Third Circuit splits 6-5, clearing path to deport Khalil

Mahmoud Khalil was a graduate student at Columbia University's School of International and Public Affairs when ICE agents arrested him on March 8, 2025, in the lobby of his campus apartment. Khalil, born in Syria and a lawful permanent resident, had served as the lead negotiator for student protesters during Columbia's Gaza solidarity encampment in April 2024. His wife, Dr. Noor Abdalla, a U.S. citizen, was eight months pregnant at the time of his arrest. ICE transferred him to a detention facility in Jena, Louisiana, roughly 1,300 miles from his family.

Secretary of State Marco Rubio personally signed a invoking INA § 237(a)(4)(C)(i), a provision that allows the Secretary to deport any lawful permanent resident whose presence he personally determines creates 'potentially serious adverse foreign policy consequences.' Rubio argued that allowing Khalil to remain would undermine the U.S. government's interest in 'combating anti-Semitism around the world and in the United States.'

INA § 237(a)(4)(C)(i) is among the least-invoked deportation statutes in immigration law. The provision gives the Secretary of State sole authority to make the foreign policy determination — no court approval is required, and no evidence of criminal activity or visa violation is needed. A sister provision, § 212(a)(3)(C)(iii), expressly bars the Secretary from using 'past, current, or expected beliefs, statements, or associations that are otherwise lawful within the United States' as the sole basis for deportation without an additional finding that the person's presence compromises 'a compelling United States foreign policy interest.'

The makes clear the government must meet that higher standard for legal residents — distinguishing them from visa applicants. Khalil's lawyers argued Rubio's memo, which cited only his 📖First Amendment-protected speech and association, failed that test.

Federal District Judge Michael E. Farbiarz in New Jersey ruled on June 10, 2025, that Rubio's determination was likely unconstitutional. Farbiarz found that the government relied exclusively on Khalil's protected speech and association — his negotiating role in the Gaza encampment — without any independent foreign policy finding that met the statutory threshold. He granted a preliminary injunction blocking deportation and ordered Khalil released from detention after three months in Louisiana custody. Khalil met his newborn son, who had been born in April while Khalil was detained, for the first time after his release.

The government immediately appealed. A three-judge Third Circuit panel took up the case — docket Nos. 25-2162 & 25-2357.

On January 15, 2026, a overturned Judge Farbiarz's order. Judges Thomas Hardiman (appointed by George W. Bush) and Stephanos Bibas (appointed by Trump) ruled that the New Jersey district court lacked subject matter jurisdiction over Khalil's constitutional challenges because a provision of the Immigration and Nationality Act — sometimes called the 'zipper clause' — strips federal courts of jurisdiction to review claims that can be raised in the 📖immigration court process. The panel did not rule on the merits of Khalil's 📖First Amendment arguments.

Judge Arianna Freeman, appointed by President Biden, dissented. She argued that under Third Circuit and Supreme Court precedent, federal courts can hear 'now-or-never claims' — constitutional violations that can't wait for the full 📖immigration court process without irreparable harm to the petitioner.

Khalil's legal team at the ACLU and Center for Constitutional Rights filed a petition asking the full Third Circuit to rehear the case en banc — meaning all active circuit judges, not just a three-judge panel. En banc rehearing is granted in fewer than 1% of petitions at the federal circuit level and is generally reserved for cases involving significant constitutional questions or conflicting precedent.

On May 22, 2026, the Third Circuit denied the rehearing petition in a . The six judges voting to deny — Hardiman, Bibas, David J. Porter, Paul B. Matey, Peter J. Phipps, and Jennifer L. Mascott — are all Trump or Bush appointees. They provided no written explanation for their votes.

Judge Cheryl Ann Krause authored a dissent joined by Biden appointees L. Felipe Restrepo, Arianna J. Freeman, Tamika Montgomery-Reeves, and Cindy Chung. Krause wrote that 'the judiciary serves as an inseparable element of the constitutional system of checks and balances, protecting civil liberties and checking legislative and executive discretion.' She warned the would allow the executive to 'write the judiciary out of relevance and leave the executive branch to check itself' on its own constitutional violations.

Krause's dissent focused on the habeas corpus dimension: if federal courts can't hear a constitutional challenge to detention until after years of immigration proceedings, and the government can immediately rearrest Khalil the moment the court mandate issues, the guarantee of habeas review becomes illusory.

Simultaneously with the en banc denial, the Board of Immigration Appeals — a federal body housed within the Justice Department — issued its own order on April 9, 2026, affirming that Khalil could be deported. Biden-appointed BIA member Homero López called the 'unprecedented,' noting the board typically takes years to decide comparable cases. López said the speed of the decision signaled the outcome was predetermined.

With both the Third Circuit en banc petition and the BIA appeal resolved against him, Khalil faces parallel proceedings: his habeas case in the Third Circuit and his deportation order from the BIA, which the government could appeal to the Fifth Circuit.

Within hours of the en banc denial, Khalil's legal team filed for an emergency stay of the Third Circuit's mandate pending a Supreme Court petition. The stay request is designed to keep the January 2026 panel decision from taking legal effect — and prevent the government from rearesting and deporting Khalil — while the ACLU prepares its certiorari petition.

The ACLU framed the SCOTUS petition around two questions: whether the 📖First Amendment bars deportation of a lawful permanent resident based solely on his political speech and association, and whether federal habeas courts have jurisdiction to review such constitutional claims before immigration proceedings conclude. If the Court grants certiorari, it would be the the justices have directly addressed the scope of the foreign policy deportation provision under INA § 237(a)(4)(C).

The case has drawn amicus briefs from across the political spectrum. The American-Arab Anti-Discrimination Committee, a broad free speech coalition, filed briefs urging en banc rehearing. Conservative and libertarian commentators at Reason.com noted the — any Secretary of State could now deploy the same provision against lawful residents whose speech is deemed diplomatically inconvenient, without any judicial check until immigration proceedings end.

The Columbia Spectator confirmed Khalil earned his master's degree from Columbia's School of International and Public Affairs in 2024. He and his wife and son remain in the United States under the protection of the injunction while the Supreme Court petition is pending.