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CAND-ECF

ADRMOP,CLOSED,RELATE

U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:20-cv-04621-JST

The Regents of the University of California v. U.S. Department of Homeland Security et al Assigned to: Judge Jon S. Tigar Relate Case Case: 4:20-cv-04592-JST Cause: 05:551 Administrative Procedure Act

Date Filed: 07/10/2020 Date Terminated: 10/07/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
The Regents of the University of California a California Corporation

represented by Jennifer Salzman Romano Crowell & Moring LLP 515 South Flower Street, 40th Floor Los Angeles, CA 90071-2258 (213) 622-4750 Fax: (213) 622-2690 Email: jromano@crowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Marisa Chun Crowell & Moring, LLP Three Embarcadero Center 26th Floor San Francisco, CA 94111 (415) 986-2800 Fax: (415) 986-2827 Email: mchun@crowell.com ATTORNEY TO BE NOTICED

Allison Margaret Woodall University of California Ofﬁce of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 510-987-9800 Email: Allison.woodall@ucop.edu ATTORNEY TO BE NOTICED

Charles Furlonge Robinson University of California 1111 Franklin Street, 8th Floor Oakland, Ca 94607-5200 510-987-9800 Email: charles.robinson@ucop.edu ATTORNEY TO BE NOTICED

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Emily Tomoko Kuwahara Crowell and Moring LLP 515 S. Flower Street 40th Floor Los Angeles, CA 90067 213-622-4750 Fax: 213-622-2690 Email: ekuwahara@crowell.com ATTORNEY TO BE NOTICED
Margaret Louisa Wu UC Ofﬁce of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607 (510) 987-9747 Fax: (510) 987-9757 Email: margaret.wu@ucop.edu ATTORNEY TO BE NOTICED
Molly A. Jones Crowell & Moring LLP Three Embarcadero Center 26th Floor San Francisco, CA 94111 415-986-2800 Fax: 415-982-2827 Email: mojones@crowell.com ATTORNEY TO BE NOTICED
Sonya Una Sanchez University of California Ofﬁce of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 510-987-9800 Fax: 510-987-9757 Email: Sonya.Sanchez@ucop.edu ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Homeland Security

represented by Elizabeth D. Kurlan United States Attorney's Ofﬁce Northern District of California 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102 (415) 436-7298 Email: Elizabeth.Kurlan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Winslow

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Defendant Chad F. Wolf in his ofﬁcial capacity as Acting Secretary of the United States Department of Homeland Security
Defendant Matthew Albence in his ofﬁcial capacity as Acting Director of U.S. Immigration and Customs Enforcement
Defendant U.S. Immigration and Customs Enforcement

CAND-ECF
United States Attorney's Ofﬁce Northern District of California 450 Golden Gate Avenue, 9th Floor Box 36055 San Francisco, CA 94102 (415) 436-6925 Fax: (415) 436-6748 Email: sara.winslow@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth D. Kurlan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Winslow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth D. Kurlan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Winslow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth D. Kurlan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Winslow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

07/10/2020

1 COMPLAINT against The Regents of the University of California ( Filing fee $ 400, receipt number 0971-14680182.). Filed byThe Regents of the University of California. (Attachments: # 1 Civil Cover Sheet)(Romano, Jennifer) (Filed on 7/10/2020) (Entered: 07/10/2020)

07/10/2020

2 Proposed Summons. (Romano, Jennifer) (Filed on 7/10/2020) (Entered: 07/10/2020)

07/10/2020

3 Corporate Disclosure Statement by The Regents of the University of California

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07/10/2020
07/10/2020 07/13/2020

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(Federal Rule of Civil Procedure 7.1 Disclosure Statement and Local Rule 3-15 Certiﬁcation of Interested Entities or Persons) (Romano, Jennifer) (Filed on 7/10/2020) (Entered: 07/10/2020)
4 Ex Parte Application (Plaintiff's Ex Parte Motion for Temporary Restraining Order) ﬁled by The Regents of the University of California. (Attachments: # 1 Declaration of Alcocer, # 2 Declaration of Beck, # 3 Declaration of Byington, # 4 Declaration of Christ, # 5 Exhibit A to Christ Declaration, # 6 Exhibit B to Christ Declaration, # 7 Declaration of Deas, # 8 Declaration of Schooley, # 9 Declaration of Wakimoto, # 10 Exhibit A to Plaintiff's Ex Parte Application for TRO, # 11 Proposed Order Granting Plaintiff TRO and Order to Show Cause)(Romano, Jennifer) (Filed on 7/10/2020) (Entered: 07/10/2020)
5 MOTION to Shorten Time (Plaintiff The Regents of The University of Californias Ex Parte Motion for Order Shortening Time Re: Motion For Temporary Restraining Order and Order To Show Cause Re: Preliminary Injunction) ﬁled by The Regents of the University of California. (Attachments: # 1 Proposed Order Granting Plaintiff Motion for Order Shortening Time)(Romano, Jennifer) (Filed on 7/10/2020) (Entered: 07/10/2020)
6 Case assigned to Magistrate Judge Joseph C. Spero.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

07/13/2020 07/13/2020
07/13/2020 07/13/2020 07/13/2020

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 7/27/2020. (anjS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
7 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by The Regents of the University of California.. (Romano, Jennifer) (Filed on 7/13/2020) (Entered: 07/13/2020)
8 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/2/2020. Initial Case Management Conference set for 10/9/2020 02:00 PM. (mclS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
9 Summons Issued as to Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf.(mclS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
10 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (klhS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
11 ORDER, Case Reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Jeffrey S. White for all further proceedings. Magistrate Judge Joseph C. Spero no longer assigned to the case. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by The Clerk on 7/13/20. (Attachments: # 1 Notice of Eligibility for Video Recording)(haS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)

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12 ORDER GRANTING 5 Motion to Shorten Time and Setting Brieﬁng Schedule and Hearing on Motion For Temporary Restraining Order and Order To Show Cause Re: Preliminary Injunction. Plaintiff to serve Defendants with Order. Responses due 12:00 by 7/17/2020. Replies due by 2:00 p.m. 7/20/2020. Motion Hearing set for 7/24/2020 09:00 AM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. Signed by Judge Jeffrey S. White on July 13, 2020. (jswlc3S, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)

07/13/2020 13 Notice of Pendency of Other Action or Proceeding by The Regents of the University of California. (Romano, Jennifer) (Filed on 7/13/2020) Modiﬁed on 7/14/2020 (cjlS, COURT STAFF). (Entered: 07/13/2020)

07/13/2020 14

MOTION for Preliminary Injunction ﬁled by The Regents of the University of California. Motion Hearing set for 7/22/2020 02:00 PM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. Responses due by 7/16/2020. Replies due by 7/20/2020. (Attachments: # 1 Declaration of Doe No. 1, # 2 Declaration of Doe No. 2, # 3 Declaration of Doe No. 3, # 4 Declaration of Doe No. 4, # 5 Declaration of Iyengar, # 6 Plaintiff RJN iso Motion for Preliminary Injunction, # 7 Exhibit A - RJN, # 8 Exhibit B - RJN, # 9 Exhibit C - RJN, # 10 Exhibit D - RJN, # 11 Exhibit E - RJN, # 12 Exhibit F - RJN, # 13 Exhibit G - RJN, # 14 Proposed Order Granting Plaintiff's Motion for Preliminary Injunction)(Romano, Jennifer) (Filed on 7/13/2020) (Entered: 07/13/2020)

07/13/2020

15 MOTION to Shorten Time Plaintiff The Regents of The University of California's Administrative Motion for Order Shortening Time Re: Motion For Preliminary Injunction ﬁled by The Regents of the University of California. (Attachments: # 1 Proposed Order Granting Plaintiff Motion to Shorten Time)(Romano, Jennifer) (Filed on 7/13/2020) (Entered: 07/13/2020)

07/13/2020

16 ADMINISTRATIVE MOTION for Doe Nos. 1-4 to Proceed Under Pseudonym ﬁled by The Regents of the University of California. Responses due by 7/17/2020. (Attachments: # 1 Proposed Order Granting Plaintiff Motion for Doe Nos. 1-4 to Proceed Under Pseudonym)(Romano, Jennifer) (Filed on 7/13/2020) (Entered: 07/13/2020)

07/14/2020 17 CERTIFICATE OF SERVICE by The Regents of the University of California re 14 MOTION for Preliminary Injunction (Romano, Jennifer) (Filed on 7/14/2020) (Entered: 07/14/2020)

07/14/2020 18 ORDER RELATING CASE 20-cv-04621-JSW to 20-cv-04592-JST. Signed by Judge Jon S. Tigar on July 14, 2020. (mllS, COURT STAFF) (Filed on 7/14/2020) (Entered: 07/14/2020)

07/14/2020 19 ORDER SETTING BRIEFING AND HEARING SCHEDULE ON PLAINTIFFS MOTIONS FOR PRELIMINARY INJUNCTION. Responses due by 7/16/2020. Replies due by 7/20/2020. Motion Hearing set for 7/24/2020 10:00 AM before Judge Jon S. Tigar. Signed by Judge Jon S. Tigar on July 14, 2020. (mllS, COURT STAFF) (Filed on 7/14/2020) (Entered: 07/14/2020)

07/14/2020

20 Plaintiff's Notice of Service of Orders by The Regents of the University of California. (Attachments: # 1 Exhibit A)(Chun, A.) (Filed on 7/14/2020) Modiﬁed on 7/15/2020 (cjlS, COURT STAFF). (Entered: 07/14/2020)

07/14/2020

21 STIPULATION WITH PROPOSED ORDER ﬁled by Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf, The Regents of the University of California. (Winslow, Sara) (Filed on 7/14/2020) Modiﬁed on 7/15/2020 (cjlS, COURT STAFF). (Entered: 07/14/2020)

07/15/2020 22 ORDER by Judge Jon S. Tigar granting (16) Stipulation in case 4:20-cv-04592-

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JST; granting (21) Stipulation in case 4:20-cv-04621-JSW. (mllS, COURT STAFF) (Filed on 7/15/2020) (Entered: 07/15/2020)

07/15/2020 07/15/2020
07/23/2020

Set Deadlines/Hearings: Status Report due by 7/21/2020. (mllS, COURT STAFF) (Filed on 7/15/2020) (Entered: 07/15/2020)
23 ORDER REASSIGNING CASE. Case reassigned to Judge Jon S. Tigar for all further proceedings. Judge Jeffrey S. White no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras. Signed by the Clerk on 7/15/2020. (Attachments: # 1 Notice of Eligibility for Video Recording) (ajsS, COURT STAFF) (Filed on 7/15/2020) (Entered: 07/15/2020)
24 ORDER REQUIRING JOINT STATUS REPORT BY AUGUST 4, 2020 re (18 in 4:20-cv-04592-JST) Status Report ﬁled by U.S. Department of Homeland Security, State of California, U.S. Immigration and Customs Enforcement, Chad F. Wolf, Matthew Albence. Status Report due by 8/4/2020. Signed by Judge Jon S. Tigar on July 23, 2020. (mllS, COURT STAFF) (Filed on 7/23/2020) (Entered: 07/23/2020)

08/04/2020 08/04/2020 08/06/2020

25 JOINT STATUS REPORT by The Regents of the University of California, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf and Matthew Albence. (Attachments: # 1 Proposed Order)(Romano, Jennifer) (Filed on 8/4/2020) Modiﬁed on 8/5/2020 (jmlS, COURT STAFF). (Entered: 08/04/2020)
Electronic ﬁling error. REMINDER TO COUNSEL: In the future, please be sure that the case number is correctly reﬂected on your documents as 4:20-cv-04621-JST. Re:[2 5] Status Report ﬁled by The Regents of the University of California (jmlS, COURT STAFF) (Filed on 8/4/2020) (Entered: 08/05/2020)
26 ORDER REQUIRING JOINT STATUS REPORT BY SEPTEMBER 4, 2020 AND EXTENDING DEFENDANTS' RESPONSE DEADLINE. Responses due by 10/13/2020. Status Report due by 9/4/2020. Signed by Judge Jon S. Tigar on August 6, 2020. (mllS, COURT STAFF) (Filed on 8/6/2020) (Entered: 08/06/2020)

09/04/2020 09/09/2020

27 JOINT STATUS REPORT by The Regents of the University of California, U.S. Department of Homeland Security, State of California, U.S. Immigration and Customs Enforcement, Chad F. Wolf and Matthew Albence. (Attachments: # 1 Proposed Order) (Romano, Jennifer) (Filed on 9/4/2020) Modiﬁed on 9/8/2020 (jmlS, COURT STAFF). (Entered: 09/04/2020)
28 ORDER REGARDING SEPTEMBER 4 STATUS REPORT. Case Management Statement due by 10/6/2020.. Signed by Judge Jon S. Tigar on September 9, 2020. (mllS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)

09/09/2020

Set Deadlines/Hearings: Further Case Management Conference set for 10/13/2020 02:00 PM in Oakland, Courtroom 6, 2nd Floor. (mllS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)

09/22/2020

29 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options (Romano, Jennifer) (Filed on 9/22/2020) (Entered: 09/22/2020)

09/23/2020 09/23/2020 10/06/2020

30 NOTICE of Appearance by Elizabeth Kurlan for Defendants (Kurlan, Elizabeth) (Filed on 9/23/2020) (Entered: 09/23/2020)
31 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options (Kurlan, Elizabeth) (Filed on 9/23/2020) (Entered: 09/23/2020)
32 NOTICE of Voluntary Dismissal Without Prejudice by The Regents of the University of

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California (Romano, Jennifer) (Filed on 10/6/2020) (Entered: 10/06/2020)

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 Case 3:20-cv-04621 Document 4 Filed 07/10/20 Page 1 of 31

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CROWELL & MORING LLP
ATTORNEYS AT LAW

Jennifer S. Romano (SBN 195953) JRomano@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750

A. Marisa Chun (SBN 160351) MChun@crowell.com Molly A. Jones (SBN 301419) MoJones@crowell.com CROWELL & MORING LLP 3 Embarcadero Center, 26th Floor San Francisco, California 94111 Telephone: 415.986.2800

Thomas A. Lorenzen (pro hac vice forthcoming) TLorenzen@crowell.com Daniel W. Wolff (pro hac vice forthcoming) DWolff@crowell.com CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 Telephone: 202.624.2500

(Additional counsel listed on signature page)

Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,

Case No. 3:20-cv-04621

PLAINTIFF’S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

[Filed Concurrently with Ex Parte Application to Shorten Time and Supporting Declarations]

Date: Time: Ctrm: Judge:

July 14, 2020 TBD TBD TBD

Complaint filed: July 10, 2020

Defendants.

SFACTIVE-905705894.8

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
CASE NO. 3:20-CV-04621

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TABLE OF CONTENTS
I. INTRODUCTION............................................................................................................ 2
II. FACTUAL BACKGROUND ........................................................................................... 4
A. COVID-19 ............................................................................................................ 4
B. ICE’s Initial COVID-19 Response ........................................................................ 5
C. The University of California’s COVID-19 Response............................................. 6
D. The Loss of International Students Enrolled Across Campuses Will have Substantial Adverse Effects Throughout the University System. ......................... 10
E. Students’ Reliance on ICE’s March 13 Guidance ................................................ 11
F. ICE’s Sudden and Arbitrary Rescission of the March 13 Guidance ..................... 12
III. LEGAL STANDARD .................................................................................................... 13
IV. Argument ....................................................................................................................... 13
A. THE REGENTS ARE LIKELY TO SUCCEED ON THE MERITS ................... 16
1. The Regents Are Likely to Prevail on the First Cause of Action Under the APA Because the July 6 Directive is Arbitrary and Capricious. ............... 16
a. The Directive Failed to Offer a Reasonable Explanation for ICE’s Policy Reversal. ........................................................................... 16
b. The Directive Failed to Consider Important Aspects of the Problem, Including the Reliance of Plaintiff and Its Students on the March 13 Guidance...................................................................................... 17
c. Defendants Failed to Explain Any Basis for the Directive. ........... 20
2. The Regents Will Likely Prevail on Its Second APA Cause of Action, Because the Directive is a Substantive Rule that Did Not Comply with the APA’s Notice and Comment Requirements ............................................. 22
B. THE REGENTS AND ITS STUDENTS ARE LIKELY TO SUFFER IRREPARABLE HARM..................................................................................... 23
C. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH HEAVILY IN FAVOR OF A TEMPORARY RESTRAINING ORDER. ........... 24
V. CONCLUSION .............................................................................................................. 25

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TABLE OF AUTHORITIES

Page(s)

Cases

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .........................................................................................13, 25

Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343 (D.C. Cir. 2014) .......................................................................................20, 21

Butte Envt’l. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) ................................................................................................ 16

SEC v. Chenery Corp. (“Chenery II”), 332 U.S. 194......................................................................................................................... 23

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ............................................................................................................. 23

Ciox Health, LLC v. Azar, 435 F. Supp. 3d 30, 66 (D.D.C. 2020) .................................................................................. 23

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ............................................................................................................. 16

Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112 (9th Cir. 2009) .............................................................................................. 23

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ........................................................................................ 14, 15, 16, 17

Enyart v. Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153 (9th Cir. 2011) .............................................................................................. 24

FCC v. Fox Telev’n Stns., Inc., 556 U.S. 502 (2009) ............................................................................................................. 17

Franklin v. Massachusetts, 505 U.S. 788 (1992) ............................................................................................................. 16

Humane Soc’y of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) .............................................................................................. 15

Jicarilla Apache Nation v. U.S. Dep’t of the Interior, 613 F.3d 1112 (D.C. Cir. 2010) .......................................................................................14, 17

League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755 (9th Cir. 2014) ................................................................................................ 24

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Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............................................................................................................... 16
Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003) ................................................................................................ 23
Nat’l Res. Def. Council v. EPA, 643 F.3d 311 (D.C. Cir. 2011) .............................................................................................. 23
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) ......................................................................................................... 21
Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668 (9th Cir. 2007) ................................................................................................ 15
Perez v. Mortg. Bankers Ass’n, 575 U.S. 92 (2015) ............................................................................................................... 18
Pimentel v. Dreyfus, 670 F.3d 1096 (9th Cir. 2012) .............................................................................................. 13
Dep’t of Homeland Security v. Regents of the Univ. of Cal., No. 18-587, 2020 WL 3271746 (U.S. June 18, 2020) .................................................... passim
Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) .............................................................................................. 13
San Diego Air Sports Ctr., Inc. v. F.A.A., 887 F.2d 966 (9th Cir. 1989) ................................................................................................ 23
Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) ................................................................................................ 13
Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) ................................................................................................................. 13
Statutes
5 U.S.C. § 553.............................................................................................................................. 3
5 U.S.C. § 553(b) ....................................................................................................................... 15
5 U.S.C. § 553(b), (c)................................................................................................................. 23
5 U.S.C. § 706(2)(A).............................................................................................................. 3, 16
5 U.S.C. § 706(2)(A), (D) .......................................................................................................... 14
5 U.S.C. § 706(2)(D).............................................................................................................. 3, 23

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Administrative Procedure Act ............................................................................................. passim
Other Authorities
8 C.F.R. § 214.2........................................................................................................................... 5
8 C.F.R. § 214.2(f) ....................................................................................................................... 5
8 C.F.R. §§ 214.2(f)(5)(i), 214(f)(6)(i)(G) .................................................................................... 5
8 CFR 214.2(f)(6)(i)(G)… ........................................................................................................... 6
Emergency, Executive Department, State of California, https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-CoronavirusSOE-Proclamation.pdf ........................................................................................................... 5
Federal Rule of Civil Procedure 65(b) .......................................................................................... 1
“Guidance for SEVP Stakeholders” (“March 13 Guidance”) ....................................................... 5
, https://thehill.com/homenews/administration/506248-cuccinelli-says-ruleforcing-international-students-to-return-home ...................................................................... 21
https://www.ice.gov/doclib/sevis/pdf/bcm2003-01.pdf................................................................. 5
https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%2 0Guidance_3.13.20.pdf .......................................................................................................... 6
https://www.universityofcalifornia.edu/news/university-california-born (last visited July 9, 2020) ............................................................................................................... 6
John Bowden, Cuccinelli says rule forcing international students to return home will ‘encourage schools to reopen’ (July 7, 2020, 4:17 PM) ................................................. 21
Outbreak (March 13, 2020), https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novelcoronavirus-disease-covid-19-outbreak .................................................................................. 5
U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited July 10, 2020) ............................................................................................................. 4
United States’ “F-1”..................................................................................................................... 2
University of California, https://www.universityofcalifornia.edu/infocenter/fallenrollment-glance (last visited July 9, 2020)........................................................................... 6

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NOTICE OF EX PARTE MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER PLEASE TAKE NOTICE that on July 14, 2020, at __ a.m./p.m. or as soon thereafter as counsel may be heard, at the United States District Court for the Northern District of California, located at 450 Golden Gate Avenue, San Francisco, California 94102, or such other location assigned by the Court, Plaintiff The Regents of the University of California (“The Regents”) will, and hereby does, move for a temporary restraining order against Defendants United States Department of Homeland Security, Acting Secretary of Department of Homeland Security Chad F. Wolf, United States Immigration and Customs Enforcement, and Acting Director of U.S. Immigration and Customs Enforcement Matthew Albence (“Defendants”), pursuant to Federal Rule of Civil Procedure 65(b). The Regents seeks a temporary restraining order to enjoin Defendants from implementing the July 6, 2020 memorandum (“the Directive”) issued by the Student and Exchange Visitor Program (“SEVP”), a division of the U.S. Immigration and Customs Enforcement (“ICE”). The Directive announced a reversal of prior ICE policy regarding the status of international students holding F-1 nonimmigrant student visas during the COVID-19 pandemic. The Directive instructs, inter alia, that “schools adopting a hybrid model – that is, a mixture of online and in person classes” must by August 4, 2020, certify to SEVP for each F-1 visa student that “the student is not taking an entirely online course load for the Fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.”1 Students for whom the school cannot so certify “must leave the country or take alternate steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction ….” The University of California has adopted a “hybrid model” for the Fall 2020 semester and thus must comply with the above requirements in less than a month to evaluate literally tens of thousands of students’ courseloads and certify that each meets the Directive’s requirements. This

1 Further, certified schools that will not be entirely online but will reopen in the Fall must update and submit their operation plans to SEVP by August 1, 2020 as well.

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will be impossible, as the University does not require students to commit to classes so long before

the start of the educational year. It is too late to alter that system now. Plaintiff thus moves for this preliminary relief and will demonstrate that: (1) it is likely to

succeed on the merits of its claims under the Administrative Procedure Act (“APA”); (2) Plaintiff and its domestic and foreign students are likely to suffer irreparable harm absent provisional

relief; and (3) the balance of equities and the public interest weigh heavily in favor of returning to

the status quo existing prior to the issuance of the Directive. Plaintiff’s Motion is based upon this Notice of Motion and Motion; the Memorandum of Points and Authorities below; the currently

available administrative record; the Alcocer, Beck, Byington, Christ, Deas, Schooley, and Wakimoto Declarations and exhibits submitted in support of this Motion; and such further

evidence and argument as the Court may consider.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION The University of California—renowned as the nation’s premier public university system
and as a world-class academic and research powerhouse and a key contributor to the California economy and social fabric—has long welcomed international students seeking to pursue unrivaled

educational opportunities and, ultimately, their most cherished dreams. These students contribute to rich intellectual discourse across all disciplines, including in the University system’s prized

science, technology, engineering, and mathematics (STEM) departments, thereby also contributing to the University’s mission of delivering and supporting world-class teaching and research, as well as to California’s vibrant economy. For decades, the United States’ “F-1” visa

program for international, non-immigrant students has made all this possible. In March 2020, faced with the unprecedented COVID-19 pandemic, The Regents moved

swiftly to transition the University’s ten campuses to remote teaching to protect the health and

safety of their students and faculty, while continuing to meet its core mission of providing a world-class education. Also recognizing the unprecedented nature of the pandemic, defendant

United States Immigration and Customs Enforcement (“ICE”), an agency within defendant the

Department of Homeland Security (“DHS”), issued an exemption to a preexisting regulation that

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required international students on F-1 visas to attend classes in person if they wished to remain in

this country. ICE’s March 13, 2020 Guidance (the “March 13 Guidance”) provided critical

assurances that international students could maintain their F-1 visa status while attending classes

on-line “for the duration of the [COVID-19] emergency.”

Without warning, on July 6, 2020, Defendants announced that they would largely rescind

the COVID-19 exemption for students on F-1 visas and require such students whose universities

had transitioned to an online-only curriculum to transfer to an institution offering in-person

classes, or leave the United States. This Directive also effectively bars continuing students on F-1

visas who have already left this country from re-entering the United States, if they intend to take a

full online course load in Fall 2020. This arbitrary, capricious, and procedurally defective agency

action now forces The Regents to confront an untenable choice: to put its international students in

immediate jeopardy of having to abandon their studies and leave the country or take steps to

retain them by increasing the number of in-person courses offered for Fall 2020, thereby

increasing the risk that its students, faculty, and staff will be exposed to the virus.

The Regents therefore seeks a temporary restraining order to enjoin Defendants from

implementing the Directive. That Directive is not only unjust and unwise, but it violates the

Administrative Procedure Act’s (“APA”) prohibition against agency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

706(2)(A). Agency action, like the Directive, purporting to have the force of law must be both

reasonable and reasonably explained. Defendants also failed to satisfy the APA’s notice-and-

comment requirements for agency action that substantively affects rights or obligations, in

violation of 5 U.S.C. § 553. See 5 U.S.C. § 706(2)(D) (authorizing the court to set aside agency

action taken “without observance of procedure required by law”). The Regents, therefore, is likely

to succeed on the merits. Further, it and its students will suffer irreparable harm absent relief.

Finally, the balance of equities and the public interest strongly weigh in its favor. Accordingly,

this Court should grant provisional relief enjoining Defendants from enforcing the Directive,

thereby preserving the status quo pending adjudication of the University’s motion for preliminary

injunction and permanent relief.

