ACE, Higher Education Groups File Brief in Support of Challenge to ICE Directive on International Students
July 13, 2020

ACE and 70 other higher education associations filed a brief this morning supporting the first of several legal challenges to the Trump administration’s new directive which, among other things, prohibits international students from remaining in the United States if their colleges hold courses online-only this fall as the country continues dealing with the COVID-19 pandemic.

Harvard University and MIT sued the Trump administration in U.S. District Court in Boston last week seeking to block the directive—issued July 6 by the Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS)—because it is arbitrary, capricious, and does not observe the requirements of the Administrative Procedures Act. The associations’ amicus brief focuses on the directive’s “enormous, immediate and unconsidered hardships” for international students, their classmates, institutions, and communities. Left unchecked, DHS’s departure from established administrative law norms and its failure “to take into account the chaos it will unleash” will severely harm higher education institutions and international students. They also are concerned about the threat it presents to the global standing and reputation of the United States as the global leader in international education.

Given the immediate, irreparable, and far-reaching harms the directive will cause without so much as a hint of countervailing benefit, the associations are requesting the court to grant preliminary injunctive relief immediately.

For international students whose colleges will have online-only programs this fall, the directive says they “must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status” or face consequences “including but not limited to the initiation of removal proceedings.” In addition, if an institution were to pivot to online instruction mid-semester in response to the pandemic, international students would be forced to leave the United States.

Colleges that plan to offer entirely online courses must inform DHS by July 15. In addition, institutions that will be offering solely in-person classes, delayed or shortened sessions, or a “hybrid plan” of in-person and online instruction must update their operational plans with the DHS Student and Exchange Visitor Program by Aug. 1. Institutions operating under a “hybrid plan” will need to reissue new I-20 forms for all international students by Aug. 4. (To read an ICE FAQ, click here.)

ACE President Ted Mitchell said in a statement last week that the directive is “horrifying” and deprives institutions and international students of the flexibility they need to respond to the differing circumstances and public health conditions at individual campuses.

The Council, along with 82 other associations, sent a letter July 10 to DHS urging that the directive be rescinded. DHS should instead grant a one-year waiver for international students who have a valid F-1 or M-1 visa and are enrolled or entering the United States to begin a full-time course of study in an academic program that is conducted online or may shift to remote instruction during the semester.

As CNN has reported, the Harvard/MIT lawsuit contends that ICE's decision not to provide an exemption for online-only courses puts them in an "untenable situation" of either proceeding with their plans to operate fully or largely online or attempt to provide in-person learning. President Trump has been putting pressure on both K-12 schools and colleges and universities to physically reopen this fall, which may explain at least in part the ICE directive.

The University of California system also has announced that it will sue, and a coalition of 18 attorneys general filed suit today in U.S. District Court in Massachusetts. ACE is likely to file similar briefs in these other cases.

ICE Directive Advocacy Resources

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