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U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:20-cv-01070-RSM

State of Washington v United States Department of Homeland Security et al Assigned to: Judge Ricardo S. Martinez Cause: 05:551 Administrative Procedure Act

Date Filed: 07/10/2020 Date Terminated: 10/06/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of Washington

represented by Lauryn K. Fraas ATTORNEY GENERAL'S OFFICE (SEATTLE) 800 FIFTH AVENUE STE 2000 SEATTLE, WA 98104 206-521-5811 Email: lauryn.fraas@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Spencer W Coates ATTORNEY GENERAL'S OFFICE (CRIM JUST-SEA) CRIMINAL JUSTICE DIVISION 800 FIFTH AVENUE, SUITE 2000 SEATTLE, WA 98104 206-287-4173 Email: spencer.coates@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristin Beneski ATTORNEY GENERAL'S OFFICE (SEAFIFTH AVE) 800 5TH AVE STE 2000 SEATTLE, WA 98104-3188 206-464-7459 Email: kristin.beneski@atg.wa.gov ATTORNEY TO BE NOTICED

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V. Defendant United States Department of Homeland Security
Defendant United States Immigration and Customs Enforcement
Defendant Chad Wolf Acting Secretary of the US Department of Homeland Security Defendant Matthew Albence Deputy Director of US Customs and Immigration Enforcement Amicus Sharon Sakamoto
Amicus Kabanda Obed
Amicus Fred T. Korematsu Center for Law and Equality

WAWD CM/ECF Version 1.3
represented by Kristin Berger Johnson US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101-1271 206-553-7970 Email: Kristin.B.Johnson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Kristin Berger Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Berger Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Berger Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Seungchul Chang RONALD A PETERSON LAW CLINIC SEATTLE UNIVERSITY SCHOOL OF LAW 1112 E COLUMBIA STREET SEATTLE, WA 98122 206-398-4025 Email: changro@seattleu.edu ATTORNEY TO BE NOTICED
represented by Robert Seungchul Chang (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Seungchul Chang (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/10/2020

# Docket Text
1 COMPLAINT against All Defendants, ﬁled by State of Washington. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(Fraas,

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Lauryn) (No Fee Required) Modiﬁed on 7/10/2020 FEE PAID AWAWDC6456692(CDA). (Entered: 07/10/2020)

07/13/2020

Judge Ricardo S. Martinez added. (RE) (Entered: 07/13/2020)

07/13/2020 07/13/2020 07/13/2020 07/14/2020 07/14/2020

2 Summons(es) Electronically Issued as to defendant(s) Matthew Albence, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad F Wolf. (Attachments: # 1 Summons-Homeland Security, # 2 Summons-Albence, # 3 Summons-Wolf)(RE) (Entered: 07/13/2020)
3 Emergency MOTION for Temporary Restraining Order , ﬁled by Plaintiff State of Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 7/13/2020, (Fraas, Lauryn) (Entered: 07/13/2020)
4 APPENDIX re 3 Emergency MOTION for Temporary Restraining Order Appendix of Declarations by Plaintiff State of Washington (Attachments: # 1 Declarations)(Fraas, Lauryn) (Entered: 07/13/2020)
5 NOTICE of Appearance by attorney Robert Seungchul Chang on behalf of Amicus Parties Sharon Sakamoto, Kabanda Obed, Fred T. Korematsu Center for Law and Equality. (Chang, Robert) (Entered: 07/14/2020)
6 MINUTE ORDER at the direction of Judge Ricardo S. Martinez: Telephonic Status Hearing set for 7/15/2020 at 01:00 PM (PDT) before Judge Ricardo S. Martinez. Conference dial-in: 888-251-2909; access code: 1307658#. Plaintiff's counsel directed to notify any party who has not yet appeared in this matter.(LC) (Entered: 07/14/2020)

07/14/2020

7 NOTICE of Appearance by attorney Kristin Berger Johnson on behalf of Defendants Matthew Albence, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad F Wolf. (Johnson, Kristin) (Entered: 07/14/2020)

07/14/2020

8 NOTICE of Intent to Oppose Plaintiff's Motion for Temporary Restraining Order ; ﬁled by Defendants Matthew Albence, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad F Wolf. (Johnson, Kristin) (Entered: 07/14/2020)

07/14/2020

9 NOTICE of Supplemental Authority by Plaintiff State of Washington (Fraas, Lauryn) (Entered: 07/14/2020)

07/15/2020

Reset Hearings: Due to conﬂict on the Court's calendar, the TIME of the Status Hearing on 7/15/2020 is moved to 02:15 PM before Judge Ricardo S. Martinez. The dial-in information remains the same as previously provided to the parties.(LC) (Entered: 07/15/2020)

07/15/2020
07/16/2020 07/17/2020

10 MINUTE ENTRY for proceedings held before Judge Ricardo S. Martinez- Dep Clerk: Laurie Cuaresma; Pla Counsel: Lauryn Fraas, Kristin Beneski, Spencer Coates; Def Counsel: Kristin Johnson; CR: Nickie Drury; Time of Hearing: 2:15 PM; Telephonic Status Hearing held on 7/15/2020. Defense counsel represents to the Court that the 7/6/2020 directive will be rescinded; the parties will submit a proposed stipulation and order for the Court's review and signature, at which time the pending motion for temporary restraining order will be dismissed as moot. Plaintiff shall advise the Court if an amended complaint will be ﬁled or if the instant case is to be terminated. (LC) (Entered: 07/15/2020)
11 STIPULATION AND PROPOSED ORDER by parties (Fraas, Lauryn) (Entered: 07/16/2020)
12 ORDER re 11 Parties' Stipulation. The State's 3 Motion for Temporary

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09/09/2020 09/14/2020
10/05/2020 10/06/2020

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Restraining Order is moot. Signed by Judge Ricardo S. Martinez.(LH) (Entered: 07/17/2020)
13 Joint Stipulated MOTION To Extend Deadline to Respond, ﬁled by Plaintiff State of Washington. (Attachments: # 1 Proposed Order) Noting Date 9/9/2020, (Fraas, Lauryn) (Entered: 09/09/2020)
14 ORDER granting the Parties' 13 Joint Motion to Extend Defendants' Deadline to Answer or Otherwise Respond to the Complaint. The State of Washington is directed to ﬁle a status report by no later than October 5, 2020, and the Defendants are directed to answer or otherwise respond to the Complaint by October 19, 2020. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 09/14/2020)
15 Joint Stipulated MOTION of Dismissal, ﬁled by Plaintiff State of Washington. (Attachments: # 1 Proposed Order) Noting Date 10/5/2020, (Fraas, Lauryn) (Entered: 10/05/2020)
16 ORDER granting Parties' 15 Joint Stipulated Motion of Dismissal. This case is hereby dismissed without prejudice. Signed by Judge Ricardo S. Martinez. (LH) (Entered: 10/06/2020)

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Description: Docket Report

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2:20-cv-01070RSM

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 </s> Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 1 of 31

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8 STATE OF WASHINGTON,

NO.

9

10

v.

Plaintiff,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

11 UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
12 IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in
13 his official capacity as Acting Secretary of the U.S. Department of Homeland
14 Security; and MATTHEW ALBENCE, in his official capacity as Acting
15 Director of U.S. Customs and Immigration Enforcement,
16
Defendants. 17

18

19

20

21

22

23

24

25

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 2 of 31

1

I. INTRODUCTION

2

1.

On July 6, 2020, the federal Defendants abruptly and without any legal basis

3 promulgated a cruel, arbitrary, and capricious rule that will bar hundreds of thousands of

4 international students from the United States this fall in the midst of their undergraduate and 5 graduate studies (the “July 6 Directive”).1 These students’ visas will be promptly revoked if their

6 schools continue with remote learning, forcing them to immediately leave the State of

7 Washington and return to their home countries in the midst of the COVID-19 pandemic to avoid

8 detention and deportation. For schools that will offer “hybrid” or on-campus instruction,

9 international students currently living abroad and attending classes remotely must return to the

10 United States to attend classes in person, regardless of any health conditions that put them at

11 higher risk from the virus. The directive recklessly jeopardizes the health and safety of all

12 university communities and surrounding areas in the State of Washington, and could also result

13 in this State’s loss of valuable COVID-19 vaccine and virus researchers, many of whom are F-1

14 visa holders. Defendants promulgated this illogical and illegal new directive in an apparent

15 attempt to enforce President Trump’s July 6 tweet that “SCHOOLS MUST OPEN IN THE 16 FALL!!!”2

17

2.

The July 6 Directive issued by Immigration and Customs Enforcement (ICE)

18 requires all students on F-1 and M-1 visas whose university curricula are entirely online to depart

19 the country, and bars any such students currently outside the United States from entering or

20 reentering the United States. The July 6 Directive likewise requires all students on F-1 and M-1

21 visas whose university or college is adopting an in-person or “hybrid” approach (i.e., limited

22 in-person and largely online classes) to return to the United States irrespective of whether it is

23 safe or feasible for them to do so and regardless of whether they have underlying health conditions

24

25

1 U.S. Immigration and Customs Enforcement, Broadcast Message: COVID-19 and Fall 2020, July 6, 2020, https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf (last visited July 10, 2020).

26

2 Donald Trump (@realDonaldTrump), Twitter (July 6, 2020, 11:40 AM PST), https://twitter.com/realDonaldTrump/status/1280209946085339136 (last visited July 10, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 3 of 31

1 placing them at greater risk for severe illness or death from COVID-19. The July 6 Directive also

2 requires every institution of higher education to decide, by Wednesday July 15, 2020—nine days

3 after its issuance—whether it would fully or partly resume in-person education, and to submit an

4 “operational change plan” if classes would be online-only. Schools adopting a “hybrid” system

5 of online and in-person instruction must, by August 4, 2020, certify for each and every F-1 and

6 M-1 visa student that the student is not taking an entirely online course load for fall 2020, and

7 that the student is taking “the minimum number of online classes required to make normal

8 progress in their degree program.” The July 6 Directive further warns that “[i]f a school changes

9 its operational stance mid-semester, and as a result a nonimmigrant student switches to only

10 online classes,” these students “must leave the country or take alternative steps to maintain their

11 nonimmigrant status such as transfer to a school with in-person instruction.” Finally, the July 6

12 Directive states that the “procedures and responsibilities” therein will be published “in the near

13 future as a Temporary Final Rule in the Federal Register.” But the Directive itself establishes

14 “procedures and responsibilities” with which schools and students “must” comply as early as

15 July 15, 2020.

16

3.

The July 6 Directive has thrown educational institutions’ planning for fall 2020—

17 which relied on the March 13 Exemption—into chaos. Defendants have given these institutions

18 an impossible choice: lose numerous F-1 and M-1 visa students who bring immense educational

19 and financial benefits to the school, or take steps to retain those students through in-person

20 classes, even where those steps contradict each school’s judgment about how best to protect the

21 health of the students, faculty, staff, and university communities as a whole. Schools must now

22 either move forward with their carefully calibrated, thoughtful, and difficult decisions to proceed

23 with their curricula fully or largely online in the fall of 2020—which, under ICE’s new

24 July 6 Directive, would undermine the education, safety, and future prospects of their

25 international students and their campus community—or attempt, with just weeks before classes

26 resume, to provide and/or increase in-person education despite the grave risk to public health and

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

2

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 4 of 31

1 safety that such a change might entail, and commit to retaining in-person education throughout

2 the academic year even amidst skyrocketing infection rates. And they must make this choice by

3 the arbitrarily early deadline of Wednesday, July 15, 2020, with only nine days’ notice, amidst

4 the ongoing and unpredictable COVID-19 pandemic.

5

4.

ICE’s July 6 Directive is an effort by the federal government to force universities

6 to reopen in-person classes, which would require housing students in densely packed residential

7 halls, notwithstanding the judgment of many colleges and universities that it is neither safe nor

8 educationally advisable to do so, and to force such a reopening when neither the students nor the

9 universities have sufficient time to react to or address the additional risks to the health and safety

10 of their communities. As Acting Deputy Secretary of Homeland Security Kenneth T. Cuccinelli

11 stated on July 7, 2020, the July 6 Directive “will . . . encourage schools to reopen.”3

12

5.

This rush to reopen ignores that the harsh reality that the COVID-19 pandemic is

13 still ongoing and that the State, its local heath districts, and its universities and colleges need

14 nimbleness as opposed to ham-fisted edicts. On March 13, 2020, President Trump declared a

15 national emergency concerning the COVID-19 pandemic. By that time, Washington Governor

16 Jay Inslee had already declared a state of emergency in Washington, which was an early epicenter

17 of the outbreak in the United States. COVID-19 has forced governments, businesses, and

18 organizations at all levels of society to implement unprecedented protocols to slow the

19 transmission of the virus and mitigate the still-rising death toll from the novel coronavirus.

20

6.

All Washington institutions of higher education have conducted classes remotely

21 since the onset of the pandemic, and have been working to develop plans for the 2020–2021

22 academic year that carefully balance the health and safety of faculty, students, and staff with the

23 institutions’ core mission of educating students. The ability to provide remote education during

24 the pandemic is of paramount importance to Washington institutions. COVID-19 is a highly

25

3 John Bowden, Cuccinelli says rule forcing international students to return home will ‘encourage schools

26

to reopen’, The Hill (July 7, 2020), https://thehill.com/homenews/administration/506248-cuccinelli-says-ruleforcing-international-students-to-return-home (last visited July 10, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

3

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 5 of 31

1 contagious disease that spreads from human to human in close contact situations. Medical

2 evidence and official governmental guidance indicate that indoor gatherings of any size are of

3 particular concern. Densely populated classrooms that are attended with on-campus instruction

4 have the potential to turn into “super-spreader” situations that endanger the health of not only the

5 college or university community, but also those in the surrounding areas and anyone else with

6 whom community members may come into contact.

7

7.

Until recently, ICE, a division of the U.S. Department of Homeland Security

8 (DHS), recognized educational institutions’ need to educate students remotely to protect public

9 safety during the COVID-19 pandemic, and accordingly issued an exemption from preexisting

10 requirements that holders of certain nonimmigrant student visas (F-1 and M-1 visas) must attend

11 most classes in person to maintain their visa status. On March 13, 2020, ICE issued guidance

12 indicating that F-1 and M-1 visa holders could attend classes remotely, and that this exemption

13 would be “in effect for the duration of the emergency” (the “March 13 Exemption”). But on

14 July 6, 2020, ICE abruptly, and without warning, reversed course and announced that it was

15 rescinding the March 13 Exemption.

16

8.

ICE’s July 6 Directive, and any “temporary final rule” that follows therefrom, are

17 arbitrary and capricious agency actions in violation of the Administrative Procedure Act (APA).

18 The July 6 Directive gives no indication that ICE even considered (i) the health of students,

19 faculty, university staff, or communities in formulating the new directive and the need for schools

20 to have flexibility in responding to the public health crisis; (ii) the reliance of both students and

21 universities on ICE’s statements that the preexisting exemptions would be “in effect for the

22 duration of the emergency” posed by the COVID-19 pandemic, which continues to this day; (iii)

23 the absence of other options for universities to provide their curricula to many of their

24 international students; or (iv) the broad and widespread effect the July 6 Directive would have on

25 hundreds of thousands of students and their families, including the expensive and in some cases

26 impossible task of moving countries in the midst of a global pandemic. Certainly, no

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

4

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 6 of 31

1 notice-and-comment period was provided. Accordingly, this unlawful, arbitrary, and procedurally

2 defective agency action must be enjoined and set aside.

3

II. JURISDICTION AND VENUE

4

9.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (action arising under the

5 laws of the United States), 28 U.S.C. § 1346 (United States as a defendant), and 5 U.S.C. §§ 701–

6 706 (judicial review of agency action under the Administrative Procedure Act (APA)). An actual

7 controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court

8 may grant declaratory relief, injunctive relief, and other relief pursuant to 28 U.S.C. §§ 2201–

9 2202 and 5 U.S.C. §§ 705–706.

10

10. Defendants’ issuance of the July 6 Directive constitutes a final agency action

11 because it is a definitive statement of the agency’s position, has a direct and immediate effect on

12 the State and its institutions of higher education, purports to have the status of law, imposes

13 mandatory requirements, and requires immediate compliance by July 15, 2020. It is, therefore,

14 judicially reviewable under the APA. 5 U.S.C. §§ 704, 706.

15

11. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(c) because Plaintiff

16 the State of Washington is located here, this action seeks relief against federal agencies and their

17 officials acting in their official capacities, and a substantial part of the events or omissions giving

18 rise to these claims occurred or will imminently occur here. In particular, implementation or

19 enforcement of the July 6 Directive or any “temporary final rule” that follows therefrom will have

20 an adverse impact on the State as a whole and institutions of higher education throughout the

21 State, including the University of Washington in Seattle.

22

III. PARTIES

23

12. Plaintiff the State of Washington is a sovereign state represented herein by its

24 Attorney General, who is the State’s chief legal adviser. The powers and duties of the Attorney

25 General include acting in federal court on matters of public concern to the State.

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

5

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 7 of 31

1

13. The State of Washington brings this action to redress harms to its sovereign and

2 quasi-sovereign interests, proprietary interests, and interests as parens patriae.

3

14. The State of Washington has a sovereign and quasi-sovereign interest in

4 protecting the health, safety, and well-being of its residents. Washington’s response to the

5 COVID-19 pandemic, including its implementation of social-distancing and other health and

6 safety requirements, is an exercise of its police power. The July 6 Directive and any “temporary

7 final rule” that follows therefrom infringe on Washington’s exercise of its police powers by

8 forcing State institutions of higher education to decide, within 9 days of the Directive’s issuance,

9 whether to fully or partly resume in-person instruction in fall 2020, leaving them unable to

10 adequately account for safety considerations and respond to changing circumstances amidst a

11 rapidly evolving and largely unpredictable pandemic.

12

15. The State of Washington, through its public institutions, including those of higher

13 education, is directly subject to the July 6 Directive and will suffer direct proprietary harm as a

14 result. Washington has six public baccalaureate colleges and universities: the University of

15 Washington, Washington State University, Central Washington University, Eastern Washington

16 University, Western Washington University, and The Evergreen State College. Washington also

17 has a system of 30 public community and technical college districts comprised of 34 separate

18 colleges, whose funding is coordinated by the Washington State Board for Community and

19 Technical Colleges. They are generally governed by the Community and Technical College Act

20 of 1991, Chapter 28B.50 Wash. Rev. Code. In addition, Washington is home to a number of

21 independent, private schools and colleges and a variety of other higher education institutions.

22 Each of these institutions is subject to the July 6 Directive and stands to suffer harm to its

23 educational mission and financial health.

24

16. In addition, the State of Washington has a general proprietary interest in

25 welcoming international students to the State to obtain higher-education degrees and education

26 from Washington public and private institutions. International students make valuable

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

6

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 8 of 31

1 contributions to their local communities and the State economy while they reside here. Many

2 graduates of Washington public and private institutions go on to build their lives and careers here,

3 where they contribute to the State economy as employers, workers, consumers, and taxpayers.

4

17. Defendant United States Department of Homeland Security (DHS) is a federal

5 agency of the United States.

6

18. Defendant Immigration and Customs Enforcement (ICE) is a division of the

7 United States Department of Homeland Security. The July 6 Directive was issued by the Student

8 and Exchange Visitor Program (SEVP), a division of ICE.

9

19. Defendant Chad F. Wolf is the Acting Secretary of the United States Department

10 of Homeland Security. He is sued in his official capacity.

11

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

12 Customs Enforcement. He is sued in his official capacity.

13

IV. FACTS

14 A. The COVID-19 Pandemic

15

21. The State of Washington is currently in the midst of the COVID-19 pandemic, a

16 global health crisis caused by a novel coronavirus. A novel coronavirus is a new coronavirus that

17 has not been previously identified.4

18

22. The numbers of confirmed cases and deaths from COVID-19 have grown

19 exponentially in the United States since January 2020, and are expected to continue to grow

20 exponentially over the coming months. All human beings share a risk of contracting and, upon

21 contraction, transmitting the virus that causes COVID-19. Any adult who contracts the virus may

22 experience life-threatening symptoms, lifelong health consequences, and death.

23

23. On January 30, 2020, the World Health Organization (WHO) declared the novel

24 coronavirus outbreak a Public Health Emergency of International Concern. On February 11, 2020,

25

4 State of Washington Office of the Governor, Proclamation by the Governor 20-05,

26

https://www.Governor.wa.gov/sites/default/files/proclamations/20-05%20Coronavirus%20%28final%29.pdf (last visited July 10, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

7

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 9 of 31

1 it announced an official name for the disease causing the 2019 outbreak, coronavirus disease

2 2019, abbreviated as COVID-19. (In COVID-19, ‘CO’ stands for ‘corona,’ ‘VI’ for ‘virus,’ and

3 ‘D’ for ‘disease.’ Formerly, this disease was referred to as “2019 novel coronavirus” or

4 “2019-nCoV.”).5

5

24. The virus that causes COVID-19 is easily transmitted. It is thought to spread

6 mainly from person to person. It is spreading very easily and sustainably between people.

7 Information from the ongoing COVID-19 pandemic indicates this virus spreads more efficiently

8 than influenza.6 The fatality rate of COVID-19 is higher than the fatality rate for the seasonal

9 influenza.

10

25. On January 21, 2020, the Washington State Department of Health confirmed what

11 was believed to be the first case of COVID-19 in the United States in Snohomish County,

12 Washington. The Centers for Disease Control and Prevention (CDC) then confirmed as the first-

13 known U.S. case a diagnosis of a 35-year-old man living in Snohomish County, Washington.7

14 The State of Washington made the first announcement of a death from the disease in the U.S. on

15 February 29, 2020 and later announced that the two deaths on February 26, 2020 were also due

16 to COVID-19.

17

26. On February 29, 2020, Washington Governor Jay Inslee declared a state of

18 emergency in all counties in Washington. In Proclamation 20-05, Governor Inslee stated that the

19 CDC had identified the potential public health threat posed by COVID-19 both globally and in

20 the United States as “high.” Governor Inslee found that the Washington State Department of

21

22

5 The World Health Organization, WHO Director-General's statement on IHR Emergency Committee on

Novel Coronavirus (2019-nCoV) (January 30, 2020), https://www.who.int/dg/speeches/detail/who-director-

23 general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov) (last visited July 10, 2020).
6 The Centers for Disease Control, How Covid Spreads (updated on June 16, 2020),

24 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited July 10,
2020).

25

7 It was later determined that a woman in California died on February 6 from COVID-19, meaning she likely contracted it in early to mid-January. CNN, Jason Hanna, et al., 2 Californians died of coronavirus weeks

26

before previously known 1st US death (Apr. 22, 2020), https://www.cnn.com/2020/04/22/us/california-deathsearliest-in-us/index.html (last visited July 10, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

8

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 10 of 31

1 Health had confirmed localized person-to-person spread of COVID-19 in Washington State,

2 which “significantly increase[ed] the risk of exposure and infection to Washington State’s general

3 public and creat[ed] an extreme public health risk that may spread quickly[.]”8

4

27. On March 12, 2020, Governor Inslee announced closures for all public and

5 private K-12 schools in King, Snohomish, and Pierce Counties beginning from March 17 through

6 at least April 24.9 Later, on March 13, Governor Inslee announced K-12 closures until at least

7 April 24 throughout the state.10 On April 6, 2020, Governor Inslee announced that the school

8 closure would encompass the rest of the school year statewide.11

9

28. The two largest state universities, University of Washington (UW) and

10 Washington State University (WSU) curtailed on-campus classes during the pandemic. UW

11 announced its closure on March 6; and on March 11, WSU announced the closure would begin

12 after its spring break, on March 23. All Washington institutions of higher education swiftly

13 implemented remote operations for the remainder of spring 2020.

14

29. On March 13, 2020, President Donald J. Trump declared a national emergency in

15 response to the COVID-19 pandemic.12

16

30. New information regarding the novel coronavirus that causes COVID-19 is

17 released daily by public health authorities, including national and international authorities and the

18

19

8 State of Washington Office of the Governor, Proclamation by the Governor 20-05,

https://www.Governor.wa.gov/sites/default/files/proclamations/20-05%20Coronavirus%20%28final%29.pdf

20 (last visited July 10, 2020).

9 State of Washington Office of the Governor, Proclamation by the Governor 20-08,

21 https://www.governor.wa.gov/sites/default/files/proclamations/20-08%20Coronavirus%20%28tmp%29.pdf

(last visited July 10, 2020).

22

10 State of Washington Office of the Governor, Proclamation by the Governor 20-09,

https://www.governor.wa.gov/sites/default/files/proclamations/20-09%20Coronavirus%20Schools%20Amendme

23 nt%20%28tmp%29.pdf (last visited July 10, 2020).
11 State of Washington Office of the Governor, Proclamation by the Governor 20-09.1,

24 https://www.governor.wa.gov/sites/default/files/proclamations/20-09.1%20-%20COVID-
19%20School%20Closure%20Extension%20%28tmp%29.pdf (last visited July 10, 2020).

25

12 Proclamation on Declaring National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-

26

declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last visited July 10, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

9

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 11 of 31

1 Washington State Department of Health. People who experience serious cases of COVID-19 and

2 do not die face the prospect of prolonged recovery, including the need for extensive rehabilitation

3 for profound reconditioning, loss of digits, permanent neurologic damage, and the irreversible

4 loss of respiratory capacity.

5

31. People can also carry and spread the novel coronavirus but be asymptomatic or

6 pre-symptomatic, making testing or seclusion of only those who are symptomatic an ineffective

7 solution.13

8

32. There is no vaccine against COVID-19, nor is there any known medication to

9 prevent infection. The most effective measures to reduce the risk are to attempt to prevent

10 vulnerable populations from being infected in the first place, and to limit community spread.

11 Physical distancing, or remaining physically separated from known or potentially infected

12 individuals, and vigilant sanitation and hygiene, are the most effective measures for protecting

13 people from contracting the novel coronavirus.

14

33. Evidence indicates that the most likely means of transmission of the coronavirus

15 that causes COVID-19 is through close human-to-human contact, especially indoors. This

16 presents a particular risk for university campuses. Crowded classrooms, dining facilities, and

17 dormitories are commonplace features of ordinary campus life and could lead to large-scale

18 outbreaks of COVID-19 until the pandemic subsides.

19

34. As of July 10, 2020, over 3.1 million individuals have become infected in the

20 United States, and nearly 133,000 have died.14 The University of Washington’s Institute for

21 Health Metrics and Evaluation recently projected that between 157,216 to 244,540 people in the

22 United State could die by November 1, 2020.15

23

13 The Centers for Disease Control, How Covid Spreads (updated on June 16, 2020),

24

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited July 10, 2020).

25

14 Coronavirus Disease 2019 (COVID-19), Centers for Disease Control and Prevention, https://tinyurl.com/CDCcovidcases (last visited July 10, 2020).

26

15 Institute for Health Metrics and Evaluation at the University of Washington, COVID-19 Projections, https://tinyurl.com/IHMEprojections (last updated July 7, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

10

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 12 of 31

1

35. Efforts to contain the spread of this highly contagious disease have included broad

2 shutdowns of society. On March 16, 2020, the CDC and members of the national Coronavirus

3 Task Force issued guidance advising individuals to adopt far-reaching physical distancing

4 measures, such as working from home, avoiding shopping trips and gatherings of more than

5 10 people, and staying away from bars, restaurants, and food courts.

6

36. Washington has continually taken steps to protect the health and safety of its

7 residents from human-to-human and surface-to-human spread of COVID-19. Washington

8 Governor Jay Inslee has issued a number of executive orders suspending or severely curtailing

9 operations of non-essential businesses, schools, and other locations where individuals congregate,

10 and putting other social-distancing measures in place. Governor Inslee has revisited, amended,

11 and revised many of these orders in response to changing circumstances and the best available

12 data and evidence as the situation has evolved.

13

37. Notwithstanding these mitigation measures, COVID-19 cases continue to rise

14 nationwide. As of the filing of this complaint, the number of new confirmed cases in Washington

15 is at an all-time high. Since the onset of the pandemic, there have been over 38,000 confirmed

16 cases in Washington, over 4,600 hospitalizations, and over 1,400 deaths (a death rate of 3.7%).16

17 Washington’s current guidance provides that it is safest for all Washington residents to stay home

18 as much as possible and maintain social distancing in public, and reflects a particular concern

19 with indoor gatherings. Moreover, states that have relaxed physical distancing measures,

20 including by allowing indoor gatherings and the opening of locations where individuals

21 congregate—such as Texas, Arizona, and Florida—are now seeing renewed surges and record-

22 setting numbers of COVID-19 cases, hospitalizations, and deaths.

23

24

25

16

Washington

Department

of

Health,

COVID-19

Data

Dashboard,

26

https://www.doh.wa.gov/Emergencies/NovelCoronavirusOutbreak2020COVID19/DataDashboard (last updated July 8, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

11

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 13 of 31

1 B. ICE’s Initial Response to the Pandemic

2

38. International students may attend American universities on nonimmigrant F-1 or

3 M-1 visas. The F-1 visa is designed for students who will be attending an academic program or

4 full-time degree program at a university, school, or college which is approved by U.S.

5 Immigration and Customs Enforcement. F-1 visas can also be obtained in some circumstances for

6 secondary school and K-12 private school. The M-1 visa is used for vocational and nonacademic

7 courses of studies.

8

39. Eligibility to maintain F-1 or M-1 status is governed by 8 C.F.R. § 214.2.

9

40. Students on F-1 or M-1 visas must pursue a “full course of study” during their

10 stay in the United States. 8 C.F.R. §§ 214.2(f)(5)(i); (m)(3).

11

41. These regulations define the extent to which online courses may count toward the

12 full course of study requirement. 8 C.F.R. § 214.2(f)(6)(i)(G) provides: “For F-1 students enrolled

13 in classes for credit or classroom hours, no more than the equivalent of one class or three credits

14 per session, term, semester, trimester, or quarter may be counted toward the full course of study

15 requirement if the class is taken on-line or through distance education and does not require the

16 student’s physical attendance for classes, examination or other purposes integral to completion of

17 the class. An on-line or distance education course is a course that is offered principally through

18 the use of television, audio, or computer transmission including open broadcast, closed circuit,

19 cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s

20 course of study is in a language study program, no on-line or distance education classes may be

21 considered to count toward a student’s full course of study requirement.”

22

42. For M-1 students, 8 C.F.R. § 214.2(m)(9)(v) provides: “No on-line or distance

23 education classes may be considered to count toward an M–1 student's full course of study

24 requirement if such classes do not require the student's physical attendance for classes,

25 examination or other purposes integral to completion of the class. An on-line or distance

26 education course is a course that is offered principally through the use of television, audio, or

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

12

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 14 of 31

1 computer transmission including open broadcast, closed circuit, cable, microwave, or satellite,

2 audio conferencing, or computer conferencing.”

3

43. On March 13, 2020, SEVP, in recognition of the extraordinary circumstances

4 posed by the COVID-19 pandemic and in response to “inquiries concerning the proper status” of

5 international students in the United States on academic visas “who may have [to] face slightly

6 different scenarios related to emergency procedures implemented by SEVP-certified learning

7 institutions,” issued guidance concerning F-1 students’ ability to maintain their visa status (the

8 “March 13 Exemption”).17

9

44. As relevant here, the March 13 Exemption addressed students attending a school

10 that “temporarily stops in-person classes but implements online or alternate learning procedures.”

11 The March 13 Exemption directed students to “participate in online or other alternate learning

12 procedures and remain in active status” with SEVP. Accordingly, students could participate in

13 remote learning implemented as a result of the pandemic—either in the United States or

14 abroad—while retaining their visa status.

15

45. The March 13 Exemption indicated that it was a “temporary provision” that

16 would remain “in effect for the duration of the emergency.” (Emphasis added). SEVP also noted

17 that the situation was “fluid” and “difficult” and that “SEVP will continue to monitor the

18 COVID-19 situation and will adjust its guidance as needed.” (Emphasis added).

19

46. The President’s national emergency declaration has not been rescinded or

20 terminated. An emergency in fact continues to persist, as daily COVID-19 cases in the

21 United States have never significantly decreased and have recently begun spiking in several

22 regions, including in the State of Washington.

23

47. Notwithstanding the March 13 Exemption’s statement that it would remain “in

24 effect for the duration of the emergency,” on June 4, 2020, SEVP issued a “Frequently Asked

25

17 U.S. Customs and Border Protection, COVID-19: Guidance for SEVP Stakeholders, March 13, 2020,

26

https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.13.20.pdf visited July 10, 2020).

(last

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 15 of 31

1 Questions” document asserting that “SEVP has not issued guidance to international students and

2 schools for the fall semester.”18

3 C. Without Warning, ICE Announces That It Will End the COVID-19 Exemptions

4

48. On July 6, 2020, without employing notice and comment rulemaking, or even

5 giving students or universities any indication that it was considering revising its policy, SEVP

6 issued a document (the “July 6 Directive”), attached as Exhibit 1,19 which an accompanying

7 “News Release” described as announcing “modifications . . . to temporary exemptions for

8 nonimmigrant students taking online classes due to the pandemic for the fall 2020 semester.”20

9

49. The July 6 Directive provided that: “nonimmigrant F or M students “attending

10 schools operating entirely online may not take a full online course load and remain in the United

11 States. The U.S. Department of State will not issue visas to students enrolled in schools and/or

12 programs that are fully online for the fall semester nor will U.S. Customs and Border Protection

13 permit these students to enter the United States.” (Emphasis in original).

14

50. Moreover, the July 6 Directive ordered that “[a]ctive students currently in the

15 United States enrolled in such programs must depart the country or take other measures, such as

16 transferring to a school with in-person instruction to remain in lawful status. If not, they may face

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

18

51. The July 6 Directive indicated that the “U.S. Department of Homeland Security

19 plans to publish the procedures and responsibilities . . . in the near future as a Temporary Final

20 Rule in the Federal Register.” As of the filing of this Complaint, no procedures or responsibilities

21 have been published in the Federal Register.

22

23

18 U.S. Customs and Border Protection, COVID-19: Guidance for SEVP Stakeholders, updated June 4, 2020,

https://web.archive.org/web/20200605003435/https://www.ice.gov/doclib/coronavirus/covid19faq.pdf (last visited

24

July 10, 2020). 19 U.S. Immigration and Customs Enforcement, Broadcast Message: COVID-19 and Fall 2020, July 6,

25

2020, https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf (last visited July 10, 2020). 20 U.S. Customs and Border Protection, SEVP modifies temporary exemptions for nonimmigrant students

26

taking online courses during fall 2020 semester, July 6, 2020, https://www.ice.gov/news/releases/sevp-modifiestemporary-exemptions-nonimmigrant-students-taking-online-courses-during (last visited July 10, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

14

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 16 of 31

1

52. The July 6 Directive further directed that “[s]chools that offer entirely online

2 classes or programs or will not reopen for the fall 2020 semester must complete an operational

3 change plan and submit it to” SEVP “no later than Wednesday, July 15, 2020.” (Emphasis in

4 original).

5

53. Moreover, the July 6 Directive stated “[s]tudents attending schools offering a

6 hybrid model—that is, a mixture of online and in person classes—will be allowed to take more

7 than one class or three credit hours online,” provided that for each such student, the school

8 “certif[ies] to SEVP, through the Form I-20, ‘Certificate of Eligibility for Nonimmigrant Student

9 Status,’ that the program is not entirely online, that the student is not taking an entirely online

10 course load this semester, and that the student is taking the minimum number of online classes

11 required to make normal progress in their degree program.” Compliance with this requirement

12 would require the institution to issue a new Form I-20 for each of its potentially thousands of

13 students on F-1 visas and to do so within 21 business days of the July 6 Directive. Doing so is not

14 only unduly burdensome, but, in many cases, impossible because students are generally not

15 required to register for particular classes until closer to the start of the semester.

16

54. The July 6 Directive further warns that “[i]f a school changes its operational

17 stance mid-semester”—for instance, in response to a dangerous, local surge of COVID-19

18 cases—“and as a result a nonimmigrant student switches to only online classes,” these students

19 “must leave the country or take alternative steps to maintain their nonimmigrant status such as

20 transfer to a school with in-person instruction.”

