Mahdawi: Why the Release Appeal Turned on the Claims in the Petition

Being released from immigration detention can let a person return to family, work and school while the case continues. A government appeal can leave another serious question unresolved: Did the court have the power to order that release?

Mohsen Mahdawi obtained release in 2025, and the government did not win a stay of that order. In Mahdawi v. Trump, No. 25-1113 (2d Cir. July 21, 2026), a later Second Circuit panel concluded that the district court lacked jurisdiction over his habeas petition. The panel vacated the release order and directed dismissal of the petition on remand. It explained why the earlier stay ruling did not bind the merits panel and why Mahdawi’s actual challenge belonged in the removal-review process.

The Second Circuit then ordered rehearing before the full court on September 3, 2026. Its September 11 briefing order asked whether the district court erred in granting Mahdawi’s release.

The release request also challenged the grounds for removal

Mahdawi had lived in the United States for more than a decade and was a lawful permanent resident. Officers arrested him at a USCIS facility in Vermont after a naturalization interview on April 14, 2025. The charging document relied on the Secretary of State’s determination that his presence or activities could have potentially serious adverse foreign policy consequences for the United States.

His federal petition alleged that the government had targeted him for detention and removal because of protected speech. Mahdawi asked the district court to set aside both the Secretary’s determination and an alleged policy of targeting noncitizens for removal based on pro-Palestinian speech. He also asked for release. The relationship between those requests became central to the appeal.

Release came before final jurisdictional review

The district court approached its authority to hear the case as a preliminary question. As the appellate opinion recounts, the judge found a sufficient basis to consider release and said the court would return to jurisdiction after briefing on the government’s dismissal motion. It ordered Mahdawi’s release on April 30, 2025, while his habeas petition was being considered.

The government appealed and sought a stay, which would have paused the release order during the appeal. In its May 9, 2025 Mahdawi stay decision, 136 F.4th 443 (2d Cir. 2025), the motions panel considered likely success alongside irreparable injury, harm to the other party and the public interest. It found the government’s jurisdictional arguments unlikely to succeed, denied the stay and denied its alternative request for an extraordinary writ. The opinion directed the parties to arrange briefing on the merits of the appeal.

Why the merits panel revisited the earlier ruling

The merits panel reviewed the legal jurisdiction question afresh. It explained that the law-of-the-case doctrine did not bind it to the motions panel’s prediction. That doctrine generally encourages a court to keep legal questions settled as a case moves forward, but the panel described it as discretionary.

The panel identified concrete reasons for revisiting the issue. A motions panel works with an abbreviated record and without the full briefing available at the merits stage. The court also considered reexamination especially important when there was reason to question jurisdiction. An earlier prediction about likely success therefore did not settle the later jurisdictional decision.

The panel also examined decisions suggesting that a merits panel would need compelling reasons to revisit a motions ruling. It traced that language to authorities addressing final decisions in earlier appeals. It therefore treated the earlier, interlocutory jurisdictional determination as open to review.

The panel examined the legal question behind the requested relief

The panel applied 8 U.S.C. section 1252(b)(9), which gathers removal-related legal and factual questions into review of a final removal order. The provision expressly addresses habeas review. The panel treated Mahdawi’s request to invalidate the removability determination and removal policy as a challenge to the government’s basis for seeking his removal.

In the panel’s analysis of the retaliation claim, the arguments against detention were the same arguments against removal. Granting the requested relief would require deciding whether the determination and policy underlying removal were unlawful. The panel concluded that framing the petition as a detention challenge did not change that legal dependency.

Mahdawi argued that section 1252(b)(9) applied only once a final removal order had issued. The panel rejected that reading. It emphasized the provision’s language covering legal and factual questions arising from removal actions, and explained why it read the opening reference to review of an order as reaching related questions during the process.

The panel’s discussion of Jennings v. Rodriguez also focused on the kind of question presented. It distinguished challenges to detention’s length or conditions from Mahdawi’s claim that the government’s basis for trying to remove—and therefore detain—him was unlawful. Its analysis tied the review route to the substance of this petition.

Immediate harm and the underlying legal question were different

Mahdawi also argued that later review could come too late to remedy the injury of detention. Time spent confined would already have passed by the time a court considered a final removal order. His argument asked the court to treat that immediate injury as a reason for district-court review.

