UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS,
STATE OF COLORADO, STATE OF
CONNECTICUT, STATE OF DELAWARE,
DISTRICT OF COLUMBIA, STATE OF
ILLINOIS, STATE OF MARYLAND, STATE
OF MICHIGAN, STATE OF MINNESOTA,
STATE OF NEVADA, STATE OF NEW
JERSEY, STATE OF NEW MEXICO, STATE Civil Action No. 20-11311
OF OREGON, COMMONWEALTH OF
PENNSYLVANIA, STATE OF RHODE
ISLAND, STATE OF VERMONT,
COMMONWEALTH OF VIRGINIA, and
STATE OF WISCONSIN,

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF

HOMELAND SECURITY; CHAD F. WOLF, in
his official capacity as Acting Secretary of
Homeland Security; U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT; and MATTHEW
T. ALBENCE, in his official capacity as Acting
Director of U.S. Immigration and Customs
Enforcement,

Defendants.

PLAINTIFF STATES’ MEMORANDUM OF LAW

IN SUPPORT OF THEIR MOTION FOR
A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

This Court should enter a temporary restraining order and preliminary injunction

pursuant to Rule 65. Mindful of the extraordinarily short time period this Court has to consider

the merits of preliminary relief due to the July 15, 2020 deadline set by the Defendants in their

July 6, 2020 Directive, the Plaintiff States will not burden this Court with repetitive briefing and
hereby adopt and incorporate by reference the memorandum of law filed by Harvard College and

the Massachusetts Institute of Technology in support of a temporary restraining order and

preliminary injunction, No. 20-11283, ECF No. 5 (July 8, 2020) (“Harvard & MIT PI Mem.”). In

short, the States are likely to succeed on the merits of their claims that the Directive was arbitrary

and capricious, because it failed to offer a reason for its reversal of prior policy, id. at 13-15;

failed to consider the substantial reliance interests of universities and foreign students and the

harms this abrupt reversal will cause, id. at 9-13; failed to consider—or outright disregarded—

the evidence that the COVID-19 emergency is continuing unabated, id. at 14; and required

immediate compliance without affording schools and their students sufficient time to alter plans

made in reliance on prior policy, id. at 10-11. Moreover, the Directive was adopted without

proper procedure. Id. at 16-17. Schools and students across the country will suffer irreparable

harms akin to those of Harvard College and MIT without the requested injunction, and the

balance of harms as well as the public interest both powerfully favor granting the injunction. Id.

at 17-20.

Plaintiff States respectfully submit this short further memorandum of law to

(1) succinctly outline the manifest irreparable harms faced by the Plaintiff States that are set

forth at greater length in the accompanying declarations, and (2) address why, in the particular

circumstances of this case, it is appropriate for the Court to issue preliminary relief in the form of

vacating the Directive in its entirety. Vacating the Directive in its entirety is essential to preserve

uniformity in national immigration policy and accords with the remedies Congress itself has set

forth to redress such violations in the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 705,

706(2). And only vacating the rule in its entirety would afford the States and District complete

2
interim relief from the irreparable harms they face, and avoid the confusion and uncertainty that

would inevitably arise from a patchwork immigration regime.

I. Plaintiff States Will Suffer Irreparable Harm in the Absence of Preliminary Relief
Vacating the Rule.

Plaintiff States agree that the requirement of showing an injury that “cannot adequately be

compensated for either by a later-issued permanent injunction, after a full adjudication on the merits,

or by a later-issued damages remedy” is readily satisfied in this case. Harvard & MIT PI Mem. 17

(quoting Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005)). In

support of our own request for preliminary relief, and to further apprise the Court of the vast

harms the Defendants’ arbitrary and capricious actions will cause across the country, Plaintiff

States offer this summary of the irreparable harms we face, as described in greater detail in the

attached declarations. In short, in directly regulating our public colleges and universities, the July

6 Directive will impose significant financial costs and administrative burdens, and will make it

more difficult for them to ensure the safety of their students, faculty, staff, and the untold

additional number of state residents with whom members of our school communities live and

interact daily. The Directive will also hamper Plaintiff States’ ability to regulate schools’

response to the epidemic in our States and irreparably harm the public health and economy in our

States, to which our more than 373,000 collective international students contributed more than

$14 billion in 2019.1

Harm to Proprietary Interests

1
Institute of International Education Data By State Fact Sheet, available at
https://www.iie.org/Research-and-Insights/Open-Doors/Fact-Sheets-and-Infographics/Data-by-
State-Fact-Sheets (collecting information on international exchange for each state in 2019).
3
 The July 6 Directive directly regulates and imposes immense and irreparable costs and

burdens on Plaintiff States’ public colleges and universities—costs and burdens ultimately borne

by Plaintiff States.

