Ayala v. Noem

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 ARTURO SEPULVEDA AYALA, CASE NO. 3:25-cv-5185-JNW 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 MOTION FOR A PRELIMINARY v. INJUNCTION 10 KRISTI NOEM, et al., 11 Defendants. 12 13 14 1. INTRODUCTION 15 This matter comes before the Court on Plaintiff Arturo Sepulveda Ayala’s 16 motion for preliminary injunction. Dkt. No. 11. On April 26, 2025, the Court issued 17 an ex parte temporary restraining order (TRO) prohibiting Defendants and their 18 agents from removing Sepulveda Ayala from the country or transferring him to 19 another detention center to preserve the status quo until both parties can fully 20 present their arguments about the wisdom of entering a preliminary injunction. 21 Dkt. No. 9. 22 Now, having considered the record, the Parties’ briefing, and the applicable 23 law, and being otherwise fully informed, the Court DENIES Sepulveda Ayala’s 1 preliminary injunction motion for the reasons below. In sum, the Court cannot 2 conclude that Sepulveda Ayala has shown a likelihood of success on the merits of

3 his underlying claims. 4 2. BACKGROUND 5 2.1 The U-visa adjudication process. Because Sepulveda Ayala’s claims are based on his U-visa application, the 6 Court finds it helpful to outline the U-visa approval process. U visas provide 7 temporary legal status to victims of certain serious crimes who have suffered 8 substantial physical or mental abuse and who cooperate with law enforcement in 9 investigating or prosecuting those crimes. See 8 U.S.C. § 1101(a)(15)(U); 10 8 C.F.R. § 214.14. Congress created U visas to encourage crime victims to report 11 crimes and assist law enforcement without fear of removal. Id. U-visa applicants 12 must show that they are admissible into the United States, 8 C.F.R. § 214.1(a)(3)(i), 13 and if they are inadmissible, they generally must file a Form I-192, which requests 14 a waiver of certain grounds for inadmissibility. 8 C.F.R. § 214.14(c)(2)(iv). Congress 15 capped the number of U visas at 10,000 per year. 8 C.F.R. § 214.14(d). 16 For each U-visa petition (Form I-918), USCIS must “issue a written decision 17 approving or denying [it].” 8 C.F.R. § 214.14(c)(3), (4). If the petitioner is eligible for 18 U-1 nonimmigrant status, then USCIS “will approve” the petition. 8 C.F.R. 19 § 214.14(c)(5)(i). And if the petitioner is already in the United States, “USCIS will 20 also concurrently grant U-1 nonimmigrant status,” by conferring a U-visa to the 21 petitioner “subject to the . . . limitation” on the number of U-visas available. Id.; 8 22 C.F.R. § 214.14(d) 23 1 Because applications far exceed the 10,000 annual limit, eligible applicants 2 typically wait several years before receiving actual U visas, creating a substantial

3 backlog. 8 C.F.R. § 214.14(d)(2). To address these lengthy delays, USCIS created a 4 waiting list process for those awaiting visa availability. Id. (“All eligible petitioners 5 who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed 6 on a waiting list[.]”). Waitlisted petitioners receive either deferred action or parole, 7 and they qualify for other interim benefits, like work authorization in the form of 8 “Employment Authorization Documents” (“EADs”). Id.

9 Recently, through agency policymaking, USCIS developed the “Bona Fide 10 Determination” (“BFD”) process to speed up its U-visa processing. Barrios Garcia v. 11 U.S. Dep’t of Homeland Sec., 25 F.4th 430, 438 (6th Cir. 2022) (citing USCIS Policy 12 Alert at 2 (June 14, 2021), https://www.uscis.gov/sites/default/files/document/policy- 13 manual-updates/20210614-VictimsOfCrimes.pdf) (“Policy Alert”). During this 14 process, USCIS conducts “bona fide determinations (BFD) and provides EADs and 15 deferred action to noncitizens with pending, bona fide petitions who meet certain

16 standards.” Policy Alert at 2; see also USCIS, Policy Manual, Vol. 3, Part C, Ch. 5, 17 https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5 (last visited June 4, 18 2025). Because USCIS adopted this policy for its expediency, it will not conduct a 19 waiting list adjudication for a BFD recipient unless ordered to do so. See USCIS, 20 Policy Manual, Vol. 3, Part C, Ch. 5, Ch. 6; cf. Dkt. No. 16 at 6–7 (Government’s 21 Opposition) (“Alternatively, if for some reason a petitioner does not receive a BFD,

