1/14/2021

CAND-ECF

ADRMOP,CLOSED,RELATE

U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:20-cv-04592-JST

State of California v. U.S. Department of Homeland Security et al Assigned to: Judge Jon S. Tigar Relate Case Case: 4:20-cv-04621-JST Cause: 05:551 Administrative Procedure Act

Date Filed: 07/09/2020 Date Terminated: 10/20/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: Federal Question

Plaintiff State of California

represented by Domonique Celeste Alcaraz 300 S. Spring St. Los Angeles, CA 90013 213-269-6667 Email: domonique.alcaraz@doj.ca.gov ATTORNEY TO BE NOTICED

Jasleen Kaur Singh California Department of Justice 300 S. Spring Street Los Angeles, CA 90013 United Sta 213-269-6622 Email: jasleen.singh@doj.ca.gov ATTORNEY TO BE NOTICED

Lee Isaac Sherman California Department of Justice 300 S. Spring Street Los Angeles, CA 90013 (213) 269-6404 Email: lee.sherman@doj.ca.gov ATTORNEY TO BE NOTICED

Marissa Suzanne Malouff Califoria Department of Justice Civil Rights Enforcement 300 S. Spring Street 12228A Los Angeles, CA 90013 United Sta 213-269-9647 Email: marissa.malouff@doj.ca.gov ATTORNEY TO BE NOTICED

V.

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Defendant U.S. Department of Homeland Security

CAND-ECF
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

Defendant
U.S. Immigration and Customs Enforcement

Sara Winslow 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

Defendant Chad F. Wolf

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

Defendant Matthew Albence

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)

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Miscellaneous The Regents of the University of California

CAND-ECF
LEAD ATTORNEY ATTORNEY TO BE NOTICED
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

Date Filed 07/09/2020
07/09/2020 07/09/2020 07/09/2020 07/10/2020 07/10/2020
07/10/2020 07/13/2020 07/13/2020

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf ( Filing fee $ 400, receipt number 0971-14675508.). Filed byState of California. (Attachments: # 1 Civil Cover Sheet)(Malouff, Marissa) (Filed on 7/9/2020) (Entered: 07/09/2020)
2 Proposed Summons. (Malouff, Marissa) (Filed on 7/9/2020) (Entered: 07/09/2020)
3 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by State of California.. (Malouff, Marissa) (Filed on 7/9/2020) (Entered: 07/09/2020)
4 NOTICE of Appearance by Jasleen Kaur Singh (Singh, Jasleen) (Filed on 7/9/2020) (Entered: 07/09/2020)
5 NOTICE of Appearance by Lee Isaac Sherman (Sherman, Lee) (Filed on 7/10/2020) (Entered: 07/10/2020)
6 Case assigned to Judge Jon S. Tigar.
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.
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. (anjS, COURT STAFF) (Filed on 7/10/2020) (Entered: 07/10/2020)
7 NOTICE of Appearance by Domonique C Alcaraz (Alcaraz, Domonique) (Filed on 7/10/2020) (Entered: 07/10/2020)
8 Summons Issued as to Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf, U.S. Attorney and U.S. Attorney General (jmlS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
9 Initial Case Management Scheduling Order with ADR Deadlines: Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See

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07/13/2020 07/13/2020 07/13/2020
07/14/2020 07/14/2020 07/14/2020 07/14/2020 07/15/2020 07/15/2020 07/21/2020 07/23/2020

CAND-ECF
General Order No. 65 and http://cand.uscourts.gov/cameras. Case Management Statement due by 10/6/2020. Initial Case Management Conference set for 10/13/2020 02:00 PM in Oakland, Courtroom 6, 2nd Floor. (Attachments: # 1 Notice of Eligibility for Video Recording)(jmlS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
10 MOTION to Relate Case (The Regents of The University of California's Administrative Motion to Consider Whether Cases Should Be Related) ﬁled by The Regents of the University of California. (Attachments: # 1 Stipulation and [Proposed] Order Granting Adm Motion to Relate Cases)(Romano, Jennifer) (Filed on 7/13/2020) (Entered: 07/13/2020)
11 STIPULATION WITH PROPOSED ORDER re Request to Establish Brieﬁng and Hearing Schedule ﬁled by State of California, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf, The Regents of the University of California and Matthew Albence. (Sherman, Lee) (Filed on 7/13/2020) Modiﬁed on 7/14/2020 (jmlS, COURT STAFF). (Entered: 07/13/2020)
12 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof ﬁled by State of California. Motion Hearing set for 8/19/2020 02:00 PM in Oakland, Courtroom 6, 2nd Floor before Judge Jon S. Tigar. Responses due by 7/27/2020. Replies due by 8/3/2020. (Attachments: # 1 Proposed Order, # 2 Request for Judicial Notice, # 3 Appendix A-N)(Malouff, Marissa) (Filed on 7/13/2020) (Entered: 07/13/2020)
13 CERTIFICATE OF SERVICE by State of California (Malouff, Marissa) (Filed on 7/14/2020) (Entered: 07/14/2020)
14 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)
15 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)
16 STIPULATION WITH PROPOSED ORDER ﬁled by Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf, Regents of the University of California and State of California. (Winslow, Sara) (Filed on 7/14/2020) Modiﬁed on 7/15/2020 (jmlS, COURT STAFF). (Entered: 07/14/2020)
17 ORDER by Judge Jon S. Tigar granting (16) Stipulation in case 4:20-cv-04592JST; granting (21) Stipulation in case 4:20-cv-04621-JSW. (mllS, COURT STAFF) (Filed on 7/15/2020) (Entered: 07/15/2020)
Set Deadlines/Hearings: Status Report due by 7/21/2020. (mllS, COURT STAFF) (Filed on 7/15/2020) (Entered: 07/15/2020)
18 Joint STATUS REPORT by State of California and Defendants. (Malouff, Marissa) (Filed on 7/21/2020) Modiﬁed on 7/22/2020 (jmlS, COURT STAFF). (Entered: 07/21/2020)
19 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,

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07/27/2020 08/04/2020
08/06/2020
09/04/2020
09/09/2020 09/22/2020 09/23/2020 09/23/2020 10/06/2020
10/08/2020

CAND-ECF
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)
20 CERTIFICATE OF SERVICE by State of California (Sherman, Lee) (Filed on 7/27/2020) (Entered: 07/27/2020)
21 Joint STATUS REPORT by State of California, 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) (Malouff, Marissa) (Filed on 8/4/2020) Modiﬁed on 8/5/2020 (jmlS, COURT STAFF). (Entered: 08/04/2020)
22 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)
23 JOINT STATUS REPORT by State of California, U.S. Department of Homeland Security, State of California, U.S. Immigration and Customs Enforcement, Chad F. Wolf, Matthew Albence, The Regents of the University of California. (Attachments: # 1 Proposed Order)(Malouff, Marissa) (Filed on 9/4/2020) Modiﬁed on 9/8/2020 (jmlS, COURT STAFF). (Entered: 09/04/2020)
24 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)
25 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options (Malouff, Marissa) (Filed on 9/22/2020) (Entered: 09/22/2020)
26 NOTICE of Appearance by Elizabeth Kurlan for Defendants (Kurlan, Elizabeth) (Filed on 9/23/2020) (Entered: 09/23/2020)
27 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options (Kurlan, Elizabeth) (Filed on 9/23/2020) (Entered: 09/23/2020)
28 JOINT CASE MANAGEMENT STATEMENT ﬁled by State of California, Chad F. Wolf, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, Matthew Albence. (Malouff, Marissa) (Filed on 10/6/2020) Modiﬁed on 10/7/2020 (jlmS, COURT STAFF). (Entered: 10/06/2020)
29 CLERKS NOTICE SETTING ZOOM HEARING. Initial Case Management Conference set for 10/13/2020 02:00 PM. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/jst
Court Appearances: Advanced notice is required of counsel or parties who wish to be identiﬁed by the court as making a n appearance or will be participating in the argument at the hearing. One list of names of all counsel appearing must be sent to in one email the CRD at JSTCRD@cand.uscourts.gov no later than October 9, 2020 by 4:00 p.m.
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

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10/13/2020
10/13/2020 10/19/2020

CAND-ECF
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
Initial Case Management Conference set for 10/13/2020 02:00 PM. (This is a text-only en try generated by the court. There is no document associated with this entry.) (mllS, COURT STAFF) (Filed on 10/8/2020) (Entered: 10/08/2020)
30 Minute Entry for proceedings held before Judge Jon S. Tigar: Initial Case Management Conference held on 10/13/2020. Hearing held via Zoom videoconference. Case Management Statement due by 1/12/2021. Further Case Management Conference set for 1/19/2021 02:00 PM by Videoconference.Total Time in Court: 6 minutes. Court Reporter: Not reported. Plaintiff Attorney: Marissa Malouff. Defendant Attorney: Elizabeth D. Kurlan. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mllS, COURT STAFF) (Date Filed: 10/13/2020) (Entered: 10/13/2020)
31 MOTION to Dismiss ﬁled by Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf. Responses due by 10/27/2020. Replies due by 11/3/2020. (Attachments: # 1 Exhibit Z.W. v. DHS, No. 20cv-1220 (C.D. Cal. Oct. 1, 2020) slip opinion)(Kurlan, Elizabeth) (Filed on 10/13/2020) (Entered: 10/13/2020)
32 NOTICE of Voluntary Dismissal by State of California (Malouff, Marissa) (Filed on 10/19/2020) (Entered: 10/19/2020)

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 Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 1 of 23

1 XAVIER BECERRA Attorney General of California
2 MICHAEL L. NEWMAN Senior Assistant Attorney General
3 DOMONIQUE C. ALCARAZ LEE I. SHERMAN
4 JASLEEN SINGH MARISSA MALOUFF (SBN #316046)
5 Deputy Attorneys General 300 S. Spring St., Suite 1702
6 Los Angeles, CA 90013 Telephone: (213) 269-6467
7 Fax: (213) 897-7605 E-mail: Marissa.Malouff@doj.ca.gov
8 Attorneys for State of California

9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14 THE STATE OF CALIFORNIA,

Civil Case No.

15

16

v.

Plaintiff, COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

17 U.S. DEPARTMENT OF HOMELAND

18

SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F.

19

WOLF, in his official capacity as Acting Secretary of the United States Department

20

of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting

21

Director of U.S. Immigration and Customs Enforcement,

22

Defendants.

23

24

25

26

27

28

Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 2 of 23

1

1. The State of California (the State or Plaintiff) brings this lawsuit to stop

2 Defendants from proceeding with their callous plan, issued in the midst of an escalating health

3 crisis, to force either: (a) up to 32,000 international students, who are attending public higher

4 education institutions in California, to depart the United States; or (b) the State’s higher

5 educational institutions to increase the risk of transmission of the novel coronavirus (COVID-19)

6 through expanded in-person instruction contrary to the advice of public health experts. In

7 addition to being cruel, Defendants’ attempt at a policy change to force in-person learning in the

8 middle of a pandemic is absurd and the essence of arbitrary and capricious conduct in violation of

9 the Administrative Procedure Act (APA). If that were not enough, Defendants have failed to

10 follow the procedures for notice and comment rulemaking required by the APA prior to enforcing

11 and implementing this policy.

12

2. As the U.S. Center for Disease Control and Prevention (CDC) has emphasized

13 throughout the pandemic, social distancing is one of the core tools to stop the spread of the highly

14 contagious COVID-19. California has been vigilant in adopting social distancing guidelines. On

15 March 19, Governor Gavin Newsom issued the first statewide stay-at-home order in the United

16 States. Contemporaneous with the Governor’s stay-at-home order, the California State University

17 system and California Community College system (collectively, California higher education

18 institutions) switched to almost exclusively online learning for the spring 2020 semester.

19

3. The federal government, including Defendants, has recognized the unique threat

20 posed by the pandemic. On March 13, the President declared the crisis a national emergency, a

21 declaration that remains in effect to this day. At that same time, Defendant Immigration and

22 Customs Enforcement (ICE) issued guidance documents granting exemptions to F-1 and M-1

23 nonimmigrant students, who are international students attending school in the United States, from

24 federal regulatory requirements to take in-person classes in order to maintain their status. ICE

25 acknowledged that the exemptions were necessary “[g]iven the extraordinary nature of the

26 COVID-19 emergency,” and asserted that the policy would be “in effect for the duration of the

27 emergency.”

28

4. While other parts of the world have stabilized their COVID-19 numbers since

1

Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 3 of 23

1 March, the federal government has struggled to forge a national response to combat the virus. In

2 recent weeks, as certain businesses and public spaces have re-opened, confirmed COVID-19

3 cases have surged throughout the United States to the highest levels of the entire pandemic.

4 Despite its best efforts to curb the effect of the pandemic, California, like the rest of the country,

5 has experienced increases in recent weeks of new confirmed COVID-19 cases and deaths

6 attributed to the disease.

7

5. Inexplicably, on July 6, the date that marked the highest number of new COVID-

8 19 cases in the United States since the start of the pandemic, ICE announced that it was

9 rescinding the exemptions on in-person learning for F-1 and M-1 students. Any such students

10 who cannot meet the in-person learning requirements of ICE’s must either leave the United States

11 or transfer to a school that meets those requirements. ICE justified the change in policy by

12 claiming that the prior exemptions were issued at the “height of the [COVID-19] pandemic.”

13

6. In changing its policy, ICE not only acted contrary to the clear record showing that

14 the COVID-19 emergency has escalated, not receded, but it also showed no consideration of the

15 significant harms presented by the pandemic. Because of the public health risks associated with

16 in-person education and in an effort to safeguard the health and safety of students, faculty, and

17 staff, higher education institutions transitioned virtually all classes to remote learning in spring

18 2020, continued to do so in summer 2020, and plan to operate on a primarily online basis for the

19 fall 2020 semester. ICE’s rescission of these exemptions undermines these informed decisions

20 and pressures California higher education institutions to offer additional in-person classes to

21 avoid losing the contributions of tens of thousands of international students who are valuable

22 members of their academic and research communities. And our nation would lose out on the

23 benefit of their contributions to academia while they likely enroll in academic programs in other

24 countries.

25

7. As a result of ICE’s rescission, many F-1 and M-1 students, who are otherwise

26 lawfully present in the United States if not for the COVID-19 pandemic’s effect on their ability to

27 attend classes in-person, will either be forced to abruptly leave their lives in the United States, or

28 transfer to another higher education institution that has more in-person learning options. If the
2
Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 4 of 23

1 students leave the United States, they would be required to pay for expensive travel arrangements

2 amidst the pandemic—made more difficult given the limited international travel options currently

3 available—and take the public health risk of spreading or contracting the coronavirus by traveling

4 to their home country.

5

8. ICE did not undergo the required procedures of notice and comment rulemaking

6 prior to implementing this change. Rather, Defendants waited until just a few weeks before the

7 start of the fall semester to announce the rescission of these exemptions, with impending

8 deadlines on higher education institutions occurring as soon as July 15. This sudden change and

9 ICE's inexplicable delay have created unnecessary chaos both among higher education

10 institutions and their students whose plans for the start of the fall school year have been thrown

11 into upheaval. For these reasons, and those discussed below, the State seeks immediate relief to

12 stop Defendants from implementing this unlawful scheme.

13

JURISDICTION AND VENUE

14

9. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because this case arises

15 under the laws of the United States. The Court also has jurisdiction under 28 U.S.C. § 1346

16 because this is a civil action against the federal government founded upon acts of Congress.

17 Jurisdiction is proper under the judicial review provisions of the APA, 5 U.S.C. §§ 701-706. An

18 actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this

19 Court may grant declaratory, injunctive, and other relief, pursuant to the Declaratory Judgment

20 Act, 28 U.S.C. §§ 2201-2202 (Declaratory Judgment Act) and the APA.

21

10. Under 28 U.S.C. § 1391(e)(1), venue is proper in the Northern District of

22 California because Plaintiff State of California and its Attorney General have offices at 455

23 Golden Gate Avenue, San Francisco, California, and at 1515 Clay Street, Oakland, California,

24 and Defendant has an office at 630 Sansome Street, San Francisco, California 94111.

25

INTRADISTRICT ASSIGNMENT

26

11. Assignment to the San Francisco Division of this District is proper pursuant to

27 Civil Local Rule 3-2(c)-(d) because Plaintiff and Defendant both maintain offices in the District

28 in San Francisco.

3 Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 5 of 23

1

PARTIES

2

12. The State of California, represented by and through its Attorney General, is a

3 sovereign State of the United States of America

4

13. Attorney General Xavier Becerra is the chief law officer of the State. The

5 Attorney General is responsible for protecting California’s sovereign interests, including the

6 sovereign interest in enforcing California laws. Cal. Const. art. V, § 13.