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II. FACTUAL BACKGROUND A. COVID-19 As the year began, the terms “novel coronavirus” and “COVID-19” meant nothing to most
Americans. That soon changed. Since late 2019, when scientists first identified the novel coronavirus, or SARS-CoV-2, the virus that causes COVID-19 has spread to nearly every corner of the world: There are more than 12 million confirmed cases of the disease, and more than half a million people have died from it. Leading the pack is the United States, where there have now been more than 3.1 million confirmed cases and over 133,000 COVID-19-related deaths.2 Moreover, because there is no vaccine for COVID-19, the forecast is grim. Epidemiologists predict that the domestic death toll from COVID-19 will exceed 200,000 by November. In California alone, there have been nearly 300,000 confirmed cases and over 6,500 deaths. Modeling from the Centers for Disease Control and Prevention (“CDC”) suggests that as many as 200 million Americans could eventually be infected with COVID-19 and as many as 1.5 million Americans could die.
Certain basic facts about COVID-19 are not genuinely in dispute. For some, it causes symptoms requiring hospitalization or that are life-threatening. In the most severe cases, the virus is fatal. Overwhelming evidence indicates that the most likely means of transmission is through close contact, especially indoors. In light of these facts, state and local governments have implemented the only measures that reasonably can limit community spread of the virus— issuance of shelter-in-place orders, physical (social) distancing, closure of businesses and other venues where people may gather, diligent and regular sanitization and hygiene, and, where possible, contact tracing. Governor Newsom announced a state of emergency in California on March 4,3 and the President of the United States declared a national emergency on March 13.4 Yet the rate of infection today is considerably higher than it was in March.
2 See Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited July 10, 2020). 3 Proclamation of a State of Emergency, Executive Department, State of California, https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf.

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B. ICE’s Initial COVID-19 Response The federal government issues F-1 visas to international students who attend accredited
American universities or other academic institutions on a full-time basis. 8 C.F.R. § 214.2(f). The
requirements for F-1 visa holders are set forth in 8 C.F.R. § 214.2. That regulation states, in
relevant part, that the student must take a full course of study and that no more than “one class or
three credits” per semester or quarter may be counted toward the full course of study if the class is
taken “on-line or through distance education.” 8 C.F.R. §§ 214.2(f)(5)(i), 214(f)(6)(i)(G).
However, in its initial response to the pandemic, ICE recognized the need for flexibility with
respect to these requirements. In particular, on March 9, 2020, ICE’s Student and Exchange
Visitor Program (“SEVP”) issued guidance (“March 9 Guidance”) advising that “SEVP-certified
schools may need to adapt their procedures and policies to address the significant public health concerns associated with the COVID-19 crisis.”5 In issuing the guidance, ICE stated that it was
“focused on ensuring that nonimmigrant students are able to continue to make normal progress in
a full course of study” and that ICE would be “flexible with temporary adaptations,” while further
recognizing that “the COVID-19 crisis is fluid and rapidly changing.” Id. Further, ICE’s March 9
Guidance contemplated the necessity of “leaving room for schools to comply with state or local
health emergency declarations.” Id.
Just days later, on March 13, 2020, ICE issued further “Guidance for SEVP Stakeholders”
(“March 13 Guidance”) which provided, in relevant part: If a school closes temporarily but offers online instruction or another alternative learning procedure, nonimmigrant students should participate in online or other alternate learning procedures and remain in active status in SEVIS…. Given the extraordinary nature of the COVID-19 emergency, SEVP will allow F-1 and/or M1 students to temporarily count online classes towards a full course of study in excess of the limits stated in 8 CFR 214.2(f)(6)(i)(G)…. This temporary provision is only in effect for the duration of the emergency and in accordance with the

4 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March 13, 2020), https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid19-outbreak.
5 See https://www.ice.gov/doclib/sevis/pdf/bcm2003-01.pdf (“March 9 Guidance”) at p.1.

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procedural change documents filed in a timely manner to SEVP.6 Further, according to its express terms, this Guidance applied to F-1 visa holders “even if they have left the United States and are taking the online classes from elsewhere.” Id. at 1-2.
C. The University of California’s COVID-19 Response Founded in 1868, the University of California was founded upon a simple but audacious idea: California should establish a great public university available to all—one that would serve equally the children of immigrants and settlers, landowners and barons.7 More than 150 years later, the University today is one of the world’s premier educational systems, comprising ten campuses and educating more than 285,000 undergraduate and graduate students annually.8 True to its founding principle, the University continues to be available to all—including approximately 37,500 F-1 visa students from across the globe. Decl. of Carol T. Christ (“Christ Decl.”) ¶ 2. Consistent with federal, state, and local guidance on preventing the spread of COVID-19, and consistent with the March 9 and March 13 Guidances, the University undertook, with substantial investment of time and resources,9 to transition its academic curricula to online instruction in March 2020. Since then, the University has engaged in careful, deliberate, and iterative planning processes, prioritizing the health and safety of its entire academic community and that of the surrounding communities, while also continuing to fulfill its mission of providing world-class educational opportunities to all its students. Christ Decl. ¶¶ 2-6 & Exs. A&B; see also Decl. of Robert T. Schooley (“Schooley Decl.”) ¶ 15; Decl. of Carrie L. Byington (“Byington Decl.”) ¶¶ 4-6. The University made substantial investment in online solutions, in part based on its reliance on ICE’s March 13 Guidance that international students would not thereby be

6See https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.1 3.20.pdf at 1 (“March 13 Guidance”).
7 See https://www.universityofcalifornia.edu/news/university-california-born (last visited July 9, 2020). 8 See Fall Enrollment at a Glance (2019), University of California, https://www.universityofcalifornia.edu/infocenter/fall-enrollment-glance (last visited July 9, 2020).
9 The University of California estimates the cost of its COVID-19 response to date to be in the millions of dollars. Decl. of David Alcocer (“Alcocer Decl.”) ¶ 10.

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precluded from maintaining their F-1 visa status during the COVID-19 crisis and that the

exemption would remain “in effect for the duration of the emergency.” See Alcocer Decl. ¶ 10.

That emergency continues to this day and likely will for the foreseeable future.

The University has devoted considerable thought, effort, and resources to determine how

best to advance its educational mission while protecting its students, faculty, and staff amidst the

pandemic. The University and each campus have monitored state and local government data,

recommendations, and directives regarding COVID-19 response and have abided by applicable

reopening requirements and shelter-in-place restrictions. See, e.g., Christ Decl. ¶¶ 6, 16 & Ex. A;

Schooley Decl. ¶¶ 3-4, 7-8; Decl. of Deborah Deas (“Deas Decl.”) ¶¶ 4-7. The University and its

campuses have also formed numerous working groups and task forces to assess and proactively

plan responses to various scenarios potentially resulting from the pandemic. See, e.g., Christ Decl.

¶¶ 4-9; Schooley Decl. ¶¶ 4, 15; Decl. of Deborah Deas (“Deas Decl.”) ¶¶ 3-5; Decl. of Roger

Wakimoto (“Wakimoto Decl.”) ¶¶ 4-5; Decl. of Michael Beck (“Beck Decl.”) ¶¶ 4-6. For

example, in February, researchers at UC San Diego (“UCSD”) developed a dynamic

compartmental transmission model of COVID-19 to simulate spread among the campus

community to provide a quantitative framework for planning in response to the pandemic; they

concluded that the University must limit all large-scale gatherings and limit the density of on-

campus housing. Schooley Decl. ¶¶ 6-7.

For example, between April and June, UC Riverside’s (“UCR’s”) Instructional Continuity

Working Group, comprising faculty, staff, and students, evaluated options for providing a healthy

and effective teaching environment for the 2020-21 academic year. Deas Decl. ¶ 4. UCR’s

response to the COVID-19 pandemic is coordinated among ten faculty-led working groups,

including public health, research ramp-up, budget and finance, student services continuity, student

health assistance, instructional continuity, operations & support recovery, testing, employee

health assistance, and instructional technology. Id. ¶ 6. UCLA’s Emergency Management

Planning Group (EMPG) began working on UCLA’s COVID-19 response at the end of February

2020. UCLA’s efforts include its “Back to School” campus-wide working group, and regular

consultation between UCLA Health’s infectious control experts, officials from other UC

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campuses, and officials with the LA County Department of Public Health. See, e.g., Wakimoto Decl. ¶¶ 4-5, 8.
At the system-wide level, beginning in March 2020, the Council of the Vice Chancellors of Research (“COVCR”), began holding weekly meetings to provide guidance regarding the impact of the pandemic on university research. Wakimoto Decl. ¶ 4. The University has also created a systemwide Testing and Tracing Task Force (the “Task Force”), which includes subject matter experts, administrators, and faculty, and staff from across the University system. Christ Decl. ¶ 7. The Task Force has emphasized that, for all UC campuses “[t]he cornerstone of mitigation will be decreasing normal campus population density, in order to decrease interactions that may result in person-to-person transmission of the virus.” Id.; see also id. at Ex. B.
Following months of study and consultation with epidemiologists, medical experts, and industry experts, all ten campuses created plans for their Summer and Fall 2020 curricula based on the status of COVID-19 in their specific geographic locations. E.g., id. ¶ 5 (UC Berkeley); Deas Decl. ¶¶ 15, 20 (UC Riverside); Schooley Decl. ¶¶ 13-16 (UC San Diego). The campuses have dramatically transformed their approach to instruction for Fall 2020: UC Berkeley intends to conduct limited in-person classes;10 UC Davis plans to offer most courses remotely; Irvine courses will be remote with minimal exceptions; UCLA is currently all-remote, but anticipates 15% to 20% of courses will be in-person or in a hybrid format for the 2020-21 academic year; and UC San Diego hopes for 30% in person classes, with 70% remote or hybrid. Schooley Decl. ¶ 16. Thus, classes will be remote in Fall 2020 for most courses and students. These plans are subject to

10 For example, UC Berkeley’s response to the COVID-19 pandemic has been coordinated by nine committees. Christ Decl. ¶ 4. One such committee, the Public Health and Testing Advisory Committee, is chaired by Dr. Nicholas P. Jewell, Emeritus Professor of Biostatistics in the UC Berkeley School of Public Health and includes infectious disease experts, public health epidemiologists, physicians, scientists with expertise in diagnostic testing, statisticians and data scientists. Id. Between May and June 2020, this committee evaluated all options for providing a healthy and effective learning environment for the 2020-21 academic year, assessing all options from full remote instruction to return to mostly in-person instruction. Id. ¶ 8. On June 17, 2020, the committee issued its report recommending that “[t]o the extent that any classes occur in person” in the Fall 2020 semester, such classes should be limited to “26 [individuals] or under (including instructors).” The report also explained that “remote access will likely be required for most if not all classes because at-risk participants may not be able to attend in person.” Id. at ¶ 9.

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change, based on new information that infections are now surging in California and elsewhere.

E.g., Schooley Decl. ¶ 16; Wakimoto Decl. ¶ 9.

On May 22, 2020, recognizing the need to dramatically transform on-site operations, The

Regents released the “University of California Consensus Standards for Operation of Campus and

ANR Locations in Light of the SARS-CoV-2 Pandemic.” Christ Decl. ¶ 6, Ex. A. In light of

these recommendations and in reliance on the March 13 Guidance, UC Berkeley’s Chancellor

announced that the Fall 2020 semester would be online with only limited in-person instruction. Id.

¶ 11. Other campuses made similar announcements. E.g. Deas Decl. ¶ 15; Schooley Decl. ¶ 13;

Wakimoto Decl. ¶ 9. Even those courses with limited in-person instruction will also allow for

remote attendance. Christ Decl. ¶ 6; Deas Decl. ¶ 15. To implement these recommendations, the

campuses expended further time and resources developing a class schedule that accounted for the

number and nature of courses and whether they would be held entirely online or in person. E.g.,

Christ Decl. ¶ 12; Schooley Decl. ¶¶ 13-14; Deas Decl. ¶¶ 15, 20.

These precautions have been put in place with additional specific consideration for the

University faculty and others with pre-existing health conditions. Christ Decl. ¶ 17. For example,

the average UC Berkeley faculty member is 52 years old, with many faculty members over the

age of 65. Christ Decl. ¶ 17(d). According to the CDC, while every human is at risk from

COVID-19, older adults are at the highest risk for severe illness or death.

UC Berkeley, like all other UC campuses, has spent months preparing for the Fall

semester. See, e.g., Christ Decl. ¶ 16; Deas Decl. ¶ 20; Schooley Decl. ¶ 15. For example, at UC

Berkeley, Fall semester enrollment begins on July 8, 2020, and UC Berkeley students report back

to campus in a few weeks for classes beginning on August 26, 2020. Christ Decl. ¶ 16. Other UC

campuses offer undergraduate classes starting in September. It would be extremely difficult at this

point for any of the campuses to develop a revised educational plan that would enable all

international students to maintain their visas under the Directive. In addition to the University’s

determinations regarding the risk of reopening or adding more in-person instruction, it is an unfair

and unnecessary drain on public resources to require the University to upset months of planning

for the Fall semester within a matter of mere weeks. 9
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D. The Loss of International Students Enrolled Across Campuses Will have Substantial Adverse Effects Throughout the University System.
The loss of international students enrolled at the University will have substantial adverse effects. Nearly 30% of UC Berkeley’s graduate programs and 50% of its graduate engineering program students are international students potentially affected by the Directive. Id. ¶ 17; see also Deas Decl. ¶ 21(b). These graduate students, in addition to performing critical research roles, have obligations as teaching assistants. Id. The loss of these students would have significantly detrimental effects on UC Berkeley’s ability to carry out its instruction of undergraduates.11 Id. The University’s research mission also depends on numerous international partnerships and collaborations, which in turn depend on the recruitment and enrollment of the best and brightest students from across the world, particularly in the science, technology, engineering, and mathematics (“STEM”) disciplines. Christ Decl. ¶-18; see also Schooley Decl. ¶ 20(b). Even a semester-long disruption in the University‘s ability to conduct significant STEM research would have detrimental effects on it as an international research university.12 Id. Further, the loss of diversity at the University should international students be forced to withdraw will have a negative pedagogical impact on all students, who will be deprived of the diversity of perspectives and experience that enrich the learning environment. Christ Decl.¶ 17; see also Deas Dec. ¶ 21(d); Schooley Decl. ¶¶ 20(d), 21(g).
As a result, the Directive forces University campuses to choose between losing numerous

11 Tuition paid by international students is significant to UC’s finances. Id. ¶ 17. International undergraduate students in the University of California system accounted for approximately $1.1 billion in tuition and fee receipts in the 2019-2020 school year.. Alcocer Decl. ¶ 5. Tuition and fees attributable to international graduate students account for an additional $350 million. Id. ¶ 6. This financial shortfall cannot easily be recouped through enrollment of other students, particularly due to the difference in tuition between in-state and out-of-state students. Id. ¶ 9. These negative financial impacts also affect UC’s ability to support financial aid and to undertake infrastructure improvements across campuses. Id.
12 Representative research at UC Berkeley that relies in significant part on the enrollment of international students includes, inter alia, a project for the U.S. Army in which UC Berkeley students are conducting cutting-edge research related to drone technology and a research program developing projection algorithms to predict COVID-19 cases, hospitalizations, ICU admissions, and ventilator needs at the county and hospital level throughout the United States. In each case, the loss of international students with discrete and unique skillsets would create extensive delays unacceptable to UC’s partners and to society writ large. Id. ¶ 18.

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international students who bring immense beneﬁts or taking steps to provide in-person instruction

against the sound judgment of University and public health experts about how best to protect the health of the University’s students, faculty, and staﬀ. Id. ¶ 21. Each University campus would be

forced to increase the number of in-person classes available, thereby increasing the risk of exposure to the COVID-19 virus to other members of the community, including the faculty

required to lead those in-person classes as well as the staff needed to support those in-person

activities. See, e.g., id. Further, to comply with the Directive, the University will be required to reissue thousands of Form I-20 documents for the F-1 visa holders across each of its campuses.

Id. at ¶ 17. At UC Berkeley alone, this will require hundreds of staff hours to complete. Id.

E. Students’ Reliance on ICE’s March 13 Guidance As a result of the University’s response to the COVID-19 pandemic, which relied in part

on the March 13 Guidance, all University students in effect have relied on the March 13 Guidance in planning to attend the University this Fall. International and U.S.-based students alike have

taken out loans and made housing arrangements or moved home for the Fall semester anticipating that their studies would resume through remote instruction. Many international students have returned to their home countries in reliance on the government’s instruction that their studies

could resume online. Many of those students are now unable to return to the United States because of travel restrictions, the government’s refusal to re-issue visas and, now, the

government’s insistence that universities certify that their instruction will proceed in person. See, e.g., id. ¶ 19. Other students who have remained in the United States will be forced to leave under the Directive and will be forced to break leases and pay resulting penalties. Id. ¶ 19.

Practically, it is too late for any student to transfer to another university, mere weeks before the start of the Fall semester, especially international students who must find a university

in this country that can certify its intent to offer a mostly in-person curriculum despite the

significant health risks involved in doing so. Even if students wanted to transfer, it is also unlikely that there would be sufficient alternative in-person programs in the country for all

international students given the substantial liability to universities and the risk to student, faculty,

and staff.
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Moreover, international students face emotional and psychological trauma from the sudden and unanticipated disruption to their ability to pursue their education in the United States, the inability to participate in U.S.-based practical training opportunities (e.g. internships) which will further negatively impact their professional prospects, violence and poverty afflicting their home countries, and being forced to return to home country living situations without reliable, high-speed internet access necessary for remote instruction. E.g. id. ¶ 19; Schooley Decl. ¶ 21.

F. ICE’s Sudden and Arbitrary Rescission of the March 13 Guidance Despite the President’s continuing national emergency declaration and the March 13 Guidance’s express statement that its exemption from the in-person class requirement would remain “in effect for the duration of the [COVID-19] emergency,” on July 6, 2020, ICE suddenly and arbitrarily reversed its course, stating:

1) recipients of F-1 visas are no longer permitted to “take a full online course load and remain in the United States”;

2) “[a]ctive students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status or potentially face immigration consequences” such as the initiation of removal proceedings;
3) no new F-1 visas would issue to students planning to enroll in programs that will be fully online for the fall semester;
4) “students attending schools offering 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,” provided that for each such student, the school certifies by August 4, 2020, “within 21 business days of publication” of the Directive, “that the school is not operating entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.”

The Directive also re-characterizes ICE’s March 13 Guidance, stating that the earlier

guidance “instituted a temporary exemption regarding the online study policy for the spring and

summer semesters.” (emphasis added). Nothing in the March 13 Guidance, however, suggests any

such temporal limit. To the contrary, the March 13 Guidance explicitly stated it would remain “in

effect for the duration of the emergency.” Nowhere in the Directive or accompanying News

Release does ICE provide any justification for the reversal of policy, nor is there any indication

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that the government undertook any consideration or analysis of relevant factors such as the impact of the reversal on the health and safety of university students, faculty, and staff, the effect on public health for the communities surrounding every academic institution affected by the policy change, or the justifiable reliance on the March 13 Guidance by universities and students in planning for the Fall 2020 term. The Directive also contains no acknowledgement of the ongoing—indeed, rapidly-worsening—COVID-19 pandemic.

III. LEGAL STANDARD The standard for issuing a temporary restraining order is “substantially identical” to the
standard for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A temporary restraining order may properly issue where the plaintiff establishes that (1) it is “likely to succeed on the merits,” (2) it is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of equities” tips in its favor, and (4) an “injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). In certain cases, “serious questions going to the merits” and a hardship balance that tips sharply toward the plaintiff can support the issuance of a temporary restraining order, assuming the other two Winter elements are met. Alliance for the Wild Rockies, 632 F.3d at 1132. Serious questions “need not promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits.” Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (internal citations omitted). Under the Ninth Circuit’s “sliding scale” approach, “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (internal citations omitted).

IV. ARGUMENT This case arises under the Administrative Procedure Act, which requires that the Court set

aside agency action that is, inter alia, arbitrary and capricious, otherwise unlawful, or taken

without observing procedure required by law. See 5 U.S.C. § 706(2)(A), (D). ICE’s July 6

Directive fails under the APA standard in at least two general respects: it is both (i) arbitrary and

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capricious for lack of any reasoned explanation and for failure to consider factors plainly relevant to such a significant reversal of policy, and (ii) defective because ICE failed to provide the public advance notice of its proposed action or any opportunity to comment on it before finalization.
The July 6 Directive is arbitrary, capricious, or otherwise unlawful for at least three more specific reasons. First, ICE failed to offer a reasoned explanation for its sudden reversal of the March 13 Guidance—which ICE had stated expressly would extend “for the duration of the emergency.” When the government reverses its own earlier policy, it must “acknowledge and provide an adequate explanation for its departure from established precedent, and an agency that neglects to do so acts arbitrarily and capriciously.” Jicarilla Apache Nation v. U.S. Dep’t of the Interior, 613 F.3d 1112, 1119 (D.C. Cir. 2010) (internal citations omitted); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (agency departure from prior policy impermissible without “explaining its changed position”); Dep’t of Homeland Security v. Regents of the Univ. of Cal., No. 18-587, 2020 WL 3271746 (U.S. June 18, 2020) (“Regents”), at *14-15 (slip op.) at 23-24.
Second, ICE failed to consider important aspects of the problem, including: (1) the health risks associated with its new policy; the burden on universities of having to certify thousands of F-1 visa-holding students as complying with the Directive’s strictures regarding in-person instruction, all by August 4, when most students will not yet committed to their classes; (2) the impact of the reversal on the finances of, and other costs that must be borne by universities, due to the loss of tuition from F-1 students who disenroll or from having now to provide safe in-person instruction and certify that each student engaged in a hybrid program meets the Directive’s requirements; and (3) the many reliance interests, both of the University and its F-1 students, that ICE’s now abandoned March 13 Guidance engendered. An agency must grapple with such issues when it issues a substantive rule affecting the rights or obligations of individuals or entities.13 See

13 ICE concedes its July 6 Directive is intended to operate as a final rule. The Guidance itself states that the “U.S. Department of Homeland Security plans to publish the procedures and responsibilities in the below Broadcast Message [the July 6 Directive] in the near future as a Temporary Final Rule in the Federal Register.” (Emphasis added).

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Encino Motorcars, 136 S. Ct. at 2124-2126.

Third, ICE failed to articulate any rational connection between the facts it found and the

choice it made. See Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 687

n.15 (9th Cir. 2007); Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1051 (9th Cir. 2010).

Further, the July 6 Directive is fatally flawed, because it is a substantive rule affecting the

rights and obligations of the University and its students, and the promulgation of which required

ICE to first give notice to the public of its intent to adopt the rule, and provide any interested

person with an opportunity to comment before the Directive was finalized. 5 U.S.C. § 553(b). It

did not do that and, therefore, the July 6 Directive is unlawful for failure to follow the rulemaking

procedure required by the APA.

On both counts, Plaintiff is likely to succeed on the merits. The other preliminary

injunction requirements are likewise readily satisfied. As the supporting declarations make

abundantly clear, the University of California system stands to suffer substantial and irreparable

harm absent a temporary restraining order preserving the status quo. The balance of the equities

also weighs heavily in favor of a TRO: Plaintiff and its students will be injured immediately and

irreparably under the July 6 Directive, while the United States stands to lose nothing if the

Directive is enjoined. After all, a TRO would merely maintain the status quo the government

itself instituted, responsibly, in its March 13 Guidance, which it stated at the time would remain in

place for the duration of the emergency. The emergency is not over. Finally, a TRO is in the

public interest. The value to the public of colleges and universities of having vibrant and diverse

student bodies, including international students, is obvious—that value manifests not merely in

the form of the cultural experiences of individual students or the student body and campus life

generally, but in the economies of the host communities. If the international students leave, that

value to the public is lost. And if, alternatively—in an effort to salvage their international student

bodies—schools try to accommodate the July 6 Directive by reverting to in-person instruction

while the pandemic is still raging and thus risking increased transmission and community spread,

the public is harmed in all the ways public health officials have been warning about.

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A. THE REGENTS ARE LIKELY TO SUCCEED ON THE MERITS.
1. The Regents Are Likely to Prevail on the First Cause of Action Under the APA Because the July 6 Directive is Arbitrary and Capricious.

The Administrative Procedure Act “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). In evaluating whether agency actions are reasonable and lawful, courts must conduct a “thorough, probing, in-depth review” of the agency’s reasoning and a “searching and careful” inquiry into the factual underpinnings of the agency’s decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971). A court “shall” set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Butte Envt’l. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 945 (9th Cir. 2010). Agency action should be set aside as arbitrary and capricious if the agency fails to explain the basis of its decision, fails to consider all relevant factors and articulate a “rational connection between the facts found and the choice made,” or fails to offer a “reasoned explanation” for departures from preexisting policies. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal citation omitted); Encino Motorcars, 136 S. Ct. at 2126 (in explaining its changed position, an agency must also be cognizant that prior policies may have “engendered serious reliance interests that must be taken into account”); see also Regents, 2020 WL 3271746, at *14. The Directive fails each of these requirements.
a. The Directive Failed to Offer a Reasonable Explanation for ICE’s Policy Reversal.
As an initial matter, the Directive turns a blind eye to the reliance colleges and universities and their international students placed on the March 13 Guidance in planning for the Fall 2020 semester. Having stated in that earlier Guidance that the policy would remain in effect “for the duration of the emergency,” it was nothing short of shocking that ICE would announce in the Directive that F-1 students would not be allowed into the country or, if already here, would be required to leave the country, if their schools are not intending to provide traditional classroom

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instruction, and that universities would have to certify by August 4 that the courses selected by

thousands of international students in hybrid programs meet the Directive’s in-person classroom strictures. The July 6 Directive never acknowledges what the March 13 Guidance actually said:

that it would remain in place for the duration of the emergency. The Directive instead states that ICE had only provided guidance for the “spring and summer semesters.” That is not correct.

Even where authorized to do so, when a federal agency reverses its own prior policy, it

must “acknowledge and provide an adequate explanation for its departure from established precedent, and an agency that neglects to do so acts arbitrarily and capriciously.” Jicarilla, 613

F.3d at 1119 (D.C. Cir. 2010) (internal citation omitted); see also Encino Motorcars, 136 S. Ct. at 2126 (agency cannot depart from prior policy without “explaining its changed position”);

Regents, 2020 WL 3271746, at *14-15 (finding that DHS’s decision to rescind DACA was

arbitrary and capricious, in part because DHS’s memorandum rescinding the DACA policy failed to consider certain aspects of policy). Thus, reversing a pre-existing policy requires a “more

detailed justification than what would suffice for a new policy created on a blank slate.” FCC v. Fox Telev’n Stns., Inc., 556 U.S. 502, 515 (2009).
Here, as discussed, the Directive represents a complete reversal of Defendants’ earlier

Guidance on not only the existence and severity of the COVID-19 pandemic but, more importantly, the ability of students studying on F-1 visas “to continue to make progress in a

normal course of study.” See March 9 Guidance at 1. The failure to provide any justification for the reversal is contrary to law and requires that the Directive be set aside.

b. The Directive Failed to Consider Important Aspects of the Problem, Including the Reliance of Plaintiff and Its Students on the March 13 Guidance.
Further, the Directive fails to consider, much less evaluate, the significant reliance

interests of both the University and its affected students engendered by the current DHS/ICE

policy. Regents, 2020 WL 3271746 at *4; Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 106 (2015) (government must provide special justification “when its prior policy has engendered

serious reliance interests that must be taken into account”). The Directive also fails to consider the

health risks that a broader re-opening of in-person classes would entail; the burdens on the

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universities (and the likely impossibility) of having to certify, by August 4, that the courses

chosen by each F-1 visa holder in a hybrid program comply with the in-person classroom

strictures of the Directive; and the financial and other impacts the Directive would have on

universities and their educational programs, as well as on students, faculty and staff.

