Fife v. Barr
| Decision Date | 29 June 2020 |
| Docket Number | 1:19-cv-13912-NLH-AMD |
| Parties | H. Frank FIFE and John G. and Elizabeth Steelman Foundation, Plaintiffs, v. William P. BARR, Kevin K. McAleenan, Mark A. Morgan, and Judson W. Murdock, II, Defendants. |
| Court | U.S. District Court — District of New Jersey |
JORGE FELIPE COOMBS, YOUNGBLOOD, FRANKLIN, SAMPOLI & COOMBS P.A., 1201 NEW ROAD, SUITE 230, LINWOOD, NJ 08221, On behalf of Plaintiffs.
THOMAS BENTON YORK, U.S. DEPARTMENT OF JUSTICE, P.O. BOX 868, BEN FRANKLIN STATION, WASHINGTON, DC 20044, On behalf of Defendants.
Plaintiffs claim that the U.S. government defendants violated their various constitutional rights when a student they sponsored for an F-1 nonimmigrant student visa was removed from the country and barred from returning for five years. Defendants have moved to dismiss Plaintiffs’ complaint, and Plaintiffs have moved to stay the five-year bar to the student's reentry. For the reasons expressed below, Defendants’ motion will be granted, and Plaintiffs’ motion will be denied as moot.
In April 2012, Erika Contreras Cruz ("Contreras"), who is a citizen of Mexico, applied to enroll at Atlantic Cape Community College ("ACCC") in Mays Landing, New Jersey through the F-1 nonimmigrant student visa program. The F-1 nonimmigrant student classification allows a foreign national "having a residence in a foreign country which [she] has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study" at a qualifying educational institution. 8 U.S.C. § 1101(a)(15)(F)(i).
To qualify for an F-1 visa, a foreign national is required to (1) apply and gain admission to an approved U.S. educational institution, (2) obtain a Form I-20, Certificate of Eligibility for Nonimmigrant Student Status ("Form I-20"), issued by an approved school, and (3) submit a visa application at the U.S. Embassy or Consulate where the foreign national resides. The foreign national is required to demonstrate both an intent to pursue a full course of study at the school named on the Form I-20 as well as an intent to leave the United States upon completion of the course of study or a defined period of authorized practical training. F-1 visa-holders are admitted for "duration of status," meaning the student is authorized to stay in the United States while he or she is pursuing a full course of study at an approved educational institution or engaging in authorized practical training following the completion of his or her studies. 8 C.F.R. § 214.2(f)(5). In addition to the full-course-of-study requirement, to maintain F-1 status, a student must not be employed in the United States unless expressly authorized in accordance with the regulations. See 8 C.F.R. §§ 214.2(f)(5), (9) and (10).
Each school authorized to enroll F-1 students must have a Designated School Official ("DSO") who monitors, advises, and oversees the students attending that institution consistent with reporting obligations to Immigration Customs Enforcement ("ICE") through its Student and Exchange Visitor Program ("SEVP"). 8 C.F.R. §§ 214.2(f)(1)(iii), 214.3(g), 214.4(a)(2). DSOs at participating schools must report specific student information, including information pertaining to nonimmigrant students’ enrollment and withdrawal from programs of study, through entry into the Student Exchange Visitor Information System ("SEVIS"). Id. § 214.3(g)(1).
In order for ACCC to issue a Form I-20 to an international student, the student is required to complete a "Confidential Financial Statement for International Students." The financial statement explains:
(Docket No. 1-1 at 32.) The student is required to sign and certify their financial statement.
Contreras submitted a "Confidential Financial Statement for International Students," which showed that $4,000 of Contreras’ first year college costs would be paid from her personal funds, $8,000 would be paid by Contreras’ family funds, and the remaining $10,000 would be paid by scholarships or sponsors. Of the $10,000, Plaintiff John G. and Elizabeth Steelman Foundation ("Foundation") contributed $3,500, and Plaintiff H. Frank Fife ("Fife") contributed $6,500. Contreras was connected with Fife through her cousin who was acquainted with Fife's wife. Fife serves as a trustee for the Foundation, which has provided dozens of scholarships and has donated to many charitable organizations over the past thirteen years.
