Case 6:20-cv-01127-MK Document 1 Filed 07/13/20 Page 1 of 38

Kevin S. Reed (OBN #160574)

Rebecca Gose (OBN #105712)

ksreed@uoregon.edu

rebecca.gose@oregonstate.edu

Douglas Y.S. Park (OBN #980904)

Julie Penry (OBN #053440)

dougpark@uoregon.edu

julie.penry@oregonstate.edu

Jessica Price (OBN #182104) (LR 83-4 pending)Whitney Hill (OBN #093849)

jgprice@uoregon.edu

whitney.hill@oregonstate.edu

University of Oregon

(Special Admission as Government Attorneys

Office of General Counsel

pending)

1226 University of Oregon

Oregon State University

Eugene, OR 97403

Office of the General Counsel

Phone: (541) 346-3082

630 Kerr Admin Bldg

Corvallis, OR 97331

GIBSON, DUNN & CRUTCHER LLP

Phone: (541) 737-2474

Theodore B. Olson (pro hac vice forthcoming) GIBSON, DUNN & CRUTCHER LLP

tolson@gibsondunn.com

Matthew D. McGill (pro hac vice forthcoming) Debra Wong Yang (pro hac vice forthcoming)

mmcgill@gibsondunn.com

dwongyang@gibsondunn.com

Joshua Wesneski (pro hac vice forthcoming) Ethan Dettmer (pro hac vice forthcoming)

jwesneski@gibsondunn.com

edettmer@gibsondunn.com

1050 Connecticut Avenue, N.W.

Theane Evangelis (pro hac vice forthcoming)

Washington, D.C. 20036-5306

tevangelis@gibsondunn.com

Phone: (202) 955-8500

Chelsea Mae Thomas (pro hac vice forthcoming)

cthomas@gibsondunn.com

Alexander H. Southwell (pro hac vice

333 South Grand Avenue

forthcoming)

Los Angeles, CA 90071-3197

asouthwell@gibsondunn.com

Phone: (213) 229-7000

Oliver Fong (pro hac vice forthcoming)

ofong@gibsondunn.com

200 Park Avenue

Attorneys for Plaintiffs

New York, NY 10166-0193

Phone: (212) 351-4000

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

UNIVERSITY OF OREGON; OREGON STATE UNIVERSITY; UNIVERSITY OF SOUTHERN CALIFORNIA; ARIZONA STATE UNIVERSITY; CALIFORNIA INSTITUTE OF TECHNOLOGY; CHAPMAN UNIVERSITY; CLAREMONT MCKENNA COLLEGE; NORTHERN

Case No. 6:20-cv-01127 COMPLAINT

Complaint

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ARIZONA UNIVERSITY; PITZER COLLEGE; POMONA COLLEGE; PRESIDENT AND BOARD OF TRUSTEES OF SANTA CLARA COLLEGE; SCRIPPS COLLEGE; SEATTLE UNIVERSITY; STANFORD UNIVERSITY; SAINT MARY’S COLLEGE OF CALIFORNIA; UNIVERSITY OF ARIZONA; UNIVERSITY OF THE PACIFIC; UNIVERSITY OF SAN DIEGO; UNIVERSITY OF SAN FRANCISCO; and UNIVERSITY OF UTAH,
Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.
Complaint

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INTRODUCTION 1. The United States has long welcomed international students through its F-1 visa program to attend school in the United States so long as they are engaged in a full course of study. Since 2002, regulations implementing the F-1 visa program have required F-1 students to attend most classes in person. 2. In January of 2020, the novel coronavirus began spreading throughout the United States, eventually leading in March 2020 to a near nationwide lockdown of businesses, churches, and schools. The coronavirus causes the deadly disease COVID-19, which has infected millions of individuals in the United States and worldwide. 3. In response to this growing pandemic and the practical reality that schools across the country were moving to remote education, U.S. Immigration and Customs Enforcement (“ICE”) issued an order on March 9, 2020 advising that F-1 students would be exempt from the ordinary requirement that they attend the majority of their classes in person. Instead, F-1 students would be permitted to attend their courses remotely without fear of losing their F-1 status or being deported. 4. In reliance on that statement, schools, including Plaintiffs and others offering post-secondary education, began planning for the Fall 2020 semester. As they deployed resources and evaluated the needs of their particular student bodies, universities and colleges commenced and devoted extensive efforts to outline plans for how they would offer effective academic instruction in a safe environment in the Fall. 5. These schools began to adopt a variety of approaches—some schools planned to offer approximately half of their classes remotely and the other half in person, others planned for only a small number of in-person classes, and still others determined that it was best for their students to remain fully remote for the Fall 2020 semester. These academic plans were the result Page 1 Complaint

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of extensive analysis, deliberation, and reasoned judgment by each school as to what best suited their particular circumstances.
6. All of these plans, however, were thrown into disarray on July 6, 2020. On that day, ICE issued a new order, largely rescinding its prior exemption for F-1 students and announcing that F-1 students in the United States would be required to attend classes in person or face removal to their home countries. This announcement was made without warning and without any input from the schools or students directly affected by it.
7. In addition to revoking the exemption for remote learning, ICE demanded that schools intending to offer purely online instruction submit an operational change plan by July 15—just nine days later—with other schools having until just August 1 to submit their plans. And all schools with F-1 students are required to submit new I-20 Forms for each of the thousands of F-1 students that have enrolled for the Fall semester.
8. This about-face shook the entire academic community. Schools that had spent months carefully planning for their Fall semester are suddenly faced with a need to completely redesign their academic programming for the Fall, or risk having their F-1 students expelled from the country for failing to attend in-person courses. Moreover, instead of devoting resources to planning for the new semester or responding to the ever-evolving pandemic, schools with F-1 students will be forced to divert substantial resources to draft new operational plans on an expedited schedule, and issue new I-20 Forms for thousands of students—a burdensome, costly, and time-consuming process.
9. F-1 students themselves are also in dire straits. Those who are unable to enroll in in-person courses for the Fall face the threat of removal. They may be sent back to a country with little or no Internet access, they may face new health or safety risks in that country, or they
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may not even have a home to go back to. Once expelled, they may never be able to reapply for or reenter the F-1 program, thus permanently ending their post-secondary education.
10. Thousands of students are now subjected to these threats and living in fear of what might befall them. And the new rule does not give schools enough time to find ways to protect their international students from having their lives radically transformed by this new agency action.
11. Plaintiffs are a diverse coalition of post-secondary education institutions in the western states that refuse to tolerate ICE’s unwarranted and unlawful action that threatens to disrupt the education of hundreds of thousands of hardworking students and their academic environments and missions. They bring this suit on their own behalf and on behalf of their students to vindicate their rights under the law to fair, reasoned, and transparent government action.
PARTIES 12. Plaintiff University of Oregon is a public research university located in Eugene, Oregon. It provides instruction to more than 23,000 students annually, approximately 12% of which are international students. 1,635 active students hold F-1 visas. University of Oregon brings this lawsuit on behalf of itself and its F-1 visa-holding students. 13. Plaintiff Oregon State University is a public institution with physical campuses in Corvallis and Bend, Oregon, and educational sites in Newport and Portland, Oregon. It provides instruction to more than 30,000 students annually, approximately 11% of which are international students. Oregon State University anticipates that nearly 3,000 students holding F-1 visas will attend Oregon State University for the Fall 2020 semester, including 300 who are newly admitted students, some of whom are already in the United States. Oregon State University brings this lawsuit on behalf of itself and its F-1 visa-holding students. Page 3 Complaint

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14. Plaintiff University of Southern California (“USC”) is a leading private research university located in Los Angeles, California. It provides instruction to nearly 50,000 students annually from more than 135 countries, including approximately 11,500 active students holding F-1 visas. USC brings this lawsuit on behalf of itself and its F-1 visa-holding students.
15. Plaintiff Arizona State University is a public research university. The majority of its students are enrolled in four campuses located in the Phoenix, Arizona metropolitan area, and the largest campus is in Tempe, Arizona. In Fall 2019, the university enrolled approximately 10,000 degree-seeking undergraduate and graduate international students out of a total student body of over 75,000 students. The Arizona Board of Regents for and on behalf of Arizona State University brings this lawsuit on behalf of itself and its F-1 visa-holding students.
16. Plaintiff California Institute of Technology is a private research university located in Pasadena, California. It provides instruction to more than 2,200 students annually, including approximately 700 international students (or approximately 32% of its total student population). California Institute of Technology brings this lawsuit on behalf of itself and its F-1 visa-holding students.
17. Plaintiff Chapman University is a private university located in Orange, California. It provides instruction to more than 9,000 students annually, including approximately 400 international students. Chapman University brings this lawsuit on behalf of itself and its F-1 visa-holding students.
18. Plaintiff Claremont McKenna College is a private liberal arts college located in Claremont, California. It provides instruction to approximately 1,300 students annually, including approximately 200 international students. Claremont McKenna College brings this lawsuit on behalf of itself and its F-1 visa-holding students.
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19. Plaintiff Northern Arizona University is a public research university located in Flagstaff, Arizona. It provides instruction to more than 30,000 students annually, including approximately 1,200 international students. The Arizona Board of Regents for and on behalf of Northern Arizona University brings this lawsuit on behalf of itself and its F-1 visa-holding students.
20. Plaintiff Pitzer College is a private institution located in Claremont, California. It provides instruction to approximately 1,100 students annually, approximately eight percent of which are international students. Pitzer College brings this lawsuit on behalf of itself and its F-1 visa-holding students.
21. Plaintiff Pomona College is a private liberal arts college located in Claremont, California. It provides instruction to more than 1,700 students annually, including approximately 208 active students holding F-1 visas and 52 newly admitted students who have not started their programs or F-1 visa status. Typically, approximately 11% of Pomona College’s student body is international students. Pomona College brings this lawsuit on behalf of itself and its F-1 visaholding students.
22. Plaintiff President and Board of Trustees of Santa Clara College (“Santa Clara University”) are representatives of a private Jesuit university located in Santa Clara, California. It provides instruction to more than 8,500 students annually, including more than 1,600 international students. Santa Clara University brings this lawsuit on behalf of itself and its F-1 visa-holding students.
23. Plaintiffs Scripps College is a private women’s college located in Claremont, California. It provides instruction to approximately 1,150 students annually, approximately four
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percent of which are international students. Scripps College brings this lawsuit on behalf of itself and its F-1 visa-holding students.
24. Plaintiff Seattle University is a private university located in Seattle, Washington. It provides instruction to more than 7,000 students annually, approximately 10% of which are international students. Seattle University brings this lawsuit on behalf of itself and its F-1 visaholding students.
25. Plaintiff Stanford University is a private research university located in Stanford, California. It provides instruction to more than 17,000 students annually, including approximately 5,178 active students holding F-1 visas. Typically, 11% of Stanford’s undergraduate students and 34% of its graduate students are international students. Collectively, the international students come from six continents and more than 101 countries. Stanford University brings this lawsuit on behalf of itself and its F-1 visa-holding students.
26. Plaintiff Saint Mary’s College of California is a private college located in Moraga, California. It provides instruction to more than 3,000 students annually, including 118 international students in the Fall 2019 semester. Saint Mary’s College of California brings this lawsuit on behalf of itself and its F-1 visa-holding students.
27. Plaintiff University of Arizona is a public research university located in Tucson, Arizona. It provides instruction to more than 45,000 students annually, including 3,780 international students in the Fall 2019 semester. In the Spring 2020 semester, 3,382 active students held F-1 visas. The Arizona Board of Regents for and on behalf of University of Arizona brings this lawsuit on behalf of itself and its F-1 visa-holding students.
28. Plaintiff University of the Pacific is a private university located in Stockton, California. It provides instruction to more than 6,000 students annually, including approximately
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500 active students holding F-1 visas. University of the Pacific brings this lawsuit on behalf of itself and its F-1 visa-holding students.
29. Plaintiff University of San Diego is a private university located in San Diego, California. It provides instruction to more than 9,000 students annually, including approximately 700 international students. University of San Diego brings this lawsuit on behalf of itself and its F-1 visa-holding students.
30. Plaintiff University of San Francisco is a private Jesuit university located in San Francisco, California. It provides instruction to more than 10,000 students annually, including approximately 1,400 international students and 1,162 active students holding F-1 visas. University of San Francisco brings this lawsuit on behalf of itself and its F-1 visa-holding students.
31. Plaintiff University of Utah is a public research university located in Salt Lake City, Utah. It provides instruction to more than 30,000 students annually, including approximately 2,700 active students holding F-1 visas. University of Utah brings this lawsuit on behalf of itself and its F-1 visa-holding students.
32. Defendant United States Department of Homeland Security is a federal agency of the United States.
33. Defendant United States Immigration and Customs Enforcement is a division of the United States Department of Homeland Security.
34. Defendant Chad F. Wolf is the Acting Secretary of the United States Department of Homeland Security. He is sued in his official capacity.
35. Defendant Matthew Albence is the Acting Director of United States Immigration and Customs Enforcement. He is sued in his official capacity.
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JURISDICTION AND VENUE 36. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. Plaintiffs have been legally wronged and are aggrieved by a final agency action promulgated by Defendants. 5 U.S.C. § 702. Plaintiffs bring this suit under the Administrative Procedure Act for declaratory and injunctive relief to hold unlawful and set aside Defendants’ action as contrary to law and arbitrary and capricious. Id. §§ 705, 706. Plaintiffs’ claim presents a federal question. 28 U.S.C. § 1331. 37. Sovereign immunity has been waived under 5 U.S.C. § 702. 38. Venue is proper in this Court because this is an action against officers and agencies of the United States, and Plaintiffs University of Oregon and Oregon State University reside in this District and no real property is involved in the action. 28 U.S.C. § 1391(e)(1). Venue is also proper in the Eugene Division because Plaintiffs University of Oregon and Oregon State University reside in this division. 39. This Court is authorized to grant the requested injunctive relief pursuant to Federal Rule of Civil Procedure 65 and 5 U.S.C. § 705.
FACTS A. The F-1 Visa Program 40. Citizens of foreign countries who wish to enter the United States to attend school must obtain a nonimmigrant F student visa. See U.S. Department of State, Student Visa, Travel.State.Gov, https://bit.ly/2ZiwaN0. In large part because of the F-1 visa program, which is the most common visa issued to international students, the United States has become the preeminent global hub for academic training. 41. First, the student must apply and be accepted to a school certified by the SEVP, which is the Department of Homeland Security program that administers the Student and Page 8 Complaint

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Exchange Visitor Information System (“SEVIS”) and “provides approval and oversight to schools authorized to enroll F . . . nonimmigrant students.” U.S. Immigration and Customs Enforcement, SEVP Overview, Student and Exchange Visitor Program, https://bit.ly/2Wbpdf0.
42. “F-1” students are those international students enrolling in elementary, secondary, or post-secondary academic institutions. U.S. Immigration and Customs Enforcement, Student Process Steps: How to Navigate the U.S. Immigration System, Student and Exchange Visitor Program, https://bit.ly/329dYHz.
43. Once a student decides which school to attend, they must complete a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” which is a paper record of the information in the SEVIS database and includes evidence of the student’s financial ability to live and study in the United States. Id.; Student Visa, supra; Department of Homeland Security, Financial Ability, Study in the States, https://bit.ly/2Cv4cod. After the student completes the Form I-20, they must pay the I-901 SEVIS fee and apply for and receive a visa. Student Visa, supra.
44. Students with F-1 visas must maintain their status by taking and passing a full course of study. Department of Homeland Security, Maintaining Status, Study in the States, https://bit.ly/32mi7bt. For undergraduates, this typically means taking “at least 12 credit hours per term,” while students in post-graduate programs “must take a full course of study as certified by the institution.” Id.; see also 8 C.F.R. § 214.2(f)(6)(i). Ordinarily, “no more than the equivalent of one class or three credits per . . . term . . . may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class.” Id. § 214.2(f)(6)(i)(G). Students with F-1 visas are also eligible for
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optional practical training, a “form of temporary employment that directly relates to [their] program of study, and curricular practical training, employment that is “an integral part of an established curriculum” that directly relates to students’ major areas of study. Maintaining Status, supra.
45. International students attending school through the F-1 program make up a significant part of the population of Plaintiffs’ student body. Plaintiff University of Southern California (“USC”), for example, welcomed over 12,000 international students in the Fall 2019 term, over 25% of its total enrollment. Plaintiff The University of Oregon’s student body typically consists of 11–12% international students, and 1,635 Oregon students currently hold F1 visas. Plaintiff Oregon State University draws students from more than 100 countries and has been ranked as a top 1% global university by the Center for World University Rankings. Plaintiff Arizona State University had over 7,000 international students enrolled for the Fall 2020 semester as of July 9, and approximately 14,534 of its students hold F-1 visas. And these students are vital contributors to the success of the schools—these students bring intellectual and cultural diversity, engage in cutting edge research programs, participate in athletic programs, and help schools fulfill their missions to educate world leaders.
B. COVID-19 Strikes The United States 46. SARS-CoV-2, which causes the COVID-19 illness, is easily transmitted. Everyone shares a risk of contracting the COVID-19 virus, and everyone who contracts it shares a risk of transmitting the virus to other people. People can carry and spread the virus even if they are asymptomatic or pre-symptomatic, although precisely how the virus spreads remains unknown. Testing or secluding those who are symptomatic is therefore an ineffective solution to preventing further spread of COVID-19.
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47. Contracting COVID-19 may cause serious health risks. People who have COVID-19 can face shortness of breath, permanent neurologic damage, irreversible damage to their respiratory system, and death.
48. There is no known vaccine against COVID-19 and no known medication to prevent infection. The most effective measures to reduce the risk of contracting and spreading COVID-19 is to prevent infection and avoid community spread. Such measures include avoiding close contact with other people by practicing appropriate social distancing, washing hands often, covering one’s mouth and nose with cloth, and vigorously cleaning and disinfecting touched surfaces.
49. The most likely means of transmitting the coronavirus that causes COVID-19 is through close human-to-human contact, especially indoors. That is because the virus that causes COVID-19 mainly spreads through respiratory droplets produced when an infected person coughs, sneezes, or talks. Emerging research indicates that the virus is easily transmitted in indoor spaces where too many people are enclosed for protracted periods, such as classrooms.
50. The first confirmed case of COVID-19 was in the State of Washington in January 2020. The virus spread rapidly across the country and caused shutdowns nationwide in an effort to contain the spread of this highly contagious disease. Businesses and courthouses closed. International travel and domestic travel is restricted, and the State Department has urged “American students overseas” to “return to the United States as soon as possible” because of “unpredictable circumstances” and “[in]adequate health care” abroad. U.S. Dep’t of State, COVID-19 Traveler Information (last visited July 12, 2020), https://bit.ly/2ZkALy9.
51. President Trump declared a national emergency in response to the COVID-19 pandemic on March 13, 2020.
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52. On March 16, 2020, the CDC and members of the national Coronavirus Task Force issued guidance advising people to adopt physical distancing measures, such as working from home, avoiding gatherings of more than 10 people, and limiting trips to grocery stores, bars, restaurants, and other areas where people share space.
53. Following this advice, many states—including Oregon, California, and others— shut down some or all parts of ordinary life. They issued orders suspending or severely curtailing the operation of non-essential schools, businesses, and other public spaces; limiting gatherings; and ordering citizens to wear face masks. See generally Office of the Governor, State of Oregon, Exec. Order No. 20-30 (June 30, 2020), www.oregon.gov/gov/admin/Pages/eo_20-30.aspx.
54. But the pandemic has not abated. As of July 12th, there have been 3.1 million confirmed cases of COVID-19, which have caused 133,000 deaths. CDC projects indicate that more than 200 million people in the United States could be infected with the coronavirus during the pandemic, with the most severe projections estimating as many as 1.5 million deaths.
C. ICE Responds To The Pandemic 55. In the wake of the COVID-19 outbreak, the federal government recognized that many universities could protect their students’ health and safety only by teaching students remotely. 56. On March 9, 2020, the SEVP division of ICE issued a guidance document acknowledging that “schools may need to adapt their procedures and policies to address the significant public health concerns associated with the COVID-19 crisis.” Immigration & Customs Enforcement, Broadcast Message: Coronavirus Disease 2019 (COVID-19) and Potential Procedural Adaptations for F and M nonimmigrant students 1 (Mar. 9, 2020), https://www.ice.gov/doclib/sevis/pdf/bcm2003-01.pdf. ICE stated that it “intend[ed] to be Page 12 Complaint

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flexible with temporary adaptations” because the “COVID-19 crisis is fluid and rapidly changing.” In particular, ICE “recognize[d] that schools are updating their emergency operations plans to minimize the potential impact of COVID-19 on the school,” including by “provid[ing] online instruction.”
57. Four days later, on March 13, 2020, SEVP issued another guidance document to address the status of students whose schools “stop[ped] in-person classes” but would “offer[ ] online instructions.” Immigration & Customs Enforcement, COVID-19: Guidance for SEVP Stakeholders 1 (Mar. 13, 2020), https://bit.ly/3focYTM. “Given the extraordinary nature of the COVID-19 emergency,” ICE exempted F-1 visa holders from the rule that they must attend most classes in person. ICE directed students to “participate in online or other alternate learning procedures and remain in active status” with SEVP. As a result, students could retain their F-1 visa status while participating in remote learning implemented as a result of the pandemic.
58. The March 13 guidance stated that it was a temporary provision that would remain “in effect for the duration of the emergency.”
59. The President’s declaration of a national emergency has not been rescinded or terminated.
D. Plaintiffs Act Quickly To Protect Students 60. As ICE and other government agencies responded to the pandemic, so did Plaintiffs. 61. Several Plaintiffs organized emergency response teams to monitor the COVID-19 outbreak and advise on all aspects regarding Plaintiffs’ response to the pandemic. 62. These teams frequently consisted of a mixture of faculty, staff, and administrators for a variety of disciplines, and consulted as appropriate with student body representatives.
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63. These teams also drew on the expertise of local, state, and national global leaders in public health. Those collaborative efforts included community-wide surveys, community events such as town halls and small group discussions, and frequent (often daily) meetings. Team members devoted several hours each week to Plaintiffs’ respective COVID-19 responses.
64. Beginning in early to the middle of March, Plaintiffs began transitioning to a remote curriculum to address the health risks associated with COVID-19.
65. The Governors of Oregon, California, and other states ordered all universities closed in March as a response to the pandemic.
66. By middle to late March, all Plaintiffs had transitioned to an entirely remote curriculum for the Spring 2020 semester. In addition to complying with directives from state governors, these transitions were made for the purpose of helping protect Plaintiffs’ students and communities from the spread of COVID-19 while still providing excellent education to their students.
67. Throughout the Spring semester and into the summer, Plaintiffs continued to deliberate and consider how best to structure the Fall 2020 semester so as to maintain a safe environment while still providing students with a quality education.
68. These deliberations took many months and consumed substantial resources at each of Plaintiffs, and were made with the input of numerous stakeholders and public health leaders.
69. Plaintiffs undertook these deliberations and planning in part in reliance on the government’s March 13 guidance, which confirmed that because of the pandemic students with F-1 visas would not be required to attend in-person classes to retain their visa status, and that the exemption for F-1 students would remain “in effect for the duration of the emergency.”
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70. Throughout the summer, Plaintiffs began to announce to their respective student bodies how the Fall 2020 semester would be structured. By way of example:
a. Plaintiff The University of Oregon announced on June 17, 2020 that it would offer a hybrid of in-person and remote courses to its students during the Fall 2020 semester. The University of Oregon also extended the commitment deadline for its admitted undergraduate students for the Fall 2020 semester to September 1, 2020. The University of Oregon anticipates that its in-person classes in the Fall 2020 semester will cease on Wednesday November 25, 2020, with the remainder of the semester conducted remotely.
b. Plaintiff Oregon State University announced on May 11, 2020 that it would offer a hybrid of in-person and remote courses to its students during the Fall 2020 semester. Approximately 50% of the school’s courses will be offered remotely, including most courses with enrollment over 50 students. Oregon State University anticipated that its in-person classes in the Fall 2020 semester will cease on Thanksgiving, with the remainder of the semester conducted remotely.
c. Plaintiff USC announced on July 8, 2020 that it would offer a hybrid of in-person and remote courses to its students during the Fall 2020 semester. Approximately 10–20% of the school’s classes—primarily small courses involving hands-on work—will be in person.
d. Plaintiff Stanford University announced on June 3, 2020 that it would offer a hybrid of in-person and remote courses to its students during the Fall 2020 semester. On June 28, Stanford further announced that its plan was to limit
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the number of its undergraduate students invited to campus during each quarter to only two class cohorts (i.e., freshmen and sophomores are invited to campus for the Fall 2020 and Summer 2021 semesters, and juniors and seniors are invited to campus for the Winter and Spring 2021 semesters). Stanford will not require any of its students to return to campus for the Fall 2020 semester. e. Plaintiff Pomona College announced on July 8, 2020 that it would not be able to bring any students back to campus for the Fall 2020 semester, instead offering a fully remote educational experience. 71. At some Plaintiff schools, it may not be possible for some students to make sufficient academic progress toward their degrees without taking a fully remote schedule in the Fall semester. E. ICE Reverses Course Without Warning 72. With no prior notice, ICE abruptly rescinded the March Order on July 6, 2020. 73. In an order made public that day (the “July Order”), ICE directed that “Nonimmigrant F-1 . . . students attending schools operating 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 students enrolled in schools and/or programs that are fully online for the Fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States.” Immigration & Customs Enforcement, Broadcast Message: COVID-19 and Fall 2020 1 (July 6, 2020), https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf. 74. The July Order ordered that “[a]ctive students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to
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a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.”
75. Moreover, the July Order directed that “[s]tudents attending schools offering a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online,” provided that for each such student, the school “certif[ies] to SEVP, through the Form I-20, ‘Certificate of Eligibility for Nonimmigrant Student Status,’ 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 the minimum number of online classes required to make normal progress in their degree program.” And “[i]f a school changes its operational stance mid-semester” and a student with an F-1 visa “switches to only online classes,” those students “must leave the country or take alternative steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction.”
76. ICE also issued directives to schools. “Schools that offer entirely online classes or programs or will not reopen for the Fall 2020 semester must complete an operational change plan and submit it to” SEVP “no later than Wednesday, July 15, 2020.” Schools who propose to provide a mix of online and in-person classes must update and submit “operations plans by August 1, 2020.” More critically, ICE’s command to schools to update and reissue new Forms I20 for each of their students on F-1 visas by August 4, 2020 is unduly burdensome. It is also impossible if students are not registered for particular classes before the deadline.
77. ICE provided a single sentence in the July Order to explain its change in policy: “There will still be accommodations to provide flexibility to schools and nonimmigrant students but as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations.”
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78. ICE has given no indication that, in promulgating the July Order, it considered how its action would impact the health of students, faculty, staff, or surrounding communities.
79. ICE has given no indication that, in promulgating the July Order, it accounted for the reality that the COVID-19 pandemic—the reason ICE issued its March 9 and March 13 guidance documents—continues and is worsening to this day.
80. ICE has given no indication that, in promulgating the July Order, it accounted for schools’ and students’ reliance on ICE’s statements in the March 9 and March 13 guidance documents that the exemptions it announced were due to the COVID-19 pandemic and would be “in effect for the duration of the emergency.”
81. In the July Order, the Department of Homeland Security announced its “plans to publish the procedures and responsibilities described in [the Order] in the near future as a Temporary Final Rule in the Federal Register.” As of this filing—two days before some schools must take action based on the July Order—the Department of Homeland Security had not published such procedures and responsibilities in the Federal Register.
F. The Nation Responds To The July Order 82. The July Order was instantly met with widespread alarm and disapproval. Schools, students, academics, lawmakers, and many others immediately recognized the substantial harm the July Order would cause and rallied to voice their opposition to ICE’s sudden turn. 83. 32 U.S. Senators and 67 Members of Congress sent ICE and DHS a letter urging the agency “to withdraw this proposed policy immediately, and not to proceed with [their] stated plans to publish it in the Federal Register as a Temporary Final Rule.” The lawmakers stated that “[t]he proposed policy throws the lives of hundreds of thousands of students, and the operations of hundreds of colleges and universities, into uncertainty just weeks before the start of Page 18 Complaint