Costs of increasing in-person instruction. To retain all international students despite the

Directive, our colleges and universities would have to substantially reevaluate the carefully

calibrated plans they have developed for the fall semester2 and instead develop and implement

new, complex, and costly accommodations to meet ICE’s requirements.3 Developing

unanticipated fall 2020 plans that would expand the availability of in-person instruction poses

enormous burdens on schools, including staffing, additional COVID-19 testing, personal

protective equipment sourcing, classroom space, class size assignments and reorganization, and

2
See, e.g., Exh. 26, U. Mass. Decl. ¶¶ 12-17 (detailing University of Massachusetts’ planning
efforts, including, among other things, facilities, public safety, transportation, contact tracing,
testing, special accommodations for essential research to be done in person, budgeting, graduated
levels of remote learning based on each campus’s and each program’s circumstances, alternative
academic calendar, commuting students with vulnerable family members, vulnerable faculty
members); Exh. 1, Conn. Coll. & Univ. Decl. ¶¶ 9-13; Exh. 2, UConn. Decl. ¶¶ 11-15; Exh. 4,
Chi. St. Univ. Decl. ¶¶ 18-23; Exh. 5, DePaul Decl. ¶¶ 14-16; Exh. 13, Sch. of Art Inst. of Chi.
Decl. ¶ 11; Exh. 19, Univ. System of Maryland Decl. ¶ 13; Exh. 20, Ass’n of Indep. Colls. &
Univs. in Mass. Decl. ¶ 6; Exh. 21, Boston Univ. ¶¶ 11-13; Exh. 23, Mass. Ass’n of Cmty. Colls.
Decl. ¶¶ 16-17; Exh. 24, Mass. State Univs. Council of Presidents Decl. ¶ 18; Exh. 25, Ne. Univ.
Decl. ¶¶ 13-17; Exh. 27, Minn. State System Decl. ¶ 15; Exh. 31, Tufts Univ. Decl. ¶¶ 17-23.
3
See, e.g., Exh. 26, U. Mass. Decl. ¶ 22 (listing necessary “adjustments in transportation
services, cleaning regimes, campus signage, public safety, and myriad other changes,” all “at a
time when execution is made more difficult since all staff are working remotely”); id. ¶ 47 (“It is
hard to overestimate how burdensome this will be at such a late date; curriculum is generally set
by April of the prior academic year.”); Exh. 3, Yale Decl. ¶ 15; Exh. 9, Loyola Univ. Chi. Decl.
¶¶ 23-24; Exh. 21, Boston Univ. ¶ 14; Exh. 23, Mass. Ass’n of Cmty. Colls. Decl. ¶¶ 16, 18;
Exh. 24, Mass. State Univs. Council of Presidents Decl. ¶ 20; Exh. 25, Ne. Univ. Decl. ¶¶ 11, 18;
Exh. 27, Minn. State System Decl. ¶¶ 18-19.

4
instructor assignments.4 All of this would occur in an economic environment where universities

already “envisioned a catastrophic level of revenue loss” in their pandemic-adjusted budgeting

that is now unexpectedly “compounded by the potential loss of our international students.”5

Costs of losing international students. If schools do not alter plans to limit in-person

instruction, they risk losing significant numbers of international students. Students may well

transfer or disenroll from school because of their inability to obtain a visa and live in the United

States based on their schools’ online instruction plans or the students’ intended fall 2020 course

load.6 These students would no longer pay tuition and housing, dining, and other fees at a time

when colleges and universities are already faced with severe financial hardship.7 This is a

4
See, e.g., Exh. 26, U. Mass. Decl. ¶¶ 19-21 (describing “massive reorganization of our teaching
schedules and personnel, registration of students and changes in their programs, and an entirely
new operational scheme intended to re-introduce a minimum of 7,200 students back to the
physical campus” and reallocation of “thousands of hours of manpower” that would be required);
id. ¶ 22 (further noting that “[s]upporting hybrid learning above and beyond what we have
already planned, in order to implement this new scheme, will generate utility costs at least in the
tens of thousands of dollars because our campuses will have to reopen buildings that have been
shuttered since March”); Exh. 2, UConn Decl. ¶¶ 23-27; Exh. 23, Mass. Ass’n of Cmty. Colls.
Decl. ¶¶ 13-14, 20; Exh. 24, Mass. State Univs. Council of Presidents Decl. ¶ 17; Exh. 27, Minn.
State System Decl. ¶ 16; Exh. 38, Walensky Decl. ¶¶ 16-23 (describing the COVID-19 testing
and other requirements that must be in place before university campuses can safely allow in-
person congregation).
5
Exh. 26, U. Mass. Decl. ¶¶ 13, 45. See also, e.g., Exh. 1, Conn. St. Coll. & Univ. Decl. ¶ 19
(COVID-related shortfall of $30 million); Exh. 2, UConn Decl. ¶ 28 ($134 million shortfall);
Exh. 10, Northeastern St. Univ. (Illinois) Decl. ¶ 11; Exh. 19, Univ. System of Maryland Decl. ¶
11 ($200 million shortfall); Exh. 24, Mass. State Univs. Council of Presidents Decl. ¶ 12; Exh.
27, Minn. State System Decl. ¶ 19; Exh. 31, Tufts Univ. Decl. ¶ 13.
6
Exh. 26, U. Mass. Decl. ¶¶ 30, 33 (outlining scenarios that may lead to losing students). See
also, e.g., Exh. 6, E. Ill. Univ. Decl. ¶¶ 11-13; Exh. 14, S. Ill. Univ. Carbondale Decl. ¶¶ 11-14;
Exh. 21, Boston Univ. ¶ 15; Exh. 23, Mass. Ass’n of Cmty. Colls. Decl. ¶¶ 10-12, 14; Exh. 24,
Mass. State Univs. Council of Presidents Decl. ¶ 13; Exh. 27, Minn. State System Decl. ¶ 11;
Exh. 31, Tufts Univ. Decl. ¶¶ 11, 24; Exh. 39, Univ. of Dist. Columb. ¶ 6.
7
See Exh. 26, U. Mass. Decl. ¶¶ 45, 46. See also, e.g., Exh. 6, E. Ill. Univ. Decl. ¶¶ 12-13; Exh.
17, Univ. of Ill. System Decl. ¶ 16; Exh. 20, Ass’n of Indep. Colls. & Univs. in Mass. Decl. ¶ 10;

