‘Faithless Elector’ Could Upend American Politics… But Probably Won’t

I mean, you only think you voted. (photo via Getty)

It’s always fun when people realize for the first time that their votes for President of the United States don’t really count. I was raised in a very political household, so I don’t remember a time “not” knowing that the President is not elected by popular vote, rather by the electoral college. But it wasn’t until late middle-school that I learned that the “electors” themselves were actual people who weren’t necessarily bound by the popular votes in their states.

It blew my mind. I think it blows everybody’s minds the first time they learn about it. When we vote for President we’re really voting for a slate of electors, and those electors then cast the “real” vote for the President? What if they choose somebody else? Can anybody stop them? What the hell kind of “democracy” are we running here? This Key & Peele sketch neatly sums up our entire ridiculous system.


A “faithless elector” overturning a Presidential election is a great plot for a novel. And, every four years or so, somebody usually brings up the possibility (usually on behalf of the candidate who is losing). In reality, they’re not really a thing. Most states have laws mandating that electors follow the popular vote of their state. The kinds of people who are chosen as “electors” are usually hardcore partisans who are going to follow the dictates of their party. And even if you find a few electors who are wiling to use their “power” to vote for whoever they want, getting enough of them together to actually flip the results of an entire election is more fantasy than reality.

Still, as a purely technical matter it could happen. And a ruling this week from the Tenth Circuit affirms that it’s entirely within an elector’s power to vote for whoever they like. In Baca v. Colorado Department of State, the court ruled that Colorado could not force its electors to vote according to the popular will of Colorado, despite having a law mandating just that. Instead, 10th Circuit Judge Carolyn B. McHugh (an Obama appointee) ruled that the Constitution inherently gives electors the right to choose, and that right is a federal right that cannot be impinged upon by the state.

From a certain point of view… THAT’S INSANE. Look at what happened in the instant case. Hillary Clinton carried the state of Colorado in 2016. Colorado therefor “elected” a slate of electors chosen by the Democratic Party. But Michael Baca, a Democrat because of course Democrats are freaking terrible at demanding discipline, decided not to vote for Clinton. Instead, he wrote in John Kasich. This guy didn’t vote for the person who won his state, didn’t vote for the person who won the popular vote, didn’t vote for the other person running for President, and instead voted for some other guy.

And the Tenth Circuit says that’s entirely Constitutional for him to do so. And, not for nothing, but Judge McHugh is probably absolutely right about that. There just isn’t anything in the Constitution that requires Baca to do anything but vote for who he thinks should be President.

In our bitterly and closely divided country, it’s not hard to imagine a faithless elector or two banding together and swinging the outcome of a close Electoral College outcome.

But… it’s also not hard to “imagine” an intruder lurking outside your house. The mind does terrible things in the dark of night. Most likely though, that noise you heard was not an axe-murderer trying to climb into your bedroom, it was just a raccoon digging in your trash.

Donald Trump lost the popular vote but “won” the Electoral College in a very close election by 77 votes. To overturn the results of the election you’d have needed to get 78 Republican electors to vote their conscience (as if they had one) and vote for the popular vote winner. That’s not an actual thing that would happen. It’s possible to play with the map to produce an Electoral “tie” or only a one or two vote margin of Electoral victory. But, what we’ve seen is that states tend to move as a group so the kind of results you’d need to get to make that happen are unlikely. You’re just unlikely to get a candidate who loses Michigan, Wisconsin, and Pennsylvania, but wins Ohio and Florida despite losing Virginia yet hanging onto Iowa.

To “overturn” an election, you’d have to get a slate of electors chosen by the winning side to, en masse, not just to write-in a different candidate, but actively vote for the candidate from the other party. It’s possible, but not very plausible.

