Third Circuit Expands § 1252(b)(9) Channeling: District-Court Habeas Jurisdiction Barred for Pre–Final-Order Constitutional Claims Tied to Removal Proceedings

I. Introduction

On May 22, 2026, the United States Court of Appeals for the Third Circuit denied rehearing (panel and en banc) in Mahmoud Khalil v. President United States of America, thereby leaving in place the panel’s per curiam jurisdictional holding in Khalil v. President, United States, 164 F.4th 259 (3d Cir. 2026).

The case arises from Mahmoud Khalil’s habeas petition challenging his arrest and detention and alleging, among other things, violations of the First and Fifth Amendments. As described in Judge Krause’s dissent from denial of rehearing en banc (joined by Judges Restrepo and Freeman), Khalil—an LPR with significant U.S. ties—alleged he was targeted for immigration detention and removal because of protected speech, and he sought immediate judicial relief from detention and associated constitutional injuries.

The central legal issue was not the merits of removability, but jurisdiction: whether 8 U.S.C. § 1252(b)(9) deprived the district court of subject-matter jurisdiction over Khalil’s habeas claims and forced him to wait to raise them in a petition for review (“PFR”) after a final order of removal.

II. Summary of the Opinion (Rehearing Disposition and Operative Rule)

The court denied rehearing en banc. As a practical matter, that denial “endors[ed] the panel majority’s opinion” (in Judge Krause’s words) and left intact the panel’s operative rule:

  • § 1252(b)(9) strips district-court jurisdiction over Khalil’s claims and requires him to channel them into a PFR of a final removal order, even though key alleged harms (detention and First Amendment suppression) occur before a final order issues.

Five active judges voted for rehearing en banc (Krause, Restrepo, Freeman, Montgomery-Reeves, and Chung). Judge Krause’s dissent argues the panel’s interpretation conflicts with statutory text, Third Circuit precedent, and the Suspension Clause.

III. Analysis

A. Precedents Cited

1. Jurisdiction and the presumption of judicial review

  • Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821): cited for the foundational principle that federal courts have no right to decline jurisdiction that Congress has conferred. The dissent uses this to frame § 1252(b)(9) narrowly when ambiguous.
  • E.O.H.C. v. Sec'y U.S. Dep't of Homeland Sec., 950 F.3d 177 (3d Cir. 2020): invoked for (i) the “strong presumption in favor of judicial review of administrative action” and (ii) the “general rule that the narrower construction of a jurisdiction-stripping provision is favored.” The dissent treats E.O.H.C. as binding circuit law creating a “now-or-never” exception to channeling.
  • Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013): cited for courts’ “virtually unflagging obligation” to exercise jurisdiction once it exists—used to argue that, absent a clear § 1252(b)(9) bar, federal courts must hear constitutional claims.

2. Third Circuit’s prior § 1252(b)(9) rule and the panel’s claimed abrogation

  • Chehazeh v. Attorney General, 666 F.3d 118 (3d Cir. 2012): described as a bright-line circuit rule that § 1252(b)(9) “applies only with respect to review of [a final] order of removal” and does not bar jurisdiction when no final order exists. The dissent argues Chehazeh remains controlling.
  • Jennings v. Rodriguez, 583 U.S. 281 (2018): the panel majority treated Jennings as having “abrogated” Chehazeh via a fragmented set of opinions on § 1252(b)(9). The dissent argues Jennings was “case-specific” and expressly avoided a comprehensive interpretation, and thus could not overrule Chehazeh.
  • Marks v. United States, 430 U.S. 188, 193 (1977): supplies the rule for identifying the holding of a fractured Supreme Court decision. The dissent contends the panel misapplied Marks by treating Justice Alito’s Jennings opinion as the “narrowest” rationale despite incompatibility with other Justices’ views.

3. Persuasive circuit authority on pre–final-order review

  • Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) and Madu v. U.S. Att'y Gen., 470 F.3d 1362 (11th Cir. 2006): cited as examples of circuits agreeing that § 1252(b)(9) does not foreclose jurisdiction absent a final order.
  • Öztürk v. Hyde, 136 F.4th 382 (2d Cir. 2025): used to emphasize that substantial overlap between claims does not mean one “arise[s] out of” another, and that detention or speech-suppression claims can be “quite separate” from removal procedures.
  • Suri v. Trump, No. 25-1560, 2025 WL 1806692 (4th Cir. July 1, 2025): cited for the proposition that concerns about duplicative litigation should not defeat timely adjudication of human-rights claims.
  • Patel v. U.S. Att'y Gen., 971 F.3d 1258 (11th Cir. 2020) (en banc) (Martin, J., dissenting): relied upon for a methodological point: ambiguous jurisdiction-stripping provisions should be read narrowly to preserve review.

4. Due process, detention, and the “detention-specific” line

  • Zadvydas v. Davis, 533 U.S. 678, 690 (2001): used for the principle that civil detention violates due process when punitive in purpose or excessive relative to legitimate interests—supporting the framing of Khalil’s claim as “detention-specific.”
  • Osorio-Martinez v. Att'y Gen., 893 F.3d 153 (3d Cir. 2018) and Landon v. Plasencia, 459 U.S. 21 (1982): cited to underscore that lawful permanent residents have “broad constitutional protections,” including due process when threatened with deportation.

5. Suspension Clause and habeas adequacy

  • Boumediene v. Bush, 553 U.S. 723 (2008): cited for the constitutional centrality of habeas and Congress’s duty to preserve its function.
  • Dep't. of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020): relied on for the idea that challenging executive detention is at the “core” of habeas, and for the adequacy-of-substitute framework under the Suspension Clause.

