Article by Mary Holper
Mahmoud Khalil, Rümeysa Öztürk, and Mohsen Mahdawi are students whose speech during the 2024 campus protests caused the government to seek their deportation and detain them during the deportation process. Anderson Alphonse is a lawful permanent resident whose convictions caused the government to seek to deport him and mandatorily detain him during the deportation process. In each of these cases, the substantive findings in the deportation litigation path and detention litigation path overlapped, even though their consequences differed. In each of these cases, the habeas court examined whether jurisdiction was barred because of a 1996 statute, 8 U.S.C. § 1252(b)(9), the “zipper clause.” With § 1252(b)(9), Congress intended to “zip” all claims “arising from any action taken or proceeding brought to remove” a noncitizen into a single circuit court petition for review of a final removal order. But the detention and deportation litigation paths are two sides of an unmatched zipper. At first glance, they look like they match, but upon closer inspection, they do not. One path leads to deportation while the other leads to detention.
The federal courts, interpreting 8 U.S.C. § 1252(b)(9) in the cases of Mr. Khalil, Ms. Öztürk, and Mr. Mahdawi, unzipped detention from deportation. In Mr. Alphonse’s case, the federal district court joined other district courts in zipping detention to deportation because of 8 U.S.C. § 1252(b)(9). In the case of Mr. Alphonse, the court joined others in reasoning that such claim-barring does not violate the Suspension Clause of the U.S. Constitution because the detainee has an adequate substitute for habeas corpus. Ultimately, a federal court will decide whether the immigration adjudicators were correct in the substantive finding that caused them to seek both deportation and detention. But, by the time a federal court corrects any erroneous decisions by the immigration adjudicators, it will come at the coda of removal proceedings, and too late to remedy the illegal detention. Zipping detention to deportation means that no federal court intervenes to stop the illegal detention while it is happening.
This Article seeks to expose the problem of immigration detainees like Mr. Alphonse whose detention claims get zipped to their deportation cases. Future courts may rely on the 8 U.S.C. § 1252(b)(9) interpretations from the student detention cases. Yet there is another angle to jurisdiction-stripping under the zipper clause that this Article explores further. This Article offers the time-honored “Great Writ”—the writ of habeas corpus—and argues that the petition for review of a removal order is not an adequate substitute for habeas review of the illegal detention. The “Great Writ” is still available as a remedy, notwithstanding the United States Supreme Court gutting its reach with the 2020 decision in DHS v. Thuraissigiam. The detainee seeks immediate relief from illegal executive detention—not an invalidation of any order of removal—which is precisely the core of habeas corpus that the Thuraissigiam Court left intact. Despite the many uncertainties that Thuraissigiam created for noncitizens seeking habeas corpus relief, the problem addressed in this Article is one of the few areas of immigration litigation where the doctrine is clear that habeas relief is available.
This Article also argues that there is no adequate substitute for habeas for alleged mandatory detainees like Mr. Alphonse. These detainees have no meaningful opportunity to demonstrate that they are being held pursuant to an erroneous application of law. The separation of powers function of the Suspension Clause is undermined if a noncitizen can only raise these claims to immigration judges and the Board of Immigration Appeals (BIA or Board), who are housed in the executive branch and cannot rule on constitutional issues. The first involvement by a federal court, reviewing the removal order, is too little and too late to resolve the illegal detention question; this court also does not have the authority to conditionally release the detainee.
This Article is the first to expose this overlooked liberty interest of the alleged mandatory immigration detainees. Scholars have examined the due process concerns at issue in mandatory detention and prolonged mandatory detention during removal proceedings. Others have examined the 1996 jurisdiction-stripping statutes and their impact on judicial review of removal orders, and the use of habeas corpus as a means to restore judicial review. Scholars also have critiqued the Court’s Thuraissigiam opinion for calling into question what appeared to be well-settled habeas law and gutting the “Great Writ.” In addition, scholars have analyzed what constitutes an adequate substitute for habeas corpus. Scholars have created a taxonomy of recent court interpretations of the zipper clause following Jennings v. Rodriguez, in which the Supreme Court in 2018 interpreted 8 U.S.C. § 1252(b)(9) to not bar prolonged mandatory detention claims, and applied civil procedure concepts to § 1252(b)(9). In this Article, I combine threads from these other scholars’ work and seek to reinvigorate the “Great Writ” for the alleged mandatory detainees so that their detention litigation paths are not mistakenly zipped into their deportation litigation paths.
This Article is timely because it examines the writ of habeas corpus, which has become a thorn in the side of the Trump administration’s anti-immigrant agenda. In April 2025 the Supreme Court held that the writ of habeas corpus is the proper mode of challenging summary removals under the Alien Enemies Act in violation of noncitizens’ due process rights. Noncitizens in this administration are frequently seeking federal court involvement through habeas corpus petitions; they are filing these petitions quickly to avoid the government’s attempts at forum shopping through transfers to Louisiana or Texas. Stephen Miller, the primary author of the Trump administration’s anti-immigrant policies, has publicly stated that the writ should be suspended. Department of Homeland Security Secretary Kristi Noem, when asked by Senator Maggie Hassan to define habeas corpus, sought to twist the writ’s purpose by responding that habeas corpus is “a constitutional right that the president has to be able to remove people from this country.” At this moment, habeas corpus is, to immigrants’ rights advocates, a main tool to vindicate detained noncitizens’ rights. To the Trump administration, habeas corpus is a pesky gadfly.
