Mahmoud Khalil's 15 minutes on the national stage are almost over. Way back in January, a panel of judges from the 3rd Circuit Court of Appeals ruled 2-1 that Khalil could be arrested and deported.
In a split opinion, two of the three judges on the appeals court, Thomas Hardiman and Stephanos Bibas, found that the New Jersey district judge who oversaw Mr. Khalil’s petition for release was not the proper authority to have ruled on it. The matter should have initially been addressed by an immigration court, the majority said.
But a third circuit judge, Arianna J. Freeman, disagreed, saying that Mr. Khalil had claimed that the government violated his fundamental rights and proved that he was irreparably injured during his detention...
On Thursday, the circuit judges found that the New Jersey district judge, Michael E. Farbiarz, lacked what is known as subject-matter jurisdiction, or the power to oversee certain types of matters, and ordered that he dismiss Mr. Khalil’s habeas petition. They suggested that Mr. Khalil’s release had not been Judge Farbiarz’s to grant, throwing his continued freedom into question.
The judges said that provisions of the Immigration and Nationality Act, the key law that governs immigration, suggested that Mr. Khalil could not challenge his detention or the government’s attempt to remove him in Judge Farbiarz’s court without first going through the immigration court process.
At the time, the NY Times predicted that "Thursday’s decision will almost certainly be reviewed by a full panel of Third Circuit judges."
Today, the 3rd Circuit Court of Appeals refused to reconsider Khalil's case, meaning he could once again be heading toward deportation.
On Friday, the U.S. Court of Appeals for the Third Circuit, which hears cases that originate in New Jersey, declined to review a January decision by three of its own judges that opened the door for Mr. Khalil to be arrested again.
That decision did not get into the issues at the heart of the case. Rather, it addressed the question of which of the two courts where Mr. Khalil’s case was proceeding — the Federal District Court or immigration court — was entitled to opine on the Constitutional issues in Mr. Khalil’s case. Mr. Khalil argued that the district court had the right to weigh in; the government said that the issues belonged in immigration court.
His only remaining option at this point is to appeal his case to the Supreme Court. This seems like a longshot.
Mr. Khalil’s lawyers have already asked the Third Circuit to halt the impact of its Friday decision while they appeal to the Supreme Court on those jurisdictional issues...
“We hope the Supreme Court will recognize how dangerous the Third Circuit’s decision was, not just for Mahmoud but for other noncitizens the administration has its vengeful sights upon,” said Baher Azmy, a lawyer for Mr. Khalil and legal director of the Center for Constitutional Rights...
If neither the Third Circuit nor the Supreme Court grant Mr. Khalil’s request to halt the ruling’s impact, the case will return to Federal District Court after a week, most likely requiring the judge who has handled Mr. Khalil’s case there, Michael E. Farbiarz, to dismiss his original petition seeking release.
If that petition is dismissed, then Judge Farbiarz's order that Khalil not be deported goes with it. However, the Times notes that even if no court agrees to reconsider his case, he has a concurrent case running through the immigration courts. That case could also be appealed, this time the the 5th circuit. But the 5th circuit is more conservative than the 3rd circuit so his chances there don't look too good.
Khalil can probably drag this out for a couple more months with appeals but the ultimate outcome is looking more and more like deportation to Algeria where he apparently has some relatives.
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