Universities Ask Court To Block ICE's Directive Ordering The Removal Of Foreign Students Engaged In Remote Learning

from the don't-be-a-dick,-ICE dept

MIT and Harvard are suing to have ICE’s latest attack on (legal) foreign visitors to this country blocked. A few days ago, ICE retracted an exception it had previously issued in response to the COVID pandemic. This exemption was issued back in March to allow students here on visas to continue their studies, even if all of their classes were now online.

It’s now July and the COVID crisis isn’t over. In fact, it appears to be getting worse. The US is expressing its exceptionalism by dominating the world in the number of new cases daily. Schools are prepping for the fall semester and the reality of the situation is that moving back to normal classes, rather than sticking with remote learning, just isn’t possible at this point in time.

That reality makes no difference to ICE. It has decided the crisis is over and any students here legally should exit the country if they can’t take classes in person. MIT and Harvard have no intention of moving back to physical classes when school commences in a couple of months. And the schools don’t feel their foreign students should be punished for not attending classes that aren’t being held or putting their health at risk unnecessarily just because the administration has unilaterally declared it safe to return to school.

Here’s how the schools describe the current situation in their lawsuit [PDF]:

Medical evidence and official governmental guidance indicate that indoor gatherings of any size are of particular concern. Densely populated classrooms that are attendant with on-campus instruction have the potential to turn into “super-spreader” situations that endanger the health of not only the university community, but also those in the surrounding areas and anyone else with whom community members may come into contact. Indeed, in recognition of the exceptional risk of indoor congregation, Harvard has limited undergraduate on-campus residency to 40% of capacity for the upcoming term. Similarly, MIT has limited undergraduate on-campus residency for the fall to members of the rising senior class and a limited number of additional students.

Even if it were possible to simply ignore the ramifications of bringing students back on campus to partake in “super-spreader” classes, ICE is demanding schools jump through a series of logistical hoops to ensure students here on visas can continue to be enrolled and stay in the country. The first demand is that physical classes must compose a certain percentage of the total curriculum. Then it gets even more difficult. Schools will be required to do the following for each and every foreign student enrolled.

[ICE] announced that universities that have adopted a hybrid model—a mixture of online and in-person classes—will have to certify for each student on an F1 visa that the “program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.” To do so, universities on a hybrid model will be required to issue a new Form I-20 for each of these students—in some cases, numbering in the thousands per university—by August 4, 2020.

Even if ICE doesn’t care about foreigners, you’d think it might have some consideration for the Americans running these schools. But it appears it doesn’t. The clawback of the exemption means schools must start putting more people on campus — including staff and administration — even if it means increasing the risk of virus transmission. The lawsuit points out the original exemption was supposed to be in place “for the duration of the [COVID] emergency.” Without prior notice or request for comment, ICE has decided the emergency is over… at least for foreign students.

This unjustified move will do an amazing amount of damage to foreign students.

The July 6 Directive will harm continuing F-1 students immensely. For many students affected by the July 6 Directive, it is infeasible or impossible to attempt to transfer to a program that offers in-person curriculum and therefore allows them to pursue their education from within the United States on F-1 visa status. These students will therefore likely be forced to leave the country. The consequences of this sudden displacement are both financial and personal. In addition to incurring substantial expenses to make international travel arrangements in the midst of a pandemic that has significantly reduced the availability of air travel, as well as losing their homes—in many instances at great cost associated with broken leases—some students will be forced to upend their young children’s lives by returning to their home countries, while others’ families will be split apart in order to comply with the July 6 Directive.

[…]

For F-1 students enrolled in a fully online program, under the July 6 Directive those students cannot lawfully remain in the United States to continue their studies. Unless this Court intervenes, these students will be required to make precipitous arrangements to return to their home countries amid a worldwide pandemic that has caused nations to close their borders and has considerably limited international travel options. They must abandon housing arrangements they have made, breach leases, pay exorbitant air fares, and risk COVID-19 infection on transoceanic flights. And if their departure is not timely, they risk detention by immigration authorities and formal removal from the country that may bar their return to the United States for ten years.