22 only then does USCIS initiate a waiting list adjudication[.]”). 23 1 2.2 Mr. Sepulveda Ayala. In 2004, Sepulveda Ayala was ordered removed from the country for entering 2 without inspection. He claims that the last time he entered the United States was 3 in 2004. Dkt. No. 1 at 6. On November 15, 2022, Sepulveda Ayala applied for a U- 4 visa, concurrently submitting a Form I-192, Application for Advance Permission to 5 Enter as a Nonimmigrant, and form I-765, Application for Employment 6 Authorization. Id. at 7; see also Dkt. Nos. 1-1; 6-1 at 1–2. He also applied for stay of 7 removal with U.S. Immigration and Customs Enforcement (ICE); ICE granted it 8 and stayed his removal from the United States until January 23, 2025. Dkt. Nos. 1- 9 1; 6-1 at 1–2. 10 On January 8, 2025, Sepulveda Ayala still had not received a decision on his 11 U-visa application, and so he filed a second stay application with ICE to prevent his 12 removal while his U visa and Form I-192 were pending. Dkt. Nos. 1-1; 6-1 at 1–2. 13 ICE did not adjudicate his second stay application before the first stay expired. See 14 Dkt. Nos. 1-1; 6-1 at 1–2. On February 2, 2025, ICE reinstated Sepulveda Ayala’s 15 2004 order of removal and used it to arrest and detain him. See Dkt. Nos. 6-1 at 1– 16 2; 17-1. ICE continues to detain Sepulveda Ayala at the Northwest ICE Processing 17 Center in Tacoma, Washington. 18 On February 19, 2025, USCIS issued Sepulveda Ayala a BFD with deferred 19 action, and a few days later, it granted his EAD application. Dkt. No. 1-1; Dkt. No. 20 6-1 at 4–5. It is undisputed that the Government has granted Sepulveda Ayala 21 “BFD EAD” benefits and deferred action. See generally Dkt. No. 16 (Government’s 22 Opposition). 23 1 On March 5, 2025, Sepulveda Ayala filed a complaint for mandamus relief to 2 compel the adjudication of whether he should be placed on the U-visa waitlist,

3 adjudication of the U visa itself, and adjudication of his application for advance 4 permission to enter as a nonimmigrant. Dkt. No. 1. The complaint also alleges 5 violations of Sepulveda Ayala’s Fifth Amendment due process rights and the 6 Administrative Procedure Act. Id. 7 One day later, on March 6, 2025, ICE denied Sepulveda Ayala’s second stay 8 application as “unnecessary and in fact, redundant,” because USCIS had already

9 granted Sepulveda Ayala deferred action. Dkt. No. 6-1 at 2, 6–7. 10 On April 25, 2025, Sepulveda Ayala filed an emergency ex parte motion for a 11 TRO, explaining that ICE intended to deport him within two weeks. Dkt. No. 6; 12 Dkt. No. 6-1 at 3 (explaining Ayala will soon be “manifested for removal”). On April 13 26, the Court granted the motion and enjoined his removal temporarily. Dkt. Nos. 9; 14 13. A few days later, on April 30, 2025, Plaintiff’s attorney received a second ICE 15 order, explaining that ICE had sua sponte reconsidered Sepulveda Ayala’s

16 application for a stay of removal. Dkt. No. 11-1. ICE’s reconsideration order, which 17 was conducted by a different field office, denied Sepulveda Ayala’s application for a 18 stay, stating: 19 The ICE Office of Enforcement and Removal Operations in Seattle received your ICE Form I-246, Application for Stay of Deportation or 20 Removal. On March 6, 2025, ERO Seattle denied this ICE form I-246 on the basis that you were not subject to imminent removal from the 21 United States. Upon further legal review, this has been determined not to be accurate and a second review and consideration of your ICE 22 Form I246 was completed.

