Mahdawi v. Trump

136 F.4th 443

• Court: Court of Appeals for the Second Circuit
• Decided: May 9, 2025
• Docket: 25-1113
• Status: Published

Opinion

25-1113 Mahdawi v. Trump

United States Court of Appeals for the Second Circuit _____________________________________

August Term 2024 Argued: May 6, 2025 Decided: May 9, 2025

No. 25-1113 _____________________________________

MOHSEN MAHDAWI,

Petitioner–Appellee,

v.

DONALD J. TRUMP, in his official capacity as President of the United States; PATRICIA HYDE, in her official capacity as Acting Boston Field Office Director, U.S. Immigration and Customs Enforcement; J DOE, in official capacity as Vermont Sub-Office Director, U.S. Immigration and Customs Enforcement; TODD LYONS, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement; KRISTI NOEM, in her official capacity as Secretary of the United States Department of Homeland Security; MARCO RUBIO, in his official capacity as Secretary of State; and PAMELA BONDI, in her official capacity as U.S. Attorney General,

Respondents–Appellants.* _____________________________________

Appeal from the United States District Court for the District of Vermont

* The Clerk of Court is respectfully directed to amend the caption as set forth above. No. 2:25-cv-389, Geoffrey W. Crawford, Judge _____________________________________ Before: PARKER, CARNEY, and NATHAN, Circuit Judges. _____________

NAZ AHMAD LUNA DROUBI RAMZI KASSEM MATTHEW MELEWSKI MUDASSAR HAYAT TOPPA KEEGAN STEPHAN SHEZZA ABBOUSHI DALLAL Beldock Levine & Hoffman LLP CLEAR Project New York, NY Main Street Legal Services, Inc. CYRUS D. MEHTA Long Island City, NY DAVID A. ISAACSON Cyrus D. Mehta & Partners PLLC NATHAN FREED WESSLER New York, NY BRETT MAX KAUFMAN BRIAN HAUSS Counsel for Petitioner–Appellee ESHA BHANDARI NOOR ZAFAR DREW C. ENSIGN SIDRA MAHFOOZ ALANNA T. DUONG American Civil Liberties Union DHRUMAN Y. SAMPAT New York, NY YAAKOV M. ROTH ERNESTO H. MOLINA LIA ERNST Civil Division MONICA H. ALLARD U.S. Dept. of Justice HILLARY A. RICH Washington, D.C. ACLU Foundation of Vermont Montpelier, VT MICHAEL P. DRESCHER Acting United States Attorney ANDREW B. DELANEY District of Vermont Martin Delaney & Ricci Law Group Barre, Vermont Counsel for Respondents–Appellants

_____________ BARRINGTON D. PARKER, SUSAN L. CARNEY, and ALISON J. NATHAN, Circuit Judges:

Mohsen Mahdawi is an undergraduate student at Columbia University. He

is also a Lawful Permanent Resident who has lived in the United States for over a

decade and is in the process of applying to become a U.S. citizen. When Mahdawi

appeared for his naturalization interview in Vermont on April 14, 2025, he

answered the government’s questions and passed his citizenship test. But, he

alleges, at the interview’s conclusion, a team of armed law enforcement officers

entered the room and placed him under arrest. He was brought to a U.S.

Citizenship and Immigration Services office and was served with a Notice to

Appear, which informed him that the U.S. Secretary of State had determined that

he was removable from the United States under the Immigration and Nationality

Act. Officers then brought him to the airport in Burlington, Vermont, with the

intent to transport him to Louisiana, but after they missed the flight to Louisiana,

officers brought him to a detention center in Vermont.

Through counsel, Mahdawi filed a habeas petition, challenging his arrest

and detention and seeking his release. He maintains that, in violation of his First

and Fifth Amendment rights, he was arrested and detained in retaliation for his

peaceful advocacy on the politically contentious topic of the war in Gaza. On

Mahdawi’s emergency motion, the district court issued, and later extended, a

1 temporary restraining order prohibiting the government from removing Mahdawi

from the District of Vermont. Following a bail hearing, the court also granted

Mahdawi’s motion to be released during the pendency of his habeas proceeding,

finding that he was neither a flight risk nor a danger to the community—findings

that the government does not contest before this panel.

