At a three-hour hearing in Vermont federal court, the release of Tufts grad student Rümeysa Öztürk on bail was ordered “immediately” from immigration detention in Louisiana at about 1:15 p.m. Friday, and without restrictions on her travel or a GPS ankle monitor.
But Immigration and Customs Enforcement defied that order, leading to an emergency teleconference with the judge at 4:50 p.m. Friday. A written order from the judge reiterating her release from “ICE custody immediately on her own recognizance, without any form of Body-Worn GPS or other ICE monitoring at this time” followed at 5:13 p.m. She was actually released around 6:20 p.m., MSNBC reported.
Five hours after the “immediately” order.
Judge William K. Sessions III found that Öztürk was likely detained in retaliation for writing an op-ed in the Tufts Daily, a First Amendment violation, and that her due process rights had been violated. He further found that the “extraordinary circumstances” merited her immediate release.
Those extraordinary circumstances included her medical condition – asthma that’s been worsening – as well as her transport from Somerville to Vermont to Louisiana at breakneck speed on the night of March 25 in tension with, if not opposition to, a Massachusetts judge’s order that she not be moved from the state.
Öztürk appeared remotely at the proceeding via Zoom because an earlier appeal from the government delayed her being transferred to Vermont for the hearing.
“I am relieved and ecstatic that Rümeysa has been ordered released,” said her immigration lawyer, Mahsa Khanbabai, in a statement after the hearing but before the release delays. Khanbabai was with Öztürk in Louisiana during the hearing and sat next to her on the video screen.
“Unfortunately, it is 45 days too late,” Khanbabai said. “She has been imprisoned all these days for simply writing an op-ed that called for human rights and dignity for the people in Palestine. When did speaking up against oppression become a crime? When did speaking up against genocide become something to be imprisoned for?”
Friday’s hearing begins
Öztürk’s hearing started at 10:16 a.m. with eight of her lawyers in the Vermont courtroom, Khanbabai with her in Louisiana via Zoom, and one government lawyer in the courtroom.
Sessions summarized the recent chronology – that on April 18 he had scheduled this bail hearing, and ordered Öztürk transferred to Vermont for it by May 1. But the government had appealed, and the appeals court delayed that transfer, issuing its ruling this Wednesday. Sessions had initially postponed the bail hearing, because he and the appeals court felt it was important she have the right to be present.
But when he was told Thursday that Öztürk wished to go ahead with the bail hearing, appearing remotely, “then we changed again,” back to a bail hearing. He stopped and confirmed, first with her courtroom lawyers and then with Öztürk herself that she would like to proceed.
“Yes, that’s true, your honor,” Öztürk confirmed.
First up for Öztürk was the Jessie J. Rossman, legal director for the ACLU of Massachusetts, who explained that they would be presenting a series of witnesses, first as to her medical condition, then to her academic work at Tufts University and finally to her supervision under bail.
But Sessions interrupted Rossman to ask – “You do not anticipate any problem if this court were to order her released?”
He sharpened his inquiry a bit: “Do you know if there’s a pattern of Louisiana officials complying with habeas orders? – Is there a pattern of acceptance of orders from Article III judges by ICE officials in Louisiana? Accepting those orders and releasing” detainees?
Rossman did not know of any.
Sessions also asked about the Washington Post report that internal government memos questioned the grounds for revoking Öztürk’s visa. “Have you received the referenced document?”
“We have not,” Rossman said. “We asked multiple times and moved this court. The government both refused and opposed our motion to this court. We think at the very least the inference from that memo, still not produced, needs to be in furtherance of the petitioner.”
“We have seen time and again that procedural mechanisms have pushed back this hearing,” Rossman told the court, giving as an example how the government waited until the fourth day after the April 18 order to file its appeal. (The April 18 order included a built-in four day delay to allow time for an orderly government appeal.)
“After all of this testimony,” Rossman said, “Ms. Öztürk is going to ask this court to grant bail, to do so immediately, and to do so without a stay.”
“The message is you can be detained thousands of miles from your home for writing a newspaper article. The petitioner needs this court to alleviate the chill on others.”
Öztürk’s testimony
The first witness was Öztürk herself, questioned by Ramzi Kassem from the CUNY School of Law in New York, one of Öztürk’s lawyers.
