Fang et al v. Saldana et al

Filing 50

OPINION. Signed by Chief Judge Jose L. Linares on 10/2/17. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JIE FANG, et a!..
Plaintiff,
Civil Action No.: 17-2092 (JLL)
V.

OPINION

THOMAS D. ROMAN, et al.,
Defendants.

LINARES, Chief District Judge.
This matter comes before the Court by way of Defendants’ Thomas D. Roman (Acting
Director of U.S. Immigration and Customs Enforcement), John F. Kelly (U.S. Secretary of
Homeland Security), and James McCarnent (Acting Director of U.S. Citizenship and Immigration
Services) (collectively “Defendants”) motion to dismiss Plaintiffs First Amended Complaint
(“FAC”) pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure.

(ECF No. 32).

Plaintiffs have submitted opposition to Defendants’ motion, (ECF No. 44), and Defendants
submitted a reply brief, (ECF No. 48). The Court has considered the parties’ submissions and
decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil
Procedure. For the reasons set forth below, the Court grants the Motion to Dismiss and dismisses
Plaintiffs Complaint without prejudice.
BACKGROUND’

This background is derived from Plaintiffs’ Complaint, which the Court must accept as true at this stage of the
proceedings. SeeAlston v. Countiywide fin. Corp., 585 F.3d 753, 758 (3d Cir. 2009).

allow them to fttrther their education in the U.S and obtain lawful work-study employment. (ECF
No. $ (“FAC”) ¶j 2—4). To enroll in UNNJ, Plaintiffs went through academic brokers. (FAC ¶j
3—4).

Unbeknownst to Plaintiffs, UNNJ was a fake university created by Immigration and

Customs Enforcement (“ICE”) as part of a sting operation to investigate and prosecute academic
brokers who ICE believed were committing visa fraud. (FAC

¶J

5). ICE took extensive steps to

make UNNJ appear legitimate, including a website, social media activity, and staffing it with an
active President, “Dr. Steven Brunetti, Ph.D.” (FAC

¶ 6).

ICE shut down UNNJ in April 2016,

arrested twenty one academic brokers, and then began terminating the student status of Plaintiffs
and all other foreign students who had enrolled at UNNJ for their “fraudulent enrollment.” (FAC

¶ 8).

In fact, at no point before ICE teniiinated their student status, did Plaintiffs know that UNNJ

was not a legitimate school, as they were repeatedly assured by both UNNJ and their agents that
the university was legitimate. (FAC

¶ 9).

Based on ICE’s fraud determination, each of the five plaintiffs have had their visas
terminated and have pending applications for reinstatement.

(FAC

¶

51, 56, 62, 66, 70).

Following these events, Plaintiffs filed suit against Defendants in this Court alleging four related
claims: (1) a “blanket” finding of fraudulent enrollment was made without affording Plaintiffs
procedural due process; (ii) the “blanket” fraud finding was “arbitrary and capricious” under the
Administrative Procedures Act (“APA”); (iii) the termination of Plaintiffs’ F-i status was arbitrary
and capricious under the APA; and (iv) Defendants should be estopped from relying on Plaintiffs’
enrollment in UNNJ as a basis for finding that they committed fraud or denial of their immigrant

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Plaintiffs initially brought this action on November 18, 2016. (See ECF No. 1 (“Compi.”)). Subsequently. Plaintiffs
amended the complaint on December 9, 2016. (See FAC). Therefore, the relevant pleadings for this case will be
taken from FAC.

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benefits. (FAC

¶J

83—86 (Count I); 87—89 (Count II); 90—93 (Count III); 94—97 (Count IV)).

Plaintiffs now seek injunctive and declarative relief. (See FAC at 27 (“relief requested”)).
LEGAL STANDARD
Under Rule 1 2(b)( 1) of the Federal Rules of Civil Procedure, a Defendant may move to
dismiss a complaint for lack of subject-rnatterjurisdiction. fed. R. Civ. P. 12(b)(l). The Plaintiff,
as the party asserting jurisdiction, bears the burden to establish the federal court’s authority to hear
the matter. Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). However,
depending on the nature of the attack under Fed. R. Civ. P. 12(b)(1), which may either assert a
factual or facial challenge to the court’s jurisdiction, a presumption of truthfulness may attach to
the plaintiffs allegations. See Taliaferro

V.

Darby Thp. Zoning 3d., 458 F. 3d 181, 188 (3d Cir.

2006); Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Turicentro, S.A.
v. American Airlines, Inc., 303 F. 3d 293, 300 n. 4 (3d Cir. 2002). When a defendant facially
attacks the Court’s jurisdiction under Rule 12(b)(1), this type of challenge contests the adequacy
of the language used in the pleading; the trial court must therefore construe the pleadings in a light
most favorable to the plaintiff and presume all well-pleaded factual allegations in the complaint as
true. Turicentro, 303 F. 3d 293, 300 n. 4; Gould, 2201 F.3d at 176. Alternatively, when bringing

a factual attack, the defendant contends that the facts on which the plaintiffs allegations rely are
not true.

