Friday, December 20, 2019

Scientia Bona Est

by Michael C. Dorf

The title of today's post, "Scientia Bona Est," is the Latin translation of "Knowledge is Good," the motto of Faber College, the fictional setting for the great 1978 film Animal House. It might have inspired the people working for federal Immigration and Customs Enforcement (ICE), who created the fake University of Farmington to lure would-be immigration fraudsters. U of F's motto? Scientia et Labor or "Knowledge and Work." Here's what the university website looked like before ICE deactivated it.

As explained at length in the WaPo story linked above, ICE created the fake university in order to lure non-citizens seeking to overstay student visas as a means of circumventing US immigration laws.  Because U of F had no real classes or faculty or anything else, presumably students who enrolled would quickly realize that it was a scam but assume that the target of the scam was the federal government: Students paid U of F tuition and U of F in turn provided them with extensions on their visas. In fact, it was a sting operation aimed at the students, who were prosecuted and/or deported. Was it a fair and sensible sting? Let's explore.

As an initial caveat, I imagine that the administration, faculty, and students of the University of Maine at Farmington -- an actual university with real everything -- are mighty annoyed by ICE's naming of its fake university. With apologies to everyone at the real UMF, hereafter all references to Farmington are to the fake ICE version, not the real one in icy Maine. Okay, now onto analysis of the ICE Farmington sting operation.

Stings are a reasonably common law enforcement tool. Let's say a community has a jewelry robbery problem. One way to attack it is to go after the market for stolen goods. One way to do that is for the police to open what appears to be a privately owned pawn shop. Most customers will come to pawn jewelry and other items they legitimately own, but some others -- whether thieves themselves or fences -- will come to what they think is an ordinary pawn shop to sell stolen goods. By running the fake pawn shop, the police can develop and then follow up on leads on criminals.

In a pawn-shop sting or similar operation, there is no serious worry about entrapment. To overcome a defendant's entrapment defense, the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime, but that is quite easy to do in a typical prosecution arising out of a sting. As the Supreme Court explained in Jacobson v. US (1992), "where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant's predisposition." People who knowingly sell stolen goods to the undercover government pawn shop are necessarily predisposed to commit the crime of knowingly selling stolen goods. So far as they know, the pawn shop is genuine, and but for the bad luck of going to the "wrong" pawn shop, the criminals thus apprehended demonstrate their predisposition through the illegal act itself. Likewise for people who buy illegal drugs from someone they believe to be a drug dealer but is secretly a DEA agent.

When would a sting cross over into entrapment? We might ask whether the government simply created the type of opportunity to commit a crime that would otherwise exist (no entrapment) or instead created an opportunity so tempting that even a person who would not ordinarily commit a crime does so (entrapment). If we formulate the entrapment defense that way, even someone raising a successful entrapment defense may not be very sympathetic. We would hope that most people would resist committing crimes, even if they are very tempted to do so. Still, the entrapment defense should be available in such cases because it is only partly about unfairness to the defendant; it's also about limiting the government. There's enough real crime out there that the government ought not to go about trying to catch people who, but for the extraordinary government-created circumstance, would pose no threat.

So, is that what the government did in creating the fake University of Farmington? Not really, but there's at least a prima facie argument for entrapment. A foreign student might enroll at a real university with no intention of taking classes in order to remain in the US after the expiration of an originally valid student visa, but doing so poses challenges. The student has to gain admission in the first place. The student can flunk out by not showing up for classes. And at a real university, tuition dollars will go to pay for actual instruction, services, etc., which will be more expensive than a school like the University of Farmington. The University of Farmington thus made it easier for foreigners looking to stay in the US on student visas without being actual students than it would have been at a real university.

But I don't think that the University of Farmington made it so much easier to stay in the US as a fake student than it would be at a real university as to render University of Farmington such an overwhelming temptation as to constitute entrapment. Accordingly, if anyone were to raise an entrapment defense in a criminal prosecution (as opposed to a deportation hearing, where such a defense is not available), it should probably fail.

That is not to say that the sting was a good idea, all things considered. The fact that the vast majority of fake students at the fake University of Farmington came from one region in India suggests that while as individuals they may have been predisposed, the sting did not do a good job of luring pre-existing likely overstayers, unless one holds the unlikely view that potential overstayers are strongly concentrated in that population.

Moreover, there is a risk to genuine colleges and universities from the sting operation. That risk is greatest, of course, for the unfortunate University of Maine at Farmington, which might now see its foreign applications drop due to confusion over its genuineness. However, the risk extends to just about every US university and college.

US universities and colleges are world leaders and an important driver of our society and economy, attracting top talent from the world over. Many great students stay here after completing their studies. Many of those who return to their home countries after studying here take American values with them and end up as informal ambassadors for the US. Rational US policy would thus be very reluctant to do anything to undermine the appeal of US universities to foreign students. Unfortunately, US policy is not fully rational.

The Farmington sting apparently originated under the Obama administration in 2015 and was a bad idea then. It was (according to the Detroit News) "intensified one month into President Donald Trump's tenure as part of a broader crackdown." That was especially bad timing.

The Trump administration's hostility to foreigners and general awfulness has played a role in declining enrollments of foreign students. Stings like the University of Farmington will likely make matters worse. Indeed, even without the government setting up a fake university to lure fraudsters, genuine prospective students were already incentivized to look elsewhere. After all, from Trump University to the Corinthian Colleges so loved by Betsy DeVos, there are plenty of colleges and universities that will take students' money in exchange for no actual education. Adding to the burden of applying to and attending a US university the possibility that the university could end up being a trap set up by the government just gives genuine foreign students one more reason to prefer study in Canada or somewhere else instead of the US.