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3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 ARTURO SEPULVEDA AYALA, CASE NO. 2:25-cv-01063-JNW-TLF 8 Petitioner, FINDINGS OF FACT, CONCLUSIONS 9 OF LAW, AND PRELIMINARY v. INJUNCTION ORDER 10 PAMELA BONDI, et al., 11 Respondents. 12
13 1. INTRODUCTION 14 Petitioner Arturo Sepulveda Ayala seeks a preliminary injunction to preserve 15 the status quo while the Court decides his habeas case. Dkt. No. 14. The facts are 16 straightforward. United States Immigration and Customs Enforcement (ICE) 17 arrested Sepulveda Ayala in February 2025 based on a twenty-one-year-old removal 18 order. Three weeks later, United States Citizenship and Immigration Services 19 (USCIS) granted him deferred action and work authorization through its U visa 20 bona fide determination process. ICE has nonetheless continued his detention. 21 Sepulveda Ayala contends that his deferred action status, which is still in 22 effect, bars his removal and makes continued detention unlawful. The Government 23 1 disputes both the Court’s jurisdiction and the merits, arguing that deferred action 2 creates only “lower priority” status and does not preclude removal proceedings.
3 The jurisdictional question turns on whether Sepulveda Ayala’s claims arise 4 from ICE’s execution of his removal order—which would trigger 8 U.S.C. § 1252(g)’s 5 jurisdictional bar—or from the Government’s grant and subsequent disregard of his 6 deferred action status. The Court concludes the latter and finds jurisdiction proper. 7 On the merits, established precedent defines deferred action as the 8 Government’s decision not to proceed with removal. Thus, Sepulveda Ayala has
9 demonstrated a likelihood of success on his claim that this protection makes his 10 continued detention unlawful. The Court grants the preliminary injunction. 11 2. BACKGROUND 12 2.1 Factual background. 13 Sepulveda Ayala is a 53-year-old Mexican citizen who has lived in the United 14 States for over 20 years. In 2004, the Government issued a removal order against 15 him, and he was removed from the United States. He reentered without inspection 16 later that year and has remained in the United States since. Dkt. No. 1 at 4. 17 In November 2022, Sepulveda Ayala applied for a U visa with USCIS. 18 Dkt. No. 2-1 at 12. Based on his pending U visa application, ICE stayed his removal 19 from the United States until January 23, 2025. Id. at 2. In early January 2025, 20 anticipating that the stay would likely expire before USCIS decided his U visa 21 application, Sepulveda Ayala requested a renewal of the stay. Dkt. No. 1 at 4 (citing 22 23 1 Dkt. No. 1-2 at 2, 10). ICE did not adjudicate his request before the existing stay 2 expired.
3 On February 2, 2025, with no stay in place, ICE reinstated Sepulveda Ayala’s 4 2004 removal order and arrested him. ICE has detained him at the Northwest ICE 5 Processing Center in Tacoma, Washington, ever since. Id.; Dkt. No. 1-2 at 2, 4–11. 6 On February 19, USCIS issued a Bona Fide Determination Notice (“BFD”) on 7 Sepulveda Ayala’s U visa application, granting him “deferred action” and an 8 Employment Authorization Document (“EAD”), authorizing him to work in the
9 United States. Id. at 12–13. The BFD notice states that deferred action is “an act of 10 administrative convenience to the government which gives some cases lower 11 priority for removal.” Id. at 12. Despite receiving deferred action and work 12 authorization, ICE did not release Sepulveda Ayala and continued to pursue his 13 removal. 14 On March 6, ICE denied Sepulveda Ayala’s pending stay application, 15 explaining, “USCIS has granted your client Deferred Action; it is unnecessary and
16 in fact, redundant, for [Enforcement and Removal Operations] to grant a stay of 17 removal. Accordingly, the ICE [stay of removal request] . . . is herewith denied.” 18 Dkt. No. 2-1 at 14–15. This denial acknowledged that deferred action effectively 19 rendered a stay of removal unnecessary. Despite this acknowledgment, however, 20 ICE continued to detain Sepulveda Ayala for removal. 21 On April 25, ICE conducted a “secondary review” of its March 6 denial and
22 changed its reasoning for denying Sepulveda Ayala’s stay: 23 1 The ICE Office of Enforcement and Removal Operations in Seattle received your ICE Form I-246, Application for Stay of Deportation or 2 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 3 United States. Upon further legal review, this has been determined not to be accurate and a second review and consideration of your ICE 4 Form I-246 was completed.
