Jajati v. United States Customs and Border Protection

• Court: District Court, S.D. California
• Decided: October 14, 2022
• Docket: 3:22-cv-00175
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JACOBO JAJATI, Case No.: 3:22-cv-00175-RBM-AGS

12 Plaintiff, ORDER: (1) GRANTING MOTION 13 v. TO DISMISS FOR LACK OF JURISDICTION; AND (2) DENYING 14 U.S. CUSTOMS AND BORDER AS MOOT MOTION FOR PROTECTION, et al. 15 PRELIMINARY INJUNCTION Defendants. 16 [Docs. 7, 10] 17 18 19 Presently before the Court are: (1) a motion to dismiss for lack of jurisdiction filed 20 by Defendants United States Customs and Border Protection (“CBP”) and Christopher 21 Magnus in his official capacity as the Commissioner of CBP (collectively “Defendants”) 22 (Doc. 7); and (2) a motion for preliminary injunction filed by Plaintiff Jacobo Jajati 23 (“Plaintiff”) (Doc. 10). The parties filed opposition and reply briefs in response to each 24 motion. (See Docs. 8, 9, 13, 14.) On August 2, 2022, the Court took the matters under 25 submission pursuant to Civil Local Rule 7.1(d)(1). 26 For the reasons discussed below, Defendants’ motion to dismiss for lack of 27 jurisdiction is GRANTED. Accordingly, Plaintiff’s motion for preliminary injunction is 28 denied as MOOT. 1 I. BACKGROUND 2 A. Plaintiff’s Allegations 3 This case involves Defendants’ decision to revoke Plaintiff’s membership in Secure 4 Electronic Network for Travelers Rapid Inspection (“SENTRI”), one of the Trusted 5 Traveler Programs administered through the United States Department of Homeland 6 Security (“DHS”). (See Doc. 1 (“Compl.”).) 7 Plaintiff is a United States citizen who resides in San Diego, California. (Id. ¶ 6.) 8 He alleges he “has a perfect record, personally and with respect to business, and has never 9 been convicted (or ever charged) with any criminal misconduct of any kind.” (Id.) Plaintiff 10 also alleges he “has no personal or business involvement with any criminals and no 11 association whatsoever with any criminal conduct by others.” (Id.) 12 In 2013, Plaintiff separated from his then-wife, Margarita Rozillio Jajati (“Rozillio 13 Jajati”). (Id. ¶ 15.) Plaintiff and Rozillio Jajati’s divorce finalized on May 21, 2015. (Id.) 14 On October 12, 2018, Rozillio Jajati was arrested for crossing the United States-Mexico 15 international border with methamphetamines. (Id. ¶ 16.) Plaintiff alleges on information 16 and belief that Rozillio Jajati “bailed out and fled.” (Id.) The publicly available criminal 17 docket in Rozillio Jajati’s case confirms Rozillio Jajati absconded and currently has 18 outstanding a warrant for her arrest. See United States v. Rozillio Jajati, Case No. 18-cr- 19 4803-W (S.D. Cal.), Docs. 28 and 29 (showing failure to appear and issuance of a bench 20 warrant on February 4, 2019). Plaintiff alleges neither he nor the two children he shares 21 with Rozillio Jajati are in personal or business contact with Rozillio Jajati. (Compl. ¶ 29.) 22 The same day Rozillio Jajati was arrested (October 12, 2018), Plaintiff received 23 notice that his SENTRI membership had been revoked. (Id. ¶ 17.) On or around February 24 19, 2019, Plaintiff had an interview with a CBP supervisor regarding revocation of his 25 SENTRI membership. (Id. ¶ 18.) On August 2, 2019, Plaintiff’s membership in SENTRI 26 27 28 1 was reinstated. (Doc. 7-1 at 7.) On August 2, 2021, Plaintiff received notice from CBP 2 that his SENTRI membership had again been revoked. (Id. ¶ 22.) The letter from CBP 3 indicated the reason for the revocation was that Plaintiff “no longer qualif[ied] for the 4 Trusted Traveler Program.” (Id.) Plaintiff attributes the second revocation of his SENTRI 5 membership to Operation Sentinel, a “counter-network targeting operation focused on 6 transnational criminal organizations affiliated with the smuggling of migrants” 7 administered by DHS, which was announced by DHS Secretary Alejandro N. Mayorkas 8 on April 27, 2021. (Id. ¶¶ 20–21.) Plaintiff alleges he had a second “interview with a 9 supervisor regarding the revocation of his” SENTRI membership on or around September 10 30, 2021. (Id. ¶ 26.) As of the date of this Order, Plaintiff’s membership in SENTRI 11 remains revoked. (See id. ¶ 27.) 