Part 7 of 7
_______________
Notes:
1 Statement by President-elect Donald J. Trump announcing Department of Government Efficiency, The American Presidency Project (Nov. 12, 2024): To drive this kind of drastic change, the Department of Government Efficiency [“DOGE”] will provide advice and guidance from outside of Government, and will partner with the White House and Office of Management & Budget to drive large scale structural reform, and create an entrepreneurial approach to Government never seen before. Available at: https://www.presidency.ucsb.edu/documen ... -ramaswamy (emphasis added).
2 The White House, Fact Sheet: President Donald J. Trump Works to Remake America’s Federal Workforce (Feb. 11, 2025).
3 Available at: https://www.whitehouse.gov/wp-content/u ... g-Plan.pdf. In 2017, President Trump ordered notice and public comment on the creation of these reorganization recommendations: “The Director shall publish a notice in the Federal Register inviting the public to suggest improvements in the organization and functioning of the executive branch and shall consider the suggestions when formulating the proposed plan described in subsection (c) of this section.” Exec. Order No. 13781, Sec. 2(b).
4 Fox News, Elon Musk and DOGE team give exclusive look at how they're cutting waste, handle critics (Mar. 27, 2025), available at: https://www.foxnews.com/video/6370654825112. Transcript available at: https://www.rev.com/transcripts/musk-an ... rett-baier.
5 Available at: https://www.whitehouse.gov/remarks/2025 ... nity-show/.
6 Available at: https://www.whitehouse.gov/remarks/2025 ... t-meeting/.
7 The White House, Press Briefing by Press Secretary Karoline Leavitt, Deputy Chief of Staff Stephen Miller, National Economic Council Director Kevin Hassett, and National Security Advisor Mike Waltz (Feb. 20, 20250, available at: https://www.whitehouse.gov/remarks/2025 ... ike-waltz/.
8 Gov’t Exec., Trump orders agencies to plan for widespread layoffs and attrition-based hiring, (Feb. 11, 2025), available at: https://www.govexec.com/workforce/2025/ ... ng/402938/.
9 Fox News, Elon Musk and DOGE team give exclusive look at how they're cutting waste, handle critics (Mar. 27, 2025), available at: https://www.foxnews.com/video/6370654825112. Transcript available at: https://www.rev.com/transcripts/musk-an ... rett-baier.
10 Washington Post, Internal White House document details layoff plans across U.S. agencies (March 27, 2025), available at: https://www.washingtonpost.com/politics ... -agencies/.
11 See March 27, 2025 Press Release: HHS Announces Transformation to Make America Healthy Again, available at: https://www.hhs.gov/press-room/hhs-rest ... -doge.html.
12 Fed. News Network, IRS outlines plan to cut up to 40% of workforce, as tax filing season ends, (Apr. 15, 2025), available at: https://federalnewsnetwork.com/workforc ... ason-ends/. The IRS began RIFs with one office in March. Gov’t Exec., IRS sends RIF notices as it begins widespread layoffs (Apr. 4, 2025), available at: https://www.govexec.com/workforce/2025/ ... fs/404317/. On April 23, 2025, the IRS confirmed the RIFs are ongoing. Fed. News Network, IRS layoff notices to employees delayed by ‘glitches,’ (Apr. 23, 2025), available at: https://federalnewsnetwork.com/workforc ... -glitches/.
13 Reuters, EPA begins layoffs of environmental justice staff (Apr. 22, 2025), available at: https://www.reuters.com/business/world- ... 025-04-22/.
14 The Hill, VA Secretary: Cutting 80,000 is “our target,” (Mar. 10, 2025), available at: https://www.yahoo.com/news/va-secretary ... 15439.html.
15 Available at: https://www.hhs.gov/press-room/hhs-rest ... sheet.html.
16 Available at: http://www.heritage.org/constitution/#! ... per-clause.
17 Available at: https://web.archive.org/web/20170716192 ... house.gov/ files/omb/memoranda/2017/M-17-22.pdf.
18 Available at: https://www.whitehouse.gov/wp-content/u ... g-Plan.pdf.
19 Available at: https://www.congress.gov/bill/115th-con ... 7/subjects.
20 Available at: https://www.congress.gov/bill/115th-con ... -bill/3137.
21 Available at: https://www.congress.gov/115/crpt/srpt3 ... rpt381.pdf.
22 Available at: https://web.archive.org/web/20200716100 ... Update.pdf.
23 Available at: https://www.congress.gov/115/chrg/CHRG- ... g29974.pdf.
24 Available at: https://www.govinfo.gov/content/pkg/CHR ... g27394.pdf.
25 Available at: https://www.congress.gov/115/chrg/CHRG- ... g38105.pdf.
26 Available at: https://www.congress.gov/115/chrg/CHRG- ... g28405.pdf.
27 Available at: https://www.congress.gov/115/chrg/CHRG- ... g28932.pdf.
28 Available at: https://www.congress.gov/115/meeting/ho ... 180411.pdf.
29 Available at: https://www.congress.gov/115/chrg/CHRG- ... g31422.pdf.
30 Available at: https://www.congress.gov/115/chrg/CHRG- ... g40341.pdf.
31 Available at: https://www.congress.gov/115/chrg/CHRG- ... g31276.pdf.
32 Available at: https://www.congress.gov/115/chrg/CHRG- ... g34573.pdf.
33 Available at: https://www.congress.gov/115/chrg/CHRG- ... g30984.pdf.
34 Available at: https://www.congress.gov/115/chrg/CHRG- ... g32987.pdf.
35 Available at: https://www.congress.gov/116/chrg/CHRG- ... g36257.pdf.
36 Available at: https://docs.house.gov/meetings/GO/GO24 ... 190521.pdf.
37 Available at: https://www.congress.gov/116/chrg/CHRG- ... g37283.pdf.
38 Available at: https://www.congress.gov/116/chrg/CHRG- ... g37679.pdf.
40 Available at: https://federalnewsnetwork.com/opm-reor ... sa-merger/.
41 Available at: https://www.govexec.com/management/2018 ... rs/146894/.
42 Available at: https://www.govexec.com/management/2018 ... an/151218/.
43 Available at: https://www.whitehouse.gov/remarks/2025 ... nity-show/.
44 Available at: https://www.whitehouse.gov/presidential ... ng-freeze/.
45 Fox News, Elon Musk and DOGE team give exclusive look at how they're cutting waste, handle critics (Mar. 27, 2025), available at: https://www.foxnews.com/video/6370654825112. Transcript available at: https://www.rev.com/transcripts/musk-an ... rett-baier.
46 Carnegie Endowment for International Peace, Trump’s Move to Gut USAID Reveals the Crux of His Foreign Policy (Feb. 4, 2025), available at: https://carnegieendowment.org/emissary/ ... policy-why.
47 NBC News, Trump administration and Musk's DOGE plan to fire nearly all CFPB staff and wind down agency, employees say (Feb. 28, 2025), available at: https://www.nbcnews.com/business/busine ... rcna194217.
48 NY Times, DOGE Guts Agency That Organizes Community Service Programs (Apr. 17, 2025), available at: https://www.nytimes.com/2025/04/17/us/p ... vice.html; see also MSN, AmeriCorps Faces Major Blow As Elon Musk-Led DOGE Slashes $400 Million In Federal Grants (Apr. 26, 2025), available at: https://www.msn.com/en-in/news/world/am ... r-AA1DEjSo.
49 Available at: https://www.usa.gov/agency-index.
50 Supra, n.9.
51 Available at: https://www.washingtonpost.com/politics ... l-workers/.
52 Available at: https://www.washingtonpost.com/politics ... -agencies/.
53 Available at: https://www.ktnv.com/news/as-concerns-a ... ffect-them.
54 Letter from Jeffrey Merkley, Ranking Member of S. Comm. on the Budget, to Russell Vought, OMB Director (Apr. 7, 2025), available at: https://www.budget.senate.gov/imo/media ... _plans.pdf.
55 Supra, n.9.
56 https://www.hhs.gov/press-room/hhs-rest ... -doge.html
57 https://www.hhs.gov/press-room/hhs-rest ... sheet.html
58 NY Times, 10,000 Federal Health Workers to Be Laid Off (Mar. 27, 2025), available at: https://www.nytimes.com/2025/03/27/us/p ... fk-jr.html.
59 Bloomberg Law, DOL Puts Contractor Watchdog Employees on Leave as Layoffs Loom (Apr. 16, 2025), available at: https://news.bloomberglaw.com/daily-lab ... yoffs-loom.
60 Bloomberg Law, Lawmakers, Workers Push Chavez-DeRemer to Stop Labor DOGE Cuts (Apr. 14, 2025), available at: https://news.bloomberglaw.com/daily-lab ... -doge-cuts.
61 Gov’t Exec., SBA hit with more layoffs (Apr. 18, 2025), available at: https://www.govexec.com/workforce/2025/ ... fs/404682/.
62 U.S. Small Bus. Admin., Small Business Administration Announces Agency-Wide Reorganization (Mar. 21, 2025), available at: https://www.sba.gov/article/2025/03/21/ ... ganization (emphasis added).
63 Reuters, EPA begins layoffs of environmental justice staff (Apr. 22, 2025), available at: https://www.reuters.com/business/world- ... 025-04-22/.
64 Available at: https://www.nytimes.com/2025/03/17/clim ... ience.html.
65 Available at: https://www.environmentalprotectionnetw ... -Final.pdf.
66 Available at: https://www.govexec.com/workforce/2025/ ... ry/404371/.
67 Gov’t Exec., White House pitches layoffs, local office closures and program eliminations at USDA (Apr. 15, 2025), available at: https://www.govexec.com/management/2025 ... da/404580/.
68 MilitaryTimes, Almost 21,000 DOD employees approved to resign amid workforce cuts (Mar. 18, 2025), available at: https://www.militarytimes.com/news/pent ... orce-cuts/.
69 Fed. News Network, Energy Department extends hiring freeze, deems 43% workforce non-‘essential’ in reorganization plan (Apr. 4, 2025), available at: https://federalnewsnetwork.com/workforc ... tion-plan/.
70 Available at: https://apnews.com/article/energy-feder ... c608e1e8e7.
71 E&E News, Major reorganization looms for Interior (Apr. 10, 2025), available at: https://subscriber.politicopro.com/arti ... r-00283745.
72 See also The Hill, Interior Department gives broad powers to DOGE-tied official (Apr. 21, 2025).
73 Gov’t Exec., Interior solicits employees' resumes in preparation for widespread layoffs (Apr. 23, 2025), available at: https://www.govexec.com/workforce/2025/ ... fs/404786/.
74 Id.
75 E&E News, How many Interior jobs will be cut? Doug Burgum’s not sure, yet (Apr. 9, 2025), available at: https://www.eenews.net/articles/how-man ... -sure-yet/.
76 Wash. Post, Internal White House document details layoff plans across U.S. agencies (Mar. 27, 2025), available at: https://www.washingtonpost.com/politics ... -agencies/.
77 Available at: https://www.science.org/content/article ... ory-panels.
78 Gov’t Exec., SSA reorg plan contemplates field office closures, contradicting public statements (Apr. 7, 2025), available at: https://www.govexec.com/management/2025 ... ts/404369/.
79 Associated Press, A list of the Social Security offices across the US expected to close this year (Mar. 19, 2025), available at: https://apnews.com/article/social-secur ... 9bf90715ff.
80 Available at: https://blog.ssa.gov/social-security-an ... ion-plans/.
81 New York Times, Trump Administration Draft Order Calls for Drastic Overhaul of State Department (April 20, 2025), available at https://www.nytimes.com/2025/04/20/us/p ... rhaul.html.
82 U.S. State Dept., Building an America First State Department, available at: https://www.state.gov/building-an-ameri ... epartment/.
83 Available at: https://www.nbcnews.com/politics/trump- ... rcna202458.
84 Available at: https://statedept.substack.com/p/a-new- ... o-meet-the.
85 Fed. News Network, IRS outlines plan to cut up to 40% of workforce, as tax filing season ends (Apr. 15, 2025), available at: https://federalnewsnetwork.com/workforc ... ason-ends; see also CNBC, Tax attorneys say IRS has become a ‘zombie’ as agency cuts staff and halts audits of the wealthy (Apr. 17, 2025), available at: https://www.cnbc.com/2025/04/17/irs-sta ... althy.html.
86 Fed. News Network, Treasury plans to cut up to 50% of IRS enforcement staff, 20% of other components (Apr. 9, 2025), available at: https://federalnewsnetwork.com/reorgani ... omponents/.
87 Available at: https://www.afge.org/globalassets/docum ... 3-4-25.pdf.
88 The Hill, VA Secretary: Cutting 80,000 is “our target,” (Mar. 10, 2025), available at: https://www.yahoo.com/news/va-secretary ... 15439.html.
89 KTNV Las Vegas, As concerns among veterans rise, VA source shares details of workforce reduction plan (Apr. 11, 2025), available at: https://www.ktnv.com/news/as-concerns-a ... ffect-them.
Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Gates
Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
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Judge Says Trump Plan to Send Migrants to Libya Would Violate Court Order. The administration is facing pushback against its plan to begin deporting immigrants to the North African nation, whose rival governments said they have not agreed to accept them.
by Zolan Kanno-Youngs
Reporting from Washington
The New York Times
May 7, 2025
https://www.nytimes.com/2025/05/07/worl ... -deal.html
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
A federal judge said on Wednesday that the deportation of immigrants by the Trump administration to Libya would be in violation of a court order he issued in March, creating a legal impediment to what would be a sharp escalation of President Trump’s immigration crackdown.
The written order, by Judge Brian E. Murphy of Massachusetts, was in response to a request from immigration lawyers to block what they said was a planned U.S. military flight to transport a group of Laotian, Vietnamese and Filipino migrants to North Africa.
The lawyers, citing accounts from their migrant clients, who had been told they would be deported to Libya this week, argued that the removals would “blatantly” defy a previous order by Judge Murphy requiring migrants be provided at least 15 days to contest deportations to places other than their countries of origin if they had reason to fear being sent there.
The judge agreed.
“If there is any doubt — the Court sees none — the allegedly imminent removals, as reported by news agencies and as Plaintiffs seek to corroborate with class-member accounts and public information, would clearly violate this Court’s Order,” wrote Judge Murphy, a Biden appointee.
The filing came after U.S. officials said on Tuesday that the Trump administration was planning to transfer migrants to Libya on a U.S. military plane. They said the flight could have left as soon as Wednesday, depositing the migrants in a country that has been racked with conflict and divided for years between two hostile administrations.
But after the plans were made public in news reports on Tuesday evening, the administration faced pushback. Libya’s rival governments both denied on Wednesday that they had agreed to receive deported immigrants from the United States, saying this would violate the North African nation’s sovereignty.
It was unclear on Wednesday afternoon whether the Trump administration would move ahead with the flight to Libya. Mr. Trump did not directly answer a question about deportations to the nation on Wednesday. White House officials declined to comment on Judge Murphy’s order or deportation flights to Libya.
The decision to move ahead with the deportations to Libya would be striking, even for an administration that has already sent hundreds of migrants to a terrorism prison in El Salvador.
Libya operates numerous detention facilities for migrants that Amnesty International branded a “hellscape” in a 2021 report, saying it had found evidence of sexual violence against both adult and child prisoners.
But Mr. Trump’s aides hope such deportations will spread fear among undocumented immigrants still in the United States and encourage them to leave voluntarily.
The number of detainees and nationalities of those at risk of being sent to Libya remained unclear. But in recent days, the Trump administration had pushed Libya to accept migrants from various nations, according to an administration official familiar with the matter.
The push by the United States included a proposal for Libya to accept more than two dozen detainees from other nations, the official said. The agreement has not been finalized.
In court filings on Wednesday, immigration lawyers said they had heard from migrants detained in South Texas who were told by immigration officials that they needed to sign a document agreeing to be deported to Libya.
“When they all refused, they were each put in a separate room and cuffed in (basically, solitary) in order to get them to sign it,” wrote Trina Realmuto, a lawyer with the National Immigration Litigation Alliance.
Another lawyer heard from a Laotian man who learned he might be deported to Saudi Arabia or Libya and was then moved out of the detention center in Pearsall, Texas.
Ms. Realmuto and other lawyers argued the deportations would violate a temporary order issued by Judge Murphy in March requiring the government to give migrants who have a “final order of removal” at least 15 days to contest deportation to so-called third-party nations.
“Any Class Member who is removed to Libya faces a strong likelihood of imprisonment followed by torture and even disappearance or death,” Ms. Realmuto said. “Indeed, given Libya’s human rights record, it is inconceivable that Class Members from other countries would ever agree to removal to Libya, but instead would uniformly seek protection from being removed to Libya.”
The Trump administration has continued to deport people to so-called third-party countries, despite Judge Murphy’s previous order. The administration for example has continued to send Venezuelans to a terrorism prison in El Salvador — although those cases have been challenged on another legal basis: because the Venezuelans were expelled from the United States under an 18th-century wartime law known as the Alien Enemies Act.
The administration has defended the removals, saying they do not violate the court order because Judge Murphy’s ruling applies only to officials in the Department of Homeland Security and those Venezuelan detainees were sent by officials in the Defense Department.
The administration appeared to be using the same playbook as they planned to send migrants to Libya on a military plane. But Judge Murphy also warned last month that his order applied to every federal agency. Each one, he said, including the Pentagon, needed to provide sufficient notice to migrants before removing them to a third nation.
Erika Solomon, Islam Al-Atrash, Hamed Aleaziz and Alan Feuer contributed reporting.
Zolan Kanno-Youngs is a White House correspondent for The Times, covering President Trump and his administration.
by Zolan Kanno-Youngs
Reporting from Washington
The New York Times
May 7, 2025
https://www.nytimes.com/2025/05/07/worl ... -deal.html
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
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D.V.D. v. U.S. Department of Homeland Security (1:25-cv-10676)
District Court, D. Massachusetts
Last Updated: May 7, 2025, 8:57 p.m.
Assigned To: Brian E. Murphy
https://www.courtlistener.com/docket/69 ... c#entry-86
93. May 7, 2025. Judge Brian E. Murphy: ELECTRONIC ORDER - Based on DHS's representations that DoD has been conducting third country removals, allegedly without any involvement of DHS, the Court ORDERS that each party will submit a memorandum of no more than ten pages by May 14, 2025, addressing whether DoD should be joined as a party in this case. Any response, or no more than five pages, should be filed by May 19, 2025.(BIB) (Entered: 05/07/2025)
92. May 7, 2025. Judge Brian E. Murphy: ELECTRONIC ORDER - After reviewing the parties' proposed discovery plans, the Court ORDERS that: (1) the parties will conduct expedited discovery limited to the issues of (a) the scope and timing of discovery related to the factual circumstances surrounding the removal of the four alleged class members identified in Defendants' April 23, 2025 response (Dkt. 72) that occurred after the issuance of this Court's temporary restraining order on March 28, 2025; (b) the relationship between the Department of Homeland Security and the Department of Defense, including, but not limited to, each agency's role with regards to removals, the management of Guantanamo Bay, and the March 7, 2025 memorandum of understanding between the two agencies; and (c) the facts in the declaration of Tracy J. Huettl (Dkt. 72-1); (2) any deposition notices must be served by May 12, 2025; (3) each side will be limited to twenty-five Requests for Admission, twenty-five Interrogatories, and two sets of Requests for Production, issued by May 14, 2025; (4) any objection, motion to quash, or motion for a protective order must be made within fourteen days of receipt of the discovery request or subpoena, and each request and subpoena should reference this time limit; (5) all responses to requests for production of documents, interrogatories, and admissions shall be completed within thirty days of receipt of the request; and (6) depositions shall be completed by June 26, 2025. (Entered: 05/07/2025)
91. May 7, 2025. Judge Brian E. Murphy: MEMORANDUM AND ORDER ON 89 PLAINTIFFS' MOTION FOR EMERGENCY RELIEF...Accordingly, the Court construes Plaintiffs' motion as one for clarification...If there is any doubt - the Court sees none - the allegedly imminent removals, as reported by news agencies and as Plaintiffs seek to corroborate with class-member accounts and public information, would clearly violate this Court's Order. (BIB) (Entered: 05/07/2025) Order on Motion for TRO
90. May 7, 2025. AFFIDAVIT of Trina Realmuto re 89 Emergency MOTION for Temporary Restraining Order by D.V.D., E.F.D., M.M., O.C.G.. (Attachments: # 1 Exhibit A - Media Articles, # 2 Exhibit B - Dan and Nguyen Emails, # 3 Exhibit C - TRLA Emails, # 4 Exhibit D - Sinodis Emails, # 5 Exhibit E - Counsel Emails, # 6 Exhibit F - X Post)(Realmuto, Trina) (Entered: 05/07/2025). Affidavit. Exhibit A - Media Articles. Exhibit B - Dan and Nguyen Emails. Exhibit C - TRLA Emails. Exhibit D - Sinodis Emails. Exhibit E - Counsel Emails. Exhibit F - X Post. May 7, 2025. Order
89. May 7, 2025. Emergency MOTION for Temporary Restraining Order by D.V.D., E.F.D., M.M., O.C.G.. (Attachments: # 1 Text of Proposed Order)(Realmuto, Trina) (Entered: 05/07/2025)
A federal judge said on Wednesday that the deportation of immigrants by the Trump administration to Libya would be in violation of a court order he issued in March, creating a legal impediment to what would be a sharp escalation of President Trump’s immigration crackdown.
The written order, by Judge Brian E. Murphy of Massachusetts, was in response to a request from immigration lawyers to block what they said was a planned U.S. military flight to transport a group of Laotian, Vietnamese and Filipino migrants to North Africa.
The lawyers, citing accounts from their migrant clients, who had been told they would be deported to Libya this week, argued that the removals would “blatantly” defy a previous order by Judge Murphy requiring migrants be provided at least 15 days to contest deportations to places other than their countries of origin if they had reason to fear being sent there.