21

55. Neither the July 6 Directive nor its accompanying “News Release” or updated

22 “Frequently Asked Questions”21 document indicates any consideration of the multitude of factors

23 relevant and important to ICE’s decision to force students holding F-1 or M-1 visas to attend

24 classes in person as a condition of maintaining their visa status—including when their school has

25

21 U.S. Immigration and Customs Enforcement, Frequently Asked Questions for SEVP Stakeholders about

26

Guidance for the Fall 2020 Semester, https://www.ice.gov/doclib/sevis/pdf/sevisFall2020_FAQ.pdf (last updated July 7, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

15

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 17 of 31

1 decided to provide classes online only in order to safeguard the health of students, faculty, staff,

2 and the surrounding community.

3

56. ICE’s Directive reveals no consideration of its action’s impact on the health of

4 students, faculty, staff, or the surrounding communities.

5

57. Further, ICE’s Directive does not account for the reality that the COVID-19

6 pandemic continues to this day, and that record daily numbers of infections are being reported in

7 the United States.

8

58. ICE’s action also did not account for the reliance of both students and educational

9 institutions on ICE’s statements in the March 13 Exemption that the exemptions it announced

10 were due to the COVID-19 pandemic and would be “in effect for the duration of the emergency.”

11

59. In fact, the July 6 Directive describes the exemptions given in the March 13

12 Exemption as allowances made “during the height of the Coronavirus Disease (COVID-19)

13 crisis”—entirely disregarding the fact that the present rate of documented cases of infection across

14 the country exceeds those of mid-March by a considerable amount. And that rate continues to

15 climb, including in Washington.

16

60. The agency also did not consider the absence of other options by which

17 universities and other educational institutions affected by the COVID-19 pandemic and concerned

18 for their students’ health and welfare (particularly those students who have underlying health

19 conditions placing them at greater risk for a potentially deadly response to a COVID-19 infection)

20 might provide their curricula to F-1 and M-1 students.

21 D. 22

The July 6 Directive’s Impact on Washington, Its Educational Institutions, and Their Students

23

61. According to the Institute of International Education, Washington ranks 11th in

24 the nation for the number of international students who study here. For the 2018–2019 academic

25 year (the most recent year for which data is available), there were 27,472 international students

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

16

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 18 of 31

1 in the State. The estimated international student expenditure in the State for that year approached

2 a billion dollars ($956,133,414).22

3

62. Every public institution of higher education in Washington, and the vast majority

4 of private institutions, serve international students. In 2018–2019, the University of Washington

5 alone had 9,311 international students.23 Additionally, Washington’s community and technical

6 colleges collectively served approximately 13,000 F-1 and M-1 students in the 2018–2019

7 academic year. Several community colleges in Washington, such as Green River Community

8 College, Shoreline Community College, and the Seattle Colleges, serve especially large numbers

9 of international students, and rely heavily on their tuition payments for financial viability.

10 Washington also contains multiple K-12 schools that host F-1 students.

11

63. The July 6 Directive will harm continuing F-1 and M-1 students immensely. For

12 many students affected by the July 6 Directive, it is infeasible or impossible to attempt to transfer

13 to a program that offers in-person curriculum and therefore allows them to pursue their education

14 from within the United States on F-1 or M-1 visa status. These students will, therefore, likely be

15 forced to leave the country. The consequences of this sudden displacement are both financial and

16 personal. In addition to incurring substantial expenses to make international travel arrangements

17 in the midst of a pandemic that has significantly reduced the availability of air travel, as well as

18 losing their homes—in many instances at great cost associated with broken leases—some students

19 will be forced to upend their young children’s lives by returning to their home countries, while

20 others’ families will be split apart in order to comply with the July 6 Directive.

21

64. Moreover, for many F-1 or M-1 students in Washington, organizing travel to their

22 home countries is currently either prohibitively expensive or practically impossible. For some

23 countries, such as India or Colombia, there are no commercial flights allowed until the end of

24 August at the earliest. Students from Burundi, Madagascar, or Jordan cannot currently book

25

22 Open Doors: Report on International Educational Exchange, 2019 Fact Sheet: Washington,

26

https://tinyurl.com/yc58e8b6 (last visited July 10, 2010). 23 Id.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

17

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 19 of 31

1 flights home because air travel to these countries is indefinitely suspended. Finally, many of

2 Washington’s Chinese students report prohibitively expensive price tags of $10,000-$30,000 for

3 flights to China with multiple stops, further jeopardizing their health should they make the trip

4 back home. The enormous cost of moving back during a pandemic, having already spent a large

5 amount of money to move to the United States for their studies, makes it more unlikely these

6 students would be able or willing to move back to Washington to continue their studies should

7 in-person classes resume.

8

65. For continuing F-1 students enrolled in a hybrid program who are currently

9 outside of the United States, if the students cannot return to the United States either because of

10 travel restrictions or an inability to get an F-1 entry visa because of the suspension of consular

11 processing of visa applications—all of which were instituted in response to the COVID-19

12 emergency and remain in effect to this day—these students will lose their F-1 status by the terms

13 of the July 6 Directive. In turn, these students would lose their ability to pursue pre-completion

14 internship and experiential learning opportunities, as well as their eligibility for work allowances

15 in summer and fall of 2021, because of the requirement that students maintain F-1 status for the

16 full academic year preceding their access to practical training. See 8 C.F.R. § 214.2(f)(10).

17

66. Some institutions, such as Yakima Valley College, have already made the

18 determination they cannot safely hold in person instruction, and have announced they will be

19 going fully online for Fall 2020. For F-1 students enrolled in these programs, or for students who

20 are unable to secure a spot in the limited in-person classes being offered by institutions adopting

21 the hybrid approach, those students cannot lawfully remain in the United States to continue their

22 studies under the July 6 Directive. The same is true for F-1 students attending hybrid or in-person

23 universities, if those institutions later have to switch course and adopt a fully online approach in

24 response to a local surge rendering continued in-person classes unsafe. Unless this Court

25 intervenes, these students will be required to make precipitous arrangements to return to their

26 home countries amid a worldwide pandemic that has caused nations to close their borders and

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

18

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 20 of 31

1 considerably limited international travel options. They must abandon housing arrangements they

2 have made, breach leases, pay exorbitant airfares, and risk COVID-19 infection on trans-oceanic

3 flights. And if their departure is not timely they risk detention by immigration authorities and

4 formal removal from the country that may bar their return to the United States for ten years.

5 8 U.S.C. § 1182 (a)(9).

6

67. While some students could theoretically participate in a fully online program

7 from outside the United States, they may have their research and learning inhibited by time zone

8 variations, unavailable, unreliable, or state-managed Internet connections, and other barriers to

9 online learning. Still other students simply cannot participate in online learning in their home

10 countries. For instance, some of Washington’s F-1 students are from countries that may lack

11 resources such as libraries or internet access, such as Nepal, Burundi, or Madagascar, where only

12 approximately 5% of students have access to the internet.

13

68. The value of the education offered by Washington’s institutions of higher

14 education hinges on the diversity of perspective offered by these international students. Rendering

15 their participation impossible or insignificant will impair the educational experience for all

16 students. Moreover, the University of Washington, the State’s flagship research institution,

17 depends on F-1 graduate students for teaching support in its undergraduate programs. Requiring

18 these students to provide instruction from remote locations in their home countries, potentially

19 with considerable time-zone disparities and variable Internet connectivity, will make it harder for

20 faculty to coordinate with their student teaching aides and obtain the full benefit of their

21 pedagogy.

22

69. The July 6 Directive will also make continued study at Washington institutions

23 impracticable for many F-1 visa students. The loss of the ability to perform research or fieldwork,

24 or even participate in basic coursework under reasonable conditions, will force many students to

25 interrupt their studies. Many students risk losing their ability to access work allowances because

26 of the requirement that students maintain F-1 status for the full academic year preceding their

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

19

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 21 of 31

1 access to practical training. See 8 C.F.R. § 214.2(f)(10). This will significantly disrupt those

2 students’ career plans and opportunities, further undermining the value of the educational

3 experience that Washington institutions can provide to F-1 visa students. It can be reasonably

4 expected that many students will take leaves of absence or withdraw as a direct result of the July

5 6 Directive.

6

70. When this occurs, Washington institutions will be harmed both in their ability to

7 carry out their educational missions, and by loss of revenue when students leave or withdraw and

8 do not make expected tuition payments. By threatening to force many F-1 students to withdraw

9 from Washington institutions, Defendants have put these institutions to an impossible choice: lose

10 numerous students who bring immense educational and financial benefits to the school, or take

11 steps to retain those students through in-person classes, even where those steps contradict each

12 school’s judgment about how best to protect the health of the students, faculty, staff, and

13 university communities as a whole.

14

71. The State—and the country as a whole—will also be harmed by the potential loss

15 of F-1 visa holders who are working on critical COVID-19 research, including efforts to develop

16 a vaccine as well as data analysis and forecasting used to understand and control the spread of

17 COVID-19 until a vaccine is developed.

18

72. For example, the University of Washington’s Institute for Health Metrics and

19 Evaluation (IHME) has produced COVID-19 forecasts that have been used at many levels of

20 government. IHME’s forecasts have been used in local resource allocation decisions within the

21 University’s medical school and Washington state, within state government across the United

22 States, by the White House, and by multiple ministries of health and offices of planning around

23 the world. IHME has PhD students on F-1 visas working directly on IHME’s COVID-19 model

24 and contributing critical input on data analysis, interpretation and dissemination. If the University

25 of Washington is forced to switch to a fully online model this fall, these critical researchers would

26 be forced to leave the country.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 22 of 31

1

73. The Administration has acknowledged that ICE’s decision is designed to force

2 educational institutions to conduct in-person classes even if, in those institutions’ and local public

3 health officials’ considered judgments, it is neither safe nor educationally advisable to do so. The

4 same day ICE issued the July 6 Directive, President Trump tweeted: “SCHOOLS MUST OPEN

5 IN THE FALL!!!”24 And as Acting Deputy Secretary of Homeland Security Kenneth T.

6 Cuccinelli stated on July 7, 2020, the July 6 Directive “will . . . encourage schools to reopen.”25

7 ICE’s directive also reflects the Administration’s continued efforts to limit and reduce the

8 presence of international students in the United States.

9

V. CAUSES OF ACTION

10

Count I: Violation of APA § 706—Arbitrary and Capricious Agency Action

11

74. The State of Washington realleges and reincorporates by reference the allegations

12 in each of the preceding paragraphs.

13

75. The APA requires this Court to hold unlawful and set aside any agency action

14 that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

15 5 U.S.C. § 706(2)(A).

16

76. Agency action is arbitrary and capricious where, inter alia, the agency has

17 (1) “relied on factors which Congress has not intended it to consider,” (2) “entirely failed to

18 consider an important aspect of the problem,” (3) “offered an explanation for its decision that

19 runs counter to the evidence before the agency,” or (4) “is so implausible that it could not be

20 ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n

21 of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In all cases, the agency

22 must “cogently explain why it has exercised its discretion in a given manner.” Id. at 48;

23 accord Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (the grounds for

24 agency action must be “logical and rational”). Where an agency reverses a prior policy, it must

25

24 https://twitter.com/realDonaldTrump/status/1280209946085339136?s=20.

26

25 https://thehill.com/homenews/administration/506248-cuccinelli-says-rule-forcing-internationalstudents-to-return-home.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 23 of 31

1 (1) “display awareness that it is changing position,” (2) “show that there are good reasons for the

2 new policy,” including disclosing the details of any “factual findings that contradict those which

3 underlay its prior policy,” and (3) account for “serious reliance interests” engendered by the prior

4 policy. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

5

77. The July 6 Directive, and any “temporary final rule” that follows therefrom, are

6 arbitrary and capricious is numerous respects, including but not limited to the following:

7

a. The agency arbitrarily set an “implausible” deadline of July 15, 2020

8

(within 9 days of the Directive’s issuance) for institutions of higher education to determine

9

whether to partly or fully resume in-person instruction for Fall 2020, and for institutions

10

whose classes would be entirely online to submit an “operational change plan” by the

11

same date. The agency also set an unreasonable deadline of August 4, 2020 for institutions

12

that have adopted a “hybrid” model—a mixture of online an in-person instruction—to

13

certify for each student on an F-1 visa that the “program is not entirely online, that the

14

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

15

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

16

in their degree program.” These deadlines do not provide institutions with sufficient time

17

to make the required decisions and certifications, particularly in the midst of a pandemic

18

that has drastically disrupted normal operations.

19

b. The agency reversed its prior policy of permitting students to attend

20

remote classes while retaining their visa status “for the duration of the emergency,”

21

without providing any “factual findings that contradict those which underlay its prior

22

policy” (including providing no facts to support the suggestion that the emergency reached

23

its “height” in March 2020), and without considering the “serious reliance interests

24

engendered by the prior policy.” “When an agency changes course, as DHS did here, it

25

must be cognizant” of “serious reliance interests” that its prior approach has

26

“engendered.” Dept. of Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 24 of 31

1

1913 (2020). “It would be arbitrary and capricious to ignore such matters.” Id. Yet that is

2

exactly what the July 6 Directive does. It departs from prior guidance that ICE issued on

3

this subject—including its explicit statement on March 13 that the exemptions for F-1 visa

4

holders due to COVID-19 would be “in effect for the duration of the emergency”—

5

without any reasoned basis for the sudden and dramatic change of position or any

6

consideration of the reliance interests of the State of Washington, its institutions of higher

7

education, or their students.

8

c. The agency “entirely failed to consider an important aspect of the

9

problem”: namely, the significant effects that the Directive will have on institutions that

10

have invested considerable time and effort in developing plans for the 2020–2021

11

academic year—plans that carefully balance the health and safety of faculty, students, and

12

staff, with their core mission of educating students. The July 6 Directive likewise fails to

13

consider the devastating effects that it will have on international students who will be

14

forced to leave the United States or will be unable to enter to take classes, or those who

15

will not be able to return to their home—or any—country.

16

d. The agency failed to offer any cogent explanation for the July 6 Directive,

17

which reflects virtually no reasoned decisionmaking. It identifies a purported “need to

18

resume the carefully balanced protections implemented by federal regulations,” but it does

19

not provide any reasoning why the agency perceives such a need to exist, nor why any

20

resumption of the regime set out in federal regulations must begin in less than two months,

21

while the COVID-19 pandemic continues to rage and the national state of emergency

22

remains in effect.

23

e. Indeed, the lack of any real justification for the July 6 Directive on its face

24

“reveal[s] a significant mismatch between the [July 6 Directive] and the

25

rationale . . . provided,” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2775 (2019),

26

raising the prospect that the July 6 Directive is being used as a cudgel to compel

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

23

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 25 of 31

1

universities to alter their plans for the fall. As Acting Deputy Secretary of Homeland

2

Security Kenneth T. Cuccinelli stated on July 7, 2020, the true purpose of the July 6

3

Directive was to “encourage schools to reopen” notwithstanding State and local safety

4

conditions amidst the ongoing pandemic. ICE’s decision also reflects the Administration’s

5

continued efforts to limit and reduce the presence of F-1 international students in the

6

United States.

7

78. For these reasons and others, the July 6 Directive, and any “temporary final rule”

8 that follows therefrom, must be enjoined, vacated, and set aside as arbitrary and capricious.

9 5 U.S.C. § 706(2)(A).

10

Count II: Violation of APA §§ 553, 706—Notice-and-Comment Requirements

11

79. The State of Washington realleges and reincorporates by reference the allegations

12 in each of the preceding paragraphs.

13

80. Under the APA, a court must set aside agency action that is “not in accordance

14 with law” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D).

15

81. The APA requires federal agencies engaged in rulemaking to comply with

16 notice-and-comment procedures. 5 U.S.C. § 553(b). Among other things, agencies must publish

17 notices of proposed rulemaking describing “either the terms or substance of the proposed rule or

18 a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3). Following publication of

19 adequate notice, agencies must then give interested persons at least 30 days to comment on the

20 proposed rule. “A decision made without adequate notice and comment is arbitrary or an abuse

21 of discretion.” NRDC v. U.S. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002).

22

82. The July 6 Directive, and any “temporary final rule” that follows therefrom, are

23 subject to these notice-and-comment requirements. The Directive is a “rule” within the meaning

24 of the APA because it is an “agency statement of general or particular applicability and future

25 effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4). Yet the

26 agency entirely failed to comply with the notice-and-comment requirements.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 26 of 31

1

83. There are no applicable exceptions to the notice-and-comment requirements. For

2 instance, the July 6 Directive is not an “interpretative rule[], general statement[] of policy, or

3 rule[] of agency organization, procedure, or practice.” 5 U.S.C. § 553(b). To the contrary, it is a

4 substantive rule that alters institutions’ and students’ rights and obligations under the law. Absent

5 “good cause,” the agency was required to comply with the notice-and-comment requirements, but

6 has made no reasoned “good cause” finding to excuse its failure to do so—nor could it.

7

84. The July 6 Directive, and any “temporary final rule” that follows therefrom, were

8 unlawfully issued without notice or an opportunity to comment, in violation of 5 U.S.C. § 553,

9 and must be enjoined, vacated, and set aside. 5 U.S.C. § 706(2).

10

Count III: Violation of APA § 706—Ultra Vires Agency Action

11

85. The State of Washington realleges and reincorporates by reference the allegations

12 in each of the preceding paragraphs.

13

86. Under the APA, courts must set aside agency action that is “in excess of statutory

14 jurisdiction, authority, or limitations[.]” 5 U.S.C. § 706(2)(C).

15

87. The July 6 Directive is in excess of the authority delegated to the agency by statute

16 to the extent it interferes with the State of Washington’s ability to exercise its police power and

17 set its own policies to protect the health and safety of its residents during the COVID-19

18 pandemic. ICE lacks any statutory authority to override State health and safety measures by

19 attempting to coerce public and private institutions of higher education within Washington to

20 reopen in order to avoid drastic impacts on their students with F-1 visas.

21

88. The July 6 Directive, and any “temporary final rule” that follows therefrom, are

22 ultra vires agency actions that must be enjoined, vacated, and set aside. 5 U.S.C. § 706(2).

23

VI. PRAYER FOR RELIEF

24

WHEREFORE, the State of Washington requests that the Court enter a judgment against

25 Defendants and award the following relief:

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

25

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 27 of 31

1

a.

Issue a temporary restraining order, a preliminary injunction, and a permanent

2 injunction prohibiting Defendants from implementing or enforcing the July 6 Directive and any

3 “temporary final rule” that follows therefrom;

4

b.

Declare that the July 6 Directive and any “temporary final rule” that follows

5 therefrom are unlawful and without force or effect;

6

c.

Vacate and set aside the July 6 Directive and any “temporary final rule” that

7 follows therefrom;

8

d.

Award the State of Washington its costs and reasonable attorneys’ fees; and

9

e.

Award such additional relief as the interests of justice may require.

10

DATED this 10th day of July, 2020.

11

ROBERT W. FERGUSON

12

Attorney General

13

/s/ Lauryn K. Frass

LAURYN K. FRAAS, WSBA No. 53238

14

Assistant Attorney General

15

206.521.5811 lauryn.fraas@atg.wa.gov

16 /s/ Kristin Beneski

17

KRISTIN BENESKI, WSBA No. 45478

Assistant Attorney General

18

206.464.7459

19

kristin.beneski@atg.wa.gov

20

/s/ Spencer W. Coates

SPENCER W. COATES, WSBA No. 49683

21

Assistant Attorney General

206.287.4173

22

spencer.coates@atg.wa.gov

23

State of Washington Attorney General’s Office

24

800 5th Avenue, Suite 2000

Seattle, WA 98104

25

Attorneys for Plaintiff State of Washington 26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

26

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 28 of 31
Exhibit 1

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 29 of 31
Broadcast Message: COVID-19 and Fall 2020
To: All SEVIS Users
Date: July 6, 2020 Number: 2007-01
General Information
Temporary procedural adaptations related to online courses permitted by the Student and Exchange Visitor Program (SEVP) during the height of the Coronavirus Disease (COVID-19) crisis will be modified for the fall 2020 semester. There will still be accommodations to provide flexibility to schools and nonimmigrant students, but as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations. The U.S. Department of Homeland Security plans to publish the procedures and responsibilities described in the below Broadcast Message in the near future as a Temporary Final Rule in the Federal Register. This message is intended to provide additional time to facilitate the implementation of these procedures.
Due to COVID-19, SEVP instituted a temporary exemption regarding the online study policy for the spring and summer semesters. This policy permitted F and M students to take more online courses than normally allowed for purposes of maintaining a full course of study to maintain their F-1 and M-1 nonimmigrant status during the COVID-19 emergency.
Temporary Exemptions for the Fall 2020 Semester For the fall 2020 semester, SEVP is modifying these temporary exemptions. In summary, temporary exemptions for the fall 2020 semester provide that:
1) Students attending schools operating entirely online may not take a full online course load and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States. Active students currently 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 instruction to remain in lawful status or potentially face immigration consequences including, but not limited to, the initiation of removal proceedings.
2) Students attending schools operating under normal in-person classes are bound by existing federal regulations. Eligible F students may take a maximum of one class or three credit hours online (see 8 CFR 214.2(f)(6)(i)(G)).
3) Students attending schools adopting a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online. These schools must certify to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” that the 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

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 30 of 31
the minimum number of online classes required to make normal progress in their degree program. The above exemptions do not apply to F-1 students in English language training programs or M-1 students, who are not permitted to enroll in any online courses (see 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v))).
Forms I-20 Requirements and Maintaining Student Records for the Fall 2020 Semester
For all students attending schools in the United States this fall 2020, designated school officials (DSOs) must issue new Forms I-20 to each student certifying that the school is not operating 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. DSOs must indicate this information in the Form I-20 Remarks field in the Student and Exchange Visitor Information System (SEVIS).
Schools must update and reissue all Forms I-20 to reflect these changes in program enrollment and student information within 21 business days of publication of this Broadcast Message (by Aug. 4, 2020.) When issuing new Forms I-20, please prioritize students who require new visas and are outside of the country.
For the fall 2020 semester, continuing F and M students who are already in the United States may remain in Active status in SEVIS if they make normal progress in a program of study, or are engaged in approved practical training, either as part of a program of study or following completion of a program of study. If a school changes its operational stance mid-semester, and as a result a nonimmigrant student switches to only online classes, or a nonimmigrant student changes their course selections, and as a result, ends up taking an entirely online course load, schools are reminded that nonimmigrant students within the United States are not permitted to take a full course of study through online classes. If nonimmigrant students find themselves in this situation, they must leave the country or take alternative steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction.
For the fall 2020 semester, continuing F and M students outside of the United States, whose schools of enrollment are only offering online classes, may remain in Active status in SEVIS if they are taking online courses and are able to meet the normal full course of study requirements or the requirements for a reduced course of study. Only students enrolled at a school that is only offering online coursework can engage in remote learning from their home country. In this case, DSOs should annotate the student’s record to make it clear that the student is outside the US but taking full time online courses as that is the only choice offered by the school.
School Reporting and Procedural Requirements
1) Schools that offer entirely online classes or programs or will not reopen for the fall 2020 semester must complete an operational change plan and submit it to SEVP@ice.dhs.gov no later than Wednesday, July 15, 2020. The subject line must read: “Fall 2020 (Fully Online/Will not Reopen) – School Name and School Code.”
2) Certified schools that will not be entirely online but will reopen in the fall and that will use any of the following educational formats must update their operational plans by August 1, 2020 and include whether they will be:

Case 2:20-cv-01070 Document 1 Filed 07/10/20 Page 31 of 31
• Solely in-person classes, or
• Delayed or shortened sessions, or
• A hybrid plan of in-person and remote classes.
These plans shall also be submitted to SEVP@ice.dhs.gov and the subject line must read: “Fall 2020 (in person/hybrid/modified session) – School Name and School Code
3) Schools should update their operational plans if circumstances regarding their operational
posture change within 10 calendar days.
SEVP will continue to develop and provide resources to stakeholders on ICE.gov, including answers to frequently asked questions, to clarify and expand upon information in this Broadcast Message.
Disclaimer
This Broadcast Message is not a substitute for applicable legal requirements, nor is it itself a rule or a final action by SEVP. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil or criminal matter.

 </s> Case 2:20-cv-01070-RSM Document 3 Filed 07/13/20 Page 1 of 29

1

The Honorable Ricardo S. Martinez

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

STATE OF WASHINGTON,

NO. 2:20-cv-01070-RSM

9

Plaintiff,

EMERGENCY MOTION FOR

10

TEMPORARY RESTRAINING ORDER

v.

(With Notice to Adverse Party)1

11

UNITED STATES DEPARTMENT OF 12 HOMELAND SECURITY;

NOTE ON MOTION CALENDAR: JULY 13, 2020

IMMIGRATION AND CUSTOMS 13 ENFORCEMENT; CHAD F. WOLF, in his

ORAL ARGUMENT REQUESTED

official capacity as Acting Secretary of the 14 U.S. Department of Homeland Security;

and MATTHEW ALBENCE, in his official 15 capacity as Acting Director of U.S.

Customs and Immigration Enforcement,

16

Defendants.

17

18

19

20

21

22

23

24

25

1 The undersigned counsel notified the U.S. Department of Justice that this motion was forthcoming by

26

email on July 10, 2020 and attached a copy of the complaint. A copy of this motion will be emailed to the Department of Justice promptly upon filing, and copies of the complaint and motion will be served today as well.

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER NO. 2:20-cv-01070-RSM

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:20-cv-01070-RSM Document 3 Filed 07/13/20 Page 2 of 29

1

TABLE OF CONTENTS

2

3 I. INTRODUCTION............................................................................................................. 1

4 II. RELEVANT FACTS ........................................................................................................ 3

5

A. The COVID-19 Pandemic ......................................................................................... 3

6

B. ICE’s Initial Response to the Pandemic .................................................................... 3

7

C. Without Warning, ICE Announces It Will End the March 13 Exemption ................ 4

8

D. The Directive’s Impact on Washington, Its Schools, and Their Students ................. 5

9 III. ARGUMENT .................................................................................................................... 9

10

A. Legal Standard ........................................................................................................... 9

11

B. The State Is Likely To Succeed on the Merits........................................................... 9

12

1. The State Has Standing to Bring This Action .................................................. 10

13

2. ICE’s New Directive Is Subject to APA Review ............................................. 10

14

3. ICE’s New Directive Is Arbitrary and Capricious ........................................... 11

15

a. ICE imposed arbitrary and untenable compliance deadlines.................... 11

16

b. ICE failed to consider the serious harms its Directive will impose.......... 13

17

c. ICE failed to consider widespread reliance its promise that the March 13 Exemption would last “for the duration” of the pandemic....... 15

18

d. ICE failed to provide a plausible rationale for the Directive .................... 16

19

4. ICE’s New Directive Violates the APA’s Notice and Comment

20

Requirements.................................................................................................... 17

21

C. The State Will Be Irreparably Harmed Absent Emergency Relief.......................... 18

22

D. The Remaining Equitable Factors Favor a Temporary Restraining Order .............. 24

23 IV. CONCLUSION ............................................................................................................... 24

24

25

26

EMERGENCY MOTION FOR

i

TEMPORARY RESTRAINING ORDER

NO. 2:20-cv-01070-RSM

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:20-cv-01070-RSM Document 3 Filed 07/13/20 Page 3 of 29

1

I. INTRODUCTION

2

On July 6, 2020, Defendants (collectively, ICE) promulgated a cruel and capricious rule

3 that will force many international students to leave the United States in a matter of days during

4 a global pandemic (the “Directive”). The Directive rescinds the emergency exemptions allowing

5 international students to study remotely during the COVID-19 pandemic, and will bar the

6 approximately 27,000 international students in the State of Washington from the United States

7 if at any time this fall their colleges or universities decide for safety reasons to move to online-

8 only learning. At the same time, the ICE Directive conversely requires international students

9 attending institutions with “hybrid” or fully in-person instruction to return to the United States

10 for in-person classes or lose their visa status. The Directive forces Washington institutions to

11 make an impossible choice: lose many of their international students, who confer enormous

12 benefits to their schools and to the State; or act contrary to State public-health guidance and their

13 own considered judgments about how best to protect the health of their students, faculty, staff,

14 and the surrounding public. The Directive is supported by neither logic nor law. Instead, it was

15 promulgated in an apparent attempt to enforce President’s July 6 tweet that “SCHOOLS MUST

16 OPEN IN THE FALL!!!”2 This Court should enter a temporary restraining order to prevent

17 immediate irreparable harm from the Directive, which will begin affecting students’ visa status

18 as of Wednesday, July 15, 2020—nine days from the Directive’s issuance.

19

In March 2020, amid the onset of the COVID-19 pandemic, ICE published guidance

20 establishing an exemption from a preexisting rule that required students on nonimmigrant

21 student visas (F-1 or M-1 visas)3 to attend classes in person (the “March Exemption”). ICE stated

22 that the Exemption, which allowed students to maintain their visa status while attending classes

23 remotely, would be “in effect for the duration of the emergency[.]” Relying on the March

24 Exemption, institutions undertook to determine how best to conduct classes in the fall as the

25

26

2 Donald Trump (@realDonaldTrump), Twitter (July 6, 2020, 11:40 AM PST), Coates Ex. D. 3 F-1 visas are for academic study while M-1 visas are for vocational or technical study. Compl. ¶ 38.

EMERGENCY MOTION FOR

1

TEMPORARY RESTRAINING ORDER

NO. 2:20-cv-01070-RSM

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:20-cv-01070-RSM Document 3 Filed 07/13/20 Page 4 of 29

1 pandemic rages on, while accounting for State public-health guidance and unpredictable,

2 changing circumstances. Some colleges had already decided to remain only or predominately

3 online in fall 2020. Others had already decided to adopt a hybrid approach with some in-person

4 classes, depending in some cases on State reopening plans. Still others have adopted a hybrid

5 approach for most of the fall, and then switch to online-only instruction after Thanksgiving. The

6 ICE Directive has thrown a wrench into these carefully thought-through plans.

7

The Directive requires institutions to decide by Wednesday, July 15 whether they will be

8 online-only, and to submit an “operational change plan” by that date if so. Students attending

9 online-only institutions must then leave the United States immediately or risk detention and

10 deportation. Conversely, the Directive requires students attending institutions with a mixture of

11 in-person and online classes to return to (or remain in) the United States to attend in-person

12 classes or lose their visa status. Institutions adopting hybrid or in-person approaches must submit

13 their “operational plans” by August 1, and hybrid institutions must issue updated certifications

14 of eligibility for each student holding an F-1 or M-1 visa by August 4—just 21 business days

15 after the change was announced.

16

In issuing its stunning reversal of its own COVID-19 Exemption, ICE gave no indication

17 that the agency considered, much less adequately addressed, numerous weighty interests—

18 including the health of students, faculty, staff, and local communities, and the reliance of

19 students and universities on ICE’s promise that the Exemption would last “for the duration” of

20 the pandemic. Nor did the agency provide any opportunity whatsoever for notice and comment.

21 Accordingly, the Directive is arbitrary and capricious and unlawful under the Administrative

22 Procedure Act (APA). And if allowed to go into effect, Washington’s public institutions stand

23 to lose tens of millions in revenue and suffer significant harm to their educational missions. The

24 health and safety of Washington residents will also be put at risk. Accordingly, this Court should

25 enter a temporary restraining order preventing Defendants from implementing or enforcing the

26 Directive, pending briefing and a decision on a motion for a preliminary injunction.

EMERGENCY MOTION FOR

2

TEMPORARY RESTRAINING ORDER

NO. 2:20-cv-01070-RSM

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:20-cv-01070-RSM Document 3 Filed 07/13/20 Page 5 of 29

1

II. RELEVANT FACTS

2 A. The COVID-19 Pandemic

3

As the Court is well aware, the COVID-19 pandemic has created extreme challenges for

4 the operations of businesses, schools, and virtually every aspect of daily life. COVID-19 is easily

5 transmitted, especially indoors, and the numbers of confirmed U.S. cases and deaths have grown

6 exponentially since January 2020, and are expected to continue to do so. See Compl. ¶¶ 21–37.

7 As of this filing, the number of new confirmed cases in Washington is at an all-time high. Id.

8 ¶ 37. To date Washington has over 40,000 confirmed cases, over 4,700 hospitalizations, and over

9 1,400 deaths.4 Id. On February 29, 2020, Governor Jay Inslee declared a statewide state of

10 emergency in response to the COVID-19 pandemic. Compl. ¶ 26. Soon thereafter, on March 13,

11 2020, President Donald J. Trump declared a national emergency. Id. ¶ 29.

12

In response to increasing COVID-19 infection rates, on March 6, 2020, the University of

13 Washington (UW) became the first American university to announce it was suspending in-

14 person classes. Cauce Decl. ¶ 12. Shortly thereafter, the State of Washington prohibited in-

15 person classroom instruction and lectures. Id.; Compl. ¶ 28. Campuses have a heightened risk

16 for transmission of the virus that causes COVID-19: crowded classrooms, dining facilities, and

17 dormitories could cause large-scale outbreaks. See Compl. ¶ 33; see also Cauce Decl. ¶ 31

18 (discussing the recent outbreak of COVID-19 within UW’s fraternity system). Notwithstanding

19 mitigation measures, cases continue to rise nationwide and in Washington State. Compl. ¶ 37.

20 B. ICE’s Initial Response to the Pandemic

21

Eligibility to maintain F-1 visa status is governed by 8 U.S.C. § 1101(a)(15)(F)(i), which

22 requires students to enroll in a “full course of study”; and 8 C.F.R. § 214.2(f) and (m), which

23 generally limit the number of online credits F-1 and M-1 visa holders may enroll in.

24

Early in the pandemic, the federal government recognized that remote instruction was

25

26

4 Washington Department of Health, COVID-19 Data Dashboard (last updated Jul. 11, 2020), https://www.doh.wa.gov/Emergencies/NovelCoronavirusOutbreak2020COVID19/DataDashboard.

EMERGENCY MOTION FOR

3

TEMPORARY RESTRAINING ORDER

NO. 2:20-cv-01070-RSM

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

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1 the only way for many institutions to both protect their students’ health and safety and carry out

2 their educational missions. On March 9, 2020, ICE’s Student and Exchange Visitor Program

3 (SEVP) division issued guidance recognizing the “fluid and rapidly changing” nature of the

4 situation and stating that the agency “intend[ed] to be flexible with temporary adaptations,”

5 including “online instruction.” Coates Ex. A. Four days later, when President Trump declared a

6 national state of emergency in response to COVID-19, SEVP issued another guidance document

7 expressly exempting F-1 and M-1 visa holders from the rule that they must attend most classes

8 in person (the “March Exemption”). Coates Ex. B. The March 13 Exemption provided that

9 “[g]iven the extraordinary nature of the COVID-19 emergency, SEVP will allow F-1 and/or M-

10 1 students to temporarily count online classes towards a full course of study,” whether the student

11 remained in the United States or departed the United States. Id. The agency stated that this

12 Exemption would be “in effect for the duration of the emergency[.]” Id.

13 C. Without Warning, ICE Announces It Will End the March 13 Exemption

14

Last week, on July 6, 2020, ICE abruptly changed course, throwing higher education

15 institutions into chaos and causing significant anxiety among international students. The July 6

16 Directive rescinds the March Exemption, requiring all students on F-1 and M-1 visas whose

17 curricula are entirely online due to COVID-19 to depart the country if they are currently present,

18 and barring their reentry if they are currently abroad. Compl. Ex. 1. Reports indicate that ICE

19 has already begun enforcing this policy and barring students’ entry. Coates Ex. C. ICE is

20 requiring schools to decide by Wednesday, July 15, whether they will be fully online or partly

21 resume in-person education, and to submit an “operational change plan” if classes will be online-

22 only. Compl. Ex. 1. Schools taking a “hybrid” approach (a mixture of online and in-person

23 classes) or returning to in-person classes must submit an “operational plan” by August 1, 2020.

24 Id. at 2. These schools must also “update and reissue” all Forms I-20 (Certificate of Eligibility

25 for Nonimmigrant Student Status) for all students with an F-1 or M-1 visa by August 4, 2020,

26 certifying that each individual student “is not taking an entirely online course load for the fall

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1 2020 semester, and that the student is taking the minimum number of online classes required to

2 make normal progress in their degree program.” Id. at 1-2. In addition, the Directive makes clear

3 that if a hybrid school “changes its operational stance” or a nonimmigrant student “ends up

4 taking an entirely online course load,” “they must leave the country or take alternative steps to

5 maintain their nonimmigrant status such as transfer to a school with in-person instruction.” Id.

