IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, and HAVERFORD COLLEGE,

Plaintiffs,
v.
KIRSTJEN NIELSEN, U.S. DEPARTMENT OF HOMELAND SECURITY, L. FRANCIS CISSNA, and U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

Civil Action No.: 18-891 COMPLAINT

Defendants.

COMPLAINT Plaintiffs Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College bring this Complaint against Defendants Kirstjen Nielsen, in her official capacity as Secretary of Homeland Security; the U.S. Department of Homeland Security (“DHS”); L. Francis Cissna, in his official capacity as Director of U.S. Citizenship and Immigration Services; and U.S. Citizenship and Immigration Services (“USCIS”). Plaintiffs allege as follows.
INTRODUCTION 1. The United States is a center of global education. Because many of the world’s leading colleges, universities, and research institutions are located here, more than a million individuals travel to the United States each year to study and teach. On August 9, 2018,
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Defendants adopted a new policy that is purposefully designed to impose three- and ten-year bars to reentry on tens of thousands of these individuals. This policy is a massive reconfiguration of the immigration laws relating to higher education.
2. In 1996, Congress created the concept of “unlawful presence” and established a penalty for individuals who are “unlawfully present” in the United States. An individual who is unlawfully present for more than 180 days is barred from reentering the United States for a period of three years. An individual who is unlawfully present for a year or more is barred from reentering for ten years. These reentry bars are typically not subject to any judicial review. And, because these reentry bars preclude an individual from lawfully entering the United States for any purpose for a lengthy period of time, they fundamentally disrupt the personal and professional lives of those affected, as well as the missions of affected organizations and institutions.
3. In 1997, the United States adopted a clear policy governing the implementation of this statute. Recognizing that the determination of whether an individual is “unlawfully present” in the United States is complex and will often turn on administrative discretion, the United States established objective rules that provided visa holders notice. If the authorized period of stay ended on a date certain on which the individual was required to leave the country, unlawful presence began following that date. And for all individuals, unlawful presence began the day after either a government official or immigration judge made a determination that the individual was out-of-status. This provided well-intentioned individuals an opportunity to cure their circumstances and remain in the country—or to depart the country within 180 days. Either way, individuals acting in good faith had an opportunity to avoid imposition of a three- or ten-year reentry bar.
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4. The United States reaffirmed this policy for more than two decades, including via a May 2009 Policy Memorandum. See Ex. C.
5. The vast majority of international students1 enter the country on F or M visas, while some enter on J visas. Many international researchers, scholars, and professors at higher education and research institutions enter the country on J visas for exchange visitors. In general, when F, J, or M visa holders enter the country, they are not supplied with a date certain on which they must depart. Rather, their visas are valid for the “duration of status,” or “D/S.”
6. For more than two decades, the United States has held that the unlawfulpresence clock for these individuals begins on the day after a government official or immigration judge adjudicates the individual as out-of-status. That is, unlawful presence begins at the point that an F, J, or M visa holder is provided unequivocal notice that the government believes that the individual is out-of-status.
7. This policy provided essential notice to F, J, and M visa holders. Technical or inadvertent errors can render an individual unwittingly out-of-status. Moreover, whether an individual is in-status often turns on complex issues subject to varying interpretations, and those adjudications are often at the discretion of USCIS officials.
8. On August 9, 2018, Defendants issued a new policy memorandum (August 2018 Policy Memorandum, Ex. A). The August 2018 Policy Memorandum fundamentally alters the calculation of unlawful presence for F, J, and M visa holders.
9. Now, when a government official or immigration judge determines that an F, J,
1 By “international students,” we refer to individuals who are neither U.S. citizens nor lawful permanent residents and who, prior to starting their education, typically resided outside the United States.
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or M visa holder is out-of-status, the unlawful-presence clock will be backdated to the day on which Defendants conclude that the visa holder first fell out-of-status. The immigration system is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits. Thus, the new policy’s use of a backdated unlawful-presence clock will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure.
10. This policy is intentionally designed to impose tens of thousands of reentry bars on F, J, and M visa holders each year.
11. This policy, accordingly, will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith.
12. The imposition of a reentry bar on an international student or exchange visitor has a drastic effect on her life. It will preclude her from completing her degree program, deprive her of employment opportunities, and exclude her from friends and family living in the United States. For those students and visitors who have chosen to teach or work in the United States, imposition of a three- or ten-year reentry bar will fundamentally and irreparably injure their lives. It also imposes a financial harm on institutions in terms of lost tuition dollars and local communities in terms of foregone discretionary expenditures by bias holders.
13. This policy thus drastically injures holders of F, J, and M visas. Moreover, by disrupting the ability of these individuals to continue studying at their schools—or continuing their research, teaching, or other scholarly pursuits—the August 2018 Policy Memorandum fundamentally upsets student-school and employee-school relationships. This results in concrete, significant harms to colleges and universities, including through the loss
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of irreplaceable community members, loss of tuition dollars, and loss of trained employees. 14. This new policy is unlawful for several reasons. 15. To begin with, Defendants failed to undertake the notice and comment required
in these circumstances. Defendants did not publish advance notice of this rule in the Federal Register, did not provide reasoned responses to public comments, did not undertake the required Regulatory Flexibility Act analysis, and did not comply with the whole host of requirements imposed by the Administrative Procedure Act (“APA”).
16. The policy is also arbitrary and capricious. Defendants assert that the advent of a computer database in August 2003 justifies the policy change. But Defendants had previously reaffirmed this policy many years after that computer database came online. And the policy is arbitrary and capricious for several other reasons. For example, the August 2018 Policy Memorandum relies on erroneous data and erects arbitrary distinctions among similar classes of individuals.
17. The policy violates the statutory text. In 1996, Congress created a new concept of “unlawful presence.” As Defendants have said in prior memoranda, “unlawful presence” must be understood as distinct from the concepts that previously existed. Because Defendants’ new policy is at odds with the statutory text, it is unlawful.
18. The policy violates protections guaranteed by the Due Process Clause. The August 2018 Policy Memorandum will result in the imposition of three- and ten-year bars on individuals without notice or the opportunity to cure. The Constitution forbids such unforeseeable and arbitrary government conduct.
19. For these reasons and others, the Court should vacate the August 2018 Policy Memorandum, declare it unlawful, and enjoin Defendants from applying it.
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PARTIES Plaintiffs 20. Plaintiffs in this case include multiple leading higher education institutions. Each school counts as students, employees, and exchange visitors a significant number of individuals who are present in the United States based on an F, J, or M visa. 21. Plaintiff Guilford College is a private, liberal arts college in Greensboro, North Carolina. Guilford was originally founded in 1837. 22. Guilford currently enrolls approximately 26 students on F-1 visas. Additionally, Guilford has approximately six alumni F visa holders on post-completion optional practical training. 23. Guilford is required to terminate student I-20s when students fall out-of-status. In view of the August 2018 Policy Memorandum, some I-20 terminations will result in students being saddled with a three- or ten-year reentry bar. 24. Plaintiff Guilford College International Club is a student association at Guilford College. 25. Guilford College International Club is an unincorporated, voluntary association, and its members include Guilford College students present in the United States on F-1 visas. It has two or more members, and they are joined together by mutual consent for a common, nonprofit purpose. 26. Guilford College International Club has regular meetings of its members. 27. Guilford College International Club counts as among its mission the advocacy for the rights of its international student members within the United States. 28. Plaintiff The New School is a private research university located in New York
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City. The New School consists of the Parsons School of Design, the Eugene Lang College of Liberal Arts, The New School for Social Research, the Schools of Public Engagement, and the College of Performing Arts.
29. More than 10,000 students are enrolled at The New School. Over 30 percent of The New School’s students are international. The New School features one of the highest—if not the highest—proportions of international students among all higher education institutions in the Nation.
30. Currently, The New School has among its community approximately 3,600 international students on F-1 visas.
31. Many of The New School’s 3,600 international students have on-campus employment—and are thus employees of The New School—consistent with the terms of the F-visa regulations.
32. The New School also has roughly an additional 900 F-1 alumni currently completing optional practical training.
33. The New School has approximately 100 students on J visas and roughly an additional 38 J-1 scholars.
34. Each year, The New School is obligated to terminate dozens of I-20s because of identified status violations.
35. In some (if not many) of these cases, the August 2018 Policy Memorandum will result in the imposition of a three- or ten-year reentry bar.
36. Recently, because of the August 2018 Policy Memorandum, a student of The New School left the United States in order to take the correct action to regain her status but subsequently took a semester-long leave of absence out of fear of accruing unlawful-
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presence time under the new policy. That fundamentally disrupted the student-university relationship, and The New School lost tuition as a result. But for the August 2018 Policy Memorandum, the student would not have stopped her education with The New School.
37. Another student at The New School, a doctoral candidate, had an I-20 with a program end date of June 30, 2018. This student has been at The New School since 2012. Because of financial constraints, the student was unable to extend the I-20, as the Designated School Officer was unable to determine that the student could support themselves. To avoid accruing unlawful presence under the August 2018 Policy Memorandum, the student was required to travel in order to restart the I-20, which came at significant cost.
38. The August 2018 Policy Memorandum has caused The New School to change its policies and practices regarding international students. For example, the new policy has caused The New School to defer advising with respect to students’ change-of-status and reinstatement applications. The institution is more likely to refer a student to an outside immigration lawyer. That increases the costs to the students and imposes delay burdens on The New School.
39. Plaintiff Foothill-De Anza Community College District is a public district of community colleges located in Cupertino, California. The district operates Foothill College and De Anza College.
40. Currently, the Foothill-De Anza Community College District has more than 2,500 international students on F-1 visas.
41. Each year, the Foothill-De Anza Community College District is required to terminate I-20s when it identifies that students are out-of-status. Under the August 2018 Policy Memorandum, many students identified as out-of-status will be subject to a three- or
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ten-year reentry bar. That is because, when Foothill-De Anza Community College District identifies a status violation, sometimes more than 180 days will have elapsed from the underlying facts giving rise to that violation.
42. Plaintiff Haverford College is a private, liberal arts college located in Haverford, Pennsylvania. Haverford was founded in 1833. More than 1,300 students are enrolled at Haverford.
43. Haverford counts among its community approximately 148 students on F-1 visas. Haverford also has one student on a J visa.
44. In addition, Haverford has approximately 17 alumni on F visas who are still in the United States during a period of optional practical training.
45. In response to the August 2018 Policy Memorandum, Haverford has changed its practices regarding international students. It now makes different advising decisions. For example, prior to the August 2018 Policy Memorandum, Haverford would provide its students a range of advice regarding compliance with visa status. Following that memorandum, Haverford more frequently advises its students to consult with outside immigration lawyers, which imposes added burden and delay on students and Haverford alike.
46. In particular, as a result of the August 2018 Policy Memorandum, Haverford recently was required to ask two international students to leave the campus based on potential status violations that, prior to the new policy, would not have disrupted their studies. This upset the crucial student-university relationship with these students and has irreparably disrupted these students’ educational plans, and Haverford has lost tuition as a result.
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Defendants 47. Defendant Kirstjen Nielsen is the Secretary of Homeland Security and therefore the “head” of the Department of Homeland Security. 6 U.S.C. § 112(a)(2). Under the Immigration and Nationality Act, she is charged with administering and enforcing the federal immigration and nationality laws. 8 U.S.C. § 1103(a)(1), (3). She is sued in her official capacity. 48. Defendant Department of Homeland Security (“DHS”) is the executive department charged with authority over federal immigration law (see 6 U.S.C. § 251) and an “agency” within the meaning of the APA (5 U.S.C. § 551(1)). 49. Defendant L. Francis Cissna is the Director of U.S. Citizenship and Immigration Services and therefore the “head” of that agency (6 U.S.C. § 271(a)(2)). He is sued in his official capacity. 50. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is a component of DHS (6 U.S.C. § 271) and an “agency” within the meaning of the APA (5 U.S.C. § 551(1)). USCIS is the component of DHS that issued the August 2018 Policy Memorandum.
JURISDICTION AND VENUE 51. This Court has federal question jurisdiction over Plaintiffs’ complaint under 28 U.S.C. § 1331. It has the authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202; 5 U.S.C. §§ 705, 706(1), 706(2)(A)-(D); and its general equitable powers. 52. The APA provides a cause of action for parties adversely affected by final agency action when “there is no other adequate remedy in a court.” 5 U.S.C. § 704. That
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condition is met in this case because the August 2018 Policy Memorandum is a “final agency action” within the meaning of the statute and there is no other adequate remedy available in any other court.
53. Venue is proper in this district under 28 U.S.C. § 1391(e)(1) because Defendants are officers or agencies of the United States and one or more Plaintiffs reside in the district within the meaning of 28 U.S.C. § 1391(d).
FACTUAL BACKGROUND Immigration for Higher Education and Research Institutions
Provides Innumerable Benefits to the United States 54. Many of the world’s leading higher education and research institutions are located in the United States. More than a million individuals travel to the United States each year to study, research, or teach on F, J, or M visas. 55. Most international visitors require a visa to be admitted to the United States. Nearly all international students who travel to the United States from abroad are admitted via an F, J, or M visa. 56. An F visa authorizes an international individual to enter the United States on a non-immigrant basis to pursue an educational program. Students on an F visa must be enrolled at an institution that participates in the Student and Exchange Visitor Program (SEVP). 57. An M visa authorizes international individuals to study at a vocational or technical school. Like those on F visas, students on an M visa must be enrolled at an approved institution. 58. Students on F and M visas come from every continent in the world except Antarctica, with more than 229 countries and territories represented in the U.S. academic
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community. See ICE, SEVIS by the Numbers: Biannual Report on International Student Trends, 7 (Apr. 2018), goo.gl/d4gy2A.
59. In March 2018, approximately 1.2 million individuals were present in the United States on either an F or M visa. Id. at 3. Of these, approximately 400,000 students were enrolled in a bachelor’s degree program, while nearly as many were seeking a Master’s degree. Id. at 5.
60. In March 2018, approximately 8,700 schools have been certified by SEVP as eligible to enroll international students. Id. at 13.
61. A J visa is a non-immigrant visa issued to individuals who participate in an authorized “Exchange Visitor Program.” The U.S. Department of State has authorized more than 1,500 academic institutions, for-profit and non-profit private sector organizations, or federal, state, and local government entities to operate such a program. The vast majority of these designated programs are accredited American institutions of higher education. Participants in such programs include students, research scholars, professors, teachers, physicians, au pairs, camp counselors, and several other categories of individuals.
62. More than 300,000 J visas were issued in 2017. 63. As of March 2018, around 210,000 individuals were present in the United States on a J visa. 64. Many U.S. colleges have determined that a robust community of international students is essential to the educational mission for all students—domestic and international alike. Domestic students gain critical new insights by living and studying with international students. These diverse environments teach essential values of multiculturalism and tolerance, breaking down stereotypes of the “other.” International students, similarly, learn
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from their American counterparts, gaining new experiences and perspectives that will benefit them for life.
65. Recruiting leading international students, researchers, and academics to U.S. schools is also crucial to ensuring that the United States retains its perch as the leader of the academic world. Higher education institutions are at the forefront of developing critical new technologies—in fields as diverse as healthcare, pharmaceuticals, computing, energy, and transportation. This innovation ensures the United States’ status as the premier economic global force, thanks in significant measure to contributions by international students.
66. In the 2016 to 2017 school year, international students contributed nearly $37 billion to the U.S. economy and created or supported more than 450,000 jobs. See NAFSA, NAFSA International Student Economic Value Tool, goo.gl/kN6gSb. International students also contribute substantially to the economic health of the thousands of colleges and universities at which they enroll and thus pay tuition. For many of these communities, the higher education institution is the main engine or even sole guarantor of economic wellbeing.
“Unlawful Presence” 67. In the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Congress introduced sanctions for non-U.S. persons who are “unlawfully present” in the United States. The concept of “unlawful presence” had never previously existed in U.S. immigration law. 68. According to the statute, “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” 8 U.S.C. § 1182(a)(9)(B)(ii).
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69. If an individual accrues more than 180 consecutive days (but less than a year) of unlawful presence, the individual is barred from reentering the United States for a period of three years. 8 U.S.C. § 1182(a)(9)(B)(i)(I). If the individual has been unlawfully present in the United States for a year or more, the individual is barred from reentering the United States for a period of ten years. Id. § 1182(a)(9)(B)(i)(II).
70. When many categories of non-immigrants are admitted to the United States— such as most individuals coming to the United States as tourists or to temporarily engage in business—they are provided with a date certain on which their authorized period of stay expires, according to the I-94 Record of Admission. In these circumstances, calculating “unlawful presence” is relatively straightforward. If the individual stays after the specific date authorized, the individual begins to accrue “unlawful presence” time.
71. But most individuals admitted to the United States on F, J, and M visas are not provided a date certain on which their authorized period of stay expires. Rather, they are admitted for the “duration of status,” or “D/S.”
The Legacy Policy 72. Since 1997, Defendants—and their predecessors, including the Immigration and Naturalization Service—had adopted a consistent policy in practice for calculating “unlawful presence,” including as it related to individuals admitted for a “duration of status.” 73. In the August 2018 Policy Memorandum, Defendants explain the prior policy: “foreign students and exchange visitors (F and J non-immigrants, respectively) who were admitted for, or present in the United States in, duration of status (D/S) started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an
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immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.” Ex. A at 1.
74. INS issued a memorandum on September 19, 1997, entitled “Section 212(a)(9)(B) Relating to Unlawful Presence.” Ex. D. Written by Paul Virtue, then-Acting Executive Associate Commissioner, this document is often referred to as the “Virtue Memo.”
75. The Virtue Memo provides: “Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment). Unlawful presence for a nonimmigrant may begin to accrue before the expiration date noted on the I-94, however, in two circumstances: (1) when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings, or (2) when the Service makes such a determination during the course of adjudicating a benefit application.” Ex. D at 2.
76. On May 6, 2009, USCIS issued an “Interoffice Memorandum” that it titled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(c)(i)(I).” See Ex. C. That memorandum canvassed thenexisting policies regarding unlawful presence and recodified them into the Adjudicator’s Field Manual.
77. That memorandum provided: “Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order. It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which
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removal proceedings are initiated.” Ex. C at 25 (emphasis added). The August 2018 Policy Memorandum
78. On May 11, 2018, Defendants posted a memorandum (dated May 10, 2018) indicating an intent to revise longstanding policy and legal interpretation regarding the definition and calculation of “unlawful presence.” See Ex. B.
79. On August 9, 2018, Defendants issued a Policy Memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memorandum is designated as PM-602-1060.1. It is attached as Exhibit A.
80. Pursuant to this new policy, USCIS will start the unlawful-presence clock not on the date that an individual on an F, J, or M visa is adjudicated as being out-of-status. Instead, USCIS will backdate “unlawful presence” to the date on which the underlying facts that gave rise to the status violation occurred.
81. Thus, under the new policy, “[a]n F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on . . . [t]he day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.” Ex. A at 4.
82. This new policy imposes a non-discretionary duty on USCIS officers. It binds and preordains their actions in all cases within the scope of the policy.
83. The August 2018 Policy Memorandum asserts certain overstay rates as a basis for reversing 21 years of policy. In particular, it asserts that the overstay rate is 6.19 percent for F-visa non-immigrants, 3.8 percent for J-visa non-immigrants, and 11.6 percent for Mvisa non-immigrants. Ex. A at 2.
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84. The overstay rates asserted in the August 2018 Policy Memorandum are misleading and inaccurate. In fact, USCIS does not have any accurate means of assessing overstay rates. SEVIS does not include a means to track departures from the United States by F, J, and M visa holders.
85. USCIS cites “out-of-country” overstay rates, describing individuals whose departure was recorded after their lawful period of admission expired. This likely encompasses individuals who stayed just a few days longer than the conclusion of their program to tie up their personal affairs and is not a true representation of the “overstay” population with which Defendants are concerned. Indeed, regulations specifically authorize individuals to stay in the United States during 30- and 60-day grace periods.
86. The “in-country” overstay rates have been calculated at much lower rates by Defendants.
87. The source on which USCIS relies for this information recognizes that calculating overstay rates is difficult and uncertain.
88. USCIS has admitted to being unable to know with certainty when many individuals on F, J, and M visas depart the United States. During an August 2018 stakeholder call, a DHS official conceded this point.
89. The August 2018 Policy Memorandum draws a distinction among nonimmigrant classes without justification. Per the terms of the policy, individuals on F, J, or M visas begin accruing “unlawful presence” on the date that the facts give rise to that finding, while different “date certain” accrual rules apply to all other visa classes.
90. The August 2018 Policy Memorandum fails to offer any good reason to support the policy change.
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91. The August 2018 Policy Memorandum asserts that “the Student and Exchange Visitor Information System (SEVIS)” “has provided USCIS officers additional information about an alien’s immigration history, including information that indicates that an alien in F, J, or M nonimmigrant status may have completed or ceased to pursue his or her course of study or activity.” Ex. A at 2.
92. The August 2018 Policy Memorandum fails to recognize the fact that SEVIS was created in 2002, and it was in effect no later than 2003. Defendants have offered no explanation as to why, 16 years later, the creation of SEVIS justifies a major policy change regarding unlawful presence.
93. When Defendants reaffirmed their earlier policy in the May 2009 Policy Memorandum, SEVIS had been operational for nearly six years.
94. The August 2018 Policy Memorandum identifies no change in facts or circumstances since the May 2009 Policy Memorandum.
95. The August 2018 Policy Memorandum does not identify any evidence that SEVIS has in fact aided accuracy.
96. Any contention by Defendants that SEVIS creates accurate adjudications is incorrect. As Defendants are aware, SEVIS is plagued with inaccurate information. For example, port-of-entry information entered into the system is often incorrect.
Promulgation of the Memorandum 97. Defendants did not undertake notice-and-comment rulemaking prior to issuing the August 2018 Policy Memorandum. 98. On May 10, 2018, Defendants issued a Policy Memorandum (May 2018 Policy Memorandum), proposing to change policy with respect to unlawful presence calculations
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for F, J, and M visa holders. See Ex. B. The May 2018 Policy Memorandum purported to provide for a period of public comments. See Ex. B at 1.
99. Members of the public submitted comments in response to the May 10 notice, but the agency did not provide a reasoned response to those comments.
100. Defendants prepared no initial regulatory flexibility analysis. 101. The May 10 notice was not submitted for review by the Office of Management and Budget and was not published in the Federal Register. 102. None of the statutory exceptions to the requirement of notice-and-comment rulemaking is applicable here. See 5 U.S.C. § 553(b). 103. For example, the August 2018 Policy Memorandum reflects a legislative policy judgment, not interpretive guidance. The August 2018 Policy Memorandum does not engage in “interpretation” of the underlying statute. It does not quote the statutory text or explain how the policy it reflects is the better interpretation of the legal text compared with the status quo ante, which reflects more than 20 years of practice. 104. To the extent that Defendants provide any reasons at all for the policy, the reasoning is entirely policy-based. 105. The August 2018 Policy Memorandum was promulgated to effect Defendants’ belief that it is a better policy compared with the status quo ante and thus should be the governing rule. 106. The August 2018 Policy Memorandum causes a change in existing law or policy. The Memorandum expressly and repeatedly describes itself as establishing a “new policy,” displacing the “former INS policy.” E.g., Ex. A at 2-3. 107. The August 2018 Policy Memorandum states a new policy that is a matter of
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considerable importance to the class of individuals it regulates, the higher education
community, and the American public at large.
108. The August 2018 Policy Memorandum sets forth policy with present, binding
effect.
109. The August 2018 Policy Memorandum admits of no discretion in its
enforcement. Adjudicators must follow the Memorandum’s requirements, with no choice.
110. The August 2018 Policy Memorandum has the force of law.
111. The August 2018 Policy Memorandum amends the USCIS Adjudicator’s Field
Manual. That Manual indicates that policy determinations of this sort are “binding” on
USCIS employees: “All material which is designated as policy material is binding upon all
employees of USCIS, unless or until it is specifically superseded by other policy material.
There are no exceptions to this rule.” USCIS, USCIS Adjudicator’s Field Manual § 3.4(b),
goo.gl/wnKdkx.
112. USCIS Adjudicator’s Field Manual provides extensive guidance on
distinguishing “correspondence” and “policy” materials. The Manual states:
(a) Distinction between Correspondence and Policy.
Headquarters and regional components are responsible for issuing a large volume of written material to field offices, the general public, congressional office and members of the private immigration bar. The vast majority of this material is a response to a direct, specific inquiry or a “hypothetical” situation. Other material is prepared as implementing instructions to accompany a new USCIS-wide program, policy or regulation. It is important to note that there is a distinction between “correspondence” and “policy” materials. Policy material is binding on all USCIS officers and must be adhered to unless and until revised, rescinded or superseded by law, regulation or subsequent policy, either specifically or by application of more recent policy material. On the other hand, correspondence is advisory in nature, intended only to convey the author’s point of view. Such opinions should be given appropriate weight by the recipient as well as other USCIS employees who may encounter
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similar situations. However, such correspondence does not dictate any binding course of action which must be followed by subordinates within the chain of command. Examples of policy materials are: . . . Field and Administrative Manuals . . . Memoranda and cables from Headquarters specifically designated as policy (bearing the “P” suffix in the reference file number). USCIS, USCIS Adjudicator’s Field Manual § 3.4(b), goo.gl/wnKdkx (emphasis added). 113. The August 2018 Policy Memorandum uses a “P” suffix in the reference file number for the August 2018 Policy Memorandum, PM-602-1060.1. Ex. A at 1. 114. The “P” suffix confirms that USCIS views the August 2018 Policy Memorandum as the sort of binding policy memorandum that permits no discretion. The Manual contrasts this with ten categories of correspondence—including “USCIS and General Counsel opinions” and “Training materials”—which are not binding. 115. When USCIS deems an individual to be unlawfully present and subject to a three- or a ten-year reentry bar, that bar applies only after an individual exits the United States and subsequently seeks to reenter the United States or reapplies for an immigration benefit. At that time, the doctrine of consular non-reviewability precludes judicial review of any USCIS determination regarding unlawful presence. 116. There is no meaningful way in which most individuals subject to a reentry bar may seek judicial review over that determination. 117. Thus, while the August 2018 Policy Memorandum imposes binding obligations on USCIS officers, and while those obligations will have severe consequences on the
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individuals regulated as well as the academic communities to which they belong, those
individual decisions by USCIS officers are not judicially reviewable.
118. While unlawful presence has a discretionary waiver process, the statute (8
U.S.C. § 1182(a)(9)(B)(v)) and regulation (8 C.F.R. § 212.7(e)(10)-(11)) make clear that
waiver decisions are non-reviewable.
Harm Inflicted on International Students, Researchers, Employees, and Their Sponsoring Institutions
119. Promulgation of the August 2018 Policy Memorandum impairs the interests of
students and employees at each institution who are present on F, J, and M visas.
120. Under the new policy, many more international students and employees will be
subject to a three- or ten-year reentry bar as compared with the previous regulatory
framework, even in the absence of any bad faith or even knowing conduct.
121. There are a multitude of ways in which a well-intentioned individual on an F,
J, or M visa can be adjudicated out-of-status. Some of these include:
A. Information update: Failure of F, J, or M visa holder to update a Designated School Officer (DSO) regarding a change to information, including a change in address.
B. Course load: Failure to obtain proper approval for dropping below the minimum course load. Alternatively, USCIS may retroactively deny a request for a student to take a course-load below that typically required.
C. Excess work: A student on an F or M visa authorized to work 20 hours per week on campus works an hour extra one week to complete a deadline.
D. Unauthorized employment: Any employment by the spouse or child of an F, J, or M visa holder, including services as innocuous as babysitting.
E. Designated School Officer (DSO) error: There are a litany of errors a DSO may inadvertently make that may render a student out-of-status.
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Just a few examples include:
(i) Making a typographical error in SEVIS.
(ii) Erroneously identifying a student as having completed a course of study.
(iii) Inadvertently failing to register a student as returning for a particular semester.
(iv) Mistakenly entering an incorrect, premature school transfer date.
F. Curricular Practical Training (CPT): Curricular practical training, is the ability of some international students to work while attending school. For those international students on high financial aid, this can be a necessity if their home countries do not have a tax treaty with the U.S. disburdening them of the requirement of paying U.S. income tax on aid in excess of tuition; this tax can amount to thousands of dollars. CPT creates many opportunities for an individual to violate status:
(i) Eligibility error: After the fact, USCIS determines that CPT is not sufficiently “integral” to student’s education and thus finds the CPT an unauthorized form of employment.
(ii) OPT implications: Student is not informed that a full year or more of CPT may preclude post-completion optional practical training.
G. Optional Practical Training (OPT): Students may generally apply for one year of post-graduate employment, called OPT, if it is training related to the completion of one’s education. For students obtaining a degree in science, technology, engineering, or math (STEM), the student may extend OPT for an additional two years (STEM OPT) to complete their education. There are many ways in which an individual may inadvertently fall out-of-“status” in connection with OPT and STEM OPT:
(i) Program approval: Retroactive determination by USCIS that a student’s “optional practical training” does not qualify as sufficiently related to a student’s degree.
(ii) Absence reporting: Failure of the employer of a student on optional practical training to provide a report as to any absence by a student.
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(iii) Training plan: Failure of the employer of a student on optional practical training to provide a report as to any changes made to the student’s training plan.
(iv) Self-evaluation: Failure of a student to provide an annual selfevaluation report or final evaluation—signed by the employer— regarding optional practical training.
(v) Third-party placement: Error made regarding third-party placement during an optional practical training designation.
(vi) Worksite transfer: USCIS determination, after the fact, that an international assignment was an impermissible worksite transfer.
(vii) Miscalculation of unemployment periods: DSO failure to properly calculate a student’s unemployment periods between jobs, such that USCIS may determine that a student was not properly within STEM OPT status.
122. Many of these determinations rest on discretionary judgments by USCIS. Thus,
it is impossible for an F, J, or M visa holder—or the institution of which they are a
member—to know at the outset what conduct will render an individual out-of-status.
123. Under the prior policy, the unlawful-presence clock began after USCIS made
these often-discretionary adjudications. That provided individuals 180 days to order their
affairs and exit the country without accruing any reentry bar—or to otherwise regain status
and avoid a reentry bar.
124. It was standard practice—endorsed by Defendants—for students who had
fallen out-of-status to exit the country, and then reenter, beginning a new legal status.
Students and other individuals operating in good faith could thus generally cure an out-of-
status finding, and therefore continue their education or cultural exchange programs in the
United States.
125. The August 2018 Policy Memorandum, however, will backdate unlawful
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presence. That means that individuals will have less than 180 days, or often no time at all, to leave the country prior to being subject to a reentry bar.
126. In fact, because of delays in USCIS processing and immigration court backlogs, most of these adjudications will occur more than 180 days after the underlying facts giving rise to a status violation. In those circumstances, an F, J, or M visa holder will automatically be subject to a three-year reentry bar with no opportunity to cure whatsoever.
127. Because of processing delays, and also because USCIS may make a statusviolation finding during a subsequent request for adjustment of status, many of these adjudications will occur 365 days or more after the underlying facts giving rise to a status violation. In those circumstances, an F, J, or M visa holder will automatically be subject to a ten-year reentry bar with no opportunity to cure whatsoever.
128. By design, the August 2018 Policy Memorandum will result in many more holders of F, J, and M visas being subject to three- and ten-year reentry bars.
129. When a student on an F, J, or M visa is subject to a reentry bar, that student is not able to continue enrollment at the academic institution. This disrupts the student-school relationship. It also costs the school tuition revenue.
130. Moreover, because the August 2018 Policy Memorandum starts the unlawfulpresence clock at an earlier time, it causes colleges and universities to make different decisions about international students, including by requiring international students to stop their education following a finding by the school that there has been an inadvertent status violation.
131. When an individual participating in a J-visa cultural exchange program is subject to a reentry bar, Plaintiff loses that valuable, trained member of the community. The
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institution suffers financial losses when it must hire and train new individuals to fulfill the duties of the individual barred from reentering the country. This harm accrues with respect to international research scholars and others on cultural exchange programs. It also stems from students who work for the university in connection with an approved on-campus employment.
132. When a researcher on a J-1 visa is forced to leave the United States, the university or college irreparably loses valuable research projects. The researcher’s career is forever disrupted. And the critical relationship between researcher and employer is upset.
133. Plaintiffs provide international students and exchange visitors material advice as to what they may and may not do to maintain their visa status. Plaintiffs have developed these policies and practices in reliance on the fact that an F, J, or M visa holder will not begin to accrue “unlawful presence” unless and until a government official adjudicates the individual as out-of-status. Plaintiffs’ policies thus relied on the preexisting policy. The August 2018 Policy Memorandum topples the basis on which Plaintiffs and other institutions structured their international student advising offices, policies, and practices.
134. Now, many schools and universities have changed the advising they provide, and they provide fewer advising services to their international students and researchers. That constitutes a loss to the university or college: the institution is unable to service the critical needs of its community members, precisely because the August 2018 Policy Memorandum upset long-settled expectations.
STANDING 135. Plaintiffs have both independent standing and associational standing.
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Independent Standing of University Plaintiffs 136. Because the August 2018 Policy Memorandum was issued without being submitted through formal notice-and-comment rulemaking, Plaintiffs had no meaningful opportunity to provide pre-decisional comments and feedback to the agency. Defendants’ failure to provide an adequate opportunity for public comment prior to acting has caused both Plaintiffs and their students and employees injury. All Plaintiffs therefore have been aggrieved by promulgation of the Rule. See generally JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). 137. Plaintiffs invest substantial resources in programs designed to assist their students and employees with obtaining and maintaining lawful immigration status. In particular, Plaintiffs, as SEVP-certified institutions, have hired and are required to train Designated School Officers that provide advice to each institution’s international students. The Rule has changed the regulatory framework and consequently will require Plaintiffs to expend additional resources on new training and assistance. Plaintiffs therefore have standing to challenge the Rule in their own right. See generally Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982). 138. Because the August 2018 Policy Memorandum makes it significantly easier for well-intentioned students to become subject to a three- or ten-year bar to reentry, many students will have their educations in this country fundamentally disrupted. 139. The loss to the campus environment is substantial: the school is injured because the August 2018 Policy Memorandum removes a student that the school had specifically chosen to attend. That imposes a direct, irreparable harm on the institution and all its members.
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140. Additionally, Plaintiffs will lose tuition revenue from international students who are subject to three- and ten-year reentry bars.
141. The August 2018 Policy Memorandum will also chill international students’ willingness to attend institutions of higher education, including the Plaintiff institutions, in the United States. This chilling effect will further cause a loss of revenue to Plaintiffs, and it will hinder the ability of Plaintiffs to attract the international, diverse community that they believe essential.
142. Plaintiffs’ injuries are caused directly by the August 2018 Policy Memorandum. And their injuries would be redressed by an order vacating, invalidating, or otherwise declaring unlawful the August 2018 Policy Memorandum.
143. Because of potential liability stemming from the consequences of advising students, many colleges and universities are reducing the scope of advising supplied to international students and other international members of their communities.
Associational Standing of University Plaintiffs 144. Plaintiffs’ students have standing to sue in their own right as parties regulated under the August 2018 Policy Memorandum. 145. Neither the claims asserted nor the relief requested in this lawsuit requires individual students’ or employees’ participation in this lawsuit. 146. Plaintiffs’ missions as institutions of higher education include representing and advocating for the interests and rights of their students and employees before government bodies. 147. Plaintiffs’ students and employees are formal members of each school. Students pay tuition, dues, and other fees and are accordingly afforded the formal benefits of
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membership in the school community. Each Plaintiff is therefore a formal association of students and faculty who join together in pursuit of their educational mission.
148. Plaintiffs’ and their members’ injuries would be redressed by an order vacating, invalidating, or otherwise declaring unlawful the August 2018 Policy Memorandum.
Associational Standing of Guilford College International Club 149. Guilford College International Club is a voluntary association whose members include Guilford students present in the United States on F-1 visas. 150. Members of Guilford College International Club present in the United States on F-1 visas have standing to sue in their own right as parties regulated under the August 2018 Policy Memorandum. 151. Neither the claims asserted nor the relief requested in this lawsuit requires individual members’ participation in this lawsuit. 152. Guilford College International Club’s mission includes advocating for the rights of its international student members. In celebrating and advocating for diversity, moreover, Guilford College International Club counts as among its mission advocating for policies that ensure its members present on F-1 visas have full and fair opportunity to be present in the United States without undue fear about the imposition of a three- or ten-year reentry bar. 153. Guilford College International Club’s and their members’ injuries would be redressed by an order vacating, invalidating, or otherwise declaring unlawful the August 2018 Policy Memorandum.
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FIRST CAUSE OF ACTION: THE AUGUST 2018 POLICY MEMORANDUM WAS ISSUED WITHOUT
OBSERVANCE OF PROCEDURE REQUIRED BY LAW 154. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 155. Under the Administrative Procedure Act, an agency must provide “[g]eneral notice of proposed rule making … published in the Federal Register” whenever the agency seeks to promulgate a rule. 5 U.S.C. § 553(b). After the agency has published the required notice, “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” Id. § 553(c). 156. Following the submission of comments, the agency must then respond to those comments. “[I]nextricably intertwined with . . . 5 U.S.C. § 553(c) is the agency’s need to respond, in a reasoned manner, to any comments received by the agency that raise significant issues with respect to a proposed rule.” Mid Continent Nail Corp. v. United States, 846 F.3d 1364, 1379 n.11 (Fed. Cir. 2017). “[C]onsideration of comments as a matter of grace is not enough. It must be made with a mind that is open to persuasion.” Advocates for Highway & Auto Safety v. Fed. Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994) (citation and alteration omitted). 157. Several other legal obligations follow from a Section 553 rulemaking procedure. For example, 5 U.S.C. § 603 requires the preparation of an “initial regulatory flexibility analysis.” 158. Defendants did not undertake notice-and-comment rulemaking prior to issuing the August 2018 Policy Memorandum. 159. Defendants prepared no initial regulatory flexibility analysis. 160. Although the agency purported to accept comments in its May notice, this
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procedure was not an authorized alternative to the required rulemaking. 161. The August 2018 Policy Memorandum was therefore issued “without
observance of procedure required by law” and is invalid under 5 U.S.C. § 706(2)(D). SECOND CAUSE OF ACTION:
THE AUGUST 2018 POLICY MEMORANDUM IS SUBSTANTIVELY ARBITRARY AND CAPRICIOUS 162. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 163. The August 2018 Policy Memorandum constitutes a substantial change in policy from approximately 20 years of prior behavior. 164. “[U]nexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (citation and quotation marks omitted). Defendants have failed to provide “good reasons for the new policy.” Id. 165. Defendants assert that the basis for the policy change is enhanced accuracy in their data that has been caused by the use of SEVIS. But Defendants fail to recognize that SEVIS has been fully operational since August 2003, and Defendants fail to identify any change in circumstances since May 2009, when they previously reaffirmed their longstanding policy. 166. Defendants also rely on faulty data. Assuming for the sake of argument that the overstay rate is relevant, Defendants have relied on the wrong and inaccurate data in assessing the overstay rate. 167. Defendants have failed to identify any match between the alleged problem— asserted overstays of F, J, and M visa holders—and the August 2018 Policy Memorandum. Given that the new policy fails to identify how it will address overstay rates, the policy is
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arbitrary and capricious. 168. The status quo ante has engendered serious reliance interests that must be taken
into account. Defendants did not acknowledge these interests or take them into account. 169. Moreover, Defendants now treat similarly situated individuals differently.
USCIS does not, for example, backdate an out-of-status finding regarding an individual on an H-1B visa for purposes of unlawful presence. This is consistent with the statutory definition and over 20 years of interpretation. The August 2018 Policy Memorandum singles out F, J, and M visa holders, subjecting them to unique, harsh regulations. Defendants do not address, much less justify, why individuals on F, J, and M visas are treated more harshly than are individuals present in the United States via other kinds of visas.
170. The August 2018 Policy Memorandum accordingly is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and is invalid under 5 U.S.C. § 706(2)(A).
THIRD CAUSE OF ACTION: THE AUGUST 2018 POLICY MEMORANDUM IS INCONSISTENT WITH THE STATUTORY TEXT 171. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 172. The August 2018 Policy Memorandum is “unlawful” because it is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). Because the policy conflicts with the governing statute, it is invalid and may not be enforced. 173. 8 U.S.C. § 1182(a)(9)(B)(ii) provides in relevant part that “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General.” 174. This statute created the concept of “unlawful presence.” The concept did not
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previously exist in immigration law. 175. Prior to 1996, however, other related concepts had existed. In particular, prior
statutes addressed individuals in “unlawful status” (see, e.g., 8 U.S.C. § 1255a) and “unlawful immigration status” (see, e.g., id. § 1255). The 1996 Act did not use the wellestablished concept of “status,” but instead created a new category of “unlawful presence.”
176. USCIS observed in 2009 that there is a critical distinction between unlawful status and unlawful presence. As USCIS wrote in its May 2009 memorandum (Ex. C at 9):
(2) Distinction Between “Unlawful Status” and “Unlawful Presence” To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(I) of the Act, it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (“period of stay not authorized”). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same. As discussed in chapters 40.9.2(b)(2) and (3), there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. 177. The plain statutory text dictates the same result here. When a visa holder is provided a date certain on which the visa expires, including via a date certain on a Form I-94, then the “expiration” of the “period of stay authorized by the Attorney General” is concrete. The period of stay authorized expires on the date stated. 178. By contrast, when a visa holder is admitted for the “duration of status,” the “period of stay authorized” reaches “expiration” when the Attorney General makes a finding that the person is out-of-“status,” a decision which thus terminates the “period of stay authorized.” 179. 8 U.S.C. § 1202(g) likewise applies to an individual who has “remained in the
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United States beyond the period of stay authorized by the Attorney General.” The prevailing policy embodied in this statute is at odds with the August 2018 Policy Memorandum.
180. The August 2018 Policy Memorandum is therefore “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” and is invalid under 5 U.S.C. § 706(2)(C).
FOURTH CAUSE OF ACTION: THE AUGUST 2018 POLICY MEMORANDUM VIOLATES THE
FIFTH AMENDMENT’S DUE PROCESS GUARANTEE 181. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 182. The August 2018 Policy Memorandum violates the procedural and substantive protections of the Fifth Amendment’s Due Process Clause. 183. Whether Defendants will determine that a particular individual is within permissible “status” on an F, J, or M visa is a decision that an individual cannot know with certainty at the outset. Not only do new circumstances create novel legal questions, but—in many cases—there are discretionary judgment calls and inconsistent interpretations of language in regulations and policy memoranda that determine whether someone is within or without status. 184. The holder of an F, J, or M visa cannot therefore know with any confidence what conduct will cause a USCIS official or immigration judge to later deem him or her to be outside approved “status.” 185. Under the prior policy, an individual was provided notice before he or she could be subject to the harsh penalty and restriction of freedom that is a three- or ten-year reentry bar. 186. Now, however, the August 2018 Policy Memorandum renders it impossible for
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an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her “out-of-status,” and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.
187. In this way, the August 2018 Policy Memorandum makes the imposition of the three- and ten-year bars to reentry unpredictable, vague, and arbitrary.
188. The Due Process Clause provides F, J, and M visa holders the right to notice and an opportunity to cure prior to imposition of a three- or ten-year reentry bar. Because the August 2018 Policy Memorandum precludes that essential right, it is unlawful.
189. Under the August 2018 Policy Memorandum, if an F, J, or M visa’s principal holder is deemed to be unlawfully present, so too will those individuals whose visas are derivative of and dependent upon the principal’s visa. Because those derivative visa holders may have no knowledge of the activities of the F, J, or M visa holder that renders the principal out-of-status, they lack the notice and opportunity to cure that is required by the Due Process Clause.
190. The August 2018 Policy Memorandum is therefore “contrary to constitutional right, power, privilege, or immunity” and invalid under 5 U.S.C. § 706(2)(B).
REQUEST FOR RELIEF For the foregoing reasons, Plaintiffs request that the Court: a) declare that the August 2018 Policy Memorandum is unlawful; b) vacate the August 2018 Policy Memorandum; c) enjoin Defendants from enforcing or applying any aspect of the August 2018
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Policy Memorandum; d) grant Plaintiffs their costs in this action, including reasonable attorneys’ fees
incurred; and e) award other relief that the Court deems just and proper.
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Dated: October 23, 2018