The government now seeks an emergency stay of these orders. Largely for

the reasons explained in our opinion in Öztürk v. Hyde, No. 25-1019, 2025 WL

1318154 (2d Cir. May 7, 2025), we deny the motion for a stay. As explained there,

the government is unlikely to succeed on its arguments that the district court

lacked jurisdiction over Mahdawi’s habeas petition. We further conclude that the

government is unlikely to succeed on its arguments that the district court lacked

the authority to order Mahdawi’s release. We are also unpersuaded by the

government’s argument that the district court’s orders prevented it from

effectuating duly enacted law, thereby causing it to suffer irreparable injury. In

fact, immigration removal proceedings have continued in Louisiana, and

Mahdawi has attended them remotely since his release. Finally, the balance of the

equities tips in favor of denying the stay. Indeed, the practical effect of the relief

the government seeks would be Mahdawi’s re-detention. Individual liberty

2 substantially outweighs the government’s weak assertions of administrative and

logistical costs. For these reasons, the government’s motion for a stay is DENIED

and the government’s request for a writ of mandamus is also DENIED.

I. BACKGROUND

This case arises from the arrest and detention of Mohsen Mahdawi, a

Palestinian student who entered the United States in July 2014 and has been a

Lawful Permanent Resident since January 2015. Mahdawi is an undergraduate at

Columbia University, majoring in philosophy. As a student at Columbia, he spoke

out against Israel’s military response to the atrocities committed by Hamas on

October 7, 2023. He also took part in student demonstrations where he spoke

publicly about “the importance of respecting international law, human rights, and

the need for a permanent ceasefire and a peaceful resolution.” Mahdawi v. Trump,

No. 2:25-cv-389, 2025 WL 1243135, at *1 (D. Vt. Apr. 30, 2025) (quotation marks

omitted) (quoting Dist. Ct. Dkt. ECF No. 19-2 ¶ 15). The government does not at

this time assert that his speech was not protected by the First Amendment.

On April 14, 2025, Mahdawi appeared for his naturalization interview in

Vermont. Mot. Ex. A (Habeas Petition, hereinafter “Pet.”) at 12 ¶ 50.

Unbeknownst to Mahdawi, a month earlier the Secretary of State had secretly

issued a memorandum, ostensibly pursuant to 8 U.S.C. § 1227(a)(4)(C), declaring

3 him deportable for his speech and associations, which the memorandum

described as “otherwise lawful.” Mot. Ex. B at 1. At the end of his interview, he

was arrested by a team of masked ICE agents, brought to a U.S. Citizenship and

Immigration Service office, and served with a Notice to Appear (“NTA”). The

NTA stated that Mahdawi was removable because “[t]he Secretary of State has

determined that your presence and activities in the United States would have

serious adverse foreign policy consequences and would compromise a compelling

U.S. foreign policy interest.” Mahdawi, 2025 WL 1243135, at *3 (quoting Dist. Ct.

Dkt. ECF No. 19-2, at 10, 13).

That same day, shortly before 2:00 p.m., the agents transported Mahdawi to

the airport in Burlington, Vermont, intending to transport him to a Louisiana jail.

They missed their scheduled flight, and Mahdawi was moved first to the ICE field

office in St. Albans, Vermont, and then to the Northwest State Correctional Facility

in Swanton, Vermont.

Mahdawi’s attorney filed a habeas petition in the District of Vermont, which

was first assigned to Judge William K. Sessions III. Among other things, his

petition challenges “the government’s targeting and detention of Mr. Mahdawi,”

4 and alleges that his “unlawful arrest and detention” was intended “to punish him

for his speech and to chill similar speech.” Pet. at 2 ¶ 4, 15 ¶¶ 64–67, 16 ¶ 76.

Shortly after his arrest on April 14, Judge Sessions granted Mahdawi’s

emergency motion for a temporary restraining order (“TRO”) prohibiting

Mahdawi’s transfer to Louisiana or his removal from this country. Mahdawi, No.

2:25-cv-389, 2025 WL 1099021, at *1 (D. Vt. Apr. 14, 2025). On April 24, following

the case’s reassignment to Judge Geoffrey W. Crawford, the court extended the

TRO. Mahdawi, No. 25-cv-389 (D. Vt. Apr. 24, 2025), Dist. Ct. Dkt. ECF No. 34.

During this time, Mahdawi remained detained at Northwest Correctional Facility.

