Department of Homeland Security (DHS) Secretary Kristi Noem has revoked Harvard University’s privilege of enrolling, or continuing to permit attendance of, foreign students at the institution. Predictably, the university sued and, perhaps even more predictably, a U.S. District Court judge has issued a temporary restraining order (TRO) blocking Noem’s revocation.
The Process. Without going too far into the weeds, it’s useful to understand how the process works: In order for a prospective student or exchange scholar to apply for the appropriate visa before a U.S. Department of State consular officer abroad, he or she must provide evidence of acceptance by a recognized institution. DHS in the first instance grants, denies, or revokes a school’s authority to issue the proof of acceptance, (which takes the shape of a Form I-20) to the prospective student that the consular officer will be looking for in the visa packet. In parallel fashion, the State Department does the same thing vis-a-vis approval, denial, or revocation of an institution’s authority to issue proof of acceptance into a research program (which takes the shape off a Form DS-2019) for the intended exchange scholar to present to the consular officer.
While it’s still possible that, even with the I-20 or DS-2019 in hand, an applicant may be denied a visa, because issuance is in the sole discretion of the consular officer (for instance, if there is a suspicion that the individual will fail to attend full-time, or will engage in illegal or unauthorized activities), what is clear is that without the requisite I-20 or DS-2019 from the institution, the applicant will be denied out-of-hand. What is more, inspecting immigration officers at ports of entry are not obliged to admit aliens solely because they possess a visa and an I-20 or DS-2019, if they have grounds to believe that after entry they will violate the terms of their admission as students or exchange scholars.
What Now? This is the regulatory and procedural backdrop under which the judge has issued his TRO. So what happens now? The legal stakes are clearly high if the federal government is to retain its rightful control over foreign students, which in the end it must.
But in the meantime, as legal proceedings play out, at the ground level is the TRO – or an injunction if it were to ensue after further hearing – likely to be effectual? There’s reason to doubt.
Even assuming Harvard continues to issue I-20s by the boatload to new prospective students to present to a consular officer abroad, they will undoubtedly be denied. And there is a long body of law and court precedent which puts consular denials out of reach of this, or any, district court judge. He has no power to oblige the federal government to issue a visa to a foreigner abroad.
And as to the students now attending Harvard? If they are serious about their education, why would they stay at Harvard under such a cloud of uncertainty, fearing that arrest and detention might happen at any time if they are deemed to be “out of status” by remaining? Prudence would dictate arranging a transfer at the first opportunity to an institution whose authority to accept and host foreign students is not at risk – particularly given the substantial fees they (or their financial sponsors) risk losing by continuing to attend Harvard.
As to the less-than-serious “students” – those who are more intent on violent, disruptive, or performance-art protests that violate law or school policy rather than focusing on the classroom study and learning which was their stated reason for entry: At this point they are certainly on notice. If they continue, their very actions make them fair game for arrest and placement into removal proceedings, without ever having to reach the question of whether the TRO by implication blocks enforcement action against legitimate students.