Appeals Courts Create Circuit Split on Federal Jurisdiction to Review ICE Detention for Retaliation
The Fourth Circuit Court of Appeals has ruled that federal courts can review claims of retaliatory ICE detention, directly contradicting recent decisions by the Second and Third Circuits. The stark division sets the stage for a likely Supreme Court showdown over First Amendment rights and immigration enforcement.
By Factlen Editorial Team
- Legal & Procedural Observers
- Focus on the mechanics of the circuit split, the statutory interpretation of the INA, and the likelihood of Supreme Court review.
- Civil Liberties Advocates
- Argue that the First Amendment protects everyone on U.S. soil and federal courts must have immediate jurisdiction to stop retaliatory detention.
What's not represented
- · Immigration Court Judges who handle the removal proceedings and face the backlog of cases.
- · Legislators who drafted the jurisdiction-stripping provisions of the Immigration and Nationality Act.
Why this matters
This circuit split determines whether noncitizens detained by ICE have immediate access to federal courts to challenge their confinement as unconstitutional retaliation, or if they must endure months of detention while waiting for immigration proceedings to conclude. The stark division between appellate courts makes a Supreme Court intervention highly likely, which will ultimately define the boundaries of First Amendment protections for millions of people on U.S. soil.
Key points
- The Fourth Circuit ruled that federal district courts can hear habeas petitions from noncitizens alleging retaliatory ICE detention.
- The 2-1 decision directly conflicts with recent rulings from the Second and Third Circuits.
- The legal dispute centers on whether the Immigration and Nationality Act strips federal courts of jurisdiction before removal proceedings conclude.
- The circuit split makes a Supreme Court review highly likely to resolve the conflicting interpretations of federal law.
On July 23, 2026, the Fourth Circuit Court of Appeals ruled that federal district courts possess the authority to review claims from noncitizens who allege they were detained by immigration officials in retaliation for exercising their First Amendment rights.[2]
The 2-1 decision directly contradicts recent rulings from the Second and Third Circuits, creating a formal and stark circuit split within the federal judiciary.[1][5]
At the heart of this conflict is a fundamental tension in American law: the constitutional guarantee of habeas corpus—the right to challenge unlawful detention—versus the jurisdiction-stripping provisions of the Immigration and Nationality Act (INA).[2][6]
The Fourth Circuit case centers on Dr. Badar Khan Suri, an Indian national and postdoctoral fellow at Georgetown University who is married to a U.S. citizen.[1][3]
In March 2025, U.S. Immigration and Customs Enforcement (ICE) arrested Dr. Suri outside his Virginia home. His legal team argued the detention was direct retaliation for his pro-Palestinian political speech on social media, which constitutes a violation of his First Amendment rights.[3][4]
Following his arrest, Dr. Suri was transferred across multiple facilities and detained for nearly six weeks in Texas before a federal district judge in Virginia ordered his release on bail.[1][4]
The federal government appealed that release, arguing that under Section 1252(b)(9) of the INA, federal district courts lack the subject-matter jurisdiction to hear such challenges.[2][6]
According to the executive branch, the INA requires that any challenge to immigration enforcement actions be channeled exclusively through the immigration court system during formal removal proceedings.[2]
The Fourth Circuit majority firmly rejected this argument. Writing for the court, U.S. Circuit Judge DeAndrea Gist Benjamin stated that denying immediate judicial review "undermines the protections guaranteed all persons on American soil by the writ of habeas corpus."[1][2][6]
The court emphasized that waiting for removal proceedings—which can take months or years to conclude—does a detained noncitizen "no good" if the detention itself is the alleged constitutional violation.[1][6]
This conclusion stands in direct opposition to the Third Circuit's ruling in January 2026. In that case, the court ruled against Mahmoud Khalil, a former Columbia University student detained under similar circumstances.[1][5]
This conclusion stands in direct opposition to the Third Circuit's ruling in January 2026.
The Third Circuit held that the INA's jurisdiction-channeling scheme strictly bars district courts from intervening, requiring all claims to flow through the administrative immigration court system first.[2][5]
The Second Circuit followed suit just days before the Fourth Circuit's ruling. On July 21, 2026, it overturned a lower court's decision to release Mohsen Mahdawi, another Columbia graduate student, agreeing entirely with the Third Circuit's interpretation.[1][5]
The dissenting opinion in the Fourth Circuit, authored by U.S. Circuit Judge Harvie Wilkinson, echoed the reasoning of the Second and Third Circuits.[2][6]
Judge Wilkinson argued that the majority's ruling "rips an irreparable hole in the INA's jurisdiction-channeling scheme" and would allow any detained noncitizen to halt removal proceedings with a "thinly veiled habeas challenge."[2][6]
Civil liberties organizations have celebrated the Fourth Circuit's decision as a vital check on executive power. The American Civil Liberties Union stated that the government "cannot do an end run around the First Amendment by locking people up for their speech."[3]
The Center for Constitutional Rights echoed this sentiment, emphasizing that an independent judiciary remains the ultimate guardian of due process against retaliatory enforcement tactics.[4]
The stark division between the appellate courts tees up a highly likely Supreme Court review, as the federal judiciary cannot sustain contradictory interpretations of federal law across different regions.[1][5]
Until the Supreme Court resolves the split, the rights of noncitizens to challenge retaliatory ICE detention will depend entirely on geography—specifically, which judicial circuit they happen to be detained in.[1]
How we got here
March 2025
Georgetown scholar Dr. Badar Khan Suri is arrested by ICE in Virginia and detained in Texas.
