State of Washington, et al., v. Trump., et al

Filing 118

Second MOTION to Amend Complaint, filed by Plaintiff State of Washington. (Attachments: # 1 Complaint Second Amended, # 2 Exhibit Exhibits to Second Amended Complaint, # 3 Index of Declarations, # 4 Decl. of R. Althaibani, # 5 Decl. of S. Amin, # 6 Decl. of B. Callaghan, # 7 Decl. of S. Dadgari, # 8 Decl. of A. Elfgeeh, # 9 Decl. of N. Fallah, # 10 Decl. of H. Ghasemzadeh, # 11 Decl. of E. Hassett, # 12 Decl. of A. Mubarez, # 13 Decl. of S. Parsian, # 14 Decl. of Z. Rasouli, # 15 Decl. of A. Shayegan, # 16 Decl. of J. Sime, # 17 Decl. of R. Branon, # 18 Decl. of A. Chaudhry, # 19 Decl. of D. Eaton, # 20 Decl. of D. Heatwole, # 21 Decl. of S. Hemmati, # 22 Decl. of R. Lewin, # 23 Decl. of A. Mehrizi-Sani, # 24 Decl. of V. Rabinowitz, # 25 Decl. of J. Riedinger, # 26 Decl. of V. Shah, # 27 Decl. of J. Wasserheit, # 28 Decl. of J. Wasserheit, # 29 Decl. of J. Wood, # 30 Decl. of N. Zimpher, # 31 Decl. of S. Buell, # 32 Decl. of R. Fullerton, # 33 Decl. of P. Johnson, # 34 Decl. of A. Lavine, # 35 Decl. of D. Pashman, # 36 Decl. of M. Rosenn, # 37 Decl. of M. Saunders, # 38 Decl. of J. Simeone, # 39 Decl. of D. Soike, # 40 Decl. of S. Topiwala, # 41 Decl. of J. Truppman, # 42 Decl. of R. Zawaideh, # 43 Decl. of M. Akhtari, # 44 Decl. of M. de Leon, # 45 Decl. of R. Eskandari, # 46 Decl. of T. Johnson, # 47 Decl. of E. Scherzer, # 48 Decl. of W. Berkovitz, # 49 Decl. of D. Duea, # 50 Decl. of L. Warren, # 51 Proposed Order) Noting Date 3/31/2017, (Melody, Colleen)

DECLARATION OF
DEIRDRE
HEATWOLE

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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STATE OF WASHINGTON and
STATE OF MINNESOTA,

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Plaintiffs,
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CIVIL ACTION NO. 2:17-cv-00141-JLR

v.
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DONALD TRUMP, in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, in his official capacity as
Secretary of the Department of
Homeland Security; REX W.
TILLERSON, in his official capacity
as Acting Secretary of State; and the
UNITED STATES OF AMERICA,

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Defendants.

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I, Deirdre Heatwole, hereby declare as follows:
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I am General Counsel for the University of Massachusetts (“UMass” or

“University”). UMass is public land grant university with five campuses located in Amherst,
Boston, Dartmouth, Lowell and Worcester, Massachusetts, with administrative offices in
Shrewsbury and Boston. I have been employed at the University in this capacity since 2009,
and have been employed as an attorney in the University’s legal office for a total of 27 years.

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My current duties include oversight of all the University’s legal work, and supervising the

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attorneys in my office who provide legal advice and assistance to the offices that serve and

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support students and employees, and the offices which support and promote the University’s

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many international associations and opportunities for both students and faculty.

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2.

I have either personal knowledge of the matters set forth below or, with respect

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to those matters for which I do not have personal knowledge, I have reviewed information

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gathered from University records by others within the organization, including the numbers of

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students and employees and their various home countries.

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3.

The March 6, 2017 Executive Order entitled “Protecting the Nation from Foreign

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Terrorist Entry into the United States” (“Revised Executive Order”) will negatively affect the

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ability of the University to continue to offer excellent public education in undergraduate,

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graduate, and professional programs at affordable rates. This in turn will affect UMass’ ability

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to provide a well-educated workforce for the Commonwealth, reducing the significant amount

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of business and tax revenue these UMass-educated workers provide to the Commonwealth.

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UMass is the only public land-grant university in the Commonwealth, and the only public

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university authorized to award doctoral degrees. Additionally, the UMass Medical School at

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Worcester is the only public medical school in the Commonwealth, and UMass School of Law

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at the Dartmouth campus is the only public law school in the Commonwealth.

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4.

