Law360 (September 22, 2026, 7:00 PM EDT) -- The Trump administration implored the U.S. Supreme Court to cure a circuit split over noncitizens filing habeas petitions to challenge their detention during pending removal proceedings, warning of "intolerable disuniformity" in how the Immigration and Nationality Act is administered.

Seeking review of a Fourth Circuit panel's 2-1 ruling in July that upheld a Virginia district court's order requiring the release of Badar Khan Suri on bail amid his habeas proceedings, the administration said the panel ran afoul of the INA's "channeling scheme." Only after the issuance of a final removal order in administrative immigration proceedings can a noncitizen petition for judicial review at the appropriate circuit court, the administration argued, saying district courts are generally stripped of jurisdiction.

"If an alien can raise a claim immediately in habeas that he could also raise later in a [petition for review], then this design will collapse under the weight of duplicative litigation," it said in its petition for certiorari on Monday. "The existing circuit conflict threatens intolerable disuniformity in the administration of the INA."

The administration pointed in turn to the Third Circuit's January ruling in Khalil v. Trump and Second Circuit's July ruling in Mahdawi v. Trump , which held that each lower district court lacked subject-matter jurisdiction over the habeas petitions in their respective cases. The Second Circuit has since ordered an en banc review, while the petitioner in the Third Circuit case, former Columbia University graduate student Mahmoud Khalil, has been granted permission by the Supreme Court to file a cert petition by mid-October, court records show.

The administration recommended that if the justices agree to review this case, it should do so alongside Khalil's.

With respect to the INA, the government first pointed to Section 1252(b)(9), which the high court described as a "zipper clause" in its related 2020 ruling in Nasrallah v. Barr . It generally requires that judicial review of "all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States ... shall be available only in judicial review of a final order under this section."

The administration then pointed to Section 1252(g) of the INA, which it said "supplements" the law's "prohibition" on judicial review beyond the petition-for-review process. That provision states that, generally, "no court shall have jurisdiction to hear any cause or claim" with respect to a noncitizen "arising from the decision or action by the attorney general to commence proceedings, adjudicate cases, or execute removal orders."

In the case of Suri, he had entered the U.S. on a J-1 visa to work as a postdoctoral fellow at Georgetown University. But due to Secretary of State Marco Rubio's determinations that he'd "expressed support" for Hamas leadership and was involved in "antisemitic activities," the administration initiated removal proceedings against him. In turn, like Khalil and Mohsen Mahdawi at the Second Circuit, Suri argued in his habeas petition that the administration was retaliating against him for supporting the Palestinian people and criticizing U.S. support of Israel's attack on Gaza.

In siding with Suri, the Fourth Circuit noted the distinction between his challenge to his detention versus the administration's decision to seek removal, finding that Section 1252(g) "does not speak to detention," and that under high court and circuit precedent, Section 1252(b)(9) applies only to the review of a removal order.

But on Monday, the administration invoked U.S. Circuit Judge J. Harvie Wilkinson III's dissent in the Fourth Circuit's July ruling, in which he said that "[e]very alien who is detained pending removal will now have a pathway into district court for a thinly veiled habeas challenge to his removability."

The zipper clause is triggered by "all questions of law" arising from removal actions, the government said, saying it therefore doesn't matter whether a noncitizen is only challenging their detention.

"Left unchecked, such suits risk producing an overwhelming litigation burden on both the government and the courts," it maintained. "And even where an alien's claims are meritless, the existence of those claims will still drain governmental time and resources, further impeding any efforts at an efficient system of immigration enforcement nationwide."

Representatives for the parties did not respond to requests for comment Tuesday.

The government is represented by D. John Sauer, Brett A. Shumate, Sarah M. Harris, Drew C. Ensign, Harry Graver, Joshua S. Ha and Alanna T. Duong of the U.S. Department of Justice's Civil Division.

Counsel information for Suri was not immediately available.

The case is Trump et al. v. Suri, case number 26-380, in the U.S. Supreme Court.

--Additional reporting by Madeline Lyskawa, Britain Eakin and Carla Baranauckas. Editing by Adam LoBelia.

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