The judge agreed.
“If there is any doubt — the Court sees none — the allegedly imminent removals, as reported by news agencies and as Plaintiffs seek to corroborate with class-member accounts and public information, would clearly violate this Court’s Order,” wrote Judge Murphy, a Biden appointee.
The filing came after U.S. officials said on Tuesday that the Trump administration was planning to transfer migrants to Libya on a U.S. military plane. They said the flight could have left as soon as Wednesday, depositing the migrants in a country that has been racked with conflict and divided for years between two hostile administrations.
But after the plans were made public in news reports on Tuesday evening, the administration faced pushback. Libya’s rival governments both denied on Wednesday that they had agreed to receive deported immigrants from the United States, saying this would violate the North African nation’s sovereignty.
It was unclear on Wednesday afternoon whether the Trump administration would move ahead with the flight to Libya. Mr. Trump did not directly answer a question about deportations to the nation on Wednesday. White House officials declined to comment on Judge Murphy’s order or deportation flights to Libya.
The decision to move ahead with the deportations to Libya would be striking, even for an administration that has already sent hundreds of migrants to a terrorism prison in El Salvador.
Libya operates numerous detention facilities for migrants that Amnesty International branded a “hellscape” in a 2021 report, saying it had found evidence of sexual violence against both adult and child prisoners.
But Mr. Trump’s aides hope such deportations will spread fear among undocumented immigrants still in the United States and encourage them to leave voluntarily.
The number of detainees and nationalities of those at risk of being sent to Libya remained unclear. But in recent days, the Trump administration had pushed Libya to accept migrants from various nations, according to an administration official familiar with the matter.
The push by the United States included a proposal for Libya to accept more than two dozen detainees from other nations, the official said. The agreement has not been finalized.
In court filings on Wednesday, immigration lawyers said they had heard from migrants detained in South Texas who were told by immigration officials that they needed to sign a document agreeing to be deported to Libya.
“When they all refused, they were each put in a separate room and cuffed in (basically, solitary) in order to get them to sign it,” wrote Trina Realmuto, a lawyer with the National Immigration Litigation Alliance.
Another lawyer heard from a Laotian man who learned he might be deported to Saudi Arabia or Libya and was then moved out of the detention center in Pearsall, Texas.
Ms. Realmuto and other lawyers argued the deportations would violate a temporary order issued by Judge Murphy in March requiring the government to give migrants who have a “final order of removal” at least 15 days to contest deportation to so-called third-party nations.
“Any Class Member who is removed to Libya faces a strong likelihood of imprisonment followed by torture and even disappearance or death,” Ms. Realmuto said. “Indeed, given Libya’s human rights record, it is inconceivable that Class Members from other countries would ever agree to removal to Libya, but instead would uniformly seek protection from being removed to Libya.”
The Trump administration has continued to deport people to so-called third-party countries, despite Judge Murphy’s previous order. The administration for example has continued to send Venezuelans to a terrorism prison in El Salvador — although those cases have been challenged on another legal basis: because the Venezuelans were expelled from the United States under an 18th-century wartime law known as the Alien Enemies Act.
The administration has defended the removals, saying they do not violate the court order because Judge Murphy’s ruling applies only to officials in the Department of Homeland Security and those Venezuelan detainees were sent by officials in the Defense Department.
The administration appeared to be using the same playbook as they planned to send migrants to Libya on a military plane. But Judge Murphy also warned last month that his order applied to every federal agency. Each one, he said, including the Pentagon, needed to provide sufficient notice to migrants before removing them to a third nation.
Erika Solomon, Islam Al-Atrash, Hamed Aleaziz and Alan Feuer contributed reporting.
Zolan Kanno-Youngs is a White House correspondent for The Times, covering President Trump and his administration.
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Thu May 08, 2025 8:58 pm
WAR CRIMES Prosecutor MAKES HIS MOVE against Trump
MeidasTouch
May 7, 2025 Legal AF Podcast
A US war crimes prosecutor and US Army veteran Eric Iverson has no choice but to file a new federal lawsuit against Trump and his Administration because Trump’s putting his employer, the International Criminal Court and its Chief Prosecutor on a blacklist to block its assets, and ban people from providing services to it is so over broad, that Iverson can’t do his job to go after bad guys in Darfur of all places. Michael Popok looks carefully at Trump’s Executive Order and explains why this suit should be yet another loss for the Trump Administration.
*************************
Executive Order 14203 of February 6, 2025
Imposing Sanctions on the International Criminal Court
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.) (NEA), section 212(f) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f)), and section 301 of title 3, United States Code,
I, DONALD J. TRUMP, President of the United States of America, find that the International Criminal Court (ICC), as established by the Rome Statute, has engaged in illegitimate and baseless actions targeting America and our close ally Israel. The ICC has, without a legitimate basis, asserted jurisdiction over and opened preliminary investigations concerning personnel of the United States and certain of its allies, including Israel, and has further abused its power by issuing baseless arrest warrants targeting Israeli Prime Minister Benjamin Netanyahu and Former Minister of Defense Yoav Gallant. The ICC has no jurisdiction over the United States or Israel, as neither country is party to the Rome Statute or a member of the ICC. Neither country has ever recognized the ICC's jurisdiction, and both nations are thriving democracies with militaries that strictly adhere to the laws of war. The ICC's recent actions against Israel and the United States set a dangerous precedent, directly endangering current and former United States personnel, including active service members of the Armed Forces, by exposing them to harassment, abuse, and possible arrest. This malign conduct in turn threatens to infringe upon the sovereignty of the United States and undermines the critical national security and foreign policy work of the United States Government and our allies, including Israel. Furthermore, in 2002, the Congress enacted the American Servicemembers' Protection Act of 2002 (22 U.S.C. 7421 et seq.) to protect United States military personnel, United States officials, and officials and military personnel of certain allied countries against criminal prosecution by an international criminal court to which the United States is not party, stating, “In addition to exposing members of the Armed Forces of the United States to the risk of international criminal prosecution, the Rome Statute creates a risk that the President and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court.” (22 U.S.C. 7421(9)).
The United States unequivocally opposes and expects our allies to oppose any ICC actions against the United States, Israel, or any other ally of the United States that has not consented to ICC jurisdiction. The United States remains committed to accountability and to the peaceful cultivation of international order, but the ICC and parties to the Rome Statute must respect the decisions of the United States and other countries not to subject their personnel to the ICC's jurisdiction, consistent with their respective sovereign prerogatives.
The United States will impose tangible and significant consequences on those responsible for the ICC's transgressions, some of which may include the blocking of property and assets, as well as the suspension of entry into the United States of ICC officials, employees, and agents, as well as their immediate family members, as their entry into our Nation would be detrimental to the interests of the United States.
I therefore determine that any effort by the ICC to investigate, arrest, detain, or prosecute protected persons, as defined in section 8(d) of this order, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to address that threat. I hereby determine and order:
Section 1 . (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:
(i) the person listed in the Annex to this order; and
(ii) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General:
(A) to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person's country of nationality;
(B) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity in subsection (a)(ii)(A) of this section or any person whose property or interests in property are blocked pursuant to this order; or
(C) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property or interests in property are blocked pursuant to this order.
(b) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted before the date of this order.
Sec. 2 . I hereby determine that the making of donations of the types of articles specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to section 1 of this order would seriously impair my ability to address the national emergency declared in this order, and I hereby prohibit such donations as provided by section 1 of this order.
Sec. 3 . The prohibitions in section 1(a) of this order include:
(a) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to section 1 of this order; and
(b) the receipt of any contribution or provision of funds, goods, or services from any such person.
Sec. 4 . The unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in section 1 of this order, as well as immediate family members of such aliens, or aliens determined by the Secretary of State to be employed by, or acting as an agent of, the ICC, would be detrimental to the interests of the United States, and the entry of such persons into the United States, as immigrants or nonimmigrants, is hereby suspended, except where the Secretary of State determines that the entry of the person into the United States would not be contrary to the interests of the United States, including when the Secretary of State so determines, based on a recommendation of the Attorney General, that the person's entry would further important United States law enforcement objectives. In exercising this responsibility, the Secretary of State shall consult with the Secretary of Homeland Security on matters related to admissibility or inadmissibility within the authority of the Secretary of Homeland Security. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions). The Secretary of State shall have the responsibility for implementing this section pursuant to such conditions and procedures as the Secretary of State has established or may establish pursuant to Proclamation 8693.
Sec. 5 . Within 60 days of the date of this order, the Secretary of the Treasury, in consultation with the Secretary of State, shall submit to the President a report on additional persons that should be included within the scope of section 1 of this order.
Sec. 6 . (a) Any transaction that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited.
(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.
Sec. 7 . Nothing in this order shall prohibit transactions for the conduct of the official business of the Federal Government by employees, grantees, or contractors thereof.
Sec. 8 . For the purposes of this order:
(a) the term “person” means an individual or entity;
(b) the term “entity” means a government or instrumentality of such government, partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;
(c) the term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including a foreign branch, subsidiary, or employee of such entity), or any person lawfully in the United States;
(d) the term “protected person” means:
(i) any United States person, unless the United States provides formal consent to ICC jurisdiction over that person or becomes a state party to the Rome Statute, including:
(A) current or former members of the Armed Forces of the United States;
(B) current or former elected or appointed officials of the United States Government; and
(C) any other person currently or formerly employed by or working on behalf of the United States Government; and
(ii) any foreign person that is a citizen or lawful resident of an ally of the United States that has not consented to ICC jurisdiction over that person or is not a state party to the Rome Statute, including:
(A) current or former members of the armed forces of such ally of the United States;
(B) current or former elected or appointed government officials of such ally of the United States; and
(C) any other person currently or formerly employed by or working on behalf of such a government;
(e) the term “ally of the United States” means:
(i) a government of a member country of the North Atlantic Treaty Organization; or
(ii) a government of a “major non-NATO ally,” as that term is defined by section 2013(7) of the American Servicemembers' Protection Act of 2002 (22 U.S.C. 7432(7));
(f) the term “immediate family member” means a spouse or child;
(g) the term “alien” has the meanings given to the term in section 101(a)(3) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1101(a)(3)); and
(h) the term “foreign person” means a person that is not a United States person.
Sec. 9 . For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to section 1 of this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order.
Sec. 10 . The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including adopting rules and regulations, and to employ all powers granted to the President by IEEPA as may be necessary to implement this order. The Secretary of the Treasury may, consistent with applicable law, redelegate any of these functions within the Department of the Treasury. All executive departments and agencies of the United States shall take all appropriate measures within their authority to implement this order.
Sec. 11 . The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to submit recurring and final reports to the Congress on the national emergency declared in this order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and section 204(c) of IEEPA (50 U.S.C. 1703(c)).
Sec. 12 . (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE,
February 6, 2025.
Donald J. Trump
****************************
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIC IVERSON,
Oude Waalsdorperweg 10 2597 AK
The Hague
The Netherlands
Plaintiff,
v.
DONALD J. TRUMP, President,
1600 Pennsylvania Avenue NW
Washington, DC 20500,
PAMELA BONDI, Attorney General,
950 Pennsylvania Avenue NW
Washington, DC 20530,
SCOTT BESSENT, Secretary of the Treasury,
1500 Pennsylvania Avenue NW
Washington, DC 20220,
MARCO RUBIO, Secretary of State,
2201 C Street NW
Washington, DC 20451,
Defendants.
CASE NO: 25-1353
COMPLAINT
DATE: May 5, 2025
MeidasTouch
May 7, 2025 Legal AF Podcast
27. Every administration from the George W. Bush Administration to the present administration has supported the prosecution of those culpable for genocide, war crimes, and crimes against humanity in Darfur before the ICC. On January 7, 2025, Secretary of State Antony Blinken found the conflict in Sudan “has resulted in the world’s largest humanitarian catastrophe, leaving 638,000 Sudanese experiencing the worst famine in Sudan’s recent history, over 30 million people in need of humanitarian assistance, and tens of thousands dead.” Press Statement of Secretary of State Antony Blinken, Genocide Determination in Sudan and Imposing Accountability Measures, January 7, 2025.1 He also concluded that “war crimes,” “crimes against humanity and ethnic cleansing” had been committed in Sudan, culminating in a formal determination of genocide in Sudan and the announcement of various accountability measures. Id....
65. EO 14203 prohibits Mr. Iverson and others like him from engaging in speech and advocacy that Defendants determine constitutes the provision of services to Karim Khan, the Prosecutor for the ICC and the head of the OTP. Mr. Iverson wishes to continue pursuing his investigational and prosecutorial mandates in Darfur at the direction of the OTP but has been chilled from doing so because of the substantial risk that he will be penalized for providing services “for the benefit of” Prosecutor Khan.
https://storage.courtlistener.com/recap ... 31.1.0.pdf
A US war crimes prosecutor and US Army veteran Eric Iverson has no choice but to file a new federal lawsuit against Trump and his Administration because Trump’s putting his employer, the International Criminal Court and its Chief Prosecutor on a blacklist to block its assets, and ban people from providing services to it is so over broad, that Iverson can’t do his job to go after bad guys in Darfur of all places. Michael Popok looks carefully at Trump’s Executive Order and explains why this suit should be yet another loss for the Trump Administration.
*************************
Executive Order 14203 of February 6, 2025
Imposing Sanctions on the International Criminal Court
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.) (NEA), section 212(f) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f)), and section 301 of title 3, United States Code,
I, DONALD J. TRUMP, President of the United States of America, find that the International Criminal Court (ICC), as established by the Rome Statute, has engaged in illegitimate and baseless actions targeting America and our close ally Israel. The ICC has, without a legitimate basis, asserted jurisdiction over and opened preliminary investigations concerning personnel of the United States and certain of its allies, including Israel, and has further abused its power by issuing baseless arrest warrants targeting Israeli Prime Minister Benjamin Netanyahu and Former Minister of Defense Yoav Gallant. The ICC has no jurisdiction over the United States or Israel, as neither country is party to the Rome Statute or a member of the ICC. Neither country has ever recognized the ICC's jurisdiction, and both nations are thriving democracies with militaries that strictly adhere to the laws of war. The ICC's recent actions against Israel and the United States set a dangerous precedent, directly endangering current and former United States personnel, including active service members of the Armed Forces, by exposing them to harassment, abuse, and possible arrest. This malign conduct in turn threatens to infringe upon the sovereignty of the United States and undermines the critical national security and foreign policy work of the United States Government and our allies, including Israel. Furthermore, in 2002, the Congress enacted the American Servicemembers' Protection Act of 2002 (22 U.S.C. 7421 et seq.) to protect United States military personnel, United States officials, and officials and military personnel of certain allied countries against criminal prosecution by an international criminal court to which the United States is not party, stating, “In addition to exposing members of the Armed Forces of the United States to the risk of international criminal prosecution, the Rome Statute creates a risk that the President and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court.” (22 U.S.C. 7421(9)).
The United States unequivocally opposes and expects our allies to oppose any ICC actions against the United States, Israel, or any other ally of the United States that has not consented to ICC jurisdiction. The United States remains committed to accountability and to the peaceful cultivation of international order, but the ICC and parties to the Rome Statute must respect the decisions of the United States and other countries not to subject their personnel to the ICC's jurisdiction, consistent with their respective sovereign prerogatives.
The United States will impose tangible and significant consequences on those responsible for the ICC's transgressions, some of which may include the blocking of property and assets, as well as the suspension of entry into the United States of ICC officials, employees, and agents, as well as their immediate family members, as their entry into our Nation would be detrimental to the interests of the United States.
I therefore determine that any effort by the ICC to investigate, arrest, detain, or prosecute protected persons, as defined in section 8(d) of this order, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to address that threat. I hereby determine and order:
Section 1 . (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:
(i) the person listed in the Annex to this order; and
(ii) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General:
(A) to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person's country of nationality;
(B) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity in subsection (a)(ii)(A) of this section or any person whose property or interests in property are blocked pursuant to this order; or
(C) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property or interests in property are blocked pursuant to this order.
(b) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted before the date of this order.
Sec. 2 . I hereby determine that the making of donations of the types of articles specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to section 1 of this order would seriously impair my ability to address the national emergency declared in this order, and I hereby prohibit such donations as provided by section 1 of this order.
Sec. 3 . The prohibitions in section 1(a) of this order include:
(a) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to section 1 of this order; and
(b) the receipt of any contribution or provision of funds, goods, or services from any such person.
Sec. 4 . The unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in section 1 of this order, as well as immediate family members of such aliens, or aliens determined by the Secretary of State to be employed by, or acting as an agent of, the ICC, would be detrimental to the interests of the United States, and the entry of such persons into the United States, as immigrants or nonimmigrants, is hereby suspended, except where the Secretary of State determines that the entry of the person into the United States would not be contrary to the interests of the United States, including when the Secretary of State so determines, based on a recommendation of the Attorney General, that the person's entry would further important United States law enforcement objectives. In exercising this responsibility, the Secretary of State shall consult with the Secretary of Homeland Security on matters related to admissibility or inadmissibility within the authority of the Secretary of Homeland Security. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions). The Secretary of State shall have the responsibility for implementing this section pursuant to such conditions and procedures as the Secretary of State has established or may establish pursuant to Proclamation 8693.
Sec. 5 . Within 60 days of the date of this order, the Secretary of the Treasury, in consultation with the Secretary of State, shall submit to the President a report on additional persons that should be included within the scope of section 1 of this order.
Sec. 6 . (a) Any transaction that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited.
(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.
Sec. 7 . Nothing in this order shall prohibit transactions for the conduct of the official business of the Federal Government by employees, grantees, or contractors thereof.
Sec. 8 . For the purposes of this order:
(a) the term “person” means an individual or entity;
(b) the term “entity” means a government or instrumentality of such government, partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;
(c) the term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including a foreign branch, subsidiary, or employee of such entity), or any person lawfully in the United States;
(d) the term “protected person” means:
(i) any United States person, unless the United States provides formal consent to ICC jurisdiction over that person or becomes a state party to the Rome Statute, including:
(A) current or former members of the Armed Forces of the United States;
(B) current or former elected or appointed officials of the United States Government; and
(C) any other person currently or formerly employed by or working on behalf of the United States Government; and
(ii) any foreign person that is a citizen or lawful resident of an ally of the United States that has not consented to ICC jurisdiction over that person or is not a state party to the Rome Statute, including:
(A) current or former members of the armed forces of such ally of the United States;
(B) current or former elected or appointed government officials of such ally of the United States; and
(C) any other person currently or formerly employed by or working on behalf of such a government;
(e) the term “ally of the United States” means:
(i) a government of a member country of the North Atlantic Treaty Organization; or
(ii) a government of a “major non-NATO ally,” as that term is defined by section 2013(7) of the American Servicemembers' Protection Act of 2002 (22 U.S.C. 7432(7));
(f) the term “immediate family member” means a spouse or child;
(g) the term “alien” has the meanings given to the term in section 101(a)(3) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1101(a)(3)); and
(h) the term “foreign person” means a person that is not a United States person.
Sec. 9 . For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to section 1 of this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order.
Sec. 10 . The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including adopting rules and regulations, and to employ all powers granted to the President by IEEPA as may be necessary to implement this order. The Secretary of the Treasury may, consistent with applicable law, redelegate any of these functions within the Department of the Treasury. All executive departments and agencies of the United States shall take all appropriate measures within their authority to implement this order.
Sec. 11 . The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to submit recurring and final reports to the Congress on the national emergency declared in this order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and section 204(c) of IEEPA (50 U.S.C. 1703(c)).
Sec. 12 . (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE,
February 6, 2025.
Donald J. Trump
****************************
IVERSON v. TRUMP (1:25-cv-01353)
District Court, District of Columbia
Last Updated: May 8, 2025, 11:51 a.m.
Assigned To: Christopher Reid Cooper
https://www.courtlistener.com/docket/70 ... n-v-trump/
Iverson v. Trump. Case No. (1:25-cv-01353). Complaint. 2025-05-05
Overview: A U.S. citizen who is the lead prosecutor for cases in the International Criminal Court (ICC) against individuals involved with mass atrocities in Darfur is challenging an Executive Order (EO) imposing sanctions on the ICC and the head of the ICC Office of the Prosecutor (OTP). He asserts that the sanctions impose overbroad sanctions that prevent him from conducting his work and violate his First Amendment right to provide legal advice and evidence, as well as exceeding the statutory limits that Congress has imposed on the President’s use of sanctions.
Case Summary: On February 6, 2025, President Trump issued EO 14203, “Imposing Sanctions on the International Criminal Court,” which stated that “any effort by the ICC to investigate, arrest, detain, or prosecute protected persons” constitutes a threat to the national security of the United States. The EO authorized blocking sanctions to counter any ICC actions against protected persons, defined as a national of the US, Israel or any other “ally of the United States”, which is in turn defined as a “major non-NATO ally” (MNNA). In addition, the EO designated Karim Khan, the Prosecutor and head of the Office of the Prosecutor (OTP) of the ICC, a Specially Designated National (SDN) and thus subject to sanctions under the International Emergency Economic Powers Act (IEEPA). The EO prohibits all US citizens, permanent residents, and companies from providing a SDN with services and material support, directly or indirectly, on pain of significant civil and criminal penalties.
Plaintiff is a U.S. citizen and attorney who has been a prosecutor in the ICC since 2010. He is presently the lead prosecutor in cases supported by the United States against individuals accused of committing war crimes, genocide, and crimes against humanity in the Darfur region of Sudan. Plaintiff alleges that although he does not work on any investigation involving protected persons or a MNNA, the EO and the designation of the ICC as an SDN directly impairs, if not totally prohibits, him from engaging in the practice of law and exercising his professional duties as a prosecutor in the OTP. He asserts that there is a non-speculative risk that activities necessary for him to conduct investigations and build cases for the OCD will be deemed the provision of prohibited services to an SDN and the receiving of material benefits from an SDN.