6 Finally, the Directive specifies that “[o]nly students enrolled at a school that is only offering

7 online coursework can engage in remote learning from their home country.” Id. at 2.

8

ICE announced this sea change without public notice or an opportunity to comment, and

9 without any suggestion that it considered the health of students, faculty, staff, or surrounding

10 communities; students’ and schools’ reliance on ICE’s promise that the March Exemption would

11 be “in effect for the duration of the emergency” posed by COVID-19; or the absence of other

12 options for schools to provide their curriculum to many of their international students.

13 D. The Directive’s Impact on Washington, Its Schools, and Their Students

14

Washington public and private institutions of higher education educate tens of thousands

15 of international students each year. Compl. ¶ 61. These students contributed almost a billion

16 dollars (an estimated $956,133,414) to Washington’s economy in the 2018-2019 academic year.

17 Id.; see also Yoshiwara Decl. ¶ 48. Each of Washington’s six public four-year universities, all

18 34 public two-year colleges, and 26 private colleges enrolled international students in Fall

19 2018—“virtually all” of whom were here on F or M visas. Meotti Decl. ¶¶ 13–15.

20

UW, the State’s flagship research university, has approximately 8,300 enrolled F visa

21 students from 123 countries, who contribute an estimated $185 million in annual revenue to UW;

22 approximately 1,300 participate in Optional Practical Training (OPT).5 Cauce Decl. ¶ 7. In

23 addition, UW has approximately 2,300 newly admitted F-1 visa students for enrollment in fall

24 2020. Id. ¶ 10. Washington State University (WSU) currently has 1,869 enrolled students with

25

5 OPT is temporary employment directly related to an F-1 student’s major area of study. Eligible students

26

can apply to receive up to 12 months of OPT employment authorization before and/or after completing their academic studies. See Optional Practical Training (OPT) for F-1 Students, https://www.uscis.gov/opt.

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1 F-1 visas from more than 100 countries, plus 853 newly admitted international students, who

2 would contribute $31.1 million in revenue this academic year. Chaudhry Decl. ¶¶ 7–8, 27. In

3 2019-2020, Central Washington University’s (CWU) 343 international students on F-1 visas

4 contributed more than $14.6 million in revenue. Schactler Decl. ¶ 11. In 2018-2019,

5 Washington’s Community and Technical Colleges collectively had 11,385 international students

6 from more than 40 countries who contributed approximately $107,673,637 in tuition. Yoshiwara

7 Decl. ¶ 8. Several Washington community colleges serve especially large numbers of

8 international students, and rely heavily on their tuition payments for financial viability. See, e.g.,

9 id. ¶ 9 (Bellevue College: 970 international students); Stewart Decl. ¶¶ 5, 8 (Green River

10 College: 750 currently enrolled and 318 F-1 applicants for fall); Pan Decl. ¶ 6 (Seattle Colleges,

11 multi-college district with eight institutions: 6,220 students with F-1 or M-1 visas in 2019-2020).

12

ICE’s Directive puts these institutions to an impossible choice: lose numerous students

13 who bring immense educational and financial benefits to the school, or take steps to retain those

14 students by offering more in-person classes. As UW President Ana Mari Cauce explains, the

15 Directive “force[s] the University to choose between the health and safety of the entire

16 University community and the potentially acute risks faced by its substantial international

17 student population along with the financial risks that losing that population would cause to the

18 University.” Cauce Decl. ¶ 30. If the Directive is not enjoined, these institutions expect many of

19 their international students to transfer, take leave, or disenroll for fall 2020. This is likely to occur

20 for a variety of reasons, including: (i) students at online-only schools will seek to transfer to

21 schools offering in-person instruction to maintain their visa status; (ii) many students cannot

22 feasibly continue their studies due to conditions or practical obstacles in their home country; (iii)

23 students who lose their visas will also lose their OPT work authorization and may withdraw from

24 their program of study as a result; and/or (iv) students will choose not to enroll in the fall knowing

25 they will be forced to leave the United States or lose their visa status once classes are no longer

26 in session, whether at the end of the fall or at an unknown earlier date if the pandemic forces

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1 their school to return to remote instruction; among other factors. See Cauce Decl. ¶ 19; Chaudry

2 Decl. ¶ 21; Yoshiwara Decl. ¶ 33–34; Kaminski Decl. ¶ 8. For example, CWU estimates 26% of

3 its international students will disenroll as a direct result of the Directive. Schactler Decl. ¶ 26.

4

For months, Washington institutions have engaged in deliberate processes to determine

5 how to conduct classes in the fall, while accounting for State public-health guidance and

6 unpredictable, changing circumstances. See, e.g., Schactler Decl. ¶¶ 18–20; Yoshiwara Decl. ¶

7 32; Chaudhry Decl. ¶¶ 12–18; Cauce Decl. ¶¶ 14–17; Kaminski Decl. ¶¶ 3–7. In doing so, these

8 institutions explicitly relied on ICE’s statement that the March Exemption would remain “in

9 effect for the duration of the emergency.” See, e.g., Schactler Decl. ¶¶ 21–23; Yoshiwara Decl.

10 ¶ 29; Pan Decl. ¶¶ 8, 14; Cauce Decl. ¶ 13; Harrell Decl. ¶ 14; Kaminski Decl. ¶ 5.

11

In planning for fall 2020, institutions’ working groups and taskforces met regularly

12 internally and with health professionals, local and state governments and planning commissions,

13 and the public for weeks or months to develop educational plans that appropriately balanced

14 student and community health with educational opportunity. See, e.g., Stewart Decl. ¶¶ 11-15;

15 Yoshiwara Decl. ¶¶ 22-28; Pan Decl. ¶¶ 11-13; Harrell Decl. ¶¶ 14-23; Chaudhry Decl. ¶¶ 12-

16 18; Cauce Decl. ¶¶ 11-18. Each school’s plan was based on its unique circumstances. Yakima

17 Valley College (YVC), for instance, determined that due to the high incidence of COVID-19

18 cases in its region, it could not safely offer in-person instruction in fall 2020. Kaminski Decl.

19 ¶ 4; Yoshiwara Decl. ¶ 32. WSU, by contrast, is planning a hybrid approach for most of the fall,

20 but will switch to online-only after Thanksgiving. Chaudhry Decl. ¶¶ 15, 18. UW is also planning

21 a hybrid approach for its multiple campuses—but only if the campus’s county is in Phase 3 of

22 Washington’s Safe Start plan.6 Cauce Decl. ¶¶ 13, 15. Most Washington institutions plan to offer

23 a hybrid approach with limited in-person instructional opportunities, but only as the pandemic

24 permits. See, e.g., Yoshiwara Decl. ¶ 18; Stewart Decl. ¶ 13; Pan Decl. ¶¶ 21–22;

25

26

6 Office of the Governor, Safe Start Washington: Phased Reopening County-by-County, https://www.governor.wa.gov/sites/default/files/SafeStartPhasedReopening.pdf (last updated July 7, 2020).

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1 Harrell Decl. ¶¶ 32–33; Schactler Decl. ¶ 28.

2

ICE’s Directive disrupts these institutions’ carefully calibrated planning. Institutions are

3 being inundated with questions from panicked and confused students whose immigration status

4 and plans for the upcoming academic year are now in jeopardy. See, e.g., Chaudhry Decl. ¶ 19

5 (describing the “shock, fear, outrage and extreme anxiety” of WSU faculty, staff, students, and

6 families, its receipt of more than 500 emails within 24 hours, and attendance of 300+ at an

7 “impromptu town hall” with two hours’ notice); Reid Decl. ¶¶ 3–4 (anxiety among UW’s student

8 body). Students must quickly try to arrange to take at least one in-person class to maintain their

9 visa status, with no exception if the pandemic forces classes to pivot back to all-online, and

10 regardless of whether preexisting health conditions place the student at greater risk for serious

11 complications or death from COVID-19. See, e.g., Yoshiwara Decl. ¶ 32; Cauce Decl. ¶ 18.

12

The Directive also places a tremendous administrative burden on institutions that will

13 take a hybrid approach, requiring a new certification for each and every F-1 and M-1 student by

14 August 4, 2020. Compl. Ex. 1 at 2. For many institutions, this arbitrary 21-day deadline is

15 virtually impossible to meet. See, e.g., Reid Decl. ¶¶ 10, 12, 16 (UW must issue “completely

16 new I-20s for the over 8,000 international students enrolled at the University,” which it lacks

17 sufficient staffing to accomplish, and because of UW’s quarter system it will “not even know

18 what courses many international students will register for” until the end of August); Chaudhry

19 Decl. ¶ 20 (reissuing “a minimum of 1900” I-20s by August 4 is a “nearly impossible task” for

20 which WSU must hire new staff); Schactler Decl. ¶¶ 24, 29–30; Yoshiwara Decl. ¶ 43; Kaminski

21 Decl. ¶ 17. Moreover, if State or local public-health requirements mandate school closure at any

22 point during the fall term, international students would have to immediately leave the country or

23 risk facing deportation proceedings. Schactler Decl. ¶ 24. Notwithstanding all this uncertainty,

24 the ICE Directive requires institutions to make their choice known by July 15, 2020.

25

The State filed its Complaint on Friday, July 10. Dkt. # 1. The State seeks a temporary

26 restraining order against the Directive prior to its initial compliance date of July 15, 2020.

EMERGENCY MOTION FOR

8

TEMPORARY RESTRAINING ORDER

NO. 2:20-cv-01070-RSM

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

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1

III. ARGUMENT

2 A. Legal Standard

3

A party seeking a temporary restraining order must make a clear showing of (1) a

4 likelihood of success on the merits, (2) a likelihood of suffering irreparable harm in the absence

5 of preliminary relief, (3) that the balance of hardship tips in her favor, and (4) that a temporary

6 restraining order in is in the public interest. Fed. R. Civ. P. 65(c); Winter v. Nat. Resources Def.

7 Council, Inc., 555 U.S. 7, 20 (2008); Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d

8 832, 839 n.7 (9th Cir. 2001) (preliminary injunction and temporary restraining order standards

9 are “substantially identical”). While all factors are met here, “[h]ow strong a claim on the merits

10 is enough depends on the balance of harms: the more net harm an injunction can prevent, the

11 weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.”

12 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1133 (9th Cir. 2011) (citation omitted).

13 B. The State Is Likely To Succeed on the Merits

14

The State is likely to succeed on the merits. The Administrative Procedure Act (APA)

15 directs courts to “set aside” agency action that is “arbitrary, capricious, [or] an abuse of

16 discretion,” “in excess of statutory jurisdiction, authority, or limitations,” or “without observance

17 of procedure required by law.” 5 U.S.C. § 706(2). The Directive is arbitrary and capricious for

18 at least four reasons: it (i) sets arbitrary and implausible compliance deadlines of July 15,

19 August 1, and August 4; (ii) fails to consider important aspects of the problem; (iii) reverses

20 ICE’s prior policy absent factual support or consideration of serious reliance interests; and (iv)

21 offers no cogent explanation for the new policy. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

22 State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); FCC v. Fox Television Stations, Inc.,

23 556 U.S. 502, 515 (2009).7 The Directive also patently violates the APA’s notice-and-comment

24

7 Judicial review of agency action is based on the administrative record. 5 U.S.C. § 706. The Court may

25

look beyond the record where, inter alia, it is “necessary to determine whether the agency has considered all relevant factors and has explained its decision[.]” Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). Here, the

26

State it is likely to succeed on the merits because the Directive is arbitrary and capricious on its face. Additionally, it is appropriate for the Court to consider the declarations cited herein under Lands Council.

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1 requirements, having been issued with no prior notice whatsoever. 5 U.S.C. §§ 553, 706(2).

2

1. The State Has Standing to Bring This Action

3

As the operator of its public institutions of higher education, Washington is directly

4 subject to the Directive and will suffer proprietary harm as a result. Washington v. Trump, 847

5 F.3d 1151, 1161 (9th Cir. 2017). State institutions educate thousands of students with F-1 visas

6 each year, and will suffer harm to their educational missions and financial losses if these students

7 are forced to disenroll as a result of the Directive, which is what will happen here. See supra at

8 6–7. International students are valued members of State institutions’ communities, contribute

9 diverse experiences and perspectives to the educational setting, pay full out-of-state tuition, and

10 are otherwise a significant source of revenue for State institutions. Moreover, as explained

11 below, F-1 visa students contribute directly to Washington’s economy while they reside here,

12 bringing almost a billion dollars into the State each year, and often go on to build their lives in

13 Washington and contribute to the State as employers, workers, consumers, and taxpayers.

14

Washington’s sovereign and quasi-sovereign interests in protecting the health, safety,

15 and well-being of its residents are also at stake. See Alfred L. Snapp & Son, Inc. v. Puerto Rico,

16 ex rel., Barez, 458 U.S. 592, 607 (1982). Washington’s adoption of public-safety measures in

17 response to the COVID-19 pandemic are an exercise of its police power. See, e.g., Nat’l Fed’n

18 of Indep. Bus. v. Sebelius, 567 U.S. 519, 535–36 (2012) (describing police powers reserved to

19 States). The Directive infringes on Washington’s exercise of its police powers by forcing schools

20 to rapidly decide whether to fully or partly resume in-person instruction this fall, and by seeking

21 to coerce schools into reopening without the opportunity to adequately account for safety

22 considerations or respond to changed circumstances amidst a rapidly evolving and unpredictable

23 pandemic.

24

2. ICE’s New Directive Is Subject to APA Review

25

Under the APA, a “final agency action” is subject to judicial review. 5 U.S.C. § 704. “A

26 ‘final’ agency action is one that both determines rights or obligations from which legal

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1 consequences will flow and marks the consummation of the agency’s decisionmaking process.”

2 Hyatt v. Office of Mgmt. & Budget, 908 F.3d 1165, 1172 (9th Cir. 2018) (quoting Bennett v.

3 Spear, 520 U.S. 154, 177-78 (1997)) (cleaned up). Considerations relevant to finality include:

4 “(a) whether the action is a definitive statement of an agency’s position, (b) whether it has a

5 direct and immediate effect on the complaining parties, (c) whether it has the status of law, and

6 (d) whether it requires immediate compliance.” Oregon v. Ashcroft, 368 F.3d 1118, 1146–47

7 (9th Cir. 2004) (cleaned up). Finality for APA purposes is a “pragmatic and flexible” inquiry:

8 “It is the effect of the action and not its label that must be considered.” Ore. Nat’l Desert Ass’n

9 v. U.S. Forest Serv., 465 F.3d 977, 982, 985 (9th Cir. 2006) (cleaned up).

10

Here, all four considerations demonstrate that the Directive is a final agency action. It is

11 a “definitive statement” of ICE’s position that, in fact, will be published “in the near future as a

12 Temporary Final Rule in the Federal Register.”8 It has a “direct and immediate effect” on the

13 State, its institutions of higher education, and their students, because it requires compliance

14 beginning July 15 and imposes immediate consequences by altering the status of student visas,

15 depending on whether students are taking in-person classes or not. For the same reasons, the

16 Directive “has the status of law”; indeed, reports indicate it is already being enforced and used

17 as a basis to deny entry. Finally, the Directive plainly requires “immediate compliance,” absent

18 intervention by this Court, through its July 15, August 1, and August 4 deadlines.

19

3. ICE’s New Directive Is Arbitrary and Capricious

20

a. ICE imposed arbitrary and untenable compliance deadlines

21

The July 15, August 1, and August 4 deadlines are arbitrary and capricious on their own,

22 independent of the Directive’s substantive requirements. Agency action is arbitrary and

23 capricious where it is not “logical and rational,” Allentown Mack Sales & Serv., Inc. v. NLRB,

24 522 U.S. 359, 374 (1998), or where it is “so implausible that it could not be ascribed to a

25 difference in view or the product of agency expertise,” State Farm, 463 U.S. at 43. ICE set an

26

8 Washington seeks to enjoin both the Directive and any “Temporary Final Rule” that follows therefrom.

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11

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1 arbitrary deadline of July 15—with nine days’ notice—for institutions to decide whether to

2 resume in-person instruction (and potentially adjust previous plans in light of the Directive’s

3 consequences), and for online-only institutions to submit an “operational change plan.” All other

4 operational plans must be submitted by August 1, and all institutions with a “hybrid” program

5 must make new I-20 certifications for each and every affected student by August 4.

6

These deadlines do not allow sufficient time to make the required decisions and

7 certifications, particularly in the midst of a pandemic that has drastically disrupted normal

8 operations. Some institutions that have already decided to hold classes online must revisit their

9 plans to determine whether changes can be made to avoid drastic harm to F-1 visa students while

10 preserving the health and safety of faculty, staff, students, and broader communities. See, e.g.,

11 Kaminski Decl. ¶¶ 10–13 (describing the significant administrative hurdles if YVC were to

12 abandon its plan to be fully online and implement in-person or hybrid instruction and how the

13 “short timeframe . . . before the start of the fall quarter” makes it “difficult for the College to

14 change course”); Chaudhry Decl. ¶¶ 19–20 (WSU reevaluation of its plans in response to the

15 Directive). ICE offered no logical rationale for forcing schools to rush into these decisions in a

16 matter of days, nor could it. Nor does the Directive account for the fact that some institutions’

17 ability to offer in-person classes is dependent upon the determinations of public health officials,

18 which cannot be predicted weeks ahead of time. See, e.g., Cauce Decl. ¶¶ 15, 18 (UW’s hybrid

19 approach is dependent upon the Safe Start plan); Reid Decl. ¶ 9.

20

Moreover, institutions on a hybrid model have thousands of F-1 students for whom new

21 I-20s must be issued by August 4. Reid Decl. ¶ 10 (UW: 8,000 I-20s); Chaudhry ¶ 20 (WSU:

22 1,900 I-20s). To make these certifications, institutions must scramble to accommodate students

23 who seek to register for in-person classes, even though registration for fall classes may not be

24 complete by early August. Reid Decl. ¶ 12 (UW); Schactler Decl. ¶ 30 (CWU). Schools have

25 insufficient staff to meet the deadline, as the process is “complex and labor-intensive[.]”

26 Reid Decl. ¶¶ 15–16; Chaudhry Decl. ¶ 20. A temporary restraining order is needed to provide

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1 relief from these entirely arbitrary, costly, and rapidly approaching deadlines.

2

b. ICE failed to consider the serious harms its Directive will impose

3

It is a fundamental precept of administrative law that an agency must “pay[] attention to

4 the advantages and the disadvantages of [its] decision[].” Michigan v. EPA, 135 S. Ct. 2699,

5 2707 (2015). Yet the Directive reflects no consideration of its significant harms to schools, their

6 faculty and staff, their students, and the surrounding communities. This too is arbitrary.

7

First, the Directive fails to consider the fact that institutions must reconsider plans they

8 spent months drafting with a broad array of experts based on their particular circumstances. As

9 discussed above (supra at 7–8), Washington institutions have made “herculean” efforts to not

10 only adapt to an online learning environment, but also to develop instructional policies and plans

11 for fall 2020 that appropriately balance their students’ educational needs, the health of the

12 campus and surrounding community, and the appropriate utilization of school resources.

13 Yoshiwara Decl. ¶ 22. WSU, for example, determined after months of evaluation that a hybrid

14 approach for most of the fall, but only-only after Thanksgiving was in the best interest of its

15 students and staff. Chaudhry Decl. ¶ 18. WSU made this decision “to minimize the time [it] must

16 attempt to control COVID-19 spread, minimize travel throughout the state, and to avoid the heart

17 of influenza ‘season’ to take pressure off campus and community health care resources.” Id.

18 Under the Directive, however, “all of WSU’s F-1 international students will be forced to leave

19 the country after Thanksgiving break, cutting off their ability to finish the semester just weeks

20 from its completion.” Id. To avoid this scenario—which WSU believes would result in many F-

21 1 students not enrolling in the fall—it would need to have all students return to campus after

22 Thanksgiving, potentially jeopardizing the health and safety of all of its students, faculty and

23 staff, and the local community. The Directive wholly fails to consider the harms caused by

24 requiring schools to potentially overhaul their operational plans in a matter of days or weeks or

25 risk losing their international students. See id. ¶ 21; see also, e.g., Kaminski Decl. ¶¶ 4–9

26 (discussing YVC’s decision to be online-only and the infeasibility of reassessing its plans within

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1 the Directive’s compressed timeframe).

2

Second, the Directive completely ignores the impossible conflict it creates for institutions

3 with international students both inside and outside the United States. Shoreline Community

4 College (SCC), for instance, which had been planning to remain predominately online in the fall,

5 explains that “[i]f the college does not offer hybrid courses, and conducts all classes fully online,

6 413 students who are physically in the U.S. would need to leave the U.S., or transfer to another

7 college or university”; whereas if it “decides to do a hybrid option, that would mean that the

8 299 students physically outside of the U.S. would be out of status and would have to go through

9 an extremely cumbersome process to return to the U.S. in the future to take at least one class in

10 person.” Yoshiwara Decl. ¶ 34. The Directive ignores the consequences of this Hobson’s choice,

11 which is yet another significant aspect of the problem. See id. ¶¶ 34, 36.

12

Third, the Directive fails to consider its devastating effects on international students’

13 safety. For students at hybrid institutions, the Directive ignores (i) the enormous expense and

14 significant health risks of unnecessary international travel for students who must leave or return

15 to the United States as a result of the Directive; (ii) the risk of COVID-19 exposure for students

16 attending in-person classes, particularly for those with underlying health conditions placing them

17 at greater risk; and (iii) the risk of potential detention faced by students who are unable to return

18 to their home country, whether due to COVID-19 travel restrictions or other reasons, in the event

19 of lost visa status if a school resumes online-only learning.

20

For students at online-only institutions, the Directive also ignores that many students who

21 will lose their visas cannot participate in online learning in their home countries due to factors

22 such as lack of internet access, social unrest, war, and time zone differences that make continuing

23 their studies infeasible or impossible. Cauce Decl. ¶ 8 (discussing barriers); Schactler Decl. ¶ 25

24 (describing potentially “perilous situations” for students from Haiti, Liberia, Nepal, Somalia,

25 Sudan, Syria, and Yemen). Over 77% of UW’s international students, for instance, come from

26 China, India, Taiwan, and Korea, which have significant time-zone differences, connectivity,

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1 and access issues. Cauce Decl. ¶ 8; Reid Decl. ¶ 4 (discussing unstable and censored internet

2 access in China, including an inability to access Zoom, Google, and journal article sites, as well

3 as a 15-hour time difference); Schactler Decl. ¶ 25. Nor does ICE’s Directive acknowledge the

4 impossibility of some students being able to return to their home countries due to travel

5 restrictions, which leaves those students vulnerable to detention. See, e.g., Yoshiwara Decl. ¶ 55

6 (noting that students from Burundi, Madagascar, and Jordan cannot fly back to their home

7 countries because flights are indefinitely suspended, and students from India or Columbia cannot

8 book flights back to their countries until August 31 at the earliest).

9

Fourth, the Directive fails to consider the potential impact on the safety of university

10 communities and public health generally. It requires students at institutions offering some in-

11 person classes who are currently abroad to return to U.S. campuses to maintain their visa status.

12 This not only places those students at risk of COVID-19 infection through unnecessary

13 international travel, but also endangers the university and local community more generally, as

14 students will be returning to Washington after extensive travel and exposure to others. In

15 addition, if hybrid institutions begin offering more in-person classes to accommodate visa

16 holders, domestic students who had planned to take those classes remotely would now be

17 required to attend classes in person, creating unexpected and unnecessary housing and/or travel

18 costs and putting those students at increased risk of contracting COVID-19. Reid Decl. ¶ 11.

19

The Directive gives no indication that ICE even thought about such issues—much less

20 that it addressed them or has a cogent reason for disregarding them. Because ICE “should have

21 considered those matters but did not,” its “failure was arbitrary and capricious in violation of the

22 APA.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1914 (2020).

23

c. ICE failed to consider widespread reliance its promise that the

24

March 13 Exemption would last “for the duration” of the pandemic

“When an agency changes course, as DHS did here, it must be cognizant” of “serious 25

reliance interests” that its prior approach has “engendered.” Regents, 140 S. Ct. at 1913 (internal 26

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1 quotation marks omitted). “It would be arbitrary and capricious to ignore such matters.” Id. at

2 515. Yet that is exactly what the new Directive does, and it is arbitrary and capricious for this

3 independent reason. ICE’s about-face forces State institutions of higher education to abruptly

4 reconsider and quickly finalize plans they have worked on for months in reliance on ICE’s

5 promise that the March 13 Exemption would be in effect “for the duration of the emergency.”

6

Defendants cannot dispute that “the duration of the emergency” has not ended. Acting in

7 reliance on the agency’s guidance that the March Exemption would remain in place as long as

8 “the emergency” continued, Washington institutions proceeded to make their plans for fall 2020.

9 Supra at 7. In reaching their decisions, institutions relied on ICE’s express statement that,

10 “[g]iven the extraordinary nature of the COVID-19 emergency,” international students would be

11 able to study remotely and retain their visas “for the duration of the emergency.” Id.; Coates Ex.

12 B. Students enrolled at Washington institutions likewise made plans and took concrete actions

13 in reliance on ICE’s prior promise—including traveling to or remaining in the United States,

14 booking tickets, leasing property, and foregoing opportunities to attend other institutions.

15 Stewart Decl. ¶ 22. The Directive does not even acknowledge these “serious reliance interests,”

16 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016), much less explain why they

17 were (in the agency’s view) less important than whatever factors motivated ICE’s decision.

18 “Making that difficult decision was the agency’s job, but the agency failed to do it.” Regents,

19 140 S. Ct. at 1914.

20

d. ICE failed to provide a plausible rationale for the Directive

21

The Directive is also arbitrary and capricious because ICE failed to articulate any

22 rationale to justify its new requirements. It is “a fundamental requirement of administrative

23 law . . . that an agency set forth its reasons for decision; an agency’s failure to do so constitutes

24 arbitrary and capricious agency action.” Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C.

25 Cir. 2014) (internal quotation marks omitted). “[C]onclusory statements will not do; an agency’s

26 statement must be one of reasoning.” Id. (internal quotation marks omitted); see also Dep’t of

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1 Commerce v. New York, 139 S. Ct. 2551, 2569 (2019) (an agency must “articulate[] a satisfactory

2 explanation for its [decision]”). Here, the Directive reflects virtually no reasoned

3 decisionmaking. It identifies a purported “need to resume the carefully balanced protections

4 implemented by federal regulations,” but fails to articulate why the agency perceives such a need

5 to exist, or why a resumption of pre-pandemic regulatory regime must begin immediately, while

6 the pandemic continues to rage and the national state of emergency remains in effect.

7

Instead of its stated reason, ICE’s abrupt change of policy appears to have been driven

8 by a political desire to encourage schools to re-open this fall. The same day that ICE issued its

9 new directive, President Trump tweeted “SCHOOLS MUST OPEN IN THE FALL!!!” Coates

10 Ex. D. And the following day, Acting Deputy Secretary of Homeland Security Ken Cuccinelli

11 stated that the purpose of the agency’s change in policy was to “encourage schools to reopen.”

12 Coates Ex. E. Because “the evidence as a whole” “reveal[s] a significant mismatch between the

13 decision the [agency] made and the rationale [it] provided,” the Directive is arbitrary and

14 capricious for this independent reason. Dep’t of Commerce, 139 S. Ct. at 2575.

15

4. ICE’s New Directive Violates the APA’s Notice and Comment Requirements

16

Under the APA, a court must set aside agency action that is “not in accordance with law”

17 or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). The APA

18 requires agencies engaged in rulemaking to comply with notice and comment

19 procedures. 5 U.S.C. § 553. The agency must publish a notice of proposed rulemaking

20 describing “the terms or substance of the proposed rule or a description of the subjects and issues

21 involved.” 5 U.S.C. § 553(b)(3). It must then give interested persons at least 30 days to comment

22 on the proposal. 5 U.S.C. § 553(d). “A decision made without adequate notice and comment is

23 arbitrary or an abuse of discretion.” NRDC v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002).

24

A recent case involving attempted changes to F-1 visa requirements, Guilford College v.

25 McAleenan, 389 F. Supp. 3d 377, 392 (M.D.N.C. 2019), is instructive. In Guilford College, a

26 plaintiff group including multiple colleges and students challenged a Policy Memorandum of the

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1 U.S. Citizenship and Immigration Services that changed a longstanding means of calculating

2 days of unlawful presence for F-1 visa holders, among others. Id. at 383–85. The court found

3 that because the Policy Memorandum had a “binding effect” on its administrators, it was a

4 legislative rule subject to the APA’s notice-and-comment requirements. Id. at 393. Because the

5 agency did not publish the Policy Memorandum in the Federal Register or respond to comments

6 about the change in policy, the court found the plaintiffs likely to succeed on their APA claim,

7 and entered a nationwide injunction enjoining implementation of the policy change. Id.

8

This case is very similar. Here, ICE’s Directive, and any “temporary final rule” that

9 follows therefrom, are subject to the APA’s notice-and-comment requirements. The Directive is

10 a “rule” within the meaning of the APA because it is an “agency statement of general or

11 particular applicability and future effect designed to implement, interpret, or prescribe law or

12 policy,” 5 U.S.C. § 551(4)—and in fact, ICE intends to publish the Directive’s requirements as

13 a “Rule” in the Federal Register. Compl. Ex. 1 at 1. Yet ICE entirely failed to comply with any

14 of the APA’s notice-and-comment requirements: the Directive itself was the first and only notice

15 of requirements that must be met by July 15, August 1, and August 4. The Directive identifies

16 no applicable exceptions to the notice-and-comment requirement, and there are none. Absent

17 “good cause” for bypassing notice-and-comment—which ICE has not established, nor could

18 it—the Directive violates 5 U.S.C. § 553. As such, it must be enjoined, vacated, and set aside

19 for that independent reason as well. 5 U.S.C. § 706(2).

20 C. The State Will Be Irreparably Harmed Absent Emergency Relief

21

Irreparable harm is harm “for which there is no adequate legal remedy, such as an award

22 of damages.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). The harm

23 analysis “focuses on irreparability, irrespective of the magnitude of the injury.” California v.

24 Azar, 911 F.3d 558, 581 (9th Cir. 2018) (internal quotation marks omitted). The testimony of

25 multiple college and university administrators establishes that ICE’s Directive is likely to cause

26 irreparable harm to the State of Washington, its educational institutions, students, their families,

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1 and their communities: it will deprive public institutions of critical revenue that cannot be

2 recovered from Defendants, damage the State economy and local economies, impede schools’

3 educational missions while upending the lives of students and their families, and put public

4 health at risk. These harms are occurring now, and emergency relief is needed before the

5 Directive formally takes effect on Wednesday, July 15. See Brown v. Kramer, 49 F. Supp. 359,

6 363 (M.D. Pa. 1943) (taking judicial notice of national emergency that “render[s] irreparable the

7 injury occasioned by” agency’s violation of law).

8

First, Washington’s institutions and the communities in which they are situated rely

9 heavily on international students for their economic viability. Uncompensable economic harm,

10 such as that caused by unlawful federal agency action, satisfies the irreparable harm standard.

11 See, e.g., Azar, 911 F.3d at 581; Idaho v. Coeur d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir.

12 2015); Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015). As discussed above, the ICE

13 Directive will force many visa holding students to leave Washington State and/or disenroll from

14 Washington institutions that cannot accommodate the in-person attendance requirement to

15 maintain visa status. Supra at 6–7. International students contribute nearly $1 billion to

16 Washington’s economy annually, including hundreds of millions in tuition and other revenue

17 paid directly to the State’s public institutions of higher education. Supra at 5.

18

Public institutions stand to lose multiple millions each in tuition, housing, and other

19 revenue sources. UW, for instance, receives an estimated $185 million in revenue from students

20 on F visa and OPT authorization, which is 26% of the University’s net operating fee revenue.

21 Cauce Decl. ¶ 22. The non-resident undergraduate tuition paid by international students ($38,166

22 per year) “allow[s] the University to offer financial aid resources for other students and keep

23 resident undergraduate tuition within the limits permitted by the Washington State Legislature

24 (currently $11,465).” Id. ¶ 23; see also supra at 56 (revenue from international students:

25

26

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1 $31 million for WSU; $14.6 million for CWU; $107 million for all community colleges).9

2 Washington’s colleges and universities have already lost critical revenue from tuition and

3 housing in fiscal year 2020, as the COVID-19 crisis forced them to close most residential

4 facilities and move to remote learning. See, e.g., Meotti Decl. ¶ 18; Harrell Decl. ¶¶ 12, 29;

5 Yoshiwara Decl. ¶ 36. Additionally, losing these students would invariably lead to significant

6 losses of campus resources, faculty and staff jobs, and in some cases entire academic

7 departments. See Chaudhry Decl. ¶ 25, ¶¶ 28–30 (WSU estimates that seven to twelve graduate

8 level programs could close as a result of the Directive); Cauce Decl. ¶ 23 (lost revenue from

9 international students “would require expense reductions to the University’s core academic

10 budget, which would negatively impact the educational experience for both resident and non-

11 resident students across the University”); see also, e.g., Yoshiwara Decl. ¶ 42; Harrell Decl. ¶

12 13; Schactler Decl. ¶ 27, 33.

13

International students also contribute significantly to local economies. A study by the

14 National Association of Foreign Student Advisors found that international students at UW

15 contribute approximately $383.3 million to the state economy and support 4,795 jobs in the

16 state.10 Cauce Decl. ¶ 33. International students’ economic contributions are significant across

17 the state, and requiring these students to leave would negatively impact local communities. See,

18 e.g., Pan Decl. ¶ 20 (international students at the Seattle Colleges contributed an estimated $16

19 million to the local economy in 2019-2020); Yoshiwara Decl. ¶ 49 (SCC estimates that loss of

20 732 affected students would remove $19,600,730 from the local economy); id. ¶¶ 51, 52

21 (international students at Community Colleges of Spokane and Cascadia College inject over $6.6

22 million and $2 million, respectively, into local economies); Chaudhry Decl. ¶ 31 (Pullman

23
9 See also, e.g., Yoshiwara Decl. ¶ 36 (projected loss of up to $9,085,154 for SCC); id. ¶ 37 ($5.2 million

24

for Everett Community College); id. ¶ 39 ($2.7 million and $1.9 million for Pierce College and Cascadia College, respectively); Harrell Decl. ¶ 13 ($1,298,770 for Tacoma Community College); Stewart Decl. ¶¶ 8, 20 (over $20

25

million for Green River College); Pan Decl. ¶ 5 (Seattle Colleges’ revenue generated by international student enrollment in 2019-2020 was approximately $17.7 million).

26

10 Available at https://www.nafsa.org/isev/reports/district?year=2018&state=WA&district=07 (last accessed Jul. 12, 2020).

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1 community would lose $4 million if WSU international students were forced to depart).

2

Second, the Directive irreparably harms Washington institutions’ educational missions,

3 which are furthered by the presence and contributions of international students. Federal action

4 that undermines a state organization or program and impedes its purpose constitutes irreparable

5 harm. See League of Women Voters of U.S. v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016); Valle del

6 Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013); E. Bay Sanctuary Covenant v. Trump,

7 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018).

8

Washington’s institutions depend heavily on international students, especially graduate

9 students, to fill critical teaching roles. For instance, in the fall quarter of 2019, more than 1,100

10 international students held a Teaching Assistant or Research Assistant position at UW. Cauce

11 Decl. ¶ 24. Loss of those students “would result in significant disruption to University teaching

12 and research, both through the loss of valuable expertise and significantly increased costs.” Id.

13 Similarly, 348 of WSU’s teaching assistants are F-1 visa holders; should they leave, WSU would

14 be forced to cancel many classes. Chaudhry Decl. ¶ 29. In addition, WSU might be forced to

15 cancel entire graduate level programs that rely heavily on international students “in areas critical

16 to the mission of the University includ[ing] Physics, Astronomy, Chemistry, Electrical

17 Engineering, Computer Science, Applied Economics, Math, Statistics, and Biology.” Id. ¶ 28.

18 And UW risks losing F-1 visa holders who “are working on critical COVID-19 work including

19 protein design, research on cardiovascular impacts of COVID-19, contact tracing, and data

20 analysis and forecasting used to understand and control the spread of COVID-19 until a vaccine

21 is developed.” Cauce Decl. ¶ 20.

