Foreign Students’ Status Still in Danger After New ICE Policy

After the Trump administration changed course on the termination of lawful status for thousands of international students, immigration attorneys warn that recently reinstated students can be targeted once again.

US Immigration and Customs Enforcement last week began restoring the records of students on F-1 status while it developed a new policy on removals from a federal database tracking their compliance with program requirements. That was a relief to many students who filed scores of lawsuits to protect their US status as well as eligibility to continue studies and employment.

But that ICE policy, which was shared with several federal courts beginning Monday, does little to help resolve ongoing legal disputes over the terminated records, attorneys said.

The policy suggests visa revocations by the State Department, which aren’t subject to court challenge, will be used as grounds to terminate records from the Student and Exchange Visitor Information System database, they say.

And it cites several other circumstances not included in current regulations as grounds for termination. Removal from the system could also lead to deportation proceedings based on failure to maintain lawful status, the policy says, contradicting the government’s position in court.

“This will actually perpetuate litigation,” said Jesse Bless, an immigration attorney at Bless Litigation who represents businesses and individuals. “This kind of fly-by-night creation of an administrative record is simply not going to work with judges.”

One-Million Foreign Students

Further details emerged on the process used to identify the nearly 5,000 students terminated from SEVIS in a Tuesday hearing at the US District Court for the District of Columbia.

Andre Watson, assistant director of the national security division for Homeland Security Investigations, told the court that a team of between 10-20 Department of Homeland Security employees ran the names of 1.3 million foreign students through another database that tracks criminal charges as part of a “Student Criminal Alien Initiative.”

About 6,400 were later referred to the State Department based on hits in that database, including many arrested but never convicted of a crime. The Bureau of Consular Affairs used that data to revoke the visas of more than 3,000 people. Court records indicated thousands of blanket SEVIS terminations were made after State bounced back that list to DHS.

Court precedent has found that State Department decisions like visa revocations aren’t subject to judicial review. But that’s not the case for actions by DHS and numerous lawsuits have argued the record changes didn’t observe narrow regulatory grounds for pulling someone’s lawful status.

A student could fall out of status by not maintaining a full course of study, working without authorization, or being convicted of a violent crime with a possible sentence of more than a year—circumstances that didn’t apply to plaintiffs, according to lawsuits. ICE’s removal of the records without notice also denied due process to the students, they say.

The government has argued in court that the SEVIS terminations aren’t equivalent to a loss of status, a position that immigration attorneys say doesn’t match DHS’ own guidance to schools and is belied by the practical consequences of terminations.

Judge Ana Reyes said nowhere in the process was any individual assessment made of students’ cases before records were terminated. The rushed process behind the terminations meant thousands of students who had paid to attend colleges in the US—many months away from completing degrees—had plans disrupted with no notice, she said.

“What happens when we do things willy-nilly with very little time and without due process is mistakes happen,” said Reyes, a Biden appointee. “All of this could have been avoided if individuals had taken a beat instead of just rushing things.”

Intertwined Decisions

Reyes declined to weigh in on the new ICE policy. But the hearing indicated that the termination of records by ICE and revocation of visas by the Department of State “seem intertwined,” said Steven Brown, a partner at Reddy Neumann Brown PC and plaintiff’s counsel in the District of Columbia lawsuit.

That’s significant because the ICE policy suggests the Trump administration is banking on the State Department being insulated from court challenges, immigration attorneys say.

“They’re assuming the State Department can do anything they want and are insulated from challenges in federal court,” said Greg Siskind, a founding partner at immigration law firm Siskind Susser PC.

ICE didn’t respond to a request for comment on the new policy.

Fanta Aw, executive director and CEO of NAFSA: Association of International Educators, said in a statement that the document shared in court, which was marked for internal use only, shouldn’t be relied on as an ICE policy at all even though government attorneys referred to it as such.

Although the restoration of student records is a positive development, the new policy “raises a host of concerns,” including changes to regulations without proper notice-and-comment process, said Greg Chen, senior director of government relations at the American Immigration Lawyers Association. Rather than offering security to students, it could put more of them at risk, he said.

“It is unfortunate for the thousands of students, universities, and businesses nationwide that the Trump administration is unwilling to set a clear policy that ensures the best and the brightest will come, stay and keep contributing to the United States,” Chen said.