) habeas jurisdiction under § 2241 and (b) subject-matter jurisdiction in light of the INA.

Judge Freeman concurred on habeas jurisdiction but dissented on the INA question, concluding that § 1252(b)(9) did not strip jurisdiction and emphasizing irreparable First Amendment harms and the practical difficulty of later redress.

2. Summary of the Opinion

The Third Circuit first upheld the District of New Jersey’s habeas jurisdiction. Even though the petition was filed in the Southern District of New York, Khalil was physically detained in New Jersey when the petition was filed; the transfer to New Jersey under 28 U.S.C. § 1631 was therefore effective. The court further held that amendments naming the warden of the Elizabeth Detention Center (Khalil’s immediate custodian at the relevant time) related back under Rule 15, curing the initial failure to name the proper respondent. Khalil’s later transfer to Louisiana did not divest jurisdiction under Ex parte Endo.

Having found habeas jurisdiction, the court nonetheless held that the INA stripped the District Court of subject-matter jurisdiction. Under 8 U.S.C. § 1252(b)(9), “Judicial review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien ... shall be available only in judicial review of a final order [of removal].” The majority held Khalil’s constitutional, APA, and Accardi-based challenges to the government’s asserted policy and to the foreign-policy/fraud charges were “inextricably linked” to removability and thus must be pursued through the administrative process and then a PFR. The panel vacated the preliminary injunction, release order, and immigration-judge-intervention order, and remanded with instructions to dismiss the habeas petition.

3. Analysis

3.1. Precedents Cited

A. Habeas “place” and “person”: district of confinement and immediate custodian

• Braden v. 30th Jud. Cir. Ct. of Ky. and Rumsfeld v. Padilla anchor the “district of confinement” concept: jurisdiction under § 2241 depends on the court’s jurisdiction over the custodian, and “jurisdiction lies in only one district: the district of confinement.” The Third Circuit used these cases to frame the baseline rule, then asked how transfer and relation-back operate within it.
• Ex parte Endo (and reaffirmation in Rumsfeld v. Padilla) supplies the anti-manipulation principle: once properly filed, a post-filing transfer does not defeat jurisdiction if a respondent remains within reach of the court’s process. The Third Circuit relied on Ex parte Endo and its own decisions (Ex parte Catanzaro; Anariba v. Dir., Hudson Cnty. Corr. Ctr.) to reject the government’s “moved out of district” argument.
• Demjanjuk v. Meese is discussed via the District Court’s “unknown custodian exception,” but the Third Circuit largely bypassed that doctrine by holding that the later naming of the New Jersey warden related back.

B. Transfer and “as-if-filed” mechanics

• 28 U.S.C. § 1631 was central: it allows transfer when a court lacks jurisdiction to a court “in which the action ... could have been brought at the time it was filed,” and the action proceeds “as if it had been filed” in the transferee court on the original filing date.
• Hoffman v. Blaski (interpreting “where it might have been brought” in § 1404(a)) supported a strict time-of-filing approach that the panel found “comparable” to § 1631, citing D'Jamoos ex rel. Est. of Weingeroff v. Pilatus Aircraft Ltd..
• Öztürk v. Hyde (2d Cir.) was cited for the proposition that transfer under § 1631 “merely remedie[s] the procedural defect—it convey[s] no substantive authority.”
• To counter the government’s “§ 1631 doesn’t apply to habeas” contention, the court relied on Hassine v. Zimmerman and Parrott v. Gov't of V.I. (habeas generally civil in nature), distinguished Santana v. United States (PLRA fee context), and invoked Robinson v. Johnson (endorsing § 1631 transfer in habeas-related contexts).
• Boechler, P.C. v. Comm'r justified considering the applicability of § 1631 despite forfeiture, emphasizing courts’ obligation to raise jurisdictional requirements sua sponte.

