1/14/2021

Query Reports

CM/ECF - California Central District
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ACCO,(KESx),CLOSED,DISCOVERY,MANADR

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:20-cv-01220-CJC-KES

Z.W. et al v. U.S. Department of Homeland Security et al Assigned to: Judge Cormac J. Carney Referred to: Magistrate Judge Karen E. Scott Cause: 05:551 Administrative Procedure Act

Date Filed: 07/10/2020 Date Terminated: 10/01/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff Z W.

represented by David R Carpenter Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013 213-896-6000 Fax: 213-896-6600 Email: drcarpenter@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Evan Caminker University of Michigan Law School 701 South State Street Ann Arbor, MI 48109-1215 734-763-5221 Fax: 734-647-4505 Email: caminker@umich.edu PRO HAC VICE ATTORNEY TO BE NOTICED

Lisa Gilford Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013 213-896-6044 Fax: 213-896-6600 Email: lgilford@sidley.com ATTORNEY TO BE NOTICED

Mark E Haddad University of Southern California USC Gould School of Law 699 Exposition Boulevard Los Angeles, CA 90089-0071

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Plaintiff C. Y.

CM/ECF - California Central District
213-675-5957 Email: mhaddad@law.usc.edu ATTORNEY TO BE NOTICED
Mark D Rosenbaum Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 213-385-2977 Fax: 213-385-9089 Email: mrosenbaum@publiccounsel.org ATTORNEY TO BE NOTICED
Sheri Porath Rockwell Sidley Austin LLP 1999 Avenue of the Stars 17th Floor Century City, CA 90067 310-595-9500 Fax: 310-505-9501 Email: sheri.rockwell@sidley.com ATTORNEY TO BE NOTICED
Stacy R Horth-Neubert Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013 213-896-6018 Fax: 213-896-6600 Email: shorthneubert@sidley.com ATTORNEY TO BE NOTICED
represented by David R Carpenter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Evan Caminker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa Gilford (See above for address) ATTORNEY TO BE NOTICED
Mark E Haddad (See above for address) ATTORNEY TO BE NOTICED
Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff X. Y.
Plaintiff M. X.

CM/ECF - California Central District
Sheri Porath Rockwell (See above for address) ATTORNEY TO BE NOTICED
Stacy R Horth-Neubert (See above for address) ATTORNEY TO BE NOTICED
represented by David R Carpenter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Evan Caminker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa Gilford (See above for address) ATTORNEY TO BE NOTICED
Mark E Haddad (See above for address) ATTORNEY TO BE NOTICED
Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Sheri Porath Rockwell (See above for address) ATTORNEY TO BE NOTICED
Stacy R Horth-Neubert (See above for address) ATTORNEY TO BE NOTICED
represented by David R Carpenter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Evan Caminker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa Gilford (See above for address) ATTORNEY TO BE NOTICED

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Mark E Haddad (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Sheri Porath Rockwell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Z. L.

Stacy R Horth-Neubert (See above for address) ATTORNEY TO BE NOTICED
represented by David R Carpenter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Evan Caminker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lisa Gilford (See above for address) ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Sheri Porath Rockwell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff W R.

Stacy R Horth-Neubert (See above for address) ATTORNEY TO BE NOTICED
represented by David R Carpenter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Evan Caminker

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(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lisa Gilford (See above for address) ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Sheri Porath Rockwell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff A. G.

Stacy R Horth-Neubert (See above for address) ATTORNEY TO BE NOTICED
represented by David R Carpenter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Evan Caminker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lisa Gilford (See above for address) ATTORNEY TO BE NOTICED

Mark E Haddad (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Sheri Porath Rockwell (See above for address) ATTORNEY TO BE NOTICED

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?385751501602562-L_1_0-1

Stacy R Horth-Neubert (See above for address) ATTORNEY TO BE NOTICED
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Plaintiff DOES 1 through 50
V. Defendant U.S. Department of Homeland Security
Defendant U.S. Immigration and Customs Enforcement

CM/ECF - California Central District
represented by David R Carpenter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Gilford (See above for address) ATTORNEY TO BE NOTICED
Mark E Haddad (See above for address) ATTORNEY TO BE NOTICED
Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Sheri Porath Rockwell (See above for address) ATTORNEY TO BE NOTICED
Stacy R Horth-Neubert (See above for address) ATTORNEY TO BE NOTICED
represented by Jasmin Yang AUSA - US Attorneys Ofﬁce 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-8827 Fax: 213-894-7819 Email: jasmin.yang@usdoj.gov ATTORNEY TO BE NOTICED
Paul Bartholomew Green AUSA - Ofﬁce of US Attorney 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-0805 Fax: 213-894-7819 Email: Paul.Green@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jasmin Yang (See above for address) ATTORNEY TO BE NOTICED

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Defendant Matthew Albence Acting Director, U.S. Immigration and Customs Enforcement
Defendant Chad R Wolf Acting Secretary, U.S. Department of Homeland Security

CM/ECF - California Central District
Paul Bartholomew Green (See above for address) ATTORNEY TO BE NOTICED
represented by Jasmin Yang (See above for address) ATTORNEY TO BE NOTICED
Paul Bartholomew Green (See above for address) ATTORNEY TO BE NOTICED
represented by Jasmin Yang (See above for address) ATTORNEY TO BE NOTICED
Paul Bartholomew Green (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

07/10/2020

1 COMPLAINT Receipt No: ACACDC-27161598 - Fee: $400, ﬁled by Plaintiffs C. Y., A. G., X. Y., Z. L., DOES 1 through 50, M. X., W R., Z W.. (Attorney David R Carpenter added to party DOES 1 through 50(pty:pla), Attorney David R Carpenter added to party A. G.(pty:pla), Attorney David R Carpenter added to party Z. L.(pty:pla), Attorney David R Carpenter added to party W R.(pty:pla), Attorney David R Carpenter added to party Z W.(pty:pla), Attorney David R Carpenter added to party M. X. (pty:pla), Attorney David R Carpenter added to party C. Y.(pty:pla), Attorney David R Carpenter added to party X. Y.(pty:pla))(Carpenter, David) (Entered: 07/10/2020)

07/10/2020

2 CIVIL COVER SHEET ﬁled by Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/10/2020)

07/10/2020

3 * REQUEST TO ISSUE SUMMONS * ﬁled as PROCESS RECEIPT AND RETURN (USM-285) of summons unexecuted re Complaint (Attorney Civil Case Opening),, 1 for U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Immigration and Customs Enforcement Matthew T. Albence, Acting Enforcement Director, Chad R Wolf. , Acting Secretary, U.S. Department of Homeland Security (Carpenter, David) Modiﬁed on 7/10/2020 (esa). (Entered: 07/10/2020)

07/10/2020

4 NOTICE of Interested Parties ﬁled by Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y., (Carpenter, David) (Entered: 07/10/2020)

07/10/2020

5 NOTICE OF ASSIGNMENT to District Judge Cormac J. Carney and Magistrate Judge Karen E. Scott. (esa) (Entered: 07/10/2020)

07/10/2020

6 NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM ﬁled. (esa) (Entered: 07/10/2020)

07/10/2020

7 60 DAY Summons issued re Complaint 1 as to defendants Matthew Albence, Chad R Wolf. (esa) (Entered: 07/10/2020)

07/10/2020

8 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Evan

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07/10/2020 07/10/2020 07/10/2020 07/13/2020
07/13/2020 07/13/2020 07/13/2020 07/14/2020 07/14/2020

CM/ECF - California Central District
Caminker. A document recently ﬁled in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not ﬁled an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel ﬁle an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (esa) (Entered: 07/10/2020)
9 EX PARTE APPLICATION for Order for Leave to Proceed Under Fictitious Names and for Leave to File Under Seal Portions of the Declaration of Stacy Horth-Neubert ﬁled by plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Horth-Neubert, Stacy) (Entered: 07/10/2020)
10 DECLARATION of William Lacker re EX PARTE APPLICATION for Order for Leave to Proceed Under Fictitious Names and for Leave to File Under Seal Portions of the Declaration of Stacy Horth-Neubert 9 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Horth-Neubert, Stacy) (Entered: 07/10/2020)
11 DECLARATION of Stacy Horth-Neubert re EX PARTE APPLICATION for Order for Leave to Proceed Under Fictitious Names and for Leave to File Under Seal Portions of the Declaration of Stacy Horth-Neubert 9 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Horth-Neubert, Stacy) (Entered: 07/10/2020)
12 Notice of Appearance or Withdrawal of Counsel: for attorney Sheri Porath Rockwell counsel for Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y.. Adding Sheri Porath Rockwell as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiff Sheri Porath Rockwell. (Attorney Sheri Porath Rockwell added to party DOES 1 through 50(pty:pla), Attorney Sheri Porath Rockwell added to party A. G.(pty:pla), Attorney Sheri Porath Rockwell added to party Z. L.(pty:pla), Attorney Sheri Porath Rockwell added to party W R.(pty:pla), Attorney Sheri Porath Rockwell added to party Z W.(pty:pla), Attorney Sheri Porath Rockwell added to party M. X. (pty:pla), Attorney Sheri Porath Rockwell added to party C. Y. (pty:pla))(Rockwell, Sheri) (Entered: 07/13/2020)
13 STIPULATION to Withdraw Motion EX PARTE APPLICATION for Order for Leave to Proceed Under Fictitious Names and for Leave to File Under Seal Portions of the Declaration of Stacy Horth-Neubert 9 ﬁled by plaintiff A. G., Z. L., W R., Z W., M. X., C. Y., X. Y..(Horth-Neubert, Stacy) (Entered: 07/13/2020)
14 EX PARTE APPLICATION to ﬁle document Declaration of Stacy Horth-Neubert under seal ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Attachments: # 1 Declaration of William Lacker, # 2 Declaration of Stacy Horth-Neubert, # 3 Proposed Order to Proceed Under Fictitious Names, # 4 Proposed Order to Documents Under Seal)(Horth-Neubert, Stacy) (Entered: 07/13/2020)
15 SEALED DECLARATION IN SUPPORT OF EX PARTE APPLICATION to ﬁle document Declaration of Stacy Horth-Neubert under seal 14 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y..(Horth-Neubert, Stacy) (Entered: 07/13/2020)
16 APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP ﬁled by Plaintiffs A. G., Z. L., W R., Z W.. (Carpenter, David) (Entered: 07/14/2020)
17 NOTICE OF LODGING ﬁled Proposed Orders re APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 (Attachments: # 1

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Proposed Order Granting Plaintiffs' Application For Temporary Restraining Order, # 2 Proposed Order To Show Cause As to Why A Preliminary Injunction Should Not Issue) (Carpenter, David) (Entered: 07/14/2020)

07/14/2020

18 [EX PARTE APPLICATION TO SET STATUS CONFERENCE REGARDING PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER, ﬁled as] EX PARTE APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Attachments: # 1 Proposed Order Granting Plaintiffs' Ex Parte Application For Status Conference Re Plaintiffs' Application for Temporary Restraining Order) (Carpenter, David) Modiﬁed on 7/15/2020 (twdb). (Entered: 07/14/2020)

07/14/2020 07/14/2020

19 NOTICE ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. of Pendency of Other Actions or Proceedings (Carpenter, David) (Entered: 07/14/2020)
20 DECLARATION of Sheri Porath Rockwell In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Attachments: # 1 Exhibit A to Rockwell Declaration, # 2 Exhibit B to Rockwell Declaration, # 3 Exhibit C to Rockwell Declaration, # 4 Exhibit D to Rockwell Declaration)(Carpenter, David) (Entered: 07/14/2020)

07/14/2020

21 DECLARATION of Z.W. In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)

07/14/2020 07/14/2020 07/14/2020 07/14/2020 07/14/2020 07/14/2020 07/14/2020 07/14/2020 07/14/2020

22 DECLARATION of C.Y. In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
23 DECLARATION of X.Y. In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
24 DECLARATION of A.G. In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
25 DECLARATION of M.X. In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
26 DECLARATION of Z.L. In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
27 DECLARATION of W.R. In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
28 DECLARATION of L. Song Richardson In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
29 DECLARATION of Dr. Ranit Mishori In Support of APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
30 DECLARATION of Sarah Zearfoss In Support of APPLICATION for Temporary

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07/14/2020
07/15/2020 07/16/2020
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CM/ECF - California Central District
Restraining Order as to Defendants July 6 Guidance Re SEVP 16 ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Carpenter, David) (Entered: 07/14/2020)
31 PROOF OF SERVICE ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y., re Declaration (Motion related) 28 , Declaration (Motion related), 20 , Declaration (Motion related) 24 , Declaration (Motion related) 23 , Declaration (Motion related) 25 , Declaration (Motion related) 27 , Declaration (Motion related) 26 , Declaration (Motion related) 22 , Declaration (Motion related) 21 , Notice (Other) 19 , Notice of Lodging, 17 , Declaration (Motion related) 29 , EX PARTE APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 18 , Declaration (Motion related) 30 , APPLICATION for Temporary Restraining Order as to Defendants July 6 Guidance Re SEVP 16 served on July 14, 2020. (Carpenter, David) (Entered: 07/14/2020)
32 MINUTES (IN CHAMBERS) by Judge Cormac J. Carney: ORDER DENYING PLAINTIFFS EX PARTE APPLICATION TO SET STATUS CONFERENCE [Dkt. 18 . The parties shall submit their proposed brieﬁng schedule by Friday, July 17, 2020. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 07/15/2020)
33 Notice of Appearance or Withdrawal of Counsel: for attorney Paul Bartholomew Green counsel for Defendants Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad R Wolf. Adding Paul Bartholomew Green as counsel of record for U.S. Department of Homeland Security; U.S. Immigration and Customs Enforcement; Chad R. Wolf; and Matthew Albence for the reason indicated in the G-123 Notice. Filed by defendants U.S. Department of Homeland Security; U.S. Immigration and Customs Enforcement; Chad R. Wolf; and Matthew Albence. (Attorney Paul Bartholomew Green added to party Matthew Albence (pty:dft), Attorney Paul Bartholomew Green added to party U.S. Department of Homeland Security(pty:dft), Attorney Paul Bartholomew Green added to party U.S. Immigration and Customs Enforcement(pty:dft), Attorney Paul Bartholomew Green added to party Chad R Wolf(pty:dft))(Green, Paul) (Entered: 07/16/2020)
34 APPLICATION of Non-Resident Attorney Evan Caminker to Appear Pro Hac Vice on behalf of Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y. (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27239699) ﬁled by Plaintiff DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Attachments: # 1 Proposed Order) (Attorney Sheri Porath Rockwell added to party X. Y.(pty:pla)) (Rockwell, Sheri) (Entered: 07/16/2020)
35 STIPULATION for Hearing re Stipulation Re Brieﬁng Schedule on Plaintiffs' Application for Temporary Restraining Order ﬁled by Plaintiff DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y..(Rockwell, Sheri) (Entered: 07/16/2020)
36 Amended APPLICATION for Temporary Restraining Order ﬁled by Plaintiff DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Rockwell, Sheri) (Entered: 07/16/2020)
37 DECLARATION of David R. Carpenter In Support of Plaintiffs' Application for Temporary Restraining Order ﬁled by Plaintiffs A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Rockwell, Sheri) (Entered: 07/16/2020)
40 NOTICE of Deﬁciency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Evan Caminker to Appear Pro Hac Vice on behalf of Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y. (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27239699) 34 . The following error(s) was/were found: Local Rule 83-2.1.3.3(d) Certiﬁcate of Good Standing not attached for every state court listed to which the applicant has been

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admitted. Other error(s) with document(s): Certiﬁcates of Good Standing have been required since 9/08. See LR 83-2.1.3.3. See Instructions for Applicants (1) (G-64). (Thrasher, Lupe) (Entered: 07/19/2020)

07/17/2020 38

PROOF OF SERVICE Executed by Plaintiff C. Y., A. G., X. Y., Z. L., DOES 1 through 50, M. X., W R., Z W., upon Defendant All Defendants. Service of the Summons and Complaint were executed upon the United States Attorneys Ofﬁce by delivering a copy to David Hill. The Attorney Generals Ofﬁce of the United States was NOT served. Executed upon the ofﬁcer agency or corporation by delivering a copy to DHS Ofﬁce of General Counsel. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certiﬁed mail return receipt NOT attached. Original Summons NOT returned. Proof of Service of Summons & Complaint (Rockwell, Sheri) (Entered: 07/17/2020)

07/17/2020

39 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Amended APPLICATION for Temporary Restraining Order 36 , Stipulation for Hearing 35 . The following error(s) was/were found: Proposed Document was not submitted as separate attachment. In response to this notice, the Court may: (1) order an amended or correct document to be ﬁled; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (twdb) (Entered: 07/17/2020)

07/20/2020

41 DECLARATION of Sheri Porath Rockwell re APPLICATION of Non-Resident Attorney Evan Caminker to Appear Pro Hac Vice on behalf of Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y. (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27239699) 34 Declaration of Sheri Porath Rockwell Attaching Exhibit in Support of Application of Non-Resident Attorney Evan Caminker to Appear in a Speciﬁc Case Pro Hac Vice ﬁled by Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Rockwell, Sheri) (Entered: 07/20/2020)

07/20/2020 42 MINUTE ORDER IN CHAMBERS by Judge Cormac J. Carney: ORDER SETTING BRIEFING SCHEDULE OR PLAINTIFFS' AMENDED APPLICATION FOR TEMPORARY RESTRAINING ORDER [Dkt. 36 ]. Opposition due 7/23/20. Reply due 7/30/20. After the brieﬁng has been completed, the Court will schedule a hearing if necessary. (twdb) (Entered: 07/20/2020)

07/20/2020

43 ORDER by Judge Cormac J. Carney: Granting 34 Non-Resident Attorney Evan H. Caminker APPLICATION to Appear Pro Hac Vice on behalf of Z.W., C.Y., X.Y., A.G., M.X., Z.I., and W.R., Plaintiffs, designating Sheri Porath Rockwell as local counsel. (twdb) (Entered: 07/21/2020)

07/23/2020

44 Notice of Appearance or Withdrawal of Counsel: for attorney Jasmin Yang counsel for Defendants Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad R Wolf. Adding Jasmin Yang as counsel of record for United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad R. Wolf, and Matthew Albence for the reason indicated in the G-123 Notice. Filed by Defendants United States Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf, Matthew Albence. (Attorney Jasmin Yang added to party Matthew Albence (pty:dft), Attorney Jasmin Yang added to party U.S. Department of Homeland Security(pty:dft), Attorney Jasmin Yang added to party U.S. Immigration and Customs Enforcement(pty:dft), Attorney Jasmin Yang added to party Chad R Wolf(pty:dft))(Yang, Jasmin) (Entered: 07/23/2020)

07/23/2020 45 NOTICE OF MOTION AND MOTION to Dismiss Case and OPPOSITION to Plaintiffs' Application for a Temporary Restraining Order ﬁled by Defendants Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs

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07/30/2020 08/03/2020
08/14/2020 08/28/2020 09/02/2020 09/03/2020 09/10/2020

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Enforcement, Chad R Wolf. Motion set for hearing on 8/24/2020 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Proposed Warrant) (Green, Paul) (Entered: 07/23/2020)
46 NOTICE of Supplemental Authority in Support of Motion to Dismiss Plaintiffs' Complaint and in Opposition to Plaintiffs' Application for a Temporary Restraining Order ﬁled by defendants Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad R Wolf. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Green, Paul) (Entered: 07/27/2020)
47 PROOF OF SERVICE Executed by Plaintiff C. Y., A. G., X. Y., Z. L., DOES 1 through 50, M. X., W R., Z W., upon Defendant All Defendants. Service of the Summons and Complaint were Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certiﬁed mail return receipt NOT attached. Original Summons NOT returned. Proof of Service on US Attorney General & US Attorney's Ofﬁce - Central District of California (Rockwell, Sheri) (Entered: 07/29/2020)
48 Opposition Motion to Dismiss re: NOTICE OF MOTION AND MOTION to Dismiss Case and OPPOSITION to Plaintiffs' Application for a Temporary Restraining Order 45 Plaintiffs' Opposition to Motion to Dismiss and Response to Reapplication for Temporary Restraining Order ﬁled by Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Rockwell, Sheri) (Entered: 07/30/2020)
49 MINUTES (IN CHAMBERS) by Judge Cormac J. Carney: ORDER DENYING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER [Dkt. 16 AND AMENDED APPLICATION FOR TEMPORARY RESTRAINING ORDER [Dkt. 36 AND DENYING WITHOUT PREJUDICE DEFENDANTS MOTION TO DISMISS [Dkt. 45 . Plaintiffs are hereby ORDERED to ﬁle an amended pleading that sets forth the relief they continue to seek by August 14, 2020. The hearing on Defendants motion set for August 24, 2020 is hereby vacated and taken off calendar. (twdb) (Entered: 08/04/2020)
50 First AMENDED COMPLAINT against Defendant All Defendants amending Complaint (Attorney Civil Case Opening),, 1 , ﬁled by Plaintiff C. Y., A. G., X. Y., Z. L., DOES 1 through 50, M. X., W R., Z W.(Rockwell, Sheri) (Entered: 08/14/2020)
51 NOTICE OF MOTION AND MOTION to Dismiss Case ﬁled by Defendants Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad R Wolf. Motion set for hearing on 9/28/2020 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Proposed Order) (Green, Paul) (Entered: 08/28/2020)
52 Joint STIPULATION for Extension of Time to File : Joint Stipulation Extending Brieﬁng Schedule and Continuing Hearing on Defendants' Motion to Dismiss; Declaration of David R. Carpenter ﬁled by Plaintiff DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Attachments: # 1 Proposed Order)(Rockwell, Sheri) (Entered: 09/02/2020)
53 ORDER EXTENDING BRIEFING SCHEDULE AND CONTINUING HEARING ON DEFENDANTS' MOTION TO DISMISS 52 by Judge Cormac J. Carney. Plaintiffs' deadline to ﬁle any opposition to the Motion shall be moved to Thursday, September 10, 2020; Defendants' deadline to ﬁle any reply papers in support of the Motion shall bemoved to Monday, September 21, 2020; The hearing on the motion shall be continued to Monday, October 5, 2020 at 1:30 p.m. (iv) (Entered: 09/04/2020)
54 Opposition re: NOTICE OF MOTION AND MOTION to Dismiss Case 51 Plaintiffs'

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09/21/2020 10/01/2020

CM/ECF - California Central District
Opposition to Motion to Dismiss Amended Complaint ﬁled by Plaintiffs DOES 1 through 50, A. G., Z. L., W R., Z W., M. X., C. Y., X. Y.. (Rockwell, Sheri) (Entered: 09/10/2020)
55 REPLY in support of NOTICE OF MOTION AND MOTION to Dismiss Case 51 ﬁled by Defendants Matthew Albence, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad R Wolf. (Green, Paul) (Entered: 09/21/2020)
56 ORDER GRANTING DEFENDANTS MOTION TO DISMISS 14 by Judge Cormac J. Carney : The Court ﬁnds that Plaintiffs claims are moot, and the Governments motion is GRANTED.( MD JS-6. Case Terminated ) (lc) (Entered: 10/01/2020)

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 Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 1 of 35 Page ID #:1

1 Mark D. Rosenbaum (SBN 59940) mrosenbaum@publiccounsel.org
2 PUBLIC COUNSEL 610 South Ardmore Avenue
3 Los Angeles, CA 90005 Telephone: (213) 385-2977
4 Lisa M. Gilford (SBN 171641)
5 lgilford@sidley.com David R. Carpenter (SBN 230299)
6 drcarpenter@sidley.com Stacy Horth-Neubert (SBN 214565)
7 shorthneubert@sidley.com SIDLEY AUSTIN LLP
8 555 West Fifth Street Los Angeles, CA 90013
9 Telephone: (213) 896 6044 Facsimile: (213) 896 6600
10 Additional Counsel Listed on Next Page
11 Attorneys for Plaintiffs
12 Z.W., C.Y, X.Y., A.G., M.X., Z.L., W.R., and DOES 1 through 50
13

14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16

SOUTHERN DIVISION AT SANTA ANA

17 Z.W., C.Y, X.Y., A.G., M.X., Z.L., W.R., Case No. 8:20-cv-01229

and DOES 1 through 50,

18

Assigned to:

Plaintiffs, 19

COMPLAINT FOR INJUNCTIVE

vs. 20

AND DECLARATORY RELIEF

U.S. DEPARTMENT OF HOMELAND 21 SECURITY; U.S. IMMIGRATION AND

CUSTOMS ENFORCEMENT; CHAD R. 22 WOLF, Acting Secretary, U.S. Department

of Homeland Security; MATTHEW 23 ALBENCE, Acting Director, U.S.

Immigration and Customs Enforcement, 24

Defendants. 25

26

27

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 2 of 35 Page ID #:2

1 Evan Caminker (pro hac vice forthcoming) caminker@umich.edu
2 Dean Emeritus and Branch Rickey Collegiate Professor of Law University of Michigan Law School*
3 701 South State Street, 3250 South Hall Ann Arbor, MI 48109-1215
4 Telephone: (734) 763-5221

5 Mark E. Haddad (SBN 205945) markhadd@usc.edu
6 USC Gould School of Law University of Southern California*
7 699 Exposition Blvd. Los Angeles, CA 90089
8 Telephone: (213) 675-5957

9 * University affiliation provided for identification purposes only
10

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 3 of 35 Page ID #:3

1

INTRODUCTION

2

1. Less than one month after the Supreme Court held that the Executive

3 Branch must “turn square corners” before taking an action that profoundly disrupts the

4 lives of hundreds of thousands of individuals, the Executive Branch has once again

5 acted recklessly and inexplicably to disrupt the lives of hundreds of thousands more.

6 On July 6, Immigration and Customs Enforcement (“ICE”) issued a press release

7 announcing that students at colleges and universities that are offering exclusively

8 online classes in the fall 2020 academic term because of the coronavirus pandemic

9 would be required to leave the United States. This politically motivated directive

10 upended the lives of foreign students who are lawfully present in this country and who

11 contribute immeasurably to the quality of education at the institutions they attend.

12 These students chose to come to the United States to pursue degrees in law, medicine,

13 engineering, and every other academic field. They wish to prepare themselves to lead

14 productive lives that serve and build community wherever they ultimately settle.

15 Access to our outstanding institutions of higher education is one of the greatest gifts

16 that the United States gives the world, and that gift is repaid many times over by the

17 contributions that foreign students make to the United States and to the world as a

18 whole by virtue of the learning they receive. Those contributions reflect their

19 intelligence, compassion, and hard work.

20

2. In the midst of the most dangerous pandemic of the last hundred years,

21 universities and graduate schools have reshaped their educational models to ensure the

22 quality, continuity and safety of their educational programs. Utilizing their educational

23 expertise and recognizing their paramount responsibility to the safety of the university

24 community and the community at large, leadership at these schools have reluctantly

25 accepted the judgments of our nation’s leading public health experts and CDC

26 guidelines and have instituted remote learning and teaching strategies and regimens. It

27 should go without saying that these decisions have not been easy. But it should also be

28

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 4 of 35 Page ID #:4

1 readily recognized that a university’s decision to go all or principally remote is one of

2 life and death. Universities are doing their part to flatten the curve and repel the

3 deadly coronavirus that thrives on crowded settings inside buildings, precisely the

4 circumstances of normal classroom teaching and university life. And until July 6,

5 universities were doing so in reasonable reliance on guidance that ICE itself had

6 provided in March 2020, and that promised a flexible approach of allowing students to

7 maintain their visas while schools attempted, in good faith and with timely notice to

8 ICE, to provide the best educational opportunities possible while fulfilling

9 indispensable obligations to preserve the health of their students and their

10 communities.

