Herguan Univ. v. Enforcement, Case No. 16-CV-06656-LHK.
| Citation | 258 F.Supp.3d 1050 |
| Decision Date | 28 June 2017 |
| Docket Number | Case No. 16-CV-06656-LHK. |
| Parties | HERGUAN UNIVERSITY, Plaintiff, v. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Matthew Ellsworth Roston, Beverly Hills, CA, for Plaintiff.
James A. Scharf, Office of the United States Attorney, San Jose, CA, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE
Re: Dkt. No. 39
Plaintiff Herguan University ("Plaintiff") brings the instant suit against Defendants Immigration and Customs Enforcement ("ICE") and Student and Exchange Visitor Program (the "Exchange Program" or "SEVP") (collectively, "Defendants"). Before the Court is Defendants' Motion to Dismiss. ECF No. 39 ("Mot."). Having considered the parties' briefing, the relevant law, and the record in this case, the Court GRANTS Defendants' Motion to Dismiss with prejudice.
This case involves an Administrative Procedure Act ("APA") challenge to the Exchange Program's decision to withdraw Plaintiff's certification to enroll foreign nonimmigrant students. The APA claim specifically challenges the Exchange Program's Appeals Team's ("Appeals Team's") September 1, 2016 decision to affirm the Exchange Program's withdrawal of certification. ECF No. 1–1 ("Appeals Team Decision"). Plaintiff also seeks a declaratory judgment that the Exchange Program's decision was wrong. Finally, Plaintiff asserts that Defendants committed an equal protection violation. The facts set forth below are found in the administrative record, Plaintiff's complaint, and documents from related federal cases.
Plaintiff is a private university that enrolls foreign nonimmigrant students on student visas. ECF No. 38, First Amended Complaint ("FAC") ¶ 23. In order to enroll foreign nonimmigrant students, a university must be certified to do so by the Exchange Program. 8 C.F.R. § 214.3(a). To obtain certification, a university must apply by submitting Form I–17 to the Exchange Program, which is entitled "Petition for Approval of School for Attendance by Nonimmigrant Students." Id. The Exchange Program will certify a school to enroll foreign nonimmigrant students if the school shows that it is a "bona fide school," it "possesses the necessary facilities, personnel, and finances to conduct instruction in recognized courses," and "is, in fact, engaged in instruction in those courses." Id. § 214.3(a)(3)(i). The certification is provided for a school's particular degree program, not necessarily for every course and degree program at a school. Id.
As part of the I–17 application, the university assigns a person to be the Principal Designated School Official ("Principal Designated Official"), who serves as the main point of contact with the Exchange Program and carries out responsibilities related to the Exchange Program. Id. The school can also appoint other Designated School Officials ("Designated Officials") to carry out other Exchange Program related activities. The Designated Officials have access to, and maintain records in, the Student and Exchange Visitor Information System ("SEVIS"). Designated Official access to SEVIS is necessary to continue admitting foreign nonimmigrant students and to ensure that students maintain their visa status. Designated Officials are in charge of issuing Form I–20, the form students need to obtain or update their F–1 or M–1 student visas.
A school that has obtained certification to issue Form I–20 can lose that certification in a number of ways. First, a university must apply for recertification every two years and that recertification can be denied for a number of reasons set forth in 8 C.F.R. § 214.4(a)(2). Second, if the Exchange Program obtains information that a school is no longer eligible for certification because of one of the reasons set forth in § 214.4(a)(2), the Exchange Program may initiate an "out-of-cycle" review. To withdraw certification after such an out-of-cycle review, the Exchange Program must first provide the school a Notice of Intent to Withdraw Certification at least 30 days before withdrawal and an opportunity to challenge the bases for withdrawal. Id. § 214.4(b). The Exchange Program may then withdraw the school's certification. Id.
On February 14, 2008, the Exchange Program certified Plaintiff to issue Form I–20 for F–1 visas for foreign nonimmigrant students for a degree program in Chinese Medicine. FAC ¶ 4. Plaintiff's owner and president is named Ying Wang. Appeals Team Decision at 2. Ying Wang appointed his son, Jerry Wang, to serve as the Principal Designated Official. FAC ¶ 8. Jerry Wang was also the Chief Executive Officer ("CEO") of Plaintiff. Id. No other Designated Official was appointed. Id.
