University of Michigan Law School
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Case Name Guilford College v. Nielsen IM-NC-0005
Docket / Court 1:18-cv-00891 ( M.D. N.C. )
State/Territory North Carolina
Case Type(s) Immigration and/or the Border
Case Summary
The United States Citizenship and Immigration Services (USCIS) issued a memorandum on August 9, 2018 that changed its longstanding policy for determining unlawful presence of students and exchange visitors. Under the old policy, students and exchange visitors were deemed unlawfully present only ... read more >
The United States Citizenship and Immigration Services (USCIS) issued a memorandum on August 9, 2018 that changed its longstanding policy for determining unlawful presence of students and exchange visitors. Under the old policy, students and exchange visitors were deemed unlawfully present only after an official determination. The new policy, however, deemed students as unlawfully present as soon as they participated in an unauthorized activity. The unauthorized activity could be as minor as a failure to report a change of address.

On October 23, 2018, Guilford College and other universities filed this lawsuit in U.S. District Court for the Middle District of North Carolina. The plaintiffs sued USCIS and the Department of Homeland Security (DHS) under the Administrative Procedure Act (5 U.S.C. § 706). Represented by private counsel including Mayer Brown, the plaintiffs alleged that the defendants failed to provide notice and comment and comply with other requirements of the Administrative Procedure Act. They also alleged that the new policy, which imposed three- and ten-year bars on individuals without notice or opportunity to cure, violated the protections guaranteed by the Due Process Clause. Finally, they alleged that the new policy violated provisions of the Immigration and Nationality Act.

On December 14, 2018, the plaintiffs filed a first amended complaint. The plaintiffs also filed motions for a preliminary injunction and partial summary judgement on some of their claims involving the Administrative Procedure Act and the Immigration and Nationality Act. The defendants filed a motion to dismiss for lack of jurisdiction on January 10, 2019.

On May 3, 2019, the court (Judge Loretta C. Biggs) granted the plaintiffs' motion for a preliminary injunction and denied the plaintiffs' motion for partial summary judgment. The court issued a nationwide preliminary injunction against the new policy, noting that the APA directed courts to "set aside agency action" found unlawful. However, it denied the plaintiffs’ motion for partial summary judgment without prejudice because the parties failed to file the relevant administrative record.

The plaintiffs again filed a motion for partial summary judgment. On the same day, the defendants filed a motion for summary judgment, claiming that the plaintiffs lacked standing and that the new policy was exempt from notice and comment requirements. The judge denied both motions for summary judgement without prejudice on July 3, 2019, again stating that the parties failed to provide a sufficient administrative record. The parties then renewed their summary judgment motions.

On February 6, 2020, Judge Biggs granted the plaintiff's motion for partial summary judgment on two grounds. First, Judge Biggs found that the new rule was subject to notice and comment rulemaking that had not taken place. And second, Judge Biggs found that the rule conflicted with the INA's plain text because the INA defined "unlawful presence" to mean more than mere participation in unauthorized activity. To remedy the violation, Judge Biggs entered a nationwide injunction against the policy.

The defendants may appeal the decision but have not done so as of February 11, 2020.

Bogyung Lim - 01/28/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Procedural Due Process
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Immigration/Border
Constitutional rights
Status/Classification
Temporary visitors
Undocumented immigrants - rights and duties
Visas - criteria
Visas - procedures
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) U.S. Department of Homeland Security
Plaintiff Description Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Order Duration 2020 - n/a
Filed 10/23/2018
Case Ongoing Yes
Additional Resources
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Court Docket(s)
M.D. N.C. 1:18-cv-00891
IM-NC-0005-9000.pdf | Detail
Date: 02/06/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
M.D. N.C.
Complaint [ECF# 1]
IM-NC-0005-0001.pdf | Detail
Date: 10/23/2018
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
First Amended Complaint [ECF# 14]
IM-NC-0005-0002.pdf | Detail
Date: 12/14/2018
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
Memorandum Opinion and Order [ECF# 45] (389 F.Supp.3d 377)
IM-NC-0005-0003.pdf | WESTLAW| LEXIS | Detail
Date: 05/03/2019
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
Order [ECF# 46]
IM-NC-0005-0007.pdf | Detail
Date: 05/03/2019
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
Order [ECF# 56]
IM-NC-0005-0004.pdf | Detail
Date: 07/03/2019
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
Order [ECF# 59]
IM-NC-0005-0005.pdf | Detail
Date: 07/12/2019
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
Memorandum of Law in Support of Defendants' Motion for Summary Judgment [ECF# 63]
IM-NC-0005-0006.pdf | Detail
Date: 07/22/2019
Source: PACER [Public Access to Court Electronic Records]
M.D. N.C.
Memorandum Opinion and Order [ECF# 69] (2020 WL 586672)
IM-NC-0005-0008.pdf | WESTLAW | Detail
Date: 02/06/2020
Source: PACER [Public Access to Court Electronic Records]
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Judges Biggs, Loretta Copeland (M.D. N.C.) show/hide docs
IM-NC-0005-0003 | IM-NC-0005-0004 | IM-NC-0005-0005 | IM-NC-0005-0007 | IM-NC-0005-0008 | IM-NC-0005-9000
Peake, Joi Elizabeth (State Trial Court, M.D. N.C.) [Magistrate] show/hide docs
IM-NC-0005-9000
Plaintiff's Lawyers Hughes, Paul W. (District of Columbia) show/hide docs
IM-NC-0005-0001 | IM-NC-0005-0002 | IM-NC-0005-9000
Kimberly, Michael B. (District of Columbia) show/hide docs
IM-NC-0005-0001 | IM-NC-0005-0002 | IM-NC-0005-9000
Klasko, H. Ronald (Pennsylvania) show/hide docs
IM-NC-0005-0001 | IM-NC-0005-0002
Lyons-Berg, Andrew A. (District of Columbia) show/hide docs
IM-NC-0005-0002
Menees, Cory S. (North Carolina) show/hide docs
IM-NC-0005-0001 | IM-NC-0005-0002 | IM-NC-0005-9000
Routh, Jennifer B. (District of Columbia) show/hide docs
IM-NC-0005-9000
Rutter, Jessica show/hide docs
IM-NC-0005-0002
Strom, David J. (District of Columbia) show/hide docs
IM-NC-0005-0002
Defendant's Lawyers Girdharry, Glenn M. (District of Columbia) show/hide docs
IM-NC-0005-0006
Hunt, Joseph H. (District of Columbia) show/hide docs
IM-NC-0005-0006
Peachey, William Charles (District of Columbia) show/hide docs
IM-NC-0005-0006
Press, Joshua S. (District of Columbia) show/hide docs
IM-NC-0005-0006 | IM-NC-0005-9000
Other Lawyers Atteberry, Jeffrey A. (California) show/hide docs
IM-NC-0005-9000
Babha, Ishan K. (District of Columbia) show/hide docs
IM-NC-0005-9000
Perrelli, Thomas J. (District of Columbia) show/hide docs
IM-NC-0005-9000
Speas, Edwin M. Jr. (North Carolina) show/hide docs
IM-NC-0005-9000

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