5 Dkt. No. 2-1 at 16.
6 That same day, ICE informed Sepulveda Ayala’s attorney that it 7 intended to remove him. Id. at 2. 8 2.2 Procedural history. 9 On March 5, Sepulveda Ayala filed a mandamus action seeking to compel 10 adjudication on his U visa application. Sepulveda Ayala v. Noem et al., Case No. 11 3:25-cv-5185-JNW, Dkt. No. 1. When ICE tried to remove him in April, this Court 12 granted a temporary restraining order in that case. But this Court ultimately 13 denied Sepulveda Ayala’s preliminary injunction motion in the mandamus case on 14 grounds not relevant here. 15 On June 6, 2025, Sepulveda Ayala filed this habeas petition, challenging his 16 detention while he has deferred action status. Unlike his mandamus case, which 17 challenged agency processing delays related to his U visa application, this action 18 directly challenges the Government’s authority to detain and remove him despite 19 his deferred action status. Dkt. Nos. 1; 2. The Court granted a TRO and set a 20 preliminary injunction motion briefing schedule. Dkt. No. 13. 21 After a hearing on July 8, the Court extended the TRO pending a decision on 22 the preliminary injunction motion. See Dkt. No. 17. 23 1 3. DISCUSSION 2 3.1 Legal standard. A preliminary injunction is “an extraordinary remedy that may only be 3 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. 4 Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “The proper legal standard for 5 preliminary injunctive relief requires a party to demonstrate [1] ‘that he is likely to 6 succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence 7 of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an 8 injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 9 (9th Cir. 2009) (citing Winter, 555 U.S. at 20). These four factors—the Winter 10 factors—apply whenever a preliminary injunction is sought. Winter, 555 U.S. at 20. 11 The Ninth Circuit takes a “sliding-scale” approach to preliminary relief, 12 under which “serious questions going to the merits and a balance of hardships that 13 tips sharply towards the plaintiffs can support issuance of a preliminary injunction, 14 so long as the plaintiffs also show that there is a likelihood of irreparable injury and 15 that the injunction is in the public interest.” Fraihat v. U.S. Immigr. & Customs 16 Enf’t, 16 F.4th 613, 635 (9th Cir. 2021) (cleaned up). This approach allows a 17 stronger showing of one Winter factor to offset a weaker showing of another. 18 Planned Parenthood Great Nw., Hawaii, Alaska, Indiana, Kentucky v. Labrador, 19 122 F.4th 825, 843–44 (9th Cir. 2024). 20 In all circumstances, the moving party must make “a showing on all four 21 prongs” under Winter to obtain a preliminary injunction. All. for the Wild Rockies v. 22 Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 23 1 3.2 The Court has subject-matter jurisdiction. The Government challenges this Court’s subject-matter jurisdiction, so the 2 Court begins there. Federal courts are courts of limited jurisdiction and may not 3 proceed to the merits without first confirming they have authority to decide the 4 case. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When 5 jurisdiction is challenged, the Court has a continuing obligation to examine the 6 basis for its authority. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). 7 In its temporary restraining order, this Court found “at this stage that it has 8 subject-matter jurisdiction” because Sepulveda Ayala’s claims arise from the 9 Government’s grant of deferred action rather than from ICE’s decision to execute 10 his removal order. Dkt. No. 11 at 6-8. The Government now renews its jurisdictional 11 challenge with additional arguments. For the reasons discussed below, the Court 12 reaffirms and augments its previous jurisdictional finding. 13 14 3.2.1 Section 1252(g) does not bar jurisdiction because Sepulveda Ayala’s claims arise from the Government’s grant of deferred 15 action, not execution of his removal order. 16 The Government argues that 8 U.S.C. § 1252(g) strips this Court of 17 jurisdiction over Sepulveda Ayala’s habeas petition. Section 1252(g) provides that 18 “no court shall have jurisdiction to hear any cause or claim by or on behalf of any 19 alien arising from the decision or action by the Attorney General to commence 20 proceedings, adjudicate cases, or execute removal orders against any alien under 21 this chapter.” 8 U.S.C. § 1252(g) (emphasis added). The Government argues this 22 provision divests this Court of jurisdiction because Sepulveda Ayala’s habeas 23 1 petition challenges ICE’s execution of his removal order. But this argument 2 fundamentally mischaracterizes the source of Sepulveda Ayala’s claim.