Respectfully submitted,
Paul W. Hughes (Notice of Special Appearance Forthcoming) D.C. Bar No. 997235 Michael B. Kimberly (Notice of Special Appearance Forthcoming) D.C. Bar No. 991549 Mayer Brown LLP 1999 K Street NW Washington, DC 20006 (202) 263-3000 (202) 263-3300 (fax) phughes@mayerbrown.com mkimberly@mayerbrown.com
/s/ Cory S. Menees Cory S. Menees N.C. State Bar No. 045111 Mayer Brown LLP 214 North Tryon Street, Suite 3800 Charlotte, NC 28202 (704) 444-3500 cmenees@mayerbrown.com
H. Ronald Klasko (Notice of Special Appearance Forthcoming) Klasko Immigration Law Partners, LLP 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 825-8600 rklasko@klaskolaw.com
Attorneys for Plaintiffs

Case 1:18-cv-00891 Document 1 Filed 10/23/18 Page 37 of 37

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, JIA YE, and SEN LI.
Plaintiffs,
v.
KIRSTJEN NIELSEN, U.S. DEPARTMENT OF HOMELAND SECURITY, L. FRANCIS CISSNA, and U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
Defendants.

Civil Action No. 18-cv-891 FIRST AMENDED COMPLAINT

FIRST AMENDED COMPLAINT Plaintiffs Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, Haverford College, the American Federation of Teachers, Jia Ye, and Sen Li bring this Complaint against Defendants Kirstjen Nielsen, in her official capacity as Secretary of Homeland Security; the U.S. Department of Homeland Security (“DHS”); L. Francis Cissna, in his official capacity as Director of U.S. Citizenship and Immigration Services; and U.S. Citizenship and Immigration Services (“USCIS”). Plaintiffs allege as follows.
INTRODUCTION 1. The United States is a center of global education. Because many of the world’s
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leading colleges, universities, and research institutions are located here, more than a million individuals travel to the United States each year to study and teach. On August 9, 2018, Defendants adopted a new policy that is purposefully designed to impose three- and ten-year bars to reentry on tens of thousands of these individuals. This policy is a massive reconfiguration of the immigration laws relating to higher education.
2. In 1996, Congress created the concept of “unlawful presence” and established a penalty for individuals who are “unlawfully present” in the United States. An individual who is unlawfully present for more than 180 days is barred from reentering the United States for a period of three years. An individual who is unlawfully present for a year or more is barred from reentering for ten years. These reentry bars are typically not subject to any judicial review. And, because these reentry bars preclude an individual from lawfully entering the United States for any purpose for a lengthy period of time, they fundamentally disrupt the personal and professional lives of those affected, as well as the missions of affected organizations and institutions.
3. In 1997, the United States adopted a clear policy governing the calculation of unlawful presence under this statute. Recognizing that the determination of whether an individual is “unlawfully present” in the United States is complex and will often turn on administrative discretion, the United States established objective rules that provided visa holders notice. If the authorized period of stay ended on a date certain on which the individual was required to leave the country, unlawful presence began following that date. And for all individuals, unlawful presence began the day after either a government official or immigration judge made a determination that the individual was out-of-status. This provided well-intentioned individuals an opportunity to cure their circumstances and remain in the
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country—or to depart the country within 180 days. Either way, individuals acting in good faith had an opportunity to avoid imposition of a three- or ten-year reentry bar.
4. The United States reaffirmed this policy for more than two decades, including via a May 2009 Policy Memorandum. See Ex. C.
5. The vast majority of international students1 enter the country on F or M visas, while some enter on J visas. Many international researchers, scholars, and professors at higher education and research institutions enter the country on J visas for exchange visitors. In general, when F, J, or M visa holders enter the country, they are not supplied with a date certain on which they must depart. Rather, their visas are valid for the “duration of status,” or “D/S.”
6. For more than two decades, the United States has held that the unlawfulpresence clock for these individuals begins on the day after a government official or immigration judge adjudicates the individual as out-of-status. That is, unlawful presence begins at the point that an F, J, or M visa holder is provided unequivocal notice that the government believes that the individual is out-of-status.
7. This policy provided essential notice to F, J, and M visa holders. Technical or inadvertent errors can render an individual unwittingly out-of-status. Moreover, whether an individual is in-status often turns on complex issues subject to varying interpretations, and those adjudications are often at the discretion of USCIS officials.
8. On August 9, 2018, Defendants issued a new policy memorandum (August 2018 Policy Memorandum, Ex. A). The August 2018 Policy Memorandum fundamentally
1 By “international students,” we refer to individuals who are neither U.S. citizens nor lawful permanent residents and who, prior to starting their education, typically resided outside the United States.
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alters the calculation of unlawful presence for F, J, and M visa holders. 9. Now, when a government official or immigration judge determines that an F, J,
or M visa holder is out-of-status, the unlawful-presence clock will be backdated to the day on which Defendants conclude that the visa holder first fell out-of-status. The immigration system is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits. Thus, the new policy’s use of a backdated unlawful-presence clock will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure.
10. This policy is intentionally designed to impose tens of thousands of reentry bars on F, J, and M visa holders each year.
11. This policy, accordingly, will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith.
12. The imposition of a reentry bar on an international student or exchange visitor has a drastic effect on her life. It will preclude her from completing her degree program, deprive her of employment opportunities, and exclude her from friends and family living in the United States. For those students and visitors who have chosen to teach or work in the United States, imposition of a three- or ten-year reentry bar will fundamentally and irreparably injure their lives. It also imposes a financial harm on institutions in terms of lost tuition dollars and local communities in terms of foregone discretionary expenditures by visa holders.
13. This policy thus drastically injures holders of F, J, and M visas. Moreover, by disrupting the ability of these individuals to continue studying at their schools—or continuing their research, teaching, or other scholarly pursuits—the August 2018 Policy
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Memorandum fundamentally upsets student-school and employee-school relationships. This results in concrete, significant harms to colleges and universities, including through the loss of irreplaceable community members, loss of tuition dollars, and loss of trained employees.
14. This new policy is unlawful for several reasons. 15. To begin with, Defendants failed to undertake the notice and comment required in these circumstances. Defendants did not publish advance notice of this rule in the Federal Register, did not provide reasoned responses to public comments, did not undertake the required Regulatory Flexibility Act analysis, and did not comply with the whole host of requirements imposed by the Administrative Procedure Act (“APA”). 16. The policy is also arbitrary and capricious. Defendants assert that the advent of a computer database in August 2003 justifies the policy change. But Defendants had previously reaffirmed this policy many years after that computer database came online. And the policy is arbitrary and capricious for several other reasons. For example, the August 2018 Policy Memorandum relies on erroneous data and erects arbitrary distinctions among similar classes of individuals. 17. The policy violates the statutory text. In 1996, Congress created a new concept of “unlawful presence.” As Defendants have said in prior memoranda, “unlawful presence” must be understood as distinct from the concepts that previously existed. Because Defendants’ new policy is at odds with the statutory text, it is unlawful. 18. The policy violates protections guaranteed by the Due Process Clause. The August 2018 Policy Memorandum will result in the imposition of three- and ten-year bars on individuals without notice or the opportunity to cure. The Constitution forbids such unforeseeable and arbitrary government conduct.
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19. For these reasons and others, the Court should vacate the August 2018 Policy Memorandum, declare it unlawful, and enjoin Defendants from applying it.
PARTIES Plaintiffs 20. Plaintiffs in this case include multiple leading higher education institutions. Each school counts as students, employees, and exchange visitors a significant number of individuals who are present in the United States based on an F, J, or M visa. 21. Plaintiff Guilford College is a private, liberal arts college in Greensboro, North Carolina. Guilford was originally founded in 1837. 22. Guilford currently enrolls approximately 26 students on F-1 visas. Additionally, Guilford has approximately six alumni F visa holders on post-completion optional practical training. 23. Guilford is required to terminate student I-20s when students fall out-of-status. In view of the August 2018 Policy Memorandum, some I-20 terminations will result in students being saddled with a three- or ten-year reentry bar. 24. Plaintiff Guilford College International Club is a student association at Guilford College. 25. Guilford College International Club is an unincorporated, voluntary association, and its members include Guilford College students present in the United States on F-1 visas. It has two or more members, and they are joined together by mutual consent for a common, nonprofit purpose. 26. Guilford College International Club has regular meetings of its members. 27. Guilford College International Club counts as among its mission the advocacy
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for the rights of its international student members within the United States. 28. Plaintiff The New School is a private research university located in New York
City. The New School consists of the Parsons School of Design, the Eugene Lang College of Liberal Arts, The New School for Social Research, the Schools of Public Engagement, and the College of Performing Arts.
29. More than 10,000 students are enrolled at The New School. Over 30 percent of The New School’s students are international. The New School features one of the highest—if not the highest—proportions of international students among all higher education institutions in the Nation.
30. Currently, The New School has among its community approximately 3,600 international students on F-1 visas.
31. Many of The New School’s 3,600 international students have on-campus employment—and are thus employees of The New School—consistent with the terms of the F-visa regulations.
32. The New School also has roughly an additional 900 F-1 alumni currently completing optional practical training.
33. The New School has approximately 100 students on J visas and roughly an additional 38 J-1 scholars.
34. Each year, The New School is obligated to terminate dozens of I-20s because of identified status violations.
35. In some (if not many) of these cases, the August 2018 Policy Memorandum will result in the imposition of a three- or ten-year reentry bar.
36. Recently, because of the August 2018 Policy Memorandum, a student of The
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New School left the United States in order to take the correct action to regain her status but subsequently took a semester-long leave of absence out of fear of accruing unlawfulpresence time under the new policy. That fundamentally disrupted the student-university relationship, and The New School lost tuition as a result. But for the August 2018 Policy Memorandum, the student would not have stopped her education with The New School.
37. Another student at The New School, a doctoral candidate, had an I-20 with a program end date of June 30, 2018. This student has been at The New School since 2012. Because of financial constraints, the student was unable to extend the I-20, as the Designated School Officer was unable to determine that the student could support themselves. To avoid accruing unlawful presence under the August 2018 Policy Memorandum, the student was required to travel in order to restart the I-20, which came at significant cost.
38. The August 2018 Policy Memorandum has caused The New School to change its policies and practices regarding international students. For example, the new policy has caused The New School to defer advising with respect to students’ change-of-status and reinstatement applications. The institution is more likely to refer a student to an outside immigration lawyer. That increases the costs to the students and imposes delay burdens on The New School.
39. Plaintiff Foothill-De Anza Community College District is a public district of community colleges located in Cupertino, California. The district operates Foothill College and De Anza College.
40. Currently, the Foothill-De Anza Community College District has more than 2,500 international students on F-1 visas.
41. Each year, the Foothill-De Anza Community College District is required to
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terminate I-20s when it identifies that students are out-of-status. Under the August 2018 Policy Memorandum, many students identified as out-of-status will be subject to a three- or ten-year reentry bar. That is because, when Foothill-De Anza Community College District identifies a status violation, sometimes more than 180 days will have elapsed from the underlying facts giving rise to that violation.
42. Plaintiff Haverford College is a private, liberal arts college located in Haverford, Pennsylvania. Haverford was founded in 1833. More than 1,300 students are enrolled at Haverford.
43. Haverford counts among its community approximately 148 students on F-1 visas. Haverford also has one student on a J visa.
44. In addition, Haverford has approximately 17 alumni on F visas who are still in the United States during a period of optional practical training.
45. In response to the August 2018 Policy Memorandum, Haverford has changed its practices regarding international students. It now makes different advising decisions. For example, prior to the August 2018 Policy Memorandum, Haverford would provide its students a range of advice regarding compliance with visa status. Following that memorandum, Haverford more frequently advises its students to consult with outside immigration lawyers, which imposes added burden and delay on students and Haverford alike.
46. In particular, as a result of the August 2018 Policy Memorandum, Haverford recently was required to ask two international students to leave the campus based on potential status violations that, prior to the new policy, would not have disrupted their studies. This upset the crucial student-university relationship with these students and has
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irreparably disrupted these students’ educational plans, and Haverford has lost tuition as a result.
47. Plaintiff the American Federation of Teachers (“AFT”) is an affiliate of the AFL-CIO. AFT was founded in 1916, and today represents approximately 1.7 million members who are employed across the nation in K-12 and higher education, public employment, and healthcare. The AFT has a longstanding history of supporting and advocating for the civil rights of its members and the communities they serve.
48. The AFT has approximately 230,000 members employed by higher education institutions throughout the country. This membership includes graduate students that are on F visas and are engaged in on-campus employment as teaching assistants. This membership also includes members on J visas who are part of an exchange visitor program.
49. Additionally, the AFT has more than one million members throughout the country employed in K-12 schools. This membership includes teachers present in the United States on J visas who are teaching in K-12 schools as part of an exchange visitor program.
50. Members of the AFT also teach students who are present in the United States on F and J visas. These students are integral members of their educational institutions. They contribute to the diversity of experience and viewpoint in classrooms, engage in valuable research projects, and play leadership roles in student life.
51. Plaintiff Jia Ye is an individual residing in the State of Texas. 52. Ye entered the United States in 2013 via an F-1 visa. 53. Ye studied health education at Texas A&M University. He graduated in 2015 with a Master of Science degree. 54. Ye was awarded a teaching assistant position during his studies as a masters
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degree candidate at Texas A&M University. That position supported his tuition. 55. Ye was recruited by and enlisted with the U.S. Army via a program called
“Military Accessions Vital to National Interest” or MAVNI. This program, first created under President George W. Bush, provided an opportunity for legal non-citizens who are licensed health care professionals or possess critical foreign language skills to enlist in the United States military. In most cases, at the end of Basic Combat Training, participants in MAVNI receive U.S. citizenship. Since the initiation of the MAVNI program in 2009, more than 10,000 soldiers, sailors and airmen have served with honor and distinction under it.
56. On November 24, 2015, Ye signed an Army enlistment contract for entry in the Delayed Entry Program. He agreed to serve eight years, beginning with four years of active duty. Like other MAVNI recruits, Ye was told that he would be shipped to Basic Combat Training within approximately six months after enlistment. In the meantime, the Army encouraged him to attend weekly meetings to familiarize himself with military protocol and technology and to stay “Army ready.”
57. The U.S. government has not, however, provided Ye a report date for basic training. The government asserts that it continues to process his security clearance, more than three years after he initially enlisted.
58. Following graduation from Texas A&M University, Ye worked under a program known as Optional Practical Training. Optional Practical Training is a period during which undergraduate and graduate students with F-1 status who have completed or have been pursuing their degrees for more than three months are permitted by USCIS to work for one year on a student visa towards getting practical training to complement their education. After his Optional Practical Training expired, Ye attended classes at the Houston
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Community College, but financial constraints required him to cease taking classes in Spring of 2018.
59. While Ye waits for his order to report to basic training, he remains in the United States on his F visa. USCIS, in a stakeholder call held in August 2018, stated that MAVNIs like Ye are now deemed to be accruing unlawful presence.
60. Plaintiff Sen Li is an individual residing in the State of New York. 61. Li entered the United States via an F-1 visa in August 2013. He enrolled in a biomedical engineering masters program at the State University of New York, Binghamton. He later transferred to OPMI Business School, where he continued his studies in English as a Second Language. 62. On January 14, 2016, after having been recruited by the Army, Li entered the MAVNI program by signing an Army contract for entry in the Delayed Entry Program at the Harlem, New York, recruiting station. Li agreed to serve eight years, with four years of active duty. Like other MAVNI recruits, Li was told that he would be shipped to Basic Combat Training within approximately six months after enlistment. In the meantime, the Army encouraged him to attend weekly meetings to familiarize himself with military protocol and technology and to stay “Army ready.” 63. Because of the government’s delays in processing individuals for the MAVNI program—including via its decision to substantially slow the security background process— Li has not yet been scheduled for basic training. 64. Li received his diploma from OPMI on August 24, 2018; he has not attended school since that date. He is thus presently waiting for an order to report to basic training.
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Defendants 65. Defendant Kirstjen Nielsen is the Secretary of Homeland Security and therefore the “head” of the Department of Homeland Security. 6 U.S.C. § 112(a)(2). Under the Immigration and Nationality Act, she is charged with administering and enforcing the federal immigration and nationality laws. 8 U.S.C. § 1103(a)(1), (3). She is sued in her official capacity. 66. Defendant Department of Homeland Security (“DHS”) is the executive department charged with authority over federal immigration law (see 6 U.S.C. § 251) and an “agency” within the meaning of the APA (5 U.S.C. § 551(1)). 67. Defendant L. Francis Cissna is the Director of U.S. Citizenship and Immigration Services and therefore the “head” of that agency (6 U.S.C. § 271(a)(2)). He is sued in his official capacity. 68. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is a component of DHS (6 U.S.C. § 271) and an “agency” within the meaning of the APA (5 U.S.C. § 551(1)). USCIS is the component of DHS that issued the August 2018 Policy Memorandum.
JURISDICTION AND VENUE 69. This Court has federal question jurisdiction over Plaintiffs’ complaint under 28 U.S.C. § 1331. It has the authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202; 5 U.S.C. §§ 705, 706(1), 706(2)(A)-(D); and its general equitable powers. 70. The APA provides a cause of action for parties adversely affected by final agency action when “there is no other adequate remedy in a court.” 5 U.S.C. § 704. That
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condition is met in this case because the August 2018 Policy Memorandum is a “final agency action” within the meaning of the statute and there is no other adequate remedy available in any other court.
71. Venue is proper in this district under 28 U.S.C. § 1391(e)(1) because Defendants are officers or agencies of the United States and one or more Plaintiffs reside in the district within the meaning of 28 U.S.C. § 1391(d).
FACTUAL BACKGROUND Immigration for Higher Education and Research Institutions
Provides Innumerable Benefits to the United States 72. Many of the world’s leading higher education and research institutions are located in the United States. More than a million individuals travel to the United States each year to study, research, or teach on F, J, or M visas. 73. Most international visitors require a visa to be admitted to the United States. Nearly all international students who travel to the United States from abroad are admitted via an F, J, or M visa. 74. An F visa authorizes an international individual to enter the United States on a non-immigrant basis to pursue an educational program. Students on an F visa must be enrolled at an institution that participates in the Student and Exchange Visitor Program (SEVP). 75. An M visa authorizes international individuals to study at a vocational or technical school. Like those on F visas, students on an M visa must be enrolled at an approved institution. 76. Students on F and M visas come from every continent in the world except Antarctica, with more than 229 countries and territories represented in the U.S. academic
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community. See ICE, SEVIS by the Numbers: Biannual Report on International Student Trends, 7 (Apr. 2018), goo.gl/d4gy2A.
77. In March 2018, approximately 1.2 million individuals were present in the United States on either an F or M visa. Id. at 3. Of these, approximately 400,000 students were enrolled in a bachelor’s degree program, while nearly as many were seeking a Master’s degree. Id. at 5.
78. In March 2018, approximately 8,700 schools have been certified by SEVP as eligible to enroll international students. Id. at 13.
79. A J visa is a non-immigrant visa issued to individuals who participate in an authorized “Exchange Visitor Program.” The U.S. Department of State has authorized more than 1,500 academic institutions, for-profit and non-profit private sector organizations, or federal, state, and local government entities to operate such a program. The vast majority of these designated programs are accredited American institutions of higher education. Participants in such programs include students, research scholars, professors, teachers, physicians, au pairs, camp counselors, and several other categories of individuals.
80. More than 300,000 J visas were issued in 2017. 81. As of March 2018, around 210,000 individuals were present in the United States on a J visa. 82. Many U.S. colleges have determined that a robust community of international students is essential to the educational mission for all students—domestic and international alike. Domestic students gain critical new insights by living and studying with international students. These diverse environments teach essential values of multiculturalism and tolerance, breaking down stereotypes of the “other.” International students, similarly, learn
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from their American counterparts, gaining new experiences and perspectives that will benefit them for life.
83. Recruiting leading international students, researchers, and academics to U.S. schools is also crucial to ensuring that the United States retains its perch as the leader of the academic world. Higher education institutions are at the forefront of developing critical new technologies—in fields as diverse as healthcare, pharmaceuticals, computing, energy, and transportation. This innovation ensures the United States’ status as the premier economic global force, thanks in significant measure to contributions by international students.
84. In the 2016 to 2017 school year, international students contributed nearly $37 billion to the U.S. economy and created or supported more than 450,000 jobs. See NAFSA, NAFSA International Student Economic Value Tool, goo.gl/kN6gSb. International students also contribute substantially to the economic health of the thousands of colleges and universities at which they enroll and thus pay tuition. For many of these communities, the higher education institution is the main engine or even sole guarantor of economic wellbeing.
“Unlawful Presence” 85. In the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Congress introduced sanctions for non-U.S. persons who are “unlawfully present” in the United States. The concept of “unlawful presence” had never previously existed in U.S. immigration law. 86. According to the statute, “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” 8 U.S.C. § 1182(a)(9)(B)(ii).
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87. If an individual accrues more than 180 consecutive days (but less than a year) of unlawful presence, the individual is barred from reentering the United States for a period of three years. 8 U.S.C. § 1182(a)(9)(B)(i)(I). If the individual has been unlawfully present in the United States for a year or more, the individual is barred from reentering the United States for a period of ten years. Id. § 1182(a)(9)(B)(i)(II).
88. When many categories of non-immigrants are admitted to the United States— such as most individuals coming to the United States as tourists or to temporarily engage in business—they are provided with a date certain on which their authorized period of stay expires, according to the I-94 Record of Admission. In these circumstances, calculating “unlawful presence” is relatively straightforward. If the individual stays after the specific date authorized, the individual begins to accrue “unlawful presence” time.
89. But most individuals admitted to the United States on F, J, and M visas are not provided a date certain on which their authorized period of stay expires. Rather, they are admitted for the “duration of status,” or “D/S.”
The Legacy Policy 90. Since 1997, Defendants—and their predecessors, including the Immigration and Naturalization Service—had adopted a consistent policy in practice for calculating “unlawful presence,” including as it related to individuals admitted for a “duration of status.” 91. In the August 2018 Policy Memorandum, Defendants explain the prior policy: “foreign students and exchange visitors (F and J non-immigrants, respectively) who were admitted for, or present in the United States in, duration of status (D/S) started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an
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immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.” Ex. A at 1.
92. INS issued a memorandum on September 19, 1997, entitled “Section 212(a)(9)(B) Relating to Unlawful Presence.” Ex. D. Written by Paul Virtue, then-Acting Executive Associate Commissioner, this document is often referred to as the “Virtue Memo.”
93. The Virtue Memo provides: “Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment). Unlawful presence for a nonimmigrant may begin to accrue before the expiration date noted on the I-94, however, in two circumstances: (1) when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings, or (2) when the Service makes such a determination during the course of adjudicating a benefit application.” Ex. D at 2.
94. On May 6, 2009, USCIS issued an “Interoffice Memorandum” that it titled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(c)(i)(I).” See Ex. C. That memorandum canvassed thenexisting policies regarding unlawful presence and recodified them into the Adjudicator’s Field Manual.
95. That memorandum provided: “Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order. It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which
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removal proceedings are initiated.” Ex. C at 25 (emphasis added). The August 2018 Policy Memorandum
96. On May 11, 2018, Defendants posted a memorandum (dated May 10, 2018) indicating an intent to revise longstanding policy and legal interpretation regarding the definition and calculation of “unlawful presence.” See Ex. B.
97. On August 9, 2018, Defendants issued a Policy Memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memorandum is designated as PM-602-1060.1. It is attached as Exhibit A.
98. Pursuant to this new policy, USCIS will start the unlawful-presence clock not on the date that an individual on an F, J, or M visa is adjudicated as being out-of-status. Instead, USCIS will backdate “unlawful presence” to the date on which the underlying facts that gave rise to the status violation occurred.
99. Thus, under the new policy, “[a]n F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on . . . [t]he day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.” Ex. A at 4.
100. This new policy imposes a non-discretionary duty on USCIS officers. It binds and preordains their actions in all cases within the scope of the policy.
101. The August 2018 Policy Memorandum asserts certain overstay rates as a basis for reversing 21 years of policy. In particular, it asserts that the overstay rate is 6.19 percent for F-visa non-immigrants, 3.8 percent for J-visa non-immigrants, and 11.6 percent for Mvisa non-immigrants. Ex. A at 2.
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102. The overstay rates asserted in the August 2018 Policy Memorandum are misleading and inaccurate. In fact, USCIS does not have any accurate means of assessing overstay rates. SEVIS does not include a means to track departures from the United States by F, J, and M visa holders.
103. USCIS cites “out-of-country” overstay rates, describing individuals whose departure was recorded after their lawful period of admission expired. This likely encompasses individuals who stayed just a few days longer than the conclusion of their program to tie up their personal affairs and is not a true representation of the “overstay” population with which Defendants are concerned. Indeed, regulations specifically authorize individuals to stay in the United States during 30- and 60-day grace periods.
104. The “in-country” overstay rates have been calculated at much lower rates by Defendants.
105. The source on which USCIS relies for this information recognizes that calculating overstay rates is difficult and uncertain.
106. USCIS has admitted to being unable to know with certainty when many individuals on F, J, and M visas depart the United States. During an August 2018 stakeholder call, a DHS official conceded this point.
107. The August 2018 Policy Memorandum draws a distinction among nonimmigrant classes without justification. Per the terms of the policy, individuals on F, J, or M visas begin accruing “unlawful presence” on the date that the facts give rise to that finding, while different “date certain” accrual rules apply to all other visa classes.
108. The August 2018 Policy Memorandum fails to offer any good reason to support the policy change.
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109. The August 2018 Policy Memorandum asserts that “the Student and Exchange Visitor Information System (SEVIS)” “has provided USCIS officers additional information about an alien’s immigration history, including information that indicates that an alien in F, J, or M nonimmigrant status may have completed or ceased to pursue his or her course of study or activity.” Ex. A at 2.
110. The August 2018 Policy Memorandum fails to recognize the fact that SEVIS was created in 2002, and it was in effect no later than 2003. Defendants have offered no explanation as to why, 16 years later, the creation of SEVIS justifies a major policy change regarding unlawful presence.
111. When Defendants reaffirmed their earlier policy in the May 2009 Policy Memorandum, SEVIS had been operational for nearly six years.
112. The August 2018 Policy Memorandum identifies no change in facts or circumstances since the May 2009 Policy Memorandum.
113. The August 2018 Policy Memorandum does not identify any evidence that SEVIS has in fact aided accuracy.
114. Any contention by Defendants that SEVIS creates accurate adjudications is incorrect. As Defendants are aware, SEVIS is plagued with inaccurate information. For example, port-of-entry information entered into the system is often incorrect.
Promulgation of the Memorandum 115. Defendants did not undertake notice-and-comment rulemaking prior to issuing the August 2018 Policy Memorandum. 116. On May 10, 2018, Defendants issued a Policy Memorandum (May 2018 Policy Memorandum), proposing to change policy with respect to unlawful presence calculations
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for F, J, and M visa holders. See Ex. B. The May 2018 Policy Memorandum purported to provide for a period of public comments. See Ex. B at 1.
117. Members of the public submitted comments in response to the May 10 notice, but the agency did not provide a reasoned response to those comments. Instead, USCIS merely stated in a press release, without further elaboration, that “[a]s a result of public engagement and stakeholder feedback, USCIS has adjusted the unlawful presence policy to address a concern raised in the public’s comments.” See Ex. E.
118. Defendants prepared no initial regulatory flexibility analysis. 119. The May 10 notice was not submitted for review by the Office of Management and Budget and was not published in the Federal Register. 120. None of the statutory exceptions to the requirement of notice-and-comment rulemaking is applicable here. See 5 U.S.C. § 553(b). 121. For example, the August 2018 Policy Memorandum reflects a legislative policy judgment, not interpretive guidance. The August 2018 Policy Memorandum does not engage in “interpretation” of the underlying statute. It does not quote the statutory text or explain how the policy it reflects is the better interpretation of the legal text compared with the status quo ante, which reflects more than 20 years of practice. 122. To the extent that Defendants provide any reasons at all for the policy, the reasoning is entirely policy-based. 123. The August 2018 Policy Memorandum was promulgated to effect Defendants’ belief that it is a better policy compared with the status quo ante and thus should be the governing rule. 124. The August 2018 Policy Memorandum causes a change in existing law or