5
particularly acute loss because international students often pay higher out-of-state tuition rates,

which enhances public universities’ ability to serve lower-income in-state students by reducing

the amount of tuition they are required to pay.8 Even where it is feasible for students to depart to

their home countries to pursue online studies, our colleges and universities will still unexpectedly

lose housing, dining, and other fees paid by these students; the students’ in-person participation

in research and other on-campus activities that are not formally part of their course of study; and

the students’ unique in-person contributions to the fabric of college and university life. And

whether students leave the country to study remotely or disenroll altogether, both the schools and

the students will likely lose the financial and other benefits of their ability to work as employees

on our campuses.9

Costs to our institutions’ educational missions. The July 6 Directive will also cause

multifaceted harm to schools’ academic, extracurricular, and cultural communities and their

overall missions—both as a result of diminishment of international student enrollment, and also

with respect to students who remain enrolled but are forced to move abroad. International

Exh. 24, Mass. State Univs. Council of Presidents Decl. ¶¶ 14-16; Exh. 27, Minn. State System
Decl. ¶¶ 13, 14; Exh. 30, Rutgers Decl. ¶ 14; Exh. 31, Tufts Univ. Decl. ¶ 12; Exh. 32, Univ. of
Wisc.-Stevens Point Decl. ¶ 10.
8
See Exh. 26, U. Mass. Decl. ¶ 44; Exh. 2, UConn Decl. ¶ 29; Exh. 6, E. Ill. Univ. Decl. ¶ 13;
Exh. 7, Governors St. Univ. Decl. ¶¶ 12-13; Exh. 15, S. Ill. Univ. Edwardsville Decl. ¶ 14; Exh.
17, Univ. of Ill. System Decl. ¶ 17; Exh. 23, Mass. Ass’n of Cmty. Colls. Decl. ¶ 28; Exh. 24,
Mass. State Univs. Council of Presidents Decl. ¶ 12; Exh. 27, Minn. State System Decl. ¶ 14;
Exh. 33, Univ. of Wisc.-Stout Decl. ¶ 8.
9
See Exh. 26, U. Mass. Decl. ¶ 5 (noting, for example, that at the University of Massachusetts
Medical School, 30% of its Biomedical Sciences Ph.D. students international students, who are
“active contributors to the research labs on the forefront of solving the COVID-19 crisis, not to
mention the thousands of other bio-medical problems to which they apply their talents”). See
also, e.g., id. ¶ 50; Exh. 15, S. Ill. Univ. Edwardsville Decl. ¶¶ 16, 23; Exh, 25, Ne. Univ. Decl. ¶
22; Exh. 30, Rutgers Decl. ¶ 18.

6
students bring rich and diverse viewpoints, interests, and skillsets, which they share in

classrooms, research projects, on-campus jobs, clubs, and other extracurricular activities, as well

as in everyday social interactions with other students, faculty, and staff. If they are forced to

disenroll or leave campus because of the July 6 Directive, schools and other students will lose

contributions of many kinds from them.10

Administrative costs. Our colleges and universities will also be forced to expend time and

resources to make individualized determinations to certify students with F-1 and M-1 visas and

re-issue I-20s for each student.11 The July 6 Directive requires institutions adopting a hybrid

model to certify by August 4, 2020, as to each F-1 and M-1 visa holder, that the student is not

taking an entirely online course load and that the student is taking the minimum number of

online classes required to make normal progress in their degree program. For many institutions,

making such certifications for every single student may not even be possible to achieve by the

August 4 deadline.12 These certifications require not only a determination of the particular forms

10
See, e.g., Exh. 26, U. Mass. Decl. ¶¶ 35-39 (elaborating on harms, including from loss of
diversity; reduced learning in experimental fields; and teaching, instructional, and research
support provided by international students); Exh. 8, Ill. St. Univ. Decl. ¶ 29; Exh. 11, N. Ill.
Univ. Decl. ¶ 10; Exh. 13, Sch. of Art Inst. of Chi. Decl. ¶ 12; Exh. 16, Univ. of Chi. Decl. ¶ 9;
Exh. 20, Ass’n of Indep. Colls. & Univs. in Mass. Decl. ¶ 10; Exh. 21, Boston Univ. ¶ 15; Exh.
23, Mass. Ass’n of Cmty. Colls. Decl. ¶ 23; Exh. 24, Mass. State Univs. Council of Presidents
Decl. ¶ 22; Exh, 25, Ne. Univ. Decl. ¶ 22; Exh. 27, Minn. State System Decl. ¶ 12; Exh. 28, New
Mexico Inst. of Mining Decl. ¶ 10; Exh. 39, Univ. of Dist. Columb. ¶ 15.
11
See Exh. 26, U. Mass. Decl. ¶¶ 23-26 (describing challenges of this process, particularly
amidst pandemic). See also, e.g., Exh. 4, Chi. St. Univ. Decl. ¶¶ 25-27; Exh. 21, Boston Univ. ¶
14; Exh. 23, Mass. Ass’n of Cmty. Colls. Decl. ¶¶ 19-20; Exh. 24, Mass. State Univs. Council of
Presidents Decl. ¶ 20; Exh, 25, Ne. Univ. Decl. ¶ 18; Exh. 27, Minn. State System Decl. ¶¶ 18-
19; Exh. 28, New Mexico Inst. of Mining Decl. ¶ 11; Exh. 31, Tufts Univ. Decl. ¶ 25; Exh. 32,
Univ. of Wisc.-Stevens Point Decl. ¶ 14-15.
12
See, e.g., Exh. 26, U. Mass. Decl. ¶ 20 (noting that determining which new on-campus courses
to create for all international students “in thousands of individualized programs,” and who needs