Don’t get me wrong, the political science dork in me would love to see this happen. Faithless electors overturning an election is pretty much the only way I can see getting enough popular support to amend the Constitution to provide for direct, popular election for the President of the United States. It’s a change that should have been made 200 years ago. The only reason that the Electoral College was a thing in the first place is that lower-population states wanted to protect slavery and Jersey was like “yeah, that makes sense.” The only reason the Electoral College is still a thing is because… the Electoral College is a thing and everybody who might want to be President someday knows that they can’t piss off Iowa or Wisconsin or a bunch of low-pop flyover states that nobody would give a s**t about if not for the Electoral College. Small states know that the Electoral College over-represents them. They’ll never give that up, unless they figure out that Electors can completely ignore them altogether.

So I kind of hope they do, one day. It would be interesting if a bunch of Electors from Missouri decided “screw the people of Missouri, we’re voting our conscience.” Interesting in the way that a nuclear explosion is a fascinating example of the power stored in atoms, but interesting nonetheless.

But it probably won’t happen. And the Electoral College will probably trundle on, doing its part to ensure white-minority rule over the popular will of the country.

Faithless elector: A court ruling just changed how we pick our president [NBC News]

Why Zimbabwe is running on empty, again – The Zimbabwean

The trigger for a sudden surge in prices came last month, when the US dollar was abandoned as legal tender, 10 years after Zimbabwe ditched its worthless local currency and dollarised as inflation hit 89.7-sextillion percent – that’s 20 zeroes.

The same ruling party is at the helm now as 10 years ago, noted Godfrey Kanyenze of the Labour and Economic Research Unit of Zimbabwe, a trade union-linked think tank. And that has added to the worries, he said, because few people trust it has the ability to steer the country out of the current mess – in which a third of the rural population is struggling to cover basic food needs.

Zimbabwe already faces a range of humanitarian concerns, with the UN and international aid groups filling gaps in food security, health and HIV care, water and sanitation, and social protection for vulnerable citizens.

“This is management by crisis,” Kanyenze told The New Humanitarian. The government is “pushing a mantra of ‘austerity for prosperity’, but it’s a government without a human face and it’s just knee-jerk reactions.”

The government says the decision to return to a single, Zimbabwean, currency is crucial to stabilising the economy.

John Kazingizi sells fruit and vegetables with his wife in Hatcliffe market, a high-density suburb of Harare. “What worries me most is prices keep increasing and my sales keep going down, as people are no longer buying as they used to,” he told TNH last week.

The couple struggle to find the money to buy a little fresh stock each day and meet their basic household costs – including repayments on a debt they took out to cover school fees for their five children. “We just need our economy to work again,” said Kazingizi.

The Zimbabwe Coalition on Debt and Development, a social and economic justice NGO, has argued that banning the US dollar and all foreign currencies will simply boost the black market.

“There is a need to address the root causes of the current currency crisis, which are rampant corruption, mismanagement of public finances, and impunity being enjoyed by those that are fuelling the crisis through arbitrage and resource haemorrhage,” the NGO noted in a press statement.

The central bank’s move has not put an end to strike threats, which likely helped prompt the government’s currency decision last month. The Zimbabwe Congress of Trade Unions is warning it will call a stayaway to protest the rising cost of living, although it has not yet set a date.

When the unions last led a work stoppage in January, following the sudden announcement of a fuel price increase of 150 percent, security forces shot dead 17 people and raped 17 women, according to Human Rights Watch.

Fuel prices have been hiked three-more times since January, with an average daily commute now costing as much as $20.

More of the same

President Emmerson Mnangagwa’s cash-strapped government had long insisted the Zimbabwe dollar would only be re-introduced when the economic fundamentals were right.

Yet with inflation almost hitting 175 percent for June, 18-hour power cuts, and 3.5 million people facing drought-induced hunger in the countryside, “the fundamentals are clearly out of whack,” noted Mike Chipere-Ngazimbi, economics researcher at South Africa’s University of Pretoria.

disastrous harvest – with maize production just 45 percent of last season – has compounded the hardships. The World Food Programme aims to reach 1.2 million people with food aid, but by March next year an estimated 5.5 million will be unsure where their next meal will come from.

