The presidential election has caused speculation and concern about immigration issues on campuses. Significant attention focuses on how the new administration will handle the nearly 750,000 young people who have been approved for President Obama’s Deferred Action for Childhood Arrivals (DACA) program. College presidents and students have circulated statements and petitions. This article highlights key immigration issues to inform campus discussions.
As background, we have visited quite a few campuses since the election, and there is room for common ground. Some students and faculty lean toward ideas such as a “sanctuary campus,” while some administrators have legitimate concerns about the legal implications under federal law. We make two recommendations as a start. Advocacy, either in media or public statements, or in private meetings with congressional representatives, will be important. In particular, we hope that the Trump administration will keep in place current policies discussed below regarding enforcement actions at “sensitive locations” such as colleges and universities.
First, campuses should survey what kinds of support to provide international students. For example, as discussed below, underwriting individual legal consultations for student with uncertain immigration status can help find options for them and allow good legal advice to flow back to their families. Every part of a campus should become more sensitive to the issues. For example, a sports coach or choir director should know that undocumented students cannot travel internationally. Admissions, financial aid, study abroad, alumni relations, campus security, residence life, and media relations should all be part of this top to bottom effort to understand some of the special challenges for undocumented and DACA students.
Second, campuses should review their policies on government requests and visits. Everyone on campus should know that if a government official comes to campus or asks for records, they should be referred to a small group of people who are trained on such issues. Campuses conducted a wave of training and awareness as government visits increased after the terrorist attacks of September 11, 2001. Campuses should repeat this training if needed.
Undocumented and DACA Students on Campus
Millions of immigrants entered the United States without documents in the 1990s. Many brought their children. Twenty years later, millions of people who grew up in the United States do not have legal status here. The ranks of undocumented young people are also joined by those who came and overstayed visas, who had poor immigration representation, or whose parents did not follow through on immigration applications. They are not just Mexicans or Central Americans. They span all fields of study and nearly every school in the United States.
On June 15, 2012, President Obama announced the DACA program. Through DACA, the U.S. Citizenship and Immigration Services (USCIS) can exercise prosecutorial discretion to let certain individuals stay for two years at a time without fear of deportation. DACA recipients can also receive a two-year work permit and a Social Security number.
DACA is not a new law, or even a regulation. It is not a long-term solution. Nor does it grant a legal status. It is simply a prioritization of deportations. With roughly 11 million undocumented immigrants in the United States, President Obama chose to put those with criminal records or outstanding deportations orders at the top of the list for removal, and DACA students at the bottom. President Obama issued the DACA program in the hope that it would be a bridge to comprehensive immigration reform in Congress.
DACA applies only to a certain subset of undocumented young people. It does not include those who arrived after 2007, or who arrived after the age of fifteen, or who have a serious criminal record. Many undocumented young people on campuses are not eligible for DACA.
As a practical matter, DACA is an executive action and could be revoked by the next President. If that happens, USCIS would have to begin a formal process of revoking the current work cards. Alternatively, the former DACA recipients could be ordered to immigration court to face removal proceedings. This would be a major undertaking for under-resourced immigration enforcement and court officials. The new administration could also simply stop DACA extensions, giving some time for DACA recipients to plan. The President-elect has not proposed any specific plan to end DACA so far, and there is significant lobbying to try to keep it.
For immediate action items, DACA students can apply to renew their DACA status now, if it is 180 days or less before their current grant of DACA ends. However, the application fee is $465, processing times are well over two months, and the new administration may halt granting DACA extensions before applications filed now are approved. Institutions may consider providing or identifying funding for these applications. For example, the Mexican government has supported DACA fees.
DACA recipients should take this opportunity to investigate whether they have any longer term immigration options. The various fact patterns are so numerous that it is hard to generalize. As just one example, a university could sponsor a DACA recipient for an H-1B work visa after they graduate. If USCIS approved the petition, the individual could leave the United States and come back in status. This example highlights that there may be creative backup plans. Schools could help DACA students, employees and alumni identify legal services. Some colleges have even paid for individual legal consultations to explore options. Immigrationlawhelp.org and the Executive Office for Immigration Review provide lists of immigration legal service organizations accredited by the Board of Immigration Appeals.
DACA students should also come back to the United States from any education abroad program before inauguration day on January 20. If DACA is rescinded while the student is out of the country, there may be no way to return. For now, DACA students need to understand the uncertainty of their status if they apply for a study abroad program, and only sign up if they can back out at the last minute. Schools can make sure their study abroad advisers are aware of this situation, can help students clarify refund policies, and can direct students to other educational opportunities within the United States.