23 1 Id. at 2. On May 2, 2025, Sepulveda Ayala filed this motion for a preliminary 2 restraining order. The Court extended the TRO twice to maintain the status

3 quo while receiving and considering briefing on the requested preliminary 4 injunction. 5 3. DISCUSSION 6 3.1 The Court has subject-matter jurisdiction. “Federal courts are always under an independent obligation to examine their 7 own jurisdiction, and a federal court may not entertain an action over which it has 8 no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (citation 9 modified). The Government challenges the Court’s jurisdiction here, arguing 10 8 U.S.C. § 1252(g) deprives the Court of jurisdiction. Section 1252(g) bars 11 jurisdiction over claims “arising from the decision or action by the Attorney General 12 to commence proceedings, adjudicate cases, or execute removal orders.” But the 13 Supreme Court has interpreted this provision narrowly, limiting it to “only three 14 discrete actions”: the “‘decision or action’ to commence proceedings, adjudicate cases, 15 or execute removal orders.’” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 16 471, 482 (1999) (quoting 8 U.S.C. § 1252(g)). 17 As the Supreme Court found, “[i]t is implausible that the mention of three 18 discrete events along the road to deportation was a shorthand way of referring to all 19 claims arising from deportation proceedings.” Id. (Scalia, J.); see also Dep’t of 20 Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 19 (2020) (“Regents”) 21 (holding court had jurisdiction to review agency decision to rescind DACA, 22 consistent with Section 1252(g), because it was not a decision to “commence 23 1 proceedings,” or to “‘adjudicate’ a case or ‘execute’ a removal order” and was rather 2 a decision to “revoke[] a deferred action program with associated benefits.” (quoting

3 8 U.S.C. § 1252(g))); Jatta v. Clark, Case No. 19-cv-2086, 2020 WL 7700226, at *7 4 (W.D. Wash. July 17, 2020) (Report and Recommendation) (Section 2255(g) “d[oes] 5 not strip the district court[s] of jurisdiction to enter injunctive relief,” when “the 6 ‘gravamen’ of the defendant’s claim d[oes] not arise from the decision or action to 7 commence [removal] proceedings.” (quoting United States v. Hovsepian, 359 F.3d 8 1144, 1155 (9th Cir. 2004) (en banc))).

9 In service of its jurisdiction-striping argument, the Government 10 mischaracterizes the relief Sepulveda Ayala seeks. He does not challenge his 11 removal order or seek review of the Government’s decision to execute it. Instead, he 12 brings an APA claim challenging the Government’s unreasonable delay in 13 adjudicating his U-visa petition and placing him on the regulatory waitlist. The 14 requested preliminary injunction serves only to preserve the status quo while this 15 separate APA claim proceeds—it does not seek review of removal proceedings

16 themselves. 17 This distinction is critical and well-recognized. As the court found in Uranga 18 v. USCIS, 490 F. Supp. 3d 86, 96–97 (D.D.C. 2020), APA delay claims fall outside 19 Section 1252(g) because in those cases the plaintiff “is not challenging the 20 commencement, adjudication, or execution of his removal order” but rather “the 21 government’s delay in adjudicating . . . U-visa waitlist eligibility.” The Ninth Circuit

22 has similarly recognized that challenges to agency actions separate from removal 23 proceedings remain within district court jurisdiction. Arce v. United States, 899 F.3d 1 796, 799-800 (9th Cir. 2018) (claims arising from violation of court’s stay order, 2 rather than removal execution itself, fall outside § 1252(g)).

3 The Government’s reliance on Rauda v. Jennings, 55 F.4th 773 (9th Cir. 4 2022), and Balogun v. Sessions, 330 F. Supp. 3d 1211 (C.D. Cal. 2018), is misplaced. 5 Both cases involved direct challenges to removal through motions to reopen removal 6 proceedings or requests to stay removal based on pending immigration proceedings, 7 not APA claims for unreasonable agency delay in benefit adjudications. Here, by 8 contrast, Sepulveda Ayala challenges the Government’s failure to comply with its

9 statutory duties regarding his visa application—a claim that remains viable 10 regardless of his removal status. 11 Thus, the Court finds that Section 1252(g) does not bar its exercise of 12 jurisdiction here. 13 3.2 Sepulveda Ayala has standing. 14 The Government contends that Sepulveda Ayala lacks Article III standing 15 because he has already received through the BFD process the same relief he seeks 16 through mandamus—namely, deferred action and work authorization. Dkt. No. 16 17 at 12–13. This argument mischaracterizes both Sepulveda Ayala’s requested relief 18 and the nature of his injury. 19 Sepulveda Ayala seeks more than just deferred action and work 20 authorization. He requests adjudication of his Form I-918 U-visa petition, 21 adjudication of his Form I-192 waiver application, and placement on the regulatory 22 23 1 waitlist established by 8 C.F.R. § 214.14(d)(2). Dkt. No. 1. The Government has not 2 provided any of these adjudications. This is injury in fact.

