25-1019 Öztürk v. Hyde
United States Court of Appeals for the Second Circuit _____________________________________
August Term 2024 Argued: May 6, 2025 Decided: May 7, 2025
No. 25-1019 _____________________________________
RUMEYSA OZTURK,
Petitioner–Appellee,
v.
PATRICIA HYDE, in her official capacity as the New England Field Office Director, U.S. Immigration and Customs Enforcement; MICHAEL KROL, in his official capacity as HSI New England Special Agent in Charge, U.S. Immigration and Customs Enforcement; TODD LYONS, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement; KRISTI NOEM, in her official capacity as Secretary of the United States Department of Homeland Security; MARCO RUBIO, in his official capacity as Secretary of State; and DONALD J. TRUMP, in his official capacity as President of the United States,
Respondents–Appellants. _____________________________________
Appeal from the United States District Court for the District of Vermont No. 2:25-cv-374, William K. Sessions III, Judge _____________________________________ Before: PARKER, CARNEY, and NATHAN, Circuit Judges. _____________
ESHA BHANDARI CUNY School of Law BRETT MAX KAUFMAN Long Island City, NY BRIAN HAUSS NOOR ZAFAR MATTHEW D. BRINCKERHOFF SIDRA MAHFOOZ KATHERINE ROSENFELD American Civil Liberties Union VASUDHA TALLA New York, NY SONYA LEVITOVA Emery Celli Brinckerhoff Abady JESSIE J. ROSSMAN Ward & Maazel LLP ADRIANA LAFAILLE New York, NY RACHEL E. DAVIDSON Counsel for Petitioner–Appellee JULIAN BAVA American Civil Liberties Union DREW C. ENSIGN Foundation of Massachusetts, Inc. ALANNA T. DUONG Boston, MA YAAKOV M. ROTH SARAH S. WILSON MAHSA KHANBABAI Civil Division North Easton, MA U.S. Dept. of Justice LIA ERNST Washington, D.C. MONICA H. ALLARD MICHAEL P. DRESCHER ACLU Foundation of Vermont Acting United States Attorney Montpelier, VT District of Vermont RAMZI KASSEM Counsel for Respondents–Appellants NAZ AHMAD MUDASSAR TOPPA SHEZZA ABBOUSHI DALLAL CLEAR Project Main Street Legal Services, Inc.
_____________ BARRINGTON D. PARKER, SUSAN L. CARNEY, and ALISON J. NATHAN, Circuit Judges:
Rümeysa Öztürk is a graduate student who had, until recently, been living
in Massachusetts lawfully on a student visa. On March 25, 2025, six plainclothes
law enforcement officers arrested Öztürk near her home without warning and
drove her away in an unmarked car. Unaware of her location and unable to
contact their client, Öztürk’s counsel brought a habeas petition in the District of
Massachusetts. The petition alleges that Öztürk was arrested and is now detained
based solely on an op-ed she wrote over a year before her arrest. But, when the
petition was filed, Öztürk had already been driven across state lines to Vermont.
And when the government eventually disclosed Öztürk’s location nearly twenty-
four hours later, she had again been moved, this time to a correctional facility in
Louisiana.
The habeas petition filed in Massachusetts was transferred to the District of
Vermont, and the district court has set an expeditious schedule for a bail hearing
and to resolve the constitutional claims made in the habeas petition. In aid of this
resolution, the district court ordered the government to transport Öztürk from
immigration custody in Louisiana to immigration custody in the District of
Vermont. Although proceedings continue in the District of Vermont, the
government now appeals the district court’s order. Before this panel, the
1 government seeks an emergency stay of this transfer order pending appeal. We
conclude that the government has failed to meet its burden to justify such a stay.
First, the government has failed to show that it is likely to succeed on the
merits of its appeal. The District of Vermont is likely the proper venue to
adjudicate Öztürk’s habeas petition because, at the time she filed, she was
physically in Vermont and her immediate custodian was unknown. Furthermore,
we conclude that the government is unlikely to prevail on its arguments that
various jurisdiction-stripping provisions of the Immigration and Nationality Act
(“INA”) on which the government relies deprive the district court of jurisdiction
over Öztürk’s challenge to her detention.
Second, the government has failed to show irreparable injury absent a stay
of the transfer order. Contrary to its arguments, the transfer order does not
prevent it from effectuating any duly enacted law. If the government were to
prevail on this appeal, Öztürk would return to immigration custody in Louisiana.
And in the interim, Öztürk’s immigration removal proceedings will continue in
Louisiana. Finally, the balance of the equities disfavors a stay. Öztürk’s interest in
participating in her scheduled habeas proceedings in person outweighs the
government’s purported administrative and logistical costs.
2 For these reasons, the government’s motion for a stay is DENIED, the
government’s request for a writ of mandamus is also DENIED, and the
administrative stay entered by this Court is hereby VACATED. The government
is hereby ORDERED to comply with the district court’s transfer order within one
week of the date of this opinion. Accordingly, the district court’s April 18, 2025
Order is hereby amended as follows: “To support the Court’s resolution of these
issues, the Court orders that Ms. Öztürk be physically transferred to ICE custody
within the District of Vermont no later than May 14, 2025.”
I. BACKGROUND
This case arises from the arrest and detention of Rümeysa Öztürk, a young
Turkish student who entered the United States legally pursuant to a valid F-1
student visa. Öztürk is a third-year doctoral candidate in Child Study and Human
Development at Tufts University, and has been residing in Somerville,
Massachusetts. Öztürk was arrested on March 25, 2025, and has been detained at
a correctional facility in Louisiana ever since.
To date, the only justification the government has provided for her arrest
and detention is that the Department of Homeland Security (“DHS”) and
Immigration and Customs Enforcement (“ICE”) made an assessment that she “had
been involved in associations that ‘may undermine U.S foreign policy by creating
3 a hostile environment for Jewish students and indicating support for a designated
terrorist organization’ including co-authoring an op-ed that found common cause
with an organization that was later temporarily banned from campus.” Ozturk v.
Trump, No. 2:25-cv-374, 2025 WL 1145250, at *17 (D. Vt. Apr. 18, 2025) (emphasis
added).
The opinion editorial, which was co-authored by Öztürk and three other
Tufts students, was published last year on March 26, 2024. It expressed strong
views on an undisputedly controversial topic, criticizing the University’s response
to three resolutions passed by the Tufts Community Union Senate that would have
the University “acknowledge the Palestinian genocide, apologize for University
President Sunil Kumar’s statements, disclose its investments and divest from
companies with direct or indirect ties to Israel.” Rumeysa Ozturk et al., Op-ed: Try
Again, President Kumar: Renewing Calls for Tufts to Adopt March 4 TCU Senate
Resolutions, The Tufts Daily (Mar. 26, 2024), available at https://www.tuftsdaily.
com/article/2024/03/4ftk27sm6jkj [https://perma.cc/84ZQ-EVZ7].
