By Guy Page

Seven of the eight federal judges who last week denied a U.S. government request regarding two immigrants, Rumeysa Ozturk and Mohsen Mahdawi, were appointed by Presidents Biden and Obama. 

The exception, a 2001 Bush appointee, was first named to the federal bench by President Bill Clinton. By contrast, both of the judges who backed the right of the government to detain the two immigrants were appointed by Pres. Trump. 

The U.S. 2nd Circuit Court of Appeals ruled September 19 not to grant a rare, full-court review (en banc) of preliminary rulings in the high-profile immigration cases involving Rümeysa Öztürk and Mohsen Mahdaw, two immigrants engaged in anti U.S. and Israel protests on college campuses. 

Ruling means fight over detainment goes to three-judge panel

The ruling to deny the government’s request for an ‘en banc’ (full court) review of earlier judicial motions means the legal fight over their arrests will move forward immediately to a standard three-judge panel for a final decision on the core issues. 

It is not known which three of the 27 2nd Circuit judges will be appointed to this panel. Whatever they decide will likely be appealed to the U.S. Supreme Court. 

Although the judges unanimously agreed to deny the full-court review, their opinions show a sharp disagreement over whether federal courts had jurisdiction to interfere with the government’s power to detain the students. Speaking broadly, judges appointed by President Trump believe they don’t. Judges appointed by Presidents Biden and Obama said the courts may interfere with the government’s detainment power.

Öztürk, graduate student on a visa, was arrested by armed officers and detained after writing an op-ed in support of Palestinian rights. A district court later ordered her physically transferred for a bail hearing, and she was subsequently released on bail. 

Mahdawi, a ‘green card’ lawful permanent resident and Columbia University undergraduate, was arrested by armed officers in April after a citizenship interview at the request of Secretary of State Marco Rubio, who said his pro-Palestine protests at Columbia were not in the interests of the United States. Later that month, A district court ordered him released on bail.

The U.S. government tried to stop these lower-court orders, arguing that federal courts should not be able to intervene at this stage of the immigration process.

Who the judges are and how they ruled

Arguing forcefully for the government’s right to detain were Judges Steven Menashi and Michael Park. According to his U.S. court website bio. Menashi was appointed to the U.S. Court of Appeals for the Second Circuit in 2019 – during the Trump ‘45 administration. Previously, he served as special assistant and associate counsel to the President in the White House and as acting general counsel at the U.S. Department of Education. He was assistant professor of law at Scalia Law School, George Mason University

Park was appointed to the U.S. Court of Appeals for the Second Circuit in May 2019. Upon graduation from law school in 2001, Judge Park served as a law clerk to then-Judge Samuel A. Alito, Jr. on the Third Circuit, for whom he also clerked on the Supreme Court during the 2008 Term. He served as an Attorney-Adviser in the George W. Bush administration’s Department of Justice.

Offering opinions supporting the judicial right to overrule the government detention order were:

Beth Robinson, appointed in November 2021, during the Biden administration. She served as an Associate Justice on the Vermont Supreme Court for nearly a decade. Robinson is perhaps best known for her advocacy in the 2000 Baker decision in which the Vermont Supreme Court in effect upheld the right to gay marriage.

Alison J. Nathan, appointed in March 2022, from 2009 to 2010 served in the Obama White House Counsel’s Office as an Associate White House Counsel and Special Assistant to the President.

Eunice Lee was appointed in 2021 by President Biden.

Myrna Pérez was appointed in 2021 by President Biden. From 2006 until her appointment, Judge Pérez served in various roles at the Brennan Center for Justice at the New York University (NYU) School of Law, most recently as the Director of their Voting Rights and Elections Program.

Sarah A. L. Merriam was appointed in 2022 by President Biden.

Maria Araujo Kahn, was appointed in 2023 by President Biden. Born in Angola, Africa, she immigrated to the United States at the age of ten, and is fluent in both Portuguese and Spanish.

Barrington D. Parker, first appointed to the federal bench by Pres. Bill Clinton, was appointed to the appeals court by Pres. George Bush in 2001. 

Susan L. Carney was appointed by Pres. Obama.