DHS Strips Harvard’s Foreign Student Program Just As Judge Blocks Separate Mass Student Expulsion Scheme

Legal Issues

from the fascism-is-rampant dept

DHS announced yesterday that Harvard can no longer enroll foreign students, stripping the university of its Student and Exchange Visitor Program certification. The timing is particularly brazen: around the same time, a federal judge in California had blocked DHS from a separate scheme to mass-revoke thousands of student visas based on fifteen minutes of review.

This isn’t incompetence. It’s blatant, authoritarian retaliation. Harvard stood up to the Trump administration’s demands, so now every foreign student there gets punished.

Let’s start with the California ruling, which exposes the breathtaking scope of DHS’s lawlessness. The agency decided to mass-expel thousands of foreign students based on fifteen minutes of review.

Here’s what happened: DHS ran 1.3 million student visa holders through a crime database, found 16,000 with any law enforcement contact whatsoever, narrowed it to 6,400 names, and then:

According to the email from the Patel Administrative Record, after the State Department received these lists, it took approximately fifteen minutes to decide that all records in SEVIS relating to those names should be terminated.

Fifteen minutes. To destroy thousands of lives and academic careers.

This from an agency run by someone who thinks “habeas corpus” means the power to deport people without due process.

For what it’s worth, the DOJ claimed that terminating SEVIS records doesn’t actually change a student’s immigration status, but the judge points out that he wasn’t born yesterday. This is the latest in a series of rulings against the Trump administration from courts that now know that the government is not acting in good faith:

Defendants’ arguments on each of the Winter factors hinges on their position that a SEVIS record is not linked to immigration status. The Court joins the growing number of courts around the United States who have rejected this position…. Like other courts that have considered Defendants’ position, “[t]he Court cannot blindly accept Defendants’ current characterization of SEVIS termination and ignore the evidence before it.”

Even worse, the court notes that US immigration officials sent notices to students saying that with their SEVIS record terminated, their visa was revoked.

And thus, the revocation of their immigration status is a violation of their due process rights. In particular here, though, Judge White points out that even without getting to the constitutional due process rights, the revocation clearly violates the Administrative Procedure Act which bars moves like this that are “arbitrary and capricious.” It’s hard to get more arbitrary and capricious than Kristi Noem:

Based on Mr. Watson’s representations, the only individualized assessment made was whether an individual identified who had a positive result in the NCIC database was an individual listed within the SEVIS database. Plaintiffs are likely to prevail on their claim that the decision to terminate their SEVIS records was arbitrary and capricious because the decision was not based on a “rational connection between the facts found and the choice made.” … Because the record also shows that Defendants did not rely on one of the three circumstances set forth in in 8 C.F.R. section 214.1(d) to terminate the SEVIS records, the Court also concludes Plaintiffs are likely to succeed on the merits of their claim that Defendants’ actions are contrary to law.

The government also tries to claim that the court has no jurisdiction, and if DHS decides to arrest, incarcerate, or transfer any of these students, it can’t stop them. Once again, the court calls bullshit on this nonsense:

Defendants argue the Court has no authority to prevent Defendants from arresting, incarcerating, or transferring the Plaintiffs outside the District pending resolution of the proceedings, citing 8 U.S.C. sections 1252(g) and 1226(e). The Court keeps its analysis to a minimum because this too is an argument that has been consistently rejected by courts around the country. … Because there are no material differences between the facts considered by those courts and the facts here, the Court follows and adopts their reasoning

Finally, the plaintiffs in this case asked for a nationwide injunction, and again the Trump admin’s bad faith actions in this and other courts helped convince the judge such an injunction is necessary:

To the best of this Court’s knowledge, this is the only case in which Plaintiffs have requested nationwide relief. The overwhelming majority of courts considering these cases have determined the plaintiffs are likely to succeed on the merits of the same claims presented here, even when they have concluded the plaintiffs were unlikely to show irreparable harm. The Court has determined Plaintiffs have met their burden to show a likelihood of irreparable harm and sees no rational distinction between the harms inflicted on the Plaintiffs before it and the harms inflicted on similarly situated individuals across the United States.

Finally, Defendants’ actions since these cases were filed raise the concern that they may be trying to place any future SEVIS terminations beyond judicial review. At each turn in this and similar litigation across the nation, Defendants have abruptly changed course to satisfy courts’ expressed concerns. It is unclear how this game of whack-a-mole will end unless Defendants are enjoined from skirting their own mandatory regulations.

For these reasons, the Court GRANTS Plaintiffs request for nationwide relief.

Of course, the game of whac-a-mole (the judge gets the trademarked name wrong) continues. While Judge White was blocking one scheme to mass-expel students, DHS was already launching another: punishing Harvard by banning all foreign student enrollment. This is bonkers. It’s clearly retaliatory in response to Harvard pushing back on nonsense Trump admin demands and suing to block some of the other punishment directed their way.

Noem, ridiculously, tries to paint this as a punishment for antisemitism on campus and some made-up nonsense about Harvard “coordinating with the Chinese Communist Party.” And then, directly admits that they’re doing this because they know foreign students usually pay full tuition, which is important to the bottom lines of many universities:

It is a privilege, not a right, for universities to enroll foreign students and benefit from their higher tuition payments to help pad their multibillion-dollar endowments. Harvard had plenty of opportunity to do the right thing. It refused. They have lost their Student and Exchange Visitor Program certification as a result of their failure to adhere to the law. Let this serve as a warning to all universities and academic institutions across the country.”

Except, no. If Harvard failed to “adhere to the law,” you fucking take them to court and prove it. That’s due process. Which is not happening here. There’s a lot more conspiracy theory craziness in the announcement, including highlighting an increase in crime on campus.

The whole thing is just blatant fascism in action: Harvard stood up to the administration, so the administration will punish them every way possible. Of course, Harvard has access to a few lawyers, so it’s quite likely that this will be blocked by a lawsuit in short order. Literally as I was finishing up the writing of this piece, Harvard sued (turns out they know lawyers who are willing to work overnight). Then, as I was finishing up the editing of this piece, the judge already granted a temporary restraining order. Things happen at quite a fast pace when fascism is on the march.

Either way, yesterday after the announcement, Noem went on Fox News and said the quiet part out loud. This punishment of Harvard “should be a warning to every other university to get your act together,” she declared, before claiming with a straight face that arbitrarily expelling foreign students teaches kids about “freedom and liberty” and how it was important for them to “learn what this country is about.”

Yeah, they’re really learning exactly what this country is about.

The mask is completely off now. This isn’t about protecting students or enforcing laws — it’s about terrorizing universities into compliance through collective punishment of innocent foreign students.

What we’re witnessing is fascism in real time: an administration using the power of the state to punish institutions that dare to resist. First, they came for the foreign students who had any contact with law enforcement. Then they came for Harvard because it wouldn’t bend the knee.

The pattern is clear, and it’s accelerating. But that’s exactly why more institutions need to follow Harvard’s lead and resist rather than capitulate. The administration is betting that the threat of collective punishment will cow universities into submission. The only way to stop that is to refuse to bend the knee — and to force them into court every single time. As the case in California (and so many other cases) has shown, the judiciary is getting sick of the administration’s games and lies.

But, still, it’s important to understand that this is what authoritarianism looks like: yes, there are also the traditional jackbooted thugs in the streets snatching people, but there are also bureaucrats with fifteen minutes and a database, wielding immigration law as a weapon against anyone who dares to push back.

Filed Under: dhs, f1 visas, fascism, kristi noem, retaliation, sevis, student visas
Companies: harvard