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the Fall term, to the detriment of the United States and its institutions of higher education.” The signatories agreed that the policy is “arbitrary” and “irrational,” that “DHS and ICE released this guidance as a pretext to force institutions of higher education to reopen,” and that the justification ICE has given for the policy is “an obvious pretext.” They noted a statement by Acting Deputy Secretary of Homeland Security Ken Cuccinelli that the he believes the policy will “encourage schools to reopen.” (See ¶ 145, infra.) In reality, the lawmakers believed that the July Order is “a cruel, senseless, and xenophobic attempt to … financially coerce colleges and universities to reopen campuses this fall, despite what is best for public health,” specifically noting that the “policy is dangerous to the health and well-being of numerous communities” and that it “demonstrates a callous disregard for the harm this policy inflicts on international students, and is contrary to public health guidance from authorities within the Administration.” The letter expressly raised the “concern[] that ICE’s guidance is motivated not by public health considerations, but rather by animus toward immigrants, by a goal of forcing schools to reopen even as COVID-19 cases are rising, and by a desire to create an illusion of normalcy during this unprecedented public health emergency.”
84. A separate letter from Senator Susan Collins to the Acting Secretary of DHS urged that the July Order “must be rescinded.” Senator Collins stated that the policy is “arbitrary and capricious,” “unfair and unrealistic,” and that it “makes no sense” with respect to students who are already in the U.S. She further stated that “[i]t is hard for [her] to imagine a good reason for this arbitrary requirement” and that the “arbitrary deadline [of July 15] seems intended to force [Universities to make] a hasty decision to fully reopen for in-person instruction.” She concluded that “the arbitrary and capricious [July 6] guidance will cause real, deep, and longlasting harm to these institutions and to our nation[al] interests.”
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85. The Chief Executive Officer of the American Association for the Advancement of Science (AAAS), Sudip Parikh, issued a statement “urg[ing] the administration to reconsider and rescind this guidance.” The AAAS stated that the July Order “is cruel to international students,” “damaging to America’s scientific leadership,” and that it “will harm U.S. academia[.]” The AAAS is the world’s largest general scientific society; it publishes Science, the leading American peer-reviewed general science journal.
86. The President of the American Association of Universities (AAU), Mary Sue Coleman, issued a statement “strongly urg[ing] the administration to rescind th[e] guidance[.]” The Association stated that “the impact on international graduate students and undergraduate students already in the United States will be devastating, causing massive disruptions in their learning and research.” It further stated the July Order “forces sudden, difficult decisions on international students and universities” and that it is “likely to do further damage to our nation’s universities, which are already struggling with unprecedented uncertainty, massive logistical complications, and significant financial losses due to the ongoing COVID-19 pandemic.” The AAU described the policy as “immensely misguided and deeply cruel[.]”
87. The Executive Director of the Alliance of American College and University Presidents, Miriam Feldblum, issued a statement “call[ing] on ICE to reverse course … and for Congress … to direct the reversal of this problematic and harmful policy.” The Alliance stated that the July Order “serves only to undermine international student[s] … and harm our nation’s ability to attract and retain global talent.” It also stated that “the forthcoming rule would unduly pressure colleges and universities—already experiencing historic fiscal strains and uncertainty— to prematurely open in-person courses or else risk losing invaluable international student enrollments and contributions.”
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88. The Federation of Associations of Schools of the Health Professions wrote a letter “to strongly oppose” the July Order and “urg[ing] the administration to revoke this policy[.]” The Federation stated that the new policy “complicates decision-making for schools,” “would create hardships both for faculty administration and students,” and may “drive current students out and decrease the attractiveness of the United States as a destination for students and researchers.” The letter further suggested that the policy creates “an inherent risk” to public health in forcing students to travel. The Federation comprises 18 associations that together represent 7,429 programs, institutions, hospitals, and health systems, and more than 1.3 million students, faculty, clinicians, administrators, residents, and researchers; it includes, for example, the Association of American Medical Colleges and the American Association of Colleges of Nursing.
89. The President of Arizona State University, Michael M. Crow, issued a statement calling the July Order “a shocking, thoughtless and ill-considered attack against a key element of America’s economic prowess.” Dr. Crow called the Directive “extremely disruptive” to higher education and stated that it “would damage the American economy in a purely negative and chilling way,” causing America to “relinquish [its] position of global leadership in teaching and learning.”
90. The President of Columbia University, Lee C. Bollinger, issued a statement addressed to the Columbia community, stating that the July Order “mark[s] a devastating reversal of federal policy,” advancing a “destructive and indefensible purpose.” The statement characterized the July Order as “deeply misguided,” “destructive and indefensible,” and notes that it will cause “damage to the nation’s academic institutions” and “severely disrupt and cause enormous harm to the lives of the international students who are part of [the] Columbia family.”
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91. The President of New York University, Andrew Hamilton, issued a statement addressed to NYU students, noting that the July Order “is just plain wrong and needlessly rigid” and stating that “NYU will be reaching out to Federal officials urging them to revoke or modify this rule.”
92. The President of Texas A&M University, Michael K. Young, issued a statement stating that the policy “could have a devastating impact on international students, as well as on our university campuses and communities.” The letter expressed support for the statement issued by the AAU opposing the policy, and expressed the President’s “sincere[] hope that the guidance will be rescinded in light of the AAU statement and other similar reactions.”
G. The July Order Negatively Affects Plaintiffs 93. The concerns raised by these many public officials and other individuals are well founded. If left undisturbed, the July Order will cause serious, irreparable harm to Plaintiffs in a number of ways. 94. At the most immediate level, the July Order requires those Plaintiffs intending to offer only online courses in the Fall to submit an operational plan to ICE by July 15, just nine days after the issuance of the July Order. That arbitrary and unreasonable deadline requires the diversion of substantial resources in order to attempt to meet it. 95. The deadline of July 15 also requires Plaintiffs to decide definitively by that date whether they intend to offer only online courses, limiting their ability to be flexible as the semester approaches and as the situation regarding the pandemic continues to evolve. 96. Likewise, the deadline of August 1 for all other Plaintiffs to submit operational plans similarly imposes harm, and requires those Plaintiffs to divert substantial resources that would better be used in planning for the upcoming academic year.
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97. The August 4 deadline for the submission of I-20 Forms for all F-1 students similarly imposes an enormous administrative hurdle for schools during a time when administrators are devoting the majority of their time and effort to respond to the pandemic and plan for the Fall semester.
98. The singular focus on issuing new I-20 Forms for all F-1 students will compromise the ability of Plaintiffs to provide ordinary services to international students, such as advising on coursework and cultural adjustments, clerical work, and urgent matters involving finances, housing and health.
99. For those Plaintiffs that have extended their commitment date for admitted students beyond August 4, 2020, the requirement to issue a new Form I-20 for all F-1 students by August 4, 2020 is not only burdensome, but impossible to comply with.
100. Moreover, the July Order forces Plaintiffs to reconsider and potentially redesign their carefully crafted Fall semester programs in an effort to ensure that F-1 students are able to take in-person courses and retain their F-1 visa status. This “one-size-fits-all” approach impairs Plaintiffs’ ability to structure their academic programs in the way they believe, after careful and extensive study and thought and in the exercise of their academic experience and judgment, best fits their respective student populations.
101. Plaintiffs’ redesign of their Fall semester programs will necessitate reengaging campus staff over numerous divisions, notwithstanding escalating health concerns in some areas.
102. Because of how soon Plaintiffs must make arrangements for the Fall semester, some Plaintiffs may simply not be able to alter their Fall programs to accommodate all F-1 students enrolled.
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103. In the event of a significant community spread of COVID-19, the July Order may force schools to potentially choose between accommodating international students and complying with local public health directives.
104. If Plaintiffs are unable to accommodate all of their F-1 students, they will suffer additional harm from the departure of those students. The loss of those students may be permanent if they are later unable to return to the United States or if they elect to transfer to another school.
105. F-1 students contribute to Plaintiffs’ rich diversity through their participation in the collaborative learning environment, and their presence benefits domestic students and the Plaintiff schools as a whole.
106. F-1 students also are involved in a cutting-edge research programs that make substantial contributions to society and elevate the reputation of Plaintiffs.
107. F-1 students frequently act as teaching assistants for undergraduate students, and their departure would impair Plaintiffs’ ability to provide the highest level of education for all of their students.
108. Many F-1 students are also student athletes, and their departure from Plaintiffs would negatively affect Plaintiffs’ athletic programs as well as their national reputation.
109. F-1 students are critical to Plaintiffs’ educational missions. Schools help educate global citizens, many of whom take the best of America’s values and principles back to their home countries as ambassadors. And domestic students benefit when their schools attract other countries’ best and brightest students to study with them. Both international and domestic students benefit from sharing and learning about each other’s experiences.
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110. In short, international students, including F-1 students, are a critical component of Plaintiffs’ cultural and academic environments. If any number of those students are forced to depart the United States because Plaintiffs are unable to offer them in-person courses, Plaintiffs will be unable to offer their students the same kind of diverse and engaging academic experience as they have in the past, and Plaintiffs’ national and global standing as leading institutions of higher education will be diminished.
I. The July Order Negatively Affects F-1 Students 111. The July Order also harms the thousands of international students in the United
States under F-1 visas whose lives have been thrust into uncertainty. 112. For those F-1 students currently attending schools that will operate only online in
the Fall, or whose schools will be unable to offer in-person classes for all international students, the July Order orders them to depart the United States unless they are able to find a suitable transfer school.
113. Finding a school to transfer to that is offering in-person classes is a burdensome and uncertain process, and even if successful, those students who transfer will be deprived of their opportunity to learn at the school of their choice.
114. F-1 students unable to take in-person classes who are forced to relocate due to the July Order will incur substantial harm and face numerous obstacles.
115. F-1 students forced to depart will be required to uproot their entire lives, leaving behind their homes, their friends, and perhaps their education with just a few weeks’ notice. These students will need to make immediate arrangements for housing in their home countries and will incur financial hardship in breaking their existing leases in the United States (or attempt to find sub-leases). In addition to harming the F-1 students, this migration could also have
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negative effects on the property owners who lease their properties to these students and local businesses who serve them.
116. F-1 students departing the United States will be forced to do so at a time when international flights are expensive and direct flights are often unavailable, leading to even more financial hardship.
117. If F-1 students’ departures are not timely, they risk detention by immigration authorities and forced removal from the country that may bar their return to the United States for a decade. 8 U.S.C. § 1182(a)(9).
118. Those F-1 students who are able to return home may face further obstacles, including limited or restricted Internet, limitations on electricity, and even lack of access to clean tap water. It may also be difficult for F-1 students departing to countries several time zones away to attend live class sessions or to collaborate with colleagues.
119. These challenges will be particularly acute for those F-1 students who intend to serve as teaching assistants for remote courses, and will be unable to fully assist teachers or students if access limitations in their home countries prevent them from doing so.
120. For some students, they will be forced to return to countries where civil unrest and violence are ongoing, making remote learning virtually impossible. Other countries may refuse or be unable to accommodate students’ disabilities, or may be dangerous to some students due to their sexual orientation.
121. Not all F-1 students even have a place to stay in their home country. Some students are citizens of a country other than the one in which their family resides, and due to COVID-19 related travel restrictions, may have nowhere to go if removed from the United States.
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122. Because of these obstacles, some F-1 students will simply be unable to continue their education with Plaintiffs, and those who can will be disadvantaged relative to their peers.
123. Departure from the United States—and from the F-1 program—can also have negative long-term consequences for F-1 students.
124. For example, some F-1 students intend to pursue post-graduate employment opportunities through the option practical training program offered for F-1 students. Those students, however, may be rendered ineligible for that program—temporarily or even permanently—if they are expelled from the F-1 program.
125. The inability of these students to use their skills in the U.S. workforce harms not only them, but also the businesses and communities that would benefit from their employment and may be relying on them.
126. Moreover, it may be difficult for F-1 students who depart the United States to later reenter the F-1 program. U.S. consular offices are currently closed, and many countries have long waits for future visa appointments. In addition, many students live significant distances from consular offices, and will be required to spend substantial sums of money in order to reinstate their visas. These students will not only be delayed in completing their education, but may never be able to finish their studies at their chosen school.
127. Some F-1 students already relocated abroad during the pandemic. These students likewise face challenges in that they will be expelled from the F-1 visa program unless they attend a school that is only offering online courses or are willing and able to travel to the United States and attend in-person courses. Transferring to such a school only weeks before the semester begins will be very difficult and likely impossible.
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128. Like other students forced to depart, these F-1 students who remain in their home countries will face serious challenges in reentering the F-1 visa program once expelled, and may never have an opportunity to complete their degrees.
129. The July Order threatens to cause harm even for those F-1 students who are able to attend in-person courses in the United States.
130. Some F-1 students are at special risk of contracting COVID-19, or have a heightened risk of serious illness from COVID-19, due to their particular medical conditions. Under the July Order, Plaintiffs will be unable to accommodate those students with a remote learning program, potentially threatening the safety of those more vulnerable students.
131. Moreover, as noted above, because Plaintiffs will be forced to alter their academic programming to provide in-person classes for all F-1 students (if possible), students will be restricted in their choice of classes, and may be forced to take classes they neither want nor need.
132. The challenges described above are not merely hypothetical, but are the reality facing many students affected by the July Order. To provide just a few concrete examples of students’ stories, with individual identifying information omitted due to students’ concerns with privacy and retaliation:
133. Student A is an international student from Iran studying computer science at Stanford. She is openly queer / bisexual and does not wear a hijab. Student A has also made political posts on her social media accounts and fears returning to Iran if Stanford is unable to offer in-person classes, as Iran may consider her activities “anti-Islamic Republic of Iran.” In addition, as a woman in Iran, she doubts she would be able to find work in computer science or engineering fields, and, given the existing travel ban on Iran, she does not know if she would ever be able to come back to the United States to finish her degree.
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134. Student B studies Political Science and International Relations at USC and is an international student from Tunisia. They are currently in Tunisia and fear traveling back to the United States due to their compromised immune system and the risk of exposure to COVID-19, particularly as the only way back to the United States from Northern Africa would require connecting flights in Europe. Due to Student B’s health condition, becoming infected could be fatal, and they feel the July Order will force them to risk their life in order to continue their education.
135. Student C is an international student from Greece studying Psychological Science at Pomona. Both of their parents currently live in the United States, and if Student C is forced to return to Greece they would live alone, without any family. As they are concerned Pomona may not offer in-person classes in the fall, the July Order has resulted in Student C considering transferring to a community college offering in-person classes to ensure they are able to stay in the United States.
136. Student D is an international student from Hong Kong, obtaining a PhD at Stanford. As a PhD student, Student D devotes the majority of their studies to research, and it is unclear to Student D if research will satisfy the in-person requirement. Choosing an in-person class to attend would result in them signing up for a class that they do not need and are not interested in. If the University were to stop providing in-person classes, it would not be possible for Student D to transfer to another university without abandoning their research and the funding that supports their education.
137. Student E is an international student studying Political Science at USC. Currently, they live with two individuals who are both immunocompromised. Student E fears attending in-person classes and risking exposure to COVID-19 which could then pass to these
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people. Returning home would separate them from their significant other and community, as well as disrupt their education and career prospects.
138. Student F, a Germany international student, is working on a PhD at Stanford. All of the classes they planned to take in pursuit of their degree will only be offered on-line, resulting in Student F signing up for unnecessary classes to make sure they can meet the “inperson” requirement. Having recently signed a twelve-month lease, if Stanford stops offering inperson classes and Student F is forced to return to Germany, they would not only need to break their lease but also leave their significant other behind. Further, Student F would not be able to continue their research while living abroad, and would not be able to maintain their stipend / TA salary, resulting in the loss of their only source of income.
139. Student G is a rising senior studying Mathematical Economics at Pitzer College and is an international student from China. Obtaining a flight to China can be difficult, as many flights have been cancelled, and Student G does not have the financial capability to purchase a ticket at this time given the soaring prices. Removing Student G’s F-1 status threatens their studies and jeopardizes their plans to take the GRE exam and apply for graduate school this year because doing so would be extremely difficult, if not impossible, in China.
140. Student H is an international student from the United Kingdom studying math and computer science at Stanford. Student H fears attending in-person classes as both she and her father, with whom Student H lives, have health conditions which place them at risk for significant complications if they are exposed to the coronavirus. Student H also fears the July Order will force her to return to the United Kingdom if she does not attend in-person classes, increasing the risk of exposure to COVID-19 and separating Student H from her immunocompromised father. The July Order has also resulted in a number of other Stanford
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PhD candidates and post-doctorate students being unable to continue their programs as they are not able to return to Stanford for in-person classes. This will significantly impact Student H’s research as she planned to collaborate with these individuals.
141. Student I studies Psychology at Pitzer College and is an international student from China. Student I fears the July Order will force them to return to China and lose eligibility for OPT (a post-graduate work authorization program). In addition, the difficulty in obtaining a ticket to China, the cost of such a ticket, and the increased likelihood of exposure to COVID-19 during the trip makes returning home in the near future incredibly difficult and unsafe.
142. Student J is a Chinese international student studying Humanities at Scripps College. As Scripps College will not be offering in-person classes in the fall, Student J is concerned the July Order will force them to return to China or face immigration consequences. The July Order also poses severe financial hardship on Student J and their family as obtaining a ticket for a flight back to China will cost nearly half of Student J’s mother’s yearly income. In addition, Student J would be forced into mandatory quarantine by the Chinese government for 14 days upon return.
143. Student K is an international student from Nepal studying Political Economy at Stanford. As an F-1 visa holder, Student K is working toward their dissertation while helping teach undergraduate courses at Stanford. If Stanford is unable to provide in-person classes, they will not be able to return to their home country, as international flights to Nepal are currently disallowed. Even if Student K were somehow able to return to Nepal, they would be unable to conduct their research or perform their teaching duties, severely impacting their education and dissertation progress.
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144. Student L is an international student from India studying with the International Dental Studies Program at the University of the Pacific. If forced to return to their home country, Student L would not be able to obtain the patient care experience required for students in this program to obtain their degree. This would result in significant financial and emotional stress to them and their family, which is dependent on Student L to provide for them after obtaining a degree.
CLAIMS FOR RELIEF Count I: Violation of the Administrative Procedure Act
The July Order Is Arbitrary And Capricious Because It Is Not The Product Of Reasoned Decisionmaking 145. Plaintiffs incorporate the preceding paragraphs by reference. 146. The APA requires this Court to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion . . . or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 147. Agency action that is not the product of reasoned decisionmaking is arbitrary and capricious. Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 148. If an agency changes an existing policy, it must “display awareness that it is changing position” and “must show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). 149. The July Order offers a single sentence of explanation: “There will still be accommodations to provide flexibility to schools and nonimmigrant students but as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations.” This explanation does not identify
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what the purported “carefully balanced protections” are, does not explain how or why those protections favor reversing ICE’s previous policy determinations, and does not explain why the original rationale supporting the March guidance—the need for an exemption in light of the “extraordinary nature of the COVID-19 emergency”—no longer supported Defendants’ March guidance. For this reason, Defendants’ July Order violates the APA.
150. An agency must also “pay[ ] attention to the advantages and the disadvantages of agency decision.” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). When an agency issues a new policy, it must take into account “serious reliance interests” engendered by the previous policy. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). Agency action must therefore be vacated if the agency “failed to address whether there was ‘legitimate reliance’” on an earlier policy. Dep’t of Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020).
151. The July Order is arbitrary and capricious because it failed to account for or address legitimate reliance interests engendered by Defendants’ March guidance, which acknowledged that universities and colleges could provide online education to adapt to the significant public health concerns associated with the COVID-19 virus, exempted students with F-1 visas from regulatory in-person class requirements, and confirmed that this flexible guidance would be “in effect for the duration of the emergency.” Moreover, universities and schools had invested substantial resources to develop Fall 2020 academic plans that carefully balanced the health, safety, and educational needs of faculty, students, and staff. These plans were thrown into disarray by the July Order, and Plaintiffs were forced to divert resources to respond to the deadlines and burdens the July Order imposed.
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Count II: Violation of the Administrative Procedure Act The July Order Is Arbitrary And Capricious Because Its Proffered Reasons Are Pretextual
152. Plaintiffs incorporate the preceding paragraphs by reference. 153. The APA requires this Court to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion . . . or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 154. Agency action cannot lawfully rest on a “pretextual basis.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019). The July Order is arbitrary and capricious because it rests on a pretextual basis. 155. In the July Order, Defendants stated that its policy reversal was necessary to “resume the carefully balanced protections implemented by federal regulations.” 156. That is not the true rationale for the policy change. 157. Instead, Defendants’ rationale was to encourage and coerce schools to reopen. Defendants have not tried to hide this rationale. Acting Deputy Secretary of Homeland Security Ken Cuccinelli said in a public interview that the July Order’s purpose was to “encourage schools to reopen.” John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will “Encourage Schools to Reopen,” The Hill (July 7, 2020), https://bit.ly/303vFG2. Additionally, the President has repeatedly demanded that schools reopen in the Fall and has often accompanied such demands with threats to cut off federal funding. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (July 10, 2020, 7:41 AM) (. . . Schools must be open in the Fall. If not open, why would the Federal Government give Funding? It won’t!!!”); Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM) (“SCHOOLS MUST OPEN IN THE FALL!!!”).
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158. For this reason, the July Order must be held unlawful, vacated, and set aside as arbitrary, capricious, an abuse of discretion, or not in accordance with law. 5 U.S.C. § 706(2)(A).
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that the Court: 159. Declare that the July Order violates the APA; 160. Vacate and set aside the July Order; 161. Reinstate the March 13 Guidance; 162. Enter a temporary restraining order preventing Defendants and all persons acting in concert with them from enforcing, implementing, and giving effect to the July Order or the policy announced in the July Order; 163. Enter a preliminary injunction preventing Defendants and all persons acting in concert with them from enforcing, implementing, and giving effect to the July Order or the policy announced in the July Order; 164. Enter a permanent injunction preventing Defendants and all persons acting in concert with them from enforcing, implementing, and giving effect to the July Order or the policy announced in the July Order; 165. Issue all process necessary and appropriate to postpone the effective date of the July Order and the policy announced in the July Order and to maintain the status quo pending the conclusion of this case; 166. Award Plaintiffs their reasonable costs and attorneys’ fees; and 167. Award any and all other relief as this Court may deem just and appropriate.
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DATED: July 13, 2020

/s/ Kevin S. Reed

GIBSON, DUNN & CRUTCHER LLP
Debra Wong Yang (pro hac vice forthcoming) dwongyang@gibsondunn.com Ethan Dettmer (pro hac vice forthcoming) edettmer@gibsondunn.com Theane Evangelis (pro hac vice forthcoming) tevangelis@gibsondunn.com Chelsea Mae Thomas (pro hac vice forthcoming) cthomas@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Phone: (213) 229-7000
Theodore B. Olson (pro hac vice forthcoming) tolson@gibsondunn.com Matthew D. McGill (pro hac vice forthcoming) mmcgill@gibsondunn.com Joshua Wesneski (pro hac vice forthcoming) jwesneski@gibsondunn.com 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 Phone: (202) 955-8500
Alexander H. Southwell (pro hac vice forthcoming) asouthwell@gibsondunn.com Oliver Fong (pro hac vice forthcoming) ofong@gibsondunn.com
200 Park Avenue New York, NY 10166-0193 Phone: (212) 351-4000
Attorneys for Plaintiffs

Kevin S. Reed (OBN #160574) ksreed@uoregon.edu Douglas Y.S. Park (OBN #980904) dougpark@uoregon.edu Jessica Price (OBN #182104) (LR 83-4 pending) jgprice@uoregon.edu University of Oregon Office of General Counsel 1226 University of Oregon Eugene, OR 97403 Phone: (541) 346-3082
Rebecca Gose (OBN #105712) rebecca.gose@oregonstate.edu Julie Penry (OBN #053440) julie.penry@oregonstate.edu Whitney Hill (OBN 093849) whitney.hill@oregonstate.edu (Special Admission as Government Attorneys pending) Oregon State University Office of the General Counsel 630 Kerr Admin Bldg Corvallis, OR 97331 Phone: (541) 737-2474
Beong-Soo Kim (Cal. BN 212912) (pro hac vice forthcoming) bkim@usc.edu Laurie Barnes (Cal. BN 229038) (pro hac vice forthcoming) lbarnes@usc.edu Andreas Meyer (Cal. BN 267151) (pro hac vice forthcoming) andreasm@usc.edu University of Southern California Office of the General Counsel 3551 Trousdale Parkway, ADM 352 Los Angeles, CA 90089-5013

Attorneys for Plaintiffs

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 1/16/2021

Query Reports

CM/ECF - USDC Oregon
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U.S. District Court District of Oregon (Eugene (6)) CIVIL DOCKET FOR CASE #: 6:20-cv-01127-MK

TERMINATED

University of Oregon et al v. United States Department of Homeland Security et al Assigned to: Magistrate Judge Mustafa T. Kasubhai Cause: 05:702 Administrative Procedure Act