On March 21, 2025, the U.S. Department of State, Bureau of Consular Affairs
approved revocation of Öztürk’s F-1 visa. Ozturk, 2025 WL 1145250, at *2. The
approval was, apparently, based solely on the assessment by DHS and ICE that
4 Öztürk’s co-authorship of the op-ed a year earlier demonstrated her involvement
in organizations that “may undermine U.S. foreign policy.” Id. at *17. Öztürk was
not informed that DHS and ICE were considering seeking her visa revocation, nor
that such a determination was made. The Armstrong Memo stated that “[d]ue to
ongoing ICE operational security, this revocation will be silent; the Department of
State will not notify the subject of the revocation.” Id. at *3 (emphasis added).
Four days later, six heavily armed, plainclothes officers, some masked,
arrested Öztürk without warning on the street near her residence and drove her
away in an unmarked vehicle, crossing state lines and transporting her first to
New Hampshire, then to Vermont, and the next day, flying her to a correctional
facility in Basile, Louisiana, where she remains in custody.
Öztürk was not afforded an opportunity to speak with counsel or to tell
anyone where she was until after her arrival in Louisiana, almost twenty-four
hours after her arrest in Massachusetts. Counsel’s efforts to determine where she
was detained in the hours after her arrest were unsuccessful. Thus, that evening,
her counsel filed a habeas petition in the District of Massachusetts—her last known
location—seeking her release. The Massachusetts district court then ordered that
5 she not be transferred out of Massachusetts. But at this point Öztürk was already
in Vermont. ICE agents proceeded to transport her to Louisiana.
Because Öztürk was detained in Vermont at the time her habeas petition
was filed, Judge Denise L. Casper of the District of Massachusetts soon transferred
this case to the District of Vermont, where the case was assigned to Judge William
K. Sessions III. Ozturk v. Trump, 25-cv-10695, 2025 WL 1009445, at *11 (D. Mass.
Apr. 4, 2025); see also 28 U.S.C. § 1631.
In her amended habeas petition, Öztürk alleges that her arrest and detention
were unlawfully “designed to punish her speech and chill the speech of others.”
Mot. Ex. A (Amended Habeas Petition, hereinafter “Pet.”) at 2 ¶ 3. She does not
challenge the revocation of her visa, and she is not subject to an order of removal.
The government moved to dismiss the petition. In a careful and thoughtful
opinion, Judge Sessions denied the government’s motion and scheduled a bail
hearing (for May 9) and a hearing on the habeas petition (for May 22). The district
court also ordered that Öztürk be transferred to immigration custody in the
District of Vermont in order to facilitate those proceedings.
Before us is the government’s emergency motion seeking a stay pending
appeal of the district court’s order dated April 18, 2025, which directs the
6 government to return Öztürk from Louisiana to the District of Vermont. Öztürk
argues that we lack appellate jurisdiction over an appeal from Judge Sessions’
order, and she otherwise opposes the motion.
II. APPELLATE JURISDICTION
As a threshold matter, Öztürk argues that we lack jurisdiction over the
government’s interlocutory appeal from the district court’s order that she “be
physically transferred to ICE custody within the District of Vermont no later than
May 1, 2025.” Ozturk, 2025 WL 1145250, at *25. Specifically, she contends that we
cannot review this interlocutory order because it is not an injunction, was not
certified by the district court to this Court, and is not appealable under the
collateral order doctrine. We disagree.
In Shoop v. Twyford, the Supreme Court held that, pursuant to the collateral
order doctrine, federal courts of appeal have appellate jurisdiction to review a
transportation order under the All Writs Act, 28 U.S.C. § 1651. 596 U.S. 811, 817
n.1 (2022). We are bound by that conclusion. Accordingly, we conclude that this
Court has jurisdiction over the stay motion.
III. STAY PENDING APPEAL
A stay is “an exercise of judicial discretion and the propriety of its issue is
dependent upon the circumstances of the particular case.” Nken v. Holder, 556 U.S.
7 418, 433 (2009) (alterations adopted) (quotation marks omitted). “The party
requesting a stay bears the burden of showing that the circumstances justify an
exercise of [the Court’s] discretion.” Id. at 433–34. The four stay factors are “(1)
whether the stay applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested
in the proceeding; and (4) where the public interest lies.” Id. at 434 (quotation
marks omitted). “The first two factors . . . are the most critical.” Id. And where
“the government is a party to the suit, the final two factors merge.” New York v.
U.S. Dep’t of Homeland Sec., 969 F.3d 42, 58–59 (2d Cir. 2020). We deny the stay
because the government has not met its burden on any of the factors.
A. Likelihood of Success on the Merits
1. District of Confinement and Immediate Custodian
We begin with two traditional requirements for a federal court to entertain
a habeas petition: that the petition be filed in the district of confinement and that
it name the petitioner’s immediate custodian. See Rumsfeld v. Padilla, 542 U.S. 426,
438 (2004); see also 28 U.S.C. § 2242. Generally, “[w]henever a § 2241 habeas
petitioner seeks to challenge his present physical custody within the United
States,” he must file the petition in the district of confinement and name his
8 immediate custodian as the respondent. Padilla, 542 U.S. at 447. Öztürk filed her
original habeas petition in the District of Massachusetts on March 25, 2025 at
approximately 10pm, naming as respondents Patricia Hyde, the New England
Field Office Director of ICE; Michael Krol, ICE’s Homeland Security
Investigation’s New England Special Agent in Charge; Todd Lyons, the Acting
Director of ICE; and Kristi Noem, the Secretary of Homeland Security. The
government argues that, because the petition was not filed in Öztürk’s district of
confinement and did not name Öztürk’s immediate custodian, “the order below
was unlawful because the district court does not have habeas jurisdiction over this
case in the first place.” Mot. at 10.
Any confusion about where habeas jurisdiction resides arises from the
government’s conduct during the twenty-four hours following Öztürk’s arrest.
Öztürk was arrested near her residence in Somerville, Massachusetts, at about
5:25pm on March 25, 2025. Ozturk, 2025 WL 1009445, at *2 . ICE officers departed
Somerville with Öztürk at 5:49pm. Id. At 10:28pm, after being transferred to
Methuen, Massachusetts, and then to Lebanon, New Hampshire, Öztürk arrived
at an ICE field office in St. Albans, Vermont, where she spent the next six hours.
9 Id. At 4:00am on March 26, 2025, Öztürk was transported to the airport in
Burlington, Vermont and then to Louisiana, where she arrived at 2:35pm. Id.
Öztürk’s counsel “repeatedly attempted to ascertain her location” in the
hours following her arrest. Ozturk, 2025 WL 1145250, at *3; see also Opp. at 4–5.
After their initial efforts failed, counsel filed Öztürk’s original habeas petition in
the District of Massachusetts—her last known location—at approximately
10:01pm. See Mot. at 5; Ozturk, 2025 WL 1145250, at *2; Ozturk, 2025 WL 1009445,
at *1. It is now undisputed that at that time, Öztürk was not in the District of
Massachusetts—she was already in Vermont. Accordingly, the Massachusetts
district court found it lacked habeas jurisdiction and transferred the petition to
Vermont under 28 U.S.C. § 1631. Ozturk, 2025 WL 1009445, at *11.
