US Reverses Course on Terminating Foreign Students’ Status (1)

The Department of Homeland Security has begun reinstating the records of international students whose termination from a federal database disrupted their employment and put their lawful status in doubt.

The affected students have filed scores of lawsuits in recent weeks over the abrupt termination of their records from the Student and Exchange Visitor Information Systems database. Those lawsuits, which claimed violations of due process and the Administrative Procedure Act, had already secured temporary restraining orders in multiple courts to restore student records.

US Immigration and Customs Enforcement, which manages the database, hasn’t commented publicly on the basis of the terminations. Litigation indicated that affected students included those with any record of law enforcement interactions, even if they hadn’t been arrested or convicted of a crime. But students were given no notice that their records were terminated or an opportunity to respond.

Multiple immigration attorneys said that clients this week had their records in the SEVIS system reinstated by ICE, including many who weren’t part of any litigation. The scope of the reinstatements was unclear Friday, but several said it appeared to be widespread.

Homeland Security assistant secretary Tricia McLaughlin said in a statement that the agency had restored SEVIS access “for people who had not had their visa revoked.”

But the government told some colleges and attorneys for students that ICE is developing a policy “that will provide a framework for SEVIS record terminations,” according to communications reviewed by Bloomberg Law.

Until then, it said records of plaintiffs and students in similar circumstances would be reactivated, according to the communique from ICE, which was also entered into court records in several cases.

It’s unclear if the reinstatements are a temporary measure or not, said Steven A. Brown, a partner at Reddy Neumann Brown PC who had received that update from a government attorney.

“We’re seeing good trendlines,” he said. “It’s not all of them but it’s moving in the right direction.”

The student reinstatements appear to be happening across the board, said Annelise M. Araujo, founding principal and owner of immigration law firm Araujio & Fisher. Araujo hasn’t filed any lawsuits on behalf of clients, but several had seen records reinstated, she said.

“They’re not sending notices. It’s just happening,” she said. “I do think that this is a reflection of the multiple TROs that have been issued.”

Litigation Plans Unchanged

Several attorneys who had filed litigation on behalf of international students said they’d received no communication about a change in position by the DHS. Charles Kuck, managing attorney at Kuck Baxter LLC, said a government attorney he contacted about litigation in Atlanta was unaware of a new policy.

Kuck won an order restoring the records of more than 130 students in that case last week. The decision to reinstate terminated students doesn’t affect plans to continue the litigation, he said.

“We don’t know why they’re doing it. We don’t know the impact of it,” Kuck said. “They’re simply not saying. So how can we trust them?”

Jim Hacking, founder of Hacking Immigration Law, said several, but not all, of his clients had seen their records restored by ICE.

“They’re trying to avoid judicial oversight and trying to avoid having to explain what they did,” he said.

The American Civil Liberties Union of New Hampshire, which has brought a class action on behalf of affected international students, said it hasn’t had any communication from the government on reinstatements.

“As a result, there continues to be an urgent and critical need in which our clients need immediate relief,” Gilles Bissonnette, the organization’s legal director, said in a statement.