Fang v. Director United States immigration & Customws Enforcement, 081519 FED3, 17-3318

Docket Nº:17-3318
Opinion Judge:McKEE, CIRCUIT JUDGE.
Party Name:JIE FANG; XIAOYU ZHANG; SHAOFU LI; KAUSHALKUMAR PATEL; HIRENKUMAR PATEL, Appellants v. DIRECTOR UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT; SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
Attorney:Ira J. Kurzban [Argued] Kurzban, Kurzban, Tetzeli & Pratt Thomas E. Moseley One Gateway Center Suite 2600 Newark, N.J. 07102 Attorneys for Appellants. Daniel W. Meyler Office of United States Attorney Joshua S. Press [Argued] United States Department of Justice Office of Immigration Litigation At...
Judge Panel:Before: McKEE, RESTREPO and FUENTES, Circuit Judges.
Case Date:August 15, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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JIE FANG; XIAOYU ZHANG; SHAOFU LI; KAUSHALKUMAR PATEL; HIRENKUMAR PATEL, Appellants

v.

DIRECTOR UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT; SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

No. 17-3318

United States Court of Appeals, Third Circuit

August 15, 2019

Argued September 25, 2018

Appeal from the United States District Court for the District of New Jersey (No. 2-17-cv-02092) District Judge: Honorable Jose L. Linares

Ira J. Kurzban [Argued] Kurzban, Kurzban, Tetzeli & Pratt Thomas E. Moseley One Gateway Center Suite 2600 Newark, N.J. 07102 Attorneys for Appellants.

Daniel W. Meyler Office of United States Attorney Joshua S. Press [Argued] United States Department of Justice Office of Immigration Litigation Attorneys for Appellees.

Before: McKEE, RESTREPO and FUENTES, Circuit Judges.

OPINION

McKEE, CIRCUIT JUDGE.

According to its website, the University of Northern New Jersey "was founded in 2012 after several years of witnessing the challenges inexperienced graduates face in a diverse and global job market."1 It was purportedly "nationally accredited by the Accrediting Commission of Career Schools and Colleges and the Commission on English Language Accreditation" and "certified by the U.S. Department of Homeland Security, Student and Exchange Visitor Program to educate international students."2 The site listed the President as Dr. Steven Brunetti, Ph.D., and included a message from Dr. Brunetti touting the school's dedication "to providing a high-quality American education to the domestic and international academic community."[3] The school's social media accounts even informed students when UNNJ closed for inclement weather and posted wedding pictures after two of the school's alumni were purportedly married.4

But the University never existed. Neither did Dr. Brunetti or the newlywed "alumni." The Department of Homeland Security created UNNJ as a "sham university" as part of a scheme to catch brokers of fraudulent student visas. The plan worked, in a manner of speaking. It did catch many brokers of fraudulent student visas. It also ensnared hundreds of foreign students who had "enrolled" in UNNJ. The Government initially conceded that those students were innocent victims of the fraud, but later tried to change that characterization to suggest that they were more akin to participants in the fraudulent scheme.[5] When DHS's investigation into the fraudulent visa scheme concluded, each enrolled student-including the plaintiffs here-received a letter informing them that their student status "ha[d] been set to Terminated due to [their] fraudulent enrollment" in UNNJ.6The import of that letter underlies this appeal.

The Government sent the letter after filing charges against twenty-one individuals for fraudulently procuring visas. The letter terminated the plaintiffs' student visas and the plaintiffs thereafter filed this class action alleging violations of the Administrative Procedure Act, their Due Process rights, and alleging the Government should be estopped from revoking their visas. The District Court dismissed the claims for lack of subject matter jurisdiction, and because no final action had been taken by the Government. The District Court concluded that there was no final Government action because reinstatement proceedings could still provide administrative relief. The Court also found that the case was not ripe for review. We disagree with the District Court's conclusion as to both grounds and will therefore vacate the order dismissing these claims and remand for further proceedings.

I. BACKGROUND

A.

