                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1874


                              Grace Louise Hollingsworth,
                                      Appellant,

                                           vs.

                                State of Minnesota, et al.,
                                      Respondents.


                                 Filed August 17, 2015
                                       Affirmed
                                     Hudson, Judge


                               Polk County District Court
                                File No. 60-CV-13-1886

David J. Chapman, D.J. Chapman Law, Fargo, North Dakota (for appellant)

Kathryn M. Woodruff, Assistant Attorney General, St. Paul, Minnesota (for respondents)


         Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Chutich,

Judge.

                         UNPUBLISHED OPINION

HUDSON, Judge

         Appellant challenges the dismissal of her negligence and due-process claims,

arguing that she is entitled to damages because respondents’ failure to comply with
federal regulations caused her arrest and detention. Appellant asserts that the district

court erred by (1) dismissing her complaint because she asserted a state common-law tort

claim, and (2) concluding that appellant had no liberty or property interest in the

enforcement of federal student-entry immigration regulations.           Because the federal

immigration regulatory scheme creates no duty for respondents and provides no protected

due-process interest, we affirm.

                                           FACTS

         On July 11, 2011, appellant Grace Louise Hollingsworth, an Australian citizen,

received an F-1 student visa to attend respondent Northland Community and Technical

College (NCTC) in East Grand Forks.            NCTC employee respondent Patrick Amiot

utilized the Student Entry Visitor Information System (SEVIS)1 to issue an I-20 form2 to

appellant on June 13, 2011. An I-20 must specify a date, no earlier than 30 days prior to

the start of classes, by which a student is expected to report to the school. Amiot

erroneously listed appellant’s report date as the day her I-20 issued, a date more than 60

days before NCTC’s classes began. SEVIS automatically cancels a student’s I-20 if the

system is not updated to show that the student registered for classes within 60 days of the

report date. Appellant entered the United States in early August, and on August 13,



1
  SEVIS is a web-based system used by the Department of Homeland Security to
maintain information on Student and Exchange Visitor Program (SEVP)-certified schools
and the students with F visas attending these schools in the United States. SEVIS
Overview        U.S.        Immigration          and        Customs    Enforcement,
http://www.ice.gov/sevis/overview (last visited July 28, 2015).
2
    An I-20 is a Certificate of Eligibility for Nonimmigrant Student Status.

                                               2
2011, 60 days after appellant’s incorrectly listed report date, SEVIS automatically

cancelled her I-20.

       On August 15, 2011, appellant took NCTC’s assessment exam but did not score

high enough in mathematics to enroll in her intended program. She was directed to

remedial adult education courses, which do not qualify a student for an F-1 visa.

       On September 15, 2011, appellant was arrested by U.S. Immigration and Customs

Enforcement and charged with being deportable because she failed to maintain her F-1

student status. On September 20, 2011, Amiot e-mailed appellant’s mother, stating that

he had cancelled appellant’s I-20 because she had not registered for classes at NCTC, but

admitting that she appeared for her assessment exam two days after her I-20 was

automatically cancelled by SEVIS. After being held in county jails for over three weeks,

appellant was released from custody on October 11, 2011.          Appellant worked with

another NCTC staff member, and her F-1 status was reinstated on April 9, 2012, and

deportation proceedings were subsequently terminated.

       Appellant sued the State of Minnesota, Minnesota State Colleges and Universities

(MnSCU),     NCTC,     and   Amiot    (collectively   respondents)   for:   (1) negligence;

(2) negligence of Amiot and NCTC in recordkeeping and failure to properly update

recordkeeping; (3) “negligence and vicarious liability for negligent conduct of an

employee”; (4) violation of 42 U.S.C. § 1983 through denial of due process by incorrect

information entry; and (5) “violation of 42 U.S.C. § 1983 for denial of due process

through failure to act and notify the U.S. government of [Amiot’s] errors in the SEVIS

system and by taking actions which diverted the plaintiff’s mother’s suspicion of error.”


                                            3
Appellant requested monetary damages from respondent entities and from Amiot in both

his official and individual capacities.

       Respondents moved to dismiss appellant’s complaint with prejudice for failure to

state a claim upon which relief could be granted. After a hearing, the district court

granted respondents’ motion in its entirety, concluding that (1) the SEVIS regulations did

not create a private right of action, so they did not create a duty of care, (2) appellant

could not show a liberty or property interest in the enforcement of the SEVIS regulations,

and (3) appellant did not show any other statutory or common-law cause of action that

could provide grounds for relief. This appeal follows.