The schools are asking the court to strike down the directive. They point out the guidance violates US administrative law, which prohibits “arbitrary, capricious” agency actions. Directives that fail to consider “important aspects of the problem” are the very definition of these terms. The suit also notes that directives like these are supposed to be preceded with a “notice and comment” period, which obviously did not happen here. The plaintiffs are asking the court to permanently block the new policy and declare it unlawful. Hopefully, the court will see ICE’s move for what it is: an abuse of its power to inflict misery on foreigners — even those who are here legally.

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Companies: harvard, mit

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Comments on “Universities Ask Court To Block ICE's Directive Ordering The Removal Of Foreign Students Engaged In Remote Learning”

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37 Comments
This comment has been deemed insightful by the community.
That One Guy (profile) says:

ICE: 'There is no low we will not sink to'

For many students affected by the July 6 Directive, it is infeasible or impossible to attempt to transfer to a program that offers in-person curriculum and therefore allows them to pursue their education from within the United States on F-1 visa status. These students will therefore likely be forced to leave the country.

Pretty sure that whoever wrote that might have stumbled upon the super-secret classified goal of ICE’s latest ‘fuck foreigners’ plan, where the students either literally risk their lives and the lives of those around them or (even better from ICE’s PoV) leave the country, whether because the students refuse to risk their lives or because the schools simply cannot comply with the new demands in place in time.

I only hope that the judge involved will see this as the spitefully and downright sadistic move that it is and squash it entirely, ideally with a scathing ruling pointing out how utterly vile ICE is for pulling such a stunt.

David says:

Small detail missing:

Hopefully, the court will see ICE’s move for what it is: an abuse of its power to inflict misery on foreigners — even those who are here legally.

Courts are not there to curb abuses of power, they are there for implementing the law, including those cases that are abuses of power. Addressing abuses of power is the duty of lawmakers, not courts.

The only court reasonably able to deal with conflicts between the lawmakers’ output and the Constitution as overarcing law is the Supreme Court, and Supreme Court appointments are no longer governed by competency but by the expectation of partisan loyalty.

So don’t expect too much here. The U.S. is constituted in a manner where various checks and balances are in place, but those checks and balances were designed hundreds of years ago when the depravity and corruption of future politicians and the mental and legal ability of the populace to keep them in check were big unknowns and some of the extremes were simply unfathomable.

David says:

Re: Re: Small detail missing:

Lower courts can curb abuses of power if they’re arguably against law or statute.

Abuse of power implies you have the power in the first place, namely the law behind you. But here we are not talking about illegal actions (namely those in direct conflict with law as passed by lawmakers) but unconstitutional ones. That requires higher courts to sort out.

This comment has been deemed insightful by the community.
Daydream says:

Serious question; has ICE ever done anything good? Prevented a terrorist attack, or some damage to the economy, or done something to improve national security or international relations or who-knows-what?
Or are they really just a group that exists to cause harm?

This really is a serious question.

Upstream (profile) says:

Re: Re:

That is a legitimate question to ask, and one that should constantly be asked, about all government agencies and programs. While the answer for most will not be as lopsided as the answer for some (looking at you ICE, CBP, IRS, ATF and too many more to list), an unbiased harm / cost / benefit analysis will quickly reveal that most government agencies and programs should be abolished, or at the very least seriously overhauled. Putting lipstick on pigs does not count, here. Of course, hundreds of thousands of useless petty bureaucrats may cause some pushback.

Scary Devil Monastery (profile) says:

Re: Re:

"Or are they really just a group that exists to cause harm? "

Well, it all depends on whether you consider the existence of immigrants and foreigners within US borders "harmful". The data so far suggests, rather heavily, that immigrants, illegal or not, do not pose much danger. Backed by a lot of evidence that without immigrants doing much of the grunt labor a lot of local state economies would bellyup.

Think about it. Drug smuggling? That’s the DEA. Possibly the FBI. Vagrancy? Local or state police.

