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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Defendants.

COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

online-only course of study for the fall 2020 semester.

2. Following the World Health Organization (“WHO”)’s designation of the

coronavirus disease 2019 (“COVID-19”) outbreak as a Public Health Emergency of International

Concern on January 30, 2020,

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our nation has gone to extraordinary lengths to combat the

COVID-19 epidemic and promote public health.

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Ctr. for Disease Control & Prevention, New ICD-10-CM code for the 2019 Novel Coronavirus (COVID-

19) (Apr. 1, 2020), https://www.cdc.gov/nchs/data/icd/Announcement-New-ICD-code-for-coronavirus-3-

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2020, the New York Governor Andrew Cuomo declared a state of emergency to address the

combat the virus in the United States. Proclamation 9994 of Mar. 13, 2020, Declaring a

National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 Fed.

distancing have proven to be integral components of coronavirus mitigation.

5. To that end, New York’s postsecondary institutions have devoted significant

resources towards continuing the education of millions of students while safeguarding the public

health, including by closing nearly every college and university as of late March 2020, shifting to

remote teaching and learning, implementing measures to keep school campuses safe, and

diverting limited financial resources to the COVID-19 response.

6. In recognition of the near universal transition to remote learning in New York and

across the country, on March 13, 2020, the United States Immigration and Customs Enforcement

(“ICE”), a sub-agency of the Department of Homeland Security, issued a waiver to agency

regulations that required noncitizens on F-1 and M-1 student visas to attend a majority of their

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emergency,” and was to remain in “effect for the duration of the emergency.”

in-person classes for the fall 2020 semester or immediately depart the country. Students on F-1

and M-1 visas currently outside of the United States are now barred from reentering if their

certify for each international student that their “program is not entirely online, that the student is

not taking an entirely online course load for the fall 2020 semester, and that the student is taking

the minimum number of online classes required to make normal progress in their degree

program,” and issue new Form I-20s for all of these students by August 4, 2020.

8. ICE’s rescission comes amid record-setting COVID-19 infection rates. As of July

13, 2020, over 3 million Americans have tested positive for coronavirus, and over 132,000 died

of COVID-19 and related illnesses.

coronavirus, and over 32,000 have died. These statistics – and the resulting devastation – are

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U.S. Immigration & Customs Enforcement, COVID-19: Guidance for SEVP Stakeholders (Mar. 13,

2020),

https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.13.20.pdf

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U.S. Immigration & Customs Enforcement, Broadcast Message: Coronavirus Disease 2019 (COVID-

19) and Potential Procedural Adaptations for F and M nonimmigrant students (Mar. 9, 2020),

https://www.ice.gov/doclib/sevis/pdf/bcm2003-01.pdf

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waiver in mid-March.

10. ICE’s rash and ill-informed decision to promote school re-openings not only

endangers the public health, but also threatens the immigration status of the over 100,000

York, its educational institutions, and its residents. The Directive’s true mandate – to increase

in-person instruction – runs counter to public health guidelines and expertise, and would demand

that schools either reconfigure their fall 2020 course offerings in a matter of days, or risk

international students dis-enrollment. Implementing ICE’s Directive will drain and divert New

of its own COVID-19 policies, result in millions in lost tuition and revenue, and jeopardize the

health and safety of all New Yorkers.

12. Defendants’ drastic and unreasonable departure from its prior COVID-19 student

visa policy violates the Administrative Procedure Act (“APA”) in several respects. First, the

Directive is arbitrary and capricious because it failed to consider the resulting harms to education

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their international students, relied.

with law under the APA, 5 U.S.C. § 706(2)(A); and (b) Defendants failed to observe procedures

required by law in issuing the Directive in violation of the APA, 5 U.S.C. § 706(2)(D).

15. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and

1391(e)(1). Defendants are United States agencies or officers sued in their official capacities.

The State of New York is a resident of this judicial district, and a substantial part of the events or

omissions giving rise to this Complaint occurred within the Southern District of New York.

16. Declaratory and injunctive relief is sought consistent with 5 U.S.C. §§ 705 and

706, and as authorized in 28 U.S.C. §§ 2201 and 2202.

17. The Plaintiff the State of New York, represented by and through its Attorney

General, is a sovereign state of the United States of America. The Attorney General is New

York State’s chief law enforcement officer and is authorized to pursue this action under N.Y.

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and enjoined.

of the country’s immigration laws.

20. Defendant Chad F. Wolf is the Acting Secretary of Homeland Security. He is

immigration laws. ICE issued the Directive, and ICE is responsible for enforcing federal

immigration law, including identifying, apprehending, detaining, and removing non-citizens.

22. Defendant Matthew T. Albence is the Acting Director of U.S. Immigration and

Customs Enforcement. He is sued in his official capacity.