Mahdawi applied for release on bail pending resolution of his habeas

petition. On April 30, 2025, after a hearing, Judge Crawford granted the

application. In a careful and well-reasoned opinion, the court concluded, among

other things, that Mahdawi presented neither a flight risk nor a danger to his

community or to others. Mahdawi, 2025 WL 1243135, at *12. The government has

yet to contest these findings.

Before us is the government’s emergency motion seeking a stay pending

appeal of the district court’s order extending its initial TRO (April 24, 2025 Order)

and its order of release on bail (April 30, 2025 Order). The government asked for

5 this stay motion to be heard on an expedited schedule, and together with its stay

motion in Öztürk. An applications judge granted these requests and denied the

request for an administrative stay. See 2d Cir. Dkt. ECF No. 30. 1

II. APPELLATE JURISDICTION

As an initial matter, and as Mahdawi concedes, we have appellate

jurisdiction to review each of the challenged orders. First, under the “collateral

order doctrine,” we have jurisdiction to review “‘a small class of’ interlocutory

rulings that ‘are too important to be denied review and too independent of the

cause itself to require that appellate consideration be deferred until the whole case

is adjudicated.’” Fischer v. New York State Dep’t of L., 812 F.3d 268, 273 (2d Cir. 2016)

(quoting Will v. Hallock, 546 U.S. 345, 349 (2006)) (other internal citations omitted).

We have previously held that an order granting bail pending disposition of a

habeas petition is an appealable collateral order. Iuteri v. Nardoza, 662 F.2d 159,

161 (2d Cir. 1981).

Second, because the TRO lasts for up to 90 days and “carries many of the

hallmarks of a preliminary injunction,” we construe it “as an appealable

preliminary injunction.” Dep’t of Educ. v. California, 145 S. Ct. 966, 968 (2025); see

1 The government also moved to consolidate the two cases. We deny that motion by separate order. 6 also Trump v. J. G. G., 145 S. Ct. 1003, 1005, 1006 (2025) (vacating a TRO that had

enjoined the government from removing any of the individual plaintiffs from the

United States for 14 days). Accordingly, we conclude that both the district court’s

release order and extended TRO are appealable orders.

III. STAY PENDING APPEAL

A stay is “an exercise of judicial discretion,” and the “propriety of its issue

is dependent upon the circumstances” presented to the court. Nken v. Holder, 556

U.S. 418, 433 (2009) (quotation marks omitted). “The party requesting a stay bears

the burden of showing that the circumstances justify an exercise of [the Court’s]

discretion.” Id. at 433–34. The four stay factors are “(1) whether the stay applicant

has made a strong showing that he is likely to succeed on the merits; (2) whether

the applicant will be irreparably injured absent a stay; (3) whether issuance of the

stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.” Id. at 434 (quotation marks omitted). “The first

two factors . . . are the most critical.” Id. And where “the government is a party

to the suit, the final two factors merge.” New York v. U.S. Dep’t of Homeland Sec.,

969 F.3d 42, 58–59 (2d Cir. 2020). We deny the stay because the government has

not met its burden on any of these factors.

7 A. Likelihood of Success on the Merits

The government contends that several provisions of the Immigration and

National Act (“INA”) stripped the district court of jurisdiction in this case, and

that the district court accordingly lacked the power to order Mahdawi’s release

and to extend the TRO. These arguments are unlikely to succeed in no small part

because our analysis is guided by longstanding principles of statutory

interpretation requiring Congress to speak clearly and specifically when it wishes

to deprive the federal courts of jurisdiction. Repeatedly, including in the INA

context, the Supreme Court has declared that we should “take account . . . of the

presumption favoring interpretations of statutes [to] allow judicial

review . . . absent clear statement.” Kucana v. Holder, 558 U.S. 233, 237 (2010)

(quotation marks and citation omitted); see also McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479, 483–84 (1991). “[O]nly upon a showing of clear and convincing

evidence of a contrary legislative intent should the courts restrict access to judicial

review.” Bowen v. Michigan Acad. of Fam. Physicians, 476 U.S. 667, 671 (1986)

(quotation marks omitted). As explained below, the provisions on which the

8 government relies do not state, let alone clearly state, a jurisdictional bar on review

of Mahdawi’s detention claims.

