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Updated: Feb 05, 2019 11:57 IST

The US has said the Indians arrested and prosecuted for getting enrolled at a fake university run by undercover government agents “were aware they were committing a crime”, disputing India’s suggestion the students “may have been duped” and were unwitting victims of “entrapment”.

Some Indians have already left for home, but many remained in US custody, faced with deportation on account of their enrollment at the University of Farmington in Michigan state. It was a fake educational institution run as a sting operation to expose a pay-to-stay immigration fraud. Eight Indian origin persons have been criminally charged as recruiters working on commission.

India has responded strongly to the arrest of the students and suggested in a demarche — an official diplomatic note — to the US embassy in New Delhi that the Indian students “may have been duped into enrolling in the University’” and demanded that they should be treated differently from the alleged recruiters.

The United States disagrees on the question of culpability of the students.

“All participants in this scheme knew that the University of Farmington had no instructors or classes (neither online nor in-person) and were aware they were committing a crime in an attempt to fraudulently remain in the United States,” a state department spokesperson said in a statement Monday disputing India’s position that the students might have been unwitting victims of the scam, and not a participant.

“It is unfortunate that some student recruiters and individuals seek to use the international student program (of the United States) to foster illegal immigration status in the United States,” added the spokesperson.

The statement came amidst rising concerns in India about the fate of the students, estimated to be around 600, with reports suggesting that some of them were released, pending court proceedings, with electronic monitors strapped around their anklet to prevent them from fleeing the country, a common US law enforcement practice regarding individuals regarded as flight-risk.

The state department was echoing US prosecutors who had alleged in indictments unsealed last week that the students knew exactly what they were getting into.

“Each of the foreign citizens who ‘enrolled’ and made ‘tuition’ payments to the University knew that they would not attend any actual classes, earn credits, or make academic progress toward an actual degree in a particular field of study- a “pay to stay’’ scheme,” they had said in the indictments.

“Rather, their intent was to fraudulently maintain their student visa status and to obtain work authorization under the CPT (curricular practical training, a programme that grants temporary work authorization to international students as part of their course work).”

Indian officials reacted with irritation to this pushback from the US state department in a case that they view as a clear example of entrapment, offering an inducement to someone to commit a crime and then charge them with the crime, which is not acceptable in India’s judicial system.

It is valid investigative and prosecutorial tool and accepted as evidence in US courts, but it has come under increasing scrutiny in recently for its use rampantly by law enforcement agencies in preventing crimes, and, allegedly notch successes against home-grown terrorism.

The New York Times recorded and commented on the trend in an analysis in 2016. “Undercover operations, once seen as a last resort, are now used in about two of every three prosecutions involving people suspected of supporting the Islamic State, a sharp rise in the span of just two years,” it said.

Suspects were typically identified by agents on the basis of first reports of radicalisation, remarks and actions signifying intent but not real-time plans, and who were then pushed to the finishing line by undercover agents who provided everything from more contacts to blueprints to ammunition.

But Farmington students had nothing to with terrorism. They could also have been victims of over-eager investigators, some indicated.

“Do you really think these students would have been in this situation if the fake university had not been around,” asked an official in New Delhi, who requested not to be identified so as to speak freely about an issue that has agitated the Indian government, especially in view of upcoming general elections.

Most of the impacted students are from Andhra Pradesh and Telangana. The first is governed by Telugu Desam Party, which is a part of an emerging opposition alliance hoping to topple the government of Prime Minister Narendra Modi.

And the second state, Telangana is ruled by a party whose leader K Chandrashekar Rao has been equally critical of both the ruling BJP and the Congress, which makes him a prospective alliance partner should the current ruling dispensation fall short of a majority which any pollsters are forecasting it will.

“It’s all about politics and the elections,” said someone familiar with the discussions, to explain partly the urgency shown by the Indian government.

A response was awaited from the US Immigration and Customs Enforcement (ICE), which is tasked with detecting and deporting undocumented foreigners, to questions about the electronic anklets and the total number of Indians taken into custody and released.

But here is how the US justice department describes entrapment, which has dominated conversations in the Indian government, among US immigration attorneys and Indian American community leaders trying to find a way out for these students.

“Entrapment is a complete defense to a criminal charge, on the theory that ‘Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute’,” according to a post on the US justice department website citing judicial rulings.

“A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct.”