The government now argues that this transfer was improper. The
government is wrong. 28 U.S.C. § 1631 provides “[w]henever a civil action . . . is
noticed for or filed with . . . a court and that court finds that there is a want of
jurisdiction, the court shall, if it is in the interest of justice, transfer such action or
appeal to any other such court . . . in which the action or appeal could have been
brought at the time it was filed or noticed.” The Supreme Court has made clear
“the general rule that for core habeas petitions challenging present physical
10 confinement, jurisdiction lies in only one district: the district of confinement.”
Padilla, 542 U.S. at 443. At the time the petition was filed, that “one district” was
the District of Vermont, where Öztürk was in transit to an ICE facility for the night.
Vermont is therefore the only district in which the petition could have been
brought at the time it was filed, and thus the only district to which it could be
transferred under § 1631. True, if the district court found that transfer was not in
the interest of justice, it could have dismissed the petition without prejudice, as
the Supreme Court did in Padilla—but the government presents no reason to call
into doubt the district court’s conclusion that transfer was “in the interest of
justice.” 1
The government argues that § 1631 cannot convey “substantive authority”
the court would otherwise lack. Mot. at 13. That is true. The only effect of the
transfer statute is that “the action or appeal shall proceed as if it had been filed in
1And there are many reasons supporting its conclusion, not least that dismissing the petition would have the effect of vacating the order entered in the District of Massachusetts prohibiting the government from removing Öztürk from the country until further court order. Dismissing the petition would also unnecessarily delay the resolution of Öztürk’s claims. Further, we have held that “a finding that the original action was filed in good faith” weighs in favor of transfer rather than dismissal. Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996), as amended (Oct. 7, 1996). The government has presented no basis to believe that the original petition was not filed in good faith. 11 or noticed for the court to which it is transferred on the date upon which it was
actually filed in or noticed for the court from which it is transferred.” 28 U.S.C.
§ 1631. If the transferee court would have lacked jurisdiction had the action been
filed there, transfer does not cure that error. Thus, in De Ping Wang v. Dep’t of
Homeland Sec., where a petition was both untimely filed and filed in the wrong
court, transferring it to the proper court could not change the fact that it was
untimely. 484 F.3d 615, 617–18 (2d Cir. 2007). Not so here. Had the petition been
filed in the District of Vermont at 10:01pm on March 25, the case would have
properly been before that court. The action’s transfer merely remedies the
procedural defect—it conveys no substantive authority the court would otherwise
lack. 2
Nor does Öztürk’s own subsequent transfer to Louisiana strip the District
of Vermont of habeas jurisdiction. The Supreme Court’s decision in Ex parte Endo,
323 U.S. 283 (1944), “stands for the important but limited proposition that when
the Government moves a habeas petitioner after she properly files a petition
naming her immediate custodian, the District Court retains jurisdiction and may
2 Since neither the parties nor the district court relied on 28 US.C. §§1404(a) or 1406(a) in transferring Öztürk’s habeas petition, we express no view as to whether transferring a petition pursuant to these provisions would similarly cure this defect. 12 direct the writ to any respondent within its jurisdiction who has legal authority to
effectuate the prisoner’s release.” Padilla, 542 U.S. at 441. The government argues
that the petition was not “properly filed” in Vermont, and so the district court
never obtained any jurisdiction that it could then “retain.” Mot. at 8 n.3, 14. But
the effect of a transfer under § 1631 is that we must treat the petition as if it were,
in fact, filed in Vermont at 10:01pm, when Öztürk was present in the district. The
government concedes that had the petition been filed in Vermont at that time,
habeas jurisdiction would be proper there. Under § 1631, the transferee court
inherits the filing time of the transferor court: in effect, the petition was filed in
Vermont at approximately 10:01pm, and consequently the Vermont district court
obtained jurisdiction at that time and retains it even in light of Öztürk’s
subsequent transfer to Louisiana. For these reasons, the government is not likely
to prevail on the theory that the district-of-confinement rule bars habeas
jurisdiction in the District of Vermont.
Next, the government argues Öztürk’s failure to name her “immediate
custodian” is fatal to her petition. Mot. at 14–15. 28 U.S.C. § 2242 provides that an
application for habeas relief should allege “the name of the person who has
custody over him and by virtue of what claim or authority, if known.” 28 U.S.C.
13 § 2242 (emphasis added). Generally, this requires the petitioner to name their
“immediate” custodian. Wales v. Whitney, 114 U.S. 564, 574 (1885). More
specifically, “the default rule is that the proper respondent is the warden of the
facility where the prisoner is being held.” Padilla, 542 U.S. at 435. However, in
cases where the petitioner “is held in an undisclosed location by an unknown
custodian, it is impossible to apply” this rule. Id. at 450 n.18. In “these very limited
and special circumstances,” the naming of a more remote custodian—here, the
Secretary of Homeland Security—satisfies the statutory requirements. Demjanjuk
v. Meese, 784 F.2d 1114, 1116 (D.C. Cir. 1986).
Here, the government did not disclose to Öztürk’s counsel where, or by
whom, she was being detained and did not allow Öztürk to contact counsel or
convey her whereabouts to anyone until almost twenty-four hours after her arrest.
Indeed, the government concedes that it withheld this information intentionally.
It stated below that it “does not permit immigration detainees ‘to communicate
about their location while enroute between detention facilities,’ because doing so
‘would raise serious security concerns.’” Ozturk, 2025 WL 1145250, at *9 (quoting
Dist. Ct. Dkt. ECF No. 83 at 13). The government contends that, even though it is
undisputed that Öztürk’s counsel did not know and could not find out who her
14 immediate custodian was when her petition was filed (and the government still
has not identified who that was), the “unknown custodian exception” does not
apply here. Rather, the government argues that this exception applies only where
the custodian’s identity is a “prolonged secret.” Mot. at 14.
The government cites no statute or case law for this extraordinary
proposition, the practical effect of which would be that for some unspecified
period of time after detention—seemingly however long the government chooses
to take in transporting a detainee between states or between facilities—a detainee
would be unable to file a habeas petition at all, anywhere. Such a rule finds no
support in the law and is contrary to longstanding tradition. See 3 William
Blackstone, Commentaries *131; Paul D. Halliday, Habeas Corpus: From England
to Empire 161 (2012 edition) (“By exploring hundreds of cases across many
decades, we can gain a sense of practices and principles, if not rules, that
constituted a jurisprudence of normalcy. At the center of this jurisprudence stood
the idea that the court might inspect imprisonment orders made at any time,
anywhere, by any authority.”); see also Boumediene v. Bush, 553 U.S. 723, 739–46
(2008). In any event, the plain text of 28 U.S.C. § 2242, requiring the petitioner to
15 identify the immediate custodian “if known,” likely precludes the government’s
proposed rule.
