Appeals Court Opens the Door to Mahmoud Khalil’s Rearrest

Any new detention would not come immediately, and Mr. Khalil’s lawyers are almost certain to appeal. But the ruling is a major blow to Mr. Khalil, a Columbia graduate and prominent figure in the pro-Palestinian movement.

An appeals court on Thursday reopened the possibility that Mahmoud Khalil, the Columbia University graduate and pro-Palestinian protester jailed for months by the Trump administration, could be detained as the government seeks to deport him.

Mr. Khalil’s rearrest would not come immediately, and his lawyers plan to appeal. Still, the ruling from the U.S. Court of Appeals for the Third Circuit marks a major blow to Mr. Khalil, whose case became an early and high-profile example of the White House’s crackdown on pro-Palestinian speech.

A legal permanent resident whose wife and son are American, Mr. Khalil was the first of a number of students to be arrested after participating in demonstrations on college campuses against Israel’s war in Gaza.

He was arrested in March and detained for more than three months in Louisiana, even as others in similar situations were released by the courts. He was also prevented from being present for the birth of his son.

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.

Judge Hardiman was appointed by President George W. Bush, Judge Bibas by President Trump during his first term and Judge Freeman by President Joseph R. Biden Jr.

Baher Azmy, a lawyer for Mr. Khalil, said: “We are disappointed with and strongly disagree with the majority opinion, but take heart in the very powerful and persuasive dissenting opinion. We’ll continue to fight with all available legal options.”

Immigration courts are part of the executive branch, not the judicial branch, and are overseen by the Justice Department. Those courts are the first to address deportation proceedings, which were initiated when Mr. Khalil was first detained.

But Mr. Khalil’s lawyers filed a writ of habeas corpus — a legal action for challenging incarceration — with a district judge seeking his release and the prevention of those proceedings.

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. They ordered that he dismiss Mr. Khalil’s habeas petition.

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.

Mr. Khalil was initially detained on the basis of a determination by Secretary of State Marco Rubio, who argued that Mr. Khalil’s very presence in the United States contributed to the spread of antisemitism. Mr. Rubio cited a rarely used statute as the legal rationale for Mr. Khalil’s deportation.

Mr. Khalil’s lawyers have pointed toward comments Mr. Khalil has made condemning antisemitism, and Mr. Khalil has rejected the idea that protesting against Israel is inherently antisemitic.

Shortly after his detention, once Mr. Khalil’s lawyers had filed the habeas petition in Federal District Court, the administration added a new rationale for his deportation. It said that Mr. Khalil had failed to disclose membership in several organizations when he applied for legal residency in March 2024, a claim that Mr. Khalil’s lawyers said was baseless.

Judge Farbiarz, a former prosecutor, proceeded methodically in addressing Mr. Khalil’s case. But in May, he found the law cited by Mr. Rubio was most likely unconstitutional, and the following month, ordered Mr. Khalil’s release.

Mr. Khalil’s lawyers had reached an agreement with the Trump administration that his immigration proceedings would be paused. His case was being considered by the Board of Immigration appeals, the appeals level of immigration court.

Thursday’s decision could ultimately mean that the deportation proceedings will continue if Judge Farbiarz dismisses Mr. Khalil’s petition as instructed. But the next step for Mr. Khalil’s lawyers would be to ask a full panel of Third Circuit judges to weigh in, which would pause all proceedings.

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