University of Northern New Jersey website.

A federal appeals court has reversed the dismissal of a class action lawsuit brought on behalf of individuals caught up in a sting operation that used a phony university called the University of Northern New Jersey.

The U.S. Court of Appeals for the Third Circuit reversed a U.S. District Court ruling dismissing a class action suit filed on behalf of students whose visas were revoked because they claimed to be enrolled in the nonexistent university. The appeals court rejected the trial judge’s findings that the case was not ripe for review and that there had been no final decision by the government.

The suit is brought on behalf of individuals whose student visas were revoked based on claims of enrollment in the nonexistent university.

The phony school was created by Immigration and Customs Enforcement in 2013 as a means to catch brokers of fraudulent student visas. It had a website and a social media presence and was led by a fictitious president named Steven Brunetti, who had his own LinkedIn page. Operating from rented office space in Cranford, the school had a Latin motto, “Humanus, Scientia, Integritas.” It sent out notices that classes were cancelled when weather was inclement, but there were no classes.

Federal officials announced the arrests of 21 people in 2016 who allegedly brokered visas for international students to attend UNNJ. The students were told their visas were terminated due to their fraudulent enrollment. The plaintiffs, five students, filed a class action claiming violations of the Administrative Procedures Act and violation of their due process rights and said the government should be estopped from revoking their visas.

But the government changed its story on whether the students who paid the brokers for visas were culpable, the appeals court said. The government indicated at oral argument before the Third Circuit in September 2018 that the plaintiffs did not commit fraud by enrolling in UNNJ, but rather were victims of fraud. But In October 2018 it submitted a letter to the court stating that it did not consider the plaintiffs innocent victims. Rather, the government asserted, all or most UNNJ enrollees knew that their academic recruiters committed visa fraud and some had conspired with the recruiters.

The suit names as defendants the director of U.S. Immigration and Customs Enforcement, the secretary of the U.S. Department of Homeland Security, and the director of U.S. Citizenship and Immigration Services.

Former Chief U.S. District Judge Jose Linares of the District of New Jersey dismissed the suit in October 2017. He said the plaintiffs failed to allege a final agency action because their applications for reinstatement were still pending. Linares also said the case was not ripe for judicial review because plaintiffs sought the same determination—whether their enrollments were fraudulent—that they requested in their pending applications.

Judges Theodore McKee, L. Felipe Restrepo and Julio Fuentes ruled that reinstatement proceedings are not required by statute or regulation and do not afford the students an opportunity for review of the termination of their visas. Therefore, reinstatement proceedings are not a prerequisite to finality for the purposes of subject matter jurisdiction under the Administrative Procedures Act. In addition, the appeals court judges rejected the government’s position that the case was not ripe for review. McKee, writing for the court, noted that the parties are sufficiently adversarial, since the students have had their lawful status terminated and a notation of fraud placed on their records. The government’s shifting position on whether the students are victims of fraud or themselves participants in the fraud could give the court pause, McKee wrote. But it would be a “cruel irony” if the government’s “flip flop” on that issue to deprive the appeals court of the ability to review the government’s action, McKee said.

“Rather than allow the government’s change in position to inure to the government’s own benefit, we believe the flip-flop underscores the need for judicial review of a decision that would otherwise escape review by any court or agency,” the appeals court said.

Three of the named plaintiffs—Shaofu Li, Hirenkumar Patel and Kaushalkumar Patel—had their applications for reinstatement of their visas denied by U.S. Citizenship and Immigration Services based on their enrollment at UNNJ. An application for reinstatement by another plaintiff, Xiaoyu Zhang, is pending, and a fifth plaintiff, Shaofu Li, left the country voluntarily and has not yet applied for reinstatement.

Ira Kurzban of Kurzban Kurzban Tetzeli and Pratt in Coral Gables, Florida. represented  the plaintiffs at the Third Circuit. He said the court’s definition of what constitutes a final agency action would have broad impact on immigration cases of all types. Kurzban added the decision is also important because the court clearly takes a dim view of such “entrapment” actions that are combined with the view that all persons involved were committing fraud, as it did here. He noted the Northern New Jersey University action was followed by  the government’s creation of another fictitious school,  the University of Farmington in Michigan, for similar purposes.

“ICE wanted to entrap agents who they thought were acting improperly. In the process, they went way overboard and accused the students of committing fraud without ever investigating what the students knew,” Kurzban said.

The government was represented by Daniel Meyler of the U.S. Attorney’s Office in Newark and Joshua Press of the Department of Justice’s Office of Immigration Litigation in Washington. A spokesman for the U.S. Attorney’s Office, Matthew Reilly, declined to comment.