Thread by @gsiskind

Warning - Long tweet thread coming. I'm summing up the Harvard v. DHS complaint challenging ICE in its attempt to force F-1 students to leave the US if their courses are being offered online this fall. They lawyers did a superb job. I think you'll find this interesting.

The case is filed in the US District Court for the District of Massachusetts. The plaintiffs are Harvard and MIT and the defendants are DHS, ICE, Chad Wolfe, the Acting DHS Secretary and Matthew Albence, Acting Director of ICE. 1/x

The case starts out with a recital of the history. On 3/13/20, Trump declared a national emergency based on COVID which followed the 3/10 declaration by the Mass governor. 2/x

On 3/13, ICE issued an exemption to an existing rule requiring students to attend most classes in person. ICE OK’d students attending remote classes while maintaining F-1 status. Importantly, ICE made clear this arrangement was “in effect for the duration of the emergency.” 3/x

Given the out of control spread of COVID in the US, Harvard, MIT and many other schools have decided to continue with remote classes after careful planning processes “to protect the health and lives of their students, faculty, staff and communities.” 4/x

Medical evidence and official governmental guidance indicates indoor gatherings of any size are of concern. Densely populated classrooms have the potential to turn into “super-spreader” situations endangering the wider American public. 5/x

On 7/6, ICE through all of higher education in the US into chaos when it announced it was rescinding the 3/13 policy and would require students on F-1 visas whose schools remain entirely online to depart the US. 6/x

ICE requires schools who will offer in person classes to submit an operational change plan by 7/15 and to re-issue I-20s numbering in the 1000s by 7/x.

ICE provided no indication of having considered public health concerns, the reliance of students & schools on ICE’s prior statement that it would keep the policy in place until the end of the pandemic or the absence of other options for schools. 8/x

Importantly, no notice-and-comment period was provided. 9/x

ICE’s action leaves 100s of 1000s of students with no options in the US. There is not enough time to transfer. For many students “returning to their home countries to participate in online instruction is impossible, impracticable, prohibitively expensive and/or dangerous.” 10/x

ICE would force universities to divert from their carefully considered plans and have to resume in person classes with just weeks before classes resume despite the grave risk to public health and safety. 11/x

“ICE’s decision reflects an effort by the federal government to force universities to reopen in-person classes, which would require housing students in densely packed residential halls…” 12/x

“…and to force such a reopening when neither the students nor the universities have sufficient time to react or address the additional risks to the health and safety of their communities.” 13/x

“The effect – and perhaps even the goal – is to create as much chaos for universities and international students as possible.” Wow. 14/x

The claims –

- Schools & students have planned for 20-21 in reliance on ICE’s prior statements.
- ICE’s rescission failed to consider numerous issues, is arbitrary & capricious and an abuse of discretion.
- ICE’s action isn’t in compliance with the Admin Procedure Act. 15/x

Harvard is asking for the new policy to be set aside and ICE should be required to abide by the March guidelines which everyone relied on. 16/x

Next is info on the parties. Harvard has 5K F-1 students out of 23K and MIT has 4K F-1 students out of 11,500. 17/x

After a discussion of venue and jurisdiction, a more in depth dive into the facts. Here’s the smoking gun. “The March 13 Guidance indicated that it was a “temporary provision” that would remain “IN EFFECT FOR THE DURATION OF THE EMERGENCY” and …. 18/x

The President’s national emergency declaration has not been rescinded or terminated. 19/x

Harvard/MIT then go on to discuss all of the planning that has gone into their decision making. 20/x

Harvard then points out that it’s impossible for students to comply with the requirement to demonstration that they are not taking an entirely online course load because students aren’t required to register until right before the semester. 21/x

Another smoking gun – the 7/6 Directive says the earlier relaxation was made “during the height of the COVID-19 crisis.” Harvard points out that the present rate of infection across the US is far higher than in March and the rate is climbing. 22/x

Now the harms –

1st -Most students won’t be able to find a school to transfer to in a mere handful of days. They will therefore be forced to leave, thus causing serious financial and personal consequences – last minute air travel, breaking leases, upending kids’ lives 23/x

2nd -For continuing F-1 students outside the US who can’t get visa appts soon enough to comply with the short deadlines, they’ll lose F-1 status. Thus, no ability to pursue pre-completion internships and experiential learning as well as ability to work in practical training. 24/x

3rd - Having to quickly depart the US in a pandemic with many countries closed to flights. Flights themselves are risky. If they don’t depart, they’re deportable and may be barred from returning to the US for 10 years. 25/x

4th -Not always easy to get online from home (e.g. Ethiopia). Unreliable, slow Internet. Some countries, like Syrian, are warzones. Time zone variations. 26/x

5th - F-1s will be unable to perform research or fieldwork or even basic coursework. “It can be reasonably expected that many students will take leaves of absences or withdraw from Harvard and MIT.” 27/x

6th - Harvard/MIT will suffer immense harm. Many programs depend on the diversity of international students (e.g. Kennedy School of Govt). 28/x