U.S. Department of Homeland Security building in Washington, D.C.

 

Colleges and students are suing the Department of Homeland Security over a controversial Trump administration immigration policy they argue is “intentionally designed to impose tens of thousands of reentry bars” of up to 10 years on holders of visas typically granted for academic purposes.

The lawsuit, filed by Mayer Brown attorneys in the U.S. District Court for the Middle District of North Carolina, seeks to render unlawful a 2018 policy memorandum that plaintiffs claim “fundamentally alters the calculation of unlawful presence for F, J, and M visa holders.”

Issued by U.S. Citizenship and Immigration Services (UCIS) on Aug. 9, the memo changed the start of the unlawful presence timetable from when a visa holder is found to be out-of-status to when the facts giving rise to the status violation occurred.

Plaintiffs, which include Haverford College and New York’s The New School, are seeking to have the policy vacated as well as for the court to enjoin DHS, U.S. Secretary of Homeland Security Kirstjen Nielsen and UCIS—all defendants in the suit—from applying the policy. They allege the memo violates the due process clause since DHS and USCIS can deem an individual unlawfully present without “the notice and opportunity to cure that is required.”

“Under the prior policy, an individual was provided notice before he or she could be subject to the harsh penalty and restriction of freedom that is a three- or 10-year reentry bar,” the complaint says. Now, “it impossible for an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her ‘out-of-status,’ and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.”

Paul Hughes, a Mayer Brown partner representing plaintiffs, said he thinks there’s “substantial reasons the court will find this policy unlawful.”

“It’s going to affect hundreds of thousands of students, and does so in a way that they just don’t have any notice,” he said. “I’ll be curious to hear [the defense’s] argument why they think this could be done via a policy memorandum that’s listed on their website.”

“They tried to use an informal policy memorandum when trying to change policy … rather than going through agency and comment,” Hughes added.

USCIS declined to comment citing agency policy in instances of ongoing litigation. An agency spokesperson, however, pointed to agency director L. Francis Cissna’s comments when the policy memo was issued which said the policy came “as a result of public engagement and stakeholder feedback.”

“People who overstay or violate the terms of their visas should not remain in the United States. Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable,” Cissna added.

“F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status,” Cissna noted in an earlier release

“The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”

Other plaintiffs in the suit are Guilford College in Greensboro, North Carolina, the Guilford College International Club, and the Foothill-De Anza Community College District in Los Altos Hills, California.

“The imposition of a reentry bar on an international student or exchange visitor has a drastic effect on her life. It will preclude her from completing her degree program, deprive her of employment opportunities, and exclude her from friends and family living in the United States,” the complaint says. It adds that the re-entry bar also will also “irreparably injure” those choosing to teach or work in the United States, as well as impose “financial harm on institutions in terms of lost tuition dollars and local communities.”