Attacking Students
Attempts to strip legal status from foreign students face legal obstacles
A computer science student from China. An Indian student researching farm management techniques and soil health. Plus hundreds more at powerhouse research universities like Duke and small institutions like Trine University, students are fighting back. Facing the loss of their immigration status, hundreds of college students have sued the Trump administration over its decision to end legal permission the students received to study in the United States. Rather than contest the administration’s decision to revoke student visas, the lawsuits focus on legal requirements that the government must follow to terminate their immigration status.
Even though a visa and a person’s immigration status are often described interchangeably, they are not the same thing. A visa refers to the document through which State Department officers grant permission to a person who is not a U.S. citizen to travel to and request admission into the United States. In effect, a visa is a necessary travel document for most people who aren’t U.S. citizens. Without a visa or eligibility for the Visa Waiver Program, commercial airlines won’t allow a person to board a flight heading to the United States. If they somehow reach the United States – perhaps by traveling by land – Customs and Border Protection agents will turn them away.
Students, of course, aren’t hoping to visit the United States for a matter of mere months, so most people who want to study in the United States and aren’t U.S. citizens need to obtain an F-1 student visa. Once a person with an F-1 visa reaches the United States, they must present themselves for inspection by a CBP agent. If allowed to enter, they proceed into the United States with their visa and a newfound F-1 immigration status. Having now entered the United States, the visa becomes largely irrelevant for daily activities. The visa only matters again if they leave the United States and wish to return.
While they are in the United States, what matters most is the F-1 immigration categorization. With this status, they can live and study in the United States. They can sometimes pursue limited work opportunities related to their education. Graduate students, for example, often work as research assistants or teaching assistants.
To keep track of the hundreds of thousands of foreign students who enroll at colleges and universities in every corner of the United States annually, a unit of ICE called the Student Exchange Visitor Program (SEVP) runs the Student Exchange Visitor Information System. Through the SEVIS database, SEVP and universities jointly track international students to ensure that they comply with the terms of their F-1 visas.
Until recently, a student who received F-1 immigration status could assume they would hold onto the government’s permission to study in the United States. They instead turned their attention to their studies. When a student fell out of compliance, as occasionally occurred, designated university staff alerted ICE by updating the student’s SEVIS entry. At that point, students could attempt to correct any errors and ICE could decide whether to launch removal proceedings.
That is no longer true. Trump administration officials have reportedly terminated SEVIS records of more than 1,500 students. In most instances, DHS hasn’t provided the students or universities with any explanation, leaving it up to university employees to identify terminations and then inform students. The sudden changes to SEVIS have prompted students to fear that ICE will arrest them with an eye toward deportation. In notices sent directly by university administrators, students have been provided with very little information.
Though short on details, the notices often raise the possibility of dire consequences. An email sent to a Ph.D. student at Ohio State University and disclosed as part of the student’s lawsuit, for example, informed the student that SEVP had terminated the student’s record in the SEVIS database. They were required to stop working immediately, the emailed notice said.
Students at multiple universities have been told that they must leave the United States in as little as two weeks.
DHS is certainly permitted to end a student’s F-1 immigration status, but the agency can’t do so with abandon. Federal officials must follow existing immigration law requirements. There are only three permissible reasons to terminate a temporary immigration status like the F-1 category: revocation of a waiver that none of the affected students appear to have received; an effort by Congress to provide a student with permanent residence, which Congress hasn’t done in any instance for the targeted students; or an official notice in the Federal Register describing an affected student as a “national security, diplomatic, or public safety” concern. The Trump administration hasn’t published any Federal Register notices about any of these students.
Separately, existing regulations require migrants to avoid committing a crime of violence that can be punished by more than one year imprisonment. Under immigration law, a crime of violence requires use of physical force against a person or property. Again, the administration hasn’t provided any evidence that any of the targeted students have committed a crime of violence. On the contrary, several students have been accused or convicted of minor offenses, including motor vehicle traffic violations and alcohol-related crimes that don’t rise to the level of severity that permits termination of their immigration status.
So far, courts are slowing the Trump administration’s efforts. Multiple judges have temporarily blocked DHS from detaining or attempting to remove individual students whose SEVIS records have been terminated. More significantly, a judge in Georgia concluded late last week that more than 130 students were likely to show that DHS violated federal law by terminating their F-1 status. The federal government’s abrupt action likely violated the Administrative Procedure Act, a law that bars federal agencies from acting arbitrarily or capriciously, as well as from violating existing regulations, the court concluded. The Trump administration is likely to appeal these decisions.
Despite losses in the courts, the larger impact may be felt directly on campuses as some students decide to pursue educational opportunities in other countries. The Trump administration has taken the position, in at least one lawsuit, that university degrees are all the same. A Ph.D. from Dartmouth College is like a doctoral degree from a university in China or Canada, Justice Department lawyers suggested to the judge overseeing Xiaotian Liu’s lawsuit. Clearly, that is not true, but the administration’s position may nonetheless push promising students like Liu to top universities abroad. Without question, that would slow the development of research and knowledge in the United States, but that may be a worthwhile cost for the Trump administration.
I'm interested in what happens with the judge in Georgia. The Trump administration has been coy with the courts, but how will they react when the contempt-of-court charges start to crop up? Regardless, these students will be the collateral damage in the meantime. Even if the Trump administration capitulates to the courts, enough damage will have been done to serve as a deterrent and warning to other students.