With Malice Toward All: ‘Arbitrary and Capricious’ Visa Terminations Spread Fear Among International Students

More than 1,800 students have lost their F-1 or J-1 student status so far as part of the Trump administration’s crackdown on immigration and alleged antisemitism, according to news reports and college statements. That’s far higher than Secretary of State Marco Rubio’s initial estimate of 300 students. 

Rubio alleged students sought entry into the U.S. “not just to study but to participate in movements that vandalize universities, harass students, take over buildings and cause chaos.” But aside from a few high-profile examples, it’s not clear exactly why most of the students have lost their legal status.

As students and colleges grapple with the changing legal landscape, lawsuits are starting to pile up. In at least 16 legal challenges, students argue that without their student status, they can’t stay in the country or work. The terminations are “arbitrary, capricious, an abuse of discretion, and not otherwise in accordance with law and the Constitution,” argues one lawsuit filed April 15. Some courts have reinstated students’ legal standings, a policy change late on April 24 kick started the restoration of all terminated SEVIS statues. 

At least 290 international students or recent graduates who had their Student and Exchange Visitor Information System records terminated by the federal government are fighting that decision across 65 lawsuits. They are hoping to get those terminations reversed and return to their work or studies, and many have been successful, securing at least a temporary reprieve.

The individuals represented in the lawsuits come from across the country and range from undergraduate students to postgraduates who are working under Optional Practical Training, which allows F-1 students to stay in the U.S. and work in a position that relates to their degree for a period of time after they graduate. At least 14 of the plaintiffs, but possibly more, were slated to graduate in the next six months until a SEVIS (Student and Exchange Visitor Information System) termination interrupted their studies.

So far, many of the suits have been successful; judges have granted temporary restraining orders in over 35 lawsuits, in most cases requiring the government to revert the plaintiffs’ SEVIS status back to “active,” refrain from further changing their SEVIS status or lawful nonimmigrant status, and agree not to take the plaintiffs into custody if they haven’t already.

In their decisions, several judges have agreed that forcing students to halt their studies mid semester due to SEVIS terminations qualifies as “irreparable harm”—one of the qualifications for granting a TRO—even as the government continues to claim in court filings and hearings that the impacted students can simply study or work in other countries.

 “Plaintiff is in the middle of the semester, for which he has already paid $17,739.23 in tuition. He is at imminent risk of being forced to drop his courses for this semester, and he is at risk of being prevented from registering for classes for next semester, as the university cannot allow him to proceed with his studies without an active student status on the SEVIS system,” wrote Patrick J. Schiltz, chief U.S. district judge for the District of Minnesota, in an order granting a University of Minnesota student a temporary restraining order. “Broadly, plaintiff faces the loss of the many years and many thousands of dollars he has invested in pursuing his degree.”

Almost all of these lawsuits hinge on the Administrative Procedure Act, a 1946 statute that governs federal government agencies, arguing that the Department of Homeland Security does not have the authority to terminate SEVIS records. Traditionally, a student’s record in SEVIS would be terminated by the institution they attend. They also argue that the government has violated international students’ right to due process by terminating their SEVIS records without giving them prior notice or a chance to respond.

A SEVIS record is distinct from a visa, which is a document that allows one to enter the U.S., and from a person’s immigration status, although that status is intended to be reflected in SEVIS records.

The largest case filed so far represents 133 individuals nationwide and is among those that have been granted a TRO. Charles Kuck, the Georgia attorney leading the case, said that the government has followed the order and restored all 133 plaintiffs’ SEVIS statuses to active.

Monitoring System

SEVIS is a digital records system that allows the federal government to monitor international students in the United States. The system was first launched as a national security tool in 2003.

SEVIS is administered by the Student and Exchange Visitor Program (SEVP), within Immigration and Customs Enforcement, which itself falls under the Department of Homeland Security. Colleges and universities must be certified by SEVP to enroll international students and issue I-20 forms, which certifies that M-1 and F-1 students are eligible to study in the U.S.

A SEVIS record is distinct from a visa, which is a document that allows one to enter the U.S., and from a person’s immigration status, although that status is intended to be reflected in SEVIS records.

What does it mean for SEVIS records to be terminated?

A student’s record in SEVIS can be set to a range of statuses that indicate where they are in their journey to study in the U.S. Students are given “initial” status starting when they are first admitted to a university through when they actually arrive at that institution, at which point they are registered as “active.” Institutions are then required to re-register that “active” status each semester to confirm that the student is still studying at their university.

