united states district court southern district of new … · currently in the united states....

1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK,

Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of United States Immigration and Customs Enforcement,

Defendants.

20 Civ. 5349

DECLARATION OF STEVEN C. WU

Steven C. Wu, pursuant to penalty of perjury under 28 U.S.C. § 1746, does hereby state

the following:

I am an attorney in the Office of the New York State Attorney General and counsel to

Plaintiff in this action. I submit this Declaration in support of Plaintiff’s motion for a temporary

restraining order, preliminary injunction, or stay pursuant to 5 U.S.C. § 705.

Attached to this Declaration are true and correct copies of the following exhibits:

1. Declaration of Tod A. Laursen, Senior Vice Chancellor and Provost of the State

University of New York.

2. Declaration of Ruth N. Kamona, University Director for International Student and

Scholar Services in the City University of New York’s Central Office of Academic Affairs.

3. Declaration of Rohit Khemlani.

Case 1:20-cv-05349-VSB Document 5 Filed 07/13/20 of 2

2

DATED: July 13, 2020

By: /s/ Steven C. Wu . Steven C. Wu Deputy Solicitor General Office of the New York Attorney General 28 Liberty Street New York, NY 10005 Phone: (212) 416-6312 [email protected] Attorney for the State of New York

Case 1:20-cv-05349-VSB Document 5 Filed 07/13/20 of 2


STATE OF NEW YORK, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security; and MATTHEW ALBENCE, in his official capacity as Acting Director of United States Immigration and Customs Enforcement, Defendants.

CIVIL ACTION NO.

DECLARATION OF TOD A. LAURSEN

I, Tod A. Laursen, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and

correct:

1. I submit this Declaration in support of the State of New York’s litigation

challenging the policies announced on July 6, 2020 by “Broadcast Message” and to be published

as a Temporary Final Rule to amend requirements of the Student and Exchange Visitor Program

(the “Directive”). I have compiled the information in the statements set forth below either

through personal knowledge, through The State University of New York (“SUNY”) personnel

who have assisted me in gathering this information from our institution, or on the basis of

Case 1:20-cv-05349-VSB Document 5-1 Filed 07/13/20 Page 1 of 16

2

documents I have reviewed. I have also familiarized myself with the Directive in order to

understand its immediate impact upon SUNY.

2. I am Senior Vice Chancellor and Provost of the State University of New York,

and as such, serve as the chief academic officer for SUNY. I have held this position since

September of 2018. I joined SUNY after eight years of service as the Founding President of

Khalifa University in Abu Dhabi, the foremost university in the United Arab Emirates. Prior to

becoming President of Khalifa University, I was a faculty member and administrator at Duke

University (NC, USA), between the years of 1992 and 2010, where my service included terms as

Chair of the Department of Mechanical Engineering and Materials Science from 2008–2010, and

Senior Associate Dean for Education in the Pratt School of Engineering from 20032008. In the

latter capacity, I had oversight responsibility for all undergraduate and graduate engineering

programs at Duke. My training is as a mechanical engineer, and I hold a Bachelor of Science in

this subject from Oregon State University, as well as a Masters of Science and PhD from

Stanford University. In addition to my academic career, I have worked for two national

laboratories (Lawrence Livermore National Laboratories and Sandia National Laboratories) as an

engineer and a consultant. I am a Fellow of three professional societies, and have authored two

books and over one hundred refereed journal articles, proceedings, and abstracts over the course

of my career.

3. In my role at SUNY, I serve as a key member of the Chancellor’s Executive

Leadership Team, as well as her Cabinet. The Provost is responsible for coordination of the

SUNY System’s academic enterprise in close collaboration with its college and university

campuses; responsibilities of my office include academic program review, data collection,

student mobility and international programs, system-wide enrollment management and


3

recruitment, student success initiatives, student and campus life, library services, the SUNY

Press, and the implementation of academic technology solutions across the System.

4. As a member of SUNY’s leadership team, I have been integrally involved in

leadership of the System’s COVID-19 response and served as co-chair of our system level

response task force. This task force has to date had two distinct phases: the response phase,

commencing in late February 2020 and focusing on safe repatriation of SUNY students studying

abroad, the coordination and leadership of the System’s domestic response to COVID-19, and

the pivot to remote education as announced by the NYS Governor on March 11, 2020; and the

re-opening phase, dating to early April, 2020, where our focus shifted throughout the month to

issues associated with the safe re-introduction of some face-to-face instruction on our campuses

during the fall, should health and safety circumstances permit. As task force co-chair during

both phases, I was a regular participant and facilitator of scheduled Presidents’ calls giving status

updates on the response and reopening (daily through much of the crisis); daily check-ins with

the System task force; leadership of the academic continuity task force (which coordinated plans

for remote, face-to-face, and hybrid instruction, coupled with contingency and safety planning,

across the system); regular sector calls with campus provosts to hear their needs and organize

appropriate support mechanisms across the System level; regular interaction with our Academic

Affairs team and the New York State Education Department, to be sure that regulatory

flexibilities were in place and coordinated with campus plans, and many others. I served as the

lead SUNY representative on a task force convened by the Commission on Independent Colleges

and Universities in New York; and chaired its Infrastructure Subcommittee. This task force’s

work culminated in the report Creating Safe and Resilient Campuses: Suggestions for Reopening

and Reimagining Colleges and Universities in New York, which was issued on May 18, 2020.


