New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Foreign Students; Employment; Immigration & International Activities

Letter from Thirty-Seven Higher Education Associations to the Department of Homeland Security Advocating for Timely Processing of Deferred Action for Childhood Arrivals Renewal Applications (April 13, 2018)

Letter from the American Council on Education and thirty-six other higher education associations to the Department of Homeland Security (DHS) on the initiation of DHS’s renewal process for Deferred Action for Childhood Arrivals (DACA) registrants. In light of the preliminary injunction issued in Regents of the University of California v. Department of Homeland Security, which required DHS to maintain the DACA program on “the same terms and conditions as were in effect before the rescission on September 5, 2017,” the letter urges DHS and the U.S. Citizenship and Immigration Services to expedite the review and processing of all renewal applications – particularly those applications that have recently expired or will expire in the near future. The letter also advises that DACA recipients would benefit from agency guidance and assurance on whether a gap in status would jeopardize their renewal, given that a backlog of applications may result in the lapse of recipients’ two-year status and the loss of their accompanying protections under DACA.

Foreign Students; Employment; Immigration & International Activities

Amicus Brief in Trump v. Hawaii, et al. (March 29, 2018)

Amicus brief by the American Council on Education (ACE) and thirty-two other higher education associations in support of Respondents in the case of Trump v. Hawaii, et al. At issue is whether the Presidential Proclamation issued on September 24, 2017—which indefinitely suspended immigration from eight countries, subject to certain exceptions—is within the President’s authority, is impermissibly overbroad, or is unlawful under the Establishment Clause of the U.S. Constitution. Amici argue that the Proclamation sends a message of exclusion that negatively harms American educational institutions in their recruitment of international students and scholars and the cross-border exchange of ideas. Amici argue, “the Proclamation jeopardizes the many contributions that foreign students, scholars, and researchers make to American colleges and universities, as well as our nation’s economy and general well-being.”

Study Abroad; Immigration & International Activities

Munn v. Hotchkiss (2nd Cir. Feb. 6, 2018)

Summary Order affirming the district court’s judgment. A jury found Defendant negligent in conducting its study abroad program after Plaintiff contracted tick-borne encephalitis while on a study abroad trip in China. Reviewing Defendant’s remaining arguments following the Connecticut Supreme Court’s response to two certified questions—concerning the duty Defendant owed to Plaintiff in conducting its study abroad program and the availability of remittitur for the jury’s award of $41.5 million—the court found Defendant’s remaining arguments without merit. Specifically, the court found no abuse of discretion in the district court’s decision to allow Plaintiff’s expert witness to testify while denying testimony from Defendant’s expert, no prejudicial error in the use of jury instructions on foreseeability taken from Connecticut Supreme Court precedent, no error in the district court’s exclusion of a parental waiver from liability since the waiver excluded conduct caused solely by Defendant’s negligence, and sufficient evidence to support the jury’s conclusion that Plaintiff was bitten while walking in a forested area of China.

Immigration & International Activities

Casa De Maryland, et al. v. U.S. Dep’t of Homeland Security, et al. (D. Md. March 5, 2018)

Memorandum Opinion dismissing Plaintiffs’ Complaint. Plaintiffs consist of several participants in the Deferred Action for Childhood Arrivals (DACA) program who sought to enjoin the Department of Homeland Security (DHS)’s rescission of the DACA program under the Administrative Procedure Act (APA), the Equal Protection Clause, procedural and substantive due process, and the common law doctrine of estoppel. In addressing Plaintiffs’ APA claim, the court held that DHS’s decision to rescind DACA was neither arbitrary nor capricious because its rationale was reasonable—namely, DHS believed the program to be unlawful based on a recent successful legal challenge by twenty-six states to enjoin an expansion of the DACA program, known as the Deferred Action for Parents of Americans (DAPA) program, and based on the advice of the Attorney General. The court found Plaintiffs’ Equal Protection Clause claim unsuccessful because the purpose and reasoning behind the rescission was facially legitimate and Plaintiffs could not affirmatively show bad faith behind the Government’s rationale, particularly where the President had recently made favorable statements about DACA participants. Finding that DACA and its rescission were statements of intended agency policy and involved DHS’s exercise of prosecutorial discretion, the court denied Plaintiffs’ procedural due process claim because the program did not create an entitlement and its rescission did not cause an individualized deprivation. Further, the rescission of the DACA program did not “shock the conscience” of the court for Plaintiffs to pursue a successful substantive due process claim. Last, the court held that the doctrine of estoppel could not apply to DACA’s rescission, but did enjoin Defendants from using information submitted by DACA participants to enforce its immigration policies.

