Divided Fourth Circuit Panel Creates Circuit Conflict on Habeas Jurisdiction for Detained Aliens

In a ruling yesterday in Suri v. Trump, a Fourth Circuit panel divided on the question whether a federal district court has subject-matter jurisdiction over an alien’s habeas petition asserting that his detention and attempted removal violate the First Amendment. Judge DeAndrea Gist Benjamin wrote the majority opinion, which Judge Pamela Harris joined. Judge Harvie Wilkinson vigorously dissented.

The legal issue in the case is whether federal statutes bar the district court from exercising jurisdiction over the alien’s habeas petition. Two subsections of 8 U.S.C. § 1252 are in dispute. Subsection 1252(b)(9) states:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

Subsection 1252(g) further states:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

Some observations:

1. On first and second reads, Judge Wilkinson’s dissent sure seems right to me. Here’s his summary of his position:

The Immigration and Nationality Act (INA) strips district courts of subject matter jurisdiction over nearly all claims “arising from” removal proceedings. See 8 U.S.C. §§ 1252(b)(9), (g). When an alien challenges the government’s decision to detain him at the start of those proceedings, his claim arises from them. That means a district court sitting in habeas may not hear it. Instead, the alien must wait and raise his arguments—however meritorious—before a court of appeals in a petition for review (PFR) of a final order of removal.

This conclusion follows straightforwardly from the words “arising from,” which are broad. In reaching the opposite conclusion, the majority saps them of all meaning, construing them so narrowly that nothing will arise from anything. Further, the majority breezes past such emphatic statutory terms as “any,” “all,” “sole and exclusive,” “only,” and “no,” designed to denote unmistakable congressional intent.

In short, the majority rips an irreparable hole in the INA’s jurisdiction-channeling scheme. Every alien who is detained pending removal will now have a pathway into district court for a thinly veiled habeas challenge to his removability. Each such suit will grind removal proceedings to a halt, invite a district court to take control of them, and require the government to prove the alien’s removability a second time. This medley of duplication and delay is precisely what Congress intended to avoid when it channeled nearly all claims arising from removal proceedings into the PFR process.

2. The Fourth Circuit’s ruling creates a conflict with the two other circuits that have addressed the issue.

A Third Circuit panel ruled in January in Khalil v. President that subsection 1252(b)(9) stripped the district court of subject-matter jurisdiction over a similar habeas petition. (It found it unnecessary to address subsection 1252(g)). Judge Thomas Hardiman and Judge Stephanos Bibas joined the per curiam opinion. Judge Arianna Freeman dissented.

A unanimous Second Circuit panel made the same ruling on Monday in Mahdawi v. Trump. Judge Debra Ann Livingston wrote the majority opinion, which Judge William Nardini and Judge Steven Menashi joined. The panel rejected the contrary ruling made by a motions panel.

3. For whatever reason, the Fourth Circuit majority was so eager to issue its ruling that it failed to rework its opinion to take full account of Monday’s ruling by the Second Circuit. The Fourth Circuit cites the ruling of the Second Circuit motions panel five times and touts that its holding “aligns with” that ruling. It buries in a footnote, way back on page 53, the contrary ruling by the Second Circuit merits panel. I don’t understand why it didn’t take an extra day or two to reframe its opinion.

On a much lesser note: As a longtime resident of Arlington, Virginia, I object that the opinion states that the alien and his wife “reside in Rosslyn, Virginia.” Rosslyn is a neighborhood in Arlington. It is not a municipality.

4. In all three appellate cases, appointees of Republican presidents are on one side of the issue and appointees of Democratic presidents are on the other side. Restrictions on subject-matter jurisdiction tend to divide judges on ideological lines.

5. I expect that the Supreme Court will agree with Livingston, Hardiman, Bibas, and Wilkinson.