Dario Suarez Soto v. Todd Blanche

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 DARIO SUAREZ SOTO, Case No. 3:26-cv-01700-JSC

12 Plaintiff, ORDER RE: MOTION FOR 13 v. PRELIMINARY INJUNCTION

14 TODD BLANCHE1, Re: Dkt. No. 7 Defendant. 15

16 17 Plaintiff Dario Suarez Soto contends the government violated the Administrative 18 Procedure Act (APA) when it rescinded, without notice, the Executive Office for Immigration 19 Review’s prior practice of expediting visas for individuals seeking non-law permanent resident 20 (non-LPR) cancellation of removal when their qualifying relative was aging out (turning 21). 21 (Dkt. No. 12) The Court previously enjoined the rescission on a temporary basis as to Plaintiff 22 only and now Plaintiff seeks a preliminary injunction pending resolution of his claims. (Dkt. No. 23 7.) Having considered the parties’ submissions, including their supplemental submissions, and 24 having had the benefit of oral argument on March 19, 2026, the Court DENIES the motion for 25 preliminary injunction. Because Plaintiff’s claim arises out of his removal proceedings, this Court 26 1 The Court substitutes Todd Blache, the acting Attorney General, as the proper defendant. See 27 Fed. R. Civ. Proc. 25(d). 1 lacks jurisdiction. 2 BACKGROUND 3 Plaintiff, who is originally from Mexico, has resided in the United States for over 30 4 years. (Dkt. No. 1 a ¶ 20.) He has two United States citizen children, the youngest of which, N-S- 5 A-, turned 21 on March 2, 2026. (Id. at ¶¶ 20-21.) N-S-A- experiences significant mental health 6 challenges, including Major Depressive Disorder, recurrent and moderate with anxious distress, 7 and Post-Traumatic Stress Disorder (dissociative type). (Id. at ¶ 21; Dkt. No. 1 at 62.) Her treating 8 physicians emphasize she is emotionally fragile, highly dependent on her father’s presence for 9 emotional regulation, and at risk of severe deterioration should her father be removed, including 10 the recurrence of past suicidal thoughts. (Dkt. No. 2 at ¶ 2; Dkt. No. 1 at 73-74.) 11 Plaintiff is presently in removal proceedings before the San Francisco Immigration Court. 12 (Dkt. No. 1 at ¶ 22.) Plaintiff applied for non-LPR cancellation of removal, and his merits hearing 13 occurred on January 25, 2023. (Id.) At the hearing, Immigration Judge Levine indicated she 14 intended to grant Plaintiff’s application, but she was unable to do so immediately due to the 15 statutory cap on the number of cancellation applications that could be granted at that time. (Dkt. 16 No. 1, Ex. 8, Espinoza Decl. at ¶ 5 (ECF Page 77).) Immigration Judge Levine instructed 17 Plaintiff’s counsel “to notify the Court six months prior to N-S-A-’s twenty-first birthday so that 18 the decision could be advanced” and then issued an order designating the case as “on 42b reserved 19 decision.” (Id.) 20 Plaintiff alleges the Executive Office of Immigration Review (EOIR) has historically 21 reserved 500 of the 4,000 yearly cancellation grants to use “in the case of detained individuals” 22 and “individuals whose qualifying relative children may die or will soon turn 21” under what is 23 known as “the expedite/age-out policy for cancellation cases.” (Dkt. No. 1 at ¶¶ 4, 7; Dkt. No. 1 at 24 ECF 20, Crabtree Decl. at ¶ 7.) “Albeit unclear as there is no public information available” 25 Plaintiff alleges an EOIR Director’s Memorandum, PM 25-02, dated January 27, 2025 “directed” 26 the recission of this policy. (Dkt. No. 1 at ¶ 9.) This rescission was not accompanied by an 27 opportunity for notice and comment and no findings regarding reliance interests were made. (Id. at 1 On August 21, 2025, Plaintiff filed an unopposed “motion to Calendar Status Conference” 2 as instructed by the immigration judge. (Dkt. No. 1 ¶ 24.) Two weeks later, Immigration Judge 3 Levine issued an order denying the motion stating “The Court has requested early visa issuance 4 from the agency. The ultimate decision lies with the agency. There are no further actions the 5 court can take.” (Id.; Dkt. No. 1 at ECF 57.) Plaintiff alleges Immigration Judge Levine was fired 6 the same day. (Dkt. No. 1 ¶ 24, n.3.) 