Earlier this week, the Massachusetts Institute of Technology (MIT) and the president and fellows of Harvard College (Harvard) filed a lawsuit against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE), a division of DHS. MIT and Harvard are seeking to stop DHS and ICE from going forward with ICE’s July 6 directive (the directive) which would require all international students with F-1 visas to leave the country if they are attending online classes only. The presiding judge will hold a hearing on this request at 3:00 p.m. EST on July 14 and is expected to issue a ruling shortly thereafter.

On March 9, in response to the coronavirus pandemic, ICE issued an exemption (the exemption) which allowed international students holding F-1 visas, whose curricula is all online, to stay in the country. The directive, which was issued on July 6 with no advance warning, rescinds the exemption.  The directive gives colleges and universities only until July 15 to submit an operational change plan to demonstrate whether fall semester courses will be entirely online, entirely on-campus, or a hybrid model. The directive also requires all F-1 visa holders who attend classes all online to depart the country. This closely-watched suit, if successful, could allow international students holding F-1 visas attending an all-online program to remain in the country.

This suit was filed in the U.S. District Court for Massachusetts and is pending before Judge Allison Burroughs, who also decided the affirmative action case concerning Harvard last fall. In seeking a temporary restraining order (TRO) and preliminary injunction enjoining the directive, the plaintiffs argue the following:

• DHS and ICE were arbitrary and capricious in issuing the directive and thus violated the Administrative Procedure Act (APA). The directive fails to consider the harm imposed upon universities and international students and fails to consider reliance on the prior exemption. In fact, ICE failed to state any rationale for issuing the directive. And ICE failed to employ a notice-and-comment period when issuing the directive and therefore violated this procedural requirement of the APA. Judge Burroughs noted that she will pay special attention to this piece of the plaintiffs’ argument in determining whether to issue the TRO and preliminary injunction.
• The directive, if implemented, will cause irreparable injury. The directive requires the plaintiffs to either hold some portion of their curricula in-person and risk the health and safety of the community or maintain an all-online semester and force all F-1 students to leave the country, hurting the educational experience of all students. For students, the directive causes irreparable harm by forcing international students holding F-1 visas into legal peril should they remain in the country and into a tenuous educational experience should they leave the country. Finally, the plaintiffs and students have incurred costs with current plans in place and any change could present substantial financial burdens.
• While in considering a TRO, the court must also weigh potential harm to both parties, here continuing to follow the exemption and not the directive will result in no harm to the government.
• Continued adherence to the exemption is in the public interest because a diverse student body contributes to a more vibrant and enriching educational experience for all. Additionally, honoring the exemption and allowing universities to maintain current plans to remain online without forcing their international students to leave the country will help to continue to mitigate the health risks of COVID-19.

The Importance and Potential Reverberation of an Injunction

The issuance of a TRO and a permanent injunction against the directive would affect universities and communities throughout the United States.

The plaintiffs’ argument, in this case, follows in the footsteps of the successful argument made in Department of Homeland Security v. Regents of the University of California. In that case, the Supreme Court accepted the argument of the University of California and Princeton University that DHS’s attempt to rescind the Deferred Action for Childhood Arrivals program (DACA) was arbitrary and capricious and therefore a violation of the APA.

In the present case, the plaintiffs argue that DHS failed to articulate any policy reason for rescission of the exemption. The failure to state any rationale for the directive, the plaintiffs assert, violates the APA just as the lack of any rationale for ending DACA violated the APA. This type of argument has become a familiar (and often successful) argument against agency actions taken during the Trump administration.

If a TRO and permanent injunction is ordered after the July 14 hearing, the immediate effect on universities and communities with large populations of F-1 visa holders would be dramatic. Currently, the directive gives universities until July 15 to update their operational plans to allow F-1 students to remain in the country. A TRO would temporarily pause this requirement and give universities more time to adapt and international students more time to plan. A permanent injunction would allow the exemption to continue and let universities adhere to their current fall semester plans without fear that international students holding F-1 visas would need to depart the country should curricula remain all online.

Audrey would like to thank law clerk James Miller for his contributions to this content. James Miller is a law student at the University of Tennessee and is not licensed to practice law.