1. Release Order

At this stage, the government makes no challenge to the district court’s

substantive determination that Mahdawi should be released on bail pending the

disposition of his habeas petition. See Mahdawi, 2025 WL 1243135, at *8–13.

Instead, it makes only jurisdictional challenges to the release order based on 8

U.S.C. §§ 1252(g), 1252(a)(5), and 1252(b)(9). We conclude that these jurisdictional

challenges are unlikely to succeed.

a. 8 U.S.C. § 1252(g)

We begin with the government’s argument that the district court’s release

order should be stayed on the ground that § 1252(g) strips the district court of

jurisdiction to hear Mahdawi’s habeas petition. Section 1252(g) prohibits courts

from “hear[ing] any cause or claim by or on behalf of any alien arising from the

decision or action by the Attorney General [or Secretary of Homeland Security] to

commence proceedings, adjudicate cases, or execute removal orders against any

alien under this chapter.” 8 U.S.C. § 1252(g). 2 The government claims that

2As part of transferring many immigration-related responsibilities from the Attorney General to the Secretary of the Department of Homeland Security, “the

9 Mahdawi’s challenge to his unlawful detention “aris[es] from” the

commencement of removal proceedings. Mot. at 7 (quotation marks omitted).

The government dramatically overstates the reach of § 1252(g) and has

failed to demonstrate a likelihood of success on this claim. As we said in Öztürk

v. Hyde, § 1252(g) does not reach “claims that are independent of, or wholly

collateral to, the removal process.” No. 25-1019, 2025 WL 1318154, at *9 (2d Cir.

May 7, 2025) (quoting Kong v. United States, 62 F.4th 608, 614 (1st Cir. 2023)). The

Supreme Court and our Court have explained that § 1252(g)’s bar on jurisdiction

is “narrow[],” and “applies only to three discrete actions”: a decision “to

‘commence proceedings, adjudicate cases, or execute removal orders.’” Reno v.

Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471, 482 (1999) (quoting 8

U.S.C. § 1252(g) (emphases adopted)); see also Öztürk, 2025 WL 1318154, at *8.

Section 1252(g) is thus “directed against a particular evil: attempts to impose

judicial constraints upon prosecutorial discretion.” AADC, 525 U.S. at 485 n.9. But

there are “many other decisions or actions that may be part of the deportation

process” and yet do not fall within the three discrete exercises of “prosecutorial

Homeland Security Act of 2002 mandates that references to the Attorney General are deemed to include DHS where, as here, the relevant agency functions have been transferred from the Department of Justice to DHS.” Shabaj v. Holder, 718 F.3d 48, 51 n.3 (2d Cir. 2013) (citing 6 U.S.C. § 557); see also 6 U.S.C. § 202. 10 discretion” covered by § 1252(g). Id. at 482, 485 n.9; see also Öztürk, 2025 WL

1318154, at *8.

For that reason, in Öztürk, we concluded that a petitioner’s “claims of

unlawful and retaliatory detention” were “independent of, and collateral to, the

removal process.” Öztürk, 2025 WL 1318154, at *9. There, we explained that relief

from the allegedly improper detention did not interfere with DHS’s “prosecutorial

discretion.” AADC, 525 U.S. at 485 n.9. Nor did it interfere with DHS’s ability to

initiate removal proceedings against the petitioner, to adjudicate her removal case,

or to execute any removal order. See Öztürk, 2025 WL 1318154, at *9–10. We

therefore held that her unlawful detention claims were collateral to the removal

process and fell outside of § 1252(g)’s narrow jurisdictional bar. Id. at *9.

The same is true here. Mahdawi’s habeas petition challenges his detention

on the grounds that it violates his rights under the Constitution. 3 As in Öztürk,

3Among other things, the petition's Prayer for Relief requests that the court “Order the immediate release of Petitioner pending these proceedings,” “Order the release of Petitioner,” and “Declare that Respondents’ actions to arrest and detain Petitioner violate the First Amendment and the Due Process Clause of the Fifth Amendment.” Pet. at 18. At this time, the Court need not decide whether every single Prayer for Relief survives § 1252(g). The district court is still considering the government’s motion to dismiss Mahdawi’s petition and will have the opportunity to assess which claims are barred by § 1252(g) in the first instance. So long as part of his challenge to his detention falls outside of § 1252(g), his petition survives, as does the district court’s authority to order his release. 11 Mahdawi’s “detention does not arise from the government’s ‘commenc[ement] of

proceedings,’” which begins with the filing of an NTA in an immigration court.