                                      DECISION

                                            I

       Hollingsworth argues that the district court erred by granting respondents’ motion

to dismiss her complaint under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon

which relief may be granted because she has a claim for damages under Minnesota

common law. We review de novo whether a complaint provides a legally sufficient

claim for relief, accepting the alleged facts as true and construing all reasonable

inferences in favor of the nonmoving party. Walsh v. U.S. Bank, N.A., 851 N.W.2d 598,

606 (Minn. 2014).

              A claim is sufficient to survive a motion to dismiss “if it is
              possible on any evidence which might be produced,
              consistent with the pleader’s theory, to grant the relief
              demanded.” But a legal conclusion in the complaint does not
              bind us, and a plaintiff must provide more than mere labels
              and conclusions.



                                            4
Graphic Commc’ns Local 1B Health & Welfare Fund A v. CVS Caremark Corp., 850

N.W.2d 682, 692 (Minn. 2014) (quoting N. States Power Co. v. Franklin, 265 Minn. 391,

395, 122 N.W.2d 26, 29 (1963)) (other citations omitted).

       Immigration and Nationality Act (INA) statutes define a nonimmigrant student as

              an alien having a residence in a foreign country which he has
              no intention of abandoning, who is a bona fide student
              qualified to pursue a full course of study and who seeks to
              enter the United States temporarily and solely for the purpose
              of pursuing such a course of study . . . at an established
              [educational institution] . . . approved by the Attorney
              General . . . which institution or place of study shall have
              agreed to report to the Attorney General the termination of
              attendance of each nonimmigrant student, and if any such
              institution of learning or place of study fails to make reports
              promptly the approval shall be withdrawn.

8 U.S.C. § 1101(a)(15)(F)(i) (2012). Respondents contend that the INA statutory scheme

does not create a private right of action because it merely defines a class of nonimmigrant

students and therefore creates no tort liability.    We agree.     The consequence for a

school’s failure to follow INA provisions does not provide nonimmigrant students with a

remedy; rather, it results in the withdrawal of government approval for the school’s

participation in the student and exchange visitor program.

       Although Hollingsworth asserts that she has a common-law tort claim, all her

theories are rooted in respondents’ failure to follow SEVIS regulations. A statute creates

a private right only if Congress intended to create a federal right and the statute’s text is

phrased in terms of the person benefited. Gonzaga v. Doe, 536 U.S. 273, 273, 122 S. Ct.

2268, 2270 (2002) (holding that a student was not entitled to damages under the Family

Educational Rights and Privacy Act of 1974 (FERPA) because FERPA provisions


                                             5
created no personal rights to enforce). It would be inconsistent to hold that no private

cause of action arises from a violation of SEVIS regulations and then allow

Hollingsworth to proceed on a state-law negligence theory based on an alleged violation

of those same regulations. To do so would effectively create a private cause of action.

See Glass Serv. Co. v. State Farm, Mut. Auto Ins. Co., 530 N.W.2d 867, 872 (noting that,

although appellant maintained it was not asserting a claim for a statutory violation, it was

attempting to use the alleged violation to establish an element of its common-law claim),

review denied (Minn. June 29, 1995).

       Hollingsworth argues that the Gonzaga approach is outdated, citing a recent case

from the Eleventh Circuit Court of Appeals. In Kurapati v. U.S. Bureau of Citizenship &

Immigration Servs. (USCIS), appellants argued that the district court had subject-matter

jurisdiction over their challenge to USCIS’s revocation of their I-140 employment visa

petitions because appellants were the beneficiaries of—and not the petitioners for—

portable employment visas. 775 F.3d 1255, 1258-60 (11th Cir. 2014). The district court

found that appellants lacked standing because the applicable regulation specifically

excluded immigrant beneficiaries from having standing to challenge I-140 visa petition

revocations. Id. But the court of appeals held that the regulatory definition of “affected

party” did not preclude appellants from having standing in district court because the

definition was not “a binding statement of constitutional standing.” Id. at 1260. The

court then applied a zone-of-interests test, concluding that appellants were in the zone of

interests because they, and not their employer, received the visas and benefitted from

their portability. Id. at 1261.


                                             6
       Hollingsworth asserts that she is entitled to relief because she is within the “zone

of interest” contemplated by the INA. But Kurapati is distinguishable: there the claim

was against USCIS, not the appellants’ employers, for improper revocation of visas.

Here, Hollingsworth is suing for damages and is not seeking to reinstate her F-1 visa.

