How the Trump administration labeled students as criminals with no evidence

By Shimon Prokupecz and Rachel Clarke, CNN

(CNN) — The Trump administration ordered international students to be effectively designated as criminals without checking if the information was true, court records reviewed by CNN show, along with new information that was revealed by a government official at a court hearing Tuesday.

Thousands of visa holders had their records changed in databases, leading to them being barred from classes and work, disenrolled from universities and even being advised to leave the country, when they were fully in compliance with immigration rules, lawyers have said, and court records show.

The common thread for dozens of students mentioned in federal court cases reviewed by CNN is that at some point they had contact with law enforcement. The cases were all minor – going 10 mph over a speed limit, underage drinking on spring break or shoplifting – certainly not of the severity to justify losing their status under the Code of Federal Regulations, which specifies someone can lose a right to stay for “a crime of violence for which a sentence of more than one year imprisonment may be imposed.”

Indeed, many never made it to court, were dismissed or the accused were found not guilty. With no proven wrongdoing, the students’ records were clear – records were even sealed, but they still existed in the massive government repositories of data where they appear to have been accessed by Trump administration officials.

Government officials have acknowledged in court they have not followed the basic innocent until proven guilty foundation of US law and launched the mass exercise without individual reviews.

Judges reacted to the clear signs of government overreach and lack of due process with extraordinary rebukes to government lawyers during hearings and demanded answers.

With many early rulings going against the administration, the government backed down.

But there have already been serious consequences. Students were told they no longer had legal status. Some left the country, fearing they could be detained as others have been, leaving them with no legal recourse, and effectively wasting years of study.

“I think this is a win/win for the current administration,” said attorney Bradley Bruce Banias, who represents multiple students whose status was terminated. “If they scare students and 10% leave, they are thrilled, and they will do it again and again. If courts stop the administration, they can complain about activist judges stopping them from deporting criminals. Win-win.”

Internal reviews were underway at the Department of Homeland Security and the Department of State to reassess the change of student statuses.

At least one federal court case is seeking information on any involvement of the Office of Biometric Identity Management, which supplies the technology for storing, comparing, and sharing biometric data as part of DHS. The OBIM webpage says it controls an identification system and “currently holds more than 320 million unique identities and processes more than 400,000 biometric transactions per day.”

Asked about the quality control review, a State Department spokesperson told CNN: “Sorry, but we do not comment on any ongoing litigation.”

On Tuesday, a senior Department of Homeland Security official, Andre Watson, was forced to appear in a Washington DC, courtroom before US District Judge Ana Reyes to disclose new details about how DHS were terminating Student and Exchange Visitor Information System (SEVIS) records through a program he revealed is called the “student criminal alien initiative.” He told the judge it was done “at the instruction of leadership.”

At a April 16 hearing, that same judge was exasperated with the administration regarding the case of a student who had his status changed from “active” to “terminated” in SEVIS, but administration officials could not tell her what the impact was and how it all happened.

“The first question in this case is what is the practical import of canceling someone within Reyes told Joseph Carilli of the Department of Justice’s Civil Division during the April 16 hearing. “And if you don’t know, we’re all going to wait here while you call someone and find out, because I’m not going to get jerked around by you telling me you’re not prepared to answer the key question in this case.”

(A new DOJ attorney was substituted for Carilli for Tuesday’s proceedings and in other cases where Carilli had been representing the administration.)

Reyes tried in vain to get an answer to whether the student was allowed to be in the US.

Carilli responded: “The government’s position is that he has not, ICE has not taken, has not terminated his F-1 (visa) status. And for ICE to be able to terminate his F-1 status, they would have to put him in 1229a removal proceedings.”

Reyes asked again: “Is he lawfully in the United States right now, yes or no?” to which Carilli said: “I’m not able to answer that question, Your Honor.”

“How are you not able to answer that question?” Reyes continued. “What does that even mean? He’s either here legally or he’s not here legally. You’re the government’s lawyer. Is he here legally? I mean, how is (the student) supposed to know if he’s here legally if you don’t even know if he is here legally?”

Carilli started, “He was lawfully admitted to the United States …” before Reyes interrupted: “No, no, Mr. Carilli, there’s a – no, no, Mr. Carilli, there is a yes or no answer here. We are not – this is not Schrodinger’s visa. Either he’s here legally or he’s not here legally. If you cannot answer the question, you have to explain to me why you cannot answer that question.”

Carilli replied: “I cannot answer that question.”

The hearing was in federal court, where no recordings are permitted. But the frustration evident even in the transcript is clear.