3 The Supreme Court has interpreted Section 1252(g)’s jurisdiction-stripping 4 provisions narrowly, limiting it to only “three discrete actions”: the “‘decision or 5 action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Reno 6 v. Am.-Arab Anti–Discrimination Comm., 525 U.S. 471, 482 (1999) (“AADC”) 7 (quoting 8 U.S.C. § 1252(g)) (emphasis in original). The Court rejected any reading 8 of the statute that would cover “the universe of deportation claims,” id., and
9 cautioned against interpreting it to “sweep in any claim that can technically be said 10 to ‘arise from’” these three actions, Jennings v. Rodriguez, 583 U.S. 281, 294 (2018). 11 The provision is directed against “a particular evil: attempts to impose 12 judicial constraints upon prosecutorial discretion.” AADC, 525 U.S. at 485 n.9. And 13 it protects the government from challenges to “‘no deferred action’ decisions”—that 14 is, when the government chooses not to grant deferred action relief. Id. at 485. The 15 provision shields discretionary determinations to deny relief, not failures to honor
16 relief already granted, as Sepulveda Ayala claims here. This understanding aligns 17 with the Ninth Circuit’s recognition that “[w]here the Attorney General totally lacks 18 the discretion to effectuate a removal order, § 1252(g) is simply not implicated.” 19 Arce v. United States, 899 F.3d 796, 801 (9th Cir. 2018). 20 Building on this principle, the proper jurisdictional analysis under Section 21 1252(g) focuses on the government action or decision that gives rise to the plaintiff’s
22 claims, not whether the plaintiff’s claims might affect or preclude removal. Id. at 23 799–800. The Ninth Circuit applied this principle in Arce when an asylum 1 petitioner was removed despite a court-ordered stay. Id. at 798–99. The 2 Government argued that Section 1252(g) barred the petitioner’s subsequent Federal
3 Tort Claims Act lawsuit because it arose from execution of his removal order. 4 Id. at 799. 5 The Ninth Circuit rejected this argument, holding that the petitioner was 6 “not attacking the removal [order] itself” but rather challenging “the violation of 7 [the court’s] order.” Id. at 800. Applying a “but for” causation standard, the court 8 explained: “Put differently, but for the violation of the stay of removal, [plaintiff]
9 would not have an FTCA claim at all.” Id. The claims arose from the unauthorized 10 violation of the stay, not from the removal execution itself. 11 Similarly, in Enriquez-Perdomo v. Newman, 54 F.4th 855 (2d Cir. 2022), the 12 Second Circuit addressed Section 1252(g) in the context of deferred action. ICE 13 arrested Enriquez-Perdomo for removal in 2017 despite her active Deferred Action 14 for Childhood Arrivals (DACA) status granted years earlier. Id. at 858–59. She sued 15 the arresting officers under Bivens, and the district court dismissed for lack of
16 jurisdiction under Section 1252(g). Id. at 859. 17 The Second Circuit reversed, holding that Section 1252(g) did not bar 18 jurisdiction. Id. at 869. The court focused on the meaning of “execute removal 19 orders” in the statute, concluding that this phrase refers to “executable removal 20 orders—that is, existing and enforceable removal orders subject to execution.” 21 Id. at 863 (emphasis in original). Because Enriquez-Perdomo had received deferred
22 action, her removal order was not “executable” for Section 1252(g) purposes. Id. The 23 court emphasized that deferred action is an affirmative immigration benefit and 1 that “Enriquez-Perdomo’s arrest and detention despite that relief [of deferred 2 action] were unauthorized.” Id. (emphasis added).