3 The Government’s redressability argument also fails. While both may provide 4 similar interim benefits like work authorization, the regulations suggest that 5 waitlist placement may provide stronger protection against removal. See 8 C.F.R. § 6 214.14(c) (addressing removal proceedings for individuals with pending U-visa 7 petitions). The requested relief—formal adjudications and waitlist placement— 8 would provide him with regulatory protections and potentially stronger grounds for

9 challenging his removal. 10 Courts have found standing when plaintiffs challenge agency delays in 11 immigration benefit adjudications, even where interim relief has been provided. C.f. 12 Barrios Garcia, 25 F.4th at 455 (reversing dismissal U-visa applicant’s APA 13 challenge seeking waitlist adjudication despite receiving BFD benefits; remanding 14 for further proceedings). 15 Accordingly, the Court rejects the Government’s standing argument.

16 3.3 Preliminary injunction standard. 17 “A preliminary injunction is an extraordinary remedy that may only be 18 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. 19 Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “The proper legal standard for 20 preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to 21 succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence 22 of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an 23 1 injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 2 (9th Cir. 2009) (citing Winter, 555 U.S. at 20). These four factors—the Winter

3 factors—apply whenever a preliminary injunction is sought. Winter, 555 U.S. at 20; 4 see All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (“a 5 showing on all four prongs” is required). 6 The Ninth Circuit takes a “sliding scale” approach to preliminary relief, 7 under which “serious questions going to the merits and a balance of hardships that 8 tips sharply towards the plaintiffs can support issuance of a preliminary injunction,

9 so long as the plaintiffs also show that there is a likelihood of irreparable injury and 10 that the injunction is in the public interest.” Fraihat v. U.S. Immigr. & Customs 11 Enf’t, 16 F.4th 613, 635 (9th Cir. 2021) (cleaned up). This approach allows a 12 stronger showing of one Winter factor to offset a weaker showing of another. 13 Planned Parenthood Great Nw., Hawaii, Alaska, Indiana, Kentucky v. Labrador, 14 122 F.4th 825, 843–44 (9th Cir. 2024). 15 3.4 Sepulveda Ayala has not shown a likelihood of success on the merits, making a preliminary injunction inappropriate. 16 Sepulveda Ayala alleges APA and mandamus claims. Under the APA, a 17 reviewing court may “compel agency action unlawfully withheld or unreasonably 18 delayed[.]” 5 U.S.C. § 706(1). “[A] claim under § 706(1) can proceed only where a 19 plaintiff asserts that an agency failed to take a discrete agency action that it is 20 required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64, (2004) 21 (emphasis removed). “The central question in evaluating ‘a claim of unreasonable 22 delay’ is ‘whether the agency’s delay is so egregious as to warrant mandamus.’” In re 23 1 Core Commc'ns, Inc., 531 F.3d 849, 855, 382 U.S. App. D.C. 120 (D.C. Cir. 2008) 2 (quoting Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 79, 242 U.S. App.

3 D.C. 222 (D.C. Cir. 1984) (“TRAC”)). Because “mandamus relief and relief under the 4 APA are ‘in essence’ the same, when a complaint seeks relief under the Mandamus 5 Act and the APA and there is an adequate remedy under the APA, [the court] may 6 elect to analyze the APA claim only.” Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 7 2022) (quoting R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065 (9th Cir. 1997)). 8 To decide whether an agency’s delay is unreasonable under the APA, district

9 courts in the Ninth Circuit apply the “TRAC” factors. In re Pesticide Action Network 10 N. Am., Nat. Res. Def. Council, Inc., 798 F.3d 809, 813 (9th Cir. 2015) (“Pesticide 11 Action Network”) (citing TRAC, 750 F.2d at 79). These factors are: 12 (1) the time agencies take to make decisions must be governed by a rule of reason; 13 (2) where Congress has provided a timetable or other indication of 14 the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for 15 this rule of reason;

16 (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are 17 at stake;

18 (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; 19 (5) the court should also take into account the nature and extent of 20 the interests prejudiced by delay; and

21 (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably 22 delayed.

