HomeMy WebLinkAboutHarvard_MIT v. DHS - As filed copy - Brief of 26 cities and counties
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE; and
MASSACHUSETTS INSTITUTE OF
TECHNOLOGY,
Plaintiffs,
v.
UNITED STATES DEPARTMENT
OF HOMELAND SECURITY, et al.,
Defendants.
Civil Action No. 1:20-cv-11283-ADB
Leave to File Granted on
July 13, 2020
BRIEF OF 26 CITIES, TOWNS, AND COUNTIES
AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION
Case 1:20-cv-11283-ADB Document 64 Filed 07/13/20 Page 1 of 18
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
STATEMENT OF INTEREST ...................................................................................... 1
INTRODUCTION .......................................................................................................... 4
ARGUMENT .................................................................................................................. 6
I. Plaintiffs Are Likely to Succeed on The Merits Because Defendants’ Directive
Does Not Consider Either The Harms That Would Be Imposed on Amici or
Amici’s Reliance Interests on The Existing Covid-19 Exemption. ........................... 6
A. Defendants’ action fails to acknowledge the impact of the directive on
public health, which is a core mission of local government. ................................. 6
B. Defendants’ action fails to acknowledge economic impacts to local
government at a time when municipal budgets are experiencing severe
shortfalls. ................................................................................................................ 9
CONCLUSION ............................................................................................................. 11
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TABLE OF AUTHORITIES
Cases
Dep’t of Homeland Sec. v. Regents of the Univ. of California,
140 S. Ct. 1891 (2020) .......................................................................................... 6, 11
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) ............................... 6
Michigan v. E.P.A., 135 S. Ct. 2699, 2706 (2015) ......................................................... 6
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) ................................................................................................ 6
Other Authorities
Blake Gumprecht, The American College Town,
Amherst: University of Massachusetts Press, 2008. ................................................ 4
John Bowden, Cuccinelli Says Rule Forcing International Students To Return
Home Will ‘Encourage Schools To Reopen,’ The Hill, July 7, 2020,
available at https://perma.cc/6AB7-379Q ............................................................ 3, 11
Lemuel Shattuck, Report of the Sanitary Commission of Massachusetts - 1850,
Cambridge: Harvard University Press; 1948 (Facsimile Reprint) ........................... 7
NAFSA, Economic Value Report for 2019, November 18, 2019,
available at https://perma.cc/H9P9-UBGQ ............................................................. 10
Rules
Immigration and Customs Enforcement, Broadcast Message: Coronavirus Disease
2019 (COVID-19) and Potential Procedural Adaptations for F and M
nonimmigrant students, March 9, 2020, available at
https://www.ice.gov/doclib/sevis/pdf/bcm2003-01.pdf ............................................... 5
Immigration and Customs Enforcement, COVID-19: Guidance for SEVP
Stakeholders, March 13, 2020, available at
https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20
Guidance_3.13.20.pdf ................................................................................................. 5
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STATEMENT OF INTEREST
The Cities of Los Angeles and Boston, together with the City of Albany, New
York; the City of Albuquerque, New Mexico; the City of Alexandria, Virginia; the
City of Austin, Texas; the City of Berkeley, California; the City of Cambridge,
Massachusetts; the County of Cameron, Texas; the City of Chicago, Illinois; the City
of Columbus, Ohio; Cook County, Illinois; the City Dayton, Ohio; the Town of
Durham, New Hampshire; the City of Hartford, Connecticut; the City of Iowa City,
Iowa; the City of Las Cruces, New Mexico; the City of New York, New York; the
City of Oakland, California; the City of Pittsburgh, Pennsylvania; the City of
Sacramento, California; the City of Saint Paul, Minnesota; the City of Seattle,
Washington; the County of Santa Clara, California; the City of Amherst,
Massachusetts; and the City of Somerville, Massachusetts respectfully submit this
brief, as amici curiae, in support of Plaintiffs’ Motion for a Preliminary Injunction.
Amici hail from across the country: from rural communities and suburban
areas to industrial cities and large, urban metropolises. Amici also represent a
cross-section of local jurisdictions with a spectrum of economic, political, and
cultural perspectives. And amici are home to colleges and universities of every form
and type, from large state colleges to private research institutions to local technical
schools.
