Quick Decision Coming In Harvard, MIT Visa Restriction Suit

By Chris Villani
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Law360 (July 9, 2020, 11:50 AM EDT) -- A federal judge said Thursday she is looking to decide by July 15 whether student immigrants attending Harvard University and MIT can be denied entry into the U.S. if their colleges go fully online due to the COVID-19 pandemic.

During a hastily convened hearing one day after the Cambridge, Massachusetts-based schools filed suit over the new Trump administration policy, U.S. District Judge Allison D. Burroughs noted that the government created the need for a speedy timetable by imposing a July 15 deadline for colleges and universities to let U.S. Customs and Immigration Enforcement know what their pandemic plans are for the fall semester.

Arguing for Harvard and MIT, WilmerHale's Bill Lee said the new requirement has caused considerable havoc for schools and students since it was announced Monday.

"Quite honestly, your honor, we are getting flooded with inquiries and requests because of the policies being implemented at the borders," Lee said. He cited a Harvard rising sophomore from Belarus who was not allowed to board a U.S.-bound plane in Minsk on Wednesday due to the policy.

"There's going to be an awful lot of harm in the next six or seven days," Lee added, referring to both schools and their students.

Assistant U.S. Attorney Rayford Farquhar asked for more time to respond to the complaint. While Farquhar said he "appreciates the July 15 date being significant for the plaintiffs," he added that it would be difficult to coordinate a response with various government entities involved, including the U.S. Department of Homeland Security, ICE and the U.S. Department of Justice.

Farquhar also said not rushing would allow for the two sides to see whether they could work out a solution.

But Judge Burroughs made it clear that something needs to be done by July 15.

"I know this was not done at your pay grade but the time pressure on this has been created by the government," the judge said. "I would like to give you time to do a thoughtful response but I just don't see how nothing happens next week."

Judge Burroughs left the government with two choices: Either agree to a brief stay of the policy to allow time for a comprehensive response, or proceed directly to a preliminary injunction hearing early next week.

The case is due back in court Friday morning to formally decide how to proceed.

Other colleges have expressed their support for Harvard and MIT since the complaint was filed. The University of California announced Wednesday it plans to file a similar lawsuit, with school President Janet Napolitano, who served as secretary of Homeland Security under Barack Obama, calling the directive "mean-spirited, arbitrary and damaging to America."

Georgetown University President John DeGioia said his school "strongly opposes this reckless action."

"It creates new and unnecessary barriers for international students and puts their health, stability, and academic progress at risk if they are unable to participate in classes in-person," DeGioia said in a statement titled "support for our international students."

Princeton President Christopher L. Eisgruber said the ICE announcement is "policymaking at its worst: cruel, opaque, and arbitrary" and vowed that "Princeton will fight vigorously and work relentlessly to support our international students and to defeat this unjust and ill-considered policy."

Yale Dean Heather Gerken also released a statement opposing the policy.

The directive was revealed Monday just hours after Harvard announced it would limit on-campus living to 40% and hold all courses online, while MIT announced a hybrid model.

In their suit, the schools claim there is no basis for the sudden change. They say it is creating confusion for students trying to arrange travel to the U.S. during a pandemic and seems to be an effort by the administration to pressure schools into opening their physical doors in the fall.

Harvard and MIT are represented by Ari Holtzblatt, Paul R.Q. Wolfson, Seth P. Waxman, Felicia H. Ellsworth, Mark C. Fleming and William F. Lee of Wilmer Cutler Pickering Hale and Dorr LLP.

The government is represented by Rayford A. Farquhar of the U.S. Attorney's Office for the District of Massachusetts.

The case is President and Fellows of Harvard College et al. v. U.S. Department of Homeland Security et al., case number 1:20-cv-11283, in the U.S. District Court for the District of Massachusetts.

--Additional reporting by Suzanne Monyak. Editing by Alyssa Miller.

For a reprint of this article, please contact reprints@law360.com.

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