When Mnangagwa came to power 18 months ago after a military coup ended the 30-year reign of President Robert Mugabe, he promised reforms.

But Mnangagwa, a ruling party stalwart, has failed to deliver a programme attractive enough to investors or multilateral financial institutions, or win over a country shocked by the army’s violent enforcement of last year’s close-run election result.

The one bright spot in Zimbabwe’s recent economic history was a period of coalition government between Mugabe’s ZANU-PF and the opposition Movement for Democratic Change lasting from 2009-2013. Then, GDP growth ramped up to more than 9 percent – although overall poverty levels remained stubbornly high.

To rescue the country from hyperinflation, in which prices doubled almost daily, an early decision in 2009 did away with the Zimbabwe dollar in favour of a basket of foreign currencies. The downside was foreign currency shortages in an import-dependent economy where more dollars leave the country than arrive.

Since then, an ever-more creative series of currency policies have been put in place to address that problem.

Currency conundrums

In 2016, the government introduced bond notes and coins, supposedly worth the same as the US dollar. But they steadily lost value on the informal market – and became an immediate source of arbitrage profits for the well-connected.

The Mnangagwa government has encouraged adopting mobile money to reduce the need for physical cash. According to the reserve bank, mobile money was used for 85 percent of all retail transactions in the last quarter of 2018.

But high transaction fees and a 2 percent government tax makes mobile money expensive – further eroding people’s purchasing power. In the rural areas, where mobile money is the common payment system for livestock sales, people are turning to barter instead, according to FEWS NET, the USAID-funded early warning hunger monitor.

In February, as a step towards creating a local currency, the government introduced the Real Time Gross Settlement dollar, or RTGS – effectively a digital currency harmonising bond notes, mobile money, and debit cards tied to an official US dollar exchange rate.

Immediately, the RTGS dollar began to lose value on the parallel market.

“The economic situation makes us feel like orphans in our own country.”

Last month, the RTGS dollar was trading on the streets at about 13 to the US dollar, more than double the official interbank rate.

On 24 June, the government abruptly decreed that the country’s sole legal tender was the RTGS, renamed the Zimbabwe dollar, and abolished the use of multiple currencies. The aim was to end the informal market contributing to galloping inflation and restore government control over monetary policy.

Civil servants had been threatening to strike, demanding payment in US dollars, and there were reports the military was also unhappy with their RTGS denominated pay packets.

But the introduction of the Zimbabwe dollar has not halted its slide on the black market, and soon after the ban on the use of foreign currencies was announced, Finance Minister Mthuli Ncube said the tourist destination of Victoria Falls was exempted.

“It’s very clear the decision to move to a local currency was done in haste,” said Kanyenze of the labour think tank. “The economy was re-dollarising, and particularly the military were demanding to be paid in dollars.”

Kazingizi, the fruit and vegetable seller, said he sees little sign that things will improve any time soon. His wife gets up every day at 3 am to go to the market, he said, but the family still struggles to stay afloat.

“The economic situation makes us feel like orphans in our own country,” he told TNH.

Police bash Doug Coltart
History Repeats Itself in Zimbabwe

Post published in: Business

Morning Docket: 08.23.19

(image via Getty)

* The DOJ sent a newsletter to the nation’s immigration judges including links to a white nationalist website. Bill Barr is running a real crackerjack organization. [Buzzfeed News]

* A deep question and answer exchange with Penn Law’s Amy Wax and she comes off just as loony as you’d expect. [New Yorker]

* It looks like Michael Avenatti is going to put Nike on trial in his upcoming extortion suit. [Law360]

* A Brad Pitt role holds the key to being a good prosecutor. It’s not Tyler Durden and that’s a little surprising. [ABA Journal]

* Weil Gotshal may have cost investment bankers millions, leaving them mere multimillionaires. [NY Post]

* Ed Whelan seems to have no idea how law review articles are written in this tortured effort to defend Trump circuit appointee Steve Menashi’s reputation. Essentially, Whelan says because Menashi’s controversial article was cited by real academics it must be real scholarship — as opposed to a 2L randomly inserting Menashi into a string cite. [National Review]

* Nicholas Sparks won that fight he’s been having with the former headmaster of his vanity school. [Deadline]

Tongaat unit suspended from trading on Zim stock exchange – The Zimbabwean

The delayed publication relates to complex accounting issues stemming from its JSE-listed parent company’s re-statement of financials following a forensic probe.

