                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                       No. 17-3318
                      _____________

            JIE FANG; XIAOYU ZHANG;
        SHAOFU LI; KAUSHALKUMAR PATEL;
               HIRENKUMAR PATEL,
                           Appellants

                             v.

    DIRECTOR UNITED STATES IMMIGRATION &
           CUSTOMS ENFORCEMENT;
   SECRETARY UNITED STATES DEPARTMENT OF
             HOMELAND SECURITY;
    DIRECTOR UNITED STATES CITIZENSHIP AND
            IMMIGRATION SERVICES

        Appeal from the United States District Court
               for the District of New Jersey
                    (No. 2-17-cv-02092)
         District Judge: Honorable Jose L. Linares
                      _____________

                Argued September 25, 2018
                     ____________

   Before: McKEE, RESTREPO and FUENTES, Circuit
                      Judges.

             (Opinion Filed: August 15, 2019)

Ira J. Kurzban [Argued]
Kurzban, Kurzban, Tetzeli & Pratt
131 Madeira Avenue
Coral Gables, FL 33134

Thomas E. Moseley
One Gateway Center
Suite 2600
Newark, NJ 07102

Attorneys for Appellants

Daniel W. Meyler
Office of United States Attorney
970 Broad Street
Room 700
Newark NJ, 07102

Joshua S. Press [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20044

Attorneys for Appellees


                 OPINION OF THE COURT

McKee, Circuit Judge

       According to its website, the University of Northern
New Jersey “was founded in 2012 after several years of
witnessing the challenges inexperienced graduates face in a
diverse and global job market.”1 It was purportedly “nationally
accredited by the Accrediting Commission of Career Schools
and Colleges and the Commission on English Language
Accreditation” and “certified by the U.S. Department of
Homeland Security, Student and Exchange Visitor Program to
educate international students.”2 The site listed the President as
Dr. Steven Brunetti, Ph.D., and included a message from Dr.

1
  History of UNNJ, UNIVERSITY OF NORTHERN NEW JERSEY,
https://web.archive.org
/web/20160312141506/http://www.unnj.edu/history-of-unnj
(last visited July 19, 2019).
2
  Id.

                                2
Brunetti touting the school’s dedication “to providing a high-
quality American education to the domestic and international
academic community.”3 The school’s social media accounts
even informed students when UNNJ closed for inclement
weather and posted wedding pictures after two of the school’s
alumni were purportedly married.4

        But the University never existed. Neither did Dr.
Brunetti or the newlywed “alumni.” The Department of
Homeland Security created UNNJ as a “sham university” as
part of a scheme to catch brokers of fraudulent student visas.
The plan worked, in a manner of speaking. It did catch many
brokers of fraudulent student visas. It also ensnared hundreds
of foreign students who had “enrolled” in UNNJ. The
Government initially conceded that those students were
innocent victims of the fraud, but later tried to change that
characterization to suggest that they were more akin to
participants in the fraudulent scheme.5 When DHS’s
investigation into the fraudulent visa scheme concluded, each
enrolled student—including the plaintiffs here—received a
letter informing them that their student status “ha[d] been set
to Terminated due to [their] fraudulent enrollment” in UNNJ.6
The import of that letter underlies this appeal.

3
  Office of the President, UNIVERSITY OF NORTHERN NEW
JERSEY, https://web.archive.org
web/20160307134201/http://www.unnj.edu/office-of-the-
president/ (last visited July 19, 2019).
4
  See, e.g., @UNorthernNJ, TWITTER (Feb 2, 2015, 5:45
AM), https://twitter.com/
UNorthernNJ/status/562245302401634304 (last visited July
19, 2019) (“UNNJ will be closed today due to weather. This
includes all classes, administrative offices, and
clubs/activities. Thank you, Dr. B”).
5
  As we explain below, at oral argument the Government
conceded that these students were the innocent victims of
fraud who had been unknowingly ensnared in the sting set for
individuals who profited from such students by charging for
arranging fraudulent student visas. Later, for reasons known
only to the Government, and as we elaborate below, it
contradicted that position by a subsequent statement
“clarifying” it.
6
  App. 49.
                              3
        The Government sent the letter after filing charges
against twenty-one individuals for fraudulently procuring
visas. The letter terminated the plaintiffs’ student visas and the
plaintiffs thereafter filed this class action alleging violations of
the Administrative Procedure Act, their Due Process rights,
and alleging the Government should be estopped from
revoking their visas. The District Court dismissed the claims
for lack of subject matter jurisdiction, and because no final
action had been taken by the Government. The District Court
concluded that there was no final Government action because
reinstatement proceedings could still provide administrative
relief. The Court also found that the case was not ripe for
review. We disagree with the District Court’s conclusion as to
both grounds and will therefore vacate the order dismissing
these claims and remand for further proceedings.

