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  • Article: "Sanctuary Campuses" And Other Immigration Questions and Answers For Campus Leaders Post-Election By Dan Berger and Stephen Yale-Loehr

    "Sanctuary Campuses" And Other Immigration Questions and Answers For Campus Leaders Post-Election

    by


    The presidential election has jolted campuses with speculation and concern about undocumented community members and other issues impacting international populations. Significant attention has been directed at 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.[1] More broadly, calls for “sanctuary campuses” have been made. College presidents and students have circulated statements and petitions.[2] This article highlights key immigration issues as an aid in framing discussion and assessment by campus leaders, and offers information to assist in situational response, policy making, and advocacy.[3]

    What is the big picture?

    Millions of immigrants entered the United States without documents in the 1990s. Many brought their children. Fast forward twenty years, and 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.[4]

    What is DACA?

    On June 15, 2012, President Obama announced the DACA program.[5] 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.[6] 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.[7]

    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 15, or who have a serious criminal record. Many undocumented young people on campuses are not eligible for DACA.

    What would the end of DACA look like?

    As a practical matter, DACA is an executive action and could be revoked by the next President.[8] If that happens, USCIS would have to begin a formal process of revoking the current work cards.[9] 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.[10]

    .

    What can DACA students do right now, and how can campuses assist?[11]

    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.[12] The various fact patterns are so numerous that it is hard to generalize. As just one example, someone who got DACA could be sponsored by a university for an H-1B visa after graduation, 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.[13]

    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. Campuses can 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.

    What are some of the particular challenges an institution’s undocumented graduates could face?

    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.[14] Medical residents and fellows will not be able to continue training or work as doctors afterwards. Any DACA recipient who loses a work permit faces may not be able to work in the field they have studied for.

    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.

    In the midst of uncertainty, what programs appear solid?

    The authors have received numerous calls about whether visa categories will change. Congress sets the visa categories, so they cannot be changed quickly by a new administration. 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.[15]

    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,[16] and it would take significant time and effort to overturn that ruling.[17]

    Where can campus community members look for legal advice and assistance?

    Immigrationlawhelp.org and the Executive Office for Immigration Review provide lists of immigration legal service organizations accredited by the Board of Immigration Appeals.[18]

    What is 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.[19]

    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.[20]

    Other schools have reaffirmed diversity policies without committing to policy changes.[21] 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.[22]

    What lessons come from the sanctuary city experience?

    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 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.[23] Efforts are being made now to repeal sanctuary city policies, and the President-elect has pledged to withdraw federal funds from sanctuary cities.[24] That political debate will be particularly relevant to campuses that are within sanctuary cities.[25]

    Why is this so complicated?

    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.[26]

    These issues resonate beyond the higher education community. For example, the Supreme Court has stated that an undocumented student has a right to a free public education.[27] 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.[28] 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.”[29] 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.

    Can immigration enforcement officials come on campus to execute an immigration warrant?

    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.[30]

    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.[31] The Obama administration had the same priority,[32] and even with unprecedented resources, that effort has taken years and still has far to go.[33]

    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.

    Can campus law enforcement be compelled to cooperate with federal immigration officials?

    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.[34] 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.[35]

    Is it true that ICE is not legally supposed to use an individual’s DACA data to seek their deportation?

    The current policy is that ICE will not use DACA information. 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.

    What should colleges and universities be doing?

    If you have not done so recently, review institutional policies on campus visits by government officials, and protection of privacy. The Family Educational Rights and Privacy Act of 1974 (FERPA)[36] protects data (“student records”) for current students, but not alumni or employees.[37] Note that students and scholars on temporary F or J visas have largely waived their rights under FERPA,[38] and a school grants access to records by signing H-1B, O-1 and other temporary visa petitions.[39] 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[40] 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.[41]

    What should administrators do now with growing student demands for sanctuary campus designation?

    This 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[42]

    -- Establish a designated point person on campus to address immigration concerns

    -- Fund immigration consultation and filing fees

    -- Share “know your rights” materials[43]

    -- 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[44]

    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.[45] 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.