23 Id. (quoting TRAC, 750 F.2d at 79). 1 Applying the TRAC factors to Sepulveda Ayala’s claims reveals that he has 2 not shown a likelihood of success on the merits.

3 3.4.1 The first TRAC factor weighs in favor of the Government. 4 The first TRAC factor favors the Government—it “considers the length of the 5 delay and ‘whether the agency’s response time . . . is governed by an identifiable 6 rationale.’” Mahmood v. Bitter et al., 2025 WL 1529389, at *7 (W.D. Wash. May 29, 7 2025) (quoting Khan v. Blinken, No. C23-2814, 2024 WL 3446432, at *7 (E.D. Cal. 8 July 17, 2024) (citation omitted)). While not dispositive, the Ninth Circuit has held 9 that this factor is the most important. Vaz v. Neal, 33 F.4th 1131, 1138 (9th Cir. 10 2022) (citing In re A Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017) (holding first 11 TRAC factor to be most important, but explaining “[w]e have to consider them all”); 12 Barker v. USCIS, Case No. 8:23-cv-00597, 2023 WL 7107257, at *3 (C.D. Cal. Sept. 13 11, 2023). 14 USCIS process U-visa applications using a “first in, first out” approach, 15 handling petitions in the order they were received. Sepulveda Ayala does not 16 dispute that USCIS follows its general policy of processing U-visa applications in 17 this way. Courts consistently find that this “first in, first out” policy for processing 18 U-visa petitions provides an adequate rule of reason. See, e.g., Uranga, 490 F. Supp. 19 3d at103 ; cf. L’Assoc. des Americains Accidentels v. U.S. Dep’t of State, 633 F. Supp. 20 3d 74, 82 (D.D.C. Sept. 28, 2022) (“Usually, that kind of ‘first in, first out’ method 21 supplies an adequate rule of reason.”). Likewise, district courts have found that the 22 Government’s “procedure for issuing [U-visa] waitlist determinations is governed by 23 1 a rule of reason.” A.C.C.S. v. Nielsen, No. CV 18-10759-2019 WL 7841860, at *4 2 (C.D. Cal. Sept. 17, 2019).

3 Sepulveda Ayala’s two-and-a-half-year delay falls within the range courts 4 regularly find reasonable for visa processing, as courts regularly conclude that 5 equal or longer delays are reasonable. See e.g., Khosravi v. Rubio, No. 2:24-cv-1227, 6 2025 WL 821885, at *6 (W.D. Wash. March 14, 2025) (collecting cases); Barazandeh 7 v. U.S. Dep’t of State, 2024 WL 341166, at *8 (D.D.C. Jan. 30, 2024) (collecting 8 cases) (noting “district courts have generally found that immigration delays of two

9 to three years are reasonable”); Islam v. Heinauer, 32 F. Supp. 3d 1063, 1071 (N.D. 10 Cal. March 7, 2014) (collecting cases) (explaining that courts in the Ninth Circuit 11 tend to find “delays of four years or less not to be unreasonable”); but see Barrios 12 Garcia, 25 F.4th at 454 (“We find it unhelpful to fixate on the average snail’s pace 13 when comparing snails against snails in a snail’s race.”). 14 Sepulveda Ayala argues that 8 U.S.C. § 1571, which suggests a 180-day 15 timeframe for processing visa applications, provides the applicable “rule of reason.”