7 On February 10, 2026—nearly a month before his daughter would turn 21—Plaintiff filed 8 a “Motion to Advance Grant of 42b.” (Id. at ¶ 27; Dkt. No. 1 at ECF 59.) The Department of 9 Homeland Security did not oppose the motion. (Dkt. No. 1 at ¶ 27.) On February 23, 2026, a 10 newly-assigned immigration judge denied the motion stating “The Court cannot grant applications 11 for cancellation of removal out of order. To the extent there was previously an informal practice 12 of doing so, such informal practice no longer exists.” (Id.; Dkt. No. 1 at ECF 69.) 13 Plaintiff filed this Administrative Procedure Act (APA) action and accompanying 14 application for a TRO at 11:32 p.m. on Thursday, February 26, 2026. Plaintiff’s daughter and 15 qualifying relative was set to age out on Monday, March 2, 2026. On February 27, the Court 16 granted an ex parte TRO and issued an order to show cause (OSC) as to why a preliminary 17 injunction should not issue, concluding Plaintiff had raised serious legal questions as to the merits 18 of his claim the recission of the expedite/age-out policy violated the APA based on the allegation 19 the recission was made without notice or comment and without “considering the acute reliance 20 interests and consequences for the administration of justice, the vulnerable population affected, or 21 the ongoing representations that will be disrupted.” (Dkt. No. 7 at 3 (quoting Am. Gateways v. U.S. 22 Dep’t of Just., 2025 WL 2029764, at *1 (D.D.C. July 21, 2025)).) 23 Plaintiff then filed with the immigration court an “Emergency Motion to Reconsider 24 Motion to Advance Grant of 42B because the US District Court, Northern California Granted 25 TRO.” (Dkt. No. 9 at 6.) The immigration judge denied the motion writing: “There is no practice 26 of advancing cases out of order. Respondent’s application will be adjudicated when his number 27 comes up.” (Id.) Upon receipt of the government’s OSC response attaching the immigration 1 the immigration judge’s denial and Plaintiff’s child having turned 21 on March 2, 2026. (Dkt. No. 2 10 at 2-3.) The Court also directed the government to file a response addressing mootness. (Dkt. 3 No. 12.) The parties submitted their briefing and the Court heard argument on March 19, 2026. 4 (Dkt. Nos. 13, 15, 16, 17.) Following the hearing, the Court ordered the parties to submit 5 supplemental briefing regarding whether the challenged actions constitute a final agency action 6 under the APA. (Dkt. No. 18.) The supplemental briefing is now complete. (Dkt. Nos. 19, 20, 7 21.) 8 LEGAL FRAMEWORK 9 Non-LPR cancellation of removal is a discretionary form of relief that permits noncitizens 10 who are in removal proceedings to obtain lawful permanent resident status. 8 U.S.C. § 11 1229b(b)(1). An individual is eligible for cancellation of removal only if he meets four 12 requirements: (1) he “has been physically present in the United States for a 13 continuous period of not less than 10 years” before he applies;

14 (2) he “has been a person of good moral character during such period”; 15 (3) he has not been convicted of certain criminal offenses; and 16 (4) he “establishes that removal would result in exceptional and 17 extremely unusual hardship to [his] spouse, parent, or child,” who is a U. S. citizen or lawful permanent resident. 18 Wilkinson v. Garland, 601 U.S. 209, 213 (2024) (quoting §§ 1229b(b)(1)(A)–(D)). As relevant 19 here, a qualifying child is defined as “an unmarried person under twenty-one years of age.” 20 See 8 U.S.C. § 1101(b)(1). Section “1229b(b)(1)(D) requires a noncitizen ‘seeking cancellation to 21 establish hardship to a qualifying relative as of the time the IJ adjudicates’ the application, not 22 when it was filed.” Aguilar Nepamuceno v. Bondi, No. 22-700, 2025 WL 3252320, at *1 (9th Cir. 23 Nov. 21, 2025) (quoting Mendez-Garcia v. Lynch, 840 F.3d 655, 664 (9th Cir. 2016)). 24 Congress placed a statutory limit of 4,000 on the number of cancellation applications that 25 can be granted every year. 8 U.S.C. § 1229b(e)(1). Under the regulations, “[w]hen grants are no 26 longer available in a fiscal year, further decisions to grant such relief must be reserved until such 27 time as a grant becomes available under the annual limitation in a subsequent fiscal year.” 8 1 C.F.R. § 1240.21(c)(1); see also Orellana v. Bondi, 141 F.4th 560, 562 (4th Cir. 2025) (once “the 2 legislative cap of 4,000 grants of Cancellation per fiscal year [is] met, the IJ … reserve[s] her 3 decision until a visa became available for Petitioner”). 