22

International students also participate in collegiate athletics, and are critical to the

23 survival of those programs. See id. ¶ 30. WSU, for instance, has 43 returning and 20 incoming

24 student athletes on F-1 visas. Id. “If these students cannot enroll or the Rules force these students

25 to leave the country, five varsity sports teams would not meet NCAA size requirements.” Id. In

26 addition, international students hold pivotal positions in student government and academic clubs

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1 and organizations, serve as tutors and mentors to other students, and volunteer in local

2 communities. Stewart Decl. ¶¶ 24–25; Yoshiwara Decl. ¶¶ 58–59.

3

Furthermore, losing international students from the academic community deprives all

4 students of the benefits of exposure to diverse perspectives and opportunities for cross-cultural

5 understanding. See, e.g., Cauce Decl. ¶ 21 (“The entire campus benefits from the diversity that

6 international students bring.”); Chaudhry Decl. ¶ 22 (“The absence of international students on

7 the WSU campus would be tremendous detriment; the internationalization goal for the university

8 would be severely compromised . . .”). The reputational loss will also be staggering, as the ICE

9 Directive threatens to tarnish Washington colleges’ reputation as safe places and could

10 negatively impact their future recruitment efforts overseas. Yoshiwara Decl. ¶ 45. Reputational

11 damage and revenue loss would likely spell the end of some Washington institutions’

12 international partnerships. See, e.g., Harrell Decl. ¶ 31 (the Directive and budget cuts threaten

13 the survival of Japanese and Danish partnership programs); Chaudhry Decl. ¶ 23 (the Directive

14 may jeopardize international student exchange agreements and WSU’s worldwide reputation).

15

Harm to institutions’ educational mission of providing a high-quality education to all

16 students is underscored by the enormous financial, emotional, and physical strain on

17 international students and their families. Washington’s international students have expressed a

18 multitude of serious concerns, including:

19

 The stress of moving and leaving campus apartments or host families where

20

they have been able to stay safe and continue pursuing their studies during the pandemic;

21

 Finding flights out of the United States, which are often prohibitively

22

expensive and in some cases impossible where flights have been indefinitely suspended;

23

 The grave fear of risking their health, and that of their families, to take long-

24

haul flights, some of which have multiple stops and may be crowded;

25

 Fear of infecting their loved ones at home, such as elderly parents, or relatives who are immunocompromised;

26

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1

 Fear of becoming ill with COVID-19 in the United States through attendance

of in-person classes with no family members nearby to help care for them; 2

 Disappointment and frustration at potentially not being able to complete their

3

degrees remotely due to time differences and the poor quality or unavailability

of Wi-Fi and internet access in their home countries; 4

 Fear of their visas expiring and new visas not being issued by U.S. Consulates,

5

many of which are currently closed in their home countries;

6

 Uncertainty of ability to be able to return to the United States if forced to leave;

and 7

 Uncertainty, confusion, and anger brought upon by ICE’s betrayal of their trust

8

by abruptly revoking its March 13 Exemption.

9 See, e.g., Yoshiwara Decl. ¶¶ 46, 55; Kaminski Decl. ¶¶ 13–14, 16, 18; Pan Decl. ¶ 16; Stewart
10 Decl. ¶ 22; Reid Decl. ¶¶ 4–5; Chaudhry Decl. ¶ 19. The extremely short timeframe for
11 compliance increases students’ difficulty of making alternative arrangements, such as housing
12 or daycare, in their home countries. Kaminski Decl. ¶ 14. Students who rented apartments in
13 Washington may face penalties for breaking leases. Stewart Decl. ¶ 21; Pan Decl. ¶ 16. Students
14 unable to voluntarily travel home may be forcibly removed or detained by ICE, further risking
15 their health and safety and jeopardizing any future return to the United States. Compl. Ex. 1.
16 Finally, the ICE Directive threatens the health and safety of Washington’s residents.
17 Injury to residents’ health and well-being irreparably harms the State itself. See California v.
18 Health & Human Servs., 281 F. Supp. 3d 806, 830 (N.D. Cal. 2017), aff’d in pertinent part sub
19 nom. California v. Azar, 911 F.3d 558 (9th Cir. 2018) (finding irreparable injury based in part
20 on “what is at stake: the health of Plaintiffs’ citizens and Plaintiffs’ fiscal interests”). As
21 discussed above, the logistics of thousands of international students being forced to travel
22 internationally on a short timeframe with a limited number of flights exacerbates the health risks
23 to them, their families, and the surrounding communities. Conversely, to the extent the Directive
24 succeeds in its goal of coercing schools to reopen, this would necessarily entail putting college
25 and university campuses (and local communities) at increased risk of COVID-19
26

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1 spread. See, e.g., Harrell Decl. ¶ 25 (“This Rule forces us to offer more in-person classes during

2 a pandemic, and exposes more people to become ill.”); Reid Decl. ¶ 11 (if UW began offering

3 courses in-person which are currently scheduled remotely, students who planned to take remote

4 courses would be required to travel to Seattle, secure housing on short notice, and put themselves

5 at increased risk of contracting COVID-19). Classrooms and residence halls have the potential

6 to turn into “super-spreader” situations that endanger the health of not only the college or

7 university community, but also those in the surrounding areas and anyone else with whom

8 community members may come into contact.

9 D. The Remaining Equitable Factors Favor a Temporary Restraining Order

10

When the government is a party, the final two Winter factors merge. Drakes Bay Oyster

11 Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). The balance of the equities and public interest

12 strongly favor injunctive relief here. “There is generally no public interest in the perpetuation of

13 unlawful agency action. To the contrary, there is a substantial public interest in having

14 governmental agencies abide by the federal laws that govern their existence and operations.”

15 League of Women Voters, 838 F.3d at 12 (citations and internal quotation marks omitted). As

16 discussed above, the Directive is unlawful for numerous reasons and will wreak havoc on higher

17 education in Washington. Preserving the status quo will not harm Defendants, and refraining

18 from enforcing the Directive will cost them nothing. See Diaz v. Brewer, 656 F.3d 1008, 1015

19 (9th Cir. 2011) (court may waive Rule 65(c) bond requirement).

20

IV. CONCLUSION

21

For the reasons above, the Court should grant a temporary restraining order.

22

DATED this 13th day of July, 2020.

23

24

25

26

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER NO. 2:20-cv-01070-RSM

ROBERT W. FERGUSON Attorney General
/s/ Lauryn K. Fraas LAURYN K. FRAAS, WSBA #53238 KRISTIN BENESKI, WSBA #45478 SPENCER W. COATES, WSBA #49683 Assistant Attorneys General lauryn.fraas@atg.wa.gov (206) 521-5811 kristin.beneski@atg.wa.gov spencer.coates@atg.wa.gov Attorneys for Plaintiff State of Washington

25

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070-RSM Document 3 Filed 07/13/20 Page 28 of 29

1

DECLARATION OF SERVICE

2

I hereby declare that on this day I caused the foregoing document to be electronically filed

3 with the Clerk of the Court using the Court’s CM/ECF System which will send notification to all

4 counsel of record. Counsel further certifies:

5

(1) a copy of the TRO Motion, the supporting declarations and exhibits, and the proposed

6 order will be emailed to the Department of Justice promptly upon filing to the following email

7 addresses: Rayford.Farquhar@usdoj.gov and Brian.Moran@usdoj.gov;

8

(2) a copy of the TRO Motion, the supporting declarations and exhibits, and the proposed

9 order will be served upon Defendants by hand delivery at the following address:

10

United States Attorney’s Office

11

Western District of Washington 700 Stewart Street, Suite 5220

12

Seattle, WA 98101-1271;

13

and (3) a copy of the TRO motion, the supporting declarations and exhibits, and the

14 proposed order will be served upon the federal Defendants via FedEx overnight mail, addressed

15 as follows:

16

U.S. Department of Homeland Security

2707 Martin Luther King Jr. Avenue SE, Mail Stop 0485

17

Washington, DC 20528-0485

18

U.S. Immigration and Customs Enforcement

19

Office of the Principal Legal Advisor 500 12th Street SW, Mail Stop 5902

20

Washington, DC 20536-5902

21

Chad F. Wolf Acting Secretary of Homeland Security

22

U.S. Department of Homeland Security 2707 Martin Luther King Jr. Avenue SE, Mail Stop 0485

23

Washington, DC 20528-0485

24

Matthew Albence Deputy Director

25

U.S. Immigration and Customs Enforcement 500 12th Street SW

26

Washington, DC 20536

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1

DATED this 13th day of July, 2020, at Seattle, Washington.

2

/s/ Lauryn K. Fraas

3

LAURYN K. FRAAS, WSBA #53238

4

Assistant Attorney General

5

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8

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13

14

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EMERGENCY MOTION FOR

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1

The Honorable Ricardo S. Martinez

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 STATE OF WASHINGTON,

NO. 2:20-cv-01070-RSM

10

Plaintiff,

11

v.

12 UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
13 IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his
14 official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
15 MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Customs
16 and Immigration Enforcement,

TEMPORARY RESTRAINING ORDER
[PROPOSED]

17

Defendants.

18 The State of Washington’s Emergency Motion for Temporary Restraining Order is
19 GRANTED. Defendants and their respective officers, agents, and employees are hereby
20 ENJOINED from implementing or enforcing the “procedures and responsibilities” described in
21 the July 6, 2020, Student and Exchange Visitor Program (SEVP) “Broadcast Message:
22 COVID-19 and Fall 2020,” in any manner or in any respect, for 14 days. Accordingly,
23 Defendants are enjoined from promulgating the “Temporary Final Rule” referenced in the
24 July 6, 2020 Broadcast Message. The Court further ORDERS Defendants to comply with the
25 policy set forth in the March 13, 2020, Student and Exchange Visitor Program (SEVP) guidance
26

[PROPOSED] TEMPORARY RESTRAINING ORDER NO. 2:20-CV-01070-RSM

1

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070-RSM Document 3-1 Filed 07/13/20 Page 2 of 4

1 document entitled “COVID-19: Guidance for SEVP Stakeholders,” and otherwise preserve the

2 status quo with respect to holders of F-1 and M-1 visas as it existed prior to July 6, 2020.

3

SO ORDERED this ____ day of July, 2020 at _____:_____ a.m./p.m.

4

5

6

THE HONORABLE RICARDO S. MARTINEZ

7

UNITED STATES DISTRICT JUDGE

8

9 Presented by:

10

ROBERT W. FERGUSON Attorney General

11

12

/s/ Lauryn K. Fraas LAURYN K. FRAAS, WSBA #53238

13

KRISTIN BENESKI, WSBA #45478 SPENCER W. COATES, WSBA #49683

14

Assistant Attorneys General Lauryn.Fraas@atg.wa.gov

15

Kristin.Beneski@atg.wa.gov Spencer.Coates@atg.wa.gov

16 Attorneys for Plaintiff State of Washington

17

18

19

20

21

22

23

24

25

26

[PROPOSED] TEMPORARY RESTRAINING ORDER NO. 2:20-CV-01070-RSM

2

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070-RSM Document 3-1 Filed 07/13/20 Page 3 of 4

1

DECLARATION OF SERVICE

2

I hereby declare that on this day I caused the foregoing document to be electronically filed

3 with the Clerk of the Court using the Court’s CM/ECF System which will send notification to all

4 counsel of record. Counsel further certifies:

5

(1) a copy of the TRO Motion, the supporting declarations and exhibits, and the proposed

6 order will be emailed to the Department of Justice promptly upon filing to the following email

7 addresses: Rayford.Farquhar@usdoj.gov and Brian.Moran@usdoj.gov;

8

(2) a copy of the TRO Motion, the supporting declarations and exhibits, and the proposed

9 order will be served upon Defendants by hand delivery at the following address:

10

United States Attorney’s Office

11

Western District of Washington

700 Stewart Street, Suite 5220

12

Seattle, WA 98101-1271;

13

and (3) a copy of the TRO motion, the supporting declarations and exhibits, and the

14 proposed order will be served upon the federal Defendants via FedEx overnight mail, addressed

15 as follows:

16

U.S. Department of Homeland Security

2707 Martin Luther King Jr. Avenue SE, Mail Stop 0485

17

Washington, DC 20528-0485

18

U.S. Immigration and Customs Enforcement

19

Office of the Principal Legal Advisor 500 12th Street SW, Mail Stop 5902

20

Washington, DC 20536-5902

21

Chad F. Wolf Acting Secretary of Homeland Security

22

U.S. Department of Homeland Security 2707 Martin Luther King Jr. Avenue SE, Mail Stop 0485

23

Washington, DC 20528-0485

24

Matthew Albence Deputy Director

25

U.S. Immigration and Customs Enforcement 500 12th Street SW

26

Washington, DC 20536

[PROPOSED] TEMPORARY RESTRAINING ORDER NO. 2:20-CV-01070-RSM

3

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Case 2:20-cv-01070-RSM Document 3-1 Filed 07/13/20 Page 4 of 4

1

DATED this 13th day of July, 2020, at Seattle, Washington.

2

/s/ Lauryn K. Fraas

3

LAURYN K. FRAAS, WSBA #53238

Assistant Attorney General 4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

[PROPOSED] TEMPORARY RESTRAINING ORDER NO. 2:20-CV-01070-RSM

4

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

 </s> Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 1 of 126

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

STATE OF WASHINGTON, 10

NO. 2:20-cv-01070

Plaintiff,

11

DECLARATION OF

v. 12

ANA MARI CAUCE

UNITED STATES DEPARTMENT OF 13 HOMELAND SECURITY;

IMMIGRATION AND CUSTOMS 14 ENFORCEMENT; CHAD F. WOLF, in

his official capacity as Acting Secretary 15 of the U.S. Department of Homeland

Security; and MATTHEW ALBENCE, in 16 his official capacity as Acting Director of

U.S. Customs and Immigration 17 Enforcement,

18

Defendants.

19

20

I, Ana Mari Cauce, pursuant to 28 U.S.C. § 1746, hereby declare and affirm,

21

1. I am the President of the University of Washington, with campuses in Seattle,

22 Tacoma, and Bothell Washington, and a Professor in the University’s Department of

23 Psychology. My educational background includes a bachelor’s degree in English and
24 Psychology from the University of Miami and Ph.D. in psychology from Yale. I have been the
25 President of the University of Washington since June 2015 and previously served as Provost of
26

DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

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1 the University of Washington from 2011 to 2015. As President, I am the University’s chief
2 executive officer. 3
2. I submit this declaration in support of the State of Washington’s litigation 4
challenging the Department of Homeland Security and Immigration and Customs Enforcement 5 6 (ICE) policies announced on July 6, 2020 by “Broadcast Message” and to be published as a
7 Temporary Final Rule to amend requirements of the Student and Exchange Visitor Program

8 (the “Rule”).

9

3. I have compiled the information set forth below through personal knowledge as

10 well as through University of Washington personnel who have assisted me in gathering this

11 information from our institution. I have also familiarized myself with the Rule in order to
12
understand its immediate impact on the University of Washington. 13

14

Background on the University of Washington and its International Student

15

Population

16

4. The University of Washington is a state institution of higher education in the

17 State of Washington. In fall 2019, the University of Washington had 42,544 enrolled

18 undergraduate students and 16,847 enrolled graduate and professional students.
19 5. The University of Washington’s three campuses offer more than 636 degree
20
21 options across 312 programs.

22

6. The University’s 2020 budget is $8.25 Billion, including $403 Million in state

23 appropriated funding. The University supports or sustains a total of 100,520 jobs in the State of

24 Washington, and has a total annual economic impact of $15.7 Billion. 25

26
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1

7. The University of Washington’s undergraduate student population is comprised

2 of 73% residents of the state of Washington and currently has approximately 8,300 enrolled
3 students studying on F visas. An additional approximately 1,300 students are on Optional
4 Practical Training (OPT). These students come from 123 countries and contribute an estimated
5
6 $185 Million in revenue to the University of Washington.

7

8. These students hail from countries throughout the world, including Syria,

8 Afghanistan, Lebanon, Colombia, Venezuela, and Ethiopia. If forced to remain in or return to

9 their home countries, these students will face risks such as the possibility of being drafted into

10 their country’s armed forces, lack of internet access, war, social unrest, and time-zone
11 differences that may make continuing their studies at the University of Washington impossible.
12 77% of the University’s international students come from China, India, Taiwan, and Korea,
13
14 which have significant time-zone differences, connectivity, and access issues.

15

9. Of these students with F visas, the University estimates that over 6,000 are

16 registered for or are eligible to register for Autumn Quarter at the University.

17

10. The University has approximately 2,500 newly admitted international students

18 for enrollment in Autumn Quarter 2020 who will require F-1 visas, although 212 of them have
19 deferred admission until 2021. Of these students, the University has issued nearly 1,500 I-20s.
20
21 The University also has over 300 pending requests for undergraduate students.

22

The University of Washington’s Response to COVID-19

23

11. Washington State was one of the first states heavily affected by COVID-19, and

24 as a result, by mid-February, the University had begun working with local and state public

25 health officials to develop and align plans with recommendations from those experts. At that 26

DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

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1 time, the University began emergency preparations and established several committees to

2 guide its response. During the initial surge, the University also mandated telework for non-

3 critical personnel, prohibited in-person social events and gatherings, and implemented physical
4 distancing and public health procedures in its student housing facilities.
5

6

12. The University announced that it was suspending in-person classes on March 6,

7 2020, effective March 9, 2020, becoming the first American university to do so. This decision

8 resulted from extensive discussions both internally and with public health officials. The

9 University waited as long as possible to make this decision due to concerns for international

10 students, but ultimately determined that given the severity of the pandemic, the decision could

11 wait no longer. One week later, the State of Washington prohibited Universities from
12
conducting in-person classroom instruction and lectures due to the pandemic. 13

14

13. When the University moved to online courses, there was significant concern

15 about the risk to international students and their ability to continue to remain eligible for

16 student visas. When ICE issued the March 13 guidance, there was great relief at the University

17 that it would be able to move forward with offering Spring Quarter online. The University has

18 relied on the March 13 guidance, including the representation that it would be “in effect for the
19 duration of the emergency” in its move to online learning for Spring Quarter, its entirely
20
21 remote Summer Quarter, and its planning for Autumn Quarter.

22

14. Public health considerations have also been critical to the University’s analysis

23 and planning for Autumn Quarter. The University has considered how COVID-19 is spread,

24 the safety of University classrooms, on-campus housing, and other campus facilities. The

25 University has also considered risks to the health and safety of staff and faculty at the 26

DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

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1 University. As a result, the University has required masks on campus, will limit class sizes in
2 order to maintain six feet of physical distance within classrooms, and has implemented contact3
tracing. 4
15. At present, the University plans to begin classes on September 30 with a hybrid 5 6 of remote and in-person learning for Autumn Quarter. The University must operate in
7 compliance with the State of Washington’s four-phase Safe Start plan1, which constrains the

8 extent to which the University may offer in-person classes and the State’s specific guidelines

9 for higher education institutions.2 On May 29, 2020, the University issued its COVID-19

10 Prevention Plan and Safe Start Checklist to use as the basis for developing unit-specific plans

11 for Autumn Quarter, which must be centrally approved. Generally courses over 50 students
12
will be offered remotely, while those which can safely be offered in-person will be. 13

14

16. The University has carefully developed its plans for Autumn Quarter in order to

15 balance considerations of safety with the need to ensure that learning is maximized. The

16 University’s Back to School Task Force, with input from academic leadership, administration,

17 and public health experts, has developed guidance and resources for the campus community
18 regarding a return to campus for Autumn Quarter. The University’s expressed goal for Autumn 19
Quarter is to provide a “high-quality Husky Experience for every student”3, inside and outside 20 21 the classroom, as it prioritizes student, faculty, and staff health, along with student academic
22 success.

23

24

25

1 https://coronavirus.wa.gov/what-you-need-know/safe-start 2https://www.governor.wa.gov/sites/default/files/2020.06.23%20Campus%20Reopening%20Guide%20F

26

INAL.pdf?utm_medium=email&utm_source=govdelivery 3 https://www.washington.edu/coronavirus/

DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

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1

17. In developing its guidance, the operating assumption has been that the

2 University would remain in a state of emergency throughout Autumn Quarter. This concern
3 has solidified as the crisis has continued to worsen throughout the summer. In planning for
4 Autumn Quarter, the University has also operated under the assumption that the March 13
5
6 Guidance would remain “in effect for the duration of the emergency.”

7

18. When ICE issued the July 6, 2020, Broadcast Message, the University was

8 shocked. Removing the ability of international students to attend classes remotely at the height

9 of a pandemic is cruel and unfairly prejudices them at a time when the world can least afford it.
10 For some students who are at higher risk for COVID-19 symptoms, they may be unwilling or 11
unable to take in-person courses. Further, if the University is unable to move to Phase 3 by the 12
beginning of Autumn Quarter, or the region experiences a surge in COVID-19 cases during the 13 14 autumn, international students may be unable to comply with this change at all if the
15 University is required to move to an all-remote model as a result.

16

Economic Harm to the University of Washington

17

19. If the July 6 Broadcast Message is permitted to go into effect, international

18 students may disenroll from the University of Washington if they are unable to study from
19 within the United States. This may occur because those students are unable to obtain the
20
21 benefit of presence in the United States as well as because they are simply unable to continue

22 their course of study at the University due to conditions in their home country. Similarly, for

23 students who cannot safely relocate to their home country to study remotely, the University

24 would be prohibited from permitting them to continue their studies. Additionally, students may 25 withdraw if they lose their student visa and therefore ability to obtain OPT work authorization. 26

DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
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1

20. In addition, many F-1 visa holders are working on critical COVID-19 work

2 including protein design, research on the cardiovascular impacts of COVID-19, contact tracing,

3 and data analysis and forecasting used to understand and control the spread of COVID-19 until
4 a vaccine is developed.
5

6

21. For example, the University’s Institute for Health Metrics and Evaluation

7 (IHME) has produced COVID-19 forecasts that have been used at many levels of government.

8 The forecasts have been used in local resource allocation decisions within UW Medicine and

9 Washington State, within state government in all states in the US, by the White House, and by
10 multiple ministries of health and offices of planning around the world. IHME has three PhD 11
students on F-1 visas working directly on IHME’s COVID-19 model and contributing critical 12
input on data analysis, interpretation and dissemination. Without their contributions, the team’s 13 14 ability to produce timely and relevant results would be severely affected. This would have a
15 significant detrimental effect on the ability for all levels of government worldwide to respond

16 to COVID-19.

17

22. Although it is impossible to estimate the full economic impact on the University

18 of potential disenrollment, the impact to University revenue would be significant. The
19 University receives an estimated $185 Million in revenue from students on F visa and OPT
20
21 authorization, which is 26% of the University’s net operating fee revenue. Significant

22 disenrollment would result in precipitous declines in tuition, housing, and dining hall revenue.

23

23. This risk is particularly acute because non-resident undergraduate international

24 students pay tuition at a rate of $38,166 per year. These revenues allow the University to offer

25 financial aid resources for other students and keep resident undergraduate tuition within the 26

DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

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1 limits permitted by the Washington State Legislature (currently $11,465). Resident
2 undergraduate tuition rates at the University are set under specific parameters of the 3
Washington State Legislature, and the University is unable to independently change these rates 4
to make up for a loss in undergraduate international tuition revenue. Revenue loss in this 5 6 tuition category would require expense reductions to the University’s core academic budget,
7 which would negatively impact the educational experience for both resident and non-resident

8 students across the University.

9

24. Additionally, in Autumn Quarter 2019, 1,101 international students held a

10 Teaching Assistant or Research Assistant position at the University. If those students were
11 unable to obtain student visas to study at the University, this would result in significant
12 disruption to University teaching and research, both through the loss of valuable expertise and
13
14 significantly increased costs.

15

25. Providing more in-person instruction than is currently planned in response to

16 the Rule in order to prevent the loss of international students would undermine the careful
17 planning the University has engaged in and could result in significantly increased operational
18 and instructional costs, particularly given the University’s commitment to hygiene and physical 19
distancing to ensure the health of its faculty, staff, students, and the community. The 20 21 University has already experienced over $40 million in lost revenue and increased expense due
22 to COVID-19 impacts directly related to its educational and student support enterprises. The

23 University has also experienced a nearly $400 million loss at UW Medicine, its medical

24 enterprise. The University can ill afford the impact of additional revenue loss as a result of the

25 Broadcast Message’s impact on international students. 26

DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

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1

2

Harmful Impact on the University’s Educational Mission

3 26. The Broadcast Message threatens the ability of talented international students
4 seeking to work and learn at the University by prohibiting those students from obtaining
5

6 student visas unless they meet unreasonable—and potentially impossible—requirements

7 related to in-person courses. The entire campus community benefits from the diversity that

8 international students bring.

9

27. The University has many international students from countries devastated by the

10 COVID-19 crisis. Students from these countries would face increased risk of infection with
11 COVID-19 as a result of this Rule if they were forced to travel and return home.
12 28. Furthermore, the University’s international students who remained in the United
13
14 States based on the March 13 guidance, will face significant risks and harm under the

15 Broadcast Message. Returning to their home country could subject those students to the

16 possibility of being drafted into their home country’s armed forces, threats or abuse based on

17 their sexual orientation, lack of adequate healthcare, limited travel options, extraordinary travel

18 costs, and unnecessary exposure to COVID-19.

19 Impact on Health of Students, the University Community, and Public Health
20

21

29. The University has many international students from countries devastated by the

22 COVID-19 crisis, including over 4,800 students from China, over 50 students from the UK,

23 over 40 students from Brazil and Turkey, and over 20 students from Italy. Students from these

24 countries would face increased risk of infection with COVID-19 as a result of this Rule if they

25 were forced to travel and return home. 26

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1

30. Similarly, this Rule would have significant deleterious effects on the health of

2 the University community. It would force the University to choose between the health and
3 safety of the entire University community and the potentially acute risks faced by its
4 substantial international student population along with the financial risks that losing that
5
6 population would cause to the University. Additionally, given the constraints of the State of

7 Washington’s Safe Start program, if this Rule went into effect, it may be impossible for the

8 University to fully reopen in a way that permits international students to maintain their visas.

9

31. Were the University to elect to provide increased in-person instruction, it could

10 have a significant effect on the public health within the state of Washington by promoting the
11 spread of COVID-19 on campus. The University has already experienced a recent outbreak of
12 COVID-19 within its fraternity system. The Rule poses a significant threat to the public health
13
14 by encouraging an accelerated move to in-person classes in contradiction of public health

15 officials.

16

Economic Harm to Students and to Washington

17

32. Students who lose their visa could lose their ability to stay in Washington state,

18 their ability to obtain work authorization during and after the academic year, and subject them
19 to unreasonable costs associated with transportation to return to and shelter within their home
20
21 country.

22

33. International students at the University of Washington contribute approximately

23 $383.3 million to the state economy and support 4,795 jobs in the state, according to a study by

24 the National Association of Foreign Student Advisors (NAFSA). 25

26

DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

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1

34. The University is one of the largest employers in the State of Washington, and

2 pays over $2.8 Billion in salary each year to its employees. Many of these employees work

3 directly with international students, from student housing to research. The loss of international
4 student revenue, as well as the expertise international graduate students bring to the University
5

6 could have significant negative effects on employment at the University.

7

I declare under penalty of perjury that the foregoing is true and correct.

8 Executed this 10th day of July, 2020
9

10

/s/ Ana Mari Cauce ____________________________

11

Ana Mari Cauce

President

12

University of Washington

13

14

15

16

17

18

19

20

21

22

23

24

25

26
DECLARATION OF ANA MARI CAUCE CAUSE NO. 2:20-cv-01070

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1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

STATE OF WASHINGTON, 10

NO. 2:20-cv-01070

Plaintiff,

11

DECLARATION OF

V.

PIDLIP J. REID

12

UNITED STATES DEPARTMENT OF

13 HOMELAND SECURITY;

IMMIGRATION AND CUSTOMS

14 ENFORCEMENT; CHAD F. WOLF, in

his official capacity as Acting Secretary 15 of the U.S. Department of Homeland

Secmity; and MATTHEW ALBENCE, in

16 his official capacity as Acting Director of

U.S. Customs and Immigration

17 Enforcement,

18

Defendants.

19

20

I, Philip J. Reid, pursuant to 28 U.S.C. § 1746, hereby declare and affom,

21

1. I am the Vice Provost of Academic and StudentAffairs at the University of

22 Washington, with campuses in Seattle, Tacoma, and Bothell, Washington. My educational

23 background includes a Bachelor of Science in Chemist1y from the University of Puget Sound,

24 and a Ph.D. in physical chemist1y from the University of California, Berkley. I have been 25 employed as the Vice Provost of Academic and Student Affairs since July 2017 and professor 26

DECLARATION OF PHILIP J. REID CAUSE NO. 2:20-cv-01070
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1 || at the University since 1995. As Vice Provost for Academic and Student Affairs, I oversee the

Division of Enrollment Management which includes Admissions, the Registrar, the Office of

3

Student Financial Aid, International Student Services, Enrollment Information Services, and

4
the Veterans Education Benefits Office.

5
2. I submit this declaration in support of the State of Washington's litigation
6

challenging the policies announced on July 6, 2020 by "Broadcast Message" and to be

published as a Temporary Final Rule to amend requu-ements of the Student and Exchange

9 || Visitor Program (the "Rule"),

10 3. I have compiled the information set forth below through personal knowledge as

11 || well as through University of Washington personnel who have assisted me in gathering this

^2 || information from our institution. I have also familiarized myself with the Rule in order to

13 II 14 || 15 16 17

understand its unmediate impact on the University of Washington. Background on the University of Washington and its International Student Population
4. The University has ah-eady learned from its international student population that

if the Rule goes into effect, it will have an injurious impact on the University's international

students. For example, one student from China is concerned about the risk of infection if

20 || forced to take classes in person. They have no family here to care for them if they get sick. If

21 || they return to China, they will face unstable and censored internet access, an inability to access

22 || Zoom, Google, and journal article sites. There will be a 15-hour time difference meaning they

will have to work at night to synchronize with the Seattle time zone. They will suffer a large

24

financial loss due to the veiy expensive flight home and having to cancel their lease in Seattle.

25

26

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1 If forced to leave, the student is not sure they will could or would return to the United States
2 I) because they are afraid this could happen again.
3
5. Another student from a county in southern Africa reports similar concerns. 4|| Fir_ st., t.he.internet in their country is expensive and poor quality and they will have trouble
5
downloading documents and submitting and receiving assignments. There is also a 10-hour
6
time difference meaning they will not be able to follow classes in real time. Being outside the
United States, the student will lose access to some websites, Libraries, and local scientific
5 || opportunities. Travel to their country will also be treacherous as civil aviation authorities have
10 || suspended international flights to the country. This student made many sacrifices to come
11 || study in the United States. If forced to leave under these conditions, this student may not return
12 | after the expense and stress of this situation.
|| The University of Washington's Response to COVED-19 14
6. The University has responded to and continues to monitor thepandemic with
15
guidance from state and county public health officials as well as the University's Institute of
16
Health Metrics and Evaluation. The safety of our students, faculty, staff, and community drive
our decision-making.
7. I co-chau- the University's Back-To-School Task Force. The work of the
20 || committee is informed by the University's Advisoiy Committee on Communicable Disease,
21 || Environmental Health and Safety Unit, and UW Medicine infectious disease specialists. The
22 task force is constantly reviewing and updating University protocols to protect student, faculty,
and staff health in campus spaces including residences, classrooms, labs, and libraries.
24 25 26

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1 8. University chancellors, deans, vice presidents and others that report du'ectly to

^ II the University president and provost are using a CO VID-19 Prevention Plan and Safe Start

Checklist as the basis for developing unit-specific plans.
4
9. The University was in complete disbelief when it received the Broadcast
5
Message. All of the planning that the University had done, includmg reworking its entire set of
6
course offerings, had been built on the assumption that the University would be in Phase 3 of

the State's Safe Start plan and that the March 13 guidance from ICE would remain "in effect

^ jj through the duration of the emergency."

10 || 10. When the Department of Homeland Security issued the July 6 Broadcast

11 || Message, the University already had international students returning and tiying to register for

12 || courses. This Broadcast Message threw all of the University's planning into complete disarray.

Under the Broadcast Message, the University would need to issue completely new I-20s for the
14
over 8,000 international students enrolled at the University.
15
11. This also affects domestic students, who had relied on the University's time
16
schedule and course offerings as modified in reliance on the March 13 guidance. If the July 6

Broadcast Message were allowed to take effect and the University began offering courses in -

person which are currently scheduled remotely, students who planned to take remote courses

20 would be required to travel to Seattle and secure housing on short notice. This would create

21 || unexpected and unnecessary costs to those students, as well as put them at increased risk of 22 || contracting COVID-19.

12. Additionally, because the University is on a quarter system, it has student

24

orientations which run all the way through August. This means that the University does not

25
even know what courses many international students will register for until those orientations
26

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1 || have concluded. However, orientation will conclude well past the August 4 deadline for

issuing I-20s, and as a result, it would be impossible for the University to make the

3

certification that the student will attend at least one in-person class required under the Rule.

4
Administrative Burdens and Planning Disruptions

5
13. In revising its time schedule and determining which courses the University will
6

offer remotely and which courses it will offer in-person, the University embarked on a careful

planning process, in which it placed more than 7,000 Autumn Quarter courses in three

g II categories: those with no remote analog, those with over 50 students (which would present no

10 option for in-person instmction), and those which were possible to offer remotely and which

11 11 could be offered with less than 50 students.

12 || 14. The University's academic units have spent an extraordinaiy amount of time

13

over the last several months developing plans for Autumn Quarter, all of which were based on

14
the belief that the March 13 guidance would remain in effect through Autumn Quarter.

15
Academic units have hu-ed instructors specifically for remote or in-person courses. Students
16

have registered for courses based on the course's status as remote or in-person. Moving a
17

course from remote to in-person or adding an in-person section for a course currently offered

remotely creates numerous staffing issues related to securing additional or different instructors,

20 11 as well as concerns for students who relied on the University's planning, based on the March

21 13 guidance.

22 || 15. If the Broadcast Message takes effect, and the August 4th deadline for making a

certification that an international student will not be taking an entirely online course load
24
remains in place, the University will be unable to plan for Autumn Quarter tn an effective way.
25
26

DECLARATION OF PHILIP J. REID CAUSE NO. 2:20-cv-01070
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1 || 16. Given current staffing, it is not feasible to re-issue all I-20s for mtemational

students. Issuing an 1-20 is a complex and labor-intensive process for the University.

3

Harmful Impact on the University's Educational Mission

4
17. If it were safe, the University would prefer to be able to offer in-person
5

learning. However, the ability to offer international students the ability to study remotely from
6

the United States confers many significant advantages over requu-ing those students to return to

their home countries. There are many co-curricular activities outside of the classroom that

g |j international students can access if they are permitted to take courses remotely in Seattle that

10 they would not be able to access from outside the United States, such as libraries, informal

11 || communities of learning, and interactions with professors outside of the classroom.
12
13 II /// 14 I ///
15 ///
16 17 18 19 20
21 18. In fact, the University has discovered that for international students who

22 || dropped courses recently, one of the most common issues was the ability to connect to remote

learning and the lack of support for remote students. These resources are impossible to access
24
outside of the campus community. Implementing the requirements of the Broadcast Message
25
26

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1 would prevent the University from providing these opportunities to its international student
^ I) population. 3
I declare under penalty of perjury that the foregoing is tme and correct.
Executed this 10th day of July, 2020
6 7
Phlilipp -JJ.^.BH|-elid
Vice Provost of Academic aA^l Student Affairs 9 University of Washington
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

DECLARATION OF PHILIP J. REID CAUSE NO. 2:20-cv-01070
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1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON 7

STATE OF WASHINGTON,

NO.

8

Plaintiff,

9

DECLARATION OF

v. 10

ASIF CHAUDHRY

UNITED STATES DEPARTMENT OF

11 HOMELAND SECURITY;

IMMIGRATION AND CUSTOMS

12 ENFORCEMENT; CHAD F. WOLF, in

his official capacity as Acting Secretary

13 of the U.S. Department of Homeland

Security; and MATTHEW ALBENCE, in

14 his official capacity as Acting Director of

U.S. Customs and Immigration

15 Enforcement,

16

Defendants.

17

18

I, Asif Chaudhry, pursuant to 28 U.S.C. § 1746, hereby declare and affirm,

19

1. I am the Vice President for International Programs at Washington State

20 University (WSU or University), Washington State’s land grant institution and the second largest

21 public research university in the Pacific Northwest. I have held this position since June 2015.