2025 WL 1318154, at *9 (quoting AADC, 525 U.S. at 482); see also 8 U.S.C. § 1229(a);

8 C.F.R. § 1239.1. Nor do his claims “arise from the decision to adjudicate [his]

removal case,” since it does not “implicate the Executive’s discretion” to continue

or withdraw such a proceeding. Öztürk, 2025 WL 1318154, at *10 (quotation marks

omitted). Moreover, the government does not claim that Mahdawi’s detention

was “mandated by the mere fact” that it commenced removal proceedings against

him. Id. To the contrary, the government “confirmed that ICE’s decision to arrest

and detain [Mahdawi] was not directed by § 1226(a).” Id.; see also Mot. at 20 (citing

8 U.S.C. § 1226(a) as its “statutory basis for [Mahdawi’s] detention”). And since

no removal order has been entered, Mahdawi’s detention-related claims could not

“possibly ‘arise from’ the execution of a removal order.” Öztürk, 2025 WL 1318154,

at *10. Mahdawi’s unlawful detention claims are thus likely “independent of, and

collateral to, the removal process.” Id. at *9.

The government nevertheless insists that the Supreme Court’s decision in

AADC bars this claim. It is unlikely to succeed on this argument, too. It is true

that the petitioners in AADC claimed that the “INS was selectively enforcing

12 immigration laws against them in violation of their First and Fifth Amendment

rights.” 525 U.S. at 474. And the Supreme Court indeed concluded that the

“challenge to the Attorney General’s decision to ‘commence proceedings’ against

them [fell] squarely within § 1252(g).” Id. at 487. But the petitioners’ claims in that

case fell within that jurisdictional bar because they sought “to prevent the

initiation of deportation proceedings,” id. at 474—i.e., the “commence[ment of]

proceedings,” id. at 482. The habeas claims in that case did not sound in unlawful

detention at all, and AADC is therefore of no help to the government.

Accordingly, the government has failed to satisfy its burden of

demonstrating that § 1252(g) likely strips the district court of jurisdiction to hear

Mahdawi’s petition.

b. 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9)

For similar reasons, the government’s argument that 8 U.S.C. §§ 1252(a)(5)

and (b)(9) bar district court review of Mahdawi’s claims is unlikely to succeed.

Section 1252(b)(9) bars district court review of claims “arising from . . . action[s]”

or “proceeding[s] brought to remove an alien.” 8 U.S.C. § 1252(b)(9). The

government urges the conclusion that Mahdawi’s arrest and detention are a but-

for result of the Secretary of State’s determination that he was removable, and thus

§ 1252(b)(9) strips district courts of jurisdiction. Mot. at 15. In other words, the

13 government contends that its detention of Mahdawi works to funnel all his

unlawful detention claims into § 1252(b)(9), irrespective of how attenuated the

claims may be to removal proceedings.

As we explained in Öztürk, we do not read § 1252(b) so broadly. Öztürk,

2025 WL 1318154, at *10–13. First, the language of § 1252(b) contradicts the

government. Id. at *11 (“[T]he very text of § 1252(b) sets out requirements only

with respect to review of an order of removal under subsection (a)(1).” (cleaned

up) (citing 8 U.S.C. § 1252(b))). No order of removal is at issue here. Second, the

Supreme Court has rejected the government’s proposed expansive approach,

holding that Ҥ 1252(b)(9) does not present a jurisdictional bar where those

bringing suit are not asking for review of an order of removal, the decision to seek

removal, or the process by which removability will be determined.” Dep’t of

Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 19 (2020) (cleaned up)

(quoting Jennings v. Rodriguez, 583 U.S. 281, 294 (2018)).

As explained above, Mahdawi’s unlawful detention claims may be resolved

without affecting pending removal proceedings. He asserts that the government

arrested him to punish speech with which it disagrees. But doing so would violate

the Constitution—quite separate from the removal procedures followed by the

14 immigration courts. Consequently, even if his claims have a substantive overlap

with challenges he may bring in his removal proceedings, his detention claims do

not themselves challenge or arise from “removal proceedings,” and “§ 1252(b)(9)’s

channeling function has no role to play.” Öztürk, 2025 WL 1318154, at *11

(quotation marks omitted). As we noted in Öztürk, legislative history from the

REAL ID Act further supports this conclusion. H.R. Rep. No. 109–72, at 175 (2005)

(Conf. Rep.), as reprinted in 2005 U.S.C.C.A.N. 240, 300 (specifying that jurisdiction-

stripping provisions “would not preclude habeas review over challenges to

detention that are independent of challenges to removal orders”).

