May 22 - A sharply divided 3rd U.S. Circuit Court of Appeals on Friday refused to rehear the case of Columbia University graduate Mahmoud Khalil, who has been at the center of litigation over his immigration detention. By a 6-5 vote, the court denied Khalil's request to revisit a January decision from a 2-1 panel that found a district court judge lacked jurisdiction to direct his release from immigration custody last year.
The appeals court's action preserves the panel ruling and, in doing so, leaves the door open to the Trump administration re-arresting and seeking the deportation of Khalil. He was identified as one of the most prominent among several foreign students detained following their participation in pro-Palestinian activism on college campuses last year, actions that occurred amid a wider enforcement effort by the administration.
The court's internal division tracked appointing presidents. Six judges who were appointed by Republican presidents formed the majority that opposed rehearing the case. Five judges appointed by Democratic presidents voted to grant a rehearing. Among those in the minority was U.S. Circuit Judge Cheryl Ann Krause, an appointee of President Barack Obama, who warned that the majority's decision constrained the judiciary's capacity to protect non-citizens' civil liberties.
"We cannot fulfill that role if we write ourselves out of relevance and leave the Executive Branch to check itself," Krause wrote, urging reconsideration that she said was necessary to preserve judicial oversight.
Baher Azmy, an attorney representing Khalil at the Center for Constitutional Rights, said his client would seek review by the U.S. Supreme Court. In a statement, Azmy characterized the appeals court decision as "dangerous" and said he would ask the high court to overturn it.
"That ruling greenlights holding someone in prolonged, brutal detention conditions without access to meaningful judicial review in order to punish them and deter others from dissenting from U.S. foreign policy," Azmy said.
The court's refusal to rehear the case leaves unresolved the immediate prospects for Khalil's custody status and any potential re-arrest or deportation proceedings. Azmy's announced intention to petition the U.S. Supreme Court signals the next likely procedural step, though the outcome of any such petition is not addressed by the appeals court's action.
Contextual note: The litigation centers on whether federal district courts have the authority to order the release of non-citizens detained by immigration authorities under the circumstances presented in Khalil's case. The January panel decision concluded that a lower-court judge lacked that jurisdiction, a conclusion now left intact by the full appeals court's denial of rehearing.