22 Prior to my current role at WSU, I spent my career working for the United States Government

23 as a Senior Foreign Service Officer, holding numerous leadership positions in the Departments

24 of State, Defense, and Agriculture. These positions included Vice President of the Commodity

25 Credit Corporation, Foreign Policy Advisor to the Chief of the United States Navy at the

26

DECLARATION OF ASIF CHAUDHRY

1

CAUSE NO.

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1 Pentagon, and U.S. Ambassador to the Republic of Moldova. I have personal knowledge of the

2 facts set forth in this declaration, and I am competent to testify about them.

3

2. As Vice President for International Programs at WSU, I have responsibility for

4 WSU’s international research activities, study abroad programs, international students, and

5 student and faculty exchanges. I am the chief international relations officer at WSU and am

6 responsible for the role of International Programs in carrying out WSU’s mission of global

7 engagement, which is “To apply knowledge through local and global engagement that will

8 improve quality of life and enhance the economy of the state, nation, and world.” I also manage

9 WSU’s programs focusing on establishing strategic partnerships with governments and

10 educational institutions across the globe.

11

3. I submit this declaration in support of the State of Washington’s litigation

12 challenging the policies announced on July 6, 2020 by “Broadcast Message” and to be published

13 as a Temporary Final Rule to amend requirements of the Student and Exchange Visitor Program

14 (“SEVP”) (the “Rule”).

15

4. I have compiled the information set forth below through personal knowledge as

16 well as through University personnel who have assisted me in gathering this information from

17 WSU. I have also familiarized myself with the Rule in order to understand its immediate impact

18 on the University.

19

5. WSU was founded in 1890 as Washington’s original land-grant university. WSU

20 is chartered by the state of Washington, and is governed by the Board of Regents, whose

21 members are appointed by the governor, which provides direction to the WSU President. The

22 Washington state legislature also approves annual operating and capital budgets for WSU,

23 including state funding for WSU. For the fiscal year 2020-21, the state legislature appropriated

24 over $277 million dollars to WSU. Due to COVID-19 budget reductions, the state informed

25 WSU that this amount will be reduced by at least $7M.

26

DECLARATION OF ASIF CHAUDHRY

2

CAUSE NO.

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1

6. WSU serves citizens and students throughout the State of Washington, with

2 educational sites in Pullman, Spokane, Tri-Cities, Vancouver, Everett, Bremerton, and through

3 its online Global Campus, as well as over 500 study abroad programs in over 48 countries. WSU

4 serves 31,607 students and employs over 7000 employees system-wide. Following the IPEDS

5 definition for total enrollment (which excludes students in Education Abroad), WSU has 52.6%

6 female students and 27.7% minority students (defined per IPEDS as including Asian Americans,

7 Black or African Americans, American Indian or Alaskan Native, Hispanics of any race, Native

8 Hawaiian or Pacific Islander, or Two or More Races) enrolled system-wide; 35.6% of students

9 are the first in their families to attend college. WSU’s main campus is in Pullman, Washington,

10 where it serves 20,976 students (30% multicultural) representing 48 states and 106 countries.

11 WSU offers 98 undergraduate majors, 78 master’s degree programs, 65 doctoral degree

12 programs, and 3 professional degree programs in medicine, pharmacy, and veterinary medicine.

13 WSU has 11 colleges, advancing knowledge in hundreds of disciplines.

14

7. WSU currently has 1869 enrolled students who have F-1 visas. WSU has zero

15 enrolled students who have M-1 visas. These students represent more than 100 countries. Of

16 these students, approximately 70% of them are currently in the United States.

17

8. In addition to the 1869 currently enrolled F-1 visa students, WSU has 681 newly

18 admitted international undergraduate students expected to attend WSU in the Fall 2020 semester

19 who will require F-1 or M-1 visas. Of these students, only 206 are currently in the United States

20 and 475 are currently living outside the United States and require a visa to enter the country for

21 study. These students will contributed up to $6 million in tuition, fees, housing and dining for

22 the university if they are able to get to the United States. Another 172 international graduate

23 students plan to start their degree at WSU under an F-1 visa this fall if they are able to travel to

24 Washington.

25

9. In response to the COVID-19 outbreak in Washington at the beginning of the

26 year, WSU stood up its Incident Command System (ICS) in late February, when Washington

DECLARATION OF ASIF CHAUDHRY

3

CAUSE NO.

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1 Governor Jay Inslee declared a state of emergency on February 29, 2020. The ICS leadership

2 was supported by an Executive Policy Group (EPG) that served a coordinating role, and also

3 functioned as an emergency policy-setting group in support of the ICS commander and WSU

4 President Kirk Schulz. Since that time, WSU has streamlined the ICS structure and the EPG

5 function has been placed into the full President’s Cabinet (Vice Presidents and campus

6 Chancellors). Various task groups have been charged with planning the COVID-19 response

7 within the various functional elements of the university, for example, dining, residential life,

8 classroom instruction.

9

10. As the EPG monitored the progression of COVID-19 in early March, it became

10 apparent that the rise of the pandemic meant that WSU should minimize students returning to

11 the Pullman campus after spring break, which was the week of March 16, 2020. WSU made the

12 decision to shift to distance instruction (online instruction) the week before spring break so that

13 when students left campus, they knew they were strongly discouraged from returning and that

14 all of their courses would finish the last six weeks of instruction and week of final examinations

15 via distance learning approaches. WSU immediately started preparation for the switch to

16 distance instruction when classes resumed on March 23. This gave us two full week for that

17 preparation. During that time professional staff and educators in WSU’s Office of Academic

18 Outreach and Innovation (AOI) offered over 60 training sessions, seven days a week, and into

19 evening hours, that were attended by over 700 faculty. Although not flawless, the shift worked

20 well, according to both student and faculty assessment surveys, and performance of students

21 with respect to academic progress, course withdrawals, grades, and other indicators being on par

22 with the Spring Semester 2019.

23

11. Consistent with our strategy around spring break, for their health and safety, most

24 students did not return to Pullman. WSU has complied with all World Health Organization,

25 Center for Disease Control, and State of Washington proclamations and planning guidance with

26 respect to basic campus operations, student housing and dining, instruction, and all other campus

DECLARATION OF ASIF CHAUDHRY

4

CAUSE NO.

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1 activities. Telework has been the norm where possible. All recruiting and new student

2 orientation programs have gone online. To more broadly promote student success and retain

3 them in progress toward their education, WSU liberalized its academic regulations to permit

4 more course withdrawals and more use, if desired by a student, of pass/fail grading, with the

5 deadline extended beyond when grades were due. There was increased use of pass/fail grading,

6 but no more use of course or semester withdrawal. All indicators (surveys, academic

7 regulations) are that the switch to distance education had little material impact on student

8 educational achievement. In a survey the Office of International Programs released, 80% of

9 WSU international students indicated they had a positive experience learning online and

10 expected to continue to do so until such time as we are no longer in an emergency.

11

12. To monitor the COVID-19 pandemic and in preparation for the fall semester,

12 WSU government relations staff are constantly engaged with the Governor’s Office and relevant

13 department secretaries (e.g., Health, Agriculture, Commerce), King County Public Health,

14 Whitman County Public Health, Challenge Seattle (a high-level public-private partnership), and

15 other relevant authorities. In addition, the Washington Higher Education Council of Presidents

16 and its various working groups coordinate and share information regularly. Fall planning is in

17 the hands of the relevant senior administrators, often supported by task-specific working groups.

18

13. In addition to the interactions described above in paragraph 12, WSU Pullman

19 personnel meet regularly with local planning authorities (e.g., city government, Whitman County

20 Public Health, the Palouse Physician Pandemic Taskforce) to coordinate activities. The WSU

21 Public Health Emergency Taskforce is a major channel of communication to Whitman County

22 Public Health, as is WSU’s Office of Environmental Health and Safety. As a multi-campus

23 system, similar local coordination is carried out in the communities of other WSU campuses. In

24 eastern Washington, WSU is engaging jointly with Whitman County Public Health and the

25 Spokane County Health District to coordinate planning. In addition, each member of WSU

26 Executive Leadership connects regularly with their peers at other institutions of higher education

DECLARATION OF ASIF CHAUDHRY

5

CAUSE NO.

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1 to share expertise and best practices – for example, monthly conference calls of the PAC-12

2 conference provosts, and similarly for the presidents and others. In addition, normal academic

3 connections with national organizations like the Association of Public and Land Grant

4 Universities provide sharing of information, plans, guidance, and best practices.

5

14. Public health of the University community and the communities surrounding

6 WSU’s campuses is of the upmost concern to the University. This is especially true in Pullman,

7 where WSU’s student population represents over half of the cities total population. An outbreak

8 of COVID-19 on the level of community spread as is currently being seen elsewhere in the

9 country (and recently at several fraternity houses at the University of Washington) could have

10 disastrous effects on Pullman’s rural medical infrastructure—only twenty-five hospital beds are

11 available at the Pullman hospital.

12

15. In preparation for fall semester, the team in the Office of the Provost has worked

13 with the colleges and academic program leadership (Deans, Associate Deans, Department

14 Chairs) to prepare for fall teaching in a mix of face-to-face and distance courses as dictated by

15 safety considerations and inventory of lecture halls, teaching labs, and equipment needed to

16 support education. WSU intends a hybrid of face-to-face and distance instruction. Decisions on

17 which classes will be face-to-face is ongoing, with consideration being given to class size (no

18 class larger than 50 will be face-to-face), prioritizing classes that benefit more from face-to-face

19 (e.g. labs, studio, and discussion), and faculty safety and availability. At this time, the University

20 is finalizing room scheduling with the goal that students will know by August 1 which classes

21 will be face-to-face and which will be distance. Seating capacities in classrooms have been

22 reduce to keep physical distancing of at least 6 feet; disinfection protocols are in place for

23 changeover between classes; traffic patterns in buildings will be controlled to facilitate

24 circulation, entry, and egress with minimal close interactions; and facial coverings are required

25 for all instructional staff and students in classrooms.

26

DECLARATION OF ASIF CHAUDHRY

6

CAUSE NO.

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1

16. As a research-intensive institution, not only is research a major mission element,

2 research education and training for both graduate students and undergraduate students is a key

3 strategic goal. In conjunction with the planning noted in paragraph 15, WSU is developing a

4 safe-return to research plan to guide ramping up research activities after an initial slow-down.

5 The return plan will incorporate guidance about lab safety as necessary to add in biosecurity with

6 respect to COVID-19, as well as maintaining the ability to work remotely when possible. Safely

7 engaging students in research is a critical part of WSU’s educational mission.

8

17. Before instruction begins next month, WSU must finalize its comprehensive

9 biosecurity plan for the Pullman campus, and the other campuses. Major common elements are

10 in place (e.g. disinfection protocols, attestation, and temperature checks). Others are in advanced

11 stages of planning (e.g. quarantine facilities in Pullman on campus and in the community and a

12 contact-tracing program). The final piece of an overall plan is the selection and implementation

13 of an active surveillance program (and one option is to select not having such a plan). A team

14 of faculty experts has advised leadership of their simulation results (and assumptions) that

15 suggest a variety of options. It remains to select an option then put in place the logistics to collect

16 samples on a daily basis around campus and the community. WSU Pullman has on-campus

17 testing capacity well in excess of the needs of an active surveillance program.

18

18. WSU has not altered the start date for instruction for the Fall Semester 2020,

19 which is August 24, 2020, but did move up the move-in period for incoming freshman to begin

20 August 3, 2020. WSU will have a regular length (17 weeks) academic semester, which includes

21 a week-long break at Thanksgiving, two weeks of instruction after Thanksgiving, and a week of

22 final examinations. When Thanksgiving break begins after week 13 of instruction, students will

23 be asked to leave the Pullman community/campus and not return (those students who must stay

24 in Pullman because they have no other, or no safe, place to go, such as international students,

25 will be allowed to stay). The final two weeks of instruction and final examinations after

26 Thanksgiving will be all by distance, and there will be no face-to-face instruction during this

DECLARATION OF ASIF CHAUDHRY

7

CAUSE NO.

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1 period. This is done to minimize the time we must attempt to control COVID-19 spread,

2 minimize travel throughout the state, and to avoid the start of the heart of influenza “season” to

3 take pressure off campus and community health-care resources. No decisions have been made

4 about potentially altered semester structure for Spring Semester 2021. Under the Rule, all of

5 WSU’s F-1 international students will be forced to leave the country after Thanksgiving break,

6 cutting off their ability to finish the semester just weeks from its completion.

7

19. The announcement of the Rule had an immediate and ongoing effect on the

8 University and its students. At the time the Rule was announced, the Department of International

9 Student and Scholar Services within the Office of International Programs immediately received

10 hundreds of e-mails and phone calls from faculty, staff, and students across the WSU system and

11 from abroad. The general sentiment was shock, fear, outrage and extreme anxiety. A number of

12 students called in tears on Zoom meetings and we had parents reach out to us asking if they

13 should plan to get their students on an international flight back home, if it was even possible. On

14 July 8, 2020, WSU held an impromptu town hall for its international students and announced it

15 two hours prior. With only two hours’ notice, 300+ attended the town hall on the Rule, listing

16 over 100+ questions and directly expressing their anxiety and concern regarding the Rule. Our

17 advising team fielded more than 500 e-mails within the first 24 hours of the Rule being released,

18 with each adviser receiving 100-200 e-mails from students per day since.

19

20. As a result of the Rule, WSU will be forced spend significant administrative

20 resources. There is significant complexity and challenge to implement a system to monitor live

21 versus remote instruction, to re-issue I-20s (is a minimum of 1900), and to-re-evaluate

22 instructional modality to comply with the Rule; to do all of this within less than six weeks is a

23 nearly impossible task. The Rule requires our Primary Designated School Official to do

24 additional reporting and work within the 10-day required update period of change and that is an

25 extremely short window in which to report changes necessary to ensure the health and safety of

26 WSU should there be a need to transition to distance delivery. Thus, WSU anticipates an

DECLARATION OF ASIF CHAUDHRY

8

CAUSE NO.

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1 immediate need to allow our designated school officials overtime and to hire staff to support the

2 international community in response to the Rule. WSU anticipates the cost of doing so to be

3 between $15,000 and $20,000.

4

21. The Rule will require all of WSU’s F-1 students to depart the United States with

5 only three weeks left in the semester. This will have untold consequences on students who

6 choose to stay enrolled at WSU for the fall semester. A more likely scenario however, is that F-

7 1 students will choose not to enroll in the fall with the knowledge that they will be forced to

8 either leave the United States or fall out of compliance with their visa status at the end of the fall

9 semester. Per an internal survey, International Programs estimates that a minimum of 25% of

10 WSU’s enrolled international students plan to leave the University as a direct result of the Rule.

11 A loss of a substantial number of international students, either prior to or during the semester,

12 would be extremely damaging to WSU.

13

22. The absence of international students on the WSU campus would be a tremendous

14 detriment; the internationalization goal for the university would be severely compromised, as

15 well as the opportunities to provide programming that prepare domestic students for their roles

16 as future global citizens. A decrease or lack of international diversity deprives our domestic

17 students of the exposure of internationalization and the related opportunities of peace and

18 understanding, which are so critical in today’s global and interconnected world. The

19 International Programs-International Center (IC) is a perfect example of the direct impact this

20 would have. In just the past year, the IC provided cultural programming for over 2000 students

21 and community members; it reached over 5,000 people in the area through social media and

22 newsletters, provided nearly 500 hours of academic support to both domestic and international

23 students, and worked with more than 20 community partners, including the public schools,

24 Rotary Club and retirement centers. This work is in large part the result of the efforts of the

25 international students who manage the IC. In the same way, the International Students’ Council

26 (the ISC) is a high-functioning Registered Student Organization that falls under the umbrella of

DECLARATION OF ASIF CHAUDHRY

9

CAUSE NO.

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1 the Associated Students of Washington State University (ASWSU). The ISC is responsible for

2 developing and facilitating International Education Week(s) each year, advocating for

3 international student concerns such as health insurance, career opportunities, and immigration

4 issues. The cabinet also provides support for the 19 international RSOs that comprise the

5 membership of the ISC as they plan events and activities. The cabinet develops orientations,

6 retreats, and a multitude of cultural activities each semester to bring students and the community

7 together to share cultures, and to promote understanding tolerance and acceptance. These

8 organizations would not exist without the presence of international students.

9

23. If international students from other countries fear coming to the United States due

10 to major disruptions in their education or living situation (see paragraph 19), it will take many

11 years to recover from that sense of fear. Without students traveling and experiencing exchange

12 opportunities, there will be a gap in peer-to-peer marketing and it will take years to rebuild those

13 connections. Exchange students, both coming and going for the U.S., are essentially

14 ambassadors for their country, helping build rapport and setting the groundwork for future

15 interactions and connections between the two countries. This groundwork often becomes the

16 foothold Washington businesses need to expand into or create connections in foreign

17 countries. Thus, cultural exchange is highly important for both countries and for the state of

18 Washington and its businesses. Without incoming students, WSU cannot send outgoing students

19 under its exchange agreements, thus limiting current and future domestic student opportunities

20 and risking the termination of exchange agreements with other institutions. This represents a

21 major loss in the good will gained over decades of student exchange and facilitating international

22 student interest along with the opportunities it grants for increased cultural competency growth

23 for students on both sides of the exchange.

24

24. As stated in paragraph 21, the Rule is certain to have a detrimental effect on

25 WSU’s retention of international students. WSU’s retention for international students is

26 currently upwards of 80%. This retention and the international student population, contribute to

DECLARATION OF ASIF CHAUDHRY

10

CAUSE NO.

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1 WSU’s overall institutional ranking. Any decrease in international enrollment and, as a result,

2 retention, and change to overall student academic performance, brought up by international

3 students, would directly decrease WSU’s rankings.

4

25. Many international students enter the University through direct entry for these

5 activities but some also start with English as a Second Language at the WSU CEA-accredited

6 program taught by the Intensive American Language Center faculty. Due to the Rule, if WSU is

7 not able to offer Academic English/ESL and pathways programs “live,” WSU will loss all of

8 those students immediately. In spring 2020, that was a total of nearly 200 students. This would

9 cause the Academic English and pathways programs to potentially close entirely, thus shutting

10 off that funnel of students into the University and causing significant loss of future enrollment

11 and revenue as 98% of those students matriculate into the WSU system as degree-seeking

12 international students after completion of Academic English or pathways.

13

26. The negative effects of the Rule reach beyond the University. F-1 immigration

14 status comes with the ability to seek practical training with United State employers. Practical

15 training both in its curricular practical training (CPT) and/or optional practical training (OPT)

16 form is in high-demand in a state such as Washington that houses such companies as Amazon,

17 Boeing, Starbucks, Microsoft, and a multitude of others that frequently host such students. The

18 state of Washington will likely lose out on this vital human resource if the Rule is allowed to go

19 into effect.

20

27. In addition to the qualitative harm to the University and Washington State, the

21 Rule will have a severe financial impact on the University and the communities in which it is

22 physically present. WSU projects a total net revenue from international tuition and fees for

23 AY20-21 to be $17.8 million. Since international students pay full-freight non-resident tuition,

24 the financial impact of losing any international students is magnified. On the Pullman campus,

25 University Recreation estimates that these students will contribute $565 thousand in fees for the

26

DECLARATION OF ASIF CHAUDHRY

11

CAUSE NO.

Appendix

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1 upcoming while House and Dinning estimates it would lose $13.3 million dollars if no

2 international students came this next academic year.

3

28. There is potential that entire programs could shut down at the graduate level that

4 heavily rely on international enrollments. WSU anticipates 7-12 graduate level programs that

5 rely heavily on international enrollment could close as a result of the Rule. These program in

6 key areas critical to the mission of the University include Physics, Astronomy, Chemistry,

7 Electrical Engineering, Computer Science, Applied Economics, Math, Statistics, and Biology.

8

29. In addition to potentially closing programs or courses, there is the potential for a

9 direct impact to teaching due to the loss of international graduate teaching assistants.

10 International teaching assistants make up a sizable portion of instructors for undergraduate level

11 courses. The chart below, organized by course subject, summarizes the number of international

12 teaching assistants teaching WSU undergraduate courses. Currently, there are 348 international

13 teaching assistants contributing invaluable instruction to undergraduate level students. At this

14 late date, it would be impossible for the University to replace all the instructional hours these

15 TAs provide, meaning programs may not be able to be sustained. The Carson College, for

16 instance, estimates it would not be able to teach at least six courses this fall without its

17 international students, thus disrupting the entire educational experience to its students (domestic

18 and international).

19

International Teaching Assistants, Spring 2020

20 Accounting

3

AFS

1

21 AMDT

2

22 Animal Science

2

Anthropology

6

23 Architecture

1

Astronomy

4

24 Business Administration

4

25 Biology

12

Civil Engineering

5

26 Chemical Engineering

3

DECLARATION OF ASIF CHAUDHRY

12

CAUSE NO.

Appendix

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1 Chemistry

5

2

Communications Computer Science

11 25

3 Criminal Justice

2

Electrical Engineering

23

4 Economics

28

5

Education / Sp Ed English

5 2

6 Entomology

1

Entrepreneurship

4

7 Environmental Science

5

8

Foreign Language Human Development

5 10

9 Hospitality Business Management

9

History

4

10 IPM

2

11

Math/Stat Mechanical Engineering/Materials Science

15 40

12 Marketing

9

Pharmacy

6

13 Philosophy

1

Physics

21

14 Political Science

5

15 Psychology

2

Soil Science

1

16 Vet Med

1

Women’s Studies

2

17 Other

61

18

348

19

30. The Rule could also have disastrous effects on University Athletics. Currently,

20 WSU has forty-three returning and twenty incoming student athletes on F-1 visas. If these

21 students cannot enroll or the Rules forces these students to leave the country, five varsity sports

22 teams would not meet NCAA size requirements. This includes the women’s tennis team (89%

23 F-1 students), the women’s basketball team (69%), and the women’s golf team (63%). This

24 would put the University at risk of falling out of compliance with NCAA, Pac-12, and Title IX

25 rules and regulations.

26

DECLARATION OF ASIF CHAUDHRY

13

CAUSE NO.

Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 474-7744
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1

31. In addition to the direct costs to the University, the loss of international students

2 would be negatively impact the local economies that WSU helps support. Each international

3 student spends, on average, a minimum of $2000 annually in the community outside of the

4 University. That would bring a minimum of a $4 million dollar loss just in the local Pullman

5 community.

6

32. According to NAFSA (2020) in Washington’s 5th District, international students

7 contribution 129.5 million dollars annually to the local economy. A majority of that contribution

8 is a direct result of on-going international enrollments at Washington State University with minor

9 contributions from Spokane Falls Community College-Pullman campus. These international

10 students specifically support 1,242 jobs in the 5th District.

11

DATED this 10th day of July 2020, at Pullman, Washington.

12

13

14

______

ASIF CHAUDHRY

15

Vice President, International Programs

Washington State University 16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF ASIF CHAUDHRY

14

CAUSE NO.

Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 474-7744
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1

2

3

4

5 UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

STATE OF WASHINGTON, 8

NO. 2:20-cv-01070

Plaintiff,

9

DECLARATION OF

v. 10

JANICE LEE YOSHIWARA

UNITED STATES DEPARTMENT OF 11 HOMELAND SECURITY;

IMMIGRATION AND CUSTOMS 12 ENFORCEMENT; CHAD F. WOLF, in

his official capacity as Acting Secretary 13 of the U.S. Department of Homeland

Security; and MATTHEW ALBENCE, in 14 his official capacity as Acting Director of

U.S. Customs and Immigration 15 Enforcement,

16

Defendants.

17

18

I, Janice Lee Yoshiwara, declare as follows.

19

1. I am over the age of 18, competent to testify as to the matters herein, and make this

20 declaration based on my personal knowledge.

21

2. I submit this declaration in support of Washington’s litigation challenging the

22 policies announced on July 6, 2020 by “Broadcast Message” and to be published as a Temporary

23 Final Rule to amend requirements of the Student and Exchange Visitor Program (the “Rule”).

24

3. I have compiled the information in the statements below through my personal

25 knowledge or based on the documents that I have reviewed. I have familiarized myself with the

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

1

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 34 of 126

1 information contained in the Rule in order to understand its immediate impact on our member

2 institutions.

3

4. I have served as the Executive Director for the Washington State Board of

4 Community and Technical Colleges (SBCTC) since July 1, 2017. Prior to that, I worked as Deputy

5 Director for the Education Division at SBCTC, Associate Director for Information Technology and

6 Assistant Director for Student Services and Minority Affairs at SBCTC. Prior to SBCTC I served

7 as the Director for Minority Affairs at Pierce College Fort Steilacoom.

8

5. As Executive Director, I manage an agency that oversees Washington state’s unified

9 community and technical college system, which is comprised of 34 community and technical

10 colleges. Under the direction of our Board of Directors, I oversee the staff, resources, policies and

11 procedures to carry out the vision and strategic plan set by our Board of Directors. This involves

12 distributing state and federal resources to colleges; working with State Board members, presidents

13 and trustees on unified approaches that strengthen our students and institutions; coordinating with

14 K-12 and university partners; and managing legislative and state agency relations.

15

6. The SBCTC is led by a 9-member Board of Directors appointed by the Governor

16 with the consent of the Senate. As a state agency, the SBCTC administers the Community

17 College Act of 1967 and provides leadership and coordination for Washington State’s system of

18 34 public community and technical colleges. The agency supports and empowers community

19 and technical colleges through advocacy, resources, information, leadership and accountability.

20 In doing so, the State Board serves an essential role in increasing higher education opportunities

21 for the people of Washington and meeting statewide educational attainment goals.

22

7. Each year, about 363,000 students attend a community or technical college to

23 train for the workforce, prepare to transfer to a university, gain basic math and English skills, or

24 pursue continuing education. As open access institutions, we serve students of all ages, races and

25 backgrounds across Washington State. Our colleges create upward mobility for the people of our

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

2

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 state and build a skilled workforce for a vibrant and inclusive economy well equipped to compete

2 in a global marketplace.

3

8. Of our approximately 363,000 students, approximately 13,000 students have

4 either F-1 or M-1 visas. In 2018-2019, our international full-time enrollment was 11,385

5 students. These students come from more than 40 countries across the world and contributed

6 approximately $107,673,637 in tuition to our member institutions in 2018-19.

7

9. Bellevue College, for example, enrolls approximately 970 international students

8 from China, Taiwan, South Korea, Vietnam, Japan, Congo (Kinshasa), Indonesia, Hong Kong,

9 Brazil Russia and other countries.

10

10. Green River College, had an annual F-1 student enrollment headcount of 4,154 in

11 2019-2020. This summer term, 750 international students from 46 countries are currently studying

12 at Green River College. This includes students from Bangladesh, Cambodia, Democratic Republic

13 of Congo, Eritrea, India, Iraq, Iran, Kenya, Kyrgyzstan, Madagascar, Myanmar, Nigeria, Papua

14 New Guinea, Swaziland, Tunisia, West Bank, and Zambia.

15

11. Edmonds Community College enrolls students from China, Indonesia, S. Korea,

16 Vietnam, as well as students from the MENA (Middle East Northern Africa) Region, such as Libya,

17 Burundi, Gambia, Saudi Arabia and Jordan. The college also serves students from Latin America,

18 including Brazil and Costa Rica.

19

12. At Everett Community College, 131 international students are studying in the

20 United States, and 89 are currently outside the U.S.

21

13. At the two Community Colleges of Spokane, 125 international students are

22 currently in the U.S. and 35 are outside of the U.S.

23

14. Our international students bring much more to our community and technical

24 colleges than financial benefits. They introduce diverse perspectives into classroom discussions,

25 break stereotypes and make our campus more vibrant. As a result, all students learn different

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

3

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1 interpersonal and communication styles, learn to make more informed opinions, and gain a better

2 understanding of international issues and foreign affairs.

3

15. By bringing diversity and cultural awareness to their fellow students,

4 international students help all students prepare for the diverse world in which they will live, work

5 and compete. They help create positive cultural, racial and ethnic relations in communities big

6 and small here in Washington and across the globe.

7

16. Throughout the COVID-19 pandemic, our community and technical college

8 system has worked diligently to continue to provide educational opportunities for all our students

9 so they can complete their studies, enter jobs and universities, and create a skilled workforce that

10 reinvigorates our economy.

11

17. In late February, one of our 34 community and technical colleges, Lake

12 Washington Institute of Technology in Kirkland, found itself at the epicenter of the COVID-19

13 outbreak in the United States. Nursing faculty and students participating in clinical rotations

14 were at the senior assisted living facility and exposed to patients with COVID 19. Immediately

15 what had once seemed like a distant concern, became an immediate threat. College leadership in

16 the system began to dial in the gravity of the situation and started conversations on their

17 respective campuses about “what if” scenarios.

18

18. Within two weeks of the outbreak at the senior assisted living facility, the state

19 issued several executive orders resulting in cancelling in-person K-12 and higher education

20 instruction. The executive orders formed Governor Inslee’s March 23 Stay Home, Stay Healthy

21 order.

22

19. Like higher education institutions across the nation, COVID-19 threw

23 Washington’s 34 community and technical colleges into uncharted waters. Fortunately, our

24 system of colleges was able to draw upon decades of experience with online learning. All 34

25 colleges have eLearning directors who share best practices through a system-wide eLearning

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

4

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1 Council. Through the council, faculty share information about designing instructional content

2 for online classes.

3

20. The colleges also share a common Learning Management System and other tools

4 that allow faculty to create virtual classrooms, complete with lecture capture, online test

5 proctoring, captioning, and etutoring. Most colleges require faculty to go through free training

6 courses offered by the State Board. Information is also available 24-7 on a web-based resource

7 page.

8

21. The COVID-19 crisis hit Washington right as students were finishing up winter

9 quarter. Colleges used spring break to shift instruction and services online. Virtual rooms were

10 set up so students could drop in and get real-time help from faculty and staff.

11

22. This Herculean shift to move everything online also meant that students had to

12 have computers and access to WiFi. Colleges responded by distributing laptops, Chromebooks

13 and WiFi hotspots, and by expanding the reach of their internet access to parking lots.

14

23. Foundations stepped up to offer grants to help students in emergency situations,

15 and colleges distributed federal CARES funding to help students make ends meet.

16

24. Collectively with our K-12 and university partners, we addressed issues around

17 grading, college admissions, dual-credit, and university transfer, with a shared understanding

18 that students should not be penalized for the disruptions caused by COVID-19. All of this was

19 accomplished in strict compliance with the Governor’s Phase 1 and Phase 2 higher education

20 safety protocols.

21

25. In May, the governor’s office granted a request by the State Board for Community

22 and Technical Colleges to allow small groups of students in certain training programs—like

23 Allied Health—to access labs and equipment on campus. The programs were limited to those

24 attached to a list of essential occupations that are exempt from the Stay Home, Stay Healthy

25 order. Governor Inslee, in consultation with the Department of Health and the Department of

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

5

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 Labor and Industries, later issued a proclamation allowing colleges to teach the hands-on

2 component of any prof-tech class on campus. By that time, our system had gained valuable,

3 demonstrable, experience in teaching the hands-on portion of professional-technical classes

4 within health safety standards.

5

26. On June 24, Governor Inslee announced a plan to reopen in-person instruction

6 and services for higher education for fall quarter 2020. The plan was based on months of

7 collaborative work by executive leadership from higher education sectors, businesses, and other

8 government. The plan is effective August 1 and colleges are preparing their respective campuses

9 for fall quarter based on the guidelines outlined in the plan. The reopening plan encourages

10 remote learning when possible, and social distancing and personal protective equipment when it

11 is not possible. The necessarily rigorous nature of the health and safety protocols have led some

12 colleges to withhold offering certain professional-technical programs altogether until the

13 governor reopens higher education on August 1, 2020.

14

27. Throughout this pandemic, SBCTC leadership has convened regular “check in”

15 meetings with personnel from specific areas of college governance—presidents, chief academic

16 officers, vice presidents for student services, etc. These meetings provide an efficient way for

17 our entire system to jointly monitor updates, address new challenges, and provide solutions.

18 Colleges also meet regularly (daily in many cases) with their own leadership teams to best

19 operationalize safety standards. SBCTC also staff meets regularly with the Governor’s staff,

20 Department of Health, Nursing Commission, the Department of Labor and Industries, the

21 Council of Presidents (4-year public higher education institutions), Independent Colleges of

22 Washington (4-year private higher education institutions), the Office of Superintendent of Public

23 Instruction, and the Washington Student Achievement Council.

24

25

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

6

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1

28. Every decision made since early March has focused on the health and safety of

2 our students and college employees and with great collaboration across all sectors of higher

3 education.

4

29. Given our high respect for the role international students serve in creating an

5 excellent educational community for students, SBCTC was initially relieved when ICE indicated

6 in March that F-1 and M-1 visa holders could attend classes remotely without losing their status,

7 and that this exemption would be “in effect for the duration of the emergency.” Our colleges

8 followed and continued their reliance on March guidance from ICE in preparing for the fall

9 semester because it was put in place “for the duration of the emergency.” Based on this

10 representation, we assumed this guidance would be in place for the fall term.

11

30. We were shocked to learn that on July 6, 2020, ICE sent out a “Broadcast

12 Message” reversing this previous guidance. In this “Broadcast Message,” ICE announced that it

13 was rescinding the March 13 exemption, requiring all students on F-1 visas whose university

14 curricula are entirely online to depart the country, and barring any such students currently outside

15 the United States from entering or reentering the United States (the “July 6 Directive”).

16

31. The July 6 Directive requires every institution of higher education to decide, by

17 Wednesday July 15, 2020—nine days after its issuance—whether it will fully or partly resume

18 in-person education, and to submit an “operational change plan” if classes will be online-only.

19 Schools adopting a “hybrid” system of online and in-person instruction must, by August 4, 2020,

20 certify for each and every F-1 visa student that the student is not taking an entirely online course

21 load for fall 2020, and that the student is taking “the minimum number of online classes required

22 to make normal progress in their degree program.” The July 6 Directive states that the

23 “procedures and responsibilities” therein will be published “in the near future as a Temporary

24 Final rule in the Federal Register.” But the Directive itself establishes “procedures and

25 responsibilities” with which schools and students “must” comply as early as July 15, 2020.

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

7

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1

32. The July 6 directive has fundamentally disrupted our institutions’ reopening plans

2 for fall 2020. Planning for fall term re-opening at all our colleges was based on the flexibility

3 provided by SEVS during the emergency. However, without much warning, ICE/SEVP

4 rescinded some of the most critical exemptions and put students and schools in a scramble.

5 International students enrolled in colleges choosing to remain online for health and safety

6 reasons will need to abruptly leave the U.S. or change schools, disrupting their educations.

7 Although most colleges are offering hybridized/in-person options for all students, some colleges,

8 such as Shoreline Community College and Yakima Valley College, plan to remain

9 predominantly or all online in fall 2020 given the continued prevalence of the COVID-19

10 pandemic. Community and technical college students who stay in the United States and take the

11 hybrid courses, which are highly recommended under safety protocols, will need to take at least

12 one class face-to-face, with no allowances for if the class has to pivot back to all online learning

13 due to a spike in the pandemic.

14

33. Moreover, the July 15 and August 1 submission dates for operational plans are

15 unreasonable and antithetical to effective planning for re-opening. This Directive harms our

16 institutions’ enrollments and financial health, and create costly administrative burdens. Many

17 students looking forward to a chance to study in the U.S. will likely disenroll or not enroll at all

18 in fall 2020. Others will lose their ability to obtain OPT/CPT work visas. A large number may

19 try to switch colleges, resulting in administrative and financial challenges for the students and

20 the institutions themselves.

21

34. Travel and visa challenges are already making it hard for international students

22 to come here, learn and contribute. Compounding the problem are travel bans instituted in June

23 2020. International enrollments are already falling, and the new rule makes the problem worse

24 during an extremely challenging time for our entire country. Shoreline Community College, for

25 example, faces a difficult challenge with its students. If Shoreline decides to do a hybrid option,

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

8

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 that would mean that the 299 students physically outside of the U.S. would be out of status and

2 would have to go through an extremely cumbersome process to return to the U.S. in the future

3 to take at least one class in person. If the college does not offer hybrid courses, and conducts all

4 classes fully online, 413 students who are physically in the U.S. would need to leave the U.S.,

5 or transfer to another college or university. Shoreline has at least 21 students in ESL levels who

6 would need to be 100% enrolled in face to face courses to remain in the U.S. Students at

7 Shoreline and other colleges are reporting much frustration and anxiety, and many indicate they

8 are likely to abandon plans to study in the U.S. altogether.

