February 26, 2020 Adventures in the Law

Hail, Hail to Old Sham U!

By Norm Tabler

The University of Northern New Jersey--UNNJ for short--seemed ideal for foreign students seeking a U.S. college education. The school’s website confirmed that it was certified by the U.S. Department of Homeland Security, Student and Exchange Visitor Program, to educate international students. That certification meant that enrollees would enjoy F-1 visa status.

The website described UNNJ’s seven undergraduate majors and nine graduate programs, as well as available support systems such as tutorial sessions and advisory services. It also included an inspiring message from university president Dr. Stephen Brunetti, Ph.D., proclaiming the school’s dedication to providing high-quality education to the international academic community.

The school’s social media accounts told students when classes were cancelled for bad weather and posted wedding photos of two alumni who had married.

There was only one problem: The university never existed. Neither did President Brunetti. Both were fictions created by the Department of Homeland Security, ostensibly to catch academic recruiters and brokers who charged foreign students a fee to place them in U.S. universities that did not actually offer courses of study required to satisfy F-1 visa requirements. And the scheme did, in fact, catch some crooked recruiters and brokers.

Unfortunately, it also caught hundreds of students who believed the representations posted by DHS and enrolled in UNNJ.

What did DHS do with the students it had duped? Did it explain the deception and apologize? Attempt to make amends? Find another college for them? Quite the contrary. DHS sent letter to the students terminating their F-1 visa status “due to your fraudulent enrollment” in UNNJ.

DHS’s reasoning was straightforward: UNNJ was a fraud, as DHS well knew because it was the perpetrator of the fraud; therefore, any student who enrolled in UNNJ was guilty of fraudulent enrollment. Q.E.D.

Five of the students filed a class action against DHS and related entities on behalf of everyone whose F-1 status was terminated for enrolling in UNNJ. They filed the case in the federal court for the District of New Jersey, presumably because Cranbrook, New Jersey, was the site of the fictional UNNJ campus.

The plaintiffs alleged that the visa terminations violated due process and were arbitrary and capricious under the Administrative Procedure Act. They sought an order prohibiting the government from finding that the students committed fraud by enrolling in UNNJ.

The government moved to dismiss for lack of subject matter jurisdiction, arguing that the visa determinations did not qualify as final determinations and that the case was not ripe for review. The district court granted the motion on both grounds.

On appeal, the government’s position proved to be somewhat hard to pin down. During oral argument the government declared that it did not actually contend that the students committed fraud by enrolling in UNNJ. Rather, it believed that the students were, in truth, victims of fraud.

But what about the statement in the termination letters that the termination was “due to your fraudulent enrollment” in UNNJ? Oh, the government responded, the term “fraudulent enrollment” was “passive voice” and did not imply that the students had committed fraud.

Confused? It gets weirder. Two weeks after oral argument the government filed a letter with the court “to clear up any confusion.” The letter declared that the government was not conceding that the enrollees were innocent victims, after all. In fact, some students “in all likelihood, knew that their academic recruiters were committing visa fraud,” and other students “conspired with their academic recruiters to commit visa fraud.”

These shifting (if not shifty) theories did not help the government’s case. The court ruled against the government on both the grounds of its motion to dismiss: First, the district court was wrong to conclude that the terminations of the students’ visa status were not  final orders. The terminations were final, and the students’ right to seek reinstatement in the future did not change that fact.

Second, the lower court was wrong to conclude that the case was not ripe for review. This case is sufficiently concrete, and the parties sufficiently adversarial, to meet the requirements of Article III of the Constitution.

The court reversed the order of the lower court and remanded for proceedings consistent with its opinion.

There is no word on whether hopeful high school students continue to journey to Cranbrook to survey the idyllic campus and perhaps purchase a UNNJ sweatshirt in the college bookstore.

The case is Fang v. Dir. U.S. Immigration & Customs Enforcement, (3d Cir. 2019).

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Norm Tabler is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyer and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health LawEmail Norm.