    What resources can help guide discussion?

    https://www.nilc.org/KnowYourRights. (Spanish version: https://www.nilc.org/issues/immigration-enforcement/todos-tienen-derechos-basicos).

    See also this guide on arrests - http://www.immdefense.org/ice-home-and-community-arrests.

    There is also a guide from the U.S. Department of Education entitled Supporting Undocumented Youth,

    https://www.nacua.org/docs/default-source/new-cases-and-developments/new-documents/new-cases-october-2015/resourceguide102015.pdf.

    For general information about immigration news, advocacy and statistics, see americasvoice.org (general immigration news), http://immigrationimpact.com/ (policy and statistics about immigration, competeamerica.org (business immigration), and https://www.weownthedream.org/ and http://unitedwedream.org/ (resources for and about undocumented students).

    What is the ICE sensitive location policy, and how is it relevant?

    Current immigration enforcement policies urge restraint in acting near a “sensitive location” such as a college or university.[46] 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.

    Conclusion

    There were undocumented students and families long before DACA. Students and scholars from predominantly Muslim countries were subject to enforcement questioning and action after 9/11. Colleges and universities must all reach back into their experience to provide support for international populations.

    It is more important now than ever to be working from good information. The links in this article can provide a starting point for productive discussion on campus.



    [1] Because more young people became eligible this year, nearly 845,000 people have applied, with many pending. USCIS, Data Set: Form I-821D Deferred Action for Childhood Arrivals, at https://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-form-i-821d-deferred-action-childhood-arrivals (last updated Sept. 13, 2016).

    [2] See, e.g., Gretel Kauffmann, New Face of the Sanctuary Movement: US College Campuses, Christian Science Monitor, Nov. 17, 2016, at http://www.csmonitor.com/USA/Politics/2016/1117/New-face-of-the-sanctuary-movement-US-college-campuses; Shannon Najmabadi, Could Colleges Become Sanctuaries for Undocumented Immigrants?, The Chronicle of Higher Education, Nov. 17, 2016, at http://www.chronicle.com/article/Could-Colleges-Become/238442; Elizabeth Redden, Can a Campus Be a Sanctuary?, Inside Higher Ed, Nov. 15, 2016, at https://www.insidehighered.com/news/2016/11/15/growing-movement-calls-universities-limit-their-cooperation-federal-immigration; Susan Svriuga & Nick Anderson, Ivy League Students, Professors, Alumni Ask Schools to be Sanctuaries for Undocumented Immigrants,Wash. Post, Nov. 15, 2016, at https://www.washingtonpost.com/news/grade-point/wp/2016/11/15/ivy-league-students-professors-alumni-ask-schools-to-be-sanctuaries-for-undocumented-immigrants/. A partial list of colleges and universities being asked to sign sanctuary petitions is at https://docs.google.com/spreadsheets/d/1fHOHRFxzo_Pp85rR_58ug4rMv9WODPDmRLK0dP2FT-k/edit#gid=0 (last visited Nov. 28, 2016).

    [3] See also Carolina Valdivia, My Undocumented Life, Post-Election: Recommendations for School Administrators, Educators, Counselors, and Undocumented Students, Nov. 13, 2016, at https://mydocumentedlife.org/2016/11/13/post-election-recommendations-for-school-administrators-educators-counselors-and-undocumented-students/ (last visited Nov. 28, 2016).

    [4] Sarah Hooker & Michael Fix, Migration Policy Institute, County-Level View of DACA Population Finds Surprising Amount of Ethnic & Enrollment Diversity (Sept. 2014), at http://www.migrationpolicy.org/news/county-level-view-daca-population-finds-surprising-amount-ethnic-enrollment-diversity (last visited Nov. 28, 2016).

    [5] To qualify, DACA applicants must have been under thirty-one as of June 15, 2012, and:

    1. Came to the United States before their sixteenth birthday;

    2. Have continuously resided in the United States since June 15, 2007;

    3. Were physically present in the United States on June 15, 2012;

    4. Had no lawful status on June 15, 2012;

    5. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

    6. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

    Memorandum from Janet Napolitano, Secretary of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf, reprinted at 17 Bender’s Immigr. Bull. 1359, 1374, 1383 (App. A) (July 1, 2012). See generally Nat’l Immigr. L. Ctr., DACA, at https://www.nilc.org/issues/daca/ (last visited Nov. 28, 2016).