9

35. Everett Community College (EvCC) currently enrolls 250 international students

10 across 42 programs; all will be negatively impacted by the Department of Homeland Security’s

11 decision to modify the temporary SEVIS procedures put in place in response to COVID 19. Like

12 Shoreline, EvCC has a mix of students studying in the United States. Of the 250 international

13 students, 131 are studying in Washington state. Unless EvCC can find a way to offer hybrid or

14 face-to-face classes that meet their educational needs and are consistent with CDC guidelines,

15 all 131 stand to lose their immigration status and would need to leave the US immediately. The

16 131 students represent 27 different countries, many of which have limited travel access for

17 students to return. Because EvCC is operating according to a limited hybrid model, the remaining

18 international students, currently outside the US, would also lose their current immigration status.

19 In order to complete their studies when fully face-to-face classes eventually resume, these 89

20 students would need to either reactivate or completely restart their immigration status. Further,

21 students among this group who are close to graduation and who had hoped to transfer to a 4-year

22 American college or to take advantage of temporary work opportunities in the United States may

23 no longer be permitted to do so.

24

36. The impact on institutions’ already-strained budgets would be significant.

25 College expenses have increased dramatically due to the necessary measures in place for

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

9

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1 distancing, sanitation, and general contamination containment. Anticipated budget cuts at the

2 state level will compound these concerns. For instance, Shoreline Community College had

3 already anticipated and planned for a $2.2 million budget reduction this year. Because of the

4 pandemic, Shoreline is now anticipating an additional $4.5 to $7.3 million in budget reductions

5 for 20-21. This new ICE rule has the potential to impact Shoreline even more so given that the

6 college has maintained an international student enrollment over 800 students for the past 5 years.

7 Shoreline Community College estimates that the potential loss of the approximately 723 of its

8 students affected by the rule (including loss in tuition, housing, food service, and bookstore

9 revenues) would eclipse $9,085,154.

10

37. Everett Community College would also experience a devastating financial

11 impact. The college stands to lose $850,000 in the next biennium in housing revenue with 34

12 students currently living in student housing. The college could lose up to $5.2 million in lost

13 international contract revenue in the next biennium if all 250 students believed to be affected are

14 unable to study online after losing their immigration status.

15

38. Bellevue College estimates it would lose approximately $850,000 in the next

16 biennium in housing revenue. It is conceivable that the college would lose up to $5.2 million in

17 lost international contract revenue in the next biennium as a result of the SEVS determination.

18

39. Pierce College projects lost tuition revenue of $2.7 million, while Cascadia

19 College projects $1.9 million in lost tuition revenue. Edmonds College projects deep losses in

20 bookstore revenue and food purchases.

21

40. At Skagit Valley College, international tuition revenue in the past has accounted

22 for up to 10% of the total revenue. Like other colleges, these funds are part of the operational

23 budget. Under this scenario, international revenue would drop to 2-4% of total revenue at Skagit

24 Valley College.

25

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

10

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

41. Community Colleges of Spokane predicts an immediate impact of over $250,000,

2 and the potential permanent loss of these students for the year would be roughly $1 million.

3

42. At every college, not having International students could cause loss of

4 employment for those who teach, advise and work in the International Programs departments of

5 a college.

6

43. The rule would also put extra administrative burdens on our colleges. Most

7 colleges do not have international management software, so the ruling would require a time-

8 consuming process of recording and verifying information, reissuing the I-20 forms,

9 electronically sign them, and them sending them to students. Colleges would need to reissue the

10 I-20 form for each student on F-1 status and within short order. The rule also requires extensive

11 communication with our students, their parents, and external recruiting partners. Global teams

12 are reaching out across time zones to host live informational sessions and personally speak with

13 each student.

14

44. Executive staff costs are not inconsiderable, as our chancellors, presidents and

15 numerous chief officers have had to redirect their accountabilities to reviewing and responding

16 to the needs of colleagues, students, and constituents at a time when those resources were already

17 strained by the effects of COVID-19.

18

45. Actions such as ICE’s rule would not only impact short-term enrollment, but

19 would, without a doubt, impact our member institutions for many years to come. The ICE

20 directive threatens to tarnish our colleges’ accurate reputation as safe places and could negatively

21 impact their future recruitment efforts overseas. The credibility and trust that colleges have built

22 with parents, alumni, education partners and agents would be in jeopardy if they are unable to

23 deliver on their promise of delivering an excellent education that leads to a certificate or degree.

24 International students, families and partners are expressing bewilderment and disappointment at

25 the U.S. and are looking for other destination countries such as Canada and Australia for their

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

11

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 students. Shoreline Community college, for instance, estimates that it would take at least 10

2 years to rebuild its program after it is severely damaged by the proposed ICE ruling.

3

46. Centralia College has heard from international students about how they would be

4 impacted if they are asked to leave the United States. Those impacts include:

5

a. Stress of moving/leaving their campus apartments or host families where they

6

have been able to stay safe AND continue to pursue their degrees (fully online

7

due to Covid restrictions);

8

b. Finding flights to take them home (every country is wary of in-bound flights

9

from the U.S.);

10

c. The high cost of international flights (when available);

11

d. Grave fear risking their health to take these long-haul flights;

12

e. Fear of infecting their loved ones at home (elderly parents, relatives who are

13

immunocompromised);

14

f. Disappointment/frustration to not be able to complete their degree (some are so

15

close to graduation) due to time differences and the quality of wifi/internet

16

access; and

17

g. Fear of visa expiring and new one not being issued by U.S. Consulates, if not in

18

all, definitely in some countries.

19

47. Community Colleges of Spokane expects to face an increased need for mental

20 health counseling in some instances. Students also report feeling marginalized and devalued.

21

48. The rule would also have a cascading effect on the local economies that support

22 our institutions. According to the NAFSA International Student Economic Value Tool, the

23 financial contribution from international students was $956.1 million during the 2018-2019

24 academic year in the state of Washington with supporting 8,818 jobs.

25

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

12

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1

49. This effect is magnified on the local level. For instance, International student FTE

2 makes up almost 20% of the whole student body at Shoreline Community College. 50% of

3 students living in the Residence Hall are international students. Shoreline Community College

4 projects that its students alone contributed $25.9 million to the Washington Economy and

5 supported 132 jobs. Shoreline estimates that the loss of the 732 students currently affected by

6 the rule would remove $19,600,730 from the local economy.

7

50. Centralia College expects host families would lose the stipends received from

8 students they host and local restaurants would lose money spent when students frequent them.

9 Other businesses would also be impacted, such as car insurance/rental companies; health

10 insurance companies (students are required to purchase student health insurance, healthcare

11 facilities (students buy memberships to local gyms), local grocery stores and big-box stores.

12

51. Cascadia College is located in the city of Bothell, WA. The Bothell economy is

13 greatly bolstered by the presence of international students at Cascadia. A conservative estimate

14 of 200 students enroll in college courses every year. This translates into a $2,000,000 annual

15 infusion into the local economy as measured by apartment rentals and patronage at grocery

16 stores, restaurants, and local shops. This income is also directed to insurance companies, banks,

17 commuter transit, and other travel. The joint campus of Cascadia College and University of

18 Washington, Bothell is among the top 10 major employers in the area. A loss of international

19 students would trigger a reduction in college staff, further contributing to the erosion of the

20 economy on the NE side of Lake Washington.

21

52. Community Colleges of Spokane estimates the impact of international students

22 to the Spokane economy to be $6.6M per year. In a situation of over 15% unemployment in

23 Spokane County and similar unemployment rates in the other counties of the service area, the

24 loss of these students would deal measurable damage to the local economy.

25

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

13

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

Page 45

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1

53. Green River College points to a 2018 economic impact of $35.8 million and 181

2 jobs, as estimated by NAFSA: Association of International Educators.

3

54. The Rule would also likely have a disastrous effect on the lives of our students,

4 and would likely cause major disruptions to their education. Students who lose their status

5 because of this rule face the loss of professor-student communications and collaboration; loss of

6 interaction with and learning with other students; loss of involvement in campus life – clubs,

7 organizations, sports, social interactions; and loss of opportunity to improve/attain English

8 language fluency for many.

9

55. Students also likely face health consequences as a result of the rule. Students who

10 lose their status may not be able to leave the U.S. safely, as some may be experiencing pandemics

11 in their own home countries. Moreover, our institutions welcome students from dozens of

12 different countries, and the logistics and risks of transport make travelling back home a practical

13 impossibility. For instance, students from Burundi, Madagascar, and Jordan cannot fly back to

14 their home countries, as according to the IATA flights are indefinitely suspended to those

15 countries. Students from India or Colombia cannot book flights back to those countries until

16 August 31 at the earliest. Higher education institutions are reporting that Chinese students face

17 extreme difficulty finding flights and are paying exorbitant prices to get home. Students’ ability

18 to leave the U.S. safely during the midst of a pandemic is similarly likely to be significantly

19 constrained.

20

56. The Rule creates a number of impacts on the health of our universities’

21 community. For instance, many of our students, staff, and faculty are now forced to choose

22 between their health and safety and their education.

23

57. Finally, we anticipate that our mission and those missions of our institutions

24 would be harmed by ICE’s July 6 Directive. As many community colleges in the U.S. have

25 developed international education programs that include both incoming students, but also study

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

14

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1 abroad opportunities, these programs serve our institutions through the diversity of thought,

2 experience, education, and cultural perspectives that influence the world.

3

58. In Shoreline, for instance, about 75% of student leaders in the Associated Student

4 Government and Arts and Entertainment Board are international students. International students

5 play an active leadership role in managing the many registered student clubs, working closely

6 with domestic students. In addition, their participation in the many activities on campus

7 contributes greatly to the academic learning and the diverse cultural experience.

8

59. At Skagit Valley College, U.S. students learn about international students and

9 their countries through their interactions in classes. In this ever-increasing interrelated world we

10 live in, this experience would be removed from the college culture if the school didn’t have any

11 international students on campus.

12

60. When the government acts to deny international students the ability to

13 simultaneously pursue their studies and remain safe from COVID 19, the decision cuts at the

14 heart of community and technical colleges’ mission and our educational values. American

15 students, staff and faculty lose the opportunity to learn from the diverse students who come to

16 the US to pursue their educational goals. Moreover, our collective ability to create an equitable

17 and just community of learners would inevitably suffer. Our colleges understand that we are all

18 harmed when any learner is denied the right to pursue their education.

19

20

21

22

23

24

25

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

15

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

I declare under penalty of perjury under the laws of the State of Washington and the United

2 States that the foregoing is true and correct.

3

4

DATED this 10th day of July, 2020, at Olympia, Washington.

5

6

7 JANICE LEE YOSHIWARA

8

Executive Director

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF JANICE LEE YOSHIWARA CAUSE NO. 2:20-cv-01070

16

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

STATE OF WASHINGTON, 9

NO. 2:20-cv-01070

Plaintiff,

10

DECLARATION OF

v. 11

IVAN L. HARRELL II

UNITED STATES DEPARTMENT OF 12 HOMELAND SECURITY;

IMMIGRATION AND CUSTOMS 13 ENFORCEMENT; CHAD F. WOLF, in

his official capacity as Acting Secretary 14 of the U.S. Department of Homeland

Security; and MATTHEW ALBENCE, in 15 his official capacity as Acting Director of

U.S. Customs and Immigration 16 Enforcement,

17

Defendants.

18

I, Ivan L. Harrell, II, Ph.D., declare as follows:

19

1. I am the President of Tacoma Community College (TCC) located in Tacoma,

20 Pierce County, Washington. My educational background includes Doctor of Philosophy degree

21 (Ph.D.) at Florida State University, a Master’s degree (M.Ed.) from Vanderbilt University, and

22 a Bachelor of Art’s degree (B.A.) from Wittenberg University. My doctoral dissertation was

23 “Using Student Characteristics to Predict the Persistence of Community College Students in

24 Online Courses.” I have been employed as TCC’s President since May 2018. From 2015 to

25 2018, I served as Executive Vice President and Chief Academic and Chief Student Affairs

26 Officer for Georgia Piedmont Technical College. From 2013 to 2015, I served as Chief Student

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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1

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 50 of 126

1 Services Officer and Vice President of Student Success for Lone Star College-CyFair,

2 enrollment approximately 20,000 students. From 2003 to 2013, I worked at four different

3 colleges in staff positions.

4

2. I submit this declaration in support of the State of Washington’s litigation

5 challenging the policies announced on July 6, 2020 by “Broadcast Message” and to be published

6 as a Temporary Final Rule (the “Rule”) to amend requirements of the Student and Exchange

7 Visitor Program.

8

3. I have compiled the information set forth below through personal knowledge as

9 well as through TCC personnel who have assisted me in gathering this information from our

10 institution’s files and records. I have also familiarized myself with the Rule in order to

11 understand its immediate impact on TCC.

12

4. TCC is an urban community college founded in 1965. Offering 43 associate

13 degrees, 33 certificates and three Bachelor of Applied Science degrees, more than 11,000

14 students attend TCC annually. In 2019, TCC employed 888 staff and faculty members. Based

15 on an Economic Modeling Specialists Inc. (EMSI) study for 2017-18, TCC provided nearly $68

16 million in income for Pierce County and educated a workforce that generated about $243 million

17 in income for Pierce County.

18

5. TCC is part of the Washington State Board of Community and Technical College

19 (SBCTC) system, which oversees 34 community and technical colleges in the State. About 40

20 percent of its budget comes from legislative appropriations and the vast majority of the

21 remainder comes from tuition and fees.

22

6. TCC’s budget for its 2020-21 fiscal year is $52,286,452

23

7. For the current and previous academic years, TCC’s tuition and course fees for

24 a full time (15 credits) international student were set at $3,330 per quarter and $9,990 for all

25 three quarters of an academic year. See https://www.tacomacc.edu/costs-admission/admission-

26 process/international/tuitioncosts (last visited July 10, 2020).

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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2

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

8. International students pay nearly three times the tuition of resident students. TCC

2 depends on this additional revenue to meet its budgetary needs for each academic year, and will

3 be harmed if its international students cannot attend TCC due to the Rule.

4

9. For the 2019-20 academic year, TCC had 249 enrolled international students in

5 the U.S. with F-1 or M-1 visas. These students come from 18 countries and contributed

6 approximately $2,487,410 in tuition and fees to the TCC budget.

7

10. The international students referenced in the preceding paragraph come from

8 China, Gabon, Hong Kong, India, Indonesia, Japan, Kenya, South Korea, Lithuania, Russia,

9 Vietnam, Bolivia, Cambodia, Canada, Columbia, Congo, Peru, Philippines, Sudan, and Uganda.

10

11. In many of these countries, it is difficult for students to engage in remote/online

11 learning due to poor technology infrastructure, war, or social unrest. They may face barriers to

12 internet access, lack of ability to speak and write freely, and restriction of online speech for

13 journalists, inhibiting significant research capabilities. Countries that come to mind are China,

14 Vietnam, North Korea, and Russia.

15

12. Due to factors including the COVID-19 pandemic and governmental restrictions

16 on entering the United States placed on foreign nationals, TCC’s enrollment of international

17 students has declined. The pandemic has already constrained our budget and this order would

18 constrain it further due to our dependency on international students’ enrollment.

19

13. Currently, TCC has 130 students living in the United States and admitted for the

20 upcoming fall quarter who will require F-1 or M-1 status. Of these students, 55 have already

21 enrolled, and the college is actively working to enroll 75. Additionally, the college has 44

22 students who are outside of the United States, of which 20 have already enrolled, and 22 that the

23 college is actively working to enroll. The impact of losing the ability to have these students

24 continue their education at TCC would result in the college losing approximately $1,298,770 in

25 annual revenue generated through international student tuition and fees. In an environment where

26 the college has already lost significant international enrollment prior to the COVID pandemic,

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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3

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 52 of 126

1 and the substantial revenue the college has lost due to the pandemic, losing an additional amount

2 of approximately $1.3 million would have a devastating impact on the college. Losing this

3 significant amount of revenue would result in additional elimination of positions over and above

4 the 32 positions that have already had to be eliminated this fiscal year, as well as possible closure

5 of the college’s international program.

6

14. Starting in February 2020 and continuing to the present, TCC leadership began

7 to take a series of actions in response to the COVID-19 public health crisis. TCC’s responses

8 were based on guidance from the Center for Disease Control, State Department of Health,

9 Tacoma-Pierce County Health Department, and direction from Governor Jay Inslee on college

10 closures, social distancing and other public health measures. Moreover, TCC’s responses were

11 in reliance of the March 9, 2020 “Broadcast Message 2003-01” from ICE in preparing for the

12 fall semester, as TCC understood that this order was put in place for the duration of the

13 emergency. We then formed our strategy and planning accordingly, relying on the expectation

14 that the international students living in the United States and their financial contributions to our

15 entire budget would remain untouched.

16

15. We formed our Expanded Leadership Team comprised of approximately 50 Vice

17 Presidents, Deans, and supervisors from all parts of the college, which met for two hours twice

18 a week to mobilize staff, marshal our resources, and make quick decisions in the face of a rapidly

19 changing environment. Our response has focused on continuing our mission of providing high

20 quality education and holistic support for our students. Throughout this time, our staff has

21 demonstrated remarkable teamwork, flexibility, and dedication to helping our students.

22

16. Our goals were, and continue to be, to:

23

16.1 Protect the health and safety of students, staff, and the community.

24

16.2 Adhere to the guidance of public health experts and Governor Jay Inslee.

25

16.3 Provide ongoing communications to students, staff, and the public.

26

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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4

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

16.4 Support students and staff in the transition to online instruction and working

2 remotely.

3

16.5 Ensure equitable access to instruction, technology, and other resources for student

4 success.

5

17. Our actions to ensure the safety of our college community included:

6

17.1 Increasing deep cleaning of campus facilities and distribution of cleaning supplies

7 to staff.

8

17.2 Providing guidelines to staff and supplies on cleaning their work areas.

9

17.3 Implementing social distancing practices.

10

17.4 Closing our Tacoma and Gig Harbor campuses on March 20 and establishing

11 protocols for employees working on campus (a limited number who were responsible for critical

12 work that could not be done remotely) and working from home.

13

17.5 Implementing 100 percent online instruction in winter quarter, in response to the

14 COVID-19 crisis, through our secure teaching platform.

15

17.6 Launching virtually all instruction for spring quarter online.

16

17.7 Conducting most summer quarter instruction online.

17

17.8 Deciding in May 2020 to offer a mixed approach for classes in the fall, with some

18 classes to be held on campus, but as many as possible to be held online to ensure health and

19 safety of our students, staff, and faculty.

20

18. My leadership team and I are in weekly meetings with fellow college presidents,

21 provosts, public information officers, state and local leaders, and public health experts to monitor

22 the pandemic and to assess what is the most safe and effective instructional modality for the fall,

23 given the daily information we receive.

24

19. I meet with SBCTC leadership frequently and state college leadership weekly,

25 my leadership team meets with their peers frequently, and we are in contact with Tacoma-Pierce

26 County Health Department. We follow the Governor’s directives closely and have implemented

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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5

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 54 of 126

1 the Governor’s Re-Start Health and Safety requirements. We also engage with our campus

2 community, which includes faculty and leadership from all departments, and consult with

3 students.

4

20. Our top goal is to ensure the health and safety of our community and slow down

5 the spread of COVID-19, while offering quality education for all of our students.

6

21. TCC has been following the guidance of the Tacoma-Pierce County Health

7 Department, SBCTC, the Governor’s orders, and the CDC.

8

22. TCC implemented a taskforce called the “Fall Modality Workgroup.” It

9 consisted of faculty and enrollment staff, who researched phase requirements; held discussions

10 with faculty about how to move forward; and reviewed effective and safe teaching platforms.

11 Based on this research, the taskforce recommended TCC take a mixed-class approach, with the

12 majority of classes online, to ensure safe and healthy learning practices. The plan continues to

13 evolve, specifically with face-to-face meetings between faculty and students, and what support

14 services we can offer in a safe manner. Support services include the library, tutoring, advising,

15 and technology support.

16

23. Currently, under the federal and state guidance and requirements, TCC’s summer

17 quarter lab and clinical trainings are open to a limited amount of students and faculty in pre-

18 approved programs. We monitor regulations and requirements, and are prepared to adjust time

19 and scheduling, if necessary, depending on the phase and its regulations.

20

24. International student enrollment always plays a critical role in the college’s

21 planning process, particularly as it relates to enrollment and budget projection and planning. The

22 uncertainty of the ability of our international students to be enrolled in the college, due to the

23 Rule, has created significant uncertainty of the college’s ability to keep or suspend some college

24 programs and operations.

25

26

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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6

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

25. For the fall, TCC decided to offer mixed courses that are either scheduled during

2 a specific time and date (synchronous) or not scheduled and when a student works on their own

3 time and schedule (asynchronous). This mixed modality was offered for several reasons:

4

25.1 The uncertainty of what phase Pierce County will be in the fall.

5

25.2 The safety and health of faculty and staff (the average age is 47; for faculty, the

6 average age is 50).

7

25.3 The health and safety of students (the average age is 26).

8

25.4 The importance of giving our students enough notice of the modality of classes

9 so they could choose the modality that worked best for them.

10

25.5 Concern for students/faculty/staff who would have childcare issues depending

11 on the plan for the local public K-12 schools.

12

26. TCC was shocked and dismayed when it learned about the Rule. Our foremost

13 concern was the students who would be impacted: How they would finish their education at

14 TCC? How they would get home if they were already in the United States? How this would

15 impact them financially and emotionally? We are concerned these students will drop out and

16 ultimately not finish their U.S. education that they have worked so hard to accomplish.

17

27. But, in addition, the Rule will have harmful impacts on the college’s enrollment,

18 planning and budgeting processes. The Rule will also have a significant impact on the non-

19 monetary benefits international students bring to the college. These students are part of the fabric

20 of Tacoma Community College, Tacoma, and Pierce County, Washington. These students bring

21 needed diversity that benefits both them and the entire college and broader community. The

22 potential inability of these students to be able to continue their studies here in our community,

23 will have devastating impacts.

24

28. Currently, TCC has 130 students admitted for the upcoming fall quarter who are

25 currently living in the United States. Of these students 55 have already enrolled, and the college

26 is actively working to enroll 75. Additionally, the colleges has 44 students who are outside of

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 56 of 126

1 the United States, of which 20 have already enrolled, and 22 that the college is actively working

2 to enroll. Due to the current ICE regulations many, if not all, of the students who are currently

3 in the United States would withdraw. These students would also not have the ability to transfer

4 to another institution due to application and enrollment deadlines. If these students were not able

5 to enroll at the college, the college could lose approximately $2.4 million in revenue.

6

29. The impact of losing all these students to our institutions already constrained

7 budget would have a devastating impact of well over a million dollars.

8

30. Based upon the information available to me, the estimated impact of foreign

9 students at TCC for the upcoming fall quarter is as follows:

10 Impact for fall enrollments

Enrolled

Not enrolled

11 Students in the U.S.

55

75

12 Annual tuition and fee revenue

$ 549,450

$ 749,250

13 31. Additionally the college currently has vibrant international partnerships with

14 various international educational entities. The new ICE directive sends a negative message to

15 our partners and could potentially impact these programs as well. The college has already

16 sustained a significant loss in review due to COVID-19 and related travel restrictions which have

17 resulted in the loss of our Japan program for 1 year, and potentially our Danish programs as well.

18 Potentially losing these programs would be an additional loss of approximately $600,000 in

19 annual revenue.

20 32. For the fall quarter of 2020, TCC will have five teaching modalities available,

21 each with stipulations. These are defined and explained in the tables below. The schedule for the

22 academic schedule has not changed and the fall quarter will start Sept. 21. Both the spring and

23 summer quarters started one week late for us to prepare for the online instruction.

24

25 Term

Definition

Class Time Classroom in Schedule? in Schedule?

26

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 Synchronous Students and their instructor will meet at --

--

2

the same time in the same place, either in-

person or online

3 Asynchronous students and their instructor will work on --

--

4

their own time, online

Online

100% asynchronous instruction delivered No

No

5

online, via Canvas. This is the default.

6 Face-to-Face 100% synchronous on-campus (“traditional”) instruction

Yes

Yes

7 Hybrid

40%-60% synchronous on-campus

Yes

Yes

8

(“traditional”) instruction, with the remainder of instruction delivered

9

asynchronously, online, via Canvas

10

NEW: Mixed 40%-60% synchronous online instruction Yes

Online

delivered via Zoom or an alternative, with

No

11

the remainder of instruction delivered

asynchronously, online, via Canvas

12 NEW: Timed 100% synchronous online instruction

Yes

No

13 Online

delivered via Zoom or an alternative, with assignments and other course material

14

delivered via Canvas

15

16 Modalities explained in greater detail

17

1. Online a. Definition: 100% asynchronous instruction delivered online, through Canvas.

18

b. Stipulations:

i. Departments may plan to have all classes 100% online.

19

ii. All sections will default to online modality unless another is specified.

iii. In an Online class, if synchronous sessions are offered, they must be

20

optional/supplemental opportunities for students.

21

1. There must be no penalty for missing synchronous sessions. 2. Optional synchronous sessions should be recorded and posted

22

on the course shell so that students who could not participate

may review the contents at a later date.

23

2. Face-to-Face

24

a. Definition: 100% synchronous on-campus (“traditional”) instruction. b. Stipulations:

25

i. No Department may plan to offer all of its courses face-to-face.*

ii. No Department may plan to offer all sections of any particular

26

course face-to-face.*

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
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ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

*exceptions may be approved for cohort-based or practicum-based

2

programs

iii. Significant safety measures are required.

3

iv. Class sizes must be small enough to permit required social

distancing.

4

v. Department must provide rationale for use of this modality.

5

vi. Requires approval by the Provost.

3. Hybrid

6

a. Definition: 40%-60% synchronous on-campus (“traditional”) instruction,

with the remainder of instruction delivered asynchronously, online, via

7

Canvas.

8

b. Stipulations: i. No Department may plan to offer all of its courses Hybrid.*

9

ii. No Department may plan to offer all sections of any particular course

Hybrid.*

10

*exceptions may be approved for cohort-based or practicum-based

programs

11

iii. The face-to-face component of Hybrid courses can ONLY be used for

12

campus-based labs in conjunction with online lecture. iv. Significant safety measures are required.

13

v. Face-to-face class sizes must be small enough to permit required

social distancing.

14

vi. Department must provide rationale for use of this modality.

15

vii. Requires approval by the Provost.

4. Mixed Online

16

a. Definition: 40%-60% synchronous online instruction delivered via Zoom or

an alternative, with the remainder of instruction delivered asynchronously,

17

online, via Canvas.

18

Example – In a 5-credit class there could be up to 3 hours of synchronous instruction each week.

19

b. Stipulations

i. No Department may plan to offer all of its courses Mixed Online.*

20

ii. No Department may plan to offer all sections of any particular course

Mixed Online.*

21

*exceptions may be approved for cohort-based or practicum-based

22

programs iii. Synchronous sessions are required for students, but—at instructor’s

23

discretion—may be recorded and posted on the course shell so that

students who could not participate may review the contents at a later

24

date instead.

iv. Department must provide rationale for use of this modality.

25

v. Requires discussion with program chair and approval of Dean.

26

5. Timed Online

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
Appendix

10

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 58

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 59 of 126

1

a. Definition: 100% synchronous online instruction delivered via Zoom or an

2

alternative, with assignments and other course material delivered via Canvas.

Example – In a 5-credit class there would be 5 hours of synchronous

3

instruction each week.

b. Stipulations

4

i. No Department may plan to offer all of its courses Timed Online.*

5

ii. No Department may plan to offer all sections of any particular course Timed Online.*

6

*exceptions may be approved for cohort-based or practicum-based

programs

7

i. This modality is strongly discouraged. Ideally, no online classes

should require more than 3 hours of synchronous meetings/week

8

(i.e., Mixed Online is preferred to Timed Online).

9

ii. Synchronous sessions are required for students, but—at instructor’s discretion—may be recorded and posted on the course shell so that

10

students who could not participate may review the contents at a later

date instead.

11

iii. Department must provide rationale for use of this modality.

iv. Requires discussion with program chair and approval of Dean.

12

v. Requires enrollment “by permission only” to ensure that students

13

understand the technological and chronological requirements.

14

33. Due to the ever changing landscape of the global COVID pandemic, planning

15 for upcoming academic quarters has been challenging. Although we have developed a strong

16 academic plan for the college for the fall quarter, this plan has to be continually monitored and

17 adjusted based on the state of the pandemic in the state of Washington and in Pierce County

18 (WA). To implement the current hybrid approach we have developed for the fall quarter,

19 significant funding has been utilized to ensure faculty and students have needed instructional

20 technologies, and the needed training in the use of those technologies. We have also had to

21 significantly invest in purchasing adequate personal protective equipment (PPE) that aligns

22 with the stringent safety & security requirements that are needed to present a hybrid

23 instructional approach. Additionally, due to the current ICE regulations we have to carefully

24 plan how to continue to provide on-campus hybrid offerings for international students, in the

25 event that the county and/or state reinstate regulations that may preclude on campus operations.

26

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
Appendix

11

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 59

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 60 of 126

1

34. TCC and its students beneﬁt enormously from the participation, presence and

2 diversity of international students. Equity, diversity and inclusion are critical at TCC, and our

3 mission and vision reflect our commitment. Furthermore, having a diverse student body with

4 international students oﬀer perspectives that other students otherwise may never experience

5 and they bring unique viewpoints about diﬀerent approaches to society, governance, and

6 policy. Even if students do not meet in classrooms, they can still—from appropriate distances

7 or online—share valuable insights with one another. Our students and international students

8 learn from each other.

9

35. Our foremost goal is the health and safety of the community. In the winter and

10 spring, we switched to online instruction to help minimize the spread of Covid-19. For the

11 summer, we followed the same approach, and in the fall, we are again taking a mostly online

12 instructional approach. We believe that all students, including International, will continue to

13 learn and stay on-track with this approach. This Rule forces us to offer more in-person classes

14 during a pandemic, and exposes more people to become ill. Furthermore, to send International

15 Students back to their home country jeopardizes their future. There are no guarantees that home

16 Internet is reliable; that they can return to their home countries; and they face other challenges,

17 such as the loss of money plus time. We should not be forced to choose between the health and

18 safety of our community and forcing people to gather in a small classroom during a pandemic.

19

36. This new ICE directive could have a catastrophic impact on our international

20 student enrollment and potentially impact the employment of numerous staff and faculty that

21 provide support and teach international students. Due to COVID-19 our international programs

22 department has shrunk from 9 to 6 staff members, we also employ 3 faculty members that teach

23 international students exclusively in our English for Academic Purposes program, not to mention

24 other faculty in Business, STEM, and other disciplines whose jobs could be impacted due to

25 lower enrollments with the loss of international students in their classes.

26

DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070
Appendix

12

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 60

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 61 of 126

1

37. We have had conversations with our caring homestay families, and they have

2 stated how hurt they are by the recent ICE directives. One said "I love international education.

3 It transforms lives." Those host families are in the Tacoma community and part of our homestay 4 program by opening their hearts and minds to our international students to share the US culture.

5 We, as TCC and Tacoma community, are committed to advocating for students and continuing

6 to provide international education and cultural exchange opportunities for everyone's mutual

7 benefits for a better world.

8

38. I strongly oppose the Rule as it will damage the college's financial health, undo

9 years of programming and relationship building with our international partners and, most of all,

10 will harm our international students.

11

I declare under penalty of perjury under the laws of the State of Washington and the

12 United States of America that the foregoing is true and correct.

13

DATED this 10th day of July 2020, at Tacoma, Washington.

14

15

Ivan L. Harrell II

President

16

Tacoma Community College

17

18

19

20

21

22

23

24

25

26
DECLARATION OF IVAN L. HARRELL II CAUSE NO. 2:20-cv-01070

ATTORNEY GENERAL OF WASHINGTON

13

Complex Litigation Division 800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8 STATE OF WASHINGTON,

NO. 2:20-cv-01070

9

10

v.

Plaintiff,

DECLARATION OF LINDA KAMINSKI

11 UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
12 IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his
13 official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
14 MATTHEW ALBENCE, in his official capacity as Acting Director of U.S. Customs
15 and Immigration Enforcement,

16

Defendants.

17

18

19

I, Linda Kaminski, hereby state under the penalty of perjury that the

20 following statements are true and accurate to the best of my knowledge, based on my

21 personal knowledge as well as information compiled and veriﬁed by other Yakima Valley

22 College (“YVC” or the “College”) employees, and that I could testify to these matters if

23 called to do so:

24

1. I am the President of YVC, a position I have held since 1995. In my role

25 as President, I am responsible for all aspects of undergraduate education and residential

26 life. I also have oversight over YVC’s international students, including oversight over

DECLARATION OF LINDA KAMINSKI CAUSE NO. 2:20-cv-01070
Appendix

1

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 62

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 63 of 126

1 YVC’s International Students Program (“ISP”), which provides support for YVC’s

2 international students.

3

2. YVC currently has 11 active students holding F-1 visas, including students

4 on Optional Practical Training (“OPT”), which allows eligible students to receive up to 12

5 months of employment authorization before completing their academic studies and/or

6 after completing their academic studies. In addition, YVC has 5 newly admitted students

7 who have not started their programs or F-1 visa status.

8

3. In my role as President, I have worked collaboratively for the last several

9 months with YVC’s leadership, faculty, staﬀ, scholars, alumni, students, parents, and

10 outside advisors in the development and implementation of YVC’s plans and operations

11 during the COVID- 19 pandemic, including our plans for undergraduate education this fall.

12

4. On April 28, 2020, YVC, located in Yakima County, announced that the

13 Yakima County now is seeing the highest rate of infection, per capita, in the state, and

14 therefore made the difficult decision to extend online learning through the entirety of

15 Summer and Fall Quarters.

16

5. As part of my work evaluating the options and making recommendations

17 for the fall quarter, members of YVC’s leadership were briefed on the COVID-19

18 Guidance for Student and Exchange Visitor Program (“SEVP”) that the United States

19 Immigration and Customs Enforcement (“ICE”) issued in response to the COVID-19

20 pandemic. On March 13, 2020, ICE issued COVID-19 Guidance for Student and

21 Exchange Visitor Program Stakeholders (“March 13 Guidance”). Pursuant to the March

22 13 Guidance, students in the United States holding F-1 visas are allowed to “count online

23 classes towards a full course of study” in the event their school temporarily stopped in-

24 person classes, regardless of whether the visa holders remained in the United States or

25 departed the United States. The March 13 Guidance stated that it would remain “in eﬀect

26 for the duration of the emergency.”

DECLARATION OF LINDA KAMINSKI CAUSE NO. 2:20-cv-01070
Appendix

2

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 63

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 64 of 126

1

6. On July 6, 2020, ICE issued Fall 2020 COVID-19 Guidance (“July 6

2 Directive”). The July 6 Directive largely withdraws the exception that SEVP announced in

3 March. The July 6 Directive states that if a school provides only online course instruction

4 in the fall, students holding F-1 visas may not remain in the United States to pursue their

5 studies. It provides that students holding F-1 visas “must depart the country or take other

6 measures, such as transferring to a school with in-person instruction to remain in lawful

7 status[,] or potentially face immigration consequences including, but not limited to, the

8 initiation of removal proceedings.” It is our current understanding that if the July 6

9 Directive takes eﬀect, YVC students with F-1student visas who are enrolled in remote

10 programs will face immigration consequences if they do not leave the country within 15

11 days of the start of the Fall 2020 term. Further, it is our understanding that YVC students

12 with F-1 student visas who are enrolled in programs that are a hybrid of remote and in-

13 person learning but remain outside the United States will not be permitted to participate in

14 their coursework remotely and also maintain their F-1 visa status.

15

7. The July 6 Directive, if it takes eﬀect, will have signiﬁcant negative

16 impacts on YVC students and YVC as an institution. First, YVC has expended

17 tremendous energy over the preceding four months to develop guidance for the College’s

18 operations to take reasonable measures to prioritize the health and safety of its students,

19 faculty, staﬀ, and the surrounding community while maintaining the vibrant educational

20 community at the College.

