Mahdawi v. Trump: Second Circuit Confirms District Court Authority to Hear Independent Constitutional Challenges to Immigration Detention and to Grant Bail Despite INA § 1252 Jurisdiction Bars

Introduction

In Mahdawi v. Trump, the United States Court of Appeals for the Second Circuit denied the government’s emergency motion to stay a district court’s temporary restraining order (TRO) and bail order in a habeas action brought by a lawful permanent resident (LPR) and Columbia University student, Mohsen Mahdawi. The decision, issued on May 9, 2025, applies and reinforces the Second Circuit’s earlier opinion in Öztürk v. Hyde (May 7, 2025) to clarify that federal district courts retain jurisdiction to hear constitutional challenges to immigration detention that are independent of, and collateral to, removal proceedings. The panel also confirmed that district courts may order release on bail pending the resolution of such habeas petitions, notwithstanding the government’s reliance on various jurisdiction-stripping provisions in the Immigration and Nationality Act (INA).

The case arises in a high-salience factual context: an LPR who had just passed his naturalization examination alleged he was arrested and detained in retaliation for his protected speech about the Israel–Gaza war, after a secret State Department memorandum under INA § 237(a)(4)(C), 8 U.S.C. § 1227(a)(4)(C), deemed him deportable on foreign-policy grounds despite describing his activities as “otherwise lawful.” Although the merits of those First and Fifth Amendment claims remain to be litigated in the district court, the Second Circuit’s stay ruling addresses important recurring questions at the intersection of immigration law, habeas corpus, constitutional review, and the scope of federal courts’ equitable powers during ongoing removal proceedings.

The parties included the petitioner-appellee, Mohsen Mahdawi, and numerous federal officials sued in their official capacities, including the President, the Acting ICE Field Office Director, the Acting DHS Secretary, the Secretary of State, and the U.S. Attorney General. The government sought a stay of the district court’s extended TRO (preventing removal from the District of Vermont) and its bail order, and alternatively requested mandamus relief. Both requests were denied.

Summary of the Opinion

The Second Circuit held that:

It had appellate jurisdiction to review both the bail order (as an appealable collateral order) and the extended TRO (treated as an appealable preliminary injunction because of its duration and features).
The government failed to satisfy the stay factors under Nken v. Holder: it did not make a strong showing of likely success on the merits; it showed no irreparable harm from the orders; and the balance of equities and public interest favored denial of a stay.
On likely success, the government was unlikely to prevail on its argument that the district court lacked jurisdiction in light of 8 U.S.C. §§ 1252(g), 1252(a)(5), 1252(b)(9), or 1252(a)(2)(B)(ii). The court emphasized longstanding clear-statement principles protecting judicial review and construed these provisions narrowly, particularly where the claims challenge detention on constitutional grounds and are independent of removal adjudication.
The government’s claim of irreparable harm—framed as intrusion into sovereign authority to effectuate statutes—failed because the orders did not prevent the government from proceeding with removal; indeed, removal proceedings continued in Louisiana with the petitioner participating remotely.
The equities favored the petitioner because the practical effect of a stay would be re-detention; the petitioner was neither a flight risk nor a danger; and alleged First Amendment harms are quintessentially irreparable.
Mandamus was inappropriate: there was no judicial usurpation of power, and jurisdictional questions are ill-suited to mandamus, particularly in light of Öztürk.

Analysis

Precedents Cited and Their Influence

The panel’s reasoning sits on a robust foundation of Supreme Court and circuit authority:

Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471 (1999): AADC held that § 1252(g) is narrow and covers only three discrete exercises of prosecutorial discretion: to commence proceedings, adjudicate cases, or execute removal orders. The Second Circuit followed AADC’s instruction that § 1252(g) does not sweep in all actions tangential to removal. Because Mahdawi’s claims challenge detention (not the initiation, adjudication, or execution of removal), AADC did not bar jurisdiction.
Kucana v. Holder, 558 U.S. 233 (2010); McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986): These cases anchor the “clear statement” presumption in favor of judicial review. The panel invoked this canon to construe INA jurisdiction-limiting provisions narrowly and to require specific statutory language before concluding that Congress foreclosed habeas review of constitutional detention claims.
Jennings v. Rodriguez, 583 U.S. 281 (2018); DHS v. Regents of the University of California, 591 U.S. 1 (2020): Jennings cautioned against reading § 1252(b)(9) to produce “absurd” results by funneling all claims remotely related to removal into the petition-for-review process; Regents reaffirmed that § 1252(b)(9) does not bar suits that are not seeking review of orders of removal or the decision to seek removal. The Second Circuit applied this approach to hold that independent constitutional challenges to detention do not “arise from” removal proceedings within § 1252(b)(9).
Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008); Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007); Reyna ex rel. J.F.G. v. Hott, 921 F.3d 204 (4th Cir. 2019): Nethagani established that § 1252(a)(2)(B)(ii) bars review only where a statute “specifies” that a decision is within the discretion of the Attorney General or DHS Secretary (e.g., through explicit discretionary language). Reading § 1231(g) and § 1226(a), the Second Circuit found no such “specified” discretionary language regarding detention location to trigger jurisdiction stripping.
Iuteri v. Nardoza, 662 F.2d 159 (2d Cir. 1981): Recognizes that bail orders in habeas proceedings are appealable under the collateral order doctrine—supporting appellate jurisdiction here.
Nken v. Holder, 556 U.S. 418 (2009); Hilton v. Braunskill, 481 U.S. 770 (1987); Elrod v. Burns, 427 U.S. 347 (1976): The standard for stays (Nken), the substantial interest in liberty when considering release pending appeal (Hilton), and the presumption of irreparable harm for First Amendment injuries (Elrod) informed the court’s balancing against the government’s stay request.
Johnson v. Eisentrager, 339 U.S. 763 (1950): Emphasizes that producing the body of the detainee is inherent in habeas practice, supporting the district court’s insistence that the petitioner remain within reach of the court.
Cheney v. U.S. District Court, 542 U.S. 367 (2004); Kerr v. U.S. District Court, 426 U.S. 394 (1976); In re Roman Catholic Diocese of Albany, 745 F.3d 30 (2d Cir. 2014); In re Ivy, 901 F.2d 7 (2d Cir. 1990): These decisions delineate the “drastic” and “extraordinary” nature of mandamus, underscoring why it was unwarranted here.
Dep’t of Educ. v. California, 145 S. Ct. 966 (2025); Trump v. J.G.G., 145 S. Ct. 1003 (2025): Recently clarified that TROs that function like preliminary injunctions—especially those lasting beyond short emergency periods—are appealable, supporting appellate jurisdiction to review the extended TRO here.

