The Great Writ

Perhaps the most newsworthy story in the Ozturk case came when she was released from detention in Louisiana and permitted to return to Massachusetts. The following post was published on May 12.

Last week two significant decisions were made in the Ozturk v. Trump case. On Wednesday, the Second Circuit Court of Appeals denied the Government’s request for a stay pending appeal on the Vermont Federal District Court’s decision to require Ozturk’s return to Vermont.  On Friday, the District Court then granted Ozturk’s request for bail.  She has now returned to her home in Massachusetts as she awaits a variety of other court proceedings in the near future.  The Second Circuit’s decision takes a significant step in affirming the reasoning in the District Court’s decision in Ozturk (as well as in several other federal district courts) regarding the “jurisdiction stripping” aspects of 8 USC §1252(g), 1252(a)(5), 1252(b)(9), and 8 USC §1226(e).  The Second Circuit agrees with the proposition that Ozturk’s claim pertains to her arrest and detention, not to the immigration proceedings that have been underway in Louisiana.  Thus, to the extent that above listed statutes strip jurisdiction, it is only the jurisdiction of Federal District Court to challenge the decision to remove an alien, the commencement of proceedings to remove an alien, and the actual removal of an alien.  Thus, all the federal courts which have directly addressed this issue (with the exception of a cursory opinion from the United States District Court from the Northern District of New York in Taal v. Trump) have declined to embrace the Government’s argument that federal district courts have no jurisdiction to address the first amendment and due process claims of these student protestors. 

The second interesting aspect of the Second Circuit’s decision is the Court’s summary rejection of the Government’s argument regarding one aspect of habeas corpus jurisdiction.  Habeas petitioners are required to name as respondent the “immediate custodian” if known.  Ozturk was not able to do this primarily because it was undisputed that Ozturk’s counsel did not know and could not find out who her custodian was.  In such situations, courts have acknowledged an exception to the “immediate custodian” rule – namely, the “unknown custodian” rule.  When the name of the immediate custodian in unknown, it is acceptable to name a more remote custodian (as Ozturk did).  The Government, however, argued that the “unknown custodian” rule only applied when the custodian’s identity is a “prolonged secret.”  It is worth citing the Second Circuit’s response to this argument in detail:

 “The government cites no statute or case law for this extraordinary proposition, the practical effect of which would be that for some unspecified period of time after detention- seemingly however long the government chooses to take in transporting a detainee between states or between facilities – a detainee would beunable to file a habeas petition at all, anywhere.  Such a rule finds no support inthe law and is contrary to longstanding tradition.”