7

14. California is aggrieved by the actions of Defendants and has standing to bring this

8 action because of the injury to its state sovereign and proprietary interests caused by Defendants’

9 rescission of the COVID-19 exemptions for F-1 and M-1 nonimmigrant students. This injury will

10 be immediate and irreparable.

11

15. California’s interest in its educational institutions is established by the Equity in

12 Higher Education Act, which affords all persons equal rights and opportunities in postsecondary

13 educational institutions, including the California Community Colleges and the California State

14 University (CSU). Cal. Educ. Code §§ 66251, 68130.5.

15

16. The California Community Colleges system represents the largest postsecondary

16 system in the United States, with more than 2.1 million students attending one of 114 college

17 campuses annually, and 1.5 million students who enrolled in the Spring 2020 semester. The

18 community colleges are the most common entry point into collegiate degree programs in

19 California, the primary system for delivering career technical education and workforce training, a

20 major provider of adult education, apprenticeship, and English as a Second Language courses,

21 and a source of lifelong learning opportunities for California’s diverse communities. The

22 community colleges host an estimated 21,754 F-1 and M-1 students throughout 70 districts.

23

17. The CSU is the nation’s largest four-year public university system with 23

24 campuses statewide and an enrollment of approximately 482,000 students per year. Students at

25 the CSU make up the most ethnically, economically and academically diverse student body in the

26 nation. In the fall of 2019, international or U.S. territory students made up three percent, or

27 16,122 students, of the CSU student population. Across the state, the CSU had anticipated that

28 approximately 10,300 F-1 students would return to its 23 campuses for the fall 2020 semester and
4

Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 6 of 23

1 3,000 to 4,000 additional F-1 students would join the campus.

2

18. The rescission of the COVID-19 related exemptions for F-1 and M-1 students will

3 harm California’s interest in, and expenditures on, its educational priorities and higher

4 educational institutions. By rescinding the in-person learning exemptions for international

5 students, thereby jeopardizing their status in the United States and forcing them to depart, the

6 California higher education institutions’ missions will be frustrated, as F-1 and M-1 students

7 contribute to those institutions’ diversity, their research missions, and their foreign language

8 speaking capacity. California higher education institutions have made significant investments to

9 support these students, which will be lost because of the rescission of the exemptions. In addition

10 to obstructing the institutions’ academic missions, among other things, the likely loss of

11 enrollment due to the rescission will harm them fiscally.

12

19. If California higher educational institutions are forced to convert more classes to

13 in-person learning in light of the rescission, there will be risks to public health that impact not just

14 those campus communities, but the State of California at large. California has a strong interest in

15 protecting the health, safety, and well-being of all its residents, regardless of immigration status,

16 which includes protecting its residents from harms to their physical and economic health. See

17 e.g., Cal. Civ. Code § 3339(a); Cal. Gov. Code § 7285(a); Cal. Health & Safety Code § 24000(a);

18 Cal. Labor Code § 1171.5(a).

19

20. In sum, Defendants’ rescission of COVID-19 related exemptions for F-1 and M-1

20 students harms the State of California directly and indirectly through its effects on California

21 residents and California higher education institutions.

22

Defendants

23

21. Defendant Department of Homeland Security (DHS) is a federal agency within the

24 meaning of 28 U.S.C. § 2671, and engages in agency action within the meaning of 5 U.S.C.

25 § 702.

26

22. Defendant ICE is a division of DHS, is a federal agency within the meaning of 28

27 U.S.C. § 2671, and engages in agency action within the meaning of 5 U.S.C. § 702. ICE is

28 responding for rescinding the COVID-19 exemptions for F-1 and M-1 nonimmigrant students.
5
Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 7 of 23

1

23. Defendant Chad F. Wolf, Acting Secretary of DHS, oversees DHS and is

2 responsible for the actions and decisions that are being challenged by Plaintiff in this action.

3 Acting Secretary Wolf is sued in his official capacity pursuant to 5 U.S.C. § 702.

4

24. Defendant Matthew Albence, Acting Director of ICE, oversees ICE and is

5 responsible for the actions and decisions that are being challenged by Plaintiff in this action.

6 Acting Director Albence is sued in his official capacity pursuant to 5 U.S.C. § 702.

7 8 I. 9

FACTUAL ALLEGATIONS THE COVID-19 PANDEMIC IS AN ONGOING NATIONAL EMERGENCY
25. COVID-19 is a public health emergency that has caused devastating impacts on all

10 aspects of everyday life. Every facet of daily American life has been disrupted. California

11 Governor Gavin Newsom declared a State of Emergency for the State of California in response to

12 COVID-19 on March 4, 2020. On March 13, 2020, President Donald J. Trump issued a

13 Proclamation declaring the COVID-19 pandemic a national emergency.

14

26. SARS-CoV-2, which causes COVID-19, is highly transmissible. As of July 9,

15 2020, over 3 million individuals have become infected in the United States, and over 132,000

16 have died.1 In California alone, as of July 8, 2020, over 289,000 people have become infected,

17 and 6,500 have died. The United States has yet to bring the virus under control—to the contrary,

18 cases have been surging nationwide at an alarming rate. There is no indication that the spread of

19 COVID-19 will stop in the foreseeable future. Therapeutics are still under development, and a

20 proven vaccine has yet to emerge. The University of Washington’s Institute for Health Metrics

21 and Evaluation recently projected that between 157,216 to 244,540 people in the United States

22 could die by November 1, 2020.2

23

24

25

1 Coronavirus Disease 2019 (COVID-19), Centers for Disease Control and Prevention,

https://tinyurl.com/CDCcovidcases (last visited July 9, 2020).

26

2 Institute for Health Metrics and Evaluation at the University of Washington, COVID-19

27 Projections, https://tinyurl.com/IHMEprojections (last updated July 7, 2020).

28
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1

27. Even among those who do not die, COVID-19 can have serious, lasting health

2 effects. While the disease is too new for scientists to definitively know its long-term effects,

3 there have been reports of COVID-19 patients experiencing prolonged recovery periods.3

4 Patients have suffered from lung scarring, worsening kidney and liver function, blood clots, and

5 heart and cognitive problems. Id.

6

28. While the severity of the disease can vary, every person is at risk of contracting

7 and spreading it. Asymptomatic or pre-symptomatic carriers, who may have no awareness that

8 they have COVID-19, can spread the disease.4

9

29. Evidence indicates that COVID-19 is an airborne disease that is especially

10 communicable in crowded, indoor spaces, without sufficient ventilation.5

11

30. With no vaccine or therapy available, the most effective health measure is to

12 prevent people, and particularly those at risk for complications from the disease, from contracting

13 COVID-19 at the outset. This requires physical or social distancing, i.e., limiting face-to-face

14 interactions where the disease can be spread, particularly in indoor spaces.

15

31. Recognizing the need to slow the spread of COVID-19 through physical

16 distancing, broad sections of society and industry have shut down. On March 16, 2020, the White

17 House and the CDC issued guidance calling for extensive physical distancing measures including:

18 working from home, avoiding social gatherings, avoiding eating or drinking in restaurants or bars,

19 avoiding discretionary travel, and avoiding nursing homes or long-term care facilities.6 The

20 CDC’s website currently advises that people should only visit essential businesses when

21

22

3 Associated Press, What are the potential long-term effects of having COVID-19? (June 16, 2020), https://tinyurl.com/longtermeffectsCOVID.

23

4 Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus

24

Disease (COVID-19), U.S. Centers for Disease Control and Prevention, https://tinyurl.com/CDCasymptomatic.

25

5 Apoorva Mandavilli, 239 Experts With One Big Claim: The Coronavirus Is Airborne,

NY Times (July 4, 2020), https://tinyurl.com/MandavilliNYT.

26

6 The President’s Coronavirus Guidelines for America, The White House (March 16, 27 2020), https://tinyurl.com/WhitehouseMarch16.

28
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1 “absolutely necessary,” and during those visits, should stay at least six feet from other people not

2 living with them in the same household.7

3

32. Consistent with the CDC’s guidance and in recognition of the need to act urgently

4 to protect public health, California quickly implemented physical distancing measures throughout

5 the State. On March 19, 2020 Governor Newsom and the State Public Health Officer Sonia Y.

6 Angell, MD, MPH, issued a statewide stay-at-home order severely restricting in-person

7 operations of non-essential businesses, schools, and other entities.

8

33. As the pandemic has progressed, California continues to take a science-based

9 approach that is centered on public health. California has permitted counties that meet public

10 health thresholds to reopen certain public spaces and parts of the economy under strict guidelines.

11 However, as the COVID-19 crisis remains fluid, state and local authorities have retained the

12 ability to revert to stricter shelter in place measures if necessary. Indeed, California’s stay-at-

13 home order remains in place, and residents must stay home except when engaging in permitted

14 activities.

15

34. Despite California’s extensive efforts to combat the disease, it continues spreading

16 in the State, with nearly 11,694 new cases and 114 new fatalities announced on July 8, 2020

17 alone.

18

35. Both the President’s National Emergency Proclamation and the Governor’s State

19 of Emergency Order Declaration are still in effect.

20 II. THE COVID-19 PANDEMIC HAS CAUSED A DRAMATIC SHIFT IN LEARNING AT

21

HIGHER EDUCATION INSTITUTIONS THROUGHOUT CALIFORNIA

36. Our country’s educational institutions have had to respond urgently to the crisis

22

and take drastic measures to protect the health and safety of their students and staff. Colleges and

23

universities throughout the country, including in California, have minimized operations at their

24

campuses. More than 4,000 institutions of higher education nationwide, and over 25 million

25

students, have, as of this date, been impacted by COVID-19.8

26

27

7 Social Distancing, Centers for Disease Control and Prevention, https://tinyurl.com/SocialDistancingCDC (last visited July 9, 2020).

28

8 Covid-19: Higher Education Resource Center, Entangled Solutions, https://tinyurl.com/HigherEdresourcecenter (last visited July 9, 2020).

8

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1

37. In March 2020, like other educational institutions, all of the California community

2 colleges transitioned to online delivery or implemented social distancing guidelines for services

3 that cannot be provided online. Given the uncertainty surrounding the pandemic and the

4 continued risk of the virus’ spread, the community colleges continued remote learning through

5 their summer 2020 semester. As the pandemic continues to be an acute threat to public health—

6 and in fact is increasingly worsening, California’s community colleges opted to continue to

7 operate virtually all-online classes for the fall 2020 semester.

8

38. Likewise, on March 17, 2020, all CSU campuses moved nearly all courses to

9 online learning platforms, including instructional labs or small group work if possible. Only one

10 CSU campus—CSU Maritime Academy—permitted a limited number of students to return onto

11 campus in June to finish parts of their courses from the spring semester in-person, only after

12 COVID-19 testing, due to the professional licensing requirements and the impossibility of

13 completing that specialized program’s courses online. Classes for the summer 2020 term remain

14 primarily online. For the fall 2020 semester, the 23 CSU campuses will operate a hybrid program

15 of both in-person and online classes; however, given the continued public health threat of

16 COVID-19, most campuses will only be offering an average of ten percent of its classes in-

17 person. The majority of CSU courses will continue to be offered online.

18 III. AT THE START OF THE COVID-19 PANDEMIC, ICE EXEMPTED F-1 AND OR M-1

19

STUDENTS FROM SATISFYING IN-PERSON LEARNING REQUIREMENTS

39. Section 101(a)(15)(f) of the Immigration and Nationality Act (INA), 8 U.S.C.

20

§ 1101(a)(15)(f), provides that a student is eligible for an F-1 nonimmigrant student visa if the

21

student has a “residence in a foreign country which he has no intention of abandoning, [] is a bona

22

fide student qualified to pursue a full course of study and [] seeks to enter the United States

23

temporarily and solely for the purpose of pursuing such a course of study” at an “established,”

24

approved, educational institution.

25

40. Similar to the F-1 visa, a student can receive an M-1 vocational nonimmigrant visa

26

if the student has “residence in a foreign country which he has no intention of abandoning [and]

27

seeks to enter the United States temporarily and solely for the purpose of pursuing a full course of

28

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1 study at an established vocational or other recognized nonacademic institution.” 8 U.S.C.

2 § 1101(a)(15)(m).

3

41. Under the INA’s implementing regulations a “full course of study” for

4 undergraduate F-1 students is twelve credit hours per academic term. In regulations issued before

5 COVID-19, Defendants interpreted a “full course of study” as encompassing no more than one,

6 three credit hour, online course per semester, trimester, or quarter, for F-1 students. 8 C.F.R.

7 § 214.2(f)(6). Additionally, under 8 C.F.R. § 214.2(m)(9)(v), students were not permitted to use

8 any online or distance education course credits toward their M-1 Visa status.

9

42. The Student Exchange and Visitor Program (SEVP), a component of ICE,

10 oversees compliance with F-1 and M-1 requirements in the United States.9 Schools must have a

11 “designated school official” (DSO) or a “principal designated school official” (PDSO) who is the

12 point of contact for any issue relating to the institutions’ compliance with SEVP regulations.

13 DSOs must report certain information through the Student and Exchange Visitor Information

14 System (SEVIS) periodically. Such reporting includes, but is not limited to, confirmation that a

15 student initially arrived in the United States, confirmation that the student is active each semester,

16 transfer information, changes in students’ status, and general information regarding students’

17 employment, academic programs, and dependents.10 Additionally, once an international student

18 is accepted into SEVP, DSOs issue a Form I-20, Certificate of Eligibility for Nonimmigrant

19 Student Status.

20

43. Recognizing that COVID-19 presented unprecedented challenges to educational

21 institutions, because in-person learning can be dangerous for students, staff, and the community at

22 large, in March 2020, ICE, through SEVP, exempted students from the regulatory in-person

23 learning requirements for the duration of the pandemic.

24

25

9 Study in the States, FORM I-17 - INITIAL CERTIFICATION, Department of Homeland Security, https://tinyurl.com/FormI-17.

26 10 SEVIS Reporting Requirements for Designated School Officials, Immigration and

27 Customs Enforcement, https://tinyurl.com/SEVISdosrequirements.

28
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1

44. On March 9, 2020, ICE, through SEVP, issued a Broadcast Message (March 9

2 Broadcast), an instructive document intended for SEVIS users, in recognition of the fact that

3 “schools may need to adapt their procedures and policies to address the significant public health

4 concerns associated with the COVID-19 crisis.”11 The March 9 Broadcast provided SEVIS

5 reporting instructions to institutions and students for during the pandemic. SEVP understood that

6 institutions may need “to comply with state or local health emergency declarations,” and

7 therefore, eliminated the requirement that institutions provide SEVP with prior notice of

8 procedural adaptations. Id. Per that message, ICE stated that it “intends to be flexible with

9 temporary adaptations” due to COVID-19. Id.

10

45. On March 13, 2020, ICE published “COVID-19: Guidance for SEVP

11 Stakeholders”12 (March 13 Guidance) as a follow-up to the March 9 Broadcast, in response to

12 inquiries concerning the “proper status” of international students who may “face slightly different

13 scenarios related to emergency procedures implemented by SEVP-certified learning institutions.”

14 Id. Recognizing that COVID-19 presented unprecedented circumstances, in which in-person

15 learning can increase the spread of a highly dangerous virus, ICE’s March 13 Guidance exempted

16 students from the in-person learning requirements under the INA implementing regulations for

17 the duration of the pandemic.

18

46. The March 13 Guidance specifically addresses the status of students whose

19 “school temporarily stops in-person classes but implements online or other alternate learning

20 procedures and the nonimmigrant student remains in the United States.” Id. ICE directed that

21 students in this situation should “participate in online other alternate learning procedures and

22 remain in active status in SEVIS.” Id. ICE specifically declared that due to the “extraordinary

23 nature of the COVID-19 emergency, SEVP will allow F-1 and/or M-1 students to temporarily

24 count online classes towards a full course of study in excess of the limits of 8 C.F.R. § 214.2(f)(6)

25 11 Broadcast Message: Coronavirus Disease 2019 (COVID-19) and Potential Procedural
26 Adaptations for F and M nonimmigrant students, Immigration and Customs Enforcement (March 9, 2020), https://tinyurl.com/March9Broadcast.
27 12 COVID-19: Guidance for SEVP Stakeholders, Immigration and Customs Enforcement
28 (March 13, 2020), https://tinyurl.com/March13Guidance.
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1 and 8 C.F.R. § 214.2(m)(9)(v).” Id. Thus, through the March 13 Guidance, ICE provided an

2 assurance that it would not penalize students for COVID-19’s effect on in-person learning or

3 punish institutions for complying with public health directives. Id.