C. Amendments, relation-back, and the government’s “superseding petition” theory

• Mayle v. Felix confirmed that Rule 15’s “original pleading” in habeas is the petition, enabling relation-back analysis in the habeas setting.
• Although the government invoked Royal Canin U.S.A., Inc. v. Wullschleger (jurisdiction depends on the amended complaint), the court distinguished it on the ground that § 2241’s immediate-custodian and district-of-confinement rules concern habeas-specific “jurisdiction” (often characterized as personal jurisdiction/venue-like), not Article III subject-matter jurisdiction, citing Darfur v. U.S. Parole Comm'n.
• Garrett v. Wexford Health and Washer v. Bullitt Cnty. were used for the general superseding effect of amended pleadings—yet the panel held that superseding did not undo the Endo rule or the relation-back cure.

D. INA channeling and the “zipper clause”

• Reno v. AADC (describing § 1252(b)(9) as a “zipper” clause) and the Third Circuit’s own E.O.H.C. v. Sec'y, U.S. Dep't of Homeland Sec. defined the interpretive lens: the statute channels “most claims that even relate to removal” into one PFR, while leaving room for claims that cannot be meaningfully addressed in that process.
• Tazu v. Att'y Gen. supported the proposition that § 1252(b)(9) channels “legal questions” “bound up with” removal actions.
• Jennings v. Rodriguez was pivotal to the majority’s treatment of earlier Third Circuit language about when § 1252(b)(9) applies, and to the majority’s refusal to limit § 1252(b)(9) to post-final-order contexts.
• Chehazeh v. Att'y Gen. was raised by Khalil (and emphasized by the dissent) to argue § 1252(b)(9) applies only when there is a final order of removal. The majority concluded that approach was effectively abrogated by Jennings v. Rodriguez and that the plurality’s reading controlled under a Marks analysis (citing Lebanon Farms Disposal, Inc. v. Cnty. of Lebanon and Marks v. United States).

E. Ripeness and collateral review boundaries

• Abbott Lab'ys v. Gardner and Jie Fang v. Dir. U.S. Immigr. & Customs Enf't
• Lewis v. Att'y Gen. supported the “substance over labels” approach that prevented Khalil from reframing a removability challenge as “punitive detention” to evade § 1252(b)(9).

F. Record-development and remedial mechanisms on PFR

• McNary v. Haitian Refugee Ctr., Inc. appears as the conceptual backdrop for concerns that certain “pattern-and-practice” claims may be ill-suited to immigration adjudication, but the majority emphasized alternative mechanisms within the PFR framework.
• The panel held that 28 U.S.C. § 2347(b)(3) (Hobbs Act) permits remand for factfinding when its preconditions are met, citing Gallo-Alvarez v. Ashcroft and bolstering the inference by negative implication under Russello v. United States (Congress barred § 2347(c) in 8 U.S.C. § 1252(a)(1), implying § 2347(b) remains usable).
• Santos-Alvarado v. Barr was cited to underscore that PFR courts can decide constitutional claims even if immigration judges/BIA cannot finally resolve them.

G. The dissent’s core authorities and framing

• Judge Freeman’s dissent relied heavily on Chehazeh v. Att'y Gen. and Immigration and Naturalization Service v. St. Cyr to argue § 1252(b)(9) is inapplicable absent a final order of removal.
• It read E.O.H.C. v. Sec'y U.S. Dep't of Homeland Sec. as making “redressability of harm” (not later “reviewability of questions”) the key now-or-never criterion, and invoked First Amendment irreparable-harm doctrine through Elrod v. Burns and Third Circuit analogues to stress why delay is uniquely costly for speech.
• On § 1252(g), the dissent leaned on Dep't of Homeland Sec. v. Regents of the Univ. of Cal. and Reno v. Am.-Arab Anti-Discrimination Comm. ("AADC") to maintain a narrow reading limited to “commence proceedings, adjudicate cases, or execute removal orders.”