Legal Reasoning

The panel’s legal analysis proceeds in three principal steps: appellate jurisdiction, stay factors (with an emphasis on likelihood of success), and the extraordinary nature of mandamus.

1) Appellate Jurisdiction over the Bail Order and the Extended TRO

The court held it could review:

Bail Order: Appealability follows the collateral order doctrine (Iuteri), which allows immediate review of orders conclusively resolving important questions separate from the merits and effectively unreviewable after final judgment.
Extended TRO: Given its duration (up to 90 days) and functional characteristics, the TRO was construed as an appealable preliminary injunction, in line with 2025 Supreme Court guidance recognizing that lengthy or operationally substantial TROs can be immediately appealable.

2) Stay Pending Appeal: The Nken Factors

The government failed to carry its burden on all four factors.

a) Likelihood of Success: Narrow Reading of INA Jurisdiction-Stripping

The court reiterated the clear-statement presumption favoring judicial review of claims, especially constitutional claims. It then addressed each INA provision invoked by the government:

Section 1252(g): Because Mahdawi challenges the lawfulness and alleged retaliatory nature of his detention—rather than the decision to commence, adjudicate, or execute removal—his claims are “independent of, and collateral to,” the removal process (relying on Öztürk and AADC). Section 1252(g) does not bar such claims.
Sections 1252(a)(5) and 1252(b)(9): These channel challenges “arising from” removal proceedings into a petition for review of a final removal order. The panel rejected the government’s expansive “but-for” causation theory and adhered to Jennings and Regents: constitutional detention challenges that do not seek review of a removal order, the decision to seek removal, or the adjudicatory process are not barred. Practical considerations reinforced this conclusion: immigration judges and the BIA do not adjudicate constitutional issues, bond proceedings maintain separate records, and courts of appeals review removal orders on the administrative record, which generally will not capture detention-related constitutional facts.
Section 1252(a)(2)(B)(ii): The panel emphasized Nethagani’s requirement that jurisdiction is barred only where Congress “specifies” that a decision is discretionary. Neither § 1231(g)(1) (“shall arrange for appropriate places of detention”) nor § 1226(a) (“may” detain pending a decision) contains the explicit “in the discretion of” language necessary to trigger § 1252(a)(2)(B)(ii) for detention-location determinations. The government therefore was unlikely to show that the district court lacked power to extend its TRO or to grant bail on the theory that detention site is unreviewable.

The panel also noted that nothing in the district court’s orders impinged on DHS’s prosecutorial discretion; removal proceedings continued in Louisiana, with the petitioner appearing remotely. This practical reality undercut any claim that the orders interfered with § 1252’s core channeling functions or with executive prerogatives.

b) Irreparable Injury to the Government

The government’s generalized assertion that court intervention in detention matters irreparably harms its sovereign interest in executing immigration laws was unpersuasive. The orders did not prevent removal proceedings; the district court found the petitioner neither a flight risk nor a danger (findings the government did not contest); and remote participation was feasible and underway. Alleged administrative burdens do not constitute irreparable injury sufficient to warrant a stay.

c) Balance of Equities and the Public Interest

The equities strongly favored the petitioner. The practical effect of a stay would be re-detention, imposing a substantial liberty deprivation. The case also implicates core First Amendment concerns; even brief deprivations of free speech rights are presumed irreparable (Elrod). Moreover, habeas tradition contemplates producing the detainee before the court. Financial and logistical concerns do not outweigh the risk of constitutional harms.