11

3. On July 6, ICE abruptly changed course 180 degrees, without explanation

12 or even acknowledgement. Its decision effectively punishes foreign students because

13 their universities have prioritized the health and safety of their academic and local

14 communities and of the nation by choosing to hold remote classes in the fall term.

15

4. The July 6 Guidelines offer no explanation whatsoever for the complete

16 reversal in policy. But the facts are that the President of the United States, beset by

17 falling poll numbers in a fast closing election year, has tweeted repeatedly that CDC

18 guidelines must be altered and schools must open in the fall no matter the incongruity

19 with fundamental public health principles and the sound, on-the-ground knowledge

20 and expertise of university officials as to the safest course for their students and

21 community. Indeed, on the day that the ICE message was issued, he tweeted that 22 “SCHOOLS MUST OPEN IN THE FALL!!!”1 The next day, Acting Deputy

23 Secretary of Homeland Security Ken Cuccinelli, responding to a question about the

24 July 6 Guidelines, explained the guidelines were “setting the rules . . . that will, again, 25 encourage schools to reopen.”2

26 1 Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM EDT),

27

https://twitter.com/realDonaldTrump/status/1280209946085339136?s=20. 2 Johe Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will 'Encourage Schools to

28 Reopen', The Hill (July 7, 2020),

4

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 5 of 35 Page ID #:5

1

5. ICE’s announcement concerning international students attending

2 institutions that did not offer in-person instruction, or who were not able to take the

3 in-person classes that were offered, is part and parcel of the President’s approach.

4 These guidelines, which adopt a one-size-fits-all approach to higher education, are

5 blunt. They do not reflect the intensely local nature of university decisions, nor do

6 they make exceptions for students at heightened risk from the novel coronavirus.

7 Instead, the guidelines are designed to force institutions of higher education to reopen

8 for the fall term, no matter the cost.

9

6. This life-threatening action makes foreign students pawns in a political

10 drama. Tragically, but unsurprisingly, ICE’s press release was not accompanied by

11 any of the safeguards the APA requires to insure “reasoned decision making” and

12 accountability: notice and comment, rational explanation for the attack on prudent and

13 grounded university decision making, and careful examination of the reliance interests

14 of the students who are suddenly confronted with life and death choices. The ICE

15 announcement makes no sense except as an irrational and cruel action designed to

16 advance objectives having nothing to do with public health, learning, and reasonable

17 immigration policy. The policy is indefensible, and the absence of any record or

18 explanation for its sudden imposition is not just proof of illegality – it is evidence that

19 no rational explanation exists.

20

7. The narratives of plaintiffs, all serious students pursuing meaningful

21 careers, illustrate the irrationality of the ICE announcement and describe the terrible

22 consequences of allowing it to take effect. Students required to come to campus and

23 expose themselves to the coronavirus cannot do so without risking both their health

24 and the health of others. Some students have preexisting conditions that heighten the

25 danger. But if they act in keeping with essential public health practices, maintaining

26 social distancing measures in enclosed spaces with strangers, they will be left asunder,

27

28

https://thehill.com/homenews/administration/506248-cuccinelli-says-rule-forcing-international-students-to-return-home.
5

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 6 of 35 Page ID #:6

1 many with literally no place to go because of international travel restrictions to their

2 home nations. They will jeopardize their immigration status and future education and

3 career prospects. Their education will come to a screeching halt. They will be placed

4 in financial calamity.

5

8. This lawsuit seeks the invalidation of the ICE guidelines upon the

6 bedrock principles underlying the APA: reasoned decision making, public notice and

7 hearing, and sensitive consideration of reasonable reliance interests. The government

8 has nothing to lose by giving orderly respect to these mandates; the foreign students,

9 their universities and communities, and those who stand by the rule of law, have

10 everything.

11

PARTIES

12

9. Plaintiff Z.W. is a 25 year-old Chinese national entering his second year

13 of study at University of California Irvine School of Law in Irvine, California. After

14 learning about UCI Law’s remote learning transition, he entered into a 13-month lease

15 for an apartment in Irvine with monthly rent of $1,730 and security deposit. He

16 entered into the lease with the expectation that he would be able to continue his

17 education through distanced, remote learning. Z.W. was preparing to apply for a CPT

18 visa so he could intern over the next, 2L summer to further his legal education. His

19 eligibility for the CPT visa, however, will be foreclosed if his F-1 visa is terminated.

20 Similar to all plaintiffs who are Chinese nationals, he is deeply concerned with the

21 financial costs associated with returning to China. He has paid a deposit for his

22 apartment out of pocket, and does not know how he will manage to pay for a return

23 flight to China, or the associated costs of China’s mandatory 14-day quarantine. His

24 education will also be essentially prematurely terminated or paused, because of

25 China’s prohibition on Google and VPN use, in addition to the 12 hour time

26 difference.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 7 of 35 Page ID #:7

1

10. Plaintiff C.Y. is a 27 year-old Chinese national entering her second year

2 of law school at UCI Law. She currently lives in Irvine, California where she moved

3 in 2019 to enroll in her first year of law school. When UCI Law switched to online

4 classes in March 2020 and SEVP issued the March 13 Guidance, C.Y. believed she

5 would be able to continue her studies in the United States regardless of how UCI Law

6 choose to offer classes in the fall. So she leased on-campus housing through spring

7 2021, and pre-paid rent at a total cost of $10,380. If she were to have to return to

8 China, she would not be able to recover that rent. Additionally, it would be

9 prohibitively expensive for C. Y. to return to China, as the price of airline ticket from

10 Los Angeles to China has increased several fold since the start of the pandemic and

11 could easily exceed $10,000. Her family cannot afford to pay the price of her plan

12 ticket back to China, nor can she. It will also be cost-prohibitive to pay for the hotel

13 room in which she would be required to self-quarantine for 14 days after returning to

14 China. If she were forced to return to China in the coming months, C. Y. also fears she

15 will be exposed to the novel coronavirus on the flight to China and become infected,

16 as she heard happened to more than a dozen people on a recent international flight to

17 China. Once in China, C. Y. would not be able to continue to take law school classes

18 due to, among other things, the unavailability in China of tools that UCI Law uses to

19 facilitate online learning, including Google products (e.g., Google Drive) and secure

20 VPNs. Additionally, the 15 to 16 hour time change would make it practically

21 impossible for her to engage in clinical programs in which she has enrolled and to

22 engage in important conferences with fellow students and professors. C. Y. does not

23 feel safe attending in-person classes due to the health risks and therefore planned to

24 take all of her courses online in the fall. The prospect of making C. Y. choose between

25 a potentially unsafe in-person class and a prohibitively costly emergency journey

26 home is causing her severe distress, which she will worries will negatively impact her

27 grades.

28

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 8 of 35 Page ID #:8

1

11. Plaintiff X. Y. is a 25-year-old Chinese national who has attended UCI

2 Law on an F-1 visa since 2018 and this fall, will be entering her third and final year at

3 UCI Law. In reliance upon the SVEP’s March guidance and UCI’s June statements

4 that the fall semester would be held remotely, X.Y. and her partner, a UCLA student,

5 entered into a 12-month lease for an apartment in Los Angeles. She also cancelled an

6 August trip to visit family at home in China because she anticipated complications,

7 including travel difficulties and the possibility of not being able to return to the United

8 States to finish her program, resulting from the pandemic. She thought it was safer to

9 stay in place. X. Y. is deeply concerned about the prospect of travel at a time of

10 increased risk of community transmission both nationally in the United States and

11 locally in Los Angeles. Her healthcare plan is effective through UCI enrollment, so

12 she doesn’t know if she would have healthcare coverage in China. X. Y. is concerned

13 she will have to drop out of school if she is forced to return to China, because

14 attending live-streamed classes would mean that X. Y. would need to attend school in

15 the middle of the night, and she would have no way to obtain required casebooks. X.

16 Y. had planned to work as a research assistant for a professor during the upcoming

17 semester, but it will be impossible to do so if she is in China. Her ability to apply for a

18 permanent work visa, after being forced to return to China, will be considerably more

19 burdensome than if she remained in the United States, as she had planned.

20

12. Plaintiff A. G. is a 25-year-old German national who has been attending

21 the University of Southern California Law School (USC Law) in Los Angeles,

22 California, on an F-1 visa, will be entering her third and final year. She lives in Los

23 Angeles, where she is responsible for a lease and is employed through the summer by

24 a law firm. Her responsibilities in the United States include being the sole familial

25 caretaker for her almost 90 year-old great aunt who lives in Los Angeles. A. G. drives

26 her to doctor’s appointments and goes grocery shopping for her. A. G. is nervous

27 about the prospect of having to fly if she were forced to return to Germany, where she

28

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 9 of 35 Page ID #:9

1 would need to live with her immediate family. She fears that the return flight will

2 expose her to the novel coronavirus and then put her family members at risk because

3 of their high risk for COVID-19 complications. Her father has four stents in his heart

4 and her mother has high blood pressure. She herself has no known pre-existing

5 conditions, but she would be unable to take advantage of her US health insurance in

6 Germany. If forced to return to Germany, A. G. would have difficulties continuing her

7 studies, as she would need to take her classes in the middle of the night, due to the

8 nine-hour time difference, and textbooks may be difficult to obtain. If USC Law were

9 to transition to hybrid instruction, A. G. would attend in-person classes in order to stay

10 in the country, but would not feel safe doing so.

11

13. Plaintiff M. X. is a 26-year-old Chinese national entering her second year

12 of study at UCI Law. Because of the exemption granted by ICE, and UCI’s June

13 announcement of remote instruction in the fall, M. X. decided to plan for the

14 upcoming year by renewing her on-campus lease for a year, and has already begun

15 paying rent under the lease. M. X. planned to continue her studies in the United States,

16 and planned to intern next summer. In order to do so, she would need the CPT visa.

17 Her eligibility for the CPT visa, however, will be foreclosed if her F-1 visa is

18 terminated. She faces the additional financial burden of extremely expensive return

19 flights to China and expenses associated with China’s mandatory 14-day quarantine.

20 M. X. does not have the financial means to pay these required costs out of pocket on

21 such short notice. Similarly, it would be effectively impossible for her to continue her

22 studies while in China, due to the time difference and restrictions against Google and

23 VPN use, meaning she would not be able to attend or participate in school even if the

24 time zone were not an issue. If UCI were to transition to hybrid learning solely for

25 international students, M. X. is concerned about the risk of infection in a classroom

26 requiring physical attendance.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 10 of 35 Page ID #:10

1

14. Plaintiff Z. L. is a 25 year-old Chinese national who lives in Los Angeles

2 and is enrolled as a PhD student at University of California, Los Angeles (“UCLA”),

3 focusing on cinema and media studies. She enrolled at UCLA in 2017 and holds an F-

4 1 visa. After UCLA switched to online operations in late March, Z. L. remained in the

5 United States because she did not want to risk her or her parents’ health and safety by

6 traveling to China during a pandemic. She worries about returning to China because

7 traveling will place her at risk of contracting COVID-19, as she will be exposed to

8 people who may be infected with the virus at airports and inside the plane. If she were

9 forced to return to China, Z. L. would not be able to continue her studies for several

10 reasons. For instance, due to the 15-hour time difference between Los Angeles and

11 China, Z. L. will have to attend her online classes at unconventional times. For

12 example, Z. L. will have to call into a 1 p.m. Monday class at 4 a.m. on Tuesday,

13 Beijing time. Watching recorded classes is not an option for her because graduate-

14 level courses are designed to be centered around conversations and dialogue with

15 other students than lecture. Relying on class recordings would deprive her of

16 important opportunities to learn from and with her peers. Z. L. is concerned that

17 taking in-person classes will jeopardize her health, and had been planning to take all

18 of her fall 2020 courses online. In China, Z. L. will not be able to access the print and

19 digital media resources she needs to complete her dissertation, and strict quarantine

20 requirements will likely impair her ability to study for her PhD qualifying exam.

21 Failure of the exam could jeopardize the funding she needs to complete the years-long

22 program she has undertaken. Z. L. housing situation is unsettled and if she returns to

23 China she will have to pay costs of storage for her belongings and car. Not knowing

24 whether she must leave the country or risk serious illness—or even death—is keeping

25 Z. L. tense and causing her great distress.

26

15. Plaintiff W. R. is a 26-year-old Chinese national entering his second year

27 of school at UCI Law School who currently lives near Irvine, California in San Juan

28

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 11 of 35 Page ID #:11

1 Capistrano. Several months ago in March, UCI Law announced its decision to conduct

2 remote instruction. Around that same time, W.R. received an exemption from ICE to

3 remain in the United States with his wife, who is a permanent resident alien living in

4 San Juan Capistrano and owns a business in the United States. If he is forced to return

5 to China, he will be separated from his wife. He will also suffer financial losses based

6 on decisions made in reliance on his ability to stay in the United States for his studies.

7 If he is required to return to China, W. R.’s financial burden will also be compounded

8 by the high cost of travel to China in the era of COVID-19, with average one-way

9 economy flights priced at close to $10,000 (more than eight times the cost of a single

10 flight to China before the pandemic). Additionally, passengers arriving from outside

11 China are financially responsible for room and board associated with China’s

12 mandatory 14-day quarantine, which would also be a financial hardship for W. R. If

13 he is required to return to China, W. R.’s legal education will not be able to continue

14 for all practical purposes. He will not be able to participate in classes, important

15 group, or conduct necessary research due to the 15 to 16 hour time zone difference

16 and China’s strict ban against Google and VPN usage, both of which are required to

17 access the research databases and at UCI Law. W. R. will also be unable to benefit

18 from the student legal clinic in which he is enrolled for the upcoming fall semester if

19 he has to return to China. If he is required to attend in-person instruction, W. R. is

20 concerned for his health and safety due to threat of exposure to the novel coronavirus.

21

16. Defendant United States Department of Homeland Security is a federal

22 agency of the United States.

23

17. Defendant United States Immigration and Customs Enforcement is a

24 division of the United States Department of Homeland Security.

25

18. Defendant Chad F. Wolf is the Acting Secretary of the United States

26 Department of Homeland Security. He is sued in his official capacity.

27

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 12 of 35 Page ID #:12

1

19. Defendant Matthew Albence is the Acting Director of the United States

2 Immigration and Customs Enforcement. He is sued in his official capacity.

3

JURISDICTION AND VENUE

4

20. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331

5 and 5 U.S.C. § 702. Plaintiffs are persons aggrieved by a final agency action

6 promulgated by Defendants. See 5 U.S.C. § 702. Plaintiffs bring this suit for

7 declaratory and injunctive relief to set aside Defendants’ action as contrary to law and

8 arbitrary and capricious, see id. §§ 705–706, and as a violation of due process under

9 the Fifth Amendment to the United States Constitution—thus presenting a federal

10 question, see 28 U.S.C. § 1331.

11

21. Venue is proper in this Court because Plaintiffs reside in this District—

12 specifically, a majority attend UCI and reside in or near Irvine—and no real property

13 is involved. 28 U.S.C. § 1391(e)(1)(C).

14

22. Plaintiffs have standing to bring this case. Defendants’ actions will cause

15 an imminent, concrete, and irreparable risk of harm to Plaintiffs, their families, their

16 educations, their short-term and long-term health, and their future education and

17 employment prospects unless halted by this Court.

18

23. This Court is authorized to grant the requested injunctive relief pursuant

19 to Federal Rule of Civil Procedure 65 and 5 U.S.C. § 705.

20

FACTS

21

Higher Education and the COVID-19 Pandemic

22

24. The world is in the midst of the global COVID-19 pandemic.

23

25. Because humans lack built-up immunity to, or a vaccine against or

24 effective treatment for, the novel SARS-CoV-2 virus that causes COVID-19, the only

25 way to mitigate the effects of the virus today is to stop its spread.

26

26. State and local governments have responded to the pandemic with

27 unprecedented containment measures such as stay-at-home orders that instructed state

28

12

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 residents to avoid leaving their residences. At one point, 42 states instituted such 2 orders.3

3

27. On March 4, 2020, California Governor Gavin Newsom declared a state

4 of emergency in light of the COVID-19 pandemic.4

5

28. On March 9, the University of California at Berkeley suspended in-

6 person instruction.5

7

29. On March 10, the University of California campuses at Davis, Irvine, Los

8 Angeles, Riverside, and Santa Barbara followed suit, as did the University of Southern 9 California.6

10

30. On March 19, Governor Newsom announced a statewide stay-at-home

11 order.7 Among other things, this order forbade universities from continuing to operate

12 in-person classes, including the schools plaintiffs attend.

13

31. While the order has been amended to loosen restrictions, the order could

14 be tightened again at any time.

15

32. COVID-19 infections are surging across the country and in California.

16 Nationwide, three million COVID-19 cases have been diagnosed, and more than 17 132,000 people have died.8 Meanwhile, cases are on the upswing: 50,000 new cases

18 were reported nationwide on six of the first eight days in July. The total reported cases

19 on ten days since June 26 has exceeded the prior single-day record set on April 6. And 20 on July 8, the number of reported daily cases broke 60,000 for the first time.9

21

22

23
3 Jasmine C. Lee et al., See How All 50 States Are Reopening (and Closing Again), N.Y. Times (July 8, 2020),

24

https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html. 4 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf

25

5 https://news.berkeley.edu/2020/03/09/as-coronavirus-spreads-uc-berkeley-suspends-in-person-instruction/ 6 https://www.latimes.com/california/story/2020-03-10/ucla-to-cancel-most-in-person-classes-until-early-april-to-

26

protect-against-coronvirus 7 Executive Order N-33-20, Executive Dep’t State of California (March 19, 2020).

27

8 Cases in the U.S., Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last visited July 10, 2020).

28

9 See https://www.nytimes.com/2020/07/09/world/coronavirus-updates.html (last visited July 9, 2020);
13

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

33. In California, over 296,000 people have tested positive for the novel

2 coronavirus.10 On July 8, an average of 7,000 new cases were reported in the state

3 every day. Since June 29, California has reported its five highest daily new case totals

4 since the pandemic began. These new cases are not the result of more testing 5 California’s test positivity rate has also increased over the last several weeks.11 Daily

6 hospital admissions for COVID-19 patients have risen every day since June 18. And

7 the trendline is positive, suggesting COVID-19 in California is likely to get even

8 worse. On July 8, the state reported is highest number of COVID-19 deaths to date.

9

34. Both in California and nationwide, the COVID-19 pandemic is worse

10 than at any point during the spring academic semester.

11

35. In recognition of the continuing threat COVID-19 posed to its students,

12 staff, and faculty, on June 23, the University of California, Irvine School of Law

13 (“UCI Law”) announced that all second- and third-year law students would only be 14 able to take on-line courses.12

15

36. Likewise, on June 26, the University California at Berkeley Law School

16 (“Berkeley Law”) announced that it would conduct the fall 2020 term entirely 17 online.13 Berkeley Law determined that restrictions on the number of students in a

18 classroom and the requirement that classrooms be disinfected between classes would

19 make offering safe, in-person instruction infeasible.

20

37. Schools in the University of California system are not alone in moving

21 some or all students fully online in the fall semester. Harvard University14 and the

22 University of Southern California15 will offer exclusively online instruction to all

23

24 10 COVID-19 Statewide Update, STATE OF CAL., https://update.covid19.ca.gov (last updated July 10, 2020).

25 11 Daily State-by-State Testing Trends:California, Johns Hopkins University & Medicine Coronaivirus Research Center,
https://coronavirus.jhu.edu/testing/individual-states/california (last visited July 10, 2020).

26

12 https://www.law.uci.edu/news/press-releases/2020/fall-2020-semester-planning-update-06232020.pdf 13 https://www.law.berkeley.edu/article/fall-instruction-memo-6-26-20/

27

14 https://www.bostonherald.com/2020/07/06/all-harvard-university-students-will-take-online-classes-this-fall-amidcoronavirus/

28

15 https://coronavirus.usc.edu/2020/07/01/7-1-letter-on-student-housing-and-course-schedules/
14

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 students. Massachusetts Institute of Technology16 and Yale University17 will bring

2 some students back to campus for a handful of in-person classes, but most classes will 3 be offered exclusively online. Other schools, like Brown University,18 California 4 Institute of Technology,19 and Johns Hopkins University,20 have not yet announced

5 their plans.

6

38. Schools are right to be cautious. Public health leaders believe the United

7 States is still contending with the first wave of coronavirus infections.21 Most public

8 health experts expect that, even if the first wave is eventually contained, a second 9 wave of infections will take hold in the fall or winter.22

10

The F-1 Student Visa Program

11

39. The United States has labeled students as “non-immigrants” and operated

12 a student visa program since at least 1921.23 Although the F-1 program has changed

13 over the years, millions of students have entered the country with F-1 visas since at 14 least 2000, as far back as public records are available.24

15

40. For the Fall 2019 term, there are currently 44,485 international students

16 in the University of California (“UC”) system. 27,189 of those are undergraduate 17 students, and 17,295 are graduate students.25

18

41. According to a report published by the U.S. Immigration and Customs

19 Enforcement (“ICE”), the total number of Student and Exchange Visitor Information

20 System (“SEVIS”) records for active F-1 and M-1 students was 1,551,373 in the

21 calendar year 2018. Asia remains the number-one continent of origin for

22

23

16 https://covid19.mit.edu/further-decisions-about-the-fall-semester 17 https://covid19.yale.edu/announcements/fall-2020

24

18 https://covid.brown.edu/updates/brown-students-postponing-preregistration-until-august-updating-coursesbrown 19 https://coronavirus.caltech.edu/updates/general/6252020

25

20 https://covidinfo.jhu.edu/university-messages-and-announcements/planning-for-fall-and-beyond/ 21 https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/first-and-second-waves-of-coronavirus

26

22 https://www.ama-assn.org/delivering-care/public-health/harvard-epidemiologist-beware-covid-19-s-second-wavefall

27

23 https://web.archive.org/web/20140205165423/http://www.iie.org/Who-We-Are/History 24 https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics.html

28

25 https://www.universityofcalifornia.edu/infocenter/fall-enrollment-glance
15

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 nonimmigrant students, with 1,165,483 student records. China (478,732), India

2 (251,290), and South Korea (88,867) sent the largest numbers of students in both 3 calendar years 2017 and 2018.26

4

42. There were 145,564 Optional Practical Training (“OPT”) students in the

5 calendar year 2018, including 69,650 science, technology, engineering, and 6 mathematics (“STEM”) OPT students.27 There were 151,525 curricular practical

7 training (“CPT”) students who reported working for an employer in the calendar year 8 2018, a 14-percent increase since 2017.28

9

43. In 2018, California hosted 302,073 nonimmigrant students, 19.5 percent

10 of all nonimmigrant students in the United States, and more than any other state.29

11

SEVP’s Response to the COVID-19 Pandemic

12

44. On March 9, 2020, the Student and Exchange Visitor Program (“SEVP”)

13 issued a Broadcast Message providing guidance on COVID-19 and its implications for

14 nonimmigrant F and M students (“March 9 Guidance”). In this guidance, SEVP

15 recognized that “SEVP-certified schools may need to adapt their procedures and

16 policies to address the significant public health concerns associated with the COVID-

17 19 crisis.” SEVP provided schools with a template that schools could use to report

18 those changes to SEVP. SEVP assured schools and students, however, both that

19 “SEVP is focused on ensuring that nonimmigrant students are able to continue to

20 make normal progress in a full course of study as required by federal regulations,” and

21 that “SEVP intends to be flexible with temporary adaptations.” SEVP further

22 recognize[d] that the COVID-19 crisis is fluid and rapidly changing” and “[f]or that

23 reason” assured schools that it was “leaving room for schools to comply with state or

24 local health emergency declarations.”

25

26 26 https://www.ice.gov/doclib/sevis/pdf/sevisByTheNumbers2018.pdf

27

27 Id. 28 Id.

28 29 Id.

16

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

45. On March 13, 2020, President Donald J. Trump declared that COVID-19

2 had created a national emergency.30 This emergency is ongoing.

3

46. On March 13, 2020, as governors across the country began to sign stay-

4 at-home orders and many institutions of higher education began to switch to remote-

5 teaching options, the SEVP issued a follow-up to the March 9 Guidance (“March 13

6 Guidance”) addressing “inquiries” that SEVP had received about various “different

7 scenarios” a school or student might face, and instructing schools and students how 8 the transition to online classes would affect nonimmigrant students’ visa status.31

9

47. The March 13 Guidance presented students with three scenarios they

10 might face: a complete school shutdown, a switch to online learning while the student

11 remained in the United States, and a switch to online learning while the student moved 12 outside of the United States.32 In all three scenarios, SEVP assured students that they

13 would be able to remain in compliance with the terms of their visas.

14

48. SEVP assured students and schools that it would treat school shutdowns

15 the same way it treated “short-term breaks in the school calendar.” International

16 students would remain eligible for their visas if they “intend[ed] to resume their 17 course of study when classes resume.”33

18

49. For institutions that switched to online education, and “[g]iven the

19 extraordinary nature of the COVID-19 emergency,” SEVP waived the limits for

20 online courses laid out in 8 C.F.R. §§ 214.2(f)(6)(i)(G) and 214.2(m)(9)(v). SEVP

21 waived these limits for both international students who remained in the United States 22 and those who chose to travel abroad during the period of online instruction.34 SEVP

23 explained that these waivers would remain in place for “the duration of the [COVID-

24 19] emergency . . . .”

25 30 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency- concerning-novel-

26

coronavirus-disease-covid-19-outbreak 31 https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.13.20.pdf

27

32 Id. 33 Id.

28 34 Id.

17

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

50. At the end of the March 13 Guidance, SEVP noted that “[d]ue to “the

2 fluid nature of this difficult situation, this guidance may be subject to change.”

3 Nowhere in the March 13 Guidance, however, did SEVP suggest or even hint that it

4 intended to change the values that underlay the March 9 and March 13 guidance, such

5 as to abandon the “focus” it had announced, just six days before, on “ensuring that

6 nonimmigrant students are able to continue to make normal progress in a full course

7 of study.” March 9 Guidance. Similarly, nowhere in the March 13 Guidance did

8 SEVP suggest or hint that it no longer “intend[ed] to be flexible with temporary

9 adaptations” or would deny schools “room … to comply with state or local health

10 emergency declarations.” March 9 Guidance. To the contrary, SEVP made clear that

11 it planned to monitor factual changes in the COVID-19 situation: “SEVP will

12 continue to monitor the COVID-19 situation and will adjust its guidance as needed.”

13

51. On March 20, 2020, ICE posted links to the March 9 and March 13

14 guidance documents on its website together with some sample Questions and Answers

15 geared to be helpful to students. One such Q and A read:

16 “Can nonimmigrant students participate in online classes?

17 “SEVP is committed to remaining flexible in allowing schools to make temporary

18 procedural adaptations so nonimmigrant students can continue to make normal

19 forward progress in their program of study. They can temporarily engage in distance-

20 learning, either from within the U.S. or outside the country, in light of COVID-19.

21 SEVP will provide updated guidance as additional information concerning the scope

22 and length of this situation becomes clearer.” (Emphasis added.)

