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Letter to Matthew Albence, Acting Director of U.S. Immigration and Customs Enforcement and Chad Wolf, Acting Secretary of the Department of Homeland Security - House and Senate Democrats Urge ICE and DHS to Immediately Withdraw New Guidance that Threatens International Students with Deportation

Letter

Date: July 9, 2020
Location: Washington, DC

Dear Deputy Director Albence and Acting Secretary Wolf:

We write to express our deep concern regarding U.S. Immigration and Customs
Enforcement's (ICE) announcement of modifications to the Student and Exchange Visitor
Program's requirements for international students. This new policy would effectively punish
international students at colleges, universities, and other institutions that have decided to move
their courses online in order to protect their communities from COVID-19. The proposed policy
throws the lives of hundreds of thousands of students, and the operations of hundreds of colleges
and universities, into uncertainty just weeks before the start of the fall term, to the detriment of
the United States and its institutions of higher education. We are concerned that ICE's guidance
is motivated not by public health considerations, but rather by animus toward immigrants, by a
goal of forcing schools to reopen even as COVID-19 cases are rising, and by a desire to create an
illusion of normalcy during this unprecedented public health emergency. ICE's proposed policy
demonstrates a callous disregard for the harm this policy inflicts on international students, and is
contrary to public health guidance from authorities within the Administration. We urge you to
withdraw this proposed policy immediately, and not to proceed with your stated plans to publish
it in the Federal Register as a Temporary Final Rule.

Due to the Trump Administration's catastrophic mishandling of the pandemic, COVID19 continues to rage throughout the United States. Institutions of higher education are rightly
consulting with local public health officials, and many have decided to move most or all of their
courses online to protect their students, faculty, and staff. These plans are consistent with the
U.S. Centers for Disease Control and Prevention's (CDC) guidance for such institutions, which
says that "virtual-only learning options, activities, and events" are the "lowest risk" setting. The CDC also advises that institutions of higher education "[o]ffer virtual learning and telework
options, if feasible," "[p]ursue virtual group events, gatherings, or meetings, if possible," and
"[e]ncourage telework for as many faculty and staff as possible." The CDC guidance is clear:
more social distancing is safer, and online solutions are safest for colleges and universities.

The CDC is also clear on its position that institutions of higher education should make
decisions best suited to their individual circumstances. The CDC recognizes that institutions
"vary considerably in geographic location, size, and structure," and as a result, administrators
will have to "adjust[] to meet the unique needs and circumstances of" their institutions and
communities. In the CDC's words, "[i]mplementation should be guided by what is feasible,
practical, acceptable, and tailored to the needs of each community."

Instead of providing flexibility to help institutions follow public health recommendations
and keep their communities safe, the Trump Administration is proposing rigid rules that put the
health of students, faculty, and staff at risk. Administration officials have admitted that this
announcement is an attempt to twist the arm of colleges and universities, threatening their
students with deportation in order to force the institutions to eliminate or scale back their online
learning options. This amounts to the imposition of a one-size-fits-all policy on every institution
in the country, regardless of its individual capabilities and circumstances, or the threat COVID19 poses to the institution's community.

ICE's announcement of their plans to force out or deport international students who
remain at U.S. colleges and universities and who are taking a full online course load is cruel and
unconscionable. These students are already in the United States, are established members of
educational communities, and have been determined through the visa screening process to pose
no danger to the United States. Some of these students are working in laboratories and
supporting critical scientific research at exactly the time when we need more of it, not less.

To avoid the threat of deportation, these students have few options. According to the ICE
guidance, the alternatives are for students to disrupt their education by "transferring to a school
with in-person instruction" or "depart the country." It is cruel and senseless to force
international students to make this choice. With fall terms beginning in just a few weeks at many
colleges across the country, along with required quarantine periods before classes begin, it is too
late for many students to transfer to equivalent academic programs. Moreover, it is unwise to
force students in the United States to travel at a time when the CDC recommends that individuals
"avoid all nonessential international travel." And, in some cases, students cannot return to their
home countries even if they want to, in part because there are few or no flights available. The Administration's previous immigration restrictions also make it unclear whether students who
leave the country will be allowed to reenter when their schools return to in-person classes,
further exacerbating fears about the consequences of departure. Moreover, many international
students will be functionally unable to continue their studies from abroad, because they will be
returning to locations without stable internet connectivity, because their countries might block
them from accessing needed websites and online resources or communicating freely with
professors and classmates, or because the time difference makes active course participation
unrealistic, among other limitations.