The ICE mainly fulfills the duty you’d expect of an army in times of war – standing around at a border and pointing guns across it, or evicting people who have come across.

They are, however, indispensible because a lot of americans today consider "ausländer raus" to be an indispensible part of their national identity and have voted accordingly.

Anon says:

Missing the point

The real motive is that tRump wants the universities (and schools and businesses) to open ASAP so the country looks like business as usual, not a crisis… no matter the cost, make it look normal for Election Day. It’s a matter of money – foreign students pay huge bucks, often much more than US students, and represent a lot of income for universities. So foreign students are hostages to coerce university opening.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Missing the point

Nah. He’s just a bigot. Since his wall was a laughable failure, the world is laughing at his obsession with China that stopped him from taking effective action against importing COVID from European countries, his attack on the DREAM act has been thrown out and he doesn’t have time to implement any new anti-immigrant policy before the election, he’s turned his attention to the low hanging fruit of legal immigrants.

This comment has been deemed insightful by the community.
Anon says:

Re: Re: Missing the point

No, even today he’s trying to twist the CDC’s arm to rewrite school opening "guidelines" so schools will open as normal in Sept. it’s all about "no lockdowns, business as usual" for the election. The fact that he’s screwing over foreign students, many of them non-white, is a collateral damage bonus. Colleges know that students who have to leave will likely not be back. They need that money. (A side note, US student applications to universities were down, and that was before Covid and a severe lack of income to attend university also became a factor. Foreign students are needed more than ever to fill the gap and the university coffers.)

This comment has been deemed insightful by the community.
JoeCool (profile) says:

Re: Re:

The problem with that is that most of these students don’t want to be Americans. They have lucrative careers waiting at home… if they get that degree. I knew quite a few F1 students at the University of Houston when I got my degree, and an American degree is the key to a much better life back home where they want to be, just in a better social class. Or maybe they even plan to make their home better using their degree – I knew a girl who was getting a civil engineering degree with an eye toward improving the infrastructure of her home once returning to India.

Anonymous Coward says:

Re: Re: Re: Re:

I’m in software and a good portion of students in those programs are looking to work in the US and the US software economy

It’s understandable, given the obscene pay-difference between Silicon Valley and, say, India (or even Toronto). It is, however, illegal for an F-1 visa holder. To get a student visa, one must prove that one intends to leave the USA when one’s studies are complete.

Anonymous Coward says:

Re: Re: Re:2 Re:

But they legally can apply for an OPT and stay an extra year working within their major and then often move over to the H1-B visa track because they are useful for the US company at that point.

It’s almost as if you don’t work in the tech industry and are just citing law to justify your xenophobia. Just because its the law doesn’t mean there aren’t other laws and options… and definitely doesn’t make it how the business world works.

Anonymous Coward says:

Re: Re: Re:3 Re:

just citing law to justify your xenophobia

Huh? What part of the messages makes you think "xenophobia"? I’ve seen lots of references to F-1 requiring non-immigration intent, and didn’t see any exceptions like "OPT" mentioned on those pages. For a country of immigrants, US immigration law looks damn confusing.

Anonymous Coward says:

Re: Re: Re:5 Re:

You appear to be implying that the only way an international student is able to work in the US following their degree is illegally.

I don’t see how. The statement was that they had to leave. It doesn’t say that this should be the law, or that anything should prevent them from maybe coming back later. The whole idea of preventing prospective workers from immigrating seems like xenophobic bullshit (and allowing immigration, but only via difficult-to-understand processes, may be an attempt to whitewash this).

If there’s a way for them to adjust their visa status without going home, good. I’ve talked to immigrants to other countries that have had to take bullshit day or overnight trips outside the country, to "reset a clock" on immigration; or, alternately, some who cannot take short trips outside whatever country they’re immigrating to.

PaulT (profile) says:

Re: Re: Re:2 Re:

"To get a student visa, one must prove that one intends to leave the USA when one’s studies are complete."

Yes. Then, armed with a list of personal contacts and freshly minted degree from an American university, they have a good chance of being legally hired with a different visa, or other program that allows them to legally stay in the country.