The Tongaat unit, which was supposed to have released its results for the period to March 31, 2019, missed its June 2019 deadline but asked for an extension to July 31, which it again failed to meet and applied to the ZSE to be allowed a second extension to August 14.

It missed that deadline again.

“The Zimbabwe Stock Exchange advises members of the investing public that it has put a halt in the trading of Hippo Valley Estates Limited’s (“Hippo”) shares on the ZSE according to Clause 4.13.2 of the ZSE Trading Rules and Procedures.

“This development has been necessitated by a formal request made by Hippo for the suspension of trading in its securities after it failed to publish its audited financial statements for the year ended 31 March 2019 as per the previous public notices,” the ZSE said.

ZSE has now formally requested the Securities and Exchange Commission of Zimbabwe (SECZim) to consider the application for the suspension in terms of the Securities and Exchange Act.

Investors will be advised of the determination by SECZim as soon as it becomes available, ZSE said.

History Repeats Itself in Zimbabwe
Zimbabwe aviation regulator courts more companies to invest in airport business

Post published in: Business

Zimbabwe aviation regulator courts more companies to invest in airport business – The Zimbabwean

This is the second invitation to investors in one week after CAAZ on Aug. 15 also invited investors in airport agribusiness to bid for the development and operation of horticulture facilities at its biggest port of entry, the Robert Gabriel Mugabe International Airport.

In the invitation issued Thursday, CAAZ said it was offering commercial space at the Robert Gabriel Mugabe International Airport, the Joshua Mqabuko Nkomo International Airport in Bulawayo and the Victoria Falls International Airport for the development of lounges.

The offer is open to both local and foreign companies and is on a lease and concession basis.

“Interested companies or investors should provide information demonstrating that they have the required experience, competencies, skills and qualifications relevant for performance of the services whether as individual firms, joint ventures or consortia,” CAAZ said.

With regards to the development of about 300 hectares surrounding the Robert Gabriel Mugabe International Airport just outside Harare, CAAZ said the project entailed the development of a horticulture growing facility, complete with pack-houses and all associated cold-chain infrastructure for export out of the airport.

The successful bidder will be expected to enter into a lease and concession agreement with CAAZ for an agreed term.

China Jiangsu International is currently upgrading the airport into a more modern facility at a cost of 153 million U.S. dollars.

The three year project will boost the airport’s annual passenger handling capacity to six million from the current 2.5 million, hence the need for the provision of the running of lounges.

Tongaat unit suspended from trading on Zim stock exchange
Zimbabwe: Senior official slams ‘unprecedented’ torture

Post published in: Business

Zimbabwe: Senior official slams ‘unprecedented’ torture – The Zimbabwean

“I’m totally disgusted & alarmed by an unprecedented trend of abductions in our country,” Shingi Munyeza, who is also an entrepreneur and cleric, said on Twitter.

Expressing “worry” that Harare had yet to put forward a strategy against the alleged incidents, Munyeza said the government must “protect its citizens” and hold perpetrators responsible.

The remarks followed several reports in recent weeks of abductions and torture, the most recent case being that of female satirist Samantha Kureya.

Kureya was taken Wednesday night by masked gunmen who attacked her family’s home in the capital Harare, the All Africa news website reported.

She has in the past criticized in her performances the police ban on popular protests against political and economic policies.

Kureya was found later after having been severely beaten, news reports said.

When asked for comment, Deputy Minister of Information Energy Mutodi told Anadolu Agency that the incident was “just another comedy”.