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policy. The Memorandum expressly and repeatedly describes itself as establishing a “new policy,” displacing the “former INS policy.” E.g., Ex. A at 2-3.
125. The August 2018 Policy Memorandum states a new policy that is a matter of considerable importance to the class of individuals it regulates, the higher education community, and the American public at large.
126. The August 2018 Policy Memorandum sets forth policy with present, binding effect.
127. The August 2018 Policy Memorandum admits of no discretion in its enforcement. Adjudicators must follow the Memorandum’s requirements, with no choice.
128. The August 2018 Policy Memorandum has the force of law. 129. The August 2018 Policy Memorandum amends the USCIS Adjudicator’s Field Manual. That Manual indicates that policy determinations of this sort are “binding” on USCIS employees: “All material which is designated as policy material is binding upon all employees of USCIS, unless or until it is specifically superseded by other policy material. There are no exceptions to this rule.” USCIS, USCIS Adjudicator’s Field Manual § 3.4(b), goo.gl/wnKdkx. 130. USCIS Adjudicator’s Field Manual provides extensive guidance on distinguishing “correspondence” and “policy” materials. The Manual states: (a) Distinction between Correspondence and Policy. Headquarters and regional components are responsible for issuing a large volume of written material to field offices, the general public, congressional office and members of the private immigration bar. The vast majority of this material is a response to a direct, specific inquiry or a “hypothetical” situation. Other material is prepared as implementing instructions to accompany a new USCIS-wide program, policy or regulation. It is important to note that there is a distinction between “correspondence” and “policy” materials. Policy
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material is binding on all USCIS officers and must be adhered to unless and until revised, rescinded or superseded by law, regulation or subsequent policy, either specifically or by application of more recent policy material. On the other hand, correspondence is advisory in nature, intended only to convey the author’s point of view. Such opinions should be given appropriate weight by the recipient as well as other USCIS employees who may encounter similar situations. However, such correspondence does not dictate any binding course of action which must be followed by subordinates within the chain of command. Examples of policy materials are: . . .
Field and Administrative Manuals
. . .
Memoranda and cables from Headquarters specifically designated as policy (bearing the “P” suffix in the reference file number).
USCIS, USCIS Adjudicator’s Field Manual § 3.4(b), goo.gl/wnKdkx (emphasis added).
131. The August 2018 Policy Memorandum uses a “P” suffix in the reference file
number for the August 2018 Policy Memorandum, PM-602-1060.1. Ex. A at 1.
132. The “P” suffix confirms that USCIS views the August 2018 Policy
Memorandum as the sort of binding policy memorandum that permits no discretion. The
Manual contrasts this with ten categories of correspondence—including “USCIS and General
Counsel opinions” and “Training materials”—which are not binding.
133. When USCIS deems an individual to be unlawfully present and subject to a
three- or a ten-year reentry bar, that bar applies only after an individual exits the United
States and subsequently seeks to reenter the United States or reapplies for an immigration
benefit. At that time, the doctrine of consular non-reviewability precludes judicial review of
any USCIS determination regarding unlawful presence.
134. There is no meaningful way in which most individuals subject to a reentry bar
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may seek judicial review over that determination. 135. Thus, while the August 2018 Policy Memorandum imposes binding obligations
on USCIS officers, and while those obligations will have severe consequences on the individuals regulated as well as the academic communities to which they belong, those individual decisions by USCIS officers are not judicially reviewable.
136. While unlawful presence has a discretionary waiver process, the statute (8 U.S.C. § 1182(a)(9)(B)(v)) and regulation (8 C.F.R. § 212.7(e)(10)-(11)) make clear that waiver decisions are non-reviewable.
Harm Inflicted on International Students, Researchers, Employees, and Their Sponsoring Institutions
137. Promulgation of the August 2018 Policy Memorandum impairs the interests of students and employees at each institution who are present on F, J, and M visas.
138. Under the new policy, many more international students and employees will be subject to a three- or ten-year reentry bar as compared with the previous regulatory framework, even in the absence of any bad faith or even knowing conduct.
139. There are a multitude of ways in which a well-intentioned individual on an F, J, or M visa can be adjudicated out-of-status. Some of these include:
A. Information update: Failure of F, J, or M visa holder to update a Designated School Officer (DSO) regarding a change to information, including a change in address.
B. Course load: Failure to obtain proper approval for dropping below the minimum course load. Alternatively, USCIS may retroactively deny a request for a student to take a course-load below that typically required.
C. Excess work: A student on an F or M visa authorized to work 20 hours per week on campus works an hour extra one week to complete a deadline.
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D. Unauthorized employment: Any employment by the spouse or child of an F, J, or M visa holder, including services as innocuous as babysitting.
E. Designated School Officer (DSO) error: There are a litany of errors a DSO may inadvertently make that may render a student out-of-status. Just a few examples include:
(i) Making a typographical error in SEVIS.
(ii) Erroneously identifying a student as having completed a course of study.
(iii) Inadvertently failing to register a student as returning for a particular semester.
(iv) Mistakenly entering an incorrect, premature school transfer date.
F. Curricular Practical Training (CPT): Curricular practical training, is the ability of some international students to work while attending school. For those international students on high financial aid, this can be a necessity if their home countries do not have a tax treaty with the U.S. disburdening them of the requirement of paying U.S. income tax on aid in excess of tuition; this tax can amount to thousands of dollars. CPT creates many opportunities for an individual to violate status:
(i) Eligibility error: After the fact, USCIS determines that CPT is not sufficiently “integral” to student’s education and thus finds the CPT an unauthorized form of employment.
(ii) OPT implications: Student is not informed that a full year or more of CPT may preclude post-completion optional practical training.
G. Optional Practical Training (OPT): Students may generally apply for one year of post-graduate employment, called OPT, if it is training related to the completion of one’s education. For students obtaining a degree in science, technology, engineering, or math (STEM), the student may extend OPT for an additional two years (STEM OPT) to complete their education. There are many ways in which an individual may inadvertently fall out-of-“status” in connection with OPT and STEM OPT:
(i) Program approval: Retroactive determination by USCIS that a
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student’s “optional practical training” does not qualify as sufficiently related to a student’s degree.
(ii) Absence reporting: Failure of the employer of a student on optional practical training to provide a report as to any absence by a student.
(iii) Training plan: Failure of the employer of a student on optional practical training to provide a report as to any changes made to the student’s training plan.
(iv) Self-evaluation: Failure of a student to provide an annual selfevaluation report or final evaluation—signed by the employer— regarding optional practical training.
(v) Third-party placement: Error made regarding third-party placement during an optional practical training designation.
(vi) Worksite transfer: USCIS determination, after the fact, that an international assignment was an impermissible worksite transfer.
(vii) Miscalculation of unemployment periods: DSO failure to properly calculate a student’s unemployment periods between jobs, such that USCIS may determine that a student was not properly within STEM OPT status.
140. Many of these determinations rest on discretionary judgments by USCIS. Thus,
it is impossible for an F, J, or M visa holder—or the institution of which they are a
member—to know at the outset what conduct will render an individual out-of-status.
141. Under the prior policy, the unlawful-presence clock began after USCIS made
these often-discretionary adjudications. That provided individuals 180 days to order their
affairs and exit the country without accruing any reentry bar—or to otherwise regain status
and avoid a reentry bar.
142. It was standard practice—endorsed by Defendants—for students who had
fallen out-of-status to exit the country, and then reenter, beginning a new legal status.
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Students and other individuals operating in good faith could thus generally cure an out-ofstatus finding, and therefore continue their education or cultural exchange programs in the United States.
143. The August 2018 Policy Memorandum, however, will backdate unlawful presence. That means that individuals will have less than 180 days, or often no time at all, to leave the country prior to being subject to a reentry bar.
144. In fact, because of delays in USCIS processing and immigration court backlogs, most of these adjudications will occur more than 180 days after the underlying facts giving rise to a status violation. In those circumstances, an F, J, or M visa holder will automatically be subject to a three-year reentry bar with no opportunity to cure whatsoever.
145. Because of processing delays, and also because USCIS may make a statusviolation finding during a subsequent request for adjustment of status, many of these adjudications will occur 365 days or more after the underlying facts giving rise to a status violation. In those circumstances, an F, J, or M visa holder will automatically be subject to a ten-year reentry bar with no opportunity to cure whatsoever.
146. By design, the August 2018 Policy Memorandum will result in many more holders of F, J, and M visas being subject to three- and ten-year reentry bars.
147. When a student on an F, J, or M visa is subject to a reentry bar, that student is not able to continue enrollment at the academic institution. This disrupts the student-school relationship. It also costs the school tuition revenue.
148. Moreover, because the August 2018 Policy Memorandum starts the unlawfulpresence clock at an earlier time, it causes colleges and universities to make different decisions about international students, including by requiring international students to stop
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their education following a finding by the school that there has been an inadvertent status violation.
149. When an individual participating in a J-visa cultural exchange program is subject to a reentry bar, Plaintiff loses that valuable, trained member of the community. The institution suffers financial losses when it must hire and train new individuals to fulfill the duties of the individual barred from reentering the country. This harm accrues with respect to international research scholars and others on cultural exchange programs. It also stems from students who work for the university in connection with an approved on-campus employment.
150. When a researcher on a J-1 visa is forced to leave the United States, the university or college irreparably loses valuable research projects. The researcher’s career is forever disrupted. And the critical relationship between researcher and employer is upset.
151. Plaintiffs provide international students and exchange visitors material advice as to what they may and may not do to maintain their visa status. Plaintiffs have developed these policies and practices in reliance on the fact that an F, J, or M visa holder will not begin to accrue “unlawful presence” unless and until a government official adjudicates the individual as out-of-status. Plaintiffs’ policies thus relied on the preexisting policy. The August 2018 Policy Memorandum topples the basis on which Plaintiffs and other institutions structured their international student advising offices, policies, and practices.
152. Now, many schools and universities have changed the advising they provide, and they provide fewer advising services to their international students and researchers. That constitutes a loss to the university or college: the institution is unable to service the critical needs of its community members, precisely because the August 2018 Policy Memorandum
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upset long-settled expectations. 153. What is more, by failing to allow notice-and-comment, Defendants denied
Plaintiffs their opportunity to comment and provide reasons to forego (or at least alter) the change to the unlawful presence policy. There is no doubt that Plaintiffs—and associations of which they are members—would have engaged in the comment process. Even though there was no valid comment process, the American Federation of Teachers nonetheless submitted a response to the online posting, and it certainly would have submitted formal comments if given the opportunity. It signed a multi-union member with the AFL-CIO. See https://goo.gl/Zt8uSU. Moreover, several major associations of higher education joined together to file a letter opposing the change. One letter was signed by the Association of Public and Land-grant Universities, the Association of American Universities, the American Association of Community Colleges, the American Association of State Colleges and Universities, the American Council on Education, the Association of Jesuit Colleges and Universities, and the National Association of Independent Colleges and Universities. See https://goo.gl/ZnQJuc. Plaintiff Foothill-De Anza Community College District is a member of the American Association of Community Colleges. Haverford College and Guilford College are members of the National Association of Independent Colleges and Universities. Guilford College, Haverford College, The New School, and Foothill-De Anza Community College District are all members of the American Council on Education.
Harm Inflicted on the MAVNIs 154. As we described, individuals who were recruited by and enlisted in the military are also directed impacted by the August 2018 Policy Memorandum. Many of these individuals, often called “MAVNIs,” were recruited while on F, J, or M visas. This includes
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Plaintiffs Ye and Li, who were both recruited by the military and enlisted while on an F-1 visa.
155. MAVNIs on F, J, or M visas relied on preexisting policies regarding unlawful presence. In particular, the MAVNIs understood that they would not accrue unlawful presence while they waited for their orders to report to basic training. The MAVNIs thus enlisted in the U.S. military—and they structured their lives—in reliance on the preexisting policy.
156. The August 2018 Policy Memorandum changes all of that. Now, as USCIS stated during an August 2018 stakeholder call, the August 2018 Policy Memorandum results in MAVNIs who have completed their education and are awaiting orders to report to basic training being deemed “unlawfully present” in the United States. The direct effect is that these individuals are now subject to three- and ten-year reentry bars.
157. Plaintiffs Ye and Li are thus directly injured by the August 2018 Policy Memorandum. Under the prior policy, Ye and Li would not currently be accruing unlawful presence. Under the August 2018 Policy Memorandum, however, USCIS appears to be taking the position that Ye and Li are accruing unlawful presence. After more than 180 days have elapsed, USCIS will then take the position that Ye and Li are subject to an irrevocable three-year reentry bar. That bar will grow to ten years after 365 days have elapsed.
158. Ye and Li’s harms are direct and immediate. What is more, unless the Court acts prior to February 5, 2019, Ye will be irreparably harmed. Until February 5, 2019, Ye may leave the country prior to more than 180 days elapsing, so as to preclude imposition of a reentry bar. After that date, defendants will take the position that Ye is subject to a reentry bar after he next leaves. USCIS will likely contend that Li’s unlawful presence clock follows
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shortly thereafter. Timely relief is thus crucial for them to avoid irreparable harm. 159. The imposition of a reentry bar is not normally subject to any form of judicial
review. That is in part because the reentry bar does not attach until an individual first leaves the United States. While still in the United States, an individual typically has no opportunity to contest the reentry bar. After the individual leaves the country, the government contends that the doctrine of consular nonreviewability bars courts from reviewing imposition of a reentry bar.
160. Leaving the country is not an option. Indeed, the U.S. military informed MAVNIs that they should not leave the United States prior to basic training, as that would like disrupt—if not end—their security clearance process. Moreover, the individual may not be available for basic training when called. Leaving the United States is thus inconsistent with the requirements imposed on the MAVNIs.
STANDING Standing of the MAVNIs 161. As just described, Plaintiffs Ye and Li are directly injured by the August 2018 Policy Memorandum. Independent Standing of University Plaintiffs 162. Because the August 2018 Policy Memorandum was issued without being submitted through formal notice-and-comment rulemaking, Plaintiffs had no meaningful opportunity to provide pre-decisional comments and feedback to the agency. Defendants’ failure to provide an adequate opportunity for public comment prior to acting has caused both Plaintiffs and their students and employees injury. All Plaintiffs therefore have been aggrieved by promulgation of the Rule. See generally JEM Broad. Co. v. FCC, 22 F.3d 320,
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326 (D.C. Cir. 1994). 163. Plaintiffs invest substantial resources in programs designed to assist their
students and employees with obtaining and maintaining lawful immigration status. In particular, Plaintiffs, as SEVP-certified institutions, have hired and are required to train Designated School Officers that provide advice to each institution’s international students. The Rule has changed the regulatory framework and consequently will require Plaintiffs to expend additional resources on new training and assistance. Plaintiffs therefore have standing to challenge the Rule in their own right. See generally Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982).
164. Because the August 2018 Policy Memorandum makes it significantly easier for well-intentioned students to become subject to a three- or ten-year bar to reentry, many students will have their educations in this country fundamentally disrupted.
165. The loss to the campus environment is substantial: the school is injured because the August 2018 Policy Memorandum removes a student that the school had specifically chosen to attend. That imposes a direct, irreparable harm on the institution and all its members.
166. Additionally, Plaintiffs will lose tuition revenue from international students who are subject to three- and ten-year reentry bars.
167. The August 2018 Policy Memorandum will also chill international students’ willingness to attend institutions of higher education, including the Plaintiff institutions, in the United States. This chilling effect will further cause a loss of revenue to Plaintiffs, and it will hinder the ability of Plaintiffs to attract the international, diverse community that they believe essential.
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168. Plaintiffs’ injuries are caused directly by the August 2018 Policy Memorandum. And their injuries would be redressed by an order vacating, invalidating, or otherwise declaring unlawful the August 2018 Policy Memorandum.
169. Because of potential liability stemming from the consequences of advising students, many colleges and universities are reducing the scope of advising supplied to international students and other international members of their communities.
Associational Standing of University Plaintiffs 170. Plaintiffs’ students have standing to sue in their own right as parties regulated under the August 2018 Policy Memorandum. 171. Neither the claims asserted nor the relief requested in this lawsuit requires individual students’ or employees’ participation in this lawsuit. 172. Plaintiffs’ missions as institutions of higher education include representing and advocating for the interests and rights of their students and employees before government bodies. 173. Plaintiffs’ students and employees are formal members of each school. Students pay tuition, dues, and other fees and are accordingly afforded the formal benefits of membership in the school community. Each Plaintiff is therefore a formal association of students and faculty who join together in pursuit of their educational mission. 174. Plaintiffs’ and their members’ injuries would be redressed by an order vacating, invalidating, or otherwise declaring unlawful the August 2018 Policy Memorandum.
Associational Standing of Guilford College International Club 175. Guilford College International Club is a voluntary association whose members
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include Guilford students present in the United States on F-1 visas. 176. Members of Guilford College International Club present in the United States
on F-1 visas have standing to sue in their own right as parties regulated under the August 2018 Policy Memorandum.
177. Neither the claims asserted nor the relief requested in this lawsuit requires individual members’ participation in this lawsuit.
178. Guilford College International Club’s mission includes advocating for the rights of its international student members. In celebrating and advocating for diversity, moreover, Guilford College International Club counts as among its mission advocating for policies that ensure its members present on F-1 visas have full and fair opportunity to be present in the United States without undue fear about the imposition of a three- or ten-year reentry bar.
179. Guilford College International Club’s and their members’ injuries would be redressed by an order vacating, invalidating, or otherwise declaring unlawful the August 2018 Policy Memorandum.
Associational Standing of the American Federation of Teachers 180. The American Federation of Teachers is a labor organization. Its members pay dues and receive the benefits of membership in AFT. 181. AFT’s members include individuals who are present in the U.S. on both F and J visas. 182. AFT’s mission includes advancing the interests of its members, including supporting commonsense policies that promote immigration opportunities for individuals who wish to serve as teachers. To fulfill this mission, AFT advocates for its members’
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interests before government bodies and in court. 183. Neither the claims asserted nor the relief requested in this lawsuit requires
participation of individual AFT members in this lawsuit in this lawsuit. 184. AFT’s injuries in this case—and those sustained by their members—would be
redressed by an order vacating, invalidating, or otherwise declaring unlawful the August 2018 Policy Memorandum.
FIRST CAUSE OF ACTION: THE AUGUST 2018 POLICY MEMORANDUM WAS ISSUED WITHOUT
OBSERVANCE OF PROCEDURE REQUIRED BY LAW 185. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 186. Under the Administrative Procedure Act, an agency must provide “[g]eneral notice of proposed rule making … published in the Federal Register” whenever the agency seeks to promulgate a rule. 5 U.S.C. § 553(b). After the agency has published the required notice, “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” Id. § 553(c). 187. Following the submission of comments, the agency must then respond to those comments. “[I]nextricably intertwined with . . . 5 U.S.C. § 553(c) is the agency’s need to respond, in a reasoned manner, to any comments received by the agency that raise significant issues with respect to a proposed rule.” Mid Continent Nail Corp. v. United States, 846 F.3d 1364, 1379 n.11 (Fed. Cir. 2017). “[C]onsideration of comments as a matter of grace is not enough. It must be made with a mind that is open to persuasion.” Advocates for Highway & Auto Safety v. Fed. Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994) (citation and alteration omitted). 188. Several other legal obligations follow from a Section 553 rulemaking
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procedure. For example, 5 U.S.C. § 603 requires the preparation of an “initial regulatory flexibility analysis.”
189. Defendants did not undertake notice-and-comment rulemaking prior to issuing the August 2018 Policy Memorandum.
190. Defendants prepared no initial regulatory flexibility analysis. 191. Although the agency purported to accept comments in its May notice, this procedure was not an authorized alternative to the required rulemaking. 192. The August 2018 Policy Memorandum was therefore issued “without observance of procedure required by law” and is invalid under 5 U.S.C. § 706(2)(D).
SECOND CAUSE OF ACTION: THE AUGUST 2018 POLICY MEMORANDUM IS SUBSTANTIVELY ARBITRARY AND CAPRICIOUS 193. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 194. The August 2018 Policy Memorandum constitutes a substantial change in policy from approximately 20 years of prior behavior. 195. “[U]nexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (citation and quotation marks omitted). Defendants have failed to provide “good reasons for the new policy.” Id. 196. Defendants assert that the basis for the policy change is enhanced accuracy in their data that has been caused by the use of SEVIS. But Defendants fail to recognize that SEVIS has been fully operational since August 2003, and Defendants fail to identify any change in circumstances since May 2009, when they previously reaffirmed their longstanding policy.
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197. Defendants also rely on faulty data. Assuming for the sake of argument that the overstay rate is relevant, Defendants have relied on the wrong and inaccurate data in assessing the overstay rate.
198. Defendants have failed to identify any match between the alleged problem— asserted overstays of F, J, and M visa holders—and the August 2018 Policy Memorandum. Given that the new policy fails to identify how it will address overstay rates, the policy is arbitrary and capricious.
199. The status quo ante has engendered serious reliance interests that must be taken into account. Defendants did not acknowledge these interests or take them into account.
200. Moreover, Defendants now treat similarly situated individuals differently. USCIS does not, for example, backdate an out-of-status finding regarding an individual on an H-1B visa for purposes of unlawful presence. This is consistent with the statutory definition and over 20 years of interpretation. The August 2018 Policy Memorandum singles out F, J, and M visa holders, subjecting them to unique, harsh regulations. Defendants do not address, much less justify, why individuals on F, J, and M visas are treated more harshly than are individuals present in the United States via other kinds of visas.
201. The August 2018 Policy Memorandum accordingly is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and is invalid under 5 U.S.C. § 706(2)(A).
THIRD CAUSE OF ACTION: THE AUGUST 2018 POLICY MEMORANDUM IS INCONSISTENT WITH THE STATUTORY TEXT 202. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 203. The August 2018 Policy Memorandum is “unlawful” because it is “in excess of
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statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). Because the policy conflicts with the governing statute, it is invalid and may not be enforced.
204. 8 U.S.C. § 1182(a)(9)(B)(ii) provides in relevant part that “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General.”
205. This statute created the concept of “unlawful presence.” The concept did not previously exist in immigration law.
206. Prior to 1996, however, other related concepts had existed. In particular, prior statutes addressed individuals in “unlawful status” (see, e.g., 8 U.S.C. § 1255a) and “unlawful immigration status” (see, e.g., id. § 1255). The 1996 Act did not use the wellestablished concept of “status,” but instead created a new category of “unlawful presence.”
207. USCIS observed in 2009 that there is a critical distinction between unlawful status and unlawful presence. As USCIS wrote in its May 2009 memorandum (Ex. C at 9):
(2) Distinction Between “Unlawful Status” and “Unlawful Presence” To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(I) of the Act, it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (“period of stay not authorized”). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same. As discussed in chapters 40.9.2(b)(2) and (3), there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. 208. The plain statutory text dictates the same result here. When a visa holder is provided a date certain on which the visa expires, including via a date certain on a Form I-94, then the “expiration” of the “period of stay authorized by the Attorney General” is concrete.
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The period of stay authorized expires on the date stated. 209. By contrast, when a visa holder is admitted for the “duration of status,” the
“period of stay authorized” reaches “expiration” when the Attorney General makes a finding that the person is out-of-“status,” a decision which thus terminates the “period of stay authorized.”
210. 8 U.S.C. § 1202(g) likewise applies to an individual who has “remained in the United States beyond the period of stay authorized by the Attorney General.” The prevailing policy embodied in this statute is at odds with the August 2018 Policy Memorandum.
211. The August 2018 Policy Memorandum is therefore “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” and is invalid under 5 U.S.C. § 706(2)(C).
FOURTH CAUSE OF ACTION: THE AUGUST 2018 POLICY MEMORANDUM VIOLATES THE
FIFTH AMENDMENT’S DUE PROCESS GUARANTEE 212. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 213. The August 2018 Policy Memorandum violates the procedural and substantive protections of the Fifth Amendment’s Due Process Clause. 214. Whether Defendants will determine that a particular individual is within permissible “status” on an F, J, or M visa is a decision that an individual cannot know with certainty at the outset. Not only do new circumstances create novel legal questions, but—in many cases—there are discretionary judgment calls and inconsistent interpretations of language in regulations and policy memoranda that determine whether someone is within or without status. 215. The holder of an F, J, or M visa cannot therefore know with any confidence
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what conduct will cause a USCIS official or immigration judge to later deem him or her to be outside approved “status.”
216. Under the prior policy, an individual was provided notice before he or she could be subject to the harsh penalty and restriction of freedom that is a three- or ten-year reentry bar.
217. Now, however, the August 2018 Policy Memorandum renders it impossible for an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her “out-of-status,” and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.
218. In this way, the August 2018 Policy Memorandum makes the imposition of the three- and ten-year bars to reentry unpredictable, vague, and arbitrary.
219. The Due Process Clause provides F, J, and M visa holders the right to notice and an opportunity to cure prior to imposition of a three- or ten-year reentry bar. Because the August 2018 Policy Memorandum precludes that essential right, it is unlawful.
220. Under the August 2018 Policy Memorandum, if an F, J, or M visa’s principal holder is deemed to be unlawfully present, so too will those individuals whose visas are derivative of and dependent upon the principal’s visa. Because those derivative visa holders may have no knowledge of the activities of the F, J, or M visa holder that renders the principal out-of-status, they lack the notice and opportunity to cure that is required by the Due Process Clause.
221. The August 2018 Policy Memorandum is therefore “contrary to constitutional
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right, power, privilege, or immunity” and invalid under 5 U.S.C. § 706(2)(B). REQUEST FOR RELIEF
For the foregoing reasons, Plaintiffs request that the Court: a) declare that the August 2018 Policy Memorandum is unlawful; b) vacate the August 2018 Policy Memorandum; c) enjoin Defendants from enforcing or applying any aspect of the August 2018
Policy Memorandum; d) grant Plaintiffs their costs in this action, including reasonable attorneys’ fees
incurred; and e) award other relief that the Court deems just and proper.
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Respectfully submitted,

H. Ronald Klasko* Klasko Immigration Law Partners, LLP 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 825-8600 rklasko@klaskolaw.com
Counsel for Plaintiffs
David J. Strom* Jessica Rutter American Federation of Teachers 555 New Jersey Ave. NW Washington, DC 20001 (202) 879-4400 dstrom@aft.org jrutter@aft.org
Counsel for the American Federation of Teachers

/s/ Paul W. Hughes Paul W. Hughes
D.C. Bar No. 997235 Michael B. Kimberly
D.C. Bar No. 991549 Andrew A. Lyons-Berg* Mayer Brown LLP 1999 K Street NW Washington, DC 20006 (202) 263-3000 (202) 263-3300 (fax) phughes@mayerbrown.com mkimberly@mayerbrown.com
Cory S. Menees N.C. State Bar No. 045111 Mayer Brown LLP 214 North Tryon Street, Suite 3800 Charlotte, NC 28202 (704) 444-3500 cmenees@mayerbrown.com

Counsel for Plaintiffs

* Notice of Special Appearance Forthcoming

Dated: December 14, 2018

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CERTIFICATE OF SERVICE

I hereby certify that on December 14, 2018, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system and have verified that such filing was sent

electronically using the CM/ECF system to counsel for defendants.

Dated: December 14, 2018

/s/ Paul W. Hughes

Case 1:18-cv-00891-LCB-JEP Document 14 Filed 12/14/18 Page 44 of 44

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GUILFORD COLLEGE, GUILFORD COLLEGE )

INTERNATIONAL CLUB, THE NEW SCHOOL, )

FOOTHILL-DE ANZA COMMUNITY COLLEGE )

DISTRICT, HAVERFORD COLLEGE, THE

)

AMERICAN FEDERATION OF TEACHERS,

)

JIA YE, and SEN LI,

)

)

Plaintiffs,

)

)

v.

)

)

KEVIN MCALEENAN,1 U.S. DEPARTMENT OF )

HOMELAND SECURITY, L. FRANCIS CISSNA, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES,

)

)

Defendants.

)

1:18CV891

MEMORANDUM OPINION AND ORDER LORETTA C. BIGGS, District Judge.
Plaintiffs initiated this action seeking declaratory and injunctive relief for Defendants’ alleged violations of the Administrative Procedure Act (the “APA”), 5 U.S.C. § 701 et seq. (ECF Nos. 1, 14.) Specifically, Plaintiffs’ lawsuit relates to the U.S. Citizenship and Immigration Services’ (“USCIS”) issuance and application of the August 9, 2018 Policy Memorandum, PM602-1060.1, titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” (the “August 2018 Policy Memorandum” or the “Policy Memorandum”). (ECF Nos. 1, 14.) On January 28, 2019, the Court entered an Order temporarily restraining Defendants from applying the August 2018 Policy Memorandum to the individual Plaintiffs, Jia Ye (“Ye”) and Sen Li

1 Plaintiffs’ Complaint names Kirstjen Nielsen, former Secretary of Homeland Security, as a Defendant in this action. (ECF Nos. 1, 14.) Secretary Nielsen resigned during the pendency of this action, and Kevin McAleenan currently serves as Acting Secretary of Homeland Secretary. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Secretary McAleenan is hereby substituted as a party to this action. See Fed R. Civ. P. 25(d).