4 To “ensure uniform handling of cases subject to the statutory cap, the EOIR’s Office of the 5 Chief Immigration Judge (“OCIJ”) adopted OPPM 17-04, which explains that “[w]hen the cap is 6 about to be reached, the [OCIJ] will notify Immigration Judges that they must reserve decisions 7 granting cancellation or suspension.” Orellana, 141 F.4th at 564–65 (quoting OPPM 17-04: 8 Applications for Cancellation of Removal or Suspension of Deportation that are Subject to the 9 Cap, 9 Immigration Law Service 2d PSD, EOIR Memorandum 17-04 at 2).

10 Section V of OPPM 17-04 provides that when an IJ concludes that Cancellation “is potentially going to be granted,” she “must reserve 11 the decision” and take certain steps including “[p]repar[ing] a draft reserved decision.” OPPM 17-04 at 3–4. Section VI then explains that 12 the IJ may draft a dictated decision within 15 working days of the hearing or draft a written decision within 60 days of the hearing. Id. 13 at 4. But those draft decisions are not “released to the parties or the public,” so they do not become part of the record of the case. Id. at 5. 14 Instead, they are held internally on the EOIR network or with the court administrator. When EOIR determines that a visa number is 15 available, it notifies the IJ that the decision may be issued. “Within 5 days of being notified that a number is available, the [IJ] will revise 16 the decision, if necessary, and sign and return it to the [court administrator] for issuance.” Id. 17 Orellana, 141 F.4th at 565. “If the immigration judge who drafted the reserved decision is 18 unavailable to issue that decision when a number becomes available, an Assistant Chief 19 immigration Judge shall reassign the case … The newly-assigned Immigration Judge is not bound 20 by the original Immigration Judge’s preliminary decision.” Id. (quoting OPPM 17-04 § IX). 21 DISCUSSION 22 To obtain a preliminary injunction, Plaintiff must establish (1) he is “likely to succeed on 23 the merits,” (2) he is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) 24 “the balance of equities tips in [his] favor,” and (4) “an injunction is in the public interest.” Winter 25 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “If a plaintiff can only show that there are 26 ‘serious questions going to the merits’—a lesser showing than likelihood of success on the 27 merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in 1 the plaintiff’s favor, and the other two Winter factors are satisfied.’” All. for the Wild Rockies v. 2 Peña, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 3 F.3d 1281, 1291 (9th Cir. 2013)). “Where, as here, the party opposing injunctive relief is a 4 government entity, the third and fourth factors—the balance of equities and the public interest— 5 merge.” Hubbard v. City of San Diego, 139 F.4th 843, 854 (9th Cir. 2025) (citation modified). 6 A. Likelihood of Success/Serious Legal Questions 7 Plaintiff brings a single claim for relief under the APA, 5 U.S.C. § 706(2)(A), arguing the 8 rescission of the age-out Expedite Policy (hereafter “Expedite Policy”) is “arbitrary and 9 capricious, an abuse of discretion, and not in accordance with law because, among other things, 10 Defendant failed to articulate a reasonable explanation for her actions.” (Complaint at ¶ 39.) 11 1. Final Agency Action 12 An agency action must be “final” to be reviewable under the APA. 5 U.S.C. § 704. An 13 agency action is final when the challenged action (1) “marks the consummation of the agency’s 14 decisionmaking process,” and (2) is an action “by which rights or obligations have been 15 determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 16 (1997) (cleaned up). According to the Complaint, the Expedite Policy was rescinded in 2025 17 without rulemaking and “seems to have been directed through “an EOIR Director’s Memorandum, 18 Policy Memorandum 25-02.” (Dkt. No. 1 at ¶ 9) (citing EOIR Policy Memorandum 25-02, 19 EOIR’s Core Policy Values § VI (Jan. 27, 2025) (available at 