Judge sides with UI international students, rejects government requests

IOWA CITY — The Department of Homeland Security should have raised its arguments sooner, according to a federal judge who in May granted a preliminary injunction the government now is fighting that prevents it from terminating the immigration status of four University of Iowa international students.

The UI students — two from China and two from India — are among more than 4,700 international students nationally whose status in the Student and Exchange Visitor Information System (or SEVIS) was terminated without notice or clear reasoning earlier this year.

Many had some past encounter with law enforcement — including the four UI students who had been charged with offenses like operating while intoxicated, disorderly conduct, or speeding.

Given the offenses were not violent crimes and did not warrant status termination, many — like those at Iowa — sued, compelling courts to issue injunctions and the government to unwind its terminations.

To the injunction that U.S. District Court Judge Rebecca Goodgame Ebinger issued in the Southern District of Iowa, federal attorneys pushed back — saying, among other things, that the court order was impossible to comply with, dangerous to the public, and overbroad.

“(Homeland Security) argues the court must narrow the injunction so as to free law-enforcement agencies from restrictions,” Ebinger wrote in her order Thursday. “(Homeland Security) cites the Secret Service and Homeland Security Investigations as subunits of the Department of Homeland Security that should not be prohibited from any actions by the preliminary injunction.”

But because the department didn’t raise those concerns earlier and “made no arguments regarding differing restrictions on separate subunits prior to entry of the preliminary injunction,“ Ebinger said trial rules bar her from considering the arguments today.

And even if she could, Ebinger said she’d find “no grounds for disturbing the injunction order.”

“The order prevents neither arrests nor the commencement of prosecutions,” Ebinger wrote of her injunction, which just requires advance notice and due process for the four UI students who she previously found “likely to succeed on their claims of unfounded and harmful status-record interference.”

“The order does not prohibit law enforcement actions,” she wrote. “Further, the injunction has no application to state, county, or local law enforcement acting separately from (Homeland Security) and not at (Homeland Security’s) instruction or request.”

The injunction also doesn’t apply to federal law enforcement agencies like the FBI or U.S. Marshals Service, “who remain free from the order’s constraints.”

“The injunction is not broader than necessary and does not interfere with (Homeland Security’s) and the public’s strong interest in general law enforcement.”

‘Injunctive relief is narrow’

Given Thursday’s order, the injunction will hold so long as the case challenging the students’ terminated SEVIS status continues.

That means — per the injunction — Homeland Security must restore and maintain the students’ SEVIS status and include a note of “active status backdated to the date of termination,” despite the government’s assertion that they simply can’t comply.

“(Homeland Security) asserts technological limitations with SEVIS prevent (it) from fully complying with the court’s order,” according to the judge. “(The government) asserts SEVIS does not allow the creation of notations visible by users other than (the government).”

Instead, Homeland Security distributed letters to the students as proof of their retroactive reinstatement — arguing they can show the letters as evidence to outside entities with questions.

In rebuffing that argument, Ebinger said Homeland Security has given no “representations as to what, if any, efforts they have made to remedy the asserted technological limitations with SEVIS.”

“ (The department) describes the letters as sufficient to enable (the students) to defend themselves against future allegations of lapsed status,” the judge wrote, but added she “does not find this proposed alternative solution adequate to provide complete relief.”

“(The students) will not necessarily be present when relevant actors examine SEVIS records concerning educational or employment opportunities,” Ebinger said. “At a minimum, nothing about the letters demonstrates the existence or correction of any ‘manifest errors of law or fact’ with the underlying preliminary injunction order."

To the government’s assertion that her injunction was overbroad in preventing the students’ arrest, detention, or transfer from the court’s jurisdiction without notice or due process, Ebinger argued, “The court’s injunctive relief is narrow.”

“The court requires advance notice of specific actions against (the students) — the four people previously targeted — to ensure no action inconsistent with due process and to maintain the court’s ability to adjudicate this matter.”

Vanessa Miller covers higher education for The Gazette.

Comments: (319) 339-3158; vanessa.miller@thegazette.com