    [6] For years, deferred action was a little used idea, offering a temporary opportunity to stay in the US for a humanitarian reason. There was no form or formal procedure. DACA expanded that discretionary remedy into one of the largest immigration programs today. DACA is not a status or a visa. It is a decision by the Department of Homeland Security (DHS) not to remove someone who has no current status. See generally Charles Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Y. Wada, Immigration Law and Procedure § 72.03[2][h] (rev. ed. 2016); Shoba Sivaprasad Wadhia, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (2015).

    [7] For a discussion of why students applied for DACA despite the risk of having it end, see Dan Berger & Stephen Yale-Loehr, LexisNexis Emerging Issues Analysis 6632, Deferred Action for Childhood Arrivals: Should Undocumented Young People Apply? (Sept. 2012), available at http://www.curranberger.com/images/lexisnexis%20emerging%20issues%20analysis%20-%20daca.pdf.

    [8] For an excellent Q&A about the fate of DACA after the election, see Nat’l Immigr. L. Ctr., New Questions and Answers About DACA Now That Trump Is President-Elect, Nov. 15, 2016, at https://www.nilc.org/issues/daca/daca-after-trump-q-and-a/. An op-ed by an undocumented student explains the uncertainty. Lisette Candia Diaz, I’m an Undocumented Harvard Grad. The Election Has Left Me Broken, Washington Post, Nov. 25, 2016, at https://www.washingtonpost.com/blogs/post-partisan/wp/2016/11/25/im-an-undocumented-harvard-grad-the-election-has-left-me-broken/.

    [9] 8 C.F.R. § 274a.14.

    [10] See, e.g., letter from Reps. Zoe Lofgren, Luis V. Gutierrez & Lucille Roybal Allard to President Obama (Nov. 17, 2016), at http://roybal-allard.house.gov/uploadedfiles/ltr_to_president_on_daca_and_pardon_authority_-_11-2016.pdf; Rebecca Savransky, Rubio on DACA: ‘I Would not Retroactively Remove Their Status,’ The Hill, Nov. 27, 2016, at http://thehill.com/homenews/campaign/307605-rubio-on-daca-i-would-not-retroactively-remove-their-status.

    [11] See generally Valdivia, supra note 3.

    [12] See, e.g., Educators for Fair Consideration, Dreamer Intake Service, at http://www.e4fc.org/legalservices/getfreelegalhelp.html.

    [13] For a discussion of the benefits of having a lawyer in the kinds of complex immigration situations faced by DACA students, see Laura Lichter, Do DREAMers Really Need a Lawyer? (Aug. 3, 2012), at http://www.ailaleadershipblog.org/2012/08/03/do-dreamers-really-need-a-lawyer/.

    [14] See http://www.phdreamers.org/ for self-advocacy by a relatively large group of DACA students in and headed for health care professions.

    [15] See generally NAFSA: Association of International Educators, Focus on STEM OPT (Sept. 20, 2016), at http://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/Focus_On_STEM_OPT/.

    [16] Obergefell v. Hodges, 192 L. Ed. 2d 609 (2015).

    [17] Immigration Equality, Trump Administration FAQs, at http://www.immigrationequality.org/faqs/ (last visited Nov. 28, 2016).

    [18] Executive Office for Immigration Review, U.S. Dep’t of Justice, List of Pro Bono Legal Service Providers, at https://www.justice.gov/eoir/list-pro-bono-legal-service-providers-map.

    [19] See generally Michael A. Olivas, Contronym and Controversy, Inside Higher Ed, Nov. 29, 2016, at https://www.insidehighered.com/views/2016/11/29/sanctuary-campuses-wont-provide-real-sanctuary-immigrant-students-essay (arguing that sanctuary campuses won't provide real sanctuary for immigrant students).

