ACLU lawyers appeared in Vermont federal district court Monday to argue for the return and release of Rümeysa Öztürk, the Tufts graduate student arrested by U.S. Immigration and Customs Enforcement agents March 25.
Although the judge, William Sessions III, pressed both sides equally and did not forecast how he would rule during the 2½-hour hearing in Burlington, it was clear he considered the case important and has taken steps to expedite its consideration. He had moved seven hearings and sentencings set for Monday, offering the entire day as well as part of the next, and gave both sides the opportunity to call witnesses (they did not).
During the hearing, Sessions asked what would happen if he found Öztürk’s lawyers were right that her confinement was unconstitutional retaliation for free speech but federal authorities refused to release her under immigration rules. “Then we’re in a constitutional crisis?” he asked.
An additional development weighing on Sessions is the arrest of Columbia University graduate student activist Mohsen Mahdawi after his citizenship naturalization interview in Colchester, Vermont. Mahdawi was arrested around noon Monday; Sessions’s Öztürk hearing finished at about 12:10 p.m.; and Mahdawi’s lawyer filed a habeas petition at 12:28 p.m., designating it as related to Öztürk’s case – so it went to Sessions. By 3:11 p.m., Sessions had ordered Mahdawi not removed from the state, but followed that Tuesday with a reassignment of the case to district judge Geoffrey W. Crawford.
Sessions faces a series of questions before he is allowed decide if he should order Öztürk brought back to New England or to order her release. She is now in immigration detention in Louisiana.
First, he has to decide whether he has jurisdiction to hear the case, because Öztürk is held in Louisiana and not Vermont, and habeas cases must be filed in the district of confinement. There is usually an exception to the rule if the habeas petition was filed before the petitioner was moved, but not always.
Second, he has to decide whether the transfer of the case from Massachusetts to Vermont was appropriate, again because while Öztürk was in a vehicle moving through Vermont at the time the petition was filed in Massachusetts. The law limits transfers to a place where the case could have been filed, and at the time of the transfer on Friday April 4, Öztürk was in Louisiana.
Third, district court judges are not allowed to review or interfere with immigration decisions. (Congress has set up a process in which immigration decisions are reviewed by an agency within the Department of Justice, then further appealed to the federal courts of appeal.) Sessions would have to find that the Öztürk’s arrest broke the law and also that he was not running afoul of the jurisdiction-stripping and channeling laws that limit his powers in immigration contexts.
Only if Sessions were to find all three of those things in favor of Öztürk could he even consider her release.
Sessions said that even if he has the power to order Öztürk released based on what has been submitted to him, his preference would be to hold a “bail hearing, as he would in a criminal case, and allow both sides to present arguments about dangerousness and risk of flight, get a report from the government’s probation department, find out where Öztürk would live and how she would be employed, etc. Öztürk’s attorneys said that because Öztürk was arrested for her speech and wants to finish her graduate degree at Tufts, there is no meaningful danger or risk of flight, unlike a typical criminal case.
Sessions said he could hold that hearing in May.
Government’s oral argument
The hearing began with Michael Drescher arguing for the government. Drescher is acting U.S. attorney for the District of Vermont. He would have appeared before Sessions many times.
“We do not contest that Ms. Öztürk is entitled to judicial process,” Drescher said. But just not this process, and not in Vermont.
When pressed by Sessions, however, Drescher seemed to argue both that Öztürk should file a habeas petition in Louisiana but that if she did there would be no possible relief a court could grant.
When Sessions posed his hypothetical about a “constitutional crisis” if the government did not obey an order to release Öztürk, Drescher was quick to respond: “This is not in any way to suggest we are not going to obey.” But Drescher emphasized that Congress has said district judges are not supposed to be involved in review of immigration decisions.
A detail of habeas petitions is a requirement to name the “immediate custodian” of the petitioner, and the government has said that Öztürk’s lawyers got it wrong by naming Patricia Hyde, director of the Ice New England Field Office.
“Who is the ‘immediate custodian?,’” Sessions asked Drescher.
“I don’t know,” he said.
Turning to the law about transfer of cases, Drescher said that because Öztürk was in Louisiana at the time of the transfer, the case should not have been transferred to Vermont. In support of that, Drescher drew one of many comparisons to the habeas case of Mahmoud Khalil, which was filed at 4 a.m. on a Sunday in New York when Khalil was in New Jersey.
