Doe v. U.S. Dep't of Homeland Sec.

Doe 1, et al., Plaintiffs, v. U.S. Department of Homeland Security, et al., Defendants.

2:20-cv-09654-VAP-AGRx

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

November 20, 2020

Order Denying Motion for Preliminary Injunction (Dkt. 9).

Plaintiffs, Does 1 through 16, filed a Motion for Preliminary Injunction. (Mot., Dkt. 9-1.) Defendants U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad R. Wolf, and Tony H. Pham oppose the Motion. (Opp'n., Dkt. 25.) After considering all briefing in connection with the Motion, as well as the arguments advanced at the hearing, the Court DENIES the Motion.

I. BACKGROUND

Plaintiffs are sixteen first-year student athletes who were admitted at the University of California, Los Angeles ("UCLA") or Loyola Marymount University ("LMU") to study and participate in intercollegiate athletics. (Compl., Dkt. 1 ¶¶ 17-32.) Plaintiffs are residents of Australia, Canada, Great Britain, Israel, Italy, New Zealand, Norway, and Spain. (Id.) Each Plaintiff is enrolled in a course of study at his or her respective university. (Id.) Each Plaintiff, if able to attend university in person, would be a member of a National Collegiate Athletic Association ("NCAA") Division 1 team. (Id.) At least some Plaintiffs have received scholarships or grants-in-aid to participate in intercollegiate athletics and have turned down opportunities at other institutions around the world in order to play for their respective universities. (Id. ¶¶ 2-3; see Dkts. 34-49.)

International students may obtain nonimmigrant temporary visas, or F-1 visas, to study at United States educational institutions. 8 U.S.C. § 1101(a)(15)(F)(i). Students must also obtain Form I-20 Certificates of Eligibility for Nonimmigrant Student Status issued by a school approved by the Student Exchange Visitor Program ("SEVP"), which works with the U.S. Department of Homeland Security ("DHS") and U.S. Immigration and Customs Enforcement ("ICE").¹ Once admitted to the country, nonimmigrant students are monitored by Designated School Officials ("DSO") for compliance with extensive regulations, and this compliance information is entered into the Student Exchange Visitor Information System ("SEVIS"). See, e.g., 8 C.F.R. §§ 214.2, 214.3, 214.4. Among other requirements, F-1 holders must maintain a full course of study at their approved institution. Id. § 214.2. Additionally, most F-1 holders may take "no more than the equivalent of one class of three credits per session, term, trimester, or quarter" online as part of their full course of study. Id. § 214.2(f)(6)(i)(G). Failure to comply with these requirements may lead to removal. 8 U.S.C. § 1227(a)(1)(C).

With the onset of the COVID-19 pandemic, Defendants issued several statements and guidance documents through the SEVIS system to provideinformation to nonimmigrant students regarding the pandemic's impact on immigration regulations. First, on January 29, 2020, Defendants issued a broadcast message advising that as to new or initial students like Plaintiffs, schools should "[d]elay their program start date."² (Req. for Judicial Notice ("RJN"), Dkt. 13 Ex. A.) On March 9, 2020, Defendants issued a second broadcast message, stating that "SEVP is focused on ensuring that nonimmigrant students are able to continue to make normal progress in a full course of study as required by federal regulations" and that Defendants would be flexible with temporary adaptations. (Id. Ex. B.) This guidance, however, was "not intended for new or initial students who are outside the United States." (Id.)

Defendants issued two follow-up guidance statements to the March 9, 2020 broadcast message. The first was issued on March 13, 2020; it stated that Defendants would allow "F-1 and/or M-1 students to temporarily count online classes towards a full course of study in excess of the [regulatory limits on online classes]." (Id. Ex. C.) On July 24, 2020, Defendants issued the second guidance statement, telling initial students, or those who were active after the March 9, 2020 message, that they would "not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online." (Id. Ex. D.) Schools that were operating "100 percent online" were instructed not to issue Form I-20s for those students. (Id.)