4

47. The March 13 Guidance states that the exemption is “only in effect during the

5 duration of the emergency.” Id. The Guidance notes that it may be “subject to change,” but

6 indicates that any such changes would be reflective of the COVID-19 emergency, stating that

7 “SEVP will continue to monitor the COVID-19 situation and [] adjust its guidance as needed.”

8 Id.

9 IV. ICE CHANGED ITS POLICY TERMINATING THE EXEMPTIONS WITHOUT

10

CONSIDERING CRITICAL INFORMATION

48. Although the COVID-19 pandemic has worsened, on July 6, 2020, ICE changed

11

its policy through a Broadcast Message to SEVP stakeholders (July 6 Directive). ICE declared

12

that the earlier exemptions provided for F-1 and M-1 students “during the height of the [COVID-

13

19] crisis will be modified for the fall 2020 semester.”13 According to the July 6 Directive, those

14

“[s]tudents attending schools operating entirely online may not take a full online course load and

15

remain in the United States.” Id. (emphasis in original).

16

49. If an F-1 or M-1 student attends a school that has shifted to an entirely online

17

program due to COVID-19, or cannot attended in-person courses due to their limited availability,

18

the student has three options under the July 6 Directive. The student must either: (a) transfer to a

19

school with in-person learning to keep his or her lawful status; (b) leave the United States; or (c)

20

“face immigration consequences including, but not limited to, the initiation of removal

21

proceedings.” Id. The U.S. Department of State will not issue visas to students enrolled in a

22

program that is fully online, and the U.S. Customs and Border Protection will not allow students

23

to enter the United States if they are enrolled in a school that is fully online. Id.

24

50. While F-1 students attending a higher education institution adopting a hybrid

25

model with a mixture of online and in-person classes may be permitted to take more than one

26

class or three credit hours online and still retain their status, that exemption does not apply to F-1

27

13 Mem. to All SEVIS Users re: COVID-19 and Fall 2020, Immigration and Customs 28 Enforcement (July 6, 2020), https://tinyurl.com/ICEcovidguidance.

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1 students in English language training programs or to any M-1 students. Id. Moreover, as

2 discussed supra, because California higher education institutions have decided for public health

3 purposes to offer only a small percentage of their classes in-person, some F-1 students may not be

4 in a position to take any in-person class due to capacity restrictions.

5

51. The July 6 Directive is clear that there is no safe harbor for institutions operating

6 in the “hybrid” model that decides to switch to online-only classes in the middle of the semester

7 should the public health crisis demand it. In that instance, the students are “not permitted to take

8 a full course of study through online classes,” and students “must leave the country or take

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

10 instruction.” Id.

11

52. In announcing the July 6 Directive, ICE did not show that it accounted for the

12 significant harms that the policy will have on higher education institutions and their students.

13 ICE did not consider, for instance, the higher education institutions’ and students’ reasonable

14 reliance on the representations made by ICE in the March 13 Guidance that the in-person learning

15 exemptions would be “in effect for the duration of the emergency.” Nor does the Directive

16 consider the undue pressure that the new policy will have on higher education institutions to

17 choose between sustaining the education of tens of thousands of international students, who are

18 invaluable members of their institutions’ academic and research communities, or risking the

19 health and safety of students, faculty, and staff by holding classes in-person contrary to the advice

20 of health experts.

21

53. The July 6 Directive also reflects no consideration of the continued, and indeed,

22 escalating health crisis, that presently plagues the entire country. ICE’s reasoning to rescind the

23 exemptions— that those exemptions were granted at the “height” of the pandemic—indicates ICE

24 has determined that the pandemic is dissipating. That reasoning does not comport with reality.

25 As referenced above, the rate of positive cases has spiked exponentially over the past several

26 weeks both across the country and in California. Between March 13, when the exemptions were

27 granted, and June 26, there was no day in which there were 40,000 or more new confirmed

28
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1 COVID-19 cases in the United States.14 Since June 27, there has not been one day in which there

2 were less than 40,000 new confirmed COVID-19 cases. Id. There were 57,186 confirmed cases

3 on July 6—the day that ICE rescinded the exemptions for F-1 and M-1 students. Id. These

4 spikes correlate with the reopening of businesses and public spaces. Excessive in-person learning

5 at higher education institutions will only exacerbate this trend. The chart below illustrates the

6 steep incline in cases. Id.

7

8

9

10

11

12

54. On June 30, when the daily numbers were lower than they are today, the Director 13

of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci said the trends 14

were “disturbing” and that the United States was “not in total control” of the virus.15 Dr. Fauci 15

anticipated that under current trends, the United States could see over 100,000 new confirmed 16

COVID-19 cases per day. On July 9, 2020, Dr. Fauci emphasized that states that are 17

experiencing surges in new confirmed COVID-19 cases should “pause” any plans for 18

reopening.16 19

55. Even though California has been cautious in its approach to reopening, it has 20

suffered a recent spike in cases along with the rest of the country. Since June 21, there have been 21

at least 4,000 new confirmed COVID-19 cases in California each day, with the highest level 22

14 World Health Organization, United States of America Situation, 2,973,695 confirmed 23 cases, available at https://tinyurl.com/WHOcovidupdate (last checked July 9, 2020 at 7:11 a.m.

PT). 24

25

15 Noah Higgins-Dunn and Will Feuer, Dr. Anthony Fauci says U.S. coronavirus outbreak is ‘going to be very disturbing,’ could top 100,000 new cases a day, CNBC (June 30, 2020),

https://tinyurl.com/DunnCNBC.

26

27

16 Gisela Crespo, Madeline Holcombe, Jason Hanna, Coronavirus hot spots should pause reopening, not shut down again, Fauci now says, CNN (July 9, 2020),

https://tinyurl.com/yc6nzwcp.

28

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1 being 11,694 cases on July 7. Id. There has also been an increase in deaths in California

2 attributed to COVID-19, which tends to follow an increase in positive cases. Id. On July 7, there

3 were 111 deaths attributed to COVID-19 in California, the second most deaths reported in any

4 single day since the start of the pandemic. Id. These figures will likely continue to increase if

5 California were to conduct more in-person learning as sought by the July 6 Directive.

6

56. The July 6 Directive states that DHS will be publishing a Temporary Final Rule

7 “in the near future.” Id. DHS or ICE failed to seek notice and comment prior to making a

8 decision on, or implementing, this policy, and have expressed no intention to undertake notice

9 and comment prior to the issuance of the Temporary Final Rule which is anticipated to only

10 reiterate the new policy that has already been established in the July 6 Directive.

11

57. The practical effects of this new policy are immediate. Higher education

12 institutions that plan to operate entirely online are required to inform ICE of their plans by July

13 15, while all other institutions must inform ICE of their plans to operate solely in-person classes,

14 delayed or abbreviated sessions, or hybrid plans by August 1.

15

58. By August 4, higher education institutions are required to update and reissue new

16 Forms I-20 to each F-1 or M-1 student enrolled in the institutions during the fall 2020 semester.

17 Id. If a F-1 student takes in-person classes, in order to retain his or her status, under the new

18 policy, the higher education institution must certify on the Form I-20 that: (a) the school’s

19 program is not entirely online; (b) the student is not taking an entirely online course load for the

20 semester; and (c) the student is taking the minimum number of online classes required to make

21 normal progress in the degree program. Id. Because of these impending deadlines, California

22 higher education institutions, need immediate relief from the July 6 Directive.

23 V. ICE’S RESCISSION HARMS CALIFORNIA HIGHER EDUCATION INSTITUTIONS

24

59. ICE’s arbitrary and cruel actions seeking to compel the removal of tens of

25 thousands of students who have lawful status in the United States inflict irreparable harm on

26 California higher education institutions and their students by damaging their students’ access to

27 education (and their well-being). ICE’s rescission of the in-person learning exemptions for F-1

28 and M-1 students means that these students may be forced to withdraw from California higher
15
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1 education institutions, which undermines their academic missions and the character and diversity

2 of their student body, and also threatens the State’s overall budget and revenues.

3

60. ICE’s sudden rescission has placed a significant administrative burden on

4 California higher education institutions. Because ICE’s rescission would force the removal of

5 tens of thousands of students enrolled in California higher education institutions, institutions’

6 staff have been working around the clock to determine how to provide their F-1 and M-1 students

7 with in-person class offerings that would allow them to stay enrolled and in lawful status while

8 they continue their education. In doing so, institutions must also ensure that their students are

9 safe, and take care to minimize the unfortunately likely result of ICE’s mandate: the increased

10 spread of COVID-19.

11

61. Since May 2020, CSU administrators have spent countless hours researching,

12 meeting, and planning campus specific education plans that account for the health and safety of

13 their students, staff, and faculty. The decision to move forward with a primarily virtual

14 instruction plan/program at all 23 campuses for the fall 2020 semester was informed by these

15 health and safety considerations and was made in reliance on ICE’s March 13 Guidance.

16 Likewise, the March 13 Guidance was part of community college districts’ considerations in

17 making the decision to operate entirely online so that their F-1 and M-1 nonimmigrant students

18 could continue their education and stay within lawful status while the pandemic conditions

19 continued. ICE’s rescission has required institutions to immediately reevaluate their fall class

20 schedules, which had previously been created in reliance on ICE’s March 13 Guidance.

21

62. Institutions which plan to administer classes in a manner other than through

22 exclusively online courses will be required to issue new Forms I-20 to their entire F-1 and M-1

23 student body by August 4, 2020. Usually, the Form I-20 is issued by an institution to an

24 incoming international student only once, with certain exceptions, and the student is required to

25 keep this form for the duration of their education in the country. Higher education institutions

26 will have to divert financial resources—already limited by the COVID-19 economic crisis—and

27 staff to quickly coordinate the re-issuance of the Form I-20 to their thousands of F-1 or M-1

28 nonimmigrant students.

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1

63. The inevitable dis-enrollment from California higher education institutions that

2 will occur as a result of the July 6 Directive has both short and long-term deleterious effects. The

3 immediate impact of dis-enrollment will be felt in allocations of funds to higher education

4 institutions for categorical programs, which total hundreds of millions of dollars, and are

5 apportioned based solely upon fulltime equivalent attendance (FTE). General apportionment

6 funding is based upon a recently-enacted funding formula that includes FTE, and other metrics of

7 success. Dis-enrollments will adversely impact institutions’ revenues under this formula by

8 decreasing three-year average attendance figures, and lowering college success metrics—which

9 are weighted toward vulnerable student populations.

10

64. The impact of the July 6 Directive is more than financial. International students

11 enrich the educational experiences of all students and faculty by contributing their diverse life

12 experiences and perspectives. Forcing these students to drop out of school affects the diversity of

13 the student population, the robustness and quality of classroom participation, and the overall

14 academic climate.

15

65. Because higher education institutions’ budgets are determined, in large part, by the

16 number of students enrolled, decreases in enrollment also have a significant effect on the types of

17 academic courses they are able to provide, the staff they are able to hire, and the educational

18 programs and services they are able to offer. The July 6 Directive also fails to take this impact

19 into consideration, and fails to consider the lack of practical alternatives available to students and

20 the immense harm that befalls them. Based on the plans community colleges have submitted,

21 nearly all California community colleges will be mostly or entirely online.

22

66. For F-1 students, who are permitted to take no more than one online course in

23 order to meet their course load visa requirements, and M-1 students, who cannot count any online

24 learning towards their course load visa requirements, finding an institution offering sufficient in-

25 person classes in California—where the threat of COVID-19 remains prevalent—would be nearly

26 impossible. Students will likely be unable to meet the in-person course requirements to maintain

27 lawful visa status and would be forced to leave the country. This results in significant financial

28 and personal costs to these students. Students will have to uproot themselves from their lives in
17
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1 the United States, breach leases and other commitments they may have made in reliance on the

2 March 13, 2020 Guidance, pay for expensive travel arrangements amidst the pandemic—made

3 more difficult given the limited international travel options currently available—and take the

4 public health risk of spreading or contracting the coronavirus by traveling to their home country.

5 Significantly, if their departure is not timely, regardless of the practical limitations at this time,

6 these students risk being detained by immigration authorities and being subject to forced removal

7 from the country, which in turn, may bar their return to the United States for ten years. 8 U.S.C.

8 § 1182(a)(9).

9

67. For students who do return to their home country, they face logistical barriers to

10 continuing their education in the United States, including attending classes in a different time

11 zone, and securing access to laptops and reliable internet connection. An even more significant

12 barrier may be limitations on access to the internet or information presented in certain courses in

13 their home countries for students coming from nations with less freedom than ours. Therefore,

14 for many, accessing education at California’s higher education institutions may prove impossible

15 for those forced to return to their home country by ICE’s new policy.

16

68. Additionally, F-1 students would be denied the opportunity to participate in a pre-

17 completion internship or other experiential learning opportunities, as well as work allowances in

18 summer and fall 2021, as these students are required to maintain their F-1 status for a full

19 academic year before being able to access practical training. See 8 C.F.R. § 214.2(f)(10).

20

69. The sudden uncertainty surrounding students’ lawful status in the country results

21 in increased levels of stress and anxiety for students. These harms are exacerbated by the

22 swiftness of ICE’s rescission—coming only weeks before classes are scheduled to resume in mid-

23 August. Students’ educational and career plans will be irreparably interrupted.

24

70. Prior to the July 6 Directive, California higher education institutions made

25 informed decisions regarding their fall class schedules, including which classes to offer

26 exclusively online in order to protect the health of students, faculty, staff, and the surrounding

27 community, and which they could safely offer in-person. These decisions struck a balance

28 between the present threat of the spread of coronavirus through in-person learning, the benefit of
18
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1 in-person learning for students to connect with their peers and professors, and ICE’s March 13

2 assurance that F-1 and M-1 students would be exempted from in-person class requirements for

3 the “duration of the emergency.”

4

71. Now, because of the July 6 Directive, California higher education institutions are

5 left with the prospect of tens of thousands of their F-1 and M-1 students being forced to return to

6 their home countries. California higher education institutions are faced with an impossible

7 choice: create in-person classes that would heighten the risk of exposure to COVID-19 for their

8 students, staff, and community in order to keep their student bodies intact, or lose an integral part

9 of their student bodies altogether.

10

FIRST CLAIM FOR RELIEF

11

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

12

(Arbitrary and Capricious)

13

72. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

14

73. Defendant ICE is an “agency” under the APA, 5 U.S.C. § 551(1), and the

15 exemption rescission is an “agency action” under the APA, id. § 551(13).

16

74. The rescission of the in-person learning exemption for F-1 and M-1 students in the

17 July 6 Directive is an “[a]gency action made reviewable by statute and final agency action for

18 which there is no other adequate remedy in a court.” Id. § 704.

19

75. The APA requires that a court “hold unlawful and set aside agency action,

20 findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

21 otherwise not in accordance with law.” Id. § 706(2)(A).

22

76. Defendants’ rescission of the in-person learning exemption for F-1 and M-1

23 students is arbitrary and capricious and an abuse of discretion, as Defendants have failed to

24 “cogently explain why it has exercised its discretion in a given manner.” See Motor Vehicle Mfrs.

25 Ass’n of the U.S. v. State Farm. Mut. Auto Ins. Co., 463 U.S. 29, 48 (1983). Defendants have

26 engaged in “[u]nexplained inconsistency” in first stating that the exemption will remain for the

27 “duration of the emergency,” and then rescinding the exemption as conditions have worsened.

28 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
19
Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 21 of 23

1 Defendants’ action is also arbitrary and capricious because, for among other reasons, Defendants

2 have: (a) relied on factors that Congress did not intend for them to when Congress created the F-1

3 and M-1 nonimmigrant visa statuses for students, by effectively excluding all or most

4 international students from attending higher education institutions in the United States during the

5 pandemic; (b) failed to consider the harm to higher education institutions and students in

6 conducting in-person learning during an escalating pandemic and the reliance interests of higher

7 education institutions and students that the in-person learning exemptions would exist throughout

8 the duration of the emergency; and (c) failed to provide an explanation that is consistent with the

9 evidence that is before the agency where COVID-19 cases are increasing throughout the United

10 States. See State Farm, 463 U.S. at 43.

11

77. For the reasons discussed herein, Defendants’ rescission of the in-person learning

12 exemption for F-1 and M-1 students is unlawful and should be set aside under 5 U.S.C. § 706 for

13 being arbitrary and capricious and an abuse of discretion.