3.2. Legal Reasoning

A. The court’s two-step jurisdiction framework

The opinion is structured around a sharp conceptual division:

• Habeas jurisdiction (statutory/territorial and proper respondent): Whether § 2241’s district-of-confinement rule and immediate-custodian requirement are satisfied.
• Subject-matter jurisdiction (Congressional channeling/stripping): Whether the INA nevertheless forbids district-court adjudication of claims “arising from” removal actions or proceedings.

This sequencing is consequential: the court affirms that the District Court had a habeas case in front of it in the § 2241 sense, but then holds Congress has routed the merits to a different forum (a PFR) via § 1252(b)(9).

B. § 1631 transfer + Rule 15 relation-back as a jurisdiction-preserving combination

The court treated § 1631 as doing specific work: not expanding New Jersey’s power, but correcting the filing defect by treating the petition as filed in New Jersey on the original filing date. That mattered because Khalil was physically held in New Jersey at that moment, satisfying the district-of-confinement rule.

Separately, the court addressed a common practical failure in emergency immigration habeas filings—misnaming the respondent—by applying Rule 15(c)(1)(C) relation-back. Because the government did not dispute the Rule 15 conditions, the amendments naming the Elizabeth Detention Center warden were treated as effective on the filing date, meaning the immediate-custodian requirement was met at the relevant time.

The opinion’s handling of the government’s “amended petitions supersede” argument is equally important: while acknowledging supersession as a pleading principle, the court refused to convert that into a doctrine that would nullify the Ex parte Endo retention-of-jurisdiction rule.

C. The key doctrinal innovation: “now-or-never” is about later reviewability of questions, not later remediability of harms

The majority confronted an ambiguity it found latent in E.O.H.C. v. Sec'y, U.S. Dep't of Homeland Sec.: whether a claim escapes § 1252(b)(9) if (a) the injury cannot later be remedied, or only if (b) the legal/factual questions cannot later be meaningfully reviewed in the PFR process.

It adopted (b), reasoning from:

• Text: § 1252(b)(9) speaks of “Judicial review of all questions of law and fact,” so what must be “now-or-never” are the questions, not merely the harms.
• Structure/title: “Consolidation of questions for judicial review” signals Congress’s focus on funneling adjudication of issues.
• Purpose (anti-piecemeal): Allowing habeas litigation of removability-defining issues merely because detention creates immediate harms would allow early issue-preclusion effects (the court cited Paulo v. Holder as a cautionary example), undermining the “one bite at the apple” design.

On the facts, the court characterized Khalil’s claims as “inextricably linked” to the government’s decision to remove him, not collateral to removal like the interim-relocation claim in E.O.H.C. His First and Fifth Amendment challenges, APA and Accardi theories, and even the “punitive detention” framing were treated as ultimately requiring adjudication of whether the government had lawful grounds to remove him.

D. The opinion’s “meaningful review” assurances: Hobbs Act remand and other mechanisms

A frequent practical objection to strict channeling is record-development: PFR courts are limited to the administrative record (8 U.S.C. § 1252(b)(4)(A)), immigration courts may limit discovery, and some constitutional claims require evidence beyond what removal proceedings routinely produce. The court’s response is itself a noteworthy development: it held that 28 U.S.C. § 2347(b)(3) can be used in immigration PFRs to remand for additional factfinding when the statutory predicates are satisfied.

This holding functions as a doctrinal “pressure valve” that helps the majority justify a strong channeling reading without (in its view) collapsing constitutional review into a paper record that cannot support it.

3.3. Impact

A. Immediate practical effect in the Third Circuit

• Reduced district-court role in removal-linked constitutional litigation: Even high-stakes constitutional claims (First Amendment retaliation, vagueness, due process) tied to removability will generally be forced into the administrative process and then PFR.
• Emergency habeas remains viable for custody mechanics—up to a point: The decision confirms robust tools (§ 1631 transfer, Rule 15 relation-back, Endo retention) to keep emergency § 2241 petitions alive when filed amid rapid transfers—yet those petitions may still be dismissed on INA channeling grounds if the claims are removability-linked.

