The federal appeals court is helping the Trump administration retaliate against Mahmoud Khalil for his criticism of Israel by forcing him to argue his First Amendment claim to tribunals run by the administration deporting him. The 3rd U.S. Circuit Court of Appeals in Philadelphia voted 6-5 last week against rehearing a case in which a three-judge panel had ruled that Khalil’s constitutional challenge to his removal was premature. The panel said federal law requires Khalil to exhaust the immigration court system first—tribunals staffed by immigration judges who work for the Department of Justice, the same executive-branch department prosecuting his removal. The vote forecloses, for now, independent Article III review of Khalil’s claim that the Trump administration is deporting him in retaliation for his campus activism and criticism of Israel. Khalil, a 31-year-old former Columbia University graduate student and green-card holder, faces deportation to Algeria or Syria, countries where he says he would face mortal danger.
The 3rd Circuit’s ruling fits the pattern documented in prior columns: constitutional challenges to executive detention and removal channeled through procedural requirements that foreclose Article III merits review. The immigration-law architecture produces the same result the Alien Enemies Act shadow-docket orders produced—claims that should be litigated in independent federal courts are instead routed to venues the executive controls. Judge Cheryl Ann Krause, dissenting from the denial of rehearing, wrote that the court was “abdicating our duty to meaningfully review Khalil’s constitutional claims” and that the judicial branch cannot check other branches if it “write[s] ourselves out of relevance.”
The court’s position, steel-manned, has legal form. Federal immigration law, codified at 8 U.S.C. § 1252, establishes a comprehensive administrative review scheme for removal decisions. Most challenges to removal orders must first proceed through the immigration court system, with subsequent Article III review available after the Board of Immigration Appeals rules. The 3rd Circuit’s January panel applied this exhaustion requirement—the rule that claimants must complete administrative review before seeking federal-court relief—holding that the district court’s assertion of jurisdiction over Khalil’s constitutional claims before those claims had been presented to the immigration courts was premature under Reno v. Catholic Social Services and related precedent. Immigration courts are competent to adjudicate constitutional claims as part of removal proceedings, and Article III review of those constitutional questions remains available on petition for review after exhaustion. Requiring Khalil to exhaust administrative remedies before seeking federal-court relief serves orderly judicial administration and respects Congress’s statutory channeling decisions. The panel’s jurisdictional holding did not reach the merits of Khalil’s First Amendment retaliation claim; it simply held that the district court was not the proper forum at this procedural posture.
That reconstruction is what a working-bar attorney defending the 3rd Circuit’s ruling would say. It fails on the Suspension Clause, on the executive-branch-as-judge problem, and on the First Amendment merits the district court already reached.
Start with the Suspension Clause. Article I, Section 9, Clause 2 of the Constitution provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it.” Khalil is detained and facing removal to countries where he claims he faces mortal danger. In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that Guantanamo detainees had habeas corpus rights despite being held outside the sovereign territory of the United States, and that statutory limitations on habeas review were unconstitutional where they foreclosed meaningful judicial review of detention. The principle: when someone is detained by the U.S. government and facing removal to danger, Article III courts—independent federal courts with life-tenured judges—must be available to review constitutional claims. Immigration-court exhaustion cannot constitutionally foreclose habeas review where the detainee asserts First Amendment retaliation as the basis for his removal and has already been detained for months. Article III courts retain habeas jurisdiction over immigration detentions raising colorable constitutional claims, even before administrative exhaustion. The district court’s assertion of jurisdiction was correct under Boumediene. The 3rd Circuit should have affirmed Judge Farbiarz’s ruling and required the government to litigate Khalil’s First Amendment claim in an independent federal court before removing him.
The 3rd Circuit’s ruling requires Khalil to complete the immigration-court process—a process that could take years—before an independent federal court will review whether the government is violating his First Amendment rights. By the time the Board of Immigration Appeals rules and Khalil can seek Article III review, he may already be in Algeria or Syria. The habeas writ exists precisely to prevent this: detention and removal before an independent court has reviewed the legality of the executive’s action.
The second departure is the executive-branch-as-judge problem. Immigration courts are not Article III courts. They are tribunals within the Department of Justice. Immigration judges are DOJ employees; they can be removed by the Attorney General. They lack life tenure and salary protection. The entity deciding whether the Trump administration violated Khalil’s First Amendment rights is the Trump administration. Judge Michael Farbiarz, the federal district judge who initially ruled for Khalil in June 2025, found that the government’s justification for his removal “would likely be declared unconstitutional” and ordered Khalil released. The 3rd Circuit’s ruling displaces that independent Article III determination and requires Khalil to present his constitutional claim to the executive branch first.
The third departure is the statute itself. The reporting identifies the basis for Khalil’s removal: “a seldom-used statute that allows for expulsion of noncitizens whose beliefs officials deem pose a threat to U.S. foreign policy interests.” The government is not deporting Khalil for conduct. Federal officials have accused Khalil of “activities aligned to Hamas” but have not presented evidence to support that claim and have not charged him with any crime. The government is deporting him for his beliefs and his advocacy. Khalil’s lawyers say the removal order is retaliation for “his campus activism and criticism of Israel” and his advocacy “for a free Palestine and an end to the genocide in Gaza.” This is viewpoint discrimination—the government punishing a green-card holder for the content of his political speech.
Under Kleindienst v. Mandel, 408 U.S. 753 (1972), the government has broad authority to exclude noncitizens at the border based on speech or associations. But Mandel was an exclusion case—denial of a visa to enter. Khalil is a green-card holder who was lawfully admitted, is present in the United States, and is being removed. Lawful permanent residents have greater constitutional protections than excludable aliens, a distinction the Supreme Court has recognized. The First Amendment question is different. A statute that authorizes deportation based on “beliefs officials deem pose a threat to U.S. foreign policy interests” is a content-based, viewpoint-based restriction on speech. Judge Farbiarz found it would likely be declared unconstitutional. The 3rd Circuit’s ruling forecloses Article III review of that constitutional question until after Khalil has exhausted immigration courts, tribunals that have historically provided minimal protection for constitutional claims and that are institutionally incapable of providing the independent review the First Amendment requires.
The pattern is the justiciability dodge documented in prior columns—federal courts declining to adjudicate constitutional claims that would force uncomfortable grants or politically costly merits denials, while continuing to adjudicate comparable-complexity claims producing favored outcomes. The 3rd Circuit’s ruling does not hold that Khalil’s First Amendment claim fails on the merits. It holds that an Article III court cannot reach the merits until Khalil has spent months or years litigating through executive-branch tribunals. By the time an independent court can review his claim, the violation—his deportation—will have already occurred. Judge Emil Bove, a Trump appointee confirmed in early 2025, did not participate in the en banc—the full complement of judges rather than a three-judge panel—vote on rehearing and later denied a recusal request, calling it moot. Had Bove participated and voted for rehearing, the vote could have been 6-6 or 7-5 for rehearing, depending on the grounds for recusal.
Judge Krause’s dissent identifies what the majority has done: the court is “abdicating our duty to meaningfully review Khalil’s constitutional claims.” Khalil’s lawyers will ask the Supreme Court to intervene. The 3rd Circuit has foreclosed independent Article III review in this case. The immigration-exhaustion architecture produces the same result in every case that follows.