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Homeland Security Secretary Kristi Noem’s agency has terminated thousands of international students’ records from the Student Exchange and Visitor Information System.
Jabin Botsford/The Washington Post/Getty Images
As the federal government faces increasing pushback to the decision to terminate the statuses of more than 1,200 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 from late Monday, 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.”
That argument was echoed in an affidavit from Andre Watson, a senior official in the Department of Homeland Security.
“The statute and regulations do not provide [the Student and Exchange Visitor Program, which facilitates SEVIS] the authority to terminate nonimmigrant status by terminating a SEVIS record, and SEVP has never claimed that it had terminated the nonimmigrant status of [the plaintiffs],” wrote Watson. “Furthermore, the authority to issue or revoke visas for nonimmigrant students lies with the Department of State, not SEVP. Terminating a record within SEVIS does not effectuate a visa revocation.”
According to court filings, two of the students in the Michigan suit have had their visas prudentially revoked by the State Department. A judge held a hearing Tuesday and had not yet made a decision on the students’ motion for a temporary restraining order as of 9 p.m.
The Michigan students and others who have sued say that terminating their SEVIS record is essentially a visa revocation, and they need a restraining order in order to continue their education uninterrupted. Without their name in the system, they can’t work or transfer schools. Since the first SEVIS records were affected at the beginning of April, some students have left the country out of fear that they would be deported or face other legal repercussions. Moreover, some immigration lawyers working closely with affected students and institutions say their clients have been told the very opposite regarding their legal status in the country.
The filing appears to be the first time the government has responded in writing to lawsuits that have been filed against the Trump administration for its attacks on international students, excluding high-profile cases where the students were also detained. This particular response was to a lawsuit brought by four students from the University of Michigan and Wayne State University who lost their F-1 student statuses. So far, at least 50 students have sued across 16 lawsuits, according to an Inside Higher Ed review of court records.
In recent weeks, questions have swirled regarding exactly which students are being affected and what is going to happen to them. The response provides some insights into the government’s process—but also creates even more confusion over its goals in terminating SEVIS records.
“If their official position is you don’t need SEVIS to stay in school … I’d love to see that regulation,” said Charles H. Kuck, a Georgia lawyer who has filed a lawsuit on behalf of over a dozen students, with plans to expand that group significantly in the coming days.
Immigration lawyers and experts who spoke with Inside Higher Ed agreed that a terminated SEVIS record does not inherently equate to a revoked F-1 or J-1 status, as the government asserts. But many also noted that there is no reason for the government to void SEVIS records if they aren’t also revoking the student’s legal nonimmigrant status—especially because typically the university, not the government, would be the entity terminating those records in response to a student violating the terms of their F-1 or J-1 status.
Additionally, there’s also no information in the complaint about what effect terminating these records is intended to have if not to end the student’s legal status and force them to leave the country; Homeland Security’s own resource for international students says a student whose SEVIS records are terminated must “either apply for reinstatement, or the student and dependents must leave the United States immediately.”
Faye Kolly, an immigration attorney based in Texas, said she felt the government’s insistence that SEVIS records do not necessarily reflect their nonimmigrant status is “irrelevant,” considering foundational documents to maintaining that status are hosted in SEVIS. She equated terminating SEVIS records to removing a leg from the table; the table isn’t necessarily gone, but it’s not functional, either.
Indeed, without SEVIS records, students are prevented from doing a slew of things F-1 status would typically afford them, including transferring institutions, visiting family in their home countries, changing their visa status to allow them work in the U.S. after graduating and more.
“Technically it is true, yes, that SEVIS status is not dispositive of a student’s true legal status, but there is a significant impact in terminating a student’s SEVIS record,” said Kaitlyn Box, a partner at the New York law firm Cyrus D. Mehta & Partners PLLC, who has been working with students impacted by SEVIS records terminations.
The government also disputed the plaintiffs’ claims that they would suffer irreparable harm if the TRO is not granted. The four students’ fears of being deported without the protection of their F-1 status, the filing said, are “not likely” because DHS hasn’t initiated the removal process in any of their cases. And it argued that interruptions to their educations wouldn’t cause irreparable harm because they have the opportunity to seek reinstatement—or study elsewhere.
“They can transfer their credits to universities in their home country or in other comparable countries, such as Canada, or in Europe,” the government’s lawyers wrote.
Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, called that argument “really dismaying to hear.”
“Because for students who may be close to finishing, a few months or a year from finishing—we all know, everyone in higher education knows, it’s not so easy to transfer,” she said.
Kuck said also noted that some of his clients’ institutions have explicitly been told by the federal government not to bother applying for their F-1 or J-1 status for reinstatement because it would not be successful.
“This is a nightmare,” he added. “It’s intended to be a nightmare. It is deeply unfair—right at the end of the semester. I have several clients that are defending their theses this week.”
(This article has been updated throughout to reflect that government is terminating students' records in SEVIS, not deleting them.)
