The following thread is a summary and comments regarding the DHS’ opposition to a temporary restraining order in the Harvard v. DHS suit. Harvard is challenging the new policy to bar F-1s from the US if their schools are all online during the pandemic. 1

DHS starts out with a “how dare they” defiant approach. “Petitioners ask this court to rewrite the black-letter requirements of the law and bind the enforcement authority of the federal government, perversely as a consequence of the leniency recently exercised” by ICE. 2

The heart of their argument is that Harvard disagrees with ICE’s exercise of discretion, but such discretion is not a violation of law. 3

DHS then goes into providing background and begins with a review of how the govt is allowed to track students. Federal regulations require students to pursue a full course of study. The rules require no more than one course be online. 4

ICE has altered enforcement priorities and adapted agency policies in response to the pandemic. The 7/6 announcement is but the latest discretionary decision in a series of actions by the Student and Exchange Visitor Program (SEVP). 5

DHS points to a 1/29/2020 memo - it “is not a substitute for applicable legal requirements, not is itself a rule or a final action by SEVP.” It notes the 3/9 memo saying it wouldn’t enforce the online limit and this policy was for current & not new students outside the US. 6

DHS notes a 3/13 addendum expanding on school reporting requirements if it switched to online. It again included the statement that “due to the fluid nature” of the pandemic, “this guidance may be subject to change.” 7

By 4/15/2020, 6000 schools notified ICE of their switching to online. The next action was the 7/6 message saying that all online learning is not allowed for F-1s. 8

DHS offers as its reason for the change – The guidance reflects the coordination between SEVP, CBP & the State Dept regarding F & M visa holders and the interrelationship between these agencies in enforcing immigration law. 9

Can I just say that this is govt gobbledygook. That was the case in March too. This is not persuasive at all. I’m 9 pages in on this response and still haven’t seen a good reason to make this change and just saying we have the discretion to do so is not enough. 10

Now they’re getting into why enforcing immigration law against students is good & ICE is just enforcing immigration law. Never mind that this a complete 180 on their prior policy. They instead just say it’s a proper exercise of discretion. Again, why? No reason offered. 11

Now the legal analysis. Plaintiff must show it has a substantial likelihood of success on the merits of the claims, it will suffer irreparable harm without relief, the harm outweighs any damage to the opposing party and the injunction won’t harm the public interest. 12

DHS claims Harvard won’t succeed because the decision wasn’t arbitrary or capricious and were made after considering important aspects of the problem before the agency. DHS says it gave a lot of info on its web site. [Really? Not too persuasive] 13

DHS in 7/6 memo – “DHS is adopting a new approach to carefully balance public health concerns against the varied approaches that schools” are taking. This means additional factors were considered. 14

DHS says it could have just gone back to pre-March policy of not allowing hybrid model either. I’m now on page 14 and I have yet to see an explanation of why this policy change is in the public interest. DHS is just saying we have the power to do this. 15

Oh, here we go. An actual reason for the new restrictions (and it’s a laugher). An all online program allows the student to be anywhere in the US for the whole term which raises national security concerns. 16

Aside from the fact that students are required to notify schools of their address, this has been the case since March. Has there been a single problem anywhere in the US with respect to the 1M students here? This is embarrassing, DHS. 17

Oh, another reason online is a threat -“Additionally, such programs could allow a student to conduct activities other than full-time studying which undermines the purpose of the F-1 visa.” Like what, Netflix binging? Too much frisbee? The stupidity of this is hurting my head. 18

DHS says Harvard acknowledged ICE’s justification that as many institutions across the country reopen, there is a need to resume protections of fed regs. Still no mention of the fact that COVID numbers are hitting new highs each day. 19

DHS says it is not necessary for plaintiffs to agree with government’s rationale for it to be considered sufficient for the APA requirements. 20

DHS says the 7/6 memo is exempt from notice & comment because it’s not a rule, just a statement. DHS said it is issuing a “Temporary Final Rule” but that it doesn’t have to. Despite the threat to deport people & punish schools, DHS likely won’t do so until a reg is out. Huh? 21

DHS claiming the plaintiffs haven’t shown irreparable harm. Schools can still go all online (but without their F-1s in the US). “Petitioners do not explain how physical presence in the US is required to participate in a 100% online learning experience.” 22

Actually, Harvard spent a lot of time explaining why many students can’t get a quality education from abroad – no broadband at home, censorship, wars at home, opposite time zones, ineligibility for work programs, expenses of moving a family abroad, etc. This is all ignored. 23

DHS: A TRO would harm the US and the public because ICE must be allowed to enforce immigration laws. The “inconveniences” alleged by Harvard don’t outweigh the harm (which apparently is students playing hacky sack & wandering the US unmonitored – see prior tweets). 24

DHS arguing that Harvard doesn’t have standing to sue on behalf of students. The govt makes this case pretty much in every case and this one is weak for several reasons. 1st, Harvard is going to lose students if students are harmed so outlining those harms matters. 25

Second, there are 5,000 students and if Harvard named a few students, the govt could just accommodate those students to moot them out. They just did this in the 4/22 ban case with the age out kids. 26

3rd, it would be hard to say Harvard isn’t deeply integrated into the process (DSOs, SEVIS, I-20s, obligations to monitor the F-1s, etc.). And schools have fiduciary obligations to the students. It’s perfectly appropriate for a school to sue on behalf of their harmed students. 27

Govt fails as well when they lay out the requirements for 3rd party standing. 1)the litigant has suffered an injury in fact, 2) the litigant has a close relationship to the 3rd party and 3) that some hindrance exists to prevents the 3rd party from protecting its own interests. 28

1st, see my tweets from the day the suit was filed. Harvard showed numerous harms to itself (most of which the govt just ignored in this response). 2nd, Harvard obviously has a close relationship with its students as does any university. 29

3rd, how many students could file a suit in time to beat the 7/15 deadline. Or have the means to sue. This is ludicrous. 30

The govt completely failed to address the smoking gun I mentioned the other day - the told the higher ed community these changes would stay in place until the end of the pandemic. IGNORED! The judge should hammer them on this. 31

They also ignored the other smoking gun - the public safety urgency has only gotten worse since March. They completely ignore public health arguments which were the basis of the March changes. Why are those no longer important? 32

If you haven’t guessed by now, I’m not impressed. Harvard has until tomorrow at noon to respond and then the arguments will happen at 3 pm. Given the 7/15 deadline for schools to file their plans with ICE, I’m guessing we’ll have a decision tomorrow night. END OF THREAD 33