Date Filed: 07/13/2020 Date Terminated: 08/27/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff University of Oregon

represented by Kevin S. Reed Ofﬁce of the General Counsel University of Oregon 1226 University of Oregon Eugene, OR 97403-1226 541-346-3082 Fax: 541-346-6110 Email: ksreed@uoregon.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Park University of Oregon Ofﬁce of General Counsel 1226 University of Oregon Eugene, OR 97403 541-346-3082 Fax: 641-346-6110 Email: dougpark@uoregon.edu ATTORNEY TO BE NOTICED

Ethan D. Dettmer Gibson Dunn & Crutcher LLP 555 Mission St. Suite 3000 San Francisco, CA 94105 415-393-8292 Email: edettmer@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca Gose Oregon State University 630 Kerr Administration

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

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CM/ECF - USDC Oregon
500 SW Jefferson Way Ste Kerr 630 Corvallis, OR 97331 541-737-2474 Email: rebecca.gose@oregonstate.edu ATTORNEY TO BE NOTICED
Alexander Southwell Gibson Dunn & Crutcher LLP 200 Park Avenue 47th Floor New York, NY 10166 212-351-3981 Fax: 212-351-4035 Email: asouthwell@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Chelsea Mae Thomas Gibson, Dunn, and Crutcher 1881 Page Mill Road Palo Alto, CA 94304 650-849-5396 Email: cthomas@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Wong Yang Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 213-229-7472 Email: dwongyang@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua M. Wesneski Gibson, Dunn & Crutcher LLP 1050 Connecticut Ave, N.W. Washington, DC 20036 202-887-3598 Fax: 202-831-6022 Email: jwesneski@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D. McGill Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington D.C., DC 20036-5306 202-955-8500 Fax: 202-467-0539 Email: mmcgill@gibsondunn.com PRO HAC VICE
2/30

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CM/ECF - USDC Oregon
ATTORNEY TO BE NOTICED

Oliver Joe Fong Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 212-351-6373 Email: ofong@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED

Theane Evangelis Gibson Dunn & Crutcher 333 South Grand Ave. 54th Floor Los Angeles, CA 90071 213-229-7726 Email: tevangelis@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Oregon State University

Theodore B. Olson Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington D.C., DC 20036 202-955-8668 Email: tolson@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Alexander Southwell (See above for address) PRO HAC VICE
3/30

1/16/2021

CM/ECF - USDC Oregon
ATTORNEY TO BE NOTICED

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Plaintiff University of Southern California

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

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Plaintiff Arizona State University

CM/ECF - USDC Oregon
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alexander Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chelsea Mae Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Wong Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oliver Joe Fong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theane Evangelis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Park (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

5/30

1/16/2021

CM/ECF - USDC Oregon
Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) ATTORNEY TO BE NOTICED

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

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

California Institute of Technology

represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

6/30

1/16/2021

CM/ECF - USDC Oregon
Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alexander Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chelsea Mae Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Wong Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oliver Joe Fong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theane Evangelis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore B. Olson (See above for address)

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

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Plaintiff Claremont McKenna College

CM/ECF - USDC Oregon
PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alexander Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chelsea Mae Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Wong Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oliver Joe Fong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

8/30

1/16/2021

CM/ECF - USDC Oregon
Theane Evangelis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Northern Arizona University

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Matthew D. McGill (See above for address) PRO HAC VICE
9/30

1/16/2021

CM/ECF - USDC Oregon
ATTORNEY TO BE NOTICED

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

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

Plaintiff Pitzer College

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

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

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Joshua M. Wesneski
10/30

1/16/2021

CM/ECF - USDC Oregon
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Plaintiff Pomona College

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Chelsea Mae Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
11/30

1/16/2021

CM/ECF - USDC Oregon

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Plaintiff
President and Board of Trustees of Santa Clara College

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Alexander Southwell (See above for address)
12/30

1/16/2021
Plaintiff Scripps College

CM/ECF - USDC Oregon
PRO HAC VICE ATTORNEY TO BE NOTICED
Chelsea Mae Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Wong Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oliver Joe Fong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theane Evangelis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

13/30

1/16/2021

CM/ECF - USDC Oregon
Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Plaintiff Seattle University

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Kevin S. Reed (See above for address) LEAD ATTORNEY
14/30

1/16/2021

CM/ECF - USDC Oregon
ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Stanford University

represented by Douglas Park

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

15/30

1/16/2021

CM/ECF - USDC Oregon
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alexander Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chelsea Mae Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Wong Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oliver Joe Fong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theane Evangelis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

16/30

1/16/2021
Plaintiff Saint Mary's College of California

CM/ECF - USDC Oregon
Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Oliver Joe Fong (See above for address) PRO HAC VICE
17/30

1/16/2021

CM/ECF - USDC Oregon
ATTORNEY TO BE NOTICED

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

Plaintiff University of the Paciﬁc

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Matthew D. McGill

18/30

1/16/2021

CM/ECF - USDC Oregon
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Plaintiff University of San Diego

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Debra Wong Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
19/30

1/16/2021

CM/ECF - USDC Oregon

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Plaintiff University of San Francisco

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Chelsea Mae Thomas (See above for address)
20/30

1/16/2021
Plaintiff University of Utah

CM/ECF - USDC Oregon
PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Wong Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oliver Joe Fong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theane Evangelis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin S. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

21/30

1/16/2021

CM/ECF - USDC Oregon
Alexander Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Plaintiff Chapman University

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Gose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Ethan D. Dettmer (See above for address) PRO HAC VICE
22/30

1/16/2021

CM/ECF - USDC Oregon
ATTORNEY TO BE NOTICED

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

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

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

Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin S. Reed (See above for address) ATTORNEY TO BE NOTICED

Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Plaintiff University of Arizona

Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?132550559231613-L_1_0-1

Rebecca Gose (See above for address)
23/30

1/16/2021

CM/ECF - USDC Oregon
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan D. Dettmer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alexander Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chelsea Mae Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Wong Yang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin S. Reed (See above for address) ATTORNEY TO BE NOTICED
Matthew D. McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oliver Joe Fong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theane Evangelis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore B. Olson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
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1/16/2021
Defendant United States Department of Homeland Security
Defendant U.S. Immigration and Customs Enforcement
Defendant Chad F. Wolf in his ofﬁcial capacity as Acting Secretary of the United States Department of Homeland Security
Defendant Matthew Albence in his ofﬁcial capacity as Acting Director of U.S. Immigration and Customs Enforcement

CM/ECF - USDC Oregon
represented by Patrick J. Conti DOJ-USAO 1000 SW Third Suite 600 Portland, OR 97204 503-727-1000 Email: patrick.conti@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Austin Rice-Stitt U.S. Attorney's Ofﬁce Civil Mark O. Hatﬁeld Courthouse 1000 SW 3rd Ave. Suite 600 Portland, OR 97204 503-727-1119 Fax: 503-727-1117 Email: austin.rice-stitt@usdoj.gov ATTORNEY TO BE NOTICED
represented by Patrick J. Conti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Austin Rice-Stitt (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick J. Conti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Austin Rice-Stitt (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick J. Conti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Austin Rice-Stitt (See above for address) ATTORNEY TO BE NOTICED

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Date Filed 07/13/2020
07/13/2020 07/13/2020
07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/13/2020
07/13/2020

# Docket Text

CM/ECF - USDC Oregon

1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: AORDC6975957 Jury Trial Requested: No. Filed by University of Utah, Claremont McKenna College, University of San Francisco, Scripps College, Arizona State University, Pomona College, University of Arizona, University of Oregon, Northern Arizona University, Seattle University, University of the Paciﬁc, Saint Mary's College of California, Stanford University, Oregon State University, California Institute of Technology, Chapman University, Pitzer College, President and Board of Trustees of Santa Clara College, University of San Diego, University of Southern California against All Defendants (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons). (Reed, Kevin) (Entered: 07/13/2020)

2 Motion for Temporary Restraining Order . Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Reed, Kevin) (Entered: 07/13/2020)

3 Declaration of Southwell . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M) (Reed, Kevin) (Entered: 07/13/2020)

4 Declaration of Gaines . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Reed, Kevin) (Entered: 07/13/2020)

5 Declaration of Galvan . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Reed, Kevin) (Entered: 07/13/2020)

6 Declaration of Larson . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Reed, Kevin) (Entered: 07/13/2020)

7 Declaration of Kalfayan . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Reed, Kevin) (Entered: 07/13/2020)

8 Declaration of Zukoski . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Reed, Kevin) (Entered: 07/13/2020)

9 Declaration of Memiaghe . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Reed, Kevin) (Entered: 07/13/2020)

10 Declaration of Cascante Matamoros . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Reed, Kevin) (Entered: 07/13/2020)

11 Declaration of Yang . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Reed, Kevin) (Entered: 07/13/2020)

12 Motion for Summary Judgment . Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Reed, Kevin) (Entered: 07/13/2020)

13 Declaration of Southwell . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M) (Reed, Kevin) (Entered: 07/13/2020)

14 Declaration of Gaines . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)

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

CM/ECF - USDC Oregon
(Reed, Kevin) (Entered: 07/13/2020)
15 Declaration of Galvan . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Reed, Kevin) (Entered: 07/13/2020)
16 Declaration of Larson . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Reed, Kevin) (Entered: 07/13/2020)
17 Declaration of Kalfayan . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Reed, Kevin) (Entered: 07/13/2020)
18 Declaration of Zukoski . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Reed, Kevin) (Entered: 07/13/2020)
19 Declaration of Memiaghe . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Reed, Kevin) (Entered: 07/13/2020)
20 Declaration of Cascante Matamoros . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Reed, Kevin) (Entered: 07/13/2020)
21 Declaration of Yang . Filed by All Plaintiffs. (Related document(s): Motion for Summary Judgment 12 .) (Reed, Kevin) (Entered: 07/13/2020)
22 Motion to Expedite or Accelerate . Filed by All Plaintiffs. (Reed, Kevin) (Entered: 07/13/2020)
23 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Joshua M. Wesneski. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6980768. Filed by All Plaintiffs. (Wesneski, Joshua) (Entered: 07/14/2020)
24 Notice of Case Assignment to Magistrate Judge Mustafa T. Kasubhai and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of ﬁling upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 11/12/2020. Joint Alternate Dispute Resolution Report is due by 12/11/2020. Pretrial Order is due by 12/11/2020. Ordered by Magistrate Judge Mustafa T. Kasubhai. (jw) (Entered: 07/14/2020)
25 Summons Issued Electronically as to Chad F. Wolf, Matthew Albence, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of ﬁling upon all named parties in accordance with Local Rule 3-5. (Attachments: # 1 Attachment Summons US Dept. Homeland Security, # 2 Attachment Summons Matthew Albence, # 3 Attachment Summons Chad Wolf) (jw) (Entered: 07/14/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Joshua M. Wesneski. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6980768 23 : Reviewed and Ready for Ruling. (ck) (Entered: 07/14/2020)
26 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Alexander H. Southwell. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6982511. Filed by All Plaintiffs. (Southwell, Alexander) (Entered: 07/14/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission

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CM/ECF - USDC Oregon
requested by attorney Alexander H. Southwell. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6982511 26 : Reviewed and Ready for Ruling. (ck) (Entered: 07/14/2020)

07/14/2020

27 ORDER by Magistrate Judge Mustafa T. Kasubhai: Motion for Temporary Restraining Order 2 is referred to Judge Michael J. McShane. (jk) (Entered: 07/14/2020)

07/14/2020

28 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Matthew D. McGill. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6982792. Filed by All Plaintiffs. (McGill, Matthew) (Entered: 07/14/2020)

07/14/2020

29 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Theane Evangelis. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6983072. Filed by All Plaintiffs. (Evangelis, Theane) (Entered: 07/14/2020)

07/14/2020

30 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Theodore B. Olson. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6983109. Filed by All Plaintiffs. (Olson, Theodore) (Entered: 07/14/2020)

07/14/2020

Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Theane Evangelis. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6983072 29 . Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Matthew D. McGill. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6982792 28 . Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Theodore B. Olson. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC6983109 30 : Reviewed and Ready for Ruling. (ck) (Entered: 07/14/2020)

07/14/2020

31 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Debra Wong Yang. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6983326. Filed by University of Utah, University of San Francisco, Claremont McKenna College, Scripps College, Arizona State University, Pomona College, University of Arizona, University of Oregon, Seattle University, Northern Arizona University, University of the Paciﬁc, Saint Mary's College of California, Stanford University, Oregon State University, California Institute of Technology, Chapman University, Pitzer College, President and Board of Trustees of Santa Clara College, University of San Diego, University of Southern California. (Yang, Debra) (Entered: 07/14/2020)

07/14/2020

32 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Oliver Fong. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6983475. Filed by All Plaintiffs. (Fong, Oliver) (Entered: 07/14/2020)

07/14/2020

33 ORDER by Magistrate Judge Mustafa T. Kasubhai GRANTING Motion for Leave to Appear Pro Hac Vice 23 requested by attorney Joshua M. Wesneski, and Motion for Leave to Appear Pro Hac Vice 26 requested by attorney Alexander H. Southwell. (jk) (Entered: 07/14/2020)

07/14/2020

34 ORDER by Magistrate Judge Mustafa T. Kasubhai GRANTING Motion for Leave to Appear Pro Hac Vice 28 requested by attorney Matthew D. McGill, Motion for Leave to Appear Pro Hac Vice 29 requested by attorney Theane Evangelis, and Motion for Leave to Appear Pro Hac Vice 30 requested by attorney Theodore B. Olson. (jk) (Entered: 07/14/2020)

07/14/2020

Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission

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07/15/2020

CM/ECF - USDC Oregon
requested by attorney Oliver Fong. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6983475 32 . Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Debra Wong Yang. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6983326 31 : Reviewed and Ready for Ruling. (ck) (Entered: 07/14/2020)
35 Scheduling Order by Judge Michael J. McShane: In light of Judge Allison Burroughs's minutes from the 7/14/2020 oral argument in the District of Massachusetts case of President and Fellow of Harvard College et al v. Dept. of Homeland Security et al 2011311-ADV stating "The Government has agreed to rescind the July 6, 2020 Policy Directive and the July 7, 2020 FAQ, and has also agreed to rescind their implementation... which are being rescinded on nationwide basis" which "moots the temporary restraining order/preliminary injunction motions," the parties are directed to confer and ﬁle a joint status report by Friday, July 17, 2020 at noon informing the Court how they would like to proceed. (cp) Modiﬁed on 7/15/2020 to correct docket text, resent NEF (cp). (Entered: 07/15/2020)

07/15/2020 07/15/2020 07/15/2020 07/16/2020

36 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Chelsea Mae Thomas. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6987980. Filed by All Plaintiffs. (Thomas, Chelsea) (Entered: 07/15/2020)
37 ORDER by Magistrate Judge Mustafa T. Kasubhai GRANTING Motion for Leave to Appear Pro Hac Vice 31 requested by attorney Debra Wong Yang, and Motion for Leave to Appear Pro Hac Vice 32 requested by attorney Oliver Fong. (jk) (Entered: 07/15/2020)
38 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Ethan Dettmer. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6990495. Filed by All Plaintiffs. (Dettmer, Ethan) (Entered: 07/15/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Ethan Dettmer. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6990495 38 . Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Chelsea Mae Thomas. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6987980 36 : Reviewed and Ready for Ruling. (ck) (Entered: 07/16/2020)

07/16/2020

39 Afﬁdavit of Service upon Matthew Albence served on 7/14/2020 Filed by All Plaintiffs. (Wesneski, Joshua) (Entered: 07/16/2020)

07/16/2020 07/16/2020 07/16/2020

40 Afﬁdavit of Service upon United States Department of Homeland Security served on 7/14/2020 Filed by All Plaintiffs. (Wesneski, Joshua) (Entered: 07/16/2020)
41 Afﬁdavit of Service upon U.S. Immigration and Customs Enforcement served on 7/14/2020 Filed by All Plaintiffs. (Wesneski, Joshua) (Entered: 07/16/2020)
42 Afﬁdavit of Service upon Chad F. Wolf served on 7/14/2020 Filed by All Plaintiffs. (Wesneski, Joshua) (Entered: 07/16/2020)

07/16/2020

43 Notice of Appearance of Patrick J. Conti appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Conti, Patrick) (Entered: 07/16/2020)

07/16/2020

44 Notice of Appearance of Austin Rice-Stitt appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Rice-Stitt, Austin) (Entered: 07/16/2020)

07/17/2020 07/21/2020

45 Joint Status Report . Filed by All Plaintiffs. (Reed, Kevin) (Entered: 07/17/2020) 46 ORDER by Magistrate Judge Mustafa T. Kasubhai GRANTING Motion for Leave to

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1/16/2021
07/22/2020
07/27/2020 07/29/2020 08/07/2020 08/10/2020 08/26/2020 08/27/2020

CM/ECF - USDC Oregon
Appear Pro Hac Vice requested by attorney Chelsea Mae Thomas 36 , and Motion for Leave to Appear Pro Hac Vice requested by attorney Ethan Dettmer 38 . (jk) (Entered: 07/21/2020)
47 Scheduling Order by Judge Michael J. McShane: Based upon the Joint Status Report 45 of the parties, Motions 2 , 12 and 22 are vacated. The parties are to ﬁle a Joint
Status Report by 7/27/2020. Ordered by Judge Michael J. McShane. (cp) (Entered: 07/22/2020)
48 Joint Status Report . Filed by All Plaintiffs. (Reed, Kevin) (Entered: 07/27/2020)
49 Scheduling Order by Judge Michael J. McShane: Based upon the Joint Status Report 48 of the parties, further Joint Status Report is due by 8/7/2020. Ordered by Judge
Michael J. McShane. (cp) (Entered: 07/29/2020)
50 Joint Status Report . Filed by All Plaintiffs. (Reed, Kevin) (Entered: 08/07/2020)
51 ORDER by Magistrate Judge Mustafa T. Kasubhai: The Court is in receipt of the parties' Joint Status Report 50 . The parties shall ﬁle an additional Joint Status Report by 8/27/2020. (jk) (Entered: 08/10/2020)
52 Notice of Voluntary Dismissal Filed by All Plaintiffs. (Reed, Kevin) (Entered: 08/26/2020)
53 JUDGMENT signed on 8/27/2020 by Magistrate Judge Mustafa T. Kasubhai: As per the Notice of Voluntary Dismissal (ECF No. 52 ), this is action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). Pending motions, if any, are denied as moot. All pretrial deadlines, hearings, and any trial date are stricken. (jk) (Entered: 08/27/2020)

PACER Service Center

Transaction Receipt

01/15/2021 22:29:55

PACER Login:

CRClearinghouse

Client Code:

Ruchita Coomar

Description: Docket Report

Search 6:20-cv-01127-MK Start date: Criteria: 1/1/1980 End date: 1/15/2021

Billable Pages:

30

Cost: 3.00

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 Case 6:20-cv-01127-MK Document 2 Filed 07/13/20 Page 1 of 45

Kevin S. Reed (OBN #160574)

Rebecca Gose (OBN #105712)

ksreed@uoregon.edu

rebecca.gose@oregonstate.edu

Douglas Y.S. Park (OBN #980904)

Julie Penry (OBN #053440)

dougpark@uoregon.edu

julie.penry@oregonstate.edu

Jessica Price (OBN #182104) (LR 83-4 pending)Whitney Hill (OBN #093849)

jgprice@uoregon.edu

whitney.hill@oregonstate.edu

University of Oregon

(Special Admission as Government Attorneys

Office of General Counsel

pending)

1226 University of Oregon

Oregon State University

Eugene, OR 97403

Office of the General Counsel

Phone: (541) 346-3082

630 Kerr Admin Bldg

Corvallis, OR 97331

GIBSON, DUNN & CRUTCHER LLP

Phone: (541) 737-2474

Theodore B. Olson (pro hac vice forthcoming) GIBSON, DUNN & CRUTCHER LLP

tolson@gibsondunn.com

Matthew D. McGill (pro hac vice forthcoming) Debra Wong Yang (pro hac vice forthcoming)

mmcgill@gibsondunn.com

dwongyang@gibsondunn.com

Joshua Wesneski (pro hac vice forthcoming) Ethan Dettmer (pro hac vice forthcoming)

jwesneski@gibsondunn.com

edettmer@gibsondunn.com

1050 Connecticut Avenue, N.W.

Theane Evangelis (pro hac vice forthcoming)

Washington, D.C. 20036-5306

tevangelis@gibsondunn.com

Phone: (202) 955-8500

Chelsea Mae Thomas (pro hac vice forthcoming)

cthomas@gibsondunn.com

Alexander H. Southwell (pro hac vice

333 South Grand Avenue

forthcoming)

Los Angeles, CA 90071-3197

asouthwell@gibsondunn.com

Phone: (213) 229-7000

Oliver Fong (pro hac vice forthcoming)

ofong@gibsondunn.com

200 Park Avenue

Attorneys for Plaintiffs

New York, NY 10166-0193

Phone: (212) 351-4000

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

UNIVERSITY OF OREGON; OREGON STATE UNIVERSITY; UNIVERSITY OF SOUTHERN CALIFORNIA; ARIZONA STATE UNIVERSITY; CALIFORNIA INSTITUTE OF TECHNOLOGY; CHAPMAN UNIVERSITY; CLAREMONT MCKENNA COLLEGE; NORTHERN ARIZONA UNIVERSITY; PITZER

Case No. 6:20-cv-01127-MK
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

Case 6:20-cv-01127-MK Document 2 Filed 07/13/20 Page 2 of 45

COLLEGE; POMONA COLLEGE; PRESIDENT AND BOARD OF TRUSTEES OF SANTA CLARA COLLEGE; SCRIPPS COLLEGE; SEATTLE UNIVERSITY; STANFORD UNIVERSITY; SAINT MARY’S COLLEGE OF CALIFORNIA; UNIVERSITY OF ARIZONA; UNIVERSITY OF THE PACIFIC; UNIVERSITY OF SAN DIEGO; UNIVERSITY OF SAN FRANCISCO; and UNIVERSITY OF UTAH,
Plaintiffs, v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

REQUEST FOR EXPEDITED HEARING REQUEST FOR ORAL ARGUMENT

Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

Case 6:20-cv-01127-MK Document 2 Filed 07/13/20 Page 3 of 45
TABLE OF CONTENTS
MOTION ................................................................................................................................ 1 INTRODUCTION ......................................................................................................................... 2 BACKGROUND ........................................................................................................................... 7
I. The F-1 Visa Program............................................................................................ 7 II. Initial Response to COVID-19............................................................................... 9
A. The March Order...................................................................................... 10 B. Plaintiffs’ COVID-19 Response .............................................................. 11 III. The July Order And Its Effects ............................................................................ 12 A. ICE Reverses Course ............................................................................... 12 B. The Fallout From ICE’s Reversal ............................................................ 13 LEGAL STANDARD.................................................................................................................. 15 ARGUMENT .............................................................................................................................. 15 I. Plaintiffs Are Likely To Succeed On The Merits ................................................ 15 A. The July Order Is Not The Product Of Reasoned Decision Making ....... 16
1. ICE Failed To Consider The Harms Arising Out Of The July Order ............................................................................. 16
2. The July Order Offers No Reasoned Explanation At All ............ 26 B. The Proffered Reasons For The July Order Are Pretextual ..................... 28 II. Plaintiffs Will Be Irreparably Harmed Absent Emergency Relief ...................... 30 III. The Equities And Public Interest Favor Immediate Relief .................................. 34 CONCLUSION............................................................................................................................ 35
Page i Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

Case 6:20-cv-01127-MK Document 2 Filed 07/13/20 Page 4 of 45
TABLE OF AUTHORITIES
Page(s)
Cases
Alliance for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105 (9th Cir. 2018) .................................................................................................26
Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) .................................................................................................26
Bennett v. Spear, 520 U.S. 154 (1997).................................................................................................................16
Boardman v. Pac. Seafood Grp., 822 F.3d 1011 (9th Cir. 2016) .................................................................................................31
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962)...........................................................................................................25, 28
Cal. Trucking Ass’n v. Becerra, 433 F. Supp. 3d 1154 (S.D. Cal. 2020)....................................................................................31
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) .......................................................................................................28, 29
Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) .................................................................................................16, 17, 28
Doe v. Trump, 418 F. Supp. 3d 573 (D. Or. 2019) ..............................................................................31, 33, 34
East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020) .....................................................................................30, 31, 34
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) .............................................................................................................16
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).................................................................................................................25
Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016) ...............................................................................................................2
Grutter v. Bollinger, 539 U.S. 306 (2003).................................................................................................................21
Page ii Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

Case 6:20-cv-01127-MK Document 2 Filed 07/13/20 Page 5 of 45
Michigan v. EPA, 135 S. Ct. 2699 (2015) .............................................................................................................16
Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) ...................................................................................................26
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)...................................................................................................................16
Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518 (D.C. Cir. 2015) .................................................................................................30
Regents of Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511 (9th Cir. 1984) ...................................................................................................33
Sackett v. EPA, 566 U.S. 120 (2012)...........................................................................................................15, 16
Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 (1996).................................................................................................................17
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) ...................................................................................................15
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................15
Statutes
5 U.S.C. § 706(2)(A)......................................................................................................................15
8 U.S.C. § 1101(a)(15)(F)(i) ............................................................................................................2
Other Authorities
ASU Is the Top Public University of Choice for International Students, Ariz. State Univ. (Nov. 13, 2018), https://bit.ly/2CsTEGj ..........................................................................8
Colleen Shalby, L.A. County Coronavirus Surge Worsens With 4,000 New Cases, Higher Infection Rate, L.A. Times (July 7, 2020) ...................................................................30
Coronavirus Disease 2019 (COVID-19), Cases in the US, Ctrs. For Disease Control & Prevention (last visited July 11, 2020), https://bit.ly/301213T ..............................27
Coronavirus Disease 2019 (COVID-19), People With Certain Medical Conditions, Ctrs. for Disease Control & Prevention (June 25, 2020), https://bit.ly/3gO6spB ........................................................................................................21, 22
Page iii Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