Typically, a SEVIS record is terminated if a student has done something to violate the terms of their visa status, such as dropping below the necessary course load without approval or doing unauthorized work. It is usually the university, not the government, that terminates the record.

Students whose records are terminated can then apply for reinstatement. Jacqueline Watson, an immigration attorney based in Texas, said that in most of her past work with students whose SEVIS status was terminated, the student was eventually reinstated. But the decision is up to United States Citizenship and Immigration Services, another agency under DHS, and it is discretionary, so there are no concrete rules that govern who is reinstated and who isn’t.

What is different about this round of SEVIS terminations?

First and foremost, the current wave of SEVIS terminations, which has impacted as many as 4,700 international students according to some reports, have come from the federal government rather than from students’ institutions. And the government is not telling universities when it has terminated a student’s record; instead, university workers are finding out on their own by checking SEVIS.

There is significant confusion about what a terminated SEVIS record actually indicates in this situation. Ideally, SEVIS records accurately reflect a student’s lawful nonimmigrant status—a term that refers to those coming to the U.S. for a limited period of time, such as to complete a degree. If a student’s SEVIS record is terminated, that generally means they are no longer permitted to study and work in the U.S. and must begin the process of leaving the country, though this can be reversed if they successfully apply for reinstatement.

But the government has argued in court proceedings that a SEVIS record is not inherently reflective of a student’s status. That has raised the still-unanswered question of what, exactly, the government is trying to achieve by terminating SEVIS records, if not to get the affected students to stop living and studying in the U.S.

The government has also argued in court rulings regarding recent SEVIS record terminations that students should seek relief by applying for reinstatement, as they would if their SEVIS records were terminated ordinarily. But Charles Kuck, a Georgia-based attorney who is representing dozens of international students whose records have been terminated, told Inside Higher Ed last week that at least two of his clients’ institutions were told directly by the federal government not to bother seeking reinstatement because those applications would not be approved.

What happens to a student whose SEVIS record has been terminated?

Right now, it’s unclear. Again, the government has indicated in court filings that there is nothing obliging those affected to leave the country.

Nevertheless, DHS’s guidance regarding SEVIS terminations states that there are several penalties for a SEVIS termination that could negatively impact international students. The guidance states, for example, that a student whose SEVIS record has been terminated may not re-enter the U.S. after traveling abroad, even though they would be allowed to under normal F-1 and M-1 status.

Of course, some attorneys have also expressed concern that students whose visa records have been affected will eventually be detained or forced to leave the country.

Which students are being targeted?

According to lawyers and other experts, it appears the students who have been impacted are those who have had any interaction with law enforcement, even small traffic infractions or charges that were dismissed, which wouldn’t typically lead to visa terminations.

The government has not said explicitly whom they are targeting. In affidavits by Andre Watson, a senior DHS official, filed as part of the government’s response to several lawsuits from international students, Watson wrote that each of the plaintiffs’ “information was run against criminal databases.” The affidavits provided no further information regarding how they chose which students to search for and which databases were used.

Several of the most high-profile cases involved vocal pro-Palestinian student protesters. Ranjani Srinivasan, a Columbia University Ph.D. student who escaped to Canada to avoid ICE after her visa status was revoked, had previously been arrested while occupying the university’s Hamilton Hall, The New York Times reported. Mahmoud Khalil, who was detained at Columbia by ICE officials, is a Columbia graduate who had helped lead student protests.

But that trend seems to have waned. Some of the lawsuits that have been filed recently specifically note that the plaintiffs never participated in protests.

As the federal government faces increasing pushback to the decision to terminate the status of these international students, Justice Department lawyers argue that the consequences of those terminations aren’t as dire as some are making them out to be. In court filings, Zak Toomey, assistant U.S. attorney in the Eastern District of Michigan, called into question the very substance of four Michigan students’ request for their legal nonimmigrant status to be reinstated. He argued that terminating a student’s records in the Student Exchange and Visitor Information System, a database that holds international students’ information, did not equate to a revocation of their status. Because SEVIS is simply a database, he wrote, it does not “control or even necessarily reflect whether a student has lawful nonimmigrant status.”

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Amy Ghosh is a Los Angeles-based Attorney at Law, specializing in Immigration Law, Family Law, and Employment Law, among others. She can be reached at: amy@lawofficeofamyghosh.com