According to an opinion which appears to be gaining some traction in the media, up to a million F-1 and other mainly Asian r foreign students are not out of danger of losing their legal status in the US and being deported despite the Trump administration's agreement in federal court to withdraw the ICE July 6 directive forcing the students to take at least some in-person classes.

This July 6 order was issued despite the risk to students, faculty and school staff of contracting the deadly Covid-19 plague which has already taken more than 135,000 US lives and is now raging out of control across America due to unpardonable and irresponsible bungling, neglect and denial by the president.

According to the above argument, reinstating the far more flexible March 13 ICE order which allowed foreign students to take entirely online courses while remaining in the US without losing their legal status, is just as illegal as the July 6 order which replaced the March 13 one. Both orders, the argument runs, were illegal because they failed to comply with the APA's requirements of providing notice and an opportunity for public comment before an order can take effect. This process can take as long as a year or even more.

Therefore, the argument goes, since the March 13 ICE order was allegedly just as illegal as the July 6 one which was intended to replace it, the controlling provision is in the DHS foreign student regulations which requires at least some in person classes. Since online only classes are not permitted by that regulation, the students would still in danger of losing their status and being deported unless they risk their lives, and those of the schools' and colleges' faculty and staff by attending in person classes.

However this argument fails to take into account important relevant factors, including a crucial factor which was at the heart of the Supreme Court's recent DACA decision. In that decision, Chief Justice Roberts did not rule on the fundamental question of whether DACA was illegal, as claimed by the Trump administration which sought to end that program and also subject hundreds of thousands of young nonwhite immigrants to mass deportation.

Instead, the Chief Justice ruled that even if President Obama had illegally exceeded his authority in setting up the DACA program, Trump's order cancelling the program was illegal because it violated the APA's requirement that the agency (ICE) had to explain the reasons for cancellation, including the effect on the approximately 800.000 registrants who has relied on DACA's protections.

The same principle applies in the foreign students' situation. Many of them made huge changes in their position in reliance on the March 13 ICE directive permitting online only classes. The same is true of the schools and colleges involved. Nowhere in its July 6 order did ICE mention or discuss this crucial element of reliance. It was as if no one at ICE (or in the White House) has bothered to read the Supreme Court's DACA decision.

Nor was this merely a technical violation of the APA, as an number of media writers who obviously didn't understand the DACA decision mistakenly reported in that case. Just as in the case in ending DACA, it would have been impossible for the Trump administration to provide a rational explanation in the foreign students' case of how its policy could be changed without having an overwhelming, devastating effect on the lives and well being of hundreds of thousands of young nonwhite immigrants.

Indeed, the Trump administration's obvious purpose in both cases was to bring about this kind of devastating effect on huge numbers of nonwhite immigrants in order to force them to leave the United States, all in pursuit of Trump's white supremacist agenda.

But the argument thati have been discussing above assumes that the March 13 ICE order was in fact issued in violation of the APA. It was not. There is a "Good Cause" exception to the APA's requirements of notice and opportunity for public comment. If there was ever a basis for applying such an exception, it was certainly in the circumstances that were operative in March of this year, when the deadly Covid-19 plague was beginning to spread throughout the United States.

Moreover, the March 13 order contained a rational, compelling explanation for suspending the regulatory requirement of attendance at in person classes, and it certainly did not harm anyone who had relied on the regulation in question. Therefore, in its recognition of the dangers of the Covid-19 plague, the March 13 ICE order also met the APA's requirement to avoid "arbitrary and capricious" decision making. Chief Justice Roberts also referred to this APA requirement in his DACA decision.

Nothing could be more arbitrary and capricious, not to mention cruel and sadistic, than the July 6 ICE order requiring up to a million nonwhite immigrants to expose themselves to Covid-19 or else be thrown out of the United States.

To be continued in my next comment on this topic.

Roger Algase
Attorney at Law
Harvard Law School LL.B
Harvard College A.B.