But legal analysts said it also raised a series of questions over its constitutionality, including whether it violates rights to free speech and due process. Ozturk was here lawfully on a student visa, and although she had voiced support for the pro-Palestinian movement at Tufts, she was not known as a prominent leader, and was not accused of any violence or crimes.
The legal analysts said Trump’s application of immigration law allowing for the deportation of noncitizens who supported Palestinian causes has unleashed federal agents with broad powers to apprehend and detain people without saying why. They expect to see legal challenges that could make their way to the US Supreme Court.
At issue is whether the administration has the authority to unilaterally determine whether someone living here and engaging in First Amendment-protected activity such as protests creates “serious adverse foreign policy consequences” for the United States, without any judicial oversight. Legal analysts also pointed to the apprehension of Ozturk against her will, without any warrant or listed probable cause, as violating due process protections.
Multiple immigration attorneys said the “foreign policy consequences” rule the Trump administration is citing, which was intended to give the US the ability to respond to individualized, sensitive diplomatic cases, is vague and being abused.
“This is America,” said Boston-based immigration attorney Jeff Rubin, noting that Constitutional protections apply even to noncitizens. “The moment you step foot on our American soil you enjoy the benefit of our founding fathers’ Constitution and the Bill of Rights.”
Federal authorities have not cited their exact reasons for moving to deport Ozturk, but they generally have referenced her support for pro-Palestinian causes on campus, which included co-authoring an op-ed in the student newspaper demanding that Tufts recognize Palestinian genocide. As of Thursday, she remained in a holding facility in Louisiana as her lawyers seek her return to Massachusetts. The government has been ordered to respond to her lawyer’s request for her release by Friday.
The case is the latest of several across the country in which the Trump administration has openly targeted pro-Palestinian activists for deportation. Earlier this month, Mahmoud Khalil, a green-card holder studying at Columbia University, was arrested under a rarely-used, decades-old immigration rule. The rule, part of the wide-ranging Immigration Act of 1990, deems that the Secretary of State can order the removal of anyone who would have “potentially serious adverse foreign policy consequences for the United States.”
It’s not yet clear whether that same law is being applied to Ozturk. Asked about the Tufts student’s case on Thursday, Secretary of State Marco Rubio told reporters, “We gave you a visa to come and study and get a degree — not to become a social activist that tears up our university campuses. If we’ve given you a visa, and then you decide to do that, we’re going to take it away.”
But, “The Marco Rubio reason is something no one’s ever seen before,” said Heather Yountz, a Boston-based immigration attorney. She compared the way the administration is wielding immigration enforcement to “McCarthyism” — the aggressive hunt for communists in the 1950s — given how people are being arrested for unclear reasons.
The government’s argument, she said, appears to be: “You did something worthy of deportation because [we say so].”
Former immigration judge Andrew Arthur, now a fellow at the D.C.-based Center for Immigration Studies, which favors less immigration, said the one time the “foreign policy consequences” law was invoked that he can recall was in the late 1990s when a Mexican government official sought to flee his home country through the US. He was apprehended here and the the government intended to return him to Mexico. But that case was resolved without the man being deported, meaning there’s still scant legal precedent governing the law.
Arthur said he expects one of these new cases invoking this law to go to the Supreme Court. He believes, though, that the law is a valid avenue for the president to move forward with deportations, and Trump was elected on promises to undertake these types of moves.
“There are a large number of people within the US who look at the protests that have taken place in the US … with bewilderment,” Arthur said. Polling results, he said, show that many people don’t support campus activists who are “spray-painting buildings and breaking windows and keeping other kids from attending class.”
There is no indication Ozturk was involved in that type of conduct.
Immigration enforcement was a key platform of Trump’s return to office. In the days after he was sworn in in January, he issued an executive order instructing authorities “to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”
Immigration attorneys said Trump has indeed brought changes to immigration enforcement. In the past, they said, someone with a visa issue who’s not considered dangerous but was targeted for deportation would be served a notice to appear in immigration court at a later date. Typically, only serious issues involving criminal histories or national security threats would lead to detention.
But, “Them showing up with masks on their faces and taking you off to jail with no reason given is not the normal way of them telling you they’re revoking their visa,” Yountz said.
The quick removal of Ozturk to Louisiana makes it more difficult for her to get in touch with her lawyer and any other local contacts, infringing on her ability to advocate for herself — a violation of due process rights, said Boston-based immigration attorney Heather Arroyo.
“Taking someone into custody and shuffling them around is what’s impeding the process,” Arroyo said.
Other analysts questioned whether officials have justification to target Ozturk at all, under First Amendment free speech grounds.
Stuart M. Benjamin, a professor at Duke University School of Law, said it’s unclear whether the government alleges more serious allegations against Ozturk than what’s been disclosed. But if the op-ed she wrote is the sole basis for her deportation, then it will be a test case over whether non-citizens have the same free speech protections as US citizens.
“It all goes back to the question: Do aliens, noncitizens, have fewer First Amendment protections than US citizens do? And if so, how are you defining the extent of limited protections they have; are you saying they have no First Amendment protections at all, or limited protections?” he asked rhetorically. He said the courts have historically granted noncitizens the same rights to free speech.
He expects Ozturk’s lawyers to make the argument that under the statute cited by the government, she can’t be deported.
“Even if the statute allows for her visa to be revoked and her to be deported, the Constitution may not allow it,” he said.
And yet, he said, “If her deportation is successful, there is no question it will have a chilling effect on a whole range of immigrants who are in this country.”
Giulia McDonnell Nieto del Rio and Tal Kopan of the Globe staff contributed.
Sean Cotter can be reached at [email protected]. Follow him @cotterreporter. Shelley Murphy can be reached at [email protected]. Follow her @shelleymurph.