The March 13 Guidance expressly permitted F-1 students to “participate in online or other

alternate learning procedures” and assured universities and students that the policy would be “in

effect for the duration of the emergency.” See March 13 Guidance; see also id. at 1-2 (applying

same policy to international students who return to their home countries and continue to take

classes on-line). To change this policy with no notice and without considering any of these

effects, is an arbitrary, capricious, and unreasoned agency action. It must be set aside.

Based in part on the March 13 Guidance, the University started preparing and planning for

the Fall 2020 semester four months ago. See Christ Decl. ¶ 3. Specifically, at each campus, the

University engaged its faculty in the assessment and development of COVID-19 recovery and

resiliency planning to ensure the safety of its university community while continuing to carry out

its education and research mission. See generally id., ¶¶ 4-17. The University invested millions of

dollars and thousands of faculty hours tackling important considerations impacting health and

safety. Alcocer Decl., ¶ 10. At UC Berkeley alone, nine committees of experts across numerous

disciplines have worked for months to determine the University’s best course forward in the Fall.

Christ Decl., ¶ 4. Relying on the fact that international students would continue their studies

online, the University administration and various working groups devised a complex course

schedule that accounted for the large number of courses and the nature of individual courses and

the feasibility of transitioning those courses to online instruction. Id. ¶ 12. The University’s Fall

semester curriculum assumed that international students would continue to be enrolled at the

University even if their classes would be held primarily online. Id. at ¶¶ 11-16. Also relying on

the March 13 Guidance, the University’s Fall curriculum assumed that international graduate

students would continue in their roles as teaching assistants. Similarly, the University’s budget for

the Fall semester assumed the continued enrollment of international students. Alcocer Decl., ¶¶ 5-

6. The disenrollment of international students from the University in the Fall semester alone

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resulting from the enforcement of the Directive could be substantial, and likely cannot be made

up by extending offers at this late date to U.S.-based students. Id.

UC’s students who hold F-1 visas relied on the March 13 Guidance as well. See Christ

Decl. ¶19. Many international students continued to live near their campuses in reliance on the

fact that they could continue their instruction, albeit online, through the Fall semester. Id. If the

Directive is enforced, those students who remained in the U.S. during the Summer would be

forced to break their leases at great expense. Id. Those students who have already left the country

planning to return for the Fall semester, have not made plans to transfer to other universities – and

are to suffer significant interruption in their education with negative impacts to their career

prospects. Other international students will be unable to participate in U.S.-based practical

training opportunities like internships that will further impact their development of practical skills

and professional networks.

Had these international students known that Defendants would abruptly issue its

Directive, thereby reversing the March 13 Guidance, these students could have made other

arrangements for Fall 2020. Now, it is too late to expect students to transfer to other universities,

especially for those students in specialized courses of study, as the Directive suggests that

students may do. Moreover, similarly-situated universities dealing with the devastating effects of

COVID-19—indeed, all of them—would also be forced to primarily offer online instruction. The

government’s facile instruction that international students simply enroll in a different university

offering in-person instruction is particularly cruel under the circumstances.

Beyond reliance interests, the Directive is oblivious to other important aspects of the

problem. Among other things, Defendants failed to consider the social, academic, and research

impacts of their decision. Many students have already reported the emotional and psychological

harm from the sudden, unanticipated about-face in the government’s immigration policy. Others

have expressed concern about being forced to return to the violence and poverty afflicting their

home countries or being forced to return to their home countries where there may not be adequate

access to reliable high-speed internet required for remote learning technologies.

The Directive also fails to account for the various benefits and contributions made by

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international students to institutions of higher learning. All students benefit from a diversity of

perspectives and experiences. Depriving universities of a key element of their diverse student bodies does real damage to the institution of learning and to all students’ educational experience.

Moreover, international students play critical roles in the University’s research partnerships as discussed above. The threat to the University’s research objectives caused by the removal of

international students merely because their coursework will take place online in the midst of a

global pandemic is substantial. In some cases, the setback in research due to the loss of the unique skillsets of many international students is months, if not years. See Christ Decl. ¶ 18; Deas Decl.

¶¶ 21(a), 23; Schooley Decl. ¶ 20(a).Further, Defendants have not acknowledged, much less analyzed or considered, the extreme setback to public health that their July 6 Directive represents.

As a result of the significant losses threatened by the disenrollment of thousands of international

students, the July 6 Directive will likely force universities to prematurely revert to in-person instruction, upending any gains made by communities in quelling the rapid spread of COVID-19

and squandering the past sacrifice of millions across this country. Many of these harms are explained further below, in the discussion of irreparable harm, and detailed more completely in the attached declarations. But in addition to the Court’s evaluation of the gravity of the harms for

purposes of that separate prong of the TRO test, it must consider ICE’s lack of attention to these harms in evaluating the reasonableness of the agency’s action. Here, the July 6 Directive lacks the

sine qua non of lawful agency action: reasoned decision-making. See Regents, 2020 WL 3271746, at *15.

c. Defendants Failed to Explain Any Basis for the Directive. The Directive is arbitrary and capricious also because it does not articulate any rationale that would justify ICE’s decision. It is “a fundamental requirement of administrative law … that

an agency set forth its reasons for decision; an agency’s failure to do so constitutes arbitrary and

capricious agency action.” Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (internal citation omitted). “[C]onclusory statements will not do; an agency’s statement must be

one of reasoning.” Id. (internal marks omitted); see also Dep’t of Commerce v. New York, 139 S.

Ct. 2551, 2569 (2019) (an agency must “articulate[] a satisfactory explanation for [its] decision”).

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The two and one-half page Directive fails this threshold test. It threatens to inflict grievous harm on hundreds of thousands of F-1 visa-holding university students who were invited to study at American universities, including the potential for removal proceedings to make them leave, without providing any explanation—much less a clear and adequate explanation—as to why.
The sole statement that might be considered a “justification” is the statement that while “accommodations to provide flexibility to schools and nonimmigrant students” may be made, such accommodation must be weighed against “a concordant need to resume the carefully balanced protections implemented by federal regulations.” Compl., Ex. A at 1. Such threadbare and cryptic justification is woefully deficient, if for no other reason than the fact that it cannot possibly be based on “the relevant data,” such as the well-documented fact that the COVID-19 health crisis is currently intensifying, not abating. See Dep’t of Commerce v. New York, 139 S. Ct. at 2569. This is demonstrable from the simple fact that the rate of infections and hospitalizations is greater today than it was when the March 13 Guidance issued. Moreover, the government itself is predicting that as many as 1.5 million people may ultimately die from COVID-19 illness, with nearly 210,000 of those deaths occurring by November 1. Thus, to the extent that this statement can be read as the federal government’s justification for its abrupt about-face from its March 13 Guidance, it is inadequate as insufficiently based on fact and reason.
Moreover, DHS has admitted publicly that the actual basis for the reversal of the policy rests on political considerations rather than rational decision-making after reasoned deliberation and consultation with experts. Acting Deputy Secretary of Homeland Security Kenneth Cuccinelli set pretext aside when he plainly announced, on July 7, 2020, that the F-1 visa policy change is designed to “encourage schools to reopen.”14
In light of Defendants’ failure to provide any comprehensible rationale for its about-face, the Directive rescinding the March 13 Guidance should be set aside. SEC v. Chenery Corp.

14 John Bowden, Cuccinelli says rule forcing international students to return home will ‘encourage schools to reopen’ (July 7, 2020, 4:17 PM), https://thehill.com/homenews/administration/506248-cuccinelli-says-rule-forcing-internationalstudents-to-return-home

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(“Chenery II”), 332 U.S. 194, 196–97 (a court cannot “be compelled to guess at the theory

underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.”); Nat’l Ass’n of Home Builders v. Norton,

340 F.3d 835, 849 (9th Cir. 2003) (same).

2. The Regents Will Likely Prevail on Its Second APA Cause of Action, Because the Directive is a Substantive Rule that Did Not Comply with the APA’s Notice and Comment Requirements
The Regents are also likely to succeed on its claim that the Directive purporting to rescind
the March 13 Guidance also fails to meet the APA’s procedural requirements. The Directive is a

legislative rule compelling universities to take certain action, not previously required, under pain of being deemed out of compliance. Indeed, ICE states in the Directive itself that it intends to

publish its content at some future time in the Federal Register as a Temporary Final Rule.

Because the Directive is a legislative rule, DHS was required to abide by the full panoply of APA procedures, including providing notice and an opportunity for public comment. It failed to do so.

Under the APA, courts must set aside agency action that is taken without observance of procedures required by law. 5 U.S.C. § 706(2)(D). An agency’s substantive rules must go through the APA’s notice and comment rulemaking requirements before they become effective. See 5

U.S.C. § 553(b), (c); San Diego Air Sports Ctr., Inc. v. F.A.A., 887 F.2d 966, 971 (9th Cir. 1989). A rule is substantive if it “narrowly limits administrative discretion” or establishes a “binding

norm” that “so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criterion.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009). Put another way, an agency’s substantive rule that has the

“force and effect of law” is subject to the APA’s notice and comment procedures. Chrysler Corp. v. Brown, 441 U.S. 281, 302-303 (1979); accord Ciox Health, LLC v. Azar, 435 F. Supp. 3d 30,

66 (D.D.C. 2020) (explaining that “a rule is legislative, and therefore must undergo notice and

comment, when it ‘change[s] the law,’” and concluding that HHS’s amended rule and guidance regarding fees for delivering health records was a legislative rule subject to notice and comment)

(quoting Nat’l Res. Def. Council v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011)).

Here, the Directive is a substantive rule for which the APA’s notice and comment

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requirements applied. Among other things, because the University is adopting a hybrid model – that is, a mixture of on-line and in-person classes –for the Fall 2020 semester, the Directive compels the University to certify to SEVP for each of its 37,000-plus F-1 students that, among other things, “the student is not taking an entirely on line course load” by August 4, 2020. Christ Decl. ¶ 17(f). This is a significant burden on the University as it will require thousands of hours of staff time, further exacerbated by the fact that only designated school officials certified by DHS may perform these tasks, thereby significantly limiting the University’s ability to adapt to this substantial added burden. Id.. The Directive also compels F-1 visa students to take courses inperson to be able to remain in the United States to continue pursuing their studies or face the threat of visa revocation or even removal. ICE/SVEP is also conditioning the UC students’ maintenance of their F-1 nonimmigrant status upon compliance with the Directive. The Directive is indisputably a substantive rule, subject to notice and comment requirements.
B. THE REGENTS AND ITS STUDENTS ARE LIKELY TO SUFFER IRREPARABLE HARM.

The Directive is already inflicting severe and irreparable harm on the University. UC is

being forced right now to grapple with decisions with life-altering consequences for its

international students as well as serious impacts to the health and safety of everyone affiliated

with the University and the communities that it serves. The Directive presents the University with

a Hobson’s choice: reopen more of its lecture halls, dormitories, and dining halls at great risk to

the health of all of its students, faculty, and staff, or effectively prevent UC students who hold F-1

visas the opportunity to carry out their studies and, thus, deprive all other UC students of the

diversity of opinion and perspective that they expect and is central to the pedagogy of a world-

class academic institution. UC’s impossible decision threatens irreparable consequences for its

academic community, including the immediate loss of valued students and the erosion of any

gains made to date in protecting its community from an even higher rate of transmission of the

potentially deadly COVID-19 virus. That the Directive theoretically permits UC students with F-1

visas to transfer to another university does not materialize into realistic options for UC students at

this time. In this situation, “[a] delay, even if only a few months, pending trial represents precious,

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productive time irretrievably lost.” Enyart v. Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1166 (9th Cir. 2011) (internal citation omitted). Moreover, it is no solution to permit international students to take a “hybrid” course load where then any international student with a pre-existing medical condition that makes him or her susceptible to severe illness resulting from COVID-19 would be unfairly discriminated against for opting not to attend in person classes.
The Directive further creates economic harm to the University. See Alcocer Decl. ¶¶ 5-6. Moreover, the budget shortfall will also prevent the University from carrying out planned infrastructure and capital improvements to its campus facilities. Id. ¶ 9. Even before the Directive, the University was reeling from the economic fall-out of the COVID-19 pandemic and the resultant transition to on-line learning. Indeed, the University spent millions developing its COVID-19 recovery and resiliency plans, which investment would be rendered meaningless if the University were forced to abandon its well-considered plan to protect the health of its community. Id. ¶ 10. Furthermore, the University estimates that it will have to expend significant resources to reissue I-20 forms for the thousands of students affected by the Directive. See Christ Decl., ¶ 17.
More importantly, if the Directive is implemented, the University will suffer the loss of many international students that are vital to the pedagogy of its lecturers, the vibrancy of its culture, and the success of its research programs. The University and surrounding community will further lose the substantial economic benefit from international students. Christ Decl. ¶ 19(d).
C. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH HEAVILY IN FAVOR OF A TEMPORARY RESTRAINING ORDER.
The final elements of the preliminary injunction test—the balance of the equities and the public interest—merge when the government is a party. See League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). In assessing these factors, courts consider the impacts of the injunction on nonparties as well. See id. at 766.
The balance of the equities and the public interest weigh overwhelmingly in favor of granting a temporary restraining order to the Regents to maintain the status quo, in advance of the August 4 deadline to submit Form I-20 certifications to ICE. Compl., Ex. A at 2. While UC and its students holding F-1 visas will be severely impacted should the Directive be implemented, the

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Defendants face no articulable harm should the Court grant a temporary restraining order. Since Defendants intended for the March 13 Guidance to remain “in effect for the duration of the emergency,” they cannot now claim that they will be harmed by the continuation of their sound, prior policy. As discussed in detail above, the public health emergency caused by the COVID-19 pandemic is ongoing, and there is no reasonable basis to contend otherwise. Further, the reversal in policy appears to stem from a desire to reopen schools regardless of whether doing so will harm the health and lives of university students, faculty, and staff and place other with whom university community members come into contact at risk. The balance of equities between UC’s goal of protecting the health and well-being of its community and maintaining its academic freedom on the one hand, and a federal government seeking to recklessly force in person activity at universities on the other, tips sharply in favor of granting the temporary restraining order. It is abundantly in the public interest that Defendants be enjoined from carrying out their arbitrary and capricious plan to force the premature transition of universities to in-person learning.
Finally, a temporary restraining order is appropriate where, as here, the hardship balance tips sharply toward the plaintiff, and the plaintiff has articulated “serious questions going to the merits.” Alliance for the Wild Rockies, 632 F.3d at 1132. The Regents have demonstrated “a fair chance of success on the merits” on their claims and irreparable harm if the Directive is permitted to proceed. Further, the balance of equities and the public interest favors the Regents. V. CONCLUSION
For all the above reasons, this Court should issue a TRO which (i) enjoins Defendants from proceeding with their July 6 Directive and (ii) orders that Defendants preserve the status quo ante pending adjudication of this dispute on the merits.

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Dated: July 10, 2020
SFACTIVE-905705894.8

Respectfully submitted,
CROWELL & MORING LLP
By: /s/ Jennifer S. Romano Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com Crowell & Moring LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) Allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Thomas A. Lorenzen (pro hac vice forthcoming) tlorenzen@crowell.com Daniel W. Wolff (pro hac vice forthcoming) dwolff@crowell.com CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 Telephone: 202.624.2500
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No.:

DECLARATION OF DAVID ALCOCER

[Filed Concurrently with Ex Parte Application to Shorten Time]

Date: Time: Ctrm: Judge:

July 13, 2020 TBD TBD TBD

Complaint filed: July 10, 2020

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I David Alcocer, declare: 1. I am Associate Vice President for Budget Analysis and Planning at the University of California (the “University”), Office of the President (“UCOP”). The matters set forth herein are true and correct of my own personal knowledge and, if called as a witness, I could and would testify competently thereto. 2. As Associate Vice President for Budget Analysis and Planning, I am responsible for overseeing the University’s system-wide operating budget and University policies regarding the allocation of revenues across campuses. 3. I received my B.S. in Political Science from Massachusetts Institute of Technology, a Master of Industrial Relations (M.I.L.R.) from Cornell University, and a Master of Business Administration (M.B.A.) from Cornell University. I have worked in my current role as Associate Vice President for Budget Analysis and Planning for UCOP since July 2016. 4. As part of my role as Associate Vice President for Budget Analysis and Planning, I am very familiar with University tuition and fees, the expenses attendant with running one of the nation’s largest and best systems of higher education, and the financial impact that international student enrollment and tuition and fee payments by such international students have on the overall budget of the University of California. Tuition and fees assessed to international students typically range from approximately $29,000 to $44,000 per year, depending on the program (e.g., undergraduate, graduate academic, or graduate professional) in which they are enrolled. 5. Based on 2019-20 student enrollment levels and tuition and fee rates, the total tuition and fees attributable to international undergraduate students in the University of California system was approximately $1.1 billion. 6. Further, based on 2019-20 student enrollment levels and tuition and fee rates, the total tuition and fees attributable to international students in graduate academic programs in the University of California system was approximately $270 million. The total tuition and fees attributable to international students in graduate professional programs in the University of California system was approximately $80 million.

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7. Given this significant financial contribution international students make to the

University of California system’s revenue base through the payment of tuition and fees alone,

widespread disenrollment of international students from University programs that may occur if

the University is unable, for safety and other reasons, to offer sufficient in-person education

opportunities to comply with ICE’s July 6 Directive is expected to substantially impact the

University’s financial health and stability.

8. The financial impact of reduced international student enrollment cannot be offset

by enrolling additional California resident students due to the substantially lower tuition paid by

California resident students. While an international undergraduate student is currently charged

approximately $44,000 per year, students with California-resident status are charged

approximately $14,000 per year.

9. The massive potential loss of revenue that would result from the widespread

disenrollment of international undergraduate and graduate students from the University of

California system would also adversely impact remaining University of California students.

Campuses rely on the tuition and fees paid by international students to maintain the academic

infrastructure that is required to support to all students, including faculty, academic advisors,

student services, financial aid programs, and maintenance of the University’s buildings and

grounds. For example, tuition and fees paid by international undergraduate students provide an

estimated $80 million in financial aid to California resident undergraduate students. Given that

the tuition and fees attributable to international students represent approximately 30 percent of

total tuition and fees received by the University system, the impact on campus operations would

be significant.

10. The University of California has expended substantial sums to prepare an

educational curriculum for the Fall 2020 term that provides high-quality educational services,

often through remote means, while protecting the safety of the system’s students, faculty, and

other employees, as well as the greater university communities that thrive based on the presence

of our campuses and educational programs. ICE’s July 6 Directive will upset that careful

preparation, at considerable cost to the University, and likely cost the University millions of

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dollars in additional expenses if in-person educational options must now be developed and implemented to ensure the continued presence of international students in the University system.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge.
Executed in Oakland, California, on this 10th day of July 2020.
David Alcocer

DECLARATION OF DAVID ALCOCER ISO

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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800

Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750

Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,

Case No.: 3:20-cv-04621 DECLARATION OF MICHAEL BECK

Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,

[Filed Concurrently with Ex Parte Application to Shorten Time]

Date: Time: Ctrm: Judge:

July 14, 2020 TBD TBD TBD

Complaint filed: July 10, 2020

Defendants.

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DECLARATION OF MICHAEL BECK

I, Michael J. Beck, declare:

1. The matters set forth herein are true and correct of my own personal knowledge

and, if called as a witness, I could and would testify competently thereto.

2. I am the Administrative Vice Chancellor at the University of California, Los

Angeles (UCLA). I have held this role since March 2016. I also chair the Emergency

Management Planning Group (EMPG) at UCLA.

3. UCLA has over 45,000 students. Approximately two-thirds are undergraduate

students, and one-third are graduate students. Approximately 7,400 students with F-1 visas are

currently eligible to enroll for fall 2020.

4. Throughout the novel coronavirus (COVID-19) outbreak, I have worked

extensively at UCLA and in collaboration with other UC campuses on our response to the

pandemic, and I serve as UCLA’s primary administrator in charge of managing UCLA’s COVID-

19 response and recovery actions. As part of those efforts, I established the University of

California’s systemwide “Back to School” working group, which meets weekly to share campus

response plans and efforts across University of California campuses.

5. As Administrative Vice Chancellor at UCLA, I also serve as a member of the

University’s Council of Vice Chancellors for Administration, consisting of vice chancellors for

Administration (or similar) from each of the University’s ten campuses, Lawrence Berkeley

Laboratory, and UC Agriculture and Natural Resources. In that role, I have participated in regular

calls with other campus vice chancellors to discuss the University’s preparations and response to

the COVID-19 pandemic. During those calls, the vice chancellors regularly discuss the measures

each campus has taken in response to the COVID-19 pandemic, and coordinate systemwide

policies and responses to COVID-19, which are applicable to all of the University’s campuses.

6. In my efforts regarding COVID-19 response, I regularly consult with UCLA

Health’s infection disease experts, as well as officials from other UC campuses, and officials with

the LA County Department of Public Health (DPH). I have participated as a member of the LA

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County Department of Public Health Higher Education COVID-19 Recovery Focus Group, which provided recommendations and feedback on its anticipated guidelines for institutions of higher education.
7. I began working on UCLA’s COVID-19 response at the end of February 2020. I was instrumental in establishing the Academic Continuity Task Force and the Future Planning Task Force and its various work groups, to address ramping up research, future planning for learning, academic continuity, and addressing testing, physical distancing, and remote working. Among other responsibilities within the EMPG, I consulted UCLA’s Chancellor in his March 11, 2020, decision to transition UCLA to remote instruction and I aided the research ramp-up committee.
8. Beginning on March 11, 2020, UCLA suspended nearly all in-person classes and transitioned to remote learning for nearly all instructional activities. UCLA did so after careful consideration based on the opinions of public health agencies and experts and with a focus on the health and safety of UCLA’s students, faculty, and staﬀ.
9. The University of California has created a systemwide Testing and Tracing Task Force (the “UC Task Force”) to make recommendations for all University locations in response to the COVID-19 pandemic. The UC Task Force is chaired by Dr. Carrie L. Byington, MD, Executive Vice President of UC Health; Theresa Maldonado, PhD, Vice President of the UC Office of Research and Innovation; and Larry Anstine, CEO emeritus, UC Irvine Health; and includes subject matter experts, administrators, faculty (including Academic Senate representation), and staff from across the UC system.
10. I am familiar with and have reviewed the COVID-19 Guidance for the Student and Exchange Visitor Program (“SEVP”) issued by United States Immigration and Customs Enforcement (“ICE”) in response to the COVID-19 pandemic. On March 13, 2020, ICE issued COVID-19 Guidance for Student and Exchange Visitor Program Stakeholders (“March 13 Guidance”). Pursuant to the March 13 Guidance, students in the United States holding F-1 or M-1 visas are allowed to “count online classes towards a full course of study” in the event their school

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temporarily stops in-person classes, regardless of whether the visa holders remain in the United States or departed the United States. The March 13 Guidance stated that it would remain “in eﬀect for the duration of the emergency.”
11. After consulting with campus leadership, being informed by the systemwide and campus studies and groups described above and to address the public health concerns in Los Angeles County, and in reliance on the March 13 Guidance and its representation that it would remain “in eﬀect for the duration of the emergency,” on June 15, 2020, UCLA announced it will offer only limited in-person instruction for the Fall 2020 quarter (the “Fall 2020 Plan”). Per the recommendation of public health experts and the assessment of UCLA’s Future Planning Task Force, and to minimize the risks associated with the COVID-19 pandemic, UCLA anticipates that only 15% to 20% of courses offered during the Fall 2020 quarter will be offered in an on-site or hybrid (i.e., partially online and partially on-site) format. All in-person and hybrid classes also have limited enrollments due to the requirement to maintain 6-foot physical distancing within the classroom or laboratory, which results in an occupancy level of about 20-25% of normal. The remainder of courses offered at UCLA during the Fall 2020 quarter will be offered via remote means. As recommended by public health experts and based on the Future Planning Task Force assessment, almost all classes, including those with in-person instructional activities, will also be provided via a remotely delivered method. Among other things, this ability for students to participate remotely allows for individuals with an elevated risk for serious illness from COVID19 are not required to sacrifice their personal wellbeing as a condition of participating in their education.
12. While the Fall 2020 Plan may need to be adjusted based on continued increases in COVID-19 cases in the community, and based on local, state and federal public health orders and guidance, UCLA does not expect that it will be able to significantly increase the amount of inperson instruction before the beginning of the Fall quarter due to the need to reduce density of UCLA’s campus, which includes approximately 45,000 undergraduate and graduate students. UCLA, along with other UC campuses are actually contemplating reducing in-person activities on

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campus further as a result of the current surge of COVID cases in California. If UCLA were to significantly increase the number of in-person course offerings during the Fall 2020 quarter, it would increase the population and density of students, faculty, and staff on UCLA’s campus and could pose a public health risk to everyone on UCLA’s campus by significantly increasing the risks of transmitting the virus among the UCLA community, and potentially beyond. Notably, if UCLA were to significantly increase the number of in-person course offerings during the Fall 2020 quarter it would be difficult for UCLA’s students, faculty, and staff to maintain physical distancing requirements as directed by public health agencies and experts to minimize the risk of transmission. UCLA is actually considering further reducing the planned campus population for the fall based on current conditions.
13. For example, for the limited number of in-person classes that UCLA expects to offer during the Fall 2020 quarter, UCLA has limited occupancy in classrooms to maintain the CDC recommended six-foot physical distancing between individuals wearing face coverings. Seats will need to be marked at distances recommended by the CDC and the LA County Department of Public Health, to be at least six feet apart.
14. Further, the State of California has yet to authorize in-person classes for higher education. To comply with county, state, and federal physical distancing guidelines, most UCLA classrooms must be limited to 20-25% capacity. This also limits the number of in-person offerings. Undergraduate housing is anticipated to be limited to approximately 55% of normal capacity, though this may be limited even more if COVID-19 continues to worsen in Los Angeles. UCLA is developing a contingency plan to transition back to all remote classes if necessary.
15. The status of UCLA’s anticipated 7,400 international students with F-1 visas was an important concern in planning for Fall 2020. UCLA has relied on the March 13 Guidance permitting remote learning in developing the Fall 2020 Plan. For example, UCLA considered that certain students would need to return to campus for certain limited activities that cannot as effectively be conducted remotely, such as some laboratory courses, some performing arts classes,