7
of instruction offered by the schools in which each student is enrolled, but also a determination

of each individual student’s course load and the format in which such courses will be taught—

the latter of which may not be information readily available to the school administration.13 In

some cases, instructors may be given the option to include in-person components, and those

decisions may not yet have been made.14 In other cases, students will not have registered for their

courses before SEVP’s certification deadline, putting schools in the impossible position of

having to certify students before they determine their courses.15 And again, all of this would have

to occur amidst the pandemic, when many employees are working remotely, and some are

furloughed.16

Harm to Sovereign Interests

The July 6 Directive will irreparably harm the Plaintiff States’ sovereign interest in

regulating their public colleges and universities to ensure public health and safety amidst the

pandemic. Plaintiff States have issued guidance and mandates governing the reopening of

colleges and universities.17 These include, for example, Massachusetts’ requirements that

those courses, is “perhaps not possible for all students”); Exh. 8, Ill. St. Univ. Decl. ¶¶ 26-27;
Exh. 12, Northwestern Decl. ¶ 11; Exh. 21, Boston Univ. ¶ 14; Exh, 25, Ne. Univ. Decl. ¶ 18;
Exh. 27, Minn. State System Decl. ¶ 19; Exh. 34, Univ. of Wisc-Milwaukee Decl. ¶ 13.
13
See, e.g., Exh. 26, U. Mass. Decl. ¶ 23; Exh. 14, S. Ill. Univ. Carbondale Decl. ¶ 24; Exh. 15,
S. Ill. Univ. Edwardsville Decl. ¶ 22; Exh. 36, Univ. of Vt. Decl. ¶ 13.
14
See, e.g., Exh. 26, U. Mass. Decl. ¶ 23; Exh. 15, S. Ill. Univ. Edwardsville Decl. ¶ 24.
15
See, e.g., Exh. 26, U. Mass. Decl. ¶ 23; Exh. 7, Governors St. Univ. Decl. ¶ 17.
16
See, e.g., Exh. 26, U. Mass. Decl. ¶ 25; Exh. 8, Ill. St. Univ. Decl. ¶¶ 26-27; Exh. 27, Minn.
State System Decl. ¶ 19.
17
See, e.g., https://www.mass.gov/info-details/reopening-mandatory-safety-standards-for-
workplaces#overview-; Exh. 2, UConn Decl. ¶ 11 (noting Gov. Lamont’s “Reopening Task

8
institutions of higher education develop a written control plan outlining how each of their

campuses will comply with the workplace safety mandates, including rules relating to social

distancing, hygiene protocols, and cleaning and disinfecting.18 The July 6 Directive interferes

with implementation of such state guidance and mandates, because it has the effect of coercing

schools to consider greater use of in-person instruction, lest they lose their international students.

The July 6 Directive also threatens to reduce Plaintiff States’ flexibility in responding to

changing conditions over the course of the pandemic. If pandemic conditions worsen, warranting

further reduction or elimination of in-person instruction at schools not yet entirely online, the

July 6 Directive will serve as a deterrent to making necessary changes as rapidly as possible and

will impose additional costs—human, administrative, and pecuniary—in doing so.19 Coercing

schools into holding more in-person classes in the fall20—regardless of the schools’ assessment

of the health and safety risks of doing so—harms the Plaintiff States’ ability to regulate their

institutions and protect the public.

Harm to Quasi-Sovereign Interests

Force”); Exh. 17, Univ. of Ill. System Decl. ¶ 7 (noting Gov. Pritzker’s “Restore Illinois” plan);
Exh. 27, Minn. State System Decl. ¶ 15.
18
https://www.mass.gov/doc/higher-education-covid-19-control-plan-template/download.
19
See, e.g., Exh. 26, U. Mass. Decl. ¶ 29 (noting that, if cases should rise in Massachusetts,
UMass would “have to be able to disband the campuses and send students away into a fully
remote modality,” and that, without exemptions, “then our University and our students would
face the same uncertainty and damage they do now, again and on a massive scale”); Exh. 2,
UConn Decl. ¶ 25; Exh. 5, DePaul Decl. ¶ 18; Exh. 24, Mass. State Univs. Council of Presidents
Decl. ¶¶ 20-21; Exh. 30, Rutgers Decl. ¶ 21.
20
In public statements, the Administration has expressly acknowledged the pressure the July 6
Directive places on schools to reopen. See, e.g., Interview with Acting Deputy Secretary of
Homeland Security Kenneth T. Cuccinelli, CNN (July 7, 2020),
https://twitter.com/CNNPolitics/status/1280576267360886784 (directive would “encourage
schools to reopen”); Donald J. Trump, Twitter, July 6, 2020 (“SCHOOLS MUST OPEN IN THE
FALL!!!”), https://twitter.com/realDonaldTrump/status/1280209946085339136.
9
 The July 6 Directive also threatens irreparable injury to the Plaintiff States’ interests in

the health and well-being, both physical and economic, of our residents. See Alfred L. Snapp &

Son, Inc. v. Puerto Rico ex rel Barez, 458 U.S. 592, 607 (1982) (“[A] State has a quasi-sovereign

interest in the health and well-being—both physical and economic—of its residents in general.”).