The University currently employs approximately 130 people who are from the six

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countries referenced in the Revised Executive Order (Syria, Iran, Somalia, Sudan, Libya, and

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Yemen, or the “affected countries”), and who are neither U.S. citizens nor lawful permanent

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residents and are therefore not exempted from the Revised Executive Order (hereinafter, “visa

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holders”).

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5.

Specifically, these approximately 130 visa-holder employees from the affected

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countries are employed in positions including, but not limited to, Visiting Faculty, Associate

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Lecturer, Researcher, Post-Doc, Graduate Teaching Assistant, Research Assistant, and

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Graduate Medical Education Resident. These employees are located on all of our campuses

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and in a wide variety of academic departments.

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The University currently has approximately 155 enrolled students who are from the

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six affected countries and who are neither U.S. citizens nor lawful permanent residents.

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Approximately 100 of these students are also among the University’s employees, including, for

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example, as graduate teaching and research assistants.

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For at least the period of the 90-day entry ban, all of the University’s single-entry

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visa holders from the six affected countries whose visa date stamps expire before the end of the 90-

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day period will be unable, absent a discretionary waiver (the obtaining of which is deeply uncertain),

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to return to the United State and to their schooling or work at the University if they travel abroad—

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whether for personal, academic or professional reasons, or to renew their visas. Of course, the delay

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in their ability to return may be considerably longer, given the need to obtain a visa following

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expiration of the 90-day period.

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8.

Like the Executive Order 13769 issued on January 27, 2017, the Revised Executive

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Order will have a significant negative impact on the ability to UMass to operate its core business:

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education and research. The impact will be financial as well as reputational. UMass is a top-ranked

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research institution and must hire highly qualified research faculty from around the world to

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continue our significant research enterprise. UMass spent over 650 million dollars last year in its

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research enterprise.

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UMass needs to fill dozens of tenure track positions each academic year. The time

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required to identify, evaluate, and negotiate with potential new faculty and researchers takes many

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months, and the Revised Executive Order will interfere with that process for the 2017-2018

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academic year. The month of March is part of the peak time (spanning from January through

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March) for interviews of candidates, typically three to six candidates per position. Such interviews

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can extend into May. Typically, new teaching faculty will start in the fall semester, such that offers

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will need to be made and finalized in the spring. Offers are typically given February through May—

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a period largely overlapping with the Revised Executive Order’s 90-day entry ban. Prospects who

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accept offers will also need to move family and secure housing by summer and thus will need to

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obtain visas by that time.

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Given the Revised Executive Order’s 90-day entry ban, in conjunction with the

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decision by USCIS to suspend premium processing on H-1B work status, departments within the

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University are considering delaying their candidate selection and interview processes, aiming for a

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spring 2018 rather than fall 2017 start date. Such delays would mitigate the Revised Executive

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Order’s impact on the selection of the strongest candidates for each position, but they would leave

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empty positions that will need to be filled for the fall 2017 semester. The entry ban and the

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continuing level of uncertainty because of the Revised Executive Order will thus delay and may

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prevent the University from actively recruiting international faculty and related personnel. This

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will translate into thousands of additional dollars spent by each campus, delays in research efforts,

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and potential delays or loss of federal funding for new research.

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UMass operates in a very competitive research environment but does not have the

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financial resources of many of our sister institutions in the Commonwealth. We have limited

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financial resources to provide affected faculty incentives to come to Massachusetts or to offer other

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support or resources that might mitigate the impact of the Revised Executive Order on them or their

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families. As a result, the Revised Executive Order’s negative effects on recruitment of top

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international candidates may fall more heavily on UMass as an institution than on institutions with

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greater resources.

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12.

The Revised Executive Order provisions allowing for potential discretionary

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“waivers” of the entry ban for particular applicants from the affected countries does not

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meaningfully diminish the uncertainty around hiring that was created by Executive Order 13769

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and continued by the Revised Executive Order. For example: a student wishing to visit an ailing

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family member back in his home country, a faculty member wishing to attend a conference abroad

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that is important to obtaining tenure, or prospective students or faculty members all will not be able

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to count on the existence of a discretionary waiver of the ban on entering the United States. The

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Revised Executive Order thus curtails travel opportunities outside the United States for holders of

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single-entry or expired visas from the affected countries. Although such visa-holders always need

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to apply for a visa to re-enter the United States if they travel outside the country, the Revised

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Executive Order greatly diminishes or eliminates the possibility of getting such a visa. It thus

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effectively precludes from international travel visa-holders who wish to remain in school or remain

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employed in the United States.

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13.

The Revised Executive Order will negatively affect the University’s ability to

continue to attract and enroll students from the six affected countries.

