A federal judge in Vermont is considering whether to weigh in on the release or transfer of Rümeysa Öztürk, the Tufts university graduate student who was detained by immigration enforcement agents in Somerville last month.
In a hearing Monday, District of Vermont Judge William K. Sessions III said he’d take the federal government’s and Öztürk’s attorneys’ arguments under advisement. He could take the case under his jurisdiction and schedule a habeas hearing to consider her petition for release in May.
The legal challenge over Öztürk’s detention is separate from the immigration proceedings underway, in which an immigration judge will decide whether or not to deport her. A district court could decide if her detention and circumstances of her arrest are unconstitutional. Öztürk is scheduled to have her first immigration court hearing in Louisiana on Wednesday, although is it only a preliminary hearing to set deadlines. Her attorneys this morning also asked an immigration court separately to consider bond.
Plaintiff attorney Jessie Rossman, legal director of the ACLU of Massachusetts, made reference to a State Department memo about Öztürk, which was described to The Washington Post but has not been submitted in court. The memo, produced by an office within the State Department in March, noted the government did not have enough evidence for Secretary of State Marco Rubio to order Öztürk’s removal based on a rarely used immigration law allowing the secretary’s own discretion to deport a noncitizen who threatens the foreign policy of the nation.
“This is yet another piece of evidence that demonstrates that there is no basis for Rümeysa to have been arrested, transported and detained in Louisiana,” Rossman told GBH News, “except for her authorship of this op-ed — and that is clearly not normal immigration enforcement.”
Department of Justice attorney Michael Drescher on Monday reiterated that the government detained Öztürk because her visa was revoked.
“She is in custody because she is in removal proceedings. She was taken into custody because of her absence of status,” said Drescher. “The fact of her detention is inextricably connected to the fact that she is in removal proceedings.”
Öztürk’s legal team said she never received notice of that change, and Tufts University has said her visa was still listed as active when she was detained.
Plaintiffs argue her detention is a violation of the First and and Fifth Amendments, as well as the Administrative Procedures Act.
The questions at hand were whether there was a constitutional violation in her arrest and immediate detention in a habeas petition, and whether a habeas petition holds weight in a matter of immigrant detention.
Drescher said Congress specified under the Immigration and Nationality Act that district courts shouldn’t be involved in reviewing the operations of the immigration courts, including the ability for the government to detain a noncitizen who is in immigration proceedings.
Sessions agreed the law is complex, and that the Constitution in some ways ”rubs against“ the Immigration and Nationality Act, but he said the district court ultimately must assess if there were any violations of constitutional liberties, and that takes precedence.
Drescher said he doesn’t believe Sessions has the authority to order Öztürk’s release. Sessions said if he ordered her release and the government refused, then we’d be ”in a constitutional crisis.“
Noor Zafar of the national ACLU said that the relief being sought, release “from unlawful detention” has claims arising from the detention itself, not Öztürk’s removal proceedings.
“If the court grants release here, her removal proceedings will proceed as they are, and there would be no impact on that. the detention claim is really collateral to and independent of the removal proceedings that are happening,” she said. Zafar said Öztürk has and continues to suffer free speech violations for every minute she is detained.
Constitutional violations, Zafar said, are something an immigration judge isn’t empowered to consider, but a federal district court judge can consider under a habeas petition.
The government also argued that it doesn’t matter if attorneys for Öztürk didn’t know where she was located when they filed their complaint on March 25.
The plaintiffs have asked Sessions to order Öztürk’s return to Vermont, effectively enforcing the order of Massachusetts Judge Indira Talwani, who initially ordered the government keep Öztürk in Massachusetts, not knowing she’d already been transferred.
The government has argued to keep Öztürk in Louisiana where she is currently detained. On Monday, Drescher said the government didn’t know “what to make of” Talwani’s order since Öztürk was already in Vermont, confirming ICE did in fact know that a judge had ruled she must not be removed from the state she was believed to be in.
Öztürk is one of hundreds of students nationally who have had their visas revoked. Last week, Öztürk described medical neglect and religious rights violations at the facility she’s at in Louisiana.
“It is extraordinarily important that the court exercise its discretion here to grant bail if we look at what has been happening in other cases around the country,” said Rossman.