Health. The July 6 Directive gravely undermines our States’ interest in preserving the

health of our residents against the scourge of COVID-19. To avoid the loss of their international

students, schools may be compelled to expand in-person classroom instruction beyond that

which will best prevent and mitigate the spread of the disease, thus increasing the risk of

infection to students, faculty, and staff; to the members of their households; and to the

communities in which they live.21

Economic welfare. For reasons closely tied to, but going beyond, the proprietary reasons

described above, the July 6 Directive also threatens the economic welfare of our residents by

preventing thousands of international students, and discouraging many others, from coming to

and residing in our States to attend both public and private institutions of higher education,

amidst what is rapidly becoming not only a national health crisis but also an economic crisis in

21
Exh. 38, Walensky Decl. ¶¶ 24-26. See also, e.g., Exh. 26, U. Mass. Decl. ¶ 28 (“Supporting
hybrid learning above and beyond what we have already planned will also increase the level of
health risk on our campus, as a result of welcoming more students, faculty and staff back to
campus. The potential costs of this increased risk are incalculable.”); Exh. 21, Boston Univ. ¶ 13
(explaining that the flexibility of the “Learn from Anywhere” plan, which allows the school to
present “the same academic content to students, whether they are in a classroom, a BU
dormitory, or another location,” is “in the best interest of the public health of the City of Boston
and surrounding communities”); Exh. 23, Mass. Ass’n of Cmty. Colls. Decl. ¶¶ 24-25; Exh. 24,
Mass. State Univs. Council of Presidents Decl. ¶¶ 23-24; Exh. 35, Columbia Coll. - Chi. Decl. ¶
22.

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many parts of the country.22 The students themselves would bear tremendous costs of many

kinds if forced to relocate.23 But these students also contribute in excess of $14 billion to

Plaintiff States’ economies.24 Students who work on campus and those with CPT and OPT

visas—opportunities made available to them because of their F-1 or M-1 status, and at risk if

students are forced to leave or cannot enter the country—contribute to our state economies by the

thousands through their employment in fields such as science, technology, biotechnology,

healthcare, business and finance, and education.25 And, of course, international students also rent

apartments and houses from local landlords; purchase food from grocery stores and restaurants;

frequent our retail stores; and make entertainment and leisure purchases. During the 2018-2019

academic year, international students studying at U.S. colleges and universities contributed $41

22
See, e.g., Exh. 26, U. Mass. Decl. ¶ 52 (highlighting area in western Massachusetts home to
7,800 international students who contribute $289 million to the local economy and support
nearly 3,700 jobs; “[a] precipitous loss of international students would be very damaging to
Western Massachusetts at a time of severe economic disruption caused by the pandemic”); Exh.
22, Grtr. Boston Chamb. of Comm. ¶ 5 (citing international students’ annual contributions of
$3.2 billion to the Massachusetts economy); Exh. 23, Mass. Ass’n of Cmty. Colls. Decl. ¶ 29;
Exh. 29, Oregon High. Ed. Coordinating Comm. Decl. ¶ 14 (noting that “the proposed ICE rule
change will directly lead to loss of over 2,800 living-wage jobs” in Oregon).
23
See, e.g., Exh. 26, U. Mass. Decl. ¶ 43 (estimating costs of students unable to continue study
as the result of the July 6 Directive); Exh. 18, W. Ill. Univ. Decl. ¶ 29; Exh. 20, Ass’n of Indep.
Colls. & Univs. in Mass. Decl. ¶ 9; Exh. 23, Mass. Ass’n of Cmty. Colls. Decl. ¶ 26; Exh. 24,
Mass. State Univs. Council of Presidents Decl. ¶ 25; Exh, 25, Ne. Univ. Decl. ¶¶ 20-21.
24
Exh. 17, Univ. of Ill. System Decl. ¶ 16 (noting expected financial hit to Illinois economy if
rule goes into effect); Exh. 37, Univ. of Wisc.-Madison Decl. ¶ 13 (noting financial benefits of
international students to Wisconsin).
25
Exh. 26, U. Mass. Decl. ¶ 42 (noting that the annualized full-time salary that is given up by
international students who are participating in an OPT program would most likely total over $77
million”); Exh. 18, W. Ill. Univ. Decl. ¶ 30; Exh. 21, Boston Univ. ¶ 6; Exh. 22, Grtr. Boston
Chamb. of Comm. ¶ 7; Exh. 23, Mass. Ass’n of Cmty. Colls. Decl. ¶ 27; Exh. 24, Mass. State
Univs. Council of Presidents Decl. ¶ 26; Exh. 30, Rutgers Decl. ¶¶ 31-33.

11
billion and supported 458,290 jobs in the U.S. economy.26 In Massachusetts alone, the 2019

economic impact of what was then approximately 71,000 international students was estimated as

$3.2 billion.27 A loss of international students would damage local economies at a time of

already severe economic disruption caused by the pandemic.

II. Vacating the Directive in Its Entirety Is the Appropriate Remedy.

A. Vacating Invalid Agency Action in Its Entirety Is Both Appropriate to the

Legal Violation and Necessary to Preserve National Uniformity in
Immigration Policy.

The July 6 Directive should be vacated in its entirety because this relief is both

appropriate to the nature of the legal violation and vital to preserve uniformity in national

immigration policy.

