Appeals Courts Create Circuit Split on Federal Jurisdiction to Review ICE Detention for Retaliation

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]

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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]

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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]

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]

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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]

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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]

The ultimate resolution of this legal battle will define the practical boundaries of the First Amendment for millions of noncitizens and clarify the extent of the executive branch's authority over immigration enforcement.[1][3][4]