Herguan University et al v. Immigration and Customs Enforcement (ICE) et al

Filing 17

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION re 14 Letter filed by Herguan University. Signed by Judge Paul S. Grewal on August 28, 2012. (psglc1, COURT STAFF) (Filed on 8/28/2012)

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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 RECONSIDERATION
(Re: Docket No. 14)

After the court issued an order on August 22, 2012 denying Plaintiffs Herguan University

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(the “University”) and Jerry Yun Fei Wang’s (“Wang”) (collectively, “Plaintiffs”) motion for a

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temporary restraining order, 1 they requested and were granted leave to file a motion for

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reconsideration. 2 Defendants Immigration and Customs Enforcement (“ICE”) and Student

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Exchange Visitor Program (“SEVP”) (collectively, “Defendants”) oppose the motion. Pursuant to

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Civ. L.R. 7-1(b), the motion is taken under submission without oral argument. Having reviewed the

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papers and considered the additional arguments of counsel,

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IT IS HEREBY ORDERED that Plaintiffs’ motion for reconsideration is DENIED.

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In the August 22 order, the court found that Plaintiffs had not established that they are

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likely to succeed on their claim that Defendants have violated rights redressible under the

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See Docket No. 11.

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See Docket No. 13.
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Case No.: C 12-4403 PSG
ORDER

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Administrative Procedures Act (“APA”) by terminating Wang’s SEVIS ID and password prior to

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withdrawal of the University’s 1-17 certification because even if the termination was a “final

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agency action,” the regulation at issue provides the government discretion to terminate access as it

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sees fit. Plaintiffs contend that Congress has not provided ICE and SEVP with such discretionary

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power, and that even if it did (1) the court has jurisdiction to review termination under the APA

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because the regulations provide for a meaningful standard of review; and (2) until the I-17

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certification is withdrawn, ICE and SEVP cannot exercise any discretionary power. Plaintiffs also

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contend that Defendants’ failure to accept their DSO designates falls under the purview of a

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mandamus action because more than 15 months have elapsed since the request was made, and no

United States District Court
For the Northern District of California

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response has been given.

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Defendants respond that Plaintiffs have conflated the regulation, 8 C.F.R. §214.3(1)(2), that

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grants SEVP discretion to withdraw a school’s prior DSO designation with the regulation, 8 C.F.R.

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§214.4(i)(2), that governs the process when SEVP certification is withdrawn or relinquished.

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Because the Notice of Intent to Withdraw (“NOIW”) was just issued on August 2, 2012, and the

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University’s response is not due until September 4, 2012, Defendants reiterate that SEVP has not

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issued a final decision, yet ripe for review. Defendants also respond that Plaintiffs have cited no

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legal authority granting the court power to order SEVP to respond within a certain timeframe. And

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Defendants note that Plaintiffs have made no mention of their claim under the Declaratory

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Judgment Act. Defendants therefore conclude that Plaintiffs are unable to meet any of the

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requirements for securing reconsideration of the August 22 order.

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The court agrees with Defendants. The additional briefing does not establish any more of a

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likelihood of success by Plaintiffs under the APA or on their mandamus claim than the underlying

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motion for a temporary restraining order did. While Plaintiffs may be correct that the government’s

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discretion under 8 C.F.R. § 214.4(i)(2) is not applicable until after withdrawal of the I-17 is

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complete, they do not address the discretion afforded to the government elsewhere – e.g., 8 C.F.R.

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§ 214.3(e)(2) – or establish that such discretion was exercised unlawfully. The fact remains that the

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University and its SEVIS activities are squarely implicated in an indictment essentially alleging

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fraud on a substantial scale.
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Case No.: C 12-4403 PSG
ORDER

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The court reiterates its invitation for the parties to meet and confer on a briefing and hearing

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schedule on any preliminary injunction motion Plaintiffs intend to file and any discovery that might

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need to be taken. If an agreement on these matters cannot be reached, the parties shall submit a

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single, joint filing outlining their respective proposals.

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IT IS SO ORDERED.

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Dated:

_________________________________
PAUL S. GREWAL
United States Magistrate Judge

8/28/2012

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United States District Court
For the Northern District of California

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Case No.: C 12-4403 PSG
ORDER