Andreea Alexandru/AP Photo
Trump-era policies have already had a chilling effect on international students.
On July 6, Immigrations and Customs Enforcement announced stunning new guidelines for colleges and universities preparing to return to classes in the fall during the pandemic. ICE said that international students whose universities go all-online in the fall would not be able to remain in the United States.
Students whose universities returned to in-person instruction would be able to remain, and students whose universities went to a hybrid model of in-person and online classes could stay if they certified that their classes were not entirely online. But nonimmigrant F-1 and M-1 visa holders—international student visas—would be rescinded if those universities go online-only.
The announcement was immediately met with uproar. Students have told stories of returning to dangerous situations in their home countries and finding it impossible or too expensive to self-deport.
Within days, universities had announced possible workarounds, such as a required one-credit, in-person class for international students, or complying with the hybrid option. At Yale Law School, where the university has elected to go forward with a hybrid model, the new guidelines allow international students to keep their visas. But should the university shut down because of a coronavirus surge, the new guidelines could deport international students, explained Yale Law professor Cristina Rodríguez. “ICE has said that then they would have to leave, and that is more egregious because you already have your visa in hand,” she said.
“These rules in normal or even half-normal times can be worked around,” explained Michael Kagan, University of Nevada, Las Vegas, law professor and director of the UNLV Immigration Clinic. “The trouble is that the COVID situation is getting much, much worse as we head into summer toward the fall semesters.”
Beyond the workarounds, within 48 hours, Harvard and MIT announced a lawsuit against the Trump administration over the visas, contesting that the policy was both “arbitrary and capricious” and a violation of the Administrative Procedure Act. On July 9, the University of Michigan also announced that it would join the lawsuit. Fifty-nine other universities have already signaled their intentions to file amicus briefs. Seventeen states filed a similar lawsuit on Monday.
This litigation is likely to succeed, experts say, if recent history is any guide. The Administrative Procedure Act has repeatedly frustrated Trump policymaking. While no one disagrees that the administration can change its guidelines, under the APA, they must give a good legal reason for the change and allow for a public notice and comment period. That did not happen with the ICE announcement.
When the administration ended Deferred Action for Childhood Arrivals program, it failed to comply with the APA. Just a few weeks ago, the Supreme Court ruled against the government, arguing that it failed to comply with the APA.
“Many of [Trump’s] biggest defeats—including at the Supreme Court—have come because of the careless way in which they enact these laws,” said Louis Caldera, former president of the University of New Mexico and co-founder of the Presidents’ Alliance on Higher Education and Immigration.
The lawsuit will ask the court to recognize that the exception ICE made to its guidelines for international students—which allowed students to remain in the U.S. during the spring, when universities went online—created a situation where students and universities were relying on those guidelines staying the same. In fact, ICE said that the exceptions outlined in the spring were to last the duration of the emergency. Instead, they were revoked on a whim. With the announcement, ICE required schools to certify within a week whether they would be online-only and gave schools until August to complete thousands of pages of paperwork.
Harvard Graduate Students Union
Student workers from the Harvard Graduate Students Union, along with other UAW university unions, supporters and students, rally outside the State House against ICE’s new guidelines.
The DACA lawsuit, Rodríguez explained, emphasized that the Department of Homeland Security did not take into account the “reliance interests” that had been created during the program’s lifetime when it decided to end the discretionary program. Likewise, these ICE guidelines for international students similarly disregarded reliance interests in undoing another discretionary policy. Rodríguez said that the parallels to a case where the government lost at the Supreme Court “gives the [Harvard and MIT] lawsuit a boost.”
“They made the right choice in the spring and the wrong choice in the fall,” added Aaron Reichlin-Melnick, policy counsel at the American Immigration Council. “It’s not like they’ve been wrong from the start. Why they changed their mind is a big open question.”
FOLLOWING THE ANNOUNCEMENT, Acting Deputy Secretary of Homeland Security Ken Cuccinelli appeared on CNN and said that the guidelines were issued to encourage schools to reopen campuses. On Twitter, President Donald Trump tweeted that schools must reopen. Clearly foreign students were being used as pawns to encourage universities to comply with a full reopening.
But Reichlin-Melnick called the announcement “a twofer,” pushing policies on school reopening and immigration simultaneously. “It’s a policy that accomplishes the administration’s goals to reopen the country on the backs of immigrants,” he said.
As immigration experts have noted, over the past few months the Trump administration has accelerated efforts to close all doors on immigration. “It’s definitely the case that this administration has been much more suspicious of and hostile to foreign students and made it more difficult for certain kinds of foreign students to come to the U.S.,” Rodríguez said. For example, students from China who are affiliated with the military are not being issued visas. The administration has also tightened the rules around the Optional Professional Training program that allows international students who graduate from a U.S. university to remain in the U.S. and work for an additional 18 months. That goes along with attacks on Temporary Protected Status-holders, refugees, asylum seekers, and DREAMers, including an intention to try again to end Deferred Action for Childhood Arrivals again soon—despite its recent defeat at the Supreme Court.
Experts believe the administration is serving two goals with its litany of recent immigration policies. “One that always gets brought up by pundits every time [Trump] does something that makes life harder for a group of immigrants is that [Trump] is playing to his base,” said Michael Kagan of UNLV. “There’s another theory which is that the architects of his anti-immigration policies read the polls and think that the reality is we only have six months left.” Frank Sharry, executive director of America’s Voice, echoed this sentiment in a statement, saying, “It seems increasingly evident that Trump and Stephen Miller are burning it all down on their way out the door.”
Under Trump, Kagan said, the administration has deployed minute policy details as mechanisms to shut out immigrants—even while failing to pay attention to administrative law. His book, The Battle to Stay in America: Immigration’s Hidden Front Line, focuses on this part of the administration’s strategy, which is so technical it fails to break through public discourse the way “kids in cages” viscerally resonates. “Even people who would be outraged don’t understand it because immigration law can be so arcane,” Kagan said. “They have flooded the zone with technical changes that are difficult to explain to the public. That’s the kind of nefarious genius of it.”
This latest visa restriction, taking advantage of the pandemic, may ultimately fail because of the faulty administrative procedure. But even if the lawsuit blocks the administration’s wishes, the damage has already been done to a pillar of America’s global advantage: world-class universities that attract students from around the globe to study and often stay in the U.S. The fear, Reichlin-Melnick said, is that “international students will no longer feel secure coming here in the future and they’ll look to other countries.”
Trump-era policies have already had a chilling effect on international students, Caldera added. “Since the start of the Trump administration, there have been declining numbers of international student enrollment,” he said.
Henrique Carrusca, a student at the University of South Florida in Tampa, said that when the pandemic hit, he was forced to travel back to his home country of Brazil—where he’s now stuck. “I don’t know who will be able to see this message, but I ask for help in the name of all international students,” he said in a statement. “When I came to the U.S., I was filled with fears and insecurities, but also many dreams. I don’t know what I was expecting, but it definitely wasn’t this.”