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and some courses in clinical health fields. Based on the March 13 Guidance, UCLA made the transition to largely remote learning with confidence that our students would be able to continue their studies and conduct valuable research while being in the same time zone as their professors and peers and remaining close to the resources and facilities they would need. UCLA also did so based on the confidence that UCLA’s international students would be in the United States if further reopening of in-person facilities became feasible. These considerations were critical to the development of UCLA’s Fall 2020 Plan because, as the LA County Department of Public Health has repeatedly emphasized, decreasing normal campus population density is essential to decrease interactions that may result in person-to-person transmission of the virus.
16. On July 6, 2020, ICE issued a “broadcast message” entitled “COVID-19 and Fall 2020” (“July 6 Directive”). The July 6 Directive largely withdraws the exception that ICE announced in March.
17. The July 6 Directive states that “schools adopting a hybrid model – that is, a mixture of online and in person classes –” must by August 4, 2020, certify to SEVP for each F-1 visa student that, among other things, “the student is not taking an entirely online course load.” Students for whom the school cannot so certify “must leave the country or take alternative steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction.”
18. The July 6 Directive, if allowed to proceed, will have signiﬁcant negative impacts on UCLA and on UCLA’s students.
19. For months, UCLA has committed substantial time and resources analyzing the evolving threat of COVID-19 and devising plans to continue to pursue its education and research mission while also focusing on the health and safety of its students, faculty, staﬀ, and the surrounding community. UCLA’s Fall Quarter begins on September 28, 2020, with instruction beginning on October 1, 2020, and enrollment for Fall Semester courses began on June 24, 2020. Because UCLA’s undergraduates are on a quarter schedule, UCLA has assessed those courses that are anticipated to be offered in person subject to public health orders permitted it. The ability to proceed with in person offerings will be impacted by the changing status of the pandemic and

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local, state and federal guidelines and directives. Given the already limited number of options available to UCLA to conduct in-person classes in compliance with physical distancing and other requirements, the July 6 Directive substantially burdens UCLA’s ability to adapt to changing circumstances by further inhibiting UCLA’s options.
20. Additionally, it would be highly burdensome for UCLA to comply with the July 6 Directive’s August 4, 2020 deadline for reissuing Form I-20 documents for UCLA’s nearly 7,400 eligible F-1 visa students. UCLA would be required to reissue approximately 7,400 Form I-20 documents for its F-1-visa international students, each populated with student-specific remarks. However, only Designated School Officials certified by the U.S. Department of Homeland Security perform these tasks, significantly limiting UCLA ability to adapt to this substantial and added burden.
21. Based on my experience planning UCLA’s responses to COVID-19, I estimate that increased hybrid or fully in-person classes are possible in some fashion in a later academic quarter this school year. This would require students, including international students, to return to campus. If UCLA’s F-1 visa international students were required to leave the United States to continue their education, some students may not be allowed to reenter the U.S. once greater inperson coursework resumes because their visas will have since lapsed. And even if they were permitted to return to the United States, these students likely would have trouble securing campus or community housing on such short notice and in the middle of the academic year.
22. Nor is it ideal for students to participate in distance learning from a country outside of the United States. If UCLA’s international students are forced to return to their home countries to continue their education, many of those students will be several time zones away from Los Angeles. These students would face serious difficulty accessing office hours, labs, or other courses during ordinary waking hours in their time zones.
23. Further, the loss of international students will adversely impact the diversity of UCLA’s student body, disrupting the diverse learning and social environment UCLA strives to offer all of its students. Maintaining a diverse student body is critical to UCLA’s mission and to

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the educational experience of its students. If the July 6 Directive causes UCLA’s international students to either take a leave of absence or withdraw entirely, it will not only harm the educational experience of those international students, but also the educational experience of UCLA’s domestic and California-resident students.
24. UCLA would also lose revenue in addition to losing the diverse learning environment that UCLA and its students, faculty, and staff value. UCLA does not allow students to defer, meaning that international students could choose to leave UCLA to attend other universities if they were not able to relocate to Los Angeles. Students, therefore, may leave UCLA to attend another university that will offer on-campus learning in the midst of the pandemic. The loss of revenue from such actions would cause irreparable harm to UCLA.
25. Even if UCLA were permitted by local health conditions and authorities and able to implement in-person or hybrid (i.e., partial in-person, partial virtual) instruction for all F-1 visa students, such that they could remain in the United States, signiﬁcant burdens would remain for UCLA and international students. While a hybrid program might allow domestic students to select only online courses if they have health conditions that place them at a greater risk (or simply want to avoid the greater risk of infection that in-person instruction imposes), under the July 6 Directive, F-1 students will not have that option.
26. The July 6 Directive requires in-person participation at levels that could pose a significant health risk to these students that is not being imposed against any other students attending higher education institutions.
27. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.
Executed in Los Angeles, California, on this 10th day of July 2020.

Michael Beck

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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No.:

DECLARATION OF DR. CARRIE L. BYINGTON

[Filed Concurrently with Ex Parte Application to Shorten Time]

Date: Time: Ctrm: Judge:

July 14, 2020 TBD
TBD
TBD

Complaint filed: July 10, 2020

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I, Carrie L. Byington, M.D., declare:

1. I am Executive Vice President for the UC Health and a Professor of Pediatric

Infectious Diseases at the University of California, San Francisco. I am a medical doctor,

specializing in pediatric infectious diseases. My research has focused on the clinical management

and prevention of respiratory infection and the development of diagnostic technology for the

recognition of pathogens with pandemic potential. I have worked on the prevention and control

of infectious diseases in the United States and internationally. Among other experience, I have

planned emergency infrastructure for universities, was responsible for protecting Team USA

athletes and staff from Zika Virus during the 2016 Olympic Games in Brazil, and chaired the

American Academy of Pediatrics Committee on Infectious Diseases during the Ebola and Zika

outbreaks (2014-2018).

2. I received my B.S. in biology from Texas A&M University, cum laude, in 1985,

and my M.D. from Baylor College of Medicine in 1989. I completed a pediatric residency at

Baylor College of Medicine and I completed a fellowship in Pediatric Infectious Diseases at the

University of California, San Francisco.

3. My research focuses has been on respiratory pathogens and pandemics. My career

in academic medicine has bridged clinical care and public health. Before I began my position at

UC (2019), I was Senior Vice President for Health Sciences and Vice Chancellor for Health

Services at Texas A&M University (2017-2019); Distinguished Service Professor at University of

Utah (2015); Director and Principal Investigator, Utah Center for Clinical and Translational

Science (2015-2016); Associate Vice President of Faculty and Academic Affairs at the University

of Utah Health Sciences Center (2013-2016); Co-Director and Principal Investigator at the Utah

Center for Clinical and Translational Science (2013-2016); Benning Presidential Professor of

Pediatrics at the University of Utah Health Sciences Center (2010-2016); Vice Chair (Oversight

Research Enterprise) of the Department of Pediatrics at the University of Utah Health Sciences

Center (2009-2013); Associate Director of the University of Utah Center for Clinical and

Translational Science (2008-2013); Associate Chair for Clinical Research of the Department of

Pediatrics at the University of Utah Health Sciences Center (2007-2009); Professor of Pediatrics,

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Division of General Pediatrics and Division of Pediatric Infectious Diseases at the University of Utah Health Sciences Center (2006-2016); Lowell Bennion Public Service Professor at the University of Utah (2001-2002); Associate Professor, Division of General Pediatrics and Division of Pediatric Infectious Diseases at the University of Utah Health Sciences Center (2000-2006); Assistant Professor, Division of General Pediatrics and Division of Pediatric Infectious Diseases at the University of Utah Health Sciences Center (1995-2000); and Assistant Professor for the Division of Ambulatory Pediatrics at Baylor College of Medicine (1992-1993).
4. Since January 1, 2020, I have been collaborating with UC leadership and its campus hospital leaders regarding UC’s emergency response to COVID-19. Our goal has been to prioritize the health and safety of our students, staff, and faculty at UC and the patients in its health system. I currently lead and serve on numerous COVID-19 advisory groups for the national, state, and UC’s response to the virus.
5. Beginning March 18, 2020, I have chaired a subcommittee of the UC Office of the President (UCOP) Management Response Team (MRT) named the UC Health Coordinating Committee (the UC-HCC) to advise on UC Health’s response to the pandemic. The UC-HCC members include representatives from the entire UC System of standing and ad hoc working groups established by UC Health to provide subject matter expertise in domains including clinical research, education, public health, infectious disease, laboratory medicine, critical care medicine, telehealth, pharmacy, and other disciplines, as well as ethical, legal, and social issues related to UC Health’s response to the pandemic. Among other things, I, as Chair of the UC-HHC, have been offering UC Health leaders, the Council of UC Chancellors, the UC President, and the UC Board of Regents, my expert advice through the UC-HCC and the incident command structure at each UC Health location, collaborating with internal stakeholders, and coordinating with various federal and state public health officials, other health systems, and relevant professional organizations. A narrative of many of the activities related to the UC-HCC COVID-19 response is found in my written updates to the UC Board of Regents available at: https://www.ucop.edu/uchealth/staff/bios/carrie_byington.html

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6. The UC-HCC has smaller subsections dedicated to targeted efforts for the UC to

respond to COVID-19. There is a UC-HCC Executive Group, a Government Outreach branch

and a Planning Team. Within the Planning Team, there are individuals with expertise in clinical

research, education, laboratories, bioethics, and public health. These groups work with existing

UC systemwide groups to provide recommendations to UC for its response to COVID-19.

7. COVID-19 is a respiratory virus that easily infects humans. Infections may range

from asymptomatic to life-threatening. Patients typically present with acute respiratory signs and

symptoms, which can escalate in some patients to respiratory failure and other serious, life-

threatening complications with organ damage to the heart and kidneys and blood clotting. The

most common symptoms are fever, cough, and shortness of breath. Other identified symptoms

include muscle aches, headaches, chest pain, diarrhea, coughing up blood, sputum production,

runny nose, nausea, vomiting, sore throat, confusion, lack of senses of taste and smell, and

anorexia. Due to the respiratory impacts of the disease, individuals may require oxygen therapy,

and in severe cases, patients may need to be intubated and receive mechanical ventilation or be

placed on ECMO. People of every age can and have contracted COVID-19, including severe

cases. Severe cases and deaths have been reported at every age, Geriatric patients are at the

greatest risk of severe cases, long-term impairment, and death. Likewise, those with

immunologic conditions and with other pre-existing conditions, such as hypertension, certain

heart conditions, lung diseases (e.g., asthma, COPD), diabetes mellitus, obesity, and chronic

kidney disease, are at high risk of a life-threatening COVID-19 illness. Pregnant women are also

recognized as a group that may have more severe infection with COVID-19 resulting in

hospitalization and need for intensive care.

8. COVID-19 is readily spread through respiratory transmission. Importantly,

asymptomatic person to person transmission of COVID-19 is common. People may transmit the

virus even when they exhibit no symptoms and may transmit in the days before symptoms appear.

The viral loads are high in both asymptomatic and pre-symptomatic individuals. All people are

susceptible to COVID-19, as it is a novel virus. Even, 6 months into the pandemic, ~ 95% of the

US population remains susceptible to COVID-19 with similar proportions susceptible world-

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wide. All people are capable of getting COVID-19 because of the ease with which it spreads

through person to person contact. The virus is spread through droplet transmission; that is, when

an infected individual speaks, coughs, sneezes, and the like, they expel droplets which can

transmit the virus to others in their proximity. There is growing evidence that COVID-19 is also

aerosolized, such that tiny droplets containing the virus remain in the air and can be inhaled by

others who come into contact with that air and that COVID-19 can be transmitted in that fashion.

The virus is also known to be spread through the touching of contaminated surfaces, for example,

when an infected person touches a surface with a hand they have coughed into and then another

person touches that same surface before it has been disinfected and then touches their face.

9. There is not yet any FDA-approved vaccine against COVID-19 that could be used

to immunize the population to the virus. As a result, the only ways to limit its spread is through

non-pharmaceutical interventions such as self-isolation, social distancing, frequent handwashing,

mask or face covering wearing, and disinfecting surfaces. Self-isolation involves not physically

interacting with those outside one’s household. Social or physical distancing is maintaining at

least six feet of distance between individuals, which can also be implemented within one’s

household. Each of these interventions is aimed at keeping infected individuals far enough apart

from other individuals so that they do not transmit the virus. Similarly, wearing a mask or face

covering is meant to prevent an infected individual from spreading droplets of the virus which

could infect others. Frequent handwashing and regular disinfecting of surfaces can help curb

spread via contaminated surfaces.

10. Transmission of COVID-19 can occur in any location where there is close

proximity (less than six feet) between individuals. Activities that occur indoors are considered

higher risk than those that occur outdoors. And because transmission of the virus can occur via

environmental surfaces, there is also risk of spread of the virus at any location where multiple

individuals touch surfaces. Some individuals who are infected with the virus do not have any

symptoms but can transmit the virus and/or are infectious before they develop any symptoms.

This means that isolating only persons known to be infected or exhibiting symptoms of infection

will not stop the spread of infection. Young people, including those in the college age group may

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be less likely to exhibit symptoms than older individuals. To prevent increasing the scope of the

outbreak of COVID-19, we must assume that anyone could be infected and transmit infection to

others.

11. Due to the lack of adequate testing, the time lag in getting results back from

laboratories, lengthy incubation time, and varied start and end points of stay at home

requirements, we may never definitively determine the full effects of stay-at-home orders and

social distancing. But social distancing has worked to slow the spread of respiratory viruses

generally and in places that are ahead of California and the United States in the current pandemic.

There is evidence that cities and states that implemented stay-at-home orders earlier than

California and kept them in place until transmission was under control are experiencing reduced

transmission. There is also evidence beginning to suggest that the ending of stay-at-home orders

and other mitigation measures is leading to increased transmission. However, transmission of the

virus will continue through the population until the development and widespread use of a vaccine

and/or herd immunity develops.

12. Due to the ease of transmission, the high risk to certain segments of the population,

and the fact that the virus will continue to surge unless and until wide-spread vaccination and/or

herd immunity is achieved, individuals will need to continue to take steps to prevent infection.

Indoor classrooms and lecture halls are a prime area for increased transmission of COVID-19, due

to the close proximity of a large number of individuals—students and faculty—in a limited space.

This close proximity allows for the transmission of the virus via droplets and aerosols between

various individuals. A classroom or lecture hall also has a large number of common surfaces that

multiple people touch: the doors, seats and desks. While surface transmission is not the main way

that COVID-19 is spread, it remains the case that available evidence suggests the virus can be

transmitted in that way.

13. The virus is readily spread through droplet and aerosol transmission, so in public

spaces, particularly indoor spaces, the density and proximity of the number of people present are

the critical factors in assessing likelihood of transmission. If a classroom or lecture hall has

higher density of and proximity between individuals than another public space, then regardless of

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mitigation measures, the location is not safer in terms of transmission of COVID-19 than another

public space that has lesser density and proximity. While efforts at environmental

decontamination are important public health interventions, the most effective measure to curb

transmission of the virus is to reduce the density of exposure to strangers, which necessarily

occurs in classrooms and lecture halls. Based on this information, UC-HCC has recommended

that the UC campuses maintain reduced density of the populations on their campuses. While I am

not recommending complete remote learning, the best practice to stop the spread of the virus is to

decrease density as much as possible. This means that only a very small number of classes that

absolutely cannot be conducted remotely should be done in person. To protect the safety of

students and the campus communities, the majority of teaching should occur via online

technology.

14. Action to disperse thousands of students from the United States—the epicenter of

the COVID-19 virus pandemic—to various countries throughout the world endangers both, the

students, and the communities where they travel and may accelerate the pandemic. We would

expect that many students who would be traveling would be infected with COVID-19. They

might be asymptomatic or symptomatic. All non-essential travel should be avoided during a

pandemic to protect public health. 8 counties where there are UC campuses—Sacramento, Yolo,

Los Angeles, Merced, San Diego, Santa Barbara, and Riverside, Orange— are on the California

Department of Health’s monitoring list of local governments with elevated disease transmission

and upticks in hospitalizations. Students living in these areas may be more likely to have

asymptomatic infection.

15. There is clear evidence that the virus is not under control in the United States and

particularly in California. For example, California’s positivity and hospitalization rates are

trending upward in the 14-day average and there have been 100,928 new cases in the last 14 days.

Student travel, therefore, would pose a grave danger to each country where students were sent and

likely cause spikes in cases in these countries.

16. In addition, sending students from California, where COVID-19 virus is in an

accelerated state, to universities in other jurisdictions where on-campus learning is more prevalent

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would pose a similar risk. This conclusion is based on what we know about how this virus is transmitted and how symptoms may or may not be exhibited. To minimize transmission and spread of the virus and deaths it will cause, the primary goal must be to minimize people’s contact with other people who might be infected with the virus. When dealing with infectious diseases that are transmitted via aerosols and/or droplets, the public health response is not to simply assert that other interventions are sufficient. It is to isolate or quarantine those who may be infectious to others. In the ordinary course, the public health approach is to maximize protection and minimize risk. In the instant case, there are public health interventions that are available to minimize the risk of transmission of COVID-19 for international students, namely, to allow international students to stay where they are rather than requiring them to board planes and disperse across the US or among many different countries.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge.
Executed in Oakland, California, on this 10th day of July 2020.
____________________ Dr. Carrie L. Byington, M.D.

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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No.:

DECLARATION OF CHANCELLOR CAROL T. CHRIST

[Filed Concurrently with Ex Parte Application to Shorten Time]

Date: Time: Ctrm: Judge:

July 14, 2020 TBD
TBD
TBD

Complaint filed: July 10, 2020

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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No.:

DECLARATION OF VICE CHANCELLOR AND DEAN DEBORAH DEAS

[Filed Concurrently with Ex Parte Application to Shorten Time]

Date: Time: Ctrm: Judge:

July 14, 2020 TBD
TBD
TBD

Complaint filed: July 10, 2020

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I, Deborah Deas, declare: 1. I am the Vice Chancellor of Health Sciences for the University of California, Riverside (“UCR”), and am also the Dean of the School of Medicine and chief liaison for UCR with the Riverside County Department of Public Health (“RCDPH”). The matters set forth herein are true and correct of my own personal knowledge and, if called as a witness, I could and would testify competently thereto. 2. UCR has over 25,000 students. Approximately 22,000 are undergraduate students, and 3,500 are graduate students. Our records show that over 1,600 UCR students hold F-1 visas. 3. I have been directly involved in UCR’s response to the COVID-19 pandemic. Beginning in March 2020, members of UCR’s administration began developing policies and guidance in response to the COVID-19 pandemic. Since that time, I have worked closely with fellow administrators, as well as experts across the University and at the Riverside County Department of Public Health (“RCDHP”) to assist in making decisions for our operations that prioritize the safety of UCR’s students, faculty, and staﬀ. 4. Over the course of several months between April and June, UCR’s Instructional Continuity Working Group evaluated options for providing a healthy and effective teaching and learning environment for the 2020-21 academic year. The Working Group included faculty, staff, and student members, and its work was informed by consultation with the Academic Senate, department chairs, deans, vice chancellors, the Registrar, Facilities Services, other UC campuses, and other UCR faculty and staff. The Working Group’s proposed Instructional Continuity Plan was reviewed by UCR’s Public Health committee and approved by campus leadership. The guiding principles of the Working Group were to prioritize the safety of all members of our campus community; extend access to education to the greatest extent possible; and create flexibility at both the individual and institutional levels. 5. The Instructional Continuity Working Group developed the UCR COVID-19 Instructional Continuity Plan, which in turn was built on the UCR COVID-19 Planning Framework and Related Protocols. Collectively these plans relied on guidance from the Riverside County public health officer, the State of California Public Health, the Centers for Disease

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Control or other Federal guidance, the Academic Senate, department chairs, deans, vice chancellors, the Registrar, Facilities Services, and the campus Public Health committee.
6. UCR’s response to the COVID-19 pandemic is coordinated among ten faculty-led working groups, including public health, research ramp-up, budget and finance, student services continuity, student health assistance, instructional continuity, operations & support recovery, testing, employee health assistance, and instructional technology. As the Vice Chancellor of Health Sciences, I worked collaboratively across the campus to set up the various committees that have responsibility for looking at the precautionary and public health measures as they relate to COVID-19, with the overall goal to ensure the public health and well-being of the population on campus as well as the population that we serve in our communities.
7. Along with UCR Chancellor Kim Wilcox, I oversee the COVID-19 working groups and committees, with further oversight by the campus public health committee. The public health committee vets all of the operating procedures, ramp-up for research, institutional and instructional continuity efforts, and other initiatives developed by the other working groups to ensure that public health issues are considered within the frameworks developed as part of the response to COVID-19.
8. From the beginning of the pandemic, UCR leadership met initially daily and later several times a week to discuss developments and keep our campus informed and safe. We monitored our local situation and consulted on a daily basis with the California Department of Public Health, RCDPH, University health officials, and the UC Office of the President, to assess the risk of transmission associated with classroom instruction.
9. On March 8, 2020, UCR Chancellor Kim A. Wilcox and Interim Provost and Executive Vice Chancellor Thomas M. Smith announced that while they were not suspending ordinary instructional activity at that time, the situation could change within the week. A meeting with the Academic Senate’s Executive Council was organized to review senate policies affecting possible changes to course instruction, assignments, exams, grading, and syllabi.
10. On March 10, 2020, UCR Chancellor Kim A. Wilcox and Interim Provost and Executive Vice Chancellor Thomas M. Smith announced that Winter quarter final exams would

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not be held in person and that instructors should plan to teach Spring quarter courses completely remote through at least April 3, and potentially for the entire quarter. UCR advised students living on campus that they could elect, based on their personal situations, to return to off-campus living at least through the start of the spring term on April 3, 2020.
11. On March 13, in response to a public health order from the Riverside County Public Health officer issued on the same day, UCR announced that it was making immediate adjustments to its operations to protect the health and safety of the UCR community. While residence halls remained open, students could elect to return to off-campus housing. Winter quarter final exams and instruction for at least the first week of spring quarter were to continue remotely. On March 14, UCR announced that the University had been ordered to stop offering inperson classes by the Health Officer of the County of Riverside, effective March 16, 2020 through April 3, 2020.
12. I am familiar with and have reviewed the COVID-19 Guidance for the Student and Exchange Visitor Program (“SEVP”) issued by United States Immigration and Customs Enforcement (“ICE”) in response to the COVID-19 pandemic. On March 13, 2020, ICE issued COVID-19 Guidance for Student and Exchange Visitor Program Stakeholders (“March 13 Guidance”). Pursuant to the March 13 Guidance, students in the United States holding F-1 or M-1 visas are allowed to “count online classes towards a full course of study” in the event their school temporarily stops in-person classes, regardless of whether the visa holders remain in the United States or departed the United States. Prior to the March 13 Guidance, international students were permitted to take only one online class per semester. The March 13 Guidance stated that it would remain “in eﬀect for the duration of the emergency.”
13. After the decision to transition to remote learning for at least the first week of Spring quarter 2020, and in reliance on the March 13 Guidance and its representation that it would remain “in eﬀect for the duration of the emergency,” and also in response to the Riverside County Public Health officer’s revised public health orders, on March 18, UCR announced that the campus closure would continue through at least April 30, and that UCR would continue to transition to remote instruction for the entire Spring quarter.

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14. On March 31, 2020, after consulting with campus leadership, including the Chair and Vice Chair of the Academic Senate, and colleagues at other UC campuses, UCR announced its decision to continue remote instruction through summer 2020. UCR also continued to monitor and comply with the Riverside County Public Health Orders throughout spring and summer.
15. On June 17, 2020, in reliance on the March 13 Guidance, Chancellor Kim A. Wilcox and Interim Provost and Executive Vice Chancellor Thomas M. Smith announced that all classes in the Fall quarter would continue to be available in remote formats at least through the Fall quarter, and that any class that is approved to be offered in person would be able to accommodate students who could not attend on-campus courses.
16. On July 8, 2020, there were 856 new cases of COVID-19 in Riverside, as compared to two new cases on March 13, 2020, when the March 13 Guidance was issued.
17. On July 6, 2020, ICE issued a “Broadcast Message: COVID-19 and Fall 2020” (“July 6 Directive”). The July 6 Directive largely withdraws the exception that ICE announced in March.
18. The July 6 Directive states that “schools adopting a hybrid model – that is, a mixture of online and in person classes –” must by August 4, 2020, certify to SEVP for each F-1 visa student that, among other things, “the student is not taking an entirely online course load.” Students for whom the school cannot so certify “must leave the country or take alternative steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction.”
19. The July 6 Directive, if it takes eﬀect, will have signiﬁcant negative impacts on UCR as an institution and on UCR’s students.
20. For months, UCR has committed substantial time and resources analyzing the evolving threat of COVID-19 and devising plans to continue to pursue its education and research mission while also focusing on the health and safety of its students, faculty, staﬀ, and the surrounding community. Because of the timing of the July 6 Directive and its upcoming deadlines, the signiﬁcant time and coordination required to implement public safety measures, and the rising COVID-19 numbers in Riverside County, it is unlikely that UCR will be able to

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develop a plan that enables all of its international students to maintain their visas under the July 6 Directive.
21. Since the July 6 Directive is likely to result in far fewer international students enrolled at UCR during the coming academic year, the July 6 Directive will adversely aﬀect UCR in at least the following additional ways:
a. Approximately one-third of all UCR graduate students are international students affected by the July 6 Directive. If these students were forced to take leaves from their program or drop out entirely, it would significantly and detrimentally affect UCR’s related research programs, including research into agriculture, air quality, food science, engineering, and biomedical sciences, in which UCR’s international graduate students play a critical role, as described in more detail below.
b. The vast majority, if not all, of UCR’s teaching assistants are graduate student instructors. If the approximately one-third of graduate students who are international students were forced to take leaves from their program or drop out entirely, UCR’s ability to conduct instructional activities would be seriously and detrimentally affected.
c. The tuition paid by out-of-state and international students is significant to UCR’s finances and supports UCR’s ability to conduct world-class research and to provide world-class education to its students, as well as provide health care to surrounding communities through its community-based medical school.
d. Loss of international students will adversely impact the diversity of UCR’s student body. Maintaining a diverse student body is essential to achievement of academic excellence and to meaningful, lifelong learning. If the July 6 Directive causes UCR’s international students to either take a leave of absence or withdraw entirely, it will not only harm the educational experience of those international students, but also the educational experience of UCR’s domestic and Californiaresident students.