20 https://www.justice.gov/eoir/media/1386541/dl?inline) (last visited May 22, 2026) (stating “any 21 operational policy related to case adjudications issued in secret between February 1, 2021, and 22 January 21, 2025, is no longer in effect.”). Because the only evidence Plaintiff offered of either 23 the Expedite Policy or its rescission was a declaration from immigration attorney Kevin Crabtree 24 and anecdotal evidence of other instances pre-2025 in which immigration judges advanced cases 25 as a qualifying relative’s 21st birthday approached, the Court requested supplemental briefing 26 regarding whether the Expedite Policy and the rescission of the policy constituted a final agency 27 action. (Dkt. No. 18.) 1 (1) a declaration from immigration attorney Alison Pennington attaching an email thread with an 2 immigration judge regarding the rescission and documents Ms. Pennington’s office received in 3 response to a Freedom of Information Act (FOIA) regarding the Expedite Policy (Dkt. No. 21 at 4 4); (2) declarations from three former immigration judges attesting both to the Expedite Policy and 5 its rescission (Id. at 55); (3) additional attorney declarations regarding the Expedite Policy and 6 rescission (Id. at 72); and (4) an unofficial transcript of Plaintiff’s January 25, 2023 individual 7 hearing (Id. at 97). At this stage, these documents are sufficient to demonstrate Plaintiff seeks 8 review of a final agency action. 9 First, the FOIA documents include “a PowerPoint presentation entitled “‘Cancellation of 10 Removal and Suspension of Deportation Processing’ dated May 29, 2024, with five flow charts 11 and a template IJ 42B Expedite Request.” (Dkt. No. 21, Pennington Decl. at ¶ 13; see also Dkt. 12 No. 21 at 13-53.) Multiple slides reference 500 of the 4,000 available yearly visa numbers being 13 set aside for priority matters which “are defined as detainees, time-sensitive BIA remands, and 14 expedited requests.” (Dkt. No. 21 at 13, 14, 29.) The documents also discuss the process for the 15 expedited requests stating, among other information, these expedite requests must include “[a]ny 16 date sensitive info” and “[a]ge out date of QR, if applicable.” (Id. at 15, 16; see also Id. at 47 17 (“RDCIJ approves Expedited Requests from the ACIJ based on humanitarian reasons or age 18 out.”).) The former immigration judges’ declarations confirm the Expedite Policy was used in part 19 for individuals whose qualifying relative was aging out. (Dkt. No. 21 at 55, Dillon Decl. at ¶¶ 4- 20 15; Dkt. No. 21 at 61, Lien Decl. at ¶¶ 4-9; Dkt. No. 21 at 66, Chen Decl. at ¶¶ 3-8.) Further, the 21 declarations all state that in early 2025 the immigration judges received an email from the 22 Assistant Chief Immigration Judge that the Expedite Policy had been suspended and was not 23 revived. (Dkt. No. 21 at 55, Dillon Decl. at ¶ 16; Dkt. No. 21 at 61, Lien Decl. at ¶ 10; Dkt. No. 24 21 at 66, Chen Decl. at ¶ 9.) This testimony is consistent with the February 28, 2025 email 25 attached to the Pennington Declaration from Assistant Chief Immigration Judge Lori McCleskey 26 stating there was “a nationwide pause” of the Expedite Policy. (Dkt. No. 21 at 8.) At this stage of 27 the proceedings, these documents are sufficient to demonstrate both the existence of the Expedite 1 Second, that the Expedite Policy’s rescission is not memorialized in writing does not 2 “defeat finality.” Bhd. of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 100 3 (D.C. Cir. 2020) (“the absence of a written memorialization by the agency does not defeat 4 finality.”). “The APA’s text contains no requirement that agency action be formally promulgated, 5 or memorialized in writing.” Garro Pinchi v. Noem, 813 F. Supp. 3d 973, 1022 (N.D. Cal. 2025) 6 (collecting cases). Likewise, the APA does not “require that plaintiffs prove the existence of such 7 action through direct rather than circumstantial evidence.” Id. (citing Amadei v. Nielsen, 348 F. 8 Supp. 3d 145, 166 (E.D.N.Y. 2018) (“[C]ourts have found a defendant agency’s behavior relevant 9 to inferring the existence of a policy.”); see also Am. Ass’n of Univ. Professors v. Trump, 815 F. 10 Supp. 3d 907, 967 (N.D. Cal. 2025) (concluding where “the agencies adopted a concerted 11 playbook” and behaved consistently with that paybook “[t]he decision to proceed in that manner, 12 though unwritten, constitutes an agency action”); cf. Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 13 303, 325 (2025) (Thomas, J., concurring) (explaining the “conventional rule of civil litigation” 14 that “a plaintiff can proceed with direct or circumstantial evidence” (citation modified)).). 15 Third, the rescission is not interlocutory—the government is no longer following the 16 Expedite Policy for those who were previously eligible for relief. See New York v. Kennedy, 155 17 F.4th 67, 76 (1st Cir. 2025) (concluding a U.S. Department of Health and Human Services 18 statement was not tentative or interlocutory when “it was followed, just days later, by” agency 19 conduct implementing the statement); Presidents’ All. on Higher Educ. & Immigr. v. Noem, No. 20 25-CV-11109-PBS, 2026 WL 788185, at *15 (D. Mass. Mar. 20, 2026) (concluding the at-issue 21 policy “represent[s] the conclusion of its decisionmaking on this issue” because following the 22 policy announcement the agency “proceeded to revoke many students’ visas, which it has never 23 restored.”); Massachusetts v. Trump, 790 F. Supp. 3d 8, 26 (D. Mass. 2025) (concluding agency’s 24 “temporary” pause was final after months had passed and where the defendants provided the court 25 with no “reasonable timeframe for, or indeed any end on the horizon” to the pause); Sw. Airlines 26 Co. v. United States Dep’t of Transportation, 832 F.3d 270, 275 (D.C. Cir. 2016) (“In assessing 27 whether a particular agency action qualifies as final for purposes of judicial review, this court and 1 action.”). The government’s conduct since the Expedite Policy was “paused” belies any argument 2 it is a temporary change in policy. (Dkt. No. No. 1 at ECF 69 (2/23/26 Immigration Judge order: 3 “To the extent there was previously an informal practice of doing so, such informal practice no 4 longer exists.”); Dkt. No. 21 at 4, Pennington Decl. at ¶ 16 (“Since February 27, 2025, when the 5 policy was rescinded without formal notice, I have seen multiple emails on listservs that EOIR has 6 informed attorneys that they no longer allocate expedited numbers in cases of aging-out 7 children.”); Dkt. No. 21 at 72, Damast Decl. at ¶ 7 (same); Dkt. No. 21 at 76, Hedrick Decl. at ¶ 8 13 (same).) 9 Finally, the government’s argument the policy’s rescission is not one from which legal 10 consequences flow is specious. The policy’s rescission has had immediate legal consequences for 11 those individuals, like Plaintiff, whose applications were designated reserved 42B but whose 12 expedite requests based on a qualifying relative aging out have been denied. If the visa petitions 13 are not expedited for these individuals and their qualifying relative ages out, they are no longer 14 eligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(D) (stating eligibility for 15 cancellation of removal requires “exceptional and extremely unusual hardship to the alien’s 16 spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for 17 permanent residence”); 8 U.S.C. § 1101(b)(1) (defining “child [as] an unmarried person under 18 twenty-one years of age”). 19 Accordingly, on this factual record, the Expedite Policy’s rescission is “final agency 20 action” reviewable under Section 704. 21 2. Live Case or Controversy 22 The Court also ordered the parties to file supplemental briefs addressing whether this 23 action is moot in light of the Immigration Judge’s denial of Plaintiff’s motion to advance the 24 cancellation grant following the issuance of the TRO and Plaintiff’s child having turned 21 on 25 March 2, 2026. (Dkt. No. 10 (citing Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 871 (9th 26 Cir. 2002) (stating the requirement of a “live controversy” and noting “[w]here the activities 27 sought to be enjoined already have occurred, and the appellate courts cannot undo what has 1 Plaintiff insists there is a live controversy because “the agency did not comply with the 2 TRO and continues to apply the rescission in substance.” (Dkt. No. 13 at 6.) He contends the 3 Court’s TRO postponed the effective date of the recission, but the