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Zhu v. Department of Homeland Security

United States District Court, W.D. Washington, Seattle

September 9, 2019

XILONG ZHU, Plaintiff,


          Honorable Richard A. Jones United States District Judge


         Before the Court is Defendants' motion to dismiss. Dkt. # 16. For the reasons below, the Court GRANTS the motion.


         Plaintiff is a Chinese citizen who enlisted in the United States Armed Forces through the Military Accessions Vital to the National Interest (“MAVNI”) program. Dkt. # 10, ¶¶ 1, 19. In general, enlistees in the United States Armed Forces must be either United States citizens or lawful permanent residents. 10 U.S.C. § 504(b); Dkt. # 10, ¶ 19. The MAVNI program permits non-citizens who are not permanent residents, but who were lawfully present in the United States, to enlist if they had critical foreign language skills or specialized medical training. Id., ¶ 21. In his enlistment application, Plaintiff affirmed that he was lawfully present on an F-1 foreign student visa based on his enrollment in the University of Northern New Jersey (“UNNJ”). Dkt. # 10, ¶ 138. UNNJ had enrolled Plaintiff in its Curricular Practical Training (CPT) program and authorized Plaintiff's fulltime work for Apple, Inc. as a “full course of study as defined by 8 CFR 214.2(f)(6).” Id., ¶ 133.

         Plaintiff claims that the Department of Defense and the Department of Homeland Security promised MAVNI recruits United States citizenship in return for their service in the Armed Forces. Id., ¶ 22. After enlisting, Plaintiff applied for naturalization on or about March 29, 2016. Id., ¶ 141. In a written decision dated August 16, 2018, USCIS denied Plaintiff's application. Id., ¶ 162. Plaintiff alleges that USCIS denied his N-400 petition on the grounds that he is not of good moral character because he knowingly misrepresented that he was in valid F-1 status based on his enrollment at UNNJ to gain enlistment into the U.S. Army and later apply for naturalization. Id., ¶163.

         Plaintiff alleges that, unbeknownst to him, U.S. Immigration and Customs Enforcement (“ICE”) created the University of Northern New Jersey. Id., ¶ 59. ICE's goal was to target academic recruiters and brokers who charged foreign students a fee to place them into universities that did not actually offer the course of study or authorized practical training required to satisfy the F-1 visa requirements. Id., ¶ 60. Plaintiff alleges that UNNJ looked like a real university in the sense that it was accredited by the State of New Jersey and DHS listed UNNJ on its website of approved institutions. Id., ¶¶ 80-81. UNNJ maintained a detailed website and active social media accounts. Id., ¶¶ 84-89. According to its website, UNNJ “sought to better educate students by focusing on real world employment knowledge and skills that parallel traditional academia at an affordable cost.” Id., ¶ 84.

         In his Amended Complaint before this Court, Plaintiff brings six causes of action: estoppel, entrapment by estoppel, entrapment, wrongful failure to naturalize, lack of due process, and breach of contract. Defendants U.S. Department of Homeland Security; U.S. Citizenship & Immigration Services (“USCIS”); U.S. Immigration and Customs Enforcement (“ICE”); Kirstjen Nielsen, in her official capacity; L. Francis Cissna, in his official capacity; Anne Arries Corsano, in her official capacity; Ronald D. Vitiello, in his official capacity; and Cynthia Munita, in her official capacity (collectively, “Defendants”) move to dismiss. Dkt. # 16.


         A. FRCP 12(b)(1)

         Federal courts are tribunals of limited jurisdiction and may only hear cases authorized by the Constitution or a statutory grant. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The burden of establishing subject-matter jurisdiction rests upon the party seeking to invoke federal jurisdiction. Id. Once it is determined that a federal court lacks subject-matter jurisdiction, the court has no choice but to dismiss the suit. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

         A party may bring a factual challenge to subject-matter jurisdiction, and in such cases the court may consider materials beyond the complaint. PW Arms, Inc. v. United States, 186 F.Supp.3d 1137, 1142 (W.D. Wash. 2016) (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003); see also McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (“Moreover, when considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.”).

         B. FRCP 12(b)(6)

         Rule 12(b)(6) requires the court to assume the truth of the complaint's factual allegations and credit all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The plaintiff must point to factual allegations that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts consistent with the allegations in the complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”). The court typically cannot consider evidence beyond the four corners of the complaint, although it may rely on a document to which the complaint refers if the ...

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