Case 6:20-cv-01127-MK Document 2 Filed 07/13/20 Page 6 of 45
Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Cases in the US (last visited July 12, 2020), https://bit.ly/2SyyE6k .......................................10
Department of Homeland Security, Financial Ability, Study in the States, https://bit.ly/2Cv4cod.................................................................................................................8
Department of Homeland Security, Maintaining Status, Study in the States, https://bit.ly/32mi7bt ..................................................................................................................8
Division of Equity and Inclusion: Campus Diversity, University of Oregon (last visited July 11, 2020), https://bit.ly/3055jmK .........................................................................33
Frequently Asked Questions for SEVP Stakeholders About Guidance for the Fall 2020 Semester, U.S. Immigration & Customs Enforcement (July 7, 2020), https://bit.ly/3fkAIYN ..............................................................................................................23
John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will “Encourage Schools to Reopen”, The Hill (July 7, 2020) ................................1, 29
President Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/3ffGlaK ....................................................................................................26
Rate of Positive Tests in the US and States Over Time, Johns Hopkins Univ. of Med. (last visited July 11, 2020), https://bit.ly/301h4uE.........................................................27
U.S. Dep't of State, Student Visa, Travel.State.Gov, https://bit.ly/2ZiwaN0 ..................................7
U.S. Immigration and Customs Enforcement, SEVP Overview, Student and Exchange Visitor Program, https://bit.ly/2Wbpdf0 ...................................................................7
U.S. Immigration and Customs Enforcement, Student Process Steps: How to Navigate the U.S. Immigration System, Student and Exchange Visitor Program, https://bit.ly/329dYHz............................................................................................7, 8
U.S. Dep’t of State, COVID-19 Traveler Information (last visited July 12, 2020), https://bit.ly/2ZkALy9 ...............................................................................................................9
White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/35x86aT .................................................................................................................9
Who Is An International Student?, University of Southern California (last visited July 11, 2020), https://bit.ly/2BZyPSU....................................................................................33
Why Choose OSU?, Oregon State University (last visited July 12, 2020), https://bit.ly/3ek9IaB ...............................................................................................................33
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Case 6:20-cv-01127-MK Document 2 Filed 07/13/20 Page 7 of 45 Regulations 8 C.F.R. § 214.2(f)(6)(i)...................................................................................................................8 8 C.F.R. § 214.2(f)(6)(i)(G) .........................................................................................................2, 8 8 C.F.R. § 214.2(f)(10) ..................................................................................................................24 8 C.F.R. § 214.2(f)(10)(ii)(A)(3) ...................................................................................................24
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MOTION Plaintiffs are a diverse coalition of 20 institutions of higher education located in Oregon, Arizona, California, Utah, and Washington. Plaintiffs include both public and private post-secondary-education schools ranging from large research institutions to small liberal arts colleges. One thing all Plaintiffs have in common is that they have substantial numbers of international students who are vital to the fabric of their institutions. Collectively, Plaintiffs have over 50,000 enrolled international students. Plaintiffs file this combined motion seeking a temporary restraining order and preliminary injunction that stays the effectiveness of an order of July 6, 2020 issued by U.S. Immigration and Customs Enforcement (“ICE”) through the Student and Exchange Visitor Program (“SEVP”) that rescinds guidance ICE issued on March 9, 2020 and March 13, 2020 and requires international students with F-1 status in the United States to attend in-person classes in order to retain their “Active” status (the “July Order”). In a nationally televised interview, Acting Deputy Secretary of Homeland Security Ken Cuccinelli trumpeted that the July Order would “encourage schools to reopen.” John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will “Encourage Schools to Reopen”, The Hill (July 7, 2020), https://bit.ly/303vFG2. Plaintiffs seek immediate provisional relief in light of the imminent deadlines abruptly imposed by the July Order. The order requires Plaintiffs that are offering only online classes in the fall semester to submit revised operational plans by July 15, requires other Plaintiffs to submit revised operational plans by August 1, and mandates that all Plaintiffs issue new Forms I-20 to F-1 students by August 4. As set forth below and in the accompanying declarations, to comply with these deadlines, Plaintiffs collectively will have to undertake thousands of hours of work, redeploying personnel away from other important priorities, not least of which is fielding the urgent inquiries of numerous international students whose visa status the July Order has imPage 1 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

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periled. Plaintiffs respectfully request that the Court enter a temporary restraining order on or before July 15 that stays the effectiveness of the July Order, and thereafter a preliminary injunction that continues such stay until the Court resolves Plaintiffs’ Motion for Summary Judgment, which has been filed concurrently with this motion.
INTRODUCTION Plaintiffs attract students from around the world, from nearly every country on the planet. These international students are integral parts of Plaintiffs’ institutions. They include brilliant research scientists, engaging teachers, world-class athletes, and countless students who each contributes a unique perspective in their academic and local community—a perspective that the Supreme Court has recognized as a critically important component in a modern education that “promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2210 (2016) (quotation marks omitted). Indeed, for many of Plaintiffs’ American students, their international classmates present their first opportunity to meaningfully connect with other cultures. Enrollment of international students accordingly is critical to the fulfillment of Plaintiffs’ educational missions. For decades, the United States has welcomed international students through its F-1 visa program, under which international students may enter the United States on a nonimmigrant basis and remain here so long as they are engaged in a “full course of study.” 8 U.S.C. § 1101(a)(15)(F)(i). In 2002, as online degree programs became more widely available, ICE’s predecessor agency issued a regulation interpreting a “full course of study” to require the student to attend most classes in person; students enrolled in online degree programs were not eligible for F-1 visas. 8 C.F.R. § 214.2(f)(6)(i)(G). The COVID-19 pandemic strained that regulatory framework as colleges and universities across the country were forced to close their campuses mid-semester and shift their instruction Page 2 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

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entirely to online platforms to protect the health and safety of their campus communities. To its credit, ICE responded to the public health emergency with flexibility, issuing guidance on March 13 providing that F-1 students could maintain their Active status while attending classes online. This allowed international students to continue their education either from the United States or from their home countries. The March 13 guidance recognized “the extraordinary nature of the COVID-19 emergency” and, critically for schools needing to design new educational environments for the fall semester, stated this accommodation would remain “in effect for the duration of the emergency.” Southwell Decl. Ex. B, at 1.
In the ensuing months, Plaintiffs have worked tirelessly to develop their plans for the fall semester. Relying on ICE’s March guidance that it would remain “flexible with temporary adaptations” as schools “address the significant public health concerns associated with the COVID-19 crisis,” Southwell Decl. Ex. B, at 1, many are preparing a “hybrid” approach in which institutions will offer various combinations of in-person and online instruction, depending on the state of the pandemic in the fall. Others, however, have concluded they cannot now safely reopen their campuses given their locations and resources, and accordingly will be offering instruction only online in the fall semester. Others are continuing to monitor the rapidly evolving public health situation before deciding on a plan.
The Department of Homeland Security and ICE apparently disapprove of this state of affairs and determined that Plaintiffs and other colleges and universities were in need of further “encourage[ment] . . . to reopen.” Bowden, supra. On July 6, with the COVID-19 pandemic raging through Arizona, California, and other western states, ICE issued the July Order, rescinding the March guidance and dictating instead that “[s]tudents attending schools operating entirely online may not take a full online course load and remain in the United States.” Southwell Decl.
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Ex. C, at 1. Students attending schools utilizing a “hybrid model” also may not take “an entirely online course load for the fall 2020 semester” and remain in the United States. Id.
As for the many F-1 students who, amidst the pandemic, returned to their home countries, the July Order said that they could continue their education through online classes and maintain their F-1 “Active status,” but only if online courses are “the only choice offered by the school.” Southwell Decl. Ex. C, at 2. The July Order thus seems to say that if an F-1 student now abroad is enrolled at a school with a hybrid program, she can maintain Active F-1 status only if she returns to the United States and takes in-person classes—even if travel to the United States is (as it is for many) impermissible (because of travel bans), infeasible (because of lack of commercial flights), or inadvisable (because a deadly pandemic currently is gripping much of the United States).
Plaintiffs are scrambling to respond to the July Order. Those schools intending to offer instruction only online in the fall were given just nine days to draft and submit an operational plan to ICE, with schools committing to a hybrid or full reopening plan afforded an additional two weeks. Meanwhile, Plaintiffs must begin the enormously burdensome process of reissuing Forms I-20 to each of the thousands of international students that attend their schools—a task that is flatly impossible for those schools that have not yet completed enrollment for the fall semester.
But ICE’s new rule cuts even more deeply into Plaintiffs’ educational prerogatives and core missions. In order to protect their international students from imminent deportation, Plaintiffs are racing to reconfigure their carefully crafted plans for the fall semester to create additional in-person classes for no reason other than to ensure that each F-1 student can remain in compliance with the July Order and still make meaningful academic progress. The July Order thus
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not only requires Plaintiffs to rearrange their fall course offerings, teaching schedules, room locations, student accommodations, and facilities management, but by dictating changes to Plaintiffs’ course offerings, it is tampering directly with Plaintiffs’ educational missions.
The situation for Plaintiffs’ international students is even more dire. For those enrolled in schools with “hybrid” reopening plans, they now must realign their course work to take in-person classes that may have no relationship to their academic major or course of study. But the situation is much worse for those students who attend schools offering only online courses for the fall and cannot find alternative accommodations: Those students “must depart the country.” Southwell Decl. Ex. C, at 1. Some will return to countries several time zones away, or with inadequate Internet connectivity, or both. The unluckiest of those students will be forced to return to a country affected by civil violence, unrest, or a COVID-19 outbreak even worse than in the United States. Some have no place to go at all.
F-1 students that returned to their home country during the pandemic also face lifealtering uncertainty. Although many of them may not be able to return to the United States because of travel restrictions, the July Order senselessly seems to mandate that if their school is offering any in-person instruction, and they do not return, their F-1 Active status will lapse. Such a lapse imposes harsh consequences on those students, including the possibility of losing post-graduate job opportunities, or even (if they cannot re-enter the F-1 program) the opportunity to graduate.
One might have expected that before scuttling the reopening plans of numerous colleges and universities and plunging the lives of countless international students into desperate uncertainty or worse, ICE would have carefully examined the advantages and disadvantages of its action, acknowledged the hardships imposed by its actions, and provided a reasoned explanation of
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how the benefits of the new policy justify the departure from past practice. But ICE did nothing of the sort. To explain its rescission of its March guidance at a moment when “the significant public health concerns associated with the COVID-19 crisis,” Southwell Decl. Ex. A, at 1, are at least as salient as they were in March, the July Order says only this: “as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations,” Southwell Decl. Ex. C, at 1.
That does not even remotely approach the reasoned explanation that the Administrative Procedure Act (“APA”) demands. It is a fundamental rule of administrative law that agencies must consider the consequences of their actions—both positive and negative. ICE utterly failed to do so. Indeed, the July Order contains no indication even of awareness of the manifold costs and burdens imposed by its abrupt change in course, let alone the careful weighing of those costs against the putative benefits of its new policy. Instead, ICE has offered only a blithe reference to enforcement of pre-COVID-19 regulations that ICE itself had recognized, in March, needed to be waived in the face of the pandemic.
In any event, Acting Deputy Secretary Cuccinelli has revealed that the true purpose of the July Order’s new mandates—issued precisely when many schools were finalizing their plans for the fall semester—is to “encourage schools to reopen.” Bowden, supra (emphasis added). But that objective is light years beyond the statutory authority of ICE, and even further from its area of expertise. It is an entirely inappropriate basis for ICE action, and demonstrates clearly that the July Order must be set aside.
Temporary and preliminary injunctive relief is needed now to prevent further harm to Plaintiffs and their students. As the above makes clear, Plaintiffs are likely to succeed on their claims that the July Order violates the APA. The July Order also indisputably imposes immedi-
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ate and irreparable harm. Plaintiffs already are diverting substantial resources to comply with

the July Order, and must alter their academic offerings just weeks before the new semester to

accommodate the Order’s in-person requirement. Those resources can never be reclaimed from

the government, but the costs grow each day nevertheless. Meanwhile, F-1 students face the risk

of losing their visa status and being removed from the United States, perhaps never having an

opportunity to return to finish their education. Finally, the public interest and the equities also

weigh decisively in favor of granting Plaintiffs provisional relief: The public benefits when

agencies are held to account for their decisions, particularly when those decisions affect the lives

of tens of thousands of hardworking students and the educational setting in which they study,

research, and teach. Immediate injunctive relief is both necessary and appropriate.

BACKGROUND

I.

The F-1 Visa Program

Citizens of foreign countries who wish to enter the United States to attend school must

obtain a nonimmigrant F student visa. See U.S. Department of State, Student Visa, Trav-

el.State.Gov, https://bit.ly/2ZiwaN0. First, the student must apply and be accepted to a school

certified by the SEVP, which is the Department of Homeland Security program that administers

the Student and Exchange Visitor Information System (“SEVIS”) and “provides approval and

oversight to schools authorized to enroll F . . . nonimmigrant students.” U.S. Immigration and

Customs Enforcement, SEVP Overview, Student and Exchange Visitor Program (Feb. 6, 2020),

https://bit.ly/2Wbpdf0. “F-1” students are those international students enrolling in elementary,

secondary, or post-secondary academic institutions. U.S. Immigration and Customs Enforce-

ment, Student Process Steps: How to Navigate the U.S. Immigration System, Student and Ex-

change Visitor Program (May 14, 2019), https://bit.ly/329dYHz.

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Once a student decides which school to attend, they must complete a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.” Student Visa, supra. The Form I-20 “is a paper record” of the information in the SEVIS database and includes evidence of the student’s financial ability to live and study in the United States. Student Process Steps, supra; Department of Homeland Security, Financial Ability, Study in the States, https://bit.ly/2Cv4cod. Once the Form I-20 is complete, the student must pay the I-901 SEVIS fee and apply for and receive a visa. Student Visa, supra.
Once at a school in the United States, students with F-1 status must maintain their status by taking and passing a full course of study. Department of Homeland Security, Maintaining Status, Study in the States, https://bit.ly/32mi7bt. For undergraduates, this typically means taking “at least 12 credit hours per term,” while students in post-graduate programs “must take a full course of study as certified by the institution.” Id.; see also 8 C.F.R. § 214.2(f)(6)(i). Ordinarily, “no more than the equivalent of one class or three credits per . . . term . . . may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class.” 8 C.F.R. § 214.2(f)(6)(i)(G). Students with F-1 status are also eligible for optional practical training, a “form of temporary employment that directly relates to [their] program of study,” and curricular practical training, employment that is “an integral part of an established curriculum” that directly relates to students’ major areas of study. Maintaining Status, supra.
International students attending school through the F-1 program make up a significant part of the population of Plaintiffs’ student body. Plaintiff University of Southern California (“USC”), for example, welcomed over 12,000 international students in the fall 2019 term, over
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25% of its total enrollment. Zukoski Decl. ¶ 7. In 2018, Plaintiff Arizona State University had

over 13,400 international students from 136 countries. See ASU Is the Top Public University of

Choice for International Students, Ariz. State Univ. (Nov. 13, 2018), https://bit.ly/2CsTEGj.

Plaintiff The University of Oregon’s student body typically consists of 11–12% international

students, Plaintiff Oregon State University’s student body consisted of nearly 11% international

students in the last Spring term, and a combined over 4,500 Oregon and Oregon State students

currently hold F-1 status. Galvan ¶ 5; Larson Decl. ¶ 11. Plaintiff Stanford University’s interna-

tional students make up 34% of its graduate students and 11% of its undergraduate students.

Kalfayan Decl. ¶ 6. And these students are vital contributors to the success of the schools—these

students bring intellectual and cultural diversity, engage in cutting-edge research programs, and

participate in athletic programs as well. Galvan Decl. ¶¶ 28–31; Larson Decl. ¶ 31; Gaines Decl.

¶¶ 21, 27; Zukoski Decl. ¶ 30; Kalfayan Decl. ¶ 29.

II.

Initial Response to COVID-19

COVID-19 is a life-threatening and readily transmitted disease caused by the novel coro-

navirus, which has posed an increasing and ever-present danger in the United States since the

first case was confirmed in Washington state in January 2020. The disease spread rapidly from

coast to coast, and on March 13, 2020, President Trump declared the spread of COVID-19 a na-

tional emergency. White House, Proclamation on Declaring a National Emergency Concerning

the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/35x86aT.

The pandemic has interfered with the normal operations of businesses, educational institutions,

and nearly all aspects of daily life. States and cities across the country have, and in some cases

remain, locked down. Businesses and courthouses have closed. International and domestic trav-

el is restricted, and the State Department has urged “American students overseas” to “return to

the United States as soon as possible” because of “unpredictable circumstances” and Page 9 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

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“[in]adequate health care” abroad. U.S. Dep’t of State, COVID-19 Traveler Information (Apr. 7, 2020), https://bit.ly/2ZkALy9. The pandemic has only worsened since the President declared a national emergency: The number of confirmed cases and deaths in the United States from COVID-19 have grown exponentially, from 1,600 cases and 46 deaths in March to 3.1 million cases and 133,000 deaths on July 12. Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Cases in the US (last visited July 12, 2020), https://bit.ly/2SyyE6k.
A. The March Order In the wake of the COVID-19 outbreak, the federal government recognized that many schools could reduce their students’ risk of contracting COVID-19 by teaching students remotely. On March 9, 2020, the SEVP division of ICE issued a guidance document acknowledging that “schools may need to adapt their procedures and policies to address the significant public health concerns associated with the COVID-19 crisis.” Southwell Decl. Ex. A (the “March Order”). ICE stated that it “intend[ed] to be flexible with temporary adaptations” because the “COVID-19 crisis is fluid and rapidly changing.” Id. In particular, ICE “recognize[d] that schools are updating their emergency operations plans to minimize the potential impact of COVID-19 on the school,” including by “provid[ing] online instruction.” Id. at 3. Four days later, ICE issued another guidance document to address the status of students whose schools “stop[ped] in-person classes” but would “offer[ ] online instructions.” Southwell Decl. Ex. B. “Given the extraordinary nature of the COVID-19 emergency,” ICE exempted F-1 students from the rule that they must attend most classes in person. Id. In other words, F-1 students could remain in the United States and retain their F-1 status, even though virtually all schools had transitioned to a purely remote curriculum for the duration of the Spring semester. Sensibly, ICE assured this exemption would remain “in effect for the duration of the emergency.” Id. Page 10 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

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B. Plaintiffs’ COVID-19 Response Meanwhile, Plaintiffs sprang into action as well. Several Plaintiffs organized emergency response teams to monitor the pandemic and make quick decisions about how best to protect students. Zukoski Decl. ¶ 11; Kalfayan Decl. ¶ 12. These teams sought input from public health leaders, conducted surveys, organized town halls and small group discussions, and held regular meetings to respond to the rapidly evolving situation. Zukoski Decl. ¶ 13; Kalfayan Decl. ¶ 14. These teams also collaborated with the various academic departments, laboratories, and other facilities involved in providing educational instruction to Plaintiffs’ students. Zukoski Decl. ¶ 16; Kalfayan Decl. ¶ 14. In or around the middle of March, Plaintiffs began to announce they would be suspending in-person instruction, at least temporarily. Zukoski Decl. ¶ 19; Larson Decl. ¶ 21; Kalfayan Decl. ¶ 17. Schools in California and Oregon were thereafter ordered closed by order of state and local authorities, dictating that all instruction for the remainder of the spring term be conducted online. Zukoski Decl. ¶ 20; Kalfayan Decl. ¶ 19. After addressing the initial crisis and the spring term, Plaintiffs turned their attention to preparations for the fall. Planning for the fall, particularly in light of the changing circumstances, involved significant resources and deliberation. Galvan Decl. ¶¶ 8–13, 19–22; Larson Decl. ¶¶ 13–18, 21–23, 26–27; Zukoski Decl. ¶ 21; Kalfayan Decl. ¶¶ 12–16, 28. Over the past several weeks, Plaintiffs and other colleges and universities have begun to roll out their plans for the fall. Tailoring their plans to the particular needs of their students, faculty, and staff, and their campus environments, Plaintiffs have taken a variety of approaches as they invite students to return to campus:  The University of Oregon announced its plan to conduct classes with fewer than fifty
students, and conduct classes with more than fifty people either remotely or with only
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small-group discussion in person, with in-person classes ceasing after the Thanksgiving break (Galvan Decl. ¶ 21);  Oregon State University announced its plan to offer at least 50% of its courses for remote instruction, providing in-person instruction only in classrooms with double capacity for class enrollment, and with in-person classes likely ceasing after the Thanksgiving break (Larson Decl. ¶¶ 24–25);  USC announced its plan to offer approximately 10–20% of its classes in person, principally those involving hands-on work (Zukoski Decl. ¶ 22);  Stanford University announced its plan to invite only half of its undergraduate students back (divided by class year) during each of its four academic quarters, although it will not compel any of its students to return if they elect not to (Kalfyan Decl. ¶¶ 21–22). Because in-person course offerings are limited under these hybrid approaches, many students are expected to take a fully remote or online schedule of classes in order to make sufficient academic progress in their chosen field of study. Larson Decl. ¶ 24; Zukoski Decl. ¶ 22. Other Plaintiffs, however, made the difficult decision not to invite students back to campus. For example, on July 8, 2020, Plaintiff Pomona College announced in a letter to its community that in light of the severe restrictions that would have to be implemented and the ongoing public health crisis, its fall curriculum would be offered entirely online. Gaines Decl. ¶ 16. III. The July Order And Its Effects A. ICE Reverses Course With no prior notice, on July 6, 2020, ICE abruptly rescinded its March guidance. ICE now has directed that “[s]tudents attending schools operating entirely online may not take a full online course load and remain in the United States.” Southwell Decl. Ex. C, at 1. Students “currently in the United States enrolled in such programs must depart the country or take other measures” to maintain their F-1 status, or else “potentially face immigration consequences” such as “the initiation of removal proceedings.” Id. Students attending schools adopting a “mixture of online and in person classes,” meanwhile, also cannot “tak[e] an entirely online course load
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for the fall 2020 semester.” Id. And “[i]f a school changes its operational stance mid-semester” and “switches to only online classes” (perhaps because of a government-ordered closure of campus), F-1 students “must leave the country or take alternative steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction.” Id. at 2. The July Order does not provide any insight as to how a student might possibly transfer to a new school midsemester in the midst of a pandemic.
ICE also issued directives to schools. Schools whose classes would be entirely online in the fall “must complete [and submit] an operational change plan” by July 15, 2020—nine days after ICE’s announcement. Southwell Decl. Ex. C, at 2. Those schools that propose to provide a mix of online and in-person classes must update and submit “operations plans by August 1, 2020.” Id. at 2–3. Moreover, ICE directed schools to update and reissue a new Form I-20—the certificate of eligibility for nonimmigrant student status—for each of their thousands of F-1 international students by August 4, 2020. Id. at 2.
ICE offered only a single sentence to explain its change in policy: “There will still be accommodations to provide flexibility to schools and nonimmigrant students but as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations.” Southwell Decl. Ex. C, at 1. The July Order includes no other explanation for the policy change, and no discussion whatsoever concerning the effects of the new policy on Plaintiffs or their students.
B. The Fallout From ICE’s Reversal The July Order immediately imposed severe new burdens on Plaintiffs—institutions already deeply stressed by the pandemic. For starters, because of the Order’s new requirement that F-1 students remaining in the United States attend at least some in-person courses, Plaintiffs have had to divert resources to ensure that enough in-person courses will be offered for all F-1 Page 13 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

