The 2nd Circuit is helping the administration re-detain Mohsen Mahdawi to deport him for criticizing Israel. The constitutional claim Mahdawi is trying to make — and the one the 2nd Circuit has told him he must wait to make — is a First Amendment claim: that the government is retaliating against him for political speech, and that the deportation proceeding is punishment for the exercise of a right the Constitution protects at its highest tier. The panel did not reach that claim. It told him the immigration court gets to go first.
The 2nd Circuit’s strongest version of its own reasoning is straightforward. Federal courts are generally reluctant to intervene in ongoing agency proceedings — a rule called the exhaustion doctrine. The rule exists to let administrative processes develop without parallel litigation. The immigration court has jurisdiction over Mahdawi’s removal. The federal court will have its turn to consider the First Amendment claim after the immigration court has acted. That is the rule. It is a real rule, and it has a real purpose.
The unanimous panel of the 2nd U.S. Circuit Court of Appeals applied it to Mahdawi on Tuesday, holding that the Vermont federal judge who freed Mahdawi from immigration detention had overstepped his authority by intervening before the immigration courts had finished their work. The panel did not weigh in on whether the administration had selected Mahdawi for deportation because of his criticism of Israel. It told him he can pursue that First Amendment retaliation claim after the deportation proceeding is substantially complete. The 3rd Circuit told Mahmoud Khalil — Mahdawi’s former Columbia classmate — the same thing in May, in a ruling that gave Khalil more time to fight his deportation. The two appellate decisions, in two circuits, two months apart, are the same procedural answer to the same kind of case.
The departures from the steel-man are where the column’s work begins. The exhaustion rule, applied to a man who says the government is deporting him for political speech in violation of the First Amendment, has a particular effect. It makes him wait to argue the deportation is unconstitutional until the deportation is done. The Vermont judge who had freed Mahdawi likened the government’s effort to McCarthyist repression. The 2nd Circuit did not engage that comparison. The panel told Mahdawi he can make the First Amendment McCarthyism argument after the government has finished exercising the power the McCarthy-era analogue exercised. The deferral is not neutral. The exhaustion rule applied here channels the First Amendment claim out of federal court and into immigration court, where the immigration judge’s task is not to decide whether the deportation violates the First Amendment. The immigration judge’s task is to decide whether the deportation is otherwise lawful. The man the government is trying to deport for his speech gets to make his speech argument to a judge who is not deciding whether the government is deporting him for his speech.
The opinion, as reported, wrote that Mahdawi “can seek review from the federal courts over those claims after he has exhausted his options in the immigration court system.” That sentence is the operative holding. It is a sentence that says: the constitutional claim is real enough to exist, but procedural enough to defer. The panel characterized the Vermont judge’s intervention as one where the judge “overstepped his authority by intervening in Mahdawi’s case before it had moved fully through the immigration court system.” The language frames the constitutional question as a matter of timing, not substance — the federal courts will get to the First Amendment question eventually. The word “eventually” is doing the structural work. The administration has spent more than a year working to deport Mahdawi. The 2nd Circuit’s ruling extends the period during which the government can keep him in immigration detention while the First Amendment question waits for the immigration court to finish first.
The pattern is the same in both circuits. The same procedural rule, applied to the same kind of case — a political-speech deportation target asserting First Amendment retaliation — reaches the same procedural answer. The federal appellate courts are using the exhaustion doctrine to keep the constitutional claims of political-speech deportation targets out of federal court. The cases they are keeping from the merits are the cases the administration is bringing.
The court will tell you this is just the way the system works. The exhaustion rule is on the books. The immigration court has jurisdiction. The federal courts have to wait. The court is not responsible for how long the immigration court takes or what the immigration court does. The court is just applying the rule. The court is right about all of this in the same way a gatekeeper is right about the gate. The gatekeeper checks the ticket. The gatekeeper ignores whose hand paid for it. The gatekeeper does not decide who built the building or who gets the penthouse. The 2nd Circuit is checking the ticket. The administration is handing out the invites.
The pattern is documented across two circuits. The same procedural rule, applied to the same kind of case, produces the same procedural answer: the First Amendment claim waits. Khalil has taken his deportation fight to the Supreme Court, asking the justices to break the pattern. Until they do, the pattern holds.