16 8 U.S.C. § 1571(b). But the Court finds that 8 U.S.C. § 1571 is better addressed 17 under the second TRAC factor. 18 Given that Sepulveda Ayala offers no other challenge to USCIS’s processing 19 rationale, the first TRAC factor favors the Government. 20 3.4.2 The second TRAC factor tips slightly in Sepulveda Ayala’s favor. 21 The second TRAC factor considers whether “Congress has provided a 22 timetable or other indication of the speed with which it expects the agency to 23 1 proceed in the enabling statute.” TRAC, 750 F.2d at 79. Sepulveda Ayala relies on 2 8 U.S.C. § 1571(b), which states, “[i]t is the sense of Congress that the processing of

3 an immigration benefit application should be completed not later than 180 days 4 after the initial filing of the application.” He argues that the purpose of the statute 5 is to “eliminat[e] the backlog and processing delays in immigration benefits 6 adjudications.” Dkt. No. 1 at 11 (quoting 8 U.S.C. § 1571(b)). 7 Courts addressing 8 U.S.C. § 1571(b) have uniformly held that its timeframe 8 is non-binding. See e.g., Uranga, 490 F. Supp. 3d at 103; Barker, 2023 WL 7107257,

9 at *4; Jain v. Renaud, No. 21-cv-031152021 WL 2458356, at *5 (N.D. Cal. June 16, 10 2021) (citing Yang v. Cal. Dept. of Soc. Servs., 183 F.3d 953, 958 (9th Cir. 1999), for 11 the proposition that the “sense of Congress” language in 8 U.S.C. § 1571(b) is non- 12 binding, “precatory” language). Even so, many courts find this timeframe relevant 13 to the second TRAC factor as evidence of congressional intent. Barrios Garcia, 25 14 F.4th at 454 (“[E]ven though an ‘unreasonably delayed’ analysis does not rise and 15 fall on a statutory deadline, we are mindful that Congress has expressed that

16 immigration-benefit applications should be adjudicated within six months.”); 17 Uranga, 490 F. Supp. 3d at 103 (quoting TRAC, 750 F.2d at 80) (holding the 18 provision is “certainly an indication of what the legislature had in mind—after all, 19 Congress had the option of saying nothing on the subject at all”); Maadarani, 2024 20 WL 4674703, at *11 (“Although the Ninth Circuit has held that similar ‘sense of 21 Congress’ language is ‘non-binding, legislative dicta’ which creates no

22 23 1 obligations, . . . it does provide valuable insight as to what Congress thought would 2 be reasonable in adjudicating immigration cases.”).

3 Sepulveda Ayala filed his petition over 900 days ago. This substantially 4 exceeds Congress’s 180-day timeframe, even if it is non-binding. Thus, the Court 5 finds that the second TRAC factor weighs slightly in favor of Sepulveda Ayala. 6 3.4.3 The third and fifth TRAC factors favor Sepulveda Ayala. 7 Courts regularly consider the third and fifth TRAC factors together because 8 these factors “require the court to assess whether human health and welfare are at 9 stake and whether the nature and extent of those interests are prejudiced by the 10 delay.” Khosravi v. Rubio, No. 2:24-cv-1227, 2025 WL 821885, at *7 (W.D. Wash. 11 March 14, 2025) (internal quotation marks and citations omitted). 12 As the Court previously found when granting the TRO, Spulveda Ayala “faces 13 extreme prejudice through deportation, and his health and welfare are at stake.” 14 Dkt. No. 9 at 6. He faces immediate removal and family separation based on a 20- 15 year-old removal order, even though he has valid U.S. work authorization, deferred 16 action, and a Bona Fide Determination Notice in hand. The delay in deciding his U- 17 visa petition directly impacts his physical liberty and family unit, core human 18 health and welfare concerns that are threatened by the administrative delays here. 19 These factors tip sharply in Spulveda Ayala’s favor. 20 3.4.4 The fourth TRAC factor likely favors the Government. 21 The fourth TRAC factor directs courts to “consider the effect of expediting 22 delayed action [in the plaintiff’s case] on agency activities of a higher or competing 23 1 priority.” Pesticide Action Network, 798 F.3d at 813 (quoting TRAC, 750 F.2d at 79). 2 This factor recognizes that agencies must “juggle competing duties” using the

3 resources available to them. Mashpee Wampanoag Tribal Council, Inc. v. Norton, 4 336 F.3d 1094, 1101 (D.C. Cir. 2003) (“Mashpee”)); see Vaz, 33 F.4th at 1138 5 (“Requiring the [agency] to investigate [the plaintiff’s] complaint would interfere 6 with the [agency’s] discretion in prioritizing its activities and allocating its 7 resources.”); L’Assoc. des Americains Accidentels, 633 F.Supp.3d at 84 (recognizing 8 the importance of competing agency priorities in a TRAC analysis); Khosravi, 2025