On November 17, 2010, the Exchange Program conducted a site visit and began an investigation as to whether Plaintiff was complying with Exchange Program regulations. Id. ¶ 5.1 The Exchange Program made multiple requests for evidence to Plaintiff over the following year as part of its investigation. Id. ¶ 6–8.
On July 24, 2012, a federal grand jury returned an indictment against Jerry Wang, Plaintiff's Principal Designated Official, for (1) conspiracy to commit visa fraud in violation of 18 U.S.C. § 371, (2) four counts of visa fraud in violation of 18 U.S.C. § 1546, (3) unauthorized access to a government computer in violation of 18 U.S.C. § 1030, (4) seven counts of use of a false document in violation of 18 U.S.C. § 1001, and (5) two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. See United States v. Wang , N.D. Cal. Case No. 12–CR–00581–EJD ("Criminal Case") ECF No. 1.
On August 2, 2012, the Exchange Program issued Plaintiff a Notice of Intent to Withdraw Certification ("2012 Notice"). FAC ¶ 8. On the same day, Jerry Wang was removed as the Principal Designated Official, his access to the SEVIS system was revoked, and he was arrested on the above-mentioned criminal charges. Id. ; see also Criminal Case ECF No. 3 (initial appearance on August 2, 2012).
On August 20, 2012, Jerry Wang and Plaintiff filed an ex parte application for a temporary restraining order ("TRO"). See Herguan Univ. v. Immigration & Customs Enf't , N.D. Cal. Case No. 12–CV–04364–EJD ("Herguan I ") ECF No.1. The application for a TRO sought to reinstate access to SEVIS "until the criminal proceedings [against Jerry Wang] ha[d] been completed." Id. ECF No. 9 ("Order Denying Herguan I TRO") at 2. The Herguan I court denied Jerry Wang and Plaintiff's application for a TRO because Jerry Wang and Plaintiff had failed to file a complaint with their application for a TRO. Id. The failure to file a complaint with an application for a TRO violated the Civil Local Rules and also precluded a finding of subject matter jurisdiction because there were no asserted claims or an amount in controversy that satisfied the requirements of federal question or diversity jurisdiction. Id.
On August 22, 2012, Jerry Wang and Plaintiff filed a second ex parte application for a TRO. Herguan Univ v. Immigration & Customs Enf't , N.D. Cal. Case No. 12–CV–4403–PSG ("Herguan II ") ECF No. 1. The same day, Magistrate Judge Paul Grewal denied the application for a TRO because "Plaintiffs have not established that they are likely to succeed on the claim that Defendants have violated rights redressible under the Administrative Procedure Act by terminating Wang's SEVIS ID and password prior to withdrawal of the University's I–17 certification." Id. ECF No. 8 ("Order Denying Herguan II TRO").
The FAC alleges that on September 18, 2012, the Exchange Program withdrew Plaintiff's certification, but that the Exchange Program "rescinded its withdrawal" in October 2012. FAC ¶¶ 9–10.
For the next two-and-a-half years, the Exchange Program allowed Plaintiff to continue issuing I–20 forms for F–1 nonimmigrant student visas for its Chinese Medicine degree program, but did not allow Plaintiff to add any new programs for which student visas could be issued. Id. ¶ 11. The Appeals Team indicates that the delay occurred because of the criminal proceedings pending against Jerry Wang. Appeals Team Decision at 4 (). On March 31, 2015, the Exchange Program withdrew Plaintiff's certification based on the factual bases described in the 2012 Notice. Id. ¶ 12.
On April 9, 2015, Jerry Wang agreed "to plead guilty to Count Twelve of the captioned Superseding Indictment charging [him] with using a false document, in violation of 18 U.S.C. § 1001(a)(3)." Criminal Case ECF No. 168 ("Plea Agmt.") ¶ 1.
Jerry Wang's plea agreement provided the following factual basis:
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