Appeals Court Orders Trump Administration to Transfer Rumeysa Ozturk Back to Vermont

On Saturday, I explained why President Trump has himself to blame for the fact that federal judges have largely thwarted his attempt to summarily deport both illegal aliens and legal aliens tied to the unrest at Columbia University and other campuses following Hamas’s October 7 atrocities. Specifically,

In formulating immigration law, Congress tried to keep judicial participation in its enforcement to a minimum. It is Trump who has drawn the district courts into this arena, both by operating outside the law and, even when operating within it, doing so in such irregular ways that judicial intervention has been inevitable.

The main example of the latter has been the effort to expel legal aliens. This morning, the Second Circuit federal appeals court in Manhattan ordered the government to return one of those aliens, the Turkish national Rumeysa Ozturk, for habeas corpus proceedings in Vermont. Ozturk, a Ph.D. candidate who has been attending Tufts University in Massachusetts on an F-1 student visa, is challenging her arrest, detention, and transfer to Louisiana, where the administration intends to conduct her deportation proceedings

The Second Circuit is also considering the case of another foreign student, West Bank–born Mohsen Mahdawi of Columbia University. Mahdawi is a lawful permanent resident who, as I’ve previously related, was arrested at his naturalization hearing in Vermont. Arguments in the two cases were jointly held on Tuesday. As this is written, the circuit has ruled on only Ozturk’s case, though I assume a decision on Mahdawi’s is imminent.

In both instances, the administration is relying on an immigration statute that authorizes the government to retract green cards and visas for immigrants whose presence and activities in the United States, in the secretary of state’s judgment, are detrimental to American foreign policy — even if the activities at issue would be constitutionally protected if engaged in by a U.S. citizen.

This is a controversial authority, so much so that the Trump administration had to know its exercise would be aggressively challenged in court. After all, the relevant First Amendment protection is mainly a prohibition against government’s power to restrict speech and association rights; it does not grant those rights (which are fundamental and existed before the Constitution). Hence, the fact that aliens do not enjoy the full breadth of citizens’ rights does not make us comfortable with government in the role of speech monitor — even if the law in question goes back to the early Cold War, and even if we are comparatively comfortable with government’s power to exclude anti-American, anti-constitutional radicals from entering our country in the first place.

As I pointed out in the column, congressional immigration law cuts federal district judges out of the deportation equation. Aliens in such proceedings get a hearing before a Justice Department immigration “court,” and an appeal can be taken to the DOJ’s Board of Immigration Appeals. From there, Congress has provided judicial review by a circuit court of appeals. Those appeals are mostly limited to purely legal issues. Nevertheless, the question of whether a legal alien may lawfully be removed over activities that would be constitutionally protected if engaged in by Americans is purely legal, and there was no doubt that the circuit courts would wrestle with it.

Yet, as I’ve also detailed, the Trump administration is not only trying to remove legal aliens; it is doing so in a way the courts were sure to find troubling. Rather than simply give a legal alien notice of removal proceedings in the DOJ’s immigration tribunals, the administration has been arresting the aliens in places like New York and Vermont, then whisking them to the Southern United States, where they are held in detention even though the evidence that they are flight risks or pose a danger to the community is scant (obviously, if there were evidence of a criminal threat, the government would not need to rely on an extraordinary foreign policy statute to arrest and deport).

This practice has resulted in exactly what Congress’s immigration laws sought to prevent: proceedings in federal district court. Because the administration arrests and detains the aliens, then transports them far away from their home districts, the aliens are filing habeas corpus petitions to challenge this process — something they would probably have no basis to do if the administration just gave them notice to appear at removal proceedings.

In the cases of Ozturk and Mahdawi, the lawyers managed to file habeas petitions before the government could complete their transfers to Texas or Louisiana, so the habeas petitions were filed while they were in Vermont. In Mahdawi’s case, the district court ordered that he not be transferred out of the district, and Judge Geoffrey Crawford, an Obama appointee, ordered his release on bail.

In Ozturk’s case, the government refused to tell her lawyers where she was in the hours after her arrest, so her lawyers filed the habeas petition in Massachusetts. By then, she was in Vermont and about to be transferred to Louisiana. Because the government’s secrecy is the reason the petition was filed in the wrong district, the courts have deemed it filed in Vermont (Ozturk’s physical location the moment the petition was filed). They have rejected the Trump administration’s audacious attempt to hide the detainee then argue that the petition should be dismissed because counsel failed to guess the correct location.