Even if the unknown custodian exception does not apply, Öztürk’s original
petition named Patricia Hyde, who it identified as ICE’s New England Field Office
Director. Dist. Ct. Dkt. ECF No. 1 at 1–2. Because Öztürk was in transit when her
petition was filed, Öztürk contends that Hyde was in fact her immediate custodian
during that period. See Opp. at 12. The government has never clarified who, if it
was not Hyde, had immediate custody of Öztürk in transit, declining to answer
direct questions from the district court and from this Court when asked. 3 See
Ozturk, 2025 WL 114525024, at *8 (citing Dist. Ct. Dkt. ECF No. 98 at 30–31). Thus,
either the custodian was Hyde, whom the petition named, or it was not Hyde and
3At oral argument before this Court, the government first stated that it does not know who Öztürk’s immediate custodian was while she was in transit at approximately 10:01pm and then took the novel position that Öztürk’s immediate custodian at that time was the warden of the Vermont facility to which she had not yet arrived. The government cited no authority for this contention, and it is at odds with the straightforward rule set out in Padilla that the proper respondent to a habeas petition is “’the person with the ability to produce the prisoner’s body before the habeas court.” 542 U.S. at 435 (quotation marks omitted). As the Supreme Court instructed in Padilla, “the default rule is that the proper respondent is the warden of the facility where the prisoner is being held,” id. (emphasis added), not the person who will at some unspecified future time have the ability to produce the prisoner’s body or the warden of a facility where the prisoner is not yet being held. 16 the custodian remains unknown. On this record, the government has not shown
a likelihood of success on its claim that Öztürk’s original habeas petition was
deficient for any failure to name her immediate custodian at the time of filing.
Finally, the government argues that even if the Vermont district court had
habeas jurisdiction over the original petition, filed while Öztürk was physically
present in Vermont, it lacks jurisdiction over Öztürk’s amended petition, filed on
March 28, when Öztürk was physically present in Louisiana. Mot. at 15–16. The
government refers us to Royal Canin U. S. A., Inc. v. Wullschleger, 604 U.S. 22 (2025),
in support. Royal Canin stands for the proposition that where a plaintiff files a
complaint in federal court raising both federal and state law claims and later
amends the complaint to remove the federal claims, the court lacks subject matter
jurisdiction over the amended complaint. Id. at 33–34. Royal Canin is plainly
inapposite. As the Supreme Court has held, questions of habeas jurisdiction use
the word jurisdiction “in the sense that it is used in the habeas statute, 28 U.S.C.
§ 2241(a), and not in the sense of subject-matter jurisdiction of the District Court.”
Padilla, 542 U.S. at 434 n.7. In fact, the Federal Rules of Civil Procedure provide
that an “amendment to a pleading relates back to the date of the original pleading
when . . . the amendment changes the party or the naming of the party against
17 whom a claim is asserted.” Fed. R. Civ. P. 15(c)(1)(C). The government cites no
authority for its contention that jurisdiction within the meaning of the habeas
statute is evaluated anew when the petition is amended and may not relate back
to the date of the original pleading pursuant to the Federal Rules of Civil
Procedure.
2. Jurisdiction-Stripping Provisions of the INA
The remainder of the government’s arguments for why it is likely to succeed
on the merits are primarily jurisdictional in nature. It contends first that
jurisdiction-stripping provisions of the INA deprived the district court of
authority to order the government to transfer Öztürk to Vermont. Then it argues
that various other provisions of the INA stripped the district court of jurisdiction
over Öztürk’s petition as a whole. These arguments are unlikely to succeed in no
small part because our analysis is guided by longstanding principles of statutory
interpretation requiring Congress to speak clearly and specifically when it wishes
to deprive the federal courts of jurisdiction. Repeatedly, including in the INA
context, the Supreme Court has declared that we should “take account . . . of the
presumption favoring interpretations of statutes [to] allow judicial review . . .
absent clear statement.” Kucana v. Holder, 558 U.S. 233, 237 (2010) (quotation marks
and citation omitted); see also McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 483–
18 84 (1991) (“We hold that given the absence of clear congressional language
mandating preclusion of federal jurisdiction and the nature of respondents’
requested relief, the District Court had jurisdiction . . . .”); Bowen v. Michigan Acad.
of Fam. Physicians, 476 U.S. 667, 671 (1986) (“[O]nly upon a showing of clear and
convincing evidence of a contrary legislative intent should the courts restrict
access to judicial review.” (quotation marks omitted)). Because Öztürk challenges
her arrest and detention, and not her removal, we find that the government is
unlikely to make such a showing.
a. 8 U.S.C. § 1252(a)(2)(B)(ii)
We begin with the argument that the district court lacked authority to order
the government to transfer Öztürk to immigration custody in Vermont. The
district court premised its power to order Öztürk’s transfer to Vermont on both
the “equitable and flexible nature of habeas relief” and its authority under the All
Writs Act. Ozturk, 2025 WL 1145250, at *23 (quotation marks omitted). The district
court undeniably has an “inherent authority to protect [its] proceedings,” Degen v.
United States, 517 U.S. 820, 823 (1996), and to “meet new situations which demand
equitable intervention, and to accord all the relief necessary to correct the
particular injustices involved in these situations,” Hazel-Atlas Glass Co. v. Hartford-
19 Empire Co., 322 U.S. 238, 248 (1944). The district court concluded that the equities
strongly favored Öztürk’s transfer to ICE custody in Vermont.
The government argues that the decision where to detain a noncitizen
pending removal proceedings is committed to the discretion of the Secretary of
Homeland Security and that the INA precludes judicial review over such
discretionary decisions. In support, the government cites 8 U.S.C.
§ 1252(a)(2)(B)(ii), which precludes the exercise of federal court jurisdiction “to
review . . . any . . . decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under this subchapter to
be in the discretion of the Attorney General or the Secretary of Homeland
Security.” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). The government argues
that a different statute, 8 U.S.C. § 1231(g), “specifie[s]” that the decision to detain
immigrants in, and transfer immigrants to, the custodial location of the
government’s choice is within the executive branch’s discretion, barring judicial
review. The government is unlikely to succeed on that argument.
To begin with, § 1252(a)(2)(B)(ii)’s bar on jurisdiction applies only to those
decisions where Congress has expressly “set out the Attorney General’s
20 discretionary authority in the statute.” 4 Kucana, 558 U.S. at 247. Crucially, the
question is not whether § 1231(g) “require[s] an exercise of discretion” because
even if it “probably do[es],” the crux is “whether the text . . . specifies that the
decision is in the discretion of the Attorney General.” Nethagani v. Mukasey, 532
F.3d 150, 154 (2d Cir. 2008) (cleaned up). We have held that “when a statute
authorizes the Attorney General to make a determination, but lacks additional
language specifically rendering that determination to be within his discretion
(e.g., ‘in the discretion of the Attorney General,’ ‘to the satisfaction of the Attorney
General,’ etc.), the decision is not one that is ‘specified . . . to be in the discretion of
the Attorney General’ for purposes of § 1252(a)(2)(B)(ii).” Id. at 154–55.