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22. If, on the other hand, UCR were required to conduct in-person courses to a greater extent than what is recommended by the numerous public health experts upon whose recommendations UCR’s Fall 2020 Plan is based, it could put UCR students, faculty, and staff at significant and unnecessary risk.
23. In addition, as an international research university, UCR depends on numerous international partnerships and collaborations. UCR’s ability to enroll and engage international students is critical to those partnerships, and to conduct research in key science, technology, engineering, and mathematics (“STEM”) disciplines. In addition to international students who choose to take leaves of absence or drop out, the July 6 Directive could discourage international students from enrolling at UCR in the long term. Such a result would impair UCR’s ability to recruit the best and brightest students and faculty and to conduct significant research in STEM disciplines, and would significantly and detrimentally affect UCR’s reputation as an international research university. The following are just three examples of how the July 6 Directive would significantly limit UCR’s ability to conduct research:
a. International graduate students participate in UCR’s Biomedical Sciences program, which rotates graduate students through laboratories within the department focusing on differing research focus areas within biomedical research. Only after a commitment of nine months of training and study in multiple labs do the students select the scientific research area and principal investigator with whom they want to focus their research and ultimately their future careers in science. If the July 6 Directive causes the international graduate students in this program to leave, the significant investment of time and resources by UCR into these students will be lost, and the research already conducted on behalf of principle investigators within the program will be compromised. b. International graduate student researchers are included on grants, funded by the federal government in many cases, which are only paid when certain deliverables are met. If the July 6 Directive causes international graduate students being paid by grant funding to withdraw or take an extended leave of absence, the funding of those

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research projects would be jeopardized, leaving the project and its principal investigator without financial support, thereby compromising the quality of research already underway. c. International graduate student researchers are also often included on grants that are funded for a predetermined period of time, with no guarantee of extension if the work is not completed by the original deadline. If the July 6 Directive causes international graduate students included in these grants to withdraw or take an extended leave of absence, the funding is not jeopardized, but the ability to complete the work is put at risk due to the unique experience and knowledge of the graduate student researcher. 24. UCR’s international students, many of whom remain in the United States based on the March 13 Guidance, will also face signiﬁcant harm if the July 6 Directive takes eﬀect. UCR has heard from its students from all over the world who will face challenges by remaining in or being forced to return to their home countries, including: a. Violence and poverty afflicting their home countries; b. Fear of becoming infected with COVID-19 while traveling to their home country; c. Increased health risks if forced to attend classes in person; d. Lack of access to uncensored and reliable internet if forced to attend courses online from their home country; e. Lack of access to courses due to time differences if forced to return to their home country; f. Inability to complete certain research or instruction online, or complete certain degree programs remotely; and g. Inability to participate in Optional Practical Training, or temporary employment, in California, in a student’s area of study, thereby foregoing invaluable practical experience. 25. Although UCR is implementing some in-person or hybrid (i.e., partial in-person, partial virtual) instruction, such that students on F-1 visas could remain in the United States, signiﬁcant burdens still remain for UCR and international students. The following are examples:

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a. International students are unable to return home for fear of changing F-1 requirements and the effect that would have on their ability to complete their education; b. Increased health risks to international students who are forced to take in-person classes regardless of any risk-factors they may have, such as asthma, diabetes, or heart disease; c. An increased burden on UCR in trying to continue to offer courses to its international students while complying with state, local, federal, and international laws and guidance regarding degree programs, disability accommodation, and health risks and guidance. 26. Although a hybrid program might allow domestic students to select only online courses if they have health conditions that place them at a greater risk (or simply want to avoid the greater risk of infection that in-person instruction imposes), under the July 6 Directive, F-1 students are denied this agency. The July 6 Directive not only precludes F-1 students from an allonline course schedule, it mandates that F-1 students “tak[e] the minimum number of online classes required to make normal progress in their degree program.” Accordingly, vulnerable or concerned F-1 students would be forced to participate in in-person learning, despite the risks. 27. By threatening to force many F-1 visa holders to leave the country, the July 6 Directive forces UCR to make an impossible choice: lose and cause injury to numerous students who bring immense beneﬁts to the school or take steps to retain those students that contradict UCR’s judgment about how best to protect the health of the University’s students, faculty, and staﬀ. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge. Executed in Riverside, California, on this 10th day of July 2020.

Dr. Deborah Deas

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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No.:

DECLARATION OF ROBERT T. SCHOOLEY

[Filed Concurrently with Ex Parte Application to Shorten Time]

Date: Time: Ctrm: Judge:

July 14, 2020 TBD
TBD
TBD

Complaint filed: July 10, 2020

DECLARATION OF ROBERT T. SCHOOLEY ISO THE REGENTS’ MOT. FOR A TRO CASE NO. TBA

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I, Robert T. Schooley, declare:

1. I am a Distinguished Professor of Medicine in the Division of Infectious Diseases

and Global Public Health in the School of Medicine at the University of California, San Diego

(“UCSD”), and am also Senior Director of International Affairs, and Interim Faculty Director of

Global Education. In the latter two roles, I supervise the UCSD Study Abroad Program, direct the

International Students & Programs Office, and direct the offices responsible for visa processing

for international students, faculty and scholars. My laboratory currently conducts research on oral

drug development for treatment of COVID-19. I am also the Editor-in-Chief of Clinical Infectious

Diseases, the most highly cited infectious disease journal in the United States. Since January

2020, the journal has received over 3500 manuscripts related to COVID-19. I have been directly

involved in the editorial review of over half of these submissions and have been responsible for

oversight of the review process for all of them. The matters set forth herein are true and correct of

my own personal knowledge and, if called as a witness, I could and would testify competently

thereto.

2. UCSD has more than 39,000 students. Approximately three-quarters are

undergraduate students, and one-quarter are graduate students, including medical students. Our

records show that over 9,000 UCSD students, from more than 100 countries, hold F-1 visas.

UCSD hosts one of the largest international student populations in the country.

3. I have been centrally involved in UCSD’s and the University of California’s

systemwide response to the COVID-19 pandemic. I am a member of the systemwide Testing and

Tracing Task Force (the “Task Force”), which provides recommendations for all University

locations in response to the COVID-19 pandemic. The Task Force, which was formed in March

2020, originally met twice a week and now meets weekly to address the University’s response to

COVID-19. I also consult with individual Faculty Senate bodies across campuses.

4. I am a member of UCSD’s Continuity of Research Task Force, which was

organized by Vice Chancellor for Research Sandra Brown and is co-chaired by Senior Associate

Vice Chancellor of Research Miroslav Krstic and Dean James McKerrow. The Continuity of

Research Task Force is guided by UCSD infectious disease experts and works with the WHO, the

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CDC, and state and local public health experts, as well as UCSD’s Emergency Operations Center, Environmental Health & Safety, IT Services, Facilities, Academic Senate leadership, and numerous other on-campus organizations, to provide guidelines for implementing a return to onsite research, scholarship, and creative activity while protecting the health and safety of all members of the UCSD community.
5. In addition, I provide advice related to COVID-19 to the Mayor of the City of San Diego on an ad hoc basis, and serve on an advisory committee to the San Diego County Supervisor Nathan Fletcher regarding proper guidelines and protocols for re-opening in response to the pandemic. I recently published an article in Science magazine on this subject, titled “Reducing transmission of SARS-CoV-2,” co-authored with Kimberly A. Prather and Chia C. Wang.
6. In February 2020, in response to a request for guidance on COVID-19 from UCSD Chancellor Pradeep Khosla, I worked with mathematical modeling researchers at UCSD to provide a quantitative framework for planning and analysis in response to the pandemic. We developed a dynamic compartmental transmission model of COVID-19 to simulate spread among the campus community. The model considered the impact of campus density, classroom density, dorm density, and extracurricular activities to predict transmission based on introduction of new cases. Based on the model, we concluded that we needed to limit large-scale gatherings, including classrooms, and limit the density of on-campus housing.
7. As a result of our mathematical modeling and other research, the Continuity of Education Task Force evaluated the entire UCSD curriculum with faculty to identify which courses needed to be face-to-face, and which could be conducted remotely to develop a hybrid model of instruction. I am a member of that Committee. Our goal was to make the campus as functional as possible, while still meeting its educational and service missions, and protecting the health of our students, faculty, and community.
8. In March 2020, UCSD’s Continuity of Education Task Force was formed to prepare faculty and students for conducting the Spring quarter remotely. Additional task forces

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were also formed, including the Return to Research Committee, Return to Learn Program, and

additional focus groups addressing travel, sports, and other areas.

9. On March 11, 2020, the Office of the Chancellor announced that while the UCSD

campus would remain open, Winter quarter final exams would be administered remotely. The

Campus decision was guided by three goals: (1) to protect the health of students, faculty and staff;

(2) to help slow the spread of the virus in California and the nation; and (3) to ensure the

continuity of our teaching and research.

10. On March 13, 2020, the Office of the Chancellor announced that instruction for the

entire Spring quarter would be delivered remotely. At the same time, most research was

suspended, with some exceptions for experiments that were near completion, or essential,

including laboratory activity related to COVID-19 research.

11. Due to the rapid transition to remote learning at the end of the Winter quarter,

students were sent home during the last week of Winter quarter instruction, took their exams

remotely, and were not brought back after spring break. But many international students were

unable to go home during that period due to the travel restrictions and emerging global pandemic.

Others knew that if they did go home, they might be unable to return. As a result, over a thousand

students remained in the dorms. Because of the high number of international, first-generation,

and foster-care students enrolled in our educational programs whose education depends on their

continued housing and other services being provided on campus, UCSD made the decision not to

fully close on-campus housing and services. UCSD accordingly maintained operation of

residential dorms for those students, who have physically remained on campus and are also

conducting remote instruction learning remotely.

12. I am familiar with and have reviewed the COVID-19 Guidance for the Student and

Exchange Visitor Program (“SEVP”) issued by United States Immigration and Customs

Enforcement (“ICE”) in response to the COVID-19 pandemic. On March 13, 2020, ICE issued

COVID-19 Guidance for Student and Exchange Visitor Program Stakeholders (“March 13

Guidance”). Pursuant to the March 13 Guidance, students in the United States holding F-1 or M-

1 visas are allowed to “count online classes towards a full course of study” in the event their

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school temporarily stops in-person classes, regardless of whether the visa holders remain in the

United States or departed the United States. Prior to the March 13 Guidance, international

students were permitted to take only one online class per semester. The March 13 Guidance

stated that it would remain “in eﬀect for the duration of the emergency.”

13. After considerable time and deliberation, and in consultation with campus

leadership and the campus-wide committees, in addition to public health officials and our own

experts, and in reliance on the March 13 Guidance and its representation that it would remain “in

eﬀect for the duration of the emergency,” on April 28, the Office of the Chancellor announced

that UCSD intended to offer courses across all of their “divisions, colleges, programs and majors

through a combination of in-person and remote instruction” in the Fall quarter. The

announcement also acknowledged that “some students may not be able to safely travel to campus

for fall quarter” and pledged to “continue to offer remote instruction as part of our approach for

fall 2020 in a way that ensures students who cannot be present”—including international

students—“are still able to have a rich and high-quality educational experience.”

14. On May 5, 2020, the Office of the Chancellor announced the launch of the Return

to Learn program, which involved a team of UC San Diego clinicians, molecular biologists,

technologists, infectious disease experts, bioinformatics specialists, disease modelers, public

health experts, and others, in an effort to develop best practices to safely offer an in-person

college experience to its students.

15. For months, UCSD has committed substantial time and resources analyzing the

evolving threat of COVID-19 and devising plans to continue to pursue its education and research

mission while also focusing on the health and safety of its students, faculty, staﬀ, and the

surrounding community. In making these plans for fall, UCSD sought to balance addressing

concerns for public health and safety with preserving our academic mission of teaching and

research, and has undertaken careful planning to address the unique circumstances of our

community and to enable our students to make educational progress both safely and successfully.

16. Although it is still uncertain, in the Fall quarter, UCSD currently plans to use a

hybrid model, including a mixture of approximately 30% of course sections offered completely

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in-person and the remaining 70% of courses offered in an on-line or hybrid format. We have used

mathematical modeling to set the upper limit of a physical class size. Based on the best available

guidance, in-person sections are limited to no more than 50 students, with many smaller than that.

This severely limits our in-person teaching capacity. Department chairs consulted with faculty

about which courses must be conducted in person because of their educational content, and which

can be conducted with digital tools in order to make best use of in-person teaching capacity.

Decisions have been made in anticipation of the Fall quarter that begins in late September and

student enrollment in these classes has already begun.

17. Since the May 5 announcement, the number of cases in the County of San Diego

has been rising. The County of San Diego is now seeing daily positivity rates of 6 - 10%, despite

an earlier sustained rate of 2%.

18. On July 6, 2020, ICE issued a “Broadcast Message: COVID-19 and Fall 2020”

(“July 6 Directive”). The July 6 Directive largely withdraws the exception that ICE announced in

March.

19. The July 6 Directive states that “schools adopting a hybrid model – that is, a

mixture of online and in person classes –” must by August 4, 2020, certify to SEVP for each F-1

visa student that, among other things, “the student is not taking an entirely online course load.”

Students for whom the school cannot so certify “must leave the country or take alternative steps

to maintain their nonimmigrant status such as transfer to a school with in-person instruction.”

20. The July 6 Directive, if it takes eﬀect, will have signiﬁcant negative impacts on

UCSD and on UCSD’s students.

a. Approximately 23% of all UCSD students are international students. If these

students were forced to take leaves from their program or drop out entirely, it

would significantly and detrimentally affect UCSD’s research and teaching

programs, in which UCSD international students, both graduate and

undergraduate, play a critical role.

b. International students return to their home countries to leadership positions with an

understanding of and affinity for the United States. These students are among the

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most effective ambassadors for good will toward the U.S., including its educational institutions. If these students were forced to take leaves from their program or drop out entirely as a result of the July 6 Directive, it would significantly and detrimentally affect not only UCSD’s reputation as an international research and educational institution, but the goodwill towards U.S. education system generally. c. The tuition paid by out-of-state and international students is significant to UCSD’s finances and supports UCSD’s ability to conduct world-class research and to provide world-class education to its students. d. Loss of international students will adversely impact the diversity of UCSD’s student body. Maintaining a diverse student body is critical to UCSD’s mission and to the educational experience of its students. If the July 6 Directive causes UCSD’s international students to either take a leave of absence or withdraw entirely, it will not only harm the educational experience of those international students, but also the educational experience of UCSD’s domestic and Californiaresident students. 21. UCSD’s international students, many of whom remain in the United States based on the March 13 Guidance, will also face signiﬁcant harm if the July 6 Directive takes eﬀect. UCSD foresees that a large proportion of our international students will face serious challenges by remaining in or being forced to return to their home countries, including: a. Violence and poverty afflicting their home countries; b. Fear of being unable to complete their educational programs; c. The inability to participate in hands-on research, one of the most important aspects of an education at UCSD; d. Difficulty attending courses due to time zone differences; e. Difficulty attending courses due to unreliable internet connections and internet censorship;

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f. Being unable to participate in U.S.-based practical training opportunities, such as internships and jobs;
g. Lack of exposure to American culture and their American peers; and h. The inability to act as a teaching assistant, an important aspect of research and
academic learning. 22. As a result, the July 6 Directive forces UCSD to choose between losing numerous international students who bring immense beneﬁts to the school or take steps to provide in-person instruction against the judgment of UCSD and public health experts about how best to protect the health of the University’s students, faculty, and staﬀ. UCSD would be forced to increase the number of in-person courses available, increasing the risk of exposure to the COVID-19 pandemic to many other members of the UCSD community, including the faculty required to lead those in-person courses as well as the staff needed to support those in-person activities. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge. Executed in San Diego, California, on this 10th day of July 2020.
Dr. Robert T. Schooley

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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No.:

DECLARATION OF ROGER M. WAKIMOTO

[Filed Concurrently with Ex Parte Application to Shorten Time]

Date: Time: Ctrm: Judge:

July 14, 2020 TBD
TBD
TBD

Complaint filed: July 10, 2020

DECLARATION OF ROGER M. WAKIMOTO ISO THE REGENTS’ MOT. FOR A TRO CASE NO. TBA

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I, Roger M. Wakimoto, declare: 1. I am Vice Chancellor of Research and Creative Activities at the University of

California, Los Angeles (“UCLA”). My office oversees all research activities across the UCLA

campus, including all disciplines. As part of my role, I encourage inter-disciplinary research and

foster relationships across departments. The matters set forth herein are true and correct of my

own personal knowledge and, if called as a witness, I could and would testify competently

thereto.

2. UCLA has over 45,000 students. Approximately two-thirds are undergraduate

students, and one-third are graduate students. Our records show that approximately 7,400 UCLA

students hold F-1 visas.

3. I received my B.S. in Meteorology from San Jose State University in 1976, and my

Ph.D. in Geophysical Sciences from the University of Chicago in 1981. I was previously a

member of the UCLA faculty in the Department of Atmospheric Sciences for twenty-two years,

and I have served as the Director of the Earth Observing Laboratory; Director of the National

Center for Atmospheric Research; and Assistant Director of the National Science Foundation

(“NSF”).

4. The University of California (“UC”) has a system-wide committee of the Vice

Chancellors of Research, which we call the Council of Vice Chancellors of Research

(“COVCR”). I participate in COVCR. In March 2020, in response to COVID-19 and its impact

to the University of California, the COVCR began weekly meetings. In the weekly meetings, we

discuss the impact of the pandemic on university research. We provide related guidance to the

UC system.

5. I also am a member of the UCLA COVID-19 Future Planning Task Force (“Task

Force”), which is addressing issues surrounding ramp-up of educational instruction, research,

sports, and campus events in response to COVID-19, and is providing options and

recommendations for the Fall quarter 2020.

6. In March 2020, UCLA and other campuses initially responded to COVID-19 by

permitting only essential activity to continue on the campus. Limited research activity was

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allowed to continue, but only where necessary and essential. Those researchers were largely in the fields of science, engineering, and medicine.
7. I am familiar with and have reviewed the COVID-19 Guidance for the Student and Exchange Visitor Program (“SEVP”) issued by United States Immigration and Customs Enforcement (“ICE”) in response to the COVID-19 pandemic. On March 13, 2020, ICE issued COVID-19 Guidance for Student and Exchange Visitor Program Stakeholders (“March 13 Guidance”). Pursuant to the March 13 Guidance, students in the United States holding F-1 or M-1 visas are allowed to “count online classes towards a full course of study” in the event their school temporarily stops in-person classes, regardless of whether the visa holders remain in the United States or departed the United States. Prior to the March 13 Guidance, international students were permitted to take only one online class per semester. The March 13 Guidance stated that it would remain “in eﬀect for the duration of the emergency.”
8. After consulting with campus leadership, the COVCR, the LACDPH, and in reliance on the March 13 Guidance and its representation that it would remain “in eﬀect for the duration of the emergency,” on June 4, 2020, I announced that UCLA would began ramping up on-campus research. This announcement was the culmination of extensive planning and consultation. As a result, over four thousand researchers were allowed to return to campus, representing approximately 25% density of campus research activity. In the past four weeks of increased research activity, only one positive case of COVID-19 has been confirmed as related to research activities. The researchers identified for the ramp-up were selected to return to campus based on a review of over 800 applications that described the need for in-person access to campus facilities.
9. Although Fall 2020 quarter plans for UCLA are still uncertain, currently UCLA expects to hold approximately 15-20% of its courses in person with proper physical distancing, and to maintain the 25% density of research activity currently in place.
10. We do not know when we will be able to ramp up from our 25% density of research activity. We do not know whether we will be required to ramp down from 25% density

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of research activity. The ultimate determination for instruction and research ramp-up is highly dependent on the course of the pandemic and we continue to monitor the facts, consult with our internal experts, and rely on county, state, and federal guidance to evaluate the next steps.
11. It is possible that on-campus research will be able to ramp up with less risk than in-person course instruction. This is because in a research environment, it is easier to manage physical distancing and population density than in a traditional classroom. Individual researchers, including students and faculty, can physically spread out, stagger their work over a twenty-fourhour period, or alternate daily schedules far more easily than a classic lecture format.
12. Not all research is laboratory-based. In some fields, access to libraries is a significant part of research. For example, researchers in some departments cannot access rare books virtually. In addition, even when research can be done electronically, it cannot always be done remotely. For example, research involving highly sensitive intellectual property, proprietary information, protected health information or information subject to security restrictions cannot be performed in certain countries or certain facilities. Internet connectivity in certain locations can also restrict the ability to perform research.
13. UCLA’s Research Ramp-Up Plan Guidelines were prepared over months of careful planning and analysis of the evolving threat of COVID-19. UCLA has spent considerable time devising plans to continue to pursue its education and research mission while also focusing on the health of its students, faculty, staﬀ, and its goals of maintaining critical and worldrenowned research.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge.
Executed in Los Angeles, California, on this 10th day of July 2020.

Roger M. Wakimoto

DECLARATION OF ROGER M. WAKIMOTO ISO

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No. .: 3:20-cv-04621
[PROPOSED] ORDER GRANTING PLAINTIFF THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE AS TO WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE
Complaint filed: July 10, 2020

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR TRO AND ORDER TO SHOW CAUSE
CASE NO. 3:20-CV-04621

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Having considered Plaintiff The Regents of The University of California’s (“Plaintiff” or

“The Regents”) Ex Parte Motion for a Temporary Restraining Order and Order to Show Cause as

to Why a Preliminary Injunction Should Not Issue (“TRO Motion”), the briefs and arguments of

counsel, the evidence filed in support of and in opposition to this motion, and the Complaint, all

on file in this action, and being fully advised,

IT IS HEREBY ORDERED THAT:

1. Plaintiff has demonstrated that (a) it is likely to succeed on the merits of its claims

under the Administrative Procedure Act that the July 6, 2020 directive of the

Student and Exchange Visitor Program as promulgated by defendants U.S.

Immigration and Customs Enforcement and U.S. Department of Homeland

Security (“the Directive”) should be set aside as arbitrary, capricious, or otherwise

not in accordance with law, (b) the Directive is causing, and will cause, irreparable

harm to The Regents and its international students who hold F-1 visas, absent

provisional relief, and (c) the balance of equities and the public interest weigh

heavily in favor of provisional relief in the form of maintaining the status quo

existing prior to the issuance of the Directive. Accordingly, the Court hereby

GRANTS The Regents’ Ex Parte Motion for a Temporary Restraining Order

pursuant to Federal Rule of Civil Procedure 65 and the inherent equitable powers

of the Court.

2. The Court further ORDERS that Defendants United States Department of

Homeland Security, Acting Secretary of Department of Homeland Security Chad

F. Wolf, United States Immigration and Customs Enforcement, and Acting

Director of U.S. Immigration and Customs Enforcement Matthew Albence

(collectively, “Defendants”) are enjoined from implementing the Directive, or any

portion thereof.

3. Defendants are hereby ORDERED to immediately return to the administration of

F-1 visas by ICE’s Student and Exchange Visitor Program (“SEVP”) to the state of

its operation pursuant to the March 13, 2020 “Guidance for SEVP Stakeholders”

[PROPOSED] ORDER GRANTING PLAINTIFF’S

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(“March 13 Guidance”) prior to the issuance of the Directive, using the same

means, methods, and policies for considering and granting F-1 visas and the

related requests of international students to study in the United States as were

utilized pursuant to the March 13 Guidance which was in place prior to the

issuance of the Directive on July 6, 2020, including without limitation:

a. restoration of the temporary provision permitting current F-1 visa students,

both currently residing in the United States or abroad, to pursue a full

course of study from certified universities in the United States and, in so

doing, “to temporarily count online classes towards a full course of study in

excess of the limits stated in 8 CFR 214.2(f)(6)(i)(G)” for the Fall 2020

semester and for the duration of the COVID-19 emergency (see March 13

Guidance);

b. restoration of the granting of new F-1 visas to eligible non-immigrant

students intending to enroll in certified universities in the United States to

pursue a full course of study and, in doing so, to temporarily count online

classes towards a full course of study in excess of the limits stated in 8

CFR 214.2(f)(6)(i)(G) for the Fall 2020 quarter or semester and for the

duration of the COVID-19 emergency;

c. suspension of any requirement that certified universities that “will not be

entirely online but will reopen in the fall and that will use “[a] hybrid plan

of in-person and remote classes” in the Fall 2020 quarter or semester be

required to update and submit their operational plans to SEVP by August 1,

2020 (see the Directive at pp. 2-3); and

d. suspension of any requirement that, by August 4, 2020, certified

universities in the United States adopting a “hybrid model – that is, a

mixture of online and in person classes” which F-1 visa students will be

attending in the Fall 2020 quarter, or semester be required to update and re-

issue new Forms I-20 (see the Directive at p. 2); and

[PROPOSED] ORDER GRANTING PLAINTIFF’S

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e. restoration of the policy that certified universities may continue to implement procedural adaptations to comply with state or local health emergency declarations.
IT IS FURTHER ORDERED that Defendants appear via Zoom, telephonically, or in person to the extent permitted, in Courtroom ___ of this Court, located at 450 Golden Gate Avenue, San Francisco, California 94102, on July __, 2020 at ________ AM/PM, or as soon thereafter as the matter may be heard, then and there to SHOW CAUSE, if any, as to why it or he should not be enjoined and prevented during the pendency of this action from (1) directly or indirectly implementing the Directive, or any portion thereof, and (2) directed to immediately return to the administration of F-1 visas to the state of its operation pursuant to the March 13 Guidance prior to the issuance of the Directive, using the same means, methods, and policies for considering and granting F-1 visas and requests of international students to study in the United States as were utilized before the issuance of the Directive.
Plaintiff shall not be required to post a bond for issuance of this Order. This Order and supporting papers must be served on Defendants as soon as possible, but no later than ________________, ____, 2020. Defendants’ opposition papers shall be filed on or before _________________, 2020, at ______ AM/PM, and Plaintiff’s reply shall be filed on or before _________________, 2020, at ______ AM/PM.

IT IS SO ORDERED, this day of

, 2020.

The Honorable UNITED STATES DISTRICT JUDGE

[PROPOSED] ORDER GRANTING PLAINTIFF’S

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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800

Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750

(Additional counsel listed on signature page)

Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,

Case No. 3:20-cv-04621
PLAINTIFF THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S EX PARTE MOTION FOR ORDER SHORTENING TIME RE: MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION; DECLARATION OF JENNIFER S. ROMANO IN SUPPORT THEREOF
[Civil L.R. 6-3]
Complaint filed: July 10, 2020

Defendants.