4

Background on SUNY

5. SUNY is the nation’s largest comprehensive system of higher education.

SUNY’s 64 campuses include medical schools, hospitals, research and doctoral granting

institutions, four-year comprehensive colleges, colleges of technology, community colleges, and

statutory campuses located at Cornell University and Alfred University.

6. SUNY was founded in 1948, in large part to provide educational opportunities to

individuals that other educational institutions would not admit. Alongside the City University of

New York, SUNY provides a public option to hundreds of thousands of people annually. As of

fall 2019, more than 415,000 students were enrolled in a degree program at a SUNY campus. In

total, SUNY served 1.3 million students in credit-bearing courses and programs, continuing

education, and community outreach programs in the 2018–19 academic year. One in three New

Yorkers with a college degree is a SUNY alumnus.

7. SUNY is funded through a combination of revenues from student tuition and fees

and state funding. SUNY is budgeted to receive more than $4 billion in New York State funding

for fiscal year 2021.

8. SUNY is the largest employer in New York State, employing over 90,000 people.

9. SUNY’s Research Foundation (“RF”) is the largest comprehensive university-

connected research foundation in the country. The RF administers over $1 billion in sponsored

research programs focused on life-changing research and economic development activities across

a wide range of disciplines including medicine, engineering, physical sciences, energy, computer

science, and social sciences.


5

SUNY’s International Students

10. SUNY had 18,661 enrolled students with F-1 or M-1 visas (the “International

Students”) in the 2019–2020 academic year.

11. International Students comprise approximately 5% of total SUNY enrollment.

The International Students come from 177 countries and contribute $656 million in operating

revenue to SUNY. The tuition paid by International Students alone constitutes about 18% of

SUNY’s tuition-based revenue (40% for doctoral granting campuses). This means that each

International Student contributes more than three times as much revenue to support SUNY’s

operations as the average student. This added revenue undergirds the funding of higher

education for hundreds of thousands of New Yorkers.

12. At the University at Buffalo (“UB”) campus, which is in the top tier of U.S.

universities with the most international students in the nation, 28% of all graduate students are

International Students whose enrollment supports many important STEM programs that would

otherwise collapse. The International Students’ enrollment increases educational opportunities

for domestic students by making it possible to sustain these critical STEM graduate programs.

13. The best available data reveals that International Students contribute a total of

$5.3 billion to the New York State economy and generate approximately 60,000 jobs. Much of

this impact is felt in communities where a SUNY campus is the cornerstone of the local

economy.

14. Approximately 8,000 of SUNY’s currently enrolled International Students are

currently in the United States. Approximately 6,400 of currently enrolled International Students

will be returning to the United States from overseas for the start of classes. In addition, there are

approximately 4,200 first time students who were planning to enroll in fall 2020.


6

15. The new Directive will put in grave jeopardy both the continued enrollment and

the new enrollment of International Students, particularly those currently outside of the United

States. SUNY’s experts estimate that somewhere between 20%–50% of the total anticipated

International Student population will have difficulty, decline, or be unable to enroll at SUNY

campuses as a result of the Directive (this figure includes students who are denied visas and re-

entry).

The Directive

16. The Directive’s impact at SUNY will be felt amid the backdrop of an

unprecedented national emergency. The COVID-19 crisis has upended our campuses, caused

millions of dollars of financial damage to the University and has forced nearly all employees

who are tasked with international student and financial aid duties to work remotely. New York

has been hit harder than any other state to date, with tens of thousands of deaths and long-term

injury and illness for hundreds of thousands more. SUNY itself has been directly affected by the

pandemic, with over a thousand students, staff, and faculty from 46 campuses testing positive for

COVID-19. We have so far lost at least ten students and employees to COVID-19.

17. The new Directive requires that all International Students be enrolled in at least

one in-person course in fall 2020 in order to maintain F-1 visa status. The Directive forces

SUNY to choose between adding more in-person course offerings or risking the loss of

thousands of International Students, along with all that they contribute to our campuses,

communities, and economy.

18. The Directive’s central demand—that schools provide more in-person offerings—

is extremely difficult or impossible for SUNY to accomplish, for several reasons. First, state

directives (based upon Centers for Disease Control (CDC) guidance) require SUNY to operate


7

in-person courses in accordance with specified social distancing requirements, including having

at least six feet of space (a measure that could increase) between students in classroom

environments. Second, public health guidelines necessitate SUNY drastically limiting residence

hall room occupancy in order to create safe living environments. In real terms, SUNY’s Re-

opening Plans include residential hall reductions of around 50% to meet the safety standards.

Finally, local health care infrastructure in many of the areas where SUNY campuses are located

are ill equipped to cope with an increase in demand for already-stressed resources. The

limitations of SUNY’s educational, residential, and health care infrastructure, as well as the

limitations of our partner communities, makes it impractical and imprudent for SUNY to

increase in-person course options without demonstrable academic or curricular need.

19. Because the limitations of SUNY’s physical infrastructure make it extremely

difficult for SUNY to significantly increase in-person course options while complying with

public-health mandates, compliance with the Directive would require SUNY to rearrange its

system of priorities for determining which classes and students receive in-person instruction,

putting a severe burden on an already stressed system. Rather than decisions about mode of

instructional delivery being dictated by public health and safety and academic necessities, visa

status would need to be introduced as a priority decision-making criterion. Such a mandate

would affect the entire student population and constitute a disservice to all SUNY students.