IJ violated that order when he 4 stated “There is no practice of advancing cases out of order. Respondent’s application will be 5 adjudicated when his number comes up.” (Id.) Plaintiff also maintains his daughter has not aged- 6 out because “the correct time-of- assessment is the point at which the IJ would have granted, but 7 for government-caused delay and defiance of controlling judicial constraints.” (Id.) 8 The government does not address this latter argument and instead argues because the 9 Expedite Policy does not exist, there was no policy rescission for the immigration judge to set- 10 aside, and thus, the immigration judge did everything they were supposed to do. (Dkt. No. 15.) 11 This is neither a mootness argument nor an argument that is consistent with the record. As 12 discussed above, Plaintiff has offered evidence sufficient to support his contention both that the 13 Expedite Policy existed and that it was rescinded in early 2025—whether by PM 25-02 or 14 otherwise. 15 Because the mootness question arose after this action was filed, the government bears the 16 “burden to establish that [this] once-live case has become moot.” W. Virginia v. Env’t Prot. 17 Agency, 597 U.S. 697, 719 (2022). As the government’s argument regarding mootness is based 18 solely on its insistence there was no policy rescission, it has failed to meet its burden. 19 3. Statutory Limits to Judicial Review 20 The APA does not apply when other “statutes preclude judicial review” of the agency 21 action in question, or when the “agency action is committed to agency discretion by law.” 5 22 U.S.C. § 701(a). The government insists 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9) preclude judicial 23 review of Plaintiff’s APA claim here. 24 Under 8 U.S.C. § 1252(a)(5), “a petition for review filed with an appropriate court of 25 appeals in accordance with this section shall be the sole and exclusive means for judicial review of 26 an order of removal entered or issued under any provision of this chapter....” Further, 8 U.S.C. § 27 1252(b)(9), entitled “[c]onsolidation of questions for judicial review” states: interpretation and application of constitutional and statutory 1 provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall 2 be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall 3 have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such 4 title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. 5 8 U.S.C. § 1252(b)(9)(emphasis added). These judicial review provisions “were designed to make 6 perfectly clear ‘that only courts of appeals—and not district courts—could review a final removal 7 order,’ that ‘review of a final removal order is the only mechanism for reviewing any issue raised 8 in a removal proceeding,’ and that the statute was ‘intended to preclude all district court review of 9 any issue raised in a removal proceeding.’” J.E.F.M. v. Lynch, 837 F.3d 1026, 1034 (9th Cir. 10 2016) (quoting H.R. Rep. No. 109–72, at 173). 11 In J.E.F.M, the plaintiffs, immigrant minors in removal proceedings, filed a civil action 12 contending they had a constitutional and statutory right to appointed counsel in immigration 13 proceedings. 837 F.3d at 1029. The Ninth Circuit held the district court lacked jurisdiction over 14 the plaintiffs’ claims because “§§ 1252(a)(5) and 1252(b)(9) channel review of all claims, 15 including policies-and-practices challenges, through the PFR process whenever they ‘arise from’ 16 removal proceedings. Because the children’s right-to-counsel claims arise from their removal 17 proceedings, they can only raise those claims through the PFR process.” Id. at 1035 (quoting 18 Aguilar v. U.S. Immigr. & Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 13 (1st Cir. 19 2007)). So too here. The record compels the conclusion Plaintiff’s APA claim arises from his 20 application for cancellation of removal—he challenges the rescission of the Expedite Policy which 21 expressly only applies to individuals in removal proceedings who have filed an application for 22 cancellation of removal and whose applications have been reserved pending issuance of a visa. 23 Such a challenge can only be raised in a petition for review filed in the Ninth Circuit Court of 24 Appeals. 