“[N]ationwide injunctions are especially appropriate in the immigration context” because

of the need for a uniform national immigration policy. Int’l Refugee Assistance Project v. Trump,

857 F.3d 554, 605 (4th Cir.), vacated on other grounds and remanded sub nom. Trump v. Int’l

Refugee Assistance, 138 S. Ct. 353 (2017); Texas v. United States, 809 F.3d 134, 187-88 (5th

Cir. 2015), aff’d by equally divided Court, 136 S. Ct. 2271, 2272 (2016). As the Fifth Circuit has

observed, the Constitution requires “an uniform Rule of Naturalization,” id. (quoting U.S. Const.

art. I, § 8, cl. 4), and Congress has instructed that our immigration laws be enforced “uniformly,”

id. (quoting Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, § 115(1), 100

Stat. 3359, 3384). The Supreme Court too has described immigration policy as “a comprehensive

and unified system.” Arizona v. United States, 567 U.S. 387, 401-02 (2012).

26
NAFSA Economic Value Statistics, available at https://www.nafsa.org/policy-and-
advocacy/policy-resources/nafsa-international-student-economic-value-tool-v2.
27
Id.
12
 Thus, in the immigration context, courts have refused to geographically limit the scope of

injunctive relief, where to do so would result in “fragmented immigration policy [that] would run

afoul of the constitutional and statutory requirement for uniform immigration law and policy.”

Hawaii v. Trump, 859 F.3d 741, 787 (9th Cir.) (per curiam), vacated on other grounds, 138 S.

Ct. 377 (2017); Washington v. Trump, 847 F.3d 1151, 1166-67 (per curiam), reh’g en banc and

vacatur denied, 858 F.3d 1168 (9th Cir. 2017). And courts have recognized the need for

nationally uniform preliminary relief in challenges to nationwide immigration policies. See, e.g.,

Hawaii, 859 F.3d at 787 (injunction prohibiting enforcement of executive travel ban);

Washington, 847 F.3d at 1166-67 (same); Int’l Refugee Assistance Project, 857 F.3d at 605

(same); Texas, 809 F.3d at 187-88 (preliminary injunction prohibiting implementation of DAPA

program).

Vacating the July 6 Directive in its entirety also accords with Congress’s approval of

such relief to redress unlawful agency actions, as reflected in the APA, 5 U.S.C. §§ 705, 706(2).

Congress expressly authorized district courts to hold agency actions unlawful in their entirety

and to prohibit all enforcement or implementation of an agency action. The APA empowers

federal courts, prior to review of the lawfulness of a regulation on the merits, to “postpone the

effective date of an agency action” pending conclusion of the proceedings, if “necessary to

prevent irreparable injury.” 5 U.S.C. § 705. Such relief inherently covers all applications of the

challenged regulation, not only the application of the regulation to the plaintiffs. The APA also

establishes that, upon reaching the merits, federal courts can “set aside” unlawful rules in their

entirety, not only as applied to the plaintiffs. 5 U.S.C. § 706(2). Accordingly, it has long been

held that “when a reviewing court determines that agency regulations are unlawful, the ordinary

result is that the rules are vacated—not that their application to the individual petitioners is
13
proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir.

1998) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)); accord

Humane Soc’y of United States v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 2017) (“A common

remedy when we find a rule is invalid is to vacate.”).

Further, vacating the July 6 Directive in its entirety is particularly appropriate in the

circumstances of this case because it revolves around an issue of law that is “not fact-dependent

and will not vary from one locality to another.” City of Chicago v. Sessions, 888 F.3d 272, 290-

91 (7th Cir. 2018), reh’g en banc granted in part, opinion vacated, No. 17-2991, 2018 WL

4268817 (7th Cir. June 4, 2018), vacating reh’g decision as moot, No. 17-2991, 2018 WL

4268814 (7th Cir. Aug. 10, 2018). The arbitrariness and capriciousness of the Directive and its

patent disregard for matters of both substance and procedure does not vary across our country.

And, notwithstanding the diverse circumstances among the seventeen Plaintiff States and the

District of Columbia and our many institutions of higher education, the Directive will impose

grievous harms on us all as a result of its unexplained and abrupt change of policy; disregard of

the continuing national emergency caused by the pandemic; unexplained casting aside of the

reliance schools and students across the country placed on the Defendants’ prior accommodation

“for the duration of the emergency”; and complete lack of any substantive consideration of or

procedural concessions to the States’ and schools’ need for time to plan and implement measures

to protect the health and safety of our communities in this crisis. It cannot stand.

B. Only Vacating the Rule in its Entirety Will Provide Complete Relief to the
Plaintiff States and Avoid the Chaos and Uncertainty of a Patchwork of
Immigration Regimes.

In the circumstances of this case, following the ordinary rule that unlawful agency rules

should be vacated in their entirety is appropriate not only because of the nature of the legal
14
violation—an abrupt change to our immigration laws that the Constitution and Congress have

decreed should be applied uniformly across the country—but also, relatedly, because such

preliminary relief is necessary to afford complete relief for the Plaintiffs. In the absence of such

relief, confusion and risk of error would result from a patchwork of different immigration

regimes across the country, harming the Plaintiff States and their colleges and universities.

Vacating unlawful agency action in its entirety is particularly warranted in challenges to

policies that cross state lines, like immigration policies. As the Ninth Circuit recognized when it

affirmed such relief in the travel ban litigation, “even if limiting the geographic scope of the

injunction would be desirable, the Government ha[d] not proposed a workable alternative form

of the TRO that accounts for the nation’s multiple ports of entry and interconnected transit

system and that would protect the proprietary interests of the States at issue here while

nevertheless applying only within the States’ borders.” Washington, 847 F.3d at 1167; accord

Hawaii, 859 F.3d at 788. See also Amanda Frost, In Defense of Nationwide Injunctions, 93

N.Y.U. L. Rev. 1065, 1093 (2018) (discussing need for nationwide relief in cases involving

issues that cross state lines, including immigration, clean air and water, tainted food, and

defective products); see also, e.g., In re E.P.A., 803 F.3d 804, 808 (6th Cir. 2015) (nationwide

injunction of Clean Water Act regulation previously enjoined in only 13 states was appropriate,

“consistent with Congress’s stated purpose of establishing a national policy,” to “restore

uniformity of regulation under the familiar, if imperfect, pre-Rule regime”), abrogated on other

grounds by Nat’l Ass’n of Manuf. v. Dep’t of Defense, 138 S. Ct. 617 (2018).