B. A clarified (and narrowed) “now-or-never” pathway

The decision narrows the space for district-court intervention by re-defining “now-or-never” around later reviewability of questions rather than later remediability of harms. This is particularly consequential for speech-related detention allegations: the dissent framed First Amendment chill as paradigmatically irreparable, but the majority’s rule treats irreparability as insufficient if the core legal questions can be adjudicated later on a PFR.

C. New emphasis on PFR factfinding mechanisms

By holding that § 2347(b)(3) is available in immigration proceedings, the Third Circuit supplies litigants a concrete tool to argue that channeling is constitutionally workable even when the administrative record is thin. Future PFR litigation in the circuit can be expected to feature more frequent motions invoking § 2347(b)(3), and more disputes about whether an agency “held a hearing,” whether one was “required by law,” and whether “genuine issues of material fact” exist.

D. Inter-circuit and intra-circuit tension

The court explicitly disagreed with approaches it described as relying on final-order limitations (discussing, among others, Mahdawi v. Trump and Öztürk v. Hyde). Internally, the published dissent underscores that the reach of § 1252(b)(9)—especially as to constitutional harms that occur during detention—will remain contested in future Third Circuit panels or en banc review.

4. Complex Concepts Simplified

• “District-of-confinement” rule: A § 2241 habeas petition challenging physical custody ordinarily must be filed in the district where the petitioner is held, because that court must have power over the person who can produce the petitioner (the custodian).
• “Immediate custodian” requirement: Under Rumsfeld v. Padilla, the proper respondent is typically the warden of the facility holding the petitioner, not a distant cabinet official—because the warden has day-to-day control.
• Transfer under 28 U.S.C. § 1631: If you file in the wrong court, § 1631 can move the case to the right court, and the receiving court treats it “as if” it was filed there on the original date—crucial when timing determines jurisdiction.
• “Relation back” (Rule 15): An amended pleading can be treated as if filed on the original filing date, which can cure certain defects (here, naming the correct custodian) when the legal requirements are met.
• 8 U.S.C. § 1252(b)(9) (“zipper clause”): A channeling rule designed to prevent multiple lawsuits over a single removal case by consolidating review into one petition for review after a final order of removal.
• “Petition for review” (PFR): The statutorily designated route to challenge a final removal order in a court of appeals, typically after agency review by the BIA.
• Accardi doctrine: From Accardi v. Shaughnessy, the principle that agencies must follow their own rules/regulations; failure can be unlawful.
• Hobbs Act remand (28 U.S.C. § 2347(b)(3)): A mechanism allowing a court of appeals reviewing an agency action to remand for factfinding under certain conditions—used here to argue PFR review can be “meaningful” even when the record is incomplete.

5. Conclusion

The Third Circuit’s opinion delivers a mixed but consequential message. On the one hand, it reinforces a practical, jurisdiction-preserving approach to emergency immigration habeas filings—validating § 1631 transfer, Rule 15 relation-back to cure immediate-custodian defects, and Endo’s rule that post-filing transfers do not defeat habeas jurisdiction. On the other hand, it substantially strengthens INA channeling by holding that § 1252(b)(9) strips district courts of subject-matter jurisdiction whenever the legal/factual questions can later be meaningfully reviewed on a PFR—even if the petitioner alleges serious, ongoing, and potentially irreparable harms in the meantime.

In doctrinal terms, the opinion’s most important new rule is its clarification of “now-or-never” claims: the escape hatch from § 1252(b)(9) turns on the reviewability of questions, not the remediability of harms. The court’s companion holding that 28 U.S.C. § 2347(b)(3) is available for factfinding in immigration PFRs is best understood as the structural support for that rule—an attempt to ensure that channeling remains compatible with “meaningful review.”