A federal appeals court made no immediate decisions Tuesday as it considered jurisdictional issues in the cases of a Turkish Tufts University student who has been detained by immigration authorities for six weeks and a Palestinian student at Columbia University who was recently released from detention.
A judicial panel of the U.S. 2nd Circuit Court of Appeals, based in New York, heard motions filed by the U.S. Justice Department regarding Rumeysa Ozturk and Mohsen Mahdawi. The department is appealing decisions made by two federal judges in Vermont.
The Justice Department says Ozturk 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 Ozturk and Mahdawi are being conducted separately.
A district court judge in Vermont had ordered that Ozturk, a 30-year-old doctoral student, be brought to the state by May 1 for hearings to determine whether she was illegally detained. Ozturk'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 Ozturk's lawyers told reporters after the hearing. "She wants to finish her Ph.D. She's scheduled to teach a class this summer. She should be released. Then the legal arguments can be dealt with."
The appeals court paused that order last week in order to consider the government's motion arguing the immigration court in Louisiana has jurisdiction over Ozturk's case, not the court in Vermont.
Immigration officials surrounded Ozturk as she walked along a street in a Boston suburb March 25 and drove her to New Hampshire and Vermont before putting her on a plane to the detention center in Basile, Louisiana.
Ozturk'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 Justice Department lawyer Drew Ensign on why the government did not tell Ozturk's lawyers where she was sooner. He cited "operational security concerns."
They also questioned him over what the government said was Ozturk'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. Ozturk'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 Ozturk was in transit there at the time.
Ozturk 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."
Ozturk was one of four students who wrote an op-ed in the campus newspaper, The Tufts Daily, last year criticizing the university's response to student activists demanding that Tufts "acknowledge the Palestinian genocide," disclose its investments and divest from companies with ties to Israel.
A Department of Homeland Security spokesperson said in March, without providing evidence, that investigations found that Ozturk engaged in activities in support of Hamas, a U.S.-designated terrorist group.
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 it is?" Judge Carney asked. Ensign argued that in the immigration context, the decision was "sovereign injury," hurting the government's ability to carry out removals.
Judge Barrington Parker Jr. also asked Ensign if the government contests that the speech in Ozturk and Mahdawi's cases was protected speech. Ensign said the government has not taken a position on that.
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.
