The Volokh Conspiracy
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Opinion Granting Bail to Rumeysa Ozturk (Lead Author of Op-Ed Urging Boycott of Israel)
Ozturk is here on a student visa, and she has been detained while the Trump Administration is trying to deport her.
From today's opinion by Judge William Sessions in Ozturk v. Trump (D. Vt.), providing the written explanation for a May 9 order granting bail to Ozturk [UPDATE: you can read Ozturk's op-ed here]:
To briefly summarize, Ms. Ozturk has argued that her arrest and detention are retaliation for her co-authorship of an op-ed in a student newspaper. The government has identified her op-ed, and potentially related associations, as the precipitating factor for her visa revocation. As the Court cited in its April 18, 2025, Opinion and Order, then-candidate Trump reportedly threatened to deport foreign students involved in campus protests. And Secretary of State Marco Rubio, in response to press inquiries about Ms. Ozturk's arrest, opined that Ms. Ozturk's activities "meet the standard of what I've just described to you: people that are supportive of movements that run counter to the foreign policy of the United States" and that detention was "basically asking them to leave the country."
Arrest and detention, let alone termination of status, are not a natural consequence of visa revocation. Ms. Ozturk has presented credible evidence to show that similarly situated individuals historically have not been detained following visa revocation or termination of status.
To date, the government has neither rebutted the argument that retaliation for Ms. Ozturk's op-ed was the motivation for her detention nor identified another specific reason for Ms. Ozturk's detention, arguing instead that such decisions are committed to the discretion of the executive branch. While it is uncontested that the government has discretion in this area, that discretion is not accompanied by the authority to violate the Constitution.
The Court need not decide at this stage whether Ms. Ozturk's detention actually constitutes a First Amendment violation. As the April 18 opinion established, Ms. Ozturk's op-ed carries all the hallmarks of protected speech on public issues, and it does not fall into any recognized exception…. The Court therefore concluded that Ms. Ozturk has presented, at the very least, a substantial claim of a First Amendment violation.
{The Court invites further briefing on the appropriate standard for First Amendment retaliation claims in civil immigration habeas proceedings prior to final disposition. In addition, the Court notes that a court in the District of Massachusetts recently found that plaintiffs in that case "plausibly alleged the existence of both an ideological-deportation policy targeting protected political speech and a more informal campaign of censorship through threats." The Court invites briefing on whether the potential existence of such a policy would instead implicate the First Amendment retaliation test in Lozman v. Riviera Beach (2018). Finally, the Court notes that, in similar litigation proceeding in other courts, the government has argued that non-citizens may not share the First Amendment protections of citizens, Bridges v. Wixon (1945) notwithstanding. The Court invites briefing on the nature and extent of this distinction, if any, in this case's context. contrast with criminal incarceration, civil immigration detention is not permissible for a punitive purpose.}
The court also relied on the Due Process Clause:
"Where a detainee presents evidence that her detention, though discretionary, is motivated by unconstitutional purposes in violation of the Due Process Clause, the Court may reasonably conclude the same in the absence of countervailing evidence." … Civil detention by the government of individuals like Ms. Ozturk who are undergoing removal proceedings is authorized by Congress in The government has argued that such detention is completely at the discretion of the government. However, that discretion may not be deployed for any purpose of the government's choosing. Detention is primarily permitted for two purposes: preventing danger to the community and ensuring an individual in proceedings does not abscond. Zadvydas v. Davis (2001). In contrast with criminal incarceration, civil immigration detention is not permissible for a punitive purpose.
The government could have demonstrated that Ms. Ozturk's detention was motivated by a desire to prevent a danger to the community or a flight risk. However, Ms. Ozturk has instead shown that her detention is likely motivated by improper purposes.
Ms. Ozturk argued that her detention is punishment for her op-ed, and that her punishment is intended to serve as a warning to other non-citizens who are contemplating public speech on issues of the day. The Court found that Ms. Ozturk has presented credible evidence to support her argument, including her own testimony describing her terror during her irregular arrest, statements by the Secretary of State describing the purpose of the government's actions, sworn declarations from immigration attorneys attesting to the unusual nature of Ms. Ozturk's case, and a sworn declaration from the Tufts University president describing the resulting climate of fear among the international members of the school community.
The Court need not conclude at this stage that Ms. Ozturk's arrest and detention are actually punitive in violation of her due process rights. However, for the purpose of Mapp, the Court found that Ms. Ozturk has demonstrated a substantial claim of a violation of due process.
The court also concluded that "extraordinary circumstances" supported bail (the standard required by Mapp v. Reno (2d Cir. 2001)):
First, the Court considered the unusual sequence of events that led to Ms. Ozturk's present detention in Louisiana. Not only was Ms. Ozturk arrested and transported out of Massachusetts in a striking manner, but she was further flown to Louisiana despite a court order issued on an emergency basis by a federal court in Massachusetts which was intended to preserve the status quo.
This Court previously criticized the government's response to the order issued on the evening of Ms. Ozturk's arrest, and ordered Ms. Ozturk's return to Vermont "in part to effectuate the district court in Massachusetts's order, returning Ozturk to the status quo at the time of issuance and in part to ensure continued respect for orders issued by Article III courts." The reviewing circuit court determined that "equity favors such a determination."
Needless to say, it is an extraordinary circumstance when an individual is transported across the country despite a court order. Second, the facts underlying Ms. Ozturk's substantial claims present an extraordinary circumstance. The government has not claimed that Ms. Ozturk violated any civil or criminal laws requiring her removal from the country. Instead, a year after Ms. Ozturk co-authored an op-ed in a campus newspaper, the government seemingly discovered the op-ed and exercised its discretion to revoke Ms. Ozturk's student visa, and then took further steps to terminate her status, arrest, and detain her.
In defense of these actions, the government has not provided anything beyond Ms. Ozturk's political speech. As Judge Crawford recently explained in a similar case, these are not unprecedented actions by the government, but they are nonetheless extraordinary.
Finally, Ms. Ozturk's declining health in custody provides another basis for finding extraordinary circumstances. The Court received testimony and affidavits expressing concern about Ms. Ozturk's conditions of confinement which appeared to be exacerbating her underlying medical conditions. The Court takes seriously the testifying physician's warning that Ms. Ozturk's asthma could be life-threatening if not properly managed.
Therefore, Ms. Ozturk's health now constitutes an additional extraordinary circumstance which warranted immediate release….
Ms. Ozturk's detention necessarily constitutes an infringement of her First Amendment rights and her right to liberty. While such an infringement may be justified if the government presented a legitimate purpose for it, see Jones v. Carolina Prisoners' Lab. Union, Inc. (1977), the government has not done so in this case. If the Court later finds that Ms. Ozturk's substantial claims are in fact proven claims, her detention will have been an unconstitutional deprivation with no public purpose or benefit. Meanwhile, Ms. Ozturk's continued detention restricts her ability to speak freely and potentially chills the speech of other non-citizens. For all these reasons, the Court found that bail was necessary to make the habeas remedy effective….
