Third Circuit Leaves in Place an Expansive Reading of 8 U.S.C. § 1252(b)(9) that Channels Pre–Final-Order Habeas Claims into the Petition-for-Review Process

1. Introduction

The Third Circuit denied rehearing en banc in Khalil v. President, United States, leaving intact the panel majority’s jurisdictional holding that 8 U.S.C. § 1252(b)(9) deprived the District Court of subject-matter jurisdiction over Mahmoud Khalil’s habeas petition and required him to wait to press his constitutional claims until a petition for review (“PFR”) of a final order of removal.

As presented in the dissent, Khalil is a lawful permanent resident who alleged he was arrested and detained because of protected speech—advocacy for Palestinian rights—raising First Amendment and Fifth Amendment claims. The dissent emphasizes the manner of arrest (no warrant, plainclothes DHS officers, at home, in front of a pregnant spouse), rapid transfer across the country, and more than 100 days of detention. The key legal issue on rehearing was not the ultimate merits of removability, but whether federal courts (and which ones) may hear constitutional and detention-related habeas challenges before a final removal order—particularly where waiting would allegedly erase meaningful relief.

2. Summary of the Opinion (Rehearing Order and Dissent)

The court denied rehearing by the panel and en banc. The order records that Judges Krause, Restrepo, Freeman, Montgomery-Reeves, and Chung voted for rehearing en banc. Judge Krause (joined by Judges Restrepo and Freeman) dissented from denial of rehearing en banc.

Judge Krause’s dissent contends the panel majority:

• Evaded Chehazeh v. Attorney General, 666 F.3d 118 (3d Cir. 2012), which the dissent reads to limit § 1252(b)(9) channeling to situations involving review of a final order of removal.
• Misread E.O.H.C. v. Secretary, United States Department of Homeland Security, 950 F.3d 177 (3d Cir. 2020) by narrowing its “now-or-never claims” carveout.
• Recharacterized Khalil’s “detention-specific” Fifth Amendment claim as merely a repackaged challenge to removal.
• Created Suspension Clause risk by treating the PFR process as an adequate substitute for habeas review even where detention ends (or the injury occurs) before a final removal order.

3. Analysis

3.1. Precedents Cited

A. The duty to exercise jurisdiction and the presumption of review

• Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821): Cited for the foundational proposition that federal courts have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” The dissent uses this to frame jurisdiction as a constitutional duty, not a discretionary choice.
• E.O.H.C. v. Sec'y U.S. Dep't of Homeland Sec., 950 F.3d 177, 184 (3d Cir. 2020): Quoted for two linked principles: the “general rule that the narrower construction of a jurisdiction-stripping provision is favored” and the “strong presumption in favor of judicial review of administrative action.” The dissent treats these as interpretive guardrails the panel allegedly abandoned.
• Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013): Cited for a “virtually unflagging obligation” to exercise jurisdiction. The dissent uses it to argue that once § 1252(b)(9) is properly construed, the court must hear Khalil’s claims.

B. Third Circuit precedent on § 1252(b)(9) and final orders

• Chehazeh v. Attorney General, 666 F.3d 118 (3d Cir. 2012): The dissent describes Chehazeh as a “brightline rule” that § 1252(b)(9) “applies only with respect to review of [a final] order of removal.” On that view, if there is no final order, district court jurisdiction is not stripped. The dissent’s central claim is that the panel majority wrongly declared Chehazeh “abrogated.”

C. Supreme Court guidance and the fight over “Marks”

• Jennings v. Rodriguez, 583 U.S. 281 (2018): The dissent stresses that Justice Alito’s opinion stated the Court need not “provide a comprehensive interpretation” of § 1252(b)(9) and that forcing detention challenges into PFR review would be “absurd.” The dissent argues the panel improperly treated Jennings as overruling Chehazeh and as supporting broad pre-final-order channeling.
• Marks v. United States, 430 U.S. 188, 193 (1977): The dissent invokes Marks to critique the panel’s approach to a “fragmented” Supreme Court decision. It argues the panel’s extracted rule from Justice Alito’s opinion cannot be the “narrowest grounds” because it is “incompatible” with other Justices’ views.