20. Even if SUNY were able to add more in-person offerings while complying with

public health directives, students who are already enrolled in fall 2020 courses would have

significant difficulty changing their course enrollments under the timeframe imposed by this last-

minute Directive.


8

21. Finally, depending upon the nature of the spread of COVID-19 in New York and

other states, SUNY may be required to switch to remote instruction again during the semester

and at a moment’s notice as it did in spring 2020. This would cause thousands of International

Students to suddenly lose their visa status mid-semester and force them to exit the U.S. by

traveling exactly when doing so presents the greatest risk. SUNY needs to be able to make any

such decisions based on public health conditions alone, free of apprehension about the

downstream effects those decisions might have on this important segment of our student

population.

Economic Harm to SUNY

22. The Directive will cause a significant number of International Students to

withdraw from SUNY. This will result in lost tuition, housing, and other revenue for SUNY.

SUNY estimates that withdrawals by International Students as a result of the Directive will result

in lost tuition and revenues of $131–$328 million.

23. In addition, SUNY and the RF employ more than 3,800 International Students as

research assistants, teaching assistants, and in other capacities.

24. The Directive may cause a significant number of International Students to be

forced to leave their positions in student research on campus. SUNY will be required to devote

additional resources to hiring new technical staff, and may not be able to find qualified student

replacements. As a result, SUNY could experience delays in its research deliverables on the

approximately 47,000 active research projects.

25. International Students fill approximately half of all graduate student research

positions on externally sponsored research projects, contributing significantly to SUNY’s $1

billion research enterprise. This includes research related to COVID-19 and other infectious


9

diseases, cancer diagnosis and therapies, nanotechnology, informatics and data analytics,

advanced materials, manufacturing, alternative energy and energy storage, early diagnosis of

Alzheimer’s disease, artificial intelligence, and other critically important topics.

26. The withdrawal of International Students due to the Directive may also imperil

potentially life-changing research projects. For example, a National Science Foundation project

being conducted at the University at Buffalo assesses the American public’s perception of the

COVID-19 outbreak, its emotional responses to the outbreak, and its support of public health

policies including international cooperation. The proposed research advances risk

communication research, as well as enhances our understanding of strategic messaging designed

to benefit public health, prosperity and welfare. This project, in which an International Student

has been engaged, is particularly significant in light of the recent increase in COVID-19 cases

associated with public gatherings in the United States.

27. In addition, the Directive will likely cause severe reputational damage to SUNY,

making it more difficult for SUNY to recruit International Students in future years. SUNY is

currently recognized throughout the globe for offering a wealth of top-tier academic and research

opportunities to International Students. The uncertainty and chaos caused by the Directive will

tarnish SUNY’s global reputation and will lead to a long-term loss of tuition and other revenues

for SUNY, as well as continuing harm to SUNY’s research enterprise and a concomitant

diminishment of the quality of its academic environment. Reputational harm to SUNY will also

damage the University’s ability to implement its strategic enrollment management plan to

increase international enrollments from 5% to 15% of SUNY’s total enrollment by 2030.


10

28. International Students who are unable to enroll in an in-person or hybrid course in

fall 2020 and who cannot relocate to their home country to attend SUNY remotely will be forced

to withdraw from SUNY.

29. As a result of the Directive, some International Students will transfer to schools in

their home country or in other countries. Still others will drop out of school altogether.

30. The Directive has sown confusion and uncertainty among International Students.

International Students who are already in the U.S. are uncertain as to whether they will be able to

enroll in an in-person course for the fall 2020 semesters. International Students who remain

outside of the U.S. are uncertain about whether they will be permitted to re-enter the U.S. This

uncertainty and confusion will itself lead some International Students to withdraw from SUNY.

31. Accordingly, the Directive will likely result in thousands of International Students

disenrolling from SUNY.

32. As a result, SUNY will risk losing an estimated $131–328 million in lost tuition

and fee revenue.

33. As noted, International Students pay a much higher-than average proportion of

tuition, enabling SUNY to provide significant financial aid to disadvantaged domestic students.

The loss of International Students’ tuition will therefore have an outsized impact on SUNY’s

finances and the prospects for thousands of domestic students to afford higher education.

34. In addition to loss of tuition, SUNY will also lose revenues from housing and

other sources as a result of the Directive. Nearly 6,100 International Students live in SUNY

dormitories and use SUNY dining halls. The loss of these students from dormitories and off-

campus housing will lead to losses in housing revenue, dining hall revenue, and revenue from


11

other on-campus services such as student health centers and have a direct impact on the

communities where these students are essential components of their local economies.

Administrative Burden on SUNY

35. Prior to the issuance of the Directive, each of SUNY’s 64 campuses had already

developed tailored reopening plans for fall 2020 (the “Reopening Plans”). The Reopening Plans

were designed to comply with state-level directives for operation in light of current public health

considerations related to the COVID-19 crisis, including state requirements concerning social

distancing during in-person course meetings. These requirements were, in turn, at least partially

based on federal guidance from the White House, CDC, and other sources.

36. SUNY campuses also relied on the ICE guidance issued in March 2020 in

developing the Reopening Plans.

37. The Reopening Plans also involved changes to SUNY’s academic calendar. In

anticipation that the COVID-19 pandemic might worsen in fall 2020, the Reopening Plans

provided for, in some cases, earlier start dates, fewer or no scheduled breaks, expanded hours

and days when courses are offered, and in some cases termination of all in-person course

meetings after the Thanksgiving holiday.

