A federal judge in Boston said on Friday that a challenge to new federal rules stripping visas from foreign students who planned to study entirely online in the fall was likely to succeed, but she put off any decision on whether to block the rules’ implementation until another hearing on Tuesday.
“My gut on it is that the big-ticket item here is going to be a likelihood of success on the merits,” Judge Allison D. Burroughs of the United States District Court for the district of Massachusetts said in a brief virtual court hearing.
Lawyers for Harvard and the Massachusetts Institute of Technology argued in court papers that the new rules from the Trump administration would cruelly and recklessly upend the lives of tens of thousands of international students and threaten public health.
The universities asked for an emergency order stopping the administration from imposing the new guidelines, which were issued Monday, after many if not most colleges and universities across the country issued reopening plans that had been months in the making. The new rules from Immigration and Customs Enforcement require students to take at least one in-person class for their F-1 student visas to remain valid.
William F. Lee, the lawyer for Harvard and M.I.T., told the judge that it was important to have a decision by Wednesday, because that’s when the government is requiring universities to certify that students are taking in-person classes to meet the visa requirements — “nine days after the change was announced,” the universities’ court papers note.
Judge Burroughs said that the government had not yet filed a response in the case. And she asked the lawyers to tell other parties who might be filing briefs in support of the universities to keep their arguments short and to the point. She did not need much instruction on the larger harm to society that could result from the Trump administration ruling, she said.
The universities noted in court papers that the national emergency that President Trump declared on March 13 for the pandemic was still in effect, with the number of coronavirus cases in the United States having passed three million this week.
The administration directive revoking student visas, the university lawyers argued, “has the hallmarks of a politically motivated maneuver” to force schools to reopen “without regard to the public health judgment of the schools and experts about whether that is safe for students, faculty and staff.”
Universities like Harvard and M.I.T. want to welcome students back to campus, the court papers said, but had determined that “it is not yet prudent to do so.” Harvard announced this week that its undergraduate courses would be given entirely online, although some students would be invited back to campus. M.I.T. has said that most of its courses would be taught online.
“Because higher education institutions do not exist in a vacuum, an outbreak at one poses a threat to the health and safety of everyone in the surrounding community,” the universities said in court papers.
Although the government has not yet responded in court, the White House press secretary, Kayleigh McEnany, defended the administration’s actions at a news conference earlier this week.
“You don’t get a visa for taking online classes from, let’s say, University of Phoenix. So why would you if you were just taking online classes, generally?” she told reporters, adding, “Perhaps the better lawsuit would be coming from students who have to pay full tuition with no access to in-person classes to attend.”
Some one million international students study in the United States each year. Immigrant advocates say that together with delays in processing visas as a result of the pandemic, the new visa rules, which must still be finalized this month, might discourage many overseas students from attending American universities, where they often pay full tuition.
Between them, Harvard and MIT have 9,000 international students, some of whom come from countries like Syria, “where civil war and an ongoing humanitarian crisis make internet access and study all but impossible,” the universities said in their request for a court order. Others come from Ethiopia, “where the government has a practice of suspending all internet access for extended periods, including presently.”
If the government’s order is enforced, the universities said, international students “must abandon housing arrangements they have made, breach leases, pay exorbitant airfares, and risk Covid-19 infection on transoceanic flights. And if their departure is not timely, they risk detention by immigration authorities and formal removal from the country that may bar their return to the United States for 10 years.”
The universities noted that the Trump administration was reversing an earlier emergency decision about international students, issued in March as the coronavirus outbreak forced the closure of campuses across the country. Then, ICE said students holding F-1 visas could attend remote classes while retaining their visa status, and made clear that this arrangement was “in effect for the duration of the emergency,” the universities said.
The Massachusetts attorney general said this week that she would support Harvard and M.I.T.’s efforts to overturn the government’s new rules, and other universities, immigrant advocate groups and state attorneys general also said they planned to get involved, either filing briefings in support of Harvard and M.I.T. or their own lawsuits.
Late Thursday, California sought its own preliminary injunction against the new policy from the U.S. District Court for Northern California. The state, home to the largest population of international students in the country, called the policy change “cruel” and “absurd” and said that the government had failed to follow the legal procedure for notice and comment required before implementing new rules.
About 185,000 international students are enrolled in California’s public and state universities.
“Shame on the Trump administration for risking not only the education opportunities for students who earned the chance to go to college, but now their health and well-being as well,” said the state’s attorney general, Xavier Becerra.
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