HAPPENING NOW: Bail hearing for Rumeysa Ozturk, the Tufts PhD student who remains in detention in Louisiana after she was taken from her home in Massachusetts by masked immigration authorities. The hearing is before a Vermont judge. Ozturk is appearing virtually from Louisiana. The feds have until May 14 to transfer Ozturk back to immigration custody in Vermont. But the purpose of today's hearing is to determine whether the judge should order Ozturk released from custody. Ozturk is now testifying (virtually). She's wearing an orange jumpsuit in an ICE processing center. Ozturk is talking about her PhD work at Tufts and her extra-curricular activities there. She's speaking very fast, and the court reporter is having a hard time keeping up. Judge instructs her to slow down. Ozturk says her dissertation focuses on how young people use media in a pro-social way. Ozturk says she did her Masters at Columbia. She lived in NY during that time. Counsel: Describe your community engagement work. Ozturk describes organizing an event in her department for people who are grieving for children in conflict zones, from Israel to Gaza, from Russia to Ukraine, etc. Ozturk is now talking about her asthma diagnosis, and how she has experienced asthma attacks during her detention. She has suffered approximately 9 attacks during her time in detention, she says. Ozturk explains that there are environmental triggers for her asthma attacks (strong smells, like perfume, etc.). She also thinks stress is a trigger. Then she explains how she managed her asthma at home before she was detained (was careful about air ventilation, avoided strong odors, etc.) Ozturk says most of her asthma attacks last maximum 15 minutes but she had a severe attack at one point when she had COVID. The attack lasted for more than a day, she couldn't eat, couldn't sleep. Counsel asks about her first asthma attack after she was detained. It was at the Atlanta airport during transport. She used her inhaler twice, but couldn't get over it easily. She thinks stress, anxiety, hunger contributed to triggering the asthma. "I was afraid and I was crying." Ozturk talks about another attack she suffered in detention in Louisiana. A nurse told her "you need to take that thing from your head." The nurse was talking about her hijab. She took the hijab off Ozturk's head even though Ozturk told her not to. Judge cuts in to say that he's read a lot of this (about Ozturk's asthma attacks) in the declaration Ozturk filed. aclum.org
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Ozturk now talking about her plans if she's released. She says she would move into Tufts University housing. Says her lawyers communicated w/ the university and confirmed that they will provide housing for her. Says she wants to complete her PhD. Very important, has worked for it for a long time. Judge: My understanding is that in May you have some obligations that must be completed and you were concerned you might not be able to complete them if not released quickly? Ozturk says yes, she had a qualifying review scheduled for May. Concerned about missing deadlines, conferences, etc. Ozturk is done testifying. No cross examination from the government. Next witness is a doctor, Dr. Jessica McCannon, who is here to talk about asthma. McCannon has treated Ozturk ahead of this hearing. She got access to Ozturk's medical records and met with her virtually, but wasn't able to physically examine her bc Ozturk is detained in Louisiana. McCannon: Based on her medical records and clinical history, Ozturk has asthma. During the time she was at Tufts, the asthma was "well-controlled," except during the time when she had COVID-19. As McCannon speaks, counsel interrupts to say that Ozturk is having an asthma attack right now. The judge excuses Ozturk so that she can go to the bathroom. She's coughing as she gets up to leave. Counsel says that they have permission to continue without Ozturk. McCannon continues, talks about how environmental factors and stress in detention can worsen asthma. Says Ozturk is at risk of exacerbation if not released. Ozturk, appearing virtually from Louisiana, now returns after leaving amid an asthma attack. McCannon: My opinion is that if Ozturk is released and returned to Somerville, her asthma condition and ability to control her asthma will improve. If she remains in detention, it will worsen. Ozturk continues to cough on screen. Government is up for cross examination. Asks about terminology ("asthma attack"). Asks if McCannon has reviewed medical records form the detention facility or talk w/ the medical team there. McCannon says no. Next up is Dr. Sara Johnson, who is Ozturk's doctoral program advisor. She's known Ozturk for 5 years. Is responsible for making sure that fulfills doctoral requirements. Judge: She testified about some competencies that are due in May. Is there flexibility with those deadlines? Johnson: We are prepared to offer her flexibility. Johnson talks about how well she knows Ozturk. Office down the hall, social events, text messages, etc. She communicates w/ her frequently. On screen, Ozturk coughs. Johnson talks about Ozturk's research, which focuses on pro-social use of social media. It's extremely important work for developmental science, Johnson says. At time of detention, Ozturk was scheduled to finish her studies in December and graduate in February. Johnson: She could still finish her doctoral studies in time, but every day that goes by she is missing out on opportunities for her career. There are also courses that she would be teaching. This summer she's supposed to teach a Tufts course on