   I. BACKGROUND
A.    The F-1 Visa Program

       “Nonimmigrant students,” such as the plaintiffs, may
lawfully obtain an F-1 visa and reside in the United States
while     enrolled     at   Government-approved        schools.7
Immigration and Customs Enforcement administers the F-1
visa system, which governs nonimmigrant students’ legal
status, through its Student and Exchange Visitor Program
(“SEVP”). Each school that educates F-1 students has a
Designated School Official (“DSO”) who monitors, advises,
and oversees the students attending his or her institution.8
When ICE determines that a school’s participation in the SEVP
should be withdrawn, it provides notice to the school and an
opportunity for it to contest the intended termination.9

       Students who enter the United States with F-1 visas are
subject to an array of regulations.10 These include maintaining
a full course of study11 or participating in an authorized

7
  8 U.S.C. § 1101(a)(15)(F).
8
  See 8 C.F.R. § 214.3.
9
  Id. § 214.4(b).
10
   Id. § 214.2(f).
11
   Id. § 214.2(f)(6).

                                 4
“practical training” role following the completion of studies.12
There are two types of practical training programs.13 Curricular
Practical Training (“CPT”) is any “alternative work/study,
internship, cooperative education, or any other type of required
internship or practicum that is offered by sponsoring
employers through cooperative agreements with the school”
that is an “integral part of an established curriculum.”14 The
other is Optional Practical Training (“OPT”) which consists of
temporary employment that is “directly related to the student’s
major area of study.”15

       Once a student has completed his or her course of study
and any accompanying practical training, he or she has sixty
days to either depart the United States or transfer to another
accredited academic institution and seek a transfer of the F-1
visa.16 If a student voluntarily withdraws from the F-1
program, he or she has fifteen days to leave the United States.17
A student who “fails to maintain a full course of study without
the approval of the DSO or otherwise fails to maintain status”
must depart the United States immediately or seek
reinstatement.18

        Under the reinstatement regulations, a district director
in the U.S. Citizenship and Immigration Services (“USCIS”)
“may consider” reinstating a student who demonstrates that he
or she: 1) “has not been out of [valid F-1] status for more than
5 months at the time of filing the request for reinstatement” or
that “the failure to file within the 5 month period was the result
of exceptional circumstances and that the student filed the
request for reinstatement as promptly as possible under these
exceptional circumstances;” 2) does “not have a record of
repeated or willful violations of Service regulations”; 3) is
pursuing or intends to pursue a full course of study; 4) has not
engaged in unauthorized employment; 5) is not deportable on

12
   Id. § 214.2(f)(10)(i).
13
   Id. § 214.2(f)(10)(ii).
14
   Id. § 214.2(f)(1)(i).
15
   Id. § 214.2(f)(1)(ii).
16
   Id. § 214.2(f)(5)(iv).
17
   Id.
18
   Id.

                                5
any ground other than 8 U.S.C. § 1227(a)(1)(B) and (C)(i);19
and 6) can prove that the violation of status resulted from
circumstances beyond the student’s control, or that the
violation relates to a reduction in the student’s course load that
would have otherwise been permitted if authorized by the
school and that failure to approve reinstatement would result
in extreme hardship to the student.20 The USCIS’s decision to
reinstate is discretionary. If the USCIS “does not reinstate the
student, the student may not appeal that decision.”21

       Separately, the Code of Federal Regulations permits
termination of a student’s F-1 visa status in three ways: 1) by
revoking a waiver that the Attorney General had previously
authorized under § 212(d)(3) or (4) of the Immigration and
Nationality Act; 2) “by the introduction of a private bill to
confer permanent resident status,” or 3) “pursuant to
notification in the Federal Register, on the basis of national
security, diplomatic, or public safety reasons.”22 Purported
“fraudulent enrollment” in an institution is not a statutorily
authorized reason for terminating a student’s F-1 visa status.23
B.     The “University of Northern New Jersey”

       In 2013, ICE created the University of Northern New
Jersey and situated it in Cranford, New Jersey.24 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

19
   Section 1227(a)(1)(B) of Title 8 of the U.S. Code classifies
an individual as a deportable alien if his or her nonimmigrant
visa (such as an F-1 student visa) has been revoked. Section
1227(C)(i) applies to an “alien who was admitted as a
nonimmigrant and who has failed to maintain the
nonimmigrant status in which the alien was admitted.”
20
   8 C.F.R. § 214.2(f)(16)(i)(A)–(F).
21
   Id. § 214.2(f)(16)(ii).
22
   Id. § 214.1(d).
23
   Nonimmigrant visas may also be revoked at any time at the
discretion of a “consular officer or the Secretary of State.” 8
U.S.C. § 1201(i). That mechanism of revocation is also
inapplicable to this appeal.
24
   Br. for Appellee, 12.