12 Plaintiff subsequently filed this lawsuit on February 7, 2022, seeking a declaration 13 from the Court that CBP’s revocation of Plaintiff’s SENTRI membership is arbitrary and 14 capricious and contrary to law in violation of the Administrative Procedure Act (“APA”), 15

16 1 In his Complaint, Plaintiff alleges his SENTRI membership was reinstated on or before 17 January 14, 2020. (Compl. ¶ 19.) However, in connection with their motion to dismiss, Defendants request the Court take judicial notice of the dates on which Plaintiff’s SENTRI 18 membership was initially revoked (October 12, 2018), reinstated (August 2, 2019), and 19 revoked again (August 2, 2021). (See Doc. 7-2 (Request for Judicial Notice); Doc. 7-1, Exs. 1–3 (Letter correspondence to Plaintiff from DHS regarding SENTRI membership).) 20 Federal Rule of Evidence Rule 201 provides that a court may take judicial notice of 21 adjudicative facts that are “not subject to reasonable dispute” because they are either (1) “generally known within the trial court’s territorial jurisdiction” or (2) “can be accurately 22 and readily determined from sources whose accuracy cannot reasonably be questioned.” 23 FED. R. EVID. 201(a), (b). The dates associated with Plaintiff’s SENTRI membership changes “can be accurately and readily determined from” the DHS letters to Plaintiff. FED. 24 R. EVID. 201(b)(2). Neither party disputes the DHS letters’ authenticity, or their accuracy. 25 Id. Additionally, the Ninth Circuit has held that even where a document is not attached to the complaint, “it may be incorporated by reference into a complaint if the plaintiff refers 26 extensively to the document or the document forms the basis of the plaintiff’s claim.” 27 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Accordingly, the Court grants Defendants’ request for judicial notice. 28 1 5 U.S.C. §§ 551 et seq. (See id. ¶¶ 1–2.) Plaintiff also alleges CBP failed to provide him 2 an adequate explanation for revoking his SENTRI membership. (Id. ¶¶ 23, 30, 35–36.) 3 B. SENTRI 4 The relevant statute governing SENTRI is 8 U.S.C. § 1365b, which instructs the 5 DHS Secretary to “establish an international registered traveler program that incorporates 6 available technologies, such as biometrics and e-passports, and security threat assessments 7 to expedite the screening and processing of international travelers, including United States 8 Citizens and residents, who enter and exit the United States.” 8 U.S.C. § 1365b(k)(3)(A). 9 The Secretary was further instructed to “initiate a rulemaking to establish the program [and] 10 criteria for participation,” and ensure that the program “includes as many participants as 11 practicable by . . . providing applicants with clear and consistent eligibility guidelines.” 8 12 U.S.C. § 1365b(k)(3)(C), (E). The statute itself does not establish eligibility guidelines for 13 any traveler program, nor does the statute reference denial or revocation of any such 14 program. 15 Through agency regulations, the Secretary has outlined eligibility criteria for Port 16 Passenger Accelerated Service Systems (“PORTPASS”) programs. 8 C.F.R. § 235.7. 17 PORTPASS programs were designed as “[a] system in which certain ports-of-entry (POEs) 18 are identified and designated by the Service as providing access to the United States for a 19 group of identified, low-risk, border crossers.” 8 C.F.R. § 235.7(a)(1)(i). SENTRI is one 20 of the PORTPASS programs established by DHS. 75 Fed. Reg. 82202, 82203 (Dec. 29, 21 2010). 2 22 SENTRI “allows expedited entry at specified land border ports along the U.S.- 23 Mexico border for pre-approved, low-risk travelers.” Id.; see also 85 Fed. Reg. 55597, 24 55600 (Sept. 9, 2020). Membership in SENTRI is desirable due in part to the significantly 25

