ICE Expands Student Deportation Powers

The Trump administration issued plans earlier this week for a new policy that vastly expands federal officials’ authority to terminate students’ legal residency status, according to newly released court documents.

The policy detailed in the filings asserts that immigration officials have the “inherent authority” to terminate students’ legal residency status in the Student Exchange and Visitor Information System “as needed.” It also explicitly lays out two new justifications for SEVIS terminations: the vague “evidence of failure to comply” with nonimmigrant visa terms, and a visa revocation, which can be issued without evidence of a violation by the State Department—and which, crucially, is not subject to court challenges.

Immigration attorneys told Inside Higher Ed that if implemented, the new policy would enshrine broad permission for ICE to begin deporting students practically at will.

“This is very bad news for foreign students,” said Charles Kuck, an immigration attorney representing 133 international students in the largest lawsuit challenging recent SEVIS terminations. “Any student who’s arrested, literally for any reason, is probably going to have their status terminated going forward.”

Last Friday a U.S. attorney promised an official update to ICE policy on SEVIS terminations. On Tuesday, U.S. attorneys presented the document as evidence in a court filing in Arizona, describing it as “recently issued … policy regarding the termination of SEVIS records.”

It was the first time that details of a new SEVIS termination policy were made public, and it was not at first clear whether it reflected official federal policy. On Tuesday, U.S. attorney Johnny Walker confirmed during another hearing for a SEVIS lawsuit in D.C. that it did, though the policy had yet to be finalized. Spokespeople for ICE did not respond to multiple questions from Inside Higher Ed.

The plan comes less than a week after the administration began restoring thousands of foreign students’ SEVIS statuses after a series of court decisions overturned hundreds of status terminations. Kuck said the plan seemed to be a way for ICE to get around those rulings.

“This is basically a cover-your-ass policy,” he said. “The fact that ICE initially reinstated visas was no surprise. They probably had U.S. attorneys screaming at them, ‘What are you doing?’ Now they’re trying to retroactively develop a policy that would allow them to do what they already did.”

Immigration lawyer and Columbia University Immigrants’ Rights Clinic director Elora Mukherjee has been counseling international students across New York City for the past two months. After the visa-restoration decision last week, some students wanted to know if they were in the clear; she cautioned them against celebrating prematurely.

“Whiplash is a good way to describe it,” she said. “Students are losing sleep—not just those whose visas have been terminated but those who are worried theirs could be next any day.”

Fly-by-Night Policymaking

The updated policy was outlined in an internal Department of Homeland Security memo filed as evidence in an Arizona federal court on Wednesday, where one of more than 100 lawsuits challenging visa revocations is being litigated.

The unorthodox manner in which it was publicized has left immigration attorneys scratching their heads and international students’ advocates wondering how to respond.

It also appears to have taken some federal officials by surprise. Kuck said that when he heard about the memo and brought it before the judge in his own case in Georgia, the U.S. attorney defending the government asked if he could send him a copy.

Fanta Aw, president of NAFSA, an association of international educators, wrote in an email to Inside Higher Ed that the document “should not be relied upon as ICE’s new policy.” She also emphasized that there is no change to ICE’s visa termination policy included in the memo, only SEVIS terminations.

The document is labeled as a “broadcast message … for internal SEVP use only,” meaning it would have been sent to Designated School Officials working in colleges’ international student offices. But Aw said that’s not accurate, either, because it lacks the customary broadcast message number, and DSOs in her organization said they had not received it.

Kuck said the lack of a rule-making process for a sweeping policy change like the one outlined in the memo is most likely unlawful, and he was working on filing an amendment to challenge it on Thursday. But that doesn’t mean it should be taken lightly.

“People should view this as the future,” Kuck said. “This is clearly the power ICE wants to give itself, so they’re going to move ahead with it.”

‘A Nightmare Booby Trap’

Mukherjee said such a broad license to terminate SEVIS status would allow ICE to deport international students far more quickly and with less accountability. The new policy, if implemented and upheld by the courts, wouldn’t just revert to the status quo of the last few months, she said; it would create a landscape in which ICE could begin deportation proceedings with impunity.

“We’ve already seen many students whose SEVIS terminations led directly to removal proceedings,” Mukherjee said. “It’s terrifying.”

Kuck said it’s crucial that students understand that they’re still in danger of deportation even if their status was restored last week—and not just because of the new policy plan.

The few hundred students who won a temporary restraining order in court over the past week have had their statuses reinstated and backfilled to when they were revoked. But the status of thousands more who did not file lawsuits was only reactivated from that point onward. That means they have a gap in status for the days or weeks in between—which, according to ICE policy, is grounds for removal from the country, even if their initial SEVIS termination was accidental.

“This is a nightmare booby trap for these kids,” Kuck said.

The only way to protect them, he said, is by filing a class action lawsuit for all affected international student visa holders. Kuck said he’s working on filing an injunction for one right now, and he is acting with urgency.

In the meantime, Mukherjee said students—both those in the country and those who had planned to come in the fall—are “deeply unsettled.” She’s been asking them questions she’d never been concerned about before: whether they have any social media accounts or even tattoos.

“I’m talking to international students who are currently in the U.S., to international students who’ve been admitted to study in the U.S. starting in the fall, and they’re asking, ‘Will we be able to complete our degree program?’” she said. “The answer is that it’s unclear.”