The growing role of immigration law in universal higher education: case studies of the United States and the EU.

• Author: Olivas, Michael A.
• Position: I. Introduction through II. U.S.: The War on Terror, Updated, p. 353-393

1. Introduction II. U.S.: The War on Terror, Updated A. Pre-9/11 (1980-September 11, 2001) B. Post-9/11 C. The DREAM Act at the State and Federal Levels D. Prosecutorial Discretion and Deferred Action III. The EU as a Loose Federation A. History of the Bologna Process B. Related College Law Decisions in ECJ Cases IV. Conclusion and Cautions I. INTRODUCTION

   The increasingly prominent role of immigration law in the world of higher education is evident to observers in both camps, that is, to those who specialize in the comprehensive law of higher education, across countries, and to those whose expertise is immigration and naturalization law. of course, there has always been a substantial and broad band of intersection, such as the required visa regime for international admissions, across all nations and institutions (in the United States, the usual F-1 process that admits and enrolls more than a million students and scholars each year--one of several categories possible for international study), and the complex process for working in a foreign country as an academic and evaluating educational credentials for employment authorization (such as the landed immigrant procedures in Canada or NAFTA-related work certification degree requirements). (1) As common as these transactions have been over the years, the shrinking world with its increased geopolitical and diplomatic roles played by competitive higher education policies has moved the implementation of immigration to center stage as never before. Not only is there a growing propensity for these regimes to be considered in court cases and for a dizzying array of legislative/regulatory/administrative rules to be drafted in their service, but there is an astonishing move towards large scale national, international, transnational, consortial, and other interlocking legal mechanisms for advancing higher education interests across countries. (2) Perforce, immigration law has become the technical and policy regime for effectuating and implementing these interests, joining the traditional areas of diplomacy, foreign policy, finance, intellectual property, and increasingly, national security domains.

   In this preliminary investigation, I use case studies and detailed literature reviews from the United States (U.S.) and from the European Union (EU), as higher education institutions in these two systems represent the major receiver colleges in the world system, and among the major sender nations as well. Moreover, while there are many differences in the details, the large-scale immigration mechanisms are similar in their organizational features. (3) The review of events traces back just before the most important existential event of the twenty-first century, the terrorist attacks upon the United States in 2001 and similar terrorism events in the world, and then considers the reflexive and resultant immigration changes initiated as a direct result of these international terrorist threats.

   In addition, in the United States, there has been an increased anti-Latino nativism and restrictionist backlash, particularly aimed at the rising number of undocumented college students, those not in authorized status; while these do not, in most instances, invoke immigration controls at the front end, the increased visibility and the sympathetic back-stories of these sojourner children have led several of the individual states to enact more accommodationist college policies. In this context, I review the political economy of the DREAM Act--both at the federal level and at the state level, and the 2011-2012 developments in the use of prosecutorial discretion to treat undocumented college students, that is, students in unlawful status in the United States. (4)

   Over a decade later, some of the more routine immigration controls instituted have been enacted and regularized, while some have been discarded, but a surprising number of them have been added and incorporated into institutional practice. Even so, the flow of international students continues to tilt towards Western institutions in the United States and the EU, exceeding even their pre-9/11 levels. I will also review the major immigration and structural exchange mechanisms governing cross-national EU Member States, their effects upon non-EU-member nations, and the interplay that is becoming evident. (5) Finally, I review the structural political features in this polity that are being driven by the worldwide economic slowdown, and suggest ways that these will likely influence or even drive immigration policy directions in higher education worldwide.

2. U.S.: THE WAR ON TERROR, UPDATED

   1. Pre-9/11 (1980-September 11, 2001)

      In the dozen-plus years before the terrorist attacks upon the United States, the most significant foreign policy immigration-related matter had been the siege and occupation by Iranians, particularly college students, of the U.S. Embassy in Tehran, and the resulting kidnapping of U.S. personnel on November 4, 1979. (6) Following the election of President Ronald Reagan and his inauguration, the hostages were released on January 21, 1981, 444 days after the original siege. (7) Within weeks of the original embassy takeover, on November 13, 1979, the Attorney General issued regulation 8 C.F.R. [section] 214.5, requiring that all nonimmigrant postsecondary students who were natives or citizens of Iran to report to a local INS office or designated campus official to "provide information as to residence and maintenance of nonimmigrant status." (8) Each Iranian student in the United States was required to present a passport, evidence of school enrollment in good standing, payment of fees, the courses in which he or she was enrolled, and a current physical address in the United States. (9) Any failure to comply with these requirements was to be considered a violation of the terms and conditions of nonimmigrant status in the United States and would subject the student to removal or deportation. (10) A challenge to this regulation was filed by a group of affected Iranian students.

      In Narenji v. Civiletti, the District Court concluded that regulation 214.5 was unconstitutional because it violated the Iranian students' right to equal protection of the laws. The court found no basis for what it characterized as the "discriminatory classification" of the Iranian students:

      While the intrusion upon the individual liberty of these aliens in this instance might have seemed at first blinking wholly justified in terms of the result sought, to allow its destruction of our fundamental tenets would throw open the door to further broad and potentially dangerous assertions of executive power over aliens, exclusive of the protections the Constitution provides. Today there are few major occurrences, domestic or otherwise, without significant international impact. There are many opportunities for the executive to invoke its authority to conduct foreign policy and thereby delegate to itself the authority to, in effect, assume the role of Congress, the elected, representative body with which the primary responsibility for immigration policy making rests, and thus assure that its actions will be afforded that immunity from judicial review that courts have recognized accrues to legislative efforts in that field. Accordingly, the promulgation of 8 C.F.R. [section] 214.5 being an act lying outside of the bounds of the authority conferred on the defendants by the Congress and the Constitution, that regulation is determined to be unconstitutional. (11) Further, the District Court found no "overriding national interest" that would allow the regulation to stand: the court found that "although defendants' regulation is an understandable effort designed to somehow reply to the Iranian attack upon this nation's sovereignty and the seizure of its citizens, it is one that does not support a legitimate national interest." (12)

      The appellate court disagreed and reversed the lower court: The regulation is within the authority delegated by Congress to the Attorney General under the Immigration and Nationality Act. That statute charges the Attorney General with "the administration and enforcement" of the [Immigration and Nationality] Act and directs him to "establish such regulations... and perform such other acts as he deems necessary for carrying out his authority under the provisions of" the Act. He is directed to prescribe by regulation the time for which any nonimmigrant alien is admitted to the United States, and the conditions of such an admission. Finally, the Act authorizes the Attorney General to order the deportation of any nonimmigrant alien who fails to maintain his nonimmigrant status or to comply with the conditions of such status. These statutory provisions plainly encompass authority to promulgate regulation 214.5.13 Citing a number of national security Supreme Court decisions, the Appeals Court invoked the "political question" doctrine, by which Courts will not look into the policy rationales or second-guess the Administration, unless the policy is discriminatory, under the least-stringent measure, whether or not the policy of the regulation is "rational":

      [C]lassifications among aliens based upon nationality are consistent with due process and equal protection if supported by a rational basis. The Attorney General's regulation 214.5 meets that test; it has a rational basis. To reach a contrary conclusion the District Court undertook to evaluate the policy reasons upon which the regulation is based. In doing this the court went beyond an acceptable judicial role. Certainly in a case such as the one presented here it is not the business of courts to pass judgment on the decisions of the President in the field of foreign policy. Judges are not expert in that field and they lack the information necessary for the formation of an opinion. (14) The end of the dispute came relatively quickly, as Narenji lasted only a short time in its expedited...