A federal appeals court made no immediate decisions Tuesday after hearing arguments on the cases of Rümeysa Öztürk, a Tufts University student detained by federal agents since late March, and of Columbia University student Mohsen Mahdawi, who was recently released from detainment.
A judicial panel of three judges from the U.S. 2nd Circuit Court of Appeals, based in New York, heard motions filed by the U.S. Justice Department (DOJ) regarding Öztürk and Mahdawi.
The DOJ is appealing decisions made by two federal judges in Vermont. It claims Öztürk should not be brought to Vermont from a Louisiana detention center and that Mahdawi should be detained once again. It also wants to consolidate the students’ cases, saying they present similar legal questions.
Immigration court proceedings for Öztürk and Mahdawi are being conducted separately.
Öztürk, 30, was detained by masked Immigration and Customs Enforcement (ICE) agents on the streets of Somerville on March 25 while on her way to break a Ramadan fast.
A district court judge in Vermont had ordered that Öztürk be brought to the state by May 1 for hearings to determine whether she was illegally detained. Öztürk‘s lawyers say her detention violates her constitutional rights, including free speech and due process.
“She’s a cherished member of the Tufts community,” Esha Bhandari, one of Öztürk‘s lawyers, told reporters after the hearing on Tuesday.
“She wants to finish her PhD. She’s scheduled to teach a class this summer. She should be released. Then the legal arguments can be dealt with,” Bhandari said.
The appeals court paused the order to return Öztürk last week in order to consider the government’s motion, which argues the Louisiana immigration court has jurisdiction over Öztürk‘s case, not the court in Vermont.
When she was detained in March, Öztürk was whisked overnight to New Hampshire, then to Vermont, and ultimately brought to an all-women detention facility in Louisiana, where she currently remains.
Öztürk‘s lawyers first filed a petition on her behalf in Massachusetts, but they did not know where she was and were unable to speak to her until more than 24 hours after she was detained. A Massachusetts judge later transferred the case to Vermont.
During Tuesday’s hearing, the judges questioned DOJ lawyer Drew Ensign on why the government did not tell Öztürk‘s lawyers where she was sooner. He cited “operational security concerns.”
They also questioned him over what the government said was Öztürk‘s inability to name the “immediate custodian” in her plea for release, the person who has direct control and responsibility for someone who is detained. Öztürk‘s lawyers named Patricia Hyde, Boston-based ICE enforcement and removal field office director.
Ensign said it should have been the warden of the Vermont jail, even though Öztürk was in transit there at the time.
Öztürk was “seized by people who are not in uniform and who were masked and hooded,” Judge Susan Carney said. “And to all outward appearances, they could have been private actors.”
Öztürk was taken into custody because of an op-ed she co-authored in the Tufts’ student newspaper about the war in Gaza.
She has not been charged with any crimes.
No evidence linking Öztürk to antisemitism or terrorism has been found, according to a State Department memo in March that was described to The Washington Post.
The Department of Homeland Security previously said that Özturk engaged in activities “in support of Hamas,” a U.S.-designated terrorist organization, without any evidence of that claim.
Öztürk described the poor conditions and her experience in the detention facility in filings on May 2, where she has suffered from an increased number of asthma attacks due to the tight quarters, lack of medical care and abuse from staff.
These attacks last up to 45 minutes and leave Öztürk feeling “exhausted” and “anxious.”
“It has become progressively harder to recover from these asthma attacks while in detention,“ Öztürk wrote.
“ … I am very concerned about the severity of these attacks and my ability to manage them,” Öztürk said.
The government is also challenging another judge’s decision to release Mahdawi from detention in Vermont on April 30. Mahdawi led protests at Columbia University against Israel’s war in Gaza. He was arrested by immigration officials during an interview about finalizing his U.S. citizenship.
The judges questioned Ensign’s arguments, asking him if an adverse decision is “irreparable harm” to the government.
“Sometimes it is, and sometimes it isn’t, it depends on how right the government feels?” Judge Carney asked. Ensign argued that in the immigration context, the decision was “sovereign injury,” hurting the government’s ability to carry out removals.
Mahdawi, 34, has been a legal permanent resident for 10 years. He was in a Vermont state prison since April 14. In his release order, U.S. District Judge Geoffrey Crawford said Mahdawi has raised a “substantial claim that the government arrested him to stifle speech with which it disagrees.”
Mahdawi’s release allows him to travel outside his home state of Vermont and attend graduation next month in New York. He recently completed coursework at Columbia and planned to begin a master’s degree program there in the fall.