14

SECOND CLAIM FOR RELIEF

15

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

16

(Without Observance of Procedure Required by Law)

17

78. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

18

79. Defendants DHS and ICE are “agenc[ies]” under the APA, 5 U.S.C. § 551(1), and

19 the exemption rescission is an “agency action” under the APA, id. § 551(13).

20

80. The rescission of the in-person learning exemption for F-1 and M-1 students in the

21 July 6 Directive is an “[a]gency action made reviewable by statute and final agency action for

22 which there is no other adequate remedy in a court.” Id. § 704.

23

81. The APA requires that a court “hold unlawful and set aside agency action,

24 findings, and conclusions found to be . . . without observance of procedure required by law.” Id.

25 § 706(2)(D).

26

82. Agencies must complete the process of notice and comment rulemaking prior to

27 implementing a rule, subject to enumerated exceptions. Id. § 553(b).

28

83. Defendants’ attempt to rescind its prior exemptions through the July 6 Directive,

20

Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 22 of 23

1 and eventually through temporary final rule, without first going through notice and comment

2 rulemaking is in violation of the APA. No exception is applicable here, nor has one been

3 provided. The rescission is not an “interpretative rule[], general statement[] of policy, or rule[] of

4 agency organization, procedure, or practice.” Id. § 553(b)(A). Moreover, “good cause” does not

5 exist to immediately alter the status of tens of thousands of students in the middle of a worsening

6 pandemic, thereby forcing those students to leave their chosen educational institution or the

7 United States. Id. § 553(b)(B).

8

PRAYER FOR RELIEF

9

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor,

10 and grant the following relief:

11

1. Issue a declaration that the rescission of the in-person learning exemption for F-1

12 and M-1 students is in violation of the APA;

13

2. Set aside the rescission of the in-person learning exemption for F-1 and M-1

14 students under 5 U.S.C. § 706;

15

3. Enjoin Defendants from rescinding the March 13 Guidance and imposing and

16 enforcing in-person learning requirements on F-1 and M-1 students for the duration of the

17 COVID-19 pandemic; and

18

4. Grant such other relief as the Court may deem just and proper.

19

20

21

22

23

24

25

26

27

28
21
Complaint for Declaratory and Injunctive Relief

Case 3:20-cv-04592 Document 1 Filed 07/09/20 Page 23 of 23

1 Dated: July 9, 2020 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, XAVIER BECERRA Attorney General of California MICHAEL L. NEWMAN Senior Assistant Attorney General DOMONIQUE C. ALCARAZ LEE I. SHERMAN JASLEEN SINGH /s/ Marissa Malouff MARISSA MALOUFF Deputy Attorneys General Attorneys for Plaintiff
22 Complaint for Declaratory and Injunctive Relief

 
 Case 4:20-cv-04592-JST Document 10 Filed 07/13/20 Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CROWELL & MORING LLP
ATTORNEYS AT LAW

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 Non-Party THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

THE STATE OF CALIFORNIA,
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. 4:20-cv-04592-JST
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
[Civ. L.R. 3-12(b); Filed Concurrently with Stipulation and [Proposed] Order]
Complaint filed: July 9, 2020

SFACTIVE-905707252.1

THE REGENTS’ MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED; CASE NO. 4:20-cv-04592-JST

Case 4:20-cv-04592-JST Document 10 Filed 07/13/20 Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CROWELL & MORING LLP
ATTORNEYS AT LAW

I. INTRODUCTION Pursuant to Civil Local Rules 3-12(b) and 7-11, Non-Party The Regents of the University
of California (“The Regents”) respectfully request that the Court consider whether the action The Regents of the University of California v. U.S. Department of Homeland Security et al., No. 3:20cv-04621-JSW (the “University of California Action”), should be related to the instant case, State of California v. U.S. Department of Homeland Security et al., 4:20-cv-04592-JST (the “State of California Action”). A Joint Stipulation and Proposed Order, as well as a copy of the complaint in the University of California Action, is being concurrently filed in support of this Motion. II. DISCUSSION
On July 6, 2020, Defendant United States Immigration and Customs Enforcement (“ICE”) announced that it was rescinding prior ICE policy with respect to COVID-19 related exemptions to 8 C.F.R. § 214.2(f)(6)(i)(G) and 8 C.F.R. § 214.2(m)(9)(v), which relate to in-person learning requirements for nonimmigrant students who are in this country pursuant to F-1 and M-1 visas, respectively (the “Directive”).1 As a result, if ICE’s new policy is implemented, the F-1 and M-1 visa students would no longer be permitted to take a full course of study through online classes in excess of the limits set forth in the above regulations, as previously permitted “for the duration of the [COVID-19] emergency”; 2 further, those students already in the country who take an entirely online course load for fall 2020 would be required to leave the United States or, if not presently here, would not be permitted to return to this country for their studies. Moreover, designated school officials must issue, by August 4, 2020, new Forms I-20 with respect to each F-1 and M-1 student attending schools in the United States this Fall 2020, certifying 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

1 See “Broadcast Message: COVID-19 and Fall 2020,” available at https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf (last visited July 12, 2020).
2 See “COVID-19: Guidance for SEVP [Student and Exchange Visitor Program] Stakeholders,” U.S. Immigration and Customs Enforcement, Student and Exchange Visitor Program, dated March 13, 2020, available at https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.1 3.20.pdf (last visited July 12, 2020).

SFACTIVE-905707252.1

THE REGENTS’ MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED; CASE NO. 4:20-cv-04592-JST

Case 4:20-cv-04592-JST Document 10 Filed 07/13/20 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CROWELL & MORING LLP
ATTORNEYS AT LAW

make normal progress in their degree program.

Both the State of California and The Regents, on behalf of California public universities,

are challenging the same July 6, 2020 Directive rescinding ICE’s prior policy on substantially

similar grounds against the same Defendants, in their respective actions. In this district, cases are

related when: “(1) [t]he actions concern substantially the same parties, property, transaction or

event; and (2) [i]t appears likely that there will be an unduly burdensome duplication of labor and

expense or conflicting results if the cases are conducted before different Judges.” Civil L.R. 3-

12(a). The University of California Action and the State of California Action are related under

this standard.

First, both actions are based on the same events and the same (or similar) legal theories

against all of the same defendants. On July 9, 2020, the State filed suit, on behalf of the California

Community Colleges and the California State University, alleging that the rescission of the in-

person learning exemption for F-1 and M-1 visa students in the July 6 Directive violates the

Administrative Procedure Act (“APA”), because (1) the rescission of the March 13 Guidance is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and (2) the

rescission of the March 13 Guidance is an agency action subject to notice and comment

rulemaking, which Defendants failed to undertake. On July 10, 2020, The Regents filed suit, as

the corporation authorized and empowered to administer the University of California and its ten

campuses, alleging that the rescission of the in-person learning exemption for F-1 visa students in

the July 6 Directive violates the APA on the same or similar grounds.

Both cases name as defendants U.S. Department of Homeland Security (“DHS”), ICE,

Acting Secretary of DHS Chad F. Wolf, and Acting Director of ICE Matthew Albence. Plaintiff

in the State of California Action challenges the same Directive by bringing suit against the same

Defendants. These cases therefore concern substantially the same parties and events.

Second, both actions request virtually identical relief. Both cases bring two causes of

action under the APA challenging the Directive on the basis that it is arbitrary and capricious

(Count I) and violates the APA’s requirement of notice and comment rulemaking for proposed

substantive rules (Count II). Both cases seek a declaration that the Directive was unlawful and an

SFACTIVE-905707252.1

THE REGENTS’ MOTION TO CONSIDER WHETHER

-2-

CASES SHOULD BE RELATED;

CASE NO. 4:20-cv-04592-JST

Case 4:20-cv-04592-JST Document 10 Filed 07/13/20 Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CROWELL & MORING LLP
ATTORNEYS AT LAW

injunction preventing Defendants from implementing or enforcing it. Therefore, there is substantial overlap in the claims raised and relief sought in these actions.
Given the same or similar parties, events, and legal issues involved, as well as the similar relief sought in these cases, requiring another Judge of this District to separately consider the issues presented in the University of California Action would create an “unduly burdensome duplication of labor and expense” and would also create the risk of “conflicting results.” See Civil L.R. 3-12(a). Moreover, counsel for the Defendants also agrees that the University of California Action should be related to the State of California Action, in order to promote judicial economy and to prevent unduly burdensome duplication of labor and expense for all parties involved. Accordingly, a Joint Stipulation by the parties in the University of California Action and a proposed Order accompanies this Motion, pursuant to Civil Local Rule 7-11. III. CONCLUSION
For the foregoing reasons, The Regents of the University of California respectfully request that this Court order that its case be related to the State of California Action.

Dated: July 13, 2020

Respectfully submitted,
CROWELL & MORING LLP
By: /s/ Jennifer S. Romano Jennifer S. Romano Attorneys for Non-Party THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

SFACTIVE-905707252.1

THE REGENTS’ MOTION TO CONSIDER WHETHER

-3-

CASES SHOULD BE RELATED;

CASE NO. 4:20-cv-04592-JST

Case 4:20-cv-04592-JST Document 10-1 Filed 07/13/20 Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CROWELL & MORING LLP
ATTORNEYS AT LAW

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 Non-Party THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

THE STATE OF CALIFORNIA,
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. 4:20-cv-04592-JST
STIPULATION AND [PROPOSED] ORDER GRANTING THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
[Civ. L.R. 3-12(b); Filed Concurrently with Administrative Motion to Relate Cases]
Complaint filed: July 9, 2020

SFACTIVE-905707313.1

STIPULATION AND [PROPOSED] ORDER CASE NO. 4:20-CV-04592-JST

Case 4:20-cv-04592-JST Document 10-1 Filed 07/13/20 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CROWELL & MORING LLP
ATTORNEYS AT LAW

On July 13, 2020, Non-Party The Regents of the University of California filed an Administrative Motion to Consider Whether Cases Should Be Related pursuant to Civil Local Rule 3-12(b). Plaintiff the State of California and Defendants U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Acting Secretary of the U.S. Department of Homeland Security Chad F. Wolf, and Acting Director of U.S. Immigration and Customs Enforcement Matthew Albence, hereby stipulate that the cases should be related.
IT IS SO STIPULATED.

On July 13 , 2020 On July 13 , 2020
On July 13, 2020

CROWELL & MORING LLP
/s/ Jennifer S. Romano JENNIFER S. ROMANO Attorneys for Non-Party The Regents of the University of California
DAVID L. ANDERSON United States Attorney for the Northern District of California
/s/ Sara Winslow SARA WINSLOW Chief, Civil Division Attorneys for Defendants U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad F. Wolf, and Matthew Albence
XAVIER BECERRA Attorney General of California
/s/ Lee I. Sheruman Lee I. Sherman Deputy Attorney General Attorney for Plaintiff State of California

SFACTIVE-905707313.1

STIPULATION AND [PROPOSED] ORDER CASE NO. 4:20-CV-04592-JST

Case 4:20-cv-04592-JST Document 10-1 Filed 07/13/20 Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CROWELL & MORING LLP
ATTORNEYS AT LAW

FILER’S ATTESTATION

Pursuant to Local Rule 5-1(h)(3), I attest under penalty of perjury that concurrence in the

filing of the document has been obtained from each of the other Signatories.

Respectfully submitted,

Dated: July 13, 2020

/s/ Jennifer S. Romano Jennifer S. Romano

[PROPOSED] ORDER Having considered the papers and pleadings on file, the Court GRANTS the Regents of the University of California’s Administrative Motion to Consider Whether Cases Should Be Related and ORDERS that the following cases be related: • State of California v. U.S. Department of Homeland Security, et al., Case No. 4:20-cv04592-JST and • The Regents of the University of California v. U.S. Department of Homeland Security, et al., Case No. 3:20-cv-04621

PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated:

, 2020

THE HONORABLE JON S. TIGAR UNITED STATES DISTRICT JUDGE

SFACTIVE-905707313.1

-2-

STIPULATION AND [PROPOSED] ORDER CASE NO. 4:20-CV-04592-JST

 
 Case 4:20-cv-04592-JST Document 12 Filed 07/13/20 Page 1 of 31

1 XAVIER BECERRA

2

Attorney General of California MICHAEL L. NEWMAN

3

Senior Assistant Attorney General DOMONIQUE C. ALCARAZ

4 JASLEEN SINGH

LEE I. SHERMAN 5 MARISSA MALOUFF (SBN #316046)

6

Deputy Attorneys General 300 S. Spring St., Suite 1702

7 Los Angeles, CA 90013 Telephone: (213) 269-6467

8 Fax: (213) 897-7605

E-mail: Marissa.Malouff@doj.ca.gov 9 Attorneys for State of California

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

OAKLAND DIVISION

14

15 THE STATE OF CALIFORNIA,

Case No. 4:20-cv-04592-JST

16

Plaintiff, PLAINTIFF’S NOTICE OF MOTION

17

v.

AND MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF

18

POINTS AND AUTHORITIES IN

19

U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND

SUPPORT THEREOF

Date:

August 19, 2020

20 CUSTOMS ENFORCEMENT; CHAD F. Time:

2:00 p.m.

WOLF, in his official capacity as Acting 21 Secretary of the United States Department

Dept: Judge:

Courtroom 6 – 2nd Floor Honorable Jon S. Tigar

22

of Homeland Security; and MATTHEW

Trial Date: None Set

ALBENCE, in his official capacity as Acting Action Filed: July 9, 2020

23

Director of U.S. Immigration and Customs Enforcement,

24 Defendants.

25

26

27

28

Pl’s Notice of Mot. and Mot. for Prelim. Inj.; MPA in Supp. Thereof (4:20-cv-04592-JST)

Case 4:20-cv-04592-JST Document 12 Filed 07/13/20 Page 2 of 31

1

TABLE OF CONTENTS

2

Page

3 Notice of Motion and Motion for Preliminary Injunction .............................................................. 1

4 Introduction ..................................................................................................................................... 1

5 Background ..................................................................................................................................... 3

I. The Pandemic Has Forced a Dramatic Shift Toward Online Learning .................. 3

6

II. California IHEs Acted in Reliance on the March 13 Guidance .............................. 5

7

III. Defendants Terminated the In-Person Learning Exemption During an

8

Escalating Public Health Crisis ............................................................................... 7

IV. The July 6 Directive’s Impact on California IHEs and Students ............................ 8

9

A. The July 6 Directive Harms California IHEs .............................................. 8

10

1. The July 6 Directive Disrupts Long Completed Fall 2020

11

Plans ................................................................................................ 9

2. The July 6 Directive Imposes Substantial Administrative

12

Burdens ......................................................................................... 10

13

3. The July 6 Directive Frustrates the Diversity and

Educational Missions of the California Higher Education

14

Institutions..................................................................................... 10

15

B. The July 6 Directive Harms International Students at Great Personal

and Financial Cost..................................................................................... 12

16

I. Plaintiff Is Likely to Succeed on Its APA Claims................................................. 14

17

A. The July 6 Directive is Arbitrary and Capricious ..................................... 14

18

1. Defendants Failed to Consider Important Aspects of the

Problem ......................................................................................... 15 19
2. Defendants’ Explanation for the Rescission Runs Counter to

20

the Evidence Before the Agency................................................... 18

21

3. The July 6 Directive Fails to Provide a Sufficient Explanation to Justify the Rescission’s Change in Policy ............ 20

22

B. Defendants Did Not Comply with Notice and Comment Procedures....... 20

23

II. Plaintiff Satisfies the Remaining Factors for a Preliminary Inunction ................. 22

24

A. Plaintiff Will Suffer Irreparable Harm ...................................................... 22

25

B. The Public Interest Weighs Heavily in Favor of Provisional Relief......... 24

Conclusion .................................................................................................................................... 25

26

27

28 i
Pl’s Notice of Mot. and Mot. for Prelim. Inj.; MPA in Supp. Thereof (4:20-cv-04592-JST)

Case 4:20-cv-04592-JST Document 12 Filed 07/13/20 Page 3 of 31

1

TABLE OF AUTHORITIES

2 3 CASES

Page

4 All. for the Wild Rockies v. Cottrell

5

632 F.3d 1127 (9th Cir. 2011).............................................................................................10, 14

6

Am. Trucking Ass’n v. City of Los Angeles 559 F.3d 1046 (9th Cir. 2009)...................................................................................................23

7

Ariz. Dream Act Coal. v. Brewer

8

855 F.3d 957 (9th Cir. 2017).....................................................................................................22

9 Batterton v. Francis

10

432 U.S. 416 (1977) ..................................................................................................................22

11

Buschmann v. Schweiker 676 F.2d 352 (9th Cir. 1982).....................................................................................................22

12

California v. Azar

13

911 F.3d 558 (9th Cir. 2018).....................................................................................................25

14 Chalk v. U.S. Dist. Court Cent. Dist. of Cal. 840 F.2d 701 (9th Cir. 1988).........................................................................................22, 24, 25
15

16

Chrysler Corp. v. Brown 441 U.S. 281 (1979) ..................................................................................................................20

17 Colwell v. HHS

18

558 F.3d 1112 (9th Cir. 2009)...................................................................................................21

19 Dep’t of Parks & Recreation for State of Cal. v. Bazaar Del Mundo Inc. 448 F. 3d 1118 (9th Cir. 2006)..................................................................................................25
20

21

DHS v. Regents of the Univ. of Cal. 140 S. Ct. 1891 (2020) ........................................................................................................16, 18

22 E. Bay Sanctuary Covenant v. Barr

23

No. 19-16487, 2020 WL 3637585 (9th Cir. July 6, 2020)..................................................17, 19

24 Encino Motorcars, LLC v. Navarro 136 S. Ct. 2117 (2016) ........................................................................................................15, 20
25

26

FCC v. Fox Television Stations, Inc. 556 U.S. 502 (2009) ......................................................................................................14, 15, 20

27 Giovani Carandola, Ltd. v. Bason

28

303 F.3d 507 (4th Cir. 2002).....................................................................................................25

ii

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Case 4:20-cv-04592-JST Document 12 Filed 07/13/20 Page 4 of 31

1

TABLE OF AUTHORITIES

2

(continued)

Page

3 Greater Yellowstone Coal., Inc. v. Servheen

4

665 F.3d 1015 (9th Cir. 2011)...................................................................................................19

5

Kansas v. United States 249 F.3d 1213 (10th Cir. 2001).................................................................................................23

6

League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton

7

752 F.3d 755 (9th Cir. 2014).....................................................................................................24

8 Mada–Luna v. Fitzpatrick 813 F.2d 1006 (9th Cir. 1987)...................................................................................................21
9

10

Meyer v. Nebraska 262 U.S. 390 (1923) ..................................................................................................................24

11 Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co.

