Third Circuit denies Khalil rehearing 6-5 as the ACLU plans a Supreme Court petition

The U.S. Court of Appeals for the Third Circuit denied Mahmoud Khalil's petition for rehearing en banc on May 22, 2026, in a 6-5 split decision, leaving in place a panel ruling that federal district courts lacked jurisdiction over his habeas corpus claim until immigration proceedings were complete. Five dissenting judges, led by Judge Krause, argued the ruling gutted judicial oversight of executive immigration power and endangered constitutional checks and balances. The ACLU and Center for Constitutional Rights announced the same day they would petition the Supreme Court for emergency review and a stay protecting Khalil from detention during the appeal. The case raised the central constitutional question of whether the First Amendment limits the Secretary of State's authority to invoke INA § 237(a)(4)(C) against a legal permanent resident for engaging in political speech.