Among other recent victims were union leader Obert Masaraure, human rights activist Tatenda Mombeyarara and several others, according to the local pindula news website.

Protests in Harare

“The abductions are a reflection of the state’s paranoia with the recent demonstrations that took place in Harare. The state is showing its power against a hapless citizenry,” Owen Dliwayo, an independent political analyst in Zimbabwe, told Anadolu Agency Thursday.

Dliwayo accused the government of acting in a “ruthless” manner against dissent as well as those it deemed as acting “contrary to its narrative.”

“From a rights-based approach, it is disheartening to note that the so-called second republic is intolerable to different views in violation of the civil and political rights of the common people. The government has failed to promote the common good of our society but instead has become a menace,” he said.

Earlier this month, Zimbabwe’s main opposition, the Movement for Democratic Change (MDC) called off plans for street protest, after a top court upheld police ban on demonstrations.

The protest has been the first in a series planned by the MDC against the country’s deteriorating economic and political situation.

Despite police warnings and a court ban, crowds swarmed Harare’s streets, where they were confronted by police teargas and batons.

Zimbabwe aviation regulator courts more companies to invest in airport business
Page arrest traces to Zimbabwe crime ring

Post published in: News

Page arrest traces to Zimbabwe crime ring – The Zimbabwean

Tinotenda Madyira, a 31-year-old illegal immigrant, was booked into Coconino County Jail for one count of identity theft and one count of attempted theft, both felonies. He was also charged with providing false information to Police, a misdemeanor.

According to Page Police, “The investigation revealed Madyira went to the UPS sorting facility in Page and attempted to take possession of a package containing numerous cell phones that had been ordered by fraudulent means, using a local nonprofit organization’s shipping information. When contacted by police, Madyira provided a name and forged identification card that were not his own.”

Madyira was booked as “Jacob Daniel Smith.” Police soon discovered Madyira’s real identity with a fingerprint match. The suspect was moved to the Coconino County Jail in Flagstaff. According to Page Police, it is unclear at this point if U.S. Immigration and Customs Enforcement will step in, leaving the possibility that his alleged crimes in Page will not make it to the Coconino County courts.

A Chronicle investigation discovered Madyira, then 25 years old, was arrested and convicted in 2013 for a similar crime in Cincinnati, Ohio. He pleaded guilty and was sentenced to 12 months and one day for selling a list of stolen identities to a Zimbabwe crime ring.

The ring used stolen identities to obtain at least $5 million in fraudulent tax refunds.

A March 7, 2013, press release from the Department of Justice, U.S. Attorney’s Office in Southern District of Ohio stated, “In early 2012, the Secret Service and IRS began investigating a large ring of individuals around the Cincinnati community who were using stolen identities to file fraudulent income tax returns and then steal the fraudulent tax refunds. Members of the ring purchased stolen identities for thousands of actual taxpayers through illicit online forums and from accomplices. The undisputed head of the scheme was Kudzaiishe Marimbire, the brother of Tawanda Marimbire. Most of the stolen funds were laundered and sent to Zimbabwe.”

Government agents seized numerous luxury cars, computers and tax documents. They also found more than $1 million in cash and money orders in a storage locker used by the Marimbire ring. Kudzaiishe Marimbire, along with others in the gang, fled to Zimbabwe. Tawanda Marimbire was arrested attempting to cross the Canadian border with $76,000 in cash.

U.S. Attorney Stewart said in 2013, “This case is a perfect example of the emerging problem with tax refunds obtained through the use of stolen identities.”

IRS Criminal Investigation Special Agent in Charge Kathy A. Enstrom said, “Individuals who commit refund fraud and identity theft of this magnitude and with this degree of trickery, dishonesty and deceit, deserve to be punished to the fullest extent of the law.”

Madyira only served part of his 2013 sentence and was released early for good behavior and put on probation. At some point, he went off the radar after failing to report to ICE.