media for high school students. There's also a project she was supposed to work on that's about how adolescents engage with podcasts. She needs to be on campus for these things -- the teaching and the podcast project. She's really not replaceable for these things. They will have to cancel the course if she can't participate. Johnson: She has already missed major milestones. She was scheduled to present at a major conference last week...she's in her fifth year and that's prime networking time. She missed out on that. She also missed dissertation defenses of close peers. Johnson: "Rumeysa is a critical part of our lab." Says Ozturk is also a "mentor" to many students. One of Johnson's cats had cancer and was undergoing treatment. Ozturk wrote down the dates of vet appointments and texted Johnson to wish the cats well on the day of treatment. Johnson: Ozturk's absence has been "devastating" to people at campus/in the department. Johnson helped coordinate submission of letters for Ozturk's bail application and was flooded with people volunteering. Says every day she gets calls or emails about Ozturk from people at Tufts. No questions from the government. Judge: How would you characterize her engagement in the doctoral program? Johnson: "Exceptionally high." Says she is a "role model" within the program. Judge: Ok, let's talk about schedule. We have one more witness? Counsel for Ozturk: Yes, will take about 20 min. Judge wants to take short break now, then go until 1 pm and finish up. No objections. We're in a brief recess. "All rise!" And we're back. Next witness: Becky Penberthy, an adult restorative services manager at the Burlington Community Justice Center. Penberthy manages adult restorative services. She works on things like diversion services, re-entry programs for people coming back from period of incarceration. Judge: Is your organization a private non-profit? Penberthy: No, it's part of the municipal government Penberthy says that usually they get involved by order of a judge, but people can self-refer. Judge: I read your submission and I interpreted it as offering to provide support for Ozturk. Is there a problem with that given that you are deployed by a city organization? Penberthy asks for clarification. Judge: This is a federal court, and you're a municipal org. Is that a problem? Penberthy: I've worked on federal cases before. Judge: Are you paid for time you put in as a part of federal supervision? Penberthy: In one case paid, in other we use general funds Judge: You think you would be able to provide supervision and support even if not paid? Penberthy clarifies that Ozturk's attorneys aren't paying her, her job is to be a neutral form of support, takes accountability and support seriously Counsel: How do you go about supervising someone in a case like this? Penberthy: I'd use Zoom or Teams bc Ozturk will be in Massachusetts and I'll be in Vermont. Schedule can be set with court, and I'd want to check in at random times. I have contact for one of her deans and advisor, Johnson. Penberthy talks about meeting with Ozturk ahead of this hearing. Observes that Ozturk has lots of social support. Says Ozturk at one point told her "friendship is the joy of life." She is deeply connected and valued in the Tufts community, per Penberthy. Government up now for cross. Do you have any experience supervising someone in immigration proceedings? Penberthy: I do not. Would you have any reservations about reporting someone for violating conditions of release in immigration proceeding? Penberthy: I would not Penberthy is done. Proceeding to argument from counsel for Ozturk. Counsel: We need to establish "substantial claims" and extraordinary circumstances under Mapp. Judge: Don't have to discuss much about substantial claims (Judge has addressed it and so has the circuit court). Wants to hear about "extraordinary circumstances." Counsel for Ozturk focuses on the asthma attacks and how her symptoms have worsened in detention. These health risks are extraordinary and we are now 6 and a half weeks into Ms. Ozturk's detention "for an op-ed she wrote." During that time, gov has had opportunities to produce any evidence to justify detention and the government has not done so. Without bail, Ozturk suffering harm articulated in her petition, without any evidence except a newspaper article. Need bail to preserve the purpose of the great writ, habeas. Counsel mentions that while we've been in this hearing, the 2nd circuit denied a stay of a judge's order granting release to Mohsen Mahdawi. The public interest here favors release, especially where 1st Amendment rights are at issue. Counsel also urges judge to refuse to stay any order he might issue for her release. Government has in the past tried to use stays to prolong detention... That's why we ask court to grant bail and to do so without a stay. Ozturk's counsel is done. Counsel for DOJ is up. Our principal objection to her release continues "to be a legal one," DOJ says. DOJ: Recognizing your honor's position and the 2nd circuit ruling, we assert that this court isn't the right forum or time to hear this habeas claim and so the court lacks ability to grant release under Mapp. We want to preserve those issues for further litigation. That's our fundamental objection. DOJ: If you're inclined to release, we should have some conversation about what supervision would involve. She would still be subject to removal proceedings, requiring reporting to ICE and compliance with laws, including registration w/ immigration authorities. Need to be clear about conditions. DOJ: Because Ozturk will continue to be subject to