38. As a result of the Directive, SUNY will have to devote approximately 10,365 staff

hours (over a matter of weeks) to counseling International Students about in-person or hybrid

course offerings that are offered and that will enable students to continue to make normal

progress in their degree programs, thus maintaining their visa status. The processing of

International Students’ course changes so close to the beginning of the fall 2020 semester has the

potential to create instability as the numbers of students in various courses and sections fluctuate

unpredictably.


12

39. SUNY will also have to devote additional unbudgeted resources to revisiting its

Reopening Plans to determine whether there are any potential means for increasing in-person or

hybrid course offerings. To the extent that campuses find that they are able to modify the

Reopening Plans to offer additional in-person or hybrid offerings, SUNY will be required to

devote additional resources to mitigate the risk of COVID-19 spread associated with in-person

courses. For example, SUNY would have to allocate funds for increased frequency of classroom

cleanings and for purchasing personal protective equipment to distribute to students and faculty.

40. The Directive also requires schools that are offering hybrid programs to certify to

Student and Exchange Visitor Program (SEVP) through the Form I-20 that each enrolled

International Student’s program is not entirely online; that the student is not taking an entirely

online course load for the Fall 2020 semester; and that the student is taking the minimum number

of online courses required to make normal progress in their degree program.

41. SUNY anticipates that it will have to devote over 9,000 of hours of additional

staff time completing recertification of International Students pursuant to the Directive—

corresponding to $410,000 in salary-related expenses alone. Furthermore, this burden is ill-

timed and requires the effort of specialized International Student and Scholar Services (ISSS)

staff who are limited in number on all SUNY campuses. The work plans of these staff members

are already filled for the remaining weeks of the summer term with activities necessary to ensure

the successful arrival and continuation of International Students during the summer and fall

terms. The University does not have a pool of additional staff, as these positions are highly

trained, and other staff are consumed with current re-opening duties. Moreover, the Student and

Exchange Visitor Program normally takes several months to authorize these highly specialized

staff work within the SEVIS system.


13

42. For example, at Stony Brook University it would take the staff of nine ISSS

specialists approximately 4 weeks to re-issue an estimated 2,800 I-20s. This estimate is based on

the assumption that the staff are being exclusively dedicated to the re-issuance task to the

exclusion of all other work—a particularly unrealistic assumption since the same staff must take

on the additional burden of advising students about this new and yet-to-be-finalized Directive.

43. In addition, SUNY anticipates that changes in the severity of the COVID-19 crisis

may necessitate further changes in course operation during the upcoming academic year. As a

result, SUNY may need to make changes to its course operations that will require SUNY to

repeat the re-certification process for each International Student multiple times as conditions

change.

Impact on SUNY’s Ability to Respond to the COVID-19 Pandemic

44. The Directive comes at a particularly difficult time for SUNY, given the ongoing

hardship faced as a result of the COVID-19 global pandemic.

45. All SUNY campuses closed to in-person instruction in March 2020 pursuant to state

directives aimed at controlling the spread of COVID-19. SUNY faculty and staff worked hard to

quickly move courses online.

46. In addition to these educational challenges, SUNY operates three academic medical

centers that are seeing patients that do and do not present with COVID-19. During the pandemic,

SUNY medical centers have mobilized to expand ICU capacity, build negative pressure rooms,

obtain ventilators and protective equipment, and, tragically, increase morgue and refrigerated

storage for bodies.

47. The Directive will require SUNY administrators to divert critical resources from our

COVID-19 response efforts.


14

Harmful Impact on Students

48. International Students who had planned to initiate or continue their studies at

SUNY but are denied visas as a result of this Directive will experience disruptions in their

education and may never be able to enroll at SUNY. The Directive is new and untested, thus it is

unknown how border patrol officers will apply the policies to returning F-1 students from

schools employing a hybrid model of instruction. Based on prior experiences with unplanned

changes to re-entry rules, it is likely that there will be confusion about this population and thus

problems with re-entry will occur, especially for students returning to schools employing a

hybrid model of instruction. This will be the situation for approximately 6,398 returning

students currently outside of the U.S., roughly one third of the International Student population.

The uncertainty related to this issue may discourage some International Students from enrolling

or re-enrolling in SUNY.

49. International Students who are involved in SUNY’s research enterprise will lose

the opportunity to contribute to critical research and to advance their careers through their

participation in such research.

50. International Students could be forced to depart the country in haste as a result of

changes in instructional delivery mode mid-semester. Those students would be putting their

health at risk, being exposed to unsafe travel conditions at a time when the rate of community

transmission of COVID-19 is high enough to warrant the change in instructional delivery (not to

mention the risk of a coinciding pandemic-related surge in their home country). Some students,

such as those from countries disrupted by internal strife, civil war, and political insecurity, may

even face possibility of serious bodily harm or even death due to volatile in-country conditions.


15

51. International Students forced to depart as a result of the Directive will incur

significant negative financial consequences, including forfeiting expenditures made on housing

and paying elevated travel costs to return to their home country on short notice and during a

period of high demand and flight scarcity. Others will be unable to return to their home

countries due to travel disruptions and/or exorbitant costs and be forced to remain in the U.S.

even as they are prohibited from remaining enrolled and progressing in their degree programs.