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(“Li”) (collectively, “Individual Plaintiffs”), pending the Court’s resolution of the below
motions. (ECF No. 36.)
Before the Court are: (i) Plaintiffs’ Motion for Preliminary Injunction and Partial
Summary Judgment, (ECF No. 15); and (ii) Defendants’ Motion to Dismiss, (ECF No. 30).2
The Court heard oral arguments on April 4, 2019. For the reasons set forth herein, the Court
grants in part and denies in part Plaintiffs’ Motion for Preliminary Injunction and Partial
Summary Judgment, and Defendants’ Motion to Dismiss will be denied.
I. BACKGROUND
Plaintiffs’ Complaint alleges that, for over twenty years, F, J, and M nonimmigrant visa
holders3 who entered the United States for “duration of status,” as opposed to a fixed time
period, would begin to accrue unlawful presence4 “on the day after a government official or
immigration judge adjudicates the individual as out-of-status.” (ECF No. 14 ¶¶ 5–6.) On
August 9, 2018, Defendants issued the subject Policy Memorandum5 which provides, in part,
2 Plaintiffs also filed a Motion to Expand the Scope of the Temporary Restraining Order, (ECF No. 39), which was rendered moot at the April 4, 2019 hearing. (April 4, 2019 Hearing Transcript (“Tr.”) at 2.)
3 An F visa holder is a nonimmigrant student who enters the United States to pursue an educational program. (ECF No. 14 ¶ 74; see also ECF No. 14-1 at 2.) An M visa holder is a nonimmigrant student who enters the United States “to study at a vocational or technical school.” (ECF No. 14 ¶ 75; see also ECF No. 14-1 at 2.) “Students on an F [or M] visa must be enrolled at an institution that participates in the Student and Exchange Visitor Program (SEVP).” (ECF No. 14 ¶¶ 74, 75.) A J visa holder is an individual who enters the United States to participate in an “Exchange Visitor Program” authorized by the U.S. Department of State. (ECF No. 14 ¶ 79; see also ECF No. 14-1 at 2.) 4 Under the Illegal Immigration Reform and Immigrant Responsibility Act (the “IIRIRA”), “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” (ECF No. 14 ¶¶ 85–86 (quoting 8 U.S.C. § 1182(a)(9)(B)(ii)).) 5 Plaintiffs allege that prior to issuance of the new policy set forth in the August 2018 Policy Memorandum, “Defendants posted a memorandum (dated May 10, 2018) indicating an intent to revise longstanding policy and legal interpretation regarding the definition and calculation of ‘unlawful presence.’” (ECF No. 14 ¶ 96 (citing ECF No. 14-2).)
2
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that, for F, J, and M nonimmigrant visa holders, the USCIS was “changing its policy on how to calculate unlawful presence” under the Immigration and Nationality Act (the “INA”). (ECF No. 14-1 at 4; see ECF No. 14 ¶ 97.) Plaintiffs allege that “[p]ursuant to this new policy, USCIS will start the unlawful presence clock not on the date that an individual on an F, J, or M visa is adjudicated as being out-of-status. Instead, USCIS will backdate ‘unlawful presence’ to [begin] the date on which the underlying facts that gave rise to the status violation occurred.” (ECF No. 14 ¶ 98.) Plaintiffs further allege that this action is harmful because any individual who is “unlawfully present” in the United States for a period longer than 180 days is barred from reentry into the United States for a period of either three or ten years.6 (Id. ¶ 87 (citing 8 U.S.C. § 1182(a)(9)(B)(i)(I)).) Plaintiffs allege that “many more international students and employees will be subject to a three- or ten-year reentry bar as compared with the previous regulatory framework, even in the absence of any bad faith or . . . knowing conduct.” (Id. ¶ 138 (footnote added).)
Plaintiffs’ Complaint alleges four causes of action, namely, that the August 2018 Policy Memorandum is invalid because: (1) the Policy Memorandum was issued without complying with the rulemaking procedures mandated by the APA; (2) the Policy Memorandum is arbitrary and capricious under the APA; (3) the Policy Memorandum conflicts substantively with the statutory text of the INA; and (4) the Policy Memorandum violates the Due Process Clause of the Fifth Amendment. (Id. ¶¶ 185–221.) Plaintiffs’ Motion for Preliminary Injunction and Partial Summary Judgment is based only on the first and third causes of action. (ECF No. 15 at
6 The INA provides that any individual who is “unlawfully present in the United States for a period of more than 180 days but less than 1 year,” is barred from reentry into the United States for three years. 8 U.S.C. § 1182(a)(9)(B)(i)(I). The INA further provides that an individual who is “unlawfully present in the United States for one year or more” is barred from reentry for ten years. Id. § 1182(a)(9)(B)(i)(II).
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2.) Defendants, on the other hand, move to dismiss Plaintiffs’ Complaint for lack of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or, in the alternative, for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6). (ECF No. 30.) II. DEFENDANTS’ MOTION TO DISMISS
A. Legal Standards A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction raises the question of “whether [the plaintiff] has a right to be in the district court at all and whether the court has the power to hear and dispose of [the] claim.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). The burden of establishing subject-matter jurisdiction is on the plaintiff. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). When evaluating a Rule 12(b)(1) motion, the court may consider evidence outside the pleadings and should grant the motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). Once a court determines it lacks subject-matter jurisdiction over a claim, the claim must be dismissed. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 301 (4th Cir. 2009). A motion made under Rule 12(b)(6) challenges the legal sufficiency of the facts in the complaint, specifically whether the complaint satisfies the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a complaint need not contain detailed factual
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allegations, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original). Rather, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. In other words, to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
B. Discussion Defendants challenge this Court’s jurisdiction based on the threshold issues of standing and ripeness,7 each of which the Court addresses, in turn, below.
1. Standing “To establish standing under Article III of the Constitution, a plaintiff must ‘allege (1) an injury that is (2) fairly traceable to the defendant’s allegedly unlawful conduct and that is (3) likely to be redressed by the requested relief.’” Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 590 (1992)). Where, as here, Plaintiffs sue to vindicate procedural rights—such as the right to have proposed regulatory action comply with the requirements of the APA—“they must establish the agency action threatens their concrete interest.” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014). “Once that threshold is satisfied, [however,] the normal standards for immediacy and redressability are relaxed.” Id.; see Hodges v. Abraham, 300 F.3d 432, 444 (4th Cir. 2002) (“Pursuant to the Court’s decision in [Lujan], a person entitled to a ‘procedural right,’ . . . can thereby possess Article III standing
7 Defendants’ opposition to Plaintiffs’ motion for preliminary injunction and partial summary judgment are also based solely on the jurisdictional issues of standing and ripeness. (See ECF No. 32 at 15–24.)
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‘without meeting all the normal standards for redressability and immediacy.’” (quoting Lujan, 504 U.S. at 572 n.7)). “[I]f the plaintiffs can demonstrate a causal relationship between the final agency action and the alleged injuries, the court will assume[ ] the causal relationship between the procedural defect and the final agency action.” Mendoza, 754 F.3d at 1010 (second alteration in original) (internal quotation marks omitted).
While the instant action has been brought by a number of plaintiffs,8 “the Supreme Court has made it clear that ‘the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Bostic, 760 F.3d at 370 (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)). Here, the Court finds that Individual Plaintiffs—Ye and Li— have standing to sue. Specifically, Ye and Li have sufficiently alleged injury arising from the August 2018 Policy Memorandum. Both individual Plaintiffs are foreign nationals who entered the United States on F-1 nonimmigrant student visas, and subsequently either graduated, or withdrew, from school. (ECF No. 16-1 ¶¶ 4, 10; ECF No. 162 ¶¶ 4, 10.) Ye and Li have been recruited by the U.S. Army to enter the Military Accessions Vital to National Interest (“MAVNI”) program because they both “possess language skills in high demand by the [U.S.] military.” (ECF No. 16-1 ¶ 6; ECF No. 16-2 ¶ 6.) In exchange for their enlistment in the U.S. Army through the MAVNI program, Individual Plaintiffs would be granted United States citizenship. (ECF No. 16-1 ¶ 6; ECF No. 16-2 ¶ 6.) Ye and Li have each signed an enlistment contract with the Army and they are awaiting orders to report to Basic
8 Plaintiffs in this action are institutions that enroll international students; the international students association at one of those colleges; the American Federation of Teachers; and two foreign national individuals who allegedly entered the United States on F-1 visas. (See generally ECF No. 14 ¶¶ 20–64.)
6
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Combat Training.9 (ECF No. 16-1 ¶¶ 7–8; ECF No. 16-2 ¶¶ 7, 9.) Individual Plaintiffs were “told by the Army not to leave the United States while [they] wait for basic training.” (ECF No. 16-2 ¶ 8; see ECF No. 16-1 ¶ 9.)
Defendants argue that because, to date, neither Ye nor Li has received an official determination that he is out of status, “[it] remains entirely speculative whether [Individual Plaintiffs] will ever find themselves inadmissible” under the INA. (ECF No. 32 at 16.) Defendants further argued at the April 4 hearing that “something actually needs to happen to [Individual Plaintiffs] before they can go into court.” (Tr. at 43.) However, the Supreme Court has made clear that “where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007). Here, pursuant to the new policy set forth in the Policy Memorandum which started the accrual of unlawful presence for out-ofstatus nonimmigrants on August 9, 2018, it is likely that Individual Plaintiffs are presently accruing unlawful presence given that they are no longer enrolled in a course of study. (ECF No. 14-1 at 4–5.) Ye’s 180-day clock expired on February 5, 2019, and Li’s expired on February 20, 2019. (Compare ECF No. 16-1 ¶ 10, and ECF No. 16-2 ¶ 10, with ECF No. 14-1 at 4–5.) Consequently, Ye and Li are likely to be subject to at least a three-year reentry bar if they are later adjudged to be out of status. Therefore, based on the allegations and the evidence presently before the Court, the change in policy set forth in the August 2018 Policy Memorandum directly affects Ye and Li’s concrete interest, i.e., their ability to depart the United States and return without imposition of a reentry bar. Moreover, this could occur to each
9 Ye signed his Army enlistment contract on November 24, 2015, (ECF No. 16-2 ¶ 7), and Li signed his Army enlistment contract on January 14, 2016, (ECF No. 16-1 ¶ 7).
7
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individual Plaintiff absent any notice that departing the United States would result in a bar to their reentry. Accordingly, the Court concludes that Individual Plaintiffs have sufficiently alleged harms to their concrete interests traceable to the August 2018 Policy Memorandum which will likely be redressed by the relief requested by Plaintiffs. Thus, at this preliminary phase, Individual Plaintiffs have met their burden of demonstrating standing to challenge the August 2018 Policy Memorandum in this action. See, e.g., NAACP v. Trump, 298 F. Supp. 3d 209, 224 n.9 (D.D.C. 2018) (holding that an undocumented individual to whom the government had extended deferred action under the Deferred Action for Childhood Arrivals (“DACA”) policy “clearly satisfies the irreducible constitutional minimum of standing” to challenge the government’s rescission of the DACA program). See also Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir.) (citing Lujan, 504 U.S. at 561) (“At this very preliminary stage of the litigation, the [Plaintiffs] may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden.”), cert. denied Golden v. Washington, 138 S. Ct. 448 (2017).
In addition to the individual Plaintiffs, an organizational plaintiff may have standing to sue in two ways: (i) on its own behalf (organizational standing); or (ii) on behalf of its members (representational or associational standing). See White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005). A plaintiff may establish organizational standing “when it seeks redress for an injury suffered by the organization itself.” Id. An injury is cognizable, for organizational standing purposes, when the plaintiff alleges that “a defendant’s practices have hampered an organization’s stated objectives causing the organization to divert its resources as a result.” Action NC v. Strach, 216 F. Supp. 3d 597, 616 (M.D.N.C. 2016) (citing Havens Realty Corp. v.
8
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Coleman, 455 U.S. 363, 379 (1982)). The American Federation of Teachers (the “AFT”) alleges that “[s]ince the new DHS rules were announced, [it] has invested resources to address and mitigate the immediate and imminent harm to its members.” (ECF No. 16-4 ¶ 14 (emphasis added).) However, there are no allegations by the AFT to reflect whether such investment constitutes a diversion of resources away from other advocacy activity. See Action NC, 216 F. Supp. 3d at 616. Nor are there allegations that such investment has impaired the AFT’s ability to advance its mission by causing a drain on its resources. See Havens Realty Corp., 455 U.S. at 379 (explaining that where defendant’s practices “have perceptibly impaired” an organization’s mission, causing a drain on the organization’s resources, “there can be no question that the organization has suffered injury in fact”); Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012) (“An organization may suffer an injury in fact when a defendant’s actions impede its efforts to carry out its mission.”). As a result, the AFT has failed to sufficiently allege facts necessary to demonstrate organizational standing.
Although the AFT has failed to establish standing in its own right, it may establish “representational standing” to sue on its members’ behalf by alleging facts that demonstrate the following: “(1) its own members would have standing to sue in their own right; (2) the interests the organization seeks to protect are germane to the organization’s purpose; and (3) neither the claim nor the relief sought requires the participation of individual members in the lawsuit.” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (quoting Md. Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991)). Applying Supreme Court precedent, the Fourth Circuit has held that the first requirement of representational standing—demonstrating that an organization’s members would
9
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have standing to sue in their own right—requires an organization to “make specific allegations establishing that at least one identified member had suffered or would suffer harm.” Id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009)). In this case, “AFT is a national labor union . . . [with] over 3,000 affiliated local unions10 . . . throughout the United States and three [of its] territories.” (ECF No. 16-4 ¶ 3 (footnote added).) Its members include individuals present in the United States on F and J visas, and its “mission includes advancing the interests of its members, including supporting commonsense policies that promote immigration opportunities for individuals who wish to serve as teachers.” (ECF No. 14 ¶¶ 47–48, 181–82.) “To fulfill this mission, AFT advocates for its members’ interests before government bodies and in court.” (Id. ¶ 182.) The AFT has submitted the declarations of three individuals, each of whom are members of affiliated local unions who are presently in the United States on an F-1 or J-1 visa. (ECF Nos. 16-5, 16-6, 16-7.) Each declarant fears that he or she would suffer harm under the new policy for calculating unlawful presence as set forth in the August 2018 Policy Memorandum. (ECF Nos. 16-5, 16-6, 16-7.) Further, the interests the AFT seeks to protect in this action are germane to its stated purpose of “advocating for the civil rights of its members.” (ECF No. 14 ¶¶ 47–49; ECF No. 16-4 ¶ 5.) Also, the Complaint alleges that “[n]either the claims asserted nor the relief requested in this lawsuit requires participation of individual AFT members.” (ECF No. 14 ¶ 183.) The Court therefore finds that AFT has alleged sufficient facts to demonstrate that it has representational standing.
10 According to the declaration of Rhonda Weingarten, President of the AFT, an individual becomes a member of the AFT “by joining an AFT affiliated local union, a council of locals or, in some cases, a statewide affiliate.” (ECF No. 16-4 ¶ 5.)
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In light of the Court’s findings that Individual Plaintiffs and the AFT have standing which is sufficient for this Court to exercise jurisdiction over this action, at this time, the Court need not reach the issue whether the remaining plaintiffs—Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College—likewise have standing. See Bostic, 760 F.3d at 370; Ezell v. City of Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011) (“Where at least one plaintiff has standing, jurisdiction is secure and the court will adjudicate the case whether the additional plaintiffs have standing or not.” (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 (1977))).
2. Ripeness With respect to the issue of ripeness, Defendants argue, in pertinent part, that this matter is not ripe given that that “there has not yet been final agency action” as to Individual Plaintiffs and “it remains entirely speculative” whether these Plaintiffs will be subject to the Policy Memorandum. (ECF No. 32 at 21, 22.) Plaintiffs argue, on the other hand, that they “do not challenge any particular, individual unlawful-presence determinations that have yet to take place[;] [r]ather, they bring an APA challenge against USCIS’s global, binding policy, memorialized in the August 2018 directive,” and, as such, this matter is ripe for adjudication. (ECF No. 33 at 6.) The Court agrees with Plaintiffs. “Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807–08 (2003)
11
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(internal quotation marks omitted). Thus, ripeness is essentially a question of timing. Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974).
In evaluating ripeness, courts must consider “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir. 2013) (quoting Nat’l Park Hosp. Ass’n, 538 U.S. at 808). With respect to fitness, “[a] case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). In this case, Plaintiffs’ claims, which relate to the validity of the August 2018 Policy Memorandum, present legal questions. Further, the agency action in controversy, i.e., promulgating the August 2018 Policy Memorandum, is final, having taken effect on August 9, 2018, (ECF No. 14-1 at 4). This matter is therefore “fit for judicial decision.” Miller, 462 F.3d at 319.
With respect to hardship, courts consider “the immediacy of the threat and the burden imposed” on a plaintiff. Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208–09 (4th Cir. 1992). Plaintiffs contend that, pursuant to the August 2018 Policy Memorandum, Individual Plaintiffs face the immediate threat of the likely imposition of a reentry bar were they to depart the United States. (ECF No. 16 at 9.) To that end, at the April 4 hearing, Defendants argued that, without Individual Plaintiffs having left the country, this matter is not ripe. (Tr. at 42.) Under Defendants’ reasoning, however, were Individual Plaintiffs to wait until they departed the United States, any bar to their reentry would not be subject to judicial review under
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the doctrine of consular nonreviewability.11 See Macena v. U.S. Citizenship & Immigration Servs., Civ. A. No. TDC-14-3464, 2015 WL 6738923, at *4 (D. Md. Nov. 2, 2015). While the injury faced by a plaintiff “must be certainly impending,” “[w]e do not require parties to operate beneath the sword of Damocles until the threatened harm actually befalls them.” Iowa League of Cities v. E.P.A., 711 F.3d 844, 867 (8th Cir. 2013) (internal quotation marks omitted)). Accordingly, the Court finds that based on Plaintiffs’ allegations, the implementation of the August 2018 Policy Memorandum presents an immediate threat and burden on Individual Plaintiffs. See Pashby v. Delia, 709 F.3d 307, 317 (4th Cir. 2013) (“For a claim to be ripe, it must involve an administrative decision [that] has been formalized and its effects felt in a concrete way by the challenging parties.’” (alteration in original) (internal quotation marks omitted)). The Court therefore concludes that this matter is ripe for judicial review.
Having determined that at least one plaintiff has standing to sue and that this matter is ripe for adjudication, Defendants’ motion to dismiss is denied. The Court will next proceed to consider whether entry of a preliminary injunction is warranted. III. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
A. Legal Standard A preliminary injunction is an extraordinary remedy involving the exercise of a very farreaching power that is only to be employed in limited circumstances. MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001). Whether to grant a preliminary injunction is in
11 “Although the . . . Fourth Circuit has yet to address the doctrine of ‘consular nonreviewability,’ other Courts of Appeals have consistently held that a doctrine of ‘consular nonreviewability’ precludes courts from reviewing a consular officer’s decision to grant or deny a visa to a foreign national.” Macena v. U.S. Citizenship & Immigration Servs., Civ. A. No. TDC-14-3464, 2015 WL 6738923, at *4 (D. Md. Nov. 2, 2015) (internal citation omitted) (citing cases). See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (“[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”).
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the sound discretion of the court. Westmoreland Coal Co. v. Int’l Union, United Mine Workers of Am., 910 F.2d 130, 135 (4th Cir. 1990). Courts generally issue preliminary injunctions in order to prevent irreparable harm and to preserve the ability of the court to render meaningful relief on the merits.12 United States v. South Carolina, 720 F.3d 518, 524 (4th Cir. 2013). The party seeking a preliminary injunction bears the burden of justifying such relief. Wagner v. Bd. of Educ., 335 F.3d 297, 302 (4th Cir. 2003).
To prevail on a motion for preliminary injunction, a party must establish that: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm without preliminary injunctive relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “[A] clear showing” of likelihood of success on the merits and irreparable harm is required, in addition to satisfying the other factors for a preliminary injunction to be entered. Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346–47 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
1. Likelihood of Success on the Merits The Court concludes that Plaintiffs have demonstrated a likelihood of success on the merits on their first and third causes of action: (i) that the August 2018 Policy Memorandum is invalid for failure to observe the APA’s notice and comment procedures; and (ii) that the August 2018 Policy Memorandum substantively conflicts with the INA.13
12 “[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding” on the Court’s ultimate determination of the merits. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). 13 Beyond their jurisdictional arguments of standing and ripeness, Defendants failed to include any arguments in their opposition brief which address the substantive merits, or lack thereof, of Plaintiffs’ claims. (See ECF No. 32.) The Court entered its Order on January 28, 2019 setting the hearing on the instant motions for March 26, 2019, (ECF No. 36), which was later changed to April 4, 2019, (ECF No. 43). At the April 4 hearing, counsel for
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a) Notice and Comment “The APA requires that all ‘rules’ be issued through a statutorily prescribed notice-andcomment process.” Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 619 (4th Cir. 2018) (citing 5 U.S.C. § 553(a)–(c)). However, the APA’s notice and comment requirements only apply to “legislative” or “substantive” rules. Lincoln v. Vigil, 508 U.S. 182, 196 (1993) (citing 5 U.S.C. § 553(b)). The notice and comment procedures do not apply to: (i) interpretative rules; (ii) general statements of policy;14 or (iii) rules of agency organization, procedure, or practice.15 Id. (citing 5 U.S.C. § 553(b)). Failure to comply with the APA’s notice and comment procedures renders a “legislative” or “substantive” rule invalid. See Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 n.9 (4th Cir. 1995) (explaining that if an interim rule promulgated by the Attorney General “were a substantive rule, it would have been invalid from the date of its issuance for failure to comply with the notice [and comment] requirements under 5 U.S.C. § 553”). The Fourth Circuit has instructed that “legislative[ ] rules . . . are rules issued by agencies pursuant to statutory authority and which implement the statute.” Id. at 1340; accord Mendoza, 754 F.3d at 1023 (finding agency pronouncements legislative because they “endeavor[ ] to implement the statute, the effect of a legislative rule” (alteration in original)). The Supreme Court has “described a substantive rule—or a ‘legislative-type rule,’—as one ‘affecting individual rights and obligations.’” Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) (internal citation
Defendants stated that Defendants “would be willing to get to the more substantive point[s]” underlying the instant suit “through an abbreviated briefing schedule or something along those lines.” (Tr. at 47.) 14 “A rule is a general statement of policy if it does not establish a binding norm and leaves agency officials free to exercise their discretion.” Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 (4th Cir. 1995). 15 Rules of agency organization, procedure, or practice include rules that “do not alter the rights or interests of parties.” Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 349 (4th Cir. 2001) (internal quotation marks omitted).
15
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omitted) (quoting Morton v. Ruiz, 415 U.S. 199, 232, 236 (1974)). Further, “[a] rule is legislative if it supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy.” Children’s Hosp., 896 F.3d at 620 (alteration in original) (quoting Mendoza, 754 F.3d at 1021). By contrast, “the critical feature of interpretive rules is that they are issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.” Id. (internal quotation marks omitted) (quoting Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015)).
Here, the August 2018 Policy Memorandum explicitly states that “to improve how USCIS implements the unlawful presence ground of inadmissibility under [the] INA, . . . USCIS is now changing its policy on how to calculate unlawful presence.” (ECF No. 14-1 at 4 (emphasis added).) See Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 208 (4th Cir. 1989) (“In deciding whether [an agency statement] is an interpretative [or legislative] rule, this court should consider the [agency’s] intent in authoring it, as ascertained by an examination of the provision’s language, its context, and any available extrinsic evidence.” (internal quotation marks omitted)). To effect this new change in policy, USCIS has inserted its revised definition of unlawful presence, as reflected in the Policy Memorandum, into its USCIS Adjudicator’s Field Manual. (ECF No. 14 ¶ 99; ECF No. 14-1 at 10.) The USCIS Adjudicator’s Field Manual, in turn, states that “policy material is binding upon all employees of USCIS, unless or until it is specifically superseded by other policy material. There are no exceptions to this rule.” (ECF No. 14 ¶ 129 (citing USCIS Adjudicator’s Field Manual § 3.4(b)); see also id. ¶ 130.) Further, the August 2018 Policy Memorandum bears reference number, “PM-602-1060.1,” (ECF No. 14-1 at 2), and according to the USCIS Adjudicator’s Field Manual, “[e]xamples of policy materials”
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include: “Field and Administrative Manuals” and “Memoranda and cables from Headquarters specifically designated as policy (bearing the ‘P’ suffix in the reference file number),” (ECF No. 14 ¶ 130 (quoting USCIS, USCIS Adjudicator’s Field Manual § 3.4(a))). Here, based on the explicit language of the Policy Memorandum, its stated purpose, its designation as policy material as described in the USCIS Adjudicator’s Field Manual, and its binding effect on adjudicators, the Court finds that Plaintiffs are likely to succeed in showing that the August 2018 Policy Memorandum is a legislative rule.
For a legislative rule to be valid however, it must have been promulgated in compliance with the APA’s notice and comment procedures. See 5 U.S.C. § 553. Plaintiffs allege that USCIS failed to publish notice of its proposed change in policy in the Federal Register. (ECF No. 14 ¶¶ 15, 186–92.) See 5 U.S.C. § 553(b) (“General notice of proposed rule making shall be published in the Federal Register[.]” (emphasis added)). Plaintiffs also allege that although Defendants issued a policy memorandum on May 10, 2018 proposing its policy changes for calculating unlawful presence and providing a period for public comments, such memorandum was not published in the Federal Register, as required under the APA. (ECF No. 14 ¶¶ 115–20). Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001) (explaining that the APA “requires notice of any proposed rule to be published in the Federal Register”); see also Rodway v. U.S. Dep’t of Agric., 514 F.2d 809, 815 (D.C. Cir. 1975) (“Only publication in the Federal Register meets the APA requirement of constructive notice.”). Further, while “[m]embers of the public submitted comments in response to the May 10 notice,” Plaintiffs allege that the agency “did not provide a reasoned response to those comments,” and, instead, issued a press release stating that “[a]s a result of public engagement and stakeholder feedback, USCIS has adjusted
17
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the unlawful presence policy to address a concern raised in the public’s comments.” (ECF No. 14 ¶ 117 (citing ECF No. 14-5).) See Perez, 135 S. Ct. at 1203 (“An agency must consider and respond to significant comments received during the period for public comment.”); North Carolina v. FAA, 957 F.2d 1125, 1135 (4th Cir. 1992) (stating that an agency must “reasonably respond to those comments that raise significant problems”). The Court therefore concludes that Plaintiffs have demonstrated a likelihood of success with respect to their claim that the August 2018 Policy Memorandum was promulgated in violation of the APA’s notice and comment procedures for rulemaking.
b) Conflict with the INA The Court also finds that Plaintiffs will likely succeed on their claim that the August 2018 Memorandum conflicts with the INA. As outlined above, Plaintiffs’ Complaint alleges that Congress first included the concept of “unlawful presence” as part of the INA by passing the Illegal Immigration Reform and Immigrant Responsibility Act (the “IIRIRA”) in 1996.16 (ECF No. 14 ¶¶ 85–89); see Pub. L. No. 104-208, div. C, § 301(b)(1), 110 Stat. 3009-546, 3009-576 (1996) (enacting the current 8 U.S.C. § 1182(a)(9)). According to the Complaint, prior to the enactment of IIRIRA, the INA contained “other related concepts,” namely, “unlawful status” and “unlawful immigration status.” (ECF No. 14 ¶ 206.) Plaintiffs claim that the fact that Congress, in the IIRIRA, chose to create an entirely new category of “unlawful presence,” rather than simply using the existing language of “unlawful
16 See supra at 2 n.4.
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status,” means that the two categories cannot be the same.17 (See id. ¶¶ 205–206.) “[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 102 n.5 (2012) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004)); see also Cunningham v. Scibana, 259 F.3d 303, 308 (4th Cir. 2001) (“Although the two terms are quite similar, we must assume that Congress made a deliberate choice to use different language.”).
Plaintiffs allege that by redefining “unlawful presence” to begin to accrue on the day that a nonimmigrant’s lawful status lapses, the Policy Memorandum renders both concepts— “unlawful presence” and “unlawful status”—essentially synonymous. (See ECF No. 14 ¶¶ 203– 211.) Thus, it appears likely that, based on the statutory text of the IIRIRA, unlawful presence for a nonimmigrant alien does not begin to accrue until an adjudicator determines that the individual is out of status. To the extent that the Policy Memorandum mandates a different start date for calculating the accrual of unlawful presence, the Policy Memorandum may conflict with the IIRIRA’s provision defining unlawful presence. The Court, therefore, concludes that Plaintiffs have demonstrated a likelihood of success on their claim that the August 2018 Policy Memorandum’s method for calculating unlawful presence conflicts with existing law and is therefore invalid.
2. Irreparable Harm The Court must next consider whether Plaintiffs are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. Here, Individual Plaintiffs, Ye and Li,
17 Elsewhere in the IIRIRA Congress did employ unlawful status language. Pub. L. 104-208, div. C, § 330(a)(1)(B)(i), 110 Stat. at 3009-631 (1996) (referring to “any alien who . . . is not in lawful immigration status in the United States.”).
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allege that USCIS may maintain that their student status lapsed prior to August 9, 2018 and August 24, 2018, respectively. (ECF No. 16-1 ¶ 10; ECF No. 16-2 ¶ 10.) Therefore, under the terms of the August 2018 Policy Memorandum, as of February 6, 2019 and February 21, 2019, respectively, Ye and Li appear to have exceeded 180 days of unlawful presence.18 (See ECF No. 14-1 at 4–5.) The AFT likewise alleges that some of its members present in the United States on F or J nonimmigrant visas may likely fall out of status and accrue unlawful presence without their knowledge due to technical status violations. (See ECF No. 16-4 ¶¶ 6, 7, 12–13; see also ECF No. 14 ¶¶ 48–49, 137–40, 149–50.) Pursuant to the terms of the Policy Memorandum, such members will likely be forced to depart the United States, or be subject to a reentry bar if they depart the United States without knowing that they have exceeded 180 days of unlawful presence. Absent injunctive relief, upon departure from the United States, Ye and Li, as well as AFT members on F or J nonimmigrant visas, will likely be subject to imposition of a three or ten-year reentry bar before having an opportunity to cure any status violations. Moreover, once the reentry bar has been imposed, judicial review will likely be precluded by the doctrine of consular nonreviewability, which holds that “courts lack jurisdiction to review a consular officer’s decision to grant or deny a visa.” Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 277–78 (4th Cir. 2018), vacated on other grounds, 138 S. Ct. 2710 (2018) (citing Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999)). The Court therefore finds that Plaintiffs are likely to suffer irreparable harm absent entry of a preliminary injunction.
18 As previously stated, under the INA, any individual who is “unlawfully present in the United States for a period of more than 180 days but less than 1 year,” is barred from reentry into the United States for three years. 8 U.S.C. § 1182(a)(9)(B)(i)(I).
20
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3. Balance of Equities and Public Interest “When a private party seeks injunctive relief against the government, the final two injunction factors—the balance of equities and the public interest—generally call for weighing the benefits to the private party from obtaining an injunction against the harms to the government and the public from being enjoined.” Doe v. Mattis, 889 F.3d 745, 766 (D.C. Cir. 2018); accord, e.g., Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)) (“When the government is a party, these last two factors merge.”). The Court finds that, under the circumstances of this case, the equities and public interest factors weigh in favor of granting injunctive relief. An injunction will prevent the harms outlined above for Plaintiffs, along with similarly situated individuals and institutions across the country. The record does not reflect any countervailing harm to the government in maintaining the status quo19 by returning, for the duration of this lawsuit, to a policy that it voluntarily followed for over twenty years. Further, given Plaintiffs’ demonstration of the likelihood of success on their claim that the August 2018 Memorandum was adopted in violation of the APA, “there is a substantial public interest in having [Defendants] abide by the federal laws that govern their . . . operations.” League of Women Voters v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal quotation marks omitted); Nat’l Ski Areas Ass’n v. U.S. Forest Serv., 910 F. Supp. 2d 1269, 1290 (D. Colo. 2012) (concluding that “there is a public interest in ensuring that federal
19 A preliminary injunction is intended to serve the limited purpose of preserving the status quo during the pendency of the litigation in order to prevent irreparable harm and to preserve the ability of the court to render meaningful relief on the merits. South Carolina, 720 F.3d at 524. The Fourth Circuit “has defined the status quo as the ‘last uncontested status between the parties which preceded the controversy.’” Pashby, 709 F.3d at 320 (quoting Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 378 (4th Cir. 2012)).
21
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agencies adhere to the rule-making processes in the APA”). Based on the above, the Court concludes that a preliminary injunction is warranted in this matter. IV. SCOPE OF INJUNCTIVE RELIEF
Having concluded that, under the circumstances here, injunctive relief is warranted, the Court must now determine the appropriate scope of the injunction. “Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction.” Califano v. Yamasaki, 442 U.S. 682, 705 (1979). Accordingly, “district courts have broad discretion when fashioning injunctive relief.” Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010). See Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002) (“When a district court grants an injunction, the scope of such relief rests within its sound discretion.”). Such relief “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Kentuckians for Commonwealth, Inc. v. Riverburgh, 317 F.3d 425, 436 (4th Cir. 2003) (quoting Califano, 442 U.S. at 702). “[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Califano, 442 U.S. at 702.
Plaintiffs seek entry of “a preliminary injunction suspending the effectiveness, pending resolution of this lawsuit, of the [August 2018 Policy Memorandum]” as well as “the memorandum with the same title issued on May 10, 2018.”20 (ECF No. 15 at 1.) Defendants oppose Plaintiffs’ request for nationwide injunctive relief, characterizing such request as one based on a “generalized grievance.” (ECF No. 42 at 3.) As Defendants correctly contend, the Fourth Circuit has explained:
20 See supra at 2 n.5.
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[Courts] are woefully ill-suited . . . to adjudicate generalized grievances asking us to improve an agency’s performance or operations. In such a case, courts would be forced either to enter a disfavored “obey the law” injunction, or to engage in day-to-day oversight of the executive’s administrative practices. Both alternatives are foreclosed by the APA, and rightly so. (Id. (quoting City of New York v. U.S. Dep’t of Defense, 913 F.3d 423, 431 (4th Cir. 2019))). However, the Fourth Circuit also explained in City of New York that “[c]ourts are well-suited to reviewing specific agency decisions, such as rulemakings, orders, or denials.” City of New York, 913 F.3d at 431 (emphasis added). Accordingly, as discussed above, the Court finds that Plaintiffs are likely to succeed on its claims that the subject Policy Memorandum is a legislative rule promulgated in violation of the APA’s rulemaking procedures, and that the Policy Memorandum conflicts with the INA. Therefore, this Court has the power to review the rulemaking at issue and, if appropriate, preliminarily enjoin Defendants’ challenged action. Defendants also argue that “Plaintiffs’ request for [nationwide] injunctive relief suffers from gross overbreadth,” and “goes well beyond any circumstances in this case.” (ECF No. 42 at 5, 6.) In support of their contention, Defendants cite PBM Products, LLC v. Mead Johnson & Co., 639 F.3d 111 (4th Cir. 2011) and Hayes v. North State Law Enforcement Officers Ass’n, 10 F.3d 207, 217 (4th Cir. 1993). (ECF No. 42 at 5). In PBM, an infant formula manufacturer brought an action under the Lanham Act against a competitor for false advertising. 639 F.3d at 116. Following a jury verdict in favor of the plaintiff manufacturer, the district court issued a permanent injunction prohibiting the defendant’s use of certain false statements in all advertising or promotional material going forward. Id. at 118–19. In concluding that the district court’s entry of injunctive relief was proper, the Fourth Circuit explained that “the Lanham Act vests district courts with the ‘power to grant injunctions’” when a violation of the Act has been
23
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proven. Id. at 126 (quoting 15 U.S.C. § 1116(a)). Further, in upholding the breadth of the district court’s injunction, the Fourth Circuit rejected the defendant’s argument that the district court enjoined conduct “beyond the harm [plaintiff] sought to redress.” Id. at 126. The Fourth Circuit explained that the injunction was not overbroad because it only addressed the specific conduct that the district court found to be in violation of the Lanham Act. Id. at 128.
Similarly, here, the APA vests the district courts with the power to “set aside agency action” found to be unlawful. 5 U.S.C. § 706(2). Additionally, because this Court has determined that Plaintiffs will likely succeed in their challenge to the lawfulness of the August 2018 Policy Memorandum, the relief would likely result in a nationwide injunction prohibiting enforcement of the Policy Memorandum. See Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1401 (D.C. Cir. 1998) (affirming district court entry of a nationwide injunction upon finding an agency rule invalid).
In Hayes, the Fourth Circuit vacated an injunction issued by the district court which “enjoin[ed] all use of racially based criteria by the City of Charlotte in its employment decisions.” 10 F.3d at 217. The Fourth Circuit found that the injunction was overbroad where “[t]he only policy challenged . . . was the police department’s promotion policy [for] sergeants.” Id. According to the Fourth Circuit, “[t]he injunction clearly went further than was required to award full relief to the [p]laintiffs in [that] case” given that there was “no controversy with regard to the entire City’s employment decisions.” Id.
Hayes is distinguishable from the instant action in which Plaintiffs challenge the lawfulness of the August 2018 Policy Memorandum. In this context, “[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are
24
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vacated—not that their application to the individual petitioners is proscribed.” Nat’l Mining Ass’n, 145 F.3d at 1409 (alteration in original). Courts have, thus, found a nationwide injunction appropriate in such cases. See, e.g., S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 968, 969–70 (D.S.C. 2018) (finding that the government failed to comply with APA requirements in implementing agency rule and enjoining the rule nationwide); Texas v. United States, 201 F. Supp. 3d 810, 835–36 (N.D. Tex. 2016) (concluding that because plaintiffs demonstrated a likelihood of success on their claim that defendants’ written directives violated APA requirements, an “injunction should apply nationwide”); Nat’l Fed’n of Indep. Bus. v. Perez, Civ. A. No. 5:16-cv-00066-C, 2016 WL 3766121, at *46 (N.D. Tex. June 27, 2016) (entering nationwide preliminary injunction and explaining that “[w]here a party brings a facial challenge alleging that agency action violated APA procedures, a nationwide injunction is appropriate”). Thus, because Plaintiffs have shown a likelihood of success on their claims that the August 2018 Policy Memorandum was promulgated in violation of the APA, and is therefore invalid, this Court likewise concludes that a nationwide injunction is appropriate.
Defendants further argue that, under “Article III standing principles,” injunctive relief should be “limit[ed] . . . to the bounds of what is necessary to prevent injury to the Plaintiffs in the case before the court.” (ECF No. 42 at 8.) However, “an injunction is not necessarily made overbroad by extending the benefit of protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987). See id. at 1169 (“There is no general requirement that an injunction affect only the parties in the suit.”). Under the APA, should Plaintiffs prevail on their underlying claims, the new policy set forth in the
25
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Policy Memorandum will be set aside as unlawful as applied to anyone who would be subject to the policy, including Plaintiffs.
Defendants also argue that a nationwide injunction “would interfere with other courts’ ability to decide similar issues or cases with actual developed facts.” (ECF No. 42 at 9.) Yet, “limiting the geographic scope of an injunction on an immigration enforcement policy ‘would run afoul of the constitutional and statutory requirements for uniform immigration law and policy.’” Regents of Univ. of California v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1049 (N.D. Cal. 2018) (quoting Washington, 847 F.3d at 1167), aff’d, 908 F.3d 476 (9th Cir. 2018). See Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018) (“Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”). The Court therefore concludes that, under the circumstances of this case, a nationwide preliminary injunction is appropriate. Defendants shall be enjoined from enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit. V. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs also move for partial summary judgment, specifically related to the first and third causes of action discussed above. (ECF No. 15 at 1–2.) In their response brief, Defendants argued that “summary judgment at this time in an APA case—before any administrative record has been compiled or proffered to the Plaintiffs—is wholly inappropriate.” (ECF No. 32 at 9.) Defendants provided no further argument as to the merits
26
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of the two claims which are the subject of Plaintiffs’ motion for partial summary judgment. 21 In Plaintiffs’ briefing in support of their partial summary judgment motion, they argue, in part, that “[t]he Court need not await the administrative record,” as the two claims on which they seek partial summary judgment present “purely legal issues” which “have nothing to do with the administrative record.” (ECF No. 33 at 12–13; see Tr. at 68–72.) Plaintiffs further argued that given Defendants’ failure to address the merits of Plaintiffs’ first and third claims, Defendants have “conceded the illegality of USCIS’s conduct for purposes of summary judgment.” (ECF No. 33 at 6.) Notwithstanding Defendants’ failure to respond, motions for summary judgment, particularly in the APA context, should not be granted in the absence of a full administrative record. See Nieves v. McHugh, 111 F. Supp. 3d 667, 679–80 (E.D.N.C. 2015) (“[I]n an APA claim, ‘summary judgment becomes the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.’” (quoting Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 879 (S.D.W. Va. 2009))); see also Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013) (“Allowing the allegations of a complaint to become the focal point of judicial review introduces an unnecessary and inevitably unproductive step into the process. The relevant inquiry [of an APA claim] is—and must
21 At the April 4 hearing, counsel for Defendants explained the government’s failure to submit briefing in response to Plaintiffs’ motion for partial summary judgment as follows:
I think the circumstances of us at the point that we were responding to [Plaintiffs’] motion for summary judgment was such that the government had been shut down since late December and we had to file in early January while the government was still shut down. Simply put, it was simply very, very difficult to respond to everything in that short amount of time while -- and even compile any sort of record to adequately respond to [Plaintiffs’] motion for summary judgment. (Tr. at 71.)
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remain—not whether the facts set forth in a complaint state a plausible claim but, rather, whether the administrative record sufficiently supports the agency’s [action].”).
The Court will, therefore, permit the parties to file cross-motions for summary judgment in accordance with an expedited briefing schedule set forth in a separate Order which shall be filed contemporaneously with this Memorandum Opinion and Order.
[ORDER FOLLOWS ON NEXT PAGE]
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For the reasons outlined herein, the Court enters the following: ORDER
IT IS THERFORE ORDERED that Plaintiffs’ Motion for Preliminary Injunction and Partial Summary Judgment, (ECF No. 15), is GRANTED IN PART and DENIED IN PART. The motion is GRANTED in that the Court hereby enjoins implementation, in all applications, of the memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” issued by Defendant United States Citizenship and Immigration Services on August 9, 2018 and bearing the file number PM-602-1060.1, as well as the memorandum with the same title issued on May 10, 2018 and bearing file number PM-602-1060, until further order of this Court. The motion is DENIED WITHOUT PREJUDICE to the extent it seeks partial summary judgment on the first and third causes of action alleged in Plaintiffs’ First Amended Complaint.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss, (ECF No. 30), is hereby DENIED.
IT IS FURTHER ORDERED that the parties shall engage in expedited summary judgment briefing as set forth in a separate Order which shall be filed contemporaneously with this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Expand the Scope of the Temporary Restraining Order, (ECF No. 39), is DENIED AS MOOT.
This, the 3rd day of May, 2019.
/s/ Loretta C. Biggs United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GUILFORD COLLEGE, GUILFORD COLLEGE )

INTERNATIONAL CLUB, THE NEW SCHOOL, )

FOOTHILL-DE ANZA COMMUNITY COLLEGE )

DISTRICT, HAVERFORD COLLEGE, THE

)

AMERICAN FEDERATION OF TEACHERS,

)

JIA YE, and SEN LI,

)

)

Plaintiffs,

)

)

v.