23. On January 30, 2020, the World Health Organization designated the coronavirus

disease 2019 (“COVID-19”) outbreak as a Public Health Emergency of International Concern.

On March 11, the WHO declared COVID-19 a global pandemic.

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24. On March 7, 2020, the New York Governor Andrew Cuomo declared a state of

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State of New York (Mar. 7, 2020). And on March 13, 2020, the President declared a national

25. For many, the virus can cause severe and life-threatening respiratory illness

marked by fever, coughing, and difficulty breathing. See Centers for Disease Control &

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Coronavirus Disease 2019 (COVID-19) Situation Summary (internet) (last updated Jul. 11,

2020).

26. Public health experts have determined that COVID-19 is a respiratory disease,

and is most easily transmittable through close-contact inhalation. As such, public health experts

have strongly advised against indoor gatherings of any size.

27. The Centers for Disease Control (“CDC”) has identified factors that contribute to

COVID-19 acceleration and issued corresponding guidance.

Among other factors, “large

gatherings” and “crowding and high population density” are identified as COVID-19

transmission accelerants. The CDC recommends “restricting mass gatherings; global travel

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Ctr. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19) Frequently Asked

Questions (Updated Jul. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/faq.html

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Ctr. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), Cases in the U.S.

(Updated Jul. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html

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Ctr. for Disease Control & Prevention, Public Health Response to the Initiation and Spread of Pandemic

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(emphasis added) For “crowding and high population density,” the CDC recommends “stay-at-

government offices, and mandated the cancellation of public events across all industries to

reduce face-to-face interactions and the resulting risk of coronavirus transmission.

social distancing is not always feasible, remote learning is the most practicable way to minimize

the spread of coronavirus while providing continuous instruction.

30. As such, the majority of campuses in New York State have been closed since

March 2020, are engaged in remote teaching and learning, and are in the midst of developing

reopening plans for the fall 2020 semester.

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Id.

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Id.

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Jasmine C. Lee, Sarah Mervosh, Yuriria Avila, Barbara Harvey, and Alex Leeds Matthews, See How

All 50 State Are Reopening, N.Y. Times (and Closing Again) (Updated Jul. 11, 2020),

https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html

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Chas Danner, Matt Stied, and Adam K. Raymond, Everything We Do and Don’t Know About New

York’s Reopening, N.Y. Magazine (Updated Jul. 9, 2020),

https://nymag.com/intelligencer/2020/07/when-will-new-york-reopen-phases-and-full-plan-

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coronavirus infections. As of July 13, 2020, over 3 million Americans have tested positive for

A. ICE’s Initial Response to the COVID-19 Pandemic.

32. Under the Immigration and Nationality Act (“INA”), a person applying for an F-1

established college, university, seminary, conservatory, academic high school, elementary

school, or other academic institution.” 8 U.S.C. § 1101(a)(15)(f).

33. A person seeking an M-1 vocational nonimmigrant visa must also have “a

residence in a foreign country which he has no intention of abandoning [and] seeks to enter the

United States temporarily and solely for the purpose of pursing such a course of study” at an

“established, approved educational institution.” 8 U.S.C. § 1101(a)(15)(m).

34. Under the regulations implementing the INA’s F-1 and M-1 visa eligibility

requirements, a “full course of study” is twelve credit hours per academic term. Prior to ICE’s

March COVID-19 waiver, students on F-1 visas were allowed to enroll in online or remote

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Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (last visited July 7, 2020)

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html [https://perma.cc/25D3-

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U.S. Hits Another Record for New Coronavirus Cases, N.Y. Times, (Jul. 10, 2020),

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person and virtual learning. “Students attending schools offering a hybrid model—that is, a

entirely online, that the student is not taking an entirely online course load this semester, and that

the student is taking the minimum number of online classes required to make normal progress in

not required to register for classes until closer to the start of the semester.

56. The Directive and accompanying news release demonstrate Defendants’ disregard

for the well-being of students, faculty, staff, and surrounding communities by requiring students

to attend classes as a condition of maintaining their student visas.

57. The timing of ICE’s abrupt July 6 Directive also suggests that Defendants are

motivated by political calculations rather than sound education and public health policy. The

Directive is one of various recent efforts by the current administration to compel states to adhere

to the federal government’s reckless push to re-open schools amid a surging pandemic.

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Christina Wilkie, Trump Threatens to Cut Funding for Schools, Slams CDC Reporting Guidelines as

Too Tough and Expensive, CNBC (Jul. 8, 2020), https://www.cnbc.com/2020/07/08/coronavirus-trump-

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States Citizenship and Immigration Services, recently stated that the July 6 Directive was part of

59. The Directive’s coercive elements comes in various forms including a heightened-

risk of deportation on students with visas. The Directive states, “Nonimmigrant F-1…students

Border Protection permit these students to enter the United States.”