26 2 SENTRI was initially developed by the legacy Immigration and Naturalization Service 27 (“INS”). 85 Fed. Reg. 55597, 55598 (Sept. 9, 2020). The Homeland Security Act of 2002, Public Law 107–296, transferred the functions of the INS to the Department of Homeland 28 1 shortened wait times at the border for pre-approved travelers. See 85 Fed. Reg. at 55600 2 (“PORTPASS was a series of programs designed to identify preregistered, low-risk 3 travelers and permit them to enter the United States within predictable wait times . . . One 4 of the main purposes of the PORTPASS programs was to ease commuter traffic at land 5 ports of entry by providing dedicated commuter lanes (DCLs) to facilitate the rapid passage 6 of low-risk, frequent travelers.”); see also Doc. 10 at 29 (“The wait-time differential that 7 Plaintiff has suffered (e.g. San Ysidro), can be as much as two to three hours and has even 8 been as high as five or six hours.”). 9 Certain eligibility requirements for participation in PORTPASS programs are 10 contained in 8 C.F.R. § 235.7. “Criteria which will be considered in the decision to approve 11 or deny the application include the following: admissibility to the United States and 12 documentation so evidencing, criminal history and/or evidence of criminality, purpose of 13 travel, employment, residency, prior immigration history, possession of current driver’s 14 license, vehicle insurance and registration, and vehicle inspection.” 8 C.F.R. 15 § 235.7(a)(4)(x). The district director having jurisdiction over the POE where the applicant 16 requests access has discretion to deny a PORTPASS application. Id. 17 An individual’s PORTPASS access may also be revoked “at the discretion of the 18 district director or the chief patrol agent.” See 8 C.F.R. § 235.7(b)(“A PORTPASS 19 program participant who violates any condition of the PORTPASS program, or who has 20 violated any immigration law or regulation, or a law or regulation of the United States 21 Customs Service or other Federal Inspection Service, or who is otherwise determined by 22 an immigration officer to be inadmissible to the United States or ineligible to participate in 23 PORTPASS, may have the PORTPASS access revoked at the discretion of the district 24 director or the chief patrol agent.”). While the law provides no process for appeal from the 25 denial of a PORTPASS application, “denial is without prejudice to reapplying for this or 26 any other Service benefit” after 90 days have passed following the application denial or 27 revocation. 8 C.F.R. § 235.7(a)(4)(x). Finally, the statute provides that “[n]othing in this 28 section is intended to create any right or benefit, substantive or procedural, enforceable in 1 law or equity by a party against the Department of Justice, the Immigration and 2 Naturalization Service, their officers or any employees of the Department of Justice.” 8 3 C.F.R. § 235.7(c). 4 While Plaintiff uses the terms SENTRI and Global Entry interchangeably throughout 5 his Complaint and opposition to Defendants’ motion to dismiss, SENTRI and Global Entry 6 are distinct programs governed by separate regulations. Global Entry, like SENTRI, is a 7 Trusted Traveler Program. 