                                6
training required to satisfy the F-1 visa requirements. As is
apparent from what we said at the outset, for all outward
appearances, UNNJ looked like a real university. It was
accredited by the State of New Jersey. DHS listed UNNJ on its
website of approved institutions. UNNJ maintained a detailed
website and active social media accounts. The website outlined
admissions criteria, explained the academic programs that the
school offered (including seven undergraduate majors and nine
graduate programs), and assured students that various support
systems including tutoring sessions and advisory services were
available.25

       By the time UNNJ “closed” in April of 2016, DHS’s
sting operation yielded twenty-two arrests relating to the
brokerage of fraudulent visas. At that same time, more than 500
students had ostensibly “enrolled” in UNNJ. The closure of the
university prompted DHS to inform those students that their
valid F-1 status had been terminated. DHS did so in a letter sent
to students that stated, in relevant part:
               This letter is to inform you that
               your SEVIS record and your Form
               I-20,     SEVIS       [Identification
               Number], issued by University of
               Northern New Jersey, school code
               NEW214F32011000, has been set
               to Terminated status due to your

25
   UNNJ’s website also included multiple appeals to
international students. For example, its “History” page noted
explicitly that it was certified by DHS to “educate
international students.” History of UNNJ, UNIVERSITY OF
NORTHERN NEW JERSEY, https://web.archive
.org/web/20160312141506/http://www.unnj.edu/history-of-
unnj (last visited July 19, 2019). Its admissions page stated
that incoming students would “meet countless other students
from around the world” and included special instructions for
“[i]nternational applicants seeking F-1 visa status.”
Admissions, UNIVERSITY OF NORTHERN NEW JERSEY,
https://web.archive.org/web/20160326211937/http://www.un
nj.edu/admissions (last visited July 19, 2019). Indeed, the
only thing lacking appears to be reference to UNNJ’s men’s
or women’s basketball team in the Final Four of the National
Collegiate Athletic Association’s basketball tournament.
                               7
              fraudulent enrollment in the
              above school.

              Since your SEVIS record has been
              Terminated you no longer have
              valid F-1 nonimmigrant status and
              must either file for reinstatement
              of your nonimmigrant student
              status with U.S. Citizenship and
              Immigration Services (USCIS) or
              depart    the     United     States
              immediately.

              For instructions on how to file for
              a        reinstatement,       visit
              www.uscis.gov. Transfer requests
              will not be authorized unless you
              have     been     approved      for
                                      26
              reinstatement by USCIS.

C.     The Student Plaintiffs and The Current Litigation

       The named plaintiffs are five students whose visas were
cancelled following the closure of UNNJ. They filed the
putative class action complaint that gave rise to this appeal on
behalf of themselves and hundreds of other similarly situated
students.27 The complaint 1) alleged that the Government’s
termination of their lawful immigration status was a violation
of Due Process and was arbitrary and capricious under the
Administrative Procedure Act,28 and 2) sought an order
prohibiting the Government from finding that the students
committed fraud by enrolling in UNNJ.

       The Government moved to dismiss the complaint under
Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.
It argued that ICE’s determination did not qualify as a final
agency action and that the case was not ripe for review. The

26
   App. 49 (emphasis added).
27
   We take no position on whether this suit will ultimately be
amenable to class disposition.
28
   5 U.S.C. § 551 et seq.

                               8
District Court granted the motion on both grounds.29 It first
concluded that ICE’s decision to terminate the students’ F-1
status was not a final agency action “because their applications
for reinstatement [were] still pending.”30 It explained that the
“initial decision of terminating Plaintiffs’ visas cannot be seen
as ‘final’ given that ICE is currently in the process of deciding
if Plaintiffs are entitled to reinstatement of their visas.”31 It
found that the termination decision was “more akin to the
beginning of an administrative proceeding than enacting a final
action.”32

       Second, the District Court concluded that the issues
were not ripe for review because the students were “seeking
the same determination—whether their enrollments were
fraudulent—that they [were] already seeking from their
pending applications.”33 It also found that the record was
incomplete because of ongoing ICE proceedings, and that
“immediate hardship cannot be shown because the
administrative proceeding will likely be resolved in the coming
months without any action needed from this Court.”34

        The District Court entered an order dismissing the case.
This appeal followed. At the time of the appeal, the named
plaintiffs’ immigration statuses were as follows:
    • Plaintiff Jie Fang appeared before an immigration court,
        which issued a voluntary departure order on March 8,
        2017. He departed the United States on March 31, 2017
        and had not yet applied for reinstatement.

     • Plaintiff Shaofu Li was placed in removal proceedings
       but subsequently departed the United States on April 4,
       2017, resulting in the termination of his removal
       proceedings in June 2017. He also applied for
       reinstatement to attend the Harrisburg University of
       Science & Technology, but that application was denied

29
   Fang v. Homan, No. 17-2092, 2017 WL 6453466 (E.D. Pa.
Oct. 2, 2017).
30
   Id. at *2.
31
   Id.
32
   Id.
33
   Id. at *3.
34
   Id.
                               9
      by USCIS because, among other reasons, he failed to
      respond to USCIS’s request for evidence.

   • Plaintiff Hirenkumar Patel applied for reinstatement to
     attend the Harrisburg University of Science &
     Technology, and that application was denied by USCIS
     in January 2018 because, in his reinstatement filing, he
     “asserted that [he] began attending online classes at
     UNNJ in June 2015.” Because “UNNJ conducted no
     courses of study, held no classes of any kind, and
     required no coursework of its students” his “statement
     to the contrary constitute[d] a willful misrepresentation
     of material fact in pursuit of an immigration benefit,”
     which USCIS considered “a very serious factor which
     weighs against a favorable exercise of discretion.” H.
     Patel was placed in removal proceedings and had a
     hearing scheduled in the Newark immigration court in
     January 2019.

