Legal Watch: Thwarting Assaults on Immigration

By Nancy Long
Donald Trump's promised assault on immigration was critical to his election victory in 2016 and has been a central part of his administration’s agenda. Consider, for example, Trump’s decision to end the Deferred Action for Child- hood Arrivals (DACA) program and the decision by the Department of Homeland Security (DHS), recently withdrawn, to require the deportation of foreign students engaged entirely in online study at US colleges and universities.
DACA enjoys broad support among Americans. It shields from deportation nearly 800,000 young people who qualify to work legally in the United States, pursue higher education, and gain access to other benefits, such as health insurance and driver’s licenses. Trump’s initial move to end DACA in 2017 was blocked for more than two years by federal judges who found that the administration had failed to offer proper justification for ending the program. The AAUP (together with forty other educational associations) signed onto an American Council on Education (ACE) amicus brief in support of upholding DACA. The brief argued that ending DACA would irreparably harm students who are valued members of our campus communities. Further, ending the program would pull the rug out from under those who took great risks—taking out substantial loans to earn degrees and revealing their undocumented status—in seeking coverage under the program.
The US Supreme Court provided temporary relief to DACA recipients on June 18, 2020, when it ruled that the Trump administration acted improperly in terminating the DACA program without offering sufficient justification, and it sent the case back to the DHS. But DACA remains vulnerable. Recently, the DHS issued interim guidance that defies a federal court order that DACA be fully reinstated. Yet again, the new provisions reveal the Trump administration’s hostility toward immigrants: the guidance stipulates that no new initial requests for DACA should be accepted; that return-travel authorizations to the United States should be granted to current DACA beneficiaries only in exceptional circumstances; and that renewals of deferred action and the accompanying work authorization should be granted for only one-year, rather than two-year, periods.
Another threat to noncitizens targeted the visa status of international students. Typically, federal regulations prevent international students from taking more than one online class at a time. In March 2020, as colleges shifted their courses online in response to the pandemic, the government suspended enforcement of those regulations. On July 6, the government abruptly reversed course, declaring that continuing and new international students could not legally stay in the country if they were taking all their classes online. Universities and higher education groups pushed back strongly. At least twenty states and the District of Columbia and about two dozen universities, including Harvard and the Massachusetts Institute of Technology, filed lawsuits to block the policy change. Joining a second ACE amicus brief, the AAUP and more than seventy other educational associations again voiced objections to actions taken by the Trump administration. The brief emphasized the harm international students would face from this threat to their eligibility to study at American colleges and universities. Further, the brief argued, the directive violated fundamental concepts of fairness, was arbitrary and capricious, and did not comport with the tenets of administrative law.
Prior to a hearing on the Harvard/MIT lawsuit, the Trump administration rescinded the directive. The recision, however, left the fate of new international students unclear. US Immigration and Customs Enforcement recently issued guidance stating that new international students—unlike ones already here—will not be able to travel to the United States to take an entirely online course of study. The guidance says that students will not be penalized, however, if their institutions switch from in-person or hybrid to online instruction midterm in response to the pandemic. Higher education groups have objected to the inconsistency in treatment between new and continuing international students (who will be allowed to enroll in fully online study), but they are glad to see the allowance for a switch to remote instruction for new students.
After the Supreme Court issued its DACA decision, the administration indicated that it will renew its push to end the program. Yet as the number of lawsuits grew in response to the DHS directive, the Trump administration rescinded it. Political activism, litigation, and judicial intervention remain essential to the fight against the Trump administration’s assault on immigrant rights and the ability of immigrants to pursue higher education.
Nancy Long is associate counsel at the AAUP.