A court has – again – ordered that Tufts grad student Rümeysa Öztürk be transported to Vermont for a hearing on temporary release from federal custody, and then a hearing on her full case.
Less than 24 hours after oral argument Tuesday, a three-judge panel of the Second Circuit Court of Appeals in New York lifted its temporary order stopping Öztürk from being brought to Vermont for a bail hearing. It denied the government’s request to keep her in Louisiana while she challenges her confinement in a Vermont court case. The 45-page decision orders Öztürk to be brought to Vermont by May 14.
Unless the government decides to seek emergency relief from the Supreme Court, as it has done in other recent high-profile immigration cases, Öztürk will be in Vermont next week.
“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, the ACLU of Massachusetts’s legal director in a statement. “Today, we moved one step closer to returning Rümeysa to her community and studies in Massachusetts.”
The ACLU said it expects Öztürk’s scheduled Friday bail hearing to go forward. It’s not entirely clear if it will, however. Judge William K. Sessions III, the federal district judge in Vermont handling her case, had ordered both sides to supplement the record and “present all evidence related to” bail by the end of last week. The government filed nothing, although it had started the appeal on April 22.
Sessions had previously written that he thought Öztürk’s bail case was strong, but wanted to give the government a chance to show otherwise.
The government has not accused Öztürk of any crime. She was taken from a Somerville sidewalk March 25 by Immigration and Customs Enforcement and whisked to the detention center in Louisiana.
The case was before judges Alison J. Nathan, Barrington D. Parker and Susan L. Carney, and the decision issued under all three of their names. It was a review of the government’s emergency request to keep Öztürk in Louisiana, and while that was denied, the government’s appeal about jurisdictional issues and the district court’s authority remains active. It is in sufficiently early stages that a schedule has not been set.
The appeals court found that the government did prevail on one narrow question – that its appeal was properly before the court. Öztürk’s lawyers had argued that the order transferring her to Vermont could not be appealed until the end of the case, but the Second Circuit disagreed.
Beyond that, the court consistently found for Öztürk. It found the case was properly in Vermont after being transferred from Massachusetts, and that “Any confusion about where habeas jurisdiction resides arises from the government’s conduct. … The government now argues that this transfer was improper. The government is wrong.”
Habeas corpus is the legal mechanism for a person to challenge their detention; it requires the government to show that detention is lawful.
The appeals court found that Öztürk could correctly sue under the “unknown custodian” rule because she lawyers didn’t know who was holding her or where: “Indeed, the government concedes that it withheld this information intentionally.” (The emphasis was added by the judges.)
It dispensed with the government’s argument that the unknown custodian rule applies only when their identity is a “prolonged secret,” saying, “The government cites no statute or case law for this extraordinary proposition, the practical effect of which would be that for some unspecified period of time after detention – seemingly however long the government chooses to take in transporting a detainee between states or between facilities – a detainee would be unable to file a habeas petition at all, anywhere. Such a rule finds no support in the law and is contrary to long-standing tradition.”
The government had argued that laws that prevent district courts from reviewing immigration matters apply here, but the court disagreed, saying those arguments “rely on the mistaken belief that substantive overlap between a challenge to detention and a challenge to removal is reason enough to conclude that the detention challenge arises from removal.”
“After all, it would seem a ‘staggering result’ if a person who brought a First Amendment retaliation challenge to her removal would be barred from bringing a separate First Amendment retaliation challenge to conditions of her confinement, or her prolonged detention, merely because there is substantive overlap between the claims.”
One of the factors in granting an emergency stay is whether there is “irreparable harm,” and the court disagreed with the government’s interpretation “that it suffers an irreparable injury ‘[a]ny time’ it is ‘enjoined by a court [from] effectuating statutes enacted by representatives of its people.’ … We are not persuaded by this overbroad argument.”
Lastly, considering the balance of hardships between the “between the government’s unspecific financial and administrative concerns on the one hand and the risk of substantial constitutional harm to Öztürk on the other, we have little difficulty concluding ‘that the balance of hardships tips decidedly’ in her favor,” the judges wrote.
A stronger
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Thanks for very clear reporting on this important case. I hope Ozturk makes it to Vermont and/or gets released on bail soon! She never should have been arrested.