Section 1231(g) has no such additional language. It merely states that “[t]he
Attorney General shall arrange for appropriate places of detention for aliens
detained pending removal or a decision on removal.” 8 U.S.C. § 1231(g)(1). Far
from specifying discretion, § 1231(g) uses the obligatory “shall” rather than a
permissive “may.” This stands “in stark contrast to other sections of the INA,”
4 As part of transferring many immigration-related responsibilities from the Attorney General to the Secretary of the Department of Homeland Security, “the Homeland Security Act of 2002 mandates that references to the Attorney General are deemed to include DHS where, as here, the relevant agency functions have been transferred from the Department of Justice to DHS.” Shabaj v. Holder, 718 F.3d 48, 51 n.3 (2d Cir. 2013) (citing 6 U.S.C. § 557); see also 6 U.S.C. § 202. 21 which both use permissive verbs and include additional language specifying that
those decisions that are within the Attorney General or DHS Secretary’s discretion.
Aguilar v. U.S. Immigr. & Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 20
(1st Cir. 2007); cf., e.g., 8 U.S.C. § 1157(c)(1) (“[T]he Attorney General may, in the
Attorney General’s discretion . . . .” (emphasis added)). When “Congress includes
particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.” Nken, 556 U.S. at 430 (quotation marks
omitted). 5 Furthermore, as explained above, with respect to § 1252(a)(2)(B)(ii)
exactly, the Supreme Court has applied the “presumption favoring interpretations
of statutes [to] allow judicial review . . . absent clear statement.” Kucana, 558 U.S.
5In fact, the very next sentence of § 1231(g)(1) uses the permissive “may,” and the subsection appears to relate “more centrally to the government’s brick and mortar obligations for obtaining facilities in which to detain aliens.” Reyna as next friend of J.F.G. v. Hott, 921 F.3d 204, 209 (4th Cir. 2019). Section 1231(g) first provides that the Attorney General “shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.” 8 U.S.C. § 1231(g)(1). If such facilities “are unavailable,” the statute then provides that “the Attorney General may expend” from specified appropriations “amounts necessary to acquire land and to acquire, build, remodel, repair, and operate facilities (including living quarters for immigration officers if not otherwise available) necessary for detention.” Id. (emphasis added). 22 at 237 (quotation marks omitted). Under these circumstances, we do not believe
that § 1252(a)(2)(B)(ii), by operation of § 1231(g), forecloses judicial review.
With respect to transfer in particular, Ҥ 1231(g) does not address transfers
[of noncitizen detainees] at all,” and it surely does not “explicitly grant the
Attorney General or the Secretary of Homeland Security discretion with respect to
transfers.” Reyna as next friend of J.F.G. v. Hott, 921 F.3d 204, 209 (4th Cir. 2019)
(emphases added). Accordingly, even if the discretionary authority to transfer a
detainee between facilities is contemplated under § 1231(g), such authority is
merely implied. See id. at 210 (though discretion to transfer detainees “might
rightfully [be] locate[d]” under § 1231(g), “the authority is implied,” and “§
1252(a)(2)(B)(ii) . . . requires that discretionary authority be specified, i.e., made
explicit, in order to be unreviewable”); Aguilar, 510 F.3d at 20 (“[S]ection 1231(g)
fails to ‘specify’ that individualized transfer decisions are in the Attorney
General’s discretion.”).
For these reasons, we conclude the government has failed to demonstrate
that it is likely to succeed on its contention that § 1252(a)(2)(B)(ii) strips the district
court of authority to order Öztürk’s custodial transfer.
b. 8 U.S.C. § 1252(g)
23 The government also asserts that § 1252(g) strips the district court of
jurisdiction to hear Öztürk’s habeas claims, thus warranting a stay of the district
court’s transfer order. Section 1252(g) prohibits courts from “hear[ing] any cause
or claim by or on behalf of any alien arising from the decision or action by the
Attorney General [or Secretary of Homeland Security] to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this chapter.”
8 U.S.C. § 1252(g). That language supposedly includes Öztürk’s claims.
The government dramatically overstates the reach of § 1252(g). As both the
Supreme Court and our Court have explained, § 1252(g)’s bar on jurisdiction is
“narrow[].” Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471,
482 (1999); see also Fulton v. Noem, No. 25-194, at 2 (2d Cir. Apr. 30, 2025) (order
granting stay of removal pending appeal and rejecting the proposition that
§ 1252(g) bars review of challenges to the manner of removal). Section 1252(g) is
directed “against a particular evil: attempts to impose judicial constraints upon
prosecutorial discretion.” AADC, 525 U.S. at 485 n.9. This bar on judicial review
is thus cabined “to three discrete actions”: a decision “to ‘commence proceedings,
adjudicate cases, or execute removal orders.’” Id. at 482 (quoting 8 U.S.C.
§ 1252(g)) (emphases adopted). There are “many other decisions or actions that
24 may be part of the deportation process” but that do not fall within the three
discrete exercises of “prosecutorial discretion” covered by § 1252(g). Id. at 482,
489.
Most, if not all, of Öztürk’s habeas claims seem to fall outside of § 1252(g)’s
narrow jurisdictional bar. She does not challenge the government’s decision to
commence proceedings, adjudicate her case, or execute a removal order. Instead,
her petition challenges her unlawful detention, pending those proceedings, and
she seeks her release from detention in the interim based on the violations of her
First and Fifth Amendment rights that she has identified. Pet. at 22. 6 Section
1252(g) “does not preclude jurisdiction over the challenges to the legality of [a
noncitizen’s] detention.” Kong v. United States, 62 F.4th 608, 609 (1st Cir. 2023); see
also Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (similar).
6 Among other things, the petition’s Prayer for Relief requests “Respondents to return Petitioner to [the] District [of Vermont] pending these proceedings,” “Order the immediate release of Petitioner pending these proceedings,” and “Declare that Respondents’ actions to arrest and detain Petitioner violate the First Amendment and the Due Process Clause of the Fifth Amendment.” Pet. at 22. At this time, the Court need not decide whether every Prayer for Relief survives § 1252(g). So long as part of her challenge to her detention falls outside § 1252(g), her petition survives. The district court would on that basis alone retain the authority to order her transfer to aid its resolution of this case. 25 Nevertheless, the government contends that Öztürk’s detention “aris[es]
from” the commencement, adjudication, or execution of removal proceedings.
This contention is likely mistaken. The Supreme Court has already “rejected as
‘implausible’ the Government’s suggestion that § 1252(g) covers ‘all claims arising
from deportation proceedings’ or imposes ‘a general jurisdictional limitation.’”
Dep’t of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 19 (2020)
(quoting AADC, 525 U.S. at 482); accord Jennings v. Rodriguez, 583 U.S. 281, 294
(2018) (opinion of Alito, J., joined by Roberts, C.J., and Kennedy, J.) (observing that
the Court “did not interpret [the phrase “arising from” in § 1252(g)] to sweep in
any claim that can technically be said to ‘arise from’ the three listed actions of the
Attorney General”). Because “the phrase ‘arising from’ is not ‘infinitely elastic,’”
it “does not reach ‘claims that are independent of, or wholly collateral to, the
removal process.’” Kong, 62 F.4th at 614 (quoting Aguilar, 510 F.3d at 10–11); see
also Parra, 172 F.3d at 957 (similar).
