A federal appeals court on Wednesday morning ordered the Trump administration to comply with a lower court order to transfer Tufts PhD student Rümeysa Öztürk from ICE detention in Louisiana to Vermont.
The ruling comes a day after a three-judge panel for the 2nd Circuit for the U.S. Court of Appeals heard arguments over the administration’s request to pause Vermont District Court Judge William Session’s order to move Öztürk ahead of a Vermont court appearance in the case about her detention.
The panel, comprised of Judges Alison J. Nathan, Susan L. Carney and Judge Barrington D. Parker Jr., said the government failed to show it would succeed on the “merits of its appeal.”
The judges determined Vermont is the proper venue to adjudicate Öztürk’s habeas petition because, at the time she filed, she was physically in Vermont and her immediate custodian was unknown. The panel disagreed that the Immigration and Nationality Act deprives a district court of jurisdiction over Öztürk’s challenge to her detention.
“Rümeysa has suffered six weeks in crowded confinement without adequate access to medical care and in conditions that doctors say risk exacerbating her asthma attacks. Her detention — over an op-ed she co-authored in her student newspaper — is as cruel as it is unconstitutional,” said Jessie Rossman, legal director, ACLU of Massachusetts.
The government argued that it would suffer “operational harm” if she was transferred because the detention facility in St. Albans, Vermont, doesn’t have the right equipment for virtual immigration court hearings.
The appeals court said Öztürk’s immigration removal proceedings will continue in Louisiana, but she doesn’t need to be physically present. They wrote that “Öztürk’s interest in participating in her scheduled habeas proceedings in-person outweighs the government’s purported administrative and logistical costs.”
“What more is there than just setting up a Zoom computer?” said Carney in Tuesday’s hearing.
The Vermont hearing is for a habeas case challenging the circumstances of her arrest and her confinement itself. Attorneys for Öztürk say her First Amendment rights have been violated.
While it’s likely she won’t be back in Vermont by Friday, the panel said she must be moved by May 14. A second hearing in Vermont is scheduled for May 22.
“Today, we moved one step closer to returning Rümeysa to her community and studies in Massachusetts,” said the ACLU of Massachusetts’ Rossman of the transfer order.
The judges considered whether to consolidate hearing Öztürk’s case and the case around Mohsen Mahdawi, a Columbia University student detained at his naturalization interview who has since been released in Vermont. Their decision on that matter wasn’t included in Wednesday’s order.
The panel tried to discuss First Amendment issues that are the root of Öztürk and Mahdawi’s detentions: both had expressed pro-Palestinian sentiments during campus activity, and had their immigration papers (Öztürk’s visa and Mahdawi’s green card) revoked as a result of their speech.
“Does the government contest that the speech in both cases was protected speech?” asked Parker Jr.
“Your Honor, we haven’t — we have not taken a position on that,” said Deputy Attorney General Drew Ensign, who represented the government. “Our position is that the jurisdictional bars, you know, prevent adjudication of that.”
“Help my thinking along — take a position,” Parker said.
Ensign declined, telling the judge he doesn’t have the “authority to take a position on that right now.”
Öztürk was detained by plainclothes ICE agents in Somerville on March 25. She was transferred to New Hampshire, Vermont, and finally Louisiana in a period of less than 24 hours, without access to an attorney.
At Tuesday’s appeals court hearing, an attorney for the government disclosed for the first time that the warden of the Vermont ICE facility was the custodian at the time attorney Mahsa Khanbabai filed a case for Öztürk in Massachusetts, which has since been transferred to Vermont.
In an effort to dismiss the case, the government argued Öztürk’s attorneys needed to name the warden as the defendant, which they didn’t due to lack of communication with their client for nearly 30 hours.