12

463 U.S. 29 (1983) ........................................................................................................14, 15, 20

13 Nken v. Holder 556 U.S. 418 (2009) ..................................................................................................................24
14

15

Norsworthy v. Beard 87 F. Supp. 3d 1164 (N.D. Cal. 2015) ......................................................................................22

16 Perez v. Mortg. Bankers Ass’n

17

575 U.S. 92 (2015) ....................................................................................................................21

18 Regents of the Univ. of Cal. v. DHS 279 F. Supp. 3d 1011 (N.D. Cal. 2018) ....................................................................................23
19

State v. Bureau of Land Mgmt.

20

286 F. Supp. 3d 1054 (N.D. Cal. 2018) ....................................................................................23

21 Trump v. Int’l Refugee Assistance Project

22

137 S. Ct. 2080 (2017) ..............................................................................................................14

23 United States v. Valverde 628 F.3d 1159 (9th Cir. 2010)...................................................................................................22

24

Washington v. Trump

25

847 F.3d 1151 (9th Cir. 2017).............................................................................................22, 23

26 Winter v. NRDC

27

555 U.S. 7 (2008) ................................................................................................................14, 24

28 iii
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1 2 3 FEDERAL STATUTES

TABLE OF AUTHORITIES (continued)

Page

4 5 United States Code

5

§ 553................................................................................................................................1, 20, 21 § 706................................................................................................................................1, 14, 20

6 8 United States Code

7

§ 1182..................................................................................................................................13, 14

§ 1255........................................................................................................................................14

8

STATE STATUTES 9

10

California Education Code § 66010.4...................................................................................................................................11

11

§ 66251......................................................................................................................................23 §§ 69430-460 ............................................................................................................................23

12

COURT RULES

13

Federal Rules of Civil Procedure

14

Rule 65 ........................................................................................................................................1

15 OTHER AUTHORITIES
16 8 Code of Federal Regulations § 214.2 .............................................................................................5 17 85 Federal Register 15,337 (Mar. 18, 2020) .....................................................................................3 18

19

20

21

22

23

24

25

26

27

28 iv
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1

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION

2

PLEASE TAKE NOTICE THAT ON August 19, 2020, at 2:00 p.m. or as soon therefore as

3 it may be heard before the Honorable Jon S. Tigar, Plaintiff State of California (Plaintiff or the

4 State) will and does hereby move the Court pursuant to Fed. R. Civ. P. 65 for a preliminary

5 injunction prohibiting Defendants from implementing and enforcing the July 6 Directive that

6 rescinds its earlier March 13 Guidance. That Guidance exempted F-1 and M-1 nonimmigrant

7 student and vocational visa holders from regulations, which limit students’ ability to enroll in

8 online courses, during the novel coronavirus (COVID-19) emergency. The July 6 Directive

9 violates the Administrative Procedure Act (APA) because it is arbitrary and capricious, 5 U.S.C.

10 § 706(2)(A), and was issued without notice and comment, 5 U.S.C. § 553(b). This Motion is

11 based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the

12 declarations, the Request for Judicial Notice, and any other written or oral evidence or argument

13 as may be presented. While the motion is being noticed for August 19, 2020, Plaintiff respectfully

14 requests that the hearing be held on July 22, 2020 per the Stipulation filed by the parties.

15

MEMORANDUM OF POINTS AND AUTHORITIES

16

INTRODUCTION

17

Plaintiff brings this motion to seek necessary provisional relief to stop the Department of

18 Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) (collectively,

19 Defendants) from implementing the unlawful July 6 Directive, which forces international students

20 to attend in-person courses under the threat of deportation and pressures institutions of higher

21 education (IHEs) to substantially expand in-person learning in the midst of an escalating

22 pandemic, with imminent deadlines imposed by Defendants beginning on July 15. International

23 students should not be compelled to sacrifice their wellbeing so that they can remain in the U.S.

24 and IHEs should not have to sacrifice the wellbeing of their students to continue serving them and

25 lose the flexibility to function online in the interest of public health. Defendants agreed with this

26 uncontroversial position in March, when they issued guidance permitting international students to

27 take a full online course load. See Req. for Jud. Notice (RJN) Ex. 1 (March 13 Guidance). Now,

28

1
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1 four months—and over 3 million confirmed COVID-19 cases in the U.S.—later, Defendants have

2 abruptly changed their mind. RJN Ex. 2 (July 6 Directive). This reversal is not only cruel, but it

3 was made in violation of the APA.

4

Since March 2020, COVID-19 has profoundly transformed everyday life in the United

5 States. Broad sectors of society have been forced to shut down or severely limit in-person

6 functions in order to stop the spread of the highly contagious disease. IHEs across the country,

7 including California IHEs, the California State University (CSU) and California Community

8 Colleges systems (collectively, California IHEs), are confronted with the unprecedented

9 challenge of carrying out their academic missions while protecting the health of their campus

10 communities in compliance with local and state public health directives. To meet the crisis,

11 California IHEs moved quickly to online learning and limited in-person courses where COVID-

12 19 could more easily be spread.

13

At the beginning of the pandemic, Defendants recognized these challenges, and issued the

14 March 13 Guidance exempting international students for “the duration of the emergency” from

15 federal regulations that limit, and in some cases fully prohibit, them from taking online courses.

16 RJN Ex. 1. Since March 13, the national emergency has not subsided. Rather, in recent weeks, as

17 businesses and other sections of society have reopened, cases have surged across the country to

18 the highest levels of the entire pandemic. With the expectation that their students’ visas would not

19 be jeopardized by online classes since the country remains very much in the “duration of the

20 emergency,” California IHEs carefully crafted fall 2020 programs that are predominately online

21 with limited in-person course offerings.

22

Inexplicably, on July 6—just weeks before the start of fall semester and on a date, at that

23 point, had marked the highest number of new COVID-19 cases in the U.S. since the start of the

24 pandemic—Defendants issued the July 6 Directive rescinding the March 13 Guidance. Per the

25 Directive, international students enrolled in a full course of online study must either leave the

26 U.S., transfer to a school where they can attend courses in-person (assuming such an option

27 exists), or be subject to removal. RJN Ex. 2. The shift in policy, per Defendants, reflected that the

28 2
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1 prior exemption was issued during the “height of the [COVID-19] pandemic,” indicating their

2 view that the COVID-19 pandemic is receding. RJN Ex. 2. This is simply untrue.

3

Defendants’ reversal is the epitome of the arbitrary and capricious conduct that the APA

4 prohibits. Defendants utterly ignored the harm to students and IHEs as a result of their abrupt

5 rescission of the March 13 Guidance. Additionally, the July 6 Directive runs counter to the

6 evidence before Defendants—namely, the reality of the surging COVID-19 pandemic. Indeed,

7 given the exigency of the pandemic, Defendants failed to provide a reasonable justification for

8 changing the policy. Beyond that, Defendants failed to comply with the procedural requirements

9 of the APA, depriving IHEs, students, and public health officials, of the ability to weigh-in on an

10 action that will have serious health, financial, educational, and immigration consequences.

11

The July 6 Directive will irreparably harm the IHEs and their students. The July 6 Directive

12 will impose serious administrative and financial burdens on the IHEs, and worse, the California

13 IHEs could lose up to 32,000 international students, who greatly contribute to those institutions’

14 diversity, research, and academic missions. These international students must make impossible

15 choices: risk their health to stay in the U.S., uproot their lives to depart, or be subject to removal.

16 For these reasons, Plaintiff respectfully requests that the Court grant Plaintiff’s motion to prevent

17 the unconscionable injuries that will result from Defendants’ new policy.

18

BACKGROUND

19 I. 20

THE PANDEMIC HAS FORCED A DRAMATIC SHIFT TOWARD ONLINE LEARNING COVID-19 is an ongoing crisis that has far-reaching implications globally, and especially

21 in the U.S., where it has not yet been contained. On March 4, 2020, California Governor Gavin

22 Newsom proclaimed a State of Emergency for the State of California in response to COVID-19.

23 RJN Ex. 4. On March 13, the President issued a Proclamation declaring the COVID-19 pandemic

24 a national emergency. 85 Fed. Reg. 15,337 (Mar. 18, 2020). Since that time over 3.2 million

25 Americans have been infected and more than 134,000 have died, the most in the world. RJN Ex.

26 5, 6. In California alone, more than 320,000 people have become infected, and 7,017 have died.

27 RJN Ex. 7. With no vaccine or therapeutic treatment available, forecasts project that between

28

3

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1 157,216 to 244,540 people in the U.S. could die by November 1, 2020.1

2

It is widely accepted that COVID-19 is easily transmitted and spreads mainly from person

3 to person, through respiratory droplets produced when an infected person coughs or sneezes, or

4 when an individual is speaking, shouting, or singing. Watt Decl. ¶¶ 9, 11. Crowded indoor spaces,

5 where there is close contact can particularly increase the risk of the disease’s spread. Id. ¶¶ 12,

6 23. Accordingly, the U.S. Centers for Disease Control and Prevention (CDC) and the California

7 Department of Public Health (CDPH) have emphasized that physical distancing, i.e., staying

8 home as much as possible and remaining six feet from others when outside your home, is a core

9 tool to curbing COVID-19. RJN Ex. 8; Watt Decl. ¶ 10. Following this advice, on March 19,

10 Governor Newsom issued the first statewide stay-at-home order in the country. RJN Ex. 9.

11

Around that same time, the IHEs switched to almost exclusively online learning for the

12 spring 2020 semester. Wrynn Decl. ¶ 7; Hetts Decl. ¶ 12; Miner Decl. ¶ 10; Rodriguez ¶ 12;

13 Vuriden Decl. ¶ 9; Cornner Decl. ¶ 9; Hope Decl. ¶ 9; Knox Decl. ¶ 9. On short notice, the IHEs

14 were required to invest significant resources to ensure the success of an entirely online program.

15 Wrynn Decl. ¶¶ 8, 9; Hetts Decl. ¶ 12; Cornner Decl. ¶ 9; Knox Decl. ¶ 11. For instance, CSU

16 coordinated the instruction of over 70,000 courses, provided online instruction resources to

17 faculty, and distributed laptops and tablets to students who needed them. Wrynn Decl. ¶ 8. The

18 Chancellor’s Office of the California Community Colleges system has been working to provide

19 internet services and computers at no or reduced cost for students who need them. Hetts Decl.

20 ¶ 19. As the public health risks associated with in-person education persisted, California IHEs

21 have continued to hold virtually all courses online in summer 2020. Wrynn Decl. ¶ 10; Hetts

22 Decl. ¶ 13; Miner Decl. ¶ 11; Rodriguez ¶ 12; Cornner Decl. ¶ 9; Knox Decl. ¶ 9. The California

23 IHEs’ actions are consistent with current CDC guidance that in areas with substantial community

24 spread, IHEs should “consider extended in-person class suspension,” RJN Ex.12. (IHE

25 preparedness) and that “virtual-only learning options” have the lowest risk of spread. RJN Ex. 11.

26

The rate of COVID-19’s spread has, in fact, increased in recent weeks, coinciding with the

27 1 Institute for Health Metrics and Evaluation at the University of Washington, COVID-19
28 Projections, https://tinyurl.com/IHMEprojections (last updated July 7, 2020). 4
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1 reopening of businesses and public spaces throughout the country. Up until June 27, April 28

2 represented the peak of the pandemic in the U.S. with 38,509 confirmed cases on that day. The

3 U.S. has seen more than 40,000 confirmed cases every day, except one, since June 27, with

4 66,281 cases on July 12, representing, thus far, the new peak of the pandemic. RJN EX. 6.

5 Because California is also experiencing a surge in cases, on July 13, Governor Gavin Newsom

6 ordered the closure of most non-essential sectors in most of the state. RJN Ex. 10.

7 II. CALIFORNIA IHES ACTED IN RELIANCE ON THE MARCH 13 GUIDANCE

8

Recognizing that requiring international students to attend in-person courses during a

9 pandemic is unsafe and incompatible with public health guidance, on March 13, the Student and

10 Exchange Visitor Program (SEVP) division within ICE issued guidance, RJN Ex. 1, exempting

11 international students from federal regulations that restrict F-1 students from taking more than

12 one online course and restrict M-1 students from taking any online courses.2 8 C.F.R. 13 §§ 214.2(f)(6)(i)(G), 214.2(m)(9)(v). In this March 13 Guidance, SEVP specifically addressed the

14 scenario where a “school temporarily stops in-person classes but implements online or other

15 alternate learning procedures and the nonimmigrant student remains in the United States.” Id. 16 SEVP directed these students to “participate in online or other alternate learning procedures and

17 remain in active status in SEVIS [Student and Exchange Visitor Program].” Id. SEVP further 18 declared that, “[g]iven the extraordinary nature of the COVID-19 emergency, SEVP will allow F-

19 1 and/or M-1 students to temporarily count online classes towards a full course of study in excess

20 of the limits of 8 C.F.R. § 214.2(f)(6) and 8 C.F.R. § 214.2(m)(9)(v).” Id.

21

The March 13 Guidance stated that the exemption for online learning would be in effect

22 “for the duration of the emergency.” Id. (emphasis added). And, per the Guidance, Defendants 23 would adjust it “as needed” as they “continue to monitor the COVID-19 situation.” Id. 24 Essentially, through the March 13 Guidance, Defendants expressed that they would be following

25 a rational policy: students and IHEs grappling with a global pandemic beyond their control would 26 not be penalized for complying with public health directives.

27 2 The in-person requirements for F-1 students, provided in 8 C.F.R. § 214.2(f)(6)(i)(G), only
28 apply to students who are taking courses for credit or classroom hours. 5
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1

Indeed, up until the July 6 Directive, all of Defendants’ guidance indicated that SEVP’s

2 requirements, and adjustments thereto, would be commensurate with the trajectory of the

3 pandemic. In its first COVID-19 related guidance, a March 9 Broadcast Message, Defendants

4 recognized “schools may need to adapt their procedures and policies to address the significant

5 public health concerns associated with the COVID-19 crisis,” and assured that they “intend[] to

6 be flexible with temporary adaptations” due to COVID-19. RJN Ex. 13. Defendants also issued

7 guidance on June 4 that, while indicating that fall plans would be forthcoming, also expressed that

8 any changes would be tied to “the fluid nature” of the COVID-19 crisis. RJN Ex. 14. That

9 guidance also discussed the fact that “some students may find it difficult to return home during

10 the COVID-19 emergency because of diminished travel options.” Id.