23

52. For the four months following the release of the March 9 and March 13

24 guidance documents, students and schools engaged in extensive efforts to plan for the

25 fall academic year, trusting that SEVP’s March 9 Guidance and March 13 Guidance,

26 as reiterated in the other communications, accurately reflected the approach that SEVP

27

28

18

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 would take to the visa status of international students during the COVID-19

2 emergency.

3

53. The nation’s COVID-19 emergency is not over. President Trump has not

4 withdrawn the declaration of a national state of emergency. In California, COVID-19

5 infection and death rates remain consistent with—and indeed are exceeding—the

6 levels when the March Guidances were issued, as noted above.

7

54. Yet on July 6, 2020, SEVP suddenly and without notice announced a

8 rollback of the exemptions put in place for the spring and summer 2020 terms.35

9

55. The new guidelines (“July 6 Guidelines”) require students whose

10 institutions choose to conduct the fall 2020 term entirely online to exit the United

11 States. The announcement states that:

12

Nonimmigrant F-1 and M-1 students attending schools operating

13

entirely online may not take a full online course load and remain in the

United States. The U.S. Department of State will not issue visas to

14

students enrolled in schools and/or programs that are fully online for

15

the fall semester nor will U.S. Customs and Border Protection permit

these students to enter the United States. Active students currently in

16

the United States enrolled in such programs must depart the country or

17

take other measures, such as transferring to a school with in-person

instruction to remain in lawful status. If not, they may face

18

immigration consequences including, but not limited to, the initiation

19

of removal proceedings.36

20

56. The July 6 Guidelines also made clear that students whose in-person

21 classes were switched online partway through the term would be required to leave the

22 United States:

23

Schools should update their information in the Student and Exchange

24

Visitor Information System (SEVIS) within 10 days of the change if

25

they begin the fall semester with in-person classes but are later required to switch to only online classes, or a nonimmigrant student

26

27

35 https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-students-taking-onlinecourses-during

28 36 Id.

19

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

changes their course selections, and as a result, ends up taking an entirely online course load. Nonimmigrant students within the United

2

States are not permitted to take a full course of study through online

3

classes. If students find themselves in this situation, they must leave the country or take alternative steps to maintain their nonimmigrant

4

status such as a reduced course load or appropriate medical leave.37

5 57. The July 6 Guidelines further bar students whose institutions have gone
6 either hybrid or in-person from taking a fully online curriculum:
7

8

These schools must certify to SEVP, through the Form I-20,

“Certificate of Eligibility for Nonimmigrant Student Status,” certifying

9

that the program is not entirely online, that the student is not taking an

10

entirely online course load this semester, and that the student is taking

the minimum number of online classes required to make normal

11

progress in their degree program.

12 58. Nowhere in the July 6 Guidelines does SEVP state that the COVID-19
13 emergency has ended, whether as a formal or a factual matter. Indeed, the July 6
14 Guidelines are entirely silent on “the COVID-19 situation” that SEVP had said it was
15 planning to monitor and would make the basis of any change in guidance.
16 59. Nowhere in the July 6 Guidelines does SEVP acknowledge its prior
17 commitment, in the March 9 Guidance, to allow international students “to make
18 normal progress in a full course of study,” “to be flexible with temporary
19 adaptations,” or allow schools “room … to comply with state or local health
20 emergency declarations.”
21 60. Nowhere in the July 6 Guidelines does SEVP give any consideration to
22 the reliance that international students and schools may have placed, in making their
23 respective plans for the coming academic year, on the March 9 and March 13
24 guidance documents, on the nation’s longstanding commitment to the F-1 Visa
25 program, and on the expectation that any changes SEVP would announce to the March
26

27 28 37 Id.

20
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 9 and 13 guidance would reflect a good-faith assessment of materially changed

2 circumstances in light of the values expressed in those documents.

3

61. The July 6 Guidelines thus reflect a complete but unacknowledged

4 repudiation of the approach SEVP laid out on March 9 and March 13 to addressing the

5 implications of the COVID-19 pandemic for holders F-1 and M-1 visas.

6

62. The July 6 Guidelines also fail to address numerous important issues that

7 any reasoned decision would consider. For example, the July 6 Guidelines do not

8 include an exception for students who cannot attend classes because they are at an

9 elevated risk to COVID-19 due to pre-existing health conditions, nor do they contain

10 an exception for students living with family members or roommates who are at an

11 elevated risk to COVID-19.

12

63. The July 6 Guidelines also do not include an exception for students who

13 are forced into online classes because the state institutes a stay-at-home order that

14 shuts down their educational institution.

15

64. The July 6 Guidelines also do not include an exception for students who

16 are forced to come back to the United States because their schools have gone hybrid

17 or remained in-person.

18

65. The July 6 Guidelines also do not include an exception for students who

19 cannot access the internet in their country of origin, for students who cannot safely

20 travel or who cannot travel at all to their country of origin, or for students who fear

21 suffering injury or death if they return to their country of origin.

22

66. In summary, the July 6 Guidelines completely abandon, without

23 explanation, both the substantive guidance SEVP provided on March 9 and March 13

24 and the approach SEVP announced it would take to considering any changes to that

25 guidance. The July 6 Guidelines also ignore the public-health-informed decisions of

26 schools and government officials to limit or cease in-person teaching. They do not

27 include a safety valve for even the worst coronavirus outbreaks. They do not allow for

28

21

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 any of the flexibility necessary to safely manage an increasingly dangerous pandemic.

2 The July 6 Guidelines do nothing but expel students from the United States because of

3 circumstances outside of the students’ control, no matter the consequences for the

4 students, the schools, or the country.

5

67. Students at schools that have not yet announced their fall plans do not

6 know if the July 6 Guidelines apply to them or whether they will be able to remain in

7 the United States for the fall term.

8

68. Even students at schools who have announced some in-person course

9 offerings may not have not yet assigned students to classes. International students at

10 these schools do not know if they will be able to enroll in an in-person class, a

11 necessity of continuing to study in the United States under the July 6 Guidelines.

12 Some of these schools do not finalize class schedules until after the beginning of the

13 academic term, creating a possibility that students will be required to leave the United

14 States in the middle of the semester.

15

69. In a Broadcast Message released on the same day as the July 6

16 Guidelines, SEVP stated that schools are required to notify SEVP if they intend to 17 only offer remote instruction by July 15, 2020.38 Schools choosing to offer some in-

18 person instruction are required to notify SEVP by August 1. If a school decides or is

19 required to cease in-person instruction over the course of the semester, it must notify

20 SEVP of that change within 10 calendar days.

21

70. The SEVP has not provided an explanation for its departure from the

22 March 9 and March 13 guidance documents

23

71. But on July 7, Ken Cuccinelli, the Senior Official Performing the Duties

24 of the Deputy Secretary of Homeland Security (“DHS”) and the Senior Official

25 Performing the Duties of the Director of the United States Citizenship and

26 Immigration Services (“USCIS”), made clear his views about students enrolled in

27

28

38 https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf
22

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 23 of 35 Page ID #:23

1 online courses, or enrolled at institutions offering only online courses. “There isn’t a

2 reason for a person holding a student visa to be present in the country . . . they don’t

3 have a basis to be here. . . . I don’t frankly follow why a student visa holder would be 4 here if their school isn’t functioning.”39

5

72. On July 6, at 2:40 p.m. Eastern Time, President Donald Trump tweeted

6 his support for the opening of schools by stating, “SCHOOLS MUST OPEN IN THE 7 FALL!!!”40

8

73. President Trump continued to pressure other institutions beyond

9 universities to open in the fall by threatening to cut funding otherwise.41

10

74. At 4:11 p.m., he accused the Democratic Party and the presidential

11 candidate Joe Biden of supporting closure of schools for political reasons and not 12 health reasons.42

13

The Effects of the July 6 Guidelines on International Students

14

75. Plaintiffs either attend schools that are exclusively offering online

15 education in the fall to all students or to students similarly situated to plaintiffs.

16

76. It is impossible for students to transfer to a different law school for the

17 start of the fall 2020 term. Even if it were possible to transfer, it would be impractical

18 to move, perhaps across the country, in the midst of the COVID-19 pandemic.

19

77. Under the July 6 Guidelines, plaintiffs will have no choice but to leave

20 the United States. They will be ripped from their communities and their academics.

21 Their carefully-laid financial, health, employment, immigration, and personal plans—

22 made under the assumption that SVEP would not revoke its March 13 Guidance for

23 the “duration of the emergency”—will be upended.

24

25

26

39 https://www.mediaite.com/tv/watch-ken-cuccinelli-and-cnns-brianna-keilar-battle-in-absurd-20-minute-debate-onimmigration-covid-and-confederate-flags/

27

40 https://twitter.com/realDonaldTrump/status/1280209946085339136 41 https://www.nytimes.com/2020/07/08/us/politics/trump-schools-reopening.html

28

42 https://twitter.com/realDonaldTrump/status/1280232979781111808
23

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Housing 1

2

78. Some plaintiffs have signed leases and acquired housing under the

3 assumption that they would be present in the United States during the fall term. If the

4 July 6 Guidelines are enforced and these plaintiffs are forced to leave the United

5 States, these plaintiffs will either have to break their lease and lose their security

6 deposits, which would result in a loss to their credit score, or continue to pay rent until

7 the lease terminates.

8

79. Plaintiffs will likewise have to procure housing in their country of origin.

9 While some plaintiffs may be able to live with family, others have no safety net in that

10 country, and will be forced to find housing with adequate internet connections and

11 access to study space with little notice, perhaps before they leave the United States.

12

80. When some plaintiffs relocated to the United States to enter their

13 respective academic programs, they brought all of their belongings and livelihoods.

14 Because they justifiably expected to remain in the United States for years of

15 education, they did not build a safety net in their countries of origin. They terminated

16 their housing, sold their furniture, and gave away the belongings that they could not

17 bring with them to the United States. These plaintiffs do not have a ready-made home

18 in their respective home countries.

19

81. If schools reopen in the spring, plaintiffs who were forced to leave the

20 United States under the July 6 Guidelines will be forced to return to the United States,

21 likely on short notice, in order to maintain their visa status.

22

82. These students, who may have abandoned the housing they secured for

23 the fall term because of the July 6 Guidelines, will find it difficult or impossible to

24 secure adequate, affordable housing. When it comes to signing leases, plaintiffs often

25 do not have the luxury of choice. Foreign students often do not have robust credit

26 scores because of their shorter credit histories and newer bank accounts. Any

27 abandonment of housing secured for the fall semester only accentuates these problems

28

24

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 – as does the possibility of having to find housing remotely in their institution’s city

2 with only a few weeks’ notice once spring term plans are announced.

3

4

Travel

5

83. The COVID-19 pandemic affects countries worldwide. Multiple

6 countries have shut down their borders and banned all transnational flights. Others

7 have specifically barred flights from the United States. Plaintiffs attempting to comply

8 with the July 6 Guidelines may not be able to find flights back to their home countries.

9

84. Even if each plaintiff is able to find a flight itinerary that will eventually

10 take her home, that itinerary will necessarily include multiple stops over different

11 continents.

12

85. This itinerary is not simply inconvenient. It is a health risk. As an airline

13 passenger, the plaintiff would spend hours in a confined space surrounded by shared

14 surfaces - exactly the kind of prolonged exposure that creates substantial risk of

15 contracting the novel coronavirus. This is in addition to the added risks associated

16 with airports, whether it be standing in security lines or waiting at the gate to board an

17 aircraft.

18

86. Such an itinerary is also exorbitantly, perhaps prohibitively, expensive.

19 As noted above, airfare may exceed $10,000 – especially given the need to book on

20 short notice. In addition, for students returning to countries, such as China, that have

21 imposed a quarantine on incoming travelers, the students would have to pay for 14

22 days’ lodging while they quarantine.

23

87. If a plaintiff’s academic institution decides to permit in-person teaching

24 in the spring semester, Plaintiffs will have to once again pay for another set of flights

25 and expose themselves to other travelers in order to return to the United States.

26

88. The financial and logistical challenges that Plaintiffs face multiply for

27 international students with dependents.

28

25

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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Health Risks 1
89. Forcing students to return to their countries of origin does more than put 2
them at increased risk of exposure to the novel coronavirus during transit. In order to 3
accommodate the course schedule and participate in extracurricular activities, 4
plaintiffs, some of whom will not be given the option of asynchronous class 5 participation, will be forced to maintain irregular sleep schedules.43 These sleep 6
schedules will put students at a disadvantage compared to their peers, which poses a 7
particular harm to plaintiff in classes that are graded on a curve. 8
90. Plaintiffs are also burdened with health insurance costs. Many plaintiffs 9
have already paid for their 2020–2021 health insurance plans through their 10
university—plans that will do nothing for them in their country of origin. These 11
plaintiffs may need to buy health insurance in their home countries. Foregoing health 12
insurance during the pandemic is not a realistic nor preferred option for plaintiffs. 13
However, given the costs associated with health insurance and the price of their now14
useless American insurance, plaintiffs may go uncovered. 15

16 Education Inequities
17 91. The July 6 Guidelines make it difficult or impossible for plaintiffs to
18 participate fully in class. Students in different time zones are forced to choose between
19 attending online classes in the middle of the night or watching recorded classes.44
20 Students watching recordings will be harmed because they cannot ask questions
21 during class, participate in class discussion, or otherwise have a visible presence. But
22 students who attempt to participate as the class occurs must stay alert for two to three
23 hours of lecture at inopportune times, often in the middle of the night. Either way,
24

25

26 43 https://www.tandfonline.com/doi/full/10.1080/09291016.2015.1103942; https://mail.google.com/mail/u/1/#inbox/

27

FMfcgxwJWjBjvRFDqNrMVnNJctWDlNWW?projector=1&messagePartId=0.1 44 See, e.g., Kelsey J. Griffin, Hundreds of Harvard Law Students Criticize Plans for Online Fall Semester, Harv.

28

Crimson (June 17, 2020, 9:11 PM), https://www.thecrimson.com/article/2020/6/17/hls-online-fall-semester/.
26

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 27 of 35 Page ID #:27

1 students will be put at a substantial disadvantage compared to their classmates taking

2 the same class during normal hours.

3

92. Forcing plaintiffs to return to their countries of origin will severely limit

4 their practical learning opportunities. In law school, meeting and communicating with

5 clients, supervisors, and team members constitute a large part of clinical experience.

6 While any remote learning complicates these experiences, substantial time differences

7 like those faced by plaintiffs make them almost impossible. For example, many

8 clinical students have trouble scheduling meetings with clients who lack access to

9 technology when they all reside in the same city; these meetings simply will not occur

10 when the student attorney and the client must contend with a 16-hour difference.

11

93. The same applies to pro bono opportunities, many of which involve client

12 intake interviews or group work. Limited pro bono opportunities will disadvantage

13 international students, as some law schools confer graduation honors based on the 14 number of pro bono hours completed.45

15

94. For some plaintiffs, participating in online classes in their countries of

16 origin may not be an option at all. Internet access, which is absolutely necessary for

17 remote learning, is not guaranteed in some countries. Some countries have restricted 18 internet access while others, like Ethiopia,46 block it altogether. Without adequate

19 internet access, students cannot take online classes at all.

20

95. Other countries heavily monitor internet activity and curtail access to

21 some resources. Beyond potentially exposing students to government harassment

22 because of the contents of their studies, these restrictions will make it difficult or

23 impossible for students in these countries to continue their studies.

24

25

26 45 See, e.g., Pro Bono Program Code and Guidelines, UCI Law, https://www.law.uci.edu/about/public-service/public-

27

interest/probono/program-guidelines.html (last visited July 8, 2020). 46 Bethlehem Feleke, Internet Cut Off in Ethiopia amid Outcry over Death of Singer-Activist, CNN (June 30, 2020, 2:59

28

PM), https://www.cnn.com/2020/06/30/africa/ethiopia-singer-killing-sparks-protest-intl/index.html.
27

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 28 of 35 Page ID #:28

1

96. China, for example, limits access to Google web products.47 Many

2 schools, including UC Irvine, use Google products like Gmail and Google Drive to

3 communicate and collaborate on academic and clinical assignments – and this is even

4 more true now that teaching has moved online. If students cannot access these 5 resources, they will be locked out of their education.48

6

Immigration Consequences

7

97. The July 6 Guidelines prevents students whose schools will operate

8 entirely online from applying for Curricular Practical Training (“CPT”) and Optional

9 Practical Training (“OPT”) visa programs. CPT allows international students to work 10 in their field of study while they are enrolled in their academic program.49 OPT allows 11 students to work in the United States for one year after graduation.50 To be eligible for

12 OPT, students must have been enrolled in school full-time for one year, maintain valid 13 F-1 status, and be physically present in the United States at the time of application.51

14 Cancelling the F-1 visa or forcing international students to return to their countries of

15 origin will make these students ineligible for CPT and will prevent them from

16 applying to OPT.

17

98. Some international students have applied for permanent resident status,

18 better known as the green card, and are waiting for approval. Plaintiffs are concerned

19 that the new SEVP rule may extend the waiting time for students who must leave the

20 United States because their schools will operate entirely online.

21

22
47 https://www.businessinsider.com/major-us-tech-companies-blocked-from-operating-in-china-2019-5

23 48 Virtual Private Networks (“VPNs”), the typical solution to internet tracking and restrictions imposed by authoritarian
regimes, are heavily restricted in China. Because only government-approved VPNs are accessible, the VPN does nothing

24 to secure against government intrusion. See https://www.techradar.com/news/coronavirus-sees-china-crack-down-on-
vpns. And, in plaintiffs’ experience, the VPNs which are available so severely throttle internet speeds that video chat –

25

necessary to participate in online courses – is almost impossible to use. 49 F-1 Curricular Practical Training (CPT), Berkeley Int’l Office,

26

https://internationaloffice.berkeley.edu/students/employment/cpt (last visited July 8, 2020). 50 Optional Practical Training (OPT) for F-1 Students, U.S. Citizenship & Immigration Servs.,

27

https://www.uscis.gov/opt (last updated Apr. 22, 2020). 51 Id.; see also F-1 Optional Practical Training (OPT), Berkeley Int’l Office,

28

https://internationaloffice.berkeley.edu/students/employment/opt (last visited July 8, 2020).
28

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 29 of 35 Page ID #:29

Inequities in Employment Opportunities 1
99. Because of the risks associated with COVID-19, law schools across the 2
nation have postponed to January their On-Campus Interviews (OCI), a yearly event 3
where law firms travel to law school campuses to interview and recruit students for 4
summer associate positions and eventual full-time employment. OCI is a competitive 5
and important process for students. 6
100. The July 6 Guidelines, however, deny plaintiffs the opportunity to 7
physically attend OCI or fully participate in OCI. If schools hold OCI in person, 8
Plaintiffs are practically blocked from participating because Plaintiffs will be required 9
to find flights, find housing, self-quarantine, and ensure that they are free from 10
COVID-19—if they are eligible to enter the United States at all. 11
101. If schools decide to hold virtual OCI, plaintiffs have to interview in the 12
middle of the night and compete against domestic students who are interviewing in 13
normal business hours. 14
102. Furthermore, employers will easily be able to identify the immigration 15
status of plaintiffs. By simply asking about the time zone or city that plaintiffs are in, 16
employers can filter out international students among their interviewees. Due to the 17
additional cost and precarious nature of sponsoring foreign nationals, some employers 18
may avoid hiring international students for summer associate positions.52 19
CLAIMS FOR RELIEF 20

21

Count 1: (Violation of Administrative Procedure Act, 5 U.S.C. §706)

22 The July 6 Guidelines are Arbitrary and Capricious Both Because They Fail to

Adequately Consider the Reliance Interests of Millions of F-1 and M-1 Visa

23

Holders and Because They Fail to Provide a Reasoned Explanation.

24

103. Plaintiffs incorporate the allegations contained in the preceding

25 paragraphs.

26

27

52 The disadvantages imposed to international students who are not participating in OCI are similar to Plaintiffs’ disadvantages. The students will still have to interview in odd hours via Zoom and will indirectly disclose their

28 immigration status.

29

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 30 of 35 Page ID #:30

1

104. The APA requires this Court to “hold unlawful and set aside agency

2 action, findings, and conclusions found to be…arbitrary, capricious, an abuse of

3 discretion, or otherwise not in accordance with law.” 5 U.S.C. §706(2)(A). Agency

4 action must be the result of reasoned analysis. Motor Vehicle Mfrs. Ass’n of United

5 States, Inc. v. State Farm Mu. Auto. Ins. Co., 463 U.S. 29, 57 (1983).

6

105. This standard applies even when an agency is altering existing guidance.

7 When an agency changes course, the agency must “be cognizant that longstanding

8 policies may have engendered serious reliance interests that must be taken into

9 account.” Encino Motorcars LLC v. Navarro, 136 S. Ct. 2117, 2120 (2016).

10

106. As noted above, the United States has a long history of inviting

11 international students to study as “non-immigrants” pursuant to a student visa

12 program. International students admitted to well-established and high-quality

13 institutions, such as those in the UC system, often have multiple options available to

14 them. They choose to come study in the United States in reliance on the integrity of

15 the visa program and the expectation that their student visas will remain valid as long

16 as they are committed to their studies at their academic institutions.

17

107. The March 9 and March 13 guidance documents set forth a reasonable

18 framework for addressing the implications of COVID-19 for F-1 and M-1 visas, as

19 well as for updating the guidance in light of changes to the COVID-19 situation. The

20 July 6 Guidelines identify no material changes to the COVID-19 situation since

21 March 13, and ignore entirely the approach and rationale underlying the March 9 and

22 March 13 guidance documents.

23

108. The July 6 Guidelines ignores the assurances SEVP has made to

24 hundreds of thousands of students for well over twenty years that, as long as they

25 remain in compliance with their academic programs, they will be able to remain in the

26 United States at the institutions where they study.

27

28

30

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 31 of 35 Page ID #:31

1

109. The July 6 Guidelines also ignore the reasonable reliance that students

2 and schools alike placed in the approach to reconciling the impact of COVID-19 on F-

3 1 and M-1 visa requirements set forth in the March 9 and March 13 guidance

4 documents.

5

110. The Supreme Court has recently emphasized that agencies modifying a

6 previous policy are “required to assess whether there were reliance interests,

7 determine whether they were significant, and weigh any such interests against

8 competing policy concerns.” Department of Homeland Security v. Regents of Univ. of

9 California 591 U.S. ___ (slip op., at 26) (2020).

10

111. The July 6 Guidelines are arbitrary and capricious because they fail to

11 consider these important reliance interests. Revoking international students’ visas

12 when the students have done everything in their power to remain in compliance with

13 U.S. immigration law in the midst of a pandemic—and after SEVP announced at the

14 outset of the pandemic that the United States would honor these visas during the

15 pandemic despite the shift to online classes—disregards the reliance interests of these

16 students in maintaining their visa status and their ability to continue studying in the

17 United States. The long history of the United States’ F-1 visa program, together with

18 the SEVP’s March 13 announcement, created a reasonable and justifiable expectation

19 among students that they could maintain their visa status so long as they progressed in

20 their particular course of study in whatever way that course of study was offered by

21 their academic institution.

22

112. The reliance interests of F-1 visa holders extend further still. As

23 discussed above, plaintiffs have executed leases worth thousands of dollars for the

24 upcoming school year. Many have paid for expensive health insurance plans that are

25 now useless. Many will be forced to store or abandon property in the United States if

26 they are required to exit the country on short notice. Many would not have paid tens of

27

28

31

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 32 of 35 Page ID #:32

1 thousands of dollars in tuition to American universities had they known they could not

2 be present in the country for the fall term.

3

113. This reliance was justifiably premised on SEVP’s March 9 and March 13

4 guidance. For example, the March 13 guidance advised F-1 Visa holders that the

5 spring 2020 exemptions from online learning restrictions would exist “in effect for the

6 duration of the emergency.”

7

114. Apart from the failure to address reliance interests, an agency’s failure to

8 provide “reasoned analysis” for this sudden change in policy is “arbitrary, capricious,

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

10 §706(2)(a). Here, the July 6 Guidelines fail to offer any reasonable consideration of

11 the painful consequences of the Guidelines for students, schools, and communities.

12 For example, the Guidelines contain no discussion of the implications of this new

13 policy for public health, of the status of the COVID-19 situation and how it is

14 different now than it was in March in a way that is material for this guidance, or of

15 how and why this guidance better serves the purposes of the F-1 visa program, such as

16 allowing “students to make normal forward progress in their studies,” than does the

17 prior guidance. The Guidelines lack even an acknowledgment of, let alone a

18 justification for, the extraordinary human suffering they will cause.

19

115. For these reasons and others, the July 6 Guidelines must be vacated and

20 “set aside” as “arbitrary, capricious, an abuse of discretion, or otherwise not in

21 accordance with law.” 5 U.S.C. § 706(2)(A).

22 Count II: (Violation of Administrative Procedure Act, 5 U.S.C. §§ 553,706)

23 The July 6 Guidelines Violates the APA’s Notice-And-Comment Requirements.

24

116. Plaintiffs incorporate the allegations contained in the preceding

25 paragraphs.

26

27

28

32

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 33 of 35 Page ID #:33

1

117. The APA requires this Court to hold unlawful and set aside any agency

2 action taken “without observance of procedure required by law.” 5 U.S.C.

3 § 706(2)(D).

4

118. The APA, 5 U.S.C. § 553, requires that any agency desiring to implement

5 a rule go through the process of notice-and-comment in order to give the agency the

6 benefit of the expertise of those most impacted by the potential rule-making.

7

119. The July Guidelines did not go through any such process. Instead, DHS

8 plans to “publish the procedures and responsibilities in the Federal Register as a 9 Temporary Final Rule.”53

10

120. The July 6 Guidelines formalize a reversal of previous ICE guidance and

11 thus is subject to notice and comment requirements. They are not an interpretive rule

12 that could be issued without notice and comment requirements. Mt. Diablo Hospital

13 Dist. v. Bowen, 860 F.2d 951, 956 (9th Cir. 1988).

14

121. DHS has failed to provide any “good cause” that would justify bypassing

15 the notice and comment period. 5 U.S.C. §553 (b)(3)(B) The good cause exception is

16 only available to agencies if the agency has “good cause” to believe the process would

17 be “impracticable, unnecessary, or contrary to the public interest.” Western Oil & Gas

18 Ass’n v. U.S. Environmental Protection Agency, 633 F.2d 803, 810 (9th Cir. 1980).

19

122. The agency has yet to “publish[] reasons for thinking” the good cause

20 applies to the rules in question. Id.

21

123. DHS has failed to demonstrate how threatening to deport over one

22 million students in the middle of a global pandemic could possibly qualify as good

23 cause.

24

124. By promulgating the July 6 Guidelines without notice and comment, ICE

25 violated 5 U.S.C. § 553 and § 706. The modifications it announced are unlawful and

26 must be vacated.

27 53 https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-students-taking-online-

28 courses-during

33

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 34 of 35 Page ID #:34

Count III: (Violation of the Due Process Clause of the Fifth Amendment)

1

The July 6 Guidelines Deprive Plaintiffs of their Visa Status

2

Without Due Process of Law.

3

125. Plaintiffs reallege and incorporate by reference each and every allegation

4 contained in the preceding paragraphs.

5

126. Due process protections extend to “all ‘persons’ within the United States,

6 including [non-citizens], whether their presence here is lawful, unlawful, temporary,

7 or permanent.” Zadvydasv. Davis, 533 U.S. 678, 693 (2001). Nonimmigrant students

8 are lawfully present in this country.

