Lawsuit Filed By Victims Of ICE's Fake College Sting Revived By Appeals Court

from the abolish-ICE dept

An elaborate scheme involving a fake college set up in New Jersey by ICE has, unsurprisingly, resulted in a lawsuit by some of the foreign students swept up in the sting operation. Apparently having given up on rooting out the worst of the worst non-citizens, ICE is contenting itself with arresting and charging foreigners for attempting to stay in the country legally by continuing their education.

The fake university looked pretty real to applicants. It had a website, a Facebook page, and — most importantly — accreditation by a national accreditation service. The school’s website told students the fake school was certified by the DHS’s Student and Exchange Visitor Program to “educate international students.”

It all looked legit. None of it was. ICE claims it was targeting people who defrauded students or universities by brokering illegitimate educational offerings meant to allow visitors to overstay their visas. That doesn’t explain why ICE accepted registration fees from interested students. Nor why it arrested a bunch of students trying to do something they were legally allowed to do.

ICE ended up with about eight criminal suspects from the hundred-plus arrests resulting from the sting operation. Some of the others caught up in the sting had their visas cancelled, supposedly due to “fraudulent enrollment.” So, in the government’s eyes, the people ICE tricked into enrolling in its very real-looking fake college are every bit as criminal as the criminals the government is actually prosecuting.

The lawsuit deals with these suddenly-cancelled visas. The issue is the government’s arbitrary decision to turn people they first referred to as “victims” into accused criminals solely for the purpose of stripping them of their visas. This determination comes without any form of due process attached, so it’s up to federal courts to field these challenges, as the Appeals Court points out.

The Appeals Court delves into administrative minutia to counter the government’s arguments and point out where the lower court went wrong. But it also spends some time dealing with the government’s contradictory assertions. After sending letters calling the duped students “frauds,” the government argued in court it didn’t actually mean what it said in the letters informing the students they were no longer welcome in this country. From the decision [PDF]:

We held argument on September 25, 2018. There, for the first time, the Government informed this Court that its position was not that the students had committed fraud by enrolling in UNNJ. Rather, the Government believed that the students were the victims of fraud. The Government twice stated that the students “were caught up in it in the sense that they were victim by the academic recruiters” and that “[t]here was no fraud here. These students, as far as we are concerned, were the victims of fraud. . . . [T]hey were caught up in it.”

[thinking face emoji]

How does the government explain calling victims of fraud perpetrators of fraud when revoking their visa privileges? In a word, badly.

When pressed about the language in the terminating letter, the Government (incorrectly) stated that “fraudulent enrollment” was “passive voice,” and therefore should not be read to imply that the students had committed fraud.

That’s a very fine — and very understated — parenthetical there.

And it just keeps getting better. The government comes off as a petulant child who has decided only one thing will make it happy — tossing these students out of the country — and will do whatever it takes to ensure that happens.

Despite the Government’s position that the students were the victims of fraud, it acknowledged that database entries for each student would reflect the “fraudulent enrollment” determination made by DHS. The Government acknowledged that it was able to, consistent with its stated position, eliminate any database notations that suggested that the students had committed fraud, yet it refused to do so.

Beautiful. And that’s followed immediately by another line of pure horseshit, delivered directly to bench by the government’s lawyers.

It argued that correcting the record on a preventive basis was not necessary because the “fraudulent enrollment” determination would not have any adverse impact on the students in future immigration proceedings.

Ah, yes. Being accused of criminal acts by federal agencies tends to have no effect on the accused, especially during removal proceedings or the visa application process.

After all this “no harm, no foul” stuff, delivered in hopes of persuading the judge the government wasn’t just a tantrum-throwing child wearing its dad’s suit, the government decided to embrace its inner child.

On October 12, 2018, the Government changed course yet again. It filed a letter “to clear up any confusion from certain exchanges” that occurred during argument. The Government informed the Court that it was not, in fact, conceding “that all—or even most—UNNJ enrollees were innocent victims.” In fact, the Government now asserted that some of the students “in all likelihood, knew that their academic recruiters were committing visa fraud” and others even “conspired with their academic recruiters to commit visa fraud.” “Thus,” the letter concluded, “to the extent that any of the Government’s comments at oral argument left the misimpression that all of UNNJ’s enrollees were innocent victims of the academic recruiters’ visa fraud scheme, that is not the case.”

After the discussion of the government’s argumentative fuckery, the court turns to the issue at hand. The lower court said the students needed to take their problems up with the immigration court and/or the DHS first before bringing it to the district court. The Appeals Court disagrees. The students can bring this action directly because the determination made by the DHS was indeed final. There are no intermediate steps these students could have taken to challenge the DHS’s determination.

The order terminating these students’ F-1 visas marked the consummation of the agency’s decision-making process, and is therefore a final order, for two reasons. First, there is no statutory or regulatory requirement that a student seek reinstatement after his or her F-1 visa has been terminated. Moreover, even if the students attempt to pursue the administrative procedures for reinstatement, there is no mechanism to review the propriety of the original termination order. Second, the students need not wait for removal proceedings to be instituted. As we stated in Pinho, an order’s finality cannot depend on the institution of removal procedures which may never occur. And in any event, immigration judges cannot review the original denial of reinstatement. They do not have that authority.

The court makes no statement on the propriety of the ICE’s sting operation. It does, however, spend a few pages detailing all the efforts ICE made to ensure the bogus college looked legitimate. The decision is subtly damning in its construction, contrasting the “realness” of the college with the government’s claim students it first called “victims” were now suddenly fraudsters. The lawsuit lives on, headed back to the lower court to give the plaintiffs a shot at getting the DHS’s “fraud” designation scrubbed from their permanent record.

