Arguments over a bid to bar international students from staying in the country for online courses are being heard by a judge at the John Joseph Moakley U.S. Courthouse in Boston. (Photo: John Hawkinson)

Immigration and Customs Enforcement responded Monday to a lawsuit brought by Harvard and the Massachusetts Institute of Technology seeking an emergency court order from Judge Allison D. Burroughs to allow foreign students to remain in the U.S. while taking online-only classes. ICE argued it has a rationale for its proposed rule, announced July 6; that it is exempt from a legal notice-and-comment requirement; and that the fact that it did not return wholesale to its pre-coronavirus rules means it has adequately considered the impact on the schools.

Following on the heels of Harvard and MIT’s lawsuit, filed Wednesday, eight other lawsuits were filed across the country: five on Thursday and Friday and three Monday. But the Harvard/MIT suit is far ahead, having had two scheduling hearings and with a written response from ICE now in hand and oral argument set for 3 p.m. Tuesday. It is the case most likely to see action by a judge before Wednesday’s deadline for schools to file “operational change plans” with ICE.

By contrast, several of the suits nationwide were not assigned to a judge until mid-morning Monday, and only two others – one by Johns Hopkins University in the District of Columbia, and one by the University of California in the Northern District of California – have set hearings: Wednesday morning for Hopkins and July 24 for the university. One of the other suits – filed by Massachusetts Attorney General Maura Healey on behalf of Massachusetts, Rhode Island, the District of Columbia and 15 other states – is before the same judge as Harvard and MIT’s suit, and may be combined with it in some fashion.

Hundreds of organizations combined forces to file “friend of the court” briefs to share their legal arguments before a noon deadline. The organizations ranged from consortia of higher education institutions to autoworkers unions to cities and towns (including Cambridge, Somerville and Boston) to college students to technology companies (including Google, Twitter and Microsoft). Thirteen briefs were filed, all in support of Harvard and MIT. They and other case documents are available through CourtListener and Harvard’s website.

ICE arguments

Just minutes past its noon deadline ICE filed a 23-page response to Harvard and MIT’s emergency request. The schools have to satisfy four factors to get a court order, and it argued they fail to meet all four. The filing was signed by Assistant U.S. Attorney Rayford A. Farquhar, still the sole Department of Justice attorney to speak to a judge in any of the eight cases (at 11:27 a.m., another DOJ lawyer filed an appearance in the Johns Hopkins case in D.C. district court, but nothing more). Farquhar’s was littered with weird font problems and other low-key errors.

“Petitioners’ request subverts the deference afforded administrative agencies in complex and interrelated fields like immigration enforcement, which requires coordination between multiple federal agencies including the U.S. Department of State and several components within the U.S. Department of Homeland Security, including U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and ICE,” the government filing began.

On the first factor for an injunction, likelihood of success on the merits, ICE split its argument three parts:

bullet-gray-smallThe agency said its decisions were not arbitrary and capricious, because it considered the impact on schools. “If ICE had not considered the schools impacted by its decision, or the vast differences among them regarding plans for reopening in the fall, perhaps the agency would have completely rescinded its March 9, 2020, broadcast message and reverted back to enforcement of the black letter of the regulations, returning to business as usual as before the Covid-19 emergency,” it argued. “To have done so would have severely limited the options for schools.”

bullet-gray-smallThe agency also said its decision was not arbitrary and capricious because it was supported by a reasoned basis and justification, namely the July 6 announcement that led to the litigation. “It is not necessary that petitioners agree” for the ICE decision to be justified, it said.

bullet-gray-small“The July policy is exempt from the APA’s notice and comment requirements,” ICE said, referring to the federal Administrative Procedure Act – because it was not an actual rule, just advance notice of a future rule. Furthermore, the March announcement that relaxed visa rules for the coronavirus emergency did not undergo notice and comment, it said.

On the second factor for an injunction, ICE argued that the schools had not suffered irreparable harm: “Petitioners do not explain how physical presence in the United States is required for one to participate in a 100 percent online learning experience.”

But the schools explained exactly that on Wednesday, saying “While students could participate in that program from outside the United States, they may have their research and learning inhibited by time zone variations, unavailable, unreliable or state-managed Internet connections, and other barriers to online learning. Still other students simply cannot participate in online learning in their home countries. For example, some Harvard and MIT students are from Syria, where civil war and an ongoing humanitarian crisis make Internet access and study all but impossible.”

On the last two factors, the balance of equities and the public interest, ICE says they are one and the same, and that “Any order that enjoins a governmental entity from enforcing actions taken pursuant to statutes enacted by the duly elected representatives of the people constitutes an irreparable injury that weighs heavily against the entry of injunctive relief.”

Of course, if that argument held true, no emergency injunction against the government would ever issue. And they happen almost every day under the Trump administration.

ICE also tried to justify the new rule based on vague “national security” concerns that would make online attendance by foreign students a problem.

Other cases

The other eight cases, which sue the Department of Homeland Security, which is ICE’s parent agency, and ICE itself, are identified here by their first defendant only. Some cases have not yet sought a Temporary Restraining Order:

California v. DHS: Filed Thursday night, assigned a judge on Friday, no TRO motion, calendared for October.

Johns Hopkins v. DHS: Filed Friday afternoon, assigned a judge Monday morning. TRO motion filed Monday morning. Government’s response is due 4 p.m. Thursday, and a video hearing is set for 11:30 a.m. Wednesday.

Z.W. v. DHS: Filed Friday afternoon by seven graduate students from the University of California, Irvine, and Los Angeles, and University of Southern California. This is the only case in which students are plaintiffs. One of the best-written complaints. No TRO motion yet; no schedule.

Washington v. DHS: Filed Friday, assigned a judge Monday morning. Filed a TRO motion Monday. Claims the government exceeded its authority by taking an “ultra vires” action, or one without proper legal authority. No schedule.

Regents of the University of California v. DHS: Seeks a TRO. Filed Friday; assigned a judge Monday afternoon; briefing this week and next, with a hearing July 24.

New York v. DHS: Filed Monday; assigned a judge; no schedule.

Massachusetts v. DHS: Filed Monday; marked as related to the Harvard/MIT case and assigned to the same judge.

University of Oregon v. DHS: Filed Monday afternoon, and joined by 19 other universities including Caltech, USC and Stanford. Argues the July ICE order is “pretextual.”

This reporter has been trying to keep up with updates in these nine cases from second to second. Follow along at twitter.com/johnhawkinson.

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