Federal judge in Vermont orders Rumeysa Ozturk be released "immediately"

Judge Sessions has found that Ozturk has raised "a very substantial First Amendment claim" and a "substantial" due process claim. Also: The latest in the AEA litigation.

At the conclusion of a three-hour bail hearing on Friday, U.S. District Judge William Sessions in Vermont ordered that Rumeysa Ozturk be released from detention more than six weeks after she was nabbed off the street by federal officials on March 25.

Sessions ordered Ozturk be released “immediately” and with no travel restrictions while her habeas case proceeds in a ruling from the bench a little past 1 p.m., concluding that she has raised "a very substantial First Amendment claim" in her underlying habeas challenge, in addition to a “substantial claim” that the Trump administration violated her due process rights regarding her detention as well.

Sessions’s order in Ozturk’s case came shortly after the U.S. Court of Appeals for the Second Circuit denied the Justice Department’s request to be able to re-detain Moshen Mahdawi, another student who has been targeted by the Trump administration for visa revocation and deportation due to — so far as the government has put forward — nothing more than their beliefs and First Amendment activity.

Appearing remotely from in Basile, Louisiana, where she has been detained at a U.S. Immigration and Customs Enforcement facility since the morning after her arrest, Ozturk testified about her graduate studies at Tufts University and the conditions of her confinement — including asthma attacks she has suffered while detained.

Ozturk’s joyful discussion of her Tufts studies and work and engagement with the community there contrasted starkly with the picture on the Zoom screen: She in orange prison garb with a lawyer by her side, speaking from a bare white room, with the wood-paneled courtroom from Vermont in the square beside her.

Sessions also heard testimony Friday morning from in-person witnesses provided by Ozturk’s lawyers there, including an asthma expert who discussed Ozturk’s asthma condition, a Tufts official who testified about her school life, and an official who works on post-release conditions in Vermont and has agreed to oversee such re-entry conditions for Ozturk.

The testimony was persuasive to Sessions, an Obama appointee, who said near the conclusion of the hearing, “This is a woman is just totally committed to her academic career.“

The Trump administration put forward no witnesses and gave minimal pushback at the arguments before Sessions on Friday, with the Justice Department lawyer reiterating the government’s position that Ozturk’s case shouldn’t be before Sessions while acknowledging that Sessions and the U.S. Court of Appeals for the Second Circuit have ruled otherwise. He was, he said, preserving the issue “for further litigation, if appropriate.“

Sessions noted that he had repeatedly asked the government to provide the basis for its decision to revoke Ozturk’s visa and arrest her in order to hold proceedings aimed at deporting her. "There has been no evidence introduced by the government, other than the op-ed" that she co-authored last year, he said, in the time since the case has been before him.

Addressing other factors in determining whether her release was appropriate while habeas proceedings are ongoing, Sessions said that the “extraordinary circumstances” required to be found are "really self-evident." Sessions noted the testimony about Ozturk’s asthma and the effect of incarceration, but then also discussed at length the questions raised by her transfer to Louisiana despite the initial court order from Massachusetts that she not be moved. The Justice Department has argued that order was, effectively, moot, because she was already outside of Massachusetts at that time, but Sessions questioned the government’s failure to alert the court or Ozturk’s counsel as to the location of Ozturk — who was still in Vermont, and not yet in Louisiana, when the Massachusetts order was issued.

On the question of whether Ozturk’s release is necessary to make the habeas remedy effective, Sessions said that “dovetails” with his other findings — noting the chilling message her detention sends to others across the country.

Finally, addressing the question of “dangerousness” and “risk of flight,” Sessions noted that he was not going to be deferring to an immigration judge, who, he pointed out "are executive branch employees," subject to executive branch oversight. Instead, he found, “There is absolutely no evidence that she has engaged in violence or advocated violence.” Additionally, he noted, “I do not find that any of the contacts that she has in the community create any danger or risk of flight."

After Sessions made clear that his order was going into effect immediately and that there would be no stay, the Justice Department lawyer said that he would alert ICE as soon as he got back to his office and then alert Sessions’s chambers when she has been released.

As the hearing came to a close, Ozturk's lawyer with her in Louisiana leaned over and hugged Ozturk with one arm as Ozturk leaned her head on to her lawyer’s shoulder.

After the hearing was adjourned, they stood and hugged.

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Trump’s Alien Enemies Act proclamation limps along

No trial judge seems to think that President Donald Trump’s effort to use the Alien Enemies Act of 1798 to deport Venezuelans who the administration decided are members of the Tren de Aragua is proper.

This week alone, three district court judges have pushed back — with two judges issuing preliminary injunctions blocking the administration from acting on the proclamation within those judges’ districts and a third setting forth a schedule that could end with an order that the administration bring back the people it sent to El Salvador’s CECOT prison on the two March 15 flights.

In laying out his preliminary injunction, U.S. District Judge Alvin Hellerstein wrote, “This Opinion … discusses the whole of the AEA, and shows that the Presidential Proclamation, in mandating removal without due process, contradicts the AEA. The Opinion goes on to discuss the requirements of notice and hearing under both the AEA and the Constitution. And it concludes that since Respondents have not demonstrated the existence of a ‘war,’ ‘invasion’ or ‘predatory incursion,’ the AEA was not validly invoked by the Presidential Proclamation.“

The injunction from Hellerstein, a Clinton appointee, blocked AEA proclamation-related removals in the Southern District of New York.

Hours later, U.S. District Judge Charlotte Sweeney, a Biden appointee, wrote in a preliminary injunction issued for the District of Colorado, “Having considered historical definitions of the Act’s language and attendant historical records, the Court determines that Petitioners are likely to succeed on the merits of their claim that the President’s invocation of the Act ‘through the Proclamation exceeds the scope of the statute’ and is therefore unlawful.”

In addition to those cases, which followed last week’s final judgment in the case out of the Southern District of Texas, Chief Judge James Boasberg — who heard the original AEA case in Washington, D.C. on March 15 — held a hearing on May 7 on an amended challenge before him.

In significant part, that habeas case is asking Boasberg to certify a class of people transferred to CECOT under the AEA proclamation on March 15. That determination will largely rest on whether Boasberg concludes that the U.S. retains “constructive custody” of people sent to CECOT.

That issue led to sharp questions from Boasberg to the government about Trump’s comment in an interview with ABC News’s Terry Moran that he could get Kilmar Abrego Garcia back — the man who was sent to CECOT in an “administrative error,” albeit not under Trump’s AEA proclamation — with a phone call.

“So is the president not telling the truth?” Boasberg asked.

Abhishek Kambli, arguing for the Justice Department, insisted that was a statement about Trump's influence and not a statement that the U.S. maintains control over people sent therenbecause, he insisted, El Salvador has the final say.

Boasberg was skeptical, but, as discussed at the hearing, he wanted more evidence. As memorialized in a follow-up order on May 8, he wrote, “The necessary threshold question is whether these Petitioners are in ‘custody’ for purposes of habeas. The Court believes that some discovery could aid its analysis.“ In essence, the Justice Department has a chance to provide evidence about its agreement with El Salvador, then the lawyers for those challenge the AEA proclamation will be able to seek their own evidence from the government.

Then, the challenge will move forward.

In a sign of the administration’s thinking, when Boasberg pressed Kambli on the three rulings finding that Trump exceeded his authority — or likely did so — in his AEA proclamation, asking whether DOJ believes those judges are wrong, Kambli responded by noting that the Supreme Court has not yet ruled on the question.