11

In reliance on the March 13 Guidance that international students would be exempted from

12 in-person class requirements for the “duration of the emergency,” and in consideration of the

13 worsening pandemic, California IHEs made plans to primarily offer online classes for the fall

14 2020 semester to ensure the safety of their campus communities during the COVID-19 pandemic.

15 Wrynn Decl. ¶¶ 11, 17; Hetts Decl. ¶ 14; Miner Decl. ¶ 11; Adams Decl. ¶ 9; Vurdien Decl. ¶ 10;

16 Cornner Decl. ¶ 13; Hope Decl. ¶ 10; Knox Decl. ¶ 12. The California community colleges

17 convened a working group to assess the threat of COVID-19 on the system and make

18 recommendations on whether and when campuses should reopen to students. Hetts Decl. ¶ 13.

19 Individual districts in the community colleges system also tracked the spread of the virus in their

20 localities and considered local and state stay-at-home orders in order to determine what method of

21 instruction would be safest for the campus. Miner Decl. ¶¶ 12, 16; Adams Decl. ¶¶ 10, 11;

22 Vurdien Decl. ¶ 11; Cornner Decl. ¶ 10; Hope Decl. ¶ 9-10; Knox Decl. ¶ 13. This careful

23 planning led to most community colleges planning to offer primarily online courses but for very

24 limited exceptions. Miner Decl. ¶ 11; Rodriguez Decl. ¶ 20; Vurdien Decl. ¶ 10; Cornner Decl.

25 ¶¶ 11-12; Hope Decl. ¶ 10; Knox Decl. ¶ 12.

26

Likewise, CSU administrators have spent countless hours planning campus specific

27 education plans that safeguard the health and safety on their campuses. Wrynn Decl. ¶¶ 11-12, 14,

28 17. Similar to the community colleges, CSU will have a “hybrid” program, whereby most 6
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1 campuses will operate approximately 90% online. Id. ¶ 16. In May 2020, the CSU published

2 guidance for the fall semester so that faculty and staff would have sufficient time to make

3 necessary preparations to deliver a rich, but remote, educational experience. Id. ¶ 14.

4 III. DEFENDANTS TERMINATED THE IN-PERSON LEARNING EXEMPTION DURING AN

5

ESCALATING PUBLIC HEALTH CRISIS

6

Although the COVID-19 pandemic in the U.S. has worsened since the March 13 directive,

7 on July 6, 2020, SEVP changed its policy to declare that the earlier exemptions provided for F-1

8 and M-1 students “during the height of the [COVID-19] crisis will be modified for the fall 2020

9 semester.” RJN Ex. 2. SEVP stated that because schools have started to reopen, in its view, “there

10 is a concordant need to resume the carefully balanced protections implemented by Federal

11 regulations.” Id. SEVP claims that the change “balance[s] public health concerns against the

12 varied approaches that schools and universities are taking” in response to COVID-19, but it does

13 not address the risk of transmission that is presented by expanded in-person learning or the

14 escalating nature of the public health crisis. RJN Ex. 3.

15

According to the July 6 Directive, those “[s]tudents attending schools operating entirely

16 online may not take a full online course load and remain in the United States.” RJN Ex. 2.

17 (emphasis in original). If an international student attends a school that has shifted to an entirely

18 online program due to COVID-19, or cannot enroll in in-person courses due to their limited

19 availability (or a student’s disabilities or health concerns), the student must either: (a) transfer to a

20 school with in-person learning; (b) leave the U.S.; or (c) “face immigration consequences

21 including, but not limited to, the initiation of removal proceedings.” Id. The U.S. Department of

22 State will not issue visas to students enrolled in a program that is fully online, and the U.S.

23 Customs and Border Protection will not allow students to enter the U.S. if they are enrolled in a

24 school that is fully online. Id.

25

While F-1 students attending a higher education institution adopting a hybrid model with a

26 mixture of online and in-person classes may be permitted to take more than one class or three

27 credit hours online and still retain their status, that exemption does not apply to F-1 students in

28 English language training programs or to any M-1 students. Id. As discussed supra, because

7

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1 IHEs have decided for public health purposes to offer only a small percentage of their classes in-

2 person, and even then, only for certain subject matter areas, many F-1 students may not be in a

3 position to take any in-person class due to capacity restrictions. Moreover, there is no safe harbor

4 for IHEs operating in the “hybrid” model that decide to switch to online-only classes in the

5 middle of the semester should the public health crisis demand it. In that instance, the students are

6 “not permitted to take a full course of study through online classes,” and students “must leave the

7 country or take alternative steps to maintain their nonimmigrant status such as transfer to a school

8 with in-person instruction.” Id. The July 6 Directive further states that students enrolled at IHEs

9 “whose schools of enrollment are only offering online classes” can maintain their active visa

10 status residing abroad, indicating that students enrolled at IHEs with hybrid-programs (i.e., not

11 offering only online classes) cannot maintain their status from abroad, even if they are enrolled in

12 only online courses. RJN Ex. 2

13

The July 6 Directive states that DHS will be publishing a Temporary Final Rule “in the near

14 future,” without any indication that DHS or ICE will engage in notice and comment at any point.

15 Id. Nonetheless, the practical effects of this new policy are immediate. IHEs that plan to operate

16 entirely online are required to inform ICE of their plans by July 15, while all other IHEs must

17 inform ICE of their plans to operate solely in-person classes, delayed or abbreviated sessions, or

18 hybrid plans by August 1. By August 4, IHEs are required to update and reissue new Forms I-20

19 to each F-1 or M-1 student enrolled in the IHEs during the fall 2020 semester. Id. If a F-1 student

20 takes in-person classes, in order to retain their status, under the new policy, the higher education

21 institution must certify on the Form I-20 that: (a) the school’s program is not entirely online; (b)

22 the student is not taking an entirely online course load; and (c) the student is taking the minimum

23 number of online classes required to make normal progress in the degree program. Id.

24 IV. THE JULY 6 DIRECTIVE’S IMPACT ON CALIFORNIA IHES AND STUDENTS

25

A. The July 6 Directive Harms California IHEs

26

The July 6 Directive harms IHEs in at least three significant ways: (1) IHEs must devote

27 substantial resources to ensuring international students can retain their statuses, which requires

28

8

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1 expansion of in-person learning despite health risks; (2) California IHEs now have new

2 administrative burdens; and (3) California IHEs’ missions are frustrated.

3

1. The July 6 Directive Disrupts Long Completed Fall 2020 Plans

4

The July 6 Directive was issued only weeks before the fall semester was to start, after

5 California IHEs had already extensively planned for fall online learning programs in reliance of

6 the March 13 Guidance. Now that Defendants have rescinded that Guidance, California IHEs are

7 pressured to reconfigure their fall plans so that their international students can enroll in at least

8 one in-person class, because their initial falls would be too limited. Wrynn Decl. ¶ 21; Hetts Decl.

9 ¶¶ 16-17; Miner Decl. ¶ 16; Rodriguez Decl. ¶ 20; Vurdien Decl. ¶¶ 12, 14, 23; Cornner Decl.

10 ¶¶ 14, 17; Hope Decl. ¶¶ 10, 11, 13; Knox Decl. ¶ 23. California IHEs are thus considering

11 whether they should add in-person classes or expand the capacity of existing in-person fall classes

12 to ensure that these students can stay enrolled and within lawful status. Wrynn Decl. ¶ 21; Hetts

13 Decl. ¶¶ 16-17; Miner Decl. ¶¶ 15-16 Rodriguez Decl. ¶ 20; Vurdien Decl. ¶ 23; Cornner Decl.

14 ¶ 14; Hope Decl. ¶ 13. This would be extremely difficult to do, however, because at many

15 schools, budgets have been finalized, fall registration has commenced, and instructors have been

16 assigned to courses; and schools must resubmit plans for how to safely deliver in-person courses.

17 Wrynn Decl. ¶ 22; Vurdien Decl. ¶ 14; Cornner Decl. ¶ 14; Hope Decl. ¶ 12. Indeed, COVID-19

18 presents a major obstacle, because California IHEs must comply with physical distancing

19 protocols and purchase personal protective equipment (PPE) for faculty, staff, and students.

20 Wrynn Decl. ¶ 21; Rodriguez Decl. ¶ 20; Vurdien Decl. ¶ 11; Hope Decl. ¶ 13. The logistical

21 planning required to implement a new fall plan at this point would be extremely burdensome.

22

More importantly, the expansion of in-person classes is accompanied by the definite risk of

23 exposing people to COVID-19. RJN Ex. 11, 12; Watt Decl. ¶ 23; Rodriguez Decl. ¶ 21; Adams

24 Decl. ¶ 11; Vurdien Decl. ¶ 18; Cornner Decl. ¶¶ 14, 16; Hope Decl. ¶ 13; Knox Decl. ¶ 19.

25 Given that the disease is spread through close contact and actions such as speaking, students, staff

26 members, or instructors risk contracting the disease through expanded in-person learning. Watt

27 Decl. ¶¶ 9, 23. The risk is especially acute given that the rate of COVID-19 is escalating in

28

9

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1 California such that there is already limited space at local hospitals. Hetts Decl. ¶ 14; Adams

2 Decl. ¶ 10; Vurdien Decl. ¶ 18; Cornner Decl. ¶ 16; Watt Decl. ¶ 18. Relatedly, the July 6

3 Directive does not give IHEs flexibility to pivot to an online-only system if conditions worsen—

4 which, given the current trajectory, is foreseeable —for if they do, their students would be left

5 with the prospect of immediate departure or deportation, RJN Ex. 2.

6

2. The July 6 Directive Imposes Substantial Administrative Burdens

7

California IHEs have and will continue to expend significant administrative effort to

8 mitigate the harms resulting from the July 6 Directive. Van Cleve Decl. ¶ 8; Hetts Decl. ¶¶ 15, 17;

9 Miner Decl. ¶ 16; Rodriguez Decl. ¶¶ 18, 20; Vurdien Decl. ¶¶ 14-16; Cornner Decl. ¶ 14; Knox

10 Decl. ¶¶ 16-17. Just weeks before the fall semester is scheduled to begin, California IHEs have

11 had to divert their attention to analyzing the impact of the July 6 Directive and identifying its

12 applicability to their students, while simultaneously fielding inquiries from concerned students.

13 Van Cleve Decl. ¶ 8; Hetts Decl. ¶ 15; Miner Decl. ¶ 14; Rodriguez Decl. ¶ 18; Cornner Decl.

14 ¶ 14; Knox Decl. ¶ 16. In addition, the July 6 Directive requires California IHEs to comply with

15 new, onerous—and imminent—SEVIS reporting requirements of re-issuing Forms I-20 to all of 16 its international students by August 4, 2020. Van Cleve Decl. ¶ 11; Miner Decl. ¶ 17; Rodriguez

17 Decl. ¶ 18; Vurdien Decl. ¶ 17; Cornner Decl. ¶ 15; Hope Decl. ¶ 14; Knox Decl. ¶ 18. Within a

18 matter of weeks, staff must review each international student’s record to ensure that they are

19 enrolled in at least one in-person course, and monitor that enrollment on SEVIS. Van Cleve. Decl.

20 ¶ 11. As an example of how time consuming this will be, Santa Monica College anticipates that

21 this task alone will “require 19 full-time staff members to work a combined 570 overtime hours.”

22 Rodriguez Decl. ¶ 18.

23 3. The July 6 Directive Frustrates the Diversity and Educational

24

Missions of the California Higher Education Institutions

25

Potentially thousands of IHEs’ international students may be unable to comply with the

26 July 6 Directive because they cannot feasibly enroll in the limited in-person course offerings. See

27 e.g., Miner Decl. ¶ 11; Rodriguez Decl. ¶ 28. This means that they will be forced to either

28 transfer, depart the U.S. and resume their studies from their home country, or be deported. Either 10
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1 way, it is likely that the California IHEs will lose many international students. This will be a

2 crushing blow to the California IHEs’ missions to serve diverse individuals from local, national,

3 and global communities without regard to race, ethnicity, national origin, or immigration status.

4 Hetts Decl. ¶¶ 8, 23 & Ex. A; Wrynn Decl. ¶ 23; Miner Decl. ¶ 8; Rodriguez Decl. ¶ 9; Vurdien

5 Decl. ¶ 20; Cornner Decl. ¶ 8; Knox Decl. ¶ 8. International students hale from all over the world

6 and enrich the educational experiences of all students and faculty by contributing their diverse life

7 experiences and perspectives. Wrynn Decl. ¶ 18; Hetts Decl. ¶ 11; Miner Decl. ¶¶ 7, 9; Rodriguez

8 Decl. ¶ 10; Vurdien Decl. ¶ 8; Cornner Decl. ¶ 7; Hope Decl. ¶¶ 7-8; Knox Decl. ¶ 7. The

9 removal of these students necessarily makes these systems less diverse, which is a loss to the

10 IHEs and their student bodies. Hetts Decl. ¶ 23; Vurdien ¶ 20; Hope Decl. ¶ 16; Knox Decl. ¶ 15.

11

Moreover, the July 6 Directive deprives California IHEs of the scholarship of international

12 students, thereby harming their institutional missions and denying the community of their

13 innovations and research. See Cal. Educ. Code § 66010.4(a)(3), (b). As just a few examples of

14 students who would likely be unable to continue their studies under the July 6 Directive: one

15 student researches diseases such as diabetes, Parkinson’s, pneumonia and other immune related

16 disorders, which is of critical import to COVID-19 developments; another student has

17 collaborated with U.S. NASA Joint Propulsion Laboratory (JPL) on sustainable energy research;

18 and one student focuses on cyber security and tutors college athletes. Winner Decl. ¶ 15.

19

Finally, the July 6 Directive will cause IHEs to suffer substantial financial losses due to

20 the loss of international students who will likely dis-enroll, either because they are transferring or

21 they decide not to continue their studies from abroad. Miner Decl. ¶ 18; Rodriguez Decl. ¶ 24;

22 Vurdien Decl. ¶ 19; Cornner Decl ¶ 17; Hope Decl. ¶ 15; Knox Decl. ¶ 20. CSU stands to lose

23 over $260 million in tuition fees due to dis-enrollment of international students who are unable to

24 comply with the Directive. Wells Decl. ¶ 7. The California Community College system projects a

25 loss of up to approximately $83 million in tuition and related fees. Hetts Decl. ¶ 10. This hit to

26 revenue comes at a time when California IHEs’ resources are strained to respond to the disruption

27 caused by COVID-19, as well as state budget shortfalls. Wells Decl. ¶ 7; Hetts Decl. ¶ 22;

28 Rodriguez Decl. ¶ 24; Vurdien Decl. ¶ 19; Hope Decl. ¶ 15. All tuition revenue is reinvested 11
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1 towards operational costs associated with the school, including staff salaries, as well as programs

2 and services available to the student body as a whole. Wells Decl. ¶ 7; Hetts Decl. ¶ 21;

3 Rodriguez Decl. ¶ 22. Dis-enrollment thus extends far beyond a financial loss, and affects the

4 types of courses, educational program, services, and instruction IHEs are able to offer to all of its

5 students, international and domestic. Rodriguez Decl. ¶ 22.

6

B. The July 6 Directive Harms International Students at Great Personal and

7

Financial Cost

8

The July 6 Directive penalizes international students for taking a full online course load,

9 despite the fact that many have no other choice due to in-person capacity limits, limited course

10 offerings in specific majors, or their underlying health issues. The Directive’s impacts on these

11 students’ lives and wellbeing are vast and severe. Students have reported feeling alarm, fear,

12 anxiety, and confusion due to the Directive. Rodriguez Decl. ¶ 27; Hope Decl. ¶ 18; Knox Decl.

13 ¶¶ 16, 22; Winner Decl. ¶ 15; Kodur Decl. ¶ 25.

14

First, many international students relied on the March 13 Guidance as assurance that their

15 status was not in jeopardy due to their IHE’s decision to cease virtually all in-person classes for

16 the duration of the emergency. Rodriguez Decl. ¶¶ 25-27 Vurdien Decl. ¶ 21. In reliance on that

17 Guidance, students signed leases in the U.S. expecting to continue to remain in the country while

18 completing their online instruction. Rodriguez Decl. ¶ 26; Winner Decl. ¶ 11; Kodur Decl. ¶ 25.

19 Now these students are being forced to uproot their lives and leave the U.S. or be subject to

20 removal, and breach leases and other financial commitments they made under the assumption that

21 they would be able to continue online coursework and remain in lawful status. Rodriguez Decl.