“Among such ‘collateral’ claims” not subject to the § 1252(g) bar on judicial
review are “claims seeking review of the legality of a petitioner’s detention.” Kong,
62 F.4th at 614. Even though, “[i]n a but-for sense,” a claim of unlawful detention
might arise from the government’s decision to commence proceedings, adjudicate
26 a case, or execute a removal, challenges to unlawful detention “do not ‘arise from’
the government’s decision to ‘execute removal orders’ within the meaning of
§ 1252(g) simply because the claims relate to that discretionary, prosecutorial
decision.” Id. at 613; see also Parra, 172 F.3d at 957 (“[A petitioner’s] claim
concern[ing] detention . . . may be resolved without affecting pending [removal]
proceedings.”).
Öztürk’s claims of unlawful and retaliatory detention are independent of,
and collateral to, the removal process. Her detention does not arise from the
government’s “commence[ment of] proceedings.” AADC, 525 U.S. at 482
(quotation marks omitted). Filing a Notice to Appear (“NTA”) in an immigration
court is the action that commences removal proceedings. See 8 U.S.C. § 1229(a);
8 C.F.R. § 1239.1. But ICE detained Öztürk before an NTA was filed with the
immigration court.
Nor does her detention-related claim seem to arise from the decision to
adjudicate her removal case, since her challenge to her detention has nothing to do
with whether a “removal action should be abandoned . . . or whether the formal
adjudicatory process should proceed.” Barahona-Gomez v. Reno, 236 F.3d 1115,
1120 (9th Cir. 2001) (quotation marks omitted); see also Michalski v. Decker, 279 F.
27 Supp. 3d 487, 495 (S.D.N.Y. 2018) (reasoning that “the decision or action to arrest
or detain an alien [cannot] be fairly construed as a decision or action to ‘adjudicate
cases’” because “the decision to detain an individual . . . does not implicate the
Executive’s discretion in continuing or withdrawing such a proceeding”).
Further, the government confirmed that ICE’s decision to arrest and detain
Öztürk was not directed by § 1226(a). Ozturk, 2025 WL 1145250, at *10. In other
words, her detention was not mandated by the mere fact that her case was under
adjudication. Nor could her detention possibly “arise from” the execution of a
removal order, because no such order has been entered. Because Öztürk’s
unlawful detention claims “may be resolved without affecting pending [removal]
proceedings,” they do not arise from the three discrete exercises of prosecutorial
discretion that are shielded by § 1252(g). Parra, 172 F.3d at 957; see also Madu v.
U.S. Att’y Gen., 470 F.3d 1362, 1368 (11th Cir. 2006) (challenge to unlawful
detention not barred by § 1252(g) because it was distinct from a challenge to the
government’s decision to execute a removal order).
The government nevertheless insists that the Supreme Court’s decision in
AADC bars this claim under § 1252(g). Again, it is unlikely to succeed on this
argument. It is true that the petitioners in AADC claimed that “INS was selectively
28 enforcing immigration laws against them in violation of their First and Fifth
Amendment Rights.” 525 U.S. at 474. And the Supreme Court indeed concluded
that the “challenge to the Attorney General’s decision to ‘commence proceedings’
against them [fell] squarely within § 1252(g).” Id. at 487. But the petitioners’
claims in that case fell within that jurisdictional bar because they sought “to
prevent the initiation of deportation proceedings,” id. at 474—i.e., the
“commence[ment of] proceedings,” id. at 482. The habeas claims in that case did
not sound in unlawful detention at all, and it is therefore of no help to the
government. 7
Accordingly, the government failed to satisfy its burden of demonstrating
that § 1252(g) likely strips the district court of jurisdiction to hear Öztürk’s petition.
The district court retains jurisdiction over at least some of Öztürk’s claims, vesting
it with the transfer authority it exercised.
c. 8 U.S.C. §§ 1252(a)(5), 1252(b)(9), and 1226(e)
7In a string-cite, the government also references this Circuit’s decision in Ragbir v. Homan, 923 F.3d 53 (2d Cir. 2019), vacated sub nom. Pham v. Ragbir, 141 S. Ct. 227 (2020), to bolster its argument. But similar to AADC, the petitioners in that case “sought to prevent the Government from executing [a] final order of removal against him.” Id. at 61. That is squarely the third of the exercises of prosecutorial discretion protected by § 1252(g). The habeas petition in that case says nothing of unlawful detention. 29 For similar reasons, the government’s argument that 8 U.S.C. §§ 1252(a)(5),
1252(b)(9), and 1226(e) bar district court review of Öztürk’s detention-related
claims is unlikely to succeed. Section 1252(b)(9) bars district court review of claims
“arising from . . . action[s]” or “proceeding[s] brought to remove an alien.” 8
U.S.C. § 1252(b)(9). The government urges the conclusion that, because Öztürk’s
constitutional arguments under the First and Fifth Amendments relate to her
detention, and because detention itself is “necessary for . . . removal proceedings,”
§ 1252(b)(9) strips district courts of jurisdiction. Mot. at 18 (quotation marks
omitted) (quoting Demore v. Kim, 538 U.S. 510, 513 (2003)). In other words, the
government contends that the mere fact of Öztürk’s detention funnels all her
unlawful detention claims into § 1252(b)(9), irrespective of how tangentially
related the claims may be to removal proceedings.
As a threshold matter, the very text of § 1252(b) sets out requirements only
“[w]ith respect to review of an order of removal under subsection (a)(1).” 8 U.S.C.
§ 1252(b). No such order of removal is at issue here. In any event, the Supreme
Court has rejected the proposed approach, holding that Ҥ 1252(b)(9) does not
present a jurisdictional bar where those bringing suit are not asking for review of
an order of removal, the decision to seek removal, or the process by which
30 removability will be determined.” Regents, 591 U.S. at 19 (cleaned up) (quoting
Jennings, 583 U.S. at 294).
Jennings does not require a different outcome, despite the government’s
insistence. As a threshold matter, the discussion of § 1252(b)(9) in Jennings is not
part of the plurality opinion of the Court. See 583 U.S. at 292–96 (opinion of Alito,
J., joined by Roberts, C.J., and Kennedy, J.). And in any event, the relevant part of
Jennings does not support the conclusion that § 1252(b)(9) bars jurisdiction over
habeas challenges to detention. That section in fact rejected the government’s
“expansive interpretation of § 1252(b)(9).” Id. at 293; see also id. at 295 n.3.
Contrary to the government’s position, the mere fact that a noncitizen is detained
does not deprive district courts of jurisdiction under § 1252(b)(9): “The question
is not whether detention is an action taken to remove an alien but whether the
legal questions in this case arise from such an action.” Id. at 295 n.3 (emphasis in
original).
