Fourth Cir. Confronts Habeas Dispute in Georgetown Scholar Case

The federal government on Tuesday pointed to jurisdictional issues as it urged the Fourth Circuit to toss a lower court’s order requiring a Georgetown University scholar to be released from immigration detention.

Case law in the US Court of Appeals for the Fourth Circuitsays the Immigration and Nationality Act’s jurisdiction-stripping provisions only apply when there’s a final order of removal, and the US Supreme Court hasn’t addressed that question directly, Judge Pamela A. Harris noted.

“We don’t usually say our precedent has been superseded until the Supreme Court directly confronts the question,” Harris added.

US Department of Justice attorney Drew Ensign argued that although the Supreme Court hasn’t had a square holding on the issue, it’s clear the provisions don’t require a final order of removal. And it was “absolutely Congress’ intent” to prevent duplicate proceedings in passing the jurisdiction-stripping clauses.

Judge J. Harvie Wilkinson III appeared ready to side with the government over the INA provisions, 8 U.S.C. § 1252, noting that Congress passed those to avoid potentially contradictory decisions, which would “put the immigration process in a perfect snarl,” the judge said.

But Noor Zafar, representing Badar Khan Suri, argued that “Congress did not intend, and the Constitution does not allow, the government to use the immigration detention system to implement a policy of censorship.”

Suri, who came to the US in 2022 on a J-1 exchange visa, was arrested by immigration agents in the evening of March 17, 2025, outside his Virginia apartment. He was transferred to three immigration detention facilities in the early hours of March 18, 2025, before boarding a plane headed for Louisiana around 3 p.m. that day.

Suri’s attorney filed a habeas petition in the US District Court for the Eastern District of Virginia right before 6 p.m. on March 18, 2025, less than an hour after he arrived in Louisiana. Suri was then detained at a Texas immigration facility until Judge Patricia Tolliver Giles, of the Eastern District of Virginia, ordered his release last May.

Immigration officials accused Suri of having ties to terrorists and spreading Hamas propaganda on social media, but Giles said the evidence was sufficient for her to infer that Suri’s detention was “caused by his speech” expressing support for Palestinians.

The government asserts the Virginia court had no jurisdiction over the habeas petition in the first place, since Suri’s attorney had seen his notice to appear at removal proceedings scheduled for May 6, 2025, in Texas, and he was already in Louisiana before the petition was submitted.

But Suri asserted in a brief that his counsel had no way of knowing that he was transported to Louisiana, because neither his presence there nor his movement through the state was ever disclosed.

The district court relied on the unknown custodian exception to get around well-established precedent, the government argued, but Suri had “ample notice” of where he was being moved. There was “nothing remotely ‘unknown’ about Suri’s ultimate destination,” the government asserted.

The unknown custodian exception “only has application so long as the actual custodian is unknown,” Ensign argued Tuesday.

“I’m not sure we need to get into that,” Wilkinson said. If the INA’s jurisdiction-stripping provisions apply here, “that would make unnecessary getting into the unknown custodian rule.”

But Harris noted the provisions don’t “talk about detention at all.” Judge DeAndrea Gist Benjamin questioned “what happens when a removal order is never issued,” and suggested that would leave Suri with no due process with regard to his detention.

Ensign asserted that challenges to his detention can be raised before an immigration judge and through a petition for review to a federal appeals court, but it “gets there only through a PFR and not through habeas.”

But Zafar, with the ACLU Foundation, argued that any relief Suri could obtain through that process would “come too late.” He would have to wait months or years to get that review, and he “may never get that review” if there’s no removal order issued, she asserted.

The INA’s jurisdiction-stripping clauses also only reference habeas review with respect to removal orders, Zafar said. “Congress did not intend to bar unlawful detention claims,” especially when the government is using it to censor protected speech. Although some “administrative inefficiencies” could arise from holding that the district court has habeas jurisdiction here, “the government’s position is simply constitutionally intolerable,” Zafar asserted.

But that “downplays the complications,” Wilkinson said. Those “administrative inefficiencies” are “exactly what Congress wished to avoid, was it not?”

Zafar agreed, but only “with respect to removal claims.”

The HMA Law Firm PLLC, Center for Constitutional Rights, and Immigrant & Non-Citizen Rights Clinic at the CUNY School of Law also represent Suri.

The case is Suri v. Trump, 4th Cir., No. 25-01560, oral argument 3/17/26.