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Herguan University, et al v. Immigration and

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


August 28, 2012

HERGUAN UNIVERSITY, ET AL.,
PLAINTIFFS,
v.
IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE), ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Paul S. Grewal United States Magistrate Judge

United States District Court For the Northern District of California

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION (Re: Docket No. 14)

After the court issued an order on August 22, 2012 denying Plaintiffs Herguan University (the "University") and Jerry Yun Fei Wang's ("Wang") (collectively, "Plaintiffs") motion for a 19 temporary restraining order,*fn1 they requested and were granted leave to file a motion for 20 reconsideration.*fn2 Defendants Immigration and Customs Enforcement ("ICE") and Student 21 Exchange Visitor Program ("SEVP") (collectively, "Defendants") oppose the motion. Pursuant to 22 Civ. L.R. 7-1(b), the motion is taken under submission without oral argument. Having reviewed the 23 papers and considered the additional arguments of counsel, 24

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

In the August 22 order, the court found that Plaintiffs had not established that they are 26 likely to succeed on their claim that Defendants have violated rights redressible under the 27

Administrative Procedures Act ("APA") by terminating Wang's SEVIS ID and password prior to 2 withdrawal of the University's 1-17 certification because even if the termination was a "final 3 agency action," the regulation at issue provides the government discretion to terminate access as it 4 sees fit. Plaintiffs contend that Congress has not provided ICE and SEVP with such discretionary 5 power, and that even if it did (1) the court has jurisdiction to review termination under the APA 6 because the regulations provide for a meaningful standard of review; and (2) until the I-17 7 certification is withdrawn, ICE and SEVP cannot exercise any discretionary power. Plaintiffs also 8 contend that Defendants' failure to accept their DSO designates falls under the purview of a 9 mandamus action because more than 15 months have elapsed since the request was made, and no 10 response has been given.

§214.4(i)(2), that governs the process when SEVP certification is withdrawn or relinquished. 14

University's response is not due until September 4, 2012, Defendants reiterate that SEVP has not 16 issued a final decision, yet ripe for review. Defendants also respond that Plaintiffs have cited no 17 legal authority granting the court power to order SEVP to respond within a certain timeframe. And 18

Judgment Act. Defendants therefore conclude that Plaintiffs are unable to meet any of the 20 requirements for securing reconsideration of the August 22 order. 21

22 likelihood of success by Plaintiffs under the APA or on their mandamus claim than the underlying 23 motion for a temporary restraining order did. While Plaintiffs may be correct that the government's 24 discretion under 8 C.F.R. § 214.4(i)(2) is not applicable until after withdrawal of the I-17 is 25 complete, they do not address the discretion afforded to the government elsewhere -- e.g., 8 C.F.R. 26

University and its SEVIS activities are squarely implicated in an indictment essentially alleging 28 fraud on a substantial scale.

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

grants SEVP discretion to withdraw a school's prior DSO designation with the regulation, 8 C.F.R. 13

Because the Notice of Intent to Withdraw ("NOIW") was just issued on August 2, 2012, and the 15

Defendants note that Plaintiffs have made no mention of their claim under the Declaratory 19

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

§ 214.3(e)(2) -- or establish that such discretion was exercised unlawfully. The fact remains that the 27

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

2 schedule on any preliminary injunction motion Plaintiffs intend to file and any discovery that might 3 need to be taken. If an agreement on these matters cannot be reached, the parties shall submit a 4 single, joint filing outlining their respective proposals. 5

IT IS SO ORDERED. 6


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