Id.

Therefore, the plaintiffs allegations do not benefit from a presumption of

truthfulness. The court, instead, must weigh the evidence in its discretion by taking into account
affidavits, documents, and even limited evidentiary hearings. Id.
ANALYSIS
Plaintiffs purport to assert a variety of claims throughout the F AC. Construing the FAC in
a light most favorable to Plaintiffs. the Court understands that Plaintiffs’ causes of action arise out

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of ICE terminating their student status and deeming their enrollment is fraudulent. However, these
claims turn on whether ICE’s detennination qualified as a “final agency action” and whether this
case is ripe for review. Below, the Court addresses these issues and dismisses the FAC without
prejudice.
A. Final Agency Action

This Court finds that Plaintiffs have not alleged a final agency action because their
applications for reinstatement are still pending. The APA outlines the power and scope ofjudicial
review over administrative regulations promulgated by agencies of the United States. 5 U.S.C.

§

701 et seq. Significantly, the APA provides that only “final agency action[s] or “action[s] made
reviewable by statute are subject to judicial review. Id. at

§ 704. Unless a statute provides that an

agency action is directly reviewable in federal court, a plaintiff seeking relief for an agency action
must first exhaust all available administrative remedies. See 5 U.S.C.

§ 704; see also Myers

v.

Bethlehem Corp., 303 U.S. 41, 50—51 (193$) (noting the “long-settled rule of judicial
administration that no one is entitled to judicial relief for a supposed threat or injury until the
prescribed administrative remedy has been exhausted.”). Additionally, and relevant here, an initial
administrative action that begins an investigation or other administrative proceeding is not a “final
agency action.” See FTC v. Standard Oil Co. ofCat., 449 U.S. 232, 239 (1980); Hindes v. F.D.I. C.,
137 F.3d 148, 154 (3d Cir. 199$).
Plaintiffs argue that ICE’s decision to terminate their student status for the nonexistent
UNNJ is a final agency action. (ECF No. 32 at 14). However, the initial decision of terminating
Plaintiffs’ visas cannot be seen as “final” given that ICE is currently in the process of deciding if
Plaintiffs are entitled to reinstatement of their visas. The reinstatement application makes ICE’s
initial determination more akin to the beginning of an administrative proceeding than enacting a

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final action. (ECF No. 32 at 16). Any decisions by this court regarding the fraudulent enrollment
would inherently interfere with the ICE process. Thus, as of now, there is no final administrative

action for Plaintiff to assert any of their claims against.
B. Ripeness

Additionally, Plaintiffs’ claims are not ripe for review. The ripeness doctrine “serves to
determine whether a party has brought an action prematurely and counsel’s abstention until such
time as a dispute is sufficiently concrete to satisfy the constitutional and pntdential requirements
of the doctrine.” Khodara Envtt., Inc. v. Blakev, 376 F.3d 187, 196 (3d Cir.2004) (quoting
Feachiurn v. City of York, 333 f.3d 429, 433 (3d Cir.2003)). By abstaining from deciding a case
until it is ripe, a court ensures that it will decide only “a real and substantial controversy admitting
of specific relief through a decree of a conclusive character.” Surrick v. Ku/ion, 449 F.3d 520, 527
(3d Cir.2006). To determine whether a case is ripe, courts “generally examine: ‘(1) the fitness of
the issues for judicial decision, and (2) the hardship to the parties of withholding court
consideration.” Khodara Envtl., Inc.

i’.

Blakev, 376 F.3d 187, 196 (3d Cir.2004) (quoting

Feachium, 333 F.3d at 434).
The case before the Court is not fit for judicial review because Plaintiffs are seeking the
same determination

—

whether their enrollments were fraudulent

—

that they are already seeking

from their pending applications. Moreover, since ICE proceedings are ongoing, the record before
this Court is incomplete, and this Court must wait for the agency’s determination. Furthermore,
as Defendant correctly points out, immediate hardship cannot be shown because the administrative
proceeding will likely be resolved in the coming months without any action needed from this
Court. (ECF No. 32 at 22). Therefore, Plaintiffs’ claims also fail on ripeness grounds.

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proceeding will likely be resolved in the coming months without any action needed from this
Court. (ECF No. 32 at 22). Therefore, Plaintiffs’ claims also fail on ripeness grounds.

CONCLUSIONS
for the reasons above, the Court grants Defendants’ Motion to Dismiss without
prejudice. An appropriate Order accompanies this Opinion.

Judge, United States District Court

Date: October

2017

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