Drescher said that even though the New York judge transferred Khalil’s case to New Jersey and not Louisiana, the New Jersey judge wasn’t sure that was right, and has permitted the government to appeal the transfer decision immediately – a so-called “interlocutory” appeal that normally is not allowed. That being certified suggests enough doubt about the appropriateness of the transfer that Sessions should take pause, Drescher said.
“But isn’t that an argument for flexibility?” Sessions asked.
That brought Drescher’s argument to a close, taking about an hour.
ACLU immigration law argument
Öztürk had a crowd of 10 lawyers on her side, and they divided argument between three of them. First was Noor Zafar, addressing whether immigration law prevents Sessions from taking action.
Zafar said Öztürk’s arrest on immigration charges was “retaliation for her speech,” and that’s enough. Yes, an order from Sessions through the habeas process could “have an impact” on immigration detention, but the Supreme Court and Second Circuit Court of Appeals have said that district courts retain jurisdiction to address the constitutional questions: Öztürk’s First Amendment free speech rights and Fifth Amendment due process rights.
Zafar revealed that Öztürk had filed a written request for bond from an immigration judge on Monday. But that didn’t matter because court rules would allow that bond to be eliminated for more than 90 days if the government appealed.
A consistent theme Zafar offered: Because the mechanisms through immigration law were inadequate, the law gives the district court jurisdiction.
Though some immigration law mechanisms seemed superficially adequate, in fact they were not, Zafar said. They take too long, when Öztürk’s liberty and academic work are at stake; and because the court of appeals makes decisions on a written record, the ability to develop that record is critical, and the rules in immigration cases don’t allow Öztürk to introduce the facts she would need to demonstrate her case.
Zafar raised State Department memoranda determining there was no evidence that Öztürk did anything antisemitic or supporting of terrorist organizations. They were reported by The Washington Post on Sunday.
Yet the government still hadn’t provided those documents to Öztürk’s lawyers even with a scheduled appearance in immigration court on Wednesday, Zafar said, and she couldn’t say whether she could expect the government to offer its evidence before the hearing, during it or at all. The rules of immigration court just don’t provide sufficient procedural protections.
Zafar also said if Sessions ordered her release, Öztürk could appear virtually for immigration proceedings in Louisiana, and that although a release might have an impact on the “discretionary decision to detain” Öztürk, that decision was highly unusual – under normal circumstances, the government does not detain people whose visas have been revoked.
Öztürk’s attorneys seek release or transfer
Zafar was followed by Adriana Lafaille, who responded to the issues about habeas jurisdiction. She said that Ozturk’s habeas petition named the right immediate custodian, Patricia Hyde, and that that even if she wasn’t right, the “unknown custodian” exception made the petition valid. Lafaille emphasized “that the custodian appears ‘so unknown’ that they cannot be named by the government!”
Lafaille said that habeas is a flexible remedy, meaning that the judge can fashion an appropriate solution for the case.
The law requires honoring the intent of judicial orders, not just their precise letter, and it was a problem for the government that it simply ignored a Massachusetts court’s order to not move Öztürk once she was in Vermont. The government could have stopped moving Öztürk, or sought clarification from the judge, but instead they ignored the order entirely, Lafaille said. An ACLU senior counsel had called the government’s actions “a cruel game.”
Last up for Öztürk was Jessie Rossman, legal director of the ACLU of Massachusetts. Rossman argued Sessions should order Öztürk’s release or transfer her to Vermont.
Sessions made it clear he was comfortable with the process he was most familiar with – a bail hearing in which both sides can present evidence. Öztürk herself could be present so he could assess her credibility and evaluate dangerousness.
Rossman responded that she believed Öztürk’s attorneys had made a sufficient argument on paper, but that they would much prefer to have a hearing before him in Vermont than to leave Öztürk languishing in Louisiana.
Sessions asked both sides to assess how much courtroom time they would need for such a hearing.
Drescher was also given time at the end of the hearing to address points by Öztürk’s lawyers. Asked directly the impact if Öztürk were transferred to Vermont, Drescher merely offered the usual sorts of logistics of “finding a bed” for her.
As of midafternoon Tuesday, the immigration detainee locator website still has no clear information for Mahdawi, the student arrested as Ozturk’s hearing was ending. “Current Detention Facility: CALL FIELD OFFICE,” it says, giving the phone number for Ice’s Burlington, Massachusetts, office that supervises the New England region.
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