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.