21

8. As described in more detail below, the July 6 Directive will make it

22 impracticable for certain of YVC’s international students to continue to study at YVC and

23 make progress toward their degrees, while imposing academic and living conditions for

24 others that will prompt them to take leaves from their programs—or drop out altogether.

25

9. By virtue of the fact that the July 6 Directive is likely to result in far fewer

26 international students enrolled at YVC during the coming academic year, the July 6 Directive

DECLARATION OF LINDA KAMINSKI CAUSE NO. 2:20-cv-01070
Appendix

3

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 64

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 65 of 126

1 will aﬀect YVC in at least the following additional ways:

2

a. YVC and its students beneﬁt enormously from the participation of

3

international students. Indeed, many of YVC’s curricular programs depend

4

critically on the presence and diversity of international students. YVC places

5

great emphasis on a diverse student body, and international students oﬀer

6

perspectives that other students otherwise may never experience. And even

7

if students do not meet in classrooms, they can still—from appropriate

8

distances or online—share valuable elements of on-campus life, such as

9

participation in extracurricular activities. The loss of international students

10

from YVC would deprive YVC’s students of one of the great beneﬁts of their

11

experience here.

12

b. YVC’s ISP will also be harmed ﬁnancially if a substantial number of

13

international students leave, transfer to another institution, or do not enroll

14

in the fall. For nearly seven years the ISP has worked to grow and maintain

15

a self-supporting department. The loss of several current and prospective

16

students would put the ISP in fiscal unreliability that would take years to

17

rebuild.

18

10. Even if YVC were to implement in-person or hybrid (i.e., partial in-person,

19 partial virtual) instruction, such that students on F-1 visas could remain in the United States,

20 signiﬁcant burdens would remain for international students. Many of YVC’s international

21 students are ﬁrst- year students or students who have returned to their home countries.

22 These students would be unable to get to campus because of the State Department’s

23 suspension of consular processing of visa applications, which aﬀects their ability to obtain

24 initial visas if they are new students, or obtain new visa stamps to support their reentry if

25 their current stamps have expired. Other students face travel restrictions that prevent them

26

DECLARATION OF LINDA KAMINSKI CAUSE NO. 2:20-cv-01070
Appendix

4

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 65

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 66 of 126

1 from leaving their home countries or entering the United States (or both). Moreover,

2 students participating in hybrid programs from outside the United States—either because

3 they choose to remain abroad or because they are unable to return to the United States—

4 would relinquish their F-1 status and therefore lose their ability to access critical beneﬁts of

5 the F-1 visa program, such as Curricular Practical Training employment and Optional

6 Practical Training employment at the end of the academic year. This would further harm

7 YVC as an institution and the students who lose these opportunities.

8

11. Although a hybrid program might allow domestic students to select only

9 online courses if they have health conditions that place them at a greater risk (or simply

10 want to avoid the greater risk of infection that in-person instruction imposes), under the July

11 6 Directive, F-1 students are denied this. The July 6 Directive not only precludes F-1

12 students from an all-online course schedule, it mandates that F-1 students “tak[e] the

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

14 program.” Accordingly, vulnerable or concerned F-1 students would be forced to participate

15 in in-person learning, despite the risks.

16

12. The July 6 Directive also creates an administrative hurdle for YVC during a

17 time when administrators are devoting the majority of their time and eﬀort to respond to the

18 pandemic. Under the Directive, schools must update all F-1 records and issue a new Form I-

19 20 to all F-1 visa students no later than August 4, 2020. YVC will be required to generate

20 forms in under a month to verify eligibility to pursue studies in the U.S.

21

13. The short timeframe of the July 6 Directive before the start of the fall

22 quarter not only makes it diﬃcult for the College to change course; it makes it even more

23 diﬃcult for international students to make alternative arrangements. International ﬂights

24 are expensive and in the case of many countries, direct ﬂights are unavailable,

25 necessitating multiple transfers, which increases the risk of COVID-19 with each leg of

26 the journey. International students will need to make arrangements for housing in their

DECLARATION OF LINDA KAMINSKI CAUSE NO. 2:20-cv-01070
Appendix

5

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 66

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 67 of 126

1 home countries and will likely face ﬁnancial hardship in breaking leases or ﬁnding

2 subletters for their housing, if permitted, in the United States.

3

14. For students with families and children, these challenges are exacerbated.

4 Signiﬁcant others of our F-1 students will need to make alternative arrangements and many

5 of our students with young children will face diﬃculties in enrolling students in daycares

6 and schools outside of the country. Some families may be forced to split apart in order to

7 comply with the July 6 Directive.

8

15. In addition to the concerns with post-completion OPT status, students

9 holding F-1 visas typically have the opportunity to pursue pre-completion practical

10 training, internship, and experiential learning opportunities within the United States, which

11 complement the in-classroom instruction provided by YVC. In many cases, these

12 opportunities are with U.S.-based labs, centers, and companies. Some of these

13 opportunities are simply not available to students residing outside the United States. And

14 those that are permitted may be extremely diﬃcult to pursue from abroad, as students

15 would need to coordinate meetings and other eﬀorts with team members and supervisors in

16 the United States.

17 16. If forced to leave the United States, many students will face a diﬃcult and
18 uncertain path to returning to the United States to continue their educations. At this stage,
19 U.S. consular oﬃces are closed for routine visa appointments. Even when the consular
20 services reopen in the students’ home countries, many students live great distances from
21 the consular oﬃces and will be required to pay large sums to reinstate their visas. Many
22 countries have long waits for future visa appointments and will be delayed in returning to
23 complete their degrees if they are forced to return home at this stage.
24 17. Moreover, the July 6 Directive directed that schools oﬀering a hybrid model
25 “must certify to SEVP, through the Form I-20, ‘Certiﬁcate of Eligibility for Nonimmigrant
26

DECLARATION OF LINDA KAMINSKI CAUSE NO. 2:20-cv-01070
Appendix

6

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 67

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 68 of 126

1 Student Status,’ that the program is not entirely online, that the student is not taking an

2 entirely online course load for the fall 2020 semester, and that the student is taking the

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

4 program.” To comply with this requirement, YVC would need to issue a new Form I-20 for

5 each of its students on F-1 status and to do so within 21 business days of the July 6

6 Directive. Doing so is not only unduly burdensome, but, in many cases, difficult because

7 students are generally not required to even register for particular classes until closer to the

8 start of the quarter.

9

18. In addition to harms described above aﬀecting YVC students, the College

10 has also heard from individual students from parts of the world who will face challenges by

11 remaining in or being forced to return to their home countries: moreover, many flight and

12 airport restrictions that make airline tickets prohibitively expensive.

13

19. YVC’s goal is to welcome all students back to campus for in-person

14 learning as soon as it can responsibly do so. At this point, however, it would not be feasible

15 for YVC to safely implement College-wide in-person learning for the Fall 2020 quarter.

16 YVC invested signiﬁcant time devising, planning, and implementing the 2020-2021

17 curriculum in a manner that did not anticipate widespread in-person learning, and it would

18 not be possible for YVC to implement the necessary safety measures required for College-

19 wide in-person learning for the Fall quarter, particularly in light of the uncertainty

20 surrounding COVID-19.

21

22

23

24

25

26

DECLARATION OF LINDA KAMINSKI CAUSE NO. 2:20-cv-01070
Appendix

7

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 68

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 69 of 126

1

I declare under penalty of perjury under the laws ofthe State ofWashington and the United

2 States that the foregoing is true and correct.

3

4 5

DATED this !J!;;.y of July, 2020, at �

, Washington. .

6

� �KAMINSK� I �LJ

7

President, Yakima Valley College

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF LINDA KAMINSKI CAUSE NO. 2:20-cv-01020
Appendix

ATTORNEY GENERAL OF WASHINGTON

8

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 69

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 70 of 126

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

STATE OF WASHINGTON, 9

NO. 2:20-cv-01070

10

v.

Plaintiff,

11 UNITED STATES DEPARTMENT OF
12 HOMELAND SECURITY; IMMIGRATION

DECLARATION OF MICHAEL P. MEOTTI

AND CUSTOMS ENFORCEMENT; CHAD 13 F. WOLF, in his official capacity as Acting

14

Secretary of the U.S. Department of Homeland Security; and MATTHEW ALBENCE, in his

15 official capacity as Acting Director of U.S. Customs and Immigration Enforcement,,
16

Defendants. 17

18

19

I, Michael P. Meotti, declare as follows:

20

1. I am the Executive Director of the Washington Student Achievement Council

21 (WSAC), a Washington State agency responsible for state higher education policy and programs,

22 located in Olympia, WA. My educational background includes a Bachelor of Science and Juris

23 Doctor degrees from Georgetown University. I have been employed as Executive Director since

24 February 8, 2017. Prior to that, I was the Executive Vice President and Chief Operating Officer

25 of the Connecticut State Colleges and Universities system.

26
DECLARATION OF MICHAEL P. MEOTTI CAUSE NO. 2:20-cv-01070

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

1

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 71 of 126

1

2. I submit this declaration in support of the State of Washington’s litigation

2 challenging the policies announced on July 6, 2020 by “Broadcast Message” and to be published

3 as a Temporary Final Rule to amend requirements of the Student and Exchange Visitor Program

4 (the “Rule”).

5

3. I have compiled the information set forth below through personal knowledge as

6 well as through WSAC and college personnel who have assisted me in gathering this

7 information. I have also familiarized myself with the Rule in order to understand its immediate

8 impact on colleges in the state of Washington

9

4. WSAC is a cabinet-level state agency that advises state elected officials on higher

10 education policy; and manages financial aid programs, college saving plans and college

11 readiness support programs.

12

5. WSAC has a Research Department with expertise in the full range of higher

13 education data systems including, but not limited to, the Integrated Postsecondary Education

14 Data System (IPEDS) database maintained by the US Department of Education, Washington

15 State Education Research and Data Center and the data systems maintained by public institutions

16 of higher education.

17

6.

IPEDS is a system of interrelated surveys conducted annually by the U.S.

18 Department of Education’s National Center for Education Statistics (NCES). IPEDS gathers

19 information from every college, university, and technical and vocational institution that

20 participates in the federal student financial aid programs. The Higher Education Act of 1965, as

21 amended, requires that institutions that participate in federal student aid programs report data on

22 enrollments, program completions, graduation rates, faculty and staff, finances, institutional

23 prices, and student financial aid.

24

7. The completion of all IPEDS surveys is mandatory for institutions that participate

25 in or are applicants for participation in any federal student financial aid program (such as Pell

26

DECLARATION OF MICHAEL P. MEOTTI CAUSE NO. 2:20-cv-01070

2

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1 grants and federal student loans) authorized by Title IV of the Higher Education Act of 1965, as

2 amended (20 USC 1094, Section 487(a)(17) and 34 CFR 668.14(b)(19)).

3

8. More than 7,500 institutions, including 107 in Washington State, complete

4 IPEDS surveys each year. These include research universities, state colleges and universities,

5 private religious and liberal arts colleges, for-profit institutions, community and technical

6 colleges, non-degree-granting institutions such as beauty colleges, and others.

7

9. Part A of the IPEDS Fall Enrollment (EF) survey requires that institutions provide

8 enrollment data broken out by certain demographic characteristics. “Nonresident alien” is one

9 of these characteristics.

10

10. The instructions on the EF survey define “nonresident alien” as a person who is

11 not a citizen or national of the United States and who is in this country on a visa or temporary

12 basis and does not have the right to remain indefinitely.

13

11. According to the Fall Enrollment 2018 (EF 2018) survey results include 22,893

14 nonresident alien students enrolled in 66 institutions of higher education across the state of

15 Washington.

16

12. A spreadsheet is attached to and incorporated within this Declaration as

17 Attachment A.

18

13. All of Washington’s 6 public four-year universities, all 34 public two-year

19 colleges, and 26 of Washington’s private colleges enrolled nonresident alien students in Fall

20 2018.

21

14. The enrollment of nonresident aliens included 17,673 undergraduates and 5,220

22 graduate students.

23

15. Based on my two decades of experience with higher education enrollment data,

24 it is possible for a student included in the IPEDS definition of nonresident alien to hold a visa

25 other than a student visa, but virtually all nonresident alien students are in the United States on

26 a student visa, such as F or M visas.

DECLARATION OF

3

MICHAEL P. MEOTTI

CAUSE NO. 2:20-cv-01070

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

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1

16. I spoke this week with campus staff who work directly with international student

2 enrollment and confirmed that my understanding of the context described in paragraph 15 is

3 accurate.

4

17. Despite public perceptions about university endowments and other financial

5 resources, my experience in higher education, my exposure to literature on higher education

6 finances and my detailed review of financial reports and audits filed by institutions shows that

7 virtually all public and private institutions operate on very thin margins of revenues in excess of

8 expenses. Institutions of higher education tend to be very sensitive to cash flow and any

9 disruptions, even in small percentages of total revenues or expenditures, can result in negative

10 financial margins.

11

18. Revenue derived from international student enrollment is very likely to be higher

12 on a per student basis than revenue from other student population cohorts. This is especially

13 true for public institutions because international students pay higher tuition rates applicable to

14 non-resident students. Washington’s colleges and universities have already lost significant

15 revenue from tuition and housing in FY 2020 since the COVID-19 public health crisis led to the

16 end of in-person instruction and the closing of most residential facilities. It is highly likely that

17 expected declines in Fall 2020 enrollment due to public health concerns across all student

18 populations will result in lower revenues than anticipated in FY 2021. The “Rule” will result in

19 an additional loss of revenue over and above what is already expected.

20

21

22

23

24

25

26
DECLARATION OF MICHAEL P. MEOTTI CAUSE NO. 2:20-cv-01070

4

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

Page 73

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 74 of 126

DECLARATION OF

5

ATTORNEY GENERAL OF WASHINGTON

MICHAEL P. MEOTTI CAUSE NO. 2:20-cv-01070

Complex Litigation Division 800 5th Avenue, Suite 2000
Seattle, WA 98104-3188

(206) 464-7744

Appendix

Page 74

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 75 of 126
Attachment 1

6 Appendix

Page 75

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 76 of 126

UnitID Institution Name 236948 University of Washington-Seattle Campus 235343 Green River College 236939 Washington State University 236513 Seattle Central College 235103 Edmonds Community College 234669 Bellevue College 236610 Shoreline Community College 236595 Seattle University 377555 University of Washington-Bothell Campus 236072 North Seattle College 235431 Highline College 235097 Eastern Washington University 236504 South Seattle College 235149 Everett Community College 234827 Central Washington University 236753 Tacoma Community College 236708 Spokane Falls Community College 439190 Cascadia College 237039 Whatcom Community College 235237 Pierce College-Fort Steilacoom 236577 Seattle Pacific University 377564 University of Washington-Tacoma Campus 237011 Western Washington University 443410 DigiPen Institute of Technology 237057 Whitman College 236188 Olympic College 235699 Lake Washington Institute of Technology 236638 Skagit Valley College 237066 Whitworth University 236230 Pacific Lutheran University 236656 South Puget Sound Community College 236452 Saint Martin's University 236133 Northwest University 236896 Walla Walla University 235316 Gonzaga University 236692 Spokane Community College 234933 Clark College 236258 Peninsula College 234915 City University of Seattle 439145 Pierce College-Puyallup 234951 Clover Park Technical College 235750 Lower Columbia College 236887 Walla Walla Community College 237109 Yakima Valley College 234845 Centralia College 236382 Renton Technical College 235167 The Evergreen State College 235422 Heritage University 234979 Columbia Basin College 236328 University of Puget Sound 236212 Perry Technical Institute 235334 Grays Harbor College 236975 Wenatchee Valley College 235024 Cornish College of the Arts 234711 Big Bend Community College 482185 Academy of Interactive Entertainment 235671 Bates Technical College 235547 Bastyr University 234696 Bellingham Technical College 235501 International Air and Hospitality Academy 380377 Northwest Indian College 245883 Antioch University-Seattle Northwest University-College of Adult and 487603 Professional Studies 488448 Seattle Film Institute Tint School of Makeup & Cosmetology484826 Seattle 432223 University of Phoenix-Washington

State

abbreviation Sector of Institution

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 2-year

WA

Private not-for-profit, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 2-year

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Private for-profit, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Public, 2-year

WA

Private not-for-profit, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Public, 2-year

WA

Public, 4-year or above

WA

Public, 2-year

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Public, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Private not-for-profit, 2-year

WA

Public, 4-year or above

WA

Public, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Public, 2-year

WA

Private not-for-profit, 2-year

WA

Public, 2-year

WA

Private not-for-profit, 4-year or above

WA

Public, 4-year or above

WA

Private for-profit, less-than 2-year

WA

Public, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Private not-for-profit, 4-year or above

WA

Private for-profit, 4-year or above

WA

Private for-profit, less-than 2-year

WA

Private for-profit, 4-year or above

Control of institution Public Public Public Public Public Public Public Private not-for-profit Public Public Public Public Public Public Public Public Public Public Public Public Private not-for-profit Public Public Private for-profit Private not-for-profit Public Public Public Private not-for-profit Private not-for-profit Public Private not-for-profit Private not-for-profit Private not-for-profit Private not-for-profit Public Public Public Private not-for-profit Public Public Public Public Public Public Public Public Private not-for-profit Public Private not-for-profit Private not-for-profit Public Public Private not-for-profit Public Private not-for-profit Public Private not-for-profit Public Private for-profit Public Private not-for-profit
Private not-for-profit Private for-profit
Private for-profit Private for-profit

Institutional category Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, associate's and certificates Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, associate's and certificates Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, associate's and certificates Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, associate's and certificates Degree-granting, not primarily baccalaureate or above Degree-granting, associate's and certificates Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, associate's and certificates Degree-granting, not primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above Degree-granting, associate's and certificates Nondegree-granting, sub-baccalaureate Degree-granting, associate's and certificates Degree-granting, primarily baccalaureate or above Degree-granting, not primarily baccalaureate or above Nondegree-granting, sub-baccalaureate Degree-granting, not primarily baccalaureate or above Degree-granting, primarily baccalaureate or above
Degree-granting, primarily baccalaureate or above Degree-granting, primarily baccalaureate or above
Nondegree-granting, sub-baccalaureate Degree-granting, primarily baccalaureate or above

Undergraduate Undergraduate

Graduate

Graduate

Nonresident Alien** Nonresident

Nonresident

Nonresident

Total Students

Alien** Total

Undergraduate Alien** Total

Alien** Total

Graduate All

Counts

Student Percents All Students Students Counts Students Percents Students

4,857

15.1%

32,099

2,974

19.4%

15,301

1,224

14.4%

8,471

1,098

4.2%

26,098

1,142

21.2%

5,380

1,086

16.0%

6,802

985

12.2%

8,041

931

7.0%

13,226

828

13.9%

5,949

502

10.7%

4,685

238

9.1%

2,606

483

8.9%

5,401

85

14.9%

569

472

8.0%

5,929

445

6.8%

6,530

410

3.6%

11,408

14

1.1%

1,225

404

6.5%

6,177

357

4.5%

7,957

339

3.0%

11,419

27

2.9%

923

267

4.3%

6,242

233

4.5%

5,184

232

6.8%

3,396

232

5.4%

4,263

193

3.2%

6,067

169

5.9%

2,876

41

5.0%

812

167

3.7%

4,554

103

12.9%

800

165

1.1%

15,170

18

1.9%

951

130

14.9%

874

64

66.7%

96

119

8.1%

1,475

116

1.8%

6,620

114

3.1%

3,670

93

1.8%

5,159

92

3.9%

2,370

4

1.0%

406

86

3.0%

2,836

10

2.7%

371

78

1.6%

4,872

75

5.6%

1,345

12

4.6%

262

73

7.5%

975

59

17.1%

346

73

4.4%

1,653

5

2.5%

201

70

1.3%

5,304

137

6.1%

2,259

68

0.7%

10,375

60

0.6%

9,878

54

2.6%

2,052

41

5.3%

774

229

17.1%

1,339

34

0.8%

4,453

29

0.7%

3,905

26

0.9%

2,819

18

0.5%

3,860

17

0.4%

4,456

15

0.5%

3,167

15

0.4%

3,546

14

0.5%

3,018

1

0.3%

309

12

1.5%

777

0

0.0%

203

10

0.1%

7,034

10

0.4%

2,364

1

0.3%

302

8

0.9%

903

7

0.4%

1,868

7

0.2%

3,444

6

1.0%

625

5

0.2%

2,044

3

2.0%

147

3

0.1%

4,445

2

1.2%

161

8

0.9%

937

2

0.1%

2,316

2

1.8%

110

2

0.4%

535

1

1.2%

82

13

2.5%

523

1

0.1%

1,043

1

1.5%

67

1

0.9%

112

4

12.1%

33

1

1.9%

53

1

1.6%

64

0

0.0%

9

487348 Aveda Institute Portland-Vancouver Campus WA

236018 BJ's Beauty & Barber College

WA

439118 Carrington College-Spokane

WA

491260 Centralia Beauty College

WA

102845 Charter College

WA

479053 Cortiva Institute-Seattle

WA

419411 Cortiva Institute-Seattle

WA

235088 Divers Institute of Technology

WA

490294 Elite Cosmetology Barber & Spa Academy WA

Private for-profit, less-than 2-year Private for-profit, 2-year Private for-profit, 2-year Private for-profit, less-than 2-year Private for-profit, 4-year or above Private for-profit, less-than 2-year Private for-profit, less-than 2-year Private for-profit, less-than 2-year Private for-profit, less-than 2-year

Private for-profit Private for-profit Private for-profit Private for-profit Private for-profit Private for-profit Private for-profit Private for-profit Private for-profit

Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Degree-granting, associate's and certificates Nondegree-granting, sub-baccalaureate Degree-granting, not primarily baccalaureate or above Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate

0

0.0%

121

0

0.0%

74

0

0.0%

337

0

0.0%

58

0

0.0%

2,853

0

0.0%

108

0

0.0%

119

0

0.0%

243

0

0.0%

113

446260 Evergreen Beauty and Barber College-Everett WA

443049 Faith International University

WA

488271 Fosbre Academy of Hair Design

WA

458131 Gary Manuel Aveda Institute

WA

235583 Gene Juarez Academy

WA

407708 Gene Juarez Academy

WA

235307 Glen Dow Academy of Hair Design

WA

451635 Inland Massage Institute

WA

488378 International Beauty Education Center

WA

377546 Northwest College of Art & Design

WA

434362 Northwest HVAC/R Training Center

WA

458140 Northwest School of Wooden Boat Building WA

235158 Paroba College of Cosmetology

WA

234924 Paul Mitchell the School-Richland

WA

462071 Paul Mitchell the School-Spokane

WA

449074 Pima Medical Institute-Renton

WA

368629 Pima Medical Institute-Seattle

WA

485476 Studio Beauty School

WA

236744 Stylemaster College of Hair Design

WA

459550 Summit Salon Academy

WA

Private for-profit, less-than 2-year

Private for-profit

Private not-for-profit, 4-year or above Private not-for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, 4-year or above

Private for-profit

Private not-for-profit, less-than 2-year Private not-for-profit

Private not-for-profit, 2-year

Private not-for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, 2-year

Private for-profit

Private for-profit, 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, less-than 2-year

Private for-profit

Private for-profit, 2-year

Private for-profit

Nondegree-granting, sub-baccalaureate Degree-granting, primarily baccalaureate or above Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Degree-granting, primarily baccalaureate or above Nondegree-granting, sub-baccalaureate Degree-granting, associate's and certificates Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Degree-granting, associate's and certificates Degree-granting, associate's and certificates Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate

0

0.0%

380

0

0.0%

55

0

0.0%

102

0

0.0%

108

0

0.0%

128

0

0.0%

180

0

0.0%

80

0

0.0%

29

0

0.0%

32

0

0.0%

85

0

0.0%

41

0

0.0%

38

0

0.0%

111

0

0.0%

260

0

0.0%

134

0

0.0%

497

0

0.0%

468

0

0.0%

68

0

0.0%

57

0

0.0%

121

19

13.5%

141

235352 Toni & Guy Hairdressing Academy-Shoreline WA

451626 Victoria's Academy of Cosmetology

WA

Whitworth University-Adult Degree

475200 Programs

WA

363590 Altierus Career College Everett

WA

444024 Altierus Career College-Tacoma

WA

439057 Argosy University-Seattle

WA

235954 BJ's Beauty & Barber College

WA

Evergreen Beauty and Barber College-

234650 Bellevue

WA

Montessori Education Institute of the Pacific

484303 Northwest

WA

Pacific Northwest University of Health

455406 Sciences

WA

439914 Seattle Institute of East Asian Medicine

WA

234492 The Art Institute of Seattle

WA

Private for-profit, less-than 2-year Private for-profit, less-than 2-year

Private for-profit Private for-profit

Nondegree-granting, sub-baccalaureate Nondegree-granting, sub-baccalaureate

Private not-for-profit, 4-year or above Private not-for-profit, 2-year Private not-for-profit, 2-year Private for-profit, 4-year or above Private for-profit, 2-year

Private not-for-profit Private not-for-profit Private not-for-profit Private for-profit Private for-profit

Degree-granting, primarily baccalaureate or above Not applicable Not applicable Degree-granting, graduate with no undergraduate degrees Nondegree-granting, sub-baccalaureate

Private for-profit, less-than 2-year

Private for-profit

Nondegree-granting, sub-baccalaureate

Private not-for-profit, 2-year

Private not-for-profit Nondegree-granting, sub-baccalaureate

Private not-for-profit, 4-year or above Private not-for-profit

Private for-profit, 4-year or above

Private for-profit

Private for-profit, 4-year or above

Private for-profit

Degree-granting, graduate with no undergraduate degrees Degree-granting, graduate with no undergraduate degrees Degree-granting, primarily baccalaureate or above

0

0.0%

61

0

0.0%

75

0

0.0%

294

10

1.8%

570

0

0.0%

29

441131 The Seattle School of Theology & Psychology WA

Private not-for-profit, 4-year or above Private not-for-profit Degree-granting, graduate with no undergraduate degrees TOTAL

17,673

5.3%

332,912

1 5,220

0.4% 14.0%

242 37,257

** NONRESIDENT ALIEN - A person who is not a citizen or national of the United States and who is in this country on a visa or temporary basis and does not have the right to remain indefinitely. NOTE - Nonresident aliens are included here, rather than in any of the five racial/ethnic categories described below. Resident aliens and other eligible (for financial aid purposes) non-citizens who are not citizens or nationals of the United States and who have been admitted as legal immigrants for the purpose of obtaining permanent resident alien status (and who hold either an alien registration card (Form I-551 or I-151), a Temporary Resident Card (Form I-688), or an Arrival-Departure Record (Form I-94) with a notation that conveys legal immigrant status such as Section 207 Refugee, Section 208 Asylee, Conditional Entrant Parolee or Cuban-Haitian) are to be reported in the appropriate racial/ethnic categories along with United States citizens.

Appendix

7 Page 76

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 77 of 126

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

STATE OF WASHINGTON,

NO. 2:20-cv-01070

10

Plaintiff,

11

DECLARATION OF

v. 12

SHOUAN PAN

UNITED STATES DEPARTMENT OF

13 HOMELAND SECURITY;

IMMIGRATION AND CUSTOMS

14 ENFORCEMENT; CHAD F. WOLF, in

his official capacity as Acting Secretary

15 of the U.S. Department of Homeland

Security; and MATTHEW ALBENCE, in

16 his official capacity as Acting Director of

U.S. Customs and Immigration

17 Enforcement,

18

Defendants.

19

I, Shouan Pan, declare as follows:

20

1. I am the Chancellor of the Seattle community colleges, Seattle College District

21 VI (Seattle Colleges). The District is comprised of three community colleges, South Seattle

22 College, Seattle Central College, and North Seattle College, located in Seattle, Washington. My

23 educational background includes a Doctor of Philosophy in Higher Education from Iowa State

24 University, a Master of Education in College Student Personnel from Colorado State University,

25 and a Bachelor of Arts degree in English from Hefei Polytechnic University, Republic of China.

26 I have been employed as Chancellor at the Seattle Colleges since July 2016.

DECLARATION OF SHOUAN PAN CAUSE NO. 2:20-cv-01070
Appendix

1

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 77

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 78 of 126

1

2. I submit this declaration in support of the State of Washington’s litigation

2 challenging the policies announced on July 6, 2020, by “Broadcast Message” and to be published

3 as a Temporary Final Rule to amend requirements of the Student and Exchange Visitor Program

4 (the “Rule”).

5

3. I have compiled the information set forth below through personal knowledge as

6 well as through the Seattle Colleges’ personnel who have assisted me in gathering this

7 information from our institutions. I have also familiarized myself with the Rule in order to

8 understand its immediate impact on Seattle Colleges.

9 Background of Seattle Colleges and International Student Population

10

4. The Seattle Colleges is heavily reliant on funds appropriated by the Washington

11 State Legislature to subsidize student tuition funds. It is approximately 66 percent state-funded,

12 16 percent funded through contract courses, including some international student tuition

13 payments, and 18 percent funded through student service and activity fees. Some of this contract

14 funding includes auxiliary funds from various sources, including contract students, dormitories,

15 and food services. The State Board for Community and Technical Colleges oversees the 34

16 community and technical colleges in the state of Washington.

17

As of the 2017-18 academic year, the Seattle Colleges had 46,333 students, and 2,242

18 employees, including 1,251 faculty (source Seattle Colleges’ 2019-21 College Catalogue). It

19 offers two-year transfer degrees to four-year institutions, such as the University of Washington,

20 terminal certificates, and has a number a baccalaureate programs.

21

International students provide both revenue and diversity to the Seattle Colleges. In

22 addition to the out-of-state tuition payments, international students at the Seattle Colleges are

23 estimated to have contributed more than $16 million to the local Seattle economy in the 2019-20

24 academic year.

25

5. 2019-20 revenue generated by international student enrollment was

26 approximately 17.7 million dollars.

DECLARATION OF SHOUAN PAN CAUSE NO. 2:20-cv-01070

2

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

Page 78

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 79 of 126

1 Impact on Institutional Mission and Values

2

6. During the 2019-20 academic year, the Seattle Colleges had 6,220 enrolled

3 international students, (these include duplicate head count for summer, fall, winter, and spring

4 quarters) who have F-1 or M-1 visas. The vast majority of whom attend the Seattle Colleges on

5 F-1 visas. The Seattle Colleges had been projecting enrollments between 3,442 and 4,068

6 international students on these visas (working with a range given the COVID-19 environment).

7 Of these, the Seattle Colleges anticipates approximately 900 students were intending to remain

8 in Seattle for fall quarter.

9 Countries Represented by Students Studying on Non-Immigrant Student Visas

10

7. The students attending the Seattle Colleges on non-immigrant visas come from

11 84 countries of origin, including these countries with significant enrollments: China, Vietnam,

12 Saudi Arabia, Japan, South Korea, Brazil, Colombia, Hong Kong, Ethiopia, Myanmar,

13 Indonesia, India, Kazakhstan, Kyrgyzstan, Mongolia, Nepal, Pakistan, Taiwan, and Thailand.

14 Many of these countries do not have the remote learning infrastructure available in the United

15 States, such a Myanmar, Nepal, Columbia, and Mongolia.

16 Seattle Colleges’ Response to COVID

17 Policies and Procedures Implemented from ICE Guidance in March

18

8. The Seattle Colleges changed how it advises international students, telling them

19 that they could take all online classes and maintain status. The Seattle Colleges had to figure out

20 and adjust how it registered students in SEVIS, because they were allowed to maintain status if

21 they were outside the country, but the Seattle Colleges could not conduct initial registration for

22 students if they had not entered the country. Because the Seattle Colleges had not expected that

23 Immigration and Customs Enforcement would shift back to previous guidance so quickly, the

24 Seattle Colleges had already advised many students that they could continue online enrollment

25 in fall quarter, since we knew, at the very least, that the colleges would be 50 percent or more

26

DECLARATION OF SHOUAN PAN CAUSE NO. 2:20-cv-01070
Appendix

3

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 online. We also shifted to issuing documents digitally. With the pandemic showing no signs of

2 abatement, the ability to reopen to in-person teaching is still uncertain.

3

9. Seattle Colleges continues to prioritize health and safety while doing our best to

4 provide educational access. A large part of the challenge remains in the limited resources to

5 allow for an increase of in-person instruction. Constraints around space, custodial support, and

6 oversight remain significant barriers.

7 Ongoing Monitoring of the Pandemic and Future Planning

8

10. Our Emergency Response Team meets three times a week and shares information

9 that each section chief has gathered. Our Planning Team has been gathering internal data and

10 information on space options and program demands.

11 Decision-Making Process

12

11. I meet with the three college presidents regularly and with their peers at sister

13 community and technical colleges from across the state in meetings convened by the State Board

14 for Community and Technical Colleges. During those meetings, health experts have provided

15 updated information and forecasts for where the pandemic might progress. Additionally, Seattle

16 Colleges participates in the King County Higher Education Coronavirus Planning Group.

17 Internally, we rely on the expertise of our environmental health and safety staff.

18

12. With significant numbers of students and staff potentially on campus, we have

19 concerns about contributing to “community spread.” King County is still in the Governor’s Phase

20 1 containment and has significantly higher rates of COVID-19 infections than most of state.

21

13. The Seattle Colleges continue to gather data on our options for fall quarter and

22 plan to “turn the dial” slightly in an attempt to offer some in-person sections for students. We

23 have received feedback from some student populations that they greatly prefer in-person

24 instruction over online. We recognize this may be shaded by their previous experience in spring

25 quarter, either with Seattle Colleges or their high school, with the abrupt switch to online

26 learning. We will adhere to Governor Inslee’s reopening protocols for Higher Education. Doing

DECLARATION OF SHOUAN PAN CAUSE NO. 2:20-cv-01070

4

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 so will require resources be redirected to that effort. We are following the guidance provided by

2 Governor Inslee’s proclamation, which takes effect August 1, 2020.

3 Continued Reliance on March Guidance from ICE

4

14. In communication with our SEVP representative, the Seattle Colleges was

5 operating with the understanding that SEVP would give adequate notification for any changes

6 from the March guidance that allowed international students to attend classes online. By

7 adequate notice, we were given to expect four to six months; especially considering the

8 increasing number of COVID-19 cases throughout the U.S.

9 How New ICE Directive Will Impact Seattle Colleges

10

15. The Seattle Colleges is reconsidering its mode of instruction for fall quarter

11 2020; being forced to choose between protecting international students and revenues or safety

12 and public health.

13 Impact on Students

14

16. We have about 15 students from Africa who would have more difficulty studying

15 from home due to internet infrastructure, and for whom unplanned travel would be a financial

16 burden. They might also find it difficult to renew their visas and return later. And if the pandemic

17 hits their countries hard, it could be quite devastating for them to be at home. While more

18 countries are opening borders to their citizens, flights are limited; often routed through third

19 countries and are priced at a premium—adding financial burden to students and their families.

20 We are also concerned about students having to abandon their apartment leases, as many have

21 resided in Seattle for a few years.

22 Impact of Disenrollment on Finances

23

17. International revenues have been in decline since peak enrollments in 2014-15.

24 The pandemic has accelerated the decline for the 2019-20 academic year and is anticipated to

25 impact enrollments in fall 2020 and possibly winter 2021. The ICE directive may decimate what

26 enrollments we have left. The institution relies on this revenue to help cover the gap between

DECLARATION OF SHOUAN PAN CAUSE NO. 2:20-cv-01070

5

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 82 of 126

1 state allocation and operating expenses, with international students paying a substantially higher

2 non-resident rate of tuition. Budgets are already constrained and there is the potential of losing

3 F-1 students permanently.

4 Impact of Losing Tuition Revenue

5

18. The International Programs offices are funded solely on international revenues.

6 Significant staff reductions are anticipated. In addition, the revenues contribute to the

7 institutional operating funds already constrained by state budget projections.

8 Potential Loss of Students in Important Roles

9

19. International students serve in leadership roles throughout the colleges, including

10 within Student Government. Eligible international students also fill many campus hourly jobs.

11 Administrative costs of complying with the ICE directive, such as having to issue a new Form

12 I-20 for each of its potentially thousands of students on F-1 status, and to do so within 21 business

13 days of the July 6 Directive. The directive puts undue burden on the SEVIS Designated School

14 Official in the institution during summer when staff have prearranged vacation time. Further, the

15 guidance provided is not final. Given that it is subject to changes that may further impact staff

16 workload, the deadlines are unreasonable.