This Article is also timely because the student detention cases have shone a spotlight on a repeat government strategy in the litigation of its immigration agenda, which is to “battle hard on technical issues and save the constitutional questions for later.” Few questions are more technical than whether jurisdiction is stripped under the zipper clause. Federal district court judges must engage with technical aspects of immigration law in order to resolve the questions that appear in both the detention and deportation cases. It is easy for them to invoke the zipper clause, leaving questions that appear in the deportation case to be resolved by a circuit court after the deportation case concludes. Yet, the student detention cases have demonstrated how the Trump administration is using immigration detention for punitive purposes, instead of its supposedly regulatory purpose. Executive branch officials’ opinions that they need not follow federal court orders have caused federal courts to lessen their typical deference to immigration enforcement actors. Federal courts may be more willing to engage with the intricacies of immigration law as part of their important work resolving habeas corpus petitions for immigration detainees. As such, they may begin to unzip detention from deportation.
What is more, we are seeing a trend where more people are subject to immigration detention for longer periods of time. Immigration detention numbers reached an all-time high during the first Trump presidency, with a daily population of 55,654 in August 2019. The number of immigration detainees dropped during the COVID-19 pandemic, and then steadily rose during the Biden presidency, totaling 37,360 in early June 2024. A second Trump administration is already seeing higher numbers of detentions as President Trump makes good on his campaign promises of mass detention and deportation. As of September 21, 2025, 59,762 people are in immigration detention. Because of an enormous backlog of immigration cases before the immigration courts—as of the end of August 2025, 3,432,519 cases were pending—removal proceedings take longer to adjudicate, leaving detainees who cannot access a bond hearing suffering long periods of illegal mandatory immigration detention.
This Article proceeds in three parts following the Introduction. In Part II, the Article explains the two litigation paths of immigration detainees and describes how these paths are distinct and separate. On one path, detainees litigate whether they should be deported. On the other, they litigate whether they should be held in detention while the immigration adjudication system decides their deportation cases. Part II then presents the case of Anderson Alphonse, an alleged mandatory detainee who walked these two paths, but his detention litigation path was cut short because of the zipper clause, 8 U.S.C. § 1252(b)(9). The district court rejected his Suspension Clause arguments because the court decided that the agency procedures and petition for review of his removal order provided an adequate substitute for his habeas claim—his path, the district court reasoned, continued in another federal court. A federal court of appeals never reviewed the habeas court’s determination of this important statutory and constitutional issue, however, because his case became moot prior to the appellate court’s resolution. Part II concludes by juxtaposing Mr. Alphonse’s case with the cases of the student detentions, where the courts also analyzed 8 U.S.C. § 1252(b)(9), but came out with a different statutory interpretation of the clause.
Part III provides historical background for the zipper clause, 8 U.S.C. § 1252(b)(9), and other relevant jurisdiction-stripping and claims-channeling statutes in the Immigration and Nationality Act. These statutes aimed to both reduce the scattershot nature of immigration litigation in federal court and completely bar certain types of claims. This Part demonstrates that the two separate litigation paths remained, with detention claims squarely falling within the jurisdiction of habeas courts, even after congressional attempts to “zip” together claims into one petition for review. The Supreme Court in 2018 with its Jennings decision also affirmed the independence of detention claims, refusing to bar them as “arising from” an action taken to deport a noncitizen pursuant to 8 U.S.C. § 1252(b)(9). Other decisions in Jennings’s wake reaffirmed that deportation and detention litigation are independent of each other, creating two distinct and separate paths. Part III then explains the reasoning given by courts in the students’ cases for why § 1252(b)(9) did not bar their detention challenges, and invites habeas courts to unzip detention from deportation based on a closer examination of these cases.
Part IV argues that barring the alleged mandatory detainees from litigating their illegal detention claims in habeas proceedings violates the Suspension Clause of the U.S. Constitution. This Part first examines the Supreme Court’s 2020 Thuraissigiam decision, and concludes that, notwithstanding the Court’s limitation of the writ’s application, the alleged mandatory detainees present a core habeas corpus issue—release from unlawful executive detention. In keeping with limiting habeas to its core, it is key to denote what the habeas court does not decide: the habeas court’s decision does not impact whether they are ultimately found deportable. This Part next examines the few Supreme Court cases that have provided guidance on what is an adequate substitute for habeas. The most relevant, the Court’s 2008 Boumediene v. Bush decision, held that the combatant status review tribunals for Guantanamo detainees did not provide an adequate substitute for the “Great Writ.” This Part argues that the alleged mandatory detainees have no adequate substitute for habeas with the existing procedures to test the legality of their detention.
About the Author
Mary Holper.
Citation
100 Tul. L. Rev. 261