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Maryland joins multistate lawsuit against ICE rule affecting international students

Maryland Attorney General Brian Frosh joined other states in suing the Trump administration over a rule preventing foreign students from remaining in the country this fall if all of their courses are held online.

Frosh signed onto a multi-state lawsuit led by Massachusetts against the rule, which was announced by U.S. Immigration and Customs Enforcement last week.

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The suit, filed Monday in U.S. District Court for the District of Massachusetts, calls the ICE rule “senseless and cruel,” and argues it places a weighty burden on foreign students and the institutions they attend. It asks for a temporary restraining order against the rule, and calls for it to be overturned.

ICE issued the rule after schools spent months making plans for their fall semesters, which makes it uniquely burdensome, according to the suit.

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“Now, with insufficient notice, zero explanation, and severely depleted resources, colleges and universities are forced to readjust all of those plans to account for whether every single international student, in every single program, will have sufficient in person learning opportunities to maintain their visa status in the United States,” the suit reads.

In an interview with CNN, Acting Deputy Secretary of Homeland Security Ken Cuccinelli said the rule is more flexible than the long-standing ICE rules on online classes. He said the new rule was meant to “encourage schools to reopen.”

”We’re expanding the flexibility massively to a level never done before so that schools can use hybrid models,” he told CNN.

ICE declined to comment Monday, citing the pending litigation.

Several universities already sued ICE over the rule, including Baltimore’s Johns Hopkins University, a large draw for international students. Harvard University and the Massachusetts Institute of Technology were the first to file suit against ICE.

Frosh said Maryland’s case brings something new to the table.

“We have a story to tell that’s different from Harvard and different from MIT, and it’s the story of our public schools in Maryland,” Frosh said.

The University System of Maryland, which includes about a dozen state universities, has more than 5,000 foreign students with F-1 visas, a large percentage of whom attend the University of Maryland, College Park.

The system is preparing for a “hybrid” model, including online and in-person courses, this semester, but its students will be affected by the ICE rule nonetheless. At the University of Maryland, for instance, about 80% of classes are expected to be held online. Any class with more than 50 students will take place on the web.

The university has announced plans to help its international students find in-person classes to allow them to remain in the United States, but foreign students in the state say they remain fearful and uncertain. Maryland’s final class schedule, indicating which courses are online and which offer in-person instruction, won’t be released until later this week.

International students bring in $125 million a year to the University System of Maryland, Chancellor Jay Perman said Monday.

“I hear that we want to open the economy, and we’re driving those dollars away,” Perman said.

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Even though schools in university system currently plan to offer in-person instruction — and schools like Maryland are looking to make sure international students can access it — the bigger concern is that the schools may have to return to online instruction as a result of a surge in coronavirus cases, Perman said.

“We can plan on the one hand to make sure there’s some in-person offering,” Perman said. “But what if we have to revert, as we did in March, to distance learning? I think that international students who are not here at the present time, are going to think twice about coming.”

Frosh, who called the ICE rule “vindictive,” said the financial burden on universities is a large part of the suit, which includes 17 states and the District of Columbia. Not only do universities stand to lose millions in tuition dollars in the short-term should foreign students withdraw as a result of the rule, but the long-term consequences could be equally damaging, Frosh said.

“The burden on the university is not just that it will lose money, but it will lose the ability to recruit and retain the best students from around the world,” Frosh said.

The vagueness of the policy also is at issue, Frosh said. For example, the ICE rule requires foreign students attending “hybrid” schools like many in Maryland to certify that they are taking the “minimum” number of online courses in order to remain in the country on their F-1 visas.

“Nobody at the University of Maryland, Hopkins, St. Mary’s or anywhere can say ‘Don’t worry about it. If you take this course, or you take these three courses in person, you’re OK,’” Frosh said. “Nobody knows.”

The suit also rests on the argument that the Trump administration failed to follow the Administrative Procedures Act, which governs the rule-making proceedings for federal agencies, when it introduced the policy last week.

The suit argues that there was no public comment period prior to the announcement, during which universities could have spoken out against the rule. And, the announcement was a complete reversal of previous ICE policy. Back in March, in light of the coronavirus pandemic, the agency waived the requirement that international students could only take one online class per semester.

“Hundreds of thousands of people across the country, maybe even a million or more, and thousands of institutions, relied on that policy,” Frosh said. “And they said explicitly: ‘This is going to be through the balance of the pandemic.’ And all of a sudden, they flip back and say, never mind.”

“ICE offered no rationale for this abrupt reversal of the March 13 Guidance,” the suit reads. “It failed to consider the health and safety of our students, faculty, staff, and the untold other residents of our states with whom they interact.”

ICE also failed to consider the cost the rule would impose on universities, and that, for some international students, returning home to take courses online would be difficult or impossible, due to technology and other issues, the suit states.

The message that this rule sends to international students is clear, Frosh said: “Don’t count on the United States.”

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