Such students will also lose the ability to pursue Optional Practical Training upon graduation, an

extension of their academic training program that often leads to long-term work visas for

employment in the U.S.

52. A significant number of returning students have left the U.S. and are unable to

arrive for fall semester due to travel disruptions and/or to ongoing COVID-related travel bans.

Many of these students are able to defer their enrollment and continue their F-1 eligibility for

future study. The Directive will cause some of them to lose their F-1 status. In order to resume

their studies here they will be required to reapply for F-1 visas in future, risking rejection,

jeopardizing their ability to continue their educational progress, costing them an additional

SEVIS fee (currently $350) and necessitating another trip to their nearest U.S. Consulate.

53. Some International Students who cannot comply with the Directive’s in-person

instruction requirement will have to return to their home country. If such students attempt to

continue enrollment in SUNY remotely, they will likely attend classes in different time zones.

This could result in situations where students are scheduled to attend remote courses in the

middle of the night. These students will also need to secure reliable technology. Many students

will likely disenroll as a result of these challenges.


UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security; and MATTHEW ALBEN CE, in his official capacity as Acting Director of United States Immigration and Customs Enforcement,

Defendants.

CIVIL ACTION NO.

DECLARATION OF RUTH N. KAMONA

I, Ruth N. Kamona, pursuant to 28 U.S.C. § 1746, hereby declare that the following is

true and correct:

1. I submit this Declaration in support of the State ofNew York's litigation

challenging the policies announced on July 6, 2020 by "Broadcast Message" and to be published

as a Temporary Final Rule to amend requirements of the Student and Exchange Visitor Program

(the "Directive"). I have compiled the information in the statements set forth below either

through personal knowledge, through the City University of New York ("CUNY") personnel

who have assisted me in gathering this information from our institution, or on the basis of


documents I have reviewed. I have also familiarized myself with the Directive in order to

understand its immediate impact upon CUNY.

2. I am currently employed as the University Director for International Student

and Scholar Services in the CUNY Central Office of Academic Affairs, a position I have held for

more than 10 years. In this capacity, I serve as the Principle Designated School Official and

CUNY's point person with the U.S. Department of Homeland Security, Immigration and Custom

Enforcement. I work in tandem with the University community to ensure compliance with the

federal regulatory mandates pertinent to international students and exchange visitors, and to

provide support for the delivery of critical student services that directly enhance international

students' and scholars' academic success. I am also charged with the oversight and maintenance

of the University's Immigration Certificate that allows all CUNY colleges to continue admitting

and enrolling international students in F-1 status and exchange visitors in J-1 status for some of

the colleges and the CUNY Central Office. I am a product of CUNY, who came to the United

States as an international student in F-1 immigration status. I obtained both my bachelor and

master's degree in Public Administration from CUNY's John Jay College of Criminal Justice,

and another master's degree in Higher Education Administration from Baruch College.

Background on CUNY

3. CUNY is the nation's largest urban university, with 25 campuses, including

senior and community colleges and graduate institutions including the CUNY Graduate School

and University Center, the CUNY Graduate School of Public Health and Health Policy and the

CUNY School of Medicine at City College. CUNY has approximately 1,600 different academic

programs ranging from certificate programs to Ph.D. and professional programs. The University

has an enrollment of approximately 253,000 full and part-time undergraduate and graduate


students and has approximately 200,000 students enrolled in adult and continuing education

programs. It employs approximately 45,000 full�time and part-time employees.

4. Since the founding of what is now City College (the oldest college in the CUNY

system) in 1847, CUNY has had a special mission to provide an affordable and excellent

education for students from disadvantaged backgrounds. Section 6201 (2) of the New York State

Education Law recognizes this mission and sets forth the legislature's intent that "the University

will continue to maintain and expand its commitment to academic excellence and to the

provision of equal access and opportunity for students, faculty and staff from all ethnic and racial

groups and from both sexes" as well as its understanding that "[t]he City University is of vital

importance as a vehicle for the upward mobility of the disadvantaged in the City of New York."

Approximately 42 percent of CUNY's students are in the first generation of their families to

attend college.

5. CUNY is a premier research institution. CUNY's Research Foundation ("RF")

manages a $512 million research program focused on life-changing research across a wide range

of disciplines including medicine, engineering, physical sciences, energy, computer science, and

social sciences, and employs over 13,000 part-time and full-time researchers.

CUNY's International Students

6. In fall 20219, CUNY had approximately 6,100 enrolled degree-seeking students

in F-1 immigration status on F-1 student visas (the "International Students").

7. CUNY's International Students come from over 100 countries and contribute

approximately $70 million in tuition and other fees to CUNY. CUNY's International Students

also contribute millions to the economy of New York City and generate thousands of jobs.


8. The new Directive will put in grave jeopardy both the continued enrollment and

the new enrollment of International Students, particularly those currently outside of the United

States. Hundreds of International Students will fail to enroll or will disenroll from CUNY as a

result of the Directive.

The Directive

9. The Directive's impact at CUNY will be felt amid the backdrop of an

unprecedented national emergency. The COVID-19 crisis has significantly impacted our

campuses, caused millions of dollars of financial costs to CUNY and has forced nearly all

employees who are tasked with international student and financial aid duties to work remotely.

New York has been hit harder than any other state to date, with tens of thousands of deaths and

long-term injury and illness for hundreds of thousands more. CUNY itself has been directly

affected by the pandemic. We have so far lost 46 members of the CUNY community to COVID-

19.