Plaintiff alleges that his work with the OTP is speech protected by the First Amendment, and that the speech restrictions imposed by the EO violate his First Amendment rights because he is unable to do his work with the OTP due to the threat of criminal prosecution and civil fines. Plaintiff also argues that the EO violates provisions of the IEEPA because Congress specifically denied the President the authority to regulate or prohibit the importation or exportation of “any information or informational materials” under the IEEPA, 50 U.S.C. § 1702(b). He further contends that the IEEPA explicitly requires that sanctions only be invoked in connection with a “new threat” to the U.S., 50 U.S.C. § 1701(b), which Plaintiff alleges is not the case. He asserts that the EO is overbroad and in conflict with legislation by Congress authorizing the provision of direct support to the ICC in connection with its activities, including on cases involving Darfur.
The Plaintiff has asked for a declaratory judgment that the EO violates the First Amendment and does not comply with the requirements of the IEEPA, and for a judgement enjoining the Defendants from commencing or authorizing any prosecution or civil enforcement against him in relation to his work on Darfur.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIC IVERSON,
Oude Waalsdorperweg 10 2597 AK
The Hague
The Netherlands
Plaintiff,
v.
DONALD J. TRUMP, President,
1600 Pennsylvania Avenue NW
Washington, DC 20500,
PAMELA BONDI, Attorney General,
950 Pennsylvania Avenue NW
Washington, DC 20530,
SCOTT BESSENT, Secretary of the Treasury,
1500 Pennsylvania Avenue NW
Washington, DC 20220,
MARCO RUBIO, Secretary of State,
2201 C Street NW
Washington, DC 20451,
Defendants.
CASE NO: 25-1353
COMPLAINT
DATE: May 5, 2025
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Intelligence Agencies Increase Focus on Greenland, U.S. Officials Say. A growing number of reports about the island have been included in information circulated in the executive branch and Congress, officials said.
by Julian E. Barnes and Maggie Haberman
New York Times
May 8, 2025
Updated 12:52 p.m. ET
https://www.nytimes.com/2025/05/08/us/p ... gence.html
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
U.S. intelligence agencies have focused more closely on Greenland in the past several weeks, spurred by President Trump’s interest in acquiring the island and Vice President JD Vance’s trip to a U.S. military base there, according to multiple American officials.
A growing number of intelligence reports about Greenland have been included in information circulated in the executive branch and Congress, the officials said.
The increased analytic focus by a number of intelligence agencies comes as Mr. Trump has repeatedly expressed his desire to acquire the island, saying it is vital for national security. Greenland is strategically located in the Arctic Circle and has huge stores of rare earth minerals.
Danish officials have reacted negatively to news reports of stepped-up intelligence collection on Greenland, a self-governing territory of the country. The U.S. ambassador to Denmark has been summoned to a meeting, at least one member of Parliament has even proposed shuttering a consulate and its foreign minister condemned an effort by the United States to spy on Denmark, a NATO ally.
Some of the recent intelligence reports have focused on Russian or Chinese interest in the island, current and former officials said. They added that the White House remained concerned about security of the Arctic and encroachment by China and Russia on American interests.
Much of the recent intelligence work appeared to be based on open-source intelligence, not classified material, some of the officials said.
Officials interviewed for this article spoke on the condition of anonymity because of the sensitive nature of intelligence priorities and the Trump administration’s frequent threats of leak investigations.
There has not been a large shift in intelligence collection. Officials expect the agencies to focus more on Greenland in the coming months but are not anticipating a major reallocation of intelligence officers or reconnaissance satellites to the island.
Greenland’s population is minuscule, about 57,000, and redirecting collection assets from top administration priorities like China or the southern U.S. border would be wasteful, according to officials.
Still, they said they expected more work to be done on Greenland and its population.
The Office of the Director of National Intelligence sent a “collection emphasis message” to various intelligence agencies last week, reminding directors of Mr. Trump’s interest in Greenland. The memo, which was reported earlier by The Wall Street Journal, asked for information on Greenland’s independence movement and public attitudes about American resource extraction.
Former officials said collecting on those priorities was likely to involve further examination of open-source intelligence rather than placing officers on the island to infiltrate political organizations.
There is support for independence in Greenland, although officials there have emphasized that they are part of the Kingdom of Denmark and many have been alarmed by the Trump administration’s aggressive posture. While Denmark has control over Greenland’s foreign policy and defense, the island has significant autonomy. But it is very dependent on Denmark, which provides subsidies that account for about 20 percent of Greenland’s gross domestic product.
After The Journal published its article, officials said a leak investigation was underway. Tulsi Gabbard, the director of national intelligence, said in a statement that “deep state actors” had released the information and were undermining American security.
Since returning to the presidency, Mr. Trump has been consistent about his desire to acquire Greenland. “We need Greenland for national security and even international security, and we’re working with everybody involved to try and get it,” he said in his address to Congress in March. “One way or the other, we’re going to get it.”
Julian E. Barnes covers the U.S. intelligence agencies and international security matters for The Times. He has written about security issues for more than two decades.
Maggie Haberman is a White House correspondent for The Times, reporting on President Trump.
by Julian E. Barnes and Maggie Haberman
New York Times
May 8, 2025
Updated 12:52 p.m. ET
https://www.nytimes.com/2025/05/08/us/p ... gence.html
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U.S. intelligence agencies have focused more closely on Greenland in the past several weeks, spurred by President Trump’s interest in acquiring the island and Vice President JD Vance’s trip to a U.S. military base there, according to multiple American officials.
A growing number of intelligence reports about Greenland have been included in information circulated in the executive branch and Congress, the officials said.
The increased analytic focus by a number of intelligence agencies comes as Mr. Trump has repeatedly expressed his desire to acquire the island, saying it is vital for national security. Greenland is strategically located in the Arctic Circle and has huge stores of rare earth minerals.
Danish officials have reacted negatively to news reports of stepped-up intelligence collection on Greenland, a self-governing territory of the country. The U.S. ambassador to Denmark has been summoned to a meeting, at least one member of Parliament has even proposed shuttering a consulate and its foreign minister condemned an effort by the United States to spy on Denmark, a NATO ally.
Some of the recent intelligence reports have focused on Russian or Chinese interest in the island, current and former officials said. They added that the White House remained concerned about security of the Arctic and encroachment by China and Russia on American interests.
Much of the recent intelligence work appeared to be based on open-source intelligence, not classified material, some of the officials said.
Officials interviewed for this article spoke on the condition of anonymity because of the sensitive nature of intelligence priorities and the Trump administration’s frequent threats of leak investigations.
There has not been a large shift in intelligence collection. Officials expect the agencies to focus more on Greenland in the coming months but are not anticipating a major reallocation of intelligence officers or reconnaissance satellites to the island.
Greenland’s population is minuscule, about 57,000, and redirecting collection assets from top administration priorities like China or the southern U.S. border would be wasteful, according to officials.
Still, they said they expected more work to be done on Greenland and its population.
The Office of the Director of National Intelligence sent a “collection emphasis message” to various intelligence agencies last week, reminding directors of Mr. Trump’s interest in Greenland. The memo, which was reported earlier by The Wall Street Journal, asked for information on Greenland’s independence movement and public attitudes about American resource extraction.
Former officials said collecting on those priorities was likely to involve further examination of open-source intelligence rather than placing officers on the island to infiltrate political organizations.
There is support for independence in Greenland, although officials there have emphasized that they are part of the Kingdom of Denmark and many have been alarmed by the Trump administration’s aggressive posture. While Denmark has control over Greenland’s foreign policy and defense, the island has significant autonomy. But it is very dependent on Denmark, which provides subsidies that account for about 20 percent of Greenland’s gross domestic product.
After The Journal published its article, officials said a leak investigation was underway. Tulsi Gabbard, the director of national intelligence, said in a statement that “deep state actors” had released the information and were undermining American security.
Since returning to the presidency, Mr. Trump has been consistent about his desire to acquire Greenland. “We need Greenland for national security and even international security, and we’re working with everybody involved to try and get it,” he said in his address to Congress in March. “One way or the other, we’re going to get it.”
Julian E. Barnes covers the U.S. intelligence agencies and international security matters for The Times. He has written about security issues for more than two decades.
Maggie Haberman is a White House correspondent for The Times, reporting on President Trump.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIC IVERSON,
Oude Waalsdorperweg 10 2597 AK
The Hague
The Netherlands
Plaintiff,
v.
DONALD J. TRUMP,
President,
1600 Pennsylvania Avenue NW
Washington, DC 20500,
PAMELA BONDI,
Attorney General,
950 Pennsylvania Avenue NW
Washington, DC 20530,
SCOTT BESSENT,
Secretary of the Treasury,
1500 Pennsylvania Avenue NW
Washington, DC 20220,
MARCO RUBIO,
Secretary of State,
2201 C Street NW
Washington, DC 20451,
Defendants.
CASE NO: 25-1353
COMPLAINT
DATE: May 5, 2025
NATURE OF THE CASE
1. Plaintiff, Eric Iverson, is a U.S. citizen, a decorated Army veteran, and since 2010, a prosecutor in the International Criminal Court (ICC), Office of the Prosecutor (OTP). He is presently the lead prosecutor in cases supported by the United States against individuals accused of committing war crimes, genocide, and crimes against humanity in the Darfur region of Sudan. Mr. Iverson’s practice of law under the auspices of the ICC’s OTP constitutes expression that is protected by the First Amendment. Yet, Defendants have prevented Mr. Iverson from investigating and prosecuting the mass atrocities in Darfur, because the President issued an overbroad executive order authorizing sanctions against the ICC and its Prosecutor, out of a stated concern that the ICC will investigate what the order describes as “protected persons,” i.e., nationals of the United States and its allies.
2. Plaintiff does not work and has not worked on any investigation involving “protected persons.” He has waited for several months for the Department of the Treasury, Office of Foreign Asset Control (OFAC) to issue regulations that narrow the needlessly broad sweep of the executive order, or to grant a license that would enable him to resume his investigation of crimes committed in Darfur. No regulations or license have been forthcoming.
3. Therefore, Plaintiff files this suit to challenge Defendants’ imposition of overbroad and ultra vires sanctions that violate his First Amendment rights and that exceed the statutory limits that Congress has imposed on the President’s use of sanctions. On those bases, Plaintiff asks this Court to declare that the executive order violates the First Amendment and is ultra vires, and to enjoin its enforcement against him.
JURISDICTION & VENUE
4. This Court has subject matter jurisdiction to grant the relief requested pursuant to 5 U.S.C. § 702; 28 U.S.C. §§ 2201, 2202, & 1331, and the Court’s inherent equitable powers.
5. Venue is proper pursuant to 28 U.S.C. § 1391(e)(1).
THE PARTIES
6. Plaintiff, Eric Iverson, is a U.S. citizen, licensed attorney, and U.S. Army veteran. Declaration of Eric Iverson, May 2, 2025 (Attachment A) (Iverson Decl.). In October 2010, Mr. Iverson accepted a position as a Trial Lawyer in the International Criminal Court, Office of the Prosecutor, where he worked as a trial lawyer in the trials of Prosecutor v. Bemba, Prosecutor v. Ntaganda, and Prosecutor v. Yekatom et al, arising out of events in the Central African Republic and the Democratic Republic of the Congo. Id. ¶ 6. In 2021, Mr. Iverson was assigned to the Darfur Unified Team and subsequently elevated to be the Head of that team. He is lead counsel on the cases of Prosecutor v. Al-Bashir, Prosecutor v. Hussein, Prosecutor v. Harun, and on ongoing investigations arising out of the armed conflict in the situation in Darfur, Sudan. Id. ¶ 13.
7. Defendant, Donald Trump, is a citizen of the United States and serves as the President of the United States. Mr. Trump is being sued in his official capacity for actions beyond his authority and in violation of the constitution and laws of the United States.
8. Defendant, Pamela Bondi, is a citizen of the United States and serves as the Attorney General. Ms. Bondi is being sued in her official capacity to enjoin actions beyond her authority and in violation of the constitution and laws of the United States.
9. Defendant, Scott Bessent, is a citizen of the United States and serves as the Secretary of the Treasury. Mr. Bessent is being sued in his official capacity to enjoin actions beyond his authority and in violation of the constitution and laws of the United States.
10. Defendant, Marco Rubio, is a citizen of the United States and serves as the Secretary of State. Mr. Rubio is being sued in his official capacity to enjoin actions beyond his authority and in violation of the constitution and laws of the United States.
FACTUAL BACKGROUND
A. The International Criminal Court
11. The ICC is a permanent international institution headquartered in The Hague, The Netherlands. It was created pursuant to the 1998 Rome Statute of the International Criminal Court (Rome Statute), the culmination of a decades-long push by the international community— including the United States—for a transnational forum in which victims of the gravest crimes could seek justice. 2187 U.N.T.S. 90.
12. The movement for international criminal justice emerged from the aftermath of the Holocaust, and the United States was a driving force behind the effort to hold Nazi-era war criminals to account through the Nuremberg Trials. Throughout the latter half of the 20th century, as unspeakable horrors unfolded in Cambodia, the former Yugoslavia, Rwanda, Sierra Leone, and other conflict zones, the United States supported the creation of international criminal tribunals to address atrocity crimes committed in those jurisdictions. When President Clinton signed the Rome Statute in 2000, he noted the United States’s “long history of commitment to the principle of accountability, from our involvement in the Nuremberg tribunals that brought Nazi war criminals to justice, to our leadership in the effort to establish the International Criminal Tribunals for the former Yugoslavia and Rwanda.” Statement on the Rome Treaty on the International Criminal Court, 37 Weekly Comp. Pres. Doc. 4, Dec. 31, 2000.
13. Presently, 125 countries are parties to the Rome Statute. Of the 32 members of NATO, 30 are parties to the Rome Statute. The United States has signed the Rome Statute, but the Senate has not ratified it.
14. The ICC has “the power to exercise its jurisdiction over persons for the most serious crimes of international concern.” Rome Statute, art. 1. These include genocide, crimes against humanity, war crimes, and the crime of aggression. Id. art. 5. The ICC’s jurisdiction is limited to crimes committed from July 1, 2002, onward within the territory of a member state, by nationals of a member state after that state’s accession to the Rome Statute, at the member state’s election, or upon referral by the United Nations Security Council. Id. art. 11(1).
15. The OTP is one of four “organs” that comprise the ICC and is responsible for examining situations where international crimes under the jurisdiction of the ICC are alleged to have been committed, carrying out investigations of such situations, and prosecuting individuals who are charged with those crimes. The OTP employs approximately 380 staff members of over 80 different nationalities, who all serve under the direct control of the Prosecutor, except in cases where the Prosecutor has been recused. Under the Rome Statute, the Prosecutor has “full authority over the management and administration of the Office, including the staff, facilities and other resources thereof.” Rome Statute, art. 42(1); see also Staff Regulations for the International Criminal Court § 1.2(c). OTP personnel are, by rule, “at the disposal of the … the Prosecutor, as appropriate, for the performance of official functions.” Staff Rules of the International Criminal Court, 101.9(b).
16. To conduct investigations, the Prosecutor sends missions – usually composed of investigators, cooperation advisers, and prosecutors from the OTP – to concerned countries, where OTP personnel collect and examine physical evidence, question victims and witnesses, and then report back regarding the product of their investigations for ultimate review by the Prosecutor. Neither the OTP nor the ICC more generally has any independent enforcement authority, or the means to compel process. Instead, the ICC and its organs must rely upon member states to arrest individuals subject to arrest warrants issued by the Court.
17. Cases before the ICC are brought in the name of the Prosecutor. Unless the Prosecutor is recused, or otherwise disqualified from a particular case, the Prosecutor serves as lead counsel, is responsible for signing any pleadings submitted, and is responsible formally and professionally for the conduct of any prosecution. The current Prosecutor is Karim A.A. Khan, KC, a barrister from the United Kingdom, who was elected by the Assembly of State Parties to the Rome Statute as the Prosecutor of the ICC on February 12, 2021.
B. The United States’ relationship to the ICC
18. Despite its general support for the ICC, the United States has long opposed the ICC’s exercise of jurisdiction over U.S. citizens. When President Clinton signed the Rome Statute in 2000, he recommended that the Senate defer ratification until the Rome Statute was amended to guarantee certain procedural due process rights and exemptions for American citizens. 22 U.S.C. § 7421(6)-(7).
19. John Bolton, who would go on to serve as the Bush Administration’s U.N. Ambassador, wrote an op-ed the week after President Clinton signed the Rome Statute, objecting that it threatened the autonomy of U.S. political leaders. John Bolton, Unsign That Treaty, Washington Post, January 2, 2001. In a subsequent law review article, Bolton warned:
John Bolton, The Risks and Weaknesses of the International Criminal Court from America’s Perspective, 64 Law and Contemporary Problems 167 (2001).
20. In June 2002, the Congressional Research Service summarized the Rome Statute’s “Political Implications” as follows:
CRS Report for Congress, RL21437, International Criminal Court: Overview and Selected Legal Issues (June 5, 2002) (emphasis added). Two months later, Congress enacted the American Servicemembers’ Protection Act (ASPA), 116 Stat. 899 (codified at 22 U.S.C. §§ 7421, et seq.), to address the risk of U.S. persons “being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” 22 U.S.C. § 7427. In enacting this law, Congress found “the Rome Statute creates a risk that the President and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court. … No less than members of the Armed Forces of the United States, senior officials of the United States Government should be free from the risk of prosecution by the International Criminal Court, especially with respect to official actions taken by them to protect the national interests of the United States.” 22 U.S.C. § 7421(9).
21. While the ASPA broadly regulates the United States’ relationship to the ICC to advance this purpose, Congress also permitted the United States to support ICC activities under certain circumstances. Id. §7422(c), §7433. Section 7433, for its part, provides statutory protection for many activities supporting the ICC’s efforts: “Nothing in this subchapter shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Queda [sic], leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity, or from rendering assistance to the International Criminal Court to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine.”
22. The United States has provided direct support to the work of the ICC in multiple situations consistent with its foreign policy interests. This support has transcended party lines, as both Democratic and Republican administrations have assisted several prominent ICC investigations and prosecutions.
23. On March 31, 2005, for example, the UN Security Council referred the situation in Darfur, Sudan, to the ICC for prosecution. UNSC, Resolution 1593, S/RES/1593 (2005). The United States contributed to the drafting of the resolution and acceded to its passage. In stating the reasons for its position, the Ambassador to the United Nations stated that the United States preferred the creation of an ad hoc tribunal, but acceded to the Security Council’s referral of the situation to the ICC’s jurisdiction, notwithstanding the fact that Sudan was not a party to the Rome Statute, “because of the need for the international community to work together in order to end the climate of impunity in Sudan, and because the resolution provides protection from investigation or prosecution for U.S. nationals and members of the armed forces of non-state parties.” Explanation of Vote on the Sudan Accountability Resolution, USUN Press Release #055 (05) (March 31, 2005).
24. On October 31, 2006, Congress endorsed the ICC’s Darfur prosecution and authorized the President to impose blocking sanctions against “any individual who the President determines is complicit in, or responsible for, acts of genocide, war crimes, or crimes against humanity in Darfur.” Darfur Peace and Accountability Act of 2006, P.L. 109-344 (October 13, 2006), 120 Stat. 1869. President Bush implemented these sanctions the same day. EO 13412, 71 Fed. Reg. 61396 (October 13, 2006).
25. Over the intervening two decades, Congress has supported the ICC’s Darfur investigation and prosecution through resolutions. See, e.g., S. Res. 188, 165 Cong. Rec. S4736 (Senate resolution approving of the work of the ICC in prosecuting former Sudanese president Al-Omar Al-Bashir). The most recent resolution was in November 2024, when the House passed by a super-majority voice vote, a resolution to “support[] tribunals and international criminal investigations to hold the [Sudanese Rapid Support Forces] and allied militias accountable for war crimes, crimes against humanity, and genocide.” Recognizing the actions of the Rapid Support Forces and allied militias in the Darfur region of Sudan against non-Arab ethnic communities as acts of genocide, H.Res. 1328 (November 20, 2024). The ICC is the only tribunal currently mandated to hold such individuals responsible, and the OTP is conducting the only international criminal investigation into these matters.
26. In 2020, Congress passed and the President signed a National Defense Appropriations Act that reiterated, “It is the policy of the United States to … promot[e] accountability for genocide, war crimes, crimes against humanity, and sexual and gender-based violence” and authorized the President, “[n]otwithstanding any other provision of law,” to provide foreign aid “(1) to build the capacity of civilian investigators within and outside of Sudan on how to document, investigate, develop findings of, identify, and locate those responsible for war crimes, crimes against humanity, or genocide in Sudan; [and] (2) to collect, document, and protect evidence of war crimes, crimes against humanity, and genocide in Sudan and preserve the chain of custody for such evidence, including by providing support for Sudanese, foreign, and international nongovernmental organizations, and other entities engaged in such investigative activities.” William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, 134 Stat. 3388 §§ 1263, 1267.
27. Every administration from the George W. Bush Administration to the present administration has supported the prosecution of those culpable for genocide, war crimes, and crimes against humanity in Darfur before the ICC. On January 7, 2025, Secretary of State Antony Blinken found the conflict in Sudan “has resulted in the world’s largest humanitarian catastrophe, leaving 638,000 Sudanese experiencing the worst famine in Sudan’s recent history, over 30 million people in need of humanitarian assistance, and tens of thousands dead.” Press Statement of Secretary of State Antony Blinken, Genocide Determination in Sudan and Imposing Accountability Measures, January 7, 2025.1 He also concluded that “war crimes,” “crimes against humanity and ethnic cleansing” had been committed in Sudan, culminating in a formal determination of genocide in Sudan and the announcement of various accountability measures. Id.
