U.S. Immigration and Customs Enforcement is reinstating the status of some international students whose records they terminated on a Department of Homeland Security database, court records suggest.
In an email submitted in federal court, U.S. Attorney Mark Sauter told Brad Banias, a lawyer representing some of these students, that some records were being restored in the Student and Exchange Visitor Information System, a database that schools and government agencies use to confirm if foreign students are abiding by the conditions of their stay.
"ICE is developing a policy that will provide a framework for SEVIS record terminations. Until such a policy is issued, the SEVIS records for plaintiff(s) in this case (and other similarly situated plaintiffs) will remain Active or shall be re-activated if not currently active and ICE will not modify the record solely based on the NCIC finding that resulted in the recent SEVIS record termination," Banias said in the email.
"ICE maintains the authority to terminate a SEVIS record for other reasons, such as if the plaintiff fails to maintain his or her nonimmigrant status after the record is reactivated or engages in other unlawful activity that would render him or her removable from the United States under the Immigration and Nationality Act," he added.
But DHS clarified this reinstatement applies only for "people who had not had their visa revoked."
"We have not reversed course on a single visa revocation. What we did is restore SEVIS access for people who had not had their visa revoked," a spokesperson for the DHS wrote in a statement to ABC News when asked how many of the SEVIS statuses it had terminated in recent weeks will be restored.
Having one's SEVIS record terminated doesn't necessarily mean a student's visa is automatically revoked, but it can lead to the visa being revoked.
The major reversal comes as dozens of cases representing hundreds of students have popped up across the country in recent weeks. Lawyers accused the government of abruptly terminating the records on SEVIS.
Attorney Charles Kuck, who represents 133 students in a class-action lawsuit whose statuses were ordered to be restored by a judge earlier last week, told ABC News on Friday that additional clients of his also had their status restored without a court order. His clients began alerting him of the change Thursday night.
"They started rolling in -- I went to bed at about 10 and I had gotten about 30 emails," he said. "When I woke up this morning, there was hundreds, so clearly ICE was working all night long."
Lawyers representing these students said the termination of their records was putting them at risk of being deported.
"If you don't have a SEVIS record, you can't provide the mandatory updates and it's the school's position, attorney's position, and even USCIS' position that when they terminate SEVIS, they terminate F-1 status. It's kind of like they are inextricably interposed, that is what was understood," Banias told ABC News in an interview earlier this week.
"So when these kids got their records terminated over the last couple of weeks, you know, their schools were saying … DHS is telling you to leave," he added.
That confusion erupted in courtrooms across the country as government lawyers at times were unable to tell the court whether a person whose record was terminated on this database was no longer in the country legally.
When terminating their records, the government often gave little to no explanation as to why. While some cases involved students who had participated in pro-Palestinian demonstrations at university campuses, the majority did not, lawyers told ABC News.
A large portion of the lawsuits involved students who had run-ins with law enforcement and were not convicted for things such as minor traffic infractions and minor misdemeanors, which would not typically lead to a termination. But many of the cases also involved students who had no interactions with law enforcement at all.
It's unclear how many records will be restored.
In recent weeks, two federal judges issued temporary restraining orders directing that ICE must temporarily reinstate the SEVIS status of two Ohio State University students whose SEVIS records were abruptly terminated.
In one of those cases, Ohio State University student Ahwar Sultan's SEVIS record was terminated following his arrest at a pro-Palestinian protest, and his visa was subsequently revoked.
Sultan's attorney Rafael Urena told ABC News that Ohio State University told him Friday afternoon that his client's record "has still not been updated by the government to reflect an Active status yet" and that he did not know if and how his client's status will be affected.
The American Civil Liberties Union of New Hampshire filed two lawsuits on behalf of students whose statuses were rescinded in SEVIS. One involved Xiaotian Liu, a doctoral at Dartmouth College, while the other involved a class-action lawsuit for students across New Hampshire, Maine, Massachusetts, Rhode Island and Puerto Rico.
"It is clear that the deluge of legal filings and initial judicial rulings in New Hampshire and nationwide have had a profound impact on the government's decision to reactivate the SEVIS records of some students and allow them to continue their studies," said Gilles Bissonnette, legal director of the ACLU of New Hampshire. "Many questions remain, including the criteria that will be used for these reactivations and whether this will apply to students who did not file lawsuits.
"In the litigation we have filed in New Hampshire, it is too soon to tell how today's developments may or may not impact our class-action lawsuit," Bissonnette continued, noting that in Liu's case, the ACLU of New Hampshire is "unable to confirm" his status and so the court has extended a temporary restraining order in his case until Tuesday.
Fanta Aw, the CEO of NAFSA: Association of International Educators, an organization that represents thousands of universities and international educators across the country, said her organization has logged about 1,500 cases that have been terminated. While she said she is thrilled to hear the records are being restored, she emphasized that there are no answers about what happens now to students who have lost job opportunities, been unenrolled from classes, or had their student visas revoked.
"The relief comes from knowing that the question of, can I go to class today or tomorrow? The answer is yes," she said. "But in the same token, knowing that this happened with no clear explanation is not assurance that it can't happen again."
At a recent hearing in U.S. District Court for the District of Columbia, Judge Ana Reyes repeatedly asked a government lawyer if the termination of a SEVIS record means a student is no longer in the country legally. The lawyer said he did not know.
"Do you realize that this is Kafkaesque," she asked.
"I've got two experienced immigration lawyers on behalf of a client who is months away from graduation, who has done nothing wrong, who has been terminated from a system that you all keep telling me has no effect on his immigration status, although that clearly is BS," she said.
"And now, his two very experienced lawyers can't even tell him whether or not he's here legally because the court can't tell him whether or not he's here legally because the government's counsel can't tell him if he's here legally."
