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The actual complaint is here: http://orgchart.mit.edu/sites/default/files/reports/20200708-Harvard-MIT-Complaint-Injunctive-Relief.pdf http://orgchart.mit.edu/

The actual complaint is here: http://orgchart.mit.edu/sites/default/files/reports/20200708-Harvard-MIT-Complaint-Injunctive-Relief.pdf http://orgchart.mit.edu/sites/default/files/reports/20200708... My very short summary: - there is a rule in place whereby international students who don't take most classes in person will lose their visa status - this rule was suspended by ICE on March 13 for the duration of the Covid19 emergency - ICE now has changed their mind for the Fall semester - the core part of the complaint is in paragraph 10. It has 2 parts: the ICE u-turn is "arbitrary and capricious and an abuse of discretion", and it did not follow the Administrative Procedure Act. Now, IANAL, but here's my take: for the first part of the complaint, it's very likely ICE will be able to produce some "analysis" so they can claim their decision was not arbitrary and capricious, but rather made after careful consideration. The second part of the complaint has probably better odds of success. If Harvard and MIT can pinpoint the exact part of the Administrative Procedure Act that ICE did not follow, a judge could issue the injunction. Just recently the Supreme Court overturned Trump administration's decision to revoke DACA based on this Administrative Procedure Act. In the end though, even if this injunction is issued, it may take months, and it may arrive too late to be of any help for the international students who will lose their visa. It would be fantastic though if someone with legal expertise were to opine on this in this forum.

ISL 6y ago
I expect a temporary injunction while the case proceeds.
WillPostForFood 6y ago
>there is a rule in place whereby international students who don't take most classes in person will lose their visa status It doesn't say you can't take most classes online, it says you can't take all classes online. In a hybrid model, it gets a little grey, but nothing specifically says you can't take most classes online. >Nonimmigrant F-1 students attending schools adopting a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online. These schools must certify to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” certifying that the program is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program. https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-students-taking-online-courses-during#wcm-survey-target-id https://www.ice.gov/news/releases/sevp-modifies-temporary-ex...
btown 6y ago
Not a lawyer, but I think the recent Supreme Court decision on DACA - https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf - is telling: To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51. Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was “not writing on a blank slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns. The issue of reliance, I think, is important here - did ICE actually internally discuss the extent to which international students and their families were relying on the previous guidance, and did they actually do any kind of analysis that the benefit to society and economy would outweigh those reliance interests, even for non-citizens? Given that societal benefits are practically nonexistent and that many university systems economically rely on continuity of their matriculated student bodies, particularly international students paying non-subsidized tuition, it seems unlikely that such an analysis was done in good faith.
- jkulubya 6y ago
  Yeah, we have a concept in common law called legitimate expectation that is quite similar to the point you're getting at. Don't know about the U.S. Having recently been on the right side of a judicial challenge, I must say that in my non-lawyer view, it is quite a powerful check on a decision-maker's discretion. https://en.wikipedia.org/wiki/Legitimate_expectation https://en.wikipedia.org/wiki/Legitimate_expectation
steviedotboston 6y ago
ICE hasn't really "change their mind." When they relaxed rules in March it was never going to be an indefinite change. The new rules are much more lenient than they could have been.
- UncleMeat 6y ago
  "We could have been even more cruel" isn't a compelling defense. There is more covid spread in the US today than in March when they created the exemption. If the policy made sense in March, it makes sense today.
  - steviedotboston 6y ago
    I would call the government enforcing the basic requirements of a visa "cruel". Put another way, currently the government is not issuing any non-immigrant visas EXCEPT for student visas. Those students just have to comply with rule that they can't take an entirely online course of study, which has always been the case. The government requires students take at least some in person classes is to enforce the security requirements of the visa.
    - UncleMeat 6y ago
      The basic requirements for the visa are ridiculous in the time of covid. That's why the exception was originally created and why it should continue to exist. The fact that a regulation exists does not make it good by definition. These people are already here in the US. This change helps nobody and hurts hundreds of thousands. It is cruel.
      - steviedotboston 6y ago
        If you want to change the basic requirements of the visa that would require legislation. Most schools will end up offering some in person classes for international students. That solves the problem and isn't a major risk for spreading the virus. Other schools might not offer that, and their international students will have the option of taking classes online from their home country or not taking classes this semester. A tough decision, but at the end of the day not many students will be in this situation. This isn't going to be some kind of disaster, people have really overreacted to this.

ISL 6y ago

I expect a temporary injunction while the case proceeds.

WillPostForFood 6y ago

>there is a rule in place whereby international students who don't take most classes in person will lose their visa status It doesn't say you can't take most classes online, it says you can't take all classes online. In a hybrid model, it gets a little grey, but nothing specifically says you can't take most classes online. >Nonimmigrant F-1 students attending schools adopting a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online. These schools must certify to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” certifying that the program is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program. https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-students-taking-online-courses-during#wcm-survey-target-id https://www.ice.gov/news/releases/sevp-modifies-temporary-ex...

btown 6y ago

Not a lawyer, but I think the recent Supreme Court decision on DACA - https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf - is telling: To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51. Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was “not writing on a blank slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns. The issue of reliance, I think, is important here - did ICE actually internally discuss the extent to which international students and their families were relying on the previous guidance, and did they actually do any kind of analysis that the benefit to society and economy would outweigh those reliance interests, even for non-citizens? Given that societal benefits are practically nonexistent and that many university systems economically rely on continuity of their matriculated student bodies, particularly international students paying non-subsidized tuition, it seems unlikely that such an analysis was done in good faith.

jkulubya 6y ago
Yeah, we have a concept in common law called legitimate expectation that is quite similar to the point you're getting at. Don't know about the U.S. Having recently been on the right side of a judicial challenge, I must say that in my non-lawyer view, it is quite a powerful check on a decision-maker's discretion. https://en.wikipedia.org/wiki/Legitimate_expectation https://en.wikipedia.org/wiki/Legitimate_expectation

steviedotboston 6y ago

ICE hasn't really "change their mind." When they relaxed rules in March it was never going to be an indefinite change. The new rules are much more lenient than they could have been.

UncleMeat 6y ago
"We could have been even more cruel" isn't a compelling defense. There is more covid spread in the US today than in March when they created the exemption. If the policy made sense in March, it makes sense today.
- steviedotboston 6y ago
  I would call the government enforcing the basic requirements of a visa "cruel". Put another way, currently the government is not issuing any non-immigrant visas EXCEPT for student visas. Those students just have to comply with rule that they can't take an entirely online course of study, which has always been the case. The government requires students take at least some in person classes is to enforce the security requirements of the visa.
  - UncleMeat 6y ago
    The basic requirements for the visa are ridiculous in the time of covid. That's why the exception was originally created and why it should continue to exist. The fact that a regulation exists does not make it good by definition. These people are already here in the US. This change helps nobody and hurts hundreds of thousands. It is cruel.
    - steviedotboston 6y ago
      If you want to change the basic requirements of the visa that would require legislation. Most schools will end up offering some in person classes for international students. That solves the problem and isn't a major risk for spreading the virus. Other schools might not offer that, and their international students will have the option of taking classes online from their home country or not taking classes this semester. A tough decision, but at the end of the day not many students will be in this situation. This isn't going to be some kind of disaster, people have really overreacted to this.