The panel required more. In its discussion of a now-or-never claim, it separated an injury occurring before final review from legal or factual questions independent of removal that a later petition for review could not meaningfully address. It concluded that a distinct detention injury alone did not permit parallel litigation of the same removal-related legal question.

The panel’s concern was that a district court could decide the validity of the removal predicate first, leaving the later petition-for-review court with a question already resolved elsewhere. It viewed that duplication as contrary to Congress’s decision to gather removal-related questions into one review process.

The Fourth Circuit reached a different view of the custody claims in Suri. It examined an amended request directed to apprehension, detention and transfer, and emphasized the injury from custody that later review would not meaningfully redress. The two opinions make the actual pleading and the connection between the claimed injury and removal important to understanding their disagreement.

The panel examined the review procedures actually available

The panel also pointed to an administrative route to release consideration. In Mahdawi’s discussion of a Joseph hearing, the government confirmed that he could request a hearing to dispute his classification as ineligible for ordinary immigration-judge bond review. A successful classification challenge would allow the immigration judge to consider bond.

Mahdawi had not requested that hearing and argued it would be futile. The panel viewed it as a meaningful opportunity to present evidence and legal authority about whether he belonged in the category barring bond review. Its discussion also addressed constitutional arguments bearing on the application of the detention category.

He separately argued that a petition for review would not provide a sufficient way to develop the facts needed for his claims. The panel acknowledged that appellate review ordinarily proceeds on the administrative record. It pointed to testimony and exhibits in immigration proceedings and to government representations about further factfinding when that record was inadequate.

The panel’s record-development discussion quoted a Hobbs Act procedure for transferring proceedings for a district-court hearing when the agency had not held a hearing, no hearing was legally required and a genuine issue of material fact existed. It also referred to the government’s proposed use of a special master or another mechanism where constitutional necessity required one. These were part of the panel’s explanation for finding later review meaningful.

The concurrence supplied additional reasons

All three judges joined the section 1252(b)(9) holding. Having resolved the appeal on that ground, the majority said it did not need to reach the government’s alternative arguments under sections 1226(e), 1252(a)(5) and 1252(g).

Judge Menashi joined the opinion and wrote a separate concurrence. He argued that other INA provisions also barred the petition and that section 1226(e) would prevent review even of a genuine challenge to an individual discretionary detention decision. He further concluded that the restriction he described was consistent with the Suspension Clause.

Menashi also would have required Mahdawi to exhaust the available administrative remedies. Even if the jurisdictional barriers could be overcome, he reasoned, the petition would have to be dismissed or stayed until that process was completed. The majority’s own discussion of the Suspension Clause took a different procedural route: It treated an underdeveloped argument in a footnote as waived and added that Mahdawi had not shown the petition-for-review process to be facially inadequate.

The full court ordered briefing on the release question

After granting full-court rehearing, the Second Circuit’s September 11 order directed the parties to brief this question: “Did the district court err in granting the Petitioner’s release?” The order set briefing dates and scheduled argument. The appeal had moved from the July panel’s jurisdictional reasoning to a further stage of review before the full court.

Read the release order and appeal papers together

For someone already released while litigation continues, Mahdawi’s history shows why the orders need to be read in sequence. Counsel needs to identify the decision being challenged, the relief requested, the basis for release and the questions still contested on appeal.

• The operative petition and its prayer: Preserve the version identifying what the court was asked to set aside and what custody relief was sought.
• The release order: Identify the legal basis for release and whether the court was acting while the habeas case continued.
• The appellate orders: Keep the stay request, stay decision, merits opinion and rehearing or briefing orders together so their different questions remain clear.
• The custody and agency-review papers: Preserve the government’s detention classification, hearing requests, responses and decisions showing which administrative procedure was available or used.

A California case also requires attention to Ninth Circuit authority and the precise statutory restriction involved. Our analysis of Padilla explains a constitutional challenge to a statutory detention framework under different section 1252 provisions. Reading the requested order alongside the asserted jurisdictional bar helps counsel identify the question the court is being asked to answer.

Sources: The official July 21, 2026 Mahdawi panel opinion supplies the facts, procedural history, majority reasoning and concurrence analyzed here. The September 3 rehearing order and September 11 briefing order supply the later procedural steps described above. The official May 9, 2025 Mahdawi stay opinion supplies the earlier stay analysis. Other references to earlier proceedings and cited decisions describe the July panel’s account.