COVID-19 Summary: This is a lawsuit brought by several international students regarding the July 2020 release of ICE regulations which, in effect, meant that students on F-1 visas would risk deportation if their school shifted to online learning. On July 15, in a different lawsuit filed against the administration over the same July directive, plaintiffs met with counsel for the government and worked to get the regulations rescinded. In order to effectuate the rescission, ICE removed the guidance from its website and replaced it with the previous guidance, but the plaintiffs filed an amended complaint that sought a formal declaration that the July 6 directive was improperly issued and an order that the government administer the student visa program in accordance with the March guidance for the duration of the emergency. The court found that the students' claims were mooted by the rescission and granted the government's motion to dismiss on October 1, 2020.

---

Background
Generally speaking, F-1 visas (colloquially "student visas") can be granted to international students who attend American universities. However, regulations on the granting of these visas limit the amount of online or distance learning the student can engage in. According to these regulations, an international student can engage in only one such class or three credits of that class per semester. 8 C.F.R. § 214.2(f)(6)(i)(G).

The COVID-19 outbreak in early 2020 made this regulation untenable, as schools and universities had to shift to online learning systems. In response, defendant ICE issued an exemption on March 13, 2020, affirming that international students would be permitted to continue distance learning in the United States under their F-1 visas. The exemption would apply until the end of the emergency. However, on July 6, 2020, ICE issued a new directive stating that it would rescind that exemption. This directive would then mean that international students at schools that would still be fully online would have to either transfer to other schools that were at least partially in-person, go back to their countries voluntarily, or risk deportation. The directive also ordered schools that had gone fully online or had simply decided not to have classes to submit an "operational change plan" within nine days, and ordered schools that would have a hybrid system to certify each F-1 student to make sure that they were not taking entirely online courses.

The Lawsuit
This lawsuit was filed in the U.S. District Court for the Central District of California on July 10, 2020, four days after the directive was issued. Plaintiffs were seven foreign nationals attending University of California schools at the post-graduate level. They were represented by Public Counsel and private attorneys. Defendants were the U.S. Department of Homeland Security and the U.S. Immigration and Customs Enforcement (ICE). The plaintiffs claimed that the new directive violated the Administrative Procedure Act in four ways: 1) the directive was arbitrary and capricious in that it failed to consider reliance interests of F-1 and M-1 visa holders; 2) the directive was arbitrary and capricious in that it failed to offer a reasoned basis to justify the policy; 3) defendants did not engage in notice-and-comment rulemaking when coming up with the new policy; and 4) the directive violated the Fifth Amendment in that it stripped plaintiffs of their visas without due process of law. Plaintiffs sought injunctive relief in the form of a temporary restraining order as well as preliminary and permanent injunctions prohibiting the agencies from enforcing the new directive. Plaintiffs also requested that the court vacate and set aside the new directive, in addition to declaratory relief and attorney's fees and costs. The case was assigned to Judge Cormac J. Carney and Magistrate Judge Karen E. Scott.

The students filed an application for a temporary restraining order on July 14.

Meanwhile, in a different lawsuit filed against the administration over the same directive, President and Fellows of Harvard College, the parties conferred and the defendants agreed to rescind their implementation of the directive and to return to the March policy.

On July 16, the parties filed a joint stipulation that stated the government agreed to rescind the July directive by removing it from its website and replacing it with the March guidance, which mooted the students original claims. However, in an amendment to the students' application for a temporary restraining order, they noted that despite the removal, the government failed to issue a formal statement of rescission or explanation and failed to issue a statement confirming that the March guidance would remain in effect for the duration of the emergency. They sought an order directing the government to administer the student visa program in accordance with the March guidance for the duration of the emergency.

The government filed a motion to dismiss and opposition to the students' application for a temporary restraining order. On August 3, the court denied the students' application for a temporary restraining order because the rescission satisfied much of the relief demanded by plaintiffs. The court also denied the government's motion to dismiss, allowing the students to amend their complaint to clarify the relief they continued to seek.

The students filed an amended complaint on August 14. The complaint reiterated their demands from the amended application for a temporary restraining order. They sought a declaration that the July 6 directive was improperly issued in violation of the APA and the plaintiffs' due process rights and a directive that the government administer the student visa program in accordance with the March guidance for the duration of the emergency. The government filed a motion to dismiss on August 28.

The court found that the students' claims were moot and granted the government's motion to dismiss on October 1, 2020.

Jack Hibbard - 07/13/2020
Chandler Hart-McGonigle - 11/29/2020


compress summary