The F-1 Visa Program

"Nonimmigrant students," such as the plaintiffs, may lawfully obtain an F-1 visa and reside in the United States while enrolled at Government-approved schools.7 Immigration and Customs Enforcement administers the F-1 visa system, which governs nonimmigrant students' legal status, through its Student and Exchange Visitor Program ("SEVP"). Each school that educates F-1 students has a Designated School Official ("DSO") who monitors, advises, and oversees the students attending his or her institution.[8]When ICE determines that a school's participation in the SEVP should be withdrawn, it provides notice to the school and an opportunity for it to contest the intended termination.9

Students who enter the United States with F-1 visas are subject to an array of regulations.10 These include maintaining a full course of study11 or participating in an authorized "practical training" role following the completion of studies.12There are two types of practical training programs.13 Curricular Practical Training ("CPT") is any "alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school" that is an "integral part of an established curriculum."14 The other is Optional Practical Training ("OPT") which consists of temporary employment that is "directly related to the student's major area of study."15

Once a student has completed his or her course of study and any accompanying practical training, he or she has sixty days to either depart the United States or transfer to another accredited academic institution and seek a transfer of the F-1 visa.16 If a student voluntarily withdraws from the F-1 program, he or she has fifteen days to leave the United States.17A student who "fails to maintain a full course of study without the approval of the DSO or otherwise fails to maintain status" must depart the United States immediately or seek reinstatement.18

Under the reinstatement regulations, a district director in the U.S. Citizenship and Immigration Services ("USCIS") "may consider" reinstating a student who demonstrates that he or she: 1) "has not been out of [valid F-1] status for more than 5 months at the time of filing the request for reinstatement" or that "the failure to file within the 5 month period was the result of exceptional circumstances and that the student filed the request for reinstatement as promptly as possible under these exceptional circumstances;" 2) does "not have a record of repeated or willful violations of Service regulations"; 3) is pursuing or intends to pursue a full course of study; 4) has not engaged in unauthorized employment; 5) is not deportable on any ground other than 8 U.S.C. § 1227(a)(1)(B) and (C)(i);[19]and 6) can prove that the violation of status resulted from circumstances beyond the student's control, or that the violation relates to a reduction in the student's course load that would have otherwise been permitted if authorized by the school and that failure to approve reinstatement would result in extreme hardship to the student.[20] The USCIS's decision to reinstate is discretionary. If the USCIS "does not reinstate the student, the student may not appeal that decision."21

Separately, the Code of Federal Regulations permits termination of a student's F-1 visa status in three ways: 1) by revoking a waiver that the Attorney General had previously authorized under § 212(d)(3) or (4) of the Immigration and Nationality Act; 2) "by the introduction of a private bill to confer permanent resident status," or 3) "pursuant to notification in the Federal Register, on the basis of national security, diplomatic, or public safety reasons."22 Purported "fraudulent enrollment" in an institution is not a statutorily authorized reason for terminating a student's F-1 visa status.23

B.

The "University of Northern New Jersey"

In 2013, ICE created the University of Northern New Jersey and situated it in Cranford, New Jersey.24 ICE's goal was to target academic recruiters and brokers who charged foreign students a fee to place them into universities that did not actually offer the course of study or authorized practical training required to satisfy the F-1 visa requirements. As is apparent from what we said at the outset, for all outward appearances, UNNJ looked like a real university. It was accredited by the State of New Jersey. DHS listed UNNJ on its website of approved institutions. UNNJ maintained a detailed website and active social media accounts. The website outlined admissions criteria, explained the academic programs that the school offered (including seven undergraduate majors and nine graduate programs), and assured students that various support systems including tutoring sessions and advisory services were available.25

By the time UNNJ "closed" in April of 2016, DHS's sting operation yielded twenty-two arrests relating to the brokerage of fraudulent visas. At that same time, more than 500 students had ostensibly "enrolled" in UNNJ. The closure of the university prompted DHS to inform...

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