These principles resound in the circumstances of this case, where enjoining the July 6

Directive in its entirety is necessary to give complete relief to Plaintiff States for at least three

practical reasons. First, the Directive has thrown colleges and universities across the country into
15
confusion—and our students and prospective students as well. As outlined above, one of the

harms to the Plaintiff States and their schools is that many of our more than 373,000

international students may never return to our schools if they are forced to leave the country now

or denied entry for the fall semester. If the Court were to issue only a partial injunction, leaving

the July 6 Directive in place in many states and rendering our nation’s immigration law non-

uniform, the state of confusion created by Defendants will continue unabated for many of these

students—and so too will harms to Plaintiff States. For example: If students fly into ports of

entry in states not covered by the injunction on their way to schools in the Plaintiff States, would

the students be admitted into the country? And would they be permitted to pursue CPT or OPT in

a state not covered by the preliminary injunction? For prospective students, if they were to

consider coming to the United States, should they apply only to schools in a state covered by the

injunction, or more broadly? In the absence of complete relief, students will be deterred from

choosing to come anywhere in the United States to study—with all the attendant harms to our

States and schools described above. See, e.g., Exh. 26, U. Mass. Decl. ¶¶ 32-33 (noting that

“uncertainty, unevenness and imprecision in the application of immigration laws have a deterrent

effect on students’ decisions to come to the United States for higher education”).28

28
See also Exh. 26, U. Mass. Decl. ¶ 32 (“The ability of the University’s vast and complex
research programs to maintain the excellence for which they are known depend on the ability to
attract and recruit top-tier international talent. In many domains, other countries (including
Canada, Australia, China and the countries of the European Union) are simultaneously looking to
attract the same people. If international students come to believe that their lives with us will be
insecure, their ability to realize their investments in higher education unclear, it will not be long
before they seek other places to develop their innovations.”); Exh. 27, Minn. State System Decl.
¶¶ 11, 19.
16
 Second and relatedly, a patchwork of relief would create hardships for some students and

their families that would ultimately have the effect of causing Plaintiff States to lose enrollment

and lose out on competitive candidates in the future. For instance, if a graduate student studies in

Massachusetts, but her spouse is a student in a neighboring state in which the July 6 Directive

applies and cannot obtain an F-1 visa under the July 6 Directive, their family will be separated

unless the student in Massachusetts disenrolls and leaves the country. See Exh. 26, U. Mass.

Decl. ¶ 33.

Third and finally, if relief is not nationwide, the Plaintiff States will lose out on the rich

diversity and special skills that international students bring to our country when they stay to

work in the United States. A student who cannot continue her course of studies in a state where

no preliminary relief is in effect also cannot contribute to the workforce our States, because the

avenue for CPT or OPT work authorization would be foreclosed for a student who loses her F-1

visa. See 8 C.F.R. § 214.2(f)(10).

“[E]quitable remedies are a special blend of what is necessary, what is fair, and what is

workable.” Lemon v. Kurtzman, 411 U.S. 192, 200 (1973). Here, the only fair and workable

preliminary injunction that provides the Plaintiff States with complete relief is to vacate the July

6 Directive in its entirety.

CONCLUSION

For the foregoing reasons, the Court should issue a temporary restraining order and

preliminary injunction enjoining the Defendants from implementing the July 6 directive.

17
 Respectfully submitted,

MAURA HEALEY
Attorney General
Commonwealth of Massachusetts
/s/ Abigail B. Taylor
Abigail B. Taylor
Elizabeth N. Dewar
Katherine B. Dirks
Julie E. Green
Angela R. Brooks (admission pending)
Andrew J. Haile
Abrisham Eshghi
Assistant Attorneys General
Office of the Attorney General
One Ashburton Place
Boston, MA 02108
Tel. (617) 727-2200
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Date: July 13, 2020 [email protected]

PHILIP J. WEISER WILLIAM TONG

Attorney General Attorney General
State of Colorado State of Connecticut
/s/ Eric Olson /s/ Joshua Perry
Eric R. Olson* Joshua Perry*
Solicitor General Special Counsel for Civil Rights
Jacquelynn N. Rich Fredericks* Office of the Attorney General
First Assistant Attorney General 165 Capitol Avenue
Colorado Department of Law Hartford, Connecticut 06106
1300 Broadway, 10th Floor [email protected]
Denver, Colorado 80203
[email protected]
[email protected]