28. Similarly, the Trump administration has supported international accountability measures for Darfur war criminals, to include the ICC’s investigation.On January 27, 2025, Ambassador Dorothy Shea stated the United States position at the U.N. Security Council Briefing by the ICC Prosecutor that “Those responsible for these terrible crimes must be held accountable. Many responsible for atrocities over 20 years ago in Sudan remain at large. We urge the international community to work to bring those individuals to trial so they can be publicly held to account for their alleged crimes.” Remarks by Ambassador Dorothy Shea, Chargé d’Affaires ad interim, at a U.N. Security Council Briefing by the ICC Prosecutor, January 27, 2025.2
29. Following an April 1, 2025 outbreak of violence in Sudan that “targeted civilians and humanitarian actors in Zamzam and Abu Shouk … including killings of at least 10 U.S.-funded relief workers,” the State Department reiterated the United States’ humanitarian and foreign policy interests in upholding “international humanitarian law” in Sudan:
Tammy Bruce, Press Briefing (April 15, 2025).3
30. To these ends, the State Department is offering a reward of “up to $5 million for information leading to [the] arrest [of Ahmad Mohammad Harun], transfer to the ICC, or conviction.” U.S. Department of State’s Global Criminal Justice Rewards Program.4 Ahmad Mohammad Harun is a former Sudanese government minister and is subject to United States sanctions as a Specially Designated National (SDN).
31. The United States has also endorsed other ICC investigations deemed to be in the national interest. In 2011, the United States voted with U.N. Security Council to refer the situation in Libya to the ICC for investigation and specifically urged “all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.” UNSC Res. 1700, ¶¶ 4-5 (Feb. 26, 2011). The United States Ambassador to the United Nations celebrated this resolution, saying “for the first time ever, the Security Council has unanimously referred an egregious human rights situation to the International Criminal Court.” United Nations, Security Council, 6491st Meeting, S/PV.6491, Feb. 26, 2011, at 3.
32. In 2013, the United States turned Bosco Ntaganda over to the ICC for prosecution for war crimes committed in the Democratic Republic of Congo after he sought refuge in the U.S. Embassy in Rwanda. Jeffrey Gettleman, Team on the Way to Collect Congo War Crimes Suspect, N.Y. Times, March 21, 2013, at A6. This action was unanimously endorsed in a resolution by the Senate. S. Res. 144, 159 Cong Rec. S5302.
33. In 2015, the United States transferred Dominic Ongwen, who had been taken into custody by the U.S. military to the ICC. The State Department publicly “welcome[d] the transfer of Dominic Ongwen by Central African authorities to the International Criminal Court.” U.S. Department of State, Press Release, “Transfer of Dominic Ongwen to the International Criminal Court,” January 20, 2015.
34. Congress has passed various legislation supporting the work of the ICC beyond Darfur as well. In 2008, Congress authorized military assistance to state parties of the ICC. National Defense Authorization Act for Fiscal Year 2008, 122 Stat. 3 § 1212. Congress has enabled the State Department to offer monetary rewards to individuals who provide information to facilitate the arrest of foreign individuals wanted by the ICC. Department of State Rewards Program Update and Technical Corrections Act of 2012, 126 Stat. 2492.
35. Congress has endorsed the work of the ICC outside Darfur in several joint and chamber-specific resolutions. See, e.g., S. Res. 90, 159 Cong. Rec. S2853 (Senate resolution “call[ing] on the Government of Kenya to respect commitments to seek justice for the victims of political violence, including by honoring its obligations under the Rome Statute to cooperate fully with the International Criminal Court.”); S.Con.Res.16, 153 Cong. Rec. S2540 (Joint resolution citing the ICC’s work to condemn the Lord’s Resistance Army in Uganda); S. Res. 402, 158 Cong. Rec. S6007 (reiterating the Senate’s support for the prosecution of Joseph Kony).
36. In 2022, the Senate unanimously passed a resolution relating to the ICC’s investigation of Russian crimes in Ukraine, stating “the International Criminal Court (ICC) is an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists, by investigating and trying individuals charged ‘with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression’” and resolved to “encourage[] member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate war crimes and crimes against humanity committed by the Russian Armed Forces and their proxies and President Putin’s military commanders, at the direction of President Vladimir Putin.” A resolution expressing the sense of the Senate condemning the Russian Federation, President Vladimir Putin, members of the Russian Security Council, the Russian Armed Forces, and Russian military commanders for committing atrocities, including alleged war crimes, against the people of Ukraine and others, S.Res. 546, March 15, 2022.
37. In 2024, Congress appropriated funds to support the ICC directly. This included “not less than $2,500,000 as a contribution to the Trust Fund for Victims” that is associated with the ICC. An additional $2,500,000 was also appropriated for “Assistance to International Efforts” that include supporting the ICC’s investigations and prosecutions of foreign nationals related to the situation in Ukraine. Public Law 118-47, Section 7034(r).
38. In October 2024, the Legal Advisor to the United States Mission to the United Nations extolled the virtues of the ICC’s work to the United Nations General Assembly: “The United States remains steadfast in its commitment to international justice and promoting accountability for violations of international humanitarian law … The work of the International Criminal Court is vital to this mission, and we welcome the ICC’s continued efforts … to deliver justice in situations where atrocities have been committed with impunity, including in Ukraine, Darfur, and the Central African Republic.” Mark Simonoff, United States Mission to the UN, October 28, 2024.5
39. U.S. courts have consistently cited the Rome Statute and the work of the ICC to interpret international law, see, e.g., Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1401 (2018); Nahl v. Jaoude, 968 F.3d 173, 188 (2d Cir. 2020); Simon v. Republic of Hungary, 812 F.3d 127, 143 (D.C. Cir. 2016); Hamdan v. United States, 696 F.3d 1238, 1250 (D.C. Cir. 2012), overruled on other grounds by Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014); Doe v. Exxon Mobil Corp., 391 F. Supp. 3d 76, 90 (D.D.C. 2019), and to evaluate applications for asylum. See, e.g., Wanjiru v. Holder, 705 F.3d 258, 260 (7th Cir. 2013).
C. The International Emergency Economic Powers Act (IEEPA)
40. IEEPA authorizes the President to take specific actions in response to a national emergency constituting an “unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” 50 U.S.C. § 1701(a). In particular, once the President has declared such an emergency, IEEPA permits the President to:
41. The President may impose IEEPA sanctions only to respond to the “new threat” that gave rise to the national emergency—not for any other purpose. Id. § 1701(b). See also H.R. Rep. 95–459 at 10 (1977) (legislative history describing this limitation).
42. IEEPA sanctions regimes are implemented by the creation of designated foreign national “lists” that are administered by the Treasury Department’s Office of Foreign Asset Control (OFAC). Individuals subject to sanctions under IEEPA, so-called Specially Designated Nationals (SDNs), are said to be on “the OFAC List.” Once SDNs are on the OFAC List, they are sometimes described as being subjected to “civil death,” insofar as it becomes functionally unlawful for them to be employed, to access banking services, to travel, or to engage in most commerce that is basic to modern life.6
43. IEEPA makes it unlawful for anyone “to violate, attempt to violate, conspire to violate, or cause a violation of any license, order, regulation, or prohibition issued under” the statute. 50 U.S.C. § 1705(a). The consequences of violating IEEPA sanctions can be extremely severe. Anyone who violates IEEPA sanctions, intentionally or not, may be subject to a civil penalty equaling the greater of $377,700 or twice the value of the transaction giving rise to the violation. 50 U.S.C. § 1705(b); 90 Fed. Reg. 3687, 3688 (Jan. 15, 2025). Anyone who willfully violates IEEPA sanctions, attempts or conspires to do so, or aids and abets a violation faces criminal fines of up to $1,000,000 and up to twenty years in prison. 50 U.S.C. § 1705(c). The government has also prosecuted people for conspiracy to commit an offense against the United States under 18 U.S.C. § 371 in connection with the planned violation of an IEEPA order.
44. OFAC is responsible for the civil enforcement of IEEPA sanctions regimes, and it regularly imposes civil penalties on individuals and entities for IEEPA violations.
45. The Department of Justice is responsible for the criminal enforcement of IEEPA sanctions regimes, and it has frequently prosecuted persons for IEEPA violations.7
46. Thus, IEEPA orders trigger two distinct sets of consequences: (1) designation of sanctioned persons and their addition to the SDN List, and (2) enforcement of civil and criminal penalties for dealing in blocked property or providing goods or services to or for the benefit of a designated person. The threat of such penalties deters individuals, financial institutions, and other businesses and entities from interacting with designated persons.
47. Congress has imposed restrictions on the President’s authority under IEEPA. In addition to limiting the President’s authority to “unusual and extraordinary threat[s]”, IEEPA expressly denies the President “the authority to regulate or prohibit, directly or indirectly . . . the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials[.]” 50 U.S.C. § 1702(b). OFAC interprets this statutory limitation as applying only to information or informational materials fully created and in existence at the time of the transaction with the sanctioned person. See, e.g., 31 C.F.R. § 560.210(c)(2).
48. Only once before has a President attempted to use IEEPA to impose economic sanctions against the ICC. That attempt came in 2020 with EO 13928, when President Trump imposed sanctions on the ICC Prosecutor and one of her deputies. See EO 13928, Blocking Property of Certain Persons Associated With the International Criminal Court, 85 Fed. Reg. 36139 (June 15, 2020). In January 2021, the U.S. District Court for the Southern District of New York preliminarily enjoined the enforcement of EO 13928 because it violated the First Amendment. OSJI v. Trump, 510 F.Supp.3d 198 (S.D.N.Y. 2021) (“the restrictions prohibit or chill significantly more speech than even Defendants seem to believe is necessary to achieve their end, i.e., to obtain and exert leverage over [ICC personnel] so as to induce them to desist from their investigation of U.S. and allied personnel”).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIC IVERSON,
Oude Waalsdorperweg 10 2597 AK
The Hague
The Netherlands
Plaintiff,
v.
DONALD J. TRUMP,
President,
1600 Pennsylvania Avenue NW
Washington, DC 20500,
PAMELA BONDI,
Attorney General,
950 Pennsylvania Avenue NW
Washington, DC 20530,
SCOTT BESSENT,
Secretary of the Treasury,
1500 Pennsylvania Avenue NW
Washington, DC 20220,
MARCO RUBIO,
Secretary of State,
2201 C Street NW
Washington, DC 20451,
Defendants.
CASE NO: 25-1353
COMPLAINT
DATE: May 5, 2025
NATURE OF THE CASE
1. Plaintiff, Eric Iverson, is a U.S. citizen, a decorated Army veteran, and since 2010, a prosecutor in the International Criminal Court (ICC), Office of the Prosecutor (OTP). He is presently the lead prosecutor in cases supported by the United States against individuals accused of committing war crimes, genocide, and crimes against humanity in the Darfur region of Sudan. Mr. Iverson’s practice of law under the auspices of the ICC’s OTP constitutes expression that is protected by the First Amendment. Yet, Defendants have prevented Mr. Iverson from investigating and prosecuting the mass atrocities in Darfur, because the President issued an overbroad executive order authorizing sanctions against the ICC and its Prosecutor, out of a stated concern that the ICC will investigate what the order describes as “protected persons,” i.e., nationals of the United States and its allies.
2. Plaintiff does not work and has not worked on any investigation involving “protected persons.” He has waited for several months for the Department of the Treasury, Office of Foreign Asset Control (OFAC) to issue regulations that narrow the needlessly broad sweep of the executive order, or to grant a license that would enable him to resume his investigation of crimes committed in Darfur. No regulations or license have been forthcoming.
3. Therefore, Plaintiff files this suit to challenge Defendants’ imposition of overbroad and ultra vires sanctions that violate his First Amendment rights and that exceed the statutory limits that Congress has imposed on the President’s use of sanctions. On those bases, Plaintiff asks this Court to declare that the executive order violates the First Amendment and is ultra vires, and to enjoin its enforcement against him.
JURISDICTION & VENUE
4. This Court has subject matter jurisdiction to grant the relief requested pursuant to 5 U.S.C. § 702; 28 U.S.C. §§ 2201, 2202, & 1331, and the Court’s inherent equitable powers.
5. Venue is proper pursuant to 28 U.S.C. § 1391(e)(1).
THE PARTIES
6. Plaintiff, Eric Iverson, is a U.S. citizen, licensed attorney, and U.S. Army veteran. Declaration of Eric Iverson, May 2, 2025 (Attachment A) (Iverson Decl.). In October 2010, Mr. Iverson accepted a position as a Trial Lawyer in the International Criminal Court, Office of the Prosecutor, where he worked as a trial lawyer in the trials of Prosecutor v. Bemba, Prosecutor v. Ntaganda, and Prosecutor v. Yekatom et al, arising out of events in the Central African Republic and the Democratic Republic of the Congo. Id. ¶ 6. In 2021, Mr. Iverson was assigned to the Darfur Unified Team and subsequently elevated to be the Head of that team. He is lead counsel on the cases of Prosecutor v. Al-Bashir, Prosecutor v. Hussein, Prosecutor v. Harun, and on ongoing investigations arising out of the armed conflict in the situation in Darfur, Sudan. Id. ¶ 13.
7. Defendant, Donald Trump, is a citizen of the United States and serves as the President of the United States. Mr. Trump is being sued in his official capacity for actions beyond his authority and in violation of the constitution and laws of the United States.
8. Defendant, Pamela Bondi, is a citizen of the United States and serves as the Attorney General. Ms. Bondi is being sued in her official capacity to enjoin actions beyond her authority and in violation of the constitution and laws of the United States.
9. Defendant, Scott Bessent, is a citizen of the United States and serves as the Secretary of the Treasury. Mr. Bessent is being sued in his official capacity to enjoin actions beyond his authority and in violation of the constitution and laws of the United States.
10. Defendant, Marco Rubio, is a citizen of the United States and serves as the Secretary of State. Mr. Rubio is being sued in his official capacity to enjoin actions beyond his authority and in violation of the constitution and laws of the United States.
FACTUAL BACKGROUND
A. The International Criminal Court
11. The ICC is a permanent international institution headquartered in The Hague, The Netherlands. It was created pursuant to the 1998 Rome Statute of the International Criminal Court (Rome Statute), the culmination of a decades-long push by the international community— including the United States—for a transnational forum in which victims of the gravest crimes could seek justice. 2187 U.N.T.S. 90.
12. The movement for international criminal justice emerged from the aftermath of the Holocaust, and the United States was a driving force behind the effort to hold Nazi-era war criminals to account through the Nuremberg Trials. Throughout the latter half of the 20th century, as unspeakable horrors unfolded in Cambodia, the former Yugoslavia, Rwanda, Sierra Leone, and other conflict zones, the United States supported the creation of international criminal tribunals to address atrocity crimes committed in those jurisdictions. When President Clinton signed the Rome Statute in 2000, he noted the United States’s “long history of commitment to the principle of accountability, from our involvement in the Nuremberg tribunals that brought Nazi war criminals to justice, to our leadership in the effort to establish the International Criminal Tribunals for the former Yugoslavia and Rwanda.” Statement on the Rome Treaty on the International Criminal Court, 37 Weekly Comp. Pres. Doc. 4, Dec. 31, 2000.
13. Presently, 125 countries are parties to the Rome Statute. Of the 32 members of NATO, 30 are parties to the Rome Statute. The United States has signed the Rome Statute, but the Senate has not ratified it.
14. The ICC has “the power to exercise its jurisdiction over persons for the most serious crimes of international concern.” Rome Statute, art. 1. These include genocide, crimes against humanity, war crimes, and the crime of aggression. Id. art. 5. The ICC’s jurisdiction is limited to crimes committed from July 1, 2002, onward within the territory of a member state, by nationals of a member state after that state’s accession to the Rome Statute, at the member state’s election, or upon referral by the United Nations Security Council. Id. art. 11(1).
15. The OTP is one of four “organs” that comprise the ICC and is responsible for examining situations where international crimes under the jurisdiction of the ICC are alleged to have been committed, carrying out investigations of such situations, and prosecuting individuals who are charged with those crimes. The OTP employs approximately 380 staff members of over 80 different nationalities, who all serve under the direct control of the Prosecutor, except in cases where the Prosecutor has been recused. Under the Rome Statute, the Prosecutor has “full authority over the management and administration of the Office, including the staff, facilities and other resources thereof.” Rome Statute, art. 42(1); see also Staff Regulations for the International Criminal Court § 1.2(c). OTP personnel are, by rule, “at the disposal of the … the Prosecutor, as appropriate, for the performance of official functions.” Staff Rules of the International Criminal Court, 101.9(b).
16. To conduct investigations, the Prosecutor sends missions – usually composed of investigators, cooperation advisers, and prosecutors from the OTP – to concerned countries, where OTP personnel collect and examine physical evidence, question victims and witnesses, and then report back regarding the product of their investigations for ultimate review by the Prosecutor. Neither the OTP nor the ICC more generally has any independent enforcement authority, or the means to compel process. Instead, the ICC and its organs must rely upon member states to arrest individuals subject to arrest warrants issued by the Court.
17. Cases before the ICC are brought in the name of the Prosecutor. Unless the Prosecutor is recused, or otherwise disqualified from a particular case, the Prosecutor serves as lead counsel, is responsible for signing any pleadings submitted, and is responsible formally and professionally for the conduct of any prosecution. The current Prosecutor is Karim A.A. Khan, KC, a barrister from the United Kingdom, who was elected by the Assembly of State Parties to the Rome Statute as the Prosecutor of the ICC on February 12, 2021.
B. The United States’ relationship to the ICC
18. Despite its general support for the ICC, the United States has long opposed the ICC’s exercise of jurisdiction over U.S. citizens. When President Clinton signed the Rome Statute in 2000, he recommended that the Senate defer ratification until the Rome Statute was amended to guarantee certain procedural due process rights and exemptions for American citizens. 22 U.S.C. § 7421(6)-(7).
19. John Bolton, who would go on to serve as the Bush Administration’s U.N. Ambassador, wrote an op-ed the week after President Clinton signed the Rome Statute, objecting that it threatened the autonomy of U.S. political leaders. John Bolton, Unsign That Treaty, Washington Post, January 2, 2001. In a subsequent law review article, Bolton warned:
A fair reading of the treaty, for example, leaves the objective observer unable to answer with confidence whether the United States was guilty of war crimes for its aerial bombing campaigns over Germany and Japan in World War II. … This is intolerable and unacceptable. The list of ambiguities goes on and on. How will these vague phrases be interpreted? Who will advise a President that he is unequivocally safe from the retroactive imposition of criminal liability if he guesses wrong? Is even the defensive use of nuclear weapons a criminal violation? ...
Moreover, there is no doubt that Israel will be the target of a complaint concerning conditions and practices by the Israeli military in the West Bank and Gaza. The United States, with continuous bipartisan support for many years, has attempted to minimize the disruptive role that the United Nations has all too often played in the Middle East peace process. We do not now need the ICC interjecting itself into extremely delicate matters at inappropriate times. Israel, therefore, was one of the few governments that voted with the United States against the statute.
John Bolton, The Risks and Weaknesses of the International Criminal Court from America’s Perspective, 64 Law and Contemporary Problems 167 (2001).
20. In June 2002, the Congressional Research Service summarized the Rome Statute’s “Political Implications” as follows:
Perspectives differ on the impact of the ICC on U.S. interests, once it begins operation. Some see the ICC as a fundamental threat to the U.S. armed forces, its political leaders, and U.S. defense and foreign policy. Others see it as a valuable foreign policy tool for defining and deterring crimes against humanity, a step forward in the decades-long U.S. effort to end impunity for egregious mass crimes.
CRS Report for Congress, RL21437, International Criminal Court: Overview and Selected Legal Issues (June 5, 2002) (emphasis added). Two months later, Congress enacted the American Servicemembers’ Protection Act (ASPA), 116 Stat. 899 (codified at 22 U.S.C. §§ 7421, et seq.), to address the risk of U.S. persons “being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” 22 U.S.C. § 7427. In enacting this law, Congress found “the Rome Statute creates a risk that the President and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court. … No less than members of the Armed Forces of the United States, senior officials of the United States Government should be free from the risk of prosecution by the International Criminal Court, especially with respect to official actions taken by them to protect the national interests of the United States.” 22 U.S.C. § 7421(9).
21. While the ASPA broadly regulates the United States’ relationship to the ICC to advance this purpose, Congress also permitted the United States to support ICC activities under certain circumstances. Id. §7422(c), §7433. Section 7433, for its part, provides statutory protection for many activities supporting the ICC’s efforts: “Nothing in this subchapter shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Queda [sic], leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity, or from rendering assistance to the International Criminal Court to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine.”
22. The United States has provided direct support to the work of the ICC in multiple situations consistent with its foreign policy interests. This support has transcended party lines, as both Democratic and Republican administrations have assisted several prominent ICC investigations and prosecutions.
23. On March 31, 2005, for example, the UN Security Council referred the situation in Darfur, Sudan, to the ICC for prosecution. UNSC, Resolution 1593, S/RES/1593 (2005). The United States contributed to the drafting of the resolution and acceded to its passage. In stating the reasons for its position, the Ambassador to the United Nations stated that the United States preferred the creation of an ad hoc tribunal, but acceded to the Security Council’s referral of the situation to the ICC’s jurisdiction, notwithstanding the fact that Sudan was not a party to the Rome Statute, “because of the need for the international community to work together in order to end the climate of impunity in Sudan, and because the resolution provides protection from investigation or prosecution for U.S. nationals and members of the armed forces of non-state parties.” Explanation of Vote on the Sudan Accountability Resolution, USUN Press Release #055 (05) (March 31, 2005).
24. On October 31, 2006, Congress endorsed the ICC’s Darfur prosecution and authorized the President to impose blocking sanctions against “any individual who the President determines is complicit in, or responsible for, acts of genocide, war crimes, or crimes against humanity in Darfur.” Darfur Peace and Accountability Act of 2006, P.L. 109-344 (October 13, 2006), 120 Stat. 1869. President Bush implemented these sanctions the same day. EO 13412, 71 Fed. Reg. 61396 (October 13, 2006).