Because Contreras was relying on funds from a scholarship and a sponsorship, Fife completed a "Sponsorship Agreement Form for International Students," in which he certified that he (Docket No. 1-1 at 24.)
On April 24, 2012, Contreras signed the Form I-20. The Form I-20 noted that payment was made in-full for the first academic year and that Contreras would "reside with host family at no cost." (Docket No. 1-1 at 34.) Fife was required to execute ACCC's Sponsor's Affidavit of Free Room and Board before a notary on April 12, 2012. Fife certified:
By completing this affidavit, you are swearing to the U.S. government that the student named below will live with you free of charge for room and board for the entire time he or she is a student at Atlantic Cape Community College. The student cannot be required to provide you with any services, such as babysitting, cleaning, etc., in exchange for the room and board. Do not expect that the student will be able to help support the costs through employment. Student employment is strictly controlled by U.S. Citizenship & Immigration Services and is very limited. You are also proving that you are the person who owns or rents the property and can afford the support you are promising.
(Docket No. 1-1 at 38 (emphasis in original).)
On July 19, 2012, the United States Consulate in Monterrey, Mexico issued Contreras an F-1 nonimmigrant student visa, which had an expiration date of May 22, 2015. On August 9, 2012, Contreras was inspected by U.S. Customs and Border Protection ("CBP") at the Del Rio, Texas port-of-entry and she was admitted to the United States as a valid F-1 nonimmigrant student. Contreras began attending ACCC and residing with the Fifes. Thereafter, Contreras entered and exited the United States to study at ACCC without incident for four years.
On April 22, 2016, Contreras’ brother was hit by a motorcycle while walking with his child in Mexico, and he died two days later. Contreras received approval from ACCC's DOS to take an emergency leave of absence to return to Mexico.
After spending twenty days in Mexico, on May 12, 2016, Contreras returned to the United States, entering through the Houston Intercontinental Airport, to resume her studies at ACCC. It does not appear that Contreras had previously sought to renew her F-1 nonimmigrant student visa which had expired on May 22, 2015. According to Plaintiffs’ complaint, however, an F-1 nonimmigrant student visa holder can automatically revalidate an expired visa when returning to the United States from an absence of less than thirty days to a contiguous territory provided she is in possession of a valid passport, a Form I-94 issued in connection with a previous admission, and a valid Form I-20. (Docket No. 1 at 32 ¶ 92, citing 8 C.F.R. § 214.1(b)(1).) Plaintiffs’ complaint avers that they believe Contreras’ F-1 nonimmigrant student visa was revalidated at that time under 8 C.F.R. § 214.1(b)(1). The complaint does not show that Contreras had any issue entering the United States on May 12, 2016.
On June 22, 2016, Contreras’ other brother went missing from his home in Mexico under mysterious circumstances, and his body was found six days later. On August 3, 2016, an ACCC DSO reissued Contreras’ Form I-20 with a revised program end date of May 19, 2017. The DSO noted in the Form I-20 "Remarks" section that, at that point in time, Contreras still needed two semesters to complete her associates degree. The DSO also granted Contreras’ request for a second emergency leave of absence from her studies in order to attend her brother's funeral.
On September 21, 2016, twenty-five days after leaving the United States, Contreras sought readmission through the Del Rio, Texas, port-of-entry. Plaintiffs’ complaint avers that CBP inspected Contreras and allowed her admission pursuant to the 8 C.F.R. 214.1(b)(1) automatic visa revalidation procedure as it had done on May 12, 2016.
It appears that Contreras did not attend classes at ACCC in the 2016 fall semester, but on November 28, 2016, Contreras registered for her spring 2017 ACCC courses. Because of more family issues, Contreras traveled to Mexico on December 1, 2016, and returned to the United States on December 27, 2016. Contreras sought admission into the United States at the Del Rio, Texas, port-of-entry. CBP officers initially refused Contreras reentry because SEVIS showed her student status as "Terminated."
Previously and allegedly unbeknownst to Contreras, on September 12, 2016, an ACCC DSO entered Contreras’ leave of absence on SEVIS as an "Authorized Early Withdrawal," and SEVIS changed Contreras’ student status from "Active" to "Terminated." Contreras’ name was also flagged on DHS's Treasury Enforcement Communications System ("TECS"). TECS is a computer application that allows CBP officers, and other federal agents, access to numerous...
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