25 Plaintiff’s contention J.E.F.M. is no longer good law because it was decided before 26 Jennings v. Rodriguez, 538 U.S. 281 (2018), is unpersuasive. To be sure, “Jennings cautioned 27 against an ‘expansive’ interpretation of § 1252(b)(9) that would lead to ‘absurd’ results and make 1 certain claims ‘effectively unreviewable.’” Ibarra-Perez v. United States, 154 F.4th 989, 1000 (9th 2 Cir. 2025) (quoting Jennings, 583 U.S. at 293). But Jennings’ caution is consistent with 3 J.E.F.M.’s holding that § 1252(b)(9) does not bar claims that are “independent of or collateral to 4 the removal process.” Ibarra-Perez, 154 F.4th at 1000 (quoting J.E.F.M., 837 F.3d at 1032).3 5 That is, judicial review was—and is—available to review a collateral or independent claim that 6 does not arise out of removal proceedings, but it is unavailable to review a claim intertwined with 7 the removal process. See Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (“When a 8 claim [] however it is framed, challenges the procedure and substance of an agency determination 9 that is ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5)”). 10 Plaintiff’s attempt to recast his APA challenge as directed to a collateral “ministerial” step 11 in processing his cancellation of removal application is likewise unpersuasive. Plaintiff appears to 12 contend the grant of his cancellation of removal application is a fait accompli, but the evidence 13 before the Court is to the contrary. Indeed, Plaintiff’s counsel’s declaration states the immigration 14 judge has not made a decision on the application for cancellation of removal. (Dkt. No. 1 at ECF 15 78, Ezpinoza Decl. at ¶ 5 (attesting the immigration judge stated on January 23, 2023, that she 16 “intended to grant Mr. Suarez Soto’s application for non-LPR cancellation of removal but was 17 unable to issue a decision immediately because the statutory cap…had been reached” and thus 18 issued an “order designating the case as ‘on 42b reserved decision’”). This conclusion is 19 consistent with the immigration judge declarations offered with Plaintiff’s supplemental brief: 20 “any decision to grant non-LPR cancellation of removal would need to be reserved until a visa 21 became available.” (Dkt. No. 21 at 57, Dillon Decl. at ¶ 7; see also Dkt. No. 21 at 63, Lilien Decl. 22 at ¶ 5 (“I was trained that even if I found a given respondent eligible for non-LPR COR, I was not 23 to grant such relief at the conclusion of the evidentiary hearing” and “[i]nstead, I was instructed to 24 close the evidentiary record and advise the parties that I would reserve the matter for a decision 25 pending the availability of a visa number.”). In other words, the grant of the visa is a necessary 26 3 Plaintiff’s reliance on Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) and Figueroa v. 27 Mukasey, 543 F.3d 487 (9th Cir. 2008), is puzzling because both addressed the court of appeal’s 1 predicate act to the grant of non-LPR cancellation of removal and not independent of or collateral 2 to the removal process.4 See Martinez, 704 F.3d at 622 (“Despite [Plaintiff’s] efforts to 3 characterize his complaint as asserting ‘independent’ claims, it is simply another attempt to obtain 4 judicial review of his removal order and the district court lacked jurisdiction”). 5 Challenges to the process for issuing reserved grants of cancellation of removal must be 6 raised in a petition for review of the final removal order as in Orellana v. Bondi, 141 F.4th 560 7 (4th Cir. 2025). In Orellana, the petitioner filed a petition for review challenging the denial of his 8 cancellation of removal application arguing OPPM 17-04 required reserved grants of cancellation 9 to be issued within five days of a visa becoming available. The court rejected this argument 10 concluding “there is nothing in the text or substance of OPPM 17-04 that indicates it is for the 11 benefit of any individual applicant or intended to have the force of law.” Id. at 566. “To the 12 contrary, OPPM 17-04 sets only internal policies intended to allow for orderly ‘handling [of] cases 13 involving cancellation of removal ... that are subject to the cap.’” Id. (quoting OPPM 17-04 at 2); 14 see also Lara v. Garland, 845 F. App’x 566, 567 (9th Cir. 2021) (finding OPPM 17-04 is an 15 internal directive that does not have the force of law). Plaintiff’s challenge to the process for 16 handling his cancellation of removal application including issuance of the necessary visa likewise 17 must be raised through the petition for review process. 