The Chronicle learned from a law enforcement official of an effort to deport Tinotenda Madyira in 2014. The move was thwarted by a judge. Over six years later, Madyira, still in the U.S. illegally, is arrested in Page.

Little is known about Tinotenda Madyira’s activities, or what names he might have used before his 2013 arrest and the years leading up to his arrest in Page. His last documented address was in Escondido, California.

In June 2017, he received a traffic citation in the Phoenix area. Maricopa County court records show he didn’t have a valid driver’s license. He never showed up for his court date.

Little is known about the Zimbabwe men who got away, or how many more like them are operating in this country today.

Zimbabwe arrests senior opposition official over demonstration – The Zimbabwean

Amos Chibaya

The Movement for Democratic Change (MDC), which accuses President Emmerson Mnangagwa’s government of repression and economic mismanagement, called a demonstration last Friday as the start of a nationwide protest movement but it was banned by the police.

But some opposition supporters still turned up for the protest and were subsequently dispersed by police who used batons, teargas and water cannon.

Amos Chibaya, the MDC national organizing secretary and convener of the planned protests, was questioned by police and detained in a cell overnight, lawyer Obey Shava told Reuters. Chibaya is expected to appear in court on Friday.

“The police are saying he failed to take proper steps to stop a demonstration. They have refused to let him go so he has been locked up,” Shava said.

Separately, Chibaya is facing trial on subversion charges linked to violent protests in January that prompted an army crackdown that led to the deaths of more than a dozen people.

Police spokesman Paul Nyathi could not immediately comment on Chibaya’s detention.

Other protests that were planned by the MDC in other cities this week were also halted by the police and courts. The party said hopes were fading that the government might become more tolerant of dissent than the one it had replaced.

The opposition said four more officials were abducted in the second city of Bulawayo from their homes by unknown armed men, following similar incidences in the capital reported by rights groups last week.

The government said in a statement that police were investigating a report of a female comedian who was kidnapped and assaulted by unknown armed men on Wednesday night. The comedian has been critical of the government and police in her skits.

Page arrest traces to Zimbabwe crime ring
Zimbabwean comedian Gonyeti ‘abducted and beaten’ in Harare

Post published in: Featured

Lawsuit Filed By Victims Of ICE’s Fake College Sting Revived By Appeals Court

An elaborate scheme involving a fake college set up in New Jersey by ICE has, unsurprisingly, resulted in a lawsuit by some of the foreign students swept up in the sting operation. Apparently having given up on rooting out the worst of the worst non-citizens, ICE is contenting itself with arresting and charging foreigners for attempting to stay in the country legally by continuing their education.

The fake university looked pretty real to applicants. It had a website, a Facebook page, and — most importantly — accreditation by a national accreditation service. The school’s website told students the fake school was certified by the DHS’s Student and Exchange Visitor Program to “educate international students.”

It all looked legit. None of it was. ICE claims it was targeting people who defrauded students or universities by brokering illegitimate educational offerings meant to allow visitors to overstay their visas. That doesn’t explain why ICE accepted registration fees from interested students. Nor why it arrested a bunch of students trying to do something they were legally allowed to do.

ICE ended up with about eight criminal suspects from the hundred-plus arrests resulting from the sting operation. Some of the others caught up in the sting had their visas cancelled, supposedly due to “fraudulent enrollment.” So, in the government’s eyes, the people ICE tricked into enrolling in its very real-looking fake college are every bit as criminal as the criminals the government is actually prosecuting.

The lawsuit deals with these suddenly-cancelled visas. The issue is the government’s arbitrary decision to turn people they first referred to as “victims” into accused criminals solely for the purpose of stripping them of their visas. This determination comes without any form of due process attached, so it’s up to federal courts to field these challenges, as the Appeals Court points out.

