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Trump keeps Obama immigration program, and Democrats blast him

Trump keeps Obama immigration program, and Democrats blast him
© Greg Nash

When the news media reported the arrests of hundreds of foreign students who were enrolled at a fake university that was set up by Immigration and Customs Enforcement (ICE), Sen. Elizabeth WarrenElizabeth WarrenWorld passes 3 million coronavirus deaths Poll: 56 percent say wealth tax is part of solution to inequality Democratic senators call on Biden to support waiving vaccine patents MORE (D-Mass.) and Rep. Alexandria Ocasio-CortezAlexandria Ocasio-CortezBiden on refugee cap: 'We couldn't do two things at once' A proposal to tackle congressional inside trading: Invest in the US Biden angers Democrats by keeping Trump-era refugee cap MORE (D-N.Y.) lambasted what they described as a cruel and corrupt scheme to entrap immigrants.

According to immigration lawyer Jeremy McKinney, this is the latest example of the Trump administration's "hostility towards international students."

It may not be a good idea to create fake universities to catch foreign students who commit student visa fraud, but it is not "a cruel and corrupt scheme to entrap immigrants." Student visa fraud is a very real problem, and the people complaining about using fake universities aren't suggesting a better way to deal with it.

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Who created the fake university scheme?

This was not the brainchild of the Trump administration. The Obama administration created it, but that doesn't seem to matter.

Democrats such as Rep. Norma TorresNorma Judith TorresBiden to hold second meeting with bipartisan lawmakers on infrastructure El Salvador president refuses to meet senior US diplomat: report Five reasons why US faces chronic crisis at border MORE (D-Calif.) don't care that Obama established the fake university scheme. They still blame Trump for it. According to Torres, it reflects the “mean-spirited” immigration policies of the Trump administration.

Obama's fake University of Northern New Jersey

According to an ICE press release from the Obama era, the Obama administration created the University of Northern New Jersey (UNNJ) in 2013. It was not staffed with instructors or educators, had no curriculum, and did not conduct any classes or education activities. It was just a storefront location with small offices staffed by federal agents posing as school administrators.

UNNJ was represented as a state-licensed school with Department of Homeland Security (DHS) certification. It issued fake I-20 forms, which certified that foreign nationals had been accepted at an American school and were expected to be full-time students. The foreign nationals who paid for the I-20 forms used them to establish eligibility for F-1 student visas.

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Twenty-one recruiters facilitated the enrollment of foreign nationals at UNNJ in exchange for commissions from UNNJ, not realizing that they were being paid by undercover DHS officers. They also facilitated the creation of hundreds of fake student records, including transcripts, attendance records and diplomas that the foreign national students could use to prove that they were pursuing an education at UNNJ.

When the recruiters were prosecuted for these illegal activities, they were charged with conspiracy to commit visa fraud, conspiracy to harbor aliens for profit and making false statements.

Obama's fake University of Farmington

The Obama administration created the University of Farmington as part of Operation Paper Chase in 2015. As was the case with UNNJ, it was not a real school — it had no instructors and did not offer any classes.

The Farmington University undercover operations continued under the Trump administration.

In January 2019, the Trump administration issued an indictment that alleged that eight people who were enrolled as students at the University of Farmington recruited additional students to participate in the school's enrollment program.

The students paid an average of $12,000 a year to be enrolled at the fake school, and the recruiters received more than $250,000 in commissions — not realizing that the money was coming from ICE undercover agents.

The students were put in removal proceedings, and the recruiters were charged with conspiracy to commit visa fraud and harboring aliens for profit.

Approximately 90 more students who enrolled at that fake university have been arrested since then, bringing the total of such arrests up to around 250 students. Nearly 80 percent of them have been granted voluntary departure, which is a good thing — it means that they have been allowed to go home at their own expense without being deported.

Last month, the recruiters were found guilty of various criminal offenses and sentenced to prison for between 12 and 24 months.

Attorneys for the students who were placed in removal proceedings claim that the fake university operation was entrapment designed to trick unknowing international students who had no way of knowing that their actions were illegal. 

Entrapment is a defense to criminal charges. A person using this defense has to establish that he committed the crime he is charged with because of harassment or coercion by a government official and that without such coercion, he would not have committed the crime.

Immigration law, however, does have a defense that is similar to "entrapment," the doctrine of equitable estoppel, but I am not aware of any cases in which equitable estoppel has been granted. Moreover, it would not permit the students to remain in the United States.

Their student visas would still be invalid. Consequently, if they don't have lawful status available to them on some other basis, they would still be deportable under 8 U.S.C. §1227(a)(1)(b) for being in the United States in violation of law.

What’s more, although it is possible that some of them thought they were enrolling in a real university, they surely would have realized that the university was a fake when the school year started and there were no classes for them to attend.

Has Obama's fake university scheme been successful?

Dan Cadman, a retired immigration officer, is not sure that the fake university scheme has had a significant impact on the real problem, which is that there are tens of thousands of foreign students who overstay or quit school each year and remain in the United States unlawfully. 

I agree with Cadman. ICE probably should be devoting its resources to apprehending foreign students who have already violated their status instead of facilitating new violations with fake universities.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.