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students, lest those students be deported. Galvan Decl. ¶ 26; Larson Decl. ¶ 30; Gaines Decl. ¶¶ 20, 22; Zukoski Decl. ¶ 29; Kalfayan Decl. ¶¶ 30, 33. The July Order also imposed immediate and direct compliance costs on Plaintiffs. Plaintiffs, like Pomona College, that initially planned to conduct only online courses in the fall must, if they adhere to that plan, file an “operational change plan” by July 15. Southwell Decl. Ex. C, at 2. Other schools have until just August 1 to do so. Id. at 2–3. And all schools offering courses to F-1 students are required to issue a new Form I-20 for thousands of international students by August 4, 2020.
F-1 students, of course, also face direct consequences from the July Order. For those attending schools that plan to offer only online instruction in the fall, these students must either depart the United States, or attempt to transfer to another school just a few weeks before the term begins. Those forced to return to their home countries face a variety of challenges to continuing their education, including the costs of breaking leases and relocating, lack of reliable Internet access, or unstable political and cultural environments. Galvan Decl. ¶¶ 39, 40, 42, 43; Larson Decl. ¶¶ 38, 45, 46, 50, 51; Gaines Decl. ¶¶ 26, 33; Zukoski Decl. ¶¶ 38, 43, 47; Kalfayan Decl. ¶¶ 46–48.
Those F-1 students that returned home abroad during the pandemic also face uncertainty. The July Order is not completely clear as to whether students remaining abroad and attending virtual courses will lose their F-1 status, but if they do, that deprivation will have serious consequences for those students. Many of them may not have the resources to reapply for the F-1 visa program. Galvan Decl. ¶ 41; Larson Decl. ¶ 47; Gaines Decl. ¶ 32; Zukoski Decl. ¶ 45. Others may lose post-graduate job opportunities available only to those students engaged in a continuing academic program pursuant to the F-1 program. Galvan Decl. ¶ 33; Larson Decl. ¶ 43; Gaines Decl. ¶ 28; Zukoski Decl. ¶ 42.
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LEGAL STANDARD Preliminary injunctive relief is appropriate where the plaintiff establishes that “[1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The same standard applies to a request for a temporary restraining order. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
ARGUMENT Plaintiffs satisfy each of the four elements for immediate injunctive relief. First, Plaintiffs are likely to succeed on the merits of their APA claims because ICE failed to satisfy the APA’s standard for reasoned decision making. Second, Plaintiffs will suffer further immediate irreparable harm if the July Order is not enjoined, including the costs associated with complying with the July Order’s arbitrary deadlines and reorganizing their curricula to accommodate F-1 students. Third, both equities and public interest favor an injunction where, as here, an agency has failed to meet its obligations under the APA, to the detriment of schools, students, and many other stakeholders. I. Plaintiffs Are Likely To Succeed On The Merits The APA requires a court to vacate agency action where the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The July Order is arbitrary and capricious and not in accordance with law, and Plaintiffs are therefore likely to succeed on the merits of their APA claims for two reasons: (1) the July Order fails to satisfy the minimum standards for reasoned decision making, and (2) the proffered reason in the July Order is pretextual.
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There also is no question that the July Order is final agency action—it plainly bears “all of the hallmarks of APA finality.” Sackett v. EPA, 566 U.S. 120, 126 (2012). It determines the rights of F-1 students studying in the United States, and imposes legal obligations on Plaintiffs to make submissions and issue Forms I-20. See id. And plainly “legal consequences” flow from the July Order, because it declares that F-1 students who violate its instructions will be subject to deportation. See id.; see also Southwell Decl. Ex. C, at 1. While ICE promises to publish a “Temporary Final Rule” in the Federal Register, Southwell Decl. Ex. C, at 1, it has not yet done so, despite demanding that schools provide responses to the Order as soon as July 15. An agency cannot demand immediate action from regulated parties and simultaneously claim that its orders are merely interim. Cf. Bennett v. Spear, 520 U.S. 154, 178 (1997) (agency action is not final if it is merely “tentative” or “interlocutory” (quotation marks omitted)). The July Order therefore is final agency action and it is subject to vacatur under the APA.
A. The July Order Is Not The Product Of Reasoned Decision Making 1. ICE Failed To Consider The Harms Arising Out Of The July Order
Before taking final action, an agency must “examine the relevant data” and “consider[] . . . the relevant factors.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotation marks omitted). This means the agency must “pay[] attention to the advantages and the disadvantages of agency decisions.” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). Moreover, when the agency reverses a preexisting policy, it must take into account “serious reliance interests” arising out of the preexisting policy. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quotation marks omitted).
Just weeks ago, the Supreme Court reaffirmed and applied these fundamental rules in Department of Homeland Security v. Regents of University of California, 140 S. Ct. 1891 (2020).
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There, the Court vacated as inconsistent with the APA the Department of Homeland Security’s attempted rescission of the Deferred Action for Childhood Arrivals (“DACA”) program on the ground that, among other things, the Acting Secretary “failed to address whether there was ‘legitimate reliance’ on the DACA Memorandum.” Id. at 1913. The Court proceeded to detail the substantial harm caused by the abrupt rescission of DACA—the harm to DACA recipients who had started businesses and purchased homes, the harm to the families of DACA recipients, and the detrimental economic effects caused by a mass exodus of a considerable portion of the U.S. workforce. See id. at 1914. Although those costs and reliance interests did not necessarily foreclose the rescission of DACA, the Department of Homeland Security was required at least to consider them. See id.
ICE, apparently, did not get the message. Despite acknowledging in March that “SEVPcertified schools may need to adapt their procedures and policies to address the significant public health concerns associated with the COVID-19 crisis,” Southwell Decl. Ex. A, at 1, the July Order contains no recognition of that need, nor does it consider the harm of imposing a “one-size-fits-all” program on hundreds of different schools—each with its own student body and campus environment and unique struggles in grappling with the pandemic—with so little time before the start of the next semester. The July Order also fails entirely to consider the “legitimate reliance,” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996), that schools placed on the March Order, notwithstanding that the March Order indicated the exemption would be “in effect for the duration of the emergency,” Southwell Decl. Ex. B, at 1, and that the national emergency declared on March 13 has not yet been lifted. ICE thus failed entirely to acknowledge, address, or weigh at least three broad categories of harm arising out of the July Order:
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a. The July Order imposes costs on schools by requiring them to restructure their fall academic programming to ensure F-1 students have adequate in-person classes. Plaintiffs have invested substantial resources in the past several months to develop academic plans for the fall that meet the needs of their students without compromising the health of their students, faculty, or staff. Galvan Decl. ¶¶ 7–15, 19; Larson Decl. ¶¶ 13–18, 23, 27, 30; Gaines Decl. ¶¶ 7–12; Kalfayan Decl. ¶¶ 12–15. Those plans are the result of voluminous input by professors, administrators, state government officials, and health professionals, and represent Plaintiffs’ considered judgment about how best to serve the interests of their numerous stakeholders. Galvan Decl. ¶¶ 9, 22; Larson Decl. ¶¶ 14–18, 30; Gaines Decl. ¶¶ 9–13, 18; Kalfayan Decl. ¶¶ 28, 53.
The July Order throws all of that into disarray. Instead of spending the coming weeks refining and implementing their plans to strive to provide a safe and enriching educational environment for their students in the fall, Plaintiffs instead must redirect those resources to attempting to do what they can to protect their international students from deportation under the July Order in order to preserve those students’ many, varied, and invaluable contributions to their institutions. Galvan Decl. ¶ 26; Larson Decl. ¶ 30, 37–38; Gaines Decl. ¶¶ 20–24; Kalfayan Decl. ¶ 31. This costly reallocation of resources adds to the already daunting task of preparing large-scale academic institutions for an unprecedented term of uncertainty and experimentation.
The July Order also imposes direct costs of compliance on Plaintiffs. It requires schools that plan to offer only online classes for the fall 2020 term to submit an “operational change plan” by July 15—just nine days after the July Order was issued. Southwell Decl. Ex. C, at 2. Those schools that, like many of Plaintiffs, are offering in-person classes or a hybrid of in-person and remote classes have until just August 1 to submit their operational plans. Id. at 2–3. And the July Order further requires schools to issue a new Form I-20 for thousands of students by August
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4, 2020, an immensely burdensome task that not only ordinarily takes several months, Galvan Decl. ¶ 33; Larson Decl. ¶¶ 34–37; Gaines Decl. ¶¶ 24–25, but also is literally impossible for those schools that will not have even completed enrollment by that time, Gaines Decl. ¶ 25. The development of those plans for submission to ICE, particularly on such a truncated timeframe, is a costly and disruptive process that, once again, detracts from Plaintiffs’ core educational missions. Galvan Decl. ¶ 33; Larson Decl. ¶ 38.
And it is not just the Plaintiffs’ resources that are compromised, but also their ability to offer academic programming of their own choice to best meet their students’ needs. Plaintiffs have planned for and prepared to implement a wide variety of course offerings designed to maximize the educational experience for their students, even in these challenging times. Each Plaintiff is responding in its own way—some schools are operating mostly or entirely online, others are offering principally “hybrid” courses that are taught partially online and partially in person, and others are offering a mixed semester, with in-person classes ceasing after Thanksgiving break. Galvan Decl. ¶¶ 19–22; Larson Decl. ¶¶ 24–25; Gaines Decl. ¶ 16.
The July Order deprives schools of their ability to tailor their academic programming to the needs of their students. While each of Plaintiffs remains committed to offering all of their students a valuable and positive educational experience, the reality is that ensuring that all international students are enrolled in in-person courses impedes the fulfillment of that mission. Plaintiffs’ ability to offer in-person classes is constrained both by the relatively small number of facilities that can accommodate social distancing protocols, and the faculty that are available to teach in-person classes. And a faculty member or facility allocated to a course offering created to satisfy the July Order’s new requirement cannot be utilized for another in-person class. In this
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way, the July Order is forcing Plaintiffs to change their course offerings and ultimately places new limitations on the choices Plaintiffs’ students have in selecting their coursework.
b. F-1 students currently residing in the United States will be directly harmed in a variety of ways. Most critically, for those schools like Plaintiff Pomona College that have planned to offer only online instruction, unless they dramatically alter their plans, all of their F-1 students now face a choice: They can attempt to transfer to another school offering in-person courses, or they will be forced to leave the United States and attempt to continue their coursework from another country. Gaines Decl. ¶ 19.1
Yet even students of those Plaintiffs that currently plan to offer some in-person instruction to international students face paralyzing uncertainty. That is because the July Order warns, ominously, that “[i]f a school changes its operational stance mid-semester”—which is to say, if schools once again are forced to close their campuses and move all instruction online as they were in March—all of their F-1 students “must leave the country or . . . transfer to a school with in-person instruction.” Southwell Decl. Ex. C, at 3. Even if a mid-semester school transfer theoretically were possible (for a variety of reasons, it generally is not), it would be completely out of the realm of possibility in the event of another broad closure of campuses as occurred in March. The only option would be to leave the country.
The breadth of harms that would flow from such an abrupt exodus of F-1 students is difficult to overstate: F-1 students would be compelled immediately to uproot their academic and personal lives, and attempt to continue their studies from abroad, for some several time zones
1 Universities have standing to assert the “rights of the students, scholars, and faculty” affected by Executive action. See Washington v. Trump, 847 F.3d 1151, 1160 (9th Cir. 2017).
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away from their instructors, for others without reliable Internet access, for some in places experience civil unrest or violence or a COVID-19 outbreak worse even than that which has befallen the United States. Galvan Decl. ¶¶ 40, 42; Larson Decl. ¶¶ 46, 50; Gaines Decl. ¶¶ 30–32; Kalfayan Decl. ¶ 47. The harms from these situations range from the direct economic costs of having to break leases and relocate thousands of miles away, Galvan Decl. ¶¶ 34–35, 42; Larson Decl. ¶¶ 38, 50; Gaines Decl. ¶¶ 26, 32.d, 33, to interrupted academic research, to more poignant family traumas of pulling children out of school and attempting to find caretakers for family pets, see Cascante Decl.; Memiaghe Decl.; Yang Decl..
Whether it happens immediately because a Plaintiff offers only online courses, or it happens midway through the term after a school is forced to close its doors, the loss of international students deeply compromises Plaintiffs’ ability to fulfill their educational mission. Courts have long recognized that schools have a legitimate interest in encouraging the sharing of diverse viewpoints and cultures. See Grutter v. Bollinger, 539 U.S. 306, 328 (2003) (a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer”). International students bring tremendous value to the intellectual and intramural community at each of Plaintiffs, offering varied perspectives and interests. Galvan Decl. ¶¶ 28–30, 38– 39; Larson Decl. ¶¶ 31, 45; Gaines Decl. ¶ 21; Kalfayan Decl. ¶ 5, 29, 32. The effective expulsion of F-1 students from the United States would impair Plaintiffs’ ability to offer an environment where diverse viewpoints are shared, instead restricting the student body only to domestic students and those international students fortunate enough to be able to attend school courses online from their home countries despite the logistical challenges. Galvan Decl. ¶ 28. The departure of large numbers of international students would run counter to the core mission of many of Plaintiffs, who strive to provide a diverse and engaging learning environment for all students,
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and who depend on international students to enrich the experience of their peers. Galvan Decl. ¶¶ 28–29, 44–45, 47; Larson Decl. ¶ 31.
The July Order also poses a related and particular problem for those F-1 students at increased risk for severe illness from COVID-19. While Plaintiffs have carefully designed reopening plans that minimize health risks to the student population, no amount of precautions can completely eliminate the risk of contracting COVID-19. And that risk is more substantial for those individuals with certain medical conditions that may lead to a higher chance of severe illness due to COVID-19. See Coronavirus Disease 2019 (COVID-19); People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (June 25, 2020), https://bit.ly/3gO6spB. Those medical conditions range from kidney disease, to asthma, to high blood pressure, to pregnancy. See id. While Plaintiffs would otherwise be willing to accommodate F-1 students at higher risk of severe illness from COVID-19 through the provision of an online-only curriculum, they effectively are prohibited from doing so by the July Order, unnecessarily increasing the risk to those students with no apparent or stated purpose. Such students are put to the dilemma of either risking exposure to COVID-19 in in-person classes, or risking exposure to COVID-19 on an ICE-mandated international flight.
These harms are not hypothetical, and certainly not abstract to the very real students whose lives may be transformed by virtue of the July Order. The stories of just a tiny fraction of those affected students are set forth in the declarations, including:
 One University of Oregon student faces the prospect of returning to Indonesia, where they will lack access not only to reliable Internet, but even to clean tap water. Galvan Decl. ¶ 39.a.
 One Pomona College student is a citizen of a country other than her family’s current country of residence. Because her family’s country of residence has closed its borders to short-term visitors she would have no place to live if required to leave the United States. Gaines Decl. ¶ 33.b.
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 Another Pomona College student from an African nation would have to return to a country with no reliable Internet, and would potentially lose the significant financial aid she receives from the school. Gaines Decl. ¶ 33.a.
 One Oregon State University student came to the United States fleeing an abusive relationship in her home country, and fears for her life if forced to return home. Larson Decl. ¶ 51.a.
 Another Oregon State University student is in graduate school and, even if they could return home, would lack access to reliable Internet access and could not access resources—including frequent contact with their research advisor and specialty academic committee—needed to continue their education. Larson Decl. ¶ 51.g.
c. F-1 students currently residing outside of the United States and unable to return are harmed as well. These students face challenges different from their peers that remained in the United States. Even though most Plaintiffs are willing and able to offer at least some in-person courses, many F-1 students simply are unable to return to the United States. That may be for any number of reasons, including prohibitively expensive flights, travel restrictions, or simply a legitimate fear that international travel will jeopardize their health.
The fate of these students is unclear under the July Order. The July Order states that continuing F-1 students outside of the United States “whose schools of enrollment are only offering online classes, may remain in Active status in SEVIS if they are taking online courses and are able to meet the normal full course of study requirements or the requirements for a reduced course of study.” Southwell Decl. Ex. C, at 2. This suggests that F-1 students outside of the United States attending a school that offers only some online courses will not remain in Active status. But ICE’s “Frequently Asked Questions” regarding the July Order, released on July 7, states that “continuing F and M students may remain in Active SEVIS status while studying online, outside the United States.” Frequently Asked Questions for SEVP Stakeholders About Guidance for the Fall 2020 Semester, U.S. Immigration & Customs Enforcement 3 (July 7, 2020), https://bit.ly/3fkAIYN. The apparent disconnect between these two messages not only
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heightens the confusion surrounding the July Order, but further demonstrates the lack of deliberative or reasoned decision making by ICE.
Taking the July Order at its word (without reference to the seemingly contradictory July 7 guidance) that F-1 students abroad enrolled only in online courses at a school that offers some in-person instruction for stateside students will lose their F-1 Active status, two significant harms will flow from that policy. First, once students lose their F-1 status, it will be challenging for them to regain it. U.S. consular offices remain closed for routine visa appointments, and even when they reopen, the visa application process is time consuming, burdensome, and costly, particularly for those F-1 students who have to travel significant distances to consular offices. Galvan Decl. ¶ 41; Larson Decl. ¶ 47; Gaines Decl. ¶ 31. There is thus no certainty that these students will be able to reapply for and reenter the F-1 visa program once they are removed from Active status.
Second, certain post-graduate employment programs may become unavailable to those students who have a lapse in their F-1 status. F-1 students are eligible to participate in “practical training” programs, either during their course of study or immediately after completion. See 8 C.F.R. § 214.2(f)(10). These programs are available only to F-1 students who have “been lawfully enrolled on a full-time basis, in a Service-approved college, university, conservatory, or seminary for one full academic year.” Id. For “optional practical training”—or OPT— post-graduate participation is permitted only if the OPT is completed within a 14-month period (with some exceptions). See id. § 214.2(f)(10)(ii)(A)(3). The practical effect of all of this is that F-1 students who wish to participate in these programs must either be currently enrolled in a school pursuant to F-1 for at least one year, or must have recently completed a full course of study. An interruption in students’ F-1 status can temporarily disqualify students for participa-
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tion in the program, and may permanently disqualify them if they complete their course studies while not enrolled in the F-1 visa program. The July Order thus could actually F-1 students abroad of opportunities to undertake work opportunities in the United States relevant to their field of study.
* * * The import of the above is that ICE must, as a matter of fundamental administrative law, consider and weigh the relevant harms and costs arising from its decision to rescind the March Order. And ICE failed completely to do so. Nowhere in the July Order did ICE even acknowledge, much less analyze, the substantial harms that the July Order will cause. ICE did not address the fact that its onerous and unreasonable deadlines for schools to restructure their academic programs imposes direct compliance costs on Plaintiffs and those similarly situated to them. It did not acknowledge that schools, in designing their plans for the fall semester, relied on ICE’s statement that the March guidance of “flexibility” would remain in place “for the duration of the emergency.” Southwell Decl. Ex. B, at 1. Nor did ICE acknowledge the many harms its new policy portends for F-1 students. ICE’s “Frequently Asked Questions” released on July 7 suggests that F-1 students enrolled only in online classes simply “do not need to be present” in the United States. But ICE seems to have overlooked entirely that many of these students very much do “need” to take the classes best suited for their academic progress; “need” to not be several time zones away from their instructions; “need” not to break their lease obligations; “need” to keep their children in school; and “need” to keep their families together. ICE apparently considered none of that. That is not reasoned decision making, and it cannot sustain the agency action taken here. Plaintiffs are therefore likely to succeed on their claim that the July Order must be vacated under the APA.
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2. The July Order Offers No Reasoned Explanation At All Although an agency is free to change a preexisting policy, it must “display awareness that it is changing position” and “must show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). Agency action therefore cannot be sustained if “[t]here are no findings and no analysis . . . to justify the choice made,” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962), and vacatur is appropriate if “the agency’s explanation is, in effect, no explanation at all,” All. for Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105, 1114 (9th Cir. 2018); see also Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (vacatur appropriate where “an agency provides no explanation at all for a change in policy”). The entire “rationale” offered by the July Order is set forth in a single sentence in the introductory paragraph: “There will still be accommodations to provide flexibility to schools and nonimmigrant students but as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations.” July Order at 1. The July Order does not say what those “carefully balanced protections” are, and more critically, it does not explain why the fact that many schools now are attempting to reopen, mostly with hybrid plans, counsels in favor of abandoning ICE’s prior policy giving schools flexibility to meet the varying unprecedented scenarios posted by the pandemic. See Arrington v. Daniels, 516 F.3d 1106, 1114 (9th Cir. 2008) (vacating agency action where the agency “offered no explanation for why it exercised its discretion to select one [option] rather than the other”). Indeed, all of the proffered reasons for ICE’s prior policy of permitting F-1 students to maintain their visa status while taking a fully online curriculum apply today with at least as much force as they did in March. When ICE promulgated the March Order, it highlighted the need for the exemption in light of the “extraordinary nature of the COVID-19 emergency,” and advised Page 26 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

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that the exemption would remain “in effect for the duration of the emergency.” March Order at 1. President Trump declared a national emergency on March 13, 2020, see White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/3ffGlaK, and that declaration has never been rescinded or revised.
Meanwhile, the pandemic is far from over. There are now a total of 3,106,931 confirmed cases of COVID-19 in the United States, with approximately 60,000 new cases each day—far higher than the 267 new cases detected on March 13, 2020. See Coronavirus Disease 2019 (COVID-19), Cases in the US, Ctrs. for Disease Control & Prevention (last visited July 11, 2020), https://bit.ly/301213T. And there are currently approximately 800 new deaths each day. Id. This disturbing uptick cannot be attributed solely to increased testing—the percentage of positive tests has nearly doubled from a nadir of 4.3% in early June to 8.3%. See Rate of Positive Tests in the US and States Over Time, Johns Hopkins Univ. of Med. (last visited July 11, 2020), https://bit.ly/301h4uE. In short, things have gotten worse, not better, since ICE announced the exemption in the March Order.
While administrative agencies have latitude to determine the best response to changing circumstances, ICE was required to at least state its reasons for reversing its prior policy and explain how changed facts or circumstances justify the new approach. But the stubborn fact that the COVID-19 pandemic rages on and schools are doing their level-best to meet the challenge of safely educating students in this unprecedented environment demonstrates only the need for more flexibility, not less. The fact that some schools today are attempting to reopen amidst the pandemic hardly presents no rational justification for pulling the rug out from under hundreds of thousands of F-1 students and the schools that serve them. ICE was required to, at the very least,
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offer some reasoned explanation for its dramatic about face. It failed to do so, and for that reason
alone, Plaintiffs are likely to succeed on their claim that the July Order violates the APA and
must be vacated.2
B. The Proffered Reasons For The July Order Are Pretextual Even crediting ICE’s perfunctory justification for its action, the July Order is also defec-
tive under the APA because the proffered reasons for ICE’s actions do not reflect the agency’s
actual reasoning.
Effective judicial review of agency action is impossible unless the agency discloses the
basis for its action. See Burlington Truck Lines, 371 U.S. at 167–68. For that reason, agency
action may not properly rest on a “pretextual basis.” Dep’t of Commerce v. New York, 139 S. Ct.
2551, 2573 (2019). Thus, vacatur under the APA is appropriate where there is “an explanation
for agency action that is incongruent with what the record reveals about the agency’s priorities
and decisionmaking process.” Id. at 2575.
2 In a “Frequently Asked Questions” document published the day after the July Order, ICE opines that the July Order “minimiz[es] the risk of transmission of COVID-19 by not admitting students into the country who do not need to be present to attend classes in-person.” Frequently Asked Questions, supra. “[J]udicial review of agency action is limited to the grounds that the agency invoked when it took the action,” Dep’t of Homeland Sec., 140 S. Ct. at 1907–08 (quotation marks omitted), and so the agency cannot invoke this rationale to justify the July Order. In any event, the “Frequently Asked Questions” document suggests no reason to believe that F-1 students that have been in the United States since March present any enhanced “risk of transmission of COVID-19,” or that their removal somehow reduces the risk to others. To the extent ICE would limit this rationale to persons seeking to return to the United States, it suggests no reason to believe that F-1 students pose an enhanced risk vis-à-vis other travelers from the same country. If the United States is admitting travelers from Canada, it makes no sense to exclude Canadian students who have a fixed place of residence in the United States. And there is no indication ICE examined the many disadvantages to international students in compelling them to pursue their academic program from school. See supra.
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In the July Order, ICE indicated that the reopening of some schools necessitates the “resum[ption of] the carefully balanced protections implemented by federal regulations.” Southwell Decl. Ex. C, at 1. Whatever this opaque statement may mean, see supra, it plainly does not reflect the true rationale for the policy change: To encourage—or perhaps to coerce—schools into offering in-person classes in the fall, even against the advice of public health professionals and contrary to the months-long deliberative processes undertaken by individual schools to determine the best options for their communities.
The agency’s true intent was revealed by Acting Deputy Secretary of Homeland Security Ken Cuccinelli, who, when pressed by a reporter, seemed to acknowledge that the purpose of the policy was to “encourage schools to reopen.” John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will “Encourage Schools to Reopen”, The Hill (July 7, 2020), https://bit.ly/303vFG2. Specifically, he explained, “This is now setting the rules for one semester, which we’ll finalize later this month that will, again, encourage schools to reopen.” Id. This statement aligns with repeated calls by the President for schools to reopen in the fall, sometimes accompanied by threats to cut off federal funding. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (July 10, 2020, 7:41 AM) (“. . . Schools must be open in the Fall. If not open, why would the Federal Government give Funding? It won’t!!!”); Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM) (“SCHOOLS MUST OPEN IN THE FALL!!!”).
These statements explain why ICE’s contemporaneous explanation for its policy reversal is so lacking: The true motive behind ICE’s action is to strong-arm schools into opening prematurely in the fall so as to further ideological political interests. While political motives are not in and of themselves impermissible bases for agency action, see Dep’t of Commerce, 139 S. Ct. at
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2573, an agency may not disguise those motives under the guise of legitimate policy objectives, see id. at 2575–76. And such a rationale for upending the lives of F-1 students is both unlawful and dangerous: It is unlawful because ICE has no statutory authority or expertise to make nuanced determinations balancing public health against educational needs. Cf. Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 552 (D.C. Cir. 2015) (agencies must proceed cautiously when acting in an area where they have “no particular expertise”). And it is dangerous because it assumes that a fall reopening is an optimal policy for all schools, regardless of their particular circumstances or the current state of the pandemic in their geographical area. The President’s threat of withholding federal funds to coerce schools into opening, even against their better judgment, demonstrates the arbitrary and irrational basis for ICE’s action and underscores the pretextual nature of the July Order.
This Court should not permit ICE to threaten the academic future of thousands of international students and the academic strength and reputation of Plaintiffs if the agency is unable or unwilling even to openly state the true rationales for its change in course. The July Order is a dangerous effort to achieve political goals by bludgeoning schools into a course of action that may directly conflict with public health guidance and directives. Not only did ICE fail in its administrative law obligation to disclose the true purpose for its actions, but it also has greatly overstepped its own authority. The APA demands much more, and Plaintiffs are likely to prevail on this ground. II. Plaintiffs Will Be Irreparably Harmed Absent Emergency Relief
Plaintiffs will be irreparably harmed if ICE’s policy change takes effect. Harm is irreparable if “there is no adequate legal remedy, such as an award for damages.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1280 (9th Cir. 2020) (quotation marks omitted). While economic harm is generally not considered irreparable, “where parties cannot typically recover Page 30 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