10. The Directive requires that all International Students must be enrolled in at least

one in-person course in fall 2020 in order to be eligible for a student visa.

11. The Directive forces CUNY to choose between adding more in-person course

offerings or risking the loss of thousands of International Students, along with all that they

contribute to our campuses, communities, and economy. However, the Directive's central

demand - that schools provide more in-course offerings - is extremely difficult or impossible for

CUNY to accomplish while maintaining compliance with state and federal public health

directives. For example, state directives (based upon Centers for Disease Control (CDC)

guidance for reopening) require CUNY to operate in-person courses in accordance with specified

social distancing guidance, including having at least six feet of space between students in


classroom environments. The limitations of CUNY's physical infrastructure makes it

impractical and imprudent for CUNY to increase in-person course options.

12. Because the limitations of CUNY's physical infrastructure make it extremely

difficult for CUNY to significantly increase in-person course options while complying with

public-health mandates, compliance with the Directive would require CUNY to rearrange its

system of priorities for determining which classes and students receive in-person instruction,

putting a severe burden on an already stressed system. Rather than decisions about mode of

instructional delivery being dictated by public health and safety and academic necessities, visa

status would need to be introduced as a priority decision-making criterion. Such a mandate

would affect the entire student population and constitute a disservice to all CUNY students.

13. Even if CUNY were able to add more in-person offerings while complying with

public health directives, students who are already enrolled in fall 2020 courses would have

significant difficulty changing their course enrollments under the timeframe imposed by this last

minute Directive.

14. Finally, depending upon the nature of the spread ofCOVID-19 in New York and

other states, CUNY may be required to switch to fully remote instruction again during the

semester and at a moment's notice as it did in spring 2020. This would cause thousands of

International Students to suddenly lose their visa status mid-semester pursuant to the Directive.

Students would be forced to exit the U.S. by traveling exactly when doing so presents the

greatest risk. CUNY needs to be able to make any such decisions based on public health

conditions alone, free of apprehension about the downstream effects those decisions might have

on this important segment of our student population.


Economic Harm to CUNY

15. CUNY faces incredible challenges with adding more in-person course offerings

because of unique physical and infrastructure limitations of operating campuses in New York

City. As a result of the Directive, a significant number oflnternational Students will withdraw

from CUNY. This will result in lost tuition and other revenue for CUNY. CUNY estimates that

withdrawals by International Students as a result of the Directive will result in as much as $70

million in lost tuition and revenues.

16. In addition, CUNY employs well over a thousand International Students as

research assistants, teaching assistants, and in other capacities.

17. As a result of the Directive, a significant number of International Students may

withdraw from CUNY and leave their positions of employment with CUNY. CUNY will be

required to devote additional resources to hiring new employees, and may not be able to find

qualified replacements.

18. Over one third of the entering class at CUNY Graduate Center is comprised of

International Students. Over 700 International Students are enrolled in the Graduate Center. All

of those International Students are involved in research, including biomedical research and other

critically important topics. The loss of these research efforts due to the Directive will have a

devastating impact on CUNY, and on public health in New York City and across the state.

19. In addition, the Directive will likely cause severe reputational damage to CUNY,

making it more difficult for CUNY to recruit International Students in future years. CUNY is

currently recognized throughout the globe for offering a wealth of top-tier academic and research


opportunities to International Students. The uncertainty and chaos caused by the Directive will

tarnish CUNY's global reputation and will lead to a long-term loss of tuition and other revenues

for CUNY, as well as continuing harm to CUNY's research enterprise and a concomitant

diminishment of the quality of its academic environment.

20. As a result of the Directive, International Students who are unable to enroll in an

in-person or hybrid course in fall 2020 will be forced to withdraw from CUNY. Some

International Students will transfer to schools in their home country or in other countries. Still

others will drop out of school altogether.

21. The Directive has sown confusion and uncertainty among International Students.

International Students who are already in the U.S. are uncertain as to whether they will be able to

enroll in an in-person course for the fall 2020 semesters. International Students who remain

outside of the U.S. are uncertain about whether they will be permitted to re-enter the U.S. This

uncertainty and confusion will itself lead some International Students to withdraw from CUNY.

22. Accordingly, the Directive will likely result in hundreds, if not thousands, of

International Students disenrolling from CUNY.

23. The loss of tuition resulting from this withdrawal would be particularly acute

because International Students usually pay full tuition, which enables CUNY to provide

significant financial aid to disadvantaged students. The loss oflnternational Students' tuition

will therefore have an outsized impact on CUNY's finances and the prospects for thousands of

domestic students to afford higher education.

Administrative Burden on CUNY

24. Prior to the issuance of the Directive, CUNY was in the process of developing

reopening plans for fall 2020 (the "Reopening Plans"). The Reopening Plans are designed to


comply with state'-level directives for operation in light of current public health considerations

related to the COVID-19 crisis. These state-level directives were, in tum, at least partially based

on federal guidance from the White House, CDC, and other sources. CUNY based its Reopening

Plans on considerations including the physical limitations of its classroom buildings to permit

appropriate social distancing during in-person course meetings.

25. CUNY also relied on the ICE guidance issued in March 2020 in developing the

Reopening Plans.

26. CUNY's campuses have been closed to in-person student instruction since mid-

March, and summer classes are also being held through distance learning. In light of this

situation, it has been an extreme challenge for CUNY to engage in its core educational functions

since March 2020, as well as for administrators and staff to perform both regular work and the

additional functions necessary to address the operational and :financial issues caused by the

COVID pandemic.