)

)

KIRSTJEN NIELSEN, U.S. DEPARTMENT OF )

HOMELAND SECURITY, L. FRANCIS CISSNA, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES,

)

)

Defendants.

)

1:18CV891

ORDER This Court, pursuant to its inherent power to “control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants,” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936), shall enter this Order sua sponte. Plaintiffs initiated this action seeking declaratory and injunctive relief for Defendants’ alleged violations of the Administrative Procedure Act (the “APA”), 5 U.S.C. § 701 et seq., and the Fifth Amendment to the United States Constitution. (ECF Nos. 1, 14.) Specifically, Plaintiffs’ lawsuit relates to the application of an August 9, 2018 Policy Memorandum issued by the U.S. Citizenship and Immigration Services, PM-602-1060.1, titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” (the “August 2018 Policy Memorandum” or the “Memorandum”). (ECF Nos. 1, 14.)

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On May 3, 2019, this Court entered a Memorandum Opinion and Order which, among other things, granted Plaintiffs’ motion for preliminary injunction and ordered the parties to engage in expedited summary judgment briefing, (the “May 3 Opinion and Order”). (ECF No. 45 at 29; ECF No. 46 at 1.) In accordance with the May 3 Opinion and Order, expedited briefing on the parties’ cross-motions for summary judgment ended on May 30, 2019. Presently pending before the Court are: (i) Plaintiffs’ Motion for Partial Summary Judgment, (ECF No. 47); and (ii) Defendants’ Motion for Summary Judgment, (ECF No. 50).
Of the four claims alleged in the First Amended Complaint, three claims implicate the APA. “A court conducting judicial review under the APA does not resolve factual questions, but instead determines whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 879 (S.D.W. Va. 2009) (emphasis added) (internal quotation marks omitted); see Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985). A court’s scope of review under the APA is, therefore, narrow and “limited to the administrative record and the grounds for decision invoked by the agency.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010) (emphasis added) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973), aff’d, 408 F. App’x 383 (D.C. Cir. 2010). “Thus, in an APA claim, summary judgment becomes the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Nieves v. McHugh, 111 F. Supp. 3d 667, 679–80 (E.D.N.C. 2015) (emphasis added) (internal quotation marks omitted). Accordingly, as this Court previously stated in its May 3 Opinion and Order, “motions for summary judgment,
2
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particularly in the APA context, should not be granted in the absence of a full administrative record.” (ECF No. 45 at 27.)
Here, despite the fact that, as set forth above, the Court must limit its inquiry under the APA to the administrative record, and the fact that both parties’ summary judgment briefs include citations to a “Certified Administrative Record,”1 the parties failed to file the administrative record as a part of the expedited briefing in this matter. Nor has either party sought an extension of time to file the required administrative record with the Court. See LR 7.3(e), (g) (stating that if a movant’s supporting documents “are not then available, the party may move for an extension of time” to file the supporting documents). It now has been more than thirty (30) days since the end of expedited summary judgment briefing ordered by this Court.
Further, although both parties move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 56.1 of this Court’s Local Rules, (see ECF Nos. 47, 50), the parties have failed to comply with the requirements under these rules to support their factual positions by “citing to particular parts of materials in the record” or “point[ing] to specific, authenticated facts existing in the record.” Fed. R. Civ. P. 56(c) (emphasis added); LR 56.1(d),(e). As a result of the parties’ failure to provide the Court with the required administrative record, the Court is precluded from addressing the merits of the parties’ cross motions for summary judgment. The Court therefore enters the following:
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Partial Summary Judgment, (ECF No. 47), and Defendants’ Motion for Summary Judgment, (ECF No. 50), are hereby
1 See, e.g., ECF No. 48 at 2, 3; ECF No. 51 at 7, 17; ECF No. 52 at 24–26; ECF No. 53 at 19; ECF No. 55 at 13, 15.
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DENIED WITHOUT PREJUDICE. Such motions shall not be refiled unless and until they are accompanied by the administrative record and any other supporting documents required to be filed under the applicable rules.
IT IS FURTHER ORDERED that the preliminary injunction entered in the Court’s May 3 Opinion and Order shall continue and remain in full force and effect as set forth in the May 3 Opinion and Order, until such time that this Court orders otherwise.
This, the 3rd day of July, 2019. /s/ Loretta C. Biggs United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GUILFORD COLLEGE, GUILFORD COLLEGE )

INTERNATIONAL CLUB, THE NEW SCHOOL, )

FOOTHILL-DE ANZA COMMUNITY COLLEGE )

DISTRICT, HAVERFORD COLLEGE, THE

)

AMERICAN FEDERATION OF TEACHERS,

)

JIA YE, and SEN LI,

)

)

Plaintiffs,

)

)

v.

)

)

KEVIN MCALEENAN, U.S. DEPARTMENT OF )

HOMELAND SECURITY, L. FRANCIS CISSNA, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES,

)

)

Defendants.

)

1:18CV891

ORDER Before the Court is a document filed by the parties titled, “Joint Request for Vacatur of Prior Order.” (ECF No. 58.) Having reviewed the parties’ request, IT IS HEREBY ORDERED that, to the extent the parties intend this request to serve as a motion1 seeking relief from the Court, the motion is DENIED, and the Court’s Order entered on July 3, 2019, (ECF No. 56), speaks for itself. This, the 12th day of July 2019.

/s/ Loretta C. Biggs United States District Judge

1 The parties are cautioned that, with respect to any future motions practice in this Court, they shall comply with this Court’s Local Rules (see LR 7.3), as well as the Federal Rules of Civil Procedure.

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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

GUILFORD COLLEGE, et al.

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 1:18-cv-0891

)

KEVIN K. MCALEENAN, in his

)

official capacity as Acting Secretary

)

of Homeland Security,1 et al.,

)

)

Defendants.

)

)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JOSEPH H. HUNT Assistant Attorney General
WILLIAM C. PEACHEY Director
GLENN M. GIRDHARRY Assistant Director

JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov

1 On April 7, 2019, Kevin K. McAleenan assumed duties as the Acting Secretary of Homeland Security, automatically substituting for Defendant Kirstjen M. Nielsen, former Secretary, as a party in accordance with Federal Rule of Civil Procedure 25(d). Similarly, Kenneth T. Cuccinelli II assumed duties as Acting Director of U.S. Citizenship and Immigration Services on June 10, 2019 and is automatically substituted under the same Civil Rule.
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TABLE OF CONTENTS INTRODUCTION..........................................................................................................................1 BACKGROUND ............................................................................................................................2 STANDARD OF REVIEW ...........................................................................................................2 ARGUMENT ..................................................................................................................................3 I. The Plaintiffs Lack Standing. ..............................................................................................3
A. Standing to Make Programmatic Challenges ..........................................................4 B. The Individual Plaintiffs’ Ongoing Agency Actions Defeat Jurisdiction.................8 II. The Plaintiffs’ Claims Against The August PM Fail On The Merits ..................................9 A. The August PM is an Interpretive Rule Exempt From Notice and Comment ..........9 B. The August PM is Neither Arbitrary, Capricious, nor Ultra Vires........................16 C. The August PM is Constitutional and the Plaintiffs Do Not Merit a Permanent
Injunction Under Salerno.......................................................................................19 CONCLUSION ............................................................................................................................20
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TABLE OF AUTHORITIES
CASES
Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227 (1937).................................................................................................................... 3
Allen v. Bergland, 661 F.2d 1001 (4th Cir. 1981) .................................................................................................. 10
Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532 (1970).................................................................................................................. 14
Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2 1106 (D.C. Cir. 1993) ............................................................................................ 10, 16
Audubon Naturalist Soc’y of the Cent. Atl. States, Inc. v. U.S. Dep’t of Transp., 524 F .Supp. 2d 642 (D. Md. 2007) ............................................................................................ 2
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).................................................................................................................. 16
Cabaccang v. USCIS, 627 F.3d 1313 (9th Cir. 2010) .................................................................................................... 9
Canal A Media Holding, LLC v. USCIS, — F. Supp. 3d —, 2019 WL 1390983 (S.D. Fla. Mar. 27, 2019)............................................................................. 9
Chaudhry v. Holder, 705 F.3d 289 (7th Cir. 2013) .................................................................................................... 17
Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995) .................................................................................................... 18
Chrysler Corp. v. Brown, 441 U.S. 281 (1979).................................................................................................................. 11
Citizens for the Scenic Severn River Bridge, Inc. v. Skinner, 802 F. Supp. 1325 (D. Md. 1991) ............................................................................................... 2
Dhakal v. Sessions, 895 F.3d 532 (7th Cir. 2018) ...................................................................................................... 9
Dismas Charities, Inc. v. DOJ, 401 F.3d 666 (6th Cir. 2005) .................................................................................................... 15 ii
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Doe v. Obama, 631 F.3d 157 (4th Cir. 2011) .................................................................................................. 3, 4
Flytenow, Inc. v. FAA, 808 F.3d 882 (D.C. Cir. 2016) ............................................................................................ 12, 13
Franklin v. Massachusetts, 505 U.S. 788 (1992).................................................................................................................... 8
Hayes v. N. State Law Enforcement Officers Ass’n, 10 F.3d 207 (4th Cir. 1993) ........................................................................................................ 1
In re L-K-, 23 I. & N. Dec. 677 (BIA 2004) ............................................................................................... 17
Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) .................................................................................................... 10
Jama v. DHS, 760 F.3d 490 (6th Cir. 2014) ...................................................................................................... 9
JEM Broadcasting Co., Inc. v. FCC, 22 F.3d 320 (D.C. Cir. 1994) .................................................................................................... 14
Kurfees v. INS, 275 F.3d 332 (4th Cir. 2001) ...................................................................................................... 8
Li v. Gonzales, 405 F.3d 171 (4th Cir. 2005) .................................................................................................... 19
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................................................................ 3, 4
Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989).................................................................................................................... 3
Massieu v. Reno, 91 F.3d 416 (3d Cir. 1996).......................................................................................................... 8
Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................................................. 19
Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).................................................................................................................... 16
iii
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N.C. Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp., 151 F. Supp. 2d 661 (M.D.N.C. 2001) ....................................................................................... 2
Nat’l Council for Adoption v. Jewell, 156 F. Supp. 3d 727 (E.D. Va. 2015) ....................................................................................... 13
N.C. Growers’ Ass'n v. Utd. Farm Workers, 702 F.3d 755 (4th Cir. 2012) .............................................................................................. 10, 13
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004)...................................................................................................................... 5
Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) .................................................................................................. 2, 3
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990).................................................................................................................. 20
Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199 (2015) ........................................................................................................ 10, 13
PETA, Inc. v. U.S. Fish & Wildlife Serv., 130 F. Supp. 3d 999 (E.D. Va. 2015) ......................................................................................... 7
Qureshi v. Holder, 663 F.3d 778 (5th Cir. 2011) ...................................................................................................... 9
RCM Technologies v. DHS, 614 F. Supp. 2d 39 (D.D.C. 2009) ........................................................................................ 7, 15
Reiter v. Cooper, 507 U.S. 258 (1993).................................................................................................................... 8
Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87 (1995)........................................................................................................ 10, 11, 12
Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) ...................................................................................................... 6
United States v. Atandi, 376 F.3d 1186 (10th Cir. 2004) .......................................................................................... 11, 17
United States v. Bazargan, 992 F.2d 844 (8th Cir. 1993) .................................................................................................... 19
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United States v. Igbatayo, 764 F.2d 1039 (5th Cir. 1985) ............................................................................................ 18, 19
United States v. Salerno, 481 U.S. 739 (1987)............................................................................................................ 19, 20 STATUTES
5 U.S.C. § 553(b)(A)............................................................................................................... 10, 14 5 U.S.C. § 554(a) .......................................................................................................................... 20 5 U.S.C. § 702................................................................................................................................. 2 5 U.S.C. § 704................................................................................................................................. 3 6 U.S.C. § 271(a)(3)(A) ................................................................................................................ 15 8 U.S.C. § 1101(a)(42)(B) ............................................................................................................ 19 8 U.S.C. § 1182(a)(9)(B) .................................................................................................... 8, 16, 19 8 U.S.C. § 1229a ............................................................................................................................. 9 8 U.S.C. § 1252(a)(5)...................................................................................................................... 9 8 U.S.C. § 1440............................................................................................................................... 9 8 U.S.C. § 1101(a)(15).................................................................................................................... 5 8 U.S.C. § 1201............................................................................................................................... 4 8 U.S.C. § 1761(b) ........................................................................................................................ 17
REGULATIONS 8 C.F.R. § 1003.1(b) ....................................................................................................................... 9
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INTRODUCTION Defendants respectfully submit this memorandum in support of their Motion for Summary Judgment (ECF No. 62) against Plaintiffs’ First Amended Complaint (ECF No. 14) (“Complaint” or “Compl.”) because Plaintiffs’ claims are not justiciable and, even if they were, fail on the merits. The Plaintiffs’ case is essentially a programmatic challenge for a permanent, nationwide injunction under the Administrative Procedure Act (“APA”) against U.S. Citizenship and Immigration Services’ (“USCIS”) interpretation of when former F, J, or M nonimmigrant students begin to accrue unlawful presence. Specifically, USCIS’s interpretation in an August 9, 2018 Policy Memorandum, PM-602-1060.1, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (ECF No. 14-1) (“August PM”).2 See Certified Administrative Record (“CAR”) at 6–18. The Plaintiffs make four claims: (1) that the August PM is a legislative rule violative of the APA because it was issued without notice and comment, Compl. ¶¶ 185–92; (2) that the August PM is arbitrary and capricious, Compl. ¶¶ 193–201; (3) that the August PM is inconsistent with the Immigration and Nationality Act (“INA”), Compl. ¶¶ 202–11; and (4) that the August PM violates the Fifth Amendment’s Due Process Clause, Compl. ¶¶ 212–21. But Plaintiffs have not shown how or when, if ever, any harm from the August PM might befall them. Defendants do not dispute that Plaintiffs’ opposition to the August PM is genuine, but without any concrete or imminent injury, that opposition does not provide Article III jurisdiction. Moreover, the August PM is a reasonable interpretive rule exempt from the APA’s notice-and-comment requirement, see
2 The Complaint does not seek such relief against USCIS’s May 10, 2018 memorandum eliciting public comment. (ECF No. 14-2.) Nor does the Complaint mention the May 10, 2018 memorandum. See Compl. at 36–42. The Court should decline to opine on this completely separate memorandum and dissolve that portion of its preliminary injunction. See Hayes v. N. State Law Enforcement Officers Ass’n, 10 F.3d 207, 217 (4th Cir. 1993)
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S. Doc. No. 248, 79th Cong., 2d Sess. 18 (1946) (explaining the exemption), and consistent with both the INA and the Constitution once it is looked at within the context of a standard agency adjudication—which is not presented here. Without any specific facts or personal effects, this Court should grant summary judgment for Defendants and allow the debate to be held where it properly belongs: in the political branches.
BACKGROUND Defendants incorporate by reference the “Legal Background” and “Factual And Procedural Background” sections in their Memorandum of Law in Support of Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint (“Motion to Dismiss”). See ECF No. 31 at 2–11 and 11–12, respectively.
STANDARD OF REVIEW The APA provides for federal courts to review a final agency action. See 5 U.S.C. § 702. “[C]laims brought under the APA are adjudicated without a trial or discovery, on the basis of an existing administrative record[.]” Audubon Naturalist Soc’y of the Cent. Atl. States, Inc. v. U.S. Dep’t of Transp., 524 F .Supp. 2d 642, 660 (D. Md. 2007). Consequently, “review of the administrative record is primarily a legal question which is readily resolved by summary judgment.” Citizens for the Scenic Severn River Bridge, Inc. v. Skinner, 802 F. Supp. 1325, 1332 (D. Md. 1991). Review under the APA is highly deferential and the agency action enjoys a presumption of validity and regularity. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009). The party challenging an agency decision has the burden to demonstrate that the agency action was arbitrary or capricious. N.C. Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp., 151 F. Supp. 2d 661, 679 (M.D.N.C. 2001). In assessing an agency action, “the
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reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (quotations omitted). “Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes a rational connection between the facts found and the choice made.” Aracoma, 556 F.3d at 192.
ARGUMENT I. The Plaintiffs Lack Standing.
Defendants incorporate by reference “The Plaintiffs Lack Standing” subsection in their Motion to Dismiss. See ECF No. 31 at 13–19. Plaintiffs claim that an exception to the rules of standing should be made for them because of the possibility that a third-party, the U.S. Department of State, might at some point deny them or their members visas at U.S. Embassies or Consulates overseas and these actions would not be reviewable. See Compl. ¶¶ 133–34. But Plaintiffs have yet to make any concrete claim as to when, if ever, the State Department might even review any visa applications made by any of the Plaintiffs. That is fatal. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) (requiring a “description of concrete plans, or … any specification of when the some day will be”); Doe v. Obama, 631 F.3d 157, 163 (4th Cir. 2011) (noting “Lujan’s requirement that plaintiffs have some concrete plan”); see also Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 242 (1937) (requiring declaratory judgments to involve “an adjudication of present right upon established facts”). Without any concrete effects or established facts of when the Plaintiffs might be harmed, the Plaintiffs do not have standing, much less reviewable challenges under the APA. See 5 U.S.C. § 704 (judicial review limited to final agency action).
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A. Standing to Make Programmatic Challenges This Court preliminarily ruled that the individual Plaintiffs and the American Federation for Teachers (“AFT”) had standing. See ECF 45 at 7–11. But the Court should reject that preliminary ruling because it was based on admitted contingencies that are entirely conjectural. See id. at 7 (“Ye and Li are likely to be subject to … [a] reentry bar if they are later adjudged to be out of status.” (emphasis added)); id. at 10 (noting how the AFT’s “declarant[s] fear[] that he or she would suffer harm under the new policy”). This is a problem because the Plaintiffs here are in no way challenging a discrete and final agency action. Although procedural APA challenges may be brought “without meeting all the normal standards for redressability and immediacy,” Lujan, 504 U.S. at 572 n.7, the Fourth Circuit has made it clear that a Plaintiff must still be able to point to some sort of effect for an Article III injury. Doe, 631 F.3d at 163 (“The imminence requirement is ‘stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff's own control.’”). In Doe, there was no standing where plaintiffs “did not allege that they ha[d] already tried and failed to adopt embryos, nor d[id] they allege any concrete plans for future adoption, so the possibility that they w[ould] never suffer the alleged injury loom[ed] too large.” Id.. The injury alleged by Plaintiffs is the possibility that a third party, the State Department,3 might deny them or their members visas and these actions would not be reviewable, see Compl. ¶ 133. But Plaintiffs have still never claimed when (if ever):
3 Under the INA, visas may be issued only by consular officers of the State Department (a third party). 8 U.S.C. §§ 1201, 1202, 1101(a)(9).
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• they will apply for a visa or on what ground, see 8 U.S.C. §§ 1101(a)(15), 1153; • they would be statutorily eligible to receive a visa but for the August PM, see id.
§ 1361; or • the State Department might even review any of their visa applications. Instead, the Plaintiffs can only claim the possibility that some injury may occur, and only upon a series of contingencies occurring. This speculation is fatal under Doe and Lujan. In Lujan, the plaintiff challenged the Secretary of the Interior’s entire “land withdrawal review program.” 497 U.S. at 877–79. The program covered the Bureau of Land Management’s (“BLM”) activities in complying with the Federal Land Policy and Management Act of 1976 (“FLPMA”). See id. at 877. The Court found that the plaintiff’s claim failed because it had not challenged a particular, final agency action. Instead of limiting its challenge to a “single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations,” the plaintiff challenged “the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA.” Id. at 890. Lujan thus prohibited programmatic agency challenges: “respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made.” Id. at 891. Lujan’s prohibition on programmatic challenges was motivated by institutional limits on Article III courts, which constrain judicial review to narrow, concrete, and actual controversies. See id. at 891–94; see also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (“The limitation to discrete agency action precludes the kind of broad, programmatic attack we rejected
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in Lujan[.]”). Lujan recognized that the “case-by-case approach” it required is “understandably frustrating” when “across-the-board protection” is sought by a plaintiff. 497 U.S. at 894. “But this is the traditional, and remains the normal, mode of operation of the courts.” Id.
Following Lujan, the Fifth Circuit rejected a challenge to an agency’s policy similar to the Plaintiffs’ challenge in this case. In Sierra Club v. Peterson, 228 F.3d 559, 562 (5th Cir. 2000) (en banc), several environmental groups challenged the Forest Service’s policy of allowing even-aged management techniques in the timbering of national forests. The groups cited several instances of allegedly improper timber sales based on the Forest Service’s even-aged management policy. Id. at 563. They were not challenging any specific timber sales; they merely cited these sales as instances of the agency’s challenged policy. Id. Nonetheless, the Fifth Circuit held that Lujan foreclosed this challenge, as the agency’s policy of timber management to which the environmental groups objected did not constitute an identifiable agency action or event that affected the groups. Id. at 566. And unlike here—where there have been no cited agency actions or adjudications—the Fifth Circuit held further that the plaintiffs could not use the cited instances of alleged agency action as a basis to challenge a general policy: “Nor is this programmatic challenge made justiciable by the fact that the environmental groups identified some specific sales in their pleadings that they argue are final agency actions.” Id. at 567. Although an agency’s specific, final action may be challenged, “this ability does not allow [plaintiffs] to challenge an entire program by simply identifying specific allegedly-improper final agency actions within that program[.]” Id.
The Plaintiffs here seek to enjoin USCIS’s guidance clarifying the calculation of unlawful presence for F, M, and J nonimmigrants, just as the Sierra Club groups had challenged the Forest
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Service’s timber sale policy. Neither the Sierra Club environmental groups nor the Plaintiffs in this case actually challenge a discrete agency action, but seek to enjoin an agency’s general policy directive. Just as the Forest Service’s general timber cutting policy did not constitute a discrete, final agency action, USCIS’s change from one interpretive memorandum to another fails to rise to the level of a final agency action.
Plaintiffs are unable to overcome Lujan’s requirements by alleging that USCIS’s policy somehow pre-determines the outcome of the agency’s future adjudications of immigration petitions that may be filed at some point by some affected person. For example, in RCM Technologies v. DHS, 614 F. Supp. 2d 39 (D.D.C. 2009), the court held that the plaintiffs’ challenge to a USCIS policy memorandum directing the use of a handbook to determine the minimum education requirements for a certain visa was not a justiciable case or controversy because the plaintiffs failed to challenge a final agency action. The court invoked Lujan for the proposition that the plaintiffs’ challenge to a USCIS adjudication policy was not reviewable, and therefore plaintiffs failed to demonstrate a likelihood of success on the merits of their APA claims for purposes of preliminary injunctive relief. Id. at 45. To state a justiciable case or controversy for purposes of the APA, the plaintiffs were required to challenge a discrete agency action, not a general policy statement or memorandum. Id.
The August PM in this case is similar. A challenge to a policy, even as an alleged basis for another unfavorable adjudication (which, again, has not even been presented in this case), is not a justiciable claim, as the policy memorandum by itself does not rise to the level of a final agency action. See PETA, Inc. v. U.S. Fish & Wildlife Serv., 130 F. Supp. 3d 999, 1002 (E.D. Va. 2015).
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Since Plaintiffs here seek permanent injunction on a guidance document, their attack is a programmatic challenge, which does not implicate any “final” agency action.
B. The Individual Plaintiffs’ Ongoing Agency Actions Defeat Jurisdiction. As discussed, if a challenged agency action is not “final” under the APA, a court must dismiss the complaint for lack of subject matter jurisdiction. The “core question” is whether an action marks the completion of the “decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Franklin v. Massachusetts, 505 U.S. 788, 797 (1992). Thus, “[w]here relief is available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts, and until that recourse is exhausted, suit is premature and must be dismissed.” Reiter v. Cooper, 507 U.S. 258, 269 (1993); accord Massieu v. Reno, 91 F.3d 416, 421 (3d Cir. 1996) (Alito, J.). Anything less is contrary to the APA’s statutory framework and would allow Plaintiffs to raise their claims in district court to effectively “bypass the administrative process” and undermine Congress’ intent to streamline judicial review and conserve judicial resources. Kurfees v. INS, 275 F.3d 332, 336 (4th Cir. 2001). This requirement bars the individual Plaintiffs’ suit because, as previously noted, several events must take place before anyone involved in this litigation will be subject to an inadmissibility determination from any unlawful-presence bar to reentry. Former students who may be affected by the August PM will not become inadmissible based on the accrual of unlawful presence until they accrue more than 180 days of unlawful presence, depart the United States, and then seek admission or a visa within three or ten years. 8 U.S.C. § 1182(a)(9)(B). For those not departing the country, the unlawful-presence calculation will only affect them if an agency makes such an inadmissibility determination; and if the Department of Homeland Security (“DHS”) uses its
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prosecutorial discretion to place anyone in removal proceedings; and if an immigration judge (“IJ”) determines that he must be removed. See 8 U.S.C. § 1229a (IJ determinations); 8 C.F.R. § 1003.1(b) (Board of Immigration Appeals); 8 U.S.C. § 1252(a)(5), (b)(9) (petitions for review before courts of appeals).
Moreover, the Army still has not rendered military-service suitability determinations to decide whether the individual Plaintiffs will be permitted to serve, thereby potentially becoming eligible for military naturalization under 8 U.S.C. § 1440 such that the unlawful presence bar will never apply to them. See ECF Nos. 16-1, 16-2. Where there are ongoing administrative processes that may entirely moot the underlying APA challenge, courts lack jurisdiction under the APA. See, e.g., Qureshi v. Holder, 663 F.3d 778, 780–81 (5th Cir. 2011) (no final agency action for something it is “only an intermediate step in a multi-stage administrative process”); Cabaccang v. USCIS, 627 F.3d 1313, 1317 (9th Cir. 2010) (same); see also Dhakal v. Sessions, 895 F.3d 532, 540 & n.10 (7th Cir. 2018); Jama v. DHS, 760 F.3d 490, 496 (6th Cir. 2014). With parallel administrative processes still underway, this Court is without jurisdiction under the APA. See Canal A Media Holding, LLC v. USCIS, — F. Supp. 3d —, 2019 WL 1390983, at *5 (S.D. Fla. Mar. 27, 2019) (“If an initial agency action may be modified or reversed during administrative review, the decision is necessarily non-final for purposes of judicial review[.]”). II. The Plaintiffs’ Claims Against The August PM Fail On The Merits.
A. The August PM is an Interpretive Rule Exempt From Notice and Comment Turning to the merits, even if the Plaintiffs had standing and there were some “final agency action” they could point to, the Plaintiffs’ claims should still fail on the merits. Plaintiffs first claim that the August PM violated the APA because it was not issued with notice-and-comment. Compl.
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¶¶ 185–92. This Court’s preliminary injunction disagreed with that argument by pointing to how USCIS’s August PM was explicitly “changing its policy on how to calculate unlawful presence,” ECF No. 45 (emphasis in original), but never confronted how “[t]here is nothing necessarily wrong with this sort of seesaw,” North Carolina Growers’ Association v. United Farm Workers, 702 F.3d 755, 772 (4th Cir. 2012) (Wilkinson, J., concurring), or how “general statements of policy” are also exempted from the notice-and-comment requirement, 5 U.S.C. § 553(b)(A).
The APA requires agencies to follow notice-and-comment procedures for legislative rules, but it makes a “categorical” exemption for interpretive rules. Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015) (overruling the D.C. Circuit’s approach, finding that an interpretive rule is categorically exempt from the notice-and-comment requirements, even if it amends the agency’s previously announced interpretation); see also 5 U.S.C. § 553(b)(A). The “critical feature of interpretative rules is that they are issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.” Mortg. Bankers, 135 S. Ct. at 1204 (quotations omitted). Interpretive rules “merely explain[] or clarify[y] existing law[.]” Allen v. Bergland, 661 F.2d 1001, 1007 (4th Cir. 1981). A rule is “legislative” if it “adopt[s] a new position inconsistent with any of the Secretary’s existing regulations,” and thus “effec[ts] a substantive change in the regulations.” Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 100 (1995). A rule is not legislative “simply because an agency ‘supplies crisper and more detailed lines than the authority being interpreted.’” Iowa League of Cities v. EPA, 711 F.3d 844, 873 (8th Cir. 2013) (quoting Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2 1106, 1112 (D.C. Cir. 1993)). Legislative rules have the force and effect of law; interpretive rules do not. Mortg. Bankers, 135 S. Ct. at 1204.
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In Guernsey, the Supreme Court held that an agency guideline in a provider-reimbursement manual was a valid interpretive rule. 514 U.S. at 90. The hospital argued that the guideline, which required the hospital to amortize its refinancing loss, was a legislative rule because it substantively changed the Secretary’s regulations. Id. at 91. After reviewing the Secretary’s “comprehensive and intricate” regulations, which “address[ed] a wide range of reimbursement questions,” id. at 96, the Supreme Court concluded that “[t]he only question unaddressed by the otherwise comprehensive regulations on this particular subject is whether the loss should be recognized at once or spread over a period of years,” id. at 97. The guideline answered this “unaddressed” question by applying statutory and regulatory requirements to “this particular subject.” Id.; see also id. at 98–99. The Court thus concluded that the guideline “is a prototypical example of an interpretive rule ‘issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.”’ Id. at 99 (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (citation omitted)). Because the guideline did not “adopt [] a new position inconsistent with ... the Secretary’s existing regulations,” the Supreme Court explained, it “d[id] not ... effect a substantive change in the regulations” and thus did not require notice and comment. Id. at 100 (quotation marks and alteration omitted).
Here too, the August PM is an interpretative rule because it answers a “question unaddressed” by existing statute or regulation, and “advise[s] the public” regarding how to apply a regulatory formula in a particular situation. 514 U.S. at 97, 99. It is true that the USCIS “May 2009 Policy Memorandum, Compl. ¶ 4, CAR 32–82 (“May 2009 PM”), answered and advised the public in a different way, but that does not transform what has always been understood to be an interpretive rule, see United States v. Atandi, 376 F.3d 1186, 1190 n.7 & 8 (10th Cir. 2004)
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(“internal interpretive guidelines”), into a legislative rule under the APA. The August PM, as described in the document itself, does not “effect a substantive change in the regulations.” Guernsey, 514 U.S. at 100 (alteration omitted). Rather, it clarifies how time in unlawful status will begin counting as unlawful presence once a former student has, for example, stopped or finished a course of study and failed to maintain the status afforded them when admitted. This issue is currently unaddressed in either the INA or in its implementing regulations. Therefore, the August PM is merely providing internal guidance on an unaddressed question.
The August PM begins with an explanation of why USCIS is revisiting the May 2009 PM. CAR 6–7. It explains how agency databases tracking visiting foreign-national students have improved dramatically since the former-Immigration and Naturalization Service (“INS”) settled on the earlier interpretation of starting the unlawful-presence clock with a formal USCIS adjudication finding a failure to maintain status or IJ finding. Id. It then explains how recent statistics bear out that the visa-overstay rate for former F, J, or M visa holders is “significantly higher than those for other nonimmigrant categories” and announces that, in light of these more recently acquired facts and advancements in the government’s technology, immigration officers also should begin counting time when a former student is no longer pursuing a course of study. Id. at 7 & n.5.
That determination does not supplement or effect a change to the statutory or regulatory scheme applicable to foreign students any more than the May 2009 PM. Instead, the August PM communicates to those students the agency's view of when the language of an existing statute will begin applying to a particular problem of visa overstays. That is a “quintessential interpretive rule.” Flytenow, Inc. v. FAA, 808 F.3d 882, 889 (D.C. Cir. 2016). Indeed, the August PM does not alter,
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add, or remove any regulatory or statutory provisions. The same behavior that triggered unlawful presence before the August PM’s publication—a violation or failure to maintain status—continues to trigger unlawful presence. No new behavior, either by action or inaction, will trigger accrual of unlawful presence under the August PM. Rather, the guidance relates only to officers calculating the amount of unlawful presence accrued by a foreign national as a consequence of that (in)action. In other words, the accrual will begin at the time the alien fails to maintain status, rather than at the time that the violation is recognized.
That the August PM announced a new position—and, in so doing, allegedly caused fear to some of the Plaintiffs—does not render it a legislative rule. It is beyond dispute that agencies are free to adopt a position that reverses or substantially deviates from an earlier one. See Perez, 135 S. Ct. at 1207. Such a change does not subject the agency’s action to the APA’s notice-andcomment requirements. “Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule.” Id. at 1206. Here, there can be little doubt that the May 2009 PM was an interpretive rule and thus properly issued without notice and comment, see Flytenow, 808 F.3d at 889. This is apparent given that the interpretation Plaintiffs insist upon was itself the product of another interpretive memo never subjected to notice and comment. As the Fourth Circuit has held, this past agency behavior is “highly relevant” to the interpretive- or legislativerule analysis. See, e.g., N.C. Growers’ Ass’n, 702 F.3d at 765; see also Nat’l Council for Adoption v. Jewell, 156 F. Supp. 3d 727, 737 (E.D. Va. 2015) (finding that agency’s conduct in not initiating notice and comment for challenged guidelines “tends to demonstrate that the 2015 Guidelines are non-binding interpretative rules”). The decision to amend that earlier guidance did not change the
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fundamental character of the agency’s action and transform an interpretive rule into a legislative one.
This Court’s preliminary injunction and the Plaintiffs have described the August PM as “policy material … in the USCIS Adjudicator’s Field Manual … binding … adjudicators,” ECF No. 45 at 17, but that the Field Manual’s directive that policy material is “binding” must be understood in the context of the three types of “policy” contained in the Field Manual, none of which are binding for purposes of creating a legislative norm subject to the requirements of notice and comment rulemaking. First, the Manual contains procedural directives intended for the orderly internal management of the agency and its processes, without conferring important procedural benefits on the regulated public. See, e.g., USCIS Adjudicator’s Field Manual § 10 (outlining standard operating procedures for the adjudication process, including receiving, receipting and ordering cases). These procedural rules are managerial directives to agency personnel for the purpose of achieving an orderly method of transacting business. Although USCIS expects that agency personnel will follow these procedural rules, they are not legally enforceable against the agency. See Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538–39 (1970). Such procedural rules are also exempt from notice and comment rulemaking, even if they alter the manner in which the regulated public presents itself or its viewpoints to the agency. See JEM Broadcasting Co., Inc. v. FCC, 22 F.3d 320, 326–27 (D.C. Cir. 1994); 5 U.S.C. § 553(b)(A) (exempting general statements of policy from notice-and-comment procedures).
Second, the Manual contains guidelines that the agency expects adjudicators to reference when evaluating evidence proffered by petitioners and applicants seeking immigration benefits. These guidelines are not binding on the agency in a legal sense, because they leave a substantial
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degree of discretion to the adjudicators in determining whether a petitioner’s job meets a legal standard. See RCM Tech., 614 F. Supp. 2d at 46. These types of “policy” directives cannot constitute a final agency action for purposes of APA review, since they do not constrain agency discretion. Id. (see above). It is within this second category that the August PM is properly understood, since the guidance directs adjudicators to consider a number of flexible factors when determining whether or how much “unlawful presence” a former F, J, or M nonimmigrant has accrued.
Third, the Manual contains the agency’s legal interpretations, including interpretations of ambiguous provisions in the agency’s organic statute. These interpretations are “binding” on agency personnel in a legal sense, although not by virtue of their promulgation in the Field Manual, but because of the binding nature of the interpreted statute. See Dismas Charities, Inc. v. DOJ, 401 F.3d 666, 681 (6th Cir. 2005) (“An interpretative regulation is binding on an agency … not by virtue of the promulgation of the regulation (as in the case of a legislative regulation), but by virtue of the binding nature of the interpreted statute. Such a binding nature cannot render a rule legislative, else every interpretative rule would become legislative.”); see 6 U.S.C. § 271(a)(3)(A), (D) (endowing the USCIS Director—who signed the August PM—with the authority to establish the agency’s policies). Nevertheless, these legal interpretations are exempt from notice and comment rulemaking, even if they have a substantial impact on the regulated public. Id. (“An interpretative regulation is binding on an agency … not by virtue of the promulgation of the regulation (as in the case of a legislative regulation), but by virtue of the binding nature of the interpreted statute. Such a binding nature cannot render a rule legislative, else every interpretative rule would become legislative.”). Additionally, the Field Manual contains the agency’s
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interpretations of its own ambiguous regulations. Simply providing crisper and more detailed lines than the authority being interpreted does not transform the interpretation into a legislative rule. See Am. Mining, 995 F.2d at 1112. In this third context, when the Field Manual states that policy material is “binding,” this is true under Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) and its progeny, since the interpretations elaborate upon existing legislative rules, but that does not transform these interpretive statements into legislative rules for purposes of notice-andcomment rulemaking. See Am. Mining, 995 F.2d at 1110. USCIS’s “clarification” in a guidance document does not rise to the level of a binding legal norm.
B. The August PM is Neither Arbitrary, Capricious, nor Ultra Vires Similarly, the August PM is far from arbitrary or capricious when the agency charged with administering the INA is concerned with visa overstays and reasonably believes that F, J, and M nonimmigrants contribute to that legitimate problem. CAR 1–5; 7; 107–206. Moreover, since the September 11, 2001 terrorist attacks, government databases are now far more precise at monitoring when an F, J, or M nonimmigrant student is no longer an actual student or attending classes and have established that the visa overstay rate for such students is higher than those of other nonimmigrant categories. See CAR 7 n.5. This improved monitoring capability coupled with the increasing overstay rate prompted the agency action and provides the “rational” explanation sufficient for arbitrary-and-capricious review. Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). USCIS’s interpretation is also fully consistent with the INA’s text because there is nothing whatsoever in the relevant inadmissibility provisions, 8 U.S.C. §§ 1182(a)(9)(B) or (C), to suggest that the government is required to tell a former foreign-national student that he has graduated or
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finished his classes; in fact, the INS initially interpreted the INA and the 1996 enactment of the disputed language in a manner consistent with the August PM. See Atandi, 376 F.3d at 1190 nn.7 & 8 (noting how a previous interpretive “September 1997 INS memorandum marked a change in course for the agency, which had previously taken the position that unlawful presence began to accrue under this statute upon a status violation” (emphasis added)). Further, in the late 1990s and early 2000s—that is, well after the inadmissibility provisions at issue were enacted—Congress statutorily affirmed that the Executive branch must carefully scrutinize F, J, and M nonimmigrants, by imposing visa requirements particular to those visa classifications. See 8 U.S.C. §§ 1761(b) (data collection from aliens), 1762 (compliance reviews), 1372 (data collection from educational organizations); see also id. § 1623(a) (in a 1996 law, limiting aliens without legal presence’s ability to qualify for postsecondary education benefits). The August PM reflects these congressional prerogatives, which Plaintiffs ignore.
USCIS’s position is also inherently reasonable. USCIS reasonably concluded that it does not take a formal notice letter by the agency or an immigration judge to inform a former F, J, or M student that he or she violated status by engaging in unauthorized activity. It is not arbitrary for the agency to choose an interpretation of when “unlawful presence” begins that is more accurate and hews closer to reality. Nor does it go against the INA’s language that unlawful presence encompasses unlawful status. Compl. ¶¶ 206–11. This is because unlawful status is but a component in the analysis undertaken by adjudicators in assessing whether a former student has accrued unlawful presence. See Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013); In re LK-, 23 I. & N. Dec. 677, 680–81 (BIA 2004) (distinguishing status and presence). And just because the unlawful-presence analysis considers unlawful status does not mean USCIS has improperly
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conflated those separate, but related, terms. Indeed, many foreign nationals in the United States, including those who enter without inspection or are paroled into the United States under 8 U.S.C. 1182(d)(5), have no immigration status at all, but may still accrue unlawful presence. Similarly, that an F, J or M nonimmigrant no longer is pursuing a course of study or has otherwise violated status does not necessarily equate with accrual of unlawful presence, as such accrual may toll for any variety of reasons, including if the they file an application for adjustment of status to lawful permanent residence. Thus, the relevant inquiry is whether a guidance document might fairly treat them similarly under each individual’s case by looking at when someone either lost his or her student status, or might otherwise fall within an exception to accruing unlawful presence. Cf. United States v. Igbatayo, 764 F.2d 1039, 1040 (5th Cir. 1985) (per curiam) (“After failing to maintain the student status required by his visa, Igbatayo was without authorization to remain in this country. He thus was in the same position legally as the alien who wades across the Rio Grande or otherwise enters the United States without permission.”).
The Plaintiffs’ claims on this score ultimately boil down to how the August PM is inconsistent with past practice and that USCIS did not consider reliance interests. Compl. ¶¶ 197– 200. But reliance interests were considered in that the August PM does not apply in many respects to violations before the memorandum’s issuance. It is also curious as to what reliance interests someone might have in being able to violate their nonimmigrant status. Regardless, it is not required for an agency to be explicit of all of the considered interests when a central purpose of interpretive rules is to advise the public—a key distinction from legislative rules. See Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 (4th Cir. 1995) (“We also reject Chen’s argument that the January 29, 1990 interim rule was invalidly revoked because the Attorney General offered no
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‘reasoned explanation’ for the change in policy. … [T]his requirement applies only to revocations of substantive rules, not to revocations of interpretive rules or general statements of policy.”), superseded on other grounds by statute, 8 U.S.C. § 1101(a)(42)(B), as recognized in Li v. Gonzales, 405 F.3d 171, 176 (4th Cir. 2005).
The August PM and the record make it plain that USCIS was far from arbitrary in deciding to interpret 8 U.S.C. §§ 1182(a)(9)(B) & (C)’s operative text of “present in the United States after the expiration of the period of stay authorized” to actually mean that period of time in reality, rather than in bureaucracy. Plaintiffs raising reliance on the May 2009 PM amounts to an argument that a student would not have remained unlawfully in the United States if he had known the unlawful presence would begin to run the day after he fell out of lawful status. In other words, he would not have violated the immigration laws of the United States if he had known he would have been held accountable for all of his unlawful presence, not just the unlawful presence accrued after USCIS or an IJ memorialized his unlawful presence in writing.
C. The August PM is Constitutional and the Plaintiffs Do Not Merit a Permanent Injunction Under Salerno
Plaintiffs’ due-process claim must also fail. When making a facial challenge to a regulatory policy such as that at issue here, “the challenger must establish that no set of circumstances exists under which the [policy] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Here, numerous cases in the criminal context—where the issue of proper notice is at its zenith— have long been in accord that a former foreign-national student may be sufficiently on notice as to when, in reality, he or she stopped attending classes. See, e.g., United States v. Bazargan, 992 F.2d 844, 847–48 (8th Cir. 1993); Igbatayo, 764 F.2d at 1040. Due process only requires “the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge,
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424 U.S. 319, 333 (1976) (quotation omitted). And agencies are not necessarily required to provide trial-like procedures unless mandated to do so by Congress. 5 U.S.C. § 554(a); see also Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 655–56 (1990).
Having some set of facts is crucial on this score because of Plaintiffs’ high Salerno burden: the need to demonstrate that “no set of circumstances exists under which the [policy] would be valid.” Salerno, 481 U.S. at 745 (emphasis added). That is far from certain here, as there are numerous circumstances where a former F, J, or M nonimmigrant would be well-aware of when he or she stopped attending classes. Nothing in the record suggests when or how any of the Plaintiffs might not be on notice as to when they last attended classes, or that they were in any way confused by when their F, J, or M nonimmigrant status might have expired. Plaintiffs have failed their burden on this count. Moreover, if DHS determines that a student has accrued unlawful presence, he will have an opportunity to be heard and submit evidence to establish whether or when he began to accrue unlawful presence, both during and beyond the adjudication process through motions and appeals.
CONCLUSION Based on the foregoing, Defendants respectfully submit that this Court should grant summary judgment in their favor.
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Dated: July 22, 2019