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monetary damages flowing from their injury—as is often the case in APA cases—economic harm can be considered irreparable.” Id. “Intangible injuries may also qualify as irreparable harm, because such injuries generally lack an adequate remedy.” Id. A threat of irreparable harm is “sufficiently immediate to warrant preliminary injunctive relief if the plaintiff is likely to suffer irreparable harm before a decision on the merits can be rendered.” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quotation marks omitted).
ICE’s directive has thrown higher education institutions, including Plaintiffs, into chaos. Only weeks before the start of the fall semester, the July Order commands schools to deploy tremendous resources to redesign their fall semester programs, curricula, and support services, developed over countless hours and multiple months (in reliance on the former ICE rule), to comply with the new rule. Galvan Decl. ¶¶ 24–26; Larson Decl. ¶¶ 19, 30, 32; Kalfayan Decl. ¶¶ 28, 41, 51. Because schools must provide in-person classes to protect their F-1 students from deportation, they are constrained in their ability to design a curriculum of their choice that is designed to meet the academic needs of their students. Instead, they are being forced to make course decisions based not on students’ needs or in furtherance of the schools’ academic missions, but on creating in-person classes in numbers sufficient to satisfy the July Order. Galvan Decl. ¶¶ 26–27; Larson Decl. ¶ 32]. Conduct that requires an organization to divert resources in disservice to its core mission unquestionably “qualifies as sufficient irreparable harm.” Doe v. Trump, 418 F. Supp. 3d 573, 599 (D. Or. 2019); see also E. Bay Sanctuary Covenant, 950 F.3d at 1280 (holding significant changes to programs and concurrent loss of funding “[b]oth constitute irreparable injuries”); Cal. Trucking Ass’n v. Becerra, 433 F. Supp. 3d 1154, 1170 (S.D. Cal. 2020) (irreparable harm exists when plaintiffs “must significantly restructure their business model”).
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Complying with the Form I-20 (re)certification process alone will impose an immediate and irreparable administrative burden on Plaintiffs, requiring the schools to do in mere weeks what they are usually given months to do. Galvan Decl. ¶¶ 33–34; Larson Decl. ¶¶ 33–36; Kalfayan Decl. ¶¶ 34–35. This administrative burden is particularly harmful because school staff and resources already are strained responding to the COVID-19 pandemic, and complying with the new rule will prevent staff from being available to advise thousands of students and their families. Galvan Decl. ¶ 26; Larson Decl. ¶ 38; Kalfayan Decl. ¶¶ 38–39. ICE’s directive burdens schools and restricts their choice in how best to achieve their academic and institutional missions while maintaining the health and safety of students, faculty, staff, and the community. And that harm, once incurred, can never be remediated.
Plaintiffs’ F-1 students will also face irreparable harm if the July Order takes effect. Students compelled to return to their home countries will face enormous challenges in continuing their educations, whether due to inadequate or nonexistent Internet access, time zone differences that make it impossible for them to participate in class, or more basic concerns of physical safety. Galvan Decl. ¶¶ 35–37, 39, 40, 42; Larson Decl. ¶¶ 41, 45, 46, 50, 51; Gaines Decl. ¶¶ 26–34; Kalfayan Decl. ¶ 46. Students forced to leave the United States also will lose research, practical training, and experiential learning opportunities. Galvan Decl. ¶¶ 37–39; Larson Decl. ¶¶ 42, 44–45, 51; Gaines Decl. ¶¶ 27–29; Kalfayan Decl. ¶ 44. And, if the July Order is taken at face value, F-1 students that cannot return to the United States to attend schools that are offering in-person classes also stand to lose their Active F-1 status and the post-graduate opportunities that come with it. Galvan Decl. ¶ 38; Larson Decl. ¶ 43; Gaines Decl. ¶ 28; Kalfayan Decl. ¶ 44. Finally, at least some F-1 students in the United States will be forced to reconfigure their
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coursework to satisfy the July Order’s in-person requirement, resulting in delayed or diminished progress toward their degree. Larson Decl. ¶ 24; Zukoski Decl. ¶ 22.
The harm to the students harms Plaintiffs as well, by impairing their ability to recruit and enroll international students whose diverse perspectives are integral components of their institutions. Galvan Decl. ¶¶ 44–45, 47; Larson Decl. ¶¶ 31, 52; Gaines Decl. ¶¶ 21, 34; Kalfayan Decl. ¶ 51. Many Plaintiffs hold themselves out as offering an academic environment with an internationally diverse group of people. See, e.g., Who Is An International Student?, University of Southern California (last visited July 11, 2020), https://bit.ly/2BZyPSU (“The best thing about USC is the opportunity to meet, learn from and work with an internationally diverse group of people.”); Division of Equity and Inclusion: Campus Diversity, University of Oregon (last visited July 11, 2020), https://bit.ly/3055jmK; Why Choose OSU?, Oregon State University (last visited July 12, 2020), https://bit.ly/3ek9IaB. Agency action that impairs Plaintiffs’ abilities to offer an inclusive and diverse learning environment impairs their reputations and gives rise to irreparable harm. See Regents of Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 520 (9th Cir. 1984) (finding the “palpable diminution” in schools’ “national reputation” sufficient harm to support the issuance of a preliminary injunction).
In sum, ICE has disregarded the extensive planning schools have undertaken over the past few months and thrown the lives of tens of thousands of students into sudden disarray, just weeks before the beginning of the fall term. Plaintiffs must divert crucial resources to complying with the directive, and must redesign their fall curricula not in support of their educational and institutional missions, but rather to ensure their F-1 students have an opportunity to continue their education. Absent injunctive relief, the July Order will result in ongoing harms to Plain-
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tiffs’ institutional programs and missions and will cause severe personal hardship for their students. III. The Equities And Public Interest Favor Immediate Relief
The remaining equitable factors also favor granting the relief sought. “In weighing equities, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Doe, 418 F. Supp. 3d at 599 (quotation marks omitted). And when “the government is the defendant, generally the balancing of the equities and the public interests factors merge.” Id. “When the alleged action by the government violates federal law, the public interest factor generally weighs in favor of the plaintiff.” Id.
The “public interest is served by compliance with the APA” and “is served from the proper process itself.” E. Bay Sanctuary Covenant, 950 F.3d at 1280–81 (quotation marks omitted). The public is never benefitted when administrative agencies neglect their duty to engage in reasoned and transparent decision making. Moreover, as discussed above, Plaintiffs and their students will suffer irreparable injury should the July Order go into effect. Conversely, the government is not harmed by maintaining the policy it announced in March 2020, which it stated would remain “in effect for the duration of the emergency,” Southwell Decl. Ex. B, at 1. That emergency, as noted, is still officially ongoing. The public and the government have an interest in higher education institutions’ ability to provide the best possible educational experience to students, including international students, while taking the necessary precautions to protect the health and safety of students, faculty, staff, and the community during the COVID-19 pandemic.
Indeed, ICE recognized this interest in its March guidance when it changed the rule in light of the “extraordinary nature of the COVID-19 emergency.” Southwell Decl. Ex. B. The July Order, however, relies on a purported “need to resume the carefully balanced protections implemented by the federal regulations,” Southwell Decl. Ex. C, at 1, without acknowledging Page 34 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

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that the COVID-19 public health emergency is not only ongoing, but in many places worsening. Plaintiffs’ goal is to welcome all students back to campus for in-person learning as soon as they can responsibly do so. But after four months of consultation with public health experts and internal deliberation, and relying on ICE’s prior guidance, Plaintiffs determined it is not yet safe to fully reopen their campuses and resume all classes in person. The harm to Plaintiffs and their students from denying injunctive relief pending consideration of the legality of ICE’s directive far outweighs the government’s minor interest in maintaining the “carefully balanced protections” it previously recognized were outweighed by the public health risks posed by the ongoing pandemic.
Finally, denying an injunction would not be in the public interest because the July Order arbitrarily and capriciously hinders schools’ efforts to reduce the chance of community spread of COVID-19. Plaintiffs’ institutions are integral parts of their communities, and an outbreak on campus poses a threat to the health and safety of everyone in those communities. Public interest favors a carefully planned and considered approach to the fall term, rather than a forced reopening.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion for Temporary Restraining Order and Preliminary Injunction, enjoining the enforcement of the July Order pending the final disposition of this litigation.
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DATED: July 13, 2020

/s/ Kevin S. Reed

GIBSON, DUNN & CRUTCHER LLP Debra Wong Yang (pro hac vice forthcoming) dwongyang@gibsondunn.com Ethan Dettmer (pro hac vice forthcoming)
edettmer@gibsondunn.com Theane Evangelis (pro hac vice forthcoming)
tevangelis@gibsondunn.com Chelsea Mae Thomas (pro hac vice forthcoming)
cthomas@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Phone: (213) 229-7000 Theodore B. Olson (pro hac vice forthcoming)
tolson@gibsondunn.com Matthew D. McGill (pro hac vice forthcoming)
mmcgill@gibsondunn.com Joshua Wesneski (pro hac vice forthcoming)
jwesneski@gibsondunn.com 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 Phone: (202) 955-8500 Alexander H. Southwell (pro hac vice forthcoming) asouthwell@gibsondunn.com Oliver Fong (pro hac vice forthcoming)
ofong@gibsondunn.com 200 Park Avenue New York, NY 10166-0193 Phone: (212) 351-4000
Attorneys for Plaintiffs

Kevin S. Reed (OBN #160574) ksreed@uoregon.edu Douglas Y.S. Park (OBN #980904) dougpark@uoregon.edu Jessica Price (OBN #182104) (LR 83-4 pending) jgprice@uoregon.edu University of Oregon Office of General Counsel 1226 University of Oregon Eugene, OR 97403 Phone: (541) 346-3082 Rebecca Gose (OBN #105712) rebecca.gose@oregonstate.edu Julie Penry (OBN #053440) julie.penry@oregonstate.edu Whitney Hill (OBN 093849) whitney.hill@oregonstate.edu (Special Admission as Government Attorneys pending) Oregon State University Office of the General Counsel 630 Kerr Admin Bldg Corvallis, OR 97331 Phone: (541) 737-2474 Beong-Soo Kim (Cal. BN 212912) (pro hac vice forthcoming) bkim@usc.edu Laurie Barnes (Cal. BN 229038) (pro hac vice forthcoming) lbarnes@usc.edu Andreas Meyer (Cal. BN 267151) (pro hac vice forthcoming) andreasm@usc.edu University of Southern California Office of the General Counsel 3551 Trousdale Parkway, ADM 352 Los Angeles, CA 90089-5013

Attorneys for Plaintiffs

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Certificate of Compliance
This brief complies with the applicable word-count limitation under Local Rule 7-2(b) because it contains fewer than 35 pages, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, and any certificates of counsel.

DATED: July 13, 2020

/s Kevin S. Reed Kevin S. Reed (OBN #160574)
Attorney for Plaintiffs

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Certificate of Service
I hereby certify that this document has been filed through the Court’s ECF system and
will be sent electronically to the registered participants. This document is being sent by express
mail to the Defendants at the addresses below and by email.
United States Department of Homeland Security 2707 Martin Luther King Jr. Ave., S.E. Washington, D.C. 20528
United States Immigration and Customs Enforcement 500 12th St., S.W. Washington, D.C. 20536
Chad F. Wolf Acting Secretary of Homeland Security United States Department of Homeland Security 2707 Martin Luther King Jr. Ave., S.E. Washington, D.C. 20528
Matthew Albence Acting Director of United States Immigration and Customs Enforcement United States Immigration and Customs Enforcement 500 12th St., S.W. Washington, D.C. 20536

DATED: July 13, 2020

/s Kevin S. Reed Kevin S. Reed (OBN #160574)
Attorney for Plaintiffs

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 Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 1 of 38

Kevin S. Reed (OBN #160574)

Rebecca Gose (OBN #105712)

ksreed@uoregon.edu

rebecca.gose@oregonstate.edu

Douglas Y.S. Park (OBN #980904)

Julie Penry (OBN #053440)

dougpark@uoregon.edu

julie.penry@oregonstate.edu

Jessica Price (OBN #182104) (LR 83-4 pending) Whitney Hill (OBN #093849)

jgprice@uoregon.edu

whitney.hill@oregonstate.edu

University of Oregon

(Special Admission as Government Attorneys

Office of General Counsel

pending)

1226 University of Oregon

Oregon State University

Eugene, OR 97403

Office of the General Counsel

Phone: (541) 346-3082

630 Kerr Admin Bldg

Corvallis, OR 97331

GIBSON, DUNN & CRUTCHER LLP

Phone: (541) 737-2474

Theodore B. Olson (pro hac vice forthcoming) tolson@gibsondunn.com Matthew D. McGill (pro hac vice forthcoming) mmcgill@gibsondunn.com Joshua Wesneski (pro hac vice forthcoming) jwesneski@gibsondunn.com 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 Phone: (202) 955-8500
Alexander H. Southwell (pro hac vice forthcoming) asouthwell@gibsondunn.com Oliver Fong (pro hac vice forthcoming) ofong@gibsondunn.com 200 Park Avenue New York, NY 10166-0193 Phone: (212) 351-4000

GIBSON, DUNN & CRUTCHER LLP
Debra Wong Yang (pro hac vice forthcoming) dwongyang@gibsondunn.com Ethan Dettmer (pro hac vice forthcoming) edettmer@gibsondunn.com Theane Evangelis (pro hac vice forthcoming) tevangelis@gibsondunn.com Chelsea Mae Thomas (pro hac vice forthcoming) cthomas@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Phone: (213) 229-7000
Attorneys for Plaintiffs

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

UNIVERSITY OF OREGON; OREGON STATE UNIVERSITY; UNIVERSITY OF SOUTHERN CALIFORNIA; ARIZONA STATE UNIVERSITY; CALIFORNIA INSTITUTE OF TECHNOLOGY; CHAPMAN UNIVERSITY; CLAREMONT MCKENNA COLLEGE; NORTHERN ARIZONA UNIVERSITY; PITZER

Case No. 6:20-cv-01127-MK
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
REQUEST FOR EXPEDITED HEARING

Plaintiffs’ Motion for Summary Judgment

Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 2 of 38

COLLEGE; POMONA COLLEGE; PRESIDENT AND BOARD OF TRUSTEES OF SANTA CLARA COLLEGE; SCRIPPS COLLEGE; SEATTLE UNIVERSITY; STANFORD UNIVERSITY; SAINT MARY’S COLLEGE OF CALIFORNIA; UNIVERSITY OF ARIZONA; UNIVERSITY OF THE PACIFIC; UNIVERSITY OF SAN DIEGO; UNIVERSITY OF SAN FRANCISCO; and UNIVERSITY OF UTAH,
Plaintiffs, v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.

REQUEST FOR ORAL ARGUMENT

Plaintiffs’ Motion for Summary Judgment

Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 3 of 38
TABLE OF CONTENTS LR 7-1(A) CONFERRAL CERTIFICATION............................................................................... 1 MOTION ……............................................................................................................................... 1 INTRODUCTION ......................................................................................................................... 2 BACKGROUND ........................................................................................................................... 6
I.The F-1 Visa Program ..................................................................................................... 6 II. Initial Response to COVID-19............................................................................... 8
A. The March Order........................................................................................ 9 B. Plaintiffs’ COVID-19 Response .............................................................. 10 III. The July Order And Its Effects ............................................................................ 12 A. ICE Reverses Course ............................................................................... 12 B. The Fallout From ICE’s Reversal ............................................................ 13 LEGAL STANDARD.................................................................................................................. 14 ARGUMENT .............................................................................................................................. 14 I. The July Order Is Final Agency Action ............................................................... 15 II. The July Order Is Not The Product Of Reasoned Decision Making ................... 15 A. ICE Failed To Consider The Harms Arising Out Of The July Order ...... 15 B. The July Order Offers No Reasoned Explanation At All ........................ 25 III. The Proffered Reasons For The July Order Are Pretextual ................................. 27 CONCLUSION............................................................................................................................ 29
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TABLE OF AUTHORITIES
Page(s)
Cases Arrington v. Daniels,
516 F.3d 1106 (9th Cir. 2008) .................................................................................................25
Bennett v. Spear, 520 U.S. 154 (1997).................................................................................................................15
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962)...........................................................................................................25, 28
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) .......................................................................................................28, 29
Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) .......................................................................................................16, 27
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) .............................................................................................................15
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).................................................................................................................25
Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016) ...............................................................................................................2
Grutter v. Bollinger, 539 U.S. 306 (2003).................................................................................................................20
Michigan v. EPA, 135 S. Ct. 2699 (2015) .............................................................................................................15
Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) ...................................................................................................25
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)...................................................................................................................15
Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518 (D.C. Cir. 2015) .................................................................................................29
Sackett v. EPA, 566 U.S. 120 (2012).................................................................................................................15
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Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 (1996).................................................................................................................16
Statutes
5 U.S.C. § 706(2)(A)......................................................................................................................14
8 U.S.C. § 1101(a)(15)(F)(i) ............................................................................................................2
Other Authorities
ASU Is the Top Public University of Choice for International Students, Ariz. State Univ. (Nov. 13, 2018), https://bit.ly/2CsTEGj ..........................................................................8
Coronavirus Disease 2019 (COVID-19), Cases in the US, Ctrs. For Disease Control & Prevention (last visited July 11, 2020), https://bit.ly/301213T ..............................26
Coronavirus Disease 2019 (COVID-19), People With Certain Medical Conditions, Ctrs. for Disease Control & Prevention (June 25, 2020), https://bit.ly/3gO6spB ..............................................................................................................21
Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Cases in the US (last visited July 12, 2020), https://bit.ly/2SyyE6k .........................................9
Department of Homeland Security, Financial Ability, Study in the States, https://bit.ly/2Cv4cod.................................................................................................................7
Department of Homeland Security, Maintaining Status, Study in the States, https://bit.ly/32mi7bt..............................................................................................................7, 8
Frequently Asked Questions for SEVP Stakeholders About Guidance for the Fall 2020 Semester, U.S. Immigration & Customs Enforcement (July 7, 2020), https://bit.ly/3fkAIYN..................................................................................................22, 23, 27
John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will “Encourage Schools to Reopen”, The Hill (July 7, 2020) ..........................1, 3, 6, 8
President Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/3ffGlaK ....................................................................................................26
Rate of Positive Tests in the US and States Over Time, Johns Hopkins Univ. of Med. (last visited July 11, 2020), https://bit.ly/301h4uE.........................................................26
U.S. Dep't of State, Student Visa, Travel.State.Gov, https://bit.ly/2ZiwaN0 ..............................6, 7
U.S. Immigration and Customs Enforcement, SEVP Overview, Student and Exchange Visitor Program, https://bit.ly/2Wbpdf0 ...................................................................7
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U.S. Immigration and Customs Enforcement, Student Process Steps: How to Navigate the U.S. Immigration System, Student and Exchange Visitor Program, https://bit.ly/329dYHz................................................................................................7
U.S. Dep’t of State, COVID-19 Traveler Information (last visited July 12, 2020), https://bit.ly/2ZkALy9 ...............................................................................................................9
White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/35x86aT .................................................................................................................9
Regulations 8 C.F.R. § 214.2(f)(6)(i)...................................................................................................................7 8 C.F.R. § 214.2(f)(6)(i)(G) .........................................................................................................2, 8 8 C.F.R. § 214.2(f)(10) ..................................................................................................................23 8 C.F.R. § 214.2(f)(10)(ii)(A)(3) ...................................................................................................24
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LR 7-1(A) CONFERRAL CERTIFICATION In compliance with Local Rule 7-1(a), undersigned counsel have made reasonable efforts to confer with defendants to resolve the dispute presented in this motion but have been unable to do so.
MOTION Plaintiffs are a diverse coalition of 20 institutions of higher education located in Oregon, Arizona, California, Utah, and Washington. Plaintiffs include both public and private post-secondary-education schools ranging from large research institutions to small liberal arts colleges. One thing all Plaintiffs have in common is that they have substantial numbers of international students who are vital to the fabric of their institutions. Collectively, Plaintiffs have over 50,000 enrolled international students. Plaintiffs file this combined motion for summary judgment that finds unlawful an order of July 6, 2020 issued by U.S. Immigration and Customs Enforcement (“ICE”) through the Student and Exchange Visitor Program (“SEVP”) that rescinds guidance ICE issued on March 9, 2020 and March 13, 2020 and requires international students with F-1 status in the United States to attend in-person classes in order to retain their “Active” status (the “July Order”). In a nationally televised interview, Acting Deputy Secretary of Homeland Security Ken Cuccinelli trumpeted that the July Order would “encourage schools to reopen.” John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will “Encourage Schools to Reopen”, The Hill (July 7, 2020), https://bit.ly/303vFG2. Because the July Order violates the Administrative Procedure Act (“APA”), Plaintiffs respectfully request that the Court grant their Motion for Summary Judgment.
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INTRODUCTION Plaintiffs attract students from around the world, from nearly every country on the planet. These international students are integral parts of Plaintiffs’ institutions. They include brilliant research scientists, engaging teachers, world-class athletes, and countless students who each contributes a unique perspective in their academic and local community—a perspective that the Supreme Court has recognized as a critically important component in a modern education that “promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2210 (2016) (quotation marks omitted). Indeed, for many of Plaintiffs’ American students, their international classmates present their first opportunity to meaningfully connect with other cultures. Enrollment of international students accordingly is critical to the fulfillment of Plaintiffs’ educational missions. For decades, the United States has welcomed international students through its F-1 visa program, under which international students may enter the United States on a nonimmigrant basis and remain here so long as they are engaged in a “full course of study.” 8 U.S.C. § 1101(a)(15)(F)(i). In 2002, as online degree programs became more widely available, ICE’s predecessor agency issued a regulation interpreting a “full course of study” to require the student to attend most classes in person; students enrolled in online degree programs were not eligible for F-1 visas. 8 C.F.R. § 214.2(f)(6)(i)(G). The COVID-19 pandemic strained that regulatory framework as colleges and universities across the country were forced to close their campuses mid-semester and shift their instruction entirely to online platforms to protect the health and safety of their campus communities. To its credit, ICE responded to the public health emergency with flexibility, issuing guidance on March 13 providing that F-1 students could maintain their Active status while attending classes online. This allowed international students to continue their education either from the United States or Page 2 Plaintiffs’ Motion for Summary Judgment

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from their home countries. The March 13 guidance recognized “the extraordinary nature of the COVID-19 emergency” and, critically for schools needing to design new educational environments for the fall semester, stated this accommodation would remain “in effect for the duration of the emergency.” Southwell Decl. Ex. B, at 1.
In the ensuing months, Plaintiffs have worked tirelessly to develop their plans for the fall semester. Relying on ICE’s March guidance that it would remain “flexible with temporary adaptations” as schools “address the significant public health concerns associated with the COVID-19 crisis,” Southwell Decl. Ex. B, at 1, many are preparing a “hybrid” approach in which institutions will offer various combinations of in-person and online instruction, depending on the state of the pandemic in the fall. Others, however, have concluded they cannot now safely reopen their campuses given their locations and resources, and accordingly will be offering instruction only online in the fall semester. Others are continuing to monitor the rapidly evolving public health situation before deciding on a plan.
The Department of Homeland Security and ICE apparently disapprove of this state of affairs and determined that Plaintiffs and other colleges and universities were in need of further “encourage[ment] . . . to reopen.” Bowden, supra. On July 6, with the COVID-19 pandemic raging through Arizona, California, and other western states, ICE issued the July Order, rescinding the March guidance and dictating instead that “[s]tudents attending schools operating entirely online may not take a full online course load and remain in the United States.” Southwell Decl. Ex. C, at 1. Students attending schools utilizing a “hybrid model” also may not take “an entirely online course load for the fall 2020 semester” and remain in the United States. Id.
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As for the many F-1 students who, amidst the pandemic, returned to their home countries, the July Order said that they could continue their education through online classes and maintain their F-1 “Active status,” but only if online courses are “the only choice offered by the school.” Southwell Decl. Ex. C, at 2. The July Order thus seems to say that if an F-1 student now abroad is enrolled at a school with a hybrid program, she can maintain Active F-1 status only if she returns to the United States and takes in-person classes—even if travel to the United States is (as it is for many) impermissible (because of travel bans), infeasible (because of lack of commercial flights), or inadvisable (because a deadly pandemic currently is gripping much of the United States).
Plaintiffs are scrambling to respond to the July Order. Those schools intending to offer instruction only online in the fall were given just nine days to draft and submit an operational plan to ICE, with schools committing to a hybrid or full reopening plan afforded an additional two weeks. Meanwhile, Plaintiffs must begin the enormously burdensome process of reissuing Forms I-20 to each of the thousands of international students that attend their schools—a task that is flatly impossible for those schools that have not yet completed enrollment for the fall semester.
But ICE’s new rule cuts even more deeply into Plaintiffs’ educational prerogatives and core missions. In order to protect their international students from imminent deportation, Plaintiffs are racing to reconfigure their carefully crafted plans for the fall semester to create additional in-person classes for no reason other than to ensure that each F-1 student can remain in compliance with the July Order and still make meaningful academic progress. The July Order thus not only requires Plaintiffs to rearrange their fall course offerings, teaching schedules, room
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locations, student accommodations, and facilities management, but by dictating changes to Plaintiffs’ course offerings, it is tampering directly with Plaintiffs’ educational missions.
The situation for Plaintiffs’ international students is even more dire. For those enrolled in schools with “hybrid” reopening plans, they now must realign their course work to take in-person classes that may have no relationship to their academic major or course of study. But the situation is much worse for those students who attend schools offering only online courses for the fall and cannot find alternative accommodations: Those students “must depart the country.” Southwell Decl. Ex. C, at 1. Some will return to countries several time zones away, or with inadequate Internet connectivity, or both. The unluckiest of those students will be forced to return to a country affected by civil violence, unrest, or a COVID-19 outbreak even worse than in the United States. Some have no place to go at all.
F-1 students that returned to their home country during the pandemic also face lifealtering uncertainty. Although many of them may not be able to return to the United States because of travel restrictions, the July Order senselessly seems to mandate that if their school is offering any in-person instruction, and they do not return, their F-1 Active status will lapse. Such a lapse imposes harsh consequences on those students, including the possibility of losing post-graduate job opportunities, or even (if they cannot re-enter the F-1 program) the opportunity to graduate.
One might have expected that before scuttling the reopening plans of numerous colleges and universities and plunging the lives of countless international students into desperate uncertainty or worse, ICE would have carefully examined the advantages and disadvantages of its action, acknowledged the hardships imposed by its actions, and provided a reasoned explanation of how the benefits of the new policy justify the departure from past practice. But
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ICE did nothing of the sort. To explain its rescission of its March guidance at a moment when “the significant public health concerns associated with the COVID-19 crisis,” Southwell Decl. Ex. A, at 1, are at least as salient as they were in March, the July Order says only this: “as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations,” Southwell Decl. Ex. C, at 1.
That does not even remotely approach the reasoned explanation that the Administrative Procedure Act (“APA”) demands. It is a fundamental rule of administrative law that agencies must consider the consequences of their actions—both positive and negative. ICE utterly failed to do so. Indeed, the July Order contains no indication even of awareness of the manifold costs and burdens imposed by its abrupt change in course, let alone the careful weighing of those costs against the putative benefits of its new policy. Instead, ICE has offered only a blithe reference to enforcement of pre-COVID-19 regulations that ICE itself had recognized, in March, needed to be waived in the face of the pandemic.
In any event, Acting Deputy Secretary Cuccinelli has revealed that the true purpose of the July Order’s new mandates—issued precisely when many schools were finalizing their plans for the fall semester—is to “encourage schools to reopen.” Bowden, supra (emphasis added). But that objective is light years beyond the statutory authority of ICE, and even further from its area of expertise. It is an entirely inappropriate basis for ICE action, and demonstrates clearly that the July Order must be set aside. The July Order clearly violates the APA, and this Court should grant Plaintiffs’ Motion for Summary Judgment.