27. CUNY' s Reopening Plans seek to optimize the balance of in-person, hybrid and

fully online courses with considerations of safety and academic necessities. As part of this

effort, the University seeks to minimize the percentage of courses requiring on-site instruction as

the best way to guard against virus outbreaks and prepare for possible resurgences of the virus in

the communities served by our campuses ..

28. As a result of the Directive, CUNY will have to devote thousands of additional

hours to academic counseling and immigration advising for International Students about the need

to enroll in an in-person or hybrid course to maintain their F-1 immigration status. CUNY will

also have to devote resources to counseling International Students about in-person or hybrid

course offerings that are offered and that will enable students to continue to make normal


progress in their degree program, thus maintaining their status. The processing of International

Students' course changes so close to the beginning of the fall 2020 semester has the potential to

create instability as the numbers of students in various courses and sections fluctuate

unpredictably.

29. CUNY will also have to devote additional unbudgeted resources to revisiting its

Reopening Plans to determine whether there are any potential means for increasing in-person or

hybrid course offerings. To the extent that campuses find that they are able to modify the

Reopening Plans to offer additional in-person or hybrid offerings, CUNY will be required to

devote additional resources to mitigate the risk of COVID-19 spread associated with in-person

courses. For example, CUNY would have to allocate funds for increased frequency of classroom

cleanings and for purchasing masks to distribute to students and faculty.

30. The Directive also requires schools that are offering hybrid programs to certify to

Student and Exchange Visitor Program (SEVP) through the Form 1-20 (Certificate of Eligibility

for Nonimmigrant Student Status) that each enrolled International Student's program is not

entirely online, that the student is not taking an entirely online course load for the Fall 2020

semester, and that the student is taking the minimum number of online courses required to make

normal progress in their degree program.

31. CUNY anticipates that it will have to devote thousands of hours of additional staff

time completing recertification of International Students pursuant to the Directive. Furthermore,

this burden is ill-timed and requires the effort of specialized staff who are limited in number on

all CUNY campuses. The work plans of these staff members are already filled for the remaining

weeks of the summer term with activities necessary to ensure the successful arrival and

continuation of International Students during the summer and fall terms. The University does


not have a pool of additional staff, as these positions are highly trained, and other staff are

consumed with current re-opening duties. Moreover, the Student and Exchange Visitor Program

normally takes several months to authorize these highly specialized staff work within SEVIS.

32. In addition, CUNY anticipates that changes in the severity of the COVID-19

crisis may necessitate further changes in course operation during upcoming academic year. As a

result, CUNY may need to repeat the re-certification process multiple times as conditions

change.

Impact on CUNY's Ability to Respond to the COVID-19 Pandemic

33. The Directive comes at a particularly difficult time for CUNY, given the ongoing

hardship faced as a result of the COVID-19 global pandemic.

34. As noted above, all CUNY campuses closed to in-person instruction in March 2020

pursuant to state directives aimed at controlling the spread of COVID-19. With our students

displaced, our faculty and staff worked hard to quickly move courses online and to respond to the

administrative and financial repercussions of the crisis.

35. The Directive will require CUNY administrators to divert critical resources from our

COVID-19 response efforts.

Harmful Impact on Students

36. International Students who had planned to initiate or continue their studies at

CUNY but are denied visas as a result of this Directive will experience disruptions in their

education and may never be able to enroll at CUNY. Students who are returning to the U.S. may

experience problems re-entering the U.S. The uncertainty related to this issue may discourage

some International Students from enrolling or re-enrolling in CUNY.


37. In addition, as noted above, International Students who are unable to enroll in an

in-person or hybrid class will be forced to withdraw from CUNY. The Directive subjects all

such students to loss of their F-1 immigration status and, for students already in the United

States, the risk of deportation. Accordingly, the Directive may result in hundreds, if not

thousands, oflnternational Students disenrolling from CUNY.

38. International Students who are involved in CUNY's research enterprise will lose

the opportunity to contribute to critical research and to advance their careers through their

participation in such research.

39. International Students could be forced to depart the country in haste as a result of

change in instructional delivery mode mid-semester. Those students would be putting their

health at risk, being exposed to unsafe travel conditions at a time when the rate of community

transmission of COVID-19 is high enough to warrant the change in instructional delivery (not to

mention the risk of a coinciding pandemic-related surge in their home country). Some students,

such as those from countries disrupted by internal strife, civil war, and political insecurity, may

even face possibility of serious bodily harm or even death due to volatile in-country conditions.

International Students forced to depart as a result of the Directive will incur significant financial

consequences, including losing their ability to obtain necessary work visas to permit them to

work under the Optional Practical Training during or after completion of their academic

trajectory. Such students who are already in the U.S. will also have to pay travel costs to return

to their home country and to find short-term housing in their home country.

40. A significant number of returning students have left the U.S. and are unable to

arrive for fall semester due to travel disruptions and/or to ongoing COVID-related travel bans.

Many of these students are able to defer their enrollment and continue their F-1 eligibility for


future study. The Directive will cause some of them to lose their F-1 status. In order to resume

their studies here, they will be required to reapply for F-1 visas in the future, risking rejection,

jeopardizing their ability to continue their educational progress, costing them an additional

SEVIS fee (currently $350) and necessitating another trip to their nearest U.S. Consulate.

