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
(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APA 6 because the regulations provide for a meaningful standard of review; and (2) until the I-17 7 certification is withdrawn, ICE and SEVP cannot exercise any discretionary power.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§214.4(i)(2), that governs the process when SEVP certification is withdrawn or relinquished. 14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 ...