The Appeals Court delves into administrative minutia to counter the government’s arguments and point out where the lower court went wrong. But it also spends some time dealing with the government’s contradictory assertions. After sending letters calling the duped students “frauds,” the government argued in court it didn’t actually mean what it said in the letters informing the students they were no longer welcome in this country. From the decision [PDF]:

We held argument on September 25, 2018. There, for the first time, the Government informed this Court that its position was not that the students had committed fraud by enrolling in UNNJ. Rather, the Government believed that the students were the victims of fraud. The Government twice stated that the students “were caught up in it in the sense that they were victim by the academic recruiters” and that “[t]here was no fraud here. These students, as far as we are concerned, were the victims of fraud. . . . [T]hey were caught up in it.”

[thinking face emoji]

How does the government explain calling victims of fraud perpetrators of fraud when revoking their visa privileges? In a word, badly.

When pressed about the language in the terminating letter, the Government (incorrectly) stated that “fraudulent enrollment” was “passive voice,” and therefore should not be read to imply that the students had committed fraud.

That’s a very fine — and very understated — parenthetical there.

And it just keeps getting better. The government comes off as a petulant child who has decided only one thing will make it happy — tossing these students out of the country — and will do whatever it takes to ensure that happens.

Despite the Government’s position that the students were the victims of fraud, it acknowledged that database entries for each student would reflect the “fraudulent enrollment” determination made by DHS. The Government acknowledged that it was able to, consistent with its stated position, eliminate any database notations that suggested that the students had committed fraud, yet it refused to do so.

Beautiful. And that’s followed immediately by another line of pure horseshit, delivered directly to bench by the government’s lawyers.

It argued that correcting the record on a preventive basis was not necessary because the “fraudulent enrollment” determination would not have any adverse impact on the students in future immigration proceedings.

Ah, yes. Being accused of criminal acts by federal agencies tends to have no effect on the accused, especially during removal proceedings or the visa application process.

After all this “no harm, no foul” stuff, delivered in hopes of persuading the judge the government wasn’t just a tantrum-throwing child wearing its dad’s suit, the government decided to embrace its inner child.

On October 12, 2018, the Government changed course yet again. It filed a letter “to clear up any confusion from certain exchanges” that occurred during argument. The Government informed the Court that it was not, in fact, conceding “that all—or even most—UNNJ enrollees were innocent victims.” In fact, the Government now asserted that some of the students “in all likelihood, knew that their academic recruiters were committing visa fraud” and others even “conspired with their academic recruiters to commit visa fraud.” “Thus,” the letter concluded, “to the extent that any of the Government’s comments at oral argument left the misimpression that all of UNNJ’s enrollees were innocent victims of the academic recruiters’ visa fraud scheme, that is not the case.”

After the discussion of the government’s argumentative fuckery, the court turns to the issue at hand. The lower court said the students needed to take their problems up with the immigration court and/or the DHS first before bringing it to the district court. The Appeals Court disagrees. The students can bring this action directly because the determination made by the DHS was indeed final. There are no intermediate steps these students could have taken to challenge the DHS’s determination.

The order terminating these students’ F-1 visas marked the consummation of the agency’s decision-making process, and is therefore a final order, for two reasons. First, there is no statutory or regulatory requirement that a student seek reinstatement after his or her F-1 visa has been terminated. Moreover, even if the students attempt to pursue the administrative procedures for reinstatement, there is no mechanism to review the propriety of the original termination order. Second, the students need not wait for removal proceedings to be instituted. As we stated in Pinho, an order’s finality cannot depend on the institution of removal procedures which may never occur. And in any event, immigration judges cannot review the original denial of reinstatement. They do not have that authority.

The court makes no statement on the propriety of the ICE’s sting operation. It does, however, spend a few pages detailing all the efforts ICE made to ensure the bogus college looked legitimate. The decision is subtly damning in its construction, contrasting the “realness” of the college with the government’s claim students it first called “victims” were now suddenly fraudsters. The lawsuit lives on, headed back to the lower court to give the plaintiffs a shot at getting the DHS’s “fraud” designation scrubbed from their permanent record.

Lawsuit Filed By Victims Of ICE’s Fake College Sting Revived By Appeals Court

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