85 Fed. Reg. at 55597. Global Entry “allows preapproved 8 travelers dedicated CBP processing at designated airports, currently through the use of 9 automated kiosks.” Id. Although SENTRI and Global Entry, along with another Trusted 10 Traveler Program called NEXUS, “have developed many commonalities over recent years, 11 the Global Entry, SENTRI, and NEXUS programs have retained their own fees, fee 12 payment schedules, application processes, and rules regarding the payment of the 13 application fee by minors.” Id. at 55598. The Global Entry program has its own set of 14 regulations, 8 C.F.R. § 235.12, which describe the factors which make an applicant 15 disqualified for Global Entry, 8 C.F.R. § 235.12(b)(2), and provide a list of reasons why a 16 Global Entry participant can be suspended or removed from the program. 8 C.F.R. 17 § 235.12(j)(2). While DHS has proposed that a new regulation be established, which would 18 model the SENTRI program regulations after the Global Entry regulations, the new 19 regulation has yet to be finalized. See 85 Fed. Reg. at 55618, 55603. 20 II. LEGAL STANDARD 21 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction 22 Federal courts are courts of limited jurisdiction without general subject matter 23 jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). 24 Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action where the 25 court lacks subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Plaintiff bears the 26 burden of establishing subject matter jurisdiction. See McNutt v. Gen. Motors Acceptance 27 Corp., 298 U.S. 178, 189 (1936); Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 28 1 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 2 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 3 1214, 1242 (9th Cir. 2000)). “In a facial attack, the challenger asserts that the allegations 4 contained in a complaint are insufficient on their face to invoke federal jurisdiction. By 5 contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 6 themselves, would otherwise invoke federal jurisdiction.” Id. “If the defendant brings a 7 facial attack, a district court must assume that the factual allegations in the complaint are 8 true and construe them in the light most favorable to the plaintiff.” Li v. Chertoff, 482 F. 9 Supp. 2d 1172, 1175 (S.D. Cal. 2007) (citing United States v. One 1997 Mercedes E420, 10 175 F.3d 1129, 1130–31 & n.1 (9th Cir. 1999) and Warren v. Fox Family Worldwide, Inc., 11 328 F.3d 1136, 1139 (9th Cir. 2003)). If the defendant brings a factual attack, however, 12 the Court need not presume the truthfulness of plaintiff’s allegations. Id. In such a case, 13 the district court “may review evidence beyond the complaint without converting the 14 motion to dismiss into a motion for summary judgment.” Safe Air, 373 F.3d at 1039. 15 B. Administrative Procedure Act 16 “The APA ‘sets forth the procedures by which federal agencies are accountable to 17 the public and their actions subject to review by the courts.’” Dep’t of Homeland Sec. v. 18 Regents of the Univ. of California, 140 S. Ct. 1891, 1905 (2020) (quoting Franklin v. 19 Massachusetts, 505 U.S. 788, 796 (1992)); see also 5 U.S.C. § 706. The APA “requires 20 agencies to engage in ‘reasoned decisionmaking.’” Id. (quoting Michigan v. EPA, 576 U.S. 21 743, 750 (2015)). Agency actions may be set aside by a reviewing court if the action is 22 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 23 U.S.C. § 706(2)(A). Under this “narrow standard of review, . . . a court is not to substitute 24 its judgment for that of the agency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 25 513 (2009) (internal quotation marks omitted). Instead, the reviewing court should “assess 26 only whether the decision was ‘based on a consideration of the relevant factors and whether 27 there has been a clear error of judgment.’” Dep’t of Homeland Sec. v. Regents, 140 S. Ct. 28 1 at 1905 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 2 (1971)). 