17 Impact on Local Economy and Services

18

20. In addition to the tuition revenue, international students at the Seattle Colleges

19 are estimated to have contributed more than $16 million to the local economy in academic year

20 2019-20.

21 Seattle Colleges’ Response to the COVID-19 Pandemic

22

21. During spring quarter, Seattle Colleges initially went 100 percent online for

23 classes and student services in line with the Stay Home, Stay Healthy Order from Governor

24 Inslee. We started classes a week late for spring quarter to allow faculty additional time to make

25 the transition. We also compensated faculty for this transition. We provided technology (as best

26 we could) for some students who did not have access. Partway through spring quarter, Governor

DECLARATION OF SHOUAN PAN CAUSE NO. 2:20-cv-01070

6

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1 Inslee released new guidance for Higher Education that allowed us to re-open a few selected

2 programs, in essential fields, for in-person instruction. We developed an Infection Control Plan

3 and associated protocols over the course of one to two weeks and began having limited in-person

4 instruction in those essential programs. Spring quarter enrollment ended at 74 percent of our

5 original target.

6 Decision to Switch to Online Instruction

7

22. As the pandemic was progressing and being better understood, we were following

8 the guidance of the Governor’s office and the State Board for Community and Technical

9 Colleges. We did not really have a choice as to whether or not to move to a virtual environment

10 given the on-going safety concerns for faculty, staff, students and the general public.

11

12

13

14

15

16

17

18

19

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21

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25

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DECLARATION OF SHOUAN PAN CAUSE NO. 2:20-cv-01070
Appendix

7

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

I declare under penalty of perjury under the laws of the State of Washington and the

2 United States of America that the foregoing is true and correct.

3

4

DATED this 10th day of July 2020, at Seattle, Washington.

5

Shouan Pan

_________________________________

6

Dr. Shouan Pan

Chancellor

7

Seattle College District VI

8

9

10

11

12

13

14

15

16

17

18

19

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21

22

23

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DECLARATION OF SHOUAN PAN CAUSE NO. 2:20-cv-01070
Appendix

8

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

STATE OF WASHINGTON, 10

NO. 2:20-cv-01070

Plaintiff,

11

DECLARATION OF

v. 12

LINDA SCHACTLER

UNITED STATES DEPARTMENT OF 13 HOMELAND SECURITY;

IMMIGRATION AND CUSTOMS 14 ENFORCEMENT; CHAD F. WOLF, in

his official capacity as Acting Secretary 15 of the U.S. Department of Homeland

Security; and MATTHEW ALBENCE, in 16 his official capacity as Acting Director of

U.S. Customs and Immigration 17 Enforcement,

18

Defendants.

19

20

I, Linda Schactler, pursuant to 28 U.S.C. § 1746, hereby declare and affirm,

21

1. I am the Chief of Staff and Secretary to the Board of Trustees at the Central

22 Washington University (“CWU”) located in Ellensburg, WA. My educational background

23 includes a bachelor of arts and a master of arts in English Literature. I have been employed as

24 CWU since Dec. 2009.

25

26

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

1

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

2. I submit this declaration in support of the State of Washington’s litigation

2 challenging the policies announced on July 6, 2020 by “Broadcast Message” and to be

3 published as a Temporary Final Rule to amend requirements of the Student and Exchange

4 Visitor Program (the “Rule”).

5

3. I have compiled the information set forth below through personal knowledge as

6 well as through CWU personnel who have assisted me in gathering this information from our

7 institution. I have also familiarized myself with the Rule in order to understand its immediate

8 impact on CWU.

9

4. Central Washington University is a public, regional, comprehensive institution.

10 In addition to the residential campus in Ellensburg, WA, CWU offers programs at six

11 University Centers and two instructional sites throughout the state of Washington. The six

12 University Centers are co-located with Washington community and technical colleges: CWU-

13 Des Moines, CWU-Lynnwood, and CWU-Pierce County on the west side of the Cascades, and

14 CWU-Moses Lake, CWU-Wenatchee, and CWU-Yakima on the east side. The two

15 instructional sites are CWU-Joint Base Lewis McChord and CWU-Sammamish.

16

5. The State of Washington has authorized CWU to operate as a higher education

17 institution and to award bachelor’s, master’s, and educational specialist degrees. The Revised

18 Code of Washington (RCW) 28B.10.016 defines “institutions of higher education,”

19 “postsecondary institutions,” and “regional universities” to include Central Washington

20 University. RCW 28B.35.200 authorizes Central Washington University to confer bachelor of

21 arts, bachelor of science, and bachelor of arts in education degrees. RCW 28B.35.205

22 authorizes CWU to grant any degree through and including master’s degrees, and RCW

23 28B.35.202 authorizes CWU to award educational specialist degrees.

24

6. According to CWU’s Annual Financial Report FY19 (the FY20 report is not yet

25 available on the Accounting and Financial Services website), state appropriations totaled

26 $62,970,000. This was an increase of $3.3 million or 5.59% compared to FY18 when state

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

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ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 appropriations were $59,634,000. For Spring 2020, CWU’s State General operating funds

2 totaled $21,877,529. In comparison, Spring 2019 State General operating funds totaled

3 $24,457,722.

4

7. Through the authority granted through Chapter 28B.35 RCW, Central

5 Washington University is a State regional university that is allocated funding through the State

6 legislature on a biennium period. In the 2019-2021 biennium, Central was appropriated a total

7 of $133,983,000 per Engrossed Substitute House Bill 1109 signed by Governor Inslee on

8 05/21/2019.

9

8. In Spring 2020, CWU enrolled 14,230 students including 9,954 undergraduates,

10 5215 graduate students, 215 post-baccalaureate students, and 3,550 high school students

11 participating in CWU Running Start. CWU employed 1,911 faculty and staff members

12 including approximately 500 full-time faculty.

13

9. CWU has five colleges: the College of Arts and Humanities; the College of

14 Business; the College of Education and Professional Studies; the College of the Sciences; and

15 the William O. Douglas Honors College. CWU offers six graduate degree designations:

16 Education Specialist (EdS), Master of Arts (MA), Master of Education (MEd), Master of Fine

17 Arts (MFA), Master of Music (MM), and Master of Science (MS). CWU has six undergraduate

18 degree designations: Bachelor of Applied Science (BAS), Bachelor of Arts (BA), Bachelor of

19 Arts in Education (BAEd), Bachelor of Fine Arts (BFA), Bachelor of Music (BM), and

20 Bachelor of Science (BS). The institution offers more than 300 majors, minors, and

21 specializations.

22

10. Students and CWU employees have a massive impact on the economic health of

23 the city of Ellensburg, where about one of every seven jobs is at the university. The annual

24 payroll for this educated workforce supports retail, food, housing, and other businesses. The

25 purchases of employees and the activities of the university also generate sales tax and other

26 revenue that supports local government and the delivery of vital human services. Retailers in

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

3

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1 the Ellensburg area know that CWU students represent 50 percent of all retail customers.

2 Employees, students, and guests generate more business throughout the year than any other

3 single entity. Camps, conferences, and events hosted by CWU draw more than 50,000

4 people to restaurants.

5

11. CWU enrolled on average 343 international students on F-1 visa status between

6 Fall, Winter and Spring quarters during the 2019-2020 Academic Year. These students

7 contribute $14,644,700 in tuition, housing fees, etc. to Central Washington University. CWU

8 currently has about 200 international students enrolled into the Fall quarter and most of these

9 students are in the United States.

10

12. Central Washington University has 161 newly admitted students for enrollment

11 in Fall 2020 who will require F-1 or M-1 status. Of these students, 70 are currently in the

12 United States and 91 are currently living outside the United States and require a visa to enter

13 the country for study. These students are expected to contribute $6,874,043 in tuition, housing

14 fees, etc. to Central Washington University.

15

13. In compliance with the 19 March 2020 Kittitas County Health Order and

16 Governor Inslee’s 23 March 2020, “Stay Home, Stay Healthy” proclamation, for the duration

17 of the Spring 2020 term, CWU moved all instruction online. All in-person classes and labs

18 were canceled, and all campus buildings were closed to the public. CWU issued a statement

19 strongly encouraging students, whether they live on or off campus, to say in place. Dining

20 services only provided food to go, and all in-person, University-sponsored student and

21 community events were canceled, including Commencement.

22

14. To facilitate the transition to completely online teaching and learning, CWU

23 moved the start of the spring term back by one week. Instead of beginning on Tuesday, 31

24 March 2020, the term began on Wednesday, 8 April 2020. Courses continued through

25 Monday, 8 June 2020, with final exams taking place 9 through 12 June 2020. Most instruction

26 during Spring 2020 was conducted using Canvas, CWU’s learning management system. The

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

4

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1 Multi-Modal Learning team provided significant support to faculty in the run-up to the start of

2 courses and continued to do so throughout the term.

3

15. CWU also took a series of actions to support student learning and well-being

4 including, but not limited to:

5

• Moving student academic support services online, extending hours, and expanding

6

services

7

• Adjusting the Spring 2020 fee schedule

8

• Developing an Emergency Pass/Fail Grades Policy (Attachment #6: CWUP 5-90-

9

040(20) Emergency Pass/Fail (EP/EF) Grades)

10

• Communicating with students about the Emergency Pass/Fail Grades Policy

11

• Updating the Internship Policy to be COVID-19 compliant

12

• Communicating directly with students in particular programs, for example, teacher

13

preparation candidates who were scheduled for student teaching this term

14

• Launching a texting/calling campaign retention initiative to address student support

15

needs

16

16. CWU also addressed research and creative expression activities under COVID-

17 19 restrictions, and the CWU administration and faculty signed an MOU regarding adjustments

18 to scholarship procedures in response to COVID-19. The CWU Board of Trustees was actively

19 engaged in monitoring and mitigating the COVID-19 situation, meeting on 20 March, 31

20 March, and 9 April 2020. Meetings have been live-streamed on CWU’s website, and

21 recordings of the meetings are available. Both the Board and the President shared messages

22 with the university community.

23

17. CWU moved all Winter 2020 final exams (conducted from 17-20 March) online

24 to comply with 19 March 2020 Kittitas County Health Order. The decision to move all classes

25 online for the duration of the Spring 2020 term was taken to maintain compliance with that

26

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

5

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

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1 Health Order and to comply with Governor Inslee’s 23 March 2020, “Stay Home, Stay

2 Healthy” proclamation.

3

18. Operational plans are currently being developed to ensure safe, effective, and

4 efficient operations at all levels of the university. These plans are being developed by a cross

5 section of faculty and staff to outline guidelines for key activities. These plans are also

6 reviewed by an advisory council (expert peer review) comprised of university health and safety

7 experts, HR, faculty leadership, equity experts, and others. HR and the Provost will consult

8 with leadership of the various unions in order to ensure our plans are vetted and communicated

9 in accordance with relevant collective bargaining agreements. Once approved, plans will be

10 enacted and continually updated as new information becomes available and/or our environment

11 changes. All plans will be made available to the university community at-large.

12

19. CWU leadership is coordinating with Dr. Mark Larson, Kittitas County Health

13 Officer, and Governor Inslee’s offices to finalize Fall 2020 opening plans. Every effort has

14 been and will continue to be made in collaboration with these the health officials to ensure the

15 health and safety of the CWU community as well as the community of Ellensburg, Kittitas

16 county, and the communities in which the CWU centers and instructional sites reside.

17

20. Auxiliary Services, Police and Public Safety, Housing and Residence Life,

18 Athletics, and CWU Libraries are each developing a plan specific to their departments and

19 services. In addition, university-wide plans are being developed in the following areas:

20

• Teaching and Learning. This plan will outline how the class schedule will be delivered

21

and how learning spaces will be managed in order to keep faculty, staff and students

22

safe.

23

• Administrative. University-wide guidelines for work done in office spaces and face-to-

24

face meetings as well as other administrative functions are included in this plan.

25

• Service Centers. The plan includes guidelines on how customer-facing services such as

26

cashiers, advising, financial aid, HR, etc. can operate safely.

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

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ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

• Programming. Guidelines for those organizing events, campus activities, and

2

recreational activities are included in this plan.

3

• Facilities. Overviews of cleaning guidelines and protocols, circulation management,

4

supplies procurement, and furniture relocations are included in this plan.

5

• Socialization. The socialization of healthy behaviors throughout the university

6

community for students, faculty, staff, visitors and guests is vital to the success of re-

7

entry. This plan will include information about the strategies, activities, and tools to be

8

used to assist with socializing and normalizing safety measures at CWU.

9

• Managing COVID. This plan will include information about COVID testing, contact

10

tracing, quarantine/isolation, and processes for overall management of COVID

11

incidents at CWU.

12

21. Based on March guidance from ICE and with close consultation of local and

13 state health guidelines, CWU planned a mixture of course modalities available for students for

14 Fall 2020. CWU has planned for in-person, hybrid, or online courses to accommodate health

15 concerns for students and faculty. ICE guidance in March allowed for CWU to move entirely

16 online to meet local and state mandates caused by COVID-19. International students were able

17 to maintain their status by enrolling all online. CWU planned on similar guidance for fall as we

18 cautiously make plans for reopening campus this fall.

19

22. Central Washington University’s International staff have been waiting for

20 continued guidance from ICE for fall guidelines. We were optimistic that ICE would allow for

21 continued flexibility of course modality for international students as COVID-19 remains a

22 large concern for many students, parents, faculty and staff. This pandemic has not slowed

23 down in the US and possible risk of infection remains high. We were very surprised that the

24 recent ICE guidance was not accommodating and was not flexible to meet the various health

25 needs for international students and the campus community, by allowing for various course

26 modalities.

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

7

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

23. In compliance with the March 2020 ICE guidance, CWU worked with

2 international students to ensure they could complete their Winter Term 2020 final exams and

3 could continue to pursue their degrees during Spring Term 2020.

4

24. The recent ICE Rule that changed this March guidance will cause direct harm to

5 international students by forcing students to participate in in-person courses without the

6 flexibility to accommodate those that may have health issues or it may increase the spread of

7 COVID-19. If local or state mandates cause university closure at any point during fall term,

8 international students are at risk of deportation proceedings, and having their study interrupted

9 and/or ended. Additionally, CWU is on the quarter system and students, especially new

10 freshman, do not typically enroll until early August or later. This rush for students to enroll and

11 for CWU to verify their enrollment, reprint the I-20 and send to students by August 4th is a

12 strict deadline and challenging to accomplish.

13

25. The current conditions in certain countries where CWU students come from

14 may create difficulty for students trying to engage in remote learning due to poor technology

15 infrastructure, war, or social unrest. For instance, students in China or Taiwan cannot access

16 Zoom, which is banned in these countries. Certain countries designated eligible for Temporary

17 Protected Status/Deferred Enforced Departure due to civil unrest, violence or natural disasters

18 include Haiti, Liberia, Nepal, Somalia, Sudan and South Sudan, Syria, Yemen. Our students

19 from these countries face perilous situations should they be forced to return.

20

26. CWU estimates that approximately 26% of students may disenroll for Fall 2020

21 as a result of this Rule. This may occur for a number of reasons. If students have the option to

22 take in-person or hybrid classes, they may remain enrolled for Fall 2020. However, if the

23 university determines that it is necessary to move to fully online course of study, student will

24 have to choose from a variety of alternative options. One option would be for students to return

25 to their home country and continue their online studies. Another option would be for students

26 to transfer to another US university that is able to provide in-person or hybrid

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

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1 instruction. There is the potential for an additional layer of issue for those students who legally

2 should leave the US due to their classes being moved fully online, but being stuck in the US

3 because they cannot safely repatriate due to the pandemic. And finally, our former students

4 who are currently on OPT, and those that would now be eligible for CPT/OPT would lose out

5 on this amazing opportunity for professional growth due to this new rule. It would be

6 devastating to the international population at CWU.

7

27. Should this disenrollment occur, revenue for CWU would drop across multiple

8 units. International students typically pay out of state tuition, on campus housing, and dining

9 fees. They also pay required students fees that fund students’ programs and buildings such as

10 the Student Union and Recreation Center, the on campus medical center and tutoring center.

11 As 74% of international students attend full time, any loss of our international student

12 population would result in a direct reduction in revenue funding for these programs.

13 International students are considered non-resident students here at CWU and pay 150% of in

14 state tuition rates. In the 2019-2020 school year, CWU averaged 343 international students

15 between Fall, Winter and Spring quarters. If CWU were to lose all of our international

16 students, this would equal a loss of up to $2,578,331 in tuition per quarter and a loss of up to

17 $7,734,993 between Fall, Winter and Spring quarters. A majority of CWU’s on campus

18 housing costs $6,188 per year for housing and $5,493 for a typical (medium) meal plan. In

19 2019-2020, CWU averaged 239 international students per quarter at the Ellensburg campus. If

20 we were to lose those students, this would result in a loss of up to $1,478,932 for our housing

21 department and a loss of up to $1,312,827 for our dining department for an academic year. Our

22 other on campus fees in 2019-2020 totaled $649.06 per quarter. These fees fund services,

23 activities, the on-campus Wellness Center, the community bus service for students, as well as

24 technology improvements for students and funding the library. If CWU lost all 239 students,

25 fee loss would result in a loss of up to $465,376.02 for these programs and departments.

26 CWU submitted their operational change to SEVP for Spring/Summer on March 20th.

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

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ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

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1

28. Typically, CWU’s course offering is 20-25% online and 75-80% in-person or

2 hybrid for any given term. The Fall 2020 course schedule has been reconfigured with 35% in-

3 person or hybrid courses and 45% online courses and 30% distance education or simultaneous

4 virtual courses. The fall academic calendar was moved forward by two weeks in order to

5 ensure contiguous attendance on-campus. Fall 2020 starts on September 9 and ends on

6 November 20, before the Thanksgiving Break. Winter break will ensue on November 21 until

7 the beginning of the winter term in January. Kittitas County, where the main campus of CWU

8 presides, is in Phase 3 which allows up to 50 to gather. Class limits are restricted and

9 monitored to ensure that no more than 49 students are meeting together with the instructor at

10 any one-class meeting. A contingency plan exists for shifting more courses to a virtual meeting

11 plan should there be a need to prior or during the fall term. Specific plans are in place to

12 accommodate currently enrolled international students.

13

29. Because SEVP is requiring individualized reporting, each student’s registration

14 must be checked by an academic advisor and a DSO to ensure compliance. If COVID-19 cases

15 increase in the Fall 2020, this could require the University to move online, as we did in the

16 spring. CWU is on a quarter system and classes begin in September, one month after the 17 August 4th deadline to complete I-20 updates for all of our international students. Certifying

18 this many I-20s becomes difficult. CWU has rolling admission, so we anticipate many students 19 applying and being accepted after August 4th.

20

30. Prior to March 2020, DSOs did not have to certify a student’s enrollment until

21 30 days after the quarter started and when registration closed. With the new Rule, DSOs now

22 have to ensure all CWU international students are enrolled in appropriate in-person classes a

23 month before classes even begin. This means we have to certify a student’s enrollment August 24 4th, and they have until the add/drop deadline of September 15th (almost 6 weeks) to make

25 changes to their schedule.

26

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

10

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

Page 94

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 95 of 126

1

31. International students within the US that do not comply with the ICE guidance

2 at risk of losing their status from termination of the I-20 and SEVIS record. A termination

3 would force the international student to immediately depart the U.S. and return home. Flight

4 availability may be limited and their home country/city/community may have high COVID

5 outbreaks.

6

32. The potential economic effects on students that lose their visas include the

7 following: losing F-1 status and losing ability to obtain work visas (CPT, OPT) after academic

8 year; funds to pay for tickets to home country; funds to find short-term housing in home

9 country; extending the length of their graduation plan, I901 SEVIS processing fees. With

10 Washington having large tech companies such as Microsoft, they could be adversely impacted

11 through a loss of their talent pool as international students tend to major in a STEM field.

12 While the CWU international student population is only a portion of our overall population,

13 any reduction in international student populations will just have that many less people in our

14 communities spending at our local businesses. According to NAFSA’s Economic report,

15 international students’ financial contribution to the state of Washington is $956.1 million and

16 support 8,818 jobs in the state.

17

33. A significant reduction in our international student population will result in

18 CWU needing less employees. Not only would the international office have to reduce staff, but

19 potentially our housing department as all of our international students tend to live on campus. I

20 reduction in revenue for other effected departments may also result in those departments

21 needed less employees when combined with the reduction in enrollment from COVID

22 generally.

23

24

25

26

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

11

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

Page 95

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 96 of 126

1

I declare under penalty of perjury under the laws of the State of Washington and the

2 United States of America that the foregoing is true and correct.

3

4

DATED this tenth day of July 2020, at Ellensburg, Washington.

5

6

7

______

LINDA SCHACTLER, Chief of Staff

8

Central Washington University

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF LINDA SCHACTLER CAUSE NO. 2:20-cv-01070

12

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Appendix

Page 96

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 97 of 126
UNITED STATE DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE NO. 2:20-cv-01070

DECLARATION OF WENDY STEWART CAUSE NO. 2:20-cv-01070
Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
Page 97

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 98 of 126

DECLARATION OF WENDY STEWART CAUSE NO. 2:20-cv-01070
Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
Page 98

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 99 of 126

DECLARATION OF WENDY STEWART CAUSE NO. 2:20-cv-01070
Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
Page 99

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 100 of 126

DECLARATION OF WENDY STEWART CAUSE NO. 2:20-cv-01070
Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
Page 100

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 101 of 126

DECLARATION OF WENDY STEWART CAUSE NO. 2:20-cv-01070
Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
Page 101

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 102 of 126

DECLARATION OF WENDY STEWART CAUSE NO. 2:20-cv-01070
Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
Page 102

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 103 of 126

DECLARATION OF WENDY STEWART CAUSE NO. 2:20-cv-01070
Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
Page 103

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 104 of 126

DECLARATION OF WENDY STEWART CAUSE NO. 2:20-cv-01070
Appendix

ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 5th Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
Page 104

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 105 of 126

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 10

STATE OF WASHINGTON, 11

NO. 2:20-cv-01070

Plaintiff,

DECLARATION OF

12

SPENCER W. COATES

v.

13

UNITED STATES DEPARTMENT OF

14 HOMELAND SECURITY;

IMMIGRATION AND CUSTOMS

15 ENFORCEMENT; CHAD F. WOLF, in his

official capacity as Acting Secretary of the

16 U.S. Department of Homeland Security;

and MATTHEW ALBENCE, in his official

17 capacity as Acting Director of U.S.

Customs and Immigration Enforcement,

18

Defendants.

19

20

21

I, Spencer W. Coates, declare as follows:

22

1. I am over the age of 18 and have personal knowledge of all the facts stated

23 herein.

24

2. I am an Assistant Attorney General with the Washington State Attorney

25 General’s Office and counsel of record for the State of Washington in this matter.

26

DECLARATION OF SPENCER W. COATES NO. 2:20-cv-01070
Appendix

1

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 105

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 106 of 126

1

3. Attached hereto as Exhibit A is a true and correct copy of a March 9, 2020

2 document entitled “Broadcast Message: Coronavirus Disease 2019 (COVID-19) and Potential

3 Procedural Adaptations for F and M Nonimmigrant Students,” issued by the Student and

4 Exchange Visitor Program of the United States Immigration and Customs Enforcement

5 (SEVP).

6

4. Attached hereto as Exhibit B is a true and correct copy of a March 13, 2020

7 document, issued by SEVP, entitled “COVID-19: Guidance for SEVP Stakeholders.”

8

5. Attached hereto as Exhibit C is a true and correct copy of a July 9, 2020

9 Harvard Crimson article, entitled Harvard Says Incoming Freshman Stopped at Belarus

10 Airport, authored by Juliet E. Isselbacher and Amanda Y. Su, currently available at

11 https://www.thecrimson.com/article/2020/7/9/freshman-stopped-belarus/. I accessed and

12 printed this article on July 12, 2020.

13

6. Attached hereto as Exhibit D is a true and correct copy of a tweet by

14 President Donald J. Trump, sent July 6, 2020 at 11:40 A.M., which I accessed and printed on

15 July 12, 2020. The tweet is currently available at

16 https://twitter.com/realDonaldTrump/status/1280209946085339136.

17

7. Attached hereto as Exhibit E is a true and correct copy of a July 7, 2020

18 article from The Hill, authored by John Bowden, entitled Cuccinelli says rule forcing

19 international students to return home will 'encourage schools to reopen', currently available

20 at https://thehill.com/homenews/administration/506248-cuccinelli-says-rule-forcing-

21 international-students-to-return-

22 home#:~:text=Acting%20Deputy%20Secretary%20of%20Homeland,U.S.%20schools%20to

23 %20reopen%20campuses. I accessed and printed this article on July 12, 2020.

24

25

26

DECLARATION OF SPENCER W. COATES NO. 2:20-cv-01070
Appendix

2

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 106

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 107 of 126

1

I declare under penalty of perjury under the laws of the State of Washington and the

2 United States of America that the foregoing is true and correct.

3

DATED this 12th day of July, 2020, at Seattle, Washington.

4

/s/ Spencer W. Coates

5

SPENCER W. COATES

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF SPENCER W. COATES NO. 2:20-cv-01070
Appendix

3

ATTORNEY GENERAL OF WASHINGTON

Complex Litigation Division

800 5th Avenue, Suite 2000

Seattle, WA 98104-3188

(206) 464-7744

Page 107

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 108 of 126
Exhibit A

4 Appendix

Page 108

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 109 of 126
Broadcast Message: Coronavirus Disease 2019 (COVID-19) and Potential Procedural Adaptations for F and M nonimmigrant students
To: All SEVIS Users
Date: March 9, 2020
Supersedes: Broadcast Message: 2019 Novel Coronavirus and Potential Procedural Adaptations for F and M nonimmigrant students; Jan. 29, 2020; Number 2001-05
Number: 2003-01
General Information
The Student and Exchange Visitor Program (SEVP) continues to monitor developments with the Coronavirus (COVID-19). Concurrent with other federal agencies, SEVP provides the following information.
SEVP-certified schools should advise students traveling from countries impacted by COVID-19 to refer to guidance from the Centers for Disease Control and Prevention (CDC), U.S. Department of State and U.S. Customs and Border Protection for specific port-of-entry screening processes, as well as any travel restrictions.
SEVP-certified Schools and F and M Students
SEVP-certified schools may need to adapt their procedures and policies to address the significant public health concerns associated with the COVID-19 crisis. To ensure that SEVP is able to continue to meet its oversight responsibilities, attached is a template to be used in reporting COVID-19 procedural adaptations to SEVP. In evaluating these changes, SEVP is focused on ensuring that nonimmigrant students are able to continue to make normal progress in a full course of study as required by federal regulations. SEVP intends to be flexible with temporary adaptations. In all cases, schools and students should document any decisions made and be able provide this information to SEVP upon request. Similarly, changes to workplace requirements may impact nonimmigrant students engaging in practical training. SEVP encourages such students to consult with their employer to seek alternative ways to maintain employment, such as teleworking or other arrangements.
SEVP recognizes that the COVID-19 crisis is fluid and rapidly changing. For that reason, SEVP is not requiring prior notice of procedural adaptations, leaving room for schools to comply with state or local health emergency declarations. However, as noted in the Appendix, SEVP must be notified of procedural adaptations within ten business days of the change.
This guidance applies to students who are currently enrolled in a program of study and is not intended for new or initial students who are outside the United States.
1

5

Appendix

Page 109

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 110 of 126
SEVP is monitoring this situation closely. The program will supplement this guidance with additional information and will adjust guidance as needed.
Comments
To comment on this Broadcast Message, please email SEVP@ice.dhs.gov with “Broadcast Message 2003-01 Comment” entered in the subject line.
Disclaimer
This Broadcast Message is not a substitute for applicable legal requirements, nor is it itself a rule or a final action by SEVP. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil or criminal matter.

2
6 Appendix

Page 110

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 111 of 126
Appendix 1: COVID-19 Impact on School Operations
Instruction: SEVP recognizes that schools are updating their emergency operations plans to minimize the potential impact of COVID-19 on the school. If a school determines that it will exercise temporary closure or make other significant operational or curricular changes, the school must advise SEVP of accommodations it is making for its F and M nonimmigrant population. Schools must provide SEVP notice of the requested information below within 10 business days of the date of the decision to initiate the operational change. Please send the required information detailed below to the SEVP Response Center at SEVP@ice.dhs.gov. In the subject line, please include “COVID-19 School Operations [School code].” Submissions to SEVP should include the following information:
• School name and all physical locations affected by the changes • School code
If planning to provide online instruction: • Mode and classroom setting (i.e., computer lab, students with laptops in a classroom connected to Wi-Fi, etc.) • How the school will seek to provide oversight of these students • The names of programs of study and classes that will be taught online • Projected length of time for online instruction
If planning to provide instruction at an alternate physical location: • Addresses of physical locations where students will be studying • How the school will: o Offer instruction o Provide student oversight o Adequately offer DSO services to students o Seek to ensure students maintain a full course of study o Projected length of time for alternate instruction
SEVP maintains the right to conduct out-of-cycle reviews to ensure compliance with all recordkeeping and reporting requirements consistent with implementation of any approved plan.
3

7 Appendix

Page 111

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 112 of 126

Exhibit B

8

Appendix

Page 112

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 113 of 126

Homeland Security Investigations National Security Investigations Division Student and Exchange Visitor Program
COVID-19: Guidance for SEVP Stakeholders
March 13, 2020
As follow up to the guidance issued by SEVP on Monday, March 9, 2020, concerning the COVID-19 situation, there have been inquiries concerning the proper status for students in SEVIS who may have face slightly different scenarios related to emergency procedures implemented by SEVP-certified learning institutions:
Scenario 1: A school completely closes and does not have online courses or other alternate learning procedures.
Response: If a school closes temporarily without online instruction or other alternative learning procedures, the students should remain in active status in SEVIS so long as the students intend to resume their course of study when classes resume. This is similar to short-term breaks in the school calendar when classes are not in session. Schools must notify SEVP of COVID-19 procedural changes within 10 business days.
Scenario 2: A school temporarily stops in-person classes but implements online or other alternate learning procedures and the nonimmigrant student remains in the United States
Response: If a school closes temporarily but offers online instruction or another alternative learning procedure, nonimmigrant students should participate in online or other alternate learning procedures and remain in active status in SEVIS. Schools must notify SEVP of COVID-19 procedural changes within 10 business days. Given the extraordinary nature of the COVID-19 emergency, SEVP will allow F-1 and/or M-1 students to temporarily count online classes towards a full course of study in excess of the limits stated in 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v). This temporary provision is only in effect for the duration of the emergency and in accordance with the procedural change documents filed in a timely manner to SEVP.
Scenario 3: A school temporarily stops in-person classes but implements online or other alternate learning procedures and the nonimmigrant student departs the United States
Response: If a school closes temporarily but offers online instruction or another alternative learning procedure, nonimmigrant students should participate in online or other alternate learning procedures and remain in active status in SEVIS. Schools must notify SEVP of COVID-19 procedural changes within 10 business days. Given the extraordinary nature of the COVID-19 emergency, SEVP will allow F-1 and/or M-1 students to temporarily count online classes towards a full course of study in excess of the limits stated in 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v), even if they have left the

9

Appendix

Page 113

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 114 of 126
Homeland Security Investigations National Security Investigations Division Student and Exchange Visitor Program United States and are taking the online classes from elsewhere. This temporary provision is only in effect for the duration of the emergency and in accordance with the procedural change documents filed in a timely manner to SEVP. NOTE: Due to the fluid nature of this difficult situation, this guidance may be subject to change. SEVP will continue to monitor the COVID-19 situation and will adjust its guidance as needed.

10

Appendix

Page 114

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 115 of 126
Exhibit C

Appendix

11 Page 115

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 116 of 126

12

Appendix

Page 116

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 117 of 126

13

Appendix

Page 117

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 118 of 126
Exhibit D

Appendix

14 Page 118

Case 2:20-cv-01070-RSM Document 4-1 Filed 07/13/20 Page 119 of 126

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[CONTENT] Washington | July 2020 ||| July 15 | July ||| ICE | COVID-19 ||| October 6 |||  ||| American |||  ||| only one | three ||| 8 ||| COVID-19 | early 2020 ||| ICE | March 13, 2020 | the United States |||  ||| July 6, 2020 | ICE |||  ||| nine days |||  ||| July 10, 2020 | four days ||| Washington ||| the U.S. Department of Homeland Security | the U.S. Immigration and Customs Enforcement ||| Washington | the Administrative Procedure Act | six | 1 | 2 | 3 | 4 | 5 ||| Washington | APA | ICE |||  |||  ||| Ricardo S. Martinez ||| July 13 | at least two weeks ||| Fellows of Harvard | March ||| July 16 ||| October 6, 2020 [SUMMARY] COVID-19 Summary: This is a lawsuit brought by the state of Washington regarding the July 2020 release of ICE regulations which, in effect, meant that students on F-1 visas would risk deportation if their school shifted to online learning. On July 15, in a different lawsuit filed against the administration over the same July directive, plaintiffs met with counsel for the government and worked to get the regulations rescinded. In order to effectuate the rescission, ICE removed the guidance from its website and replaced it with the previous guidance which exempted students from the limitation on online learning credits in light of the COVID-19 pandemic. On October 6, the court granted the parties stipulated request for a dismissal. <hr>

<b>Background</b>
Generally speaking, F-1 visas (colloquially "student visas") can be granted to international students who attend American universities. However, regulations on the granting of these visas limit the amount of online or distance learning the student can engage in. According to these regulations, an international student can engage in only one such class or three credits of that class per semester. 8 C.F.R. § 214.2(f)(6)(i)(G).

The COVID-19 outbreak in early 2020 made this regulation untenable, as schools and universities had to shift to online learning systems. In response, defendant ICE issued an exemption on March 13, 2020, affirming that international students would be permitted to continue distance learning in the United States under their F-1 visas. The exemption would apply until the end of the emergency. However, on July 6, 2020, ICE issued a new directive stating that it would rescind that exemption. This directive would then mean that international students at schools that would still be fully online would have to either transfer to other schools that were at least partially in-person, go back to their countries voluntarily, or risk deportation. The directive also ordered schools that had gone fully online or had simply decided not to have classes to submit an "operational change plan" within nine days, and ordered schools that would have a hybrid system to certify each F-1 student to make sure that they were not taking entirely online courses.

<b>The Lawsuit</b>
This lawsuit was filed on July 10, 2020, four days after the directive was issued. The State of Washington was the plaintiff. Defendants were the U.S. Department of Homeland Security and the U.S. Immigration and Customs Enforcement (ICE). Washington claimed that the new directive violated the Administrative Procedure Act in six ways: 1) the directive was arbitrary and capricious in that it set up implausible deadlines for institutions to decide whether to be fully online or not; 2) the directive was arbitrary and capricious in that it reversed a prior policy without detailing any change in facts; 3) the directive was arbitrary and capricious in that the defendants entirely failed to consider an important aspect of the problem; 4) the directive was arbitrary and capricious in that defendants did not offer any cogent explanation for the change in policy; and 5) defendants did not engage in notice-and-comment rulemaking when issuing the new policy. Finally, Washington also argued that the directive violated the APA because it was issued in excess of ICE's statutory authority and encroached on the state's ability to exercise police powers regarding public health. The plaintiff sought injunctive relief in the form of a temporary restraining order as well as preliminary and permanent injunctions prohibiting the agencies from enforcing the new directive. Plaintiffs also requested that the court vacate and set aside the new directive, in addition to attorney's fees and costs. 

The case was assigned to Judge Ricardo S. Martinez.

On July 13, the plaintiff requested an emergency temporary restraining order, asking that the court enjoin the defendants from enforcing the directives for at least two weeks. 

Meanwhile, in a different lawsuit filed against the administration over the same directive, <a href="https://www.clearinghouse.net/detail.php?id=17677&search=source%7Cgeneral%3BcaseName%7CHarvard%3Borderby%7CfilingYear%3B"><i>President and Fellows of Harvard College</i></a>, the parties conferred and the defendants agreed to rescind their implementation of the directive and to return to the March policy. 

On July 16, the parties filed a joint stipulation stating that the defendants' rescission of the directive mooted the plaintiff's motion for a temporary restraining order and that the parties agreed to withdraw the motion without prejudice.

On October 6, 2020, the court granted the parties' stipulated request for a dismissal. 