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On Sunday, July 12, Jenner & Block filed an amicus brief on behalf of a broad coalition of 59 colleges and universities supporting Harvard University and the Massachusetts Institute of Technology’s (MIT) motion to enjoin the Trump Administration’s recently-announced restrictions on student visas.
The coalition included every Ivy League institution (except for Harvard) as well as a broad mix of other schools, including Stanford University, Duke University, University of Chicago, Notre Dame, University of Michigan, Arizona State University, and others from a total of 24 states and the District of Columbia.
The brief, filed in US District Court in Boston on Sunday night, challenged new restrictions that required students to leave the country unless they were taking in-person coursework notwithstanding the continuing COVID-19 pandemic. The brief argued that the government unlawfully rescinded guidance from March 2020 allowing international students to temporarily count online classes towards a full course of study in excess of the limits that ordinarily apply. At the time, the government stated that “[t]his temporary provision” would remain “in effect for the duration of the emergency.”
In the brief, the team argued that because the public health emergency persists, the new student visa rule is “an archetype of arbitrary and capricious agency action.” The rule “fails to address the reliance that schools and students across the nation” placed on the prior guidance, “fails to consider the dilemmas schools and students will face” as a result of the rule, “does not consider in any way the substantial compliance burdens it imposes on schools,” and “includes no reasoned explanation for the new policy.” In short, the government is “using the vulnerability of international students as leverage to force a broad reopening for reasons wholly disconnected from the underlying statute and regulation” and should be enjoined on a system-wide basis.
Following a hearing on July 14, the Department of Homeland Security and US Immigrations and Customs Enforcement agreed to rescind the policy and revert to the guidance it issued in March.
The filing came less than a month after a firm team including these same partners achieved a significant US Supreme Court victory on behalf of a Princeton student, Princeton, and Microsoft in litigation over the rescission of the Deferred Action for Childhood Arrivals (DACA) program. The Court ruled – in a 5-4 decision – against the Trump administration’s bid to end the DACA program, upholding the district court’s ruling that the government’s decision to end the program was arbitrary and capricious.