ADC Amicus Brief Urges Third Circuit to Rehear Mahmoud Khalil Case, Backed by Broad Free Speech Coalition

FOR IMMEDIATE RELEASE
April 3, 2026
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NEW YORK, NY | The American-Arab Anti-Discrimination Committee (ADC) filed an amicus brief, or “friend of the court” brief, urging the U.S. Court of Appeals for the Third Circuit to rehear Mahmoud Khalil’s case en banc, following a deeply flawed panel decision that threatens the First Amendment rights of noncitizens nationwide.

ADC’s brief is joined by a broad coalition of leading civil liberties and free expression organizations across the political spectrum, including the Foundation for Individual Rights and Expression (FIRE), PEN America, the Rutherford Institute, and the First Amendment Lawyers Association. Together, the amici warn that the panel’s ruling creates a dangerous precedent allowing the government to detain individuals in retaliation for protected speech without federal judicial review for months or even years.

The case centers on whether federal courts have jurisdiction to hear claims that a noncitizen’s detention was carried out in retaliation for constitutionally protected expression before the conclusion of immigration proceedings. The Third Circuit majority wrongly held that such claims must wait, effectively insulating unconstitutional conduct from timely review.

ADC’s brief explains that retaliatory detention constitutes an immediate and irreparable First Amendment injury, one that cannot be remedied after the fact. By delaying judicial review until after removal proceedings conclude, the government is permitted to suppress speech first and answer constitutional questions later—if at all.

The coalition further argues that immigration courts operating within the executive branch cannot meaningfully adjudicate constitutional claims against that same branch, making access to federal courts essential.

“Detaining individuals for their political speech is one of the most extreme forms of government retaliation,” said Jenin Younes, National Legal Director of ADC. “The panel’s decision gives the government the green light to exploit immigration law to silence dissent. If permitted  to stand, the majority’s decision  will chill speech far beyond this case and erode core First Amendment protections for millions of people.”

This case presents an issue of exceptional importance and has already created tension with other federal courts that have allowed similar claims to proceed. ADC and its co-amici urge the en banc (entire) Third Circuit to vacate the panel’s decision and restore meaningful judicial review where constitutional rights are at stake.

The en banc petition represents a critical step before potential review by the U.S. Supreme Court.