A federal appeals court made no immediate rulings Tuesday afternoon in the high-profile cases of two graduate students whom the Trump administration is seeking to deport as part of its crackdown on pro-Palestinian activists.
Mohsen Mahdawi, a Palestinian green-card holder and Columbia University student, and Rümeysa Öztürk, a Turkish doctoral student at Tufts University, have been fighting deportation proceedings since earlier this year.
Öztürk was arrested by masked federal agents on the streets of Somerville in March, and Mahdawi was detained in April in Vermont at a naturalization interview. Both were released on bail earlier this spring by a pair of federal district court judges in Vermont, who said it was likely their constitutional rights had been violated. Their deportation cases are ongoing in immigration courts.
At issue before the Second Circuit Court of Appeals in New York is the federal government’s appeal of their release on bail by the lower court. In both cases, heard back-to-back Tuesday, the Justice Department argued that the district court did not have the right to weigh in on the detentions of Mahdawi and Öztürk, because Congress has tasked immigration courts with adjudicating immigration cases.
But the two students have argued that they were targeted for political speech in flagrant violation of their First Amendment rights. The government has cited an op-ed Öztürk signed criticizing Israel’s conduct in Gaza in arguing for her removal, and Mahdawi was a high profile pro-Palestinian activist at Columbia University. An attorney for Öztürk argued that it would have been futile to ask immigration authorities for relief, and that the student had no choice but to go to the district court instead.
“Asking the very executive branch that you allege is seeking to weaponize immigration detention to silence you, to release you, is not an adequate substitute for habeas,” ACLU attorney Esha Bhandari, who is representing Öztürk, told the appeals court.
All three Second Circuit judges who heard Tuesday’s appeals were Republican appointees, and two were nominated by President Donald Trump. But one, Steven Menashi, a former Trump White House official whose Senate confirmation stoked controversy, appeared particularly sympathetic to the government’s view.
His colleagues on the court, however — Chief Judge Debra Ann Livingston, a George W. Bush appointee, and Judge William Nardini, who was also a Trump nominee — appeared much more skeptical.
Nardini repeatedly grilled Justice Department attorney Tyler Becker, at one point pressing him on whether it was reasonable to tell Öztürk not to ask the district court to intervene immediately and instead wait on the immigration courts, even if those courts did ultimately rule in her favor.
“If she hadn't been released here, or if she were to be returned to custody — well, you know that that could come after a year of detention,” he said. “To say to her, ‘Oh, guess what? You were right. You never should have been detained all along. Sorry about that, but I hope you had a good time for that year.’”
Trump officials have also repeatedly argued that Mahdawi is a threat to the public, citing a 10-year-old Windsor police report in which a local gun shop owner and nearby museum volunteer alleged Mahdawi made violent comments about Jewish people. Mahdawi has denied the allegations, and his lawyers have called them “cartoonishly racist hearsay.”
The incident was investigated by the F.B.I. at the time, but Mahdawi was never charged. His attorney, Michael Tan, also with ACLU, told the appeals court that the fact that the F.B.I. had dropped the matter vindicated his client.
“If the allegations are serious, they would have certainly continued an investigation,” he said.
But Nardini took issue with that, and argued that the F.B.I. dropped cases all the time it could not prove, but considered legitimate. He called it “the one dramatic overstatement, I think, on your side.”
The Mahdawi and Öztürk hearings took place on the same day as another district federal judge, in a separate but related civil case, ruled that the Trump administration was unconstitutionally chilling First Amendment rights on U.S. campuses by initiating deportation proceedings against pro-Palestinian student activists. The case was brought by a group of faculty associations and civil rights groups.
The judge in this case, William Young, began his 161-page ruling with the scan of an anonymous, handwritten note his office had received that asked: “Trump has pardons and tanks… what do you have?”
In remarks after Tuesday’s hearing, Mahdawi recited Young’s reply.
“Alone, I have nothing but my sense of duty. Together, We the People of the United States — you and me — have our magnificent Constitution.”
Mahdawi said he urged “every American to sit with this quote.”
Attorneys for Mahdawi and Öztürk said Tuesday that while the appeals court had fast-tracked a decision in their cases, they had not given a precise timeline for their ruling.