25. Over the intervening two decades, Congress has supported the ICC’s Darfur investigation and prosecution through resolutions. See, e.g., S. Res. 188, 165 Cong. Rec. S4736 (Senate resolution approving of the work of the ICC in prosecuting former Sudanese president Al-Omar Al-Bashir). The most recent resolution was in November 2024, when the House passed by a super-majority voice vote, a resolution to “support[] tribunals and international criminal investigations to hold the [Sudanese Rapid Support Forces] and allied militias accountable for war crimes, crimes against humanity, and genocide.” Recognizing the actions of the Rapid Support Forces and allied militias in the Darfur region of Sudan against non-Arab ethnic communities as acts of genocide, H.Res. 1328 (November 20, 2024). The ICC is the only tribunal currently mandated to hold such individuals responsible, and the OTP is conducting the only international criminal investigation into these matters.
26. In 2020, Congress passed and the President signed a National Defense Appropriations Act that reiterated, “It is the policy of the United States to … promot[e] accountability for genocide, war crimes, crimes against humanity, and sexual and gender-based violence” and authorized the President, “[n]otwithstanding any other provision of law,” to provide foreign aid “(1) to build the capacity of civilian investigators within and outside of Sudan on how to document, investigate, develop findings of, identify, and locate those responsible for war crimes, crimes against humanity, or genocide in Sudan; [and] (2) to collect, document, and protect evidence of war crimes, crimes against humanity, and genocide in Sudan and preserve the chain of custody for such evidence, including by providing support for Sudanese, foreign, and international nongovernmental organizations, and other entities engaged in such investigative activities.” William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, 134 Stat. 3388 §§ 1263, 1267.
27. Every administration from the George W. Bush Administration to the present administration has supported the prosecution of those culpable for genocide, war crimes, and crimes against humanity in Darfur before the ICC. On January 7, 2025, Secretary of State Antony Blinken found the conflict in Sudan “has resulted in the world’s largest humanitarian catastrophe, leaving 638,000 Sudanese experiencing the worst famine in Sudan’s recent history, over 30 million people in need of humanitarian assistance, and tens of thousands dead.” Press Statement of Secretary of State Antony Blinken, Genocide Determination in Sudan and Imposing Accountability Measures, January 7, 2025.1 He also concluded that “war crimes,” “crimes against humanity and ethnic cleansing” had been committed in Sudan, culminating in a formal determination of genocide in Sudan and the announcement of various accountability measures. Id.
28. Similarly, the Trump administration has supported international accountability measures for Darfur war criminals, to include the ICC’s investigation.On January 27, 2025, Ambassador Dorothy Shea stated the United States position at the U.N. Security Council Briefing by the ICC Prosecutor that “Those responsible for these terrible crimes must be held accountable. Many responsible for atrocities over 20 years ago in Sudan remain at large. We urge the international community to work to bring those individuals to trial so they can be publicly held to account for their alleged crimes.” Remarks by Ambassador Dorothy Shea, Chargé d’Affaires ad interim, at a U.N. Security Council Briefing by the ICC Prosecutor, January 27, 2025.2
29. Following an April 1, 2025 outbreak of violence in Sudan that “targeted civilians and humanitarian actors in Zamzam and Abu Shouk … including killings of at least 10 U.S.-funded relief workers,” the State Department reiterated the United States’ humanitarian and foreign policy interests in upholding “international humanitarian law” in Sudan:
The belligerents must uphold their obligations under international humanitarian law and must be held accountable … [T]his conflict has caused death, destruction, and a displacement crisis that has the potential to destabilize the entire region, with massive flows of displaced people, arms, and disease.
Tammy Bruce, Press Briefing (April 15, 2025).3
30. To these ends, the State Department is offering a reward of “up to $5 million for information leading to [the] arrest [of Ahmad Mohammad Harun], transfer to the ICC, or conviction.” U.S. Department of State’s Global Criminal Justice Rewards Program.4 Ahmad Mohammad Harun is a former Sudanese government minister and is subject to United States sanctions as a Specially Designated National (SDN).
31. The United States has also endorsed other ICC investigations deemed to be in the national interest. In 2011, the United States voted with U.N. Security Council to refer the situation in Libya to the ICC for investigation and specifically urged “all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.” UNSC Res. 1700, ¶¶ 4-5 (Feb. 26, 2011). The United States Ambassador to the United Nations celebrated this resolution, saying “for the first time ever, the Security Council has unanimously referred an egregious human rights situation to the International Criminal Court.” United Nations, Security Council, 6491st Meeting, S/PV.6491, Feb. 26, 2011, at 3.
32. In 2013, the United States turned Bosco Ntaganda over to the ICC for prosecution for war crimes committed in the Democratic Republic of Congo after he sought refuge in the U.S. Embassy in Rwanda. Jeffrey Gettleman, Team on the Way to Collect Congo War Crimes Suspect, N.Y. Times, March 21, 2013, at A6. This action was unanimously endorsed in a resolution by the Senate. S. Res. 144, 159 Cong Rec. S5302.
33. In 2015, the United States transferred Dominic Ongwen, who had been taken into custody by the U.S. military to the ICC. The State Department publicly “welcome[d] the transfer of Dominic Ongwen by Central African authorities to the International Criminal Court.” U.S. Department of State, Press Release, “Transfer of Dominic Ongwen to the International Criminal Court,” January 20, 2015.
34. Congress has passed various legislation supporting the work of the ICC beyond Darfur as well. In 2008, Congress authorized military assistance to state parties of the ICC. National Defense Authorization Act for Fiscal Year 2008, 122 Stat. 3 § 1212. Congress has enabled the State Department to offer monetary rewards to individuals who provide information to facilitate the arrest of foreign individuals wanted by the ICC. Department of State Rewards Program Update and Technical Corrections Act of 2012, 126 Stat. 2492.
35. Congress has endorsed the work of the ICC outside Darfur in several joint and chamber-specific resolutions. See, e.g., S. Res. 90, 159 Cong. Rec. S2853 (Senate resolution “call[ing] on the Government of Kenya to respect commitments to seek justice for the victims of political violence, including by honoring its obligations under the Rome Statute to cooperate fully with the International Criminal Court.”); S.Con.Res.16, 153 Cong. Rec. S2540 (Joint resolution citing the ICC’s work to condemn the Lord’s Resistance Army in Uganda); S. Res. 402, 158 Cong. Rec. S6007 (reiterating the Senate’s support for the prosecution of Joseph Kony).
36. In 2022, the Senate unanimously passed a resolution relating to the ICC’s investigation of Russian crimes in Ukraine, stating “the International Criminal Court (ICC) is an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists, by investigating and trying individuals charged ‘with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression’” and resolved to “encourage[] member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate war crimes and crimes against humanity committed by the Russian Armed Forces and their proxies and President Putin’s military commanders, at the direction of President Vladimir Putin.” A resolution expressing the sense of the Senate condemning the Russian Federation, President Vladimir Putin, members of the Russian Security Council, the Russian Armed Forces, and Russian military commanders for committing atrocities, including alleged war crimes, against the people of Ukraine and others, S.Res. 546, March 15, 2022.
37. In 2024, Congress appropriated funds to support the ICC directly. This included “not less than $2,500,000 as a contribution to the Trust Fund for Victims” that is associated with the ICC. An additional $2,500,000 was also appropriated for “Assistance to International Efforts” that include supporting the ICC’s investigations and prosecutions of foreign nationals related to the situation in Ukraine. Public Law 118-47, Section 7034(r).
38. In October 2024, the Legal Advisor to the United States Mission to the United Nations extolled the virtues of the ICC’s work to the United Nations General Assembly: “The United States remains steadfast in its commitment to international justice and promoting accountability for violations of international humanitarian law … The work of the International Criminal Court is vital to this mission, and we welcome the ICC’s continued efforts … to deliver justice in situations where atrocities have been committed with impunity, including in Ukraine, Darfur, and the Central African Republic.” Mark Simonoff, United States Mission to the UN, October 28, 2024.5
39. U.S. courts have consistently cited the Rome Statute and the work of the ICC to interpret international law, see, e.g., Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1401 (2018); Nahl v. Jaoude, 968 F.3d 173, 188 (2d Cir. 2020); Simon v. Republic of Hungary, 812 F.3d 127, 143 (D.C. Cir. 2016); Hamdan v. United States, 696 F.3d 1238, 1250 (D.C. Cir. 2012), overruled on other grounds by Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014); Doe v. Exxon Mobil Corp., 391 F. Supp. 3d 76, 90 (D.D.C. 2019), and to evaluate applications for asylum. See, e.g., Wanjiru v. Holder, 705 F.3d 258, 260 (7th Cir. 2013).
C. The International Emergency Economic Powers Act (IEEPA)
40. IEEPA authorizes the President to take specific actions in response to a national emergency constituting an “unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” 50 U.S.C. § 1701(a). In particular, once the President has declared such an emergency, IEEPA permits the President to:
block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States. Id. § 1702(a)(1)(B).
41. The President may impose IEEPA sanctions only to respond to the “new threat” that gave rise to the national emergency—not for any other purpose. Id. § 1701(b). See also H.R. Rep. 95–459 at 10 (1977) (legislative history describing this limitation).
42. IEEPA sanctions regimes are implemented by the creation of designated foreign national “lists” that are administered by the Treasury Department’s Office of Foreign Asset Control (OFAC). Individuals subject to sanctions under IEEPA, so-called Specially Designated Nationals (SDNs), are said to be on “the OFAC List.” Once SDNs are on the OFAC List, they are sometimes described as being subjected to “civil death,” insofar as it becomes functionally unlawful for them to be employed, to access banking services, to travel, or to engage in most commerce that is basic to modern life.6
43. IEEPA makes it unlawful for anyone “to violate, attempt to violate, conspire to violate, or cause a violation of any license, order, regulation, or prohibition issued under” the statute. 50 U.S.C. § 1705(a). The consequences of violating IEEPA sanctions can be extremely severe. Anyone who violates IEEPA sanctions, intentionally or not, may be subject to a civil penalty equaling the greater of $377,700 or twice the value of the transaction giving rise to the violation. 50 U.S.C. § 1705(b); 90 Fed. Reg. 3687, 3688 (Jan. 15, 2025). Anyone who willfully violates IEEPA sanctions, attempts or conspires to do so, or aids and abets a violation faces criminal fines of up to $1,000,000 and up to twenty years in prison. 50 U.S.C. § 1705(c). The government has also prosecuted people for conspiracy to commit an offense against the United States under 18 U.S.C. § 371 in connection with the planned violation of an IEEPA order.
44. OFAC is responsible for the civil enforcement of IEEPA sanctions regimes, and it regularly imposes civil penalties on individuals and entities for IEEPA violations.
45. The Department of Justice is responsible for the criminal enforcement of IEEPA sanctions regimes, and it has frequently prosecuted persons for IEEPA violations.7
46. Thus, IEEPA orders trigger two distinct sets of consequences: (1) designation of sanctioned persons and their addition to the SDN List, and (2) enforcement of civil and criminal penalties for dealing in blocked property or providing goods or services to or for the benefit of a designated person. The threat of such penalties deters individuals, financial institutions, and other businesses and entities from interacting with designated persons.
47. Congress has imposed restrictions on the President’s authority under IEEPA. In addition to limiting the President’s authority to “unusual and extraordinary threat[s]”, IEEPA expressly denies the President “the authority to regulate or prohibit, directly or indirectly . . . the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials[.]” 50 U.S.C. § 1702(b). OFAC interprets this statutory limitation as applying only to information or informational materials fully created and in existence at the time of the transaction with the sanctioned person. See, e.g., 31 C.F.R. § 560.210(c)(2).
48. Only once before has a President attempted to use IEEPA to impose economic sanctions against the ICC. That attempt came in 2020 with EO 13928, when President Trump imposed sanctions on the ICC Prosecutor and one of her deputies. See EO 13928, Blocking Property of Certain Persons Associated With the International Criminal Court, 85 Fed. Reg. 36139 (June 15, 2020). In January 2021, the U.S. District Court for the Southern District of New York preliminarily enjoined the enforcement of EO 13928 because it violated the First Amendment. OSJI v. Trump, 510 F.Supp.3d 198 (S.D.N.Y. 2021) (“the restrictions prohibit or chill significantly more speech than even Defendants seem to believe is necessary to achieve their end, i.e., to obtain and exert leverage over [ICC personnel] so as to induce them to desist from their investigation of U.S. and allied personnel”).
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D. Executive Order 14203
49. On February 6, 2025, President Trump issued EO 14203, Imposing Sanctions on the International Criminal Court, 90 Fed. Reg. 9369 § 1 (February 6, 2025) (EO 14203), which was substantively identical to EO 13928. The President determined “that any effort by the ICC to investigate, arrest, detain, or prosecute protected persons, as defined in section 8(d) of this order, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and [] hereby declar[ing] a national emergency to address that threat.”
50. The President made clear that the relevant threat was the ICC’s investigation and prosecution of “protected persons” only, and authorized blocking sanctions to counter “any ICC actions against the United States, Israel, or any other ally of the United States that has not consented to ICC jurisdiction.” Id. “Protected person” is defined as a national of an “ally of the United States,” which is, in turn, defined as a NATO member state or a “major non-NATO ally” (MNNA). Id. § 8(d). There are currently 19 countries designated as MNNAs as well as Taiwan.8 Sudanese nationals, such as those being prosecuted for perpetrating genocide in Darfur, are not protected persons.
51. EO 14203 imposes blocking sanctions on foreign persons who are deemed to have “directly engaged” or “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of,” or were “owned or controlled by, or … have acted or purported to act for on behalf of, directly or indirectly” the International Criminal Court’s efforts to “investigate, arrest, detain or prosecute a protected person without consent of that person’s country of nationality.” EO 14203 § 1.
52. EO 14203 prohibits individuals from directly or indirectly providing funds, goods, or services to or for the benefit of an SDN, or receiving funds, goods, or services from an SDN. It is also unlawful to cause or conspire to another person to violate EO 14203 or to evade the prohibitions of EO 14203. Engaging in conduct prohibited by EO 14203 may incur civil and criminal liability.
53. As noted, OFAC and the Justice Department are empowered to enforce EO 14203’s prohibitions. Civil liability, which can be imposed by OFAC for any violation on a strict liability basis, extends up to $377,700 per violation. Criminal liability, which can be imposed for willful violations of EO 14203, extends up to a $1,000,000 fine per violation and/or imprisonment for up to twenty years.
54. On February 9, 2025, the President published an Annex to EO 14203, which designated Karim Khan, the Prosecutor of the OTP, as an SDN.
E. EO 14203 Impairs Plaintiff’s ability to Carry Out his Professional Duties.
55. EO 14203 and the designation of the ICC Prosecutor as an SDN directly impairs, if not totally prohibits, Mr. Iverson from engaging in the practice of law and engaging in otherwise protected expression as part of his professional duties as a prosecutor in the OTP. Iverson Decl. ¶¶ 26-30. Because EO 14203 has designated the ICC Prosecutor, there is a substantial risk that any action taken by any staff member of the OTP will be construed by Defendants as the provision of a direct or indirect benefit to an SDN. The staff of the OTP are, by law, at the “disposal” of the Prosecutor, and entrusted by law with conducting criminal prosecutions under his direct supervision and control, and in his name.
56. Nearly all – if not all – written legal analysis and pleadings prepared by Mr. Iverson in the normal course for the Prosecutor involve specialized knowledge. The same is true with respect to participating in meetings with the Prosecutor, or others acting under his control or on his behalf, providing presentations, advice, and training to the Prosecutor or those who serve at the Prosecutor’s direction; conducting and supervising research in support of pleadings signed by the Prosecutor and/or filed at his direction; as well as making legal arguments, examining witnesses, or otherwise engaging in the practice of law in support of ICC prosecutions for which the Prosecutor has not been disqualified. And the Prosecutor is lead counsel on all cases but one involving Darfur. See Statement of ICC Prosecutor Karim Khan to the United Nations Security Council on the Situation in Darfur, pursuant to Resolution 1593, January 28, 2025 (“my Office is taking the necessary steps to put forward applications for warrants of arrest in relation to crimes we allege are being committed, and have been committed, in West Darfur.”).9 Under the broad terms of EO 14203 as written, there is a non-speculative risk that if Mr. Iverson engages in these routine forms of expressive conduct that all are incident to the ordinary practice of law, it will be deemed by Defendants to be the provision of “education, training, advice, and other forms of assistance,” “interactive services,” or “bespoke’ legal services” to an SDN. OSJI, 510 F.Supp.3d at 210; see Holder v. Humanitarian Law Project, 561 U.S. 1, 27 (2010); United States v. Balagia, Case No. 21-40366 (5th Cir., Feb. 6, 2023).
57. Mr. Iverson and those he supervises are routinely required to travel on mission to conduct investigations into war crimes, crimes against humanity, and genocide under the auspices of the OTP. Iverson Decl. ¶ 27. Those missions are conducted at the direction and under the control of the Prosecutor. Participating in those missions necessarily involves the collection and preparation of non-public information for ultimate use in OTP prosecutions conducted under the authority of the Prosecutor. Under the broad terms of EO 14203, there is a non-speculative risk that such activities will be deemed by Defendants to be the prohibited receipt and provision of services and other things of value to an SDN. See United States v. Amirnazmi, 645 F.3d 564, 569 (3d Cir. 2011).
58. By law, the Prosecutor determines what human, monetary, and material resources individual trial teams will have at their disposal. Mr. Iverson must coordinate with the Prosecutor to request resources for the purpose of conducting investigations and building cases for prosecution. Those communications necessarily involve the communication of non-public information. Under the broad terms of EO 14203, there is a non-speculative risk that those communications with an SDN and receiving resources that are at the direction of an SDN will be deemed by Defendants to be respectively, the provision of prohibited services to an SDN, and the receiving of material benefits from an SDN.
59. In the absence of a specific license, which OFAC has thus far declined to grant, Mr. Iverson cannot take reasonable steps to avoid these non-speculative risks, short of abandoning his career and ceasing to practice law at the ICC. Indeed, OFAC’s position is that liability for sanctions violations can result, even where individuals have attempted to comply with a sanctions program in good faith. For example, in 2022, OFAC issued a Finding of Violation10 against a bank that continued to service SDNs for approximately two weeks after their designations because, while the third-party KYC was implementing software changes to comply with sanctions, the software was slow to update. OFAC, OFAC Issues a Finding of Violation to MidFirst Bank for Violations of the Weapons of Mass Destruction Proliferators Sanctions Regulations, July 21, 2022.
60. Critically, the fact that Mr. Iverson does not work on any matter involving a “protected person” within the meaning of EO 14203 provides no protection to him from EO 14203. That is because there is no carve out from the EO’s prohibitions for work done for or in coordination with the ICC Prosecutor if such work is unrelated to “protected persons.” Thus, Mr. Iverson faces the imminent risk of ruinous civil penalties imposed on a strict liability basis, and/or criminal penalties including millions of dollars in fines and twenty years’ imprisonment even if his professional activities relate only to prosecutions the United States has supported from their inception, such as those relating to Darfur. In fact, Mr. Iverson faces liability even if he continues to lead the investigation of international fugitive, Ahmad Mohammad Harun, for whom the United States is offering a $5,000,000 reward in support of his arrest and extradition to the ICC.
61. These non-speculative risks have already caused material harms to and inhibited Mr. Iverson from engaging in the practice of law. Iverson Compl. ¶¶ 26-30. As lead counsel on the Darfur cases, Mr. Iverson must supervise investigations and lead subordinate prosecutors, investigators, and analysts who work on those investigations. As of February 9, 2025, when the Prosecutor was designated as an SDN, work on the Darfur cases has been significantly impaired. Id. Out of fear of being prosecuted or fined, Mr. Iverson has refrained from supervising the investigations, contacting witnesses and sources, or planning on-going projects. Id. These harms have been exacerbated by the fact that Mr. Iverson is one of the Darfur team’s only Arabic speakers and is responsible for handling the Darfur team’s most sensitive sources. Id. In short, EO 14203 has frozen Mr. Iverson’s ability to investigate or otherwise develop cases for prosecution of grave humanitarian crimes in Darfur.
62. After waiting sixty (60) days to see whether OFAC would issue general licenses or regulations narrowing EO 14203’s broad sweep, the Association of International Criminal Law Prosecutors (AICLP) applied for a specific license for its members “to engage in the practice of law, or otherwise support the investigation, arrest, detention, and prosecution of individuals accused of international crimes before the ICC, provided that such conduct is not directed at a protected person without consent of that person’s country of nationality within the meaning of E.O. 14203.” Ref. No. AICLP-ICC-1, Case No. ICC-EO14203-2025-1370890-1 (April 7, 2025). AICLP is a tax-exempt nonstock corporation established under the laws of Maryland that serves as a professional association for individuals who have served or are serving as prosecutors, analysts, investigators, or other legal staff at an international or hybrid criminal tribunal/court, such as the International Criminal Court.
63. Mr. Iverson is a member of AICLP and provided direct support to its specific license application, which named him. AICLP’s specific license application remains pending before OFAC as of the date of this filing. Should OFAC grant AICLP’s specific license application, Mr. Iverson’s activities described above would all fall within its scope and this case would become moot.
GROUNDS FOR RELIEF
GROUND I
EO 14203 Violates the First Amendment
64. Mr. Iverson incorporates by reference paragraph 4 – 63 supra.
65. EO 14203 prohibits Mr. Iverson and others like him from engaging in speech and advocacy that Defendants determine constitutes the provision of services to Karim Khan, the Prosecutor for the ICC and the head of the OTP. Mr. Iverson wishes to continue pursuing his investigational and prosecutorial mandates in Darfur at the direction of the OTP but has been chilled from doing so because of the substantial risk that he will be penalized for providing services “for the benefit of” Prosecutor Khan.