6. Procedure and ancillary doctrines

  • Fed. R. Civ. P. 8(a)(3) and Howard Hess Dental Lab'ys Inc. v. Dentsply Int'l, Inc., 602 F.3d 237 (3d Cir. 2010): cited to defend pleading alternative and overlapping forms of relief without collapsing distinct claims into removal challenges.
  • Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), Will v. Hallock, 546 U.S. 345 (2006), and Def. Distributed v. Att'y Gen. of N.J., 167 F.4th 65 (3d Cir. 2026): used to resist withholding jurisdiction based on “prudential” concerns like preclusion or law-of-the-case.
  • Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986): invoked to emphasize the judiciary’s checking function in separation of powers.

B. Legal Reasoning (as crystallized by the denial and the dissent’s critique)

1. Competing readings of § 1252(b)(9)

The panel majority’s reading (left undisturbed by the rehearing denial) treats § 1252(b)(9) as a broad channeling device: if constitutional claims are sufficiently connected to removal proceedings, district courts lack jurisdiction and the claimant must await a PFR after a final removal order.

The dissent insists this approach conflicts with:

  • Text and structure: § 1252(b)(9) is read in Chehazeh to apply “only with respect to review of [a final] order of removal.”
  • Interpretive canons: ambiguous jurisdiction-stripping provisions should be construed narrowly; judicial review is presumptively available.
  • Functional habeas principles: forcing pre-final-order detention and First Amendment harms into a later PFR risks no meaningful remedy.

2. The “Marks” dispute and the use of Jennings

A central fault line is whether Jennings v. Rodriguez undermined Chehazeh. The dissent argues the panel:

  • misidentified the Marks “narrowest grounds” holding in a fractured Supreme Court decision; and
  • converted Jennings’s expressly limited, “enough to note that” analysis into a broad abrogation of circuit law.

3. “Now-or-never claims” and meaningful relief

The dissent reads E.O.H.C. v. Secretary, United States Department of Homeland Security as holding that § 1252(b)(9) does not bar jurisdiction over “now-or-never claims”—claims for which courts cannot “meaningfully provide” relief alongside PFR review of a final order. On this view, alleged First Amendment injuries occurring during detention are paradigmatic “now-or-never” harms.

4. “Detention-specific” habeas claims versus removal challenges

The dissent argues Khalil pleaded a distinct Fifth Amendment claim: detention allegedly imposed to punish (i.e., punitive civil detention). Under Jennings, challenges to conditions or length of confinement are not sensibly “crammed” into final-order review. The dissent further reasons that overlap between detention and removal litigation does not transform a detention claim into a removal claim—particularly where the habeas remedy sought is release “without affecting” removal proceedings (as reflected in Öztürk v. Hyde).

5. Suspension Clause concerns

The dissent frames the panel’s channeling rule as constitutionally precarious: if the only review comes after a final order, then for time-sensitive detention claims the harm may be complete before any court can provide effective relief. Applying Boumediene v. Bush and Dep't. of Homeland Sec. v. Thuraissigiam, the dissent contends the PFR process is not an “adequate substitute” for habeas when the detainee seeks release from allegedly unlawful executive detention and the claim becomes effectively unreviewable by the time final-order review is available.

C. Impact

  • Jurisdictional channeling expands in the Third Circuit: by leaving the panel decision intact, the court entrenches a broader reading of § 1252(b)(9) that can foreclose district-court habeas jurisdiction even before any final removal order.
  • Time-sensitive constitutional claims face remediation gaps: First Amendment “chilling” or suppression during detention, and due process challenges to punitive or excessive confinement, may not receive meaningful adjudication if deferred to PFR proceedings.
  • Record-development problems: the dissent highlights practical obstacles to factfinding in PFR-only review and the contingency of remands under 28 U.S.C. § 2347(b)(3), with additional uncertainty introduced by forum transfer rules (8 U.S.C. § 1252(b)(2)).
  • Suspension Clause litigation likely: future cases may test whether channeling detention-release habeas claims into post–final-order PFR review is an adequate substitute for habeas, especially for LPRs or others with substantial U.S. connections.

IV. Complex Concepts Simplified

  • Rehearing en banc: a request for all active judges of the circuit to reconsider a panel decision. Denial leaves the panel opinion as binding circuit precedent.
  • Jurisdiction-stripping / channeling: statutes like § 1252(b)(9) can remove district-court power to hear certain claims and require litigants to use a specific review path (typically a PFR in a court of appeals).
  • Petition for review (PFR): the statutory mechanism for appellate review of a final removal order, usually with limited factfinding.
  • Habeas corpus and the Suspension Clause: habeas is the traditional tool to challenge unlawful detention; the Constitution limits Congress’s ability to eliminate habeas (or its effective equivalent) without providing an adequate substitute.
  • “Now-or-never” claims: claims where waiting for final-order review would make relief meaningless because the harm occurs (and ends) earlier.
  • Marks analysis: when the Supreme Court issues fragmented opinions, lower courts look for the “narrowest grounds” supporting the judgment; disagreement about what is “narrowest” can control whether precedent is treated as abrogated.

V. Conclusion

The Third Circuit’s denial of rehearing en banc in Mahmoud Khalil v. President United States of America cements the panel’s expansive channeling of constitutional and habeas claims into the post–final-order PFR process under § 1252(b)(9). Judge Krause’s dissent (joined by Judges Restrepo and Freeman) frames the resulting rule as a marked departure from Chehazeh v. Attorney General and E.O.H.C. v. Sec'y U.S. Dep't of Homeland Sec., and as creating serious Suspension Clause and meaningful-remedy concerns—especially for “detention-specific” claims seeking release from allegedly punitive executive confinement. The decision’s significance lies less in resolving Khalil’s constitutional allegations and more in reallocating who can hear them, when, and with what capacity to provide effective relief.