22 ¶¶ 26-27; Hope Decl. ¶ 18. At the same time, in reliance on the March 13 Guidance, some

23 students may have traveled back their home countries to continue online learning. Rodriguez

24 Decl. ¶¶ 25, 28; Vurdien Decl. ¶ 21; Cornner Decl. ¶ 18. If these students are enrolled in hybrid

25 programs, such as those at the California IHEs, and remain abroad taking an online course load,

26 they may lose their status under the Directive. RJN Ex. 2. Thus, the July 6 Directive could have a

27 perverse effect—forcing the IHEs’ students who are already abroad to come back to the U.S. to

28 take in-person courses, which may prove difficult for these students due to travel restrictions and

12

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1 presents the same public health concerns as forcing students to leave the U.S.

2

Second, students have expressed deep reservations about enrolling in courses with in-

3 person components, as they fear contracting COVID-19, which could cause long-lasting physical

4 harm, or fatal consequences. Rodriguez Decl. ¶ 27; Kodur Decl. ¶ 23. The July 6 Directive makes

5 no exception to students with underlying conditions, for whom COVID-19 is especially

6 dangerous. RJN Ex. 2.

7

Third, students who return to their home countries face the exorbitant financial costs and

8 the health risk associated with traveling during a global pandemic, when international travel

9 options are severely limited. Hetts Decl. ¶ 20; Miner Decl. ¶ 21; Rodriguez Decl. ¶¶ 26-27;

10 Vurdien Decl. ¶ 22; Hope Decl. ¶ 18; Knox Decl. ¶ 22; Winner Decl. ¶¶ 12-13, 15; Kodur

11 Decl. ¶¶ 19-20, 22, 24-25. For example, the second largest group of international students at the

12 CSU are from India, but there are currently no flights available from the U.S. to India. Wrynn

13 Decl. ¶ 19. A ticket to China right now is $7,000. Rodriguez Decl. ¶ 27. Yet, if students are

14 unable to timely depart the country, they risk being placed in removal proceedings.

15

Relatedly, for many students, continuing their education abroad is unfeasible. Students

16 may not have access to laptop devices or a free, uncensored, internet connection. Miner Decl.

17 ¶ 22; Rodriguez Decl. ¶ 26; Winner Decl. ¶¶ 9, 15; Kodur Decl. ¶¶ 17-19, 25. Still others fear

18 returning to home countries where they do not currently have any place to live and where they

19 could face famine or had escaped abusive situations. Rodriguez Decl. ¶¶ 26-27; Winner Decl. ¶

20 15. Generally, students forced to depart will lose the educational opportunities attendant with

21 their residing in the U.S. For instance, F-1 students would be denied the opportunity to participate

22 in a pre-completion internship or other experiential learning opportunities. Wrynn Decl. ¶ 20;

23 Miner Decl. ¶ 23; Rodriguez Decl. ¶ 29; Hope Decl. ¶ 18.

24

Finally, the July 6 Directive is accompanied by the threat of serious immigration

25 consequences for failure to comply—namely, initiation of removal proceedings. RFJ directive_.

26 When an individual is ordered removed, they are inadmissible into the U.S. for ten-years. 8

27 U.S.C. § 1182(a)(9)(A)(ii). Even if not ordered removed, if the student fails to maintain status

28 while residing in the U.S. that student will be accruing unlawful presence, which can bar an 13
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1 individual from entry for many years. Id. § 1182(a)(9)(B)(i). A failure to maintain status while

2 residing in the U.S. can also render a person ineligible for adjustment of status in the future. Id.

3 § 1255(c)(8). These harsh consequences may befall students, who, through no fault of their own,

4 cannot attend in-person courses and also cannot leave the U.S.

5

LEGAL STANDARD

6

A preliminary injunction is appropriate when the plaintiffs establish that they are likely to

7 succeed on the merits, they are likely to suffer irreparable harm in the absence of preliminary

8 relief, the balance of equities tips in plaintiffs’ favor, and an injunction is in the public interest.

9 Winter v. NRDC, 555 U.S. 7, 20 (2008). A preliminary injunction is “often dependent as much on

10 the equities of [the] case as the substance of the legal issues it presents.” Trump v. Int’l Refugee

11 Assistance Project, 137 S. Ct. 2080, 2087 (2017). “[S]erious questions going to the merits and a

12 balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary

13 injunction,” so long as the other preliminary injunction factors are met. All. for the Wild Rockies

14 v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotations omitted).

15

ARGUMENT

16 I. PLAINTIFF IS LIKELY TO SUCCEED ON ITS APA CLAIMS

17

A. The July 6 Directive is Arbitrary and Capricious

18

Defendants’ rescission of the in-person learning exemption for F-1 and M-1 students must

19 be set aside under the APA as an agency action that is “arbitrary, capricious, [and] an abuse of

20 discretion.” 5 U.S.C. § 706(2)(A). Under the APA, an agency must engage in “reasoned

21 decisionmaking,” by “examin[ing] the relevant data and articulat[ing] a satisfactory explanation

22 for its action.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,

23 43, 52 (1983). Courts find agency actions to be arbitrary and capricious if the agency has, among

24 other things, “entirely failed to consider an important aspect of the problem” or “offered an

25 explanation for its decision that runs counter to the evidence before the agency.” Id. at 43. In

26 addition, when changing policy, an agency must provide “a reasoned explanation . . . for

27 disregarding facts and circumstances that underlay or were engendered by the prior policy.” FCC

28

14

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1 v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). Any one of these defects would be

2 sufficient for setting aside Defendants’ rescission of the COVID-19 in-person learning

3 exemptions as arbitrary and capricious. Here, all of these defects exist.

4

1. Defendants Failed to Consider Important Aspects of the Problem

5

Defendants’ one-paragraph explanation in the July 6 Directive of the rescission of the

6 COVID-19 in-person learning exemptions only reflects two considerations: (a) that the in-person

7 learning exemptions were granted “during the height” of the pandemic, which Defendants,

8 presumably (and incorrectly) believe has passed; and (b) that there is a “need to resume the

9 carefully balanced protections implemented by federal regulations” as “many institutions across

10 the country reopen.” RJN Ex. 2. The July 6 Directive and the documents that were released

11 contemporaneously with the Directive, however, shows no consideration by Defendants of the

12 litany of problems that ensue from the agency’s actions. See State Farm, 463 U.S. at 43.

13

To start, Defendants have not at all considered how the March 13 Guidance “engendered

14 serious reliance interests” for IHEs and students based on that Guidance’s representation that the

15 COVID-19 in-person learning exemptions would be in effect for the duration of the pandemic.

16 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting Fox Televisions, 556 17 U.S. at 515). California IHEs relied on those representations as they spent months creating plans

18 to predominantly hold cases online. Wrynn Decl. ¶ 17; Miner Decl. ¶ 13; Rodriguez Decl. ¶ 16;

19 Vurdien Decl. ¶ 12; Cornner Decl. ¶ 13; Hope Decl. ¶ 11; Knox Decl. ¶ 14. Because of the March

20 13 Guidance, California IHEs were able to safeguard the health and safety of their students,

21 faculty, and staff, without concern that international students will suffer immigration

22 consequences as a result of these online learning plans. Id. The IHEs also made decisions on 23 course offerings and budgeting based on the expectation that international students will remain

24 enrolled while IHEs hold classes online during the pandemic. Wrynn Decl. ¶ 17; Rodriguez Decl.

25 ¶ 16; Vurdien Decl. ¶ 13; Cornner Decl. ¶ 13; Hope Decl. ¶ 12; Knox Decl. ¶ 14. Meanwhile,

26 students presently in the U.S. acted in reliance of the representations in the March 13 Guidance

27 by enrolling in classes, entering leases, or interviewing for jobs or internships on the expectation

28 15
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1 that they could continue their study in the U.S. irrespective of whether their school offers in-

2 person instruction during the pandemic. Rodriguez Decl. ¶ 26; Hope Decl. ¶ 12; Winner Decl. ¶

3 11, 15; Kodur Decl. ¶ 25. Other international students traveled to their home countries, relying on

4 the representations of the March 13 Guidance that they could take their classes online while

5 residing abroad. Rodriguez Decl. ¶ 25, 28; Vurdien Decl. ¶ 21; Cornner Decl. ¶ 18. Now these

6 students must attempt to travel back to the U.S. to take classes in-person if they are enrolled at an

7 IHE with a “hybrid” fall plan or they could lose their visa status.

8

The Supreme Court’s recent decision in DHS v. Regents of the Univ. of Cal., 140 S. Ct.

9 1891 (2020), is instructive. In that case, the Court determined that before terminating the Deferred

10 Action for Childhood Arrival (DACA), a program which “conferred no substantive rights” and

11 provided only temporary benefits, DHS was required to consider the reliance interests of: (a)

12 DACA recipients; (b) the IHEs where DACA recipients studied or taught; and (c) the state and

13 local governments that benefitted from DACA recipients contributions to tax revenue. Id. at

14 1913-14. Likewise here, as discussed above, IHEs and international students developed reliance

15 interests based on the representations in the March 13 Guidance that those students could

16 continue to enroll in online classes for “the duration of the emergency” notwithstanding the

17 ordinary in-person learning regulatory requirements. See supra 15-16. Defendants were “required

18 to assess whether there were reliance interests, determine whether they were significant, and

19 weigh any such interests against competing policy concerns.” Regents, 140 S.Ct. at 1915. There

20 is no indication that Defendants conducted that analysis, making the rescission of the COVID-19

21 in-person learning exemptions arbitrary and capricious on that basis alone. See id.

22

Defendants independently failed to meaningfully consider public health effects. While an

23 FAQ document claims that the new policy “carefully balance[s] public health concerns” and

24 “[t]he health and safety of all students is of the utmost importance,” none of the documents

25 contemporaneously issued with the July 6 Directive even mention the substantial public health

26 risks posed by conducting expansive in-person learning. RJN Ex. 7; see also RJN Ex. 15. The

27 documents further fail to consider that the public health crisis has escalated since the in-person

28 learning exemptions were first instituted on March 13. RJN Exs. 5-7. While Defendants claim 16
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1 that the policy change is intended to “minmiz[e] the risk of transmission of COVID-19," RJN Ex.

2 2, the July 6 Directive increases the risk of transmission to international students and other

3 travelers by forcing both: (a) students within the U.S. to travel to their home country in the middle

4 of the pandemic; or (b) students abroad to come back to the U.S. to take in-person courses if their

5 IHEs are offering them, so that they can retain their status. Watt Decl. ¶ 24. The agency

6 documents also fail to consider the impact of forcing international students with underlying health

7 conditions to attend in-person classes, even though for them exposure to COVID-19 could be

8 fatal. See id. ¶ 23. Even if Defendants purport to have considered health impacts generally, their

9 “explanation in no way addresses the[se] special vulnerability[ies]” to public health created by

10 Defendants’ pressure for greatly expanded in-person learning. E. Bay Sanctuary Covenant v.

11 Barr, No. 19-16487, 2020 WL 3637585, at *16 (9th Cir. July 6, 2020) (asylum rule’s failure to

12 account for the “vulnerability of unaccompanied minors” is arbitrary and capricious).

13

Defendants have further shown no consideration of the following problems raised by the

14 July 6 Directive:

15

 The July 6 Directive creates an unprecedented administrative burden on IHEs of

16

having to re-issue Form I-20s to all of their international students within a matter of

17

weeks. Van Cleve Decl. ¶ 11; Miner Decl. ¶ 17; Rodriguez Decl. ¶ 18; Vurdien

18

Decl. ¶ 17; Cornner Decl. ¶ 15; Hope Decl. ¶ 14; Knox Decl. ¶ 18.

19

 The inevitable departure of international students from the U.S. as a result of the

20

July 6 Directive would result in a loss of enrollment, and thus, a loss of tuition

21

dollars that support the entire student body at a time when IHEs are facing severe

22

budget cuts. Wells Decl. ¶ 7; Hetts Decl. ¶ 22; Miner Decl. ¶ 18; Rodriguez Decl.

23

¶ 24; Vurdien Decl. ¶ 19; Cornner Decl. ¶ 17; Hope Decl. ¶ 15; Knox Decl. ¶ 20.

24

 The loss of international students would significantly undermine the diversity and

25

academic and research missions of these IHEs. Hetts Decl. ¶ 23; Vurdien ¶ 20; Hope

26

Decl. ¶ 16; Knox Decl. ¶ 15.

27

 Some international students who are forced to leave the U.S. as a result of the July 6

28

Directive will be unable to do so due to U.S. and foreign travel restrictions,

17

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1

potentially subjecting those students to immigration consequences if they remain in

2

the U.S. Wrynn Decl. ¶ 19; Hetts Decl. ¶ 20; Miner Decl. ¶ 21; Rodriguez Decl.

3

¶¶ 26-27; Vurdien Decl. ¶ 22; Hope Decl. ¶ 18; Knox Decl. ¶ 22; Winner Decl. ¶

4

13, 15; Kodur Decl. ¶¶ 19-20, 22; see also RJN Exs. 16-25.

5

 Similarly, some international students abroad may not be able to come back to the

6

U.S. to take in-person courses at “hybrid” schools, because of these same travel

7

restrictions, thus jeopardizing their status. Hetts Decl. ¶ 20; Miner Decl. ¶ 19;

8

Rodriguez Decl. ¶ 25, 28; Vurdien Decl. ¶ 21; Cornner Decl. ¶ 18.

9

 Students who are forced to leave the U.S. because of their IHEs’ predominately

10

online programs may not be able to continue their education in their home

11

countries, since those students may be without internet connectivity in their home

12

country, and will face the challenge of having to take classes in far divergent time

13

zones. Miner Decl. ¶ 22; Rodriguez Decl. ¶ 26; Winner Decl. ¶¶ 9, 15; Kodur Decl.

14

¶¶ 17-19, 25.

15

 The July 6 Directive will interrupt the education of many international students who

16

are close to earning their degree, which can have devastating consequences on their

17

ability to pursue future professional opportunities. Wrynn Decl. ¶ 20; Miner Decl. ¶

18

23; Rodriguez Decl. ¶ 29; Hope Decl. ¶ 18; Winner Decl. ¶¶ 10-11, 15.

19

Defendants’ failure to consider any one of these significant problems is enough to find the

20 rescission arbitrary and capricious. Regents, 140 S. Ct. at 1913 (DHS’s failure “alone” to consider

21 a more narrow rescission of DACA was enough to “render[] [the] Acting Secretary[‘s] decision

22 arbitrary and capricious”).

23

2. Defendants’ Explanation for the Rescission Runs Counter to the

24

Evidence Before the Agency

25

ICE’s primary reasoning for rescinding the exemptions—that those exemptions were

26 granted at the “height” of the pandemic—indicates ICE has determined that the pandemic is

27 dissipating, and thus, believes IHEs should reopen. RJN Ex. 2. The Acting Deputy Secretary of

28 Homeland Security Ken Cuccinelli recently acknowledged that this was the purpose of the

18

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1 rescission. RJN Ex. 26. That reasoning does not comport with reality, or even the federal CDC’s

2 currently applicable guidance for IHEs. RJN Exs. 11, 12.

3

As discussed supra, the rate of positive cases has spiked dramatically across the country.

4 Between March 13, when the exemptions were granted, and June 26, there was no day in which

5 there were 40,000 or more new confirmed COVID-19 cases in the U.S. RJN Ex. 6. Since June 27,

6 there has not been one day in which there were less than 40,000 new confirmed COVID-19 cases.

7 Id. On July 6, the day that Defendants rescinded the exception, there were 57,186 confirmed

8 cases, the highest amount of new cases at that point since the start of the pandemic. Id. Cases

9 have continued to increase since July 6, and more concerning, there has been an increase in

10 deaths attributable to COVID-19, which tends to follow an increase in positive cases. Id.

11 Although California has been cautious in its reopening, it, like the rest of the country, has

12 experienced a spike in new cases and deaths over the past several weeks. RJN Ex. 7.

13

Health experts report hospitals across the country being “overwhelmed” as a result of this

14 surge.3 The Director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony

15 Fauci said that these “disturbing” trends show that the U.S. was “not in total control” of the virus,

16 and anticipated that the U.S. could see over 100,000 new confirmed COVID-19 cases per day.

17 RJN Ex. 27. These recent spikes coincide with the reopening of businesses and public spaces,

18 prompting health experts, including Dr. Fauci, to advise that further reopenings should be

19 “pause[d]” in communities experiencing a surge in new confirmed COVID-19 cases. RJN Ex. 28.