May 2025
A federal district judge in Virginia orders Dr. Suri's release on bail, prompting a government appeal.
January 2026
The Third Circuit rules that federal courts lack jurisdiction to review retaliatory detention claims before removal proceedings conclude.
July 21, 2026
The Second Circuit agrees with the Third Circuit, overturning a lower court's decision to release a detained Columbia student.
July 23, 2026
The Fourth Circuit rules in favor of Dr. Suri, affirming federal court jurisdiction and creating a formal circuit split.
Viewpoints in depth
Civil Liberties Advocates
Argue that the First Amendment protects everyone on U.S. soil and federal courts must have immediate jurisdiction to stop retaliatory detention.
Organizations like the ACLU and the Center for Constitutional Rights view the Fourth Circuit's ruling as a necessary defense against executive overreach. They argue that if immigration officials can detain individuals for months or years in retaliation for protected speech, the First Amendment becomes meaningless for noncitizens. From this perspective, the writ of habeas corpus is a fundamental constitutional safeguard that cannot be legislated away by the Immigration and Nationality Act, especially when the detention itself is alleged to be the constitutional violation.
Executive Branch & Dissenting Jurists
Argue that Congress explicitly stripped district courts of jurisdiction over immigration detention to prevent delays and procedural abuse.
The Department of Justice, supported by the rulings of the Second and Third Circuits and the Fourth Circuit dissent, maintains that Section 1252(b)(9) of the INA was designed specifically to streamline immigration enforcement. This viewpoint argues that allowing district courts to hear habeas petitions before removal proceedings are complete invites endless litigation, grinding the immigration system to a halt. They contend that noncitizens still have a venue to raise constitutional claims—the immigration courts—and can eventually appeal those decisions to federal appellate courts, preserving due process without bypassing the statutory framework.
Due Process Proponents
Focus on the constitutional necessity of immediate judicial review for unlawful detention claims.
The Fourth Circuit majority and allied legal scholars emphasize the practical reality of immigration detention. Because removal proceedings can take years, requiring a detainee to wait for the conclusion of that process to challenge the constitutionality of their initial arrest renders the detention effectively unreviewable. This camp argues that statutory jurisdiction-channeling schemes cannot override the core function of habeas corpus, which is to provide immediate relief from unlawful government confinement.
What we don't know
- Whether the Supreme Court will officially grant certiorari to hear the case in its upcoming term.
- How the government will handle ongoing and future detentions in the Fourth Circuit while the split remains unresolved.
- Whether Congress will attempt to clarify the language of the Immigration and Nationality Act regarding habeas corpus jurisdiction.
Key terms
- Circuit Split
- A situation where two or more federal courts of appeals issue contradictory rulings on the same legal issue, often prompting Supreme Court intervention.
- Habeas Corpus
- A fundamental legal right allowing individuals to report an unlawful detention or imprisonment to a court and request that the court order their release.
- Subject-Matter Jurisdiction
- The authority of a court to hear cases of a particular type or cases relating to a specific subject matter.
- Immigration and Nationality Act (INA)
- The foundational body of law governing current immigration policy and enforcement in the United States.
- Section 1252(b)(9)
- A specific provision of the INA that the government argues channels all judicial review of immigration enforcement through administrative removal proceedings.
Frequently asked
What is a circuit split?
A circuit split occurs when different federal appellate courts reach opposite conclusions on the same legal issue. Because federal law must be applied uniformly across the country, circuit splits are one of the primary reasons the Supreme Court agrees to take up a case.
Why was Dr. Suri detained?
Dr. Suri, an Indian national and postdoctoral fellow, was arrested by ICE in March 2025. His legal team alleges the detention was retaliation for his pro-Palestinian political speech on social media, violating his First Amendment rights.
What does the government argue?
The government argues that under the Immigration and Nationality Act, federal district courts do not have the authority to review immigration detention until formal removal proceedings in immigration court are completed.
How does this affect other noncitizens?
Until the Supreme Court resolves the split, the ability of noncitizens to challenge retaliatory ICE detention in federal court depends on where they are detained. Those in the Fourth Circuit have immediate access to federal courts, while those in the Second and Third Circuits do not.
Sources
Source coverage
6 outlets
2 viewpoints surfaced
[1]The GuardianLegal & Procedural Observers
Outcome for Badar Khan Suri contradicts rulings in similar cases concerning pro-Palestinian speech
Read on The Guardian →[2]Courthouse NewsLegal & Procedural Observers
Fourth Circuit rules against administration on ICE detention jurisdiction
Read on Courthouse News →[3]American Civil Liberties UnionCivil Liberties Advocates
Fourth Circuit Rejects Attempt to Re-Detain Georgetown Scholar
Read on American Civil Liberties Union →[4]Center for Constitutional RightsCivil Liberties Advocates
Appeals Court Rejects Attempt to Re-Detain Georgetown Scholar Dr. Badar Khan Suri
Read on Center for Constitutional Rights →[5]Common DreamsCivil Liberties Advocates
Court Blocks Admin From Re-Detaining Scholar Targeted for Speech
Read on Common Dreams →[6]U.S. Court of Appeals for the Fourth CircuitLegal & Procedural Observers
Opinion: Badar Khan Suri v. Secretary of State
Read on U.S. Court of Appeals for the Fourth Circuit →
Every angle. Every day.
Get law justice stories with full source coverage and perspective breakdowns delivered to your inbox.