   • Plaintiff Kaushalkumar Patel applied for reinstatement
     to attend the Harrisburg University of Science &
     Technology and that application was denied by USCIS
     in December 2017 because, in his reinstatement filing,
     he “asserted that [he] began attending online classes at
     UNNJ in June 2015.” Because “UNNJ conducted no
     courses of study, held no classes of any kind, and
     required no coursework of its students” his “statement
     to the contrary constitute[d] a willful misrepresentation
     of material fact in pursuit of an immigration benefit,”
     which USCIS considered “a very serious factor which
     weighs against a favorable exercise of discretion.” Patel
     was placed in removal proceedings and had a hearing
     scheduled in the Philadelphia immigration court in
     October 2018.

   • Plaintiff Xiaoyu Zhang applied for reinstatement to
     attend the University of North Texas. That application
     was still pending before USCIS.

D.    “These students, as far as we are concerned, were the
victims of fraud.”



                             10
        We held argument on September 25, 2018. There, for
the first time, the Government informed this Court that its
position was not that the students had committed fraud by
enrolling in UNNJ. Rather, the Government believed that the
students were the victims of fraud. The Government twice
stated that the students “were caught up in it in the sense that
they were victim by the academic recruiters” 35 and that
“[t]here was no fraud here. These students, as far as we are
concerned, were the victims of fraud. . . . [T]hey were caught
up in it.”36 When pressed about the language in the terminating
letter, the Government (incorrectly) stated that “fraudulent
enrollment” was “passive voice,”37 and therefore should not be
read to imply that the students had committed fraud.

       Despite the Government’s position that the students
were the victims of fraud, it acknowledged that database
entries for each student would reflect the “fraudulent
enrollment” determination made by DHS. The Government
acknowledged that it was able to, consistent with its stated
position, eliminate any database notations that suggested that
the students had committed fraud, yet it refused to do so.38 It
argued that correcting the record on a preventive basis was not
necessary because the “fraudulent enrollment” determination
would not have any adverse impact on the students in future
immigration proceedings.39

       On October 12, 2018, the Government changed course
yet again. It filed a letter “to clear up any confusion from
certain exchanges” that occurred during argument. The
Government informed the Court that it was not, in fact,
conceding “that all—or even most—UNNJ enrollees were
innocent victims.”40 In fact, the Government now asserted that
some of the students “in all likelihood, knew that their
academic recruiters were committing visa fraud” and others
even “conspired with their academic recruiters to commit visa

35
   Oral Arg. Tr., 23.
36
   Id. at 21.
37
   Id. at 25.
38
   Id. at 26, 28–29.
39
   Id. at 36.
40
   Letter, 1, Oct. 12, 2018.

                               11
fraud.”41 “Thus,” the letter concluded, “to the extent that any
of the Government’s comments at oral argument left the
misimpression that all of UNNJ’s enrollees were innocent
victims of the academic recruiters’ visa fraud scheme, that is
not the case.”42
I. DISCUSSION43
A. Jurisdiction Under the Administrative Procedures Act

        Under the APA, “final agency action[s] for which there
is no other adequate remedy in a court are subject to judicial
review.”44 For an agency action to be final under the APA, the
action must mark the “consummation” of the agency’s
decision-making process, and the action must determine a
“right[] or obligation[].”45 Here, the second condition is clearly
satisfied. The termination order ended the student’s legal status
in the United States. However, the question of whether the
action also marked the consummation of the agency’s
decisionmaking process is not as clear.

       The appellants argue the termination of their status
constituted a final order because ICE’s decisionmaking process

41
   Id. at 2.
42
   Id.
43
   We have jurisdiction pursuant to 28 U.S.C. § 1291.
Although the District Court dismissed the case without
prejudice, the appellants have stated that they cannot amend
their complaint in order to cure the defect. Accordingly, the
dismissal order is final. See Palakovic v. Wetzel, 854 F.3d
209, 219 (3d Cir. 2017) (“Although we generally do not
exercise jurisdiction where a District Court dismisses a
complaint without prejudice and grants leave to amend, such
an order is final and reviewable under § 1291 where, as here,
a party declares an intention to stand on the complaint.”)
(internal citations omitted). Our standard of review for
appeals challenging a district court’s decision about
jurisdiction and ripeness is plenary. Marathon Petroleum
Corp. v. Sec’y of Finance, 876 F.3d 481, 488 n.9 (3d Cir.
2017)
44
   5 U.S.C. § 704.
45
   Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations
omitted).