3 The APA establishes a “basic presumption of judicial review [for] one ‘suffering 4 legal wrong because of agency action.’” Abbott Labs. v. Gardner, 387 U.S. 136, 140 5 (1967) (quoting 5 U.S.C. § 702). “That presumption can be rebutted by a showing that the 6 relevant statute ‘preclude[s]’ review, § 701(a)(1), or that the ‘agency action is committed 7 to agency discretion by law,’ § 701(a)(2).” Dep’t of Homeland Sec. v. Regents, 140 S. Ct. 8 at 1905. The latter exception is at issue here, as Defendants argue “the underlying SENTRI 9 regulation commits the agency’s decision to revoke Mr. Jajati’s SENTRI membership to 10 the sound discretion of the agency and there exists no meaningful standard against which 11 this Court may judge the agency’s exercise of discretion.” (Doc. 7 at 8.) 12 The Supreme Court has “read the exception in § 701(a)(2) quite narrowly, restricting 13 it to ‘those rare circumstances where the relevant statute is drawn so that a court would 14 have no meaningful standard against which to judge the agency’s exercise of discretion.’” 15 Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 139 S. Ct. 361, 370 (2018) 16 (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)); see also Heckler v. Chaney, 470 U.S. 17 821, 830 (1985) (“[I]f no judicially manageable standards are available for judging how 18 and when an agency should exercise its discretion, then it is impossible to evaluate agency 19 action for ‘abuse of discretion.’”). The Section 701(a)(2) exception has been applied in 20 “few cases” which “involved agency decisions that courts have traditionally regarded as 21 unreviewable, such as the allocation of funds from a lump-sum appropriation, Lincoln, 508 22 U.S., at 191, 113 S. Ct. 2024 or a decision not to reconsider a final action, ICC v. 23 Locomotive Engineers, 482 U.S. 270, 282, 107 S. Ct. 2360, 96 L.Ed.2d 222 (1987).” 24 Weyerhaeuser, 139 S. Ct. at 370. 25 III. DISCUSSION 26 Defendants, relying on 5 U.S.C. § 701(a)(2), argue the motion to dismiss for lack of 27 jurisdiction should be granted because “the underlying SENTRI regulation commits the 28 agency’s decision to revoke Mr. Jajati’s SENTRI membership to the sound discretion of 1 the agency and there exists no meaningful standard against which this Court may judge the 2 agency’s exercise of discretion.” (Doc. 7 at 8.) They argue “the authorizing statute for 3 SENTRI, 8 U.S.C. § 1365b(k)(3)(A), itself contains no guidance regarding who is eligible 4 to participate in any program” and that the regulations promulgated under 8 U.S.C. 5 § 1365b(k)(3)(A) provide only “general guidance” regarding eligibility to participate in 6 SENTRI. (Id. at 9.) Plaintiff argues the Court does have jurisdiction under the APA to 7 review CBP’s decision to revoke Plaintiff’s SENTRI membership, as well as CBP’s 8 “refusal to provide a reason for the denial action.” (Doc. 8 at 7.) Having reviewed the 9 parties’ arguments and the relevant law, the Court finds it is precluded from reviewing the 10 agency’s decision to revoke Plaintiff’s SENTRI membership under the APA, because 11 revocation of an individual’s right to participate in the program is committed solely to the 12 agency’s discretion. 13 While the Court begins with the “basic presumption of judicial review” established 14 by the APA, “[t]hat presumption can be rebutted by a showing that . . . the ‘agency action 15 is committed to agency discretion by law.’” Dep’t of Homeland Sec. v. Regents, 140 S. Ct. 16 at 1905 (quoting 5 U.S.C. § 701(a)(2)). The Court reads the § 701(a)(2) exception “quite 17 narrowly,” but nevertheless finds the agency’s decision to revoke Plaintiff’s SENTRI 18 membership is one of “those rare ‘administrative decision[s] traditionally left to agency 19 discretion.’” Id. (quoting Lincoln, 508 U.S. at 191). 20 “[Section] 701(a)(2) requires careful examination of the statute on which the claim 21 of agency illegality is based.” Webster v. Doe, 486 U.S. 592, 600 (1988). The authorizing 22 statute, 8 U.S.C. § 1365b(k), provides only a general mandate that DHS “establish an 23 international registered traveler program” and “initiate a rulemaking to establish the 24 program” as well as the “criteria for participation.” 