The U.S. Supreme Court Building in Washington, where Mahmoud Khalil filed a petition on Oct. 19 asking the justices to review his detention case. U.S. Department of Agriculture photo via Wikimedia Commons (public domain).
Khalil wants the justices to rule that a green card holder detained over his speech can go straight to a federal judge, rather than wait years for the removal appeal process to run its course.
Mahmoud Khalil, the Columbia University graduate and green card holder whose March 2025 arrest became the leading test of the government’s power to deport noncitizens over pro-Palestinian activism, asked the Supreme Court on Oct. 19 to let district judges hear claims that immigration detention is being used to punish protected speech. The Mahmoud Khalil petition challenges a January ruling by the U.S. Court of Appeals for the Third Circuit that sent those claims to the slower track of a removal appeal, an issue on which federal appeals courts are split, according to Reuters.
Khalil himself is not at immediate risk: a lower-court order barring the government from re-detaining him stays in place until the Supreme Court acts, Reuters reported. What is at stake is which courthouse door a detained noncitizen can knock on, and how quickly.
Two routes into court, months or years apart
Federal immigration law funnels most challenges connected to deportation into a single channel. Under 8 U.S.C. 1252(b)(9), questions “arising from” removal proceedings are reviewed only on a petition for review of a final removal order, filed in a court of appeals after an immigration judge and the Board of Immigration Appeals have ruled.
The alternative is a habeas corpus petition in federal district court, where a judge can order a detainee released within weeks. That is the route Khalil took. U.S. District Judge Michael Farbiarz in New Jersey ordered him freed, and he left a Louisiana detention center in June 2025. A divided Third Circuit panel reversed in January, holding 2-1 that immigration law barred the district court from ordering his release and that his claims had to be raised in an appeal of the immigration judge’s removal order, Reuters reported. The full court declined to rehear the case.
The practical difference is large. A detained person on the petition-for-review track must first lose before an immigration judge and the Board, then file in a court of appeals, and an argument that the arrest itself was retaliation for speech can sit unresolved through all of it. Khalil’s lawyers want the justices to say that the channeling provisions do not swallow a First Amendment retaliation claim aimed at detention rather than at the removal order.
The government’s case and the odds of review
The government’s position is that Khalil is removable and that his challenge belongs in the immigration process. Secretary of State Marco Rubio invoked what Reuters described as an obscure provision of the Immigration and Nationality Act to declare him deportable, citing “antisemitic protests and disruptive activities” at Columbia in 2024 that the government said created a hostile environment for Jewish students. In April, the Board of Immigration Appeals rejected Khalil’s challenge to an immigration judge’s order that he be removed to Algeria or Syria, and his separate appeal of that order is still pending, according to Reuters.
Khalil framed the stakes more broadly when he spoke to reporters on Monday, arguing that if this administration can punish someone for pro-Palestinian speech, a future administration could punish any speech, Reuters reported.
The most telling detail may be that both sides now want the Supreme Court involved. Last month the administration asked the justices to overturn a ruling that favored Badar Khan Suri, a Georgetown University scholar detained by ICE and later ordered released, according to Reuters. When the government and a challenger are each asking the Court to resolve the same jurisdictional question, and the circuits disagree, the conditions the justices usually look for in granting review are largely in place. The open question is which case they choose as the vehicle, and whether they decide the two together.
A ruling for the government would push speech-based detention claims by students, scholars and green card holders into immigration court, where judges cannot strike down a statute or rule on constitutional challenges to it. A ruling for Khalil would keep district courts available as a fast check on arrests that detainees say are retaliatory. Either way, the decision would reach well beyond campus protest cases, because the same channeling provisions govern most detention challenges filed by noncitizens in removal proceedings.
What to watch
- The government’s response: under Supreme Court Rule 15, a brief in opposition is due 30 days after the case is docketed, and extensions are common.
- The Khan Suri petition: how the Court handles the government’s own request may signal whether it takes up the question this term.
- Khalil’s removal appeal: a ruling on his pending challenge to the removal order could reshape the case before the justices act.
This article is for general information and is not legal advice.
Sources
- Reuters, “Palestinian activist Mahmoud Khalil asks US Supreme Court to hear case seeking to avoid re-arrest,” Oct. 19, 2026 (as republished by GV Wire)
- 8 U.S.C. 1252, Judicial review of orders of removal
- Rules of the Supreme Court of the United States (Rule 15)
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