NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 20-2112 __________

XU FENG, Appellant

v.

UNIVERSITY OF DELAWARE __________

On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-16-cv-00664) Honorable Eduardo C. Robreno, U.S. District Judge __________

Submitted Under Third Circuit L.A.R. 34.1(a) on January 12, 2021

Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges

(Opinion filed: January 29, 2021)

__________

OPINION* __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Xu Feng appeals the District Court’s grant of summary judgment in favor of the

University of Delaware on his claim that the University discriminated against him on the

basis of his national origin in violation of Title VI of the Civil Rights Act of 1964,

42 U.S.C. § 2000d.1 For the following reasons, we will affirm.

A. Discussion2

Feng, a Chinese national, enrolled in a graduate program at the University and

elected to take classes in person, which required an F-1 visa. To obtain that visa, he had to

“pursue a full course of study,”

(a)(15)(F)(i), which the University has

defined for over 30 years to mean full-time enrollment, or nine credit hours for graduate

students. Feng “enroll[ed] in three courses instead of one” to satisfy this requirement, but

his academic “performance plummeted, and he was eventually expelled from the program”

for failing to maintain the minimum 2.0 GPA required by the University to remain in good

academic standing. Feng v. Univ. of Del.,

, 55 (3d Cir. 2019). Feng makes

several arguments why the nine-credit requirement is discriminatory, but we agree with the

District Court that each is unavailing.

1 We previously affirmed the District Court’s grant of summary judgment in favor of the University on Feng’s state law claims. See Feng v. Univ. of Del.,

, 57 (3d Cir. 2019). 2 The District Court had jurisdiction under

. We have jurisdiction under

and review the summary judgment order de novo, affirming only “if, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Carvalho-Grevious v. Del. State Univ.,

(3d Cir. 2017) (internal quotation marks and citation omitted). 2 The District Court rejected that the credit policy is facially discriminatory, focusing

not on the full course of study” requirement in immigration law,

(a)(15)(F)(i), but rather the University’s own definition of full-time as nine credit

hours. This definition applied to all full-time graduate students, including those seeking

F-1 visas, and by its terms did not single out students of foreign origin for different

treatment. Thus, Feng’s facial-discrimination argument is “a nonstarter because nothing

in the [policy] mentions [the protected trait].” Bryan v. Gov’t of V.I.,

, 246–

47 (3d Cir. 2019).

For the same reasons, the District Court concluded Feng had presented “no direct

evidence of an intent to discriminate.” A4. Federal law imposed the “full course of study,”

(a)(15)(F)(i), requirement on Feng as a condition of his visa, and the

University defined full-time the same way for all of its graduate students attending classes

in person. Far from a “trail of direct evidence,” Blunt v. Lower Merion Sch. Dist.,

(3d Cir. 2014), then, the record reflects the University merely abiding by federal

law and its own policies.

In the absence of direct evidence, the District Court analyzed whether Feng could

establish a discrimination claim based on circumstantial evidence under the familiar

McDonnell Douglas burden-shifting framework: If the plaintiff sets forth a prima facie

case of national-origin discrimination, the burden shifts to the defendant to articulate “some

legitimate, nondiscriminatory reason” for the adverse action; if defendant provides that

reason, the burden shifts back to the plaintiff to show it is pretextual. Castleberry v. STI

Grp.,

(3d Cir. 2017) (citation omitted).

3 We have acknowledged that “[a]lthough the prima facie elements of a

discrimination claim vary depending on the particular facts of the case, the plaintiff must

generally present evidence that raises an inference of discrimination.” Storey v. Burns Int’l

Sec. Servs.,

(3d Cir. 2004) (internal quotation marks and citations

omitted). Feng points to deposition testimony confirming that, as the only international

student in his program, he alone was subject to the nine-credit requirement and that the 30

credits all students needed to complete the program was separate from the “full course of

study,”

(a)(15)(F)(i), needed for an F-1 visa. But that testimony only

confirms that immigration law was the source of any additional credits requirement or

different treatment and that, as the District Court concluded, Feng cannot make out a prima

facie case of national-origin discrimination.

In sum, even viewing the evidence in the light most favorable to Feng, there are no

genuine issues of material fact with respect to his discrimination claims, and the District

Court properly granted summary judgment in favor of the University.

B. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court.

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