Vivint, Inc. v. Mayorkas, 2:21-cv-00076-JNP-CMR

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
PartiesVIVINT, INC., et al., Plaintiffs, v. ALEJANDRO MAYORKAS, et al., Defendants.
Docket Number2:21-cv-00076-JNP-CMR
Decision Date05 July 2022

VIVINT, INC., et al., Plaintiffs,

ALEJANDRO MAYORKAS, et al., Defendants.

No. 2:21-cv-00076-JNP-CMR

United States District Court, D. Utah

July 5, 2022




Plaintiffs Vivint, Inc. (“Vivint”) and a group of Vivint employees filed this case seeking various kinds of relief related to Vivint's L-1B visa petitions on behalf of the individual plaintiffs. The case comes before the court on Defendants' partial motion to dismiss. After hearing oral argument on May 9, 2022 and reviewing the briefs, the court took the matter under advisement. The court also accepted supplemental briefing on the impact of the recent Supreme Court decision, Patel v. Garland, 142 S.Ct. 1614 (2022). The court now GRANTS Defendants' partial motion to dismiss.


Vivint is one of the largest home automation companies in North America. The company operates offices throughout the United States and Canada. Vivint filed petitions for L-1B visas for a number of employees. An L-1B visa is a non-immigrant visa that enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization's interests from one of its affiliated foreign offices to one of its offices in the United States. Vivint specifically filed the L-1B petitions for employees in Sales Manager positions.


The individual plaintiffs are all Vivint employees for whom Vivint petitioned visas. The individual plaintiffs fall into different categories based on the procedural posture of their immigration cases. This motion pertains only to those employees who “applied for admission at preclearance stations or ports of entry, were determined by CBP officers to be inadmissible, and were given the opportunity to withdraw their applications for admission.” See ECF No. 66, at 3. Joseph Friesen, Jeffrey Harbidge, Joel Holmes, Jovan Kang, Jason Rawlek, Muhammad Siddiqui, and Jonathan Whidden fall into this category. For purposes of this motion, “Plaintiffs” refers to these individual Plaintiffs.

Defendants are officials that lead various United States immigration agencies including the Department of Homeland Security, United States Citizenship and Immigration Services, and Customs and Border Protection (“CBP”).

This case requires some background regarding the United States' immigration system. Our immigration system is largely governed by the Immigration and Nationality Act (“INA”), codified in Title 8 of the U.S. Code. Under the INA, a foreign national arriving at the United States' border is considered an “applicant for admission.” 8 U.S.C. § 1225(a)(1). This includes individuals who arrive at the border with a visa or other documentation. In other words, a visa grants permission to apply for admission; it does not ensure admission to the United States. At the border, a CBP officer makes a determination as to the individual's admissibility. The INA enumerates many grounds for a CBP officer to make a finding of inadmissibility. For purposes of this case, the relevant provision renders inadmissible an applicant for admission who “is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission.” Id. § 1182(a)(7)(B)(i)(II).


When an immigration officer concludes that a noncitizen lacks a valid visa and thus is inadmissible under § 1182(a)(7)(B)(i)(II), the officer “shall order the alien removed from the United States without further hearing or review.” Id. § 1225(b)(1)(A)(i). This is commonly called “expedited removal.” Final orders of removal issued under the expedited removal provision are largely not subject to judicial review.[1] See id. § 1252(a)(2)(A)(i) (“[N]o court shall have jurisdiction to review . . . any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1).”). And the admissibility determination underlying the final order of removal is not reviewable. See id. § 1252(e)(5) (“There shall be no review of whether the alien is actually inadmissible.”).

If a CBP officer finds that an applicant for admission is inadmissible, the officer may, in her discretion, permit the applicant to withdraw her application for admission and depart immediately. Id. § 1225(a)(4). Noncitizens who withdraw their applications for admission avoid entry of a final order of removal against them. Final orders of removal can carry serious consequences. For instance, a final order of removal issued pursuant to 8 U.S.C. § 1182(a)(7) carries a five-year bar on admission to the United States. Id. § 1182(a)(9)(A)(i).

The present motion argues that the court lacks subject matter jurisdiction over claims related to the individual plaintiffs because the INA provides that CBP officers' decisions are discretionary and thus not subject to judicial review.



A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests the subject matter jurisdiction of the court. Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015). The plaintiff bears the burden of establishing the court's jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Because Defendants bring a facial attack on the complaint's allegations, the court must accept as true all material fact allegations in the complaint. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013) (citation omitted).

Generally, there is a “strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986), superseded on other grounds by 42 U.S.C. § 405. It takes “clear and convincing evidence to dislodge that presumption.” Kucana v. Holder, 558 U.S. 233, 250 (2010) (internal citation and quotation omitted).


Plaintiffs bring their claims pursuant to the APA.[2] The APA permits a court to set aside an agency action or decision if the action or decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The APA outlines when judicial


review of agency action is available. Sections 701-06 of the APA supply a “default rule . . . that agency actions are reviewable under federal question jurisdiction . . . even if no statute specifically authorizes judicial review.” ANA Int'l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004). But Congress can abrogate the presumption of judicial review. 5 U.S.C. § 701(a)(1) (noting that the APA does not apply “to the extent that . . . statutes preclude judicial review.”).

Under the INA, Congress abrogated the presumption of judicial review for certain immigration-related decisions. Specifically, the INA strips this court of jurisdiction to review discretionary decisions by immigration officials, see 8 U.S.C. § 1252(a)(2)(B)(ii) (denying district courts jurisdiction to review “any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security”), as well as most decisions related to an expedited order of removal, see id. § 1252(a)(2)(A)(i) (“[N]o court shall have jurisdiction to review . . . any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1).”).

The question here, then, is whether Congress has abrogated this court's ability to hear the relevant claims. Although Plaintiffs can overcome several bars to jurisdiction, the court ultimately determines that Congress has stripped this court of jurisdiction over the relevant claims.

I. APPLICABILITY OF 8 U.S.C. § 1252(a)(2)(B)(ii)

Defendants first argue that the court lacks subject matter jurisdiction over Plaintiffs' claims because the INA provides that the decision whether to permit a noncitizen to withdraw her application for admission rests in the discretion of an immigration officer. See 8 U.S.C. § 1225(a)(4) (“An alien applying for admission may, in the discretion of the Attorney General and


at any time, be permitted to withdraw the application for admission and depart immediately from the United States.”). But, as Plaintiffs point out, they do not challenge the decision to permit withdrawal of their applications for admission, but rather the prior decision finding them inadmissible.

All noncitizens who arrive at the United States-even those who possess a visa-must be inspected by immigration officers for admissibility. Id. § 1225(a)-(b). If an immigration officer finds an individual inadmissible, they cannot admit the individual into the United States absent a waiver of inadmissibility. See id. § 1182(a) (“Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are . . . ineligible to be admitted to the United States.”). In other words, “for a CBP officer to deny entry to a person seeking admission at the border, they need a valid legal basis.” Atanackovic v. Duke, 399 F.Supp.3d 79, 88 (W.D.N.Y. 2019).

Accordingly, an immigration officer's admissibility decision is nondiscretionary and thus not subject to the bar on review of discretionary decisions.[3] See, e.g., United States ex rel. Vaso v. Chertoff, 369 Fed.Appx. 395, 401 (3d Cir. 2010) (unpublished) (“The determination...

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