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
WILLIAM C. PEACHEY Director
GLENN M. GIRDHARRY Assistant Director
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov
Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on July 22, 2019, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will provide electronic notice and an electronic link to this document to all attorneys of record.

DATED: July 22, 2019

By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division

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CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d), I hereby certify that this filing contains 6,234 words, excluding all parts of the brief exempted by that same rule.

DATED: July 22, 2019

By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division

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 U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:18-cv-00891-LCB-JEP

GUILFORD COLLEGE et al v. MCALEENAN et al Assigned to: JUDGE LORETTA C. BIGGS Referred to: MAG/JUDGE JOI ELIZABETH PEAKE Case in other court: 20-01392 Cause: 05:551 Administrative Procedure Act

Date Filed: 10/23/2018 Date Terminated: 02/06/2020 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff GUILFORD COLLEGE

represented by JENNIFER B. ROUTH MCDERMOTT WILL & EMERY LLP 500 N. CAPITOL ST., NW WASHINGTON, DC 20001 202-756-8165 Fax: 202-591-2864 Email: jrouth@mwe.com ATTORNEY TO BE NOTICED

MICHAEL B. KIMBERLY MCDERMOTT WILL & EMERY LLP 500 N. CAPITOL ST., NW WASHINGTON, DC 20001 202-756-8901 Fax: 202-263-5350 Email: mkimberly@mwe.com ATTORNEY TO BE NOTICED

PAUL W. HUGHES MCDERMOTT WILL & EMERY LLP 500 N. CAPITOL ST., NW WASHINGTON, DC 20001 202-756-8981 Email: PHughes@mwe.com ATTORNEY TO BE NOTICED

CORY S. MENEES MAYER BROWN LLP

Plaintiff GUILFORD COLLEGE INTERNATIONAL CLUB
Plaintiff THE NEW SCHOOL
Plaintiff FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT

214 N. TRYON ST., STE. 3800 CHARLOTTE, NC 28202-2137 704-444-3561 Fax: 704-377-2033 Email: cmenees@mayerbrown.com ATTORNEY TO BE NOTICED
represented by JENNIFER B. ROUTH (See above for address) ATTORNEY TO BE NOTICED
MICHAEL B. KIMBERLY (See above for address) ATTORNEY TO BE NOTICED
PAUL W. HUGHES (See above for address) ATTORNEY TO BE NOTICED
CORY S. MENEES (See above for address) ATTORNEY TO BE NOTICED
represented by JENNIFER B. ROUTH (See above for address) ATTORNEY TO BE NOTICED
MICHAEL B. KIMBERLY (See above for address) ATTORNEY TO BE NOTICED
PAUL W. HUGHES (See above for address) ATTORNEY TO BE NOTICED
CORY S. MENEES (See above for address) ATTORNEY TO BE NOTICED
represented by JENNIFER B. ROUTH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff HAVERFORD COLLEGE
Plaintiff THE AMERICAN FEDERATION OF TEACHERS
Plaintiff JIA YE

MICHAEL B. KIMBERLY (See above for address) ATTORNEY TO BE NOTICED
PAUL W. HUGHES (See above for address) ATTORNEY TO BE NOTICED
CORY S. MENEES (See above for address) ATTORNEY TO BE NOTICED
represented by JENNIFER B. ROUTH (See above for address) ATTORNEY TO BE NOTICED
MICHAEL B. KIMBERLY (See above for address) ATTORNEY TO BE NOTICED
PAUL W. HUGHES (See above for address) ATTORNEY TO BE NOTICED
CORY S. MENEES (See above for address) ATTORNEY TO BE NOTICED
represented by JENNIFER B. ROUTH (See above for address) ATTORNEY TO BE NOTICED
PAUL W. HUGHES (See above for address) ATTORNEY TO BE NOTICED
represented by JENNIFER B. ROUTH (See above for address) ATTORNEY TO BE NOTICED
PAUL W. HUGHES (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SEN LI
V. Defendant KEVIN K. MCALEENAN Acting Secretary of Homeland Secretary
Defendant U.S. DEPARTMENT OF HOMELAND SECURITY
Defendant L. FRANCIS CISSNA
Defendant U.S. CITIZENSHIP AND IMMIGRATION SERVICES
Amicus ADLER UNIVERSITY

represented by JENNIFER B. ROUTH (See above for address) ATTORNEY TO BE NOTICED
PAUL W. HUGHES (See above for address) ATTORNEY TO BE NOTICED
represented by JOSHUA S. PRESS U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. BOX 868 WASHINGTON, DC 20044 202-305-0106 Fax: 202-305-7000 Email: joshua.press@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSHUA S. PRESS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSHUA S. PRESS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSHUA S. PRESS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. POYNER SPRUILL, LLP 301 FAYETTEVILLE STREET,

Amicus AMHERST COLLEGE

STE. 1900 RALEIGH, NC 27602 919-783-6400 Fax: 919-783-1075 Email: espeas@poynerspruill.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI

Amicus ARIZONA STATE UNIVERSITY
Amicus BARNARD COLLEGE

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED

Amicus BENNINGTON COLLEGE
Amicus BOSTON COLLEGE
Amicus BROWN UNIVERSITY

JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY

Amicus BUCKNELL UNIVERSITY
Amicus CALIFORNIA COMMUNITY COLLEGES BOARD OF GOVERNORS

ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA

Amicus CALIFORNIA INSTITUTE OF TECHNOLOGY
Amicus CASE WESTERN RESERVE UNIVERSITY
Amicus

(See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED

CHRISTIAN BROTHERS UNIVERSITY
Amicus CLARK UNIVERSITY
Amicus COLUMBIA UNIVERSITY

represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY

Amicus CORNELL COLLEGE
Amicus CORNELL UNIVERSITY

ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY

Amicus DARTMOUTH COLLEGE
Amicus DREXEL UNIVERSITY
Amicus DUKE UNIVERSITY Office of General Counsel 310 Blackwell Street

(See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

4th Floor Durham, NC 27710
Amicus EASTERN MICHIGAN UNIVERSITY
Amicus EMERSON COLLEGE

THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address)

Amicus EMORY UNIVERSITY
Amicus FRANKLIN & MARSHALL COLLEGE
Amicus

ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED

GEORGE WASHINGTON UNIVERSITY
Amicus GEORGETOWN UNIVERSITY
Amicus GETTYSBURG COLLEGE

represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY

Amicus GOUCHER COLLEGE
Amicus PRESIDENT AND FELLOWS OF HARVARD COLLEGE

ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY

Amicus ILLINOIS INSTITUTE OF TECHNOLOGY
Amicus MACALESTER COLLEGE
Amicus MANHATTANVILLE COLLEGE

(See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus MASSACHUSETTS INSTITUTE OF TECHNOLOGY
Amicus MENLO COLLEGE

THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address)

Amicus MIDDLEBURY COLLEGE
Amicus MILLS COLLEGE
Amicus

ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED

MOUNT HOLYOKE COLLEGE
Amicus NEW YORK UNIVERSITY
Amicus NORTHEASTERN UNIVERSITY

represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY

Amicus NORTHWESTERN UNIVERSITY
Amicus THE PENNSYLVANIA STATE UNIVERSITY

ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY

Amicus POMONA COLLEGE
Amicus PRINCETON UNIVERSITY
Amicus RHODE ISLAND SCHOOL OF DESIGN

(See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus RHODES COLLEGE
Amicus RICE UNIVERSITY

THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address)

Amicus ROCHESTER INSTITUTE OF TECHNOLOGY
Amicus ROOSEVELT UNIVERSITY
Amicus

ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED

RUTGERS UNIVERSITYNEWARK
Amicus SARAH LAWRENCE COLLEGE
Amicus SMITH COLLEGE

represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY

Amicus SOUTHEASTERN UNIVERSITY
Amicus STANFORD UNIVERSITY

ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY

Amicus SWARTHMORE COLLEGE
Amicus TRINITY WASHINGTON UNIVERSITY
Amicus TUFTS UNIVERSITY

(See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus UNIVERSITY OF DENVER (COLORADO SEMINARY)
Amicus UNIVERSITY OF MICHIGAN

THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address)

Amicus UNIVERSITY OF PENNSYLVANIA
Amicus UNIVERSITY OF SAN DIEGO
Amicus

ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED

UNIVERSITY OF SOUTHERN CALIFORNIA
Amicus UNIVERSITY OF UTAH
Amicus VANDERBILT UNIVERSITY

represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY

Amicus WASHINGTON UNIVERSITY IN ST. LOUIS
Amicus WELLESLEY COLLEGE

ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY

Amicus WILLIAMS COLLEGE
Amicus YALE UNIVERSITY

(See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED
represented by EDWIN M. SPEAS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS J. PERRELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ISHAN K. BHABHA (See above for address) ATTORNEY TO BE NOTICED
JEFFREY A. ATTEBERRY (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/23/2018

# Docket Text
1 COMPLAINT against L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S.

10/23/2018 10/23/2018 10/23/2018 10/23/2018 10/23/2018 10/23/2018 10/23/2018 10/23/2018 10/24/2018 10/29/2018 11/08/2018

DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0418-2448895.), filed by GUILFORD COLLEGE, FOOTHILLDE ANZA COMMUNITY COLLEGE DISTRICT, THE NEW SCHOOL, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE. (Attachments: # 1 Exhibit A - August 2018 Policy Memorandum, # 2 Exhibit B - May 2018 Policy Memorandum, # 3 Exhibit C - May 2009 Consolidated Guidance, # 4 Exhibit D September 1997 Virtue Memo, # 5 Civil Cover Sheet)(MENEES, CORY) (Entered: 10/23/2018)
2 Corporate Disclosure Statement by GUILFORD COLLEGE. (MENEES, CORY) (Entered: 10/23/2018)
3 Corporate Disclosure Statement by GUILFORD COLLEGE INTERNATIONAL CLUB. (MENEES, CORY) (Entered: 10/23/2018)
4 Corporate Disclosure Statement by THE NEW SCHOOL. (MENEES, CORY) (Entered: 10/23/2018)
5 Corporate Disclosure Statement by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT. (MENEES, CORY) (Entered: 10/23/2018)
6 Corporate Disclosure Statement by HAVERFORD COLLEGE. (MENEES, CORY) (Entered: 10/23/2018)
Case ASSIGNED to JUDGE CATHERINE C. EAGLES and MAGISTRATE JUDGE JOI ELIZABETH PEAKE. (Coyne, Michelle) (Entered: 10/23/2018)
7 Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 AUSA, # 2 CITIZENSHIP, # 3 CISSNA, # 4 USDHS, # 5 USAG)(Coyne, Michelle) (Entered: 10/23/2018)
8 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Attachments: # 1 Consent Form)(Coyne, Michelle) (Entered: 10/23/2018)
9 STANDARD ORDER for civil cases proceeding before JUDGE CATHERINE C. EAGLES. (Sanders, Marlene) (Entered: 10/24/2018)
Case Reassigned to JUDGE LORETTA C. BIGGS. JUDGE CATHERINE C. EAGLES no longer assigned to the case. (Marsh, Keah) (Entered: 10/29/2018)
10 SUMMONS Returned Executed by GUILFORD COLLEGE, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, THE NEW SCHOOL, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE. L. FRANCIS CISSNA served on 10/30/2018, answer due 12/31/2018; KIRSTJEN NIELSEN served on 10/30/2018,

11/15/2018 12/13/2018 12/13/2018 12/14/2018
12/14/2018

answer due 12/31/2018; U.S. CITIZENSHIP AND IMMIGRATION SERVICES served on 10/30/2018, answer due 12/31/2018; U.S. DEPARTMENT OF HOMELAND SECURITY served on 10/30/2018, answer due 12/31/2018. on Affidavit of Service as to Matthew G.T. Martin, United States Attorney for the Middle District of North Carolina (Attachments: # 1 Affidavit of Service - US Attorney General, # 2 Affidavit of Service - L. Francis Cissna, # 3 Affidavit of Service Kirstjen M. Nielsen, # 4 Affidavit of Service - US Citizenship and Immigration Services, # 5 Affidavit of Service - US Department of Homeland Security)(MENEES, CORY) (Entered: 11/08/2018)
11 NOTICE of Appearance by attorney JOSHUA S. PRESS on behalf of Defendants L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY (PRESS, JOSHUA) (Entered: 11/15/2018)
12 NOTICE of Appearance by attorney MICHAEL B. KIMBERLY on behalf of Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, THE NEW SCHOOL (KIMBERLY, MICHAEL) (Entered: 12/13/2018)
13 NOTICE of Appearance by attorney PAUL W. HUGHES on behalf of Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, THE NEW SCHOOL (HUGHES, PAUL) (Entered: 12/13/2018)
14 First AMENDED COMPLAINT against defendant L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, filed by THE NEW SCHOOL, GUILFORD COLLEGE INTERNATIONAL CLUB, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, HAVERFORD COLLEGE, American Federation of Teachers, JIA YE, SEN LI. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(HUGHES, PAUL) (Entered: 12/14/2018)
15 MOTION for Preliminary Injunction and Partial Summary Judgment by American Federation of Teachers, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE NEW SCHOOL, JIA YE. Response to Motion due by 1/4/2019 (Attachments: # 1 Text of Proposed Order)(HUGHES, PAUL) (Entered: 12/14/2018)

12/14/2018 12/21/2018

16 MEMORANDUM filed by Plaintiffs American Federation of Teachers, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE NEW SCHOOL, JIA YE re 15 MOTION for Preliminary Injunction and Partial Summary Judgment filed by American Federation of Teachers, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE NEW SCHOOL, JIA YE. (Attachments: # 1 Declaration of Sen Li, # 2 Declaration of Jia Ye, # 3 Declaration of Michelle Relyea, # 4 Declaration of Rhonda Weingarten, # 5 Declaration of John Doe, # 6 Declaration of Jane Doe, # 7 Declaration of Jane Doe II)(HUGHES, PAUL) (Entered: 12/14/2018)
17 MOTION for Leave to File Brief Amici Curiae of Institutions of Higher Education in Support of Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment by ADLER UNIVERSITY, AMHERST COLLEGE, ARIZONA STATE UNIVERSITY, BARNARD COLLEGE, BENNINGTON COLLEGE, BOSTON COLLEGE, BROWN UNIVERSITY, BUCKNELL UNIVERSITY, CALIFORNIA COMMUNITY COLLEGES BOARD OF GOVERNORS, CALIFORNIA INSTITUTE OF TECHNOLOGY, CASE WESTERN RESERVE UNIVERSITY, CHRISTIAN BROTHERS UNIVERSITY, CLARK UNIVERSITY, COLUMBIA UNIVERSITY, CORNELL COLLEGE, CORNELL UNIVERSITY, DARTMOUTH COLLEGE, DREXEL UNIVERSITY, DUKE UNIVERSITY, EASTERN MICHIGAN UNIVERSITY, EMERSON COLLEGE, EMORY UNIVERSITY, FRANKLIN & MARSHALL COLLEGE, GEORGE WASHINGTON UNIVERSITY, GEORGETOWN UNIVERSITY, GETTYSBURG COLLEGE, GOUCHER COLLEGE, PRESIDENT AND FELLOWS OF HARVARD COLLEGE, ILLINOIS INSTITUTE OF TECHNOLOGY, MACALESTER COLLEGE, MANHATTANVILLE COLLEGE, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, MENLO COLLEGE, MIDDLEBURY COLLEGE, MILLS COLLEGE, MOUNT HOLYOKE COLLEGE, NEW YORK UNIVERSITY, NORTHEASTERN UNIVERSITY, NORTHWESTERN UNIVERSITY, THE PENNSYLVANIA STATE UNIVERSITY, POMONA COLLEGE, PRINCETON UNIVERSITY, RHODE ISLAND SCHOOL OF DESIGN, RHODES COLLEGE, RICE UNIVERSITY, ROCHESTER INSTITUTE OF TECHNOLOGY, ROOSEVELT UNIVERSITY, RUTGERS UNIVERSITY-NEWARK, SARAH LAWRENCE COLLEGE, SMITH COLLEGE, SOUTHEASTERN UNIVERSITY, STANFORD UNIVERSITY, SWARTHMORE COLLEGE, TRINITY WASHINGTON UNIVERSITY, TUFTS UNIVERSITY, UNIVERSITY OF DENVER (COLORADO SEMINARY), UNIVERSITY OF MICHIGAN, UNIVERSITY OF

12/21/2018

PENNSYLVANIA, UNIVERSITY OF SAN DIEGO, UNIVERSITY OF SOUTHERN CALIFORNIA, UNIVERSITY OF UTAH, VANDERBILT UNIVERSITY, WASHINGTON UNIVERSITY IN ST. LOUIS, WELLESLEY COLLEGE, WILLIAMS COLLEGE, YALE UNIVERSITY. Response to Motion due by 1/11/2019 (Attachments: # 1 Proposed - Brief Amici Curiae of Institutions of Higher Education in Support of Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment, # 2 Text of Proposed Order)(SPEAS, EDWIN) (Entered: 12/21/2018)
18 NOTICE of Appearance by attorney EDWIN M. SPEAS, JR on behalf of Amicus Parties ADLER UNIVERSITY, AMHERST COLLEGE, ARIZONA STATE UNIVERSITY, BARNARD COLLEGE, BENNINGTON COLLEGE, BOSTON COLLEGE, BROWN UNIVERSITY, BUCKNELL UNIVERSITY, CALIFORNIA COMMUNITY COLLEGES BOARD OF GOVERNORS, CALIFORNIA INSTITUTE OF TECHNOLOGY, CASE WESTERN RESERVE UNIVERSITY, CHRISTIAN BROTHERS UNIVERSITY, CLARK UNIVERSITY, COLUMBIA UNIVERSITY, CORNELL COLLEGE, CORNELL UNIVERSITY, DARTMOUTH COLLEGE, DREXEL UNIVERSITY, DUKE UNIVERSITY, EASTERN MICHIGAN UNIVERSITY, EMERSON COLLEGE, EMORY UNIVERSITY, FRANKLIN & MARSHALL COLLEGE, GEORGE WASHINGTON UNIVERSITY, GEORGETOWN UNIVERSITY, GETTYSBURG COLLEGE, GOUCHER COLLEGE, ILLINOIS INSTITUTE OF TECHNOLOGY, MACALESTER COLLEGE, MANHATTANVILLE COLLEGE, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, MENLO COLLEGE, MIDDLEBURY COLLEGE, MILLS COLLEGE, MOUNT HOLYOKE COLLEGE, NEW YORK UNIVERSITY, NORTHEASTERN UNIVERSITY, NORTHWESTERN UNIVERSITY, POMONA COLLEGE, PRESIDENT AND FELLOWS OF HARVARD COLLEGE, PRINCETON UNIVERSITY, RHODE ISLAND SCHOOL OF DESIGN, RHODES COLLEGE, RICE UNIVERSITY, ROCHESTER INSTITUTE OF TECHNOLOGY, ROOSEVELT UNIVERSITY, RUTGERS UNIVERSITY-NEWARK, SARAH LAWRENCE COLLEGE, SMITH COLLEGE, SOUTHEASTERN UNIVERSITY, STANFORD UNIVERSITY, SWARTHMORE COLLEGE, THE PENNSYLVANIA STATE UNIVERSITY, TRINITY WASHINGTON UNIVERSITY, TUFTS UNIVERSITY, UNIVERSITY OF DENVER (COLORADO SEMINARY), UNIVERSITY OF MICHIGAN, UNIVERSITY OF PENNSYLVANIA, UNIVERSITY OF SAN DIEGO, UNIVERSITY OF SOUTHERN CALIFORNIA, UNIVERSITY OF UTAH, VANDERBILT UNIVERSITY, WASHINGTON UNIVERSITY IN ST. LOUIS, WELLESLEY COLLEGE, WILLIAMS COLLEGE, YALE UNIVERSITY (SPEAS, EDWIN) (Entered: 12/21/2018)

12/21/2018
12/26/2018 12/27/2018

19 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Amicus Parties ADLER UNIVERSITY, AMHERST COLLEGE, ARIZONA STATE UNIVERSITY, BARNARD COLLEGE, BENNINGTON COLLEGE, BOSTON COLLEGE, BROWN UNIVERSITY, BUCKNELL UNIVERSITY, CALIFORNIA COMMUNITY COLLEGES BOARD OF GOVERNORS, CALIFORNIA INSTITUTE OF TECHNOLOGY, CASE WESTERN RESERVE UNIVERSITY, CHRISTIAN BROTHERS UNIVERSITY, CLARK UNIVERSITY, COLUMBIA UNIVERSITY, CORNELL COLLEGE, CORNELL UNIVERSITY, DARTMOUTH COLLEGE, DREXEL UNIVERSITY, DUKE UNIVERSITY, EASTERN MICHIGAN UNIVERSITY, EMERSON COLLEGE, EMORY UNIVERSITY, FRANKLIN & MARSHALL COLLEGE, GEORGE WASHINGTON UNIVERSITY, GEORGETOWN UNIVERSITY, GETTYSBURG COLLEGE, GOUCHER COLLEGE, ILLINOIS INSTITUTE OF TECHNOLOGY, MACALESTER COLLEGE, MANHATTANVILLE COLLEGE, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, MENLO COLLEGE, MIDDLEBURY COLLEGE, MILLS COLLEGE, MOUNT HOLYOKE COLLEGE, NEW YORK UNIVERSITY, NORTHEASTERN UNIVERSITY, NORTHWESTERN UNIVERSITY, POMONA COLLEGE, PRESIDENT AND FELLOWS OF HARVARD COLLEGE, PRINCETON UNIVERSITY, RHODE ISLAND SCHOOL OF DESIGN, RHODES COLLEGE, RICE UNIVERSITY, ROCHESTER INSTITUTE OF TECHNOLOGY, ROOSEVELT UNIVERSITY, RUTGERS UNIVERSITY-NEWARK, SARAH LAWRENCE COLLEGE, SMITH COLLEGE, SOUTHEASTERN UNIVERSITY, STANFORD UNIVERSITY, SWARTHMORE COLLEGE, THE PENNSYLVANIA STATE UNIVERSITY, TRINITY WASHINGTON UNIVERSITY, TUFTS UNIVERSITY, UNIVERSITY OF DENVER (COLORADO SEMINARY), UNIVERSITY OF MICHIGAN, UNIVERSITY OF PENNSYLVANIA, UNIVERSITY OF SAN DIEGO, UNIVERSITY OF SOUTHERN CALIFORNIA, UNIVERSITY OF UTAH, VANDERBILT UNIVERSITY, WASHINGTON UNIVERSITY IN ST. LOUIS, WELLESLEY COLLEGE, WILLIAMS COLLEGE, YALE UNIVERSITY (SPEAS, EDWIN) (Entered: 12/21/2018)
20 Consent MOTION for Extension of Time to File Answer re 15 MOTION for Preliminary Injunction and Partial Summary Judgment, 14 Amended Complaint, by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(PRESS, JOSHUA) (Entered: 12/26/2018)
Motion Referred: RE: 20 Consent MOTION for Extension of Time to File Answer re 15 MOTION for Preliminary Injunction and Partial Summary

12/28/2018 01/03/2019 01/03/2019
01/04/2019 01/04/2019
01/04/2019 01/07/2019

Judgment, 14 Amended Complaint, to MAG/JUDGE JOI ELIZABETH PEAKE. (Marsh, Keah) (Entered: 12/27/2018)
21 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 12/28/2018; that the Motion for Extension of Time [Doc. # 20 ] is GRANTED, and the time for Defendants to answer or otherwise respond to both Plaintiffs' Amended Complaint and Plaintiffs' Motion for a Preliminary Injunction is extended to January 7, 2019. (Sheets, Jamie) (Entered: 12/28/2018)
22 MOTION to Stay ALL PENDING DEADLINES IN LIGHT OF LAPSE OF APPROPRIATIONS by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. Response to Motion due by 1/4/2019 (Attachments: # 1 Text of Proposed Order)(PRESS, JOSHUA) (Entered: 01/03/2019)
23 RESPONSE in Opposition re 22 MOTION to Stay ALL PENDING DEADLINES IN LIGHT OF LAPSE OF APPROPRIATIONS filed by KIRSTJEN NIELSEN, L. FRANCIS CISSNA, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY filed by American Federation of Teachers, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE NEW SCHOOL, JIA YE. Replies due by 1/17/2019 (HUGHES, PAUL) (Entered: 01/03/2019)
Motion Referred: RE: 22 MOTION to Stay ALL PENDING DEADLINES IN LIGHT OF LAPSE OF APPROPRIATIONS, to MAG/JUDGE JOI ELIZABETH PEAKE. (Blay, Debbie) (Entered: 01/04/2019)
24 REPLY, filed by Defendants L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, to Response to 22 MOTION to Stay ALL PENDING DEADLINES IN LIGHT OF LAPSE OF APPROPRIATIONS filed by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (PRESS, JOSHUA) (Entered: 01/04/2019)
Motion Submitted: 22 MOTION to Stay ALL PENDING DEADLINES IN LIGHT OF LAPSE OF APPROPRIATIONS to JUDGE LORETTA C. BIGGS. (Blay, Debbie) (Entered: 01/04/2019)
25 ORDER signed by JUDGE LORETTA C. BIGGS on 1/7/2019; that Defendants' Motion for Stay of All Pending Deadlines, (ECF.No. 22 ), is hereby DENIED. (Sheets, Jamie) (Entered: 01/07/2019)