3) Mandamus

The court declined to grant mandamus, the “drastic” and “extraordinary” remedy, in the absence of judicial usurpation of power or clear abuse of discretion. The government’s jurisdictional objections—particularly given Öztürk and the substantive record—were not suitable for resolution by mandamus.

Impact

Although the panel resolved a stay motion rather than the merits of the habeas petition, the decision (together with Öztürk) carries significant doctrinal and practical implications:

Preserving District Court Review of Constitutional Detention Claims: Within the Second Circuit, detainees challenging immigration detention on constitutional grounds—especially claims of retaliatory arrest or detention—can proceed in district court notwithstanding § 1252(g), (a)(5), or (b)(9). This preserves a meaningful forum for time-sensitive constitutional grievances that cannot be adequately addressed through the petition-for-review process.
Limits on § 1252(a)(2)(B)(ii): The decision tightens the “specified discretionary” requirement, foreclosing the argument that statutory references to detention or facility arrangements implicitly shield detention-location decisions from judicial scrutiny. Agencies cannot convert structural or logistical detention choices into unreviewable discretion without clear statutory authorization.
Bail Authority in Immigration Habeas: District courts may release petitioners on bail pending determination of their habeas claims when appropriate. Where First Amendment retaliatory detention assertions are colorable and the petitioner is neither a flight risk nor a danger, bail is a practicable and lawful interim remedy.
TROs and Immediate Appellate Review: Parties should anticipate that TROs operating as preliminary injunctions—especially those extending beyond brief emergency windows—will be appealable, aligning practice with recent Supreme Court guidance.
Practical Continuation of Removal Proceedings: The court’s acknowledgement that immigration proceedings can continue remotely reduces the government’s argument that district court oversight impedes enforcement. This will likely influence future balancing of equities in detention-related injunctions.
Foreign Policy Deportability and Free Speech: While the panel did not decide the merits of the First Amendment claim or the legality of invoking § 237(a)(4)(C) where speech is “otherwise lawful,” the opinion signals heightened judicial sensitivity to allegations that immigration detention is being used to punish or chill protected expression. The constitutional analysis will proceed in the district court on a developed record.

Complex Concepts Simplified

Habeas Corpus: A procedure allowing someone in custody to challenge the legality of that custody. In immigration cases, it can be used to contest detention that allegedly violates the Constitution.
Collateral Order Doctrine: A narrow exception permitting immediate appeals from certain non-final orders that conclusively resolve important issues separate from the merits and would be effectively unreviewable later (e.g., orders granting bail in habeas cases).
TRO vs. Preliminary Injunction: A TRO is a short-term order preventing harm before a full hearing; when a TRO extends in time or operates like a preliminary injunction, appellate courts may treat it as appealable.
INA § 1252(g): Bars judicial review of only three discrete actions—decisions to commence proceedings, adjudicate cases, or execute removal orders. It does not bar independent constitutional challenges to detention conditions or motives.
INA § 1252(a)(5) and (b)(9): Channel review of removal orders into courts of appeals. They do not foreclose district court jurisdiction over claims not seeking review of a removal order, the decision to seek removal, or the process by which removability is determined.
INA § 1252(a)(2)(B)(ii): Strips jurisdiction only over decisions “specified” by statute to be discretionary. Absent explicit language placing a decision in the agency’s discretion, the bar does not apply.
“Clear Statement” Rule: Courts presume Congress intends judicial review unless it clearly says otherwise, especially for constitutional claims.
Mandamus: An extraordinary writ issued only in exceptional circumstances to correct a clear abuse of discretion or usurpation of power. It is not a substitute for appeal.
Foreign Policy Deportability (INA § 237(a)(4)(C)): Allows removal where the Secretary of State determines that an individual’s presence or activities would have serious adverse foreign policy consequences. Its application raises sensitive constitutional questions if invoked against “otherwise lawful” speech and associations.

Conclusion

Mahdawi v. Trump reinforces a critical set of principles in immigration litigation. District courts retain jurisdiction over independent constitutional challenges to immigration detention, including claims of retaliatory arrest and detention for protected speech, despite the INA’s jurisdiction-channeling provisions. The Second Circuit’s careful reading of §§ 1252(g), 1252(a)(5), 1252(b)(9), and 1252(a)(2)(B)(ii) reflects the Supreme Court’s clear-statement rule favoring judicial review and aligns with practical realities of immigration adjudication—where the administrative record often does not capture facts necessary to adjudicate constitutional challenges to detention.

The decision also affirms the availability of interim equitable relief: extended TROs may be appealable, but district courts can order release on bail where the petitioner is not a flight risk or danger, and where constitutional harms would otherwise go unremedied during protracted proceedings. The government’s generalized claims of irreparable harm cannot outweigh concrete liberty interests and the risk of chilling constitutionally protected speech.

Although the merits of Mahdawi’s First and Fifth Amendment claims remain for the district court, the Second Circuit’s ruling—together with Öztürk—sets a durable framework: constitutional detention challenges that are collateral to removal proceedings belong in district court; statutory jurisdiction-stripping is construed narrowly absent explicit congressional direction; and the judiciary retains the tools, including bail and injunctive relief, to prevent ongoing constitutional injury while cases proceed.