66. EO 141203 violates the First Amendment in at least three distinct ways. First, it is unlawfully overbroad by prohibiting First Amendment activities that have no relationship to the need to shield “protected persons” from investigation or prosecution before the ICC. Second, EO 14203 is a content-based restriction on speech that discriminates based on viewpoint by targeting only expression that could be construed as benefit the Prosecutor, while permitting expression that is adverse to the Prosecutor, even in the context of proceedings before the ICC. Third, EO 14203 broadly prohibits U.S. citizens, such as Mr. Iverson, from engaging in the core First Amendment protected activities that are incident to the practice of law, including conducting investigations to ascertain the truth, communicating with witnesses, experts, and others, preparing reports and memoranda, and advocating for criminal accountability.
GROUND II
EO 14203 Violates 50 U.S.C. § 1702(b)
67. Mr. Iverson incorporates by reference paragraph 4 – 63 supra.
68. IEEPA forbids the President from using its authorities to “regulate or prohibit, directly or indirectly … any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value,” as well as the import/export of “any information or informational materials, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.” 50 U.S.C. §§ 1702(b)(1) and (3).
69. The so-called “Berman Amendments” were enacted by Congress to ensure that the President could not use IEEPA authorities to “prohibit or restrict directly or indirectly the import or export of information that is protected under the First Amendment to the U.S. Constitution.” H.R. Conf. Rep. No. 103-482, at 239 (1994). To that end, the exception was “explicitly intended, by including the words ‘directly or indirectly,’ to have a broad scope,” and to “facilitate transactions and activities incident to the flow of information and informational materials without regard to the type of information, its format, or means of transmission.” Id.
70. EO 14203 explicitly seeks to regulate transactions and activities incident to the flow of information. It designates “any effort by the ICC to investigate … or prosecute” particular individuals for particular crimes as sanctionable conduct, which expressly targets the collection and dissemination of information as well as advocacy. It further treats as sanctionable those who “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of,” the dissemination of such information
71. The provisions bar Mr. Iverson from engaging in transactions involving information and informational materials, including legal filings and internal documents detailing evidence of grave crimes committed in Darfur to the Prosecutor, which activities he carries out in the normal course of his work as an ICC attorney. Under EO 14203, Mr. Iverson is at significant risk of severe civil and criminal penalties if he carries on these duties..
72. EO 14203 violates § 1701(b) and is ultra vires of IEEPA because it purports to regulate or prohibit, and purports to authorize Defendants to regulate or prohibit, acts that are exempt from regulation or prohibition under IEEPA, including the transmission of information and informational materials, thereby chilling the provision of such materials. EO 14203 is therefore void.
GROUND III
EO 14203 Violates 50 U.S.C. § 1701(b)
and Is Precluded by Subsequent Legislation
73. Mr. Iverson incorporates by reference paragraph 4 – 63 supra.
74. IEEPA is explicit that the President may only invoke its sanctions “to deal with an unusual and extraordinary threat” to the foreign policy interests of the United States. 50 U.S.C. § 1701(b). Specifically, the President must be confronting a “new threat.” Id. And the “authorities granted to the President” to impose sanctions and to enforce those sanctions with ruinous civil and criminal penalties, “may not be exercised for any other purpose.” Id.
75. The threat EO 14203 purports to address is not “unusual,” “extraordinary,” or “new.” To the contrary, in the American Servicemembers’ Protection Act, Congress directly spoke to the risk of U.S. persons “being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” 22 U.S.C. § 7427. Congress has enacted a detailed regulatory scheme to address this risk. Congress has refrained from either imposing or authorizing sanctions against the ICC or its personnel or creating any criminal penalties associated with the work of the ICC. When Congress enacted this law, and made subsequent amendments, the risks to the United States and its allies were well known; indeed, they were the impetus for the law’s enactment. Congress has never enacted any criminal prohibitions to enforce these mandates. And Congress has declined to pass several legislative attempts to impose sanctions on the ICC.
76. Congress has also authorized the provision of direct support to the ICC in connection with its activities, including on cases involving Darfur. Congress has also supported and endorsed the work of the ICC as being in the national interest. The probable and desired effect of EO 14203 is to nullify Congress’ carefully crafted scheme, developed over two decades, to balance the risk that nationals of the United States and its allies might be subject to the jurisdiction of the ICC with Congress’ equal recognition that the ICC performs work in the national interest.
77. Rather than address itself to an “unusual and extraordinary threat,” EO 14203 effectively criminalizes not only the work of the ICC Prosecutor, but of any U.S. person who works for the ICC’s OTP anywhere in the world. Even the broad and general terms of IEEPA do not permit the President, through executive order, to override the specific and carefully crafted Congressional legislation respecting the ICC. EO 14203 is therefore precluded.
PRAYER FOR RELIEF
WHEREFORE, Mr. Iverson asks this honorable court to:
1. Enter a judgment declaring that EO 14203 violates the First Amendment;
2. Enter a judgment declaring that EO 14203 violates 50 U.S.C. § 1702(b);
3. Enter a judgment declaring that EO 14203 violates 50 U.S.C. § 1701(b) because the threat the ICC poses to “protected persons” is not a “new” “unusual and extraordinary threat” within the meaning of 50 U.S.C. § 1701(b), and is precluded by more specific Congressional legislation;
4. Enter a judgment enjoining Defendants from commencing or authorizing any prosecution of Mr. Iverson under EO 14203 or IEEPA for exercising his First Amendment rights, including by engaging in the practice of law, in relation to his work on Darfur;
5. Enter a judgment enjoining Defendants from commencing or authorizing any civil enforcement proceeding against Mr. Iverson under EO 14203 or IEEPA, in relation to his work on Darfur;
6. Award Mr. Iverson his costs and reasonable attorneys’ fees incurred in this action; and
7. Order other such relief as this Court deems proper.
Dated: May 5, 2025
Washington, D.C.
Respectfully submitted,
______________________
/s/ Allison Ferber Miller
Allison Ferber Miller
Law Office of Allison Ferber Miller
5619 2nd Street South
Arlington, VA 22204
(321) 945-7615
Joshua Colangelo-Bryan*
HUMAN RIGHTS FIRST
121 West 36th Street, PMB 520
New York, NY 10018
(212) 845-5243
* Pro hac vice application forthcoming
Attorneys for Plaintiff
**********
Attachment A
Declaration of Eric Iverson, May 2, 2025 (Redacted)
FILED UNDER SEAL
DECLARATION OF ERIC R. IVERSON
I, Eric R. Iverson, hereby declare as follows:
1. I am a U.S. citizen, an attorney, and a member of the bar of South Dakota. I am currently serving as the Head of the Darfur Unified Team and lead counsel for the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in its investigations of alleged war crimes and atrocities committed in Darfur, Sudan. My supervisory responsibilities include directing evidence collection, coordinating with international and local partners, and developing prosecutorial legal strategies to ensure accountability for these grave crimes.
2. [COMPLETELY DELETED]
3. EO 14203 prevents me from proposing or executing an investigative strategy [DELETE], because doing so requires that I coordinate my investigative activities with the Prosecutor, Karim Khan, who has been designated as a Specially Designated National (SDN). This has precluded me from investigating and establishing a record of the very mass atrocities for which I am particularly skilled to investigate, because I cannot consistent with EO 14203, directly and/or indirectly provide expert services and benefits to Karim Khan.
Background
4. I am a fifth-generation South Dakotan and the first non-farmer/rancher in my family. [DELETE] n 1998, the Army awarded me an ROTC “Green to Gold” scholarship, which allowed me to attend and graduate from the University of Minnesota in 2001 with a degree in International Relations. In 2002, I completed an LLM in International Human Rights Law at Utrecht University, The Netherlands. In February 2003, I was commissioned as a second lieutenant and received an educational delay to attend law school at American University, from where I graduated in May 2006.
5. [DELETE] In October 2006, I entered active duty in the U.S. Army Judge Advocate General’s Corps with which I served until I resigned from active duty in 2010.
Structure of the ICC
6. In October 2010, I accepted a position as a Trial Lawyer in the ICC’s OTP. In that position I served as a prosecutor on the trials of Prosecutor v. Bemba, Prosecutor v. Ntaganda, and Prosecutor v. Yekatom et al, all arising out of events in the Central African Republic and the Democratic Republic of the Congo.
7. Pursuant to Article 42 of the Rome Statute that established the ICC, the OTP is mandated to act independently as a separate organ of the ICC in the investigation and prosecution of crimes within the ICC’s jurisdiction. The OTP is headed by the Prosecutor of the ICC and two Deputy Prosecutors, who are elected by the members of the Assembly of States Parties.
8. All OTP staff serve under the direct supervision and control of the Prosecutor, except in cases where the Prosecutor has been disqualified. Cases before the ICC are brought in the name of the Prosecutor, who serves as lead counsel, is responsible for signing any OTP pleadings submitted, and is responsible formally and professionally for the conduct of any prosecution. The current Prosecutor is Karim A.A. Khan, K.C., a barrister from the United Kingdom, who was elected by the Assembly of States Parties as the Prosecutor of the ICC on February 12, 2021, and was sworn in on June 16, 2021.
My Work on Darfur
9. Darfur is a region in western Sudan that has been engulfed in protracted conflict since 2002. The conflict in Darfur is complex but generally arises from long-standing resource, ethnic, and power struggles between Arab militias, the central Sudanese government (as it has evolved over time), and regional ethnic groups. In the early 2000s, the conflict caused an estimated 300,000 deaths and displaced millions of people. Peace agreements were reached in 2010 and 2020, but each period of peace has been temporary.
10. In 2023, ethnic violence and armed conflict reignited amid rising tensions between competing government and militia factions, namely the Sudanese Armed Forces (SAF) and Rapid Support Forces (RSF). In January of this year, United States Secretary of State Antony Blinken declared that the conflict between the SAF and RSF over the last two years has resulted in the world’s largest humanitarian catastrophe and that genocide, crimes against humanity, and ethnic cleaning have been committed in Sudan.
11. In 2005, the United Nations Security Council (UNSC), including the United States, determined that the situation in Darfur constituted a threat to international peace and security. Accordingly, the UNSC referred the situation in Darfur to the ICC through Resolution 1593, effectively permitting the ICC to exercise jurisdiction over certain war crimes and crimes against humanity committed in Darfur, Sudan, from 2002 onwards.
12. Since 2005, the ICC’s investigation into the situation in Darfur has resulted in charges of genocide, war crimes, and crimes against humanity being brought against highranking officials.
13. On October 21, 2021, I was assigned to the Darfur Unified Team and was subsequently elevated to the Head of that team. I am now lead counsel on the cases of Prosecutor v. Al-Bashir, Prosecutor v. Hussein, and Prosecutor v. Harun as well as on ongoing investigations arising out of the situation in Darfur, Sudan.
14. [DELETED]
15. [DELETED]
16. [DELETED]
17. [DELETED]
18. [DELETED]
19. [DELETED]
20. [DELETED]
21. I possess specialized qualifications that are critical to the effective and timely investigation of atrocities committed in Darfur.
22. I am fluent in Arabic [DELETE] his skill set enables direct communication with survivors, witnesses, and local stakeholders in North Darfur. This linguistic capability ensures accurate collection of testimonies without reliance on interpreters, minimizing miscommunication and fostering trust with affected communities, which is essential for rapid evidence gathering.
23. [DELETED]
24. [DELETED]
25. With 15 years of experience in international criminal law, I am adept at building cases for genocide, war crimes, and crimes against humanity. My expertise ensures that evidence is collected and preserved in a manner admissible before the ICC, even under challenging field conditions, making my role pivotal to uncovering relevant information, developing that information into a coherent picture of the truth, and ensuring the investigation’s success.
The Effect of EO 14203
26. EO 14203 imposed blocking sanctions on the Prosecutor, Karim Khan, and prohibits U.S. persons, including myself and many members of my team, from providing or receiving goods and services to him or from him. These prohibitions create insurmountable obstacles to my ability to do my job for fear that work I do, and that I must instruct others to do, will be viewed by U.S. authorities as providing services for the benefit of Prosecutor Khan, who ultimately heads the OTP.
27. In connection with investigating and prosecuting cases, I am required to share evidence with the Prosecutor – or at the very least make it available to him. I am obliged to draft legal pleadings that the Prosecutor signs and submits to judges under the authority of his office. I am obliged to consult with the Prosecutor on case strategy. I am obliged to obtain the Prosecutor’s approval to travel for investigatory purposes. I am obliged to seek his approval to allocate personnel or other investigatory resources to investigation or advocacy.
28. Since the Prosecutor was sanctioned, I have scrupulously avoided activities that could be construed as providing or receiving any services, benefits, or things of value to or from him. [DELETE]
29. Put differently, EO 14203 has inhibited me – and continues to inhibit me – from fulfilling the time-critical investigative and prosecutorial duties pertaining to Darfur that I would be carrying out in the absence of EO 14203.
30. As a U.S. citizen, I face an irreconcilable dilemma between my professional obligations as an ICC lawyer to investigate and prosecute atrocities on the one hand and complying with EO 14203 on the other. I have dedicated my career to using my voice, experience, and specialized skills to ensure accountability for those who perpetrate atrocities that stand out singularly in the world. Throughout my career in the Army and at the OTP, the objectives of my investigations and trial work have been fully supported by the United States. Yet, EO 14203, as presently implemented, is preventing me from doing that work, [DELETE] eyond the harm that I am suffering as a result, I fear that the consequences of my inability to investigate and advocate will be borne most heavily by the people of Darfur, whose chance for justice becomes more tenuous each day that goes by without action.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on May 2, 2025
____________________
Eric Iverson
_______________
Notes:
1 https://geneva.usmission.gov/2025/01/07 ... -in-sudan/
2 https://usun.usmission.gov/remarks-at-a ... -forsudan- 4/
3 https://www.state.gov/briefings/departm ... il-15-2025
4 Available at https://2021-2025.state.gov/global-crim ... entreward- offers/. The State Department page for the Global Criminal Justice Rewards Program no longer advertises ICC rewards at the time of this filing: https://www.state.gov/global-criminaljustice- rewards-program/. However, there is no indication that the offer of these rewards has been withdrawn.
5 https://usun.usmission.gov/remarks-at-a ... rnational- criminal-court-2/
6 See Adam Smith, Dissecting the Executive Order on ICC Sanctions (June 15, 2020) at https://www.justsecurity.org/70779/diss ... sanctions- scope-effectiveness-and-tradeoffs/
7 See Summary of Major U.S. Export Enforcement, Economic Espionage, and Sanctions-Related Criminal Cases, U.S. Dep’t of Justice (Nov. 2019), https://www.justice.gov/nsd/page/file/1044446/download.
8 The current MNNAs are Argentina, Australia, Bahrain, Brazil, Colombia, Egypt, Israel, Japan, Jordan, Kenya, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, Qatar, South Korea, Thailand, and Tunisia.
9 https://www.icc-cpi.int/news/statement- ... ssecurity- council-situation-darfur
10 A Finding of Violation, or “FOV,” is an enforcement penalty akin to a citation. It is often used in place of a fine where the violation was self-reported and where OFAC has obtained additional assurances of future compliance.
D. Executive Order 14203
49. On February 6, 2025, President Trump issued EO 14203, Imposing Sanctions on the International Criminal Court, 90 Fed. Reg. 9369 § 1 (February 6, 2025) (EO 14203), which was substantively identical to EO 13928. The President determined “that any effort by the ICC to investigate, arrest, detain, or prosecute protected persons, as defined in section 8(d) of this order, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and [] hereby declar[ing] a national emergency to address that threat.”
50. The President made clear that the relevant threat was the ICC’s investigation and prosecution of “protected persons” only, and authorized blocking sanctions to counter “any ICC actions against the United States, Israel, or any other ally of the United States that has not consented to ICC jurisdiction.” Id. “Protected person” is defined as a national of an “ally of the United States,” which is, in turn, defined as a NATO member state or a “major non-NATO ally” (MNNA). Id. § 8(d). There are currently 19 countries designated as MNNAs as well as Taiwan.8 Sudanese nationals, such as those being prosecuted for perpetrating genocide in Darfur, are not protected persons.
51. EO 14203 imposes blocking sanctions on foreign persons who are deemed to have “directly engaged” or “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of,” or were “owned or controlled by, or … have acted or purported to act for on behalf of, directly or indirectly” the International Criminal Court’s efforts to “investigate, arrest, detain or prosecute a protected person without consent of that person’s country of nationality.” EO 14203 § 1.
52. EO 14203 prohibits individuals from directly or indirectly providing funds, goods, or services to or for the benefit of an SDN, or receiving funds, goods, or services from an SDN. It is also unlawful to cause or conspire to another person to violate EO 14203 or to evade the prohibitions of EO 14203. Engaging in conduct prohibited by EO 14203 may incur civil and criminal liability.
53. As noted, OFAC and the Justice Department are empowered to enforce EO 14203’s prohibitions. Civil liability, which can be imposed by OFAC for any violation on a strict liability basis, extends up to $377,700 per violation. Criminal liability, which can be imposed for willful violations of EO 14203, extends up to a $1,000,000 fine per violation and/or imprisonment for up to twenty years.
54. On February 9, 2025, the President published an Annex to EO 14203, which designated Karim Khan, the Prosecutor of the OTP, as an SDN.
E. EO 14203 Impairs Plaintiff’s ability to Carry Out his Professional Duties.
55. EO 14203 and the designation of the ICC Prosecutor as an SDN directly impairs, if not totally prohibits, Mr. Iverson from engaging in the practice of law and engaging in otherwise protected expression as part of his professional duties as a prosecutor in the OTP. Iverson Decl. ¶¶ 26-30. Because EO 14203 has designated the ICC Prosecutor, there is a substantial risk that any action taken by any staff member of the OTP will be construed by Defendants as the provision of a direct or indirect benefit to an SDN. The staff of the OTP are, by law, at the “disposal” of the Prosecutor, and entrusted by law with conducting criminal prosecutions under his direct supervision and control, and in his name.
56. Nearly all – if not all – written legal analysis and pleadings prepared by Mr. Iverson in the normal course for the Prosecutor involve specialized knowledge. The same is true with respect to participating in meetings with the Prosecutor, or others acting under his control or on his behalf, providing presentations, advice, and training to the Prosecutor or those who serve at the Prosecutor’s direction; conducting and supervising research in support of pleadings signed by the Prosecutor and/or filed at his direction; as well as making legal arguments, examining witnesses, or otherwise engaging in the practice of law in support of ICC prosecutions for which the Prosecutor has not been disqualified. And the Prosecutor is lead counsel on all cases but one involving Darfur. See Statement of ICC Prosecutor Karim Khan to the United Nations Security Council on the Situation in Darfur, pursuant to Resolution 1593, January 28, 2025 (“my Office is taking the necessary steps to put forward applications for warrants of arrest in relation to crimes we allege are being committed, and have been committed, in West Darfur.”).9 Under the broad terms of EO 14203 as written, there is a non-speculative risk that if Mr. Iverson engages in these routine forms of expressive conduct that all are incident to the ordinary practice of law, it will be deemed by Defendants to be the provision of “education, training, advice, and other forms of assistance,” “interactive services,” or “bespoke’ legal services” to an SDN. OSJI, 510 F.Supp.3d at 210; see Holder v. Humanitarian Law Project, 561 U.S. 1, 27 (2010); United States v. Balagia, Case No. 21-40366 (5th Cir., Feb. 6, 2023).
57. Mr. Iverson and those he supervises are routinely required to travel on mission to conduct investigations into war crimes, crimes against humanity, and genocide under the auspices of the OTP. Iverson Decl. ¶ 27. Those missions are conducted at the direction and under the control of the Prosecutor. Participating in those missions necessarily involves the collection and preparation of non-public information for ultimate use in OTP prosecutions conducted under the authority of the Prosecutor. Under the broad terms of EO 14203, there is a non-speculative risk that such activities will be deemed by Defendants to be the prohibited receipt and provision of services and other things of value to an SDN. See United States v. Amirnazmi, 645 F.3d 564, 569 (3d Cir. 2011).
58. By law, the Prosecutor determines what human, monetary, and material resources individual trial teams will have at their disposal. Mr. Iverson must coordinate with the Prosecutor to request resources for the purpose of conducting investigations and building cases for prosecution. Those communications necessarily involve the communication of non-public information. Under the broad terms of EO 14203, there is a non-speculative risk that those communications with an SDN and receiving resources that are at the direction of an SDN will be deemed by Defendants to be respectively, the provision of prohibited services to an SDN, and the receiving of material benefits from an SDN.
59. In the absence of a specific license, which OFAC has thus far declined to grant, Mr. Iverson cannot take reasonable steps to avoid these non-speculative risks, short of abandoning his career and ceasing to practice law at the ICC. Indeed, OFAC’s position is that liability for sanctions violations can result, even where individuals have attempted to comply with a sanctions program in good faith. For example, in 2022, OFAC issued a Finding of Violation10 against a bank that continued to service SDNs for approximately two weeks after their designations because, while the third-party KYC was implementing software changes to comply with sanctions, the software was slow to update. OFAC, OFAC Issues a Finding of Violation to MidFirst Bank for Violations of the Weapons of Mass Destruction Proliferators Sanctions Regulations, July 21, 2022.
60. Critically, the fact that Mr. Iverson does not work on any matter involving a “protected person” within the meaning of EO 14203 provides no protection to him from EO 14203. That is because there is no carve out from the EO’s prohibitions for work done for or in coordination with the ICC Prosecutor if such work is unrelated to “protected persons.” Thus, Mr. Iverson faces the imminent risk of ruinous civil penalties imposed on a strict liability basis, and/or criminal penalties including millions of dollars in fines and twenty years’ imprisonment even if his professional activities relate only to prosecutions the United States has supported from their inception, such as those relating to Darfur. In fact, Mr. Iverson faces liability even if he continues to lead the investigation of international fugitive, Ahmad Mohammad Harun, for whom the United States is offering a $5,000,000 reward in support of his arrest and extradition to the ICC.