DACA recipients and undocumented students may need counseling and support, particularly as many grew up with the fear of deportation of them and their families. Campuses should make sure counseling services are alerted to these issues. This is something that campuses are used to doing, just as they would reach out to those from a particular country after a natural disaster there.
DACA recipients who are on a set career path should evaluate backup immigration options now. For example, medical students will not be able to do residency training without a work permit. Medical residents and fellows will not be able to continue training or work as doctors afterwards. Any DACA recipient who loses a work permit may not be able to work legally.
Other subsets of DACA students who face particular challenges are those from low-income families and those living in states that do not have laws to support undocumented residents.
Other federal immigration programs at colleges and universities - are they are risk?
The authors have received numerous calls about whether visa categories will change. Congress sets the visa categories, so they cannot be changed quickly. This includes student visas (F-1), work visas (H-1B and O-1), exchange visas (J-1), and permanent residence (“green card”) pathways such as outstanding professor/researcher and special handling labor certification. In particular, some students worry that post-graduation student work programs such as optional practical training (OPT) could end. The worry stems from court challenges last year to an expanded OPT program for certain students majoring in science, technology, engineering, or mathematics. The litigation was resolved by formal “notice and comment” rulemaking, and the resulting expanded OPT program would take significant time and effort to undo.
The authors have also received calls from same-sex couples wondering if immigration benefits based on those relationships could end. However, the Supreme Court ruled a few years ago on marriage equality, and it would take significant time and effort to overturn that ruling.
The idea of a “sanctuary campus”
The threat that international students could be deported has led to protests on a number of campuses. Students are demanding that campuses establish “sanctuary campuses” to protect vulnerable students.
The idea of “sanctuary campuses” does not have a clear meaning. It is an obvious extension of the idea of “sanctuary cities,” another term with no definite legal definition. More research and discussion is needed to evaluate the sanctuary campus model.
Many such student demands focus on the idea of giving support and counseling to students who may be affected. Those items are relatively non-controversial, and are in some cases things that campuses are already doing that some protesters may not be aware of. More detailed discussion of those ideas is found earlier in this article.
Other protests go further, calling for campus police to refuse to enforce immigration law, for campuses to not allow federal immigration officials to conduct raids, and to otherwise limit cooperation with federal authorities. In other iterations of the “sanctuary” movement, Harvard and Princeton students have called for establishing physical campus locations to literally be sanctuaries for those facing deportation. Students at over 100 colleges and universities are circulating petitions calling for some level of “sanctuary” action within this wide latitude of meaning. Some schools, such as Reed College and Wesleyan University, have declared themselves “sanctuary campuses” and have stated that they will not voluntarily assist the federal government in immigration enforcement.
Other schools have reaffirmed diversity policies without committing to policy changes. For example, Stanford University’s statement covers the dimensions of this majority response by reasserting its policies of inclusion and free expression and its support of the DREAM Act and DACA.
Some insight into the sanctuary campus idea can come from reviewing decades of experience with sanctuary cities and towns. The sanctuary city idea is not a clear legal concept, and the policies vary around the country. In general, they are efforts to make undocumented immigrants feel secure in talking to police. The idea is that if they are afraid local law enforcement will arrest them or turn them over to Immigration and Customs Enforcement (ICE) officials, they will not go to the police for help or cooperate if they have information.
Federal law does not require cities to share information with ICE. It does say that there cannot be a blanket restriction on sharing information. Efforts are being made now to repeal sanctuary city policies, and the President-elect has pledged to withdraw federal funds from sanctuary cities. That political debate will be particularly relevant to campuses that are within sanctuary cities.
There has never been large-scale immigration enforcement on U.S. campuses. There have been individual actions. Therefore, it is not clear what form such action might take, and what kind of court challenges would be successful. It is not even clear what the definition of “campus” would be if a sanctuary is declared, since many institutions hold property outside of the main set of academic buildings. The American Council on Education (ACE) and other organizations are studying these issues, and deeper analysis will be forthcoming.
These issues resonate beyond the higher education community. For example, the Supreme Court has held that an undocumented student has a right to a free public education through high school. Elementary and secondary campuses are once again re-analyzing how increased immigration enforcement might affect them. ACE is actively coordinating with all groups involved to share information and ideas to come up with best practices.
There are serious and unresolved legal issues about whether federal funding or the ability to operate a student visa program could be affected by various pieces of sanctuary campus plans and what role federal law on “harboring” undocumented immigrants plays in all this. Since these actions have never taken place, there is no official guidance or case law.