PLAINTIFF’S MOTION FOR ORDER SHORTENING TIME
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Plaintiff The Regents of the University of California (“The Regents”) hereby moves

pursuant to Civil Local Rule 6-3 for an Order Shortening Time for the Court to hear The Regents’

concurrently filed Ex Parte Motion for Temporary Restraining Order and Order to Show Cause

re: Preliminary Injunction (“TRO Motion”) to enjoin Defendants United States Department of

Homeland Security, Acting Secretary of Department of Homeland Security Chad F. Wolf, United

States Immigration and Customs Enforcement, and Acting Director of U.S. Immigration and

Customs Enforcement Matthew Albence (collectively, “Defendants”) from implementing their

July 6, 2020, memorandum (the “July 6 Directive”), which announced, inter alia, that “schools

adopting a hybrid model – that is, a mixture of online and in person classes –” must by August 4,

2020, certify to SEVP for each F-1 visa student attending such school that, among other things,

“the student is not taking an entirely online course load for the fall 2020 semester, and that the

student is taking the minimum number of online classes required to make normal progress in their

degree program.” Students for whom the school cannot so certify “must leave the country or take

alternate steps to maintain their nonimmigrant status such as transfer to a school with in-person

instruction . . . ..” (“the Directive”). See Decl. of Jennifer S. Romano in Support of Ex Parte

Motion to Shorten Time, at ¶ 2. Due to the exigent circumstances created by Defendants’

Directive, which has immediate effect on universities and their students, The Regents has suffered

and will continue to suffer serious and irreparable injury that can only be redressed by the relief

sought in the TRO Motion. Id. at ¶ 3. Accordingly, The Regents respectfully requests that the

TRO Motion be heard by the Court on July 14, 2020, or the soonest date thereafter as the Court

may be available.

As set forth in the concurrently filed Declaration of Jennifer S. Romano and detailed in the

materials submitted in support of The Regents’ TRO Motion, The Regents respectfully maintains

that all of the requirements of Civil Local Rule 6-3 have been met.

1. Reasons for Requested Shortening of Time.

As detailed in the materials submitted in support of The Regents’ TRO Motion, immediate

relief is necessary to prevent substantial and irreparable damage to The Regents’ academic

community, including the immediate loss of valued international students and the erosion of any

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gains made to date in protecting its community from an even higher rate of transmission of the

potentially deadly COVID-19 virus. Id. at ¶ 3. The Directive creates economic harm to the

University, the communities it serves and will prevent it from carrying out planned infrastructure

and capital improvements to its campus facilities. Id.

2. Efforts Made to Obtain Stipulation.

On July 10, 2020, The Regents served Defendants with the summons, complaint, TRO

Motion, and its supporting papers filed in this matter. Id. at ¶ 2. In addition, in-house counsel for

Plaintiff, Margaret Wu, reached out with counsel for the California Attorney General’s Office,

Lee Sherman, to counsel for the Defendants, Rayford Farquhar, to advise counsel for the

Defendants of Plaintiff’s impending complaint and TRO Motion, and proposed a briefing

schedule for the Court to hear The Regents’ TRO Motion on an expedited basis. Id. at ¶ 5. Ms.

Wu was unable to reach an agreement or enter into a stipulation with Defendants to shorten time.

Id.

3. Substantial Harm Will Occur if the Court Does Not Shorten Time.

As detailed in the TRO Motion, if the Directive is implemented, the University will suffer:

international students integral to the university experience will be lost; international students’

contributions to the University’s financial stability and the local economy will be lost; and gains

in public safety could be eliminated if schools are forced to reopen prematurely. Id. at ¶ 2.

Normally, 35 days are required between the filing of a motion and the hearing. Civil L.R.

7-2(a). If the Court does not shorten the time for hearing to less than 35 days and set a hearing

date for July 14, 2020, or as soon thereafter as possible, The Regents will be forced to comply

with an administrative policy that it contends is in violation of the Administrative Procedures Act

and therefore unlawful. Id. at ¶ 4. In particular, The Regents will have to either consider revising

plans to conduct courses in person rather than online as planned in contravention of the advice of

health experts or inform thousands of international students that they may not attend courses at

the University of California this fall in accordance with the Directive of ICE. Id. The date of

mandatory orientation and check-in for students planning to attend Berkeley this fall is August 19,

2020, less than a week after the earliest hearing date under a standard briefing schedule. Id. By

PLAINTIFF’S MOTION FOR ORDER SHORTENING

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then, it will be too late to revise the curricula or provide reasonable notice to students that they will be expected to attend classes in person rather than online. Id.
4. The Underlying Disputes That Would Be Resolved in the Motion. Plaintiff so moves, on the basis that it will demonstrate that (1) it is likely to succeed on the merits of its claims under the Administrative Procedure Act (“APA”); (2) Plaintiff and its students, including its international students who are in the United States on the nonimmigrant student visa known as the “F-1” visa, are likely to suffer irreparable harm in the absence of preliminary relief; and (3) the balance of equities and the public interest weigh heavily in favor of returning to the status quo existing prior to the issuance of the Directive. Plaintiff’s Motion is based upon the currently available administrative record, the declarations and exhibits submitted in support of this Motion, and on such further evidence and argument as the Court may consider at the hearing on this Motion. 5. Prior Extension. There have been no prior extensions requested—by stipulation or otherwise—in this case. Id. at ¶ 6. 6. Effect on Schedule. If granted, the requested extension will have no effect on the schedule. Id. at ¶ 6. The Regents filed its complaint on July 10, 2020, the same day as its Ex Parte Motion for Temporary Restraining Order and an Order to Show Cause re: Preliminary Injunction and the present Motion for an Order Shortening Time. Id. Nor has this Court issued its Order Setting Initial Case Management Conference, per Civil L.R. 16-2. Id.

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Dated: July 10, 2020

Respectfully submitted,
CROWELL & MORING LLP
By: /s/ Jennifer S. Romano Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com Crowell & Moring LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) Allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Molly A. Jones (SBN 301419) mojones@crowell.com CROWELL & MORING LLP 3 Embarcadero Center, 26th Floor San Francisco, California 94111 Telephone: 415.986.2800
Thomas A. Lorenzen (pro hac vice forthcoming) tlorenzen@crowell.com Daniel W. Wolff (pro hac vice forthcoming) dwolff@crowell.com CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 Telephone: 202.624.2500
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

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DECLARATION OF JENNIFER S. ROMANO

I, Jennifer S. Romano, declare as follows:

1. I am a partner at Crowell & Moring LLP, counsel for Plaintiff The Regents of the

University of California (“The Regents”). I make this declaration in support of The Regents’

Motion for an Order Shortening Time (the “Motion”) re: Motion for Temporary Restraining

Order and Order to Show Cause re: Preliminary Injunction (the “TRO Motion”). I have firsthand

knowledge of the facts set forth in this declaration and could and would competently testify

thereto if called upon to do so.

2. On July 10, 2020, The Regents served Defendants with the summons and

complaint filed in this matter, as well as a Motion for Temporary Restraining Order and Order to

Show Cause re: Preliminary Injunction (“TRO Motion”) to enjoin Defendants United States

Department of Homeland Security, Acting Secretary of Department of Homeland Security Chad

F. Wolf, United States Immigration and Customs Enforcement, and Acting Director of U.S.

Immigration and Customs Enforcement Matthew Albence (collectively, “Defendants”) from

implementing their July 6, 2020, memorandum and news release, which announced, inter alia,

that “schools adopting a hybrid model – that is, a mixture of online and in person classes –” must

by August 4, 2020, certify to SEVP for each F-1 visa student attending such school that, among

other things, “the student is not taking an entirely online course load for the fall 2020 semester,

and that the student is taking the minimum number of online classes required to make normal

progress in their degree program.” Students for whom the school cannot so certify “must leave

the country or take alternate steps to maintain their nonimmigrant status such as transfer to a

school with in-person instruction . . . ..” (“the Directive”).

3. The Regents contends that due to the exigent circumstances created by

Defendants’ Directive, which has immediate effect on universities and their students, The Regents

has suffered and will continue to suffer serious and irreparable injury that can only be redressed

by the relief sought in the TRO Motion. As detailed in the materials submitted in support of The

Regents’ TRO Motion, The Regents contends that immediate relief is necessary to prevent

substantial and irreparable damage to The Regents’ academic community, including the

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immediate loss of valued international students and the erosion of any gains made to date in

protecting its community from an even higher rate of transmission of the potentially deadly

COVID-19 virus. The Regents contends that the Directive creates economic harm to the

University, the communities it serves and will prevent it from carrying out planned infrastructure

and capital improvements to its campus facilities.

4. If the Court does not shorten the time for hearing to less than 35 days and set a

hearing date for July 14, 2020, or as soon thereafter as possible, The Regents will be forced to

comply with an administrative policy that it contends is in violation of the Administrative

Procedures Act and therefore unlawful. In particular, The Regents contends that it will have to

either consider revising plans to conduct courses in person rather than online as planned in

contravention of the advice of health experts or inform thousands of international students that

they may not attend courses at the University of California this fall in accordance with the

Directive of ICE. On information and belief, the date of mandatory orientation and check-in for

students planning to attend Berkeley this fall is August 19, 2020, less than a week after the

earliest hearing date under a standard briefing schedule. By then, The Regents contends it will be

too late to revise the curricula or provide reasonable notice to students that they will be expected

to attend classes in person rather than online.

5. On information and belief, on July 10, 2020, in-house counsel for Plaintiff,

Margaret Wu, reached out with counsel for the California Attorney General’s Office, Lee

Sherman, to counsel for the Defendants, Rayford Farquhar, to advise counsel for the Defendants

of Plaintiff’s impending complaint and TRO Motion, and to proposed a briefing schedule for the

Court to hear The Regents’ TRO Motion on an expedited basis. Ms. Wu was unable to reach an

agreement or enter into a stipulation with Defendants to shorten time.

6. There have been no prior extensions requested—by stipulation or otherwise—in

this case. If granted, the requested extension will have no effect on the schedule. Nor has this

Court issued its Order Setting Initial Case Management Conference, per Civil L.R. 16-2.

///

///

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I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 10th day of July, 2020 at Los Angeles, California.
/s/ Jennifer S. Romano Jennifer S. Romano

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No. 3:20-cv-04621
[PROPOSED] ORDER GRANTING PLAINTIFF THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S MOTION FOR AN ORDER SHORTENING TIME TO HEAR THE REGENTS’ EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER
Complaint filed: July 10, 2020

[PROPOSED] ORDER GRANTING MOTION FOR AN ORDER SHORTENING TIME TO HEAR MOTION CASE NO. 3:20-CV-04621

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ATTORNEYS AT LAW

Having considered Plaintiff The Regents of the University of California’s (“Plaintiff” or “The Regents”) Administrative Motion for an Order Shortening Time for the Court to Hear The Regents’ concurrently filed Ex Parte Motion for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction (“Plaintiff’s Motion to Shorten Time”) and the papers and arguments submitted in support and in opposition, this Court finds good cause and hereby GRANTS Plaintiff’s Motion to Shorten Time.
The Court will schedule a hearing on Plaintiff’s Ex Parte Motion for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction for Tuesday, July 14, 2020 at ______ a.m./p.m. Said hearing will take place at _________________________.

IT IS SO ORDERED. Dated: _______________________

UNITED STATES DISTRICT JUDGE

[[PROPOSED] ORDER GRANTING MOTION FOR AN

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ORDER SHORTENING TIME TO HEAR MOTION

CASE NO. 3:20-CV-04621

 
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Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800

Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750

(Additional counsel listed on signature page)

Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,

Case No. 3:20-cv-04621
PLAINTIFF THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S EX PARTE MOTION FOR ORDER SHORTENING TIME RE: MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION; DECLARATION OF JENNIFER S. ROMANO IN SUPPORT THEREOF
[Civil L.R. 6-3]
Complaint filed: July 10, 2020

Defendants.

PLAINTIFF’S MOTION FOR ORDER SHORTENING TIME
CASE NO. 3:20-CV-04621

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Plaintiff The Regents of the University of California (“The Regents”) hereby moves

pursuant to Civil Local Rule 6-3 for an Order Shortening Time for the Court to hear The Regents’

concurrently filed Ex Parte Motion for Temporary Restraining Order and Order to Show Cause

re: Preliminary Injunction (“TRO Motion”) to enjoin Defendants United States Department of

Homeland Security, Acting Secretary of Department of Homeland Security Chad F. Wolf, United

States Immigration and Customs Enforcement, and Acting Director of U.S. Immigration and

Customs Enforcement Matthew Albence (collectively, “Defendants”) from implementing their

July 6, 2020, memorandum (the “July 6 Directive”), which announced, inter alia, that “schools

adopting a hybrid model – that is, a mixture of online and in person classes –” must by August 4,

2020, certify to SEVP for each F-1 visa student attending such school that, among other things,

“the student is not taking an entirely online course load for the fall 2020 semester, and that the

student is taking the minimum number of online classes required to make normal progress in their

degree program.” Students for whom the school cannot so certify “must leave the country or take

alternate steps to maintain their nonimmigrant status such as transfer to a school with in-person

instruction . . . ..” (“the Directive”). See Decl. of Jennifer S. Romano in Support of Ex Parte

Motion to Shorten Time, at ¶ 2. Due to the exigent circumstances created by Defendants’

Directive, which has immediate effect on universities and their students, The Regents has suffered

and will continue to suffer serious and irreparable injury that can only be redressed by the relief

sought in the TRO Motion. Id. at ¶ 3. Accordingly, The Regents respectfully requests that the

TRO Motion be heard by the Court on July 14, 2020, or the soonest date thereafter as the Court

may be available.

As set forth in the concurrently filed Declaration of Jennifer S. Romano and detailed in the

materials submitted in support of The Regents’ TRO Motion, The Regents respectfully maintains

that all of the requirements of Civil Local Rule 6-3 have been met.

1. Reasons for Requested Shortening of Time.

As detailed in the materials submitted in support of The Regents’ TRO Motion, immediate

relief is necessary to prevent substantial and irreparable damage to The Regents’ academic

community, including the immediate loss of valued international students and the erosion of any

PLAINTIFF’S MOTION FOR ORDER SHORTENING

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gains made to date in protecting its community from an even higher rate of transmission of the

potentially deadly COVID-19 virus. Id. at ¶ 3. The Directive creates economic harm to the

University, the communities it serves and will prevent it from carrying out planned infrastructure

and capital improvements to its campus facilities. Id.

2. Efforts Made to Obtain Stipulation.

On July 10, 2020, The Regents served Defendants with the summons, complaint, TRO

Motion, and its supporting papers filed in this matter. Id. at ¶ 2. In addition, in-house counsel for

Plaintiff, Margaret Wu, reached out with counsel for the California Attorney General’s Office,

Lee Sherman, to counsel for the Defendants, Rayford Farquhar, to advise counsel for the

Defendants of Plaintiff’s impending complaint and TRO Motion, and proposed a briefing

schedule for the Court to hear The Regents’ TRO Motion on an expedited basis. Id. at ¶ 5. Ms.

Wu was unable to reach an agreement or enter into a stipulation with Defendants to shorten time.

Id.

3. Substantial Harm Will Occur if the Court Does Not Shorten Time.

As detailed in the TRO Motion, if the Directive is implemented, the University will suffer:

international students integral to the university experience will be lost; international students’

contributions to the University’s financial stability and the local economy will be lost; and gains

in public safety could be eliminated if schools are forced to reopen prematurely. Id. at ¶ 2.

Normally, 35 days are required between the filing of a motion and the hearing. Civil L.R.

7-2(a). If the Court does not shorten the time for hearing to less than 35 days and set a hearing

date for July 14, 2020, or as soon thereafter as possible, The Regents will be forced to comply

with an administrative policy that it contends is in violation of the Administrative Procedures Act

and therefore unlawful. Id. at ¶ 4. In particular, The Regents will have to either consider revising

plans to conduct courses in person rather than online as planned in contravention of the advice of

health experts or inform thousands of international students that they may not attend courses at

the University of California this fall in accordance with the Directive of ICE. Id. The date of

mandatory orientation and check-in for students planning to attend Berkeley this fall is August 19,

2020, less than a week after the earliest hearing date under a standard briefing schedule. Id. By

PLAINTIFF’S MOTION FOR ORDER SHORTENING

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then, it will be too late to revise the curricula or provide reasonable notice to students that they will be expected to attend classes in person rather than online. Id.
4. The Underlying Disputes That Would Be Resolved in the Motion. Plaintiff so moves, on the basis that it will demonstrate that (1) it is likely to succeed on the merits of its claims under the Administrative Procedure Act (“APA”); (2) Plaintiff and its students, including its international students who are in the United States on the nonimmigrant student visa known as the “F-1” visa, are likely to suffer irreparable harm in the absence of preliminary relief; and (3) the balance of equities and the public interest weigh heavily in favor of returning to the status quo existing prior to the issuance of the Directive. Plaintiff’s Motion is based upon the currently available administrative record, the declarations and exhibits submitted in support of this Motion, and on such further evidence and argument as the Court may consider at the hearing on this Motion. 5. Prior Extension. There have been no prior extensions requested—by stipulation or otherwise—in this case. Id. at ¶ 6. 6. Effect on Schedule. If granted, the requested extension will have no effect on the schedule. Id. at ¶ 6. The Regents filed its complaint on July 10, 2020, the same day as its Ex Parte Motion for Temporary Restraining Order and an Order to Show Cause re: Preliminary Injunction and the present Motion for an Order Shortening Time. Id. Nor has this Court issued its Order Setting Initial Case Management Conference, per Civil L.R. 16-2. Id.

PLAINTIFF’S MOTION FOR ORDER SHORTENING

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Dated: July 10, 2020

Respectfully submitted,
CROWELL & MORING LLP
By: /s/ Jennifer S. Romano Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com Crowell & Moring LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) Allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800
Molly A. Jones (SBN 301419) mojones@crowell.com CROWELL & MORING LLP 3 Embarcadero Center, 26th Floor San Francisco, California 94111 Telephone: 415.986.2800
Thomas A. Lorenzen (pro hac vice forthcoming) tlorenzen@crowell.com Daniel W. Wolff (pro hac vice forthcoming) dwolff@crowell.com CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 Telephone: 202.624.2500
Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

PLAINTIFF’S MOTION FOR ORDER SHORTENING

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DECLARATION OF JENNIFER S. ROMANO

I, Jennifer S. Romano, declare as follows:

1. I am a partner at Crowell & Moring LLP, counsel for Plaintiff The Regents of the

University of California (“The Regents”). I make this declaration in support of The Regents’

Motion for an Order Shortening Time (the “Motion”) re: Motion for Temporary Restraining

Order and Order to Show Cause re: Preliminary Injunction (the “TRO Motion”). I have firsthand

knowledge of the facts set forth in this declaration and could and would competently testify

thereto if called upon to do so.

2. On July 10, 2020, The Regents served Defendants with the summons and

complaint filed in this matter, as well as a Motion for Temporary Restraining Order and Order to

Show Cause re: Preliminary Injunction (“TRO Motion”) to enjoin Defendants United States

Department of Homeland Security, Acting Secretary of Department of Homeland Security Chad

F. Wolf, United States Immigration and Customs Enforcement, and Acting Director of U.S.

Immigration and Customs Enforcement Matthew Albence (collectively, “Defendants”) from

implementing their July 6, 2020, memorandum and news release, which announced, inter alia,

that “schools adopting a hybrid model – that is, a mixture of online and in person classes –” must

by August 4, 2020, certify to SEVP for each F-1 visa student attending such school that, among

other things, “the student is not taking an entirely online course load for the fall 2020 semester,

and that the student is taking the minimum number of online classes required to make normal

progress in their degree program.” Students for whom the school cannot so certify “must leave

the country or take alternate steps to maintain their nonimmigrant status such as transfer to a

school with in-person instruction . . . ..” (“the Directive”).

3. The Regents contends that due to the exigent circumstances created by

Defendants’ Directive, which has immediate effect on universities and their students, The Regents

has suffered and will continue to suffer serious and irreparable injury that can only be redressed

by the relief sought in the TRO Motion. As detailed in the materials submitted in support of The

Regents’ TRO Motion, The Regents contends that immediate relief is necessary to prevent

substantial and irreparable damage to The Regents’ academic community, including the

PLAINTIFF’S MOTION FOR ORDER SHORTENING

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immediate loss of valued international students and the erosion of any gains made to date in

protecting its community from an even higher rate of transmission of the potentially deadly

COVID-19 virus. The Regents contends that the Directive creates economic harm to the

University, the communities it serves and will prevent it from carrying out planned infrastructure

and capital improvements to its campus facilities.

4. If the Court does not shorten the time for hearing to less than 35 days and set a

hearing date for July 14, 2020, or as soon thereafter as possible, The Regents will be forced to

comply with an administrative policy that it contends is in violation of the Administrative

Procedures Act and therefore unlawful. In particular, The Regents contends that it will have to

either consider revising plans to conduct courses in person rather than online as planned in

contravention of the advice of health experts or inform thousands of international students that

they may not attend courses at the University of California this fall in accordance with the

Directive of ICE. On information and belief, the date of mandatory orientation and check-in for

students planning to attend Berkeley this fall is August 19, 2020, less than a week after the

earliest hearing date under a standard briefing schedule. By then, The Regents contends it will be

too late to revise the curricula or provide reasonable notice to students that they will be expected

to attend classes in person rather than online.

5. On information and belief, on July 10, 2020, in-house counsel for Plaintiff,

Margaret Wu, reached out with counsel for the California Attorney General’s Office, Lee

Sherman, to counsel for the Defendants, Rayford Farquhar, to advise counsel for the Defendants

of Plaintiff’s impending complaint and TRO Motion, and to proposed a briefing schedule for the

Court to hear The Regents’ TRO Motion on an expedited basis. Ms. Wu was unable to reach an

agreement or enter into a stipulation with Defendants to shorten time.

6. There have been no prior extensions requested—by stipulation or otherwise—in

this case. If granted, the requested extension will have no effect on the schedule. Nor has this

Court issued its Order Setting Initial Case Management Conference, per Civil L.R. 16-2.

///

///

PLAINTIFF’S MOTION FOR ORDER SHORTENING

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I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 10th day of July, 2020 at Los Angeles, California.
/s/ Jennifer S. Romano Jennifer S. Romano

PLAINTIFF’S MOTION FOR ORDER SHORTENING

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No. 3:20-cv-04621
[PROPOSED] ORDER GRANTING PLAINTIFF THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S MOTION FOR AN ORDER SHORTENING TIME TO HEAR THE REGENTS’ EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER
Complaint filed: July 10, 2020

[PROPOSED] ORDER GRANTING MOTION FOR AN ORDER SHORTENING TIME TO HEAR MOTION CASE NO. 3:20-CV-04621

Case 3:20-cv-04621 Document 5-1 Filed 07/10/20 Page 2 of 2

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CROWELL & MORING LLP
ATTORNEYS AT LAW

Having considered Plaintiff The Regents of the University of California’s (“Plaintiff” or “The Regents”) Administrative Motion for an Order Shortening Time for the Court to Hear The Regents’ concurrently filed Ex Parte Motion for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction (“Plaintiff’s Motion to Shorten Time”) and the papers and arguments submitted in support and in opposition, this Court finds good cause and hereby GRANTS Plaintiff’s Motion to Shorten Time.
The Court will schedule a hearing on Plaintiff’s Ex Parte Motion for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction for Tuesday, July 14, 2020 at ______ a.m./p.m. Said hearing will take place at _________________________.

