Ice spirits Tufts grad student to New Hampshire, Vermont and Louisiana, evading judicial review

After Immigration and Customs Enforcement arrested Tufts doctoral graduate student Rümeysa Öztürk on Tuesday, they moved her to New Hampshire within the hour, according to a detailed chronology filed in her federal court case Tuesday by the Department of Justice. And then on to Vermont by 10 p.m. At 5:31 a.m. Saturday, she was on a plane to Louisiana.

That transfer across state lines had the effect of making it much more difficult for her to challenge her detention though a petition for a writ of habeas corpus. Habeas petitions normally have to filed in the judicial district – that’s a state for New England – where a person is held, and most Boston-area immigration lawyers aren’t members of the bar of the New Hampshire or Vermont courts and would need to find another lawyer to assist them after close of business on a Friday night. If they could even guess where their client were located.

The latest information comes from a declaration by Ice Boston supervisory detention and deportation officer David T. Wesling, signed Thursday but filed Tuesday. Rewritten in tabular form, Wesling recounts Öztürk’s movements:

“The government is trying to play a cruel game of jurisdictional musical chairs with Ms. Öztürk’s life, and her rights and freedom hang in the balance,” said Brett Max Kaufman, a senior counsel with the ACLU’s Center for Democracy. “We hope the court shuts this effort to manipulate our basic rights down and proceeds to addressing our client’s urgent claims.”

Wesling wrote that “Prior to her arrest, ICE determined that because there was no available bedspace for Petitioner at a facility where she could appear for hearing … in New England, that [sic] she would be transferred to … Basile, Louisiana where bedspace was determined to be available.”

Legal argument

In the DOJ’s 29-page filing from 4:50 p.m. that accompanies the Wesling declaration, assistant United States attorney Mark Sauter made all the usual arguments that the government makes over and over in similar cases, many of which succeed:

Sauter said that Öztürk’s lawyers filed the habeas petition in the wrong court; that it named the wrong “custodian” in the petition – Patricia Hyde, the New England field office director for Ice – rather than the Öztürk’s “immediate custodian in Vermont”; that federal district court aren’t allowed to review revocation of visas, only immigration courts; that federal district courts can’t review Ice removal proceedings; that federal district courts can’t review Ice detention decisions; that Öztürk can’t claim a violation of the federal Administrative Procedure Act because immigration law applies instead; that Öztürk should be denied bail because federal district courts can grant bail to immigration detainees only in “exceptional circumstances,” and an immigration judge should consider whether to grant bond; and that if the judge decides to transfer the case to another district, she should transfer it to the Western District of Louisiana.

Mahsa Khanbabai, Öztürk’s immigration lawyer who filed the petition on Tuesday night, said “the only reason we’re dealing with a Louisiana court in the first place is because a group of masked Ice agents illegally detained Rumeysa in Massachusetts, and yanked her out of state in chains.”

Öztürk’s lawyers are expected to argue that her petition should not be transferred to Louisiana, and that if it is transferred, it should be to New Hampshire or Vermont.

That argument got a boost today because of the case of Mahmoud Khalil, the Columbia University graduate student arrested and taken by Ice from New York City to New Jersey to JFK Airport in New York and then to Louisiana. His attorney filed a habeas petition in New York at 4:40 a.m. when he was actually in New Jersey, and ultimately a New York federal judge transferred the case to New Jersey over Ice’s objections – the agency wanted it transferred to Louisiana.

Today, the New Jersey court denied Ice’s motion to dismiss as to jurisdiction, and found that it properly had jurisdiction over the transferred case.

If the same argument applies here, that supports a transfer of Öztürk’s case to Vermont rather than Louisiana. (It may not, because the case law is different in Massachusetts than in New Jersey; Vermont and New York are in the same judicial circuit and therefore similar.)

For practical reasons and reasons of legal precedent, Öztürk’s attorneys would much rather litigate in New England.

At 5:24 p.m. Tuesday, Judge Denise Casper, to whom the case is assigned, ordered Öztürk’s lawyers to respond to DOJ’s filing by 5 p.m. Wednesday. She allowed them an extra 10 pages, a request she had granted for DOJ on Tuesday.

A stronger

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