Immigration & International Activities

USCIS Policy Memorandum: Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (February 22, 2018)

Policy memorandum issued by U.S. Citizenship and Immigration Services. The memorandum aims to clarify existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites and explains that USCIS may request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite. Specifically, the memorandum states that, “in order for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things: [t]he beneficiary will be employed in a specialty occupation; and [t]he employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.”

Foreign Students; Employment; Immigration & International Activities

Int’l Refugee Assistance Project, Inc. v. Trump (4th Cir., Feb. 15 2018)

Opinion affirming Plaintiff’s Motion for Preliminary Injunction. Plaintiffs, consisting of various associations with international clients and twenty-three U.S. citizens or lawful permanent residents, challenged President Trump’s Proclamation 9645, which indefinitely barred foreign nationals from Chad, Iran, Libya, North Korea, Syria, Yemen, Somalia, and Venezuela from entering the United States because of identified security inadequacies related to terrorism and other public-safety threats. Finding Plaintiffs had standing and the matter to be ripe for review, the court upheld the preliminary injunction since Plaintiffs were likely to succeed on their Establishment Clause claim, would suffer irreparable harm absent the injunction, and–to the extent that Plaintiffs could prove a bona fide relationship with an individual or entity in the U.S–the balance of equities and public interest weighed in their favor. Notably, in focusing on the first prong of the Lemon test to determine if the Proclamation violated the Constitution, the court found that “the President’s repeated statements convey[ed] the primary purpose of the Proclamation—to exclude Muslims from the United States,” compounded by the fact that the secular purpose offered by the Government was not publicly available and was “at odds with the list of countries actually included in the Proclamation.” Last, the court found that the district court did not abuse its discretion in issuing a nationwide injunction, so long as it also meant to adopt the Supreme Court’s bona fide relationship standard that categorically recognized a bona fide relationship to the U.S. for refugees sponsored by a U.S. resettlement agency.

Foreign Students; Immigration & International Activities; Government Relations; Authorizations & Regulations

Statement by ACE President Ted Mitchell About Bipartisan Congressional Efforts to Protect Dreamers (Jan. 18, 2018)

Statement by the President of the American Council on Education (ACE) expressing strong support for a bipartisan, legislative solution by congressional leaders to protect individuals affected by the President’s rescission of the Deferred Action for Childhood Arrivals program. The statement provides, “[i]t is of paramount importance to keep the door open in this country to an entire generation of young people who seek only to contribute their best to the United States, the only country they have ever called home.” ​

Immigration & International Activities; Government Relations; Authorizations & Regulations

Presidents’ Alliance Letter to Congress on Higher Education and Immigration (Jan. 11, 2018)

Letter from the Presidents’ Alliance to Congress urging bipartisan legislation to protect individuals affected by the President’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The Presidents’ Alliance is a newly formed, non-partisan group of over 200 college and university presidents concerned about the impact of the nation’s immigration policies and practices on their institutions’ students, campuses, communities, and states. The letter provides that “Dreamers are bright, hardworking, entrepreneurial young people whose contributions are already strengthening our country through their work as teachers, nurses, doctors, business owners and service members in our nation’s military,” and that protecting Dreamers from deportation is a moral imperative that if left unaddressed by Congress, would leave our nation “poorer for their loss.”