IT IS SO ORDERED. Dated: _______________________

UNITED STATES DISTRICT JUDGE

[[PROPOSED] ORDER GRANTING MOTION FOR AN

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CASE NO. 3:20-CV-04621

 
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Jennifer S. Romano (SBN 195953) jromano@crowell.com Emily T. Kuwahara (SBN 252411) ekuwahara@crowell.com CROWELL & MORING LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071 Telephone: 213.622.4750
A. Marisa Chun (SBN 160351) mchun@crowell.com Molly A. Jones (SBN 301419) mojones@crowell.com CROWELL & MORING LLP 3 Embarcadero Center, 26th Floor San Francisco, California 94111 Telephone: 415.986.2800

Charles F. Robinson (SBN 113197) charles.robinson@ucop.edu Margaret L. Wu (SBN 184167) margaret.wu@ucop.edu Allison M. Woodall (SBN 178533) allison.woodall@ucop.edu Sonya U. Sanchez (SBN 247541) sonya.sanchez@ucop.edu UNIVERSITY OF CALIFORNIA OFFICE OF THE GENERAL COUNSEL 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: 510.987.9800

Thomas A. Lorenzen (pro hac vice forthcoming) tlorenzen@crowell.com Daniel W. Wolff (pro hac vice forthcoming) dwolff@crowell.com CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 Telephone: 202.624.2500

Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California Corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

Case No. 3:20-cv-04621-JSW
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
[Filed Concurrently with Supporting Declarations, Request for Judicial Notice, Proposed Order, Motion to Shorten Time]
Date: July 22, 2020 Time: 2:00 p.m. Ctrm: TBD Judge: TBD
Complaint filed: July 10, 2020

SFACTIVE-905707528.3

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 3:20-CV-04621-JSW

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TABLE OF CONTENTS
I. INTRODUCTION............................................................................................................ 2
II. FACTUAL BACKGROUND ........................................................................................... 3
A. COVID-19 ............................................................................................................ 3
B. ICE’s Initial COVID-19 Response ........................................................................ 5
C. The University of California’s COVID-19 Response............................................. 6
D. The Loss of International Students and Harm to the University. .......................... 10
E. Students’ Reliance on ICE’s March 13 Guidance ................................................ 11
F. ICE’s Sudden and Arbitrary Re-imposition of In-Person Education Requirements During the COVID-19 Emergency ...................................................................... 12
III. LEGAL STANDARD .................................................................................................... 13
IV. ARGUMENT ................................................................................................................. 14
A. THE REGENTS ARE LIKELY TO SUCCEED ON THE MERITS.................... 16
1. The Regents Are Likely to Prevail on the First Cause of Action Under the APA Because the July 6 Directive is Arbitrary and Capricious........... 16
a. The Directive Failed to Offer a Reasonable Explanation for ICE’s Policy Reversal. ................................................................. 17
b. The Directive Failed to Consider Important Aspects of the Problem, Including the Reliance of Plaintiff and Its Students on the March 13 Guidance. ............................................................... 18
c. Defendants Failed to Explain Any Basis for the Directive. ........... 20
2. The Regents Will Likely Prevail on Its Second APA Cause of Action, Because the Directive is a Substantive Rule that Did Not Comply with the APA’s Notice and Comment Requirements........................................ 22
B. THE REGENTS AND ITS STUDENTS ARE LIKELY TO SUFFER IRREPARABLE HARM..................................................................................... 23
C. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH HEAVILY IN FAVOR OF A PRELIMINARY INJUNCTION ORDER............. 24
V. CONCLUSION .............................................................................................................. 25

SFACTIVE-905707528.3

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TABLE OF AUTHORITIES

Page(s)

Cases

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .........................................................................................13, 25

Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343 (D.C. Cir. 2014) .......................................................................................20, 21

Butte Envt’l. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) ................................................................................................ 16

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ............................................................................................................. 23

Ciox Health, LLC v. Azar, 435 F. Supp. 3d 30, 66 (D.D.C. 2020) .................................................................................. 23

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ............................................................................................................. 16

Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112 (9th Cir. 2009) .............................................................................................. 23

Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) ......................................................................................................... 21

Dep’t of Homeland Security v. Regents of the Univ. of Cal., No. 18-587, 2020 WL 3271746 (U.S. June 18, 2020) .................................................... passim

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ........................................................................................ 14, 15, 16, 17

Enyart v. Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153 (9th Cir. 2011) .............................................................................................. 24

FCC v. Fox Telev’n Stns., Inc., 556 U.S. 502 (2009) ............................................................................................................. 17

Franklin v. Massachusetts, 505 U.S. 788 (1992) ............................................................................................................. 16

Humane Soc’y of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) .............................................................................................. 15

Jicarilla Apache Nation v. U.S. Dep’t of the Interior, 613 F.3d 1112 (D.C. Cir. 2010) .......................................................................................14, 17

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League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755 (9th Cir. 2014) ................................................................................................ 24
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............................................................................................................... 16
Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003) ................................................................................................ 23
Nat’l Res. Def. Council v. EPA, 643 F.3d 311 (D.C. Cir. 2011) .............................................................................................. 23
Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668 (9th Cir. 2007) ................................................................................................ 15
Perez v. Mortg. Bankers Ass’n, 575 U.S. 92 (2015) ............................................................................................................... 18
Pimentel v. Dreyfus, 670 F.3d 1096 (9th Cir. 2012) .............................................................................................. 13
Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) .............................................................................................. 13
San Diego Air Sports Ctr., Inc. v. F.A.A., 887 F.2d 966 (9th Cir. 1989) ................................................................................................ 23
SEC v. Chenery Corp. (“Chenery II”), 332 U.S. 194......................................................................................................................... 23
Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) ................................................................................................ 13
Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) ................................................................................................................. 13
Statutes
5 U.S.C. § 553...................................................................................................................3, 15, 23
5 U.S.C. § 706(2)(A).........................................................................................................3, 14, 16
5 U.S.C. § 706(2)(D).........................................................................................................3, 14, 23
Administrative Procedure Act ............................................................................................. passim

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Other Authorities
Federal Rule of Civil Procedure 65(b) .......................................................................................... 1
U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited July 10, 2020) ............................................................................................................. 4

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION PLEASE TAKE NOTICE that on July 22, 2020, at 2 p.m. or as soon thereafter as counsel may be heard, at the United States District Court for the Northern District of California, Courtroom 6, 2nd Floor, 1301 Clay Street, Oakland, California, Plaintiff The Regents of the University of California (“The Regents”) will, and hereby does, move for a preliminary injunction against Defendants United States Department of Homeland Security, Acting Secretary of Department of Homeland Security Chad F. Wolf, United States Immigration and Customs Enforcement, and Acting Director of U.S. Immigration and Customs Enforcement Matthew Albence (“Defendants”), pursuant to Federal Rule of Civil Procedure 65(b). The Regents seeks a preliminary injunction prohibiting Defendants from implementing the July 6, 2020 memorandum issued by defendant U.S. Immigration and Customs Enforcement (“ICE”) (“the Directive”), ECF No. 1 at 30,1 and from promulgating the announced policy as a Final Rule. The Directive announced a reversal of prior ICE policy regarding COVID-19-related exemptions to 8 C.F.R. § 214.2(f)(6)(i)(G) with respect to in-person learning requirements for nonimmigrant students who are studying in this country pursuant to F-1 visas. Plaintiff seeks an order enjoining Defendants, their officers, employees, and agents, from implementing or enforcing the July 6, 2020 Directive. Plaintiff so moves on the basis that it will demonstrate that: (1) it is likely to succeed on the merits of its claims under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706, 553; (2) Plaintiff and its F-1 visa students are likely to suffer irreparable harm absent provisional relief; and (3) the balance of equities and the public interest weigh heavily in favor of maintaining the status quo existing prior to the issuance of the Directive. Plaintiff’s Motion is based upon this Notice of Motion and Motion; the Memorandum of Points and Authorities; the currently available administrative record; the supporting Alcocer, Beck, Byington, Christ, Deas, Schooley, and Wakimoto Declarations and exhibits thereto filed in support of Plaintiff’s Motion for a Temporary Restraining Order (ECF Nos. 4-1 to 4-9);2 the

1 The Directive is attached to the Request for Judicial Notice (“RJN”) as Exhibit A. 2 The Regents has agreed to proceed with this Motion for a Preliminary Injunction, in lieu of its Motion for a Temporary Restraining Order, which was filed on July 10, 2020. ECF No. 4.

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supporting Does 1 to 4 and Iyengar Declarations and exhibits thereto filed concurrently herewith;

the Request for Judicial Notice; the proposed Preliminary Injunction, and such further evidence and argument as the Court may consider.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION The University of California—renowned as the nation’s premier public university system

and as a world-class academic and research powerhouse and a key contributor to the California economy and social fabric—has long welcomed international students seeking to pursue unrivaled

educational opportunities and, ultimately, their most cherished dreams. These students contribute to rich intellectual discourse across all disciplines, including in the University system’s prized

science, technology, engineering, and mathematics (STEM) departments, thereby also

contributing to the University’s mission of delivering and supporting world-class teaching and research, as well as to California’s vibrant economy. For decades, the United States’ “F-1” visa

program for international, non-immigrant students has made all this possible. In March 2020, faced with the unprecedented COVID-19 pandemic, The Regents moved
swiftly to transition the University’s ten campuses to remote teaching to protect the health and

safety of their students and faculty, while continuing to meet its core mission of providing a world-class education. Also recognizing the unprecedented nature of the pandemic, defendant

United States Immigration and Customs Enforcement (“ICE”), an agency within defendant the Department of Homeland Security (“DHS”), issued an exemption to a preexisting regulation that required international students on F-1 visas to attend classes in person if they wished to remain in

this country. ICE’s March 13, 2020 Guidance (the “March 13 Guidance”) provided critical assurances that international students could maintain their F-1 visa status while attending classes

on-line “for the duration of the [COVID-19] emergency.” See Request for Judicial Notice (“RJN”), Ex. B at 1.
Without warning, on July 6, 2020, Defendants announced that they would largely rescind

the COVID-19 exemption for students on F-1 visas and require such students whose universities

had transitioned to an online-only curriculum to transfer to an institution offering in-person

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classes, or leave the United States. This Directive also effectively bars continuing students on F-1 visas who have already left this country from re-entering the United States, if they intend to take a full online course load in Fall 2020. This arbitrary, capricious, and procedurally defective agency action now forces The Regents to confront an untenable choice: to put its international students in immediate jeopardy of having to abandon their studies and leave the country or take steps to retain them by increasing the number of in-person courses offered for Fall 2020, thereby increasing the risk that its students, faculty, and staff will be exposed to the virus.
The Regents therefore seeks a preliminary injunction order to enjoin Defendants from implementing the Directive. That Directive is not only unjust and unwise, but it violates the Administrative Procedure Act’s (“APA”) prohibition against agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action, like the Directive, purporting to have the force of law must be both reasonable and reasonably explained. Defendants also failed to satisfy the APA’s notice-andcomment requirements for agency action that substantively affects rights or obligations, in violation of 5 U.S.C. § 553. See 5 U.S.C. § 706(2)(D) (authorizing the court to set aside agency action taken “without observance of procedure required by law”). The Regents, therefore, is likely to succeed on the merits. Further, it and its students will suffer irreparable harm absent relief. Finally, the balance of equities and the public interest strongly weigh in its favor. Accordingly, this Court should grant provisional relief enjoining Defendants from enforcing the Directive, thereby preserving the status quo pending adjudication of the University’s claims. II. FACTUAL BACKGROUND
A. COVID-19 As the year began, the terms “novel coronavirus” and “COVID-19” meant nothing to most Americans. That soon changed. Since late 2019, when scientists first identified the novel coronavirus, or SARS-CoV-2, the virus that causes COVID-19 has spread to nearly every corner of the world: There are more than 12 million confirmed cases of the disease, and more than half a

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million people have died from it. Leading the pack is the United States, where there have now been more than 3.1 million confirmed cases and over 133,000 COVID-19-related deaths.3 Moreover, because there is no vaccine for COVID-19, the forecast is grim. See ECF No. 4-3 [Decl. of Carrie L. Byington] (“Byington Decl.”) ¶ 9. Epidemiologists predict that the domestic death toll from COVID-19 will exceed 200,000 by November. In California alone, there have been more than 320,000 confirmed cases and over 7,000 deaths.4 Across the United States, more than 3.3 million people have been infected to date, and at least 135,000 have died from the virus.5
Certain basic facts about COVID-19 are not genuinely in dispute. For some, it causes symptoms requiring hospitalization or that are life-threatening. ECF No. 4-2 [Decl. of Michael Beck] (“Beck Decl.”) ¶ 7. In the most severe cases, the virus is fatal. Id. Overwhelming evidence indicates that the most likely means of transmission is through close contact, especially indoors. Id. ¶¶ 10-13. In light of these facts, state and local governments have implemented the only measures that reasonably can limit community spread of the virus—issuance of shelter-in-place orders, physical (social) distancing, closure of businesses and other venues where people may gather, diligent and regular sanitization and hygiene, and, where possible, contact tracing. See id. ¶¶ 7-11. Governor Newsom announced a state of emergency in California on March 4, and the President of the United States declared a national emergency on March 13. RJN, Exs. C, D.6 7 Yet the rate of infection today is considerably higher than it was in March. See Beck Decl. ¶ 15.

3 See Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited July 10, 2020). 4 Department of Public Health, State of California, Covid-19 by the Numbers (July 13, 2020), https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx#COVID19%20by%20the%20Numbers.
5 The New York Times, Coronavirus in the U.S.: Latest Map and Case Count, (July 13, 2020, 2:19 P.M. E.T.), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.
6 Executive Department, State of California, Proclamation of a State of Emergency (March 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOEProclamation.pdf.
7 The White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak.

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B. ICE’s Initial COVID-19 Response The federal government issues F-1 visas to international students who attend accredited
American universities or other academic institutions on a full-time basis. 8 C.F.R. § 214.2(f). The
requirements for F-1 visa holders are set forth in 8 C.F.R. § 214.2. That regulation states, in
relevant part, that the student must take a full course of study and that no more than “one class or
three credits” per semester or quarter may be counted toward the full course of study if the class is
taken “on-line or through distance education.” 8 C.F.R. §§ 214.2(f)(5)(i), 214(f)(6)(i)(G).
However, in its initial response to the pandemic, ICE recognized the need for flexibility with
respect to these requirements. In particular, on March 9, 2020, ICE’s Student and Exchange
Visitor Program (“SEVP”) issued guidance (“March 9 Guidance”) advising that “SEVP-certified
schools may need to adapt their procedures and policies to address the significant public health concerns associated with the COVID-19 crisis.” RJN, Ex. E at 1.8 In issuing the guidance, ICE
stated that it was “focused on ensuring that nonimmigrant students are able to continue to make
normal progress in a full course of study” and that it would be “flexible with temporary
adaptations,” while further recognizing that “the COVID-19 crisis is fluid and rapidly changing.”
Id. Further, ICE’s March 9 Guidance contemplated the necessity of “leaving room for schools to
comply with state or local health emergency declarations.” Id.
Just days later, on March 13, 2020, ICE issued further “Guidance for SEVP Stakeholders”
(“March 13 Guidance”) which provided, in relevant part: If a school closes temporarily but offers online instruction or another alternative learning procedure, nonimmigrant students should participate in online or other alternate learning procedures and remain in active status in SEVIS…. Given the extraordinary nature of the COVID-19 emergency, SEVP will allow F-1 and/or M1 students to temporarily count online classes towards a full course of study in excess of the limits stated in 8 CFR 214.2(f)(6)(i)(G)…. This temporary provision is only in effect for the duration of the emergency and in accordance with the procedural change documents filed in a timely manner to SEVP.

8 Broadcast Message: Coronavirus Disease 2019 (COVID-19) and Potential Procedural Adaptations for F and M nonimmigrant students (March 9, 2020), https://www.ice.gov/doclib/sevis/pdf/bcm2003-01.pdf (“March 9 Guidance”) at 1.

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RJN, Ex. B at 1.9 Further, according to its express terms, this Guidance applied to F-1 visa holders “even if they have left the United States and are taking the online classes from elsewhere.” Id. at 1-2.
C. The University of California’s COVID-19 Response Founded in 1868, the University of California was founded upon a simple but audacious idea: California should establish a great public university available to all—one that would serve equally the children of immigrants and settlers, landowners and barons.10 More than 150 years later, the University today is one of the world’s premier educational systems, comprising ten campuses and educating more than 285,000 undergraduate and graduate students annually.11 True to its founding principle, the University continues to be available to all—including approximately 37,500 F-1 visa students from across the globe. ECF No. 4-4 [Decl. of Carol T. Christ] (“Christ Decl.”) ¶ 2. Consistent with federal, state, and local guidance on preventing the spread of COVID-19, and consistent with the March 9 and March 13 Guidances, the University undertook, with substantial investment of time and resources,12 to transition its academic curricula to remote instruction in March 2020. Since then, the University has engaged in careful, deliberate, and iterative planning processes, prioritizing the health and safety of its entire academic community and that of the surrounding communities, while also continuing to fulfill its mission of providing world-class educational opportunities to all its students. Christ Decl. ¶¶ 2-6, ECF Nos. 4-5, 4-6 [Ex. A, B to Christ Decl.]; see also ECF No. 4-8 [Decl. of Robert T. Schooley] (“Schooley Decl.”) ¶ 15; Byington Decl. ¶¶ 4-6. The University made substantial investment in online

9See COVID-19: Guidance for SEVP Stakeholders, https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.1 3.20.pdf at 1 (“March 13 Guidance”).
10 See https://www.universityofcalifornia.edu/news/university-california-born (last visited July 9, 2020). 11 See Fall Enrollment at a Glance (2019), University of California, https://www.universityofcalifornia.edu/infocenter/fall-enrollment-glance (last visited July 9, 2020). 12 ECF No. 4-1 [Decl. of David Alcocer] (“Alcocer Decl.”) ¶ 10. The University of California estimates that if the July 6 Directive takes effect, the cost in additional expenses to the University is likely to be in the millions of dollars. Id. ¶ 10.

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solutions, see Alcocer Decl. ¶ 10, in part based on its reliance on ICE’s March 13 Guidance that international students would not thereby be precluded from maintaining their F-1 visa status during the COVID-19 crisis and that the exemption would remain “in effect for the duration of the emergency.” RJN, Ex. B at 1. That emergency continues to this day and likely will for the foreseeable future.
The University has devoted considerable thought, effort, and resources to determine how best to advance its educational mission while protecting its students, faculty, and staff amidst the pandemic. The University and each campus have monitored state and local government data, recommendations, and directives regarding COVID-19 response and have abided by applicable reopening requirements and shelter-in-place restrictions. See, e.g., Beck Decl. ¶¶ 6; Christ Decl. ¶¶ 6, 16 & Ex. A; Byington Decl. ¶¶ 4-5; Schooley Decl. ¶¶ 3-4, 7-8; ECF No. 4-7 [Decl. of Deborah Deas] (“Deas Decl.”) ¶¶ 4-7.
The University and its campuses have also formed numerous working groups and task forces to assess and proactively plan responses to potential scenarios resulting from the pandemic.13 See, e.g., Byington Decl. ¶¶ 4-6; Christ Decl. ¶¶ 4-9; Schooley Decl. ¶¶ 4, 15; Deas Decl. ¶¶ 3-5; ECF No. 4-9 [Decl. of Roger Wakimoto] (“Wakimoto Decl.”) ¶¶ 4-5; Beck Decl. ¶¶ 4-6. For example, in February, researchers at UC San Diego (“UCSD”) developed a dynamic compartmental transmission model of COVID-19 to simulate spread among the campus community to provide a quantitative framework for pandemic response planning; they concluded that the University must limit large-scale gatherings, including in classrooms, and limit the density of on-campus housing. Schooley Decl. ¶¶ 6-7. Between April and June, UC Riverside’s

13 To take but one campus, UC Berkeley’s response has been coordinated by nine committees. Christ Decl. ¶ 4. One such committee, the Public Health and Testing Advisory Committee, is chaired by Dr. Nicholas Jewell, Emeritus Professor of Biostatistics in the UC Berkeley School of Public Health and includes infectious disease experts, public health epidemiologists, physicians, scientists with expertise in diagnostic testing, and data scientists. Id. Between May and June 2020, this committee evaluated all options for providing a healthy and effective learning environment for the 2020-21 year, from full remote instruction to return to mostly in-person instruction. Id. ¶ 8. On June 17, the committee issued its report recommending that “[t]o the extent that any classes occur in person” in Fall 2020, such classes should be limited to “26 [individuals] or under (including instructors).” The report also explained that “remote access will likely be required for most if not all classes because at-risk participants may not be able to attend in person.” Id. at ¶ 9.

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(“UCR’s”) Instructional Continuity Working Group, comprising of faculty, staff, and students,

evaluated options for providing a healthy and effective teaching environment for the 2020-21

academic year. Deas Decl. ¶ 4. UCR’s response to the pandemic is coordinated among ten

faculty-led working groups, including public health, budget and finance, student services

continuity, student health assistance, instructional continuity, testing, and instructional

technology. Id. ¶ 6. UCLA’s Emergency Management Planning Group began working on

UCLA’s COVID-19 response in February 2020. See Beck Decl. ¶¶ 2, 7-8. UCLA’s efforts

include its “Back to School” campus-wide working group, and regular consultation between

UCLA Health’s infectious control experts, officials from other UC campuses, and officials with

the LA County Department of Public Health. See Beck Decl. ¶¶ 4-6; Wakimoto Decl. ¶¶ 4-5, 8.

At the system-wide level, the University has created a Testing and Tracing Task Force,

which includes subject matter experts, administrators, and faculty, and staff from across the

University. Beck Decl. ¶ 9; Christ Decl. ¶ 7. The Task Force has emphasized that, for all UC

campuses, “[t]he cornerstone of mitigation will be decreasing normal campus population density,

in order to decrease interactions that may result in person-to-person transmission of the virus.”

Christ Decl. ¶ 9; see also id. at Ex. B. Beginning in March 2020, the Council of the Vice

Chancellors of Research also began holding weekly meetings to provide guidance regarding the

impact of the pandemic on university research. Wakimoto Decl. ¶ 4. And, on May 22, 2020,

recognizing the need to dramatically transform on-site operations, The Regents released the

“University of California Consensus Standards for Operation of Campus and ANR Locations in

Light of the SARS-CoV-2 Pandemic.” Christ Decl. ¶ 6, Ex. A.

Following months of study and consultation with epidemiologists, medical experts, and

industry experts, all ten campuses created plans for their Summer and Fall 2020 curricula based

on the status of COVID-19 in their specific geographic locations. See, e.g., id. ¶ 5 (UC Berkeley);

Beck Decl. ¶¶ 4-8 (UC Los Angeles); Deas Decl. ¶¶ 15, 20 (UC Riverside); Schooley Decl.

¶¶ 13-16 (UC San Diego). The campuses have dramatically transformed their approach to

instruction for Fall 2020 in particular: In reliance on the March 13 Guidance and informed by the

May 22, 2020 Consensus Standards, UC Berkeley announced that the Fall semester would be

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online with only limited in-person classes. Christ Decl., ¶ 11. UC Davis plans to offer most

courses remotely; UC Irvine courses will be remote with minimal exceptions; UCLA is currently

all-remote, but anticipates 15% to 20% of courses will be in-person or in a hybrid format; and UC

San Diego hopes for 30% in person classes, with 70% remote or hybrid. See, e.g., Deas Decl.

¶¶ 12-15; Beck Decl. ¶¶ 8, 11; Wakimoto Decl. ¶ 9; Schooley Decl. ¶ 16. Thus, classes will be

remote in Fall 2020 for most courses and students. Even those courses with limited in-person

instruction will also allow for remote attendance. Christ Decl. ¶ 6; Deas Decl. ¶ 15. To implement

these recommendations, the campuses expended further time and resources developing a class

schedule that accounted for the number and nature of courses and whether they would be held

entirely online or in person. See, e.g., Christ Decl. ¶ 12; Schooley Decl. ¶¶ 13-14; Deas Decl.

¶¶ 15, 20. These plans are subject to change, based on new information that infections are now

surging in California and elsewhere. See, e.g., Byington Decl. ¶ 15; Schooley Decl. ¶ 16;

Wakimoto Decl. ¶ 9.

These precautions have been put in place with additional specific consideration for the

University faculty and others with pre-existing health conditions. Christ Decl. ¶ 17. For example,

the average UC Berkeley faculty member is 52 years old, with many faculty members over the

age of 65. Christ Decl. ¶ 17(d). While every human is at risk from COVID-19, older adults are at

the highest risk for severe illness or death. Byington Decl. ¶ 7.

UC Berkeley, like all other UC campuses, has spent months preparing for the Fall

semester. See, e.g., Christ Decl. ¶ 16; Deas Decl. ¶ 20; Schooley Decl. ¶ 15. For example, at UC

Berkeley, Fall semester enrollment began on July 8, 2020, and UC Berkeley students report back

to campus in a few weeks for classes beginning on August 26, 2020. Christ Decl. ¶ 16. Other UC

campuses offer undergraduate classes starting in September, and student enrollment in these

classes has already begun. See Schooley Decl. ¶ 16. At this point, it would be extremely difficult

for the campuses to develop a revised educational plan that would enable all international students

to maintain their visas under the Directive. Deas Decl. ¶ 20; Christ Decl. ¶ 16; see also Schooley

Decl. ¶¶ 15-16. In addition to the University’s determinations regarding the risk of reopening or

adding more in-person instruction, it is an unfair and unnecessary drain on already strained public

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resources to require the University to upset months of planning for the Fall semester within a matter of mere weeks.
D. The Loss of International Students and Harm to the University. The loss of international students enrolled at the University will have substantial adverse effects. Nearly 30% of UC Berkeley’s graduate students and 50% of its engineering graduate students are international students potentially affected by the Directive. Christ Decl. ¶ 17; see also Deas Decl. ¶ 21(b). These graduate students perform critical research roles and serve as teaching assistants. Christ Decl.¶ 17. The loss of these students would have significantly detrimental effects on UC Berkeley’s ability to carry out its instruction of undergraduates.14 Id. The University’s research mission also depends on numerous international partnerships and collaborations, which in turn depend on the recruitment and enrollment of the best and brightest students from across the world, particularly in the science, technology, engineering, and mathematics (“STEM”) disciplines. Christ Decl. ¶ 18; see also Schooley Decl. ¶ 20(b). Even a semester-long disruption in the University’s ability to conduct significant STEM research would have detrimental effects on it as an international research university.15 Id. Further, the loss of diversity at the University should international students be forced to withdraw will have a negative pedagogical impact on all students, who will be deprived of the diversity of perspectives and experience that enrich the learning environment. Christ Decl.¶ 17; see also Deas Dec. ¶ 21(d); Schooley Decl. ¶¶ 20(d), 21(g).

14 Tuition paid by international students is significant to UC’s finances. Christ Decl. ¶ 17. International undergraduates at the University accounted for approximately $1.1 billion in tuition and fee receipts in the 2019-20 school year. Alcocer Decl. ¶ 5. Tuition and fees attributable to international graduate students account for an additional $350 million. Id. ¶ 6. This financial shortfall cannot easily be recouped by enrolling other students, particularly due to the difference in tuition between in-state and out-of-state students. Id. ¶ 9. These negative financial impacts also affect UC’s ability to support financial aid and to undertake infrastructure improvements across campuses. Id.
15 Representative research at UC Berkeley that relies in significant part on the enrollment of international students includes, inter alia, a project for the U.S. Army in which UC Berkeley students are conducting cutting-edge research related to drone technology and a research program developing projection algorithms to predict COVID-19 cases, hospitalizations, ICU admissions, and ventilator needs at the county and hospital level throughout the United States. In each case, the loss of international students with discrete and unique skillsets would create extensive delays unacceptable to UC’s partners and to society writ large. Christ Decl. ¶ 18.

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As a result, the Directive forces University campuses to choose between losing numerous international students who bring immense beneﬁts to the academic community or taking burdensome steps to provide in-person instruction that increases risks to the health of the University’s students, faculty, and staﬀ. Christ Decl. ¶ 21; Deas Decl. ¶ 27; Schooley Decl. ¶ 22. Each University campus would be forced to increase the number of in-person classes available, thereby increasing the risk of exposure to the COVID-19 virus to other community members, including the faculty required to lead those in-person classes as well as the staff needed to support them. See, e.g., Christ Decl. ¶ 21. Further, to comply with the Directive, the University will be required to reissue thousands of Form I-20 documents for the F-1 visa holders across each of its campuses. Id. at ¶ 17. At UC Berkeley alone, this will require hundreds of staff hours to complete. Id.
E. Students’ Reliance on ICE’s March 13 Guidance As a result of the University’s response to the COVID-19 pandemic, which relied in part on the March 13 Guidance, all University students in effect have relied on the March 13 Guidance in planning to attend the University this Fall. International and U.S.-based students alike have taken out loans and made housing arrangements or moved home for the Fall semester anticipating that their studies would resume through remote instruction. See Decl. of Doe No. 2 (“Doe No. 2 Decl.”) ¶ 8; Decl. of Doe No. 3 (“Doe No. 3 Decl.”) ¶ 7;16 see also Decl. of Kavitha Iyengar (“Iyengar Decl.”) ¶ 8. Many international students have returned to their home countries in reliance on the government’s instruction that their studies could resume online. Many of those students are now unable to return to the United States because of travel restrictions, the government’s refusal to re-issue visas and, now, the government’s insistence that universities certify that their instruction will proceed in person. See, e.g., Christ Decl. ¶ 19. Other students who have remained in the United States will be forced to leave under the Directive and will be forced to break leases and pay resulting penalties. Id.; see also Doe No. 1 Decl. ¶ 10; Doe No. 2

16 This Motion for Preliminary Injunction is accompanied by a Motion for Does 1 to 4 to Proceed Under Pseudonyms, filed concurrently herewith.