8 U.S.C. § 1365b(k)(3)(A), (C). Aside 25 from providing that the Secretary “ensure that the international registered traveler program 26 includes as many participants as practicable by . . . providing applicants with clear and 27 consistent eligibility guidelines,” the statute is silent regarding the criteria to apply in 28 denying or revoking an individual’s membership in SENTRI. 8 U.S.C. § 1365b(k)(3)(E). 1 Additionally, the regulation governing SENTRI provides that “[a]n application may be 2 denied in the discretion of the district director having jurisdiction over the POE where the 3 applicant requests access.” 8 C.F.R. § 235.7(a)(4)(x) (emphasis added). While the 4 regulation provides a list of “[c]riteria which will be considered in the decision to approve 5 or deny the application,” including “admissibility to the United States and documentation 6 so evidencing, criminal history and/or evidence of criminality, purpose of travel, 7 employment, residency, prior immigration history, possession of current driver’s license, 8 vehicle insurance and registration, and vehicle inspection,” the regulation is silent 9 regarding how the agency weighs these factors or whether any factor is dispositive in 10 evaluating a SENTRI membership application. Id. (emphasis added). The decision to 11 revoke one’s membership in SENTRI is committed to the sole discretion of the district 12 director or chief patrol agent, and such membership can be revoked if the individual is 13 “otherwise determined by an immigration officer to be inadmissible to the United States or 14 ineligible to participate in PORTPASS.” 8 C.F.R. § 235.7(b). The regulation does not 15 further define when an individual is “otherwise . . . ineligible to participate in 16 PORTPASS.” Given the wording of the statute and regulations governing SENTRI, there 17 exists “no judicially manageable standards . . . for judging how and when an agency should 18 exercise its discretion” in deciding whether to revoke SENTRI membership. Heckler, 470 19 U.S. at 830. 20 In support of their motion to dismiss, Defendants cite Woodward v. United States 21 Customs & Border Prot., No. CV-20-00151-TUC-DCB, 2022 WL 294214 (D. Ariz. Feb. 22 1, 2022). In Woodward, the plaintiff alleged CBP arbitrarily and capriciously revoked his 23 SENTRI membership following an altercation between Plaintiff and a CBP officer at the 24 United States-Mexico border. Id. at *1. Plaintiff objected both to the revocation of his 25 SENTRI pass, as well as the allegedly insufficient explanation given by CBP for the 26 revocation. Id. District Judge David C. Bury, in ruling on the parties’ cross motions for 27 summary judgment, held that “[t]he decision to revoke the Plaintiff’s eligibility for the 28 PORTPASS access program is simply not the type of final agency action subject to review 1 under the APA.” Id. at *5. The Court based its holding on a review of the language of 8 2 U.S.C. § 1365b(k) and 8 C.F.R. § 235.7, as well as its finding that “the regulations clearly 3 establish . . . that in determining eligibility, including revoking it, the matter is solely up to 4 the discretion” of the agency. Id. at *4. While not binding precedent, the Court agrees 5 with the holding in Woodward and reaches a similar result here. 6 Plaintiff cites a myriad of cases in his opposition to Defendants’ motion to dismiss 7 which the Court finds either inapposite or distinguishable. The orders in Omar v. Kerry, 8 No. 15-CV-01760-JSC, 2015 WL 5964901 (N.D. Cal. Oct. 13, 2015) and Omar v. Kerry, 9 No. 15-CV-01760-JSC, 2016 WL 617449 (N.D. Cal. Feb. 16, 2016), were—as Plaintiff 10 admits (see Doc. 8 at 7)—subsequently vacated, Omar v. Pompeo, No. 3:15-CV-01760- 11 JSC, 2018 WL 4191416 (N.D. Cal. Aug. 16, 