This is a guest post by David Goodwin.

Fang v. USCIS—immigration—vacating—McKee

Much as there is no North Orange, there is also no University of Northern New Jersey. Apparently, DHS created a fake university in order to catch brokers of fraudulent F1 student visas, but managed to ensnare plenty of actual students as well. The plaintiff students were informed by DHS, by letter, that their valid F-1 status had been terminated due to their “fraudulent enrollment” in the fake school. They sued, but the District Court dismissed under 12(b)(1), determining that there had been no final agency action and also that the case was not ripe.

Writing for the Court, and expressing a great deal of displeasure with what appears to have been the government’s shifting position on the students’ culpability, Judge McKee disagrees. Under the APA, the order terminating the visas was final, and thus subject to federal court challenge, because 1) “there is no statutory or regulatory requirement that a student seek reinstatement after his or her F-1 visa has been terminated” (or even a clear way to do so), and 2) removal proceedings at which the plaintiffs could challenge the visa revocation might not ever happen, and the plaintiffs could not actually raise such a challenge in removal proceedings. Judge McKee elevates the second part of this discussion to an independent holding: “We therefore hold that removal proceedings cannot serve as an opportunity to review the USCIS’s denial of reinstatement because neither immigration judges nor the BIA have jurisdiction to review those decisions.” With regard to ripeness, Judge McKee applies the Circuit’s ripeness test and concludes that all factors are satisfied.

(Judge McKee observes, in footnote 100, that the agency might not have had statutory authority to cancel the visas in the first place.)

Joining Judge McKee were Judge Restrepo and Judge Fuentes. The original District Judge was Judge Linares, who has since retired; I’m curious to see who picks this up on remand.

Ira Kurzban of Kurzban, Kurzban, Tetzeli and Pratt argued for the students. Joshua Press argued for the government.