Updated: as of about 48 hours ago, the able USDC Judge has ruled that he has jurisdiction to decide the habeas motion. He’s giving Noem two days to appeal (mostly suspecting she’ll claim bad venue). But the die is cast (here’s that fine 100 plus page opinion.

Now, this morning, the very capable lawyers for Mr. Khalil offered to help the able USDC Judge in Newark figure out whether to let the government keep “gaming the system”, while it wrongfully holds him in a private prison in Jena, Louisiana.

His offense? He holds opinions that Tangerine disfavors. Here’s that fine three page letter, and a bit:

…[T]his Court’s opinion joins the unanimous consensus amongst federal district courts that the Immigration and Nationality Act (“INA”) does not strip habeas jurisdiction over claims by noncitizens that they were targeted and detained for exercising their First Amendment rights. See Ozturk v. Trump, 2025 WL 1145250 (D.Vt. Apr. 18, 2025), at *10–15; Mahdawi v. Trump, No. 25-cv-389 (D. Vt. Apr. 30, 2025), at 7–15; cf. Taal v. Trump, 2025 WL 926207, at *2 (non-habeas action by student who had “concede[d]” he will “have the opportunity to raise his constitutional challenges before the immigration courts…”).

Nor is there any substantial dispute that Petitioner cannot obtain meaningful review of his constitutional claims in the immigration courts.

Indeed, Respondents themselves have acknowledged that the immigration courts cannot afford Petitioner the relief that he seeks, nor can they develop an adequate record for review of his constitutional claims by the court of appeals in the first instance. ECF 185, 190; Op. 61–62. And several circuits are in agreement with the Third Circuit that, if a petitioner seeks “relief that courts cannot meaningfully provide alongside review of a final order of removal,” section 1252(b)(9) does not apply. E.O.H.C. v. Sec’y DHS, 950 F.3d 177, 180 (3d Cir. 2020); see also Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007)((b)(9) does not apply where administrative process cannot provide “meaningful judicial review”); Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (“whether district court has jurisdiction will turn on the substance of the relief that a plaintiff is seeking”). “EOHC and Massieu thus point in the same direction:” that “‘meaningful review’” is the “touchstone” for determining whether a case must proceed in immigration court. Op. 51–52. Even where courts have countenanced some delay in federal court review so that the administrative process can run its course, their “response to a here-and-now impact on political speech has been the same across the board: no unnecessary delay.” Op. 83; id. at 84–88 (collecting cases). The Court’s ruling fits squarely within this unbroken tradition. Respondents may disagree with the Court’s conclusion that Massieu v. Reno, 91 F.3d 416 (3d Cir. 1996), is not “dispositive” here, ECF 218 at 2, but a motion for certification cannot be granted “merely because a party disagrees with the ruling of the district judge.” Max Daetwyler Corp. v. R. Meyer, 575 F.Supp. 280, 282 (E.D.Pa.1983).

And to the extent that EOHC and Chehazeh v. Att’y Gen. of the U.S., 666 F.3d 118 (3d Cir. 2012), “appear to pull in different directions, Op. 40, that does not help Respondents because they cannot succeed under either case. See Knopick v. Downey, 963 F. Supp. 2d 378, 398 (M.D. Pa. 2013)….

This is what bad faith litigation [by Noem / Rubio / Tangerine 2.0] smells like. Damn. And all the while — Mr. Khalil waits behind bars (missing the birth of first child — and the early care and feedings, leaving his wife to go it alone) — he’s charged with no real crime, and equally certainly, there was never any evidence of any violence, at all on his part (arrested without a warrant, over 40 days ago, now).

नमस्ते