A federal appeals court on Tuesday grappled with the Trump administration’s efforts to deport two international students over their participation in pro-Palestinian campus activism.
The challenges mounted by Rumeysa Ozturk, a Tufts University student arrested over an op-ed she co-authored, and Moshen Mahdawi, a Columbia University student detained at his naturalization interview, have become flashpoints in the administration’s sweeping crackdown on foreign students.
On Tuesday, the 2nd U.S. Circuit Court of Appeals wrestled with the government’s bid to block orders releasing Mahdawi and returning Ozturk from Louisiana to Vermont as their legal challenges proceed.
The administration’s efforts largely rest on thorny jurisdictional issues that assert the federal courts had no authority to intervene. When the appeals panel attempted to wade into the First Amendment issues at the heart of the challenges, Deputy Attorney General Drew Ensign sidestepped the questions.
“Does the government contest that the speech in both cases was protected speech?” asked U.S. Circuit Judge Barrington D. Parker Jr., an appointee of former President George W. Bush.
“Your Honor, we haven’t — we have not taken a position on that,” Ensign responded. “Our position is that the jurisdictional bars prevent adjudication of that.”
“Help my thinking along: Take a position,” Parker pressed.
Ensign declined again, telling the judge, “I don’t have authority to take a position on that right now.”
Since taking office, the Trump administration has taken major efforts to end legal status for international students who have voiced support for the pro-Palestinian movement. It began with detaining Mahmoud Khalil, an leader in the demonstrations at Columbia University.
Weeks later, Ozturk entered the national spotlight when plainclothes officers arrested her near her Somerville, Mass., residence on March 25. Ozturk, a Turkish national, had co-authored an op-ed in her student newspaper criticizing her university’s response to the war in Gaza.
Within hours, authorities transported her to Vermont, and then Louisiana. The government appealed after a federal judge ruled that she must be physically returned to Vermont until her legal challenge is resolved.
The appeals panel on Tuesday questioned in particular the government’s position that Ozturk’s attorneys needed to name as a defendant the warden of the Vermont detention facility, since that’s where Ozturk was headed when the legal challenge was filed. Because they didn’t, the courts must toss the challenge, the government argues.
Esha Bhandari, an attorney at the American Civil Liberties Union, which represents Ozturk, called that a “breathtaking position,” stressing the group had no way to know where their client was when they rushed to court upon her arrest.
“Because of the government's own decision not to provide that information to you, they can essentially suspend the writ for as long as they choose, and until they decide that they can let you know who the custodian is,” Bhandari warned.
Parker and U.S. Circuit Judge Susan Carney both raised concerns about what legal avenue would be available if the government had detained the wrong person, mistakenly believing it was Ozturk.
“Doesn't it give you pause about your arguments about the technicalities of the naming of the custodian?” asked Carney, an appointee of former President Obama.
But Ensign, who spearheads the government’s legal defense in many of its high-profile immigration disputes, pushed back on the concerns and stressed Ozturk’s case raised “unique” facts.
“That would have to be raised in the immigration court,” Ensign said. “And I think that could, a mistaken identity one, could probably be raised and adjudicated rather quickly.”
Unlike Ozturk, who remains in immigration custody, Mahdawi was released last week.
A green card holder and leader in the pro-Palestinian protests at Columbia last year, he was arrested April 14 during his naturalization interview, a final step in the process for him to gain U.S. citizenship.
The Trump administration in its bid to deport him has stressed that a gun shop owner in 2015 told police that Mahdawi visited his store and indicated he used “used to build modified 9mm submachine guns to kill Jews while he was in Palestine.” Mahdawi acknowledges visiting the store but denies any such discussion.
“In our society, liberty is the norm. Respondents seek to upset that norm for Mr. Mahdawi,” said Naz Ahmad, an attorney at Main Street Legal Services, which represents him.
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