As explained above, Öztürk’s unlawful detention claims may be resolved
without affecting pending removal proceedings. She asserts that the government
arrested and detained her to prevent speech with which it disagrees. Such an act
would be a violation of the Constitution—quite separate from the removal
31 procedures followed by the immigration courts. Consequently, even if her claims
have a relationship to “pending removal proceedings,” her claims do not
themselves challenge “removal proceedings” and thus § 1252(b)(9)’s “channeling
function has no role to play.” Canal A Media Holding, LLC v. United States
Citizenship & Immigr. Servs., 964 F.3d 1250, 1257 (11th Cir. 2020); see also
Mukantagara v. U.S. Dep’t of Homeland Sec., 67 F.4th 1113, 1116 (10th Cir. 2023) (“A
claim only arises from a removal proceeding when the parties in fact are
challenging removal proceedings.”); Gonzalez v. United States Immigr. & Customs
Enf’t, 975 F.3d 788, 810 (9th Cir. 2020) (“[C]laims challenging the legality of
detention pursuant to an immigration detainer are independent of the removal
process.”); Kellici v. Gonzales, 472 F.3d 416, 420 (6th Cir. 2006) (holding that district
court had jurisdiction where “habeas petitions challenged only the
constitutionality of the [petitioners’] arrest and detention, not the underlying
administrative order of removal”). 8 Legislative history from the REAL ID Act
further supports this conclusion. H.R. Rep. No. 109–72, at 175 (2005) (Conf. Rep.),
8See also Elgharib v. Napolitano, 600 F.3d 597, 605 (6th Cir. 2010) (explaining that “a challenge that did not require the district court to address the merits of [an] order of removal” would not be barred by § 1252); Duarte v. Mayorkas, 27 F.4th 1044, 1057 (5th Cir. 2022) (same); Casa De Maryland v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 697 (4th Cir. 2019) (same); E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec., 950 F.3d 177, 186–88 (3d Cir. 2020) (same); Aguilar, 510 F.3d at 10–11 (same). 32 as reprinted in 2005 U.S.C.C.A.N. 240, 300 (explaining that jurisdiction-stripping
provisions “would not preclude habeas review over challenges to detention that
are independent of challenges to removal orders”).
The government’s arguments to the contrary rely on the mistaken belief that
substantive overlap between a challenge to detention and a challenge to removal
is reason enough to conclude that the detention challenge arises from removal.
But overlap, even substantial substantive overlap, does not make one claim arise
out of the other, or necessitate that one claim controls the outcome of the other.
After all, it would seem a “staggering result[]” if a person who brought a First
Amendment retaliation challenge to her removal would be barred from bringing
a separate First Amendment retaliation challenge to conditions of her
confinement, or her prolonged detention, merely because there is substantive
overlap between the claims. Jennings, 583 U.S. at 293 (opinion of Alito, J., joined
by Roberts, C.J., and Kennedy, J.). Rather, we have explained that “whether the
district court has jurisdiction will turn on the substance of the relief that a plaintiff
is seeking.” Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (discussing 8
U.S.C. § 1252(a)(5)); see also Ruiz v. Mukasey, 552 F.3d 269, 274 n.3 (2d Cir. 2009)
(noting that neither § 1252(a)(5) nor § 1252(b)(9) “preclude a district court from
33 exercising jurisdiction over an action seeking review of the denial of an I–130
petition [for classification of a noncitizen as an immediate relative of a U.S. citizen]
because such a denial is unrelated to any removal action or proceeding”). Here,
Öztürk seeks release from detention.
This distinction makes practical sense. While challenges to removal can be
heard in a petition for review after an order of removal has been entered by an
immigration judge and affirmed by the Board of Immigration Appeals, the same
is not true of constitutional challenges to detention like the ones raised by Öztürk.
For one, neither the IJ nor the BIA has “jurisdiction to decide constitutional issues.”
Rabiu v. Immigr. & Naturalization Serv., 41 F.3d 879, 882 (2d Cir. 1994); see also Hinds
v. Lynch, 790 F.3d 259, 262 (1st Cir. 2015) (citing Matter of C-, 20 I. & N. Dec. 529,
532 (BIA 1992)); Arriaga v. Mukasey, 521 F.3d 219, 222 (2d Cir. 2008) (same). And
while the court of appeals considering the petition for review may consider
constitutional claims, that court is obliged to “decide the petition only on the
administrative record on which the order of removal is based.” 8 U.S.C.
§ 1252(b)(4)(A) (emphasis added). However, we are not persuaded that an IJ or
the BIA would have developed a sufficient factual record, or any record at all, with
respect to the challenged detention, especially seeing as bond hearings are decided
34 separately, appealed separately, and contain separate records than the removal
proceedings. See 8 U.S.C. § 1226(a); 8 C.F.R. §§ 236.1(d), 1003.19(d); U.S. Dep’t
Just., Exec. Off. for Immigr. Rev., Immigration Court Practice Manual, § 9.3(e), (f)
(last visited May 6, 2025), available at https://www.justice.gov/eoir/reference-
materials/ic/chapter-9/3 [https://perma.cc/9A6W-AG9U]. This means that in
many, if not most, instances, courts of appeal would not have a sufficient record
to assess the government’s conduct in cases such as this.
Construing an independent constitutional challenge to detention as
necessarily implying a challenge to removal would lead to what Jennings called an
“absurd” result. 583 U.S. at 293 (opinion of Alito, J., joined by Roberts, C.J., and
Kennedy, J.). Öztürk’s core argument is that her free speech and due process rights
are being violated, now. Pet. ¶¶ 67–76. To require her to sit on her challenge until
she receives a final order of removal would create the situation warned of in
Jennings: Öztürk’s detention claim would be “effectively unreviewable” because,
“[b]y the time a final order of removal [is] eventually entered, the allegedly
excessive detention would have already taken place.” 583 U.S. at 293 (opinion of
Alito, J., joined by Roberts, C.J., and Kennedy, J.). “And of course, it is possible
that no such order would ever be entered in a particular case, depriving that
35 detainee of any meaningful chance for judicial review.” Id.; see also Khalil v. Joyce,
No. 25-CV-01963, 2025 WL 1232369, at *30 (D.N.J. Apr. 29, 2025) (concluding that
§ 1252(b)(9) does not bar the petitioner’s constitutional claims because “a period
of delay while this case is pending before the immigration courts” is inconsistent
with Supreme Court precedent “that meaningful review of First Amendment
claims generally means rapid, prioritized review” (emphasis added)); Fort Wayne
Books, Inc. v. Indiana, 489 U.S. 46, 55 (1989) (determining that “refusal to grant
immediate review of petitioner’s [First Amendment] claims ‘might seriously erode
federal policy’” (emphasis added)).
Accordingly, the government has not established that § 1252(b)(9) likely
strips the district court of jurisdiction to hear Öztürk’s petition. For the same
reasons, we are unpersuaded by the government’s argument that § 1252(a)(5)
forecloses review of Öztürk’s petition. Section 1252(a)(5) bars district court review
“of an order of removal,” but no order of removal is at issue here. 8 U.S.C.
§ 1252(a)(5).
To the extent the government maintains, as it did before the district court,
that 8 U.S.C. § 1226(e) bars jurisdiction over Öztürk’s detention, this argument is
also unlikely to succeed. Section 1226(e) provides that the Secretary of Homeland
36 Security’s “discretionary judgment” regarding, among other things, the decision
to arrest and detain a noncitizen pending a decision on removal, “shall not be
subject to review.” 8 U.S.C. § 1226(e). But because § 1226(e) “ contains no explicit
provision barring habeas review,” the Supreme Court has held that its “clear text”
does not bar jurisdiction over a constitutional challenge to detention under § 1226.
