ICE and DHS Assert ‘Discretion’ to Make Policy Changes In Response to Harvard-MIT Lawsuit


U.S. Immigration and Customs Enforcement and the Department of Homeland Security filed their response Monday to a lawsuit brought by Harvard and the Massachusetts Institute of Technology arguing that though the universities disagree with new rules, they are not illegal.

A hearing on Tuesday was scheduled to determine if Judge Allison D. Burroughs would issue a temporary restraining order or preliminary injunction to prevent immigration authorities from enforcing rules that barred international students taking online-only courses from residing in the United States.

But the hearing never happened — Burroughs instead announced that ICE would rescind the rules.

The “burden of proof” for Harvard and MIT is four-fold: first, that the suit is likely to succeed on the merits; second, that irreparable harm is likely to occur without an injunction; third, that that harm outweighs damage to the opposing party; and fourth, that the injunction is not “adverse to the public’s interest.”


ICE and DHS argue in the filing that Harvard and MIT fail all four tests.

The issue of success on the merits hinges on whether the government acted in compliance with the Administrative Procedure Act, a law that requires that government agencies to behave in a manner that is not “arbitrary and capricious.”

The filing claims that the rules were issued “after considering important aspects of the problem,” including the “fluid nature of the COVID-19 pandemic and the urgent need for stakeholders, including schools, to have access to guidance regarding the impact of the pandemic.”

Both of these criteria were invoked in a statement on a Frequently Asked Questions page on the ICE website since January 2020, which the agencies cited as proof that ICE “considered at least two important aspects of the situation.”

The agencies also referenced the wording of the rule change on July 6, which said the new rules aimed to “balance public health concerns against the varied approaches that schools and universities are taking to combat the spread of COVID-19” — two more “factors of critical importance” that ICE hopes to prove it considered prior to the rule.

As proof of its consideration for the needs of universities, the government argues that ICE could have forgone the pandemic-related exceptions entirely and reverted back to rules that forbid all online coursework for F-1 visa holders. The new ICE guidelines still allow international students to take some courses online, as long as some of their instruction also occurs in person.

The filing also cites the exceptional nature of the rules from March to counter the argument that universities relied on it in their planning for the fall semester.

“Any further reliance interests that schools may have had in the March 13, 2020 guidance are necessarily inconsequential, as the guidance clearly indicates that it is only temporary,” the filing reads.

ICE and DHS made a similar argument — that it could have rolled back the rules even further — to prove that its rules were “supported by a reasoned basis and justification.”

“Rather than completely rescinding the March guidance and reverting to business as usual with respect to schools and foreign students, ICE announced a measured transition to begin a move toward reopening schools and allowing students to return to classrooms,” the filing states.

Another rule in the Administrative Procedure Act requires agencies to offer a period of “notice and comment” before rule changes. But the agencies argued that this type of notice falls under an exception for “general statements of policy” that are not legislative rules.

They also noted that the new rules do not mandate that ICE “take administrative compliance actions against schools” or “initiate removal proceedings against F-1” visa holders.

“DHS would most likely defer from taking such action until a regulatory change was properly made,” the filing states.

But at least two students — including a rising sophomore at Harvard College from Minsk, Belarus — have already been denied entry to the country since the rules were issued last week.

The agencies also argued the petitioners have failed to demonstrate irreparable harm.

“Petitioners do not explain how physical presence in the United States is required for one to participate in a 100% online learning experience,” the filing reads. “Nor do they explain how the lack of physical presence by their nonimmigrant students participating in the online programs would negatively impact other students, who are also participating in the online course, or the administration of their set curriculum.”

Granting a temporary restraining order would “harm the United States and the public,” according to the filing, since the public has an interest in immigration enforcement.

At the brief’s conclusion, the agencies wrote that Harvard and MIT lack standing to sue on behalf of their international students, and that Burroughs should not consider potential harms to students as justification for a temporary restraining order.

For Harvard and MIT to have standing on behalf of their international students, they must prove that they as institutions have also suffered harm; that they have a close relationship with impacted students; and that a “hindrance exists that prevents” these students from protecting their own interests.

The agencies asserted that the schools failed to establish the second or third points, and the only harms the institutions said they themselves suffer — “the desire to implement additional in person classes and an alleged loss to the diversity of their student body” — are insufficient.

Thirteen amicus briefs were filed between Friday and Monday by more than 50 colleges and universities, 26 cities and counties, the U.S. Chamber of Commerce, and others.

There are currently eight other lawsuits filed against ICE and DHS by various stakeholders nationwide, including other universities and colleges, a group of graduate students, and a number of states.

—Staff writer Camille G. Caldera can be reached at Follow her on Twitter @camille_caldera.

—Staff writer Michelle G. Kurilla can be reached at Follow her on Twitter @MichelleKurilla.