18
KATHLEEN JENNINGS KWAME RAOUL
Attorney General Attorney General
State of Delaware State of Illinois
/s/ Christian Wright /s/ Kathryn Hunt Muse
Christian Douglas Wright* Kathryn Hunt Muse*
Director of Impact Litigation Deputy Chief, Public Interest Division
Vanessa L. Kassab* Joseph Sanders*
Deputy Attorney General Supervising Attorney, Consumer Fraud
Delaware Department of Justice Bureau
820 N. French Street, 5th Floor Elizabeth Morris*
Wilmington, Delaware 19801 Assistant Attorney General, Special
[email protected] Litigation Bureau
[email protected] Office of the Illinois Attorney General
100 West Randolph Street, 11th Floor
KARL A. RACINE Chicago, Illinois 60601
Attorney General Tel. (312) 814-3000
District of Columbia [email protected]
[email protected]
/s/ Kathleen Konopka
[email protected]
Kathleen Konopka*
Deputy Attorney General, Public Advocacy
BRIAN E. FROSH
Division
Attorney General
Brendan B. Downes*
State of Maryland
Nicole Hill*
Assistant Attorneys General, Public /s/ Steven M. Sullivan
Advocacy Division Steven M. Sullivan*
Office of the Attorney General for the Solicitor General
District of Columbia Katherine Bainbridge*
441 4th St., N.W. Suite 630S Jeffrey P. Dunlap*
Washington, DC 20001 Assistant Attorneys General
[email protected] 200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
Tel. (410) 576-6427
[email protected]

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DANA NESSEL GURBIR S. GREWAL
Attorney General Attorney General
State of Michigan State of New Jersey
/s/ Fadwa A. Hammoud /s/ Elspeth L. Faiman Hans
Fadwa A. Hammoud* Elspeth Faiman Hans*
Solicitor General Deputy Atorney General
Toni L. Harris* R.J. Hughs Justice Complex
Assistant Attorneys General 25 Market Street, P.O. Box 112
Michigan Department of Attorney General Trenton, New Jersey 08625
P.O. Box 30758 Tel. (609) 376-2752
Lansing, Michigan 48909 [email protected]
Tel. (517) 335-7603
[email protected] HECTOR BALDERAS
[email protected] Attorney General
State of New Mexico
KEITH ELLISON /s/ Tania Maestas
Attorney General
Tania Maestas*
State of Minnesota
Chief Deputy Attorney General
/s/ Tom Madison PO Drawer 1508
Tom Madison* Santa Fe, New Mexico 87504-1508
Assistant Attorney General [email protected]
Office of the Minnesota Attorney General
445 Minnesota Street ELLEN F. ROSENBLUM
Suite 900 Attorney General
St. Paul, Minnesota 55101 State of Oregon
Tel. (651) 757-1301
/s/ Heather J. Van Meter
[email protected] Heather J. Van Meter*
Assistant Attorney General
AARON D. FORD Oregon Department of Justice
Attorney General 1162 Court Street NE
State of Nevada Salem, Oregon 97301
/s/ Heidi Parry Stern Tel. (503) 947-4700
Heidi Parry Stern* [email protected]
Solicitor General
Office of the Nevada Attorney General JOSH SHAPIRO
555 E. Washington Ave., Ste. 3900 Attorney General
Las Vegas, Nevada 89101 Commonwealth of Pennsylvania
[email protected] /s/ Michael J. Fischer
Michael J. Fischer*
Chief Deputy Attorney General
Pennsylvania Office of Attorney General
1600 Arch St., Suite 300
Philadelphia, Pennsylvania 19103
[email protected]

20
PETER F. NERONHA MARK HERRING
Attorney General Attorney General
State of Rhode Island Commonwealth of Virginia
/s/ Shannon Haibon /s/ Jessica Samuels
Shannon L. Haibon* Jessica Merry Samuels*
Special Assistant Attorney General Assistant Solicitor General
150 South Main Street Office of the Attorney General
Providence, Rhode Island 02903 202 North Ninth Street
[email protected] Richmond, Virginia 23219
Tel. (804) 786-6835
THOMAS J. DONOVAN, JR. [email protected]
Attorney General
State of Vermont JOSH KAUL
Attorney General
/s/ Benjamin Battles
State of Wisconsin
Benjamin D. Battles*
Solicitor General /s/ Anne Bensky
Julio A. Thompson* Anne M. Bensky*
Assistant Attorney General, Civil Rights Assistant Attorney General
Unit State of Wisconsin Department of Justice
Office of the Vermont Attorney General Division of Legal Services
109 State Street 17 W. Main Street
Montpelier, Vermont 05609 Madison, Wisconsin 53707-7857
[email protected] [email protected]
[email protected] Tel. (608) 264-9451

*Pro hac vice motions will be forthcoming.

21
 CERTIFICATE OF SERVICE

I, Abigail B. Taylor, counsel for Plaintiffs, hereby certify that this document has been filed
through the Court’s ECF system and will be sent electronically to the registered participants as
identified on the Notice of Electronic Filing (NEF). On July 13, 2020, this document was delivered
by hand and by email to:

United States Attorney for the District of Massachusetts

Attn: Rayford A. Farquhar, Esq.
United States Attorney's Office
John Joseph Moakley Federal Courthouse
1 Courthouse Way
Suite 9200
Boston, MA 02210
617-748-3100
617-748-3971 (fax)
[email protected]

and was sent by certified mail to the following:

United States Department of Homeland Security

2707 Martin Luther King Jr. Ave., S.E.
Washington, D.C. 20528

United States Immigration and Customs Enforcement

500 12th St., S.W.
Washington, D.C. 20536

The Hon. Chad F. Wolf

Acting Secretary of Homeland Security
United States Department of Homeland Security
2707 Martin Luther King Jr. Ave., S.E.
Washington, D.C. 20528

Matthew Albence
Acting Director of United States Immigration and Customs Enforcement
United States Immigration and Customs Enforcement
500 12th St., S.W.
Washington, D.C. 20536

/s/ Abigail B. Taylor

22