removal, there will continue to be some jurisdiction over her by immigration authorities. Not saying executive will disobey any court order...but I would ask that court order make clear that she would be subject to conditions imposed by ICE DOJ: E.g., reporting to ICE, not possessing firearm, would be unlawful to register w/ ICE, etc. I would encourage court to craft conditions to dovetail with those that would be imposed by ICE. So we ask any release order to as a condition of release comply with immigration authority conditions JUDGE: parties have raised the question of what law applies in evaluating the question of bail. 2nd circuit has said it's a difficult burden to meet under Mapp. Requires court to find 3 factors. (1) Substantial claims, (2) extraordinary circumstances, (3) necessary to make habeas effective Judge: Court finds that Ozturk has MET ALL THREE requirements under Mapp Judge: There is no evidence here absent the op-ed. That creates very significant substantial claim that 1st Amendment protected speech formed the basis for the detention Suggests the reason she was detained was her expression. Court need not decide now whether detention is actual 1A violation but court finds Ozturk has raised substantial claim of constitutional violation and due process issue she has raised The petitioners raised questions about whether the intention of the government in detaining her was punitive in nature, which raises significant due process claim. Again, court need not answer those questions...can be addressed when we deal with habeas hearing. But I do find, frankly, that these are very substantial 1A and due process violations. So then in Mapp we go to extraordinary circumstances The extraordinary circumstances are self-evident. She is asthmatic. She is suffering. I find doctor's testimony to be compelling. She is exposed to the smells and scents of cleaning supplies etc that exacerbate her ashthma. She may suffer additional health damage. That's extraordinary circumstance In fact, this needs to be resolved AT THIS POINT. Needs to be resolved now or else there could be further harm. That's not only extraordinary circumstance. Judge notes circumstances of her being taken off street in Somerville, then transported amid judge's order not to move her out of Mass Judge said he's not sure if government knew about the order, if they acted in good faith, etc. That might come up later. But it's an extraordinary circumstance of the government never responding to the court to say that she was in a different location and could be brought back. Raises questions Third factor in Mapp: This factor dovetails with others, need to show that release is necessary to make habeas effective. As discussed, government has not presented legitimate case. Meanwhile, her continued detention chills speech of millions in this country who are not citizens. FOR ALL OF THOSE REASONS, COURT FINDS THAT HER CONTINUED DETENTION CANNOT STAND. BAIL IS NECESSARY TO MAKE HABEAS REMEDY EFFECTIVE. As for conditions of release, judge says that he invited the government to present any information that would support a finding of dangerousness or flight risk. There is no evidence submitted by the government to that end -- no evidence. Judge Sessions: On other hand, Ozturk submitted numerous sworn affidavits attesting to peaceful and compassionate character as well as to ties to the university community. My own observation is that she is a woman totally committed to her academic career. So therefore the court finds that she does not pose danger to community or present risk of flight. THE COURT ORDERS THE GOVERNMENT TO RELEASE OZTURK FROM CUSTODY IMMEDIATELY. "Ms. Ozturk is free to return to her home in Massachusetts." Not going to put travel restriction on her because she poses no flight risk. She's an academic and engaged in her career, so she will likely need to travel. I order that she will be released on her own recognizance and the Burlington Center for Justice may supervise her. Judge orders monthly contact with the Burlington Center for Justice. They will submit a monthly report to the court about what she's doing. The idea is for her to re-integrate to the Sommerville community after what has been a "very traumatic" event. Judge: I appreciate that ICE might have conditions as part of removal proceedings. But this isn't removal proceedings. This is habeas. I'm not going to impose those conditions at this point but the government can submit conditions that ICE would request. Maybe parties can reach joint recommendation After receiving recommendation, will amend order accordingly. Court is not going to stay this order for release as requested by the government. Judge Sessions: I ask the government to monitor the situation in Louisiana. I would like to know IMMEDIATELY when she's released. DOJ: I will communicate the substance of the order to ICE when I'm back in the office and will communicate to chambers when she's released. And that's it. "All rise" as judge leaves the bench. In the Zoom gallery, I see Ozturk stand. She hugs her attorney, smiling. Thanks so much to everyone who followed along. If you appreciate our live court coverage, I hope you'll consider donating to help support our independent, non-profit newsroom. Thanks to those who have already given. We couldn't do it without you!! givebutter.com
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We’ll also discuss the Ozturk hearing during our weekly litigation live stream today at 4 pm ET. Join us then—and subscribe to the @lawfaremedia.org YouTube channel! youtube.com
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