ICE and DHS agree to rescind July 6 directive on international students

Guidelines on international students will return to status quo established in March 13 guidance

The U.S. Immigration and Customs Enforcement (ICE) and Department of Homeland Security (DHS) “have agreed to rescind the July 6, 2020 policy directive” on international students with F-1 visas, U.S. District Judge Allison D. Burroughs said during the July 14 hearing on the lawsuit filed by MIT and Harvard.

The government will return to the status quo of its March 13 guidance, which permits international students with F-1 visas to stay in the U.S. while taking online courses. 

Burroughs said that the rescission of the guidelines “moots” the temporary restraining order and preliminary injunction motion requested in MIT and Harvard’s lawsuit and will “preclude the enforcement” of the July 6 directive and its FAQ “on a nationwide basis.”

Burroughs added that the lawsuit would remain open on her docket “pending further motion practice from the parties.”

President L. Rafael Reif wrote in a letter to the MIT community today that it is “deeply encouraging” that the lawsuit “has inspired so much reflection about and enthusiastic recognition of the vital role international students play in academic communities across the United States — and absolutely at MIT.”

Reif recognized the efforts of students who filed declarations and organized an amicus brief for the lawsuit, and thanked Vice President and General Counsel Mark DiVincenzo and Harvard President Lawrence Bacow ’72 for their contributions to the case.

Policy-making must be approached, “especially now, with more humanity, more decency — not less,” Reif wrote. He added that MIT stands ready “to protect our students from any further arbitrary policies.”

A reply brief filed by MIT and Harvard prior to the hearing states that the U.S. government’s July 13 opposition to granting a preliminary injunction “does not engage” with MIT and Harvard’s primary arguments and “relies on propositions that the Supreme Court has repeatedly rejected.” 

The brief cites the June 18 Department of Homeland Security v. Regents of the University of California decision, which declared the DHS’s rescission of the Deferred Action for Childhood Arrivals as “arbitrary and capricious” and unconstitutional.

The reply brief argues that MIT and Harvard “are likely to succeed on the merits” that the directive is similarly “arbitrary and capricious” and violates the APA’s notice-and-comment requirement, and because the two universities have standing to challenge the directive.

The brief writes that the government had cited its consideration of “some factors” prior to issuing the revised ICE guidelines July 6, but that “an agency must consider not only the benefits of its chosen policy, but also its costs.” Furthermore, the brief calls ICE's failure to explain their policy change from the previous March 13 guidance “fatal.”

The brief also writes that Harvard, MIT, and their students “face irreparable injury” if the directive is not suspended. The brief states that the government is currently enforcing the ICE directive “at airports and consulates across the world,” already turning away students who attend universities “that have made the considered decision to offer instruction online this fall.”

Furthermore, the brief suggests that the basis of ICE’s change in policy was “to ‘encourage schools to reopen,’ no matter the risk” rather than the reason written in the directive’s FAQ: “to ‘minimiz[e] the risk of transmission of COVID-19’.”

The brief goes on to argue that the directive “is a legislative rule” because it “‘binds private parties or the agency itself with the “force of law”’” with language that requires students and schools to depart the U.S. or complete operational change plans, respectively. Thus, the brief argues that the directive should be “promulgated subject to notice-and comment procedures” requiring that a proposed rule be published in the Federal Register and be open to comment by the public.

Finally, the brief writes that MIT and Harvard have standing “to sue on their students’ behalf,” referencing the government “halfheartedly” contesting this point. The government’s “tacit acknowledgement that MIT and Harvard have standing in their own right renders” its argument that the institutions cannot sue on their students’ behalf “irrelevant.”

The July 6 ICE guidelines did not permit international students taking a fully-online course load to remain in the U.S. and mandated that schools update Forms I-20 for each international student by Aug. 4.

MIT and Harvard first filed their lawsuit against ICE and DHS July 8. Amicus briefs were filed by universities, student governments, and the U.S. Chamber of Commerce. International students and administrators at MIT and Harvard also filed declarations as part of the lawsuit.

Additional lawsuits against DHS and ICE were filed July 13 by 17 states and 20 west coast universities.

Update 7/14/2020: The article was updated to include President L. Rafael Reif’s letter to the community.