The approach by the government was quite different on Tuesday with its decision to provide the judge with more information.

Watson was one of the officials questioned by the judge during the hearing, where he revealed that a team of DHS employees had run the names of 1.3 million foreign students against the National Crime Information Center (NCIC), a national registry recording individuals’ interactions with law enforcement.

A team of 10 to 20 DHS employees used spreadsheets to compile batches of the large number of names, Watson said.

DHS was working with the State Department, which conducted its own analysis. As a result, State instructed DHS to terminate SEVIS status for 3000 students, according to the DOJ attorney Johnny Walker who was representing the administration in court Tuesday.

Watson submitted information in court filings across the country revealing that in many cases students’ SEVIS records were terminated as a result of NCIC criminal checks. However, he acknowledged in affidavits that “the disposition of the charge was unknown,” indicating that officials didn’t follow up to see what ultimately happened.

Judge Reyes on Tuesday remarked that in addition to the chaos wrought on schools and students, students now were on the hook for legal bills to pay the lawyers who sued on their behalf.

“All of this could have been avoided,” she said, if the administration had just taken a beat, “instead of just rushing things.”

“But that’s not what happened,” Reyes added.

Department of Justice lawyers are now handling more than 100 cases, many involving multiple plaintiffs. Homeland Security officials are complaining that responding to so many cases is stopping them from focusing on national security threats, and university officials also say this year has been unlike any other. “The same small staff of ICE (Immigration and Customs Enforcement) officials are responding to pleadings in each of those cases,” a Department of Justice attorney noted in a response last week. “These officials perform important national security functions and, given the volume and rapid response times required to respond to courts in more than 100 emergency cases, they now have limited time to perform their core national security duties.”

Lawyer Jon Wasden, who represents a number of students in a California case, told CNN what was at stake.

“If these cases are fought to the death, the agency will have to produce an administrative record. From what I am seeing the SEVIS revocations were not reviewed and decided by a human being. This raises the interesting legal question of whether AI can replace adjudicators under the (Administrative Procedure Act,) and is an algorithm capable of ‘reasoned decision making,’” he said.

“Ultimately it looks like we are litigating the question of whether ‘Minority Report’ should be reality.”

Students and their lawyers say they were given no opportunity to question the initial actions or request a correction. In a case filed in the Central District of California, 23 people said they were among nearly 5,000 foreign students who have had their SEVIS standing terminated. Some said they were told by school officials that their SEVIS status was terminated for “otherwise failing to maintain status – Individual identified in criminal records check and/or has had their VISA revoked.” But none were given an opportunity to provide any details on encounters with law enforcement.

Lawyer Justin Tseng argued to the US District Court in the Central District of California: “In what has become the defining element of this administration’s immigration policy, the Department of Homeland Security terminated each of Plaintiffs’ Student and Exchange Visitor Information System (‘SEVIS’) accounts without attempting to provide any, let alone due, process.”

Tseng suggested: “DHS’s policy of unlawfully terminating SEVIS records based on visa revocations appears to be designed to coerce students, including Plaintiffs, into abandoning their studies and training and ‘self-deporting,’ despite having maintained their status.”

US District Judge Sparkle Sooknanan, who sits on the federal bench in Washington, DC, said she was aware of the many cases coming to court but still had questions.

In a case before her on April 21, she asked why a student had her status terminated.

Carilli, who until Tuesday was defending the program in all of the cases challenging it filed in DC, answered: “It was based on a criminal history.”

In a similarly contentious back and forth, the judge asked, “What criminal history? Is it the government’s position that she has a criminal record?”

Carilli replied, “It is the government’s position that she has criminality in her background, and she has …” at which point Sooknanan interrupted: “Yes or no, is it the government’s position that she has a criminal record? Please answer my question, not the question you want to answer.”

Carilli said, “Yes. Based on the agency’s declarant, yes.” To which Sooknanan followed up, “That she has a criminal record for being arrested for shoplifting and those charges having been dismissed by a judge, it’s your position that that means she has a criminal record?” Carilli replied, “Yes.”

The issue could be far larger than the visas issued to international students: “These cases emphasize the far-reaching problems with massive government data programs around human activity,” attorney Jay Gairson, a lawyer from Seattle representing multiple students affected, said.

“This type of government data and action error is going to become increasingly common as these systems remain unchecked in the name of public safety and national security.  Congress and the courts need to act now to add proper checks and balances back into the system to stop these types of mistakes from happening again,” Gairson said.

CNN’s Tierney Sneed, Rachel Clarke, Gloria Pazmino and Ali Zaslav contributed to this report.

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