Cases & Developments

The American Civil Liberties Union Foundation (ACLU) published an open letter (the Letter) to college and university general counsels on (1) 8 U.S.C. §1324 Harboring Liability, and (2) ICE Administrative Subpoenas. The Letter states that under case law, a college or university’s normal conduct in providing housing and services to students does not constitute a violation of Section 1324, and that there are no consequences for an initial failure of an institution to respond to an administrative subpoena from Immigration and Customs Enforcement (ICE); further noting that any gag order in these subpoenas has no legal effect. The Letter additionally provides a legal analysis of limitations on liability for harboring under Section 1324 and the rights and options of an entity upon receipt of an ICE administrative subpoena.  

The U.S. Department of Homeland Security announced that the U.S. Citizenship and Immigration Services (USCIS) will begin considering alleged antisemitic activity on social media and the physical harassment of Jewish individuals as grounds for denying noncitizen immigration benefit requests. It stated that the review of social media activity is immediate and will impact noncitizens applying for lawful permanent resident status, as well as foreign students and noncitizens affiliated with educational institutions linked to allegedly antisemitic activity. Under this guidance, USCIS will consider social media content that indicates a noncitizen endorsing, espousing, promoting, or supporting antisemitic (1) terrorism, (2) terrorist organizations, or other (3) activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefit requests.  

The American Council on Education (ACE) sent a letter (the Letter) to Secretary Marco Rubio of the U.S. Department of State and Secretary Kristi Noem of the U.S. Department of Homeland Security seeking information about the State Department (State) and Department of Homeland Security (DHS) policy and planned actions relative to international students and scholars. The Letter is written in light of reports that student visas are being revoked, and records are being terminated in the Student Exchange Visitor Information System without additional information being shared with the institutions those students attend. The Letter states that over 1 million international students attend U.S. colleges and universities annually, and while those who signed the Letter support the need for the federal government to safeguard national security, institutions cannot fully support that mission unless there is a briefing to better understand the actions occurring, including the recent communication to U.S. consulates requiring enhanced social media vetting for all F, M, and J visa applicants.  

The American Association of University Professors (AAUP) sent a letter (the Letter) to postsecondary general counsels clarifying that they are under no legal compulsion to comply with requests for names and nationalities of students and faculty who may have been involved in alleged Title VI violations, and further, urged them not to comply. The Letter states that Title VI does not require higher education institutions to provide the personally identifiable information of individual students or faculty members so that the federal executive administration can carry out further deportations and asserts that sharing such information may violate the First Amendment rights of students and faculty.  

Order and Opinion Denying Defendants’ Application for a Partial Stay. Plaintiffs, including State and Attorneys General of Massachusetts, New Jersey, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai’i, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Rhode Island, Vermont, Wisconsin, and the City and County of San Francisco, allege that Defendants, Donald J. Trump, U.S. Department of Homeland Security (DHS), Benjamin Huffman as Acting Secretary of Homeland Security, Social Security Administration (SSA), Michelle King as the Acting Commissioner of the SSA, U.S. Department of State, Marco Rubio as the Secretary of State, Health and Human Services (HHS), and Dorothy Fink as the Acting Secretary of HHS, have acted unconstitutionally in the announcement of Executive Order 14160 “Protecting the Meaning and Value of American Citizenship” (the Executive Order) and that actions taken by defendant agencies to implement or enforce the Executive Order would effectively violate the Administrative Procedure Act (APA). Nationwide preliminary injunctions were issued by courts including the District of Maryland, the Western District of Washington at Seattle, and in the District of New Hampshire. Defendants sought and were denied a stay of the preliminary injunction by the First Circuit. The First Circuit was unpersuaded by Defendants’ argument that the injunction “prevents the President from carrying out his broad authority over and responsibility for immigration matters” resulting in irreparable harm to it and thus the public interest, as well as the claim that the injunction itself is overly broad to the extent that it “prevents . . . the Executive Branch as a whole from beginning the process of formulating relevant polices and guidance for implementing the President’s Order.” It denied the request for partial stay, noting that Defendants declined to make any developed arguments showing that the Executive Order itself was either constitutional or compliant with 8 U.S.C. § 1401. In addition, the First Circuit noted that Defendants failed to identify specific steps they wish to but are enjoined from taking. Therefore, it denied the request for a partial stay, and the injunction of the Executive Order remains in effect.