This distinction between detention and removal makes practical

sense. While challenges to removal can be heard in a petition for review after an

order of removal has been entered by an immigration judge and affirmed by the

Board of Immigration Appeals, the same is not true of constitutional challenges to

detention like those raised by Mahdawi. As we explained in Öztürk, “neither the

IJ nor the BIA has ‘jurisdiction to decide constitutional issues.’” Öztürk, 2025 WL

1318154, at *12 (quoting Rabiu v. Immigr. & Naturalization Serv., 41 F.3d 879, 882 (2d

Cir. 1994)). And while the court of appeals considering the petition for review

may consider constitutional claims, that court is obliged to “decide the petition

15 only on the administrative record on which the order of removal is based.”

8 U.S.C. § 1252(b)(4)(A) (emphasis added). We are not persuaded that an IJ or the

BIA will develop a sufficient factual record, or any record at all, with respect to the

challenged detention, especially given that bond hearings are decided separately,

appealed separately, and contain records separate from those made in the removal

proceedings. See 8 U.S.C. § 1226(a); 8 C.F.R. §§ 236.1(d), 1003.19(d); U.S. Dep’t

Just., Exec. Off. for Immigr. Rev., Immigration Court Practice Manual, § 9.3(e), (f)

(last visited May 6, 2025), available at https://www.justice.gov/eoir/reference-

materials/ic/chapter-9/3 [https://perma.cc/9A6W-AG9U]. This means that in

many, if not most, instances, courts of appeal would not have a sufficient record

to assess the constitutionality of the government’s conduct in cases such as this.

Construing an independent constitutional challenge to detention as

necessarily implying a challenge to removal would lead to what Jennings called an

“absurd” result. 583 U.S. at 293 (opinion of Alito, J., joined by Roberts, C.J., and

Kennedy, J.). Mahdawi’s core argument is that his free speech and due process

rights are being violated, now. Pet. at 15–16, ¶¶ 63–76; see also Öztürk, 2025 WL

1318154, at *12. “By the time a final order of removal [is] eventually entered”—if

it ever is entered—the allegedly wrongful detention will have already occurred.

16 Jennings, 583 U.S. at 293 (opinion of Alito, J., joined by Roberts, C.J., and Kennedy,

J.).

Accordingly, the government has not established that § 1252(b)(9) likely

strips the district court of jurisdiction to hear Mahdawi’s petition. For the same

reasons, we reject the government’s argument that § 1252(a)(5) likely forecloses

review of Mahdawi’s petition. Section 1252(a)(5) bars district court review “of an

order of removal,” but no order of removal is at issue here. 8 U.S.C. § 1252(a)(5).

2. TRO Extension Order The government also asserts that the INA deprived the district court of

jurisdiction to extend its TRO. As a preliminary matter, the government conceded

at argument that if the release order remains in place, its challenge to the TRO is

“essentially moot.” Oral Arg. Hearing at 23:40–24:09. But in any event, the

government is unlikely to prevail. As in Öztürk, the government relies on 8 U.S.C.

§ 1252(a)(2)(B)(ii), which precludes the exercise of federal court jurisdiction “to

review . . . any . . . decision or action of the Attorney General or the Secretary of

Homeland Security the authority for which is specified under this subchapter to

be in the discretion of the Attorney General or the Secretary of Homeland

Security.” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). Here, the government

contends that § 1252(a)(2)(B)(ii) deprived the district court of jurisdiction to extend

17 the TRO on the ground that the decision where to detain a noncitizen pending

removal proceedings is committed to the discretion of the Secretary of Homeland

Security, and the INA precludes judicial review over such discretionary decisions.

See Mot. at 17–19.

But as we explained in Öztürk, 2025 WL 1318154, at *7–8, the government

dramatically overstates the scope of § 1252(a)(2)(B)(ii). Section 1252(a)(2)(B)(ii)’s

bar on jurisdiction applies only to those decisions where Congress has expressly

“set out the Attorney General’s discretionary authority in the statute.” Kucana, 558

U.S. at 247. Crucially, the question is not whether § 1231(g) “require[s] an exercise

of discretion” because even if it “probably do[es],” the crux is “whether the

text . . . specifies that the decision is in the discretion of the Attorney General.”

Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir. 2008) (cleaned up). We have held

that “when a statute authorizes the Attorney General to make a determination, but

lacks additional language specifically rendering that determination to be within

his discretion (e.g., ‘in the discretion of the Attorney General,’ ‘to the satisfaction

of the Attorney General,’ etc.), the decision is not one that is ‘specified . . . to be in

18 the discretion of the Attorney General’ for purposes of § 1252(a)(2)(B)(ii).” Id. at

154–55.

The government argues that two different statutory provisions, 8 U.S.C.

§ 1231(g) and 8 U.S.C. § 1226(a), “specif[y]” that the decision to detain immigrants

in the custodial location of the government’s choice is within the executive

branch’s exclusive discretion, precluding judicial review. The government is

unlikely to prevail on this argument. Section 1231(g) has no such additional

language. It merely states that “[t]he Attorney General shall arrange for

appropriate places of detention for aliens detained pending removal or a decision

on removal.” 8 U.S.C. § 1231(g)(1). Far from authorizing discretion, § 1231(g) uses

the obligatory “shall” rather than the permissive “may.” This language is “in stark

contrast to other sections of the INA,” which both use permissive verbs and

include additional language specifying that those decisions that are within the

Attorney General or DHS Secretary’s discretion. Aguilar v. U.S. Immigr. & Customs

Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 20 (1st Cir. 2007); cf., e.g., 8 U.S.C.

§ 1157(c)(1) (“[T]he Attorney General may, in the Attorney General’s discretion . . . .”

(emphasis added)). When “Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it is generally presumed

19 that Congress acts intentionally and purposely in the disparate inclusion or

exclusion.” Nken, 556 U.S. at 430 (quoting I.N.S. v. Cardoza–Fonseca, 480 U.S. 421,

432 (1987)). 4

Section 1226(a), which states that “an alien may be arrested and detained

pending a decision on whether the alien is to be removed from the United States,”

similarly falls outside the scope of § 1252(a)(2)(B)(ii). 8 U.S.C. § 1226(a). First, the

permissive “may” in § 1226(a) provides discretion only as to the decision to

detain—not as to the location of detention. But even if this section did “authorize[]

the Attorney General” to detain an alien wherever they saw fit, it “lacks additional

language specifically rendering that determination to be within his discretion

(e.g., ‘in the discretion of the Attorney General,’ ‘to the satisfaction of the Attorney

General,’ etc.).” Nethagani, 532 F.3d at 154–55. Accordingly, such a decision does

4In fact, the very next sentence of § 1231(g)(1) uses the permissive “may,” and the subsection appears to relate “more centrally to the government’s brick and mortar obligations for obtaining facilities in which to detain aliens.” Reyna as next friend of J.F.G. v. Hott, 921 F.3d 204, 209 (4th Cir. 2019). Section 1231(g) first provides that the Attorney General “shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.” 8 U.S.C. § 1231(g)(1). If such facilities “are unavailable,” the statute then provides that “the Attorney General may expend” from specified appropriations “amounts necessary to acquire land and to acquire, build, remodel, repair, and operate facilities (including living quarters for immigration officers if not otherwise available) necessary for detention.” Id. (emphasis added). 20 not preclude judicial review because it “is not one that is ‘specified . . . to be in the

discretion of the Attorney General’ for purposes of § 1252(a)(2)(B)(ii).” Id. at 155.

The Supreme Court has applied the “presumption favoring interpretations

of statutes [to] allow judicial review . . . absent clear statement” to

§ 1252(a)(2)(B)(ii)’s bar on jurisdiction. Kucana, 558 U.S. at 237 (quotation marks

omitted). Under these circumstances, we do not believe that § 1252(a)(2)(B)(ii), by

operation of § 1231(g) and § 1226(a), likely forecloses judicial review.

Accordingly, we conclude that the government is unlikely to succeed in its

appeal of the order releasing Mahdawi and the order extending the TRO.

B. Irreparable Injury

As in Öztürk, the government contends that any court order related to

immigration detention matters causes irreparable injury to its sovereign authority.