2018), and in any event involved the 12 revocation of a passport, which is not at issue here.3 The plaintiff in Lizarraga v. Maggi, 13 No. 10CV2299 DMS RBB, 2011 WL 2636851 (S.D. Cal. July 6, 2011) did not file a claim 14 under the APA; instead, the plaintiff in that case filed claims for Fifth Amendment due 15 process, Bivens, and Federal Tort Claims Act violations in connection with the revocation 16 of his electronic filer code. Id. at *2. The agency action at issue in New York v. Wolf, No. 17 20-CV-1127 (JMF), 2020 WL 6047817, at *6 (S.D.N.Y. Oct. 13, 2020), another case on 18 which Plaintiff relies, is distinguishable. There, the state of New York and a certified class 19 of New Yorkers challenged DHS’s decision to suspend the eligibility of all New York 20 residents to enroll or re-enroll in Trusted Traveler Programs. Id. at *1–2. Plaintiffs moved 21 for summary judgment on their APA claims, but before Defendants’ opposition to the 22 motion was due, DHS announced it was lifting the ban on New Yorkers wishing to apply 23 for Trusted Traveler Programs, and Defendants informed the Court the DHS ban on New 24 Yorkers was “not legally supportable.” Id. at *4. In other words, while the Court found it 25

26 3 Indeed, Plaintiff is still able to cross the United States-Mexico border despite the 27 revocation of his SENTRI membership. The effect of the revocation of Plaintiff’s membership in SENTRI is that Plaintiff cannot use the dedicated SENTRI lane, not that he 28 1 had jurisdiction over the dispute, its ruling was limited to the state-wide ban on New 2 Yorkers applying for any Trusted Traveler Programs, as opposed to any DHS decision over 3 an individual’s SENTRI application. 4 Two of the cases Plaintiff cites are more persuasive, but the Court finds both 5 distinguishable on the grounds that the court’s holding was premised on a review of the 6 Global Entry program regulation, not the regulation governing SENTRI. In Boylan v. 7 Morgan et al., Case No. 20-cv-01967-WQH-AHG (S.D. Cal. July 22, 2021), while the 8 court found it had jurisdiction under the APA to review CBP’s decision to deny the 9 plaintiff’s SENTRI application, it did so by relying on the text of 8 C.F.R. § 235.12—the 10 regulation governing the Global Entry program—rather than 8 C.F.R. § 235.7, which 11 covers membership in SENTRI.4 Similarly, while the court in McLean v. Morgan, No. 20- 12 2145-JWB, 2020 WL 5094683, at *6 (D. Kan. Aug. 28, 2020) found it had jurisdiction 13 over the plaintiff’s APA claims following the denial of his Global Entry application, the 14 court in that case relied on the Global Entry regulations present in 8 C.F.R. § 235.12—a 15 regulation that is not at issue here.5 While Global Entry and SENTRI maintain similarities, 16 the two are distinct programs, governed by separate regulations containing unique 17 eligibility requirements. 18 Accordingly, the Court finds that it lacks jurisdiction under the APA to review 19 Defendants’ decision to revoke Plaintiff’s SENTRI membership. 20 / / / 21 / / / 22 / / / 23 / / / 24

25 4 The court noted that “[a]ll parties appl[ied] the regulations for the Global Entry program in 8 C.F.R. § 235.12 to the denial of Plaintiff’s application for the SENTRI program” in 26 their briefing on the motion to dismiss. Boylan v. Morgan et al., Case No. 20-cv-01967- 27 WQH-AHG, Doc. 34 at 13 n.2 (S.D. Cal. July 22, 2021). 5 In any event, the holding in McLean v. Morgan, No. 20-2145-JWB, 2020 WL 5094683 28 l IV. CONCLUSION 2 For the reasons discussed above, Defendants’ motion to dismiss for lack of subject 3 ||matter jurisdiction (Doc. 7) 1s GRANTED. Accordingly, Plaintiff's motion for 4 || preliminary injunction (Doc. 10) is DENIED AS MOOT. The Clerk of Court is directed 5 close the case. 6 IT IS SO ORDERED. 7 ||DATE: October 14, 2022 8

10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13