    [20] Elizabeth Redden, In Defense of DACA, Inside Higher Ed, Nov. 21, 2016, at https://www.insidehighered.com/news/2016/11/21/college-presidents-call-continuation-obama-administration-program-protecting.

    [21] See, e.g., Statement in Support of the Deferred Action for Childhood Arrivals (DACA) Program and Our Undocumented Immigrant Students, https://www.pomona.edu/support-daca (petition signed by more than 330 college and university presidents).

    [22] Stanford Statement on Campus Climate and Immigration, Nov. 19, 2016, at http://news.stanford.edu/2016/11/19/stanford-statement-campus-climate-immigration/.

    [23] 8 U.S.C. § 1373 and § 1644 were enacted in 1996 as a general response to the 1993 World Trade Center bombing and the advent of sanctuary cities. For a good discussion of the sanctuary city concept, see Elizabeth McCormick, Federal Anti-Sanctuary Law: A Failed Approach to Immigration Enforcement and a Poor Substitute for Real Reform, 20 Lewis & Clark L. Rev. 165 (2016).

    [24] Donaldjtrump.com, Immigration, at https://www.donaldjtrump.com/policies/immigration (“4. End sanctuary cities.”); Octavio Blanco, Sanctuary Cities Risk Billions in Defiance of Trump, CNN Money, Nov. 19, 2016, at http://money.cnn.com/2016/11/19/news/economy/sanctuary-cities-trump-funding/index.html; Jennifer Medina & Jess Bidgood, Cities Vow to Fight Trump on Immigration, Even if They Lose Millions, N.Y. Times, Nov. 27, 2016, at http://www.nytimes.com/2016/11/27/us/cities-vow-to-fight-trump-on-immigration-even-if-they-lose-millions.html.

    [25] Jess Krochtengel, Ban On 'Sanctuary Cities' A Priority For Texas Senate, Law360, Nov. 15, 2016, at https://www.law360.com/articles/862909/ban-on-sanctuary-cities-a-priority-for-texas-senate.

    [26] See generally Emily Deruy, The Push for Sanctuary Campuses Prompts More Questions Than Answers, The Atlantic, Nov. 22, 2016, at http://www.theatlantic.com/education/archive/2016/11/the-push-for-sanctuary-campuses-raises-more-questions-than-answers/508274/.

    [27] Plyler v. Doe, 457 U.S. 202 (1982). See generally Am. Immigr. Council, Public Education for Immigrant Students: Understanding Plyler v. Doe (Oct. 24, 2012), at https://www.americanimmigrationcouncil.org/research/plyler-v-doe-public-education-immigrant-students.

    [28] 8 U.S.C. § 1324.

    [29] United States v. Vargas-Cordon, 733 F.3d 366, 380 (2d Cir. 2013); see also United States v. Costello, 666 F.3d 1040 (7th Cir. 2012); United States v. Henderson, 857 F. Supp. 2d. 191 (D. Mass. 2012); see generally Mary L. Dohrmann, Note, Hemming in “Harboring:” The Limits of Liability Under 8 U.S.C. § 1324 and State Harboring Statutes, 115 Colum. L. Rev. 1217 (2015).

    [30] INA § 287, 8 U.S.C. § 1357; 8 C.F.R. § 287.5. See generally Federal Law Enforcement Training Centers, U.S. Dep’t of Homeland Security, ICE Administrative Removal Warrants, at https://www.fletc.gov/audio/ice-administrative-removal-warrants-mp3.

    [31] Louis Nelson, Trump: Criminals Will Be Deported First, Politico, Nov. 13, 2016, at http://www.politico.com/story/2016/11/donald-trump-immigrants-criminals-231293.

    [32] Memorandum from John Morton, ICE Director, to all ICE employees, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011), at https://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.

    [33] President Obama has recently advised Mr. Trump to leave DACA alone, and continue targeting immigration enforcement at those with criminal records. Presidential News Conference, Nov. 15, 2016, at https://youtu.be/qxWo1uPWYUs.