61. These non-speculative risks have already caused material harms to and inhibited Mr. Iverson from engaging in the practice of law. Iverson Compl. ¶¶ 26-30. As lead counsel on the Darfur cases, Mr. Iverson must supervise investigations and lead subordinate prosecutors, investigators, and analysts who work on those investigations. As of February 9, 2025, when the Prosecutor was designated as an SDN, work on the Darfur cases has been significantly impaired. Id. Out of fear of being prosecuted or fined, Mr. Iverson has refrained from supervising the investigations, contacting witnesses and sources, or planning on-going projects. Id. These harms have been exacerbated by the fact that Mr. Iverson is one of the Darfur team’s only Arabic speakers and is responsible for handling the Darfur team’s most sensitive sources. Id. In short, EO 14203 has frozen Mr. Iverson’s ability to investigate or otherwise develop cases for prosecution of grave humanitarian crimes in Darfur.
62. After waiting sixty (60) days to see whether OFAC would issue general licenses or regulations narrowing EO 14203’s broad sweep, the Association of International Criminal Law Prosecutors (AICLP) applied for a specific license for its members “to engage in the practice of law, or otherwise support the investigation, arrest, detention, and prosecution of individuals accused of international crimes before the ICC, provided that such conduct is not directed at a protected person without consent of that person’s country of nationality within the meaning of E.O. 14203.” Ref. No. AICLP-ICC-1, Case No. ICC-EO14203-2025-1370890-1 (April 7, 2025). AICLP is a tax-exempt nonstock corporation established under the laws of Maryland that serves as a professional association for individuals who have served or are serving as prosecutors, analysts, investigators, or other legal staff at an international or hybrid criminal tribunal/court, such as the International Criminal Court.
63. Mr. Iverson is a member of AICLP and provided direct support to its specific license application, which named him. AICLP’s specific license application remains pending before OFAC as of the date of this filing. Should OFAC grant AICLP’s specific license application, Mr. Iverson’s activities described above would all fall within its scope and this case would become moot.
GROUNDS FOR RELIEF
GROUND I
EO 14203 Violates the First Amendment
64. Mr. Iverson incorporates by reference paragraph 4 – 63 supra.
65. EO 14203 prohibits Mr. Iverson and others like him from engaging in speech and advocacy that Defendants determine constitutes the provision of services to Karim Khan, the Prosecutor for the ICC and the head of the OTP. Mr. Iverson wishes to continue pursuing his investigational and prosecutorial mandates in Darfur at the direction of the OTP but has been chilled from doing so because of the substantial risk that he will be penalized for providing services “for the benefit of” Prosecutor Khan.
66. EO 141203 violates the First Amendment in at least three distinct ways. First, it is unlawfully overbroad by prohibiting First Amendment activities that have no relationship to the need to shield “protected persons” from investigation or prosecution before the ICC. Second, EO 14203 is a content-based restriction on speech that discriminates based on viewpoint by targeting only expression that could be construed as benefit the Prosecutor, while permitting expression that is adverse to the Prosecutor, even in the context of proceedings before the ICC. Third, EO 14203 broadly prohibits U.S. citizens, such as Mr. Iverson, from engaging in the core First Amendment protected activities that are incident to the practice of law, including conducting investigations to ascertain the truth, communicating with witnesses, experts, and others, preparing reports and memoranda, and advocating for criminal accountability.
GROUND II
EO 14203 Violates 50 U.S.C. § 1702(b)
67. Mr. Iverson incorporates by reference paragraph 4 – 63 supra.
68. IEEPA forbids the President from using its authorities to “regulate or prohibit, directly or indirectly … any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value,” as well as the import/export of “any information or informational materials, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.” 50 U.S.C. §§ 1702(b)(1) and (3).
69. The so-called “Berman Amendments” were enacted by Congress to ensure that the President could not use IEEPA authorities to “prohibit or restrict directly or indirectly the import or export of information that is protected under the First Amendment to the U.S. Constitution.” H.R. Conf. Rep. No. 103-482, at 239 (1994). To that end, the exception was “explicitly intended, by including the words ‘directly or indirectly,’ to have a broad scope,” and to “facilitate transactions and activities incident to the flow of information and informational materials without regard to the type of information, its format, or means of transmission.” Id.
70. EO 14203 explicitly seeks to regulate transactions and activities incident to the flow of information. It designates “any effort by the ICC to investigate … or prosecute” particular individuals for particular crimes as sanctionable conduct, which expressly targets the collection and dissemination of information as well as advocacy. It further treats as sanctionable those who “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of,” the dissemination of such information
71. The provisions bar Mr. Iverson from engaging in transactions involving information and informational materials, including legal filings and internal documents detailing evidence of grave crimes committed in Darfur to the Prosecutor, which activities he carries out in the normal course of his work as an ICC attorney. Under EO 14203, Mr. Iverson is at significant risk of severe civil and criminal penalties if he carries on these duties..
72. EO 14203 violates § 1701(b) and is ultra vires of IEEPA because it purports to regulate or prohibit, and purports to authorize Defendants to regulate or prohibit, acts that are exempt from regulation or prohibition under IEEPA, including the transmission of information and informational materials, thereby chilling the provision of such materials. EO 14203 is therefore void.
GROUND III
EO 14203 Violates 50 U.S.C. § 1701(b)
and Is Precluded by Subsequent Legislation
73. Mr. Iverson incorporates by reference paragraph 4 – 63 supra.
74. IEEPA is explicit that the President may only invoke its sanctions “to deal with an unusual and extraordinary threat” to the foreign policy interests of the United States. 50 U.S.C. § 1701(b). Specifically, the President must be confronting a “new threat.” Id. And the “authorities granted to the President” to impose sanctions and to enforce those sanctions with ruinous civil and criminal penalties, “may not be exercised for any other purpose.” Id.
75. The threat EO 14203 purports to address is not “unusual,” “extraordinary,” or “new.” To the contrary, in the American Servicemembers’ Protection Act, Congress directly spoke to the risk of U.S. persons “being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” 22 U.S.C. § 7427. Congress has enacted a detailed regulatory scheme to address this risk. Congress has refrained from either imposing or authorizing sanctions against the ICC or its personnel or creating any criminal penalties associated with the work of the ICC. When Congress enacted this law, and made subsequent amendments, the risks to the United States and its allies were well known; indeed, they were the impetus for the law’s enactment. Congress has never enacted any criminal prohibitions to enforce these mandates. And Congress has declined to pass several legislative attempts to impose sanctions on the ICC.
76. Congress has also authorized the provision of direct support to the ICC in connection with its activities, including on cases involving Darfur. Congress has also supported and endorsed the work of the ICC as being in the national interest. The probable and desired effect of EO 14203 is to nullify Congress’ carefully crafted scheme, developed over two decades, to balance the risk that nationals of the United States and its allies might be subject to the jurisdiction of the ICC with Congress’ equal recognition that the ICC performs work in the national interest.
77. Rather than address itself to an “unusual and extraordinary threat,” EO 14203 effectively criminalizes not only the work of the ICC Prosecutor, but of any U.S. person who works for the ICC’s OTP anywhere in the world. Even the broad and general terms of IEEPA do not permit the President, through executive order, to override the specific and carefully crafted Congressional legislation respecting the ICC. EO 14203 is therefore precluded.
PRAYER FOR RELIEF
WHEREFORE, Mr. Iverson asks this honorable court to:
1. Enter a judgment declaring that EO 14203 violates the First Amendment;
2. Enter a judgment declaring that EO 14203 violates 50 U.S.C. § 1702(b);
3. Enter a judgment declaring that EO 14203 violates 50 U.S.C. § 1701(b) because the threat the ICC poses to “protected persons” is not a “new” “unusual and extraordinary threat” within the meaning of 50 U.S.C. § 1701(b), and is precluded by more specific Congressional legislation;
4. Enter a judgment enjoining Defendants from commencing or authorizing any prosecution of Mr. Iverson under EO 14203 or IEEPA for exercising his First Amendment rights, including by engaging in the practice of law, in relation to his work on Darfur;
5. Enter a judgment enjoining Defendants from commencing or authorizing any civil enforcement proceeding against Mr. Iverson under EO 14203 or IEEPA, in relation to his work on Darfur;
6. Award Mr. Iverson his costs and reasonable attorneys’ fees incurred in this action; and
7. Order other such relief as this Court deems proper.
Dated: May 5, 2025
Washington, D.C.
Respectfully submitted,
______________________
/s/ Allison Ferber Miller
Allison Ferber Miller
Law Office of Allison Ferber Miller
5619 2nd Street South
Arlington, VA 22204
(321) 945-7615
Joshua Colangelo-Bryan*
HUMAN RIGHTS FIRST
121 West 36th Street, PMB 520
New York, NY 10018
(212) 845-5243
* Pro hac vice application forthcoming
Attorneys for Plaintiff
**********
Attachment A
Declaration of Eric Iverson, May 2, 2025 (Redacted)
FILED UNDER SEAL
DECLARATION OF ERIC R. IVERSON
I, Eric R. Iverson, hereby declare as follows:
1. I am a U.S. citizen, an attorney, and a member of the bar of South Dakota. I am currently serving as the Head of the Darfur Unified Team and lead counsel for the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in its investigations of alleged war crimes and atrocities committed in Darfur, Sudan. My supervisory responsibilities include directing evidence collection, coordinating with international and local partners, and developing prosecutorial legal strategies to ensure accountability for these grave crimes.
2. [COMPLETELY DELETED]
3. EO 14203 prevents me from proposing or executing an investigative strategy [DELETE], because doing so requires that I coordinate my investigative activities with the Prosecutor, Karim Khan, who has been designated as a Specially Designated National (SDN). This has precluded me from investigating and establishing a record of the very mass atrocities for which I am particularly skilled to investigate, because I cannot consistent with EO 14203, directly and/or indirectly provide expert services and benefits to Karim Khan.
Background
4. I am a fifth-generation South Dakotan and the first non-farmer/rancher in my family. [DELETE] n 1998, the Army awarded me an ROTC “Green to Gold” scholarship, which allowed me to attend and graduate from the University of Minnesota in 2001 with a degree in International Relations. In 2002, I completed an LLM in International Human Rights Law at Utrecht University, The Netherlands. In February 2003, I was commissioned as a second lieutenant and received an educational delay to attend law school at American University, from where I graduated in May 2006.
5. [DELETE] In October 2006, I entered active duty in the U.S. Army Judge Advocate General’s Corps with which I served until I resigned from active duty in 2010.
Structure of the ICC
6. In October 2010, I accepted a position as a Trial Lawyer in the ICC’s OTP. In that position I served as a prosecutor on the trials of Prosecutor v. Bemba, Prosecutor v. Ntaganda, and Prosecutor v. Yekatom et al, all arising out of events in the Central African Republic and the Democratic Republic of the Congo.
7. Pursuant to Article 42 of the Rome Statute that established the ICC, the OTP is mandated to act independently as a separate organ of the ICC in the investigation and prosecution of crimes within the ICC’s jurisdiction. The OTP is headed by the Prosecutor of the ICC and two Deputy Prosecutors, who are elected by the members of the Assembly of States Parties.
8. All OTP staff serve under the direct supervision and control of the Prosecutor, except in cases where the Prosecutor has been disqualified. Cases before the ICC are brought in the name of the Prosecutor, who serves as lead counsel, is responsible for signing any OTP pleadings submitted, and is responsible formally and professionally for the conduct of any prosecution. The current Prosecutor is Karim A.A. Khan, K.C., a barrister from the United Kingdom, who was elected by the Assembly of States Parties as the Prosecutor of the ICC on February 12, 2021, and was sworn in on June 16, 2021.
My Work on Darfur
9. Darfur is a region in western Sudan that has been engulfed in protracted conflict since 2002. The conflict in Darfur is complex but generally arises from long-standing resource, ethnic, and power struggles between Arab militias, the central Sudanese government (as it has evolved over time), and regional ethnic groups. In the early 2000s, the conflict caused an estimated 300,000 deaths and displaced millions of people. Peace agreements were reached in 2010 and 2020, but each period of peace has been temporary.
10. In 2023, ethnic violence and armed conflict reignited amid rising tensions between competing government and militia factions, namely the Sudanese Armed Forces (SAF) and Rapid Support Forces (RSF). In January of this year, United States Secretary of State Antony Blinken declared that the conflict between the SAF and RSF over the last two years has resulted in the world’s largest humanitarian catastrophe and that genocide, crimes against humanity, and ethnic cleaning have been committed in Sudan.
11. In 2005, the United Nations Security Council (UNSC), including the United States, determined that the situation in Darfur constituted a threat to international peace and security. Accordingly, the UNSC referred the situation in Darfur to the ICC through Resolution 1593, effectively permitting the ICC to exercise jurisdiction over certain war crimes and crimes against humanity committed in Darfur, Sudan, from 2002 onwards.
12. Since 2005, the ICC’s investigation into the situation in Darfur has resulted in charges of genocide, war crimes, and crimes against humanity being brought against highranking officials.
13. On October 21, 2021, I was assigned to the Darfur Unified Team and was subsequently elevated to the Head of that team. I am now lead counsel on the cases of Prosecutor v. Al-Bashir, Prosecutor v. Hussein, and Prosecutor v. Harun as well as on ongoing investigations arising out of the situation in Darfur, Sudan.
14. [DELETED]
15. [DELETED]
16. [DELETED]
17. [DELETED]
18. [DELETED]
19. [DELETED]
20. [DELETED]
21. I possess specialized qualifications that are critical to the effective and timely investigation of atrocities committed in Darfur.
22. I am fluent in Arabic [DELETE] his skill set enables direct communication with survivors, witnesses, and local stakeholders in North Darfur. This linguistic capability ensures accurate collection of testimonies without reliance on interpreters, minimizing miscommunication and fostering trust with affected communities, which is essential for rapid evidence gathering.
23. [DELETED]
24. [DELETED]
25. With 15 years of experience in international criminal law, I am adept at building cases for genocide, war crimes, and crimes against humanity. My expertise ensures that evidence is collected and preserved in a manner admissible before the ICC, even under challenging field conditions, making my role pivotal to uncovering relevant information, developing that information into a coherent picture of the truth, and ensuring the investigation’s success.
The Effect of EO 14203
26. EO 14203 imposed blocking sanctions on the Prosecutor, Karim Khan, and prohibits U.S. persons, including myself and many members of my team, from providing or receiving goods and services to him or from him. These prohibitions create insurmountable obstacles to my ability to do my job for fear that work I do, and that I must instruct others to do, will be viewed by U.S. authorities as providing services for the benefit of Prosecutor Khan, who ultimately heads the OTP.
27. In connection with investigating and prosecuting cases, I am required to share evidence with the Prosecutor – or at the very least make it available to him. I am obliged to draft legal pleadings that the Prosecutor signs and submits to judges under the authority of his office. I am obliged to consult with the Prosecutor on case strategy. I am obliged to obtain the Prosecutor’s approval to travel for investigatory purposes. I am obliged to seek his approval to allocate personnel or other investigatory resources to investigation or advocacy.
28. Since the Prosecutor was sanctioned, I have scrupulously avoided activities that could be construed as providing or receiving any services, benefits, or things of value to or from him. [DELETE]
29. Put differently, EO 14203 has inhibited me – and continues to inhibit me – from fulfilling the time-critical investigative and prosecutorial duties pertaining to Darfur that I would be carrying out in the absence of EO 14203.
30. As a U.S. citizen, I face an irreconcilable dilemma between my professional obligations as an ICC lawyer to investigate and prosecute atrocities on the one hand and complying with EO 14203 on the other. I have dedicated my career to using my voice, experience, and specialized skills to ensure accountability for those who perpetrate atrocities that stand out singularly in the world. Throughout my career in the Army and at the OTP, the objectives of my investigations and trial work have been fully supported by the United States. Yet, EO 14203, as presently implemented, is preventing me from doing that work, [DELETE] eyond the harm that I am suffering as a result, I fear that the consequences of my inability to investigate and advocate will be borne most heavily by the people of Darfur, whose chance for justice becomes more tenuous each day that goes by without action.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on May 2, 2025
____________________
Eric Iverson
_______________
Notes:
1 https://geneva.usmission.gov/2025/01/07 ... -in-sudan/
2 https://usun.usmission.gov/remarks-at-a ... -forsudan- 4/
3 https://www.state.gov/briefings/departm ... il-15-2025
4 Available at https://2021-2025.state.gov/global-crim ... entreward- offers/. The State Department page for the Global Criminal Justice Rewards Program no longer advertises ICC rewards at the time of this filing: https://www.state.gov/global-criminaljustice- rewards-program/. However, there is no indication that the offer of these rewards has been withdrawn.
5 https://usun.usmission.gov/remarks-at-a ... rnational- criminal-court-2/
6 See Adam Smith, Dissecting the Executive Order on ICC Sanctions (June 15, 2020) at https://www.justsecurity.org/70779/diss ... sanctions- scope-effectiveness-and-tradeoffs/
7 See Summary of Major U.S. Export Enforcement, Economic Espionage, and Sanctions-Related Criminal Cases, U.S. Dep’t of Justice (Nov. 2019), https://www.justice.gov/nsd/page/file/1044446/download.
8 The current MNNAs are Argentina, Australia, Bahrain, Brazil, Colombia, Egypt, Israel, Japan, Jordan, Kenya, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, Qatar, South Korea, Thailand, and Tunisia.
9 https://www.icc-cpi.int/news/statement- ... ssecurity- council-situation-darfur
10 A Finding of Violation, or “FOV,” is an enforcement penalty akin to a citation. It is often used in place of a fine where the violation was self-reported and where OFAC has obtained additional assurances of future compliance.
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Fri May 09, 2025 7:39 pm
Part 1 of 2
Ozturk v. Hyde (2:25-cv-00374)
District Court, D. Vermont
Last Updated: May 9, 2025, 3:31 p.m.
Assigned To: William K. Sessions III
https://www.courtlistener.com/docket/69 ... rk-v-hyde/
https://ww3.ca2.uscourts.gov/decisions/ ... 19_opn.pdf
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
BRETT MAX KAUFMAN
BRIAN HAUSS
NOOR ZAFAR
SIDRA MAHFOOZ
American Civil Liberties Union
New York, NY
JESSIE J. ROSSMAN
ADRIANA LAFAILLE
RACHEL E. DAVIDSON
JULIAN BAVA
American Civil Liberties Union
Foundation of Massachusetts, Inc.
Boston, MA
MAHSA KHANBABAI
North Easton, MA
LIA ERNST
MONICA H. ALLARD
ACLU Foundation of Vermont
Montpelier, VT
RAMZI KASSEM
NAZ AHMAD
MUDASSAR TOPPA
SHEZZA ABBOUSHI DALLAL
CLEAR Project
Main Street Legal Services, Inc.
CUNY School of Law
Long Island City, NY
MATTHEW D. BRINCKERHOFF
KATHERINE ROSENFELD
VASUDHA TALLA
SONYA LEVITOVA
Emery Celli Brinckerhoff Abady
Ward & Maazel LLP
New York, NY
Counsel for Petitioner–Appellee
DREW C. ENSIGN
ALANNA T. DUONG
YAAKOV M. ROTH
SARAH S. WILSON
Civil Division
U.S. Dept. of Justice
Washington, D.C.
MICHAEL P. DRESCHER
Acting United States Attorney
District of Vermont
Counsel for Respondents–Appellants
_____________
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 twentyfour 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 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.
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 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 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 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 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. 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 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. 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 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 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 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. § 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 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 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 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 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.
Ozturk v. Hyde (2:25-cv-00374)
District Court, D. Vermont
Last Updated: May 9, 2025, 3:31 p.m.
Assigned To: William K. Sessions III
https://www.courtlistener.com/docket/69 ... rk-v-hyde/
https://ww3.ca2.uscourts.gov/decisions/ ... 19_opn.pdf
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
BRETT MAX KAUFMAN
BRIAN HAUSS
NOOR ZAFAR
SIDRA MAHFOOZ
American Civil Liberties Union
New York, NY
JESSIE J. ROSSMAN
ADRIANA LAFAILLE
RACHEL E. DAVIDSON
JULIAN BAVA
American Civil Liberties Union
Foundation of Massachusetts, Inc.
Boston, MA
MAHSA KHANBABAI
North Easton, MA
LIA ERNST
MONICA H. ALLARD
ACLU Foundation of Vermont
Montpelier, VT
RAMZI KASSEM
NAZ AHMAD
MUDASSAR TOPPA
SHEZZA ABBOUSHI DALLAL
CLEAR Project
Main Street Legal Services, Inc.
CUNY School of Law
Long Island City, NY
MATTHEW D. BRINCKERHOFF
KATHERINE ROSENFELD
VASUDHA TALLA
SONYA LEVITOVA
Emery Celli Brinckerhoff Abady
Ward & Maazel LLP
New York, NY
Counsel for Petitioner–Appellee
DREW C. ENSIGN
ALANNA T. DUONG
YAAKOV M. ROTH
SARAH S. WILSON
Civil Division
U.S. Dept. of Justice
Washington, D.C.
MICHAEL P. DRESCHER
Acting United States Attorney
District of Vermont
Counsel for Respondents–Appellants
_____________
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 twentyfour 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 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.
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 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 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 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 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. 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 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. 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 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 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 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. § 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 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 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 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 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.
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Fri May 09, 2025 8:06 pm
Part 2 of 2
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– 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- 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 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,” 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. 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, “§ 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)
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 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).
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 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. 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 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)
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 “§ 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 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 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.), 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 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 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/referencematerials/ 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 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 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 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 lessthan- 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, 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.
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, 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 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.
The parties are directed to confer with the Clerk of Court to set a briefing schedule for the merits of the appeal.
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Notes:
1 And 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.
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.
3 At 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.
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.
5 In 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).
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.
7 In 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.
8 See 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).
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– 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- 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 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,” 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. 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, “§ 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)
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 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).
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 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. 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 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)
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 “§ 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 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 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.), 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 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 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/referencematerials/ 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 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 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 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 lessthan- 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, 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.
