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Case Name Guilford College v. Nielsen IM-NC-0005
Docket / Court 1:18-cv-00891 ( M.D. N.C. )
State/Territory North Carolina
Case Type(s) Immigration and/or the Border
Case Summary
On August 9, 2018, the United States Citizenship and Immigration Services (USCIS) changed its longstanding policy for determining unlawful presence of students and exchange visitors. Under the old policy, students and exchange visitors were deemed unlawfully present only after an official ... read more >
On August 9, 2018, the United States Citizenship and Immigration Services (USCIS) changed its longstanding policy for determining unlawful presence of students and exchange visitors. Under the old policy, students and exchange visitors were deemed unlawfully present only after an official determination. However, the new policy deemed students as unlawfully present immediately after any unauthorized activity. The unauthorized activity could be as minor as a failure to report a change of address.

On October 23, 2018, Guilford College and other universities filed suit in U.S. District Court for the Middle District of North Carolina against USCIS and the Department of Homeland Security (DHS) under the Administrative Procedure Act (APA). Plaintiffs were represented by private counsel including Mayer Brown. Plaintiffs alleged that the defendants failed to provide notice and comment and comply with other requirements of the APA. Further, the new policy allegedly imposed three- and ten-year bars on individuals without notice or opportunity to cure and thus violated the protections guaranteed by the due process clause. Finally, plaintiffs alleged the new policy violated provisions of the Immigration and Nationality Act (INA).

On December 14, 2018, plaintiffs filed their first amended complaint. The plaintiffs also filed motions for a preliminary injunction and partial summary judgement on some of their claims involving the APA and the INA. On January 10, 2019, the government filed a motion to dismiss for lack of jurisdiction.

On May 3, 2019, the court agreed with plaintiffs and issued a nationwide preliminary injunction against the new policy, noting the APA directed courts to "set aside agency action" found unlawful. However, it denied the plaintiffs’ motion for partial summary judgment without prejudice because the parties failed to file the relevant administrative record.

The plaintiffs again filed a motion for partial summary judgment in late May, 2019. At the same time, the defendants filed a motion for summary judgment, claiming that the plaintiffs lacked standing and that the new policy was exempt from notice and comment requirements of the APA. On July 3, 2019, the judge denied both motions for summary judgement without prejudice, again stating that the parties failed to provide a sufficient administrative record. The parties subsequently renewed their summary judgment motions.

On February 6, 2020, the Court granted the plaintiffs’ motion for partial summary judgment on two grounds. First, Judge Biggs found that the new rule was subject to notice and comment rulemaking under the APA that had not taken place. Second, Judge Biggs found that the rule conflicted with the INA's plain text because the INA defined "unlawful presence" to mean more than mere participation in unauthorized activity. The Court remedied this violation by entering a nationwide injunction against the policy. 389 F. Supp. 3d 377.

The government appealed the decision and injunction to the Fourth Circuit on April 3, 2020. However, on August 3, 2020, the government voluntarily dismissed that appeal, leaving the underlying injunction in place. It is unclear why the government chose to drop the appeal.

Bogyung Lim - 01/28/2020
John Duffield - 06/15/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Procedural Due Process
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Immigration/Border
Constitutional rights
Status/Classification
Temporary visitors
Undocumented immigrants - rights and duties
Visas - criteria
Visas - procedures
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Ex Parte Young (Federal) or Bivens
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) U.S. Department of Homeland Security
Plaintiff Description Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement Voluntary Dismissal
Order Duration 2020 - n/a
Filed 10/23/2018
Case Closing Year 2020
Case Ongoing No
Additional Resources
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Court Docket(s)
M.D. N.C.
07/11/2021
1:18-cv-00891
IM-NC-0005-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
M.D. N.C.
10/23/2018
Complaint [ECF# 1]
IM-NC-0005-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
12/14/2018
First Amended Complaint [ECF# 14]
IM-NC-0005-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
05/03/2019
Memorandum Opinion and Order [ECF# 45] (389 F.Supp.3d 377)
IM-NC-0005-0003.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
05/03/2019
Order [ECF# 46]
IM-NC-0005-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
07/03/2019
Order [ECF# 56]
IM-NC-0005-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
07/12/2019
Order [ECF# 59]
IM-NC-0005-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
07/22/2019
Memorandum of Law in Support of Defendants' Motion for Summary Judgment [ECF# 63]
IM-NC-0005-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
02/06/2020
Memorandum Opinion and Order [ECF# 69] (2020 WL 586672)
IM-NC-0005-0008.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Biggs, Loretta Copeland (M.D. N.C.) show/hide docs
IM-NC-0005-0003 | IM-NC-0005-0004 | IM-NC-0005-0005 | IM-NC-0005-0007 | IM-NC-0005-0008 | IM-NC-0005-9000
Peake, Joi Elizabeth (State Trial Court, M.D. N.C.) [Magistrate] show/hide docs
IM-NC-0005-9000
Plaintiff's Lawyers Hughes, Paul W. (District of Columbia) show/hide docs
IM-NC-0005-0001 | IM-NC-0005-0002 | IM-NC-0005-9000
Kimberly, Michael B. (District of Columbia) show/hide docs
IM-NC-0005-0001 | IM-NC-0005-0002 | IM-NC-0005-9000
Klasko, H. Ronald (Pennsylvania) show/hide docs
IM-NC-0005-0001 | IM-NC-0005-0002
Lyons-Berg, Andrew A. (District of Columbia) show/hide docs
IM-NC-0005-0002
Menees, Cory S. (North Carolina) show/hide docs
IM-NC-0005-0001 | IM-NC-0005-0002 | IM-NC-0005-9000
Routh, Jennifer B. (District of Columbia) show/hide docs
IM-NC-0005-9000
Rutter, Jessica (District of Columbia) show/hide docs
IM-NC-0005-0002
Strom, David J. (District of Columbia) show/hide docs
IM-NC-0005-0002
Defendant's Lawyers Girdharry, Glenn M. (District of Columbia) show/hide docs
IM-NC-0005-0006
Hunt, Joseph H. (District of Columbia) show/hide docs
IM-NC-0005-0006
Peachey, William Charles (District of Columbia) show/hide docs
IM-NC-0005-0006
Press, Joshua S. (District of Columbia) show/hide docs
IM-NC-0005-0006 | IM-NC-0005-9000
Other Lawyers Atteberry, Jeffrey A. (California) show/hide docs
IM-NC-0005-9000
Babha, Ishan K. (District of Columbia) show/hide docs
IM-NC-0005-9000
Perrelli, Thomas J. (District of Columbia) show/hide docs
IM-NC-0005-9000
Speas, Edwin M. Jr. (North Carolina) show/hide docs
IM-NC-0005-9000

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