    [34] INA § 287(g), 8 U.S.C. § 1357(g). See generally U.S. Immigration and Customs Enforcement, U.S. Dep’t of Homeland Security, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, at https://www.ice.gov/factsheets/287g.

    [35] In November 2014, President Obama ended the Secure Communities program for local and state law enforcement and replaced it with the Priority Enforcement Program. Kate Linthicum, Obama Ends Secure Communities Program as Part of Immigration Action, L.A. Times, Nov. 21, 2014, at http://www.latimes.com/local/califor...121-story.html.

    [36] Education Amendments of 1974, Pub. L. No. 93-380, § 513, 88 Stat. 484, 571 (codified at 20 U.S.C. § 1232g).

    [37] 34 C.F.R. § 99.3.

    [38] For F visas, see 8 C.F.R. §§ 214.1(h), 214.3(g), 214.3(k). For J visas, see 22 C.F.R. § 62.10(f)-(g).

    [39] See 20 C.F.R. § 655.760(a) about access files, and see declaration on page 6 at https://www.uscis.gov/i-129. INA § 105, 8 U.S.C. § 1105, permits information sharing among federal government agencies once data has been released to an immigration official.

    [40] U.S. Immigration and Customs Enforcement, U.S. Dep’t of Homeland Security, FAQs: SEVP Field Representatives, at https://www.ice.gov/sevis/schools/fru-faqs. There is general pressure on campus officials to provide information to ICE. See generally U.S. Dep’t of Homeland Security, Designated School Officials: What is Campus Sentinel?, at https://studyinthestates.dhs.gov/2013/03/designated-school-officials-what-is-campus-sentinel.

    [41] 20 U.S.C. § 1232g(j).

    [42] Memorandum from John Morton, ICE Director, to ICE Field Office Directors, Special Agents in Charge, and Chief Counsel, Enforcement Actions at or Focused on Sensitive Locations, Oct. 24, 2011, at https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf [hereinafter ICE Sensitive Locations Memorandum].

    [43] See, e.g., Nat’l Immigr. L. Ctr., Know Your Rights, at https://www.nilc.org/get-involved/community-education-resources/know-your-rights/; United We Dream, Know Your Rights! Protect Yourself Against Immigration Raids, at http://unitedwedream.org/thank-deportation-defense-card-handy-phone/, State Department guidance on notifying the home country consulate in the case of an arrest, https://travel.state.gov/content/dam/travel/CNAtrainingresources/CNA_Manual_4th_Edition_August2016.pdf,

    [44] This point needs to be considered, as DACA status may be relevant to in-state tuition or other benefits. The goal would be to not collect information on immigration status for the purpose of supporting undocumented students, or for internal coding unless absolutely necessary.

    [45] Daniel Engber, Can Criminals Hide in Church?, Slate, Aug. 16, 2016, at http://www.slate.com/articles/news_and_politics/explainer/2006/08/can_criminals_hide_in_church.html.

    [46] ICE Sensitive Locations Memorandum, supra note 47.


    About The Author

    Dan Berger (dhb@curranberger.com) is a partner at the law firm of Curran & Berger in Northampton, MA, www.curranberger.com, and a frequent speaker, editor and writer on immigration issues at universities. Dan has also been editor for the American Immigration Lawyers Association (AILA) Immigration & Nationality Law Handbook since 2000, and edited Immigration Options for Academics and Researchers (2005 and 2011 editions), the International Adoption Sourcebook, and the Diplomatic Visa Guide. He is on the Editorial Board of Lexis/Nexis Law 360, an Honorary Member (and co-Chair of the International Committee) of the American Academy of Adoption Attorneys, and serves on the travel subcommittee of the National Association of Foreign Student Advisers.
    Stephen Yale-Loehr (syl@millermayer.com) is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by LexisNexis. He also teaches immigration and asylum law at Cornell Law School, and is of counsel at Miller Mayer. He founded and was the first executive director of Invest in the USA, the trade association of EB-5 regional centers. He has testified several times before Congress, including a July 2009 U.S. Senate hearing about the EB-5 program.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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