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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.

4/16/2018
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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.”

4/2/2018
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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.

2/21/2018
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Immigration & International Activities; Employment; Foreign Students

Int’l Refugee Assistance Project, et al. v. Trump (D. Md. October 17, 2017)

Memorandum and Opinion granting-in-part and denying-in-part Plaintiffs’ Motion for a Preliminary Injunction. Plaintiffs, consisting of twenty-three individuals and seven organizations, challenged the President’s Proclamation 9645, which indefinitely barred the entry into the United States of foreign nationals from Chad, Iran, Libya, North Korea, Syria, Yemen, Somalia, and Venezuela, because of identified security inadequacies related to terrorism and other public-safety threats. The court found that Plaintiffs were likely to succeed on their claims that the Proclamation violates the Establishment Clause and section 1152(a) of the Immigration and Nationality Act, which bars discrimination on the basis of nationality in the issuance of immigrant visas.  Regarding Plaintiffs’ Establishment Clause claim, although the court noted that “past actions do not ‘forever taint’ present ones,” it was not persuaded that the third iteration of the travel ban cured previous constitutional violations by evidencing “rejection of the President’s prior calls for a Muslim ban.” Furthermore, the court found Plaintiffs established a likelihood of irreparable harm, that the balance of equities weighed in favor of the Plaintiffs, and the injunction would further the public interest of preventing discrimination and constitutional violations. The injunction is limited to barring enforcement against individuals “who have a credible claim of a bona fide relationship with a person or entity in the United States” and will not apply to travelers from Venezuela or North Korea.

10/20/2017
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Foreign Students; Employment; Immigration & International Activities

Trump v. International Refugee Assistance Project Summary Disposition (U.S. October 10, 2017)

Order vacating and remanding Trump v. International Refugee Assistance Project to the U.S. Court of Appeals Fourth Circuit to dismiss as moot. The Court found that the provisions of Executive Order No. 13,780 had “expired on its own terms” on September 24, 2017, and therefore, the case no longer presented a live case or controversy. 

10/18/2017
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Foreign Students; Employment; Immigration & International Activities

Amicus Brief in Trump v. International Refugee Assistance Project (September 18, 2017)

Amicus brief by the American Council on Education and twenty-nine other higher education associations to the Supreme Court in the United States for the case Trump v. International Refugee Assistance Project. At issue is whether Executive Order No. 13,780, which temporarily restricted foreign nationals and refugees from certain countries and refugees from entering the United States, violated the Establishment Clause and if the global injunction it enacted was impermissibly overbroad. The amicus brief outlines the “serious negative effects that the [Executive Order] will have on American institutions of higher education.” Amici argue that students, professors, and researchers must be able to travel domestically or abroad, without impediment;  otherwise, U.S. colleges and universities “will struggle to maintain the level of talent and experience that makes the United States the world leader in higher education and research development.” 

9/20/2017
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Employment; Foreign Students; Immigration & International Activities

Issue Brief by the American Council on Education (September 7, 2017)

Issue Brief from the American Council on Education outlining key elements of the Deferred Action for Childhood Arrivals (DACA) rescission memorandum, providing context for the rescission, and discussing steps Congress can take to continue the provisions of the DACA program. “The brief is intended to help campuses understand what will happen and prepare higher education leaders to speak to their congressional delegation about the importance of acting now to protect DACA.”

9/8/2017
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Immigration & International Activities; Employment; Foreign Students

Statement by the Association of Public and Land-Grant Universities on the President’s Decision to End Deferred Action for Childhood Arrivals (DACA) (September 5, 2017)

Statement issued by the Association of Public and Land-Grant Universities (APLU) President Peter McPherson regarding the President’s rescission of the Deferred Action for Childhood Arrivals (DACA) Program. The statement calls attention to the “great uncertainty” undocumented students face without additional legislation from Congress. The DACA program afforded individuals that illegally immigrated to the U.S. before sixteen years of age a period of deferred prosecutorial enforcement, alongside the opportunity to apply for employment authorization documents. APLU urged Congress to “take swift action to pass legislation that, at a minimum, codifies the provisions of the DACA program into law.”

9/8/2017
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