Hollingsworth cannot escape the fact that she is advocating for a claim based on

respondents’ failure to follow SEVIS regulations. Even assuming that Hollingsworth is

within the zone-of-interests of the SEVIS regulations because she has a personal interest

in her F-1 visa, Hollingsworth has not demonstrated what common-law right this gives

her to sue for monetary damages in state court.

       Respondents further assert that Hollingsworth does not have a private claim

against them because SEVIS regulations only affect the process by which schools gain

and lose government approval for attendance by non-immigrant students. We agree.

“[R]egulations alone cannot create private rights of action; the source of the right must be

a statute.” Buck v. Am. Airlines, Inc., 476 F.3d 29, 33 (1st Cir. 2007) (citing Alexander v.

Sandoval, 532 U.S. 275, 275, 121 S. Ct. 1511, 1513 (2001) (holding that a driver’s

license examinee did not have a private right of action to enforce disparate-impact

regulations against rules that only impacted non-English speakers)).

       Hollingsworth next argues that her “right to be free from arbitrary arrest and

detention” was violated and that this gives rise to a claim against respondents for

negligent data entry into SEVIS. She admits that the duty to enter data is between the

school and the government, but asserts that respondents also had a legal duty of care to

her because of their special relationship with her.


                                              7
       Minnesota has adopted section 315 of the Restatement of Torts (Second) on

common-law duty, which states that a person does not have a duty “‘to control the

conduct of a third person as to prevent him from causing physical harm to another unless

. . . a special relation exists between the actor and the other which gives to the other a

right to protection.’” Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 804 (Minn.

1979) (quoting Restatement (Second) of Torts § 315 (1965)).           We review de novo

whether there was a duty of care in a negligence action. Domagala v. Rolland, 805

N.W.2d 14, 22 (Minn. 2011). Hollingsworth concedes that schools generally do not owe

a duty of care in loco parentis to protect students, instead arguing that, because she was a

foreign student, there was a special relationship given the “almost absolute power”

respondents had over her. But Hollingsworth provides no authority for the proposition

that schools owe a greater duty of care to foreign students. While NCTC was responsible

for maintaining the SEVIS database and Hollingsworth required admission to NCTC to

obtain her visa, this alone does not create a special duty of care.

       Because we conclude that respondents owed Hollingsworth no duty to properly

maintain the SEVIS database, Hollingsworth’s negligence claim fails.

                                              II

       Hollingsworth argues that her right to due process under 42 U.S.C. § 1983 (2012)

was violated by her arrest and detention. Specifically, she argues that Amiot’s e-mail to

her mother, stating that he had cancelled her visa when in reality it had been

automatically cancelled due to the data-entry error, caused prolonged detention.




                                              8
              Every person who, under color of any statute, ordinance,
              regulation, custom, or usage . . . subjects, or causes to be
              subjected, any . . . person . . . to the deprivation of any rights,
              privileges, or immunities secured by the Constitution and
              laws, shall be liable to the party injured in an action at law,
              suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. A party must assert the violation of a federal right, not merely a

federal law, to maintain a section-1983 claim. Blessing v. Freestone, 520 U.S. 329, 340-

41, 117 S. Ct. 1353, 1359 (1997). Courts examine three factors to determine whether a

statute gives rise to a federal right: (1) Congress’s intent that the statutory provision

benefit the plaintiff; (2) whether the plaintiff demonstrated that the right is “not so vague

and amorphous that its enforcement would strain judicial competence”; and (3) whether

the statute “unambiguously imposes a binding obligation on the States.” Id. (quotation

and citations omitted).

       In Bakhtiari v. Beyer, the federal district court held that SEVIS regulations only

define a class of immigrants and do not benefit a class of immigrants. No. 4:06-CV-

01489, 2008 WL 3200820 at *3 (E.D. Mo. 2008). Therefore, the Bakhtiari plaintiff had

no section-1983 claim because SEVIS regulations did not give rise to a federal right. We

acknowledge that Bakhtiari is not binding upon this court, but its reasoning is persuasive:

SEVIS regulations prescribe conduct for schools to maintain government approval for

attendance by nonimmigrant students, and the consequences of failing to follow the

regulations are that the school loses its ability to participate in SEVP. The regulations do

not provide to any clear right of enforcement to a nonimmigrant student, and we conclude

that the SEVIS regulations do not provide Hollingsworth a section-1983 claim.



                                              9
                                            III

       Hollingsworth finally argues that, contrary to respondents’ assertions, the State of

Minnesota is a proper party to the matter.        Because we affirm the district court’s

dismissal of this matter with prejudice, we need not reach this issue.

       Affirmed.




                                            10
