Federal Judge Blocks Enforcement Of DHS’ “Unlawful Presence” Calculation

Jackson Lewis P.C.

International students at U.S. colleges and universities can feel a bit more secure now that a federal district court judge in North Carolina has permanently enjoined the government from enforcing its 2018 Policy Memorandum that changed how “unlawful presence” would be calculated.

Judge Loretta Biggs, in Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., No. 1:18CV891 (M.D. N.C. Feb. 6, 2020), found that the policy violated the Administrative Procedures Act (APA) and the Immigration and Nationality Act (INA).

In August 2019, DHS suddenly announced a policy change that reversed decades of previous policy and law. The new policy stated that foreign students would begin accumulating “unlawful presence” retroactively to the date when any sort of status violation occurred, whether the student had been aware of the violation or not. This meant that a student who, for instance, had inadvertently worked for too many hours or weeks or taken a course load that lacked the required numbers of credits or worked at a third-party site during a STEM OPT period could find they were accumulating unlawful presence and, thus, were possibly subject to three- and ten-year bars to admission to the U.S.

Before the new policy was unveiled, students could not accumulate unlawful presence unknowingly. A formal finding of a violation of status or a removal, deportation, or exclusion order were necessary precursors as due process measures.

Judge Biggs determined the government’s failure to conduct a formal Notice and Comment period violated the APA because the decision was “legislative,” not “interpretative,” in scope. Beyond that, perhaps hoping to preclude DHS from simply redoing the process and conducting Notice and Comment, she also held the new policy conflated a “status violation” with “unlawful presence,” thus, violating the plain language of the INA.

Sixty institutions of higher education across the country signed onto an amicus brief in Guilford College contending, among other things, that the new policy memo would have a chilling effect on international students planning to attend colleges and universities in the U.S.

In response to the permanent injunction, President Jane Fernandes of Guilford College stated:

International students and the campuses that depend on them are breathing a sigh of relief today . . . . Even though the policy was halted in May, campuses were already feeling the negative effects, with rising anxiety among international students and concerns that future students would be discourage from coming to study on our campuses.

President Fernandes also urged “the administration to not appeal this decision and instead recommit to restoring out nation’s competitiveness in regards to the international students.”

While the Administration has yet to respond, in its Regulatory Agenda, USCIS listed the “Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions,” which may be its response to Judge Biggs’ efforts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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