Also requiring further research is how the federal anti-harboring statute relates to a sanctuary campus, especially since, as several courts have noted, the definition of harboring is “inconsistent in describing the minimum conduct necessary to sustain a harboring conviction.” The definition of harboring from court cases (none involving colleges or universities) have ranged from “providing shelter and other services” to actively preventing detection by government authorities. In other words, no court has provided clear guidance for interpreting the meaning of harboring an undocumented immigrant. The only point that is clear is that the federal harboring law, as a criminal statute, has a high bar for evidence and intent.
Government visits to campus and requests for records - legal issues and how to be prepared
There is a difference between a criminal warrant signed by a judge and an immigration warrant signed by an immigration officer. In general, an immigration warrant only allows an immigration enforcement officer to make an arrest in a public place.
At this point, it is not clear whether the President-elect will attempt immigration enforcement against undocumented students or DACA students (if DACA is rescinded). Mr. Trump has said most recently that he will focus deportation efforts on criminal immigrants. The Obama administration had the same priority, and even with unprecedented resources, that effort has taken years and still has far to go.
Notably, the DACA population is “clean” by design. Although waivers are available to obtain DACA with a minor criminal issue, that has not happened. To our knowledge, not a single waiver has been granted for those with a single DUI. Non-DACA undocumented students with criminal issues may be at greater risk.
Questions have arisen about whether campus police could be compelled to assist in immigration enforcement actions. This is an issue that requires further research, but it appears that this would require an expansion of federal law by Congress. A 1996 law allows immigration enforcement officials to enter into cooperative agreements with state or local police. This is not compulsory, and even the voluntary option does not apply to campus police, as they are not parties to existing agreements. Currently, campus police do not have any affirmative immigration enforcement obligations. Some colleges and universities have pledged not to sign up for a voluntary program if one is offered.
Arguably, any effort to deputize campus officers to enforce immigration law would be an unfunded mandate, and meet the same kind of resistance that faced a mandatory program for state and local agencies.
The current policy is that ICE will not use DACA information in enforcement action. A program such as DACA has never been used for seeking deportation actions, and the act of doing so would likely be extremely costly. However, policies change, and with uncertainty in this presidential transition, this issue requires further research.
If campuses have not done so recently, they should review institutional policies concerning privacy protections and campus visits by government officials. The Family Educational Rights and Privacy Act of 1974 (FERPA) protects data (“student records”) for current students, but not alumni or employees. Students and scholars on temporary F or J visas have largely waived their rights under FERPA, and a school grants access to records by signing H-1B, O-1 and other temporary visa petitions. This waiver does not extend to students who are not on F and J visas, including DACA and undocumented students. In other words, ICE field representatives who visit a campus have authorization to ask information about students on F and J visas, but not about DACA or undocumented students. The USA PATRIOT Act allows exceptions to FERPA where there is a judicial order based on the government’s assertion of terrorist activities.
We suggest that the push for sanctuary campuses should lead to a discussion of what the term “sanctuary campus” will mean for the particular school. The different student proposals around the country vary widely.
Certain student demands will likely find ready agreement on campus, and could perhaps lead to an institutional policy relatively quickly. These include:
-- Advocate for keeping a 2011 ICE memo limiting immigration enforcement at colleges and universities
-- Establish a designated point person on campus to address immigration concerns
-- Fund immigration consultation and filing fees
-- Share “know your rights” and related materials
-- Provide mental health counseling for those who need it
-- Pledge not to join any voluntary federal immigration enforcement program
-- Commit not to collect data on DACA or undocumented students
Additional student demands may include more broad declarations of sanctuary on campus. These need to be researched and discussed more carefully before January 20. Some, such as declaring a university chapel to be a sanctuary from law enforcement, have a long tradition in the United States, if not a legal basis. Others, such as a pledge not to collect immigration data on any student, violate the terms of the student visa programs. Refusal to let immigration officials on campus to enforce immigration warrants needs to be researched more carefully to balance support for students with obligations under federal law and potential retaliation in loss of federal funding or termination of the school’s student visa program.
Current immigration enforcement policies urge restraint in acting near a “sensitive location” such as a college or university. That policy memo is not a law or regulation, and could be rescinded without notice by a new administration. Some institutions have urged the President-elect to keep this policy.
There were undocumented students and families long before DACA. Students and scholars from predominantly Muslim countries were subject to enforcement questioning and action after the terrorist attacks of September 11, 2001. Colleges and universities must all reach back into their experience to provide support for international populations.