01/07/2019 01/08/2019 01/08/2019 01/09/2019

26 Consent MOTION for Extension of Time to File Answer re 15 MOTION for Preliminary Injunction and Partial Summary Judgment, 14 Amended Complaint, 25 Order on Motion to Stay by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(PRESS, JOSHUA) (Entered: 01/07/2019)
Motion Referred: RE: 26 Consent MOTION for Extension of Time to File Answer re 15 MOTION for Preliminary Injunction and Partial Summary Judgment, 14 Amended Complaint, 25 Order on Motion to Stay , to MAG/JUDGE JOI ELIZABETH PEAKE. (Blay, Debbie) (Entered: 01/08/2019)
27 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 01/08/2018, that the Consent Motion for Extension of Time [Doc. # 26 ] is GRANTED, and Defendants have until January 9, 2019 to respond to the Amended Complaint and the Motion for a Preliminary Injunction. (Garland, Leah) (Entered: 01/08/2019)
28 NOTICE of Appearance by attorney JEFFREY A. ATTEBERRY on behalf of Amicus Parties ADLER UNIVERSITY, AMHERST COLLEGE, ARIZONA STATE UNIVERSITY, BARNARD COLLEGE, BENNINGTON COLLEGE, BOSTON COLLEGE, BROWN UNIVERSITY, BUCKNELL UNIVERSITY, CALIFORNIA COMMUNITY COLLEGES BOARD OF GOVERNORS, CALIFORNIA INSTITUTE OF TECHNOLOGY, CASE WESTERN RESERVE UNIVERSITY, CHRISTIAN BROTHERS UNIVERSITY, CLARK UNIVERSITY, COLUMBIA UNIVERSITY, CORNELL COLLEGE, CORNELL UNIVERSITY, DARTMOUTH COLLEGE, DREXEL UNIVERSITY, DUKE UNIVERSITY, EASTERN MICHIGAN UNIVERSITY, EMERSON COLLEGE, EMORY UNIVERSITY, FRANKLIN & MARSHALL COLLEGE, GEORGE WASHINGTON UNIVERSITY, GEORGETOWN UNIVERSITY, GETTYSBURG COLLEGE, GOUCHER COLLEGE, ILLINOIS INSTITUTE OF TECHNOLOGY, MACALESTER COLLEGE, MANHATTANVILLE COLLEGE, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, MENLO COLLEGE, MIDDLEBURY COLLEGE, MILLS COLLEGE, MOUNT HOLYOKE COLLEGE, NEW YORK UNIVERSITY, NORTHEASTERN UNIVERSITY, NORTHWESTERN UNIVERSITY, POMONA COLLEGE, PRESIDENT AND FELLOWS OF HARVARD COLLEGE, PRINCETON UNIVERSITY, RHODE ISLAND SCHOOL OF DESIGN, RHODES COLLEGE, RICE UNIVERSITY, ROCHESTER INSTITUTE OF TECHNOLOGY, ROOSEVELT UNIVERSITY, RUTGERS UNIVERSITY-NEWARK, SARAH LAWRENCE COLLEGE, SMITH COLLEGE, SOUTHEASTERN UNIVERSITY, STANFORD UNIVERSITY,

01/09/2019

SWARTHMORE COLLEGE, THE PENNSYLVANIA STATE UNIVERSITY, TRINITY WASHINGTON UNIVERSITY, TUFTS UNIVERSITY, UNIVERSITY OF DENVER (COLORADO SEMINARY), UNIVERSITY OF MICHIGAN, UNIVERSITY OF PENNSYLVANIA, UNIVERSITY OF SAN DIEGO, UNIVERSITY OF SOUTHERN CALIFORNIA, UNIVERSITY OF UTAH, VANDERBILT UNIVERSITY, WASHINGTON UNIVERSITY IN ST. LOUIS, WELLESLEY COLLEGE, WILLIAMS COLLEGE, YALE UNIVERSITY (ATTEBERRY, JEFFREY) (Entered: 01/09/2019)
29 NOTICE of Appearance by attorney THOMAS J. PERRELLI on behalf of Amicus Parties ADLER UNIVERSITY, AMHERST COLLEGE, ARIZONA STATE UNIVERSITY, BARNARD COLLEGE, BENNINGTON COLLEGE, BOSTON COLLEGE, BROWN UNIVERSITY, BUCKNELL UNIVERSITY, CALIFORNIA COMMUNITY COLLEGES BOARD OF GOVERNORS, CALIFORNIA INSTITUTE OF TECHNOLOGY, CASE WESTERN RESERVE UNIVERSITY, CHRISTIAN BROTHERS UNIVERSITY, CLARK UNIVERSITY, COLUMBIA UNIVERSITY, CORNELL COLLEGE, CORNELL UNIVERSITY, DARTMOUTH COLLEGE, DREXEL UNIVERSITY, DUKE UNIVERSITY, EASTERN MICHIGAN UNIVERSITY, EMERSON COLLEGE, EMORY UNIVERSITY, FRANKLIN & MARSHALL COLLEGE, GEORGE WASHINGTON UNIVERSITY, GEORGETOWN UNIVERSITY, GETTYSBURG COLLEGE, GOUCHER COLLEGE, ILLINOIS INSTITUTE OF TECHNOLOGY, MACALESTER COLLEGE, MANHATTANVILLE COLLEGE, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, MENLO COLLEGE, MIDDLEBURY COLLEGE, MILLS COLLEGE, MOUNT HOLYOKE COLLEGE, NEW YORK UNIVERSITY, NORTHEASTERN UNIVERSITY, NORTHWESTERN UNIVERSITY, POMONA COLLEGE, PRESIDENT AND FELLOWS OF HARVARD COLLEGE, PRINCETON UNIVERSITY, RHODE ISLAND SCHOOL OF DESIGN, RHODES COLLEGE, RICE UNIVERSITY, ROCHESTER INSTITUTE OF TECHNOLOGY, ROOSEVELT UNIVERSITY, RUTGERS UNIVERSITY-NEWARK, SARAH LAWRENCE COLLEGE, SMITH COLLEGE, SOUTHEASTERN UNIVERSITY, STANFORD UNIVERSITY, SWARTHMORE COLLEGE, THE PENNSYLVANIA STATE UNIVERSITY, TRINITY WASHINGTON UNIVERSITY, TUFTS UNIVERSITY, UNIVERSITY OF DENVER (COLORADO SEMINARY), UNIVERSITY OF MICHIGAN, UNIVERSITY OF PENNSYLVANIA, UNIVERSITY OF SAN DIEGO, UNIVERSITY OF SOUTHERN CALIFORNIA, UNIVERSITY OF UTAH, VANDERBILT UNIVERSITY, WASHINGTON UNIVERSITY IN ST. LOUIS, WELLESLEY COLLEGE, WILLIAMS COLLEGE, YALE UNIVERSITY (PERRELLI, THOMAS) (Entered: 01/09/2019)

01/10/2019 01/10/2019 01/10/2019
01/10/2019 01/10/2019 01/21/2019 01/24/2019

30 MOTION to Dismiss for Lack of Jurisdiction by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. Response to Motion due by 1/23/2019 (Attachments: # 1 Text of Proposed Order)(PRESS, JOSHUA) (Entered: 01/10/2019)
31 MEMORANDUM filed by Defendants L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY re 14 Amended Complaint, 30 MOTION to Dismiss for Lack of Jurisdiction filed by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (PRESS, JOSHUA) (Entered: 01/10/2019)
32 RESPONSE in Opposition re 15 MOTION for Preliminary Injunction and Partial Summary Judgment filed by GUILFORD COLLEGE, SEN LI, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE INTERNATIONAL CLUB, JIA YE, 16 Memorandum,,, filed by GUILFORD COLLEGE, SEN LI, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, JIA YE, GUILFORD COLLEGE INTERNATIONAL CLUB filed by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. Replies due by 1/15/2019 (Attachments: # 1 Text of Proposed Order)(PRESS, JOSHUA) (Entered: 01/10/2019)
Reset Motion Response Deadlines re 30 MOTION to Dismiss for Lack of Jurisdiction: Responses due by 1/31/2019. (Sheets, Jamie) (Entered: 01/10/2019)
Reset Reply Deadline re 15 MOTION for Preliminary Injunction and Partial Summary Judgment: Replies due by 1/24/2019. (Sheets, Jamie) (Entered: 01/10/2019)
33 REPLY, filed by Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE, to Response to 15 MOTION for Preliminary Injunction and Partial Summary Judgment (HUGHES, PAUL) Modified to clean up text on 1/25/2019 (Blay, Debbie). (Entered: 01/21/2019)
Motions Submitted: 15 MOTION for Preliminary Injunction and Partial Summary Judgment, 17 MOTION for Leave to File Brief Amici Curiae of

01/24/2019 01/24/2019

Institutions of Higher Education in Support of Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment, to JUDGE LORETTA C. BIGGS. (Blay, Debbie) (Entered: 01/24/2019)
34 NOTICE of Appearance by attorney ISHAN K. BHABHA on behalf of Amicus Parties ADLER UNIVERSITY, AMHERST COLLEGE, ARIZONA STATE UNIVERSITY, BARNARD COLLEGE, BENNINGTON COLLEGE, BOSTON COLLEGE, BROWN UNIVERSITY, BUCKNELL UNIVERSITY, CALIFORNIA COMMUNITY COLLEGES BOARD OF GOVERNORS, CALIFORNIA INSTITUTE OF TECHNOLOGY, CASE WESTERN RESERVE UNIVERSITY, CHRISTIAN BROTHERS UNIVERSITY, CLARK UNIVERSITY, COLUMBIA UNIVERSITY, CORNELL COLLEGE, CORNELL UNIVERSITY, DARTMOUTH COLLEGE, DREXEL UNIVERSITY, DUKE UNIVERSITY, EASTERN MICHIGAN UNIVERSITY, EMERSON COLLEGE, EMORY UNIVERSITY, FRANKLIN & MARSHALL COLLEGE, GEORGE WASHINGTON UNIVERSITY, GEORGETOWN UNIVERSITY, GETTYSBURG COLLEGE, GOUCHER COLLEGE, ILLINOIS INSTITUTE OF TECHNOLOGY, MACALESTER COLLEGE, MANHATTANVILLE COLLEGE, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, MENLO COLLEGE, MIDDLEBURY COLLEGE, MILLS COLLEGE, MOUNT HOLYOKE COLLEGE, NEW YORK UNIVERSITY, NORTHEASTERN UNIVERSITY, NORTHWESTERN UNIVERSITY, POMONA COLLEGE, PRESIDENT AND FELLOWS OF HARVARD COLLEGE, PRINCETON UNIVERSITY, RHODE ISLAND SCHOOL OF DESIGN, RHODES COLLEGE, RICE UNIVERSITY, ROCHESTER INSTITUTE OF TECHNOLOGY, ROOSEVELT UNIVERSITY, RUTGERS UNIVERSITY-NEWARK, SARAH LAWRENCE COLLEGE, SMITH COLLEGE, SOUTHEASTERN UNIVERSITY, STANFORD UNIVERSITY, SWARTHMORE COLLEGE, THE PENNSYLVANIA STATE UNIVERSITY, TRINITY WASHINGTON UNIVERSITY, TUFTS UNIVERSITY, UNIVERSITY OF DENVER (COLORADO SEMINARY), UNIVERSITY OF MICHIGAN, UNIVERSITY OF PENNSYLVANIA, UNIVERSITY OF SAN DIEGO, UNIVERSITY OF SOUTHERN CALIFORNIA, UNIVERSITY OF UTAH, VANDERBILT UNIVERSITY, WASHINGTON UNIVERSITY IN ST. LOUIS, WELLESLEY COLLEGE, WILLIAMS COLLEGE, YALE UNIVERSITY (BHABHA, ISHAN) (Entered: 01/24/2019)
35 RESPONSE in Opposition re 30 MOTION to Dismiss for Lack of Jurisdiction filed by KIRSTJEN NIELSEN, L. FRANCIS CISSNA, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY filed by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE,

01/28/2019
01/28/2019 01/28/2019 01/28/2019

GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. Replies due by 2/7/2019 (HUGHES, PAUL) (Entered: 01/24/2019)
36 ORDER signed by JUDGE LORETTA C. BIGGS on 1/28/2019; that the Motion for Preliminary Injunction, (ECF No. 15 ), and Motion to Dismiss for Lack of Jurisdiction, (ECF No. 30 ), are set for a hearing on March 26, 2019, at 10:00 a.m. in Courtroom 1 of the United States Courthouse, Winston-Salem, North Carolina. FURTHER that pending resolution of the Motion for Preliminary Injunction and Motion to Dismiss, the Defendants are temporarily restrained from applying the August 9, 2018 Policy Memorandum to Plaintiffs Ye and Li. (Sheets, Jamie) (Entered: 01/28/2019)
Reset Hearings: Motion Hearing set for 3/26/2019 10:00 AM in WinstonSalem Courtroom #1 before JUDGE LORETTA C. BIGGS. (Sheets, Jamie) (Entered: 01/28/2019)
37 ORDER signed by JUDGE LORETTA C. BIGGS on 1/28/2019; that the Motion for Leave to File is GRANTED; and FURTHER that the Clerk is directed to file the brief of amici curiae submitted with the Motion for Leave to File. (Sheets, Jamie) (Entered: 01/28/2019)
38 BRIEF AMICI CURIAE OF INSTITUTIONS OF HIGHER EDUCATION IN SUPPORT OF 15 MOTION for Preliminary Injunction and Partial Summary Judgment filed by ADLER UNIVERSITY, AMHERST COLLEGE, ARIZONA STATE UNIVERSITY, BARNARD COLLEGE, BENNINGTON COLLEGE, BOSTON COLLEGE, BROWN UNIVERSITY, BUCKNELL UNIVERSITY, CALIFORNIA COMMUNITY COLLEGES BOARD OF GOVERNORS, CALIFORNIA INSTITUTE OF TECHNOLOGY, CASE WESTERN RESERVE UNIVERSITY, CHRISTIAN BROTHERS UNIVERSITY, CLARK UNIVERSITY, COLUMBIA UNIVERSITY, CORNELL COLLEGE, CORNELL UNIVERSITY, DARTMOUTH COLLEGE, DREXEL UNIVERSITY, DUKE UNIVERSITY, EASTERN MICHIGAN UNIVERSITY, EMERSON COLLEGE, EMORY UNIVERSITY, FRANKLIN & MARSHALL COLLEGE, GEORGE WASHINGTON UNIVERSITY, GEORGETOWN UNIVERSITY, GETTYSBURG COLLEGE, GOUCHER COLLEGE, ILLINOIS INSTITUTE OF TECHNOLOGY, MACALESTER COLLEGE, MANHATTANVILLE COLLEGE, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, MENLO COLLEGE, MIDDLEBURY COLLEGE, MILLS COLLEGE, MOUNT HOLYOKE COLLEGE, NEW YORK UNIVERSITY, NORTHEASTERN UNIVERSITY, NORTHWESTERN UNIVERSITY, POMONA COLLEGE, PRESIDENT AND FELLOWS OF HARVARD COLLEGE, PRINCETON UNIVERSITY, RHODE

01/29/2019 01/29/2019
02/07/2019 02/08/2019

ISLAND SCHOOL OF DESIGN, RHODES COLLEGE, RICE UNIVERSITY, ROCHESTER INSTITUTE OF TECHNOLOGY, ROOSEVELT UNIVERSITY, RUTGERS UNIVERSITY-NEWARK, SARAH LAWRENCE COLLEGE, SMITH COLLEGE, SOUTHEASTERN UNIVERSITY, STANFORD UNIVERSITY, SWARTHMORE COLLEGE, THE PENNSYLVANIA STATE UNIVERSITY, TRINITY WASHINGTON UNIVERSITY, TUFTS UNIVERSITY, UNIVERSITY OF DENVER (COLORADO SEMINARY), UNIVERSITY OF MICHIGAN, UNIVERSITY OF PENNSYLVANIA, UNIVERSITY OF SAN DIEGO, UNIVERSITY OF SOUTHERN CALIFORNIA, UNIVERSITY OF UTAH, VANDERBILT UNIVERSITY, WASHINGTON UNIVERSITY IN ST. LOUIS, WELLESLEY COLLEGE, WILLIAMS COLLEGE, YALE UNIVERSITY. (Filed per 37 Order) (Sheets, Jamie) (Entered: 01/28/2019)
39 MOTION to Expand the Scope of the Temporary Restraining Order re 36 Order,, by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. Response to Motion due by 2/19/2019 (Attachments: # 1 Text of Proposed Order)(HUGHES, PAUL) (Entered: 01/29/2019)
40 MEMORANDUM filed by Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE re 39 MOTION to Expand the Scope of the Temporary Restraining Order re 36 Order,, filed by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. (HUGHES, PAUL) (Entered: 01/29/2019)
41 REPLY, filed by Defendants L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, to Response to 30 MOTION to Dismiss for Lack of Jurisdiction filed by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (PRESS, JOSHUA) (Entered: 02/07/2019)
Motion Submitted: 30 MOTION to Dismiss for Lack of Jurisdiction to JUDGE LORETTA C. BIGGS. (Blay, Debbie) (Entered: 02/08/2019)

02/19/2019 03/06/2019 03/13/2019 04/04/2019
04/15/2019

42 RESPONSE in Opposition re 39 MOTION to Expand the Scope of the Temporary Restraining Order re 36 Order,, filed by GUILFORD COLLEGE, SEN LI, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE INTERNATIONAL CLUB, JIA YE filed by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. Replies due by 3/5/2019 (PRESS, JOSHUA) (Entered: 02/19/2019)
Motion Submitted: 39 MOTION to Expand the Scope of the Temporary Restraining Order to JUDGE LORETTA C. BIGGS. (Blay, Debbie) (Entered: 03/06/2019)
43 NOTICE of Rescheduling: Motion Hearing reset from 3/26/2019 at 10:00 AM to 4/4/2019 at 10:00 AM in Winston-Salem Courtroom #1 before JUDGE LORETTA C. BIGGS. (Blay, Debbie) (Entered: 03/13/2019)
Minute Entry for proceedings held before JUDGE LORETTA C. BIGGS: Motion Hearing held on 4/4/2019 re 15 MOTION for Preliminary Injunction and Partial Summary Judgment filed by GUILFORD COLLEGE, SEN LI, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE INTERNATIONAL CLUB, JIA YE, 30 MOTION to Dismiss for Lack of Jurisdiction filed by KIRSTJEN NIELSEN, U.S. DEPARTMENT OF HOMELAND SECURITY, L. FRANCIS CISSNA, U.S. CITIZENSHIP AND IMMIGRATION SERVICES. 39 Motion to Expand the Scope of the Temporary Restraining Order is moot. Attorneys Paul Hughes, Corey Menees, and Ron Klasko present on behalf of the Plaintiffs. Attorney Joshua Press present on behalf of the Defendants. Oral argument heard. Written Order forthcoming. (Court Reporter Lori Russell.) (Blay, Debbie) (Entered: 04/04/2019)
44 Transcript of Proceedings held on 04/04/2019, re: Motion Hearing, before Judge Loretta C. Biggs. Court Reporter Lori Russell, Telephone number 336-734-2547. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before

the 90 day deadline. After that date it may be obtained through PACER.

05/03/2019
05/03/2019 05/13/2019

Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/18/2019. (Russell, Lori) (Entered: 04/15/2019)
45 MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 5/3/2019; that Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment, (ECF No. 15 ), is GRANTED IN PART and DENIED IN PART. The motion is GRANTED in that the Court hereby enjoins implementation, in all applications, of the memorandum titled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants," issued by Defendant United States Citizenship and Immigration Services on August 9, 2018 and bearing the file number PM602-1060.1, as well as the memorandum with the same title issued on May 10, 2018 and bearing file number PM-602-1060, until further order of this Court. The motion is DENIED WITHOUT PREJUDICE to the extent it seeks partial summary judgment on the first and third causes of action alleged in Plaintiffs' First Amended Complaint. FURTHER that Defendants' Motion to Dismiss, (ECF No. 30 ), is hereby DENIED. FURTHER that the parties shall engage in expedited summary judgment briefing as set forth in a separate Order which shall be filed contemporaneously with this Memorandum Opinion and Order. FURTHER that Plaintiff's Motion to Expand the Scope of the Temporary Restraining Order, (ECF No. 39 ), is DENIED AS MOOT. (Sheets, Jamie) (Entered: 05/03/2019)
46 ORDER signed by JUDGE LORETTA C. BIGGS on 5/3/2019. For the reasons set forth in the Memorandum Opinion and Order filed contemporaneously with this Judgment; that the parties shall engage in expedited summary judgment briefing as follows: Cross-motions for summary judgment and supporting documents, including brief, shall be due no later than May 13, 2019; Responses to motions for summary judgment shall be due no later than May 23, 2019; Replies to responses to motions for summary judgment shall be due no later than May 30, 2019. FURTHER that Defendants shall file an Answer to Plaintiffs' First Amended Complaint no later than May 13, 2019. (Sheets, Jamie) (Entered: 05/03/2019)
47 MOTION for Partial Summary Judgment by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. Response to Motion due by 6/12/2019 (HUGHES, PAUL) (Entered: 05/13/2019)

05/13/2019
05/13/2019 05/13/2019 05/13/2019 05/23/2019
05/23/2019

48 MEMORANDUM filed by Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE re 47 MOTION for Partial Summary Judgment filed by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. (Attachments: # 1 Declaration of Paul W. Hughes, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(HUGHES, PAUL) (Entered: 05/13/2019)
49 ANSWER to Amended Complaint by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (PRESS, JOSHUA) (Entered: 05/13/2019)
50 MOTION for Summary Judgment by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. Response to Motion due by 5/23/2019 (PRESS, JOSHUA) (Entered: 05/13/2019)
51 MEMORANDUM filed by Defendants L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY re 50 MOTION for Summary Judgment filed by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (PRESS, JOSHUA) (Entered: 05/13/2019)
52 RESPONSE in Opposition re 50 MOTION for Summary Judgment filed by KIRSTJEN NIELSEN, L. FRANCIS CISSNA, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY filed by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. Replies due by 5/30/2019 (Attachments: # 1 Supplemental Declaration of Paul W. Hughes, # 2 Exhibit A, # 3 Exhibit B)(HUGHES, PAUL) Modified on 5/24/2019 to edit reply deadline per 4 Order. (Sheets, Jamie) (Entered: 05/23/2019)
53 RESPONSE in Opposition re 47 MOTION for Partial Summary Judgment filed by GUILFORD COLLEGE, SEN LI, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE

05/30/2019 05/30/2019 05/31/2019 07/03/2019
07/03/2019 07/10/2019

DISTRICT, GUILFORD COLLEGE INTERNATIONAL CLUB, JIA YE filed by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. Replies due by 5/30/2019 (PRESS, JOSHUA) (Entered: 05/23/2019)
54 REPLY, filed by Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, JIA YE, to Response to 47 MOTION for Partial Summary Judgment filed by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, JIA YE. (HUGHES, PAUL) (Entered: 05/30/2019)
55 REPLY, filed by Defendants L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, to Response to 50 MOTION for Summary Judgment filed by L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (PRESS, JOSHUA) (Entered: 05/30/2019)
Motions Submitted: 47 MOTION for Partial Summary Judgment , 50 MOTION for Summary Judgment , to JUDGE LORETTA C. BIGGS. (Blay, Debbie) (Entered: 05/31/2019)
56 ORDER signed by JUDGE LORETTA C. BIGGS on 7/3/2019. Plaintiffs' Motion for Partial Summary Judgment (ECF No. 47 ) and Defendants' Motion for Summary Judgment (ECF No. 50 ) are DENIED WITHOUT PREJUDICE. Such motions shall not be refiled unless and until they are accompanied by the administrative record and any other supporting documents required to be filed under the applicable rules. FURTHER that the preliminary injunction entered in the Court's May 3 Opinion and Order shall continue and remain in full force and effect as set forth in the May 3 Opinion and Order, until such time that this Court orders otherwise. (Daniel, J) (Entered: 07/03/2019)
57 ADMINISTRATIVE RECORD re 56 Order on Motion for Partial Summary Judgment,,, Order on Motion for Summary Judgment,, . (Attachments: # 1 Exhibit 1 of 2, # 2 Exhibit 2 of 2)(PRESS, JOSHUA) (Entered: 07/03/2019)
58 REQUEST (Joint) by Defendants L. FRANCIS CISSNA, KIRSTJEN NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY for Vacatur of Prior Order re 56 Order on Motion for Partial Summary Judgment,,, Order on Motion for Summary Judgment,,. (PRESS, JOSHUA) (Entered: 07/10/2019)

07/11/2019 07/12/2019 07/22/2019 07/22/2019
07/22/2019 07/22/2019
07/23/2019

CASE REFERRED RE: 58 Joint Request, to JUDGE LORETTA C. BIGGS. (Blay, Debbie) (Entered: 07/11/2019)
59 ORDER signed by JUDGE LORETTA C. BIGGS on 7/12/2019; that, to the extent the parties intend this request (ECF No. 58 ) to serve as a motion seeking relief from the Court, the motion is DENIED, and the Court's Order entered on July 3, 2019, (ECF No. 56 ), speaks for itself. (Sheets, Jamie) (Entered: 07/12/2019)
60 MOTION for Partial Summary Judgment by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. Response to Motion due by 8/21/2019 (HUGHES, PAUL) (Entered: 07/22/2019)
61 MEMORANDUM filed by Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE re 60 MOTION for Partial Summary Judgment filed by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. (Attachments: # 1 Declaration of Paul W. Hughes, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 CAR (part 1), # 10 CAR (part 2))(HUGHES, PAUL) (Entered: 07/22/2019)
62 MOTION for Summary Judgment by L. FRANCIS CISSNA, KEVIN K. MCALEENAN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. Response to Motion due by 8/21/2019 (PRESS, JOSHUA) (Entered: 07/22/2019)
63 MEMORANDUM filed by Defendants L. FRANCIS CISSNA, KEVIN K. MCALEENAN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY re 62 MOTION for Summary Judgment filed by L. FRANCIS CISSNA, KEVIN K. MCALEENAN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit CAR Part 1, # 2 Exhibit CAR Part 2)(PRESS, JOSHUA) (Entered: 07/22/2019)
64 RESPONSE in Opposition re 62 MOTION for Summary Judgment filed by KEVIN K. MCALEENAN, L. FRANCIS CISSNA, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY filed by FOOTHILL-DE

07/23/2019 07/24/2019
07/24/2019 07/25/2019 08/28/2019

ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. Replies due by 8/6/2019 (Attachments: # 1 Supplemental Declaration of Paul W. Hughes, # 2 Exhibit A, # 3 Exhibit B)(HUGHES, PAUL) (Entered: 07/23/2019)
65 RESPONSE in Opposition re 60 MOTION for Partial Summary Judgment filed by GUILFORD COLLEGE, SEN LI, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE INTERNATIONAL CLUB, JIA YE filed by L. FRANCIS CISSNA, KEVIN K. MCALEENAN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. Replies due by 8/6/2019 (PRESS, JOSHUA) (Entered: 07/23/2019)
66 REPLY, filed by Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE, to Response to 60 MOTION for Partial Summary Judgment filed by FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE. (HUGHES, PAUL) (Entered: 07/24/2019)
67 REPLY, filed by Defendants L. FRANCIS CISSNA, KEVIN K. MCALEENAN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, to Response to 62 MOTION for Summary Judgment filed by L. FRANCIS CISSNA, KEVIN K. MCALEENAN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (PRESS, JOSHUA) (Entered: 07/24/2019)
Motions Submitted: 60 MOTION for Partial Summary Judgment , 62 MOTION for Summary Judgment to JUDGE LORETTA C. BIGGS. (Blay, Debbie) (Entered: 07/25/2019)
68 NOTICE of Appearance by attorney JENNIFER B. ROUTH on behalf of Plaintiffs FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, HAVERFORD COLLEGE, SEN LI, THE AMERICAN FEDERATION OF TEACHERS, THE NEW SCHOOL, JIA YE (ROUTH, JENNIFER) (Entered: 08/28/2019)

02/06/2020
02/06/2020
04/03/2020 04/06/2020 04/07/2020 08/03/2020

69 MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 2/6/2020; that Plaintiffs' Motion for Partial Summary Judgment, (ECF No. 60 ), is GRANTED. The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications. FURTHER that the Government's Motion for Summary Judgment, (ECF No. 62 ), is DENIED. A Judgment terminating this case will be filed contemporaneously with this Memorandum and Order. (Sheets, Jamie) (Entered: 02/06/2020)
70 JUDGMENT signed by JUDGE LORETTA C. BIGGS on 2/6/2020. For the reasons set forth in the Memorandum Opinion and Order filed contemporaneously with this Judgment; that Plaintiffs' Motion for Partial Summary Judgment, (ECF No. 60 ), is GRANTED. The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications. FURTHER that the Government's Motion for Summary Judgment, (ECF No. 62 ), is DENIED. FURTHER that, Judgment having been entered, this action is hereby terminated. (Sheets, Jamie) (Entered: 02/06/2020)
71 NOTICE OF APPEAL as to 70 Judgment, 69 Memorandum Opinion and Order, by L. FRANCIS CISSNA, KEVIN K. MCALEENAN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (PRESS, JOSHUA) (Entered: 04/03/2020)
72 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 71 Notice of Appeal. (Sheets, Jamie) (Entered: 04/06/2020)
73 NOTICE of Docketing Record on Appeal from USCA re 71 Notice of Appeal filed by KEVIN K. MCALEENAN, L. FRANCIS CISSNA, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. USCA Case Manager: Kirsten Hancock. USCA Case Number 20-1392. (Sheets, Jamie) (Entered: 04/07/2020)
74 USCA ORDER. Upon consideration of the motion to voluntarily dismiss this case pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, and there appearing no opposition, the court grants the motion. USCA Case Number 20-1392. (Sheets, Jamie) (Entered: 08/03/2020)

08/03/2020

75 MANDATE of USCA as to 71 Notice of Appeal filed by KEVIN K. MCALEENAN, L. FRANCIS CISSNA, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. This court's order dismissing this appeal pursuant to Local Rule 42(b) takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. USCA Case Number 20-1392. (Sheets, Jamie) (Entered: 08/03/2020)

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1:18-cv00891-LCBJEP
3.00

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GUILFORD COLLEGE, GUILFORD COLLEGE )

INTERNATIONAL CLUB, THE NEW SCHOOL, )

FOOTHILL-DE ANZA COMMUNITY COLLEGE )

DISTRICT, HAVERFORD COLLEGE, THE

)

AMERICAN FEDERATION OF TEACHERS,

)

JIA YE, and SEN LI,

)

)

Plaintiffs,

)

)

v.

)

)

KEVIN MCALEENAN, U.S. DEPARTMENT OF )

HOMELAND SECURITY, L. FRANCIS CISSNA, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES,

)

)

Defendants.

)

1:18CV891

ORDER

For the reasons set forth in the Memorandum Opinion and Order filed

contemporaneously with this Judgment,

IT IS HEREBY ORDERED that the parties shall engage in expedited summary

judgment briefing as follows:

(i) Cross-motions for summary judgment and supporting documents, including brief, shall be due no later than May 13, 2019;
(ii) Responses to motions for summary judgment shall be due no later than May 23, 2019;
(iii) Replies to responses to motions for summary judgment shall be due no later than May 30, 2019.
IT IS FURTHER ORDERED that Defendants shall file an Answer to Plaintiffs’ First

Amended Complaint no later than May 13, 2019.

Case 1:18-cv-00891-LCB-JEP Document 46 Filed 05/03/19 Page 1 of 2

This, the 3rd day of May, 2019. /s/ Loretta C. Biggs United States District Judge
2 Case 1:18-cv-00891-LCB-JEP Document 46 Filed 05/03/19 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GUILFORD COLLEGE, GUILFORD COLLEGE )

INTERNATIONAL CLUB, THE NEW SCHOOL, )

FOOTHILL-DE ANZA COMMUNITY COLLEGE )

DISTRICT, HAVERFORD COLLEGE, THE

)

AMERICAN FEDERATION OF TEACHERS,

)

JIA YE, and SEN LI,

)

)

Plaintiffs,

)

)

v.

)

)

CHAD WOLF,1 U.S. DEPARTMENT OF

)

HOMELAND SECURITY, KEN CUCCINELLI, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES,

)

)

Defendants.

)

1:18CV891

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge. Plaintiffs challenge the U.S. Citizenship and Immigration Services’ (“USCIS”) issuance
of an August 9, 2018 Policy Memorandum, PM-602-1060.1, titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (the “August 2018 PM”). (ECF No. 14.) On May 3, 2019, this Court preliminarily enjoined the August 2018 PM, having concluded that it was likely promulgated in violation of the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 551 et seq. (ECF No. 45.) The parties now cross-move for summary judgment. (ECF Nos.

1 Plaintiffs’ complaint named Kirstjen Nielsen, former Secretary of Homeland Security, and Lee Cissna, former Director of USCIS, as Defendants. (ECF No. 14.) Both resigned during the pendency of this action. Chad Wolf currently serves as Acting Secretary of Homeland Secretary, and Ken Cuccinelli now serves as Acting
Director of USCIS. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Secretary Wolf and Acting Director Cuccinelli are hereby substituted as parties to this action. See Fed R. Civ. P. 25(d).