But the government has not demonstrated in what way it is being “enjoined by a

court [from] effectuating statutes enacted by representatives of its people.” Mot.

at 19 (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in

chambers)). The district court’s order to hold Mahdawi (if detained) in Vermont

pending his habeas petition hearing does not enjoin the government from

enforcing or “effectuating” any duly enacted law. The district court concluded

that Mahdawi is neither a flight risk nor a danger to the community, and the

21 government does not challenge that determination. Further, Mahdawi’s challenge

to his detention does not seek to disrupt—and nothing prevents the government

from continuing with—the removal proceedings it has commenced. See 8 U.S.C. §

1229a(b)(2)(A)(iii)–(iv) (providing that removal proceedings may take place

through video conference or, in some circumstances, “through telephone

conference”). We thus conclude that the government has not shown any

irreparable injury from either his release on bail or continued presence in the

District of Vermont pending his removal proceedings.

C. Balance of Equities

Finally, the balance of the equities weighs heavily against a stay. First of all,

the practical effect of the relief the government seeks would be to allow Mahdawi’s

re-detention. And “[t]he interest of the habeas petitioner in release pending appeal

[is] always substantial.” Hilton v. Braunskill, 481 U.S. 770, 777 (1987). This is

especially true given Mahdawi’s substantial First Amendment claims. See Elrod v.

Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.”). And as

to the TRO, inherent in the term “habeas corpus” is the notion that the government

is required to produce the detainee in order to allow the court to examine the

legality of detention. See 28 U.S.C. § 2243 (“[T]he person to whom the writ is

22 directed shall be required to produce at the hearing the body of the person

detained.”); Johnson v. Eisentrager, 339 U.S. 763, 778 (1950) (“A basic consideration

in habeas corpus practice is that the prisoner will be produced before the court.

This is the crux of the statutory scheme established by the Congress; indeed, it is

inherent in the very term ‘habeas corpus.’”).

For its part, the government does not contest the district court’s findings

that Mahdawi is neither a danger to the public nor a flight risk. Instead, it claims

irreparable harm from the “practical cost[]” of “creat[ing] an ad-hoc location for

Mahdawi to continue to appear for his removal proceedings in Louisiana

remotely.” Mot. at 19–20. We are unpersuaded. For one, Mahdawi is not in ICE

detention, so his appearing remotely is his responsibility, not the government’s.

But even if he were re-detained, “[f]aced with such a conflict between the

government’s unspecific financial and administrative concerns on the one hand,

and the risk of substantial constitutional harm to [Mahdawi] on the other, we have

little difficulty concluding ‘that the balance of hardships tips decidedly’ in [his]

favor.” Öztürk, 2025 WL 1318154, at *14 (quoting Mitchell v. Cuomo, 748 F.2d 804,

808 (2d Cir. 1984) (internal quotation marks omitted)).

23 IV. MANDAMUS RELIEF

The government asks this Court, in the alternative, to issue a writ of

mandamus and hold that the district court lacked authority to order Mahdawi’s

release and extend the TRO. “The remedy of mandamus is a drastic one, to be

invoked only in extraordinary situations.” Kerr v. U. S. Dist. Ct. for N. Dist. of

California, 426 U.S. 394, 402 (1976). “We issue the writ only in exceptional

circumstances amounting to a judicial usurpation of power or a clear abuse of

discretion.” In re Roman Cath. Diocese of Albany, New York, Inc., 745 F.3d 30, 35 (2d

Cir. 2014) (quotation marks omitted); see also Cheney v. U.S. Dist. Ct. for D.C., 542

U.S. 367, 380 (2004). The government has shown no such exceptional

circumstances. Öztürk, 2025 WL 1318154, at *14 (denying writ of mandamus

because “the government’s argument . . . that the district court lacked jurisdiction

. . . runs the government head into the ‘general rule that appellate courts should

avoid determining jurisdictional issues on a petition for mandamus’” (quoting In

re Ivy, 901 F.2d 7, 10 (2d Cir. 1990))). We therefore decline to issue a writ of

mandamus.

* * *

24 For the reasons stated above, the government’s motion for a stay of the

district court’s release order and extended TRO is DENIED. The government’s

request for a writ of mandamus is also DENIED.

The parties are directed to confer with the Clerk of Court to set a briefing

schedule for the merits of the appeal.