Demore, 538 U.S. at 517. Likewise, this Court has held that § 1226(e) does not
foreclose jurisdiction over habeas petitions challenging detention pursuant to §
1226(a). Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020) (holding that
§ 1226(e) does not “limit habeas jurisdiction over constitutional claims or
questions of law” (quotation marks omitted)).
B. Irreparable Injury
The government argues that it suffers an irreparable injury “[a]ny time” it
is “enjoined by a court [from] effectuating statutes enacted by representatives of
its people.” Mot. at 19 (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)
(Roberts, C.J., in chambers)). We are not persuaded by this overbroad argument.
First, the district court’s order to transfer Öztürk from immigration custody in
Louisiana to immigration custody in Vermont in order to prepare for and attend
her bail and habeas petition hearing does not enjoin the government from
enforcing or “effectuating” any duly enacted law. In particular, Öztürk does not
37 seek to disrupt—and nothing prevents the government from continuing with—
the removal proceedings it has commenced. The government asserts that it would
face difficulties in arranging for Öztürk to appear for her immigration proceedings
in Louisiana remotely. Reply at 2. But the government has not disputed that it is
legally and practically possible for Öztürk to attend removal proceedings
remotely. 8 U.S.C. § 1229a(b)(2)(A)(iv) (providing that removal proceedings may,
in some circumstances, take place “through telephone conference”).In addition,
much of the government’s irreparable harm argument seems to rely upon its less-
than-convincing merits arguments. “[S]imply showing some possibility of
irreparable injury” is insufficient. Nken, 556 U.S. at 434 (quotation marks omitted).
Instead, the government must “demonstrate that irreparable injury is likely in the
absence of” its requested relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22
(2008).
Lastly, of course, if the government were to prevail on this appeal, Öztürk
would return to immigration custody in Louisiana. For this and the above reasons,
we hold that the government has failed to show an irreparable injury.
C. Balance of Equities
Finally, the balance of the equities decisively disfavors a stay. Permitting
Öztürk’s transfer will provide her ready access to legal and medical services,
38 address concerns about the conditions of her confinement, and expedite resolution
of this matter—all of which are required, as the court below noted, to proceed
expeditiously. See 28 U.S.C. § 2243; Ozturk, 2025 WL 1145250, at *25. At stake, too,
is Öztürk’s ability to participate meaningfully in her habeas proceedings. Inherent
in the term “habeas corpus” is the notion that the government is required to
produce the detainee in order to allow the court to examine the legality of her
detention. See 28 U.S.C. § 2243 (“[T]he person to whom the writ is directed shall
be required to produce at the hearing the body of the person detained.”); Johnson
v. Eisentrager, 339 U.S. 763, 778 (1950) (“A basic consideration in habeas corpus
practice is that the prisoner will be produced before the court. This is the crux of
the statutory scheme established by the Congress; indeed, it is inherent in the very
term ‘habeas corpus.’”); see also Ozturk, 2025 WL 1145250, at *22 (finding Öztürk’s
transfer to Vermont “would allow the Court to conduct appropriate fact‑finding,”
and would “facilitate her ability to work with her attorneys, coordinate the
appearance of witnesses, and generally present her habeas claims”). The
government’s contention that allowing Öztürk to participate meaningfully in
these proceedings “prioritizes the (improper) proceedings in Vermont over the
(proper) proceedings in Louisiana” is a particularly weak argument. Mot. at 20.
39 In addition, as the district court noted, the United States District Court for
the District of Massachusetts enjoined the government from moving Öztürk
“outside the District of Massachusetts without first providing advance notice of
the intended move.” Ozturk, 2025 WL 1145250, at *23 (quoting Dist. Ct. Dkt. ECF.
No. 3 at 2). The court in Massachusetts did so within an hour of Öztürk’s petition
being filed in order “to preserve the status quo.” Id. Although not technically
non-compliant, despite this order, the government moved Öztürk from Vermont
to Louisiana the next morning. The district court in Vermont ordered Öztürk’s
transfer in part to effectuate the district court in Massachusetts’s order, returning
Öztürk “to the status quo at the time of issuance” and in part “to ensure continued
respect for orders issued by Article III courts.” Id. at *24. Equity favors such a
determination.
While the government raises the specter of “irreparable injury” from the
transfer order because it would—evidently—suffer “logi[sti]cal difficulty,” and
because “micromanag[ing] how the Executive Branch . . . transfers
aliens . . . would severely undermine the workability of [the immigration]
system,” Mot. at 20, we are unpersuaded. Faced with such a conflict between the
government’s unspecific financial and administrative concerns on the one hand,
40 and the risk of substantial constitutional harm to Öztürk on the other, we have
little difficulty concluding “that the balance of hardships tips decidedly” in her
favor. Mitchell v. Cuomo, 748 F.2d 804, 808 (2d Cir. 1984).
IV. MANDAMUS RELIEF
The government asks this Court, in the alternative, to issue a writ of
mandamus and hold that the district court lacked authority to order Öztürk’s
transfer. “The remedy of mandamus is a drastic one, to be invoked only in
extraordinary situations.” Kerr v. U. S. Dist. Ct. for N. Dist. of California, 426 U.S.
394, 402 (1976). “We issue the writ only in exceptional circumstances amounting
to a judicial usurpation of power or a clear abuse of discretion.” In re Roman Cath.
Diocese of Albany, New York, Inc., 745 F.3d 30, 35 (2d Cir. 2014) (quotation marks
omitted); see also Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004).
Here, the government has shown no such exceptional circumstances. The
heart of the government’s argument is that the district court lacked jurisdiction.
The argument runs the government head into the “general rule that appellate
courts should avoid determining jurisdictional issues on a petition for
mandamus.” In re Ivy, 901 F.2d 7, 10 (2d Cir. 1990); see also Roche v. Evaporated Milk
Ass’n, 319 U.S. 21, 26 (1943) (holding that, when considering a petition for
41 mandamus, “appellate courts are reluctant to interfere with the decision of a lower
court on jurisdictional questions which it was competent to decide and which are
reviewable in the regular course of appeal”). We therefore decline to issue a writ
of mandamus.
* * *
For the reasons stated above, the government’s motion for a stay of the
transfer order requiring Öztürk’s transportation from immigration custody in
Louisiana to immigration custody in the District of Vermont is DENIED. The
government’s request for a writ of mandamus is also DENIED. The
administrative stay entered by this Court is hereby VACATED. Recognizing both
that the district court’s original transfer deadline has passed, along with the
practical and legal consequences of our decision for the parties, the government is
hereby ORDERED to comply with the district court’s transfer order within one
week of the date of this opinion. Accordingly, the district court’s April 18, 2025
Order is hereby amended as follows: “To support the Court’s resolution of these
issues, the Court orders that Ms. Öztürk be physically transferred to ICE custody
within the District of Vermont no later than May 14, 2025.” The district court may
amend its hearing schedule as it deems necessary in light of this order.
42 The parties are directed to confer with the Clerk of Court to set a briefing
schedule for the merits of the appeal.