This matter will have a direct and deep impact on amici and their
communities. First, amici care deeply about their foreign-born populations (some of
the largest in the country) and have a strong interest in protecting the rights and
well-being of all students and their families as they seek to complete their higher
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education in the United States. These interests are reflected in, for example, the
adoption of welcoming-city ordinances and policies, the provision of healthcare and
public health services to all, especially during the current pandemic, and the
provision of funds for immigration legal services.
Second, the international students enrolled in amici’s educational
institutions make significant economic contributions to amici’s communities. There
are more than 20,000 international students enrolled in colleges and universities
located in the City of Los Angeles for the fall. Between Boston, Cambridge,
Somerville, and surrounding suburban areas, there are tens of thousands more. All
of those students will be affected by the outcome of this matter, and all of them are
part of the economic engine fueling amici’s communities. For example, in New York
City, international students contribute more than $3 billion in economic value
annually. In Pittsburgh, one job is created for every two international students
enrolled in the city’s colleges and universities. And in Iowa City, the 2,500 resident
international students at the University of Iowa contribute millions of dollars to the
city’s economy annually.
Finally, in the current public health crisis, amici have a critical interest in
close public-health coordination and cooperation between local governments and
their colleges and universities—and in avoiding harmful federal interference in it.
The Department of Homeland Security (DHS) and Immigration and Customs
Enforcement’s (ICE) rash decision to rescind the COVID-19 exemption for
international students is likely to complicate and harm public health efforts in
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amici’s communities. It is likely to send students threatened with removal into the
shadows, where public health efforts will not reach them, in the midst of a
pandemic. It also threatens to force colleges and universities to choose between
rushing to open their campuses to protect their international students from
deportation and respecting the orders and guidance of amici’s public health officers
and the universities’ own judgment of what protects amici’s communities. Sadly,
such conflicts might just be Defendants’ goal. According to Department of Homeland
Security Acting Deputy Secretary Kenneth Cuccinelli, pursuing the reopening of
colleges and universities is the reason for the proposed rule.1 Damn the torpedoes,
in other words, full speed ahead.
Amici include some of the jurisdictions that have suffered the most in our
current public health emergency. The proposed rule only promises to make matters
worse. We respectfully offer this brief to highlight the interests that amici have in
the proposed rule and the significant impacts to local governments that DHS and
ICE have failed to consider.
1 John Bowden, Cuccinelli Says Rule Forcing International Students To Return
Home Will ‘Encourage Schools To Reopen,’ The Hill, July 7, 2020, available at
https://perma.cc/6AB7-379Q (“Bowden Article”).
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INTRODUCTION
College towns are an American phenomenon. No other country in the world
has so many municipalities so uniquely intertwined with one or more colleges and
universities. As Blake Gumprecht, journalist and former chair of the Department of
Geography at the University of New Hampshire in Durham, New Hampshire,
writes, college towns are “part of what makes life different in these United States,”
because they are “distinctive, memorable, lively, and ever-changing.”2
At their cores, local governments exist to provide for the health (e.g. public
health services during a pandemic) and welfare of their residents, business, and
institutions. As local governments with colleges and universities within our borders,
amici share a common interest in building “distinctive,” “memorable,” and “lively”
communities where all student and community members, regardless of citizenship
or nationality, are healthy, safe, and empowered to participate in civic life.
Amici also have a common interest in realizing the tangible cultural and
economic benefits that flow from colleges and universities to local governments. The
U.S. student visa system, managed in part by ICE’s Student and Exchange Visitor
Program (SEVP), directly benefits amici, by allowing international students to
attend the colleges, universities and trade technical schools in our communities.
The current public health crisis has forced most of amici’s colleges and
universities shut down their campuses and cancel on-site classes and teaching.
They have done so, in many instances, as a direct result of amici’s mandatory
2 Blake Gumprecht, The American College Town, Amherst: University of
Massachusetts Press, 2008.
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health orders requiring businesses to close and residents to isolate and socially
distance to reduce community spread of COVID-19.
On March 9, 2020, recognizing the extraordinary circumstances presented by
this public health crisis, ICE issued guidance concerning F-1 and M-1 student visas.
Specifically, ICE stated that international students studying in the U.S. could
maintain their visa status even if their schools transitioned to online learning.