Kassem walked Öztürk through a discussion of her doctoral work in children’s adolescent media consumption.
Öztürk described her academic work as “studying how young people use media in a positive way, benefiting others. Helping with emotional difficulties. Helping each other.”
She also described organizing support for academics who work with children in areas of global conflict, “from Gaza to Israel; from Russia to Ukraine; from Sudan to Yemen; from Cameroon to Afghanistan.”
“People working in academi[a], sometimes we forget the emotional … it
doesn’t mean we don’t grieve for children –”
Öztürk clutched her hands to her heart.
“All of them are ours – [children] experiencing armed conflict around the world.”
Kassem asked Öztürk to describe her asthma, and she detailed her initial diagnosis from a doctor in Turkey; changes she made to avoid strong smells and chemicals or perfumes; being careful about ventilation; avoiding crowds and triggers; and to “have a less stressful life.”
Öztürk said she treated her asthma with a regular maintenance inhaler daily, as well as carrying an emergency inhaler. But when she was arrested on the street on March 25, she was carrying only her emergency inhaler, so she did not have access to her daily inhaler during her confinement (if she would even have been allowed to use it).
Öztürk described having an asthma attack at the Atlanta airport, while being moved from Vermont to Louisiana by immigration officers. “I used my inhaler twice, I couldn’t get over it easily.”
She described treatment by a nurse at the immigration detention center, “The nurse told me to take that thing from my head. She took off my hijab. I told her she could not take that from me, but unfortunately she did not give it back.”
Öztürk testified her asthma attacks have worsened since her detention, and they are “longer and harder to stop.” They now last 45 minutes, she said.
She also said the conditions “are really challenging for an asthma patient. Not allowed fresh air; time is limited when we are allowed it. No dividers between showers, toilets, sink.”
She testified that 24 people are housed in a room with a capacity for 14. “The situation is very stressful.”
Öztürk described the importance of her doctoral work at Tufts over the past seven years of her life. “The work I do is very meaningful. [It] contribute[s] to the well-being and development of children all around the world.” She held her hands to her heart, again.
Medical, academic, bail witnesses – interrupted by asthma attack
Öztürk was followed by Dr. Jessica McCannon, a pulmonologist at Massachusetts General Hospital. McCannon summarized what asthma is and her examination of Öztürk’s medical records as well as her interviews with Öztürk via remote video.
During McCannon’s testimony, we could see Öztürk coughing via the video link, although we did not hear it.
McCannon described Öztürk’s asthma as “well controlled” when she was at Tufts, except when she had Covid.
But McCannon’s testimony was interrupted.
“Rümeysa is actually having an asthma attack right now,” Khanbabai said, sitting next to her. And we see Öztürk coughing again.
The judge excuses Öztürk so she can go to the restroom.
The hearing continues in her absence. McCannon testifies Öztürk’s asthma is “poorly controlled” in her confinement, and says she is at considerable risk of worsening condition, as well as increased risk of viral transmission in a congregate setting.
After about eight minutes, Öztürk returns to the video. She seems normal.
McCannon concludes her testimony explaining that Öztürk is a risk of worsening conditions, or even “morbidity and mortality related to asthma,” and recommends she not remain in detention.
Assistant U.S. attorney Michael P. Drescher, representing the government, has a brief cross examination of McCannon. He asks her about terminology, how many times she has spoken to Öztürk (twice), and if she has reviewed Öztürk’s medical records in Louisiana or communicated her needs to the medical facility at her detention center (no and no).
Öztürk at Tufts
The next witness was Sara K. Johnson, Öztürk’s academic adviser at Tufts.
Johnson testified she meets with Öztürk, like all her doctoral students, formally for an hour every other week to review their progress, and they have nearby offices and she sees her regularly and frequently.
Johnson said Öztürk teaches an introduction to children’s media class over the summer, and that her research involves “how late adolescents use social media in what are called ‘pro-social’ ways, to the benefit of other people, rather than to herself.”
“She’s our media expert on that project,” Johnson said. “Her expertise is absolutely critical.”
“We’ve talked about Rümeysa’s allergies, but from a distance she really loves cats,” Johnson said. “She’s always asking to see pictures of my cats.”
“One of my cats was getting treatment for cancer,” Johnson described telling her students at a staff meeting. “I didn’t know it at the time, but Rümeysa wrote down the dates of treatment.”