Scary Devil Monastery (profile) says:

Re: Re: Brain Drain

"This story is about one agency, which has always been dedicated to bigotry."

Backed by the republican party which has been dedicated to bigotry ever since they chose to make the old guard southern racist democrats their core constituency,

In cooperation with police departments so rife with systemic racism black young people grow up with The Talk where white kids grow up with fairytales.

…and supported by a massive bureaucracy and body of laws still riddled with racist bias.

No, it’s far from all americans. But 30-50% of the US citizenry is bad enough.

This comment has been deemed insightful by the community.
Anon says:

Re: Brain Drain

Apparently, every time the USA does stuff like this, or restricts H1B visas, or restricts (legal) immigration – it makes Canada look better and better. We get better (and appreciative) foreign students and immigrants. Some businesses are looking at setting up branch offices in Canada for things like software and engineering to take advantage of easier visa policies. And immigrate here, become a Canadian citizen in a few years, and you should have no problem going in and out of the USA.

Anonymous Coward says:

Re:

But think about it, every visiting student doesn’t have to stay in the US for the US to benefit. They may go home and spread our ideas and the experience of their time here which can help spread the ideas and philosophies of democracy. And some do stay and become a part of our economy and culture even if most do not.

Hopefully, if a student returns home, they make friends here and continue to share ideas with them which helps our researchers, science, and culture in the long run.

Right now things are really screwed up and the message being sent is "Stay Away!" So more students are passing on the American experience and are going to schools in places like China and Russia, learning their ways, making friends and contacts there. How does that help America?

David says:

Re: Re:

But think about it, every visiting student doesn’t have to stay in the US for the US to benefit. They may go home and spread our ideas and the experience of their time here

Why would you want foreigners to return home with a message of raging egoism of the "us first" kind, hating non-locals with a vengeance and considering them expendable and exploitable garbage?

You’d rather want foreigners to be open-minded and welcoming for the sake of U.S. citizens. That’s nothing they are going to learn in the U.S. right now.

Scary Devil Monastery (profile) says:

Re: Re:

"So more students are passing on the American experience and are going to schools in places like China and Russia, learning their ways, making friends and contacts there. How does that help America?"

Well, according to a significant proportion of the US citizenry the "bleeding-heart liberal commie pinko leftists, n_ggers, chinks, gooks, spics and wops" all staying the hell out of the US is a benefit in itself.

The ideas and philosophy of democracy aren’t items on the US export list. Not anymore. If anything the last decade or so of US well-documented practical politics has been more of a show-and-tell in "Don’t do this".
The US going full soviet and closing the borders, settling for a state of paranoid isolationism isn’t an unlikely development.

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restless94110 (profile) says:

Legal?

"MIT and Harvard are suing to have ICE’s latest attack on (legal) foreign visitors to this country blocked."

The only thing that makes these " foreign visitors" legal is their physical attendance at university. If the university does not require physical attendance and instead offers on-line classes? The "foreign visitors" now can return to their countries and attend the university there.

Furthermore, they are not legal unless they physically attend–which is the only reason they needed to be legal in the first place. No need to physically attend? No need to physically be in the United States.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Legal?

ICE is reverting back to the pre-COVID rules, which are based on exactly that logic. The problem is that COVID is not gone. Many of the students want to attend in-person classes, but can’t because the universities are protecting people by holding them only online. Maybe they could transfer to a less cautious American university, at the risk of catching and/or spreading disease. But whom does it benefit for ICE to force that? It would seem sensible to give a bit of leniency here.

Anonymous Coward says:

I was originally guessing the White House pushed for ICE to do this because it has one of two effects that they see as positive: it either forces universities to open back up to allow their foreign students to stay, or it forces a lot of foreigners to leave.

I hadn’t previously seen how much administrative work these rules are also forcing. For many schools who have administrators just trying to figure out how to get school back in session for the fall, this must look like ICE is just telling them to tell their F-1 students to get out. It looks more like an anti-foreigner push rather than trying to force schools to re-open.

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