ICE Tells Judge It Is Rescinding Rule That Would Have Deported Foreign Students In Online Programs

On July 6th, U.S. Immigration and Customs Enforcement (ICE) announced that international students would have to leave the country if their universities switched to online-only courses. The move seemingly came out of nowhere. Harvard University and MIT quickly filed a federal lawsuit claiming that ICE violated the Administrative Procedure Act by acting in an “arbitrary and capricious” manner in imposing the new rules.

ICE pushed back, filing a brief with the court arguing that Harvard and MIT’s “request [for an injunction] subverts the deference afforded administrative agencies in complex and interrelated fields like immigration enforcement, which requires coordination between multiple federal agencies including the U.S. Department of State and several components within the U.S. Department of Homeland Security, including U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and ICE.”

But in court today, ICE reversed course and raised the white flag, announcing that it is rescinding the July 6th directive and returning to the status quo. Although the judge had earlier tipped her hand that she thought the universities challenging the directive had a strong case, the retreat by ICE came as a surprise. The July 6th directive was itself a sudden reversal of ICE’s March 13th statement that said that ICE was suspending limits on online education during the Covid-19 crisis.

The retreat by ICE was probably wise. It could have forced thousands of foreign students to leave the country and would have caused even more economic damages to colleges and universities. Because of the often chaotic nature of the Trump administration, the federal courts have repeatedly ruled that the administration violated the basics of rule-making that are required under the Administrative Procedure Act such as a public statement of reasons for the rule and an opportunity for public comment before the rule’s enactment. The new directive was flawed both substantively and procedurally. Good riddance.