Give me your tired, your poor, Your huddled masses yearning to breathe free, Your International Students…
Guest post by Michael A. Olivas
If any of you are at all known to your campus or law school immigration/international student advisors, you may find yourself in regular contact with them and your general counsel. I am regularly in touch with these folks, in part because I teach higher education law, in part because I chaired the UH Residency Appeals Committee for more than 25 years, and because I teach immigration law, of course.
Now comes Gani v. State, 988 N.Y. S. 2d 411 (Ct. Cl. 2014). A foreign student applicant to the SUNY Maritime College, Haluk Gani, sued when his application to attend the college on a student was denied due to a series of errors and mistaken advice given him by the campus international student coordinator. The international student coordinator was responsible for assisting foreign applicants with the complex immigration compliance requirements. Gani’s reliance upon her advice led him to enroll without permission, which then caused him to lose his status with the U.S. Citizenship and Immigration Services (CIS). He was able to ameliorate these mistakes and enroll in the college, graduate, and become eligible for employment, in part due to marriage. Notwithstanding, at trial Gani argued that he had been harmed by SUNY’s conduct, since he was unable to accept a job offered to him during the time he was without legal status in the United States. The court held, in effect, that there was no harm and therefore, no remedy, or that the harm was too orthogonal (or indirect) to support a finding that the college administrator’s conduct was the proximate cause of the harm he alleged, and that he had failed to prove all the elements of a negligence claim. The court dismissed his claim.
My experience with these folks is that most of them are great. They are very competent and dedicated to serving international students and scholars, and many of them know this arcane stuff very well. To my way of thinking, the amazing thing in the administration and implementation of immigration in the college setting, as in life for most of the time, is how well things go—not how they can collapse at times and break your heart. However, for an example of heartbreak and stunning incompetence by a campus designated school officer (or DSO), shielded in part by the complexity of the application process, read this case carefully. Even when the court concedes that the applicant received dreadfully bad advice, which led to his being knocked out of lawful status, and even when the judge holds that “the actions alleged in the claim were taken in the State’s proprietary capacity, and thus the defense of governmental immunity is inapplicable,” the plaintiff still loses.
The judge correctly notes that even when defendants are not immune, plaintiff applicants to the college are not relieved of the need to prove each of the elements of a viable cause of action.
But he was completely unpersuaded that any international student could reasonably rely upon representations made by ostensibly reliable and capable school officials—even ones who are designated by the institution as the school official responsible for administering the college’s immigration regime for admissions:
In essence, then, [the applicant’s] argument is that since Caesar advised him on the relevant regulations, she had a duty to do so with due care. But [the school official] was not an attorney, and universities have no fiduciary relationship with their students. Claimant’s argument, then, essentially reads the “assumed duty” requirement out of the law, and renders a university employee who provides advice regarding potential legal consequences of any act the guarantor of its accuracy.
Were I to adopt claimant’s position, universities would become de facto insurers of every representation regarding the state of the law made by non-attorneys on their staff, and answerable in damages for the consequences of any errors. Given the “byzantine world of immigration law”—exemplified in the case herein by the change in a long and complicated regulation that rendered [the applicant’s] attendance at class a violation—such a result is particularly unwarranted here. Moreover, [he] has failed to show that the information provided by [the administrator] was uniquely held by defendant. Rather, the representation concerned a matter set forth in the Code of Federal Regulations (CFR), as to which [he] could have sought advice from an immigration attorney, or directly from the USCIS.
. . . Any causal connection between the State’s negligence and any harm suffered by claimant is “too attenuated and speculative” to support a finding that defendant’s conduct was the proximate cause of the harm he alleges. For these reasons, I find that claimant has failed to prove all the elements of a negligence claim, and his action must therefore be dismissed.
Yikes. Applicants from other nations cannot rely upon non-lawyer campus officials? They could have hired counsel? They can read the CFR themselves? And if immigration officials make a mistake, as they do sometimes, there is no theory of estoppel that provides relief for college applicants from abroad detrimentally relying upon their advice. Having cleared all the hurdles, this poor applicant finds out that the doctrine of judicial deference to higher education authorities is alive and well. Campus officials should, at the least, do no harm and should know the basics. And the interesting details of the case may have doomed the plaintiff’s cause of action, as he was able to enroll—which the judge felt was no harm, no foul. He was eventually able to get a job, and then love bloomed and he married a U.S. citizen, giving him the many benefits of marriage under our system. Ain’t love grand?
My takeaway: know what you are doing, as students rely upon us know the details, and the complex immigration regulation of admissions presupposes competent assistance and an underlying grasp of the correct procedures. This student eventually was able to do what it was he wanted, but with no thanks to the SUNY Maritime College and its hapless immigration designated student officer. This student was temporarily knocked out of legal status, and it was a fortunate fluke that he was able to enroll without U.S. Immigration & Customs Enforcement repercussions. Do no harm, and know what you are talking about.