9 WL 821885, at *7 (finding that “an order requiring Defendant to adjudicate [the 10 plaintiff’s] application would . . . prioritize him at the expense of similarly situated 11 applicants”). As such, courts should avoid orders that simply allow one petitioner to 12 “cut the line,” pushing back all similarly situated petitioners. Vaz, 33 F.4th at 1138; 13 Mashpee, 336 F.3d at 1101; L’Assoc. des Americains Accidentels, 633 F.Supp.3d at 14 84; Khosravi, 2025 WL 821885, at *7. In those cases, the fourth TRAC factor usually 15 favors the Government.

16 But if a petitioner is able to prove that their situation is distinct from other 17 individuals waiting in the queue such that they should receive priority, then the 18 fourth TRAC factor weighs in their favor. See, e.g., Nadhar v. Renaud, No. CV-21- 19 00275, 2021 WL 2401398, at *3 (D. Ariz. June 11, 2021) (“Nor have Plaintiffs shown 20 that there is something special about their petitions that justifies leapfrogging over 21 other similarly situated petitioners who have not sued.”); A.A.C.S., 2019 WL

22 7841860, at *6 (“Ultimately, Plaintiffs have not shown that they received different 23 1 or worse treatment from that experienced by other petitioners awaiting decisions in 2 the U visa backlog.”).

3 Sepulveda Ayala argues that he is different from other U-visa petitioners 4 because he has been detained and faces removal from the United States despite his 5 deferred action status and BFD EAD benefits. Dkt. No. 11 at 5. But the 6 Government contends that all other individuals in Sepulveda Ayala’s position are 7 subject to removal at this time, as well as all those on the U-visa waitlist. On this 8 record, Sepulveda Ayala has not shown that he “received different or worse

9 treatment from that experienced by other petitioners awaiting decisions in the U 10 visa backlog.” A.A.C.S., 2019 WL 7841860, at *6. Because expediting Sepulveda 11 Ayala’s petition would require USCIS to prioritize his petition before other, earlier- 12 filed U-visa petitions, and because Sepulveda Ayala has not shown that the 13 Government has treated him differently from similarly situated petitioners, the 14 Court finds that the fourth TRAC factor favors the Government. 15 3.4.5 The sixth TRAC factor is neutral. 16 Finally, the sixth TRAC factor considers allegations of agency impropriety. 17 Sepulveda Ayala has not argued agency impropriety. “Under similar circumstances, 18 courts in the Ninth Circuit have found this factor to either weigh in the 19 government's favor or to be neutral.” Kapoor v. Blinken, No. 21-cv-01961, 2022 WL 20 181217, at *9 (N.D. Cal. Jan. 20, 2022) (citation and quotation omitted). 21 After analyzing and balancing the TRAC factors, the Court finds that 22 Sepulveda Ayala has not demonstrated a likelihood of success on the merits. 23 1 3.5 Having found that Sepulveda Ayala has not demonstrated a likelihood of success on the merits, the Court need no address the 9 remaining Winter factors.

3 Because likelihood of success is a threshold requirement for preliminary

4 injunctive relief under both the traditional Winter test and the sliding scale

5 approach, a plaintiffs failure to satisfy this element generally eliminates the need

G to analyze the remaining Winter factors. Baird v. Bonta, 81 F.4th 1036, 1040 (9th

7 Cir. 2023) (“A court need not consider the other factors if a movant fails to show a

8 likelihood of success on the merits.” (citation modified)).

9 Because Sepulveda has not shown a likelihood of success on his underlying

10 APA and mandamus claims, his motion for a preliminary injunction fails regardless

1 of the balance of harms, equities, or public interest considerations. Id.

12 13 4. CONCLUSION

14 Accordingly, the Court DENIES Sepulveda Ayala’s motion for preliminary

15 injunction. Dkt. No. 11.

16 17 Dated this 5th day of June, 2025.

18 amal N. Whitehead 19 United States District Judge

20 21 22 23

ATT AO