Mahmoud Khalil v. President United States of America

── Mahmoud Khalil v. President United States of America ── Court: Court of Appeals for the Third Circuit Date: May 22, 2026 Category: General UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 25-2162 & 25-2357 MAHMOUD KHALIL v. PRESIDENT UNITED STATES OF AMERICA, et al. Appellants (D.N.J. No. 2:25-cv-01963) ________________ SUR PETITION FOR REHEARING ________________ Present: HARDIMAN, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, CHUNG, and MASCOTT, Circuit Judges. The petition for rehearing filed by the Appellee in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, 1 and no judge who fully concurred in the decision having asked for rehearing, 2 and a majority of the judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is denied. BY THE COURT, s/ Thomas M. Hardiman Circuit Judge 1 Judges Krause, Restrepo, Freeman, Montgomery-Reeves and Chung vote for rehearing en banc. Judge Krause, joined by Judges Restrepo and Freeman, files the attached dissent sur denial of rehearing en banc. 2 Judge Freeman filed a partial dissent as to subject matter jurisdiction but joined the remainder of the Court’s opinion. Dated: May 22, 2026 Tmm/cc: All Counsel of Record KRAUSE, Circuit Judge, joined by RESTREPO and FREEMAN, Circuit Judges, dissenting sur denial of rehearing en banc. Federal courts have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). So, when the scope of a statute limiting our jurisdiction is unclear, we are duty-bound to follow “the general rule that the narrower construction of a jurisdiction-stripping provision is favored” and to apply a “strong presumption in favor of judicial review of administrative action.” E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec., 950 F.3d 177, 184 (3d Cir. 2020) (citation modified). And when reviewing a constitutional challenge to the detention of a person with significant ties to this country, we are required to secure the protections of the Suspension Clause. See U.S. Const. art. I, § 9, cl. 2. Here, by denying the petition for rehearing en banc and endorsing the panel majority’s opinion, our Court has done the opposite, interpreting 8 U.S.C. § 1252(b)(9) in a way that contravenes the plain reading of the statute, ignores canons of statutory construction, strains precedent, vitiates the Great Writ, and imperils the civil liberties of Petitioner Mahmoud Khalil and similarly situated noncitizens. Khalil’s case is exceptional in many ways. As a lawful permanent resident, he is “entitled to broad constitutional protections,” Osorio-Martinez v. Att’y Gen., 893 F.3d 153, 174 (3d Cir. 2018) (citation modified), including “a right to due process” when “threatened with deportation,” Landon v. 1 Plasencia, 459 U.S. 21, 32-33 (1982). But, as pleaded in his habeas petition, Khalil was specifically targeted for detention and removal because he exercised his First Amendment right to speak on matters of public concern: advocating for Palestinian rights as a student leader at Columbia University. Five plainclothes officers from the United States Department of Homeland Security (DHS) arrested Khalil at his home in New York City—without a warrant—in front of his wife, who was eight months pregnant at the time. By the next afternoon, DHS officers had transported Khalil across the c