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Decl. ¶ 8; Doe No. 3 Decl. ¶ 7. Practically, it is too late for any student to transfer to another university, mere weeks
before the start of the semester, especially international students who must find a university in this country that can certify its intent to offer a mostly in-person curriculum despite the significant health risks involved in doing so. Even if students wanted to transfer, it is also unlikely that there would be sufficient alternative in-person programs in the country for all international students given the specialized nature of many students’ studies and the ongoing pandemic. See Doe No. 1 Decl.; Doe No. 2 Decl. ¶¶ 6-8; see also Deas Decl. ¶ 23; Iyengar Decl. ¶ 6.
Moreover, international students face emotional and psychological trauma from the sudden and unanticipated disruption to their ability to pursue their education in the United States, the inability to participate in U.S.-based practical training opportunities (e.g. internships) which will further negatively impact their professional prospects, violence and poverty afflicting their home countries, and being forced to return to home country living situations without reliable, high-speed internet access necessary for remote instruction. See, e.g., Doe No. 1 Decl. ¶¶ 8-10; Doe No. 2 Decl. ¶¶ 6-8; Doe No. 4 Decl. ¶¶ 6; see also Christ Decl. ¶ 19; Schooley Decl. ¶ 21.

F. ICE’s Sudden and Arbitrary Re-imposition of In-Person Education Requirements During the COVID-19 Emergency
Despite the President’s continuing national emergency declaration and the March 13
Guidance’s express statement that its exemption from the in-person class requirement would
remain “in effect for the duration of the [COVID-19] emergency,” on July 6, 2020, ICE suddenly
and arbitrarily reversed its course, stating:

1) recipients of F-1 visas are no longer permitted to “take a full online course load and remain in the United States”;

2) “[a]ctive students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status or potentially face immigration consequences” such as the initiation of removal proceedings;

3) no new F-1 visas would issue to students planning to enroll in programs that will be fully online for the fall semester;

4) “students attending schools offering a hybrid model – that is, a mixture of online and

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in person classes – will be allowed to take more than one class or three credit hours online,” provided that for each such student, the school certifies by August 4, 2020, “within 21 business days of publication” of the Directive, “that the school is not operating entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.”
RJN, Ex. A. The Directive also re-characterizes ICE’s March 13 Guidance, stating that the earlier
guidance “instituted a temporary exemption regarding the online study policy for the spring and summer semesters.” Id. at 1 (emphasis added). Nothing in the March 13 Guidance, however, suggests any such temporal limit. To the contrary, it explicitly stated it would remain “in effect for the duration of the emergency.” RJN, Ex. B at 1. Nowhere in the Directive or accompanying News Release, id., Ex. F, does ICE provide any justification for the reversal of policy, nor is there any indication that the government undertook any consideration or analysis of relevant factors such as the impact of the reversal on the health and safety of university students, faculty, and staff, the effect on public health for the communities surrounding every academic institution affected by the policy change, or the justifiable reliance on the March 13 Guidance by universities and students in planning for the Fall 2020 term. The Directive also contains no acknowledgement of the ongoing—indeed, rapidly-worsening—COVID-19 pandemic.
III. LEGAL STANDARD A preliminary injunction may properly issue where the plaintiff establishes that (1) it is
“likely to succeed on the merits,” (2) it is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of equities” tips in its favor, and (4) an “injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). In certain cases, “serious questions going to the merits” and a hardship balance that tips sharply toward the plaintiff can support the issuance of a preliminary injunction, assuming the other two Winter elements are met. Alliance for the Wild Rockies, 632 F.3d at 1132. Serious questions “need not promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on

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the merits.” Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (internal citations omitted). Under the Ninth Circuit’s “sliding scale” approach, “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (internal citations omitted).

IV. ARGUMENT This case arises under the Administrative Procedure Act, which requires that the Court set

aside agency action that is, inter alia, arbitrary and capricious, otherwise unlawful, or taken

without observing procedure required by law. See 5 U.S.C. § 706(2)(A), (D). ICE’s July 6

Directive fails under the APA standard in at least two general respects: it is both (i) arbitrary and

capricious for lack of any reasoned explanation and for failure to consider factors plainly relevant

to such a significant reversal of policy, and (ii) defective because ICE failed to provide the public

advance notice of its proposed action or any opportunity to comment on it before finalization.

The July 6 Directive is arbitrary, capricious, or otherwise unlawful on at least three

separate grounds. First, ICE failed to offer in or with the Directive any reasoned explanation for

its sudden reversal of the March 13 Guidance—which ICE had stated expressly would extend “for

the duration of the emergency.” When the government reverses its own earlier policy, it must

“acknowledge and provide an adequate explanation for its departure from established precedent,

and an agency that neglects to do so acts arbitrarily and capriciously.” Jicarilla Apache Nation v.

U.S. Dep’t of the Interior, 613 F.3d 1112, 1119 (D.C. Cir. 2010) (internal citations omitted); see

also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (agency departure from

prior policy impermissible without “explaining its changed position”); Dep’t of Homeland Sec. v.

Regents of the Univ. of Cal., No. 18-587, 2020 WL 3271746 (U.S. June 18, 2020) (“Regents”), at

*14-15.

Second, ICE failed to consider important aspects of the problem, including: (1) the health

risks associated with its new policy; the burden on universities of having to certify thousands of

F-1 students as complying with the Directive’s strictures regarding in-person instruction, all by

August 4, when most students will not yet have committed to their classes; (2) the impact of the

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reversal on the finances of, and other costs that must be borne by, universities, due to the loss of tuition from F-1 students who disenroll or from having now to provide safe in-person instruction and certify that each student engaged in a hybrid program that meets the Directive’s requirements; and (3) the many reliance interests, both of the University and its F-1 students, that ICE’s now abandoned March 13 Guidance engendered. An agency must grapple with such issues when it issues a substantive rule affecting the rights or obligations of individuals or entities.17 See Encino Motorcars, 136 S. Ct. at 2124-2126.
Third, ICE failed to articulate any rational connection between the facts it found and the choice it made. See Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 687 n.15 (9th Cir. 2007); Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1051 (9th Cir. 2010).
Further, the July 6 Directive is fatally flawed, because it is a substantive rule affecting the rights and obligations of the University and its students, and the promulgation of which required ICE to first give notice to the public of its intent to adopt the rule, and provide any interested person with an opportunity to comment before the Directive was finalized. 5 U.S.C. § 553(b). It did not do that and, therefore, the July 6 Directive is unlawful for failure to follow the rulemaking procedure required by the APA.
On both claims, Plaintiff is likely to succeed on the merits. The other preliminary injunction requirements are likewise readily satisfied. As the supporting declarations make abundantly clear, the University of California system stands to suffer substantial and irreparable harm absent a preliminary injunction preserving the status quo. The balance of equities also weighs heavily in favor of injunctive relief: Plaintiff and its students will be injured immediately and irreparably under the Directive, while the United States stands to lose nothing if the Directive is enjoined. After all, a preliminary injunction would merely maintain the status quo the government itself instituted, responsibly, in its March 13 Guidance, which it stated at the time

17 ICE concedes its July 6 Directive is intended to operate as a final rule. The Directive itself states that the “U.S. Department of Homeland Security plans to publish the procedures and responsibilities in the below Broadcast Message [the July 6 Directive] in the near future as a Temporary Final Rule in the Federal Register.” RJN, Ex. A at 1 (emphasis added).

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would remain in place for the duration of the emergency. The emergency is not over. Finally, a

preliminary injunction is in the public interest. The value to the public of colleges and universities

having vibrant and diverse student bodies, including international students, is obvious—that value

manifests not merely in the form of the cultural experiences of individual students or the student

body and campus life generally, but in the economies of the host communities. If the international

students leave, that value to the public is lost. Alternatively, coercing a mass re-opening (which

appears to be Defendants’ conceded purpose, as discussed below) while the pandemic is still

raging would risk increased transmission and community spread, harming the public in all the

ways public health officials have been warning about.
A. THE REGENTS ARE LIKELY TO SUCCEED ON THE MERITS. 1. The Regents Are Likely to Prevail on the First Cause of Action Under the APA Because the July 6 Directive is Arbitrary and Capricious.
The Administrative Procedure Act “sets forth the procedures by which federal agencies

are accountable to the public and their actions subject to review by the courts.” Franklin v.

Massachusetts, 505 U.S. 788, 796 (1992). In evaluating whether agency actions are reasonable

and lawful, courts must conduct a “thorough, probing, in-depth review” of the agency’s reasoning

and a “searching and careful” inquiry into the factual underpinnings of the agency’s decision.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971). A court “shall”

set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A); see also Butte Envt’l. Council v. U.S. Army Corps

of Eng’rs, 620 F.3d 936, 945 (9th Cir. 2010). Agency action should be set aside as arbitrary and

capricious if the agency fails to explain the basis of its decision, fails to consider all relevant

factors and articulate a “rational connection between the facts found and the choice made,” or

fails to offer a “reasoned explanation” for departures from preexisting policies. Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted); Encino

Motorcars, 136 S. Ct. at 2126 (in explaining its changed position, agency must also be cognizant

that prior policies may have “engendered serious reliance interests that must be taken into

account”); see also Regents, 2020 WL 3271746, at *14. The Directive fails each of these

requirements.
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a. The Directive Failed to Offer a Reasonable Explanation for ICE’s Policy Reversal.
Having stated in that earlier Guidance that the policy would remain in effect “for the duration of the emergency,” it was nothing short of shocking that ICE would announce in the Directive that F-1 students would not be allowed into the country or, if already here, would be required to leave, if their schools are not intending to provide traditional classroom instruction, and that universities would have to certify by August 4 that the courses selected by thousands of international students in hybrid programs meet the Directive’s in-person classroom strictures. The July 6 Directive never acknowledges what the March 13 Guidance actually said – that it would remain in place for the duration of the emergency – or explains why ICE changed course. The Directive instead states that ICE had only provided guidance for the “spring and summer semesters.” That is not correct. See RJN, Ex. B at 1.
Even where authorized to do so, when a federal agency reverses its own prior policy, it must “acknowledge and provide an adequate explanation for its departure from established precedent, and an agency that neglects to do so acts arbitrarily and capriciously.” Jicarilla, 613 F.3d at 1119 (D.C. Cir. 2010) (internal citation omitted); see also Encino Motorcars, 136 S. Ct. at 2126 (agency cannot depart from prior policy without “explaining its changed position”); Regents, 2020 WL 3271746, at *14-15 (finding that DHS’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious, in part because DHS’s memorandum rescinding the program failed to consider certain aspects of policy). Thus, reversing a pre-existing policy requires a “more detailed justification than what would suffice for a new policy created on a blank slate.” FCC v. Fox Telev’n Stns., Inc., 556 U.S. 502, 515 (2009).
Here, as discussed, the Directive represents a complete reversal of Defendants’ earlier Guidance on not only the existence and severity of the COVID-19 pandemic but, more importantly, the ability of students studying on F-1 visas “to continue to make progress in a normal course of study.” See RJN, Ex. E at 1. The failure to provide any justification for the reversal is contrary to law and requires that the Directive be set aside.

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b. The Directive Failed to Consider Important Aspects of the Problem, Including the Reliance of Plaintiff and Its Students on the March 13 Guidance.
Further, the Directive fails to consider, much less evaluate, the significant reliance

interests of both the University and its affected students engendered by the current DHS/ICE

policy. Regents, 2020 WL 3271746 at *4; Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 106

(2015) (government must provide special justification “when its prior policy has engendered

serious reliance interests that must be taken into account”). The Directive also fails to consider the

health risks that a broader re-opening of in-person classes would entail; the burdens on the

universities (and the likely impossibility) of having to certify, by August 4, that the courses

chosen by each F-1 visa holder in a hybrid program comply with the in-person classroom

strictures of the Directive; and the financial and other impacts the Directive would have on

universities and their educational programs, as well as on students, faculty and staff.

The March 13 Guidance expressly permitted F-1 students to “participate in online or other

alternate learning procedures” and assured universities and students that the policy would be “in

effect for the duration of the emergency.” See RJN, Ex. B at 1; see also id. at 1-2 (applying same

policy to international students who return to their home countries and continue to take classes

on-line). To change this policy with no notice and without considering any of these effects is an

arbitrary, capricious, and unreasoned agency action. It must be set aside.

Based in part on the March 13 Guidance, the University started preparing and planning for

the Fall 2020 semester four months ago. See Christ Decl. ¶ 3. Specifically, at each campus, the

University engaged its faculty in the assessment and development of COVID-19 recovery and

resiliency planning to ensure the safety of its university community while continuing to carry out

its education and research mission. See generally id., ¶¶ 4-17. The University invested millions of

dollars and thousands of faculty hours tackling important considerations impacting health and

safety. Alcocer Decl., ¶ 10. At UC Berkeley alone, nine committees of experts across numerous

disciplines have worked for months to determine the University’s best course forward in the Fall.

Christ Decl., ¶ 4. Relying on the fact that international students could continue their studies

online, the University administration and various working groups devised a complex course

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schedule that accounted for the large number of courses, the nature of individual courses and the

feasibility of transitioning those courses to online instruction. Id. ¶ 12. The University’s Fall

semester curriculum assumed that international students would continue to be enrolled even if

their classes would be held primarily online. Id. at ¶¶ 11-16. Also relying on the March 13

Guidance, the University’s Fall curriculum assumed that international graduate students would

continue as teaching assistants. Similarly, the University’s budget for the Fall semester assumed

the continued enrollment of international students. Alcocer Decl., ¶¶ 5-6. The disenrollment of

international students from the University in the Fall semester alone caused by the enforcement of

the Directive could be substantial, and likely cannot be made up by extending offers at this late

date to U.S.-based students. Id.

UC’s students who hold F-1 visas relied on the March 13 Guidance as well. See Christ

Decl. ¶19. Many international students continued to live near their campuses in reliance on the

fact that they could continue their instruction, albeit remotely, through the Fall 2020 semester. Id.

If the Directive is enforced, those students who remained in the U.S. during the Summer would be

forced to break their leases at great expense. Id. Those students who have already left the country

planning to return for the Fall semester, have not made plans to transfer to other universities – and

are to suffer significant interruption in their education with negative impacts to their career

prospects. Other international students will be unable to participate in U.S.-based practical

training opportunities like internships that will further impact their development of practical skills

and professional networks.

Had these international students known that Defendants would abruptly issue its

Directive, thereby reversing the March 13 Guidance, these students could have made other

arrangements for Fall 2020. Now, it is too late to expect students to transfer to other universities,

especially for those students in specialized courses of study, as the Directive suggests that

students may do. Moreover, similarly-situated universities dealing with the devastating effects of

COVID-19—indeed, all of them—would also be forced to primarily offer online instruction. The

government’s facile instruction that international students simply enroll in a different university

offering in-person instruction is particularly cruel under the circumstances.

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Beyond reliance interests, the Directive is oblivious to other important aspects of the

problem. Among other things, Defendants failed to consider the social, academic, and research impacts of their decision. Many students have already reported the emotional and psychological

harm from the sudden, unanticipated about-face in the government’s immigration policy. Others have expressed concern about being forced to return to the violence and poverty afflicting their

home countries or being forced to return to their home countries where there may not be adequate

access to reliable high-speed internet required for remote learning technologies. The Directive also fails to account for the various benefits and contributions made by

international students to institutions of higher learning. All students benefit from a diversity of perspectives and experiences. Depriving universities of a key element of their diverse student

bodies does real damage to the institution of learning and to all students’ educational experience.

Moreover, international students play critical roles in the University’s research partnerships as discussed above. The threat to the University’s research objectives caused by the removal of

international students merely because their coursework will take place online in the midst of a global pandemic is substantial. In some cases, the setback in research due to the loss of the unique skillsets of many such students is months, if not years. See Christ Decl. ¶ 18; Deas Decl. ¶¶ 21(a),

23; Schooley Decl. ¶ 20(a). Further, Defendants have not acknowledged, much less analyzed or considered, the extreme setback to public health that their Directive represents. As a result of the

significant losses threatened by the disenrollment of thousands of international students, the Directive will likely force universities to prematurely revert to in-person instruction, upending any gains made by communities in quelling the rapid spread of COVID-19 and squandering the

past sacrifice of millions across this country. Many of these harms are explained further below, in the discussion of irreparable harm, and detailed more completely in the attached declarations. But

in addition to the Court’s evaluation of the gravity of the harms for purposes of that separate

prong of the preliminary injunction test, it must consider ICE’s lack of attention to these harms in evaluating the reasonableness of the agency’s action. Here, the July 6 Directive lacks the sine qua

non of lawful agency action: reasoned decision-making. See Regents, 2020 WL 3271746, at *15.

c.
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The Directive is arbitrary and capricious also because it does not articulate any rationale

that would justify ICE’s decision. It is “a fundamental requirement of administrative law … that

an agency set forth its reasons for decision; an agency’s failure to do so constitutes arbitrary and

capricious agency action.” Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014)

(internal citation omitted). “[C]onclusory statements will not do; an agency’s statement must be

one of reasoning.” Id. (internal marks omitted); see also Dep’t of Commerce v. New York, 139 S.

Ct. 2551, 2569 (2019) (an agency must “articulate[] a satisfactory explanation for [its] decision”).

The two and one-half page Directive fails this threshold test. It threatens to inflict grievous

harm on hundreds of thousands of F-1 visa-holding university students who were invited to study

at American universities, including the potential for removal proceedings to make them leave,

without providing any explanation—much less a clear and adequate explanation—as to why.

The sole statement that might be considered a “justification” is the statement that while

“accommodations to provide flexibility to schools and nonimmigrant students” may be made,

such accommodation must be weighed against “a concordant need to resume the carefully

balanced protections implemented by federal regulations.” RJN, Ex. A at 1. Such threadbare and

cryptic justification is woefully deficient, if for no other reason than the fact that it cannot

possibly be based on “the relevant data,” such as the well-documented fact that the COVID-19

health crisis is currently intensifying, not abating. See Dep’t of Commerce, 139 S. Ct. at 2569.

This is demonstrable from the simple fact that the rate of infections and hospitalizations is greater

today than it was when the March 13 Guidance issued. Moreover, the government itself is

predicting that as many as 1.5 million people may ultimately die from COVID-19 illness, with

over 200,000 of those deaths occurring by November 1. Thus, to the extent that this statement can

be read as the federal government’s justification for its abrupt about-face from its March 13

Guidance, it is inadequate as insufficiently based on fact and reason.

Moreover, DHS has admitted publicly that the actual basis for the reversal of the policy

rests on political considerations rather than rational decision-making after reasoned deliberation

and consultation with experts. Acting Deputy Secretary of Homeland Security Kenneth Cuccinelli

set pretext aside when he plainly announced, on July 7, 2020, that the F-1 visa policy change is

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designed to “encourage schools to reopen.”18 In light of Defendants’ failure to provide any comprehensible rationale for its about-face,
the Directive rescinding the March 13 Guidance should be set aside. SEC v. Chenery Corp. (“Chenery II”), 332 U.S. 194, 196–97 (a court cannot “be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.”); Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 849 (9th Cir. 2003) (same).
2. The Regents Will Likely Prevail on Its Second APA Cause of Action, Because the Directive is a Substantive Rule that Did Not Comply with the APA’s Notice and Comment Requirements.
The Regents are also likely to succeed on its claim that the Directive purporting to rescind the March 13 Guidance also fails to meet the APA’s procedural requirements. The Directive is a legislative rule compelling universities to take certain action, not previously required, under pain of being deemed out of compliance. Indeed, ICE states in the Directive itself that it intends to publish its content at some future time in the Federal Register as a Temporary Final Rule. Because the Directive is a legislative rule, DHS was required to abide by the full panoply of APA procedures, including providing notice and an opportunity for public comment. It failed to do so.
Under the APA, courts must set aside agency action that is taken without observance of procedures required by law. 5 U.S.C. § 706(2)(D). An agency’s substantive rules must go through the APA’s notice-and-comment rulemaking requirements before they become effective. See 5 U.S.C. § 553(b), (c); San Diego Air Sports Ctr., Inc. v. F.A.A., 887 F.2d 966, 971 (9th Cir. 1989). A rule is substantive if it “narrowly limits administrative discretion” or establishes a “binding norm” that “so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criterion.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009). Put another way, an agency’s substantive rule that has the

18 John Bowden, Cuccinelli says rule forcing international students to return home will ‘encourage schools to reopen’, The Hill (July 7, 2020, 4:17 PM), https://thehill.com/homenews/administration/506248-cuccinelli-says-rule-forcing-internationalstudents-to-return-home

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“force and effect of law” is subject to the APA’s notice and comment procedures. Chrysler Corp. v. Brown, 441 U.S. 281, 302-303 (1979); accord Ciox Health, LLC v. Azar, 435 F. Supp. 3d 30, 66 (D.D.C. 2020) (explaining that “a rule is legislative, and therefore must undergo notice and comment, when it ‘change[s] the law,’” and concluding that HHS’s amended rule and guidance regarding fees for delivering health records was a legislative rule subject to notice and comment) (quoting Nat’l Res. Def. Council v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011)).
Here, the Directive is a substantive rule for which the APA’s notice-and-comment requirements applied. Among other things, because the University is adopting a hybrid model – that is, a mixture of on-line and in-person classes –for the Fall 2020 semester, the Directive compels the University to certify to SEVP for each of its 37,000-plus F-1 students that, among other things, “the student is not taking an entirely on line course load” by August 4, 2020. Christ Decl. ¶ 17(f). This is a significant burden on the University as it will require thousands of hours of staff time, further exacerbated by the fact that only designated school officials certified by DHS may perform these tasks, thereby significantly limiting the University’s ability to adapt to this substantial added burden. Id.. The Directive also compels F-1 visa students to take courses inperson to be able to remain in the United States to continue pursuing their studies or face the threat of visa revocation or even removal. ICE/SVEP is also conditioning the UC students’ maintenance of their F-1 nonimmigrant status upon compliance with the Directive. The Directive is indisputably a substantive rule, subject to notice and comment requirements.
B. THE REGENTS AND ITS STUDENTS ARE LIKELY TO SUFFER IRREPARABLE HARM.

The Directive is already inflicting severe and irreparable harm on the University. The

University is being forced right now to grapple with decisions with life-altering consequences for

its international students as well as serious impacts to the health and safety of everyone affiliated

with the University and the communities that it serves. The Directive presents the University with

a difficult choice: reopen more of its lecture halls, dormitories, and dining halls at increased risk

to the health of all of its students, faculty, and staff, or effectively prevent the University’s F-1

visa students the opportunity to carry out their studies and, thus, deprive all other University

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students of the diversity of opinion and perspective that they expect and is central to the pedagogy of a world-class academic institution. The July 6 Directive threatens irreparable consequences for its academic community, including the immediate loss of valued students and the erosion of any gains made to date in protecting its community from an even higher rate of transmission of the potentially deadly COVID-19 virus. That the Directive theoretically permits UC students with F-1 visas to transfer to another university does not materialize into realistic options for UC students at this time. In this situation, “[a] delay, even if only a few months, pending trial represents precious, productive time irretrievably lost.” Enyart v. Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1166 (9th Cir. 2011). Moreover, it is no solution to permit international students to take a “hybrid” course load where then any international student with a pre-existing medical condition that makes her susceptible to severe illness resulting from COVID-19 would be unfairly discriminated against for opting not to attend in person classes.
The Directive further creates economic harm to the University. See Alcocer Decl. ¶¶ 5-6. Moreover, the budget shortfall will also prevent the University from carrying out planned infrastructure and capital improvements to its campus facilities. Id. ¶ 9. Even before the Directive, the University was reeling from the economic fall-out of the COVID-19 pandemic and the resultant transition to on-line learning. Indeed, the University spent millions developing its COVID-19 recovery and resiliency plans, which investment would be rendered meaningless if the University were forced to abandon its well-considered plan to protect the health of its community. Id. ¶ 10. Furthermore, the University estimates that it will have to expend significant resources to reissue I-20 forms for the thousands of students affected by the Directive. See Christ Decl., ¶ 17.
More importantly, if the Directive is implemented, the University will suffer the loss of many international students who are vital to the pedagogy of its lecturers, the vibrancy of its culture, and the success of its research programs. The University and surrounding community will further lose the substantial economic benefit from international students. Christ Decl. ¶ 19(d).
C. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH HEAVILY IN FAVOR OF A PRELIMINARY INJUNCTION ORDER.

The final elements of the preliminary injunction test—the balance of equities and the

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public interest—merge when the government is a party. See League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). In assessing these factors, courts consider the impacts of the injunction on nonparties as well. See id. at 766.
The balance of equities and the public interest weigh strongly in favor of granting injunctive relief to The Regents to maintain the status quo, in advance of the August 4 deadline to submit Form I-20 certifications to ICE. RJN, Ex. A at 1. While UC and its students holding F-1 visas will be severely impacted should the Directive be implemented, the Defendants face no articulable harm should the Court grant relief. Since Defendants intended for the March 13 Guidance to remain “in effect for the duration of the emergency,” they cannot now claim that they will be harmed by the continuation of their sound, prior policy. As discussed above, the public health emergency caused by the COVID-19 pandemic is ongoing, and there is no reasonable basis to contend otherwise. Further, the reversal in policy appears to stem from a desire to reopen schools regardless of whether doing so will harm the health and lives of students, faculty, and staff and place others with whom university community members come into contact at risk. The balance of equities between UC’s goal of protecting the health and well-being of its community and maintaining its academic freedom on the one hand, and a federal government seeking to coerce in-person activity at universities on the other, tips sharply in favor of granting the injunction. It is in the public interest that Defendants be enjoined from carrying out their arbitrary and capricious plan to force the premature transition of universities to in-person learning.
Finally, a preliminary injunction is appropriate where, as here, the hardship balance tips sharply toward the plaintiff, and the plaintiff has articulated “serious questions going to the merits.” Alliance for the Wild Rockies, 632 F.3d at 1132. The Regents have demonstrated “a fair chance of success on the merits” on their claims and irreparable harm if the Directive is permitted to proceed. Further, the balance of equities and the public interest favor the Regents.

V. CONCLUSION For all the above reasons, this Court should issue a preliminary injunction that (i) enjoins

Defendants from proceeding with their July 6 Directive and (ii) orders that Defendants preserve

the status quo ante pending adjudication of this dispute on the merits.

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Dated: July 13, 2020
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Respectfully submitted,
CROWELL & MORING LLP
By: /s/ Jennifer S. Romano Jennifer S. Romano A. Marisa Chun Emily T. Kuwahara Thomas A. Lorenzen Daniel W. Wolff Molly A. Jones Attorneys for Plaintiff THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

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