3 Applying these principles reveals that Sepulveda Ayala’s claims do not “arise 4 from” ICE’s decision to execute his removal order. Rather, his claims arise from the 5 Government’s decision to grant him deferred action combined with ICE’s 6 subsequent refusal to honor that grant. Here, the Government has already 7 exercised its prosecutorial discretion favorably by granting Sepulveda Ayala 8 deferred action through USCIS’s bona fide determination process. ICE’s continued
9 detention despite that grant exceeds the bounds of the discretionary authority that 10 Section 1252(g) was designed to protect. 11 But for the Government’s grant of deferred action, Sepulveda Ayala would 12 have no basis to challenge his detention. His twenty-one-year-old removal order, 13 standing alone, would provide lawful authority for detention under 14 8 U.S.C. § 1231(a). It is because USCIS granted him deferred action—an affirmative 15 immigration benefit—that his continued detention becomes legally questionable.
16 See Arce, 899 F.3d at 799–800. 17 Alternatively, under the Second Circuit’s reasoning in Enriquez-Perdomo, 18 Sepulveda Ayala’s removal order is not “executable” for Section 1252(g) purposes 19 because he has received deferred action. 54 F.4th at 863, 869. No matter how the 20 Government characterizes Sepulveda Ayala’s claims, they arise from the 21 Government’s decision to grant deferred action and then ignore that grant, not from
22 any discretionary choice about execution of a removal order. Section 1252(g) simply 23 1 does not reach claims challenging the government’s failure to honor benefits it has 2 already granted.
3 Because Sepulveda Ayala’s claims arise from the Government’s grant of 4 deferred action rather than from execution of his removal order, Section 1252(g) 5 does not strip this Court of jurisdiction. 6 3.2.2 A narrow reading of Section 1252(g) avoids “serious constitutional questions.” 7 Courts must interpret statutes to avoid raising serious constitutional 8 questions when a reasonable alternative interpretation exists. Neal v. Bd. of 9 Trustees of Cal. State Univs., 198 F.3d 763, 772 (9th Cir. 1999) (quoting NLRB v. 10 Cath. Bishop of Chicago, 440 U.S. 490, 507 (1979) (Federal courts should decline to 11 construe acts of Congress “in a manner that could in turn call upon the Court to 12 resolve difficult and sensitive” constitutional questions.)). The Government’s broad 13 interpretation of Section 1252(g) would raise serious constitutional concerns under 14 the Suspension Clause. 15 The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas 16 Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the 17 public Safety may require it.” U.S. Const. art. 1, § 9, cl. 2. While Congress may 18 modify the right to seek the writ under certain circumstances, it may not do so 19 without providing “a collateral remedy which is neither inadequate nor ineffective 20 to test the legality of a person’s detention.” Swain v. Pressley, 430 U.S. 372, 381 21 (1977); see Aditya W. H. v. Trump, Case No. 2:25-cv-374, 2025 WL 1420131, at *8 22 (D. Minn. May 14, 2025) (citing Swain with approval). 23 1 The parties agree that seeking the writ of habeas corpus is the only way 2 Sepulveda Ayala may challenge the legality of his detention. The Government does
3 not identify any alternative remedy available to him. Dkt. No. 16 at 3. This 4 situation is not unique, as other district courts have recently raised similar concerns 5 about Section 1252(g) and the availability of habeas relief to ICE detainees. See 6 Ozturk v. Trump, Case No. 2:25-cv-374, 2025 WL 1145250, at *12–15 7 (D. Vt. Apr. 18, 2025) (considering whether Congress had provided ICE detainees 8 with sufficient substitute remedy for habeas); Mohammed H. v. Mayorkas,
9 2025 WL 1692739, at *2 (D. Mass. Apr. 21, 2025) (finding Section 1252(g) cannot be 10 read to “entirely preclude any habeas jurisdiction over constitutional challenges to 11 immigration detention”). 12 The Government’s expansive reading of Section 1252(g) would eliminate 13 Sepulveda Ayala’s only avenue for challenging his detention, raising serious 14 Suspension Clause concerns that courts must avoid when possible. The 15 constitutional avoidance canon therefore supports this Court’s narrow
16 interpretation of Section 1252(g) and provides another reason to find that the 17 jurisdictional bar does not apply to Sepulveda Ayala’s claims. 18 3.2.3 The Court rejects the Government’s remaining jurisdictional arguments. 19 The Court has carefully considered the Government’s arguments on subject- 20 matter jurisdiction and finds them unavailing. First, citing Velarde-Flores v. 21 Whitaker, 750 F. App’x 606, 607 (9th Cir. 2019) (unpublished), the Government 22 argues that deferred action status aside, Sepulveda Ayala’s petition impermissibly 23 1 challenges the execution of a removal order, and so, this Court lacks jurisdiction 2 under Section 1252(g). Dkt. No. 15 at 6. But Velarde-Flores does not support the
3 Government’s assertion, as it does not analyze deferred action at all. In fact, the 4 Ninth Circuit purposefully avoided the deferred action issue, stating it would 5 “express no opinion” on the subject. 750 F. App’x at 607. 6 Second, the Government’s attempt to distinguish DHS v. Regents of the Univ. 7 of California, a case cited in the TRO, misses the mark. True, Regents involved 8 rescission of an entire deferred action program rather than individual enforcement
9 decisions. But in rejecting a broad interpretation of Section 1252(g), the Supreme 10 Court held that the jurisdictional bar does not cover challenges to the elimination of 11 deferred action benefits because such challenges do not involve decisions to 12 “commence proceedings,” “adjudicate” a case, or “execute” removal orders. 591 U.S. 13 at 19. This principle applies with equal force whether the Government attempts to 14 rescind deferred action wholesale or ignore it individually. And at least one circuit 15 found, as the Court does here, that this holding extends to the BFD EAD process.