“On the day, she sent me a note,” Johnson said, clearly emotional. She also talked about Öztürk’s friendship with Johnson’s mother, who relocated to Somerville from Kentucky and wanted to visit Turkey.
Johnson noted that some doctoral students are really insular and stick with their cohort or small group, “but that’s not Rümeysa.” Öztürk talks to and interfaces with undergraduates and students at all levels, she said.
Drescher had no questions for Johnson from the government.
From the bench, Sessions asked Johnson about Öztürk’s level of engagement.
“I would characterize her engagement as ‘exceptionally high,’” Johnson said. “I point to her as a role model, taking advantage of all our program has to offer, being so thorough.”
Bail overseer
The final witness was Becky Penberthy, who is the adult restorative services manager at the Burlington Community Justice Center, a part of the Burlington, Vermont, city government.
Penberthy testified that she had been asked to supervise Öztürk’s bail release because the federal probation department does not handle civil cases such as Öztürk’s.
Much of Penberthy’s work involves support for people on pretrial release from state court, ensuring they appear in court, avoiding future detentions.
Sessions questioned Penberthy about potential conflicts between her reporting to the federal court and being employed by municipal government. Penberthy said there was no conflict, and that her focus is accountability, which she takes “very seriously.”
Sessions asked about supervising people outside Vermont, and Penberthy said she had supervised a diversion program for a person in New Zealand. She would have no reservations reporting to or cooperating with immigration authorities, she said.
Legal argument
After testimony, Rossman put forward the legal case for Öztürk’s release on bail.
First, that she had raised a “substantial claim” of constitutional violations – Sessions interrupted and said it was clear he had found that last month, and that the appeals court agreed.
Second, that the “extraordinary circumstances” require her release, specifically her medical condition and the prospect of it worsening.
Next, Rossman argued that the release should happen immediately, and that the judge should not delay any further or grant time for the government to appeal.
For the government, Drescher had no direct response. He reiterated that he thought that Sessions had no jurisdiction here, but “I appreciate you have disagreed, and the Second Circuit [Court of Appeals] signaled very strongly.”
Drescher also said the government would like any release to be subject to conditions, such as location monitoring, restrictions on out-of-state travel, compliance with laws, etc.
“Alright, I appreciate your offer,” Sessions responded.
Judge’s ruling
Sessions ruled from the courtroom.
He had put the government on notice, he said , three weeks ago, that they needed to provide evidence. “There has been no evidence, other than the op-ed. That literally is the case. There is no evidence here, as to the [government’s] motivation, absent consideration of the op-ed.”
In addition to finding that Öztürk’s medical conditions were the required extraordinary circumstances for release, he drew attention to events on the night of her arrest, and the order from a Massachusetts judge that Öztürk not be removed from Massachusetts.
It’s “not clear if they knew and disregarded” the order, Sessions said, “or if they never knew. But this is an extraordinary situation.”
“The court finds her continued detention cannot stand. Bail is necessary.”
Sessions said he was not going to impose travel restrictions or location monitoring, and while he was open to administrative conditions such as periodic check-ins, he was not going to impose them “at this point.”
Instead, he invited the Drescher to submit a list of conditions, in consultation with Öztürk’s lawyers, and he would consider imposing them and amending his release order.
Sessions then said that while Drescher did not ask for a stay of his order, regardless he was not going to stay the release, because all of the factors are in Öztürk’s favor: She’s likely to prevail, as she has already twice so far; the government is not irreparably harmed by her release; Öztürk would be harmed by further detention; and the public interest favors her release.
Sessions closed by telling Drescher to monitor the situation in Louisiana, and to tell him immediately when she is released, and that he would not impose electronic location monitoring.
Although the facts are unclear, it appears that the delays in Öztürk’s release after the order were because the government tried to put an electronic location monitoring device on Öztürk.
A stronger
Please consider making a financial contribution to maintain, expand and improve Cambridge Day.
We are now a 501(c)(3) nonprofit and all donations are tax deductible.
Please consider a recurring contribution.
Excellent reporting by the Cambridge Day.
This news gives hope that the rule of law will prevail over the malicious actions of these incompetent buffoons.
Yes, wow, what tremendous reproting on this – lots of important details I haven’t seen anywhere else. Thank you