I. The F-1 Visa Program

BACKGROUND

Citizens of foreign countries who wish to enter the United States to attend school must

obtain a nonimmigrant F student visa. See U.S. Department of State, Student Visa,

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Travel.State.Gov, https://bit.ly/2ZiwaN0. First, the student must apply and be accepted to a school certified by the SEVP, which is the Department of Homeland Security program that administers the Student and Exchange Visitor Information System (“SEVIS”) and “provides approval and oversight to schools authorized to enroll F . . . nonimmigrant students.” U.S. Immigration and Customs Enforcement, SEVP Overview, Student and Exchange Visitor Program (Feb. 6, 2020), https://bit.ly/2Wbpdf0. “F-1” students are those international students enrolling in elementary, secondary, or post-secondary academic institutions. U.S. Immigration and Customs Enforcement, Student Process Steps: How to Navigate the U.S. Immigration System, Student and Exchange Visitor Program (May 14, 2019), https://bit.ly/329dYHz.
Once a student decides which school to attend, they must complete a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.” Student Visa, supra. The Form I-20 “is a paper record” of the information in the SEVIS database and includes evidence of the student’s financial ability to live and study in the United States. Student Process Steps, supra; Department of Homeland Security, Financial Ability, Study in the States, https://bit.ly/2Cv4cod. Once the Form I-20 is complete, the student must pay the I-901 SEVIS fee and apply for and receive a visa. Student Visa, supra.
Once at a school in the United States, students with F-1 status must maintain their status by taking and passing a full course of study. Department of Homeland Security, Maintaining Status, Study in the States, https://bit.ly/32mi7bt. For undergraduates, this typically means taking “at least 12 credit hours per term,” while students in post-graduate programs “must take a full course of study as certified by the institution.” Id.; see also 8 C.F.R. § 214.2(f)(6)(i). Ordinarily, “no more than the equivalent of one class or three credits per . . . term . . . may be counted toward the full course of study requirement if the class is taken on-line or through
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distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class.” 8 C.F.R. § 214.2(f)(6)(i)(G). Students with F-1 status are also eligible for optional practical training, a “form of temporary employment that directly relates to [their] program of study,” and curricular practical training, employment that is “an integral part of an established curriculum” that directly relates to students’ major areas of study. Maintaining Status, supra.
International students attending school through the F-1 program make up a significant part of the population of Plaintiffs’ student body. Plaintiff University of Southern California (“USC”), for example, welcomed over 12,000 international students in the fall 2019 term, over 25% of its total enrollment. Zukoski Decl. ¶ 7. In 2018, Plaintiff Arizona State University had over 13,400 international students from 136 countries. See ASU Is the Top Public University of Choice for International Students, Ariz. State Univ. (Nov. 13, 2018), https://bit.ly/2CsTEGj. Plaintiff The University of Oregon’s student body typically consists of 11–12% international students, Plaintiff Oregon State University’s student body consisted of nearly 11% international students in the last Spring term, and a combined over 4,500 Oregon and Oregon State students currently hold F-1 status. Galvan ¶ 5; Larson Decl. ¶ 11. Plaintiff Stanford University’s international students make up 34% of its graduate students and 11% of its undergraduate students. Kalfayan Decl. ¶ 6. And these students are vital contributors to the success of the schools—these students bring intellectual and cultural diversity, engage in cutting-edge research programs, and participate in athletic programs as well. Galvan Decl. ¶¶ 28–31; Larson Decl. ¶ 31; Gaines Decl. ¶¶ 21, 27; Zukoski Decl. ¶ 30; Kalfayan Decl. ¶ 29. II. Initial Response to COVID-19
COVID-19 is a life-threatening and readily transmitted disease caused by the novel coronavirus, which has posed an increasing and ever-present danger in the United States since Page 8 Plaintiffs’ Motion for Summary Judgment

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the first case was confirmed in Washington state in January 2020. The disease spread rapidly from coast to coast, and on March 13, 2020, President Trump declared the spread of COVID-19 a national emergency. White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/35x86aT. The pandemic has interfered with the normal operations of businesses, educational institutions, and nearly all aspects of daily life. States and cities across the country have, and in some cases remain, locked down. Businesses and courthouses have closed. International and domestic travel is restricted, and the State Department has urged “American students overseas” to “return to the United States as soon as possible” because of “unpredictable circumstances” and “[in]adequate health care” abroad. U.S. Dep’t of State, COVID-19 Traveler Information (Apr. 7, 2020), https://bit.ly/2ZkALy9. The pandemic has only worsened since the President declared a national emergency: The number of confirmed cases and deaths in the United States from COVID-19 have grown exponentially, from 1,600 cases and 46 deaths in March to 3.1 million cases and 133,000 deaths on July 12. Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Cases in the US (last visited July 12, 2020), https://bit.ly/2SyyE6k.
A. The March Order In the wake of the COVID-19 outbreak, the federal government recognized that many schools could reduce their students’ risk of contracting COVID-19 by teaching students remotely. On March 9, 2020, the SEVP division of ICE issued a guidance document acknowledging that “schools may need to adapt their procedures and policies to address the significant public health concerns associated with the COVID-19 crisis.” Southwell Decl. Ex. A (the “March Order”). ICE stated that it “intend[ed] to be flexible with temporary adaptations” because the “COVID-19 crisis is fluid and rapidly changing.” Id. In particular, ICE Page 9 Plaintiffs’ Motion for Summary Judgment

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“recognize[d] that schools are updating their emergency operations plans to minimize the potential impact of COVID-19 on the school,” including by “provid[ing] online instruction.” Id. at 3.
Four days later, ICE issued another guidance document to address the status of students whose schools “stop[ped] in-person classes” but would “offer[ ] online instructions.” Southwell Decl. Ex. B. “Given the extraordinary nature of the COVID-19 emergency,” ICE exempted F-1 students from the rule that they must attend most classes in person. Id. In other words, F-1 students could remain in the United States and retain their F-1 status, even though virtually all schools had transitioned to a purely remote curriculum for the duration of the Spring semester. Sensibly, ICE assured this exemption would remain “in effect for the duration of the emergency.” Id.
B. Plaintiffs’ COVID-19 Response Meanwhile, Plaintiffs sprang into action as well. Several Plaintiffs organized emergency response teams to monitor the pandemic and make quick decisions about how best to protect students. Zukoski Decl. ¶ 11; Kalfayan Decl. ¶ 12. These teams sought input from public health leaders, conducted surveys, organized town halls and small group discussions, and held regular meetings to respond to the rapidly evolving situation. Zukoski Decl. ¶ 13; Kalfayan Decl. ¶ 14. These teams also collaborated with the various academic departments, laboratories, and other facilities involved in providing educational instruction to Plaintiffs’ students. Zukoski Decl. ¶ 16; Kalfayan Decl. ¶ 14. In or around the middle of March, Plaintiffs began to announce they would be suspending in-person instruction, at least temporarily. Zukoski Decl. ¶ 19; Larson Decl. ¶ 21; Kalfayan Decl. ¶ 17. Schools in California and Oregon were thereafter ordered closed by order of state and local authorities, dictating that all instruction for the remainder of the spring term be Page 10 Plaintiffs’ Motion for Summary Judgment

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conducted online. Zukoski Decl. ¶ 20; Kalfayan Decl. ¶ 19.
After addressing the initial crisis and the spring term, Plaintiffs turned their attention to
preparations for the fall. Planning for the fall, particularly in light of the changing
circumstances, involved significant resources and deliberation. Galvan Decl. ¶¶ 8–13, 19–22;
Larson Decl. ¶¶ 13–18, 21–23, 26–27; Zukoski Decl. ¶ 21; Kalfayan Decl. ¶¶ 12–16, 28. Over
the past several weeks, Plaintiffs and other colleges and universities have begun to roll out their
plans for the fall. Tailoring their plans to the particular needs of their students, faculty, and staff,
and their campus environments, Plaintiffs have taken a variety of approaches as they invite
students to return to campus:
• The University of Oregon announced its plan to conduct classes with fewer than fifty students, and conduct classes with more than fifty people either remotely or with only small-group discussion in person, with in-person classes ceasing after the Thanksgiving break (Galvan Decl. ¶ 21);
• Oregon State University announced its plan to offer at least 50% of its courses for remote instruction, providing in-person instruction only in classrooms with double capacity for class enrollment, and with in-person classes likely ceasing after the Thanksgiving break (Larson Decl. ¶¶ 24–25);
• USC announced its plan to offer approximately 10–20% of its classes in person, principally those involving hands-on work (Zukoski Decl. ¶ 22);
• Stanford University announced its plan to invite only half of its undergraduate students back (divided by class year) during each of its four academic quarters, although it will not compel any of its students to return if they elect not to (Kalfyan Decl. ¶¶ 21–22).
Because in-person course offerings are limited under these hybrid approaches, many students are
expected to take a fully remote or online schedule of classes in order to make sufficient academic
progress in their chosen field of study. Larson Decl. ¶ 24; Zukoski Decl. ¶ 22.
Other Plaintiffs, however, made the difficult decision not to invite students back to
campus. For example, on July 8, 2020, Plaintiff Pomona College announced in a letter to its
community that in light of the severe restrictions that would have to be implemented and the
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ongoing public health crisis, its fall curriculum would be offered entirely online. Gaines Decl. ¶ 16. III. The July Order And Its Effects
A. ICE Reverses Course With no prior notice, on July 6, 2020, ICE abruptly rescinded its March guidance. ICE now has directed that “[s]tudents attending schools operating entirely online may not take a full online course load and remain in the United States.” Southwell Decl. Ex. C, at 1. Students “currently in the United States enrolled in such programs must depart the country or take other measures” to maintain their F-1 status, or else “potentially face immigration consequences” such as “the initiation of removal proceedings.” Id. Students attending schools adopting a “mixture of online and in person classes,” meanwhile, also cannot “tak[e] an entirely online course load for the fall 2020 semester.” Id. And “[i]f a school changes its operational stance mid-semester” and “switches to only online classes” (perhaps because of a government-ordered closure of campus), F-1 students “must leave the country or take alternative steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction.” Id. at 2. The July Order does not provide any insight as to how a student might possibly transfer to a new school mid-semester in the midst of a pandemic. ICE also issued directives to schools. Schools whose classes would be entirely online in the fall “must complete [and submit] an operational change plan” by July 15, 2020—nine days after ICE’s announcement. Southwell Decl. Ex. C, at 2. Those schools that propose to provide a mix of online and in-person classes must update and submit “operations plans by August 1, 2020.” Id. at 2–3. Moreover, ICE directed schools to update and reissue a new Form I-20—the certificate of eligibility for nonimmigrant student status—for each of their thousands of F-1 international students by August 4, 2020. Id. at 2. Page 12 Plaintiffs’ Motion for Summary Judgment

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ICE offered only a single sentence to explain its change in policy: “There will still be accommodations to provide flexibility to schools and nonimmigrant students but as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations.” Southwell Decl. Ex. C, at 1. The July Order includes no other explanation for the policy change, and no discussion whatsoever concerning the effects of the new policy on Plaintiffs or their students.
B. The Fallout From ICE’s Reversal The July Order immediately imposed severe new burdens on Plaintiffs—institutions already deeply stressed by the pandemic. For starters, because of the Order’s new requirement that F-1 students remaining in the United States attend at least some in-person courses, Plaintiffs have had to divert resources to ensure that enough in-person courses will be offered for all F-1 students, lest those students be deported. Galvan Decl. ¶ 26; Larson Decl. ¶ 30; Gaines Decl. ¶¶ 20, 22; Zukoski Decl. ¶ 29; Kalfayan Decl. ¶¶ 30, 33. The July Order also imposed immediate and direct compliance costs on Plaintiffs. Plaintiffs, like Pomona College, that initially planned to conduct only online courses in the fall must, if they adhere to that plan, file an “operational change plan” by July 15. Southwell Decl. Ex. C, at 2. Other schools have until just August 1 to do so. Id. at 2–3. And all schools offering courses to F-1 students are required to issue a new Form I-20 for thousands of international students by August 4, 2020. F-1 students, of course, also face direct consequences from the July Order. For those attending schools that plan to offer only online instruction in the fall, these students must either depart the United States, or attempt to transfer to another school just a few weeks before the term begins. Those forced to return to their home countries face a variety of challenges to continuing their education, including the costs of breaking leases and relocating, lack of reliable Internet access, or unstable political and cultural environments. Galvan Decl. ¶¶ 39, 40, 42, 43; Larson Page 13 Plaintiffs’ Motion for Summary Judgment

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Decl. ¶¶ 38, 45, 46, 50, 51; Gaines Decl. ¶¶ 26, 33; Zukoski Decl. ¶¶ 38, 43, 47; Kalfayan Decl. ¶¶ 46–48.
Those F-1 students that returned home abroad during the pandemic also face uncertainty. The July Order is not completely clear as to whether students remaining abroad and attending virtual courses will lose their F-1 status, but if they do, that deprivation will have serious consequences for those students. Many of them may not have the resources to reapply for the F1 visa program. Galvan Decl. ¶ 41; Larson Decl. ¶ 47; Gaines Decl. ¶ 32; Zukoski Decl. ¶ 45. Others may lose post-graduate job opportunities available only to those students engaged in a continuing academic program pursuant to the F-1 program. Galvan Decl. ¶ 33; Larson Decl. ¶ 43; Gaines Decl. ¶ 28; Zukoski Decl. ¶ 42.
LEGAL STANDARD The Court must grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “Where the district court reviews an administrative action pursuant to the APA, summary judgment is an appropriate mechanism for deciding the purely legal question of whether the agency could have reasonably reached the decision that it did.” Or. Nat. Desert Ass’n v. Cain, 17 F. Supp. 3d 1037, 1047 (D. Or. 2014).
ARGUMENT The APA requires a court to vacate agency action where the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The July Order is arbitrary and capricious and not in accordance with law for two reasons: (1) the July Order fails to satisfy the minimum standards for reasoned decision making, and (2) the proffered reason in the July Order is pretextual. For these reasons, the July Order must be held unlawful, vacated, and set aside. Page 14 Plaintiffs’ Motion for Summary Judgment

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I. The July Order Is Final Agency Action There is no question that the July Order is final agency action—it plainly bears “all of the
hallmarks of APA finality.” Sackett v. EPA, 566 U.S. 120, 126 (2012). It determines the rights of F-1 students studying in the United States, and imposes legal obligations on Plaintiffs to make submissions and issue Forms I-20. See id. And plainly “legal consequences” flow from the July Order, because it declares that F-1 students who violate its instructions will be subject to deportation. See id.; see also Southwell Decl. Ex. C, at 1. While ICE promises to publish a “Temporary Final Rule” in the Federal Register, Southwell Decl. Ex. C, at 1, it has not yet done so, despite demanding that schools provide responses to the Order as soon as July 15. An agency cannot demand immediate action from regulated parties and simultaneously claim that its orders are merely interim. Cf. Bennett v. Spear, 520 U.S. 154, 178 (1997) (agency action is not final if it is merely “tentative” or “interlocutory” (quotation marks omitted)). The July Order therefore is final agency action and it is subject to vacatur under the APA. II. The July Order Is Not The Product Of Reasoned Decision Making
A. ICE Failed To Consider The Harms Arising Out Of The July Order Before taking final action, an agency must “examine the relevant data” and
“consider[] . . . the relevant factors.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotation marks omitted). This means the agency must “pay[] attention to the advantages and the disadvantages of agency decisions.” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). Moreover, when the agency reverses a preexisting policy, it must take into account “serious reliance interests” arising out of the preexisting policy. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quotation marks omitted).
Just weeks ago, the Supreme Court reaffirmed and applied these fundamental rules in Department of Homeland Security v. Regents of University of California, 140 S. Ct. 1891 (2020). Page 15 Plaintiffs’ Motion for Summary Judgment

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There, the Court vacated as inconsistent with the APA the Department of Homeland Security’s attempted rescission of the Deferred Action for Childhood Arrivals (“DACA”) program on the ground that, among other things, the Acting Secretary “failed to address whether there was ‘legitimate reliance’ on the DACA Memorandum.” Id. at 1913. The Court proceeded to detail the substantial harm caused by the abrupt rescission of DACA—the harm to DACA recipients who had started businesses and purchased homes, the harm to the families of DACA recipients, and the detrimental economic effects caused by a mass exodus of a considerable portion of the U.S. workforce. See id. at 1914. Although those costs and reliance interests did not necessarily foreclose the rescission of DACA, the Department of Homeland Security was required at least to consider them. See id.
ICE, apparently, did not get the message. Despite acknowledging in March that “SEVPcertified schools may need to adapt their procedures and policies to address the significant public health concerns associated with the COVID-19 crisis,” Southwell Decl. Ex. A, at 1, the July Order contains no recognition of that need, nor does it consider the harm of imposing a “one-size-fits-all” program on hundreds of different schools—each with its own student body and campus environment and unique struggles in grappling with the pandemic—with so little time before the start of the next semester. The July Order also fails entirely to consider the “legitimate reliance,” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996), that schools placed on the March Order, notwithstanding that the March Order indicated the exemption would be “in effect for the duration of the emergency,” Southwell Decl. Ex. B, at 1, and that the national emergency declared on March 13 has not yet been lifted. ICE thus failed entirely to acknowledge, address, or weigh at least three broad categories of harm arising out of the July Order:
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1. The July Order imposes costs on schools by requiring them to restructure their fall academic programming to ensure F-1 students have adequate in-person classes. Plaintiffs have invested substantial resources in the past several months to develop academic plans for the fall that meet the needs of their students without compromising the health of their students, faculty, or staff. Galvan Decl. ¶¶ 7–15, 19; Larson Decl. ¶¶ 13–18, 23, 27, 30; Gaines Decl. ¶¶ 7–12; Kalfayan Decl. ¶¶ 12–15. Those plans are the result of voluminous input by professors, administrators, state government officials, and health professionals, and represent Plaintiffs’ considered judgment about how best to serve the interests of their numerous stakeholders. Galvan Decl. ¶¶ 9, 22; Larson Decl. ¶¶ 14–18, 30; Gaines Decl. ¶¶ 9–13, 18; Kalfayan Decl. ¶¶ 28, 53.
The July Order throws all of that into disarray. Instead of spending the coming weeks refining and implementing their plans to strive to provide a safe and enriching educational environment for their students in the fall, Plaintiffs instead must redirect those resources to attempting to do what they can to protect their international students from deportation under the July Order in order to preserve those students’ many, varied, and invaluable contributions to their institutions. Galvan Decl. ¶ 26; Larson Decl. ¶ 30, 37–38; Gaines Decl. ¶¶ 20–24; Kalfayan Decl. ¶ 31. This costly reallocation of resources adds to the already daunting task of preparing large-scale academic institutions for an unprecedented term of uncertainty and experimentation.
The July Order also imposes direct costs of compliance on Plaintiffs. It requires schools that plan to offer only online classes for the fall 2020 term to submit an “operational change plan” by July 15—just nine days after the July Order was issued. Southwell Decl. Ex. C, at 2. Those schools that, like many of Plaintiffs, are offering in-person classes or a hybrid of in-person and remote classes have until just August 1 to submit their operational plans. Id. at 2–3. And the
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July Order further requires schools to issue a new Form I-20 for thousands of students by August 4, 2020, an immensely burdensome task that not only ordinarily takes several months, Galvan Decl. ¶ 33; Larson Decl. ¶¶ 34–37; Gaines Decl. ¶¶ 24–25, but also is literally impossible for those schools that will not have even completed enrollment by that time, Gaines Decl. ¶ 25. The development of those plans for submission to ICE, particularly on such a truncated timeframe, is a costly and disruptive process that, once again, detracts from Plaintiffs’ core educational missions. Galvan Decl. ¶ 33; Larson Decl. ¶ 38.
And it is not just the Plaintiffs’ resources that are compromised, but also their ability to offer academic programming of their own choice to best meet their students’ needs. Plaintiffs have planned for and prepared to implement a wide variety of course offerings designed to maximize the educational experience for their students, even in these challenging times. Each Plaintiff is responding in its own way—some schools are operating mostly or entirely online, others are offering principally “hybrid” courses that are taught partially online and partially in person, and others are offering a mixed semester, with in-person classes ceasing after Thanksgiving break. Galvan Decl. ¶¶ 19–22; Larson Decl. ¶¶ 24–25; Gaines Decl. ¶ 16.
The July Order deprives schools of their ability to tailor their academic programming to the needs of their students. While each of Plaintiffs remains committed to offering all of their students a valuable and positive educational experience, the reality is that ensuring that all international students are enrolled in in-person courses impedes the fulfillment of that mission. Plaintiffs’ ability to offer in-person classes is constrained both by the relatively small number of facilities that can accommodate social distancing protocols, and the faculty that are available to teach in-person classes. And a faculty member or facility allocated to a course offering created to satisfy the July Order’s new requirement cannot be utilized for another in-person class. In this
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way, the July Order is forcing Plaintiffs to change their course offerings and ultimately places new limitations on the choices Plaintiffs’ students have in selecting their coursework.
2. F-1 students currently residing in the United States will be directly harmed in a variety of ways. Most critically, for those schools like Plaintiff Pomona College that have planned to offer only online instruction, unless they dramatically alter their plans, all of their F-1 students now face a choice: They can attempt to transfer to another school offering in-person courses, or they will be forced to leave the United States and attempt to continue their coursework from another country. Gaines Decl. ¶ 19.1
Yet even students of those Plaintiffs that currently plan to offer some in-person instruction to international students face paralyzing uncertainty. That is because the July Order warns, ominously, that “[i]f a school changes its operational stance mid-semester”—which is to say, if schools once again are forced to close their campuses and move all instruction online as they were in March—all of their F-1 students “must leave the country or . . . transfer to a school with in-person instruction.” Southwell Decl. Ex. C, at 3. Even if a mid-semester school transfer theoretically were possible (for a variety of reasons, it generally is not), it would be completely out of the realm of possibility in the event of another broad closure of campuses as occurred in March. The only option would be to leave the country.
The breadth of harms that would flow from such an abrupt exodus of F-1 students is difficult to overstate: F-1 students would be compelled immediately to uproot their academic and personal lives, and attempt to continue their studies from abroad, for some several time
1 Universities have standing to assert the “rights of the students, scholars, and faculty” affected by Executive action. See Washington v. Trump, 847 F.3d 1151, 1160 (9th Cir. 2017).
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zones away from their instructors, for others without reliable Internet access, for some in places experience civil unrest or violence or a COVID-19 outbreak worse even than that which has befallen the United States. Galvan Decl. ¶¶ 40, 42; Larson Decl. ¶¶ 46, 50; Gaines Decl. ¶¶ 30– 32; Kalfayan Decl. ¶ 47. The harms from these situations range from the direct economic costs of having to break leases and relocate thousands of miles away, Galvan Decl. ¶¶ 34–35, 42; Larson Decl. ¶¶ 38, 50; Gaines Decl. ¶¶ 26, 32.d, 33, to interrupted academic research, to more poignant family traumas of pulling children out of school and attempting to find caretakers for family pets, see Cascante Decl.; Memiaghe Decl.; Yang Decl..
Whether it happens immediately because a Plaintiff offers only online courses, or it happens midway through the term after a school is forced to close its doors, the loss of international students deeply compromises Plaintiffs’ ability to fulfill their educational mission. Courts have long recognized that schools have a legitimate interest in encouraging the sharing of diverse viewpoints and cultures. See Grutter v. Bollinger, 539 U.S. 306, 328 (2003) (a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer”). International students bring tremendous value to the intellectual and intramural community at each of Plaintiffs, offering varied perspectives and interests. Galvan Decl. ¶¶ 28–30, 38–39; Larson Decl. ¶¶ 31, 45; Gaines Decl. ¶ 21; Kalfayan Decl. ¶ 5, 29, 32. The effective expulsion of F-1 students from the United States would impair Plaintiffs’ ability to offer an environment where diverse viewpoints are shared, instead restricting the student body only to domestic students and those international students fortunate enough to be able to attend school courses online from their home countries despite the logistical challenges. Galvan Decl. ¶ 28. The departure of large numbers of international students would run counter to the core mission of many of Plaintiffs, who strive to provide a diverse and engaging learning environment
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for all students, and who depend on international students to enrich the experience of their peers. Galvan Decl. ¶¶ 28–29, 44–45, 47; Larson Decl. ¶ 31.
The July Order also poses a related and particular problem for those F-1 students at increased risk for severe illness from COVID-19. While Plaintiffs have carefully designed reopening plans that minimize health risks to the student population, no amount of precautions can completely eliminate the risk of contracting COVID-19. And that risk is more substantial for those individuals with certain medical conditions that may lead to a higher chance of severe illness due to COVID-19. See Coronavirus Disease 2019 (COVID-19); People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (June 25, 2020), https://bit.ly/3gO6spB. Those medical conditions range from kidney disease, to asthma, to high blood pressure, to pregnancy. See id. While Plaintiffs would otherwise be willing to accommodate F-1 students at higher risk of severe illness from COVID-19 through the provision of an online-only curriculum, they effectively are prohibited from doing so by the July Order, unnecessarily increasing the risk to those students with no apparent or stated purpose. Such students are put to the dilemma of either risking exposure to COVID-19 in in-person classes, or risking exposure to COVID-19 on an ICE-mandated international flight.
These harms are not hypothetical, and certainly not abstract to the very real students whose lives may be transformed by virtue of the July Order. The stories of just a tiny fraction of those affected students are set forth in the declarations, including:
• One University of Oregon student faces the prospect of returning to Indonesia, where they will lack access not only to reliable Internet, but even to clean tap water. Galvan Decl. ¶ 39.a.
• One Pomona College student is a citizen of a country other than her family’s current country of residence. Because her family’s country of residence has closed its borders to short-term visitors she would have no place to live if required to leave the United States. Gaines Decl. ¶ 33.b.
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• Another Pomona College student from an African nation would have to return to a country with no reliable Internet, and would potentially lose the significant financial aid she receives from the school. Gaines Decl. ¶ 33.a.
• One Oregon State University student came to the United States fleeing an abusive relationship in her home country, and fears for her life if forced to return home. Larson Decl. ¶ 51.a.
• Another Oregon State University student is in graduate school and, even if they could return home, would lack access to reliable Internet access and could not access resources—including frequent contact with their research advisor and specialty academic committee—needed to continue their education. Larson Decl. ¶ 51.g.
3. F-1 students currently residing outside of the United States and unable to return are harmed as well. These students face challenges different from their peers that remained in the United States. Even though most Plaintiffs are willing and able to offer at least some in-person courses, many F-1 students simply are unable to return to the United States. That may be for any number of reasons, including prohibitively expensive flights, travel restrictions, or simply a legitimate fear that international travel will jeopardize their health.
The fate of these students is unclear under the July Order. The July Order states that continuing F-1 students outside of the United States “whose schools of enrollment are only offering online classes, may remain in Active status in SEVIS if they are taking online courses and are able to meet the normal full course of study requirements or the requirements for a reduced course of study.” Southwell Decl. Ex. C, at 2. This suggests that F-1 students outside of the United States attending a school that offers only some online courses will not remain in Active status. But ICE’s “Frequently Asked Questions” regarding the July Order, released on July 7, states that “continuing F and M students may remain in Active SEVIS status while studying online, outside the United States.” Frequently Asked Questions for SEVP Stakeholders About Guidance for the Fall 2020 Semester, U.S. Immigration & Customs Enforcement 3 (July 7, 2020), https://bit.ly/3fkAIYN. The apparent disconnect between these two messages not only
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heightens the confusion surrounding the July Order, but further demonstrates the lack of deliberative or reasoned decision making by ICE.
Taking the July Order at its word (without reference to the seemingly contradictory July 7 guidance) that F-1 students abroad enrolled only in online courses at a school that offers some in-person instruction for stateside students will lose their F-1 Active status, two significant harms will flow from that policy. First, once students lose their F-1 status, it will be challenging for them to regain it. U.S. consular offices remain closed for routine visa appointments, and even when they reopen, the visa application process is time consuming, burdensome, and costly, particularly for those F-1 students who have to travel significant distances to consular offices. Galvan Decl. ¶ 41; Larson Decl. ¶ 47; Gaines Decl. ¶ 31. There is thus no certainty that these students will be able to reapply for and reenter the F-1 visa program once they are removed from Active status.
Second, certain post-graduate employment programs may become unavailable to those students who have a lapse in their F-1 status. F-1 students are eligible to participate in “practical training” programs, either during their course of study or immediately after completion. See 8 C.F.R. § 214.2(f)(10). These programs are available only to F-1 students who have “been lawfully enrolled on a full-time basis, in a Service-approved college, university, conservatory, or seminary for one full academic year.” Id. For “optional practical training”—or OPT— post-graduate participation is permitted only if the OPT is completed within a 14-month period (with some exceptions). See id. § 214.2(f)(10)(ii)(A)(3). The practical effect of all of this is that F-1 students who wish to participate in these programs must either be currently enrolled in a school pursuant to F-1 for at least one year, or must have recently completed a full course of study. An interruption in students’ F-1 status can temporarily disqualify students for
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participation in the program, and may permanently disqualify them if they complete their course studies while not enrolled in the F-1 visa program. The July Order thus could actually F-1 students abroad of opportunities to undertake work opportunities in the United States relevant to their field of study.
* * * The import of the above is that ICE must, as a matter of fundamental administrative law, consider and weigh the relevant harms and costs arising from its decision to rescind the March Order. And ICE failed completely to do so. Nowhere in the July Order did ICE even acknowledge, much less analyze, the substantial harms that the July Order will cause. ICE did not address the fact that its onerous and unreasonable deadlines for schools to restructure their academic programs imposes direct compliance costs on Plaintiffs and those similarly situated to them. It did not acknowledge that schools, in designing their plans for the fall semester, relied on ICE’s statement that the March guidance of “flexibility” would remain in place “for the duration of the emergency.” Southwell Decl. Ex. B, at 1. Nor did ICE acknowledge the many harms its new policy portends for F-1 students. ICE’s “Frequently Asked Questions” released on July 7 suggests that F-1 students enrolled only in online classes simply “do not need to be present” in the United States. But ICE seems to have overlooked entirely that many of these students very much do “need” to take the classes best suited for their academic progress; “need” to not be several time zones away from their instructions; “need” not to break their lease obligations; “need” to keep their children in school; and “need” to keep their families together. ICE apparently considered none of that. That is not reasoned decision making, and it cannot sustain the agency action taken here. The July Order therefore must be vacated under the APA.
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B. The July Order Offers No Reasoned Explanation At All Although an agency is free to change a preexisting policy, it must “display awareness that it is changing position” and “must show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). Agency action therefore cannot be sustained if “[t]here are no findings and no analysis . . . to justify the choice made,” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962), and vacatur is appropriate if “the agency’s explanation is, in effect, no explanation at all,” All. for Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105, 1114 (9th Cir. 2018); see also Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (vacatur appropriate where “an agency provides no explanation at all for a change in policy”). The entire “rationale” offered by the July Order is set forth in a single sentence in the introductory paragraph: “There will still be accommodations to provide flexibility to schools and nonimmigrant students but as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations.” July Order at 1. The July Order does not say what those “carefully balanced protections” are, and more critically, it does not explain why the fact that many schools now are attempting to reopen, mostly with hybrid plans, counsels in favor of abandoning ICE’s prior policy giving schools flexibility to meet the varying unprecedented scenarios posted by the pandemic. See Arrington v. Daniels, 516 F.3d 1106, 1114 (9th Cir. 2008) (vacating agency action where the agency “offered no explanation for why it exercised its discretion to select one [option] rather than the other”). Indeed, all of the proffered reasons for ICE’s prior policy of permitting F-1 students to maintain their visa status while taking a fully online curriculum apply today with at least as much force as they did in March. When ICE promulgated the March Order, it highlighted the need for Page 25 Plaintiffs’ Motion for Summary Judgment

Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 32 of 38
the exemption in light of the “extraordinary nature of the COVID-19 emergency,” and advised that the exemption would remain “in effect for the duration of the emergency.” March Order at 1. President Trump declared a national emergency on March 13, 2020, see White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/3ffGlaK, and that declaration has never been rescinded or revised.
Meanwhile, the pandemic is far from over. There are now a total of 3,106,931 confirmed cases of COVID-19 in the United States, with approximately 60,000 new cases each day—far higher than the 267 new cases detected on March 13, 2020. See Coronavirus Disease 2019 (COVID-19), Cases in the US, Ctrs. for Disease Control & Prevention (last visited July 11, 2020), https://bit.ly/301213T. And there are currently approximately 800 new deaths each day. Id. This disturbing uptick cannot be attributed solely to increased testing—the percentage of positive tests has nearly doubled from a nadir of 4.3% in early June to 8.3%. See Rate of Positive Tests in the US and States Over Time, Johns Hopkins Univ. of Med. (last visited July 11, 2020), https://bit.ly/301h4uE. In short, things have gotten worse, not better, since ICE announced the exemption in the March Order.
While administrative agencies have latitude to determine the best response to changing circumstances, ICE was required to at least state its reasons for reversing its prior policy and explain how changed facts or circumstances justify the new approach. But the stubborn fact that the COVID-19 pandemic rages on and schools are doing their level-best to meet the challenge of safely educating students in this unprecedented environment demonstrates only the need for more flexibility, not less. The fact that some schools today are attempting to reopen amidst the pandemic hardly presents no rational justification for pulling the rug out from under hundreds of
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Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 33 of 38
thousands of F-1 students and the schools that serve them. ICE was required to, at the very least,
offer some reasoned explanation for its dramatic about face. It failed to do so, and for that reason alone, the July Order violates the APA and must be vacated.2
III. The Proffered Reasons For The July Order Are Pretextual Even crediting ICE’s perfunctory justification for its action, the July Order is also
defective under the APA because the proffered reasons for ICE’s actions do not reflect the
agency’s actual reasoning.
Effective judicial review of agency action is impossible unless the agency discloses the
basis for its action. See Burlington Truck Lines, 371 U.S. at 167–68. For that reason, agency
action may not properly rest on a “pretextual basis.” Dep’t of Commerce v. New York, 139 S. Ct.
2551, 2573 (2019). Thus, vacatur under the APA is appropriate where there is “an explanation
for agency action that is incongruent with what the record reveals about the agency’s priorities
and decisionmaking process.” Id. at 2575.
2 In a “Frequently Asked Questions” document published the day after the July Order, ICE opines that the July Order “minimiz[es] the risk of transmission of COVID-19 by not admitting students into the country who do not need to be present to attend classes in-person.” Frequently Asked Questions, supra. “[J]udicial review of agency action is limited to the grounds that the agency invoked when it took the action,” Dep’t of Homeland Sec., 140 S. Ct. at 1907–08 (quotation marks omitted), and so the agency cannot invoke this rationale to justify the July Order. In any event, the “Frequently Asked Questions” document suggests no reason to believe that F-1 students that have been in the United States since March present any enhanced “risk of transmission of COVID-19,” or that their removal somehow reduces the risk to others. To the extent ICE would limit this rationale to persons seeking to return to the United States, it suggests no reason to believe that F-1 students pose an enhanced risk vis-à-vis other travelers from the same country. If the United States is admitting travelers from Canada, it makes no sense to exclude Canadian students who have a fixed place of residence in the United States. And there is no indication ICE examined the many disadvantages to international students in compelling them to pursue their academic program from school. See supra.
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In the July Order, ICE indicated that the reopening of some schools necessitates the “resum[ption of] the carefully balanced protections implemented by federal regulations.” Southwell Decl. Ex. C, at 1. Whatever this opaque statement may mean, see supra, it plainly does not reflect the true rationale for the policy change: To encourage—or perhaps to coerce— schools into offering in-person classes in the fall, even against the advice of public health professionals and contrary to the months-long deliberative processes undertaken by individual schools to determine the best options for their communities.
The agency’s true intent was revealed by Acting Deputy Secretary of Homeland Security Ken Cuccinelli, who, when pressed by a reporter, seemed to acknowledge that the purpose of the policy was to “encourage schools to reopen.” John Bowden, Cuccinelli Says Rule Forcing International Students to Return Home Will “Encourage Schools to Reopen”, The Hill (July 7, 2020), https://bit.ly/303vFG2. Specifically, he explained, “This is now setting the rules for one semester, which we’ll finalize later this month that will, again, encourage schools to reopen.” Id. This statement aligns with repeated calls by the President for schools to reopen in the fall, sometimes accompanied by threats to cut off federal funding. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (July 10, 2020, 7:41 AM) (“. . . Schools must be open in the Fall. If not open, why would the Federal Government give Funding? It won’t!!!”); Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM) (“SCHOOLS MUST OPEN IN THE FALL!!!”).
These statements explain why ICE’s contemporaneous explanation for its policy reversal is so lacking: The true motive behind ICE’s action is to strong-arm schools into opening prematurely in the fall so as to further ideological political interests. While political motives are not in and of themselves impermissible bases for agency action, see Dep’t of Commerce, 139 S.
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Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 35 of 38
Ct. at 2573, an agency may not disguise those motives under the guise of legitimate policy objectives, see id. at 2575–76. And such a rationale for upending the lives of F-1 students is both unlawful and dangerous: It is unlawful because ICE has no statutory authority or expertise to make nuanced determinations balancing public health against educational needs. Cf. Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 552 (D.C. Cir. 2015) (agencies must proceed cautiously when acting in an area where they have “no particular expertise”). And it is dangerous because it assumes that a fall reopening is an optimal policy for all schools, regardless of their particular circumstances or the current state of the pandemic in their geographical area. The President’s threat of withholding federal funds to coerce schools into opening, even against their better judgment, demonstrates the arbitrary and irrational basis for ICE’s action and underscores the pretextual nature of the July Order.
This Court should not permit ICE to threaten the academic future of thousands of international students and the academic strength and reputation of Plaintiffs if the agency is unable or unwilling even to openly state the true rationales for its change in course. The July Order is a dangerous effort to achieve political goals by bludgeoning schools into a course of action that may directly conflict with public health guidance and directives. Not only did ICE fail in its administrative law obligation to disclose the true purpose for its actions, but it also has greatly overstepped its own authority. The APA demands much more, and this Court should find the July Order is unlawful and grant Plaintiffs’ Motion for Summary Judgment.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion for Summary Judgment and vacate and set aside the July Order.
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Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 36 of 38

DATED: July 13, 2020

/s/ Kevin S. Reed

GIBSON, DUNN & CRUTCHER LLP
Debra Wong Yang (pro hac vice forthcoming) dwongyang@gibsondunn.com Ethan Dettmer (pro hac vice forthcoming) edettmer@gibsondunn.com Theane Evangelis (pro hac vice forthcoming) tevangelis@gibsondunn.com Chelsea Mae Thomas (pro hac vice forthcoming) cthomas@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Phone: (213) 229-7000
Theodore B. Olson (pro hac vice forthcoming) tolson@gibsondunn.com Matthew D. McGill (pro hac vice forthcoming) mmcgill@gibsondunn.com Joshua Wesneski (pro hac vice forthcoming) jwesneski@gibsondunn.com 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 Phone: (202) 955-8500
Alexander H. Southwell (pro hac vice forthcoming) asouthwell@gibsondunn.com Oliver Fong (pro hac vice forthcoming) ofong@gibsondunn.com 200 Park Avenue New York, NY 10166-0193 Phone: (212) 351-4000
Attorneys for Plaintiffs

Kevin S. Reed (OBN #160574) ksreed@uoregon.edu Douglas Y.S. Park (OBN #980904) dougpark@uoregon.edu Jessica Price (OBN #182104) (LR 83-4 pending) jgprice@uoregon.edu University of Oregon Office of General Counsel 1226 University of Oregon Eugene, OR 97403 Phone: (541) 346-3082
Rebecca Gose (OBN #105712) rebecca.gose@oregonstate.edu Julie Penry (OBN #053440) julie.penry@oregonstate.edu Whitney Hill (OBN 093849) whitney.hill@oregonstate.edu (Special Admission as Government Attorneys pending) Oregon State University Office of the General Counsel 630 Kerr Admin Bldg Corvallis, OR 97331 Phone: (541) 737-2474
Beong-Soo Kim (pro hac vice forthcoming) bkim@usc.edu Laurie Barnes (pro hac vice forthcoming) lbarnes@usc.edu Andreas Meyer (pro hac vice forthcoming) andreasm@usc.edu University of Southern California Office of the General Counsel 3551 Trousdale Parkway, ADM 352 Los Angeles, CA 90089-5013

Attorneys for Plaintiffs

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Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 37 of 38

Certificate of Compliance
This brief complies with the applicable word-count limitation under Local Rule 7-2(b) because it contains fewer than 35 pages, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, and any certificates of counsel.

DATED: July 13, 2020

/s/ Kevin S. Reed Kevin S. Reed (OBN #160574)
Attorney for Plaintiffs

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Case 6:20-cv-01127-MK Document 12 Filed 07/13/20 Page 38 of 38

Certificate of Service
I hereby certify that this document has been filed through the Court’s ECF system and
will be sent electronically to the registered participants. This document is being sent by express
mail to the Defendants at the addresses below and by email.
United States Department of Homeland Security 2707 Martin Luther King Jr. Ave., S.E. Washington, D.C. 20528
United States Immigration and Customs Enforcement 500 12th St., S.W. Washington, D.C. 20536
Chad F. Wolf Acting Secretary of Homeland Security United States Department of Homeland Security 2707 Martin Luther King Jr. Ave., S.E. Washington, D.C. 20528
Matthew Albence Acting Director of United States Immigration and Customs Enforcement United States Immigration and Customs Enforcement 500 12th St., S.W. Washington, D.C. 20536

DATED: July 13, 2020

/s/ Kevin S. Reed Kevin S. Reed (OBN #160574)
Attorney for Plaintiffs

Page 32 Plaintiffs’ Motion for Summary Judgment

 
 Case 6:20-cv-01127-MK Document 22 Filed 07/13/20 Page 1 of 8

Kevin S. Reed (OBN #160574)

Rebecca Gose (OBN #105712)

ksreed@uoregon.edu

rebecca.gose@oregonstate.edu

Douglas Y.S. Park (OBN #980904)

Julie Penry (OBN #053440)

dougpark@uoregon.edu

julie.penry@oregonstate.edu

Jessica Price (OBN #182104) (LR 83-4 pending) Whitney Hill (OBN #093849)

jgprice@uoregon.edu

whitney.hill@oregonstate.edu

University of Oregon

(Special Admission as Government Attorneys

Office of General Counsel

pending)

1226 University of Oregon

Oregon State University

Eugene, OR 97403

Office of the General Counsel

Phone: (541) 346-3082

630 Kerr Admin Bldg

Corvallis, OR 97331

GIBSON, DUNN & CRUTCHER LLP

Phone: (541) 737-2474

Theodore B. Olson (pro hac vice forthcoming) tolson@gibsondunn.com
Matthew D. McGill (pro hac vice forthcoming) mmcgill@gibsondunn.com
Joshua Wesneski (pro hac vice forthcoming) jwesneski@gibsondunn.com
1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 Phone: (202) 955-8500 Alexander H. Southwell (pro hac vice forthcoming) asouthwell@gibsondunn.com Oliver Fong (pro hac vice forthcoming)
ofong@gibsondunn.com 200 Park Avenue New York, NY 10166-0193 Phone: (212) 351-4000

GIBSON, DUNN & CRUTCHER LLP Debra Wong Yang (pro hac vice forthcoming) dwongyang@gibsondunn.com Ethan Dettmer (pro hac vice forthcoming)
edettmer@gibsondunn.com Theane Evangelis (pro hac vice forthcoming)
tevangelis@gibsondunn.com Chelsea Mae Thomas (pro hac vice forthcoming)
cthomas@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Phone: (213) 229-7000
Attorneys for Plaintiffs

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

UNIVERSITY OF OREGON; OREGON STATE UNIVERSITY; UNIVERSITY OF SOUTHERN CALIFORNIA; ARIZONA STATE UNIVERSITY; CALIFORNIA INSTITUTE OF TECHNOLOGY; CHAPMAN UNIVERSITY; CLAREMONT MCKENNA COLLEGE; NORTHERN

Case No. 6:20-cv-01127-MK
PLAINTIFFS’ MOTION FOR EXPEDITED BRIEFING AND DISCOVERY

Plaintiffs’ Motion to Expedite

Case 6:20-cv-01127-MK Document 22 Filed 07/13/20 Page 2 of 8
ARIZONA UNIVERSITY; PITZER COLLEGE; POMONA COLLEGE; PRESIDENT AND BOARD OF TRUSTEES OF SANTA CLARA COLLEGE; SCRIPPS COLLEGE; SEATTLE UNIVERSITY; STANFORD UNIVERSITY; SAINT MARY’S COLLEGE OF CALIFORNIA; UNIVERSITY OF ARIZONA; UNIVERSITY OF THE PACIFIC; UNIVERSITY OF SAN DIEGO; UNIVERSITY OF SAN FRANCISCO; and UNIVERSITY OF UTAH,
Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement,
Defendants.
Plaintiffs’ Motion to Expedite

Case 6:20-cv-01127-MK Document 22 Filed 07/13/20 Page 3 of 8
LR 7-1(A) CONFERRAL CERTIFICATION In compliance with Local Rule 7-1(a), undersigned counsel have made reasonable efforts to confer with defendants to resolve the dispute presented in this motion but have been unable to do so.
MOTION FOR EXPEDITED BRIEFING AND DISCOVERY In response to the COVID-19 pandemic, United States Immigration and Customs Enforcement (“ICE”) in March 2020 issued guidance exempting certain international students with nonimmigrant student visas—F-1 visas—from the requirement that they attend most of their classes in person. However, on July 6, with the pandemic still raging and without warning, ICE inexplicably rescinded that exemption, with dire consequences for Plaintiffs and for their international students. Students with F-1 status whose schools have implemented a fully online curriculum must depart the country, and those who are already abroad may not reenter. Plaintiffs, meanwhile, are scrambling to attempt to provide in-person courses for all of their F-1 students to prevent those students from being subject to immediate deportation. ICE also required entirely online schools to submit an “operational change plan” by July 15, 2020, and schools with hybrid programs to submit plans by August 1, 2020. Moreover, schools with hybrid programs must reissue immigration forms to thousands of students just weeks after enrollment ends (and sometimes, even before enrollment ends). On July 13, 2020, contemporaneously with this Motion, Plaintiffs filed a Motion for a Temporary Restraining Order and Preliminary Injunction and a Motion for Summary Judgment, seeking to stay the effectiveness of the July 6 order and a ruling that the order violated the Administrative Procedure Act (“APA”). This request is urgent, given the ongoing pandemic, imminent government-mandated deadlines, and upcoming start to the fall semester.
Page 1 Plaintiffs’ Motion to Expedite

Case 6:20-cv-01127-MK Document 22 Filed 07/13/20 Page 4 of 8

Based on these considerations and pursuant to Local Rule 7-1(f), Plaintiffs are now

moving for an Order setting an expedited briefing schedule on their pending Motion for

Summary Judgment and allowing the expedited production of the administrative record

regarding the promulgation of the July 6 order. Plaintiffs seek expedited briefing and discovery

to ensure that their claims can be heard in time to obtain a final resolution in this matter well in

advance of the fall semester.

MEMORANDUM IN SUPPORT

I.

Background

On March 13, 2020, President Donald Trump declared a national state of emergency due

to the COVID-19 pandemic. That same day, in response to the pandemic, ICE issued guidance

exempting international F-1 students from the preexisting rule that they must attend most classes

in person. ICE made clear that this arrangement was “in effect for the duration of the

emergency.” U.S. Immigration and Customs Enforcement, COVID-19: Guidance for SEVP

Stakeholders (Mar. 13, 2020), https://bit.ly/2BUnXWH. On July 6, 2020, ICE announced it was

rescinding the COVID-19 exemption. It required schools offering classes entirely online to

submit an “operational change plan” no later than Wednesday, July 15, 2020, only nine days

after the announcement, and required schools offering a hybrid model of classes to provide a

plan by August 1. It also required schools offering a hybrid model of classes to issue a new

Form I-20 for each of these students by August 4, 2020, certifying that they were taking the

minimum number of online classes required to make normal progress in their degree program.

Plaintiffs filed this action and their Motion for Temporary Restraining Order and Preliminary

Injunction and Motion for Summary Judgment seeking immediate relief under the APA to

prevent ICE’s July 6 Order from taking effect.

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Case 6:20-cv-01127-MK Document 22 Filed 07/13/20 Page 5 of 8

II.

Discussion

Allowing the July 6 Order to take effect would require students with F-1 status whose

school curricula are entirely online due to COVID-19 to depart the country, and would bar

students already outside the country from reentering. It would also require Plaintiffs to, within a

matter of days or weeks, abandon plans developed over months in response to the pandemic and

nationally and locally declared states of emergency, or cause thousands of international students

to depart the country. And on top of that, Plaintiffs will devote substantial resources to

complying with ICE’s expedited deadlines for the submission of operational plans and

immigration forms.

This Court should order the briefing on Plaintiffs’ Motion for Summary Judgment to

proceed on an expedited basis to permit an final judgment as soon as practicable. See L.R. 7-

1(f). ICE issued its order mere weeks before the fall semester is set to begin, and allowed

schools between nine and twenty-nine days to undertake extensive and burdensome action.

Schools, including Plaintiffs, were given no time to consider or plan for this change in policy,

which is ostensibly effective immediately. Given the immediacy of the harm to both schools and

students, the ongoing pandemic, and the imminent deadlines schools and students must comply

with, expedited resolution of this action is warranted.

Moreover, final resolution of this matter is preferable to mere interim relief. Even if the

Court enters temporary injunctive relief, that relief may be lifted or vacated on appeal for reasons

unrelated to the merits of the action, and Plaintiffs will once again be left with little time to adapt

their academic schedules to accommodate the needs of the thousands of individual students

affected by the July Order. Thus, even if the Court grants Plaintiffs’ concurrently filed Motion

for Temporary Restraining Order and Preliminary Injunction, it is still appropriate to expedite

briefing on Plaintiffs’ Motion for Summary Judgment.

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Case 6:20-cv-01127-MK Document 22 Filed 07/13/20 Page 6 of 8
Expedited briefing will also require the production of the administrative record as soon as possible. This court has wide discretion to expedite discovery. See Fed. R. Civ. P. 26(d)(1) (court may order discovery before Rule 26(f) conference); see also Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 (C.D. Cal. 2009) (noting “courts may permit expedited discovery before the Rule 26(f) conference upon a showing of good cause” (internal quotation marks omitted)). Here, good cause exists because the narrow discovery requested—production of the administrative record—is necessary to the proper resolution of Plaintiffs’ Motion for Summary Judgment. Moreover, there is little burden on the government because the information requested is solely within the government’s possession, and should be available for prompt production. Thus, expedited production of the administrative record is justified.
CONCLUSION For the foregoing reasons, the plaintiffs respectfully request that this Court issue an order:
A. Granting their Motion for Expedited Briefing and Discovery; B. Ordering Defendants to file their response to Plaintiffs’ Motion for Summary
Judgment and the administrative record within 7 days after service; C. Scheduling an expedited hearing on this matter as soon as the court’s calendar
permits; D. In the alternative, scheduling an expedited scheduling conference in this
matter; and E. Granting such further relief as the court deems just and equitable.
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Case 6:20-cv-01127-MK Document 22 Filed 07/13/20 Page 7 of 8

DATED: July 13, 2020

/s/ Kevin S. Reed

GIBSON, DUNN & CRUTCHER LLP Debra Wong Yang (pro hac vice forthcoming) dwongyang@gibsondunn.com Ethan Dettmer (pro hac vice forthcoming)
edettmer@gibsondunn.com Theane Evangelis (pro hac vice forthcoming)
tevangelis@gibsondunn.com Chelsea Mae Thomas (pro hac vice forthcoming)
cthomas@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Phone: (213) 229-7000 Theodore B. Olson (pro hac vice forthcoming)
tolson@gibsondunn.com Matthew D. McGill (pro hac vice forthcoming)
mmcgill@gibsondunn.com Joshua Wesneski (pro hac vice forthcoming)
jwesneski@gibsondunn.com 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 Phone: (202) 955-8500 Alexander H. Southwell (pro hac vice forthcoming) asouthwell@gibsondunn.com Oliver Fong (pro hac vice forthcoming)
ofong@gibsondunn.com 200 Park Avenue New York, NY 10166-0193 Phone: (212) 351-4000
Attorneys for Plaintiffs

Kevin S. Reed (OBN #160574) ksreed@uoregon.edu Douglas Y.S. Park (OBN #980904) dougpark@uoregon.edu Jessica Price (OBN #182104) (LR 83-4 pending) jgprice@uoregon.edu University of Oregon Office of General Counsel 1226 University of Oregon Eugene, OR 97403 Phone: (541) 346-3082 Rebecca Gose (OBN #105712) rebecca.gose@oregonstate.edu Julie Penry (OBN #053440) julie.penry@oregonstate.edu Whitney Hill (OBN 093849) whitney.hill@oregonstate.edu (Special Admission as Government Attorneys pending) Oregon State University Office of the General Counsel 630 Kerr Admin Bldg Corvallis, OR 97331 Phone: (541) 737-2474 Beong-Soo Kim (pro hac vice forthcoming) bkim@usc.edu Laurie Barnes (pro hac vice forthcoming) lbarnes@usc.edu Andreas Meyer (pro hac vice forthcoming) andreasm@usc.edu University of Southern California Office of the General Counsel 3551 Trousdale Parkway, ADM 352 Los Angeles, CA 90089-5013

Attorneys for Plaintiffs

Page 5 Plaintiffs’ Motion to Expedite

Case 6:20-cv-01127-MK Document 22 Filed 07/13/20 Page 8 of 8

Certificate of Service
I hereby certify that this document has been filed through the Court’s ECF system and
will be sent electronically to the registered participants. This document is being sent by express
mail to the Defendants at the addresses below and by email.
United States Department of Homeland Security 2707 Martin Luther King Jr. Ave., S.E. Washington, D.C. 20528
United States Immigration and Customs Enforcement 500 12th St., S.W. Washington, D.C. 20536
Chad F. Wolf Acting Secretary of Homeland Security United States Department of Homeland Security 2707 Martin Luther King Jr. Ave., S.E. Washington, D.C. 20528
Matthew Albence Acting Director of United States Immigration and Customs Enforcement United States Immigration and Customs Enforcement 500 12th St., S.W. Washington, D.C. 20536

DATED: July 13, 2020

/s/ Kevin S. Reed Kevin S. Reed (OBN #160574)
Attorney for Plaintiffs

Page 6 Plaintiffs’ Motion to Expedite