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Comments on “Lawsuit Filed By Victims Of ICE's Fake College Sting Revived By Appeals Court”

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That One Guy (profile) says:

Re: Double Standard

For the same reason the FBI was able to not only run but improve a child porn forum for weeks and not only not face any penalties but have the tainted evidence from it upheld:

Those that uphold (whatever they claim is) the law don’t have to follow the law themselves, thanks to gutless judges and cowardly(at best) legislators unwilling to tell them ‘no’.

That One Guy (profile) says:

'How dare they try to hide behind 'the law'!'

The Government informed the Court that it was not, in fact, conceding “that all—or even most—UNNJ enrollees were innocent victims.” In fact, the Government now asserted that some of the students “in all likelihood, knew that their academic recruiters were committing visa fraud” and others even “conspired with their academic recruiters to commit visa fraud.”

Ah yes, the good old ‘we’re sure that some of them had nefarious motives for trying to stay in the country legally by furthering their education, which we shall cast as ‘visa fraud’ because it makes us look less despicable.’

Thing is, if signing up with a college is a legal way to extend one’s visa, the only way I can see the ‘visa fraud’ thing even potentially having any weight is if the students/recruiters knew or strongly suspected that the college in question was fraudulent, and given ICE went above and beyond to do everything they could to present a facade of legitimacy it would seem their argument shoots itself in the foot. If the students/recruiters were ‘tricked’ into ‘fraudulent enrollments’ it was by ICE, so to hold the would-be students responsible smacks of pure cruelty and/or vindictiveness, adding insult to injury simply because they can.

Anonymous Coward says:

Re: 'How dare they try to hide behind 'the law'!'

You raise an interesting point. Does anyone know, is it criminal fraud to enroll in college for the specific purpose of extending your visa? Is there a legal distinction between extending a visa to continue your education, and continuing your education to extend your visa?

The government claims to believe that the students at least knew they were attempting to enroll fraudulently. Maybe ICE looks at it like marrying someone as a path to gaining citizenship.

bhull242 (profile) says:

Re: Re: 'How dare they try to hide behind 'the law'!'

Interestingly, in the decision, it notes that ICE might not even have the authority to terminate an F-1 visa due to fraudulent admission. The statute only allows for terminations of this sort under a few specific circumstances, such as when the student applies for permanent residency. These circumstances don’t include fraudulently enrolling in a fake university.

So while I don’t know whether or not it’s criminal fraud, it’s quite likely that it isn’t grounds for ICE to terminate the visa for it.

Matthew A. Sawtell (profile) says:

Hm... Nice Defense, if the University of Farmington Scandal..

… did not exist – As for Tim’s jab about "Apparently having given up on rooting out the worst of the worst non-citizens", one would think there was a ‘classist’ take about the difference between White and Blue Collar Crime. Then again, living in South Dakota, it is not like he has had his fun with H-1B issues.

bhull242 (profile) says:

Re: Hm... Nice Defense, if the University of Farmington Scandal.

Dude, this isn’t about the University of Farmington scandal. This is about the University of Northern New Jersey scandal. And considering we have an actual court document that clearly states that the government did, in fact, set up a fake university to trap immigrants with visas, I’d say this one is very, very real.

Please, try to keep up with what we’re actually discussing.

As for your jab about Tim’s jab, I can honestly say I have no idea what your point is.

Anonymous Coward says:

Thing is, if signing up with a college is a legal way to extend one’s visa, the only way I can see the ‘visa fraud’ thing even potentially having any weight is if the students/recruiters knew or strongly suspected that the college in question was fraudulent

Another way would be if they’re signing up to schools they had no intention to attend, as a way to buy their way into the country (actually buying your way into the country, via an investor visa, can be much more expensive).

That One Guy (profile) says:

Re: Re: Re:

Use the ‘Reply to this’ to see where the comment will be, and then ‘preview’ to make sure any markdown stuff is correctly formatted.

As for the original comment, possible, but I’d think that would require the ‘school’ to actually hold classes that they could show the student wasn’t actually going to for significant periods of time to demonstrate that.

David says:

This can be fixed easily.

Students enrolling in a fake university set up by the ICE and paying real money were deported because of "fraudulent enrollment". It seems like this injustice could be partly rectified and at least a repetition avoided by deporting the ICE. It doesn’t appear to value American laws so the U.S. certainly seems better without it.

Bloof (profile) says:

Whenever a right wing government cracks down on immigration, they’ll try and achieve that by any means necessary, even if it means inventing new ways to remove people who have every right to be there. Numbers over humanity, and if the problem isn’t actually big enough to grab headlines, make it one by adding innocent people to the stats as they’ll have little chance of getting any justice once they’re deported.

bhull242 (profile) says:

Re: Re: Re:

Setting aside the fact that you brought the Nazis into a discussion about a topic that did not involve the Nazis or anyone or anything reasonably comparable to the Nazis, the idea that the Nazis were “a very left organization” shows a lot of ignorance about either the Nazis, the left, or both.

Side note, when using ellipses to show you’re omitting something from a quote, they are included as part of the quote within the same set of quotation marks.
“crack down on immigration…by any means necessary”

Anonymous Coward says:

I guess we need to ask, did any American citizens sign up for classes at the university? If so I’d think the government agency perpetuated fraud on the American public in an attempt to catch illegal immigrants. We won’t hear of that though, it’s to easy to quickly settle with a gag order thus hiding what they’ve done.

ChristopherClarkMucend (profile) says:

American students are great for taking legal action. European students did not sue to get their money back for campuses and tuition fees during the remote learning format. But the American students did it and most of the money was returned to them. Students are not rich people. Many of them don’t make money at all. Many of them are mired in student debt. Many of them buy homework from services such as that involves on student’s budget too. Therefore, it is a great idea to cool some of the money already paid for education.

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