Finally, in a "Frequently Asked Questions" document issued in August 2020, Defendants stated that "per the March 2020 guidance" new or initial students who were participating in a hybrid program of study that had in-person and online components, even if those online components were beyond the regulatory limits, were still able to maintain F-1 or M-1 nonimmigrant status. (Id. Ex. E.)

Due to the COVID-19 pandemic, Plaintiffs' academic courses are not currently offered in-person. (See Dkts. 34-49.) Plaintiffs assert that Defendants' directives therefore prohibit Plaintiffs from entering and remaining in the country. (Compl. ¶ 6.) Hence, Plaintiffs cannot be on campus as required to train, practice, and participate in intercollegiate athletics. (Id.; see Dkts. 34-49.) Plaintiffs seek a preliminary injunction either (1) "prohibiting the [D]efendants from treating the plaintiffs differently than international students similarly situated but for the fact that such other international students are returning students rather than first-year students" or (2) preventing Defendants from interpreting their July 24, 2020 guidance "to preclude the [Plaintiffs] from qualifying for I-20 Certificates of Eligibility on the grounds that they are engaged in a 100% online course of study." (Dkt. 32-1.)

II. LEGAL STANDARD

"A preliminary injunction is an extraordinary and drastic remedy . . . ; it is never awarded as of right." Munaf v. Green, 553 U.S. 674, 689-90 (2007) (citations omitted). It is a device for "preserving the status quo and preventing the irreparable loss of rights before judgment." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984).

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). "Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). In this Circuit, a plaintiff may obtain a preliminary injunction upon a lesser showing of the merits if the balance of hardships tips "sharply" in his favor, and he has satisfied the other two Winter requirements. See id. at 1135.

A preliminary injunction can be mandatory or prohibitory. "A mandatory injunction orders a responsible party to take action," while "[a] prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009). Mandatory injunctions, while subject to a higher standard than prohibitory injunctions, are permissible when "extreme or very serious damage will result" that is not "capable of compensation in damages," and the merits of the case are not "doubtful." Id. at 879 (quotation marks omitted). An injunction seeking the prevention of future constitutional violations, for example, is "a classic form of prohibitory injunction." Hernandez v. Sessions, 872 F.3d 976, 998 (9th Cir. 2017); see also Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060-61 (9th Cir. 2014) (an injunction against enforcement of a likely unconstitutional state policy was prohibitory rather than mandatory); Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 728, 732 n.13 (9th Cir. 1999) (an injunction against enforcement of alocal ordinance that likely violated federal law was prohibitory rather than mandatory); Melendres v. Arpaio, 695 F.3d 990, 994-96, 1000, 1002 (9th Cir. 2012) (affirming a preliminary injunction against an allegedly longstanding practice of detaining individuals based solely on suspicions about immigration status); McCormack v. Hiedeman, 694 F.3d 1004, 1009, 1020, 1022 (9th Cir. 2012) (affirming a preliminary injunction barring enforcement against the plaintiff of a longstanding Idaho anti-abortion criminal statute); 42 Am. Jur. 2d Injunctions § 5 (2017) ("An injunction is considered prohibitory when the thing complained of results from present and continuing affirmative acts and the injunction merely orders the defendant to refrain from doing those acts.").

Courts are generally more cautious when issuing mandatory preliminary injunctions that would alter the status quo by commanding some positive act from one of the parties. Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993). Such relief is "subject to a heightened scrutiny and should not be issued unless the facts and law clearly favor the moving party." Id. "The relevant status quo is that 'between the parties pending a resolution of a case on the merits.'" Arizona Dream Act Coal., 757 F.3d at 1060-61 (quoting McCormack, 694 F.3d at 1019). In other words, "the 'status quo' refers to the legally relevant relationship between the parties before the controversy arose." Id. (emphasis in original).

Here, Plaintiffs are not asking the Court to reinstate the regulation that barred all international students' entry when their courses were offered exclusively online, nor the revised regulation that permits only returning international students' entry. Instead, Plaintiffs seek, in effect, a new regulation that permits all international students' entry, including new first-year students, when their coursework is...