Under the guidance, online classes would count toward fulfilling a student’s “full
course of study” despite the “limits” placed on online learning in 8 C.F.R §
214.2(f)(6)(i)(G) and 8 C.F.R. §214.2(m)(9)(v).3 Four days later, ICE reiterated the
guidance, noting that while this COVID-related safe harbor provision for online
classes was temporary, it would remain “in effect for the duration of the
emergency.”4
But only a few months later, as COVID-19 infections continued to climb, ICE
announced an unexpected and total reversal of this guidance—one that tears at the
fabric of our communities. The new directive, issued on July 6, 2020, undermines
our shared interest in empowering all residents to participate in our communities
and threatens the health and safety of our residents during a pandemic. But DHS
3 Immigration and Customs Enforcement, Broadcast Message: Coronavirus Disease
2019 (COVID-19) and Potential Procedural Adaptations for F and M nonimmigrant
students, March 9, 2020, available at https://www.ice.gov/doclib/sevis/pdf/bcm2003-
01.pdf.
4 Immigration and Customs Enforcement, COVID-19: Guidance for SEVP
Stakeholders, March 13, 2020, available at
https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20G
uidance_3.13.20.pdf.
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and ICE did not even acknowledge these harms in issuing the directive, much less
justify its action in light of them. As a result, this Court should grant Plaintiffs’
motion and enjoin the implementation of the ICE directive.
ARGUMENT
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS BECAUSE
DEFENDANTS’ DIRECTIVE DOES NOT CONSIDER EITHER THE HARMS THAT
WOULD BE IMPOSED ON AMICI OR AMICI’S RELIANCE INTERESTS ON THE
EXISTING COVID-19 EXEMPTION.
“Federal administrative agencies are required to engage in ‘reasoned
decisionmaking.’” Michigan v. E.P.A., 135 S. Ct. 2699, 2706 (2015) (citation
omitted); see also Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S.
Ct. 1891 (2020). An agency “must examine the relevant data and articulate a
satisfactory explanation for its action including a rational connection between the
facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
“In explaining its changed position, an agency must also be cognizant that
longstanding policies may have engendered serious reliance interests that must be
taken into account.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126
(2016); see also Regents, 140 S. Ct. 1891. Defendants’ explanation for the July 6,
2020 directive fails to meet these standards.
A. Defendants’ action fails to acknowledge the impact of the
directive on public health, which is a core mission of local
government.
The City of Cambridge, Massachusetts, home to both Plaintiffs, first formed a
health department in 1846. Four years later, across the Charles River, a Boston
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bookseller and demographic researcher named Lemuel Shattuck published a
statistical report calling for the organization and implementation of local public
health agencies that is considered to be the most groundbreaking document on
public health ever published.5 Nearly 175 years later, in the midst of the ongoing
COVID-19 pandemic, local public health departments, led by dedicated and devoted
public health officials, continue to form the front line in our nation’s response to
public health crises.6
Normal life has been upended during this pandemic. In many amici’s
jurisdictions, all but a few “essential” businesses, such as hospitals, grocery stores,
banks, and utility companies, were forced to close, at least until public health
guidelines for social distancing, cleaning, disinfecting, and quarantining could be
developed. Most schools, from pre-schools all the way up to graduate schools, closed
and transitioned, whenever possible, to remote learning. These orders were issued
because public health is paramount to amici.
Undoubtedly, amici are desperate to see colleges successfully reopen and life
return to normal. Many of the smaller college towns have experienced severe
population losses, coupled with dramatic reductions in economic spending. Many
college towns are experiencing wildly unanticipated impacts because of campus
5 Lemuel Shattuck, Report of the Sanitary Commission of Massachusetts - 1850,
Cambridge: Harvard University Press; 1948 (Facsimile Reprint).
6 See, e.g., MAHB, Duties of Local Boards of Health in Massachusetts, December
2015, available at: https://www.mahb.org/wp-content/uploads/2015/12/Duties-of-
BOH.pdf (providing an overview of the broad legal authority of local boards of
health in Massachusetts).
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closures. Amherst, Massachusetts, for example, was forced to raise sewer fees on
residents by 15 percent because of the decline in water usage revenues caused by a
lack of student population from three shuttered colleges and universities.
But despite these common themes, there are also significant local differences
among amici and their colleges and universities. Local conditions, including
population density, dominant industries, disease prevalence, and community
demographics, have a significant impact on the proper approach to public health.
Health officials at the local level are deeply enmeshed in decisions on whether and
how to reopen their communities; indeed, this process is largely driven by local
public health officials, who have the most direct insight into those local conditions.
As a result, no two responses to the COVID-19 pandemic are exactly the same, and
each health order has been carefully crafted and is continually updated by our local
health officials after consideration of the facts and circumstances as they exist on
the ground.
