Federal appeals court weighs whether feds must return Tufts student to Vermont for hearing

A federal appeals court in New York City is considering the government's argument that Rümeysa Öztürk should remain in a Louisiana immigrant detention center ahead of a bail hearing Friday where she could be ordered to be released.

Lawyers with the Department of Justice are fighting an order by a lower court to transfer the Tufts student to Vermont to attend the hearing in person.

For almost six weeks, the 30-year-old Turkish doctoral student has been at a remote, privately operated detention facility in Louisiana that holds people for U.S. Immigration and Customs Enforcement. On March 25, Öztürk was arrested by plainclothes ICE agents in Somerville, placed in an unmarked SUV and taken away, unaware that her student visa had been quietly revoked days earlier.

For nearly 24 hours, no one but the immigration officials knew where she was; Öztürk was not permitted to contact her attorneys as agents shuffled her across three states, including Vermont, before putting her on a plane to Louisiana.

On Tuesday, one member of a three-judge panel at the Second Circuit Court of Appeals in New York grilled a government lawyer on his argument that the federal court in Vermont lacks jurisdiction to issue her transfer order. The lawyer argued that the initial challenge to Öztürk’s arrest was filed in the wrong state — in Massachusetts, when she had already been moved to Vermont.

“ But Ms. Öztürk had been seized … by people who are not in uniform and who were masked and hooded, and to all outward appearances, they could have been private actors. She's not allowed to contact anyone for 24 hours thereafter,” Judge Susan Carney said.

The judge continued: “If she'd been a citizen, if it had been someone else or if there had been a mistake … you're saying she has no remedy until the government decides to make her whereabouts known, and there's no limit on the time the government can take for that to occur?”

Drew Ensign, deputy assistant attorney general for the Department of Justice, defended ICE agents keeping Öztürk’s whereabouts secret that night: “Your honor DHS [Department of Homeland Security] believes there are operational security concerns about  revealing details about ongoing transfers.” He added, “That's not just DHS, the Bureau of Prisons has a similar policy as well.”

Federal judges in Massachusetts and Vermont have both ruled that a challenge to ICE’s arrest and detention of Öztürk should play out in Vermont — not Louisiana — given that’s where Öztürk was physically located when her attorney filed a habeas petition challenging her detention as unlawful.

Federal Judge William Sessions in Vermont later ordered Öztürk be transferred to ICE custody in his state so she could attend her upcoming hearings in person. The government appealed and last week, the appeals court agreed to consider the request — halting her transfer.

Ensign, the DOJ's lawyer, also cited prior case law and statutes recognizing the executive branch’s discretion to detain non-citizens after issuing a removal order — a decision that generally cannot be overruled by a federal judge. Ensign argued that Öztürk’s removal order can not be separated from her detention.

Esha Bhandari, a lawyer with the American Civil Liberties Union who is representing Öztürk, countered that the two matters are separate. She is challenging Öztürk's detention as unlawful; still, Öztürk's removal proceedings could continue even if she were released from detention.

“Obviously, the government has no discretion to detain someone unlawfully,” Bhandari said. “And it follows, it doesn't have any discretion to detain her unlawfully in a location of its choice.”

Her legal team has held that Öztürk was targeted in retaliation for co-writing an opinion piece in Tufts’ student newspaper pressing the university to divest from Israel. Federal officials have countered that she was seized “for engaging in activities in support of Hamas,” but have not produced any evidence to that effect.

Öztürk has asthma and has reported being held in a poorly ventilated, cramped room with 23 other women and is almost never exposed to fresh air, according to court filings.

As a result, she’s suffered several asthma attacks that have “become progressively harder to recover from,” according to court filings. They’ve also started lasting longer — up to 45 minutes, where they were once 10 to 15 minutes long. She has complained of delays in receiving care and dismissive comments from medical staff.

"She has been held behind bars for six weeks while her health deteriorates for writing an op-ed," Bhandari said in court Tuesday, knocking the government for asking the appeals court “to extraordinarily intervene to block her transfer to the district” as if the government is the party “suffering any irreparable harm.”

Öztürk was doxed in February on an anonymously run, online blacklist that claims to target those who express anti-Israel views. A profile of her on the website cited her op-ed and said she “engaged in anti-Israel activism in March 2024, in the wake of the Hamas terrorist attacks on Israelis on October 7, 2023.”

The language is almost identical to that found in a memo from the Department of Homeland Security to the State Department prior to her detention, which recommended the revocation of her visa on grounds that her presence has “adverse policy consequences for the United States.” The memo, which has not been disclosed in court, was first reported by The Washington Post alongside another State Department memo that said it found no evidence linking her to Hamas.

There are 188 people from Massachusetts on the blacklist, called Canary Mission.

Öztürk is one of the foreign-born Muslim scholars in the U.S. who have been picked up and detained for voicing support for Palestinian human rights in recent months. The cases of Columbia University students Mahmoud Khalil and Mohsen Mahdawi have also drawn national attention.

Mahdawi has been released while awaiting his immigration proceedings. The government is challenging to decision to release him from detention.

The Second Circuit also heard arguments Tuesday on the government’s motion to consolidate the cases of Öztürk and Mahdawi, who was detained in Vermont last month during a naturalization interview. Both students’ legal teams oppose the motion.

Öztürk is scheduled to have a bail hearing in Vermont federal court this Friday where a judge will consider her release. Regardless of how the appeals court rules on the transfer order, it is unlikely she will attend Friday’s hearing in person.