The Great Writ

On April 21, 2025 I posted the following regarding the District Court’s decision in Ozturk v. Trump.  Ozturk was a student at Tufts who was detained months after she co-authored an article in the Tufts student newspaper arguably criticizing Israel for the ongoing conflict in Gaza.  After Ozturk’s detention, she was transported across New England, eventually to be flown to a detention facility in Louisiana.  An updated version of this post follows.

On Friday, April 18^th, Judge Sessions of the United States District Court of the District of Vermont issued a 74-page opinion in the Ozturk case.  While most of the media attention has been on the Court’s order that Ozturk be returned to Vermont from Louisiana, the opinion is important from the habeas corpus point of view in that it is the first opinion to directly address several jurisdictional issues involving habeas corpus and immigration courts.

First, the Court reviewed the government’s argument that jurisdiction did not exist in Vermont for Ozturk’s petitioner.  As the Court notes, the jurisdiction issue is really one of personal jurisdiction or venue.  Ozturk filed her original petition in the Federal District Court for Massachusetts – the district in which she resided and from which she was seized by agents from Homeland Security.  That petition was transferred to the US District Court for Vermont by the US District Court of Massachusetts due to the fact that at the time that Ozturk filed her petition in Massachusetts she was actually in Vermont. Judge Sessions followed the reasoning set forth by Judge Casper from the United States District Court of Massachusetts in her decision to transfer the case from Massachusetts to Vermont.  He focused on the §1631 transfer statute as well as the “unknown custodian” rule promulgated in Demjanjuk v. Meese to conclude that the appropriate district for considering Ozturk’s habeas claim was in the United States District Court of Vermont.  As Judge Sessions noted, (quoting U.S. Bank Nat’l Ass’n v. Bank of Am. N.A.) “[t]ransferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation.”  Thus, he didn’t intend to second guess Judge Casper and – if anything – provided more support to the conclusions she reached.

Of greater importance for habeas corpus aficionados was the Government’s claim that various immigration statutes prohibited a federal district court from considering a habeas petition such as Ozturk’s.  First, the Government argued that 28 USC §1226(e) explicitly precludes federal judicial review of an Attorney General’s discretionary decision to detain and remove an alien.  As the statute states, “The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review.  No court may set aside any action or decision by the Attorney under this section regarding the detention of any alien or the revocation or denial of bond or parole.”  The Court concluded that this provision violated the Suspension Clause of the Constitution which prohibits the suspension of the writ of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it.”  The Court concluded that there was no clear statement of Congressional intent to bar habeas review and that this conclusion was consistent with a Second Circuit Court of Appeals case, Velasco Lopez v. Decker.

The Court next addressed other immigration statutes that deal with removal proceedings.  29 USC §1201 governs the issuance of visas and bars habeas corpus review of decisions to revoke a visa.  As the Court pointed out, Ozturk did not challenge the revocation of her visa in her petition, so the issue would appear to be moot.  The Government, next raises portions of 28 USC 1252 to support its claim that the federal court has no ability to address Ozturk’s claims.  In essence, the Government was arguing that these provisions – jurisdiction stripping provisions – did not violate the Suspension Clause if Congress provided adequate procedures to substitute for habeas corpus.  In this case, the Immigration Court would have two potential reviews of an immigration removal procedure followed by a Circuit Court of Appeals review. 

The Court started by noting that Ozturk is not contesting a removal order because such an order had yet to be issued.  The Government argued that her detention “arose from” the removal proceedings – a claim Judge Sessions observed “stretches the boundaries of the text and the facts of this case.”  “ICE’s decision to arrest and detain her was discretionary… [and] did not flow naturally as a consequence of her removal proceedings.  Indeed, Ms. Ozturk was detained before the commencement of her removal proceedings.”  Rather than conclude that immigration courts can adequately handle the issues raised by Ozturk, Judge Sessions concluded that “Article III courts have an important role to play in evaluating constitutional and legal claims related to detention brought in habeas, and this Court has jurisdiction over this case.”  In fact, the Court went so far as to suggest that the process for reviewing removal orders in immigration court without habeas review fell short of the protections provided by habeas court review in federal court – and thus might fall short in a suspension clause analysis.  As the Court observed, “[t]here are serious questions about whether that process would be an adequate substitute for the writ of habeas corpus in district court, given the limited scope of administrative review.”  As the Court observed, with concern, “the government’s argument on this issue boils down to a bold statement that no matter how egregious the type of quantity of First Amendment or due process violations committed by the government in detaining an individual, an Article III court cannot consider any alleged constitutional violations until after Article II employees, with no power to consider or address these violations, have moved the case through their lengthy process.”  Interestingly, the Court’s concern appears to be the delay that might result from this process as opposed to the expeditious nature of what has occurred so far.

All in all, the Court’s position seems to be that the relief sought by Ozturk is not of the type that is forbidden by the immigration statutes.  Of greater practical interest is to what extent prevailing on her pending petition would actually benefit Ozturk.  If the federal district court has no authority to hear a habeas petition challenging a removal order for Ozturk, what has she actually accomplished in this litigation?  Her detention by ICE may be found to have violated her constitutional rights but would that matter at all as her cases progresses through the immigration court process?  If the government can find a basis for detention prior to deportation within the immigration law process, she could conceivably be back in jail.  At best, she is asking the court to conclude that the policy underlying her apprehension and detention be held unconstitutional and/or illegal.  Would that halt her deportation?  Ultimately, her first amendment challenge to the provisions of the immigration statutes that authorize her deportation will be difficult for her to litigate.