9

127. Nonimmigrant students have significant liberty and property interests,

10 protected by the Due Process Clause, in their visas and/or access to educational

11 programs to which they have been admitted and in which they have invested time,

12 energy, and money. The “very essence” of due process is the “protection of the

13 individual against arbitrary action.” Board of Regents of State Colls. v. Roth, 408 U.S.

14 564, 584 (1972). The July 6 Guidelines are so arbitrary, both in substance and the

15 manner in which they were implemented, that they unlawfully deprive Plaintiffs of

16 their constitutionally protected liberty and property interests.

17

128. As a result of the foregoing constitutional violations, Plaintiffs will suffer

18 irreparable injury.

19

PRAYER FOR RELIEF

20

Wherefore, Plaintiffs respectfully seek the following relief:

21

1. A declaration that the policy announced in the July 6 Guidelines is

22 unlawful and unlawfully promulgated;

23

2. A temporary restraining order and preliminary and permanent injunctive

24 relief preventing Defendants from enforcing the policy announced in July 6

25 Guidelines, or promulgating it as a Final Rule;

26 / / /

27 / / /

28

34

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 8:20-cv-01220 Document 1 Filed 07/10/20 Page 35 of 35 Page ID #:35

1

3. An order vacating and setting aside the policy announced in the July 6

2 Guidelines and reinstating the March 13 Guidance;

3

4. An order awarding Plaintiffs their costs and attorneys’ fees; and

4

5. Any and all other such relief as the Court may deem appropriate.

5 6 DATED: July 10, 2020 7 8 9 10 11

By: /s/ David R. Carpenter** Lisa M. Gilford David R. Carpenter Stacy Horth-Neubert SIDLEY AUSTIN LLP
By: /s/ Mark D. Rosenbaum Mark D. Rosenbaum PUBLIC COUNSEL

12

By: /s/ Evan Caminker

13

Dean Emeritus and Branch Rickey

14

Collegiate Professor of Law

University of Michigan Law School

15

(Affiliation for identification

16

purposes only)

17

By: /s/ Mark E. Haddad

18

USC Gould School of Law

University of Southern California

19

(Affiliation for identification

20

purposes only)

21

Attorneys for Plaintiffs

22

Z.W., C.Y., X.Y., A.G., M.X., Z.L., W.R.,

and DOES 1-50.

23

** Filer attests that all signatories listed, and on whose behalf the filing is submitted, 24 concur in the filing’s content and have authorized the filing.

25

26

27

28
ACTIVE 259040281

35
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

 
 Case 8:20-cv-01220-CJC-KES Document 49 Filed 08/03/20 Page 1 of 2 Page ID #:374

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SACV 20-01220-CJC-KES

Date: August 3, 2020

Title: Z.W., ET AL. V. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL.

PRESENT:

HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

Gabriela Garcia Deputy Clerk

N/A Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:

None Present

None Present

PROCEEDINGS: (IN CHAMBERS) ORDER DENYING PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER [Dkt. 16] AND AMENDED APPLICATION FOR TEMPORARY RESTRAINING ORDER [Dkt. 36] AND DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION TO DISMISS [Dkt. 45]

On July 10, 2020, Plaintiffs—all of whom are graduate students studying at California universities on F-1 visas—brought this action seeking relief from the Guidance issued by the Department of Homeland Security’s Student and Exchange Visa Program (“SEVP”) on July 6, 2020. (Dkt. 1 [Complaint].) The July 6 Guidance barred student visa holders from remaining in the United States during the upcoming fall semester if their universities cancelled in-person classes in response to the COVID-19 pandemic. Four days after filing suit, Plaintiffs applied for a temporary restraining order that would enjoin Defendants from implementing the July 6 Guidance. (Dkt. 16 [TRO Application, hereinafter “TRO”].) Later that same day, however, Defendants rescinded the challenged Guidance. (Dkt. 18.) Defendants’ rescission of the July 6 Guidance was finalized on July 24, 2020 when the United States Immigration and Customs Enforcement (“ICE”) issued updated guidance confirming that it will “abide by SEVP guidance originally issued in March 2020” which “enables schools and students to engage in distance learning in excess of regulatory limits due to the public health emergency generated by COVID19.” (Dkt. 46-1 [July 24 Broadcast Message].)

Now before the Court are Plaintiffs’ application for a temporary restraining order (TRO), Plaintiffs’ amended application for a temporary restraining order (Dkt. 36 [hereinafter “Amended TRO”].), and Defendants’ motion to dismiss, (Dkt. 45 [hereinafter “Mot.”].). Plaintiffs concede

Case 8:20-cv-01220-CJC-KES Document 49 Filed 08/03/20 Page 2 of 2 Page ID #:375

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SACV 20-01220-CJC-KES

Date: August 3, 2020 Page 2

that “a TRO is no longer necessary because the July 24 Guidance provides much of the relief sought in the TRO Application.” (Dkt. 48 [Opposition to Motion to Dismiss] at 1.) Accordingly, both the original TRO application and the Amended TRO application are DENIED.

In their motion to dismiss, Defendants contend the rescission of the July 6 Guidance moots this action in its entirety and that it should be dismissed altogether. (See Mot.) Plaintiffs oppose that motion and request leave to amend their Complaint so that they can clarify the relief they continue to seek. (Id. at 3.) The Court finds that such amendments are necessary so that the operative pleading aligns with the current state of affairs. Accordingly, Defendants’ motion to dismiss is DENIED WITHOUT PREJUDICE. Plaintiffs are hereby ORDERED to file an amended pleading that sets forth the relief they continue to seek by August 14, 2020. The hearing on Defendants’ motion set for August 24, 2020 is hereby vacated and taken off calendar.

jy
MINUTES FORM 11 CIVIL-GEN

Initials of Deputy Clerk GGA

 
 Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 1 of 35 Page ID #:111

1 Mark D. Rosenbaum (SBN 59940) mrosenbaum@publiccounsel.org
2 PUBLIC COUNSEL 610 South Ardmore Avenue
3 Los Angeles, CA 90005 Telephone: (213) 385-2977
4 Lisa M. Gilford (SBN 171641)
5 lgilford@sidley.com David R. Carpenter (SBN 230299)
6 drcarpenter@sidley.com Stacy Horth-Neubert (SBN 214565)
7 shorthneubert@sidley.com SIDLEY AUSTIN LLP
8 555 West Fifth Street Los Angeles, CA 90013
9 Telephone: (213) 896 6044 Facsimile: (213) 896 6600
10 Additional Counsel Listed on Next Page
11 Attorneys for Plaintiffs
12 Z.W., C.Y, X.Y., A.G., M.X., Z.L., W.R., and DOES 1 through 50
13

14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16

SOUTHERN DIVISION AT SANTA ANA

17

18 Z.W., C.Y, X.Y., A.G., M.X., Z.L., W.R., Case No. 8:20-CV-01220 CJC (KESx)

and DOES 1 through 50,

19

Assigned to: Hon. Cormac J. Carney

Plaintiff,

Magistrate Judge: Karen E. Scott

20

vs.

PLAINTIFFS’ APPLICATION FOR

21

TEMPORARY RESTRAINING

U.S. DEPARTMENT OF HOMELAND ORDER; MEMORANDUM OF

22 SECURITY; U.S. IMMIGRATION AND POINTS AND AUTHORITIES IN

CUSTOMS ENFORCEMENT; CHAD R. SUPPORT THEREOF

23 WOLF, Acting Secretary, U.S. Department

of Homeland Security; MATTHEW

24 ALBENCE, Acting Director, U.S.

Immigration and Customs Enforcement,

25

Defendant.

26

27

28

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 2 of 35 Page ID #:112
1 Sheri Porath Rockwell (SBN 165726) sheri.rockwell@sidley.com
2 SIDLEY AUSTIN LLP 1999 Avenue of the Stars, 17th Floor
3 Los Angeles, CA 90067 Telephone: (310) 595-9500
4 Evan Caminker (pro hac vice forthcoming)
5 caminker@umich.edu Dean Emeritus and Branch Rickey Collegiate Professor of Law
6 University of Michigan Law School* 701 South State Street, 3250 South Hall
7 Ann Arbor, MI 48109-1215 Telephone: (734) 763-5221
8 Mark E. Haddad (SBN 205945)
9 markhadd@usc.edu USC Gould School of Law*
10 UNIVERSITY OF SOUTHERN CALIFORNIA 699 Exposition Blvd.
11 Los Angeles, CA 90089 Telephone: (213) 675-5957
12 13 * University affiliation provided
for identification purposes only 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 3 of 35 Page ID #:113

1

TABLE OF CONTENTS

2

3 APPLICATION .............................................................................................................. 5

4 INTRODUCTION .......................................................................................................... 8

5 BACKGROUND .......................................................................................................... 10

6

A. The F-1 Student Visa Program and Its Goal of Attracting International

Students to Study in the United States ..................................................... 10

7

B. The COVID-19 Crisis, and SEVP’s Initial, Appropriate Response ........ 11

8

C. The COVID-19 Emergency Continues, Yet Defendants Abruptly Change

9

Course to Require In-Person Instruction.................................................. 13

10

D. Plaintiffs Are International Students Who Will Be Irreparably Harmed by

the Policy Change .................................................................................... 15

11

LEGAL STANDARD................................................................................................... 19

12

ARGUMENT ................................................................................................................ 20

13

I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS .................... 20

14

A. The July 6 Policy Change Is Arbitrary and Capricious, in Violation of the

15

APA. ......................................................................................................... 20

16

1. Defendants Failed to Adequately Consider the Reliance Interests of

Student Visa Holders. .................................................................... 21

17

2. Defendants Failed to Provide a Reasoned Explanation................. 23

18

B. The July 6 Policy Change Violates the APA’s Notice-and-Comment

19

Procedures. ............................................................................................... 27

20 II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT

EMERGENCY RELIEF..................................................................................... 30

21

III. THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST TIP SHARPLY

22

IN FAVOR OF EMERGENCY RELIEF........................................................... 31

23 CONCLUSION............................................................................................................. 32

24

25

26

27

28

1

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 4 of 35 Page ID #:114

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases
4

5

Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343 (D.C. Cir. 2014)............................................................................... 22

6 Bennett v. Spear,
7 520 U.S. 154 (1997)................................................................................................. 23

8 Board of Regents of State Colleges v. Roth, 9 408 U.S. 564 (1972)................................................................................................. 31

10 Cedars-Sinai Med. Ctr. v. Shalala, 11 939 F. Supp. 1457 (C.D. Cal. 1996) ........................................................................ 30

12 Chew v. Colding,

13

344 U.S. 590 (1953)................................................................................................. 31

14 Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998)................................................................................................. 30
15

16

Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019)............................................................................................. 28

17 Dep’t of Homeland Security v. Regents of Univ. of Cal.,
18 140 S. Ct. 1891 (2020)................................................................................. 10, 22, 23

19 Disney Enters., Inc. v. VidAngel, Inc.,
20 869 F.3d 848 (9th Cir. 2017) ................................................................................... 21

21 East Bay Sanctuary Covenant, 22 950 F.3d 1242, 1280–81 (9th Cir. 2020) ................................................................. 34

23 Encino Motorcars, LLC v. Navarro, 24 136 S.Ct. 2117 (2016)........................................................................................ 23, 24
25 Hemp Indus. Ass’n v. Drug Enforcement Admin., 333 F.3d 1082 (9th Cir. 2003) ................................................................................. 29
26
27 Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) ................................................................................... 21
28

2

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 5 of 35 Page ID #:115

1 League of Wilderness Defenders v. Connaughton, 2 752 F.3d 755 (9th Cir. 2014) ................................................................................... 33

3 Mada-Luna v. Fitzpatrick,

4

813 F.2d 1006 (9th Cir. 1987) ................................................................................. 29

5 Michigan v. EPA, 135 S. Ct. 2699 (2015)............................................................................................. 26
6

7

Moore v. City of East Cleveland Ohio, 431 U.S. 494 (1977)................................................................................................. 31

8 Mora-Meraz v. Thomas,
9 601 F.3d 933 (9th Cir. 2010) ................................................................................... 29

10 Rodriguez v. Robbins, 11 715 F.3d 1127 (9th Cir. 2013) ................................................................................. 34

12 Sung v. Mc.Grath, 13 339 U.S. 33 (1950)................................................................................................... 31

14 U.S. Army Corps of Engineers v. Hawkes Co., Inc.,

15

136 S. Ct. 1807 (2016)............................................................................................. 23

16 Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008)..................................................................................................... 21
17

18

Zadvyadas v. Davis, 533 U.S. 678 (2001)................................................................................................. 30

19 Statutes, Regulations, and Agency Materials
20

21 5 U.S.C. § 551............................................................................................................... 29

22 5 U.S.C. § 553............................................................................................................... 29

23 5 U.S.C. § 702............................................................................................................... 22

24 5 U.S.C. § 706.............................................................................................21, 22, 29, 30
25 8 U.S.C. § 1101(a)(15)(F)(i) ......................................................................................... 12
26 8 C.F.R. § 214.2(f) ............................................................................................ 12, 14, 25
27
28 81 Fed. Reg. 13040 (Mar. 11, 2016)....................................................................... 12, 13

3

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 6 of 35 Page ID #:116

1 Executive Order N-33-20.............................................................................................. 14

2 Other References 3
https://news.berkeley.edu/2020/03/09/as-coronavirus-spreads-uc4 berkeley-suspends-in-person-instruction/; https://covid5 19.ucla.edu/transitioning-ucla-to-online-instruction;
https://coronavirus.usc.edu/2020/03/10/update-to-university-policies6 and-plans .................................................................................................................. 13

7 https://twitter.com/realDonaldTrump/status/1280209946085339136?s=20 ................ 11 8
https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.209 Coronavirus-SOE-Proclamation.pdf ....................................................................... 13

10 https://www.ice.gov/doclib/sevis/pdf/sevisByTheNumbers2018.pdf .......................... 13 11
https://www.iie.org/Why-IIE/Announcements/2019/11/Number-of12 International-Students-in-the-United-States-Hits-All-Time-High .......................... 13

13 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-

14 national-emergency-concerning-novel-coronavirus-disease-covid-19-

15

outbreak/ .................................................................................................................. 14

16 John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will ‘Encourage Schools to Reopen, The Hill (July 7,
17 2020) ........................................................................................................................ 11

18 Statement of Caroline Casagrande, Deputy Ass’t Sec. Bureau of 19 Educational and Cultural Affairs, U.S. Dept. of State, Apr. 22, 2020,
20 https://educationusa.state.gov/us-higher-education-professionals/ecadas-casagrande-statement-academic-exchanges-and-covid19 ................................ 15
21 U.S. Dep’t of State, EducationUSA, https://educationusa.state.gov/about-
22 educationusa, https://educationusa.state.gov/educationusa-advising-
23 centers ...................................................................................................................... 12

24 United States Department of State, Global Level 4 Health Advisory – Do 25 Not Travel (March 31, 2020),
https://travel.state.gov/content/travel/en/traveladvisories/ea/travel26 advisory-alert-global-level-4-health-advisory-issue.html ....................................... 18
27

28

4

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 7 of 35 Page ID #:117

1

APPLICATION

2

Plaintiffs are law students or graduate students at University of California Irvine

3 School of Law, University of California Los Angeles, and the University of Southern

4 California, who are currently studying in the United States on F-1 visas as part of the

5 Student and Exchange Visa Program (“SEVP”) administered by U.S. Immigration and

6 Customs Enforcement under the authority of the Department of Homeland Security

7 (collectively, “Defendants”). Each of Plaintiffs’ schools has announced that, due to the

8 ongoing (and worsening) COVID-19 crisis, instruction for Plaintiffs’ fall semesters

9 will be online only.

10

Under Guidance issued by SEVP in March, Plaintiffs would be able to continue

11 living and studying in the United States for the fall semester. But on July 6, 2020,

12 Defendants abruptly announced a policy change: if a school proceeds with online-only

13 instruction for the fall semester, then SEVP students “must leave the country or take

14 alternative steps to maintain their nonimmigrant status such as transfer to a school

15 with in-person instruction.” At this point, Plaintiffs have no feasible ability to transfer

16 to a different school, and if forced to leave the United States would be subject to

17 extreme financial hardship, health risks, and disruption to their courses of study.

18

On July 10, 2020, Plaintiffs filed a complaint challenging the July 6 policy

19 change on the following grounds: (1) it is “arbitrary and capricious” in the violation

20 the APA because Defendants failed to consider stakeholders’ reliance interests on the

21 prior policy, and because Defendants failed to provide a reasoned explanation; (2) it

22 was improperly issued without meeting notice-and-comment requirements, also in

23 violation of the APA; and (3) it violates the Due Process Clause. Plaintiffs now

24 request a temporary restraining order (“TRO”) enjoining the implementation of the

25 July 6 policy change on the grounds that Plaintiffs are likely to succeed on the merits,

26 Plaintiffs will suffer irreparable harm absent emergency relief, and the balance of

27 hardships and public interest tip sharply in favor of Plaintiffs and maintaining the

28 status quo.

5

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 8 of 35 Page ID #:118

1

On July 13, 2020, counsel for Plaintiffs Mark D. Rosenbaum met and conferred

2 by phone and email with counsel for Defendants, David M. Harris, Chief, Civil

3 Division, United States Attorney’s Office, Central District of California. Mr. Harris

4 indicated Defendants were likely to oppose the Application. The contact information

5 for Mr. Harris is: United States Attorney's Office, Central District of California,

6 Federal Building, Room 7516, 300 N. Los Angeles St., Los Angeles, California

7 90012; 213.894.8817; David.M.Harris@usdoj.gov.

8

This Application is based upon the accompanying Memorandum of Points and

9 Authorities and the supporting Declaration of Sheri Porath Rockwell and exhibits

10 thereto; the Declarations of Plaintiffs Z.W., C.Y., X.Y., A.G., M.X., Z.L., and W.R;

11 the Declaration of L. Song Richardson, Dean of University of California Irvine School

12 of Law; the Declaration of Sarah Zearfoss, Senior Assistant Dean and Director of the

13 Admissions Office at the University of Michigan Law School; the Declaration of Dr.

14 Ranit Mishori; the pleadings and argument of counsel; and such other matters that

15 may be presented to the Court and/or subject to judicial notice.

16 17 DATED: July 14, 2020 18 19 20 21 22 23

By: /s/ David R. Carpenter* Lisa M. Gilford David R. Carpenter Stacy Horth-Neubert Sheri Porath Rockwell SIDLEY AUSTIN LLP
By: /s/ Mark D. Rosenbaum Mark D. Rosenbaum PUBLIC COUNSEL

24

By: /s/ Evan Caminker

25

Dean Emeritus and Branch Rickey

Collegiate Professor of Law

26

UNIVERSITY OF MICHIGAN

27

LAW SCHOOL**

28

6

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 9 of 35 Page ID #:119

1

By: /s/ Mark E. Haddad

2

USC Gould School of Law

UNIVERSITY OF SOUTHERN

3

CALIFORNIA**

4

Attorneys for Plaintiffs

5

Z.W., C.Y, X.Y., A.G., M.X., Z.L., W.R.,

6

and DOES 1 through 50

7 * Filer attests that all signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the filing.
8 ** University affiliation provided for identification purposes only.
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 10 of 35 Page ID #:120

1

INTRODUCTION

2

Plaintiffs are among the hundreds of thousands of international students who

3 have come to the United States as part of the Student and Exchange Visa Program

4 (“SEVP”), where they have invested time, money, and energy into pursuing their

5 degrees. When the COVID-19 crisis hit, SEVP initially responded appropriately. On

6 March 9, 2020, it issued a guidance assuring visa students that they could remain in 7 the country, even if their universities went to online-only instruction.1 It further 8 advised that the adapted procedures were “for the duration of the emergency.”2

9

The COVID-19 emergency has not abated; to the contrary, COVID-19 cases are

10 surging. Given these conditions, and in reliance on the March Guidance, numerous

11 universities have already committed to online instruction for the fall, and students

12 have also planned accordingly. Yet on July 6, Defendants abruptly shifted course: they

13 announced that, if a school continues with online-only instruction for the fall semester,

14 SEVP students “must leave the country or take alternate steps … such as transferring 15 to a school with in-person instruction.”3

16

Just one month ago, the Supreme Court warned that, when the Executive

17 Branch changes course, it must “turn square corners” by considering all important

18 aspects of the problem, including people’s reliance on the prior policy. Dep’t of

19 Homeland Security v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1909, 1914 (2020) (

20 “Regents”). Defendants again have failed to heed that requirement.

21

The July 6 policy change is unsupported by any reasoned explanation and is

22 entirely arbitrary, whether viewed from the perspective of public health, the integrity

23 1 Broadcast Message: Coronavirus Disease 2019 (COVID-19) and Potential
24 Procedural Adaptations for F and M nonimmigrant students, No. 2003-01 (Mar. 9, 2020) (hereinafter “March 9 Guidance”), attached as Exhibit A to the Declaration of
25 Sheri Porath Rockwell (“Rockwell Decl.”).

26

2 COVID-19: Guidance for SEVP Stakeholders, March 13, 2020 (emphasis added) (hereinafter the “March 13 Guidance,” and together with the March 9 Guidance, the

27 “March Guidance”), attached as Rockwell Decl. Ex. B.

3 Broadcast Message: COVID-19 and Fall 2020, No. 2007-01 (July 6, 2020) 28 (hereinafter “July 6 Guidance”), attached as Rockwell Decl. Ex. C.

8

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 11 of 35 Page ID #:121

1 of the student-visa program, or the March Guidance. It ignores the ongoing COVID-

2 19 crisis and the on-the-ground expertise of university officials as to the safest course

3 for their communities. It fails to consider the extraordinary impact on students and the

4 significant reliance interests created by the March Guidance. The July 6 policy change

5 makes sense only as a cruel pretext to use SEVP students as leverage “to encourage

6 schools to reopen”—which is the explanation for the policy given to reporters by

7 Acting Deputy Secretary of Homeland Security Ken Cuccinelli,4 consistent with the

8 President’s July 6 tweet, “SCHOOLS MUST OPEN IN THE FALL!!!”5

9

Plaintiffs are SEVP students who are in law school or graduate programs in

10 California and will be irreparably harmed by the policy change. If they are forced to

11 leave the country, they will face exorbitant financial costs and health risks to return to

12 places where continuing their studies will be impractical, if not impossible. Contrary

13 to what Defendants glibly suggest, they cannot simply transfer to a different school

14 just one month before the semester starts. Even if it were possible to attend classes in-

15 person, Plaintiffs cannot do so without risking exposing themselves to the coronavirus

16 and thus risking their health and the health of others.

17

Based on the foregoing, Plaintiffs now seek a temporary restraining order

18 (“TRO”) preventing Defendants from implementing the July 6 policy change.

19 Plaintiffs are likely to succeed on the merits, as the policy change violates the

20 Administrative Procedure Act (“APA”) in multiple ways, and so arbitrarily impairs

21 students’ liberty and property interests as to violate due process. Plaintiffs have also

22 shown irreparable harm and that the balance of hardships and public interest tip

23 decisively in favor of a TRO to preserve the status quo. Accordingly, Plaintiffs

24 respectfully request that their application be granted in full.

25 4See John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will 'Encourage Schools to Reopen, The Hill (July 7, 2020),
26 https://thehill.com/homenews/administration/506248-cuccinelli-says-rule-forcinginternational-students-to-return-home. All websites were last visited July 14, 2020.
27 5 Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM EDT), 28 https://twitter.com/realDonaldTrump/status/1280209946085339136?s=20.

9

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 12 of 35 Page ID #:122

1

BACKGROUND

2

A. The F-1 Student Visa Program and Its Goal of Attracting

3

International Students to Study in the United States

For decades, the United States has labeled students as “non-immigrants” and 4

operated a student-visa program. Section 101(a)(15)(F)(i) of the Immigration and 5

Nationality Act of 1952, as amended (INA), 8 U.S.C. 1101(a)(15)(F)(i), establishes 6

the current F-1 nonimmigrant classification for “bona fide student[s] qualified to 7

pursue a full course of study” at an academic institution certified by SEVP, which is a 8

subdivision of U.S. Immigration and Customs Enforcement (“ICE”), within the 9

Department of Homeland Security (“DHS”). See also 81 Fed. Reg. 13040, 13044-45 10

(Mar. 11, 2016) (providing background to statutory and regulatory history). The 11

current requirements for the F-1 student visa program, and the related ability to 12

engage in optional practical training (“OPT”), are set forth at 8 C.F.R. § 214.2(f). 13

The visa program exists not just for the benefit of the students but because of 14

“the substantial economic, scientific, technological, and cultural benefits provided by 15

the F-1 nonimmigrant program generally.” 81 Fed. Reg. at 13047. “International 16

students have historically made significant contributions to the United States, both 17

through the payment of tuition and other expenditures in the U.S. economy, as well as 18

by significantly enhancing academic discourse and cultural exchange on campuses 19

throughout the United States.” Id.; see also Richardson Decl. ¶¶ 18-20. For that 20

reason, the United States “promotes U.S. higher education to students around the 21

world,” including through programs such as the State Department’s EducationUSA, 22

which sets up “advising centers” around the world to persuade students to choose to 23

come to this country and assist qualified candidates in accessing U.S. higher education 24

opportunities.6 25

According to studies cited by DHS, as of 2013, nearly 900,000 international 26

27 6 See U.S. Dep’t of State, EducationUSA, https://educationusa.state.gov/about28 educationusa, https://educationusa.state.gov/educationusa-advising-centers.

10

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 13 of 35 Page ID #:123

1 students were affiliated with U.S. colleges and universities, and they contributed $26.8

2 billion to the U.S. economy in the form of tuition, housing payments, and living

3 expenses for themselves and family. 81 Fed. Reg. at 13047-48. The numbers have

4 only grown since then, with over 1,090,000 international students attending higher

5 education institutions in 2018 and collectively contributing $44.7 billion to the U.S.

6 economy.7 In 2018, California hosted more than 300,000 nonimmigrant students,

7 more than any other state.8

8

B. The COVID-19 Crisis, and SEVP’s Initial, Appropriate Response

9

In early March 2020, the world began to acknowledge the onset pf what we

10 know today is a global COVID-19 pandemic. Mishori Decl. ¶ 7. California’s

11 institutions quickly responded. Both symptomatic and asymptomatic individuals

12 contribute to the spread of the novel coronavirus, the virus that causes COVID-19

13 disease, through respiration (e.g., coughing, sneezing, or talking) and by touching and

14 thereby contaminating surfaces. Id. ¶ 8. The primary interventions to stop the spread

15 of coronavirus are (1) social distancing, (2) engaging in optimal hygiene practices, and

16 (3) quarantining. Id. ¶ 25.

17

In response to the growing crisis, on March 4, 2020, Governor Gavin Newsom

18 declared a state of emergency.9 Within a week, on March 9, universities began

19 suspending in-person instruction, including schools in the University of California

20 (“UC”) system and the University of Southern California (“USC”).10 As the threat

21 progressed, on March 19, Governor Newsom announced a statewide stay-at-home

22

23 7 See https://www.iie.org/Why-IIE/Announcements/2019/11/Number-of-InternationalStudents-in-the-United-States-Hits-All-Time-High.
24 8 https://www.ice.gov/doclib/sevis/pdf/sevisByTheNumbers2018.pdf.