In fact, Judge William Sessions III, a Clinton appointee, ordered the government to transfer Ozturk back to Vermont, from Louisiana. Once she arrives, Judge Sessions plans to hold a bail hearing, then convene a hearing on the habeas claims sometime later.

The Trump Justice Department has thus asked the Second Circuit to intervene. Its main argument is that Congress’s immigration laws strip jurisdiction over removal proceedings from the district courts, but Democratic-appointed judges are nevertheless using habeas as a pretext to weigh in on and impede removal. Alas, the administration is not in a good position to be arguing for regular order in immigration proceedings when it is proceeding in a highly irregular manner.

Not surprisingly, the Trump Justice Department’s Drew Ensign got a cold reception from the Second Circuit — having drawn a panel consisting of Judges Susan Carney and Alison Nathan (appointed by Presidents Obama and Biden, respectively) and Judge Barrington D. Parker Jr., originally appointed to the district court by President Clinton and elevated to the Second Circuit by President Bush 43 (at the start of his term, when Bush was trying to appeal to Democrats for bipartisan support of his first batch of nominees — unsuccessfully, as it turned out). The panel’s ruling as to Ozturk is no surprise.

Ensign tried to focus on the jurisdictional argument: Congress has excluded district courts from removal proceedings and, the DOJ maintains, the habeas petition is a pretext for challenging Ozturk’s removal; ergo, the circuit should reject Judge Sessions’s order to return Ozturk to Vermont.

The circuit, in its unsigned, unanimous 43-page opinion, countered that Ozturk’s habeas petition does not challenge her removal because there is currently no order of removal. That is, Ozturk is not contesting the government’s authority to subject her to removal proceedings (her lawyers know she’ll get to challenge that later). Instead, her complaint centers on the Trump administration’s decision to arrest, detain, and transfer her to Louisiana. Indeed, the panel notes, the government didn’t begin removal proceedings until after that. The circuit rationalized that this process was sufficiently attenuated from the removal issue to warrant a separate habeas litigation.

Ozturk also claimed that the government’s discretionary decision to detain her is retaliatory — a punishment for engaging in speech with which the administration disagrees. In this way, she used the administration’s detention of her as a pretext to place before the court, in the habeas proceeding, the main issue to be decided in the eventual removal proceeding: whether the government may target her for punitive treatment, despite the lack of any evidence of criminal misconduct, solely because, in March 2024, she co-wrote an op-ed published in Tufts Daily. In it, Ozturk demanded that the university “acknowledge the Palestinian genocide,” apologize for the Tufts president’s statements on the subject, disclose its investments, and divest from companies with direct or indirect ties to Israel.”

This contention gave the panel the opportunity to weigh in. The judges asserted that for the government to arrest and detain an alien to prevent speech with which it disagrees “would be a violation of the Constitution — quite separate from the removal procedures followed by the immigration courts.”

If the Trump administration were to appeal, and if the Supreme Court took the case, I doubt the justices would be persuaded by the circuit panel’s theory that detention in anticipation of a removal proceeding is so distinct from the removal proceeding itself that Congress’s exclusion of district judges from removal proceedings is overcome. Obviously, the courts are seizing on Ozturk’s detention to get her two bites at the removal apple; Congress’s removal process, to the contrary, is supposed to be streamlined, with just a single opportunity for judicial review — and only by the circuit, not a district judge.

That said, it bears repeating that the administration has brought this on itself. It could have sought removal without arresting legal aliens as if they were dangerous criminals, cutting them off from their lawyers and families, and detaining them a thousand miles away in a patent effort to litigate the matter before what the administration considers courts more sympathetic to its tactics and objectives. The gratuitous decision to proceed in this fashion was certain to offend many judges. Removal proceedings without the detention and transportation practice would have been conducted under Congress’s immigration laws, with no excuses to have separate habeas litigation before district judges. The administration’s contrary approach invited rulings against it, including the one the Second Circuit issued today, and the ones the district judges have issued thus far in the cases of Ozturk and Mahdawi.

The question of whether legal aliens may be expelled, on the secretary of state’s say-so, over conduct that would be constitutionally protected if engaged in by Americans is one the Supreme Court will surely end up deciding, regardless of whether the lower court litigation is in red districts or blue districts. It is not an easy question. By its unnecessary detention-and-transfer practice, which will likely result in more rulings against it, the Trump administration is not helping its cause.