Appeals Body for Would-Be Educators of Foreign Students

By David North on July 30, 2012

The multiplicity and characteristics of the semi-judicial entities dealing with immigration-related matters never fail to amaze me.

Today's blog deals with an organization, previously unknown to me, that hears appeals when an obscure arm of Immigration and Customs Enforcement (ICE) says "no" to (usually pretty marginal) educational institutions applying for the ICE license to teach F-1 and/or M-1 foreign students.

The Student and Exchange Visitor Program (SEVP) within ICE decides whether or not major league universities (think Stanford or Princeton) or less well-known entities (such as Big Sioux Aviation) can issue documents that lead to the admission of foreign students. The SEVP Appeals Team (SAT) hears appeals of denied applications.

SAT is not to be confused with the three appeals units that are part of the Justice Department's Executive Office of Immigration Review (EOIR), or the Labor Department's similar set of administrative tribunals, or USCIS' Administrative Appeals Office (AAO). It is separate and distinct from all the others, and I guess more secretive than most but not all of them.

After watching the Senate immigration subcommittee's lashing of ICE over its lax supervision of marginal educational institutions, as noted in a recent blog, I decided to see what happens when SEVP actually decides against a school's request.

Given the lack of readily obtainable statistics on SEVP denials when form I-17 applications (for licensing rights) are filed, I looked around for the number of appeals from denials, a sometimes available proxy for the agency's denial rates. (Bear in mind that most DHS agencies say "yes" to aliens and/or their employers about 95 percent of the time.)

I found that an immigration lawyer had filed a Freedom of Information Act (FOIA) request with ICE and had secured a download of 500 pages of decisions made by SAT, all based on staff denials of schools wanting the right to issue the form I-20, which leads to the granting of a visa to a foreign student. Decisions from the Board of Immigration Appeals and AAO are printed routinely, but these SAT decisions had to be pried out of the government via a FOIA request.

No statistical data on the SAT cases appeared to be available so I read the raw files of the decisions in a one-out-of-six sample that covered a four-year time period (2007-2011) and found (or projected) the following:
 

  • There were about 36 appeals a year, against filings for new and renewed certifications of about 2,000 a year and a total universe of 10,000 licensed schools; in other words, denials appeared to be rare, which is par for the course with DHS.
     
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  • The review body, not unexpectedly, tended to support staff decisions, overturning only three of the 24 staff decisions in the set I read. I would have read more decisions, but either my computer or the website collapsed after I had finished the 24 cases which had been arrayed in alphabetical order, thus I had a more or less random sampling.
     
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  • This reviewing system largely followed the ultra-privacy rules of another DHS appeals body, the Administrative Appeals Office, which I have discussed previously.

 

Happily, however, SAT does not hide the names of the agencies bringing the cases, as does AAO. Since this is the case, we can get a feel for what kinds of organizations are being denied licensing rights.

Some of the petitioners had what might be called reminiscent names: Columbia College in Salt Lake City had no relation to the university of that name in New York, nor did Yale Academy relate to Yale University.

Then there were some plain vanilla names, like International Graduate University and Kingston University. And some more interesting ones, like Big Sioux Aviation, the Illinois School of Massage Therapy, the James Albert School of Cosmetology, and the Fire School of Ministry.

Most of the schools appealing the negative SEVP decisions did so without lawyers. Many of them were seeking permission to teach M-1 visa holders (i.e., vocational students) rather than F-1 academic students, and many of them had filed what must have been rather shaky applications. There were, for instance, several that simply had failed to answer questions raised by the staff and at least one applicant, despite prodding, would not give the government the name of the school's president. In a couple of cases the institutions, apparently new ones, had filed applications before actually having any students, which is a sure way of getting a denial.

None of the decisions suggested the tough scrutiny that the three senators at the recent hearing seemed to demand.

There appears to be no further appeal beyond SAT, though I suppose a creative lawyer could go into federal court, saying that a particular decision violated the Administrative Procedures Act, and maybe someone has taken that route.