20

This “evidence . . . contradicts the agencies’ conclusion” that the COVID-19 pandemic is

21 easing, and that this is an appropriate time to expand in-person learning at IHEs. E. Bay

22 Sanctuary Covenant, 2020 WL 3637585, at *13. Indeed, these facts all dictate against a policy

23 that seeks to pressure IHEs to conduct more in-person learning. Greater Yellowstone Coal., Inc. v.

24 Servheen, 665 F.3d 1015, 1030 (9th Cir. 2011) (overturning agency decision where “considerable

25 data . . . point[ed] in the opposite direction” of the agency’s decision). Since Defendants have not

26
27 3 Madeline Holcombe, Expert warns the US is approaching ‘one of the most unstable times in the history of our country’, CNN Health (July 11, 2020), https://www.cnn.com/2020/07/11/health/us-
28 coronavirus-saturday/index.html. 19
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1 (and cannot) provide a “rational connection between the facts found and the choice made,” the

2 agency action must be set aside. State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc.

3 v. United States, 371 U.S. 156, 168 (1962)).

4

3. The July 6 Directive Fails to Provide a Sufficient Explanation to

5

Justify the Rescission’s Change in Policy

6

Moreover, the rescission of the COVID-19 in-person learning exemptions departs from the

7 agency’s past practice without a sufficient explanation. When an agency changes a policy, it must

8 “show that there are good reasons for the new policy.” Fox Television, 556 U.S. at 515. Where, as

9 is the case here, the prior policy engendered “serious reliance interests,” an agency must provide

10 “a more detailed justification than what would suffice for a new policy created on a blank slate.”

11 Id. Defendants’ suggestion that the exemptions in the March 13 Guidance are no longer necessary

12 because they were issued at the “height of the pandemic” cannot be justified by the record before

13 the agency. See supra 18-20. Defendants’ other conclusory justifications, including that the

14 rescission of the exemptions is “need[ed] to resume the carefully balanced protections

15 implemented by federal regulations” or that it “carefully balance[d] public health concerns”

16 without explanation, falls “short of the agency’s duty to explain why it deemed it necessary to

17 overrule its previous position.” Encino Motorcars, 136 S.Ct. at 2126.

18

B. Defendants Did Not Comply with Notice and Comment Procedures

19

Under the APA, the court must “hold unlawful and set aside agency action, findings, and

20 conclusions found to be . . . without observance of procedure required by law.” 5 U.S.C. § 21 706(2)(D). The APA requires that agencies comply with notice and comment procedures prior to 22 the issuance of a substantive rule. Id. § 553(b). Notice and comment requirements do not apply if 23 an agency is issuing an “interpretative rule[], general statement[] of policy, or rule[] of agency 24 organization, procedure, or practice,” or if the agency establishes that there was “good cause” for

25 it to find that “notice and public procedure thereon are impracticable, unnecessary, or contrary to

26 the public interest.” Id. § 553(b)(A),(B). Neither circumstance is present here.

27

First, the July 6 Directive is a substantive rule for which the APA’s procedural

28 requirements apply because it has “the force and effect of law.” Chrysler Corp. v. Brown, 441

20

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1 U.S. 281, 303 (1979) (quoting Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977)); accord. Perez

2 v. Mortg. Bankers Ass'n, 575 U.S. 92, 97 (2015). A substantive rule “narrowly limits

3 administrative discretion” or creates a “binding norm” so that “upon application one need only

4 determine whether a given case is within the rule's criterion.” Colwell v. HHS, 558 F.3d 1112,

5 1124 (9th Cir. 2009) (quoting Mada–Luna v. Fitzpatrick, 813 F.2d 1006, 1013-14 (9th Cir. 1987))

6 (emphasis omitted).

7

Here, the July 6 Directive was written in “mandatory terms” and imposes immediate

8 obligations on both international students and IHEs. Colwell, 558 F.3d at 1125. As discussed

9 supra, the Directive compels IHEs to imminently undertake administrative actions that were not

10 required per the March 13 Guidance, and have never been required in the past. See e.g. Van Cleve

11 Decl. ¶ 11; Rodriguez Decl. ¶ 18. The force and effect of the July 6 Directive will also be felt by

12 the international students, who now must either risk their health by attending in-person courses to

13 maintain their status, depart the U.S. to continue studies at online-only IHEs in their home

14 countries, or face deportation. There is no indication in the Directive that enforcing officials have

15 the discretion to determine whether a student “is within the rule’s criterion”—rather, the Directive

16 is clear that students cannot maintain their status if they cannot comply with these requirements.

17 Colwell, 558 F.3d at 1124 (quoting Mada-Luna, 813 F.2d at 1014). Tellingly, Defendants’

18 themselves appear to appreciate the substantive nature of the July 6 Directive, stating that they

19 would be publishing its requirements in a forthcoming, but yet to be issued, Temporary Final

20 Rule in the federal register, though this also will not be subject to notice and comment before

21 taking effect. See RJN Ex. 2.

22

Second, Defendants have not established—nor even articulated—that there is good cause to

23 circumvent rulemaking procedures. In order for the good cause exception to apply, the agency

24 must “incorporate[] the finding and a brief statement of reasons therefore in the rules issued.” 5

25 U.S.C. § 553(b)(A),(B). The July 6 Directive contains no such statement, and that in itself renders

26 the exception inapplicable. Even if Defendants had included this statement, Defendants cannot

27 “overcome [the] high bar if it seeks to invoke the good cause exception to bypass the notice and

28 comment requirement,” because they would face no harm if the March 13 Guidance remained in 21
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1 place during a notice and comment period. United States v. Valverde, 628 F.3d 1159, 1164 (9th

2 Cir. 2010); Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (the exception only

3 applies when “delay would do real harm.”) (internal quotations omitted). There is no exigency

4 requiring students to imminently attend in-person courses or depart the U.S while the pandemic

5 reaches levels unseen when the March 13 directive was issued. In the meantime, notice and

6 comment would have given IHEs, students, faculty, and staff, the opportunity to weigh-in on an

7 action that has profound health, educational, and financial impacts.

8 II. PLAINTIFF SATISFIES THE REMAINING FACTORS FOR A PRELIMINARY INUNCTION

9

A. Plaintiff Will Suffer Irreparable Harm

10

The July 6 Directive will have an immediate and detrimental impact on California IHEs’

11 missions and commitment to serving all student populations, and their limited financial resources

12 at a time they are experiencing unprecedented disruptions as a result of the COVID-19 pandemic.

13 The State has a strong interest in the well-being of its students, who are undeniably harmed by the

14 rescission. See Washington v. Trump, 847 F.3d 1151, 1159, 1169 (9th Cir. 2017) (states suffered

15 irreparable injuries due, in part, to injuries to university students stemming from a ban restricting

16 foreign nationals from seven countries from entering the United States).

17

As discussed supra, Defendants’ actions threaten international students’ ability to

18 continue their education, sometimes when they are just units away from graduation, which has

19 life-altering personal and professional consequences from which are difficult to recover. See e.g.,

20 Wrynn Decl. ¶ 20; Winner Decl. ¶¶ 10-11, 15. This “loss of opportunity to pursue one’s chosen

21 profession constitutes irreparable harm.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 978 (9th

22 Cir. 2017). The emotional and psychological injuries to students grappling with the sudden and

23 unexpected threat to their visa status and professional future, also constitute irreparable harm.

24 Rodriguez Decl. ¶ 27; Winner Decl. ¶ 15.; see Chalk v. U.S. Dist. Court Cent. Dist. of Cal., 840

25 F.2d 701, 710 (9th Cir. 1988); Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1192 (N.D. Cal. 2015).

26

While the majority of California IHEs plan to offer a small portion of in-person courses

27 this fall, these courses likely are not numerous enough to meet the in-person enrollment

28

22

Pl’s Notice of Mot. and Mot. for Prelim. Inj.; MPA in Supp. Thereof (4:20-cv-04592-JST)

Case 4:20-cv-04592-JST Document 12 Filed 07/13/20 Page 28 of 31

1 requirements of all international students, and the plans to offering limited in-person planning did

2 not account for the unexpected July 6 directive. See e.g., Wrynn Decl. ¶ 21; Hetts ¶ 16-17. The

3 loss of these students would impair Plaintiff’s investment in its international students and the

4 academic and research missions of the IHEs, including their mission to enrich their student bodies

5 with a diversity of perspectives—injuries which are irreparable. See e.g., Wrynn Decl. ¶ 23; Hetts

6 Decl. ¶¶ 8, 23; see also Washington, 847 F.3d at 1159, 1168-69 (injuries to “teaching and

7 research missions” of universities constituted substantial and irreparable injuries); Regents of the

8 Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1046 (N.D. Cal. 2018), rev’d in part on unrelated

9 grounds, Regents, 140 S. Ct. 1891 (2020 (university and entity plaintiffs “demonstrated that they

10 face irreparable harm as they begin to lose valuable students . . . in whom they have invested” and

11 harm to their “organization interests” from DACA rescission).

12

Additionally, injuries to “sovereign interests and public policies” are irreparable. Kansas

13 v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001). The California Legislature established

14 policies designed to make public higher education systems accessible to international students.

15 See, e.g., Cal. Educ. Code § 66015.7(a) (all IHEs in California are encouraged to

16 “develop…programs that support…the exchange of Californians and international students and

17 scholars”). California has created programs to provide specialized support and services to its

18 international students, reflecting the commitment to provide a welcoming environment for those

19 individuals. See, e.g., id. § 66015.7; see also, Vurdien Decl. ¶ 8 Hope Decl. ¶ 8. Those

20 investments are undermined if current international students cannot continue their education, or

21 prospective students are dissuaded from applying or attending due to the July 6 Directive.

22

In order to avoid the irreparable harm caused by losing their international students,

23 California IHEs would have to add additional in-person classes which come with the cataclysmic

24 risk of COVID-19 exposure, which would also irreparably harm the State. Adams Decl. ¶ 11;

25 Watt Decl. ¶ 23; State v. Bureau of Land Mgmt., 286 F. Supp. 3d 1054, 1074 (N.D. Cal. 2018)

26 (finding irreparable harm from agency rule that “will have substantial detrimental effects on

27 public health”). Whatever choice California IHEs make, they will be harmed. See Am. Trucking

28 23
Pl’s Notice of Mot. and Mot. for Prelim. Inj.; MPA in Supp. Thereof (4:20-cv-04592-JST)

Case 4:20-cv-04592-JST Document 12 Filed 07/13/20 Page 29 of 31

1 Ass’n v. City of Los Angeles, 559 F.3d 1046, 1057-58 (9th Cir. 2009) (forcing a Hobson’s choice

2 on a party is irreparable harm).

3

The decisions made in the next few weeks by international students and California IHEs

4 will have irreparable consequences on their campus communities, including the immediate loss of

5 valued students and/or the public health risk of exposure to COVID-19. In this situation, “[a]

6 delay, even if only a few months, pending trial represents precious, productive time irretrievably

7 lost.” Chalk, 840 F.2d at 710.

8

B. The Public Interest Weighs Heavily in Favor of Provisional Relief

9

The final two Winter factors – balance of the equities and the public interest – merge where

10 the government is a party. Nken v. Holder, 556 U.S. 418, 435 (2009). In assessing these factors,

11 courts consider the impacts of the injunction on nonparties as well. See League of Wilderness

12 Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014).

13 The public interest in curbing the COVID-19 pandemic weighs overwhelmingly in favor of an

14 injunction here. As discussed supra, the COVID-19 pandemic is worsening daily in the U.S., 15 including in California. The July 6 Directive threatens mass exposure to COVID-19 by

16 compelling IHEs to expand in-person learning, and forcing students to attend courses in-person or

17 travel to their home countries. See e.g., Watt Decl. ¶ 24; Kodur Decl. ¶ 24; Hope Decl. ¶ 13; 18 Miner Decl. ¶ 16; Rodriguez Decl. ¶ 21. Preventing the illness, or death, of an innumerable

19 amount of people in the State, nation, and worldwide is in the public interest.

20

Supporting students’ education is also in the public interest. Meyer v. Nebraska, 262 U.S.

21 390, 400 (1923) (“The American people have always regarded education and acquisition of

22 knowledge as matters of supreme importance which should be diligently promoted.”). Many

23 international students invested years in their educations in the U.S., and the July 6 Directive

24 deprives them of the opportunity to complete their studies. See e.g., Winner Decl. ¶¶ 11, 15; 25 Kodur Decl. ¶13, The loss of international students’ invaluable global perspective will reduce the

26 quality of all students’ education. See e.g., Rodriguez Decl. ¶ 10; Hope Decl. ¶ 8; Knox Decl. ¶ 27 18. Fiscally, the loss of tuition from their disenrollment forces IHEs to make difficult choices

28 24
Pl’s Notice of Mot. and Mot. for Prelim. Inj.; MPA in Supp. Thereof (4:20-cv-04592-JST)

Case 4:20-cv-04592-JST Document 12 Filed 07/13/20 Page 30 of 31

1 about courses and student services to cut for all students. See e.g., Wells Decl. ¶ 9; Hetts Decl. ¶

2 21.

3

The public interest is further served by preserving the status quo. Chalk., 840 F.2d at 704.

4 The March 13 Guidance is the status quo, i.e., “the last uncontested status that preceded the

5 parties’ controversy.” Dep’t of Parks & Recreation for State of Cal. v. Bazaar Del Mundo Inc.,

6 448 F. 3d 1118, 1124 (9th Cir. 2006). Nearly 24 CSUs and 114 community colleges prepared for

7 predominantly online instruction in reliance of that March 13 Guidance. See e.g., Wrynn Decl. ¶

8 11; Rodriguez Decl. ¶ 16. And countless students relied on the March 13 Guidance in making

9 their plans for the fall semester. See e.g., Rodriguez Decl. ¶ 25; Wrynn Decl. ¶ 19.

10

While the July 6 Directive has already created chaos and inflicted harm on international

11 students and IHEs alike, Defendants are in “no way harmed by issuance of a preliminary

12 injunction which prevents the [federal government] from enforcing restrictions likely to be found

13 [unlawful].” See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (internal

14 citations omitted). Here, an injunction prevents Defendants from enforcing an action that violates

15 the APA. California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (“The public interest is served by

16 compliance with the APA . . .”). An injunction would only require Defendants to permit the same

17 exemptions for the “duration of the emergency” that it provided in the March 13 Guidance.

18 Preventing Defendants from enforcing their unlawful and arbitrary rescission of those exemptions

19 in the middle of an escalating pandemic weighs sharply in favor of provisional relief.

20

CONCLUSION

21

For the foregoing reasons, Plaintiff requests this Court grant its Motion.

22

23

24

25

26

27

28 25
Pl’s Notice of Mot. and Mot. for Prelim. Inj.; MPA in Supp. Thereof (4:20-cv-04592-JST)

Case 4:20-cv-04592-JST Document 12 Filed 07/13/20 Page 31 of 31

1 Dated: July 13, 2020

Respectfully Submitted,

2

XAVIER BECERRA

3

Attorney General of California MICHAEL L. NEWMAN

4

Senior Assistant Attorney General

DOMONIQUE C. ALCARAZ

5

JASLEEN SINGH

6

LEE I. SHERMAN

7

/s/ Marissa Malouff

8

MARISSA MALOUFF

Deputy Attorneys General

9

Attorneys for Plaintiff

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 26
Pl’s Notice of Mot. and Mot. for Prelim. Inj.; MPA in Supp. Thereof (4:20-cv-04592-JST)

 Case 4:20-cv-04592-JST Document 12-1 Filed 07/13/20 Page 1 of 3

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 Case 4:20-cv-04592-JST Document 14 Filed 07/14/20 Page 1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER

A Motion for Administrative Relief to Consider Whether Cases Should be Related (Civil L.R. 3-12) has been filed. All parties have stipulated that the below cases are related. As the judge assigned to case
20-cv-04592-JST State of California v. U.S. Department of Homeland Security
I find that the more recently filed case that I have initialed below is related to the case assigned to me, and such case shall be reassigned to me.

Case

Title

20-cv-04621- The Regents of the University of California v. U.S.

JSW

Department of Homeland Security

Related Not Related
JST

ORDER

The parties are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.

Dated: July 14, 2020

By: Jon S. Tigar United States District Judge

 
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State of California v. DHS, et al.FY-67-RLQW6WDWXV5HSRUW Regents of the University of California v. DHS, et al.FY-67-RLQW6WDWXV5HSRUW
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Case 4:20-cv-04592-JST Document 23 Filed 09/04/20 Page 3 of 5 

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State of California v. DHS, et al.FY-67-RLQW6WDWXV5HSRUW Regents of the University of California v. DHS, et al.FY-67-RLQW6WDWXV5HSRUW
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