The University’s

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admissions processes for graduate and undergraduate programs vary across the University’s five

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campuses. Most campuses are still admitting students for fall 2017 enrollment. Following

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admission, students are sent a Form I-20 to use in applying for the F-1 international student visa

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stamp. The University begins sending admitted students Form I-20s in the late winter and early

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spring. Most Form I-20s are sent in April, May, and June, for fall enrollment. Therefore, the

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impact of the Revised Executive Order’s 90-day suspension will occur during “high season” for

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international student visa processing for the 2017-2018 academic year.

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Although, as described, the admissions season is still in process, and the

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University is just beginning sending Form I-20s to admitted international students, UMass has

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already extended at least 40 offers of admission for the 2017-2018 academic year to prospective

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undergraduate and graduate students who are nationals of these countries. We expect to extend

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additional offers in the coming weeks.

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15.

Higher education is very much international in nature.

Students, faculty,

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researchers, and staff regularly travel all over the world to participate in conferences, exchange

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programs, seminars, and symposia with fellow students abroad. The manner in which Executive

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Order 13769 was issued and implemented: as an abrupt travel ban, with no advance notice and

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with no guidance, and without notice of implicit visa revocations, has made all travelers who are

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not United States citizens concerned about whether they can continue to move about the world.

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The Revised Executive Order perpetuates that uncertainty, barring entry of travelers from six

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countries for 90 days, absent a discretionary waiver. Prospective students and faculty have many

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options and they can certainly elect to attend or work at schools in the UK, Africa, or the EU,

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rather than risk travel to the United States.

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16.

It has required a considerable outlay of scarce resources to mitigate the effects of

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federal action that has been so immediate and is constantly changing. Efforts to identify affected

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UMass individuals outside the United States started within hours of notice of Executive Order

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13769. In the weeks thereafter, UMass was continually gathering data on the impact from a variety

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of sources: official federal statements, news reports, internal immigration updates prepared and

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sent to senior administrators, outreach to the international campus community in the form of legal

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resources, and discussions with retained immigration counsel. Additionally, UMass has had to

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create an internal crisis communication structure for alerting senior leadership and management of

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immigration changes with campus level task forces closely monitoring executive actions, initiating

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outreach to impacted members of the campus community, and identifying needs and resources.

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Retained outside counsel has repeatedly been engaged to assist in these campus community support

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efforts. Following conflicting statements from the federal government about whether Executive

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Order 13769 would be rescinded, UMass was forced to continue preparing to respond to and

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mitigate its effects while awaiting further action. Upon issuance of the Revised Executive Order,

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the University was once again forced to devote additional resources to analyze the Revised

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Executive Order’s impact on our faculty and other employees, students, medical residents, and

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graduate and undergraduate admissions processes; to consult with retained immigration counsel

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regarding the same; to craft guidance for our campuses on how to respond and advise administrators

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on ongoing business operations; and once again offer support to very concerned campus

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communities—all to account for the additional 90-day entry ban.

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For academic institutions, the timing of the Revised Executive Order is particularly

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challenging with respect to both faculty hiring, as discussed above, and student admissions. UMass

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campuses have been issuing offers of admission for some weeks and will continue to do so for the

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next several months. Students have a short time to review offers and make decisions. Generally,

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students will be required to confirm their acceptance by paying a fee to secure their space, and some

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may be hesitant to do so in light of concerns about the two executive orders. In turn, the University’s

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calculation of whom to admit is now jeopardized by having to take into account whether a student

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from an affected country might be willing to accept, or instead, will decide not to attend UMass.

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Campuses are attempting to adjust to the current environment, but they are limited in what they can

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do as long as the actual terms and effects of the Revised Executive Order remain unclear.
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These concerns all speak to potential long term financial and reputational damage

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to UMass – the quality of its students, researchers, faculty and staff will decline, UMass’s reputation

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as a top research institution will decline, federal funding for research will decline, and enrollment

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will decline. A decrease in applications or enrollment at UMass will reduce revenue to the

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Commonwealth.

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UMass, an institution with over 150 years of service to the Commonwealth, years

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of continued growth, and a strong commitment to its mission, is very seriously concerned about the

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long-term impact of the executive orders on its future. The Revised Executive Order significantly

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impairs the University’s ability to recruit and retain a diverse faculty and staff, and to teach and

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support a diverse student body, enriched by a culture of inclusiveness and a high quality of

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international research participants. It will take years for UMass to recover from the financial and

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reputational damage due to the loss of personnel, students, programs, grants.

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