18 Finally, Plaintiff’s reliance on Dep’t of Homeland Sec. v. Regents of the Univ. of 19 California, 591 U.S. 1 (2020), is misplaced. There, the Supreme Court considered an APA action 20 challenging the government’s rescission of the Deferred Action for Childhood Arrivals (DACA) 21 immigration program as arbitrary and capricious and a violation of the Fifth Amendment’s Due 22 Process Clause. Id. at 13. The government argued the courts lacked jurisdiction to review the 23 decision to terminate the program under 8 U.S.C. §§ 1252(b)(9) and 1252(g). Id. at 19. The 24 Supreme Court concluded the plaintiffs’ claims were not jurisdictionally barred because “the 25

26 4 This is consistent with the language in OPPM 17-04 expressly stating when, as here, the immigration judge who issued the reserved decision is “unavailable” the “newly-assigned 27 Immigration Judge is not bound by the original Immigration Judge’s preliminary decision.” 1 parties are not challenging any removal proceedings.” Id. (“The rescission, which revokes a 2 deferred action program with associated benefits, is not a decision to commence proceedings, 3 much less to adjudicate a case or execute a removal order.”) (cleaned up). While, as here, the 4 Regents plaintiffs challenged the government’s rescission of an immigration policy, the Regents 5 plaintiffs did so as a direct APA challenge to the policy recission; not—as Plaintiff proposes 6 here—as a challenge to the agency’s application of the policy rescission to an individual’s 7 defensive application for cancellation of removal. Indeed, in the underlying action brought by the 8 individual DACA recipients the district court rejected the government’s argument that 1252 9 precluded judicial review of their APA challenge because the action had been brought “prior to 10 the commencement of any removal proceedings.” See Regents of Univ. of California v. United 11 States Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1032 (N.D. Cal. Jan. 9, 2018) (emphasis 12 added). Here, in contrast, Plaintiff seeks to challenge the rescission of a policy as it is being 13 applied to his ongoing removal proceedings. 14 Because Plaintiff’s challenge arises from an “action taken or proceeding brought to remove 15 [him] from the United States,” it falls within Section 1252(b)(9)’s jurisdiction-stripping provision 16 and must be brought through the petition for review process. See, e.g., Gomez v. McAleenan, No. 17 19-CV-04199-JCS, 2019 WL 5722619, at *4 (N.D. Cal. Nov. 5, 2019) (dismissing APA action 18 challenging the government’s refusal to issue a visa number following a reserved decision on 19 plaintiff’s cancellation application for lack of jurisdiction because the plaintiff’s “challenge to the 20 policy that governs the issuance of visas under 8 U.S.C. § 1229b(b) must be brought in the Court 21 of Appeals.”). 22 *** 23 Because this Court lacks jurisdiction over this APA action, Plaintiff cannot demonstrate a 24 likelihood of success or a serious questions as to the merits of his APA challenge; the Court thus 25 does not address the remaining Winter factors. See Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 26 848, 856 (9th Cir. 2017) (“the court need not consider the other factors” if no likelihood of success 27 is shown). The motion for a preliminary injunction is denied. 1 CONCLUSION 2 For the reasons stated above, the preliminary injunction is DENIED and the TRO is 3 || VACATED. The parties shall meet and confer and within 14 days file a joint statement proposing 4 || aschedule for disposition of the action or stipulating that the reasoning of this Order warrants 5 dismissing the action and entering judgment. 6 This Order disposes of Docket No. 7. 7 IT IS SO ORDERED. 8 Dated: May 22, 2026 ' ie Set D 9 JACQUELINE SCOTT CORLE 10 United States District Judge 1] a 12 2B 14

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