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, 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 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.
The parties are directed to confer with the Clerk of Court to set a briefing schedule for the merits of the appeal.
_______________
Notes:
1 And 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.
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.
3 At 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.
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.
5 In 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).
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.
7 In 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.
8 See 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).
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Sat May 10, 2025 2:00 am
Newark mayor released after arrest at immigration facility protest, says, ‘I didn’t do anything wrong’
by Associated Press
5/9/25
https://www.cnn.com/2025/05/09/us/new-j ... ion-center
Newark, N.J. AP — Newark Mayor Ras Baraka was arrested Friday at a federal immigration detention center where he has been protesting its opening this week and held in custody for several hours.
Baraka was released shortly after 8 p.m. and, after stepping out of an SUV with flashing emergency lights, told waiting supporters: “The reality is this: I didn’t do anything wrong.”
Baraka said he could not speak about his case, citing a promise he made to lawyers and the judge. But he voiced full-throated support for everyone living in his community, immigrants included.
“All of us here, every last one of us, I don’t care what background you come from, what nationality, what language you speak,” Baraka said, “at some point we have to stop these people from causing division between us.”
Baraka, a Democrat who is running to succeed term-limited Gov. Phil Murphy, has embraced the fight with the Trump administration over illegal immigration.
He has aggressively pushed back against the construction and opening of the 1,000-bed detention center, arguing that it should not be allowed to open because of building permit issues.
Linda Baraka, the mayor’s wife, accused the federal government of targeting her husband.
“They didn’t arrest anyone else. They didn’t ask anyone else to leave. They wanted to make an example out of the mayor,” she said, adding that she had not been allowed to see him.
A crowd gathered to protest outside the building where Baraka was being held, with many chanting, “Let the mayor go!”
Alina Habba, interim U.S. attorney for New Jersey, said on the social platform X that Baraka committed trespass and ignored warnings from Homeland Security personnel to leave Delaney Hall, a detention facility run by private prison operator Geo Group.
Habba said Baraka had “chosen to disregard the law” and added that he was taken into custody.
Witnesses describe a ‘heated argument’
Witnesses said the arrest came after Baraka attempted to join three members of New Jersey’s congressional delegation, Reps. Robert Menendez, LaMonica McIver, and Bonnie Watson Coleman, in attempting to enter the facility.
When federal officials blocked his entry, a heated argument broke out, according to Viri Martinez, an activist with the New Jersey Alliance for Immigrant Justice. It continued even after Baraka returned to the public side of the gates.
“There was yelling and pushing,” Martinez said. “Then the officers swarmed Baraka. They threw one of the organizers to the ground. They put Baraka in handcuffs and put him in an unmarked car.”
In a statement, the Department of Homeland Security said the lawmakers had not asked for a tour of the facility. The department said further that as a bus carrying detainees was entering, “a group of protestors, including two members of the U.S. House of Representatives, stormed the gate and broke into the detention facility.”
Homeland Security did not respond to questions about why only the mayor was arrested.
Watson Coleman spokesperson Ned Cooper said the lawmakers went to the facility early in the afternoon unannounced because their plan was to inspect it, not to take a scheduled tour.
“They arrived, explained to the guards and the officials at the facility that they were there to exercise their oversight authority,” he said, adding that they were allowed to enter and inspect the center sometime between 3 p.m. and 4 p.m.
DHS, in its statement issued after Baraka’s arrest, said Menendez, Watson Coleman and a number of protesters were currently “holed up in a guard shack” at the facility.
“Members of Congress are not above the law and cannot illegally break into detention facilities. Had these members requested a tour, we would have facilitated a tour,” McLaughlin said.
Watson Coleman, who left and was at a Homeland Security Investigations holding facility where Baraka was said to have been taken, said the DHS statement inaccurately characterized the visit.
“Contrary to a press statement put out by DHS we did not ‘storm’ the detention center,” she wrote. “The author of that press release was so unfamiliar with the facts on the ground that they didn’t even correctly count the number of Representatives present. We were exercising our legal oversight function as we have done at the Elizabeth Detention Center without incident.”
Video shows the mayor standing on the public side of the gate
In video of the altercation shared with The Associated Press, a federal official in a jacket with the logo of the Homeland Security Investigations can be heard telling Baraka he could not join a tour of the facility because “you are not a Congress member.”
Baraka then left the secure area, rejoining protesters on the public side of the gate. Video showed him speaking through the gate to a man in a suit, who said: “They’re talking about coming back to arrest you.”
“I’m not on their property. They can’t come out on the street and arrest me,” Baraka replied.
Minutes later several ICE agents, some wearing face coverings, surrounded him and others on the public side. As protesters cried out, “Shame,” Baraka was dragged back through the security gate in handcuffs.
“The ICE personnel came out aggressively to arrest him and grab him,” said Julie Moreno, a New Jersey state captain of American Families United. “It didn’t make any sense why they chose that moment to grab him while he was outside the gates.”
An email and phone message left with the mayor’s communications office were not immediately answered Friday afternoon. Kabir Moss, a spokesperson for Baraka’s gubernatorial campaign, said, “We are actively monitoring and will provide more details as they become available.”
Several civil rights and immigration reform advocates as well as government officials condemned Baraka’s arrest. New Jersey Attorney General Matthew J. Platkin, whose office is defending a state law barring private immigration detention facilities, criticized the arrest during a seemingly peaceful protest and said no state or local law enforcement agencies were involved.
Rep. Menendez said in a statement that as members of Congress, they have the legal right to carry out oversight at DHS facilities without prior notice and have done so twice already this year. But on Friday, “Throughout every step of this visit, ICE attempted to intimidate everyone involved and impede our ability to conduct oversight.”
The history of the facility
The two-story building next to a county prison formerly operated as a halfway house.
In February, ICE awarded a 15-year contract to The Geo Group Inc. to run the Newark detention center. Geo valued the contract at $1 billion, in an unusually long and large agreement for ICE.
The announcement was part of President Donald Trump’s plans to sharply increase detention beds nationwide from a budget of about 41,000 beds this year.
Baraka sued Geo soon after the deal was announced.
Geo touted the Delaney Hall contract during its earnings call with shareholders Wednesday, with CEO David Donahue saying it was expected to generate more than $60 million a year in revenue. He said the facility began the intake process May 1.
Hall said the activation of the facility and another in Michigan would increase total capacity under contract with ICE from around 20,000 beds to around 23,000.
DHS said in its statement that the facility has the proper permits and inspections have been cleared.
by Associated Press
5/9/25
https://www.cnn.com/2025/05/09/us/new-j ... ion-center
Newark, N.J. AP — Newark Mayor Ras Baraka was arrested Friday at a federal immigration detention center where he has been protesting its opening this week and held in custody for several hours.
Baraka was released shortly after 8 p.m. and, after stepping out of an SUV with flashing emergency lights, told waiting supporters: “The reality is this: I didn’t do anything wrong.”
Baraka said he could not speak about his case, citing a promise he made to lawyers and the judge. But he voiced full-throated support for everyone living in his community, immigrants included.
“All of us here, every last one of us, I don’t care what background you come from, what nationality, what language you speak,” Baraka said, “at some point we have to stop these people from causing division between us.”
Baraka, a Democrat who is running to succeed term-limited Gov. Phil Murphy, has embraced the fight with the Trump administration over illegal immigration.
He has aggressively pushed back against the construction and opening of the 1,000-bed detention center, arguing that it should not be allowed to open because of building permit issues.
Linda Baraka, the mayor’s wife, accused the federal government of targeting her husband.
“They didn’t arrest anyone else. They didn’t ask anyone else to leave. They wanted to make an example out of the mayor,” she said, adding that she had not been allowed to see him.
A crowd gathered to protest outside the building where Baraka was being held, with many chanting, “Let the mayor go!”
Alina Habba, interim U.S. attorney for New Jersey, said on the social platform X that Baraka committed trespass and ignored warnings from Homeland Security personnel to leave Delaney Hall, a detention facility run by private prison operator Geo Group.
Habba said Baraka had “chosen to disregard the law” and added that he was taken into custody.
Witnesses describe a ‘heated argument’
Witnesses said the arrest came after Baraka attempted to join three members of New Jersey’s congressional delegation, Reps. Robert Menendez, LaMonica McIver, and Bonnie Watson Coleman, in attempting to enter the facility.
When federal officials blocked his entry, a heated argument broke out, according to Viri Martinez, an activist with the New Jersey Alliance for Immigrant Justice. It continued even after Baraka returned to the public side of the gates.
“There was yelling and pushing,” Martinez said. “Then the officers swarmed Baraka. They threw one of the organizers to the ground. They put Baraka in handcuffs and put him in an unmarked car.”
In a statement, the Department of Homeland Security said the lawmakers had not asked for a tour of the facility. The department said further that as a bus carrying detainees was entering, “a group of protestors, including two members of the U.S. House of Representatives, stormed the gate and broke into the detention facility.”
Homeland Security did not respond to questions about why only the mayor was arrested.
Watson Coleman spokesperson Ned Cooper said the lawmakers went to the facility early in the afternoon unannounced because their plan was to inspect it, not to take a scheduled tour.
“They arrived, explained to the guards and the officials at the facility that they were there to exercise their oversight authority,” he said, adding that they were allowed to enter and inspect the center sometime between 3 p.m. and 4 p.m.
DHS, in its statement issued after Baraka’s arrest, said Menendez, Watson Coleman and a number of protesters were currently “holed up in a guard shack” at the facility.
“Members of Congress are not above the law and cannot illegally break into detention facilities. Had these members requested a tour, we would have facilitated a tour,” McLaughlin said.
Watson Coleman, who left and was at a Homeland Security Investigations holding facility where Baraka was said to have been taken, said the DHS statement inaccurately characterized the visit.
“Contrary to a press statement put out by DHS we did not ‘storm’ the detention center,” she wrote. “The author of that press release was so unfamiliar with the facts on the ground that they didn’t even correctly count the number of Representatives present. We were exercising our legal oversight function as we have done at the Elizabeth Detention Center without incident.”
Video shows the mayor standing on the public side of the gate
In video of the altercation shared with The Associated Press, a federal official in a jacket with the logo of the Homeland Security Investigations can be heard telling Baraka he could not join a tour of the facility because “you are not a Congress member.”
Baraka then left the secure area, rejoining protesters on the public side of the gate. Video showed him speaking through the gate to a man in a suit, who said: “They’re talking about coming back to arrest you.”
“I’m not on their property. They can’t come out on the street and arrest me,” Baraka replied.
Minutes later several ICE agents, some wearing face coverings, surrounded him and others on the public side. As protesters cried out, “Shame,” Baraka was dragged back through the security gate in handcuffs.
“The ICE personnel came out aggressively to arrest him and grab him,” said Julie Moreno, a New Jersey state captain of American Families United. “It didn’t make any sense why they chose that moment to grab him while he was outside the gates.”
An email and phone message left with the mayor’s communications office were not immediately answered Friday afternoon. Kabir Moss, a spokesperson for Baraka’s gubernatorial campaign, said, “We are actively monitoring and will provide more details as they become available.”
Several civil rights and immigration reform advocates as well as government officials condemned Baraka’s arrest. New Jersey Attorney General Matthew J. Platkin, whose office is defending a state law barring private immigration detention facilities, criticized the arrest during a seemingly peaceful protest and said no state or local law enforcement agencies were involved.
Rep. Menendez said in a statement that as members of Congress, they have the legal right to carry out oversight at DHS facilities without prior notice and have done so twice already this year. But on Friday, “Throughout every step of this visit, ICE attempted to intimidate everyone involved and impede our ability to conduct oversight.”
The history of the facility
The two-story building next to a county prison formerly operated as a halfway house.
In February, ICE awarded a 15-year contract to The Geo Group Inc. to run the Newark detention center. Geo valued the contract at $1 billion, in an unusually long and large agreement for ICE.
The announcement was part of President Donald Trump’s plans to sharply increase detention beds nationwide from a budget of about 41,000 beds this year.
Baraka sued Geo soon after the deal was announced.
Geo touted the Delaney Hall contract during its earnings call with shareholders Wednesday, with CEO David Donahue saying it was expected to generate more than $60 million a year in revenue. He said the facility began the intake process May 1.
Hall said the activation of the facility and another in Michigan would increase total capacity under contract with ICE from around 20,000 beds to around 23,000.
DHS said in its statement that the facility has the proper permits and inspections have been cleared.
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Sat May 10, 2025 7:33 pm
Dissolving USAID could lead to an additional 14 million deaths by 2030. Of the total projected fatalities, 4.5 million were children, according to a study by the ISGlobal institute, in which researchers from Brazil, Mozambique, and the United States participated
by Beatriz Lecumberri
El Pais
Madrid - MAY 08, 2025 - 06:49 EDT
https://english.elpais.com/internationa ... -2030.html
“There are places where an AIDS patient or a malnourished child cannot cling to life for several weeks. Death is immediate.” This is the cruel observation of Davide Rasella, a researcher at the Barcelona Institute for Global Health (ISGlobal) and lead author of a study estimating that 14 million people will die worldwide — 4.5 million of them children aged under five — if the funding cuts decreed by Washington continue and USAID is dissolved.
According to the recently published ISGlobal study, in which researchers from Brazil, Mozambique, the United States and Spain participated, these people will die from AIDS, tuberculosis, malaria, diarrhea, respiratory illnesses or malnutrition. These deaths are mostly preventable and also linked, beyond the diseases themselves, to poverty, poor hygiene and sanitation, and a lack of access to basic health services.
“These cuts will cause permanent damage to the health of the most vulnerable populations, especially because they are being implemented abruptly. The system could adapt to a lack of funding, but not if it is done so drastically and against people with no resilience, who have no way of coping with this sudden disappearance of funding,” Rasella adds. “That’s why the terrible impact of the cuts is already being seen in many places.”
According to this study, the suspension of U.S. funding has already caused, for example, 25% of tuberculosis control agencies in 31 countries to halt their work, the World Food Programme (WFP) to decide to close its office for southern Africa in Johannesburg, exposing 27 million people to extreme hunger in the midst of a major drought, and the world to the risk of recording 15 million additional cases and 107,000 deaths due to the suspension of malaria control programs.
Beyond causing these millions of preventable deaths, these cuts also “risk reversing decades of progress in health and socioeconomic development in low- and middle-income countries,” the ISGlobal study insists.
To support their study, the experts first analyzed the positive impact of the work of USAID, which until a few months ago was responsible for 43% of the funds that the world’s governments allocate to development aid. Their conclusions are that programs funded by the U.S. aid agency have helped directly and indirectly prevent more than 91 million deaths worldwide, almost a third of them among children, over the past 20 years.
“USAID contributed to a 15% reduction in global mortality,” the study states. More specifically, its funds reduced the number of deaths from HIV by 74%, deaths from malaria by 53%, and deaths caused by neglected tropical diseases by 51%, according to this research.
Millions of preventable deaths
But at the end of January, Donald Trump decided to freeze development aid funds for 90 days and reassess their relevance. Currently, according to Secretary of State Marco Rubio, 83% of USAID-coordinated programs have been canceled, although the decision is being challenged in court.
“Children will suffer these cuts especially. The paradox is that we always talk about the cost-effectiveness ratio when we invest in health, and there is no more effective action on a global level than saving the life of a child in an African country. They are so vulnerable that with a little money we can save many lives,” Rasella points out.
The main destination of USAID’s budget was sub-Saharan Africa. In practice, a person in a country like Zambia could be vaccinated, attend a public school with trained professionals, receive food assistance, benefit from antiretroviral treatment for AIDS, or participate in a malaria prevention program thanks to USAID’s budget.
“Right now, various studies are being published to calculate the impact of this sudden freeze in funding, and most show similar and equally dramatic results: these cuts from the United States and other foreign aid agencies will cause millions and millions of preventable deaths,” Rasella insists.
The expert points out that other Western countries, such as the United Kingdom, France, the Netherlands, and Belgium, have announced reductions in their development aid, which exacerbates the cooperation financing crisis. Of the 31 countries that make up the Development Assistance Committee (DAC) of the Organisation for Economic Co-operation and Development (OECD), a kind of thermometer for measuring development financing, only four currently exceed the emblematic threshold of 0.7% of their GDP.
Cascade effect
Rasella also warns that the studies being published focus on a few aspects and “do not consider the cascading effect” of the current and future cuts. “There are deaths that cannot be counted in these studies, which focus on the most direct deaths,” he points out. Because the research emphasizes that it’s not just diseases that kill, but also poverty, lack of education, lack of access to health services, and poor hygiene and sanitation.
Specifically, it is worth noting that USAID’s impact on mortality reduction goes beyond its direct funding of health programs and interventions. A substantial part of its influence lies in improving aspects that impact the quality of life of low-income populations. For example, poverty alleviation, education, and access to clean water significantly reduce mortality among children and adults.
The study highlights the proven evidence that cash transfer programs reduce adult female mortality by 20% and child deaths by 8% in low- and middle-income countries. Each additional year of education also reduces the risk of adult mortality by 1.9%, and improving access to safe water, sanitation, and hygiene reduces child mortality by 17%.
by Beatriz Lecumberri
El Pais
Madrid - MAY 08, 2025 - 06:49 EDT
https://english.elpais.com/internationa ... -2030.html
“There are places where an AIDS patient or a malnourished child cannot cling to life for several weeks. Death is immediate.” This is the cruel observation of Davide Rasella, a researcher at the Barcelona Institute for Global Health (ISGlobal) and lead author of a study estimating that 14 million people will die worldwide — 4.5 million of them children aged under five — if the funding cuts decreed by Washington continue and USAID is dissolved.
According to the recently published ISGlobal study, in which researchers from Brazil, Mozambique, the United States and Spain participated, these people will die from AIDS, tuberculosis, malaria, diarrhea, respiratory illnesses or malnutrition. These deaths are mostly preventable and also linked, beyond the diseases themselves, to poverty, poor hygiene and sanitation, and a lack of access to basic health services.
“These cuts will cause permanent damage to the health of the most vulnerable populations, especially because they are being implemented abruptly. The system could adapt to a lack of funding, but not if it is done so drastically and against people with no resilience, who have no way of coping with this sudden disappearance of funding,” Rasella adds. “That’s why the terrible impact of the cuts is already being seen in many places.”
According to this study, the suspension of U.S. funding has already caused, for example, 25% of tuberculosis control agencies in 31 countries to halt their work, the World Food Programme (WFP) to decide to close its office for southern Africa in Johannesburg, exposing 27 million people to extreme hunger in the midst of a major drought, and the world to the risk of recording 15 million additional cases and 107,000 deaths due to the suspension of malaria control programs.
The system could adapt to a lack of funding, but not if it is done so drastically and against people with no resilience, who have no way of coping with this sudden disappearance of funding"
-- Davide Rasella, ISGlobal
Beyond causing these millions of preventable deaths, these cuts also “risk reversing decades of progress in health and socioeconomic development in low- and middle-income countries,” the ISGlobal study insists.
To support their study, the experts first analyzed the positive impact of the work of USAID, which until a few months ago was responsible for 43% of the funds that the world’s governments allocate to development aid. Their conclusions are that programs funded by the U.S. aid agency have helped directly and indirectly prevent more than 91 million deaths worldwide, almost a third of them among children, over the past 20 years.
“USAID contributed to a 15% reduction in global mortality,” the study states. More specifically, its funds reduced the number of deaths from HIV by 74%, deaths from malaria by 53%, and deaths caused by neglected tropical diseases by 51%, according to this research.
Millions of preventable deaths
But at the end of January, Donald Trump decided to freeze development aid funds for 90 days and reassess their relevance. Currently, according to Secretary of State Marco Rubio, 83% of USAID-coordinated programs have been canceled, although the decision is being challenged in court.
“Children will suffer these cuts especially. The paradox is that we always talk about the cost-effectiveness ratio when we invest in health, and there is no more effective action on a global level than saving the life of a child in an African country. They are so vulnerable that with a little money we can save many lives,” Rasella points out.
The main destination of USAID’s budget was sub-Saharan Africa. In practice, a person in a country like Zambia could be vaccinated, attend a public school with trained professionals, receive food assistance, benefit from antiretroviral treatment for AIDS, or participate in a malaria prevention program thanks to USAID’s budget.
“Right now, various studies are being published to calculate the impact of this sudden freeze in funding, and most show similar and equally dramatic results: these cuts from the United States and other foreign aid agencies will cause millions and millions of preventable deaths,” Rasella insists.
The expert points out that other Western countries, such as the United Kingdom, France, the Netherlands, and Belgium, have announced reductions in their development aid, which exacerbates the cooperation financing crisis. Of the 31 countries that make up the Development Assistance Committee (DAC) of the Organisation for Economic Co-operation and Development (OECD), a kind of thermometer for measuring development financing, only four currently exceed the emblematic threshold of 0.7% of their GDP.
There is no more effective action on a global level than saving the life of a child in an African country. They are so vulnerable that with a little money we can save many lives"
-- Davide Rasella, ISGlobal
Cascade effect
Rasella also warns that the studies being published focus on a few aspects and “do not consider the cascading effect” of the current and future cuts. “There are deaths that cannot be counted in these studies, which focus on the most direct deaths,” he points out. Because the research emphasizes that it’s not just diseases that kill, but also poverty, lack of education, lack of access to health services, and poor hygiene and sanitation.
Specifically, it is worth noting that USAID’s impact on mortality reduction goes beyond its direct funding of health programs and interventions. A substantial part of its influence lies in improving aspects that impact the quality of life of low-income populations. For example, poverty alleviation, education, and access to clean water significantly reduce mortality among children and adults.
The study highlights the proven evidence that cash transfer programs reduce adult female mortality by 20% and child deaths by 8% in low- and middle-income countries. Each additional year of education also reduces the risk of adult mortality by 1.9%, and improving access to safe water, sanitation, and hygiene reduces child mortality by 17%.
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