41. International Students are confused and uncertain about the impact of the

Directive on their ability to continue their programs at CUNY. Many have reached out to CUNY

administrators for help and have described the severe hardships they will face if they are not able

to maintain their immigration status as a result of the Directive.

42. As set forth above, CUNY will lose many millions of dollars as a result of the

Directive due to lost tuition and revenue. In addition, the Directive will harm CUNY' s research

enterprise and impose significant administrative burdens on CUNY. Finally, CUNY will suffer

an incalculable loss of educational opportunities and a loss of diversity within its student

population as a result of the Directive.

Under 28 U.S.C. § 1746, I declare under penalty of perjury of the laws of the United States that,

to the best of my knowledge, the foregoing is true and correct.

Executed this 12th day of July, 2020

Ruth N. Kamona University Director International Student & Scholar Services The City University of New York



STATE OF NEW YORK,

Plaintiff,

v.

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

Defendants.

CIVIL ACTION NO.

DECLARATION OF ROHIT KHEMLANI

I, Rohit Khemlani, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and

correct:

1. I submit this Declaration in support of the State of New York’s litigation

challenging the policies announced by United States Immigration and Customs and Enforcement

(“ICE”) on July 6, 2020 by “Broadcast Message” and to be published as a Temporary Final Rule

to amend requirements of the Student and Exchange Visitor Program (the “Directive”). I have

personal knowledge of all the information set forth below.

2. I was born in India in 2000. In 2003, my family and I left India and immigrated

to Japan. Japan is my current country of residence and it is where I spent the majority of my life.

In 2018, I graduated from the Hokkaido International School in Sapporo, Japan with a 3.73 GPA.


3. In the fall of 2018, I enrolled in the School of Management (“SOM”) at the

University of Buffalo (“UB”), a university within the State University of New York system. I

am currently a rising senior at SOM, and am pursuing a Major in Accounting.

4. The Accounting program at SOM is internationally recognized as a very

competitive and rigorous program. It was my dream to attend and graduate from this prestigious

program.

5. While at UB, I have excelled both academically and professionally. I have

achieved Dean’s List three times, which is a recognition given to full-time undergraduate

students who demonstrate academic excellence by earning a GPA of at least 3.6 while

completing a minimum of 15 or more UB credit hours.

6. In November 2019, my team and I won the “PwC Challenge,” which is a national

competition managed by the international consulting company PricewaterhouseCoopers for

undergraduate business students.1

7. Since October 2019, I have worked at UB’s Student Union where I coordinate and

manage hundreds of events for student organizations each year to foster the continued growth of

Buffalo’s diversity and culture.

8. I am an executive board member for Beta Alpha Psi, the most popular accounting

club throughout the nation.

9. I have also become very connected to the Buffalo community outside of UB. In

February 2020, I received a Volunteer Income Tax Assistance (“VITA”) certificate. Using this

certificate, I helped prepare income tax returns for low-income families in Buffalo in the spring

of 2020.

1 https://mgt.buffalo.edu/content/mgt/about/news.host.html/content/shared/mgt/news/ub-undergraduates-win-annual-pwc-challenge.detail.html


https://mgt.buffalo.edu/content/mgt/about/news.host.html/content/shared/mgt/news/ub-undergraduates-win-annual-pwc-challenge.detail.html

https://mgt.buffalo.edu/content/mgt/about/news.host.html/content/shared/mgt/news/ub-undergraduates-win-annual-pwc-challenge.detail.html

10. As a rising senior, I expected to complete my Accounting degree and graduate in

the spring of 2021. Upon graduation, my plan was to work as an accountant.

11. In March 2020, once I learned that UB’s campus would be closed for at least the

remainder of the school-year, I decided to return to join my family in Japan. I completed my UB

coursework for the spring 2020 semester online.

12. I have resided in Japan since March 2020, and expected to reside there until the

global health pandemic caused by COVID-19 abated. I expected to continue pursuing my UB

coursework online until that time.

13. However, ICE’s July 6, 2020 Rule has completely upended my academic plans,

my professional pursuits, and my entire life.

14. ICE’s Rule requires international students to take in-person courses in order to

maintain their student visa status. Students can no longer maintain their student visa status

through full remote learning.

15. Because Japan’s borders are closed to non-citizens, I am currently not able to

obtain a flight to the United States to take in-person courses. I am incredibly anxious and

worried that I will not be able to return before the start of the semester, which is just weeks

away.

16. If I do not return before the start of the semester, I risk losing my student visa and

the possibility of finishing my Accounting degree at UB. I may have to withdraw from UB if I

am unable to meet the Rule’s requirements.

17. I am devastated by the possibility that I may not be able to finish my degree at

UB.


18. Even if I am able to return to the Unites States at a later time, that does not mean

that I will be able to stay for the remainder of my degree program. The COVID-19 situation is

incredibly fluid, and the situation in New York could worsen at any time. If UB moves to an

online-only program for any reason, I will be forced to leave the country and could be deported,

due to the Rule’s requirements. Moreover, as both Japan and India have border restrictions in

place, there is no guarantee that I would be accepted by either country if I had to leave.

19. I am terrified at the prospect of being removed from the country due to the Rule.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 13th day of July, 2020

/s/ Rohit Khemlani_____________

Rohit Khemlani


united states district court southern district of new … · currently in the united states....

Documents