A federal appeals court grilled the Justice Department on Tuesday as the DOJ asked the panel to reverse a lower court’s release of a foreign researcher, who the DOJ claims espoused praise for Hamas, from immigration detention.
A three-judge panel on the U.S. Court of Appeals for the 4th Circuit heard arguments in a case over the detention and removal of Badar Khan Suri, a foreign Georgetown University researcher who was in the United States on a student visa but was ordered removed by the Trump administration over his alleged praise of and familial link to Hamas. A federal district court blocked his removal from the country and ordered him released after he filed a habeas corpus claim contesting his detention, a popular method for illegal immigrants and other noncitizens seeking to be freed from immigration detention without going through immigration courts.
DOJ lawyer Drew Ensign argued the district court acted improperly by releasing Suri, pointing to federal law that removes federal courts from reviewing immigration cases and instead funnels those claims to immigration courts. Ensign pointed to a ruling by the 3rd Circuit, which is only binding to that circuit, in the case of Mahmoud Khalil, which found that a district court erred by releasing someone from immigration detention through a habeas corpus petition.
“That path begins with a petition for review of his removal order, not a habeas petition, but habeas is the path the petitioner has chosen here, and the district court indulged that unlawful Detour by granting habeas relief,” Ensign said.
“The illegality of that path is underscored by the third circuit’s recent decision in Khalil, which reiterated that equivalent claims must be raised to circuit courts through the [petition for review] process and not to district courts through habeas,” he said.
When questioned by one of the judges on the panel over concerns about a lack of review of the reasons why the government decided to detain a noncitizen and take away his visa, Ensign responded that federal law does not prevent review but rather gives immigration courts the power to conduct that review process, followed by a federal appeals court if necessary.
“Review here is not suspended, it’s merely channeled, and that is precisely what Congress intended,” Ensign said.
The three-judge panel appeared generally skeptical of the government’s claims that it may detain Suri and that a federal district court may not review his detention. The panel of judges was made up of appointees of former presidents Ronald Reagan, Barack Obama, and Joe Biden. The panel did not provide a timeline for when they plan to rule on the administration’s appeal.
APPEALS COURT HANDS TRUMP WIN ON THIRD-COUNTRY DEPORTATION POLICY
The Trump administration has faced an avalanche of adverse rulings on its immigration policies in federal district courts, even as federal law was designed to largely remove those courts from overseeing immigration disputes. Despite losses, the administration has had two key wins in federal appeals courts this year on two key issues.
The ruling in the Mahmoud Khalil case by the 3rd Circuit found that Khalil raised issues with the administration’s attempt to remove him in the wrong forum, when he petitioned to a federal district court instead of an immigration court. In another case in the 5th Circuit, a panel found that the administration’s policy of mandatory detention for illegal immigrants is lawful, contrary to various district courts’ previous rulings.