Öztürk v. Hyde

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, 

, 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, 

, 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, 

, at *11 (D. Mass.

Apr. 4, 2025); see also 

.

      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, 

, 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, 

. 

, 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, 

 (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.” 

 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., 

, 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, 

 (2004); see also 

. 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, 

. 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, 

, at *2 . ICE officers departed

Somerville with Öztürk at 5:49pm. 

 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


 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. 

       Öztürk’s counsel “repeatedly attempted to ascertain her location” in the

hours following her arrest. Ozturk, 

, 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, 

, at *2; Ozturk, 

,

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 

. Ozturk, 

, at *11.

       The government now argues that this transfer was improper.                     The

government is wrong. 

 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, 

. 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, 

 (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.” 

. 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. 

, 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,

 (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, 

. 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. 

 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, 

 (1885).          More

specifically, “the default rule is that the proper respondent is the warden of the

facility where the prisoner is being held.” Padilla, 

. However, in

cases where the petitioner “is held in an undisclosed location by an unknown

custodian, it is impossible to apply” this rule. 

 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, 

 (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, 

, 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, 

, 739–46

(2008). In any event, the plain text of 

, 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, 

, 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.” 

 (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,” 

 (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, 

 (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. 

 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, 

(a), and not in the sense of subject-matter jurisdiction of the District Court.”

Padilla, 

 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, 

 (2010) (quotation marks

and citation omitted); see also McNary v. Haitian Refugee Ctr., Inc., 

, 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, 

 (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. 

(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, 

, at *23 (quotation marks omitted). The district

court undeniably has an “inherent authority to protect [its] proceedings,” Degen v.

United States, 

 (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., 

 (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   

(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.” 

(a)(2)(B)(ii) (emphasis added). The government argues

that a different statute, 

(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, 

. 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, 

 (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.” 

(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, 

, 51 n.3 (2d Cir. 2013) (citing 

); see also 

.
                                            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., 

(1st Cir. 2007); cf., e.g., 

(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, 

 (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, 

 (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.” 

(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.” 

 (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, 

 (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, 

 (“[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. 

(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.”

(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”), 

 (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, 

 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.’”       

 at 482 (quoting 

(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, 

, 609 (1st Cir. 2023); see

also Parra v. Perryman, 

 (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, 

, 19 (2020)

(quoting AADC, 

); accord Jennings v. Rodriguez, 

, 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, 

 (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, 

 (“[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, 

(quotation marks omitted). Filing a Notice to Appear (“NTA”) in an immigration

court is the action that commences removal proceedings. See 

(a);

. 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, 

 (9th Cir. 2001) (quotation marks omitted); see also Michalski v. Decker, 

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, 

, 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, 

; see also Madu v.

U.S. Att’y Gen., 

 (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.” 

. 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. 

(a)(5), 1252(b)(9), and 1226(e)




7In a string-cite, the government also references this Circuit’s decision in Ragbir v.
Homan, 

 (2d Cir. 2019), vacated sub nom. Pham v. Ragbir, 

(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 

(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.” 

(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, 

 (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).” 

(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., 

, 1257 (11th Cir. 2020); see also

Mukantagara v. U.S. Dep’t of Homeland Sec., 

, 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, 

, 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, 

 (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, 

 (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, 

, 1057
(5th Cir. 2022) (same); Casa De Maryland v. U.S. Dep’t of Homeland Sec., 

 (4th Cir. 2019) (same); E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec., 

, 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, 

 (2d Cir. 2011) (discussing 

(a)(5)); see also Ruiz v. Mukasey, 

, 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., 

 (2d Cir. 1994); see also Hinds

v. Lynch, 

 (1st Cir. 2015) (citing Matter of C-, 

 (BIA 1992)); Arriaga v. Mukasey, 

 (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.”                 

(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 

(a); 

(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, 

, 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, 

 (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. 

(a)(5).

      To the extent the government maintains, as it did before the district court,

that 

(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.” 

(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, 

. 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, 

 (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, 

 (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, 

 (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., 

(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 

; Ozturk, 

, 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 

 (“[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, 

 (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, 

, 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, 

, 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.” 

 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, 

 (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, 

 (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., 

 (2d Cir. 2014) (quotation marks

omitted); see also Cheney v. U.S. Dist. Ct. for D.C., 

 (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, 

, 10 (2d Cir. 1990); see also Roche v. Evaporated Milk

Ass’n, 

 (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.




                                         43