In addition to international students already in the United States, ICE is threatening to bar
international students who were planning to begin their studies at U.S. institutions that have
moved online. Colleges and universities that recognize the value of having international students
in their communities will need to make dramatic adjustments to their operations in order to
accommodate ICE's arbitrary new policy, potentially in contradiction to local public health
guidelines. Even institutions that were already planning to adopt hybrid learning models that
comply with ICE's guidance might have to issue thousands of new Form I-20s to their
international students with little notice before the start of the fall term--a sign of how poorlyconceived and designed this new ICE policy is. And if a college or university implements an inperson or hybrid model, and then later shifts to online-only classes because of a COVID-19
outbreak, then international students will fall out of status and become subject to removal--an
operational nightmare. Preventing institutions from swiftly and appropriately responding to an
outbreak during a pandemic that has already infected more than three million people in the
United States is an unacceptable risk to public health.

International students contribute immensely to the United States. They add value to their
learning communities, bringing diverse viewpoints and experiences benefiting all other members
of their communities. They also contribute to the economy; by one estimate, international
students contributed nearly $41 billion to the American economy and supported 458,290 jobs
during the 2018-2019 academic year. As President Trump noted five years ago, "When
foreigners attend our great colleges & want to stay in the U.S., they should not be thrown out of
our country." The sudden removal of international students would weaken the country
economically precisely when our fragile economy cannot afford another self-inflicted blow, and
would undermine higher education as one of our most significant and valuable exports. This
decision also will severely impact the budgets of many colleges and universities during some of the most challenging financial times in modern memory and could result in increased college
costs and student debt for domestic students.

ICE is conveniently trying to blame existing regulations, which prohibit online-only
coursework, for this new move. This is an obvious pretext. Until recently, ICE has used its
authority to issue guidance to relax certain regulatory requirements during the pandemic. In
addition, this public health crisis is precisely the type of extraordinary situation that warrants
issuing emergency measures to provide regulatory flexibility to students through the publication
of a Special Student Relief in the Federal Register. To date, the Department of Homeland
Security (DHS) has declined to use this authority to aid institutions of higher education in
responding to the pandemic, despite requests that it do so. Instead, with this new callous and
defective policy, DHS and ICE are impeding institutions' ability to respond to the COVID-19
pandemic and protect the health of students, faculty, and staff. ICE stated that its previously
issued guidance from March 9, 2020, would remain "in effect for the duration of the
emergency." With the United States obviously still facing a major emergency, that previous
guidance--upon which institutions and students reasonably relied--should remain in effect.

Recent statements by Administration officials suggest that DHS and ICE released this
guidance as a pretext to force institutions of higher education to reopen against the advice of
public health experts and local officials. The directive was issued the same day that Donald
Trump declared: "SCHOOLS MUST OPEN IN THE FALL!!!" and indicated that he views the
opening of schools as a political issue. Ken Cuccinelli, Senior Official Performing the Duties
of the Deputy Secretary for DHS, openly admitted in a television interview that he believes the
policy will "encourage schools to reopen." It is also concerning that Stephen Miller, President
Trump's extremely controversial senior advisor who holds incendiary views on immigration,
has reportedly advocated for policies that would "hurt elite universities whose staff and students
have been highly critical of Mr. Trump." We call out this policy for what it is: a cruel, senseless, and xenophobic attempt to use noncitizens as political pawns in order to financially
coerce colleges and universities to reopen campuses this fall, despite what is best for public
health. This policy is dangerous to the health and well-being of numerous communities.

ICE's arbitrary new policy is irrational and xenophobic, and risks the health of students,
faculty, and staff. We urge you to rescind this proposed policy immediately and to collaborate
productively with institutions of higher education to enable a smooth start to the academic year
for all students. We also request a staff briefing to discuss the Administration's rationale for this
reckless policy by July 16, 2020.

Sincerely,


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