Harvard and MIT filed a lawsuit on Wednesday that seeks to prevent the Trump administration from stripping foreign students of visas if their universities move exclusively to online classes amid the coronavirus pandemic.
The lawsuit comes after U.S. Immigration and Customs Enforcement (ICE) announced on Monday that international students whose courses move entirely online would be required to depart the country, rescinding a previous plan to grant exemptions to student visa holders.
The universities asked a federal court in Boston for a temporary restraining order and permanent injunction against the administration’s new policy.
Their lawsuit alleges that ICE’s decision appears designed to “force universities to reopen in-person classes,” thereby increasing the risk of exposure to the coronavirus while scrambling carefully laid plans to conduct courses online and upending foreign students’ lives.
“By threatening to force many F-1 students to withdraw from Harvard and MIT, Defendants have put both schools to an impossible choice: lose numerous students who bring immense benefits to the school or take steps to retain those students through in-person classes, even when those steps contradict each school’s judgment about how best to protect the health of the students, faculty, staff, and the entire university community,” the schools wrote in their complaint.
“The effect — and perhaps even the goal — is to create as much chaos for universities and international students as possible,” the lawsuit states.
The Department of Homeland Security, which oversees ICE, did not immediately respond to a request for comment.
In March, ICE had announced that international students in the U.S. would be given an exemption from the requirement that they attend in-person classes for the duration of the public health crisis. The agency reversed itself with no warning on Monday.
“The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States,” ICE said on Monday. “Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.”
The sudden reversal escalates President Trump’s crackdown on immigration and his pressure on schools to fully reopen in the fall, despite the worsening health crisis throughout the country.
Anam Rahman, an immigration attorney and adjunct law professor at Georgetown University, says that the administration’s escalating policy over the years has kept her clients and immigrants throughout the U.S. on edge.
“It’s an incredibly active administration,” said Rahman, a partner at the law firm Calderón Seguin. “They are using almost every way that they can to completely change the legal landscape of immigration laws, and we’re seeing an uptick in the days leading up to the election. It’s almost daily now that we have a reversal of precedent, or a complete change in policy, that leave all of us scrambling. And not unlike this recent directive, it comes without any notice. None of us saw this coming. We find out about it like everyone else.”
The announcement threw more than a million international students with U.S. visas into uncertainty with the beginning of the school year just weeks away. If the new rule change is allowed to go into effect, every student visa holder in the country attending a school that’s entirely online will either have to leave the U.S. or transfer to an institution holding in-person classes.
The lawsuit alleges several violations of a federal law known as the Administrative Procedure Act (APA), which concerns how much decisionmaking power resides with federal agencies. At issue is whether ICE’s new policy is legally justified or if it was “arbitrary and capricious,” and thus illegal under the act.
The lawsuit cites the Supreme Court’s recent decisions blocking the administration’s plan to end the Obama-era Deferred Action for Childhood Arrivals program and to add a citizenship question to this year’s census. In both of those cases, a majority of the justices found that the government did not provide adequate justification for the policy decisions as required under the APA.
In the announcement on Monday, ICE did not provide any rationale for its reversal on student visas.
“There has to be rational decisionmaking, nonarbitrary and capricious rules, and notice and the opportunity for comments from the public,” said Brian Wolfman, a law professor at Georgetown University and an expert in administrative law. “That’s the standard way that you put in substantive rules like this one that came down two days ago without notice to anyone, without comment periods and without reasoned decision making.”
“It’s very rare, and when the government engages in this kind of abrupt rule change without notice absent an emergency, that’s unlawful,” Wolfman added.
That’s what Harvard and MIT argued to the court on Wednesday in pushing for a federal judge to block the change from going into effect.
“ICE’s stunning reversal of its own decision failed to consider numerous weighty interests and is itself therefore arbitrary and capricious and an abuse of discretion,” they said in their motion.
It’s still unclear how the administration will respond in court. The first indication may come on Thursday, when a federal judge holds a preliminary status conference in the case.
Updated at 4:48 p.m.