Case 1:18-cv-00891-LCB-JEP Document 69 Filed 02/06/20 Page 1 of 26

60; 62.) For the reasons that follow, the Court grants Plaintiffs’ motion, denies the Government’s motion, and permanently enjoins the August 2018 PM nationwide. I. BACKGROUND
In 1996, Congress amended the Immigration and Nationality Act (“INA”) to introduce a new concept called “unlawful presence.” See 8 U.S.C. § 1182(a)(9)(B). A nonimmigrant2 person is deemed to be “unlawfully present” if that person is “present in the United States after the expiration of the period of stay authorized by the Attorney General.” Id. The accrual of unlawful presence time can result in a penalty: Individuals who leave the United States after having been “unlawfully present” for more than 180 days are barred from reentering the country for three years. Id. § 1182(a)(9)(B)(i). Those who accumulate more than 365 days of unlawful-presence time may not return for ten years. Id.
For people admitted to the United States for a fixed period—for instance, a tourist whose visa has a firm expiration date—the determination of when “unlawful presence” time begins to accrue is straightforward. However, some nonimmigrant visa holders are not given precise dates upon which their authorized “period[s] of stay” expire. For example, an international student studying at an American university may be admitted for the “time during which [the] student is pursuing a full course of study at an [approved] educational institution . . . or engaging in authorized practical training following completion of studies.” See 8 C.F.R.
2 The term ‘nonimmigrant’ is used herein to describe “an alien who is admitted to the United States for a specific temporary period of time” and “for a specific purpose.” See Nonimmigrant, USCIC Glossary, available at https://www.uscis.gov/tools/glossary?topic_id=n#alpha-listing.
2
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§ 214.2(f)(5). Such visas, including F, M, and J visas,3 are considered valid for “duration of status.” Id.
Until recently, the unlawful-presence ‘clock’ would not begin to run against an F, M, or J visa holder until a government official—either an immigration judge or a USCIS adjudicator—formally identified an immigration status violation. (See ECF Nos. 57-1 at 66; 61-3 at 2–3.) However, in 2018, USCIS changed course. In a May 10, 2018 Policy Memorandum, the agency announced that, in order “[t]o reduce the number of [visa] overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility under [the] INA,” it would be “changing its policy on how to calculate unlawful presence.” (ECF No. 57-1 at 30.) Under this new policy, which was memorialized in the August 2018 PM, unlawful presence starts to accrue not at the time an individual is formally found to be out of status, but from the time an adjudicator determines the status violation first occurred. (See id. at 19.)
According to Plaintiffs, this policy change could cause otherwise “unintentional errors” to result in “life-altering consequences.” (ECF No. 61 at 8.) Because “unlawful presence” time begins to accrue under the August 2018 PM “[t]he day after [an F, J, or M visa holder] engages in an unauthorized activity,” (ECF No. 57-1 at 19), minor violations—like failing to update an address, or working a single extra hour in a week—could result in a three- or tenyear reentry bar “with no opportunity to cure,” (ECF No. 61 at 8–9).
3 An F visa holder is a nonimmigrant student who enters the United States to pursue a course of educational study. See 8 U.S.C. § 1101(a)(15)(F)(i). An M visa holder is a nonimmigrant student who enters the United States to pursue “a full course of study at an established vocational [or technical] school.” See id. § 1101(a)(15)(M). A J visa holder is an individual who enters the United States to participate in an “exchange visitor program” authorized by the U.S. Department of State. See id. § 1101(a)(15)(J); 22 C.F.R. § 41.62(a)(1).
3
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Plaintiffs thus initiated this action on October 23, 2018 seeking to halt implementation of the August 2018 PM. (See ECF Nos. 1; 14.) Their complaint contains four related claims: (1) that in issuing the August 2018 PM, USCIS failed to observe rulemaking procedures required by the APA; (2) that the August 2018 PM is “substantively arbitrary and capricious”; (3) that the August 2018 PM conflicts with the statutory text of the INA; and (4) that the August 2018 PM violates the Due Process Clause of the Fifth Amendment. (See ECF No. 14 ¶¶ 185–221.) This Court issued a preliminary injunction on May 3, 2019; however, in the absence of a certified administrative record, which at that time had not yet been filed, it declined to rule on Plaintiffs’ request for partial summary judgment. (See ECF No. 45 at 27– 29.) That record has since been made available, (ECF Nos. 57-1; 57-2), and the Court now considers the parties’ cross-motions for summary judgment. II. STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “This rubric has a special twist in the administrative law context,” see Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997), where summary judgment “serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” See Air Transp. Ass’n of Am. v. U.S. Dep’t of Agric., 303 F. Supp. 3d 28, 38 (D.D.C. 2018) (quotation omitted); see also All. for Legal Action v. U.S. Army Corps of Eng’rs, 314 F. Supp. 2d 534, 541 (M.D.N.C. 2004).
Under the APA, courts must “hold unlawful and set aside” those agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5
4
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U.S.C. § 706(2)(A), “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” id. § 706(2)(C), or undertaken “without observance of procedure required by law.” id. § 706(2)(D). “Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009). Nevertheless, the standard is not meant to “reduce judicial review to a ‘rubber-stamp’ of agency action.” Id. (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976)). Rather, the court must engage in a “searching and careful” inquiry of the record in order to understand “the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; [and] the choices open to the agency and those made.” Id. at 192–93 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); Ethyl Corp., 541 F.2d at 36). III. JURISDICTION
Before addressing the merits, a brief discussion of jurisdiction is necessary. In its preliminary injunction Order, this Court ruled that Plaintiffs had standing to challenge the August 2018 PM and that this matter was ripe for judicial review. (See ECF No. 45 at 5–13.) The Government urges the Court to “reject that preliminary ruling,” (ECF No. 63 at 10), despite the fact that Plaintiffs’ burden to demonstrate jurisdiction is the same now as it was then, see Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (explaining that the burdens to demonstrate standing at the preliminary injunction and summary judgment stages are normally equivalent). While federal courts are always under “an obligation to assure ourselves” of jurisdiction, see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006), this Court, having already determined that it has jurisdiction, is hesitant to rehash its prior analysis. However,
5
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given the attention devoted to standing and timeliness in the parties’ briefing, the Court will reaffirm its conclusions here.4
While numerous Plaintiffs bring this suit, “the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)). The two individual plaintiffs in this case, Jia Ye and Sen Li (“Individual Plaintiffs”), clearly have standing. (See ECF No. 45 at 6–8.) Both are foreign nationals who, after entering the United States on F-1 student visas, subsequently graduated or withdrew from school. (ECF Nos. 16-1 ¶¶ 2, 4, 10; 16-2 ¶¶ 2, 4, 10.) Both were then recruited by the U.S. Army via the Military Accessions Vital to National Interest (“MANVI”) program, signed enlistment contracts, and were advised to remain in the country as they await orders to report to Basic Training. (ECF Nos. 16-1 ¶¶ 6–9; 16-2 ¶¶ 6–9.) However, under the August 2018 PM’s unlawful-presence calculation methodology, Ye and Li also began accruing unlawfulpresence time as soon as they concluded their studies and fell out of status. Thus, USCIS’ policy puts the Individual Plaintiffs in an untenable position—if they stay to honor their enlistment contracts, they face a substantial likelihood of a reentry bar in the future; if they leave to avoid accruing more unlawful-presence time, they risk losing their chance to serve and earn U.S. citizenship. See Nat’l Venture Capital Ass’n v. Duke, 291 F. Supp. 3d 5, 13 (D.D.C. 2017) (recognizing that the “lost opportunity to obtain . . . status” qualifies as a “cognizable injury in the immigration context”). This injury in fact—the accrual of “unlawful presence”
4 The Court incorporates by reference the jurisdictional analysis from its preliminary injunction Order as if fully set out here. (See ECF No. 45 at 5–13.)
6
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time in the here and now—is traceable to the August 2018 PM and will likely be redressed by
the relief Plaintiffs seek. (See ECF No. 45 at 8.) That, in short, is enough to establish standing.
In its summary judgment briefing, the Government reiterates two previously rejected
timing arguments: first, that because Ye and Li’s personalized “administrative processes” are
“ongoing,” this case remains unripe, (ECF No. 63 at 14–15); and second, that the August 2018
PM does not “constitute a discrete, final agency action” reviewable under the APA, (id. at 13).
Neither is persuasive. Plaintiffs do not challenge any individual unlawful-presence
determinations; rather, Plaintiffs challenge the “decision, embodied in the August 2018
memorandum, to establish new, binding, detrimental rules” for such determinations.5 (ECF
No. 64 at 12.) Nor is this a scenario, as the government contends, in which the rule of
administrative exhaustion precludes review. (See ECF No. 63 at 14.) Cf. Randolph-Sheppard
Vendors of Am. v. Weinberger, 795 F.2d 90, 105–06 (D.C. Cir. 1986) (explaining that exhaustion
of administrative remedies is futile when the agency “has evidenced a strong stand on the issue
in question and an unwillingness to reconsider the issue”). Further, it is clear that the August
2018 PM—which “supersede[s]” all prior guidance on “unlawful presence,” (ECF No. 57-1
at 16), and “mark[s] the ‘consummation’ of the agency’s decisionmaking process” from which
5 In Lujan v. National Wildlife Federation, the Supreme Court rejected a suit which sought “wholesale improvement” of a “land withdrawal review program.” See 497 U.S. 871, 890–91, 894 (1990). There, the challenged “program” was considered too broad to qualify as a “final agency action” reviewable under the APA because it encompassed more than “a single [agency] order or regulation, or even . . . a completed universe of particular . . . orders and regulations.” See id. (“Until confided to us . . . more sweeping actions are for the other branches.”). The Government argues that Plaintiffs’ challenge to the August 2018 PM constitutes a similarly impermissible “programmatic agency challenge.” (See ECF No. 63 at 10–13.) However, Plaintiffs properly confine their challenge to a specific agency action: the issuance of the August 2018 PM. See 33 Charles Alan Wright et al., Federal Practice & Procedure § 8322 (2d ed. 2019) (citing Lujan, 497 U.S. at 891) (“The APA authorizes challenges to specific actions—such as a particular rule or order. It does not authorize plaintiffs to pile together a mish-mash of discrete actions into a ‘program’ and then sue an agency to force broad policy changes to this ‘program.’”).
7
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“legal consequences will flow,” see Bennett v. Spear, 520 U.S. 154, 177–78 (1997)—is a final agency action subject to review under the APA.6 For these reasons, the Court again concludes that at least one plaintiff has standing to sue, that this matter is ripe for adjudication, and that the prerequisites for Article III jurisdiction are therefore satisfied. (See ECF No. 45 at 13.) IV. DISCUSSION
The Court now turns to the merits. Plaintiffs seek summary judgment on just two of their four claims: that the August 2018 PM was improperly issued without notice and comment (first cause of action); and that the August 2018 PM conflicts with the language of the INA (third cause of action). (ECF Nos. 14 ¶¶ 185–192, 202–211; 60 at 1.) The Government, for its part, moves for summary judgment on all claims.7 (ECF No. 62 at 1.) As detailed below, the Court agrees with Plaintiffs that the August 2018 PM is both procedurally and substantively defective and should be permanently enjoined.
A. Notice and Comment As a general matter, “[t]he APA requires that all ‘rules’ be issued through a statutorily prescribed notice-and-comment process.” Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 619 (4th Cir. 2018) (citing 5 U.S.C. § 553(a)–(c)). However, there are exceptions.
6 As discussed further below, the August 2018 PM is best classified as a “legislative rule,” which means that, by definition, it is a “final agency action.” See Broadgate Inc. v. USCIS, 730 F. Supp. 2d 240, 244 (D.D.C. 2010). 7 The Court declines to address the Government’s request for summary judgment as to Plaintiffs’ second and fourth causes of action. See Ashwander v. TVA, 297 U.S. 288, 347 (1936) (“[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”); Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 4–6, 8 (D.C. Cir. 1999) (addressing statutory claims but declining to reach arbitrary and capricious challenge).
8
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Unless required by another statute, the APA’s notice-and-comment regime “does not apply” to (1) “interpretative rules,”8 (2) “general statements of policy,” or (3) “rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). Rules not falling into one of these three categories are commonly referred to as “legislative rules” because they typically have the “force and effect of law.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302–03 (1979)).
Proper notice-and-comment rulemaking has three steps. Id. First, the agency must publish a “[g]eneral notice of proposed rule making” in the Federal Register.9 5 U.S.C. § 553(b). Second, the agency must “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments,” id. § 553(c), then “consider and respond to significant comments received,” Perez, 575 U.S. at 96 (citing Overton Park, 401 U.S. at 416). Last, when the final version of the rule is promulgated, the agency must include along with it “a concise general statement of [its] basis and purpose.” 5 U.S.C. § 553(c). “Failure to abide by these requirements renders a [legislative] rule procedurally invalid.” N.H. Hosp. Ass’n v. Azar, 887 F.3d 62, 70 (1st Cir. 2018); see also Children’s Hosp., 896 F.3d at 623. However, if the rule is not legislative, but, instead, fits into one of the categorical exceptions listed above, then the agency may forego notice and comment altogether. See 5 U.S.C. § 553(b)(A).
8 Denoted as “interpretive rules” herein. 9 The requirement to publish notice of a proposed rule in the Federal Register does not apply if “persons subject [to the rule making] are named and either personally served or otherwise have actual notice thereof in accordance with law.” 5 U.S.C. § 553(b).
9
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Plaintiffs point out—and the Government does not contest—that, in issuing the August 2018 PM, USCIS failed to adhere to the notice-and-comment process. (See ECF No. 61 at 9.) “It is undisputed,” for example, “that neither the May 2018 preliminary memorandum nor the August 2018 final memorandum was published in the Federal Register.” Id. However, the Government submits that notice-and-comment procedures are irrelevant here because, as “a reasonable interpretive rule,” the August 2018 PM is “exempt from the APA’s notice-andcomment requirement.”10 (ECF No. 63 at 7 (emphasis added).) The validity of the August 2018 PM, therefore, turns on whether the Government’s characterization is correct: if it is a legislative rule, then it must be “set aside” for failure to follow procedure; but if it is an interpretive rule, then the notice-and-comment requirements “do[ ] not apply.” See 5 U.S.C. §§ 553(b), 706(2).
It has been said that the distinction between legislative and interpretive rules is “enshrouded in considerable smog.” See Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984); see also Perez, 575 U.S. at 96 (declining to “wade into” the ongoing debate over what constitutes an “interpretative rule”). However, caselaw provides some helpful guideposts. According to the Supreme Court, the “critical feature of interpretive rules is that they are issued . . . to advise the public of the agency’s construction of the statutes and the rules which it administers.” Perez, 575 U.S. at 97 (internal quotations omitted). The D.C. Circuit has echoed that interpretive rules “describe[ ] the agency’s view of the meaning of an existing statute or regulation,” without going so far as to “effect[ ] a substantive regulatory
10 At times, the Government prefers to label the August 2018 PM as a “general statement of policy” rather than an interpretive rule. (See, e.g., ECF No. 65 at 13.) Regardless, the question is still whether the memorandum is legislative or non-legislative.
10
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change.” See Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014). Likewise, the Fourth Circuit has recognized that, in general, interpretive rules “simply state what the administrative agency thinks the statute means.” Children’s Hosp., 896 F.3d at 620 (citing Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 207 (4th Cir. 1989)).
“Somewhere along a spectrum,” however, “a rule transitions from being interpretive to being legislative.” N.H. Hosp. Ass’n, 887 F.3d at 70; see Children’s Hosp., 896 F.3d at 620–21. A key indicator is whether a rule represents an agency’s effort to “implement [a] statute,” rather than merely opine on its meaning. See Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1340 (4th Cir. 1995) (emphasis added). Put another way, rules that aim to do more than “simply clarify or explain a regulatory term” tend to be legislative. See Mendoza, 754 F.3d at 1021. Thus, in deciding whether a rule is interpretive or legislative, courts should consider the agency’s “intent in authoring it, as ascertained by an examination of the provision’s language, its context, and any available extrinsic evidence.” Jerri’s Ceramic Arts, 874 F.2d at 208 (quoting Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977)). The bottom line is that a rule is legislative, and not interpretive, “if it supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy.” Children’s Hosp., 896 F.3d at 620 (quoting Mendoza, 754 F.3d at 1021) (emphasis added); see also Ass’n of Flight Attendants-CWA, AFL-CIO v. Huerta, 785 F.3d 710, 717 (D.C. Cir. 2015) (explaining that a rule’s “most important” distinguishing feature is its “actual legal effect (or lack thereof)”).
Here, the express language of the August 2018 PM is instructive. The memorandum states that its purpose is to “reduce the number of overstays and improve how USCIS implements the unlawful presence ground of inadmissibility under [the] INA.” (See ECF No. 57-1 at 18
11
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(emphasis added).) The memo goes on to explain that, in pursuit of those goals, “USCIS is now changing its policy on how to calculate unlawful presence.” (Id. (emphasis added).) This language, which evinces a desire to achieve a substantive policy outcome, strongly suggests “that more is involved than mere ‘interpretation.’” Jerri’s Ceramic Arts, 874 F.2d at 208. Simply put, the August 2018 PM “endeavor[s] to implement the [INA],” rather than merely interpret it, which is “the effect of a legislative rule.” Mendoza 754 F.3d at 1023 (quoting Chamber of Commerce v. OSHA, 636 F.2d 464, 469 (D.C. Cir. 1980)).
By its own terms, the August 2018 PM purports to be “intended solely for the guidance of USCIS personnel” and cautions that it should “not be relied upon” as the source of any benefits or rights, whether substantive or procedural. (See ECF No 57-1 at 28.) However, when determining whether a rule is legislative or interpretive, “a disclaimer by an agency about what its statements do and do not constitute as a legal matter [is] not dispositive.” See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 516 (9th Cir. 2018); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (rejecting a “boilerplate” statement similar to the agency’s here). The Government also tries to minimize the August 2018 PM’s substantive tenor by suggesting that it is the INA, rather than the memorandum, which “creates deterrence for accruing unlawful presence.” (ECF No. 67 at 13.) However, as compared to the agency’s former policy, the deterrent effect of unlawful-presence time is enhanced significantly by the August 2018 PM. Because unlawful presence accrues sooner and more frequently under the memorandum, we can expect it to coerce nonimmigrants to depart the country more readily in order to avoid a reentry bar. This is a significant change from past practice; one which, as evidenced by the plain language, USCIS clearly intends to
12
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effectuate through the August 2018 PM. The Court thus takes the text of the memorandum itself as compelling evidence that the August 2018 PM is a legislative rule.
Equally telling is the memorandum’s complete lack of interpretive effort. “Had [USCIS] merely been interpreting the governing statute and regulation,” then we would at least “expect that the agency’s justification for the rule would rely on an interpretive methodology.” See N.H. Hosp. Ass’n, 887 F.3d at 71–72; accord Gen. Motors, 742 F.2d at 1565 (“[Agency’s] entire justification for the rule [was] comprised of reasoned statutory interpretation, with reference to the language, purpose and legislative history.”). However, the August 2018 PM never so much as quotes the language of the statute it supposedly deciphers. In contrast, the 1997 memorandum setting out the former policy on unlawful presence—which, as discussed below, may or may not have been an interpretive rule itself—at least claimed to have been “interpret[ing]” the statute. (See ECF No. 61-3 at 2); see also Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 105–06 (4th Cir. 2011) (giving weight to an agency’s characterization of an action as its “interpretation” of the governing statute). Absent any sign of interpretive methodology, the objectives stated in the August 2018 PM—changing the way “unlawful presence” is calculated so as to reduce the number of overstays—point even more clearly toward the legislative end of the “spectrum.”
As further evidence of its legislative character, the August 2018 PM establishes a “binding norm” on agency adjudicators which curtails their ability to “exercise their discretion.” See Chen Zhou Chai, 48 F.3d at 1341; Ass’n of Flight Attendants, 785 F.3d at 717 (explaining that agency action which “imposes new obligations on regulated parties or narrowly limits administrative discretion . . . constitutes a legislative rule”). Under the terms
13
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of the memorandum, unlawful presence must be calculated from the date a status violation occurs. (See ECF No. 57-1 at 18 (stating unequivocally that “F, J, and M nonimmigrants . . . start accruing unlawful presence as outlined [herein]”).) The Government contends that the August 2018 PM is merely “guidance” which “directs adjudicators to consider a number of flexible factors when determining whether or how much ‘unlawful presence’ a former F, J, or M nonimmigrant has accrued.” (ECF No. 63 at 21.) However, it is difficult to read this “guidance” as anything other than a mandate. See Ass’n of Flight Attendants, 785 F.3d at 717 (“[A] document that reads like an edict is likely to be binding, while one riddled with caveats is not.”). Moreover, USCIS has incorporated the August 2018 PM into its Adjudicator’s Field Manual (the “AFM”) as “policy material.”11 (See ECF No. 57-1 at 20 (revising Chapter 40.9.2 of the AFM).) Pursuant to the AFM, “policy material is binding upon all employees of USCIS . . . [with] no exceptions.”12 See USCIS AFM § 3.4(b) (emphasis added). Thus, contrary to the Government’s assertions, the August 2018 PM “will be considered binding as a practical matter”—another indication that it is a legislative rule. See Gen. Elec. Co. v. EPA, 290 F.3d 377, 382–83 (D.C. Cir. 2002).
As the final step in its legislative-versus-interpretive analysis, the Court considers the relationship between the August 2018 PM and USCIS’ past actions on “unlawful presence.”
11 The August 2018 PM is identified by reference number PM-602-1060.1. (ECF No. 57-1 at 16.) According to the AFM, “[m]emoranda . . . specifically designated as policy (bearing the ‘P’ suffix in the reference file number)” are considered “policy materials.” See USCIS AFM § 3.4(a). 12 The AFM draws a distinction between “correspondence” and “policy” material. See USCIS AFM § 3.4(a). Whereas policy material “is binding on all USCIS officers and must be adhered to unless and until revised, rescinded or superseded by law,” correspondence is “advisory in nature, intended only to convey the author’s point of view.” Id.
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The Government argues that, in addition to the August 2018 PM itself being an interpretive
rule, USCIS’ longstanding prior policy was also issued in the form of an interpretive rule. (See
ECF No. 63 at 17–18.) This matters, according to the Government, because agencies are free
under the APA to reverse even well-established interpretations without going through the
notice-and-comment process. (See ECF No. 65 at 12–13.) On this point, the Government
displays a correct understanding of the Supreme Court’s decision in Perez, which confirmed
that “[b]ecause an agency is not required to use notice-and-comment procedures to issue an
initial interpretive rule, it is also not required to use those procedures when it amends or repeals
that interpretive rule.” See 575 U.S. at 101. However, the holding in Perez becomes inapposite
if either action—the prior policy or the August 2018 PM—is, in fact, legislative in nature.
Like the August 2018 PM, it appears that the sources of the agency’s prior position—
agency memoranda from 1997 and 2009—were not issued through the notice-and-comment
process. (See ECF Nos. 63 at 19; 64 at 17 n.2.) The Government suggests that this consistent
lack of adherence to notice-and-comment procedure demonstrates that the agency has always
issued its unlawful-presence policy through interpretive rules.13 However, here there is strong,
independent evidence that the August 2018 PM is a legislative rule, regardless of whether
13 The Government directs this Court’s attention to National Council for Adoption v. Jewell, in which the Eastern District of Virginia found that an agency’s choice not to undertake notice and comment suggested that it did not intend for certain guidance materials to have the force of law. See 156 F. Supp. 3d 727, 737 (E.D. Va. 2015). However, in that case, “less than one month after issuing the [guidance],” the agency did undertake notice and comment to “transform parts of the [guidance] into legislative rules, which would have been unnecessary if [the agency] intended the [guidance itself] to have binding or legislative effect.” Id. That is simply not the situation here. Further, while it is true that “attempts . . . to comply with APA notice-and-comment procedures [can] suggest that the agency believed them to be applicable, and support the conclusion that those procedures were applicable,” see N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 765 (4th Cir. 2012) (internal quotation omitted), the Court does not so readily accept the inverse proposition that a failure to undergo notice and comment suggests that those procedures were not applicable, as doing so risks incentivizing agencies to skip this important phase in the rule-making process.
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earlier memoranda should have been classified as such. Further, even if the prior policy should have been issued through the notice-and-comment process, the Court agrees with Plaintiffs that “[a]n agency’s first mistake is not a basis for making a second.” (See ECF No. 64 at 17 n.2.) In other words, the August 2018 PM is not immunized by virtue of the fact that the prior policy went unchallenged.
In sum, the Court concludes that the August 2018 PM is a legislative rule which could not have been properly issued without notice and comment. Because USCIS failed to abide by APA procedure, the Court must grant summary judgment for Plaintiffs, hold the August 2018 PM unlawful, and set it aside. See 5 U.S.C. § 706(2).
B. Statutory Conflict In their third cause of action, Plaintiffs further assert that the August 2018 PM is “unlawful” because it was issued “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” (See ECF No. 14 ¶ 203 (quoting 5 U.S.C. § 706(2).) The Fourth Circuit recently acknowledged that “there is no bright-line rule as to whether a court that has decided to vacate an agency action on procedural grounds should nonetheless address a substantive claim.” Children’s Hosp., 896 F.3d at 624. Thus, it does not appear that courts are prohibited from addressing an alternative claim when doing so would foster judicial and administrative economy. See, e.g., Nat. Res. Def. Council v. EPA, 643 F.3d 311, 322 (D.C. Cir. 2011); Ala. Power Co. v. FERC, 160 F.3d 7, 11 (D.C. Cir. 1998). In this case, the Court runs the special risk of prolonging Plaintiffs’ paralyzing uncertainty if it side-steps their statutoryconflict claim. As detailed below, the August 2018 PM’s construction of “unlawful presence”
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runs afoul of the INA’s plain text, and it would be a disservice to all parties if the Court did not articulate why.
In reviewing whether an agency has acted “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” 5 U.S.C. § 706, a court is confronted with two questions: “First, applying the ordinary tools of statutory construction, the court must determine ‘whether Congress has directly spoken to the precise question at issue.’” City of Arlington v. FCC, 569 U.S. 290, 296 (2013) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). If the statute is clear, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id.
Here, the Court need not guess as to what Congress meant when it employed the term “unlawful presence,” as the concept is defined right in the text of the INA:
Construction of unlawful presence: For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled. 8 U.S.C. § 1182(a)(9)(B)(ii). The vital phrase in this definition is “after the expiration of the period of stay authorized.” Id. (emphasis added). If a nonimmigrant is in the United States on a visa with a set end date, the “period of stay authorized” obviously “expires” on that date, for the ordinary meaning of “expire” is “to become null at a time fixed beforehand.” See Expire, Black’s Law Dictionary (11th ed. 2019). However, under F, M, and J visas, which are issued
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for “duration of status,” there is no express expiration date. Rather, “duration of status” roughly equals the timeframe during which a nonimmigrant is pursuing an authorized course of study, or practical training following its completion, in the United States. See, e.g. 8 C.F.R. 214.2(f)(5)(i) (defining “duration of status” for F-1 visa holders). For example, Plaintiff Ye entered the United States on an F-1 visa for “duration of status,” obtained a master’s degree, worked in a related practical training program, and then attended classes at a community college. (ECF No. 16-2 ¶¶ 4–5, 10.)
Under its prior policy, USCIS resolved the issue of when a duration-of-status visa “expired” by beginning the accrual of unlawful presence only after an adjudicator made a formal finding of a status violation. (See ECF No. 57-1 at 66.) This construction tracked the plain language of the INA: once an adjudicator had declared a nonimmigrant to be in violation of his status, it could no longer be said that his “period of stay” was “authorized by the Attorney General.” This is not to say that the agency’s prior policy was the only permissible option for the agency; rather, it was one such option. However, as explained below, the position taken by USCIS in the August 2018 PM stretches the statutory text beyond its limits.
When Congress drafted the unlawful-presence provision, it had at its disposal several similar concepts already included in the INA.14 For example, under the INA, a non-U.S. person may not adjust his status to lawful permanent residency if he “is in unlawful immigration status” at the time of filing or “has failed . . . to maintain continuously a lawful status” since
14 The Court also notes that Congress used the term “lawful immigration status” elsewhere in the Illegal Immigration Reform and Immigrant Responsibility Act (the “IIRIRA”), the very bill which amended the INA to incorporate the concept of “unlawful presence.” See Pub. L. 104-208 § 330(a)(1), 110 Stat. 3009-631 (1996) (“any alien . . . not in lawful immigration status in the United States”).
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entering the country. See 8 U.S.C. § 1255(c) (emphasis added). As explained in USCIS’ AFM, a nonimmigrant is in “unlawful status” if he “has violated any of the terms or conditions” of his visa, “such as by engaging in unauthorized employment . . . [or] failing to maintain a full course of study.” (See ECF No. 61-8 at 6.) Rather than define “unlawful presence” in these terms, however, Congress gave the concept a definition entirely its own.
It is a bedrock principle of statutory interpretation that “differences in language . . . convey differences in meaning.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017). Even when terms are closely related, the Court “must assume that Congress made a deliberate choice to use” the words it did. See Cunningham v. Scibana, 259 F.3d 303, 308 (4th Cir. 2001). Thus, the choice to carve out a separate definition for “unlawful presence”—one which hinges on the “expiration of the period of stay authorized by the Attorney General” rather than a violation of “lawful status”—deserves respect.15
Ignoring that choice, USCIS casts the INA’s particularized definition aside in favor of its preferred rule. Under the August 2018 PM, a nonimmigrant “start[s] accruing unlawful presence . . . the day after he or she engages in an unauthorized activity.”16 (See ECF No. 57-1 at 18–19 (emphasis added).) In this way, the memorandum improperly dissolves the distinction between the “expiration of the period of stay authorized” and the violation of lawful status.
15 Indeed, the AFM recognizes that there is a difference between “lawful immigration status” and the “period of authorized stay,” explaining that “[t]hose in a period of authorized stay may or may not be in a lawful immigration status.” (See ECF No. 61-8 at 3.) 16 The Government argues that the August 2018 PM “is in line with INS’s initial guidance memorandum on the exact same issue.” (See ECF No. 67 at 14–15 (emphasis added).) However, as Plaintiffs point out, that initial policy was “an interim implementation of the newly enacted IIRIRA” and was in force for less than six months before being replaced by the 1997 memorandum. (ECF Nos. 61-3 at 2; 64 at 21 n.5.) Regardless, the Court affords little weight to a distant and briefly held position which, like the August 2018 PM, appears to have been incompatible with the text of the INA.
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Imagine, for example, a student studying at a four-year American university on an F-1 visa. A reasonable case could be made that his “period of stay authorized” should be considered “expired” when he graduates with his degree. However, if he “engages in an unauthorized activity”—for instance, by moving into a different dormitory without notifying the authorities of his new address, see 8 C.F.R. § 265.1—he automatically begins to accrue unlawful-presence time under the August 2018 PM, long before graduation day, (see ECF No. 57-1 at 18–19). Under this scenario, the student’s lawful-status violation is treated as though it were completely synonymous with the “expiration” of his “period of stay authorized”—a conflation that runs counter to the choices made by Congress, as well as the ordinary meaning of the word “expiration.” This Court does not sit to judge the policy merit of USCIS’ position. However, “[w]here a statute’s language carries a plain meaning,” as it does here, “the duty of an administrative agency is to follow its commands as written, not to supplant those commands with others it may prefer.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018). And under the APA, it is this Court’s duty to hold unlawful final agency actions which openly conflict with statutory text.
The Government raises several arguments in support of its contention that the August 2018 PM is, in fact, consistent with the INA’s text. None are persuasive. The first is a broadbrush assertion that Congress has, in other sections of the INA, “statutorily affirmed” a general intent “that the Executive branch must carefully scrutinize F, J, and M nonimmigrants.” (See ECF No. 65 at 21.) “But the agency cannot rewrite a statute just to serve a perceived statutory ‘spirit.’” Landstar Express Am., Inc. v. Fed. Mar. Comm’n, 569 F.3d 493, 500 (D.C. Cir. 2009). Likewise, recent technological improvements that enhance the agency’s
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ability to monitor nonimmigrants cannot, as the Government argues, justify the August 2018 PM’s deviation from the text of the INA. (See ECF Nos. 57-1 at 17; 65 at 21–22.) USCIS has to abide by the statute, no matter how accurately they can “scrutinize” visa holders.
Finally, the Government insists that it “does not go against either the statutory language or purpose for an adjudicator to assess ‘unlawful presence’ by taking someone’s unlawful status into account.” (ECF No. 65 at 23.) However, there is an important difference—indeed, the difference at the heart of this case—between using a finding of “unlawful status” to start the unlawful-presence clock and using “unlawful status” to backdate accrual. The former method causes a duration-of-status visa holder’s “period of stay authorized” to “expire”; the latter method does not.
For these reasons, the Court concludes that the August 2018 PM impermissibly conflicts with the text of the INA, pursuant to which a nonimmigrant is not “deemed to be unlawfully present” until “after the expiration of the period of stay authorized by the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii). Accordingly, Plaintiffs are entitled to summary judgment on their claim that the August 2018 PM was issued “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). V. RELIEF
Having concluded that USCIS violated the APA by promulgating the August 2018 PM, the Court must now determine the appropriate relief. Though “their powers are not boundless,” it is well established that “district courts have broad discretion when fashioning injunctive relief.” Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010). An injunction “should be carefully addressed to the circumstances of the case” and be “no more burdensome to the
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defendant than necessary to provide complete relief to the plaintiffs.” See Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). However, “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Califano, 442 U.S. at 702. Accordingly, “[c]ourts may issue nationwide injunctions consistent with these principles.” Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017), vacated on other grounds, 138 S. Ct. 353 (2017).
Plaintiffs seek a remedy that applies not just anywhere, but to anyone who would otherwise be subject to the policy implemented by the August 2018 PM. (See ECF Nos. 14 ¶ 19; 66 at 13–15.) Rightly so. When a reviewing court determines that an agency action violates the APA, as here, “the ordinary result is that the rule[ ] [is] vacated—not that [its] application to the individual petitioners is proscribed.”17 Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (quoting Harmon v. Thornburgh, 878 F.3d 484, 495 n.21 (D.C. Cir. 1989)); see also Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014) (“[D]eficient notice [and comment] is a ‘fundamental flaw’ that almost always requires vacatur.”). Further, the APA itself instructs courts to “hold unlawful and set aside” agency actions found to be invalid. See 5 U.S.C. § 706(2); Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2007) (“The nationwide injunction . . . is compelled by the text of the [APA].”); see also Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920, 982, 991
17 Dissenting in Lujan v. National Wildlife Federation, but apparently expressing a view shared by all nine Justices, Justice Blackmun observed that in some APA challenges “the ‘agency action’ will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual.” 497 U.S. at 913. In this way, “a single plaintiff, so long as he is injured by the rule, may obtain ‘programmatic’ relief that affects the rights of parties not before the court.” Id.
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n.466 (2020) (explaining that “[t]he universal injunction against federal agency action” has a “long[ ] pedigree” which informs the APA’s directive that court’s “set aside” unlawful rules under 5 U.S.C. § 706(2)).
Nevertheless, the Government insists that the scope of any relief should be limited to the named Plaintiffs in this case, as a remedy affecting the rights of nonparties would be “grossly overbroad . . . and . . . interfere with other courts’ ability to decide similar issues or cases.” (ECF No. 65 at 27.) Jurists and scholars alike have cautioned that nationwide injunctions may impede the ‘percolation’ of legal issues through the court system, depriving higher courts of the benefit of additional voices and fact patterns. See, e.g., Dep’t of Homeland Sec. v. New York, No. 19A785, 2020 WL 413786, at *2 (S. Ct. Jan. 27, 2020) (Gorsuch, J., concurring in grant of stay); Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 418, 461 (2017). However, that concern is less pressing here, as Plaintiffs’ challenge “presents purely . . . narrow issue[s] of law” which are “not fact-dependent and will not vary from one locality to another.” See City of Chi. v. Sessions, 888 F.3d 272, 290–91 (7th Cir. 2018) (“There are some legal issues which benefit from consideration in multiple courts . . . . But a determination as to the plain meaning of a sentence in a statute is not such an issue.”).
Moreover, under the circumstances of this case, the only practicable method of providing Plaintiffs with the relief to which they are entitled is to vacate the August 2018 PM and permanently enjoin its application. See North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017) (reminding us that, in fashioning injunctive relief, courts must balance “what is necessary, what is fair, and what is workable”). First, the various individual, institutional, and
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associational Plaintiffs in this case are “dispersed throughout the United States.” Int’l Refugee Assistance Project, 857 F.3d at 605; (see ECF Nos. 16-1 through 16-7 (demonstrating that Plaintiffs and, where applicable, their members, reside throughout the country)). A geographically piecemeal injunction would therefore be insufficient to remedy their injuries. Second, an injunction which does not extend beyond the named Plaintiffs to reach similarly situated individuals could result in the uneven application of immigration policy. As the Fourth Circuit has explained, “nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’” Int’l Refugee Assistance Project, 857 F.3d at 605 (quoting Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015)); see also Regents of the Univ. of Cal., 908 F.3d at 511 (concluding that “[a]llowing uneven application of nationwide immigration policy flies in the face of” the “need for uniformity”). Finally, the Court cannot ignore the likelihood that the August 2018 PM, if left in effect, could alter the unlawfulpresence clocks for thousands, if not millions of nonimmigrant visa holders who are incapable of quickly bringing their individual cases and avoiding reentry bars. See generally Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1095 (2018) (extolling the utility of nationwide injunctions when obtaining class certification is prohibitively difficult); (ECF No. 57-1 at 17 (identifying nearly 1.5 million F, J, and M nonimmigrant visa holders who were “either expected to change status or depart the United States” in 2016 alone).
In sum, because the August 2018 PM was promulgated in violation of the APA’s notice-and-comment requirements, the Court will “hold it unlawful and set it aside”—not just for the named Plaintiffs, but for all those subject to its terms. Furthermore, because the
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unlawful-presence policy embodied in the August 2018 PM conflicts with clear statutory text, no amount of adherence to procedure can rectify the memorandum’s defects unless and until Congress amends the INA. Accordingly, the Court will vacate the August 2018 PM and permanently enjoin its application nationwide.
For the reasons stated herein, the Court enters the following: [Order to Follow]
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ORDER IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Partial Summary Judgment, (ECF No. 60), is GRANTED. The United States Citizenship and Immigration Services’ August 9, 2018 memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications. IT IS FURTHER ORDERED that the Government’s Motion for Summary Judgment, (ECF No. 62), is DENIED. A Judgment terminating this case will be filed contemporaneously with this Memorandum and Order. This, the 6th day of February 2020.
/s/Loretta C. Biggs United States District Judge
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