Attorney General James Sues Trump Administration for Reversal in Policy That Threatens to Deport International Students or Spread Coronavirus to College Students, Faculty, and Residents Across NY

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From the office of New York Attorney General Letitia James:

NEW YORK – New York Attorney General Letitia James today sued the Trump Administration for a sudden reversal in policy that threatens to deport more than a million international students at colleges and universities across New York and the rest of the nation if they do not register for in-person classes on campus this fall — a move aimed at coercing schools into offering in-person instruction at the risk of increasing the spread of the coronavirus disease 2019 (COVID-19) among students, faculty, and other community members across New York. In a lawsuit filed against the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), in addition to the agencies’ respective leaders — Acting Homeland Security Secretary Chad Wolf and Acting ICE Director Matthew Albencey — as well as a subsequent motion for a preliminary injunction and a temporary restraining order, Attorney General James argues that ICE, just one week ago, announced a major policy reversal affecting almost every college and university in New York, and thousands more across the country, and that this reversal in policy threatens public health, students’ educations, and New York’s larger economy.

“International students should never be used as political fodder to force colleges to reopen their doors, but the president’s inability to remove politics from public health decisions endangers us all,” said Attorney General James. “The diversity of our colleges and universities is what makes New York schools among the world’s most competitive and most sought after, but President Trump’s reversal in policy not only threatens these innocent students’ educational paths, but our state’s hard-hit economy and the public health of millions of New Yorkers. Schools should never have to choose between enrolling international students in in-person classes and maintaining public health, which is why we will use every legal tool at our disposal to stop the president.”

When COVID-19 first began to spread rapidly across New York and the rest of the nation in March, New York state and every other state in the nation issued states of emergency. Soon after New York’s declaration of a state of emergency, nearly every college and university in the state shuttered its doors. Most of New York’s postsecondary institutions devoted significant resources towards continuing the education of millions of students while safeguarding the public health by shifting to remote teaching and learning — implementing measures to keep school campuses safe and diverting limited financial resources to the COVID-19 response.

In mid-March, President Donald Trump also declared a national state of emergency and approved federal disaster declarations for all 50 states and almost all territories. On March 13, ICE — under the direction of DHS — recognized the near universal transition to remote learning in New York and across the country and issued a waiver to agency regulations that required noncitizens on F-1 and M-1 student visas to attend a majority of their classes in person. ICE’s directive was issued due to “the extraordinary nature of the COVID-19 emergency,” and was to remain in “effect for the duration of the emergency,” which continues today.

In the four months since COVID-19 began to spread widely across the nation, COVID-19 has fundamentally changed the national landscape. The United States went from a handful of reported COVID-19 cases to more than 3.3 million confirmed infections and more than 135,000 confirmed deaths as a direct result of the disease, including more than 401,000 confirmed infections in New York and just under 25,000 confirmed deaths in the state as a direct result of the disease. Despite infection numbers continuing to rise at astronomical rates across the country, last Monday, on July 6, 2020, ICE suddenly announced — without any notice — that it would rescind its March 13, 2020 waiver, thereby requiring all international students on F-1 and M-1 visas to either enroll in in-person classes for the fall 2020 semester or immediately depart the country, or not be allowed to regain entry if they are currently outside the United States. ICE is requiring schools to certify for each international student that their “program is not entirely online” and “that the student is not taking an entirely online course load for the fall 2020 semester.” Further, schools will be required to issue new I-20 forms (Certificate of Eligibility for Nonimmigrant Student Status) for millions of students in a matter of weeks, by August 4, 2020.

ICE’s reversal comes despite the fact that infections rates are exponentially higher as compared to when ICE initially issued its “emergency” student visa waiver in mid-March. In fact, just this past weekend, Florida set a record for the largest number of new reported cases in any state in a single day since the beginning of the pandemic with 15,299 reported cases in a single 24-hour period.

In today’s lawsuit and motion for a preliminary injunction and a temporary restraining order, Attorney General James seeks to immediately halt the Trump Administration from moving forward with a reversal of the March waiver, arguing that the new directive callously ignores and runs counter to prevailing public health guidelines calling for sustained social distancing and tailored re-opening plans of only the most essential activities. Additionally, Attorney General James contends that ICE’s rash and ill-informed decision to promote school re-openings not only endangers the public health, but also threatens the immigration status of the more than 100,000 international students who study in New York state each year (New York City has a higher number of international students than any other city in the nation, and New York state has the second highest number of international students from all states). Further, the directive would force schools to either immediately and haphazardly reconfigure their fall 2020 course offerings in a matter of days, or risk international students dis-enrollment. Implementing ICE’s directive will drain and divert New York’s limited educational resources, hinder the state’s effective administration and enforcement of its own COVID-19 policies, result in millions in lost tuition and revenue for the state’s economy, and jeopardize the health and safety of all New Yorkers — on and off campuses. Finally, forcing New York to open in-person classes means residents of other states — many with infection rates still spiking — would also return to New York and risk causing a resurgence here.

Attorney General James specifically argues that ICE’s reversal of its March policy is arbitrary and capricious, and was issued without observance to procedures required by law, in violation of the Administrative and Procedure Act.

This case is being handled by Special Counsel Morenike Fajana, Assistant Attorney General Daniela Nogueira, and Chief Counsel for Federal Initiatives Matthew Colangelo — all of the Executive Division; Deputy Solicitor General Steven Wu of the Division of Appeals and Opinions; Special Counsel Carolyn Fast of the Consumer Frauds and Protection Bureau; and Assistant Attorney General Joel Marrero and Deputy Bureau Chief Elena Goldstein — both of the Civil Rights Bureau. The Consumer Frauds and Protection Bureau is a part of the Division for Economic Justice. The Civil Rights Bureau is a part of the Division for Social Justice. The Division for Economic Justice, the Division for Social Justice, and the Executive Division are all overseen by First Deputy Attorney General Jennifer Levy.

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