16 See Barrios Garcia v. DHS, 25 F.4th 430, 449 (6th Cir. 2022) (recognizing that the 17 Supreme Court’s discussion of DACA in Regents applies to BFD EAD). No matter 18 how the Government frames it, Sepulveda Ayala’s challenge is to whether deferred 19 action means anything at all, not to prosecutorial discretion in removal proceedings. 20 In any event, the Court finds that it has jurisdiction for the reasons provided in this 21 order, regardless of Regents.
22 Third, the Government asks this Court to follow Velasco Gomez v. Scott, 23 Case No. 25-cv-0522, 2025 WL 1726465 (W.D. Wash. June 20, 2025), a recent 1 decision in this district. In Velasco Gomez, the Honorable James L. Robart 2 concluded that Section 1252(g) barred jurisdiction over a habeas petition
3 challenging detention despite deferred action status. Judge Robart’s careful 4 analysis demonstrates the complexity of these jurisdictional questions, particularly 5 in the evolving context of deferred action determinations. After carefully 6 considering the law and arguments presented, this Court respectfully reaches a 7 different conclusion based on its understanding of the applicable precedent and the 8 particular factual and legal context before it.
9 While acknowledging the persuasive reasoning in Velasco Gomez, several 10 considerations lead this Court to a different conclusion: (1) the analysis in Arce and 11 other authority establishing that Sepulveda Ayala’s claims arise from the 12 Government’s grant of deferred action rather than from execution of his removal 13 order; (2) the Second Circuit’s holding in Enriquez-Perdomo that deferred action 14 renders removal orders non-“executable” for Section 1252(g) purposes; and (3) 15 constitutional avoidance principles, given that the Government’s interpretation
16 would eliminate any avenue for challenging detention despite active deferred action 17 status, raising serious Suspension Clause concerns. See Sections 3.2.1–2, supra. 18 Having confirmed subject-matter jurisdiction, the Court proceeds to the 19 merits of the habeas petition. 20 3.3 Sepulveda Ayala demonstrates a strong likelihood of success on his habeas petition. 21 The first Winter factor requires Sepulveda Ayala to show he is likely to 22 succeed on the merits of his underlying habeas claim. 23 1 District courts grant writs of habeas corpus to those who demonstrate their 2 custody violates the Constitution or laws of the United States.
3 28 U.S.C. § 2241(c)(3). Habeas corpus “entitles [a] prisoner to a meaningful 4 opportunity to demonstrate that he is being held pursuant to ‘the erroneous 5 application or interpretation’ of relevant law.” Boumediene v. Bush, 553 U.S. 723, 6 779 (2008) (quoting, INS v. St. Cyr, 533 U.S. 289, 302 (2001)). Courts have statutory 7 and inherent power to grant such petitions. Ozturk v. Trump, Case No. 2:25-cv-374, 8 2025 WL 1145250, at *15 (D. Vt. Apr. 18, 2025) (citing Ostrer v. United States,
9 584 F.2d 594, 596 n.1 (2d Cir. 1978)). Because habeas proceedings are civil in 10 nature, the “[p]etitioner ‘bears the burden of proving that he is being held contrary 11 to law, . . . [