2d Circuit rules against Trump administration in free speech visa-revocation case

TrumpWorld has now reached the Second Circuit, which holds that the administration cannot stay a district court order that a Turkish graduate student at Tufts University who was picked up by ICE and relocated from Massachusetts to Vermont due to her political opinions cannot have her habeas corpus petition decided in a Vermont federal court. That issue may seem relatively mundane. What is not mundane are the allegations resulting in the habeas petition and how the Court of Appeals sees the case.

The case is Ozturk v. Hyde, issued on May 7, only one day after oral argument. The Second Circuit is moving quickly on this case. As background, Ozturk was studying in Massachusetts when ICE seized her and took her to Vermont, and then to Louisiana. Her attorneys filed the habeas petition in Massachusetts, but the judge sent the case to Vermont, because that is where ICE took Ozturk. For a time, her lawyers did not know where Ozturk was, so they filed the petition in Massachusetts. While the government says the case transfer to Vermont was improper, even though it concedes it withheld Ozturk's whereabouts intentionally, the Court of Appeals says the case transfer was legitimate, noting that the government was responsible for the confusion since it moved Ozturk around the country without notifying her lawyers.

Since the administration wants to stay the district court's ruling that the habeas petition is properly heard in Vermont, it has to show its defense to this case is meritorious; that is the heart of any injunction application. As noted above, the Court of Appeals flatly rejects the government's arguments. The habeas petition will be resolved in federal court in Vermont. 

The noteworthy portion of the ruling, for those of you whose eyes glaze over in reading statutes and caselaw relating to habeas petitions, is how this case started in the first place. Ozturk is a third-year doctoral student on a visa who studies Child Study and Human Development. She co-authored an opinion piece for the student newspaper that took a strong position on Tufts University's response to resolutions passed by the student government that would have the university "acknowledge the Palestinian genomics, apologize for [the] University President['s] ... statements, disclose its investments and divest from companies with direct or indirect ties to Israel." 

In other words, she advanced a common editorial theme at American colleges and universities these days. The administration seized her and placed her in custody on the basis that she "had been involved in associations that may undermine U.S. foreign policy by creating a hostile environment for Jewish students and indicating support for a designated terrorist organization including co-authorizing an op-ed that found common cause with an organization that was temporarily banned from campus." In other words, heavily-armed plainclothes officers, some of them masked, arrested Ozturk without warning, and without a chance to speak with counsel, due to her editorial in the student paper. The State Department approved revocation of her visa "based solely on the assessment by DHS and ICE that Ozturk's co-authorship of the op-ed a year earlier demonstrated her involvement in organizations that may undermine U.S. foreign policy."

The Court of Appeals (Parker, Nathan and Carney) feels strongly about this case. It was argued yesterday and decided today in a lengthy ruling. You rarely see that. The Court also emphasizes throughout the ruling that this happened to Orzurk because she wrote an editorial for the student newspaper that criticized Israel. The Second Circuit -- no Circuit, really -- will come out and say it, but my guess is the Court is horrified what happened here.