Herguan University et al v. Immigration and Customs Enforcement (ICE) et al
Filing
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ORDER DEMYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER by Judge Paul S. Grewal denying 2 Motion for TRO; denying 2 Ex Parte Application (psglc1, COURT STAFF) (Filed on 8/22/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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HERGUAN UNIVERSITY, ET AL.,
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Plaintiffs,
v.
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IMMIGRATION AND CUSTOMS
ENFORCEMENT (ICE), ET AL.,
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Defendants.
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Case No.: C 12-04403 PSG
ORDER DENYING PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER
(Re: Docket No. 1)
Plaintiffs Herguan University (the “University”) and Jerry Yun Fei Wang (“Wang”)
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(collectively, “Plaintiffs”) move for a temporary restraining order. Defendants Immigration and
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Customs Enforcement (“ICE”) and Student and Exchange Visitor Program (“SEVP”) (collectively,
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“Defendants”) oppose the motion. Earlier this afternoon, the parties appeared for hearing. 1 Having
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reviewed the papers and considered the arguments of counsel,
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IT IS HEREBY ORDERED that Plaintiffs’ motion for TRO is DENIED.
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In a predecessor case, Judge Davila clearly articulated the legal standards applicable to a
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TRO motion, 2 and the court will not repeat them here. Nor will the court repeat the background
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provided by Judge Davila in his order. Turning to the merits of the pending motion in this case, at
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Pursuant to 28 U.S.C. §636(c)(1), the parties have consented to magistrate judge jurisdiction. See
Docket Nos. 4 and 7.
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See Herguan University, et al. v. Immigration and Customs Enforcement, et al., Case No. C 1204364 EJD, Docket No. 9.
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Case No.: C 12-04403 PSG
ORDER
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this preliminary stage of the case, and on the very limited record assembled to date, the court is not
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persuaded that any TRO is warranted. Plaintiffs have not established that they are likely to succeed
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on the claim that Defendants have violated rights redressible under the Administrative Procedure
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Act by terminating Wang's SEVIS ID and password prior to withdrawal of the University's I-17
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certification. Even if this termination were a “final agency action,” 3 the regulation at issue gives
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the government discretion to terminate access on the date it sees fit. 4 While this discretion may not
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be exercised arbitrarily, unconstitutionally or otherwise in violation of the APA, 5 Plaintiffs have
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not yet shown any evidence suggesting this was the case. Wang is under federal indictment based
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on activities squarely implicated by SEVIS, and the University is at the heart of the charges for
United States District Court
For the Northern District of California
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which the grand jury and the court have found probable cause. The same is true regarding
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Plaintiffs’ claim challenging the 30-day response period to the government’s Notice of Intent to
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Withdraw. Nor have Plaintiffs established any likelihood of success on their mandamus claim. This
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writ applies only to ministerial actions, and the discretion plainly provided by regulation renders
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the writ inapplicable. 6 As for Plaintiffs’ claim under the Declaratory Judgment Act, “the
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Declaratory Judgment Act does not itself confer federal subject-matter jurisdiction.” 7 Under these
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circumstances, the court cannot say that the degree of irreparable harm Plaintiffs may suffer is so
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great that it compensates on the Ninth Circuit’s “sliding scale” standard. 8
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See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61-62 (2004) (quoting 5 U.S.C. §704).
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See 8 C.F.R. 214.4(i)(2) (“In most situations, SEVP will not determine a SEVIS access
termination date for that school until the appeals process has concluded and the initial denial or
withdrawal has been upheld unless a school whose certification is withdrawn or whose
recertification is denied is suspected of criminal activity or poses a potential national security
threat.”).
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See 5 U.S.C. §706.
See Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998) (“Mandamus is an extraordinary remedy and
is available to compel a federal official to perform a duty only if: (1) the individual’s claim is clear
and certain; (2) the official’s duty is nondiscretionary, ministerial, and so plainly prescribed as to
be free from doubt, and (3) no other adequate remedy is available.”).
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See, e.g., Nationwide Mutual Insurance Company v. Liberatore, 408 F.3d 1158, 1161 (9th Cir.
2005).
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See Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
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Case No.: C 12-04403 PSG
ORDER
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IT IS FURTHER ORDERED that the parties shall meet and confer on a briefing and
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hearing schedule on any preliminary injunction motion Plaintiffs intend to file and any discovery
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that might need to be taken. If an agreement on these matters cannot be reached, the parties shall
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submit a single, joint filing outlining their respective proposals.
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IT IS SO ORDERED.
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Dated: 8/22/2012
_________________________________
PAUL S. GREWAL
United States Magistrate Judge
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United States District Court
For the Northern District of California
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Case No.: C 12-04403 PSG
ORDER
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