D. Cross-circuit authority on § 1252(b)(9)

• Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006) and Madu v. U.S. Att'y Gen., 470 F.3d 1362, 1367 (11th Cir. 2006): Cited as examples of circuits aligning with the dissent’s understanding that § 1252(b)(9) does not sweep broadly absent a final removal order.
• Öztürk v. Hyde, 136 F.4th 382 (2d Cir. 2025): Used repeatedly by the dissent to support a key distinction: detention- or rights-based claims can be “quite separate” from removal procedures, even if there is overlap in factual background or legal theories.
• Suri v. Trump, No. 25-1560, 2025 WL 1806692 (4th Cir. July 1, 2025): Quoted for the proposition that concern about duplicative litigation cannot justify withholding timely adjudication of fundamental rights (“human rights do not cower before the speculative perils of duplicative litigation”).
• Patel v. U.S. Att'y Gen., 971 F.3 d 1258 (11th Cir. 2020) (en banc) (Martin, J., dissenting): Cited for the interpretive stance that ambiguity in INA jurisdiction-stripping provisions should be resolved in favor of more judicial review.

E. Constitutional protections for lawful permanent residents and due process limits on detention

• Osorio-Martinez v. Att'y Gen., 893 F.3d 153, 174 (3d Cir. 2018) and Landon v. Plasencia, 459 U.S. 21, 32-33 (1982): Cited to emphasize that lawful permanent residents are entitled to “broad constitutional protections,” including due process protections when threatened with deportation.
• Zadvydas v. Davis, 533 U.S. 678, 690 (2001): Used to frame the Fifth Amendment theory: civil immigration detention becomes unconstitutional if it is punitive in intent or excessive relative to a legitimate purpose.

F. Habeas, the Suspension Clause, and “adequate substitute” review

• Boumediene v. Bush, 553 U.S. 723 (2008): Cited for Congress’s historical care to preserve the writ and for the constitutional significance of habeas as a check on executive detention, especially detention “by executive order.”
• Dep't. of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020): Cited for two propositions the dissent turns against the panel: (1) challenging unlawful executive detention lies at the “core” of habeas; and (2) the constitutional question is whether substituted statutory review is adequate for a detainee “seeking release from custody.”

G. Procedural doctrines invoked to rebut “piecemeal litigation” concerns

• Howard Hess Dental Lab'ys Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 256 (3d Cir. 2010): Cited to support the permissibility of alternative pleading and multiple forms of relief.
• Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014) and Will v. Hallock, 546 U.S. 345, 355 (2006): Used to argue that prudential concerns like preclusion do not justify jurisdictional contraction where Congress created a cause of action or where jurisdiction otherwise exists.
• Def. Distributed v. Att'y Gen. of N.J., 167 F.4th 65, 74 (3d Cir. 2026): Cited to describe law-of-the-case as discretionary, not a limit on adjudicatory power.

H. Administrative posture and the uncertainty of “concessions”

• Matter of M- K-, 29 I. & N. Dec. 556 (BIA 2026): The dissent highlights the BIA’s statement that it is “not bound by statements of Government counsel” made in Third Circuit litigation, underscoring the dissent’s concern that reliance on later procedural contingencies may be misplaced.

3.2. Legal Reasoning (as framed by the dissent)

Although the rehearing order contains no reasoning beyond denial, Judge Krause’s dissent provides a detailed diagnosis of how the panel majority (in the dissent’s view) reached an incorrect result:

1. Interpreting § 1252(b)(9) without a final order of removal. The dissent insists that Chehazeh controls: § 1252(b)(9) channels claims only “with respect to review of [a final] order of removal.” The panel majority, by contrast, treated Jennings as abrogating that limitation and adopted a rule under which some pre-final-order claims must await PFR review.
2. Compressing “now-or-never claims.” The dissent reads E.O.H.C. to cover claims seeking relief that cannot be “meaningfully” provided in a later PFR—especially injuries that occur during detention. The panel, as described, treated this as an open question and thereby narrowed the now-or-never pathway the Third Circuit had previously recognized.
3. Collapsing detention claims into removal claims. The dissent emphasizes that Khalil sought release from custody on a Fifth Amendment theory that detention was punitive and unjustified—relief that, conceptually, could be granted “without affecting” ongoing removal proceedings. The panel majority nevertheless characterized the detention claim as “arising from” removal and thus channeled by § 1252(b)(9).
4. Treating PFR review as a sufficient substitute for habeas in this context. The dissent argues that when detention ends—or the constitutional harm occurs—before a final order is entered, PFR review is not an “adequate substitute” for a habeas petition seeking release, raising Suspension Clause concerns.

3.3. Impact

Because rehearing was denied, the panel decision remains the Third Circuit’s operative rule, with several practical and doctrinal consequences flagged by the dissent:

• Reduced district-court access for pre-final-order constitutional claims. Litigants may be forced to wait for a final order of removal before obtaining any judicial forum for constitutional claims—even where the injury is time-sensitive (e.g., speech chilled while detained).
• Pressure on habeas as a vehicle for challenging executive detention. The dissent warns that treating PFR review as sufficient could “vitiate” the habeas function at the “core” of the writ for detainees seeking release.
• Forum displacement and remedial uncertainty. The dissent notes that Khalil’s eventual PFR would lie in the Fifth Circuit under 8 U.S.C. § 1252(b)(2), and that the possibility of remand for factfinding under 28 U.S.C. § 2347(b)(3) depends on contingencies (including whether a later court accepts the panel’s reading and whether the Government maintains litigation positions).
• Incentives and civil-liberties stakes in removal-adjacent detention. The dissent highlights the risk that claims of retaliatory detention (here, alleged targeting for protected speech) could become effectively unreviewable at the moment when relief matters most.
• Doctrinal instability. The recorded votes for rehearing, plus the detailed dissent, signal a substantial intra-circuit disagreement likely to fuel further litigation over § 1252(b)(9), “now-or-never” claims, and Suspension Clause limits.

4. Complex Concepts Simplified

• “Jurisdiction-stripping” and 8 U.S.C. § 1252(b)(9): A statute can require that certain immigration-related challenges be brought only through a specific route (typically a petition for review after a final removal order), rather than in district court. The fight is over how broadly “arising from” removal proceedings should be read.
• Petition for review (PFR): The standard mechanism to challenge a final order of removal in a court of appeals. It usually comes after agency proceedings are complete.
• Habeas corpus: A legal action—often filed in district court—used to challenge unlawful detention and seek release. The dissent emphasizes that challenging executive detention is central to habeas.
• “Now-or-never claims” (E.O.H.C.): Claims where waiting until a final order is entered would make judicial relief meaningless because the harm will already have occurred (e.g., unconstitutional detention already served).
• Marks analysis: When the Supreme Court issues a fragmented decision with no single rationale, lower courts try to identify the controlling rule as the position taken on the “narrowest grounds.” The dissent argues the panel extracted too broad a rule from Jennings.
• Suspension Clause: The Constitution restricts Congress from eliminating habeas protections except in narrow circumstances. A key question is whether any substituted review process is an “adequate substitute” for habeas, especially for detainees seeking release.

5. Conclusion

The Third Circuit’s denial of rehearing en banc leaves binding a panel precedent that, as the dissent describes it, expands 8 U.S.C. § 1252(b)(9) to channel significant pre–final-order constitutional and detention-related habeas claims into the petition-for-review process. Judge Krause’s dissent frames that result as inconsistent with Chehazeh v. Attorney General, as a contraction of E.O.H.C.’s “now-or-never” principle, and as raising serious Suspension Clause concerns where detention-specific injuries cannot be meaningfully remedied after a final removal order. In practical terms, the decision reallocates when and where constitutional challenges tied to immigration detention can be heard—potentially after the most urgent harms have already occurred.