In contrast, ICE’s directive effectively sweeps away all of this careful work,
without even considering it. The proposed rule is exclusively and explicitly directed
to force reopening—whether or not that reopening is appropriate to protecting local
public health. By forcing the hand of the colleges and universities in our
communities and putting these schools to an impossible choice, DHS and ICE are
threatening to upset the careful balance between amici’s public and economic
health. This can, quite literally, cost residents their lives. What harm could be more
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irreparable? For these reasons, Amici strongly share Plaintiffs’ view that this is “a
policy that is as cruel as it is capricious.”7
B. Defendants’ action fails to acknowledge economic impacts to local
government at a time when municipal budgets are experiencing
severe shortfalls.
As noted above, nearly one million students, many of whom reside in amici’s
communities, rely upon the F-1 and M-1 visa programs. Students have structured
their education, employment, housing, and other life activities in reliance on ICE’s
guidance indicating that they can maintain their visa status during the state of
emergency. New first-year students, who had to decide where to matriculate during
a pandemic, have traveled across borders and over oceans to settle in amici’s
communities. In the case of new graduate students, some have even relocated their
families. In the time between ICE’s initial guidance and its about-face, students
paid tuition, bought books and school supplies, and signed or renewed leases. Each
of these decisions provides a tangible economic benefit to amici in the form of tax
revenue, economic investment, and job creation. This economic activity is critical to
many college towns around the country, including amici, who, as noted above, are
already suffering as a result of campus closures.
Aggregated on a national scale, economic estimates show that the 1 million
international students studying at colleges and universities in the U.S. contributed
$41 billion to the U.S. economy and supported 458,290 jobs during the 2018-2019
7 Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining
Order, ECF Dkt. No. 5 at *5 (July 8, 2020).
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academic year alone.8 Their dollars are spent in our communities, and the jobs that
result are filled by our residents. Forcing students to self-deport or face removal
threatens that economic prosperity. And this harm is compounded because amici
are already being forced to cut budgets and services in response to the ongoing
economic crisis.
Separately, amici’s public health officials have spent countless days,
incurring thousands of hours of overtime, drafting, reviewing, and producing
protocols for the safe operation and reopening of government agencies, schools, and
businesses. Many of these hours have been spent working closely with our local
colleges and universities, carefully assisting these institutions on how best to
manage the dual responsibilities of health and safety and maintenance of
operations. The time and expense incurred in this process may be unilaterally
undone by Defendants’ new directive.
Finally, the directive fails to consider the spending impact that a mass return
to campuses could have on amici. To date, amici have spent millions of dollars on
the rapid development of COVID-19 testing and contact tracing. And demand for
both, in many jurisdictions, still outstrips supply. Last Monday, the City of Los
Angeles considered placing limits on who could get tested for COVID-19, despite the
fact that the city increased capacity from 20,000 to 38,000 tests per day the same
week. Asking thousands of students to stop their learning from the safety of their
8 NAFSA, Economic Value Report for 2019, November 18, 2019, available at
https://perma.cc/H9P9-UBGQ.
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homes and come together on campus this fall will surely result in new cases being
transmitted because of a lack of social distancing. This will require increased
spending on testing and contact tracing, and on underlying health care services at
public hospitals systems, which are also run by some amici.
CONCLUSION
The stated rationale for ICE’s July 9, 2020 directive is to get colleges and
universities “to reopen”9 in the midst of spiking COVID-19 cases across the country.
But DHS and ICE have failed to provide any discussion, consideration, or
explanation about the harms that will flow from this directive and amici’s reliance
the agencies’ previous guidance that was supposed to govern “for the duration of the
emergency.” Such a failure, at a minimum, “raises doubts about whether the agency
appreciated the scope of its discretion or exercised that discretion in a reasonable
manner,” Regents, 140 S.Ct. 1891 at *49, and renders the decision arbitrary and
capricious in violation of the Administrative Procedure Act. Accordingly, this Court
should grant Plaintiffs Motion for a Preliminary Injunction.
9 Bowden Article, supra n. 1.
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Amicus Curiae, CITY OF LOS ANGELES,
Michael N. Feuer,
City Attorney
/s/ Michael J. Dundas
Michael J. Dundas, pro hac vice pending
Danielle Goldstein, pro hac vice pending
200 North Main Street,
City Hall East, Suite 800
Los Angeles, California, 90012
(213) 978-8130
Respectfully submitted,
Amicus Curiae, CITY OF BOSTON,
Eugene O’Flaherty,
Corporation Counsel
By his attorneys,
/s/ Adam Cederbaum
Adam Cederbaum, BBO No. 661549
adam.cederbaum@boston.gov
Sean Chen, BBO No. 678110
Sean.chen@boston.gov
One City Hall Square, Room 615
Boston, MA 02201
(617) 635-4034
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ADDITIONAL COUNSEL FOR AMICI CURIAE
William G. Kelly, Jr.
