Lawsuits Over Foreign Students’ Status Find Solid Legal Footing

The Trump administration lacks regulatory authority to terminate foreign students’ lawful status in the US, immigration attorneys said about litigation over the government’s unprecedented crackdown.

A slew of lawsuits have been filed in the past two weeks arguing that the Department of Homeland Security unilaterally removed dozens of students from a database tracking compliance with student visa programs, effectively canceling their legal status.

The terminations follow similar actions by the US State Department revoking student visas. At stake is whether targeted students can complete their degrees, work on campus, or start careers in the US.

The students have clear grounds for relief under the Fifth Amendment’s Due Process Clause and the Administrative Procedure Act, immigration attorneys said, pointing to the cancellation of their F-1 status without clear basis and without notice and a chance to respond. One Dartmouth College doctoral student already won an emergency order restoring his F-1 student status—one of multiple granted so far. More litigation is being filed almost daily seeking similar relief based on APA and due process claims.

“The fact that DHS has gone in and terminated the records without any notice was completely in violation of all norms and due process,” said Cyrus Mehta, managing partner at Cyrus D. Mehta & Partners PLLC.

Pending Litigation

More than 4,700 students may have already had their records terminated in the Student and Exchange Visitor Information Systems database maintained by US Immigration and Customs Enforcement, according to the American Immigration Lawyers Association.

At least a dozen lawsuits have been filed so far in federal courts in New York, California, Michigan, New Hampshire, Pennsylvania, and Washington state contesting the termination of student records.

The plaintiffs notably don’t seek to restore terminated visas, which aren’t subject to court review. Students would have to apply for them again at consulates outside the US. Instead they’re asking the courts to block DHS from terminating records in the SEVIS database and targeting them for removal proceedings.

A New Hampshire federal judge on April 10 found that Xiaotian Liu, a doctoral student from China, was likely to succeed on claims that the termination of his F-1 status violated regulations for the program and was arbitrary and capricious. Agency attorneys didn’t offer any legal or factual arguments for the revocation during an emergency hearing, the judge wrote in a temporary restraining order.

The judge noted that the loss of F-1 status also exposed Liu to possible detention and deportation.

A student who sued in the Western District of Washington was arrested, although not convicted, of driving under the influence. However, a first-time DUI offense would not meet the standard for terminating a student status, their complaint argued. A student athlete from a Muslim-majority country, who filed a lawsuit in the Central District of California, only had a misdemeanor driving conviction unrelated to alcohol on their record, according to their lawsuit.

Although the individual circumstances differ, the claims are largely the same, citing violations of the APA and the Fifth Amendment.

Those grounds for contesting the loss of F-1 status haven’t been tested in federal courts before because the government has never followed a process that ignored regulations, said immigration attorney Charles Kuck.

“No prior administration wanted to break the law,” he said.

DHS didn’t respond to multiple requests for comment.

Backwards Process

In the past, records in the ICE database have only been altered after a visa holder is placed in removal proceedings—typically for something that could be classified as a crime or moral turpitude.

“That’s when the student can get judicial review,” Mehta said. “If it was done on some flimsy grounds like a traffic violation or misdemeanor charge, you could potentially win in immigration court.”

Instead of starting with a removal, ICE is pursuing the process out of order by terminating the students’ status first, he said.

It’s unclear how many students have had their status removed. DHS and ICE haven’t addressed the issue publicly or responded to requests for comment.

Immigration attorneys say they’re seeing hundreds of cases of affected visa holders, many over failure to maintain status or because they appeared in a criminal record check.

Federal regulations provide for possible termination of SEVIS records if a student fails to maintain status by, for example, not maintaining a full course of study, working without authorization, or being convicted of a violent crime with a potential sentence of more than a year.

Emily Neumann, managing partner at Reddy Neumann Brown PC, said 300 people joined a Zoom call by her firm last week about the issue. In some cases, victims of domestic violence have had their status terminated because of interactions with law enforcement, she said.

“It’s not focusing on actual criminals,” Neumann said. “It’s anyone whose name is apparently coming up in some criminal record check they’re doing.”

Long-term Visa Risks

Foreign students have helped make the US a global leader in science and technology, said Hanan Saab, associate vice president for government relations and public policy at the American Association of Universities. The group is “working diligently to get our arms around the scope and scale of these cancellations and to understand why their occurrence is accelerating,” she said in a statement.

Like the Dartmouth PhD student, many plaintiffs or other students exploring litigation have been forced to stop working or had their eligibility for H-1B specialty occupation visas put in doubt. Winning in court would allow them to complete their degrees and potentially stay in the US long enough to change to another visa status or apply for a green card.

But the revocation of their visas will still loom over the students, creating significant risk if they travel abroad and have to apply again before reentering the US. A previous revocation would likely lead to additional screening at consulates, potentially creating significant delays even if they secure a new visa, Neumann said.

“If they leave and file for a visa, will they even get it?” she said.