25 9 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-

Proclamation.pdf.

26 10 See Richardson Decl. ¶ 5 (UCI); see also https://news.berkeley.edu/2020/03/09/as-

27

coronavirus-spreads-uc-berkeley-suspends-in-person-instruction/; https://covid19.ucla.edu/transitioning-ucla-to-online-instruction;

28 https://coronavirus.usc.edu/2020/03/10/update-to-university-policies-and-plans.

11

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 14 of 35 Page ID #:124

1 order that, among other things, confirmed that universities could not continue

2 operating in-person classes.11

3

Consistent with these unprecedented developments, on March 9, SEVP issued a

4 Broadcast Message—the March 9 Guidance. Rockwell Decl. Ex. A. The purpose of

5 the March 9 Guidance was to address the requirement that visa students maintain a

6 “full course of study,” which by regulation generally precludes F-1 students from

7 taking more than one class “on-line or through distance education and does not require

8 the student’s physical attendance for classes.” 8 C.F.R. 212.4(f)(6)(i)(G). The March 9

9 Guidance recognized that “SEVP-certified schools may need to adapt their procedures

10 and policies to address the significant public health concerns associated with the

11 COVID-19 crisis.” Rockwell Decl. Ex. A, at 1. It assured schools and students that

12 “SEVP is focused on ensuring that nonimmigrant students are able to continue to

13 make normal progress in a full course of study as required by federal regulations,” and

14 that “SEVP intends to be flexible with temporary adaptations.” Id. at 1.

15

On March 13, President Trump declared a COVID-19 national emergency.12

16 On that same date, SEVP issued additional guidance (the March 13 Guidance) to

17 address inquiries it had received concerning the “different scenarios” a school or

18 student might face as the pandemic played out. Rockwell Decl. Ex. B at 1. In

19 particular, SEVP assured stakeholders that, if a school closes temporarily but offers

20 online instruction, SEVP will allow F-1 students to “count online classes towards a

21 full course of study,” notwithstanding the limits in 8 CFR 214.2(f)(6)(i)(G). Id. The

22 March 13 Guidance cautioned that this accommodation was “temporary” in that it was

23 intended to be only in effect “for the duration of the emergency,” and could change as

24 SEVP continued “to monitor the COVID-19 situation.” Id. at 1-2.

25
26 11 See Executive Order N-33-20, Executive Dep’t State of California (March 19, 2020).
27 12 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national28 emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.

12

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 15 of 35 Page ID #:125

1

C. The COVID-19 Emergency Continues, Yet Defendants Abruptly

Change Course to Require In-Person Instruction 2

While the spring semester has concluded, the COVID-19 emergency has not.

3

Mishori Decl. ¶ 40. Summer did not cause the virus to disappear, and the President

4

has not withdrawn the national emergency declaration. To the contrary, in California

5

and elsewhere, COVID-19 infection and death rates remain consistent with—and

6

indeed are exceeding—the levels when the March Guidance was issued. Id. ¶¶ 20-22.

7

Schools have seen an increase in positive cases among students and faculty since June.

8

Richardson Decl. ¶ 16.

9

Given these conditions and in reliance on the March Guidance, schools in

10

California and across the country expended significant time and expense to assess and

11

craft plans for the Fall 2020 academic year aimed at protecting the health and safety of

12

the students, faculty and staff, while allowing students to attend classes. See, e.g.,

13

Richardson Decl. ¶¶ 15, 6-14, 22. After careful consideration, schools adopted various

14

education programs, which include online-only class schedules for some or all

15

students. Id. ¶¶ 13-14.

16

The ongoing effects of the COVID-19 crisis are, unfortunately, not surprising.

17

Even members of the State Department had recognized the possibility that “the fall

18

semester on U.S. campuses is largely conducted online,” yet continued “to encourage

19

international students to choose U.S. institutions,” because “U.S. higher education’s

20

academic quality, rigor and values, including critical thinking and academic freedom,

21 will be fully maintained through its virtual offerings as well.”13

22

Notwithstanding the ongoing crisis, on July 6, 2020, Defendants abruptly

23

reversed course and effectively rescinded the March Guidance. In the opening

24

paragraph of the July 6 announcement, SEVP stated as follows:

25

26

27

13 Statement of Caroline Casagrande, Bureau of Educ. & Cultural Affairs, U.S. Dept. of State, Apr. 22, 2020, https://educationusa.state.gov/us-higher-education-

28 professionals/eca-das-casagrande-statement-academic-exchanges-and-covid19.

13

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 16 of 35 Page ID #:126

1

Temporary procedural adaptations related to online courses

2

permitted by the Student and Exchange Visitor Program

(SEVP) during the height of the Coronavirus Disease

3

(COVID-19) crisis will be modified for the fall 2020

4

semester. There will still be accommodations to provide

flexibility to schools and nonimmigrant students, but as

5

many institutions across the country reopen, there is a

6

concordant need to resume the carefully balanced

protections implemented by federal regulations.

7 Rockwell Decl., Ex. C. at 114 With that preface, SEVP announced that it “is modifying

8 the temporary exemptions” announced in March. Under the new policy, nonimmigrant

9 students “attending schools operating entirely online [for the fall] may not take a full

10 online course load and remain in the United States.” Id. Instead, they “must depart the

11 country or take other measures, such as transferring to a school with in-person

12 instruction to remain in lawful status. If not, they may face immigration consequences

13 including, but not limited to, the initiation of removal proceeding.” Id. The Guidance

14 further states that, if a school begins the semester with in-person instruction, but then
15 switches to online-only instruction, students “must leave the country or take

16 alternative steps to maintain their nonimmigrant status.” Id. at 2.

17 Reflecting that the July 6 Guidance would have immediate effect, SEVP stated
18 that schools are required to notify SEVP by July 15, 2020 if they intend to only offer

19 remote instruction. Id. (emphasis added). The Guidance also imposes on schools the

20 nearly impossible burden of issuing, by August 4, new “Form I-20” certifications for
21 “each” of their international students, confirming that each student is not taking an

22 entirely online course load for the fall. Id. at 2; see also Richardson Decl. ¶ 26.

23 Also on July 6, at 2:40 p.m. Eastern Time, President Donald Trump tweeted his
24 support for the opening of schools by stating, “SCHOOLS MUST OPEN IN THE

25

26 14 The paragraph continued by stating that DHS “publish the procedures and

27

responsibilities … in the near future as a Temporary Final Rule in the Federal Register. This message is intended to provide additional time to facilitate the

28 implementation of these procedures.” Id.

14

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 17 of 35 Page ID #:127

1 FALL!!!”15 The next day, Acting DHS Secretary Ken Cuccinelli, in response to

2 questions from reporters about the policy change, confirmed his view that, if a

3 university is not holding in-person classes, then “[t]here isn’t a reason for a person

4 holding a student visa to be present in the country;” he further acknowledged the real

5 purpose behind the policy, explaining that the agency was setting the rules to

6 “encourage schools to reopen.” Id.

7

Also on July 7, in an apparent response to the uproar over the policy change,

8 Defendants issued an FAQ purporting to provide a different rationale. It claimed,

9 among other things, the policy was designed to “maximize flexibility for students to

10 continue their studies, while minimizing the risk of transmission of COVID-19 by not

11 admitting students into the country who do not need to be present to attend classes in-

12 person.” Rockwell Decl. Ex. D.

13

D. Plaintiffs Are International Students Who Will Be Irreparably

14

Harmed by the Policy Change

15

Plaintiffs are international students currently enrolled in graduate degree

16 programs, including law schools, at prominent universities in southern California on

17 F-1 student visas. Z.L. Decl. ¶ 1; Z.W. Decl. ¶ 1; W.R. Decl. ¶ 1; M.X. Decl. ¶ 1; C.Y.

18 Decl. ¶ 1; A.G. Decl. ¶ 1; X.Y. Decl. ¶ 1. Most have completed their first or second

19 years in law school, and one Plaintiff is nearing the completion of a years-long PhD

20 program in film studies. See id. Plaintiffs attend schools that are exclusively offering

21 online education in the fall either to all students or to students similarly situated to

22 Plaintiffs. A.G. Decl. ¶ 9; Richardson Decl. ¶ 13.

23

Transfer is not a realistic option. For Plaintiffs attending law school, it is not

24 feasible to transfer to a different school because, for example, the transfer deadline

25 either had already passed prior to July 6 or is so imminent that students would have no

26 time to assemble the materials for their application. Zearfoss Decl. ¶¶ 4-7. Moreover,

27 15 Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM); see also 28 Donald J. Trump (@realDonaldTrump), Twitter (July 10, 2020, 7:41 AM).

15

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 18 of 35 Page ID #:128

1 if a university transitions to online-only instruction mid-semester due to changing

2 COVID-19 conditions, a mid-semester transfer would be impossible. Further, law

3 schools and other postgraduate programs are not fungible, as they often serve specific

4 markets or have other specializations. Id. ¶ 8.

5

Thus, under the July 6 Guidance, Plaintiffs will be forced to leave the United

6 States and be ripped from their communities and their academics. Their carefully-laid

7 financial, health, employment, immigration, and personal plans will be upended. For

8 example:

9

Housing. By July 6, several Plaintiffs had already entered into leases and

10 secured housing in reliance on their ability to be present in the United States during

11 the fall term, regardless of how their schools decided to hold class. X.Y. Decl. ¶¶ 4,

12 11; C.Y. Decl. ¶ 6; Z.W. Decl. ¶ 6; A.G. ¶ 4; M.X. Decl. ¶ 4; Z.W. Decl. ¶¶ 4, 6; C.Y.

13 Decl. ¶ 6. If forced to leave the country, they will suffer financial losses from having

14 to break their leases and lose security deposits, or otherwise continue to pay rent until

15 the lease terminates. See id. They would also have to incur expensive moving and

16 storage costs. Z.L. Decl. ¶ 8. If their schools reopen again during this coming

17 academic year, they will incur additional moving costs, assuming they are even able to

18 find housing on short notice.

19

Travel. Multiple countries have shut their borders and banned all transnational

20 flights due to the pandemic; others have specifically barred flights from the United

21 States.16 As airline passengers, Plaintiffs would spend hours in a confined space

22 surrounded by shared surfaces—exactly the kind of prolonged exposure that creates

23 substantial risk of contracting the novel coronavirus. Mishori Decl. ¶ 36; W.R. Decl.

24 ¶ 4. Further, travel to Plaintiffs’ home countries has become exorbitantly, and for

25 some prohibitively, expensive. X.Y. Decl. ¶ 6; M.X. Decl. ¶ 6; W.R. Decl. ¶ 4; C.Y.

26 16 See United States Department of State, Global Level 4 Health Advisory – Do Not

27

Travel (March 31, 2020), https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisory-alert-

28 global-level-4-health-advisory-issue.html.

16

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1 Decl. ¶¶ 7, 14. In addition, for students returning to countries, such as China, that have

2 imposed a quarantine on incoming travelers, the students would have to pay for 14

3 days’ lodging while they quarantine. M.X. Decl. ¶ 6; W.R. Decl. ¶ 4; Z.W. Decl. ¶ 6;

4 C.Y. Decl. ¶ 8. If their schools reopen during the academic year, the Plaintiffs would

5 have to incur travel costs and expose themselves to the risk of travel all over again.

6

Health Risks. In addition to the increased risk of exposure to the novel

7 coronavirus during transit, Z.W. Decl. ¶ 7, C.Y. Decl. ¶ 9, Plaintiffs also would need

8 to maintain unhealthy irregular sleep schedules if they are forced to take classes and

9 attempt to participate in extracurricular activities remotely from their home countries.

10 Z.L. Decl. ¶ 5. Further, certain Plaintiffs have already paid for their 2020–2021 health

11 insurance plans through their universities—plans that will do nothing for them in their

12 country of origin. X.Y. Decl. ¶ 5; A.G. Decl. ¶ 11. Several Plaintiffs would also

13 subject their older family members to greater risk by returning home to live with

14 them. A.G. Decl. ¶¶ 11-12; Z.L. Decl. ¶ 4; Mishori Decl. ¶ 37.

15

Education Inequities. Students in different time zones, some with a 16-hour

16 difference, will be forced to choose between attending online classes in the middle of

17 the night or watching recorded classes. A.G. Decl. ¶ 13; Z.L. Decl. ¶ 5; C.Y. Decl.

18 ¶ 10; Z.W. Decl. ¶ 8; Richardson Decl. ¶¶ 23, 24. Those who attempt to participate in

19 live classes will be required to stay alert for two to three hours of lectures occurring in

20 the middle of the night in their time zones. Those who opt to watch recordings will be

21 harmed because they will not be able to ask questions during class, participate in class

22 discussions, or otherwise have a visible presence. Richardson Decl. ¶ 23; Z.L. Decl.

23 ¶ 5. Either way, students will be put at a substantial disadvantage compared to their

24 classmates who are able to take the same classes during their normal waking hours.

25 Richardson Decl. ¶ 23; Z.L. Decl. ¶ 5; A.G. Decl. ¶ 13.

26

Further, forcing Plaintiffs to return to their countries of origin will severely

27 limit their practical learning opportunities. In law school clinical programs, meeting

28 and communicating with clients, supervisors, and team members constitute a

17

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1 meaningful part of the educational experience. W.R. Decl. ¶ 5; Richardson Decl. ¶ 24.

2 Both clinic and pro bono opportunities would be impacted, further disadvantaging

3 Plaintiffs, as some law schools confer graduation honors based on the number of pro

4 bono hours completed. Richardson Decl. ¶ 24; C.Y. Decl. ¶ 10.

5

For some Plaintiffs, participating in online classes in their countries of origin

6 may not be an option at all. Internet access, which is absolutely necessary for remote

7 learning, is not guaranteed in all of their countries. Z.L. Decl. ¶ 5. Some countries

8 have restricted internet access while others block it altogether. W.R. Decl. ¶ 5; M.X.

9 Decl. ¶ 7; Z.W. Decl. ¶ 8; C.Y. Decl. ¶ 10. Others heavily monitor internet activity

10 and curtail or limit access to needed resources. W.R. Decl. ¶ 5; M.X. Decl. ¶ 7; Z.W.

11 Decl. ¶ 8; C.Y. Decl. ¶ 10; Z.L. Decl. ¶ 5. Many schools, including UC Irvine, use

12 Google products like Gmail and Google Drive to communicate and collaborate on

13 academic and clinical, access to which is limited in China. W.R. Decl. ¶ 5; M.X. Decl.

14 ¶ 7; Z.W. Decl. ¶ 8; C.Y. Decl. ¶ 10. In addition, some students fear being exposed to

15 government harassment based on the contents of their studies. Z.L. Decl. ¶ 9. These

16 restrictions and impediments will make it difficult, if not impossible, for many

17 Plaintiffs to continue their studies abroad.

18

Inequities in Employment and Training Opportunities. The July 6 Guidance

19 also will effectively prevent Plaintiffs who are in law school from physically attending

20 on campus interviews for summer employment. C.Y. Decl. ¶ 12. If schools decide to

21 hold virtual on campus interview, Plaintiffs will have to interview in the middle of the

22 night and compete against domestic students who are interviewing during normal

23 business hours. Id. Many of the Plaintiffs had planned to apply for jobs or work

24 programs following graduation. X.Y. Decl. ¶¶ 8-9; M.X. Decl. ¶ 5; Z.W. Decl. ¶ 5.

25 The July 6 Guidance will effective prevent Plaintiffs whose schools will operate

26 entirely online from applying for Curricular Practical Training (“CPT”) and Optional

27 Practical Training (“OPT”) visa programs, both of which require students to be

28 physically present in the United States at the time of application.

18

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1

Personal Costs. Plaintiffs have made major life decisions in reliance on staying

2 in the United States while in school. If forced to leave, four Plaintiffs would be

3 separated from their spouse or partner. W.R. Decl. ¶ 3; M.X. Decl. ¶¶ 3, 10; Z.L. ¶ 11;

4 X.Y. Decl. ¶ 10. One Plaintiff chose to attend USC in order to serve as the sole

5 familial caretaker for her elderly great aunt who lives in Los Angeles, and who would

6 be without a family member to care for her if she is forced to leave the country. A.G.

7 Decl. ¶¶ 5, 11. Another fears returning home at this time, including because she may

8 not be welcomed at her parents’ home and has no idea where she might live if not

9 permitted to stay in the U.S. Z.L Decl. ¶¶ 8-9. Another Plaintiff is concerned about

10 abandoning the meaningful friendships she has developed with her classmates,

11 professors and lawyers in the area. C.Y. Decl. ¶ 13.

12

In general, since the July 6 Guidance, Plaintiffs have suffered severe anxiety

13 and stress, their plans for the fast-approaching academic year now in disarray. A.G.

14 Decl. ¶ 8; W.R. Decl. ¶ 8; Z.L. Decl. ¶¶ 10, 12; C.Y. Decl. ¶¶ 13-14. As Plaintiff W.R.

15 says, “ICE’s revised policy is treating international students with cruelty, and it

16 threatens to separate families like mine in the middle of this incredibly challenging

17 moment for everyone around the world.” W.R. Decl. ¶ 8.

18

LEGAL STANDARD

19

Motions for temporary restraining orders are governed by the same four-factor

20 test as preliminary injunctions: Courts consider whether petitioners have shown: (1) a 21 likelihood of success on the merits, (2) that they are likely to suffer irreparable harm

22 in the absence of such relief, (3) that the balance of equities tips in their favor, and

23 (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 24 555 U.S. 7, 20 (2008); Hernandez v. Sessions, 872 F.3d 976, 989-90 (9th Cir. 2017).

25

Under the Ninth Circuit’s “sliding scale” approach, “a stronger showing of one

26 element may offset a weaker showing of another.” Hernandez, 872 F.3d at 989-90 27 (quoting Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (per curiam)). For

28

19

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1 example, injunctive relief is warranted when an applicant raises “serious questions

2 going to the merits,” if the balance of hardships “tips sharply towards” granting an

3 injunction in light of the danger of irreparable harm and after weighing the public

4 interest. Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017)

5 (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011)).

6

ARGUMENT

7 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

8

As set forth in Plaintiffs’ Complaint and below, the July 6 Guidance violates the

9 Administrative Procedure Act (“APA”), 5 U.S.C. § 706, because it is arbitrary and

10 capricious in failing to consider the reliance interests of student visa holders and

11 failing to provide a reasoned explanation for the change in policy, notwithstanding the

12 fact that the COVID-19 crisis is continuing and, indeed, surging. The July 6 Guidance

13 was also issued without meeting notice-and-comment requirements for actions

14 affecting substantial rights and is so arbitrarily imposed as to violate due process.

15

A. The July 6 Policy Change Is Arbitrary and Capricious, in Violation

16

of the APA.

17

The APA provides a mechanism for courts to review final agency action, 5

18 U.S.C. § 702, and it directs courts “[to] hold unlawful and set aside” actions that are

19 “arbitrary” or “capricious,” 5 U.S.C. § 706(2)(A). See Regents, 140 S. Ct. at 1905. At

20 its core, the APA requires agencies “to engage in ‘reasoned decisionmaking.’” Id.

21 (citation omitted). Agency action will be found arbitrary and capricious where the

22 agency has “‘failed to consider an important aspect of the problem.’” Id. at 1910

23 (quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto.

24 Ins. Co., 463 U.S. 29, 43 (1983)); see also Amerijet Int’l, Inc. v. Pistole, 753 F.3d

25 1343, 1350 (D.C. Cir. 2014) (explaining that it is “a fundamental requirement of

26 administrative law … that an agency set forth its reasons for decision[s]; an agency’s

27 failure to do so constitutes arbitrary and capricious agency action”) (citation omitted).

28

Here, the July 6 policy change qualifies as final agency action under the APA.

20

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1 It announces a definitive decision that SEVP procedures and responsibilities “will be

2 modified for the fall 2020 semester” through publication of a Temporary Rule, and it

3 immediately alters students’ and schools’ obligations by telling them what they “must”

4 do under the new rule. Rockwell Decl. Ex. C, at 1. For schools, the July 6 Guidance

5 directs that they “must complete an operational change plan … no later than

6 Wednesday, July 15, 2020.” Id. at 2 (emphasis in original). For students, it instructs

7 that, if their program will be online only, then they “must depart the country or take

8 other measures … or potentially face immigration consequences including, but not

9 limited to, the initiation of removal proceedings.” Id. at 1. In these respects, the July 6

10 Guidance squarely satisifies the conditions for finality, as it cannot be considered

11 “merely tentative or interlocutory,” and it is clearly intended to trigger changes in

12 schools’ and students’ conduct and obligations, as well as the legal consequences that

13 flow from them. Bennett v. Spear, 520 U.S. 154, 177-178 (1997); see also U.S. Army

14 Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807, 1810 (2016).

15

As explained below, Defendants’ action should be set aside as arbitrary and

16 capricious, as it is devoid of reasoned decisionmaking and fails to consider important

17 aspects of the problems.

18

1. Defendants Failed to Adequately Consider the Reliance

19

Interests of Student Visa Holders.

20

In Regents, the Supreme Court explained that when an agency changes policy in

21 a way that affects substantial interests, it must “turn square corners.” 140 S. Ct. at

22 1909 (internal quotation omitted). That includes considering “whether there was

23 ‘legitimate reliance’” on the prior policy, even if the prior policy was merely an

24 exception to the enforcement of the law as written and did not purport to provide any

25 permanent rights. Id. at 1913. In other words, when an agency is “not writing on a

26 blank slate,” it is “required to assess whether there were reliance interests, determine

27 whether they were significant, and weigh any such interests against competing policy

28 concerns.” Id. at 1915 (emphasis added). The failure to do so, by itself, renders an

21

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1 action arbitrary and capricious. Id. at 1913-15; see also Encino Motorcars, LLC v.

2 Navarro, 136 S. Ct. 2117, 2126 (2016).

3

Here, when SEVP announced the March 9 Guidance, it did so out of

4 recognition that “SEVP-certified schools may need to adapt their procedures and

5 policies to address the significant public health concerns associated with the COVID-

6 19 crisis.” Rockwell Ex. A, at 1. And it assured students and schools that “SEVP

7 intends to be flexible with temporary adaptations.” Id. Then, in the March 13

8 Guidance—when President Trump declared a national emergency—SEVP specifically

9 advised that, if schools transitioned to online only instruction, students could still

10 count those online courses toward their “full course of study.” Rockwell Ex. B, at 1.

11

To be sure, the March Guidance reflected that the accommodations for online

12 instruction were “temporary,” in that they were intended to be “only in effect for the

13 duration of the emergency.” Id. (emphasis added). Similarly, SEVP advised that the

14 guidance “may be subject to change” due to “the fluid nature of this difficult

15 situation,” and that “SEVP will continue to monitor the COVID-19 situation and will

16 adjust its guidance as needed.” But the plain meaning of those caveats is that any

17 changes in policy would be based on changes in the COVID-19 situation. Nothing

18 suggested that Defendants would rescind the policy while the emergency was still

19 ongoing, even though students and schools are still facing “the significant public

20 health concerns” that motivated the initial policy.

21

Schools acted in reliance on the March Guidance when, facing ongoing health

22 risks, they made the difficult decision to continue with virtual instruction during the

23 fall semester. Richardson Decl. ¶ 15. And students, including Plaintiffs, acted in

24 reliance on the March Guidance in committing to housing and planning for the fall

25 semester, believing that they would be able to continue living and studying in the

26 United States, even if the continuing spread of the coronavirus required virtual

27 programming. A.G. Decl. ¶ 16; C.Y. Decl. ¶ 6; M.X. Decl. ¶ 4; X.Y. Decl. ¶ 4; Z.W.

28 Decl. ¶ 4. See Background Part D, supra.

22

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1

Yet Defendants took none of this into account in issuing the July 6 Guidance. It

2 is undisputed that the President’s emergency proclamation remains in effect, and the

3 July 6 Guidance does not suggest that the public health crisis has materially lessened,

4 such that schools and students should have expected a policy change. Defendants also

5 nowhere accounted for the fact that, by July 6, many schools had already committed

6 to online instruction for the fall. Nor did Defendants consider the fact that students

7 had already committed to their fall program and, with barely a month before the start

8 of classes, likely would have no ability to transfer to a comparable program.

9

If Defendants had determined upfront that in-person learning would be required

10 in the fall, regardless of the COVID-19 situation, they could have said so. But having

11 given students assurances that the March Guidance would be in effect for “the

12 duration of the emergency,” Defendants were not writing on blank slate and could not

13 change the policy without at least considering students’ legitimate reliance interests.

14 Defendants’ failure to do so, by itself, renders the policy change arbitrary and

15 capricious and therefore void.

16

2. Defendants Failed to Provide a Reasoned Explanation.

17

Even if one puts the reliance interests aside, the July 6 Guidance is still

18 unsupported by any adequate, reasoned explanation and manifestly failed to consider

19 important aspects of the problem. Indeed, to the extent Defendants have provided an

20 explanation, it is patently insufficient and likely pretextual.

21

1. At the outset, the July 6 Guidance is devoid of any reasoned explanation at

22 all. At less than three pages long, the July 6 Guidance is replete with directions on

23 what schools and students “must” do, but it absolutely no discussion – none at all – of 24 any factors that Defendants considered.

25

The closest the July 6 Guidance comes to providing a policy explanation is the

26 opaque assertion that there is a “need to resume the carefully balanced protections 27 implemented by federal regulations.” Rockwell Decl. Ex. C. But this is merely

28

23

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1 conclusory: it fails even to articulate what the “need” is or what those “carefully

2 balanced protections” are, let alone to explain what the “need” is now “to resume”

3 them. Id. Presumably, the latter statement is referring to the regulations’ definition of

4 a “full course of study” as involving mostly in-person classes, 8 C.F.R. §

5 214.2(f)(6)(i)(G)—a requirement that ensures that visa student have a bona fide reason

6 for being in the United States and are not using enrollment in pay-to-attend online

7 courses as an excuse to immigrate here. Those concerns are entirely inapplicable to

8 Plaintiffs and other SEVP students who came to this country to attend competitive and

9 well-established universities, and who would be committed to a full course of in-

10 person study but for the unprecedented conditions created by the novel coronavirus.

11

Meanwhile, the July 7 FAQ provides a different, but equally deficient, rationale

12 for the shift in guidance. The July 7 FAQ did not refer to the “carefully balanced

13 protections” of federal regulations, but instead suggested that the policy was

14 implemented “to maximize flexibility for students to continue their studies, while

15 minimizing the risk of the risk of transmission of COVID-19 by not admitting

16 students into the country who do not need to be present to attend classes in-person.”

17 Rockwell Decl. Ex. D, at 3.

18

That makes no sense. First, this “explanation” does not account for the fact that

19 the policy change impacts students already in the United States. As to this group, the

20 July Guidance pressures students to attend in-person classes, which would increase

21 the risk of transmission―precisely the opposite objective the new Guidance purports

22 to achieve with respect to students currently overseas. Second, even as to students

23 currently overseas, the July 6 Guidance specifically invites them to return to the U.S.

24 by transferring to other schools providing in-class instruction. Thus, even as to that

25 group, the policy is not rationally designed to limit the transmission of COVID-19.

26

Thus, if anything, the July 7 FAQ only confirms the lack of reasoned

27 decisionmaking, as it is neither consistent with the reasons given in the July 6

28 Guidance, nor is it internally coherent or rationally related to the policy change.

24

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1

2. The lack of a reasoned explanation for the July 6 policy change alone

2 establishes that it is arbitrary and capricious under the APA. Regents, 140 S. Ct. at

3 1915. But the July 6 Guidance is independently arbitrary and capricious because it is

4 devoid of evidence that Defendants “pa[id] attention to the advantages and the

5 disadvantages of [their] decisions.” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015).

6

First, nothing in the Guidance purports to consider current COVID-19

7 conditions, or their ongoing impact on the health and safety of students. Indeed, the

8 words “health” and “safety” do not even appear in the July 6 Guidance. Obviously,

9 students will be at higher risk of contracting COVID-19 if they are forced to attend in-

10 person instruction. Mishori Decl. ¶¶ 25-35. Nor do Defendants acknowledge that

11 many students will have pre-existing conditions, or live with people with pre-existing

12 conditions, thus making in-person attendance particularly dangerous for them.

13

Second, while the July 6 Guidance asserts that “many institutions across the

14 country are reopen[ing],” Rockwell Ex. C, it ignores that in many other areas, the

15 COVID-19 crisis is worsening and may lead to further lockdowns. Even if certain

16 institutions are re-opening, Defendants nowhere consider that the safety and

17 advisability of reopening any given school will depend on numerous school-specific

18 factors. Those include, for example, local COVID-19 spread, testing capabilities, the

19 particular school’s facilities and typical class sizes, whether a significant number of

20 students must rely on public transit to attend class, and whether in-person capabilities

21 should be prioritized for certain portions of the student body (such as at UCI Law

22 School, where the school committed to providing in-person instruction for first-year

23 law students, even as it decided to go online only for second- and third-year students).

24 For these reasons, the on-the-ground school administrators are best positioned to

25 determine what is safe, feasible and most academically appropriate, for their given

26 student body. But Defendants did not consider any of these school-specific factors, or

27 how their policy change would disrupt the academic preparation for the upcoming

28 semester. See Richardson Decl. ¶¶ 6-14, 17.

25

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1

Third, the July 6 Guidance does not take into account the extreme hardship and

2 disruption imposed on the students. International students such as Plaintiffs came to

3 the United States based on their strong academic qualifications. They obtained

4 admission to competitive universities and worked diligently toward their degrees as

5 part of a student-visa program that exists not just for their benefit, but the benefit of

6 their academic institutions and the country as whole. See Richardson Decl. ¶¶ 18-20.

7 If students are forced to leave the country, they will suffer extreme financial cost and

8 will put their health at risk, and many students simply will not be able to continue

9 their education while abroad. See supra at Background Part D; see also Part II, infra.

10 While the July 6 Guidance also implies that students could simply transfer to a school

11 with in-person instruction, Rockwell Ex. C, that clearly is not true for Plaintiffs and

12 many other students. See generally Zearfoss Decl.; see also Z.W. Decl. ¶ 9; Z.L. Decl.

13 ¶ 11; C.Y. Decl. ¶ 13; M.X. Decl. ¶ 8; A.G. Decl. ¶ 14; X.Y. Decl. ¶ 10. It is not only

14 arbitrary and capricious but unconscionable for Defendants to disregard the ways in

15 which the policy change jeopardizes the students’ health and educational interests—

16 and indeed throws their entirely lives into disarray—based on circumstances beyond

17 the students’ control.

18

3. While it is unnecessary to go any further in the analysis, there are other bases

19 for concluding that any purported justifications given for the July 6 Guidance are

20 purely pretextual. As the Supreme Court has recently explained, “in order to permit

21 meaningful judicial review, an agency must ‘disclose the basis’ of its action.” Dep’t of

22 Commerce v. New York, 139 S. Ct. 2551, 2573 (2019). “The reasoned explanation

23 requirement of administrative law, after all, is meant to ensure that agencies offer

24 genuine justifications for important decisions, reasons that can be scrutinized by

25 courts and the interested public. Accepting contrived reasons would defeat the purpose

26 of the enterprise.” Id. at 2575-76. Thus, agency action will violate the APA if there is

27 “a significant mismatch” between the actual reasons for agency action and the

28 rationale provided.

26

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1

Given the absence of any explanation within the July 6 Guidance for the abrupt

2 policy change, the true motivation lies in the contemporaneous public statements of

3 Ken Cuccinelli, Acting Secretary of DHS, as well as the President himself. Mr.

4 Cuccinelli admitted that the policy change was made “to encourage schools to

5 reopen,” Bowden, supra n. 4. In other words, by threatening international students

6 with removal proceedings, he could strong arm universities into reopening their

7 campuses in conformance with the President’s agenda. While politicized influence is

8 not alone a reason to set aside agency action, courts can and should reject agency

9 action that treats innocents as political pawns and puts both their health and

10 educational interests at risk, simply to serve an ulterior motive.

11

For these reasons, the July 6 Guidance effects a policy change that is arbitrary

12 and capricious. Defendants thus are likely to prevail on the merits, and the Court

13 should issue the TRO.

14

B. The July 6 Policy Change Violates the APA’s Notice-and-Comment

15

Procedures.

16

The policy change violates the APA for a separate and independent reason.

17 When an agency is promulgating a new substantive rule, it must follow notice-and-

18 comment ruling procedures. 5 U.S.C. §§ 551(4), 553. That includes (1) publication of

19 notice of the proposed rule in the Federal Register; (2) a period for interested

20 individuals to comment on the proposed rule; and (3) publication of the adopted rule

21 not less than thirty days before its effective date.” 5 U.S.C. § 553(b), (c), (d) (2006);

22 Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir. 2010). If a new substantive rule

23 is promulgated “without observance of procedure required by law,” then it must be set

24 aside. 5 U.S.C. § 706(2)(D).

25

The July 6 policy change violates these requirements. It reflects a new

26 substantive rule because it redefines what students must do “to maintain their F-1 and

27 M-1 nonimmigrant status during the COVID-19 emergency”—i.e., they must appear

28 for in-person instruction “to remain in lawful status” or else “face immigration

27

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1 consequences including, but not limited to, the initiation of removal proceedings.”

2 Rockwell Decl. Ex. C, at 1. The policy change therefore “impose[s] obligations, or

3 effect[s] a change in existing law pursuant to authority delegated by Congress.” Hemp

4 Indus. Ass'n v. Drug Enforcement Admin., 333 F.3d 1082, 1087 (9th Cir. 2003); see

5 also Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1014 (9th Cir. 1987).

6

In announcing the July 6 policy change, Defendants indicated that a

7 “Temporary Final Rule” would soon be published in the Federal Register, further

8 confirming Defendants’ intent to engage in rulemaking changing the SEVP

9 “procedures and responsibilities” during the COVID-19 crisis. Notably, however,

10 there is no suggestion that Defendants intend to engage in any notice-and-comment

11 period. To the contrary, and as noted above, the July 6 Guidance is clear that

12 Defendants expect schools and students to comply with new rules now, with students

13 otherwise being subject to removal proceedings.

14

Had Defendants complied with the APA’s require procedures, they would have

15 received comments from schools and students alike, reflecting how ill-conceived,

16 unfair, and harmful the policy change is. Regardless, the procedural violation itself

17 requires the Court to set the policy change aside. See Cedars-Sinai Med. Ctr. v.

18 Shalala, 939 F. Supp. 1457 (C.D. Cal. 1996) (citing Linoz v. Heckler, 800 F.2d 871,

19 878 (9th Cir. 1986)); 5 U.S.C. § 706(2)(D). Accordingly, Defendants have shown a

20 likelihood of success on this issue as well.

21

C. The July 6 Guidance Violates Due Process

22

Even apart from if the APA violation, the July 6 Guidance imposes an arbitrary

23 and irrational deprivation of Plaintiffs’ constitutionally protected liberty and property 24 interest, in violation of the Due Process Clause.

25

“[T]he touchstone of due process is protection of the individual against arbitrary

26 action of government, whether the fault lies in a denial of fundamental procedural 27 fairness, or in the exercise of power without any reasonable justification in the service

28

28

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1 of a legitimate governmental objective.” Cty. of Sacramento v. Lewis, 523 U.S. 833,

2 845-46 (1998) (citations omitted). The Due Process Clause forbids the deprivation of

3 “life, liberty, or property, without the due process of law,” and applies to all ‘persons’

4 within the United States, including noncitizens like Plaintiffs who are in the country.

5 U.S. Constitution, Art. V; see Zadvyadas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he

6 Due Process Clause applies to all ‘persons’ within the United States ... whether their

7 presence here is lawful, unlawful, temporary, or permanent.”).

8

Here, Plaintiffs have complied with the rigorous SEVP requirements and have

9 secured admission to highly competitive institutions while investing time, money, and

10 energy into pursuing their degrees in this county. They have a cognizable liberty

11 interest in not being arbitrarily subject to removal proceedings. See Chew v. Colding,

12 344 U.S. 590 (1953). And they have a cognizable property interest in their visas and

13 being able to continue the educational endeavors in which they have invested so

14 heavily, in reliance on the integrity of the student-visa program and their ability to

15 remain in the United States so as long as they remain committed to pursuing the full

16 course of study offered by their SEVP-certified institutions. See Board of Regents of

17 State Colleges v. Roth, 408 U.S. 564, 577 (1972) (it is the purpose of the institution of

18 “property” to “protect those claims upon which people rely in their daily lives,

19 reliance that must not be arbitrarily undermined.”).

20

For all of the reasons explained above, the July 6 Guidance is so arbitrary and

21 irrational as to violate due process’s protection of these constitutional interests. The

22 July 6 Guidance is not rationally related to mitigating the spread of the coronavirus,

23 because forcing students to attend in-person instruction will only increase the

24 likelihood of transmission. Nor can the July 6 Guidance be justified as responding to

25 changing conditions, because it was imposed notwithstanding the fact that the public

26 health emergency continues. Finally, the date it was issued—after schools and

27 students had already committed to their fall programs, and with no meaningful

28 opportunity to make alternative arrangements—confirms the arbitrariness of

29

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1 Defendants’ actions, all in total disregard for Plaintiffs’ substantial and

2 constitutionally protected interests. While courts use counsel and restraint when

3 considering substantive due process claims, “history does not counsel abandonment”

4 of all such claims particularly when, as here, government policies are so obviously

5 arbitrary and serve no rational governmental interest. See Moore v. City of East

6 Cleveland Ohio, 431 U.S. 494, 502 (1977). Accordingly, Plaintiffs have established a

7 likelihood of success on this claim as well.

8 II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT

9

EMERGENCY RELIEF.

10

Plaintiffs will suffer irreparable harm if the July 6 Guidance is allowed to stand.

11

There is no safe or realistic option for Plaintiffs to stay in the country to

12 complete their studies. Transferring to a school offering in person classes is not a

13 realistic possibility at this late stage, with deadlines fast approaching and with schools

14 already struggling to implement social distancing and online learning plans that will

15 protect the health and safety of their existing student body. See generally Zearfoss

16 Decl. In any event, attending in-person classes in the midst of a raging pandemic

17 would subject the Plaintiffs and the people around them –including high-risk family

18 members – to risk of infection with COVID-19. Mishori Decl. ¶ 25-34. Thus, as a

19 practical matter, if the July Guidance stands, Plaintiffs will be forced to leave the

20 country, incurring numerous harmful impacts on Plaintiffs.

21

For one, Plaintiffs cannot practically continue their education if they are forced

22 to leave the country. Several Plaintiffs have limited internet access and limits imposed

23 by the government of their home country on the computer tools that their schools use

24 to communicate and collaborate, preventing them from fully accessing the curriculum.

25 To the extent Plaintiff could access class remotely, the difference in time zones would

26 require them to attend classes in the middle of the night or lose the opportunity to

27 actively participate in class by attending recorded sessions. Plaintiffs also will be

28 severely limited in their opportunities to participate in clinics or pro bono work, which

30

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 33 of 35 Page ID #:143

1 impacts their academic standing. These limitations will disadvantage Plaintiffs with

2 respect to job and training opportunities. See supra at Background Part D.

3

Further, Plaintiffs will face extreme financial losses and hardship if they are

4 forced to return to their home countries at this late stage. Plaintiffs have already

5 signed leases and put down money on housing that would be lost; they would have to

6 incur travel and moving expenses not only to move back to their home countries, but

7 also to return to the U.S. if their schools return to in person classes. Plaintiffs who

8 have purchased U.S. health insurance also would lose both the money they invested

9 and the benefit of that insurance–in the midst of a global pandemic. See supra at

10 Background Part D.

11

Traveling back to their home countries may also be extremely difficult for

12 certain Plaintiffs. Multiple countries have banned all transnational flights in response

13 to the pandemic, and others—including China the home country of several

14 Plaintiffs—require incoming travelers to quarantine at their own expense for two

15 weeks upon arrival. Moreover, the travel itself would expose Plaintiffs to healthy

16 risks, as lengthy transnational flights present multiple infection risks. See supra at

17 Background Part D.

18

Finally, Plaintiffs will suffer severe personal hardships if the July Guidance

19 were allowed to stand, including separation from spouses, partners, family and

20 friends. Plaintiffs have suffered and will continue to suffer stress and anxiety at the

21 prospect of being deported, losing their expected educational and employment

22 opportunities, and the detrimental and even devastating financial burden of being

23 forced out of the country. See supra at Background Part D.

24 III. THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST TIP

25

SHARPLY IN FAVOR OF EMERGENCY RELIEF.

26

The final factors in evaluating a TRO or preliminary injunction involve the

27 balance of hardships and public interest—factors that generally merge when the

28 Government is a party. See League of Wilderness Defenders v. Connaughton, 752

31

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 34 of 35 Page ID #:144

1 F.3d 755, 766 (9th Cir. 2014). Here, the balance of hardships and public interest tip

2 sharply in favor of emergency relief.

3

Plaintiffs are students whom the United States invited and encouraged to come

4 here to study. They have invested time, money, and energy into their courses of study,

5 and obviously would be attending classes in person, but for exceptional circumstances

6 beyond their control. Defendants’ threat to deport them thrown their lives—and the

7 lives of other international students—into complete disarray, impacting their

8 educational pursuits, their financial well-being, and the health and safety of

9 themselves, their families, and their communities.

10

On the flip side, Defendants have not identified any material interest supporting

11 the policy. Rather, the very point of the policy change is to impose severe hardship on

12 international students to leverage schools into reopening. See Bowden, supra n.4.

13 Even were that a valid government interest, it proves that the balance of hardships tips

14 decisively in Plaintiffs’ favor. Moreover, the Government “cannot suffer harm from

15 an injunction that merely ends an unlawful practice,” Rodriguez v. Robbins, 715 F.3d

16 1127, 1145 (9th Cir. 2013), and the “public interest is served by compliance with the

17 APA.” East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1280-81 (9th Cir.

18 2020) (quoting California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018)).

19

CONCLUSION

20

For the foregoing reasons, Plaintiffs respectfully request that the Court issue a

21 TRO enjoining Defendants’ implementation of the July 6 Guidance. Such TRO should

22 include requiring Defendants to issue a further broadcast message that the July 6

23

24

25

26

27

28

32

Case 8:20-cv-01220-CJC-KES Document 16 Filed 07/14/20 Page 35 of 35 Page ID #:145

1 policy change and any related compliance obligations have been enjoined, pending

2 resolution on the merits.

3 4 DATED: July 14, 2020 5 6 7

By: /s/ David R. Carpenter* Lisa M. Gilford David R. Carpenter Stacy Horth-Neubert Sheri Porath Rockwell SIDLEY AUSTIN LLP

8 By: /s/ Mark D. Rosenbaum

9

Mark D. Rosenbaum

10

PUBLIC COUNSEL

11

By: /s/ Evan Caminker

12

Dean Emeritus and Branch Rickey

Collegiate Professor of Law

13

UNIVERSITY OF MICHIGAN

14

LAW SCHOOL**

15

By: /s/ Mark E. Haddad

16

USC Gould School of Law

UNIVERSITY OF SOUTHERN

17

CALIFORNIA**

18

Attorneys for Plaintiffs

19

Z.W., C.Y, X.Y., A.G., M.X., Z.L., W.R.,

20

and DOES 1 through 50

21

22

* Filer attests that all signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the filing.

23 ** University affiliation provided for identification purposes only.

24

25

26

27

28

259144390

33

 
 Case 8:20-cv-01220-CJC-KES Document 50 Filed 08/14/20 Page 1 of 39 Page ID #:376

1 Mark D. Rosenbaum (SBN 59940) mrosenbaum@publiccounsel.org
2 PUBLIC COUNSEL 610 South Ardmore Avenue
3 Los Angeles, CA 90005 Telephone: (213) 385-2977
4 Lisa M. Gilford (SBN 171641)
5 lgilford@sidley.com David R. Carpenter (SBN 230299)
6 drcarpenter@sidley.com Stacy Horth-Neubert (SBN 214565)
7 shorthneubert@sidley.com SIDLEY AUSTIN LLP
8 555 West Fifth Street Los Angeles, CA 90013
9 Telephone: (213) 896 6044 Facsimile: (213) 896 6600
10 Additional Counsel Listed on Next Page
11 Attorneys for Plaintiffs
12 Z.W., C.Y, X.Y., A.G., M.X., Z.L., W.R., and DOES 1 through 50
13

14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16

SOUTHERN DIVISION AT SANTA ANA

17 Z.W., C.Y, X.Y., A.G., M.X., Z.L., W.R., Case No.

and DOES 1 through 50, 18

Assigned to:

Plaintiffs, 19

FIRST AMENDED COMPLAINT

vs. 20

FOR DECLARATORY AND INJUNCTIVE RELIEF

U.S. DEPARTMENT OF HOMELAND 21 SECURITY; U.S. IMMIGRATION AND

CUSTOMS ENFORCEMENT; CHAD R. 22 WOLF, Acting Secretary, U.S. Department

of Homeland Security; MATTHEW 23 ALBENCE, Acting Director, U.S.

Immigration and Customs Enforcement, 24

Defendants. 25

26

27

28

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Case 8:20-cv-01220-CJC-KES Document 50 Filed 08/14/20 Page 2 of 39 Page ID #:377

1 Sheri Porath Rockwell (SBN 165726) SIDLEY AUSTIN LLP
2 1999 Avenue of the Stars 17th Floor
3 Los Angeles, CA 90067 Telephone: (310) 595 9500
4 Evan Caminker (pro hac vice)
5 caminker@umich.edu Dean Emeritus and Branch Rickey Collegiate Professor of Law
6 University of Michigan Law School* 701 South State Street, 3250 South Hall
7 Ann Arbor, MI 48109-1215 Telephone: (734) 763-5221
8 Mark E. Haddad (SBN 205945)
9 markhadd@usc.edu USC Gould School of Law
10 University of Southern California* 699 Exposition Blvd.
11 Los Angeles, CA 90089 Telephone: (213) 675-5957
12 * University affiliation provided
13 for identification purposes only

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

1. Less than one month after the Supreme Court held that the Executive

3 Branch must “turn square corners” before taking an action that profoundly disrupts the

4 lives of hundreds of thousands of individuals, the Executive Branch once again acted

5 recklessly and inexplicably to disrupt the lives of hundreds of thousands more. In

6 March 2020, as the coronavirus public health emergency exploded, Immigration and

7 Customs Enforcement (“ICE”), through its Student and Exchange Visitor Program

8 (“SEVP”), issued Guidance documents (the “March Guidance”) assuring international

9 students that, for “the duration of the [coronavirus] emergency,” they could continue

10 their studies in the United States even if their colleges or universities were offering

11 exclusively online classes due to the coronavirus pandemic. But then, on July 6,

12 Defendants abruptly and without notice reversed course, and issued a new Guidance

13 (the “July 6 Guidance”) requiring such students to leave the United States if, in light

14 of the ongoing crisis, their schools continued with online-only instruction. After a

15 public outcry and the filing of this action and others, Defendants announced their

16 intent to rescind the July Guidance and subsequently issued new guidance allowing

17 online-only instruction, but only for returning students and only for the fall 2020

18 semester – not for the duration of the emergency should it extend for the remainder of

19 the academic year. Plaintiffs continue to be at risk that Defendants may, at any time,

20 reinstate the July 6 Guidance, thus necessitating Plaintiffs’ continued pursuit of this

21 action.

22

2. The July 6 Guidance was a cruel and politically motivated directive that

23 upended the lives of foreign students who are lawfully present in this country and who

24 contribute immeasurably to the quality of education at the institutions they attend.

25 These students chose to come to the United States to pursue degrees in law, medicine,

26 engineering, and every other academic field. They wish to prepare themselves to lead

27 productive lives that serve and build community wherever they ultimately settle.

28

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1 Access to our outstanding institutions of higher education is one of the greatest gifts

2 that the United States gives the world, and that gift is repaid many times over by the

3 contributions that foreign students make to the United States and to the world as a

4 whole by virtue of the learning they receive. Those contributions reflect their

5 intelligence, compassion, and hard work.

6

3. In the midst of the most dangerous pandemic of the last hundred years,

7 universities have reshaped their educational models to ensure the quality, continuity

8 and safety of their educational programs. Utilizing their educational expertise and

9 recognizing their paramount responsibility to the safety of the university community

10 and the community at large, leadership at these schools have reluctantly accepted the

11 judgments of our nation’s leading public health experts and CDC guidelines and have

12 instituted remote learning and teaching strategies and regimens. It should go without

13 saying that these decisions have not been easy. But it should also be readily

14 recognized that a university’s decision to go all or principally remote is one of life and

15 death. Universities are doing their part to flatten the curve and repel the deadly

16 coronavirus that thrives on crowded settings inside buildings, precisely the

17 circumstances of normal classroom teaching and university life. And until July 6,

18 universities were doing so in reasonable reliance on guidance that ICE itself had

19 provided in March 2020, and that promised a flexible approach of allowing students to

20 maintain their visas while schools attempted, in good faith and with timely notice to

21 ICE, to provide the best educational opportunities possible while fulfilling

22 indispensable obligations to preserve the health of their students and their

23 communities.

24

4. On July 6, ICE abruptly changed course 180 degrees, without explanation

25 or even acknowledgement. Its decision sought to punish foreign students because their

26 universities prioritized the health and safety of their academic and local communities

27 and of the nation by choosing to hold remote classes beginning in the fall term.

28

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1

5. The July 6 Guidance offered no explanation whatsoever for the complete

2 reversal in policy. But the facts are that the President of the United States, beset by

3 falling poll numbers in a fast closing election year, has tweeted repeatedly that CDC

4 guidelines must be altered and schools must open in the fall no matter the incongruity

5 with fundamental public health principles and the sound, on-the-ground knowledge

6 and expertise of university officials as to the safest course for their students and

7 community. Indeed, on the day that the ICE message was issued, he tweeted that 8 “SCHOOLS MUST OPEN IN THE FALL!!!”1 The next day, Acting Deputy

9 Secretary of Homeland Security Ken Cuccinelli, responding to a question about the

10 July 6 Guidance, explained the guidelines were “setting the rules . . . that will, again, 11 encourage schools to reopen.”2

12

6. ICE’s announcement concerning international students attending

13 institutions that did not offer in-person instruction, or who were not able to take the

14 in-person classes that were offered, is part and parcel of the President’s approach.

15 These guidelines, which adopted a one-size-fits-all approach to higher education, are

16 blunt. They did not reflect the intensely local nature of university decisions, nor did

17 they make exceptions for students at heightened risk from the novel coronavirus.

18 Instead, the guidelines were designed to force institutions of higher education to

19 reopen for the fall term, no matter the cost.

20

7. Institutions and students pushed back, and between July 8 and July 13

21 filed over a half dozen lawsuits in 18 states challenging and seeking to invalidate the

22 July 6 Guidance. Under pressure, Defendants again abruptly changed course and

23 announced during a July 14 court hearing in the United States District Court for the

24 District of Massachusetts that they would be rescinding and not implementing the July

25 1 Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM EDT),

26

https://twitter.com/realDonaldTrump/status/1280209946085339136?s=20. 2 John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will 'Encourage Schools to

27

Reopen', The Hill (July 7, 2020), https://thehill.com/homenews/administration/506248-cuccinelli-says-rule-forcing-international-students-to-return-home.

28

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1 6 Guidance, and instead would revert to the March Guidance. Additional guidance

2 followed on July 24 (the “July 24 Guidance”) and again on August 7 (the “August 7

3 Guidance”) stating students who held F-1 visas as of March 2020 could remain in the

4 United States for the fall 2020 semester if their schools offered only online courses.

5

8. But the July 24 Guidance and the August 7 Guidance have not mooted

6 this dispute. On their face, the July 24 Guidance and August 7 Guidance apply only to

7 the “fall school term” and conspicuously do not commit to keeping the March

8 Guidance in place for the duration of the coronavirus emergency, leaving students

9 guessing about their status for the remainder of the academic year if their schools

10 remain only online. Defendants have not stated when they will issue guidance for the

11 next semester (which starts in January), what criteria they will use, or what process

12 and notice will be provided in connection with any new rule. Moreover, they have

13 failed to acknowledge either in this litigation, or in other litigation, or in any public

14 forum, that their July 6 Guidance was an unlawful agency action that ignored the

15 significant reliance interests of international students. They have also failed to

16 commit to concrete steps that would ensure that they do not again arbitrarily and

17 capriciously reverse course this fall.

18

9. Defendants thus have conspicuously left themselves all the running room

19 they need to violate the law again this fall should it suit the political whim of the

20 moment. There is no reason to believe that they will not, again without notice or

21 explanation, abruptly revert to the July 6 Guidance this week, next week, or later in

22 the fall 2020 semester.

23

10. Plaintiffs are serious students whose lives were needlessly and cruelly

24 thrown into disarray by the July 6 Guidance. They remain at risk that Defendants,

25 without sufficient notice or regard for Plaintiffs’ health and reliance interests, will

26 attempt to expel them again, even if the coronavirus emergency is still ongoing.

27 Defendants’ conduct not only puts Plaintiffs at continuing risk of harm but is causing

28

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1 Plaintiffs harm right now, insofar as it is interfering with their ability to plan for the

2 remainder of the academic year concerning their education, training programs, and

3 their lives as a whole.

4

11. This lawsuit seeks a declaration that the July 6 Guidance was improperly

5 issued in violation of the APA and Plaintiffs’ due process rights, and a directive that

6 Defendants administer the SEVP in accordance with the March Guidance throughout

7 the entire academic year and until such time as the coronavirus crisis abates, unless

8 replaced by a properly-promulgated agency rule. The government has nothing to lose

9 by giving orderly respect to the APA and students’ basic due process rights; the

10 foreign students, their universities and communities, and those who stand by the rule

11 of law, have everything.

12

PARTIES

13

12. Plaintiff Z.W. is a 25 year-old Chinese national entering his second year

14 of study at University of California Irvine School of Law in Irvine, California (“UCI

15 Law”). After learning about UCI Law’s remote learning transition, he entered into a

16 13-month lease for an apartment in Irvine with monthly rent of $1,730 and security

17 deposit. He entered into the lease with the expectation that he would be able to

18 continue his education through distanced, remote learning. Z.W. was preparing to

19 apply for a CPT visa so he could intern over the next, 2L summer to further his legal

20 education. Similar to all plaintiffs who are Chinese nationals, he is deeply concerned

21 with the financial costs associated with returning to China. He has paid a deposit for

22 his apartment out of pocket, and does not know how he will manage to pay for a

23 return flight to China, or the associated costs of China’s current mandatory 14-day

24 quarantine. His education will also be essentially prematurely terminated or paused,

25 because of China’s prohibition on Google and VPN use, in addition to the 12- hour

26 time difference.

27

28

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1

13. Plaintiff C.Y. is a 27 year-old Chinese national entering her second year

2 of law school at UCI Law. She currently lives in Irvine, California where she moved

3 in 2019 to enroll in her first year of law school. When UCI Law switched to online

4 classes in March 2020 and Defendants issued the March 13 Guidance, C.Y. believed

5 she would be able to continue her studies in the United States for the 2020-21

6 academic year regardless of how UCI Law choose to offer classes in the fall. So she

7 leased on-campus housing through spring 2021, and pre-paid rent at a total cost of

8 $10,380. If she were to have to return to China at any point in this academic year, she

9 would not be able to recover that rent. Additionally, it would be prohibitively

10 expensive for C.Y. to return to China, as the price of airline ticket from Los Angeles

11 to China has increased several fold since the start of the pandemic and could easily

12 exceed $10,000. Her family cannot afford to pay the price of her plan ticket back to

13 China, nor can she. It will also be cost-prohibitive to pay for the hotel room in which

14 she would currently be required to self-quarantine for 14 days after returning to China.

15 If she were forced to return to China, C. Y. also fears she will be exposed to the novel

16 coronavirus on the flight to China and become infected, as she heard happened to

17 more than a dozen people on a recent international flight to China. Once in China,

18 C.Y. would not be able to continue to take law school classes due to, among other

19 things, the unavailability in China of tools that UCI Law uses to facilitate online

20 learning, including Google products (e.g., Google Drive) and secure VPNs.

21 Additionally, the 15 to 16 hour time change would make it practically impossible for

22 her to engage in clinical programs in which she has enrolled and to engage in

23 important conferences with fellow students and professors. C.Y. does not feel safe

24 attending in-person classes due to the health risks and therefore planned to take all of

25 her courses online in the fall. The prospect of making C.Y. choose between a

26 potentially unsafe in-person class and a prohibitively costly emergency journey home

27

28

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1 is causing her severe distress, which she will worries will negatively impact her

2 grades.

3

14. Plaintiff X.Y. is a 25-year-old Chinese national who has attended UCI

4 Law on an F-1 visa since 2018 and this fall, will be entering her third and final year at

5 UCI Law. In reliance upon the SVEP’s March guidance and UCI’s June statements

6 that the fall semester would be held remotely, X.Y. and her partner, a UCLA student,

7 entered into a 12-month lease for an apartment in Los Angeles. She also cancelled an

8 August trip to visit family at home in China because she anticipated complications,

9 including travel difficulties and the possibility of not being able to return to the United

10 States to finish her program, resulting from the pandemic. She thought it was safer to

11 stay in place. X.Y. is deeply concerned about the prospect of travel at a time of

12 increased risk of community transmission both nationally in the United States and

13 locally in Los Angeles. Her healthcare plan is effective through UCI enrollment, so

14 she doesn’t know if she would have healthcare coverage in China. X.Y. is concerned

15 she will have to drop out of school if she is forced to return to China, because

16 attending live-streamed classes would mean that X.Y. would need to attend school in

17 the middle of the night, and she would have no way to obtain required casebooks. The

18 process of applying for a permanent work visa from China, rather than while in the

19 U.S. as she had planned, will be considerably more difficult, too.

20

15. Plaintiff A.G. is a 25-year-old German national who has been attending

21 the University of Southern California Law School (“USC Law”) in Los Angeles,

22 California, on an F-1 visa, will be entering her third and final year. She lives in Los

23 Angeles, where she is responsible for a lease and is employed through the summer by

24 a law firm. Her responsibilities in the United States include being the sole familial

25 caretaker for her almost 90 year-old great aunt who lives in Los Angeles. A.G. drives

26 her to doctor’s appointments and goes grocery shopping for her. A.G. is nervous about

27 the prospect of having to fly if she were forced to return to Germany, where she would

28

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1 need to live with her immediate family. She fears that the return flight will expose her

2 to the novel coronavirus and then put her family members at risk because of their high

3 risk for COVID-19 complications. Her father has four stents in his heart and her

4 mother has high blood pressure. She herself has no known pre-existing conditions, but

5 she would be unable to take advantage of her U.S. health insurance in Germany. If

6 forced to return to Germany, A.G. would have difficulties continuing her studies, as

7 she would need to take her classes in the middle of the night, due to the nine-hour time

8 difference, and textbooks may be difficult to obtain. If USC Law were to transition to

9 hybrid instruction, A.G. would not feel safe attending in-person classes.

10

16. Plaintiff M.X. is a 26-year-old Chinese national entering her second year

11 of study at UCI Law. Because of the exemption granted by ICE, and UCI’s June

12 announcement of remote instruction in the fall, M.X. decided to plan for the upcoming

13 year by renewing her on-campus lease for a year, and has been paying rent under the

14 lease for several months. M.X. planned to continue her studies in the United States,

15 and planned to intern in the summer of 2021. In order to do so, she would need a CPT

16 visa. Her eligibility for the CPT visa, however, will be foreclosed if her F-1 visa is

17 terminated. She faces the additional financial burden of extremely expensive return

18 flights to China and expenses associated with China’s current mandatory 14-day

19 quarantine. M.X. does not have the financial means to pay these required costs out of

20 pocket on such short notice. Similarly, it would be effectively impossible for her to

21 continue her studies while in China, due to the time difference and restrictions against

22 Google and VPN use, meaning she would not be able to attend or participate in school

23 even if the time zone were not an issue. If UCI were to offer in-person or hybrid

24 learning, M.X. would be reluctant to attend classes due to concerns about the risk of

25 infection in a classroom requiring physical attendance.

26

17. Plaintiff Z.L. is a 25 year-old Chinese national who lives in Los Angeles

27 and is enrolled as a PhD student at University of California, Los Angeles (“UCLA”),

28

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1 focusing on cinema and media studies. She enrolled at UCLA in 2017 and holds an F-

2 1 visa. After UCLA switched to online operations in late March, Z.L. remained in the

3 United States because she did not want to risk her or her parents’ health and safety by

4 traveling to China during a pandemic. She worries about returning to China because

5 traveling will place her at risk of contracting COVID-19, as she will be exposed to

6 people who may be infected with the virus at airports and inside the plane. If she were

7 forced to return to China, Z.L. would not be able to continue her studies for several

8 reasons. For instance, due to the 15-hour time difference between Los Angeles and

9 China, Z.L. will have to attend her online classes at unconventional times. For

10 example, Z.L. will have to call into a 1 p.m. Monday class at 4 a.m. on Tuesday,

11 Beijing time. Watching recorded classes is not an option for her because graduate-

12 level courses are designed to be centered around conversations and dialogue with

13 other students than lecture. Relying on class recordings would deprive her of

14 important opportunities to learn from and with her peers. Z.L. is concerned that taking

15 in-person classes will jeopardize her health, and has been planning to take all of her

16 fall 2020 courses online and, if necessary, do the same for the remainder of the

17 academic year. In China, Z.L. will not be able to access the print and digital media

18 resources she needs to complete her dissertation, and strict quarantine requirements

19 will likely impair her ability to study for her PhD qualifying exam. Failure of the

20 exam could jeopardize the funding she needs to complete the years-long program she

21 has undertaken. Z.L.’s housing situation is unsettled and if she returns to China she

22 will have to pay costs of storage for her belongings and car. Not knowing whether she

23 may have to leave the country on short notice or risk serious illness—or even death—

24 by attending in-person classes is keeping Z.L. tense and causing her great distress.

25

18. Plaintiff W.R. is a 26-year-old Chinese national entering his second year

26 of school at UCI Law School who currently lives near Irvine, California in San Juan

27 Capistrano. Several months ago in March, UCI Law announced its decision to conduct

28

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1 remote instruction. Around that same time, W.R. received an exemption from ICE to

2 remain in the United States with his wife, who is a permanent resident alien living in

3 San Juan Capistrano and owns a business in the United States. If he is forced to return

4 to China, he will be separated from his wife. He will also suffer financial losses based

5 on decisions made in reliance on his ability to stay in the United States for his studies.

6 If he is required to return to China, W.R.’s financial burden will also be compounded

7 by the high cost of travel to China in the era of COVID-19, with average one-way

8 economy flights priced at close to $10,000 (more than eight times the cost of a single

9 flight to China before the pandemic). Additionally, passengers arriving from outside

10 China currently are financially responsible for room and board associated with

11 China’s mandatory 14-day quarantine, which would also be a financial hardship for

12 W.R. If he is required to return to China, W.R.’s legal education will not be able to

13 continue for all practical purposes. He will not be able to participate in classes,

14 important group, or conduct necessary research due to the 15 to 16 hour time zone

15 difference and China’s strict ban against Google and VPN usage, both of which are

16 required to access the research databases and at UCI Law. W.R. will also be unable to

17 benefit from the student legal clinic in which he is enrolled for the upcoming school

18 year if he has to return to China. If he is required to attend in-person instruction, W.R.

19 is concerned for his health and safety due to threat of exposure to the novel

20 coronavirus.

21

19. Defendant United States Department of Homeland Security is a federal

22 agency of the United States.

23

20. Defendant United States Immigration and Customs Enforcement is a

24 division of the United States Department of Homeland Security.

25

21. Defendant Chad F. Wolf is the Acting Secretary of the United States

26 Department of Homeland Security. He is sued in his official capacity.

27

28

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1

22. Defendant Matthew Albence is the Acting Director of the United States

2 Immigration and Customs Enforcement. He is sued in his official capacity.

3

JURISDICTION AND VENUE

4

23. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331

5 and 5 U.S.C. § 702. Plaintiffs are persons aggrieved by a final agency action

6 promulgated by Defendants. See 5 U.S.C. § 702. Plaintiffs bring this suit for

7 declaratory and injunctive relief to set aside Defendants’ action as contrary to law and

8 arbitrary and capricious, see id. §§ 705–706, and as a violation of due process under

9 the Fifth Amendment to the United States Constitution—thus presenting a federal

10 question, see 28 U.S.C. § 1331.

11

24. Venue is proper in this Court because Plaintiffs reside in this District—

12 specifically, a majority attend UCI and reside in or near Irvine—and no real property

13 is involved. 28 U.S.C. § 1391(e)(1)(C).

14

25. Plaintiffs have standing to bring this case. Defendants’ actions will cause

15 an imminent, concrete, and irreparable risk of harm to Plaintiffs, their families, their

16 educations, their short-term and long-term health, and their future education and

17 employment prospects unless halted by this Court.

18

26. This Court is authorized to grant the requested injunctive relief pursuant

19 to Federal Rule of Civil Procedure 65 and 5 U.S.C. § 705.

20

FACTS

21

Higher Education and the COVID-19 Pandemic

22

27. The world is in the midst of the global COVID-19 pandemic.

23

28. Because humans lack built-up immunity to, or a vaccine against or

24 effective treatment for, the novel SARS-CoV-2 virus that causes COVID-19, the only

25 way to mitigate the effects of the virus today is to stop its spread.

26

29. State and local governments have responded to the pandemic with

27 unprecedented containment measures such as stay-at-home orders that instructed state

28

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1 residents to avoid leaving their residences. At one point, 42 states instituted such 2 orders.3

3

30. On March 4, 2020, California Governor Gavin Newsom declared a state

4 of emergency in light of the COVID-19 pandemic.4

5

31. On March 9, the University of California at Berkeley suspended in-

6 person instruction.5

7

32. On March 10, the University of California campuses at Davis, Irvine, Los

8 Angeles, Riverside, and Santa Barbara followed suit, as did the University of Southern 9 California.6

10

33. On March 19, Governor Newsom announced a statewide stay-at-home

11 order.7 Among other things, this order forbade universities from continuing to operate

12 in-person classes, including the schools Plaintiffs attend.

13

34. While the order has been amended to loosen restrictions, the order could

14 be tightened again at any time.

15

35. COVID-19 infections are continuing to plague much of the country and

16 California in particular. Nationwide, over five million COVID-19 cases have been 17 diagnosed, and more than 165,000 people have died.8

18

36. Both in California and nationwide, the COVID-19 pandemic is worse

19 than at any point during the spring academic semester.

20

37. In recognition of the continuing threat COVID-19 posed to its students,

21 staff, and faculty, on June 23, the University of California, Irvine School of Law

22 (“UCI Law”) announced that all second- and third-year law students would only be

23
3 Jasmine C. Lee et al., See How All 50 States Are Reopening (and Closing Again), N.Y. Times (July 8, 2020),

24 https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html.
4 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf

25 5 https://news.berkeley.edu/2020/03/09/as-coronavirus-spreads-uc-berkeley-suspends-in-person-instruction/
6 https://www.latimes.com/california/story/2020-03-10/ucla-to-cancel-most-in-person-classes-until-early-april-to-

26

protect-against-coronvirus 7 Executive Order N-33-20, Executive Dep’t State of California (March 19, 2020).

27

8 Cases in the U.S., Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last visited Aug. 14, 2020).

28

14

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1 able to take on-line courses.9 That guidance has not changed, with instruction

2 scheduled to begin on August 17, 2020.

3

38. Likewise, on June 26, the University California at Berkeley Law School

4 (“Berkeley Law”) announced that it would conduct the fall 2020 term entirely 5 online.10 Berkeley Law determined that restrictions on the number of students in a

6 classroom and the requirement that classrooms be disinfected between classes would

7 make offering safe, in-person instruction infeasible. Online orientation for new

8 students has already taken place, and the fall semester is scheduled to commence on

9 Monday, August 17.

10

39. Schools in the University of California system are not alone in moving

11 some or all students fully online in the fall semester. More than 150 schools will now 12 offer exclusively online instruction to all students, including Harvard University,11 13 Princeton University, the University of Southern California,12 and the University of 14 Santa Clara, and over 700 other schools are offering most classes online.13 As of

15 August 7, over 700 schools have yet to announce their reopening plans.

16

40. Schools are right to be cautious. Public health leaders believe the United

17 States is still contending with the first wave of coronavirus infections,14 and there is

18 widespread concern that re-opening college campuses will cause the virus to spread

19 and endanger the lives of staff, faculty, students, and those who live in surrounding 20 communities.15 Indeed, the Pac-12 and Big 10 college athletic conferences recently

21 decided to postpone their 2020 fall seasons for football and other fall sports due to

22 concerns about student-athletes’ safety.

23

24 9 https://www.law.uci.edu/news/press-releases/2020/fall-2020-semester-planning-update-06232020.pdf
10 https://www.law.berkeley.edu/article/fall-instruction-memo-6-26-20/

25 11 https://www.bostonherald.com/2020/07/06/all-harvard-university-students-will-take-online-classes-this-fall-amid-
coronavirus/

26

12 https://coronavirus.usc.edu/2020/07/01/7-1-letter-on-student-housing-and-course-schedules/ 13 https://collegecrisis.shinyapps.io/dashboard/ (last accessed on Aug. 14, 2020)

27

14 https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/first-and-second-waves-of-coronavirus 15 See, e.g., https://www.theatlantic.com/ideas/archive/2020/08/cancel-college/615064/.

28

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1

41. Forecasts of continued virus spread through the winter coupled with

2 stringent state guidelines for reopening colleges and universities cast doubt on the

3 viability or likelihood that schools will be able to legally or safely offer in-person

4 classes after the conclusion of the fall 2020 term. For example, under August 7, 2020

5 draft guidance issued by the State of California, colleges and universities will not be

6 permitted to resume in-person classes unless local epidemiologic conditions meet

7 certain thresholds, testing resources are available and public health capacity exists to

8 respond to outbreaks, and the schools are able to implement extensive (and expensive) 9 social distancing and virus prevention protocols.16

10

The F-1 Student Visa Program

11

42. The United States has labeled students as “non-immigrants” and operated

12 a student visa program since at least 1921.17 Although the F-1 program has changed

13 over the years, millions of students have entered the country with F-1 visas since at 14 least 2000, as far back as public records are available.18

15

43. For the fall 2019 term, there were 44,485 international students in the

16 University of California (“UC”) system. 27,189 of those were undergraduate students, 17 and 17,295 were graduate students.19

18

44. According to a report published by ICE, the total number of Student and

19 Exchange Visitor Information System (“SEVIS”) records for active F-1 and M-1

20 students was 1,551,373 in the calendar year 2018. Asia remains the number-one

21 continent of origin for nonimmigrant students, with 1,165,483 student records. China

22 (478,732), India (251,290), and South Korea (88,867) sent the largest numbers of 23 students in both calendar years 2017 and 2018.20

24

25 16 https://files.covid19.ca.gov/pdf/guidance-higher-education--en.pdf

26

17 https://web.archive.org/web/20140205165423/http://www.iie.org/Who-We-Are/History 18 https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics.html

27

19 https://www.universityofcalifornia.edu/infocenter/fall-enrollment-glance 20 https://www.ice.gov/doclib/sevis/pdf/sevisByTheNumbers2018.pdf

28

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1

45. There were 145,564 Optional Practical Training (“OPT”) students in the

2 calendar year 2018, including 69,650 science, technology, engineering, and 3 mathematics OPT students.21 There were 151,525 curricular practical training

4 (“CPT”) students who reported working for an employer in the calendar year 2018, a 5 14-percent increase since 2017.22

6

46. In 2018, California hosted 302,073 nonimmigrant students, 19.5 percent

7 of all nonimmigrant students in the United States, and more than any other state.23

8

Defendants’ Response to the COVID-19 Pandemic

9

47. On March 9, 2020, ICE’s Student and Exchange Visitor Program

10 (“SEVP”) issued a Broadcast Message providing guidance on COVID-19 and its

11 implications for nonimmigrant F and M students (“March 9 Guidance”). In this

12 guidance, Defendants recognized that “SEVP-certified schools may need to adapt

13 their procedures and policies to address the significant public health concerns

14 associated with the COVID-19 crisis.” Defendants provided schools with a template

15 that schools could use to report those changes to SEVP. Defendants assured schools

16 and students, however, both that “SEVP is focused on ensuring that nonimmigrant

17 students are able to continue to make normal progress in a full course of study as

18 required by federal regulations,” and that “SEVP intends to be flexible with temporary

19 adaptations.” Defendants further recognize[d] that the COVID-19 crisis is fluid and

20 rapidly changing” and “[f]or that reason” assured schools that it was “leaving room

21 for schools to comply with state or local health emergency declarations.”

22

48. On March 13, 2020, President Donald J. Trump declared that COVID-19

23 had created a national emergency.24 This emergency is ongoing.

24

25
21 Id.

26

22 Id. 23 Id.

27

24 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency- concerning-novelcoronavirus-disease-covid-19-outbreak

28

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1

49. On March 13, 2020, as governors across the country began to sign stay-

2 at-home orders and many institutions of higher education began to switch to remote-

3 teaching options, the Defendants issued a follow-up to the March 9 Guidance (“March

4 13 Guidance”) addressing “inquiries” that SEVP had received about various “different

5 scenarios” a school or student might face, and instructing schools and students how 6 the transition to online classes would affect nonimmigrant students’ visa status.25

7

50. The March 13 Guidance presented students with three scenarios they

8 might face: a complete school shutdown, a switch to online learning while the student

9 remained in the United States, and a switch to online learning while the student moved 10 outside of the United States.26 In all three scenarios, Defendants assured students that

11 they would be able to remain in compliance with the terms of their visas.

12

51. Defendants assured students and schools that it would treat school

13 shutdowns the same way it treated “short-term breaks in the school calendar.”

14 International students would remain eligible for their visas if they “intend[ed] to 15 resume their course of study when classes resume.”27

16

52. For institutions that switched to online education, and “[g]iven the

17 extraordinary nature of the COVID-19 emergency,” Defendants waived the limits for

18 online courses laid out in 8 C.F.R. §§ 214.2(f)(6)(i)(G) and 214.2(m)(9)(v).

19 Defendants waived these limits for both international students who remained in the

20 United States and those who chose to travel abroad during the period of online 21 instruction.28 Defendants explained that these waivers would remain in place for “the

22 duration of the [COVID-19] emergency . . . .”

23

53. At the end of the March 13 Guidance, Defendants noted that “[d]ue to

24 “the fluid nature of this difficult situation, this guidance may be subject to change.”

25

26

25 https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.13.20.pdf 26 Id.

27

27 Id. 28 Id.

28

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1 Nowhere in the March 13 Guidance, however, did Defendants suggest or even hint

2 that they intended to change the values that underlay the March 9 and March 13

3 guidance (together, the “March Guidance”), such as to abandon the “focus” they had

4 announced, just six days before, on “ensuring that nonimmigrant students are able to

5 continue to make normal progress in a full course of study.” March 9 Guidance.

6 Similarly, nowhere in the March 13 Guidance did Defendants suggest or hint that they

7 no longer “intend[ed] to be flexible with temporary adaptations” or would deny

8 schools “room … to comply with state or local health emergency declarations.” March

9 9 Guidance. To the contrary, Defendants made clear that they planned to monitor

10 factual changes in the COVID-19 situation: “SEVP will continue to monitor the

11 COVID-19 situation and will adjust its guidance as needed.”

12

54. On March 20, 2020, ICE posted links to the March 9 and March 13

13 guidance documents on its website together with some sample Questions and Answers

14 geared to be helpful to students. One such Q and A read:

15 “Can nonimmigrant students participate in online classes?

16 “SEVP is committed to remaining flexible in allowing schools to make temporary

17 procedural adaptations so nonimmigrant students can continue to make normal

18 forward progress in their program of study. They can temporarily engage in distance-

19 learning, either from within the U.S. or outside the country, in light of COVID-19.

20 SEVP will provide updated guidance as additional information concerning the scope

21 and length of this situation becomes clearer.” (Emphasis added.)

22

55. For the four months following the release of the March 9 and March 13

23 Guidance, students and schools engaged in extensive efforts to plan for the fall

24 academic year, trusting that Defendants’ March Guidance, as reiterated in the other

25 communications, accurately reflected the approach that Defendants would take to the

26 visa status of international students during the COVID-19 emergency.

27

28

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1

56. The nation’s COVID-19 emergency has continued. President Trump has

2 not withdrawn the declaration of a national state of emergency. In California, COVID-

3 19 infection and death rates have only climbed since the March Guidance was issued.

4

57. Yet on July 6, 2020, Defendants suddenly and without notice announced

5 a rollback of the exemptions put in place in the March Guidance.29 This was done

6 despite the fact that the nation was still in the midst of the emergency, with COVID-

7 19 infection and death rates exceeding their March levels in many states, including in

8 California.

9

58. These guidelines (“July 6 Guidance”) required students whose

10 institutions choose to conduct the fall 2020 term entirely online to exit the United

11 States. The announcement stated that:

12

Nonimmigrant F-1 and M-1 students attending schools operating

13

entirely online may not take a full online course load and remain in the

United States. The U.S. Department of State will not issue visas to

14

students enrolled in schools and/or programs that are fully online for

15

the fall semester nor will U.S. Customs and Border Protection permit

these students to enter the United States. Active students currently in

16

the United States enrolled in such programs must depart the country or

17

take other measures, such as transferring to a school with in-person

instruction to remain in lawful status. If not, they may face

18

immigration consequences including, but not limited to, the initiation

19

of removal proceedings.30

20

59. The July 6 Guidance also made clear that students whose in-person

21 classes were switched online partway through the term would be required to leave the

22 United States:

23

Schools should update their information in the Student and Exchange

24

Visitor Information System (SEVIS) within 10 days of the change if

25

they begin the fall semester with in-person classes but are later

26 29 https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-students-taking-online-

27

courses-during 30 Id.

28

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1

required to switch to only online classes, or a nonimmigrant student changes their course selections, and as a result, ends up taking an

2

entirely online course load. Nonimmigrant students within the United

3

States are not permitted to take a full course of study through online classes. If students find themselves in this situation, they must leave

4

the country or take alternative steps to maintain their nonimmigrant

5

status such as a reduced course load or appropriate medical leave.31

6

60. The July 6 Guidance further barred students whose institutions have gone

7 either hybrid or in-person from taking a fully online curriculum:

8

These schools must certify to SEVP, through the Form I-20,

9

“Certificate of Eligibility for Nonimmigrant Student Status,” certifying

10

that the program is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking

11

the minimum number of online classes required to make normal

12

progress in their degree program.

13

61. Nowhere in the July 6 Guidance did Defendants state that the COVID-19

14 emergency had ended (it had not), whether as a formal or a factual matter. Indeed, the

15 July 6 Guidance was entirely silent on “the COVID-19 situation” that Defendants had

16 earlier said they were planning to monitor and would make the basis of any change in

17 guidance.

18

62. Nowhere in the July 6 Guidance did Defendants acknowledge their prior

19 commitment, in the March 9 Guidance, to allow international students “to make

20 normal progress in a full course of study,” “to be flexible with temporary

21 adaptations,” or allow schools “room … to comply with state or local health

22 emergency declarations.”

23

63. Nowhere in the July 6 Guidance did Defendants give any consideration

24 to the reliance that international students and schools may have placed, in making

25 their respective plans for the coming academic year, on the March 9 and March 13

26

27 31 Id. 28

21
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1 guidance documents, on the nation’s longstanding commitment to the F-1 Visa

2 program, and on the expectation that any changes Defendants would announce to the

3 March 9 and 13 Guidance would reflect a good-faith assessment of materially changed

4 circumstances in light of the values expressed in those documents.

5

64. The July 6 Guidance thus reflected a complete but unacknowledged

6 repudiation of the approach Defendants laid out on March 9 and March 13 to

7 addressing the implications of the COVID-19 pandemic for holders F-1 and M-1

8 visas.

9

65. The July 6 Guidance also failed to address numerous important issues

10 that any reasoned decision maker would consider. For example, the July 6 Guidance

11 did not include an exception for students who cannot attend classes because they are at

12 an elevated risk to COVID-19 due to pre-existing health conditions, nor did it contain

13 an exception for students living with family members or roommates who are at an

14 elevated risk to COVID-19.

15

66. The July 6 Guidance also failed to include an exception for students who

16 are forced into online classes because the state institutes a stay-at-home order that

17 shuts down their educational institution.

18

67. The July 6 Guidance also did not include an exception for students who

19 cannot access the internet in their country of origin, for students who cannot safely

20 travel or who cannot travel at all to their country of origin, or for students who fear

21 suffering injury or death if they return to their country of origin.

22

68. In summary, the July 6 Guidance completely abandoned, without

23 explanation, both the substantive guidance Defendants provided on March 9 and

24 March 13 and the approach Defendants announced they would take to considering any

25 changes to that guidance. The July 6 Guidance also ignored the public-health-

26 informed decisions of schools and government officials to limit or cease in-person

27 teaching. It did not include a safety valve for even the worst coronavirus outbreaks. It

28

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1 did not allow for any of the flexibility necessary to safely manage an increasingly

2 dangerous pandemic. The July 6 Guidance did nothing but mandate the expulsion of

3 students from the United States because of circumstances outside of the students’

4 control, no matter the consequences for the students, the schools, or the country.

5

69. When issuing the July 6 Guidance, the Defendants did not provide an

6 explanation for their departure from the March 9 and March 13 guidance documents.

7 But on July 7, Ken Cuccinelli, the Senior Official Performing the Duties of the

8 Deputy Secretary of Homeland Security (“DHS”) and the Senior Official Performing

9 the Duties of the Director of the United States Citizenship and Immigration Services

10 (“USCIS”), made clear his views about students enrolled in online courses, or enrolled

11 at institutions offering only online courses. “There isn’t a reason for a person holding

12 a student visa to be present in the country . . . they don’t have a basis to be here. . . . I

13 don’t frankly follow why a student visa holder would be here if their school isn’t 14 functioning.”32

15

70. On July 6, at 2:40 p.m. Eastern Time, President Donald Trump tweeted

16 his support for the opening of schools by stating, “SCHOOLS MUST OPEN IN THE 17 FALL!!!”33

18

71. President Trump continued to pressure other institutions beyond

19 universities to open in the fall by threatening to cut funding otherwise.34

20

72. At 4:11 p.m., he accused the Democratic Party and the presidential

21 candidate Joe Biden of supporting closure of schools for political reasons and not 22 health reasons.35

23

24

25
32 https://www.mediaite.com/tv/watch-ken-cuccinelli-and-cnns-brianna-keilar-battle-in-absurd-20-minute-debate-on-

26

immigration-covid-and-confederate-flags/ 33 https://twitter.com/realDonaldTrump/status/1280209946085339136

27

34 https://www.nytimes.com/2020/07/08/us/politics/trump-schools-reopening.html 35 https://twitter.com/realDonaldTrump/status/1280232979781111808

28

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1 In Response to Lawsuits, Defendants Suddenly Change Course For Fall 2020

2

73. Soon after the July 6 Guidance was issued, students and universities and

3 states attorneys general filed over a half-dozen lawsuits in 18 states to challenge the

4 legality of the July 6 Guidance, including this lawsuit brought on behalf of seven

5 student Plaintiffs.

6

74. As the cases progressed and TROs were being sought, Defendants again

7 abruptly changed the rules for international students. During a court hearing in the

8 United States District Court for the District of Massachusetts on July 14, counsel for

9 Defendants suddenly announced they would rescind the July 6 Guidance and its

10 implementation.

11

75. Although the announcement impacted the lives of hundreds of thousands

12 of international students, Defendants did not accompany it with a formal statement of

13 rescission or any express acknowledgement that the July 6 Guidance was both

14 unlawful and legally indefensible. Defendants also declined to issue any explanation

15 or offer any principled basis for their abrupt reversal. Defendants even refused to

16 confirm that the March Guidance would remain in effect for the duration of the

17 coronavirus emergency.

18

76. Instead, on the next day (July 15), ICE deleted from its website the July 6

19 Broadcast Message from the “Guidance Documents” and a related July 7 FAQ from

20 the “Frequently Asked Questions” sections of the site. But Defendants did not

21 disseminate any other information about the policy change to students through any

22 official channels. Visitors to the ICE website hoping to find out more, for example,

23 still saw a press release dated July 6 describing the July 6 Guidance, even though the

24 lengthy documents describing that guidance had been removed.

25

77. It wasn’t until July 24 that Defendants finally informed students and

26 schools in any detail about the changed policy. In a Broadcast Message accompanied

27 by FAQs and a press release (together, the “July 24 Guidance”), Defendants clarified

28

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1 that for the fall 2020 semester, “active nonimmigrant students” may remain in the U.S.

2 to engage in a full course of study if their school offers only online instruction.

3 However, the same policy would not apply to students outside of the country who

4 were not enrolled in a program of study as of March 9, 2020 and whose schools were 5 offering only online classes.36 The July 24 Guidance says nothing about what students

6 can expect to happen for the balance of the academic year (e.g., semesters or quarters

7 beginning in January 2021), should their schools offer only online classes.

8

78. On August 7, 2020, Defendants issued another FAQ, “Frequently Asked

9 Questions for SEVP Stakeholders about COVID-19, Last Updated: Aug. 7, 2020,”

10 (the “August 7 Guidance”) which incorporated the July 24 Guidance for fall 2020.

11 The August 7 Guidance also announced the “rescission” of answers to a handful

12 questions that appeared in the July 6 Guidance. However, none of the rescinded

13 answers addressed the gravamen of the July 6 Guidance: whether F-1 visa holders 14 could remain in the U.S. if their schools did not offer in-person classes.37 The August

15 7 Guidance also failed to address students’ fates for the balance of the academic year.

16 Instead of offering assurances that the March Guidance would remain the policy

17 during the pandemic, the August 7 Guidance conceded explicitly that it is “subject to

18 change.”

19

79. In short, nothing prevents Defendants from abandoning the August 7

20 Guidance on a whim. By failing to acknowledge that the July 6 Guidance was

21 unlawful, to formally rescind the July 6 Guidance, or to make any express

22 commitment (let alone a binding one) to keep the March Guidance in place for the

23 duration of the pandemic emergency, Defendants have kept the door open to

24 reinstating the July 6 Guidance at any time and for any reason.

25

26

27

36 See https://www.ice.gov/doclib/sevis/pdf/bcmFall2020guidance.pdf. 37 https://www.ice.gov/doclib/coronavirus/covid19faq.pdf.

28

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1 The Impact of Uncertainty About the Academic Year on International Students

2

80. Plaintiffs attend schools that are offering only online classes to all

3 students, or at least to all international students on F-1 visas.

4

81. Based on the Defendants’ guidance in March 2020 confirming they could

5 remain in the U.S. to continue their studies online “throughout the duration of the

6 emergency,” Plaintiffs secured housing and made other advance commitments for the

7 2020-21 academic year.

8

82. Plaintiffs have no assurances, however, that Defendants will allow them

9 to remain in the U.S. for the remainder of the academic year -- or even through the fall

10 2020 semester. If they are forced to leave the country at the conclusion of the fall

11 2020 semester, or even before that time should Defendants abruptly change the rules

12 without warning or valid explanation yet again, Plaintiffs will be ripped from their

13 communities and their academic programs. Their carefully-laid financial, health,

14 employment, immigration, and personal plans -- made under the assumption that

15 Defendants would not revoke the March Guidance for the “duration of the

16 emergency” -- will be upended.

17

Housing

18 83. Some Plaintiffs have signed leases and acquired housing under the
19 assumption that they would be present in the United States for the academic year. If
20 these Plaintiffs are forced to leave the United States during the academic year, they
21 will either have to break their leases and lose their security deposits, which would
22 result in a loss to their credit score, or lose money by continuing to pay rent until the
23 end of the lease term.
24 84. Plaintiffs will likewise have to procure housing in their country of origin.
25 While some Plaintiffs may be able to live with family, others have no safety net in that
26

27

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1 country, and will be forced to find housing with adequate internet connections and

2 access to study space with little notice, perhaps before they leave the United States.

3

85. When some Plaintiffs relocated to the United States to enter their

4 respective academic programs, they brought all of their belongings and livelihoods.

5 Because they justifiably expected to remain in the United States for years of

6 education, they did not build a safety net in their countries of origin. They terminated

7 their housing, sold their furniture, and gave away the belongings that they could not

8 bring with them to the United States. These Plaintiffs do not have a ready-made home

9 in their respective home countries. 10

Travel

11

86. The COVID-19 pandemic affects countries worldwide. Multiple

12 countries have shut down their borders and banned all transnational flights. Others

13 have specifically barred flights from the United States. If Plaintiffs are forced to

14 suddenly leave the country without adequate warning, they may not be able to find

15 flights back to their home countries.

16

87. Even if each Plaintiff is able to find a flight itinerary that will eventually

17 take her home, the limited availability of international flights will mean that their

18 itineraries will likely include multiple stops over different continents.

19

88. Multi-city itineraries are not simply inconvenient. They pose health risks.

20 As an airline passenger, the Plaintiff would spend hours in a confined space

21 surrounded by shared surfaces - exactly the kind of prolonged exposure that creates

22 substantial risk of contracting the novel coronavirus. This is in addition to the added

23 risks associated with airports, whether it be standing in security lines or waiting at the

24 gate to board an aircraft.

25

89. Such an itinerary is also exorbitantly, perhaps prohibitively, expensive.

26 As noted above, airfare may exceed $10,000 – especially given the need to book on

27 short notice. In addition, for students returning to countries, such as China, that have

28

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1 imposed a quarantine on incoming travelers, the students would have to pay for 14

2 days’ lodging while they quarantine.

3

90. The financial and logistical challenges that Plaintiffs face multiply for

4 international students with dependents.

5

Health Risks

6

91. Forcing students to return to their countries of origin does more than put

7 them at increased risk of exposure to the novel coronavirus during transit. In order to

8 accommodate the course schedule and participate in extracurricular activities,

9 plaintiffs, some of whom will not be given the option of asynchronous class 10 participation, will be forced to maintain irregular sleep schedules.38 These sleep

11 schedules will put students at a disadvantage compared to their peers, which poses a

12 particular harm to plaintiff in classes that are graded on a curve.

13

92. Plaintiffs would also be burdened with health insurance costs. Many

14 Plaintiffs have already paid for their 2020–21 health insurance plans through their

15 university—plans that will do nothing for them in their country of origin. These

16 Plaintiffs may need to buy health insurance in their home countries. Foregoing health

17 insurance during the pandemic is not a realistic nor preferred option for Plaintiffs.

18 However, given the costs associated with health insurance and the price of their now-

19 useless American insurance, Plaintiffs may go uncovered.

20

Education Inequities

21

93. If Plaintiffs are forced to return to their home countries, it could be

22 difficult or impossible for them to participate fully in classes and complete the

23 academic year. Students in different time zones would be forced to choose between 24 attending online classes in the middle of the night or watching recorded classes.39

25

26 38 https://www.tandfonline.com/doi/full/10.1080/09291016.2015.1103942; https://mail.google.com/mail/u/1/#inbox/
FMfcgxwJWjBjvRFDqNrMVnNJctWDlNWW?projector=1&messagePartId=0.1

27

39 See, e.g., Kelsey J. Griffin, Hundreds of Harvard Law Students Criticize Plans for Online Fall Semester, Harv. Crimson (June 17, 2020, 9:11 PM), https://www.thecrimson.com/article/2020/6/17/hls-online-fall-semester/.

28

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1 Students watching recordings will be harmed because they cannot ask questions

2 during class, participate in class discussion, or otherwise have a visible presence. But

3 students who attempt to participate as the class occurs must stay alert for two to three

4 hours of lecture at inopportune times, often in the middle of the night. Either way,

5 students will be put at a substantial disadvantage compared to their classmates taking

6 the same class during normal hours.

7

94. Forcing Plaintiffs to return to their countries of origin will severely limit

8 their practical learning opportunities. In law school, meeting and communicating with

9 clients, supervisors, and team members constitute a large part of clinical experience.

10 While any remote learning complicates these experiences, substantial time differences

11 like those faced by Plaintiffs make them almost impossible. For example, students

12 enrolled in legal clinical programs often have trouble scheduling meetings with clients

13 even when the all reside in the same city; these meetings simply will not occur when

14 the student attorney and the client must contend with a 16-hour difference.

15

95. The same applies to pro bono opportunities, many of which involve client

16 intake interviews or group work. Limiting international students’ pro bono

17 opportunities will disadvantage them, as some law schools confer graduation honors 18 based on the number of pro bono hours completed.40

19

96. For some Plaintiffs, participating in online classes in their countries of

20 origin may not be an option at all. Internet access, which is absolutely necessary for

21 remote learning, is not guaranteed in some countries. Some countries have restricted 22 internet access while others, like Ethiopia,41 block it altogether. Without adequate

23 internet access, students cannot take online classes at all.

24

25

26 40 See, e.g., Pro Bono Program Code and Guidelines, UCI Law, https://www.law.uci.edu/about/public-service/public-
interest/probono/program-guidelines.html (last visited July 8, 2020).

27

41 Bethlehem Feleke, Internet Cut Off in Ethiopia amid Outcry over Death of Singer-Activist, CNN (June 30, 2020, 2:59 PM), https://www.cnn.com/2020/06/30/africa/ethiopia-singer-killing-sparks-protest-intl/index.html.

28

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1

97. Other countries heavily monitor internet activity and curtail access to

2 some resources. Beyond potentially exposing students to government harassment

3 because of the contents of their studies, these restrictions will make it difficult or

4 impossible for students in these countries to continue their studies.

5

98. China, for example, limits access to Google web products.42 Many

6 schools, including UC Irvine, use Google products like Gmail and Google Drive to

7 communicate and collaborate on academic and clinical assignments – and this is even

8 more true now that teaching has moved online. If students cannot access these 9 resources, they will be locked out of their education.43

10

Immigration Consequences

11

99. The July 6 Guidance prevented students whose schools will operate

12 entirely online from applying for Curricular Practical Training and Optional Practical

13 Training (“OPT”) visa programs. CPT allows international students to work in their 14 field of study while they are enrolled in their academic program.44 OPT allows 15 students to work in the United States for one year after graduation.45 To be eligible for

16 OPT, students must have been enrolled in school full-time for one year, maintain valid 17 F-1 status, and be physically present in the United States at the time of application.46

18 Cancelling the F-1 visa or forcing international students to return to their countries of

19 origin will make these students ineligible for CPT and will prevent them from

20

21

22 42 https://www.businessinsider.com/major-us-tech-companies-blocked-from-operating-in-china-2019-5

43 Virtual Private Networks (“VPNs”), the typical solution to internet tracking and restrictions imposed by authoritarian

23 regimes, are heavily restricted in China. Because only government-approved VPNs are accessible, the VPN does nothing

to secure against government intrusion. See https://www.techradar.com/news/coronavirus-sees-china-crack-down-on-

24 vpns. And, in plaintiffs’ experience, the VPNs which are available so severely throttle internet speeds that video chat –
necessary to participate in online courses – is almost impossible to use.

25 44 F-1 Curricular Practical Training (CPT), Berkeley Int’l Office,
https://internationaloffice.berkeley.edu/students/employment/cpt (last visited July 8, 2020).

26 45 Optional Practical Training (OPT) for F-1 Students, U.S. Citizenship & Immigration Servs.,
https://www.uscis.gov/opt (last updated Apr. 22, 2020).

27

46 Id.; see also F-1 Optional Practical Training (OPT), Berkeley Int’l Office, https://internationaloffice.berkeley.edu/students/employment/opt (last visited July 8, 2020).

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1 applying to OPT. No changes were made to the restrictions for CPT and OPT

2 programs in the July 24 Guidance or August 7 Guidance.

3

100. Some international students have applied for permanent resident status,

4 better known as the green card, and are waiting for approval. Plaintiffs are concerned

5 that the new SEVP rule may extend the waiting time for students who must leave the

6 United States because their schools will operate entirely online.

7

Inequities in Employment Opportunities

8

101. Because of the risks associated with COVID-19, law schools across the

9 nation have postponed to January their On-Campus Interviews (“OCI”), a yearly event

10 where law firms travel to law school campuses to interview and recruit students for

11 summer associate positions and eventual full-time employment. OCI is a competitive

12 and important process for students.

13

102. If the July 24 Guidance is not extended beyond the fall 2020 semester (or

14 if it is revoked during the fall semester), Plaintiffs will need to leave the country and

15 will not be able to physically attend or fully participate in OCI.

16

103. If schools decide to hold virtual OCI, Plaintiffs have to interview in the

17 middle of the night and compete against domestic students who are interviewing in

18 normal business hours.

19

104. Furthermore, employers will easily be able to identify the immigration

20 status of Plaintiffs. By simply asking about the time zone or city that Plaintiffs are in,

21 employers can filter out international students among their interviewees. Due to the

22 additional cost and precarious nature of sponsoring foreign nationals, some employers 23 may avoid hiring international students for summer associate positions.47

24

25

26 47 The disadvantages imposed to international students who are not participating in OCI are similar to Plaintiffs’

27

disadvantages. The students will still have to interview in odd hours via Zoom and will indirectly disclose their immigration status.

28

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CLAIMS FOR RELIEF 1

2

Count 1: (Violation of Administrative Procedure Act, 5 U.S.C. §706)

3 Defendants’ Issue of the July 6 Guidance was Arbitrary and Capricious Both

Because It Failed Adequately to Consider the Reliance Interests of Millions of F-

4

1 and M-1 Visa Holders and Because It Failed to Provide a Reasoned

5

Explanation.

6

105. Plaintiffs incorporate the allegations contained in the preceding

7 paragraphs.

8

106. The APA requires this Court to “hold unlawful and set aside agency

9 action, findings, and conclusions found to be…arbitrary, capricious, an abuse of

10 discretion, or otherwise not in accordance with law.” 5 U.S.C. §706(2)(A). Agency

11 action must be the result of reasoned analysis. Motor Vehicle Mfrs. Ass’n of United

12 States, Inc. v. State Farm Mu. Auto. Ins. Co., 463 U.S. 29, 57 (1983).

13

107. This standard applies even when an agency is altering existing guidance.

14 When an agency changes course, the agency must “be cognizant that longstanding

15 policies may have engendered serious reliance interests that must be taken into

16 account.” Encino Motorcars LLC v. Navarro, 136 S. Ct. 2117, 2120 (2016).

17

108. As noted above, the United States has a long history of inviting

18 international students to study as “non-immigrants” pursuant to a student visa

19 program. International students admitted to well-established and high-quality

20 institutions, such as those in the UC system, often have multiple options available to

21 them. They choose to come study in the United States in reliance on the integrity of

22 the visa program and the expectation that their student visas will remain valid as long

23 as they are committed to their studies at their academic institutions.

24

109. The March 9 and March 13 guidance documents set forth a reasonable

25 framework for addressing the implications of COVID-19 for F-1 and M-1 visas, as

26 well as for updating the guidance in light of changes to the COVID-19 situation. The

27 July 6 Guidance failed to identify any material changes to the COVID-19 situation

28

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1 that had occurred since March 13, and ignored entirely the approach and rationale

2 underlying the March 9 and March 13 guidance documents.

3

110. The July 6 Guidance ignored the assurances Defendants have made to

4 hundreds of thousands of students for well over twenty years that, as long as they

5 remain in compliance with their academic programs, they will be able to remain in the

6 United States at the institutions where they study.

7

111. The July 6 Guidance also ignored the reasonable reliance that students

8 and schools alike placed in the approach to reconciling the impact of COVID-19 on F-

9 1 and M-1 visa requirements set forth in the March 9 and March 13 guidance

10 documents.

11

112. The Supreme Court has recently emphasized that agencies modifying a

12 previous policy are “required to assess whether there were reliance interests,

13 determine whether they were significant, and weigh any such interests against

14 competing policy concerns.” Department of Homeland Security v. Regents of Univ. of

15 California 591 U.S. ___ (slip op., at 26) (2020).

16

113. The July 6 Guidance was arbitrary and capricious because it failed to

17 consider these important reliance interests. Revoking international students’ visas

18 when students have done everything in their power to remain in compliance with U.S.

19 immigration law in the midst of a pandemic—and after Defendants announced at the

20 outset of the pandemic that the United States would honor these visas during the

21 pandemic despite the shift to online classes—disregarded the reliance interests of

22 these students in maintaining their visa status and their ability to continue studying in

23 the United States. The long history of the United States’ F-1 visa program, together

24 with the March 13 Guidance, created a reasonable and justifiable expectation among

25 students that they could maintain their visa status so long as they progressed in their

26 particular course of study in whatever way that course of study was offered by their

27 academic institution.

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1

114. The reliance interests of F-1 visa holders extend further still. As

2 discussed above, Plaintiffs have executed leases worth thousands of dollars for the

3 upcoming school year. Many have paid for expensive health insurance plans that are

4 now useless. Many will be forced to store or abandon property in the United States if

5 they are required to exit the country on short notice or mid-way through the academic

6 year. Many would not have paid tens of thousands of dollars in tuition to American

7 universities had they known they could not be present in the country for the full 2020-

8 21 academic term.

9

115. This reliance was justifiably premised on Defendants’ March 9 and

10 March 13 Guidance. For example, the March 13 Guidance advised F-1 Visa holders

11 that the spring 2020 exemptions from online learning restrictions would exist “in

12 effect for the duration of the emergency.”

13

116. Apart from the failure to address reliance interests, an agency’s failure to

14 provide “reasoned analysis” for this sudden change in policy is “arbitrary, capricious,

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

16 §706(2)(a). Here, the July 6 Guidance failed to offer any reasonable consideration of

17 the painful consequences of the Guidance for students, schools, and communities. For

18 example, the Guidance contain no discussion of the implications of this new policy for

19 public health, of the status of the COVID-19 situation and how it was different in July

20 than March in a way that was material for this guidance, or of how and why the

21 guidance better served the purposes of the F-1 visa program, such as allowing

22 “students to make normal forward progress in their studies,” than did the March

23 guidance. The July 6 Guidance lacked even an acknowledgment of, let alone a

24 justification for, the extraordinary human suffering it would have caused.

25

117. The Defendants’ voluntary and unexplained decision to change the July 6

26 Guidance does not mean they can avoid adjudication of the APA violations because

27 there are no procedural or other safeguards to ensure Defendants won’t arbitrarily

28

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1 revert to the July 6 Guidance, nor have Defendants provided a rationale for their

2 changed practices that would ensure the arbitrary and capricious manner in which they

3 sought to effect the forced removal of Plaintiffs and other international students

4 through the July 6 Guidance will not happen again.

5

118. For these reasons and others, the July 6 Guidance must be declared to

6 have been issued in a manner that was “arbitrary, capricious, an abuse of discretion, or

7 otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

8 Count II: (Violation of Administrative Procedure Act, 5 U.S.C. §§ 553,706)

9 The July 6 Guidance Violates the APA’s Notice-And-Comment Requirements.

10

119. Plaintiffs incorporate the allegations contained in the preceding

11 paragraphs.

12

120. The APA requires this Court to hold unlawful and set aside any agency

13 action taken “without observance of procedure required by law.” 5 U.S.C.

14 § 706(2)(D).

15

121. The APA, 5 U.S.C. § 553, requires that any agency desiring to implement

16 a rule go through the process of notice-and-comment in order to give the agency the

17 benefit of the expertise of those most impacted by the potential rule-making.

18

122. The July Guidance did not go through any such process. Instead, DHS

19 stated it planned to “publish the procedures and responsibilities in the Federal Register 20 as a Temporary Final Rule.”48

21

123. The July 6 Guidance formalized a reversal of previous ICE guidance and

22 thus is subject to notice and comment requirements. It is not an interpretive rule that

23 could be issued without notice and comment requirements. Mt. Diablo Hospital Dist.

24 v. Bowen, 860 F.2d 951, 956 (9th Cir. 1988).

25

26

27

48 https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-students-taking-onlinecourses-during

28

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1

124. DHS has failed to provide any “good cause” that would justify bypassing

2 the notice and comment period. 5 U.S.C. §553 (b)(3)(B). The good cause exception is

3 only available to agencies if the agency has “good cause” to believe the process would

4 be “impracticable, unnecessary, or contrary to the public interest.” Western Oil & Gas

5 Ass’n v. U.S. Environmental Protection Agency, 633 F.2d 803, 810 (9th Cir. 1980).

6

125. The agency never “published reasons for thinking” the good cause

7 applied to the rules in question. Id.

8

126. DHS has failed to demonstrate how threatening to deport over one

9 million students in the middle of a global pandemic could possibly qualify as good

10 cause.

11

127. The Defendants’ voluntary and unexplained decision to change the July 6

12 Guidance does not mean they can avoid adjudication of the APA violations because

13 there are no procedural or other safeguards to ensure Defendants won’t arbitrarily

14 revert to the July 6 Guidance, nor have Defendants provided a rationale for the

15 changed practices that would ensure the arbitrary and capricious manner in which

16 Defendants sought to effect the forced removal of Plaintiffs and other international

17 students through the July 6 Guidance will not happen again.

18

128. By promulgating the July 6 Guidelines without notice and comment, ICE

19 violated 5 U.S.C. § 553 and § 706. The modifications it announced should be declared

20 unlawful.

21

22

23

24

25

26

27

28

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Count III: (Violation of the Due Process Clause of the Fifth Amendment)

1

The July 6 Guidance Deprive Plaintiffs of Their Visa Status

2

Without Due Process of Law.

3

129. Plaintiffs reallege and incorporate by reference each and every allegation

4 contained in the preceding paragraphs.

5

130. Due process protections extend to “all ‘persons’ within the United States,

6 including [non-citizens], whether their presence here is lawful, unlawful, temporary,

7 or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Nonimmigrant students

8 are lawfully present in this country.

9

131. Nonimmigrant students have significant liberty and property interests,

10 protected by the Due Process Clause, in their visas and/or access to educational

11 programs to which they have been admitted and in which they have invested time,

12 energy, and money. The “very essence” of due process is the “protection of the

13 individual against arbitrary action.” Board of Regents of State Colls. v. Roth, 408 U.S.

14 564, 584 (1972). The July 6 Guidance was so arbitrary, both in substance and the

15 manner in which it was implemented, that it threatened to unlawfully deprive

16 Plaintiffs of their constitutionally protected liberty and property interests.

17

132. Defendants’ voluntary and unexplained decision to change the July 6

18 Guidance does not mean they can avoid adjudication of the due process violations

19 because there are no procedural or other safeguards to ensure Defendants will not

20 arbitrarily revert to the July 6 Guidance, nor have Defendants provided a rationale for

21 their changed practices that would ensure the July 6 policy will not be reinstated.

22

133. Provisions of the July 24 and August 7 Guidance that limit their

23 applicability to the fall 2020 terms also threaten to deprive Plaintiffs of their due

24 process rights as Defendants could again implement a policy without due process

25 protections that would force students to leave the country if their classes are offered

26 only online.

27

28

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1

134. As a result of the foregoing constitutional violations, Plaintiffs will suffer

2 irreparable injury.

3

PRAYER FOR RELIEF

4

Wherefore, Plaintiffs respectfully seek the following relief:

5

1. A declaration that the policy announced in the July 6 Guidance was

6 unlawful and unlawfully promulgated;

7

2. Permanent injunctive relief preventing Defendants from re-enacting or

8 enforcing the policy announced in July 6 Guidance, or promulgating it as a Final Rule;

9

3. Declaratory and/or injunctive relief requiring Defendants to administer

10 the SEVP program in accordance with the March Guidance throughout the academic

11 year and for the duration of the COVID-19 emergency, unless replaced by a legally-

12 sufficient agency rule promulgated through appropriate procedures, including notice

13 and comment;

14

4. An order requiring Defendants to modify the July 24 Guidance and

15 August 7 Guidance consistent with the foregoing;

16

5. An order awarding Plaintiffs their costs and attorneys’ fees; and/or

17

6. Any and all other such relief as the Court may deem appropriate.

18

19 DATED: August 14, 2020 20 21 22 23 24 25

By: /s/ David R. Carpenter** Lisa M. Gilford David R. Carpenter Stacy Horth-Neubert Sheri Porath Rockwell SIDLEY AUSTIN LLP
By: /s/ Mark D. Rosenbaum Mark D. Rosenbaum PUBLIC COUNSEL

26

27

28

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1

By: /s/ Evan Caminker Dean Emeritus and Branch Rickey

2

Collegiate Professor of Law

3

University of Michigan Law School (Affiliation for identification

4

purposes only)

5

By: /s/ Mark E. Haddad

6

USC Gould School of Law

7

University of Southern California (Affiliation for identification

8

purposes only)

9 Attorneys for Plaintiffs

10

Z.W., C.Y., X.Y., A.G., M.X., Z.L., W.R.,

11

and DOES 1-50.

12

** Filer attests that all signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the filing.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

39

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