Corporation Counsel
24 Eagle Street
Albany, Ny 12207
Attorney for the City of Albany, New York
Esteban A. Aguilar, Jr.
City Attorney
P.O. Box 2248
Albuquerque, NM 87103
Attorney for the City of Albuquerque,
New Mexico
James L. Banks, Jr.
City Attorney
301 King Street
Alexandria, VA 22314
Attorney for the City of Alexandria, Virginia
Anne L. Morgan
City Attorney
PO Box 1546
Austin, TX 78767
Attorney for the City of Austin, Texas
Farimah F. Brown
City Attorney
2180 Milvia Street, 4th Floor
Berkeley, CA 94704
Attorney for the City of Berkeley, California
Nancy E. Glowa
City Solicitor
795 Massachusetts Avenue
Cambridge, MA 02139
Attorney for the City of Cambridge,
Massachusetts
Juan A. Gonzalez
Chief Counsel
1100 East Monroe Street
Brownsville, Texas 78520
Attorney for the County of Cameron, Texas
Mark A. Flessner
Corporation Counsel
30 N. LaSalle Street, Suite 800
Chicago, IL 60602
Attorney for the City of Chicago, Illinois
Zach Klein
City Attorney
77 N. Front Street, 4th Floor
Columbus, OH 43214
Attorney for the City of Columbus, Ohio
Jessica M. Scheller
Chief; Advice, Business &
Complex Litigation Division
69 W. Washington, 32nd Floor
Chicago, IL 60602
Attorney for Cook County, Illinois
Barbara J. Doseck
City Attorney
101 West Third Street
Dayton, OH 45401
Attorney for the City of Dayton, Ohio
Laura Spector-Morgan
Mitchell Municipal Group, PA
5 Beacon St. E #2
Laconia, NH 03246
Attorney for the Town of Durham,
New Hampshire
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Howard G. Rifkin
Corporation Counsel
550 Main St., Room 210
Hartford, CT 06103
Attorney for the City of Hartford, Connecticut
Eleanor M. Dilkes
City Attorney
410 East Washington Street
Iowa City, IA 52240
Attorney for the City of Iowa City, Iowa
Jennifer Vega-Brown
City Attorney
700 North Main
Las Cruces, NM 88001
Attorney for the City of Las Cruces, New Mexico
James E. Johnson
Corporation Counsel
100 Church Street
New York, NY 10007
Attorney for the City of New York, New York
Barbara J. Parker
City Attorney
One Frank H. Ogawa Plaza,
6th Floor
Oakland, CA 94612
Attorney for the City of Oakland, California
Yvonne S. Hilton
City Solicitor
City-County Building
414 Grant Street
Pittsburgh, PA 15217
Attorney for the City of Pittsburgh,
Pennsylvania
Susana Alcala Wood
City Attorney
915 I Street, Fourth Floor
Sacramento, CA. 95814
Attorney for the City of Sacramento, California
Lyndsey M. Olson
City Attorney
400 City Hall and Court House
15 West Kellogg Boulevard
Saint Paul, Minnesota 55102
Attorney for the City of Saint Paul, Minnesota
James R. Williams
County Counsel
70 W. Hedding St., East Wing, 9th Floor
San José, CA 95110
Attorney for the County of Santa Clara,
California
Peter S. Holmes
City Attorney
701 Fifth Avenue, Suite 2050
Seattle, WA 98104
Attorney for the City of Seattle, Washington
Francis X. Wright, Jr.
City Solicitor
93 Highland Avenue
Somerville, MA 02143
Attorney for the City of Somerville,
Massachusetts
Joel B. Bard
KP Law, P.C.
101 Arch Street
Boston, MA 02110
Attorney for the City of Amherst, Massachusetts
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CERTIFICATE OF SERVICE
I hereby certify that on this day, a copy of this document filed through the
CM/ECF system will be sent electronically to the registered participants as
identified on the Notice of Electronic Filing.
/s/ Adam Cederbaum
Adam Cederbaum
Date July 13, 2020
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