60. Moreover, the Directive orders that “[a]ctive students in the United States

enrolled in such programs must depart the country or take other measures, such as transferring to

a school with in-person instructions to remain in lawful status. If not, they may face immigration

consequences including, but not limited to, the initiation of removal proceedings.”

61. According to the Directive, the “U.S. Department of Homeland Security plans to

publish the procedures and responsibilities…in the near future as a Temporary Final Rule in the

procedures or responsibilities in the Federal Register.

62. Defendants’ Directive undermines public health by requiring schools to provide in-

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Directive, turn a blind eye to their partner agency’s own expert evidence regarding COVID-19

runs counter to the public health expert warnings of a second COVID-19 wave in the fall of 2020.

64. There are approximately more than 100,000 degree-seeking international students

enrolled in New York State colleges and universities. International students comprise 10% of all

college students in New York State.

65. The State, through SUNY, directly oversees public colleges and universities,

serving more than 700,000 students in two-year, four-year, and graduate programs. SUNY is the

nation’s largest comprehensive system of higher education. SUNY’s 64 campuses include

research universities, heath science centers, four-year State-operated institutions, two-year

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66. SUNY is the largest employer in New York State, employing over 90,000 people.

SUNY’s Research Foundation (“RF”) is the largest comprehensive university-connected research

67. Nearly 19,000 students on F-1 and M-1 student visas are enrolled or plan to enroll

at SUNY for the fall 2020 semester, and approximately 6,100 students on F-1 and M-1 student

enrollment. At the University of Buffalo (“UB”) campus, international students comprise 28% of

graduate enrollment.

68. SUNY’s international students come from 177 countries and contribute $656

million in tuition and fees, and millions more in housing and other costs each year. The tuition

for doctoral granting campuses). This means that each international student contributes more than

three times as much revenue to support SUNY’s operations as the average student. This added

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particular, SUNY risks losing revenue from the thousands of students who are currently living

70. F-1 and M-1 students who are unable to maintain their coursework for the fall 2020

semester will be denied the opportunity to participate in internship programs and work allowances

cutting edge research.

71. For example, SUNY employs more than 3,000 international students as research

graduate research positions on externally supported RF research projects, contributing

significantly to SUNY’s $1 billion dollar research enterprise. This work includes research related

technologies, informatics and data analytics, advanced materials, energy storage, early diagnosis

of Alzheimer’s disease, artificial intelligence, and other critically important topics.

72. The loss of these researchers, as well as other students assisting in research would

be a devastating setback not only to SUNY, but also to the surrounding communities, and the

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professional leaders in New York.

74. Over the last several months, New York’s public colleges and universities have

expended significant financial resources to develop safe educational protocols and reopening

Guidance.

75. Due to Defendants’ Directive, however, schools must suddenly reverse course and

of plans will strain the already limited resources at schools’ disposal.

76. The July 6 Directive creates a logistical and legal morass should schools attempt

directives require SUNY and other state institutions to operate in-person courses in accordance

with public health guidance, including recommendations that schools ensure that a distance of at

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already enrolled in fall 2020 courses would have significant difficulty changing their course

will also have to devote resources to counseling international students about in-person or hybrid

course offerings that are offered and that will enable students to continue to make normal progress

communities will face increased exposure to the coronavirus. Schools will also have to allocate

funds for increased frequency of classroom cleanings and for purchasing personal protective

equipment to distribute to students and faculty.

79. Further, because students, staff and faculty will likely rely on public transportation

and other congregant spaces to get to class, the coronavirus transmission risks will be heightened.

Schools in New York City face unique risks in this regard, due to the ridership volume of the New

York City subway.

80. At the same time, schools will have to comply with the new administrative

obligations required by the Directive, including the issuance of new Forms I-20 to their entire F-1

and M-1 student body by August 4, 2020. Last year, SUNY had 18,661 enrolled students who

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salary-related expenses alone. The Directive fails to adequately consider the full range of

81. Many international students who are currently outside the United States face

COVID-19 related travel restrictions that prevent them from returning stateside.

83. Many students who travel to their home countries will be putting their health at risk

by increasing their exposure to COVID-19 in transit. Some students, such as those from countries

disrupted by internal strife, civil war, and political insecurity, may even face the possibility of

serious bodily harm or even death due to volatile in-country conditions.

84. Students who manage to safely return home will likely attend classes in different

with varying degrees of technological and internet access will require significant resources from

New York’s educational institutions. Even institutions with the most advanced technology will

not be able to close the internet access and technology gaps present in some developing countries,

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student status will be subject to removal or barred from entering. In so doing, the Directive not

expensive travel amidst the pandemic, and risking spreading or contracting COVID-19 by

traveling to their home countries. If these students fail to self-deport within a certain period, they

86. Plaintiff incorporates by reference the allegations set forth in each of the preceding

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92. Defendants’ violation causes ongoing harm to Plaintiff and its residents.