                               12
is now complete. Their lawful F-1 student status has been
stripped away from them and ICE has already determined that
they fraudulently enrolled in UNNJ to obtain visas.46 The
Government counters that the action is not final because the
appellants have “avenues of recourse other than a lawsuit in
federal court.”47 According to the Government, appellants can
pursue either of two administrative avenues of relief. First, the
Government claims the UNNJ students may seek reinstatement
pursuant to 8 C.F.R. § 214.2(f)(16). Second, it claims that an
adverse reinstatement decision can be addressed during
removal proceedings, which give the appellants the
“opportunity to contest the grounds of their removal before an
immigration judge (‘IJ’), with the opportunity to appeal any
adverse decisions to the Board of Immigration Appeals
(‘BIA’), and from there to a court of appeals.”48 The District
Court agreed with the Government’s first argument. The Court
held that the order was not final because reinstatement
proceedings were pending. It did not address the argument
about deportation proceedings.

        Finality in immigration proceedings is governed by our
decision in Pinho v. Gonzales.49 There, Gummersindo Pinho, a
native of Portugal who married a United States citizen, applied
for an adjustment of his immigration status to “permanent
resident.”50 The Immigration and Naturalization Service
denied adjustment based on an eight-year-old narcotics
conviction that had been vacated about two years prior to
Pinho’s adjustment application. Pinho then filed a complaint
in district court seeking a declaratory judgment that the denial
of his adjustment of status was arbitrary, capricious, and
unlawful because his previously vacated conviction should not
have barred his eligibility for adjustment.51 The district court
granted summary judgment in favor of the Government for
reasons that are not relevant to our inquiry.


46
   Br. for Appellant, 26–27.
47
   Br. for Appellees, 4.
48
   Id.
49
   432 F.3d 193 (3d Cir. 2005).
50
   Pinho, 432 F.3d at 197.
51
   Id. at 198.

                               13
       On appeal, we considered sua sponte whether the INS’s
decision, which was ultimately affirmed by ICE’s
Administrative Appeals Office (“AAO”) constituted a final
order for the purposes of APA jurisdiction. We began our
discussion by reciting the Bennett test set forth above. We then
noted that “[f]inality requires exhaustion of administrative
remedies.”52 That is, if “there remain steps that the immigrant
can take to have an action reviewed within the agency, then the
action is not final and judicial review is premature.”53 We
explained that this rule is derived from the Supreme Court’s
decision in Darby v. Cisneros.54 There, the Court “held that
agency action is final when the ‘aggrieved party has exhausted
all administrative remedies expressly prescribed by statute or
agency rule.’”55 However, the Court limited the instances
where an aggrieved litigant must appeal to “superior agency
authority” before proceeding in federal court.56 The Court held
that exhaustion of administrative remedies was “a prerequisite
to judicial review only when expressly required by statute or
when an administrative rule requires appeal before review and
the administrative action is made inoperative pending that
review.”57

        In Pinho’s case, we concluded that the AAO’s denial of
his adjustment of status was a final order because “the agency
offered no further procedures that Pinho could invoke to have
his claim of statutory eligibility heard. There [was] no
provision for BIA review of an AAO status-adjustment
eligibility decision.”58 Put differently, “Pinho had no further
opportunity to challenge the legality of the decision within the
agency.”59 We also found that the possibility for Pinho to
renew his application for change of status during deportation
proceedings did not affect the finality of the agency’s actions.
“The reason [was] simple: if the agency does not seek to deport

52
   Id. at 200.
53
   Id.
54
   509 U.S. 137 (1993).
55
   Pinho, 432 F.3d at 202 (quoting Darby, 509 U.S. at 146).
56
   Id. (quoting Darby, 509 U.S. at 154).
57
   Id. (quoting Darby, 509 U.S. at 154).
58
   Id. at 200.
59
   Id. at 201.

                              14
the immigrant, there can never be an appeal within the agency
by which any higher level of administrative authority can be
invoked to review the legal determination made by the
AAO.”60

        Pinho’s holding is straightforward. A litigant aggrieved
by an agency decision must seek review from a superior agency
authority before bringing a claim in the district court “only
when expressly required [to do so] by statute”61 and only when
the statute sets forth “steps that the immigrant can take to have
an action reviewed within the agency.”62 Thus, removal
proceedings are not a prerequisite to finality when there is no
guarantee that such a proceeding will ever occur.

        Following Pinho, the Courts of Appeals for the Sixth
and Ninth Circuits expounded further on the concept of finality
for the purposes of APA jurisdiction in the adjustment-of-
status context.63 In Cabaccang v. USCIS, the Court of Appeals
for the Ninth Circuit considered whether a denial of status
adjustment constituted a final order. However, unlike in Pinho,
Cabaccang faced pending removal proceedings when his
adjustment of status was denied. The court concluded that the
denial of status adjustment was not final because the
immigration judge overseeing the pending removal
proceedings had the power to “completely wipe away [the]
USCIS’s prior decision” to deny Cabaccang’s adjustment-of-
status request.64 The removal proceedings empowered the
immigration judge to exercise de novo review over
applications for adjustment of status.65

       In Hosseini v. Johnson, the Court of Appeals for the
Sixth Circuit adopted our reasoning in Pinho.66 In doing so, it

60
   Id.
61
   Id. at 202.
62
   Id. at 200.
63
   See Hosseini v. Johnson, 826 F.3d 354 (6th Cir. 2016);
Cabaccang v. USCIS, 627 F.3d 1313 (9th Cir. 2010).
64
   Cabaccang, 627 F.3d at 1316.
65
   Id. (citing 8 C.F.R. §§ 1240.1(a)(1)(ii), 1245.2(a)(1)(i)).
66
   See Hosseini, 826 F.3d at 361 (finding Pinho “particularly
instructive”).

                               15
rejected the Government’s argument that the applicant, who
was denied adjustment of status, could “merely reapply for
admission as often as he wants.”67 The Sixth Circuit held that
the Government’s position that Hosseini could “simply ‘try
again’ fails to appreciate that even if [he] receive[d] four or
five denials, he would never receive meaningful review of any
of them.”68 That is, there could “never be an appeal within the
agency by which any higher level of administrative authority
[could] be invoked to review the legal determination” made by
the USCIS.69 The same is true here.

        The order terminating these students’ F-1 visas marked
the consummation of the agency’s decisionmaking process,
and is therefore a final order, for two reasons. First, there is no
statutory or regulatory requirement that a student seek
reinstatement after his or her F-1 visa has been terminated.
Moreover, even if the students attempt to pursue the
administrative procedures for reinstatement, there is no
mechanism to review the propriety of the original termination
order. Second, the students need not wait for removal
proceedings to be instituted. As we stated in Pinho, an order’s
finality cannot depend on the institution of removal procedures
which may never occur. And in any event, immigration judges
cannot review the original denial of reinstatement. They do not
have that authority. We explain each aspect of our holding in
turn.

        First, we disagree with the District Court’s conclusion
that the order is not final because the students are either seeking
reinstatement or could seek reinstatement in the future.
Nothing in the Immigration and Nationality Act70 or the Code
of Federal Regulations requires a nonimmigrant whose visa
has been terminated to seek reinstatement as a form of
review.71 The reinstatement regulation itself notes only that a
student “may not appeal” an unsuccessful attempt at


67
   Id. at 362.
68
   Id.
69
   Id. at 361 (quoting Pinho, 432 F.3d at 201).
70
   8 U.S.C. § 1101 et seq.
71
   8 C.F.R. § 214.1(d).

                                16
reinstatement.72 In short, reinstatement is not “a prerequisite to
judicial review.”73 It is neither “expressly required by statute”
nor does “an[y] administrative rule require[] appeal before
review and the administrative action is made inoperative
pending that review.”74

       We similarly hold that reinstatement proceedings are
not a prerequisite to finality because reinstatement is not a
mechanism by which the students can obtain review of DHS’s
decision to terminate their status for their alleged fraudulent
enrollment.75 Despite the Government’s argument to the
contrary, there is nothing in the reinstatement provisions that
permit the USCIS to review a prior termination order issued by
DHS. Rather, the former UNNJ students will first need to
reenroll in another school76 and then demonstrate that they
satisfy the remaining criteria for reinstatement.77 Even if the
students are successfully reinstated by USCIS, they will have
achieved that status without ever having undergone review of
the initial termination and fraudulent enrollment decision.
Accordingly, reinstatement does not provide an opportunity to
“completely wipe away” a prior agency decision.78 Nor does it
provide a step that “the immigrant can take to have an action
reviewed within the agency.”79

       We also disagree with the District Court’s conclusion
that terminating the students’ status was akin to “an initial
administrative action that begins an investigation,” and
therefore was not final.80 The Government relies on this

72
   Id. § 214.2(f)(16)(ii).
73
   Pinho, 432 F.3d at 202 (quoting Darby, 509 U.S. at 154).
74
   Id.
75
   Given the Government’s vacillation on the issue, we take
no position on whether the students fraudulently enrolled in
UNNJ.
76
   See 8 C.F.R. § 214.2(f)(16)(i) (requiring a “DSO’s
recommendation for reinstatement”).
77
   Id. § 214.2(f)(16)(i)(A)-(F).
78
   Cabaccang, 627 F.3d at 1316.
79
   Pinho, 432 F.3d at 200.
80
   Fang, 2017 WL 6453466, at *2 (citing FTC v. Standard Oil
Co. of Cal., 449 U.S. 232, 239 (1980)).

                               17
position on appeal, and attempts to analogize this situation to
cases involving, for example, termination of asylum.81 The
asylum cancellation statutes illustrate why the termination in
this case is final as opposed to the “termination of asylum
[which] does not consummate agency action and thus is not
final.”82

        When the Government terminates asylum status, it must
necessarily initiate removal proceedings.83 During those
proceedings, the former asylee may contest the termination in
front of an immigration judge and/or reapply for asylum.84 The
provisions regarding termination of F-1 status contain no such
analogous requirement that the Government initiate removal
proceedings. Indeed, as the Government concedes, some of the
plaintiffs here have yet to have removal proceedings initiated
against them even after their F-1 status had been set to
“terminated.” Unlike the situation with asylees, each student’s
status was terminated without any proceedings ever being
initiated. That clearly distinguishes the students’ procedural
path from that of an ex-asylee. Accordingly, we hold that the
termination of the students’ F-1 visa status in the manner that
occurred here is not akin to the initiation of the agency’s
decisionmaking process. Rather, it is the culmination of that
process.

        Second, we disagree with the Government’s contention
that the agency’s action is not final because the students can
obtain review of any denial of reinstatement during removal
proceedings. This argument fails for two reasons. First, as we
stated in Pinho, the finality of an order cannot be conditioned
on something that may never happen. Accordingly, as we held
in Pinho, uninitiated removal proceedings cannot be a
prerequisite to finality when there is no guarantee that such
proceedings will ever occur. Moreover, we do not agree with

81
   See Br. for Appellee, 23–24.
82
   Qureshi v. Holder, 663 F.3d 778, 779 (5th Cir. 2011).
83
   See 8 C.F.R. § 208.14(c)(1) (“[I]n the case of an [asylum]
applicant who appears to be . . . deportable . . . the asylum
officer shall refer the application to an immigration judge . . .
for adjudication in removal proceedings[.]”); see also,
generally, Kashani v. Nelson, 793 F.2d 818 (7th Cir. 1986).
84
   Qureshi, 663 F.3d at 780.
                               18
any suggestion that a student is not really harmed if no removal
proceedings ever occur. We therefore reject any such claim as
bearing on our finality inquiry. It is highly unlikely that any
student will simply be allowed to remain here. Moreover, even
if that were to happen, we do not think that any such students
should be forced to permanently endure remaining here with
the threat of imminent removal and all of its attendant
circumstances permanently hanging over their heads.

        Second, removal proceedings do not offer an
opportunity for review of the denial of reinstatement. Although
we have never addressed the issue precedentially,85 both the
BIA86 and our sister circuit courts of appeals87 have held that
removal proceedings cannot function as review mechanisms
for reinstatement proceedings.

       In Young Dong Kim v. Holder, a nonimmigrant
student’s F-1 status was terminated and the USCIS denied the
petition to reinstate.88 Eventually, DHS issued a Notice to
Appear and initiated deportation proceedings.89 When Ko (the
former F-1 visa holder) attempted to challenge the denial of
reinstatement the IJ “noted that he lacked the authority to
reinstate Ko’s student status because the decision was within
the sole discretion of the USCIS.”90 On administrative appeal,
the BIA also found “that neither the IJ nor the BIA have the
authority to review the decision by USCIS denying Ko’s
application to reinstate her student status.”91 When Ko
eventually appealed to the Court of Appeals for the Seventh
Circuit, that court held that the IJ and the BIA may not “review


85
   See Laoye v. Attorney General, 352 F. App’x 714, 717 (3d
Cir. 2009) (per curiam).
86
   See, e.g., Matter of Yazdani, 17 I.&N. Dec. 626, 628–29
(BIA 1981).
87
   See, e.g., Young Dong Kim v. Holder, 737 F.3d 1181 (7th
Cir. 2013); Ghorbani v. INS, 686 F.2d 784, 791 (9th Cir.
1982); Tooloee v. INS, 722 F.2d 1434, 1436 (9th Cir. 1983).
88
   Kim, 737 F.3d at 1182.
89
   Id.
90
   Id. at 1183.
91
   Id. at 1184.

                              19
the USCIS’s discretionary denial of a motion to reinstate
student status.”92

       Similarly, in Tooloee v. INS, both an immigration judge
and the BIA refused to reexamine the USCIS District
Director’s decision to deny Tooloee’s request for
reinstatement.93 The IJ found that it was without authority to
review the claim,94 and the BIA agreed. On appeal, the Court
of Appeals for the Ninth Circuit held that “the immigration
judge and the BIA, in refusing to review the District Director’s
decision,     correctly     interpreted    their   jurisdictional
regulations.” Tooloee noted that the agency regulations
              95

explicitly stated that there shall be no appeal from the District
Director’s decision, and it was therefore not unreasonable for
another agency to find that it had no authority to re-examine
the District Director’s decision.96

        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. Our decision is
dictated by the Code of Federal Regulations,97 and is consistent
with decisions of the BIA98 and our sister circuit courts of
appeals.99 We therefore reject the Government’s argument that
the order terminating the appellants’ student status in this case
is not final until after removal proceedings are instituted—a
process which the Government contends must itself occur (if
at all) only after denial of reinstatement.


92
   Id. at 1187.
93
   Tooloee, 722 F.2d at 1436.
94
   Id.
95
   Id.
96
   Id.
97
   8 C.F.R. § 214.2(f)(16)(ii) (stating that “if the USCIS does
not reinstate the student, the student may not appeal its
decision”).
98
   Matter of Yazdani, 17 I.&N. Dec. 626, 628–29 (BIA 1981).
99
   Young Dong Kim v. Holder, 737 F.3d 1181 (7th Cir. 2013);
Ghorbani v. INS, 686 F.2d 784, 791 (9th Cir. 1982); Tooloee
v. INS, 722 F.2d 1434, 1436 (9th Cir. 1983).

                               20
       In sum, we hold that reinstatement proceedings neither
are required by statute or regulation nor afford the students an
opportunity for review of DHS’s decision to terminate their F-
1 visa status and therefore are not a prerequisite to finality for
the purposes of our subject matter jurisdiction under the APA.
Similarly, the students need not wait until removal proceedings
are instituted to challenge the termination of their student
status. Since neither immigration judges nor the BIA have the
authority to overturn the USCIS’s denial of reinstatement,
those proceedings do not offer the students an opportunity to
contest agency action. The order terminating the students’ F-1
visa status was therefore a final order for jurisdictional
purposes because there was no further opportunity for
review.100
B. Ripeness

        We also disagree with the District Court’s conclusion
that this case is not ripe for review. Ripeness is a justiciability
doctrine that derives from Article III of the United States
Constitution.101 “The function of the ripeness doctrine is to
determine whether a party has brought an action
prematurely[.]”102 The doctrine counsels that we should
abstain “until such time as a dispute is sufficiently concrete to

100
    And it is easy to see why the students desire review—DHS
appears to have terminated their F-1 visas without the
statutory authority to do so. As discussed above, the ability to
terminate an F-1 visa is limited by § 214.1(d). That provision
states: “(d) Termination of status. Within the period of initial
admission or extension of stay, the nonimmigrant status of an
alien shall be terminated by the revocation of a waiver
authorized on his or her behalf under section 212(d)(3) or (4)
of the Act; by the introduction of a private bill to confer
permanent resident status on such alien; or, pursuant to
notification in the Federal Register, on the basis of national
security, diplomatic, or public safety reasons.” 8 C.F.R. §
214.1(d). None of those mechanisms were employed in this
case.
101
    Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535
(3d Cir. 1988).
102
    Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir.
2003) (citations omitted).

                                21
satisfy the constitutional and prudential requirements of the
doctrine.”103 We have recognized the following considerations
that underpin the ripeness doctrine:
              [A]re the parties in a sufficiently
              adversarial posture to be able to
              present their positions vigorously;
              are the facts of the case sufficiently
              developed to provide the court
              with enough information on which
              to decide the matter conclusively;
              and is a party genuinely aggrieved
              so as to avoid expenditure of
              judicial resources on matters
              which have caused harm to no
              one.104

At bottom, the doctrine is inextricably tied to Article III’s
requirement of a case or controversy. It “requires that the
challenge grow out of a ‘real, substantial controversy between
parties’ involving a ‘dispute definite and concrete.’”105

        As previously discussed, the District Court found that
ongoing reinstatement proceedings rendered this case unripe
for review, “because Plaintiffs are seeking the same
determination—whether their enrollments were fraudulent—
that they are already seeking from their pending
[reinstatement] applications.”106 But, as we have just
explained, the ongoing reinstatement proceedings do not
provide an avenue to review ICE’s termination of the students’
F-1 visa status. Given that procedural conundrum, the posture
of this case satisfies all of the traditional factors that we have
considered in a ripeness analysis.

       The parties are clearly sufficiently adversarial. The
students are genuinely aggrieved after having their lawful
status terminated and a notation of fraud placed on their

103
    Id.
104
    Id. at 433–34 (citing Erwin Chemerinsky, Federal
Jurisdiction § 2.3.1 (1989)).
105
    Id. at 434 (quoting Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979)).
106
    See Fang, 2017 WL 6453466, at *3.
                               22
records, thereby permanently branding each of them with a
Scarlett “F.” The only consideration that could arguably give
us pause is the Government’s shifting position on whether the
students are the victims of fraud or themselves participants in
the fraud for having come here to attend the nonexistent UNNJ.
However, it would be a cruel irony indeed if we were to allow
the Government’s own flip-flop on that characterization to
deprive us of the ability to review the disputed governmental
action, an action which, as we have explained, will almost
certainly escape review absent an exercise of Article III
jurisdiction. 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.

        There may ultimately be issues that arise here as the
record develops that weigh in favor of proceeding cautiously.
For example, there will likely be a formidable challenge to this
case’s amenability for class disposition because even the
named plaintiffs appear to be in starkly different positions. But
none of those issues will become more crystallized at a later
date, absent an opportunity develop the record and none of the
collateral challenges will result in review of ICE’s decision to
terminate the students’ status for purportedly fraudulent
enrollment. We therefore hold that this case, as currently
comprised, is ripe for review and will remand to the District
Court so that this record can be developed.107
    II.    CONCLUSION

For the foregoing reasons, the order dismissing this case is
reversed and the case is remanded to the District Court for
proceedings consistent with this opinion.


107
    Although we have commented on potential issues
surrounding the composition of this class, we take no position
on the propriety of pursing these claims as a class action. We
have alluded to theoretical issues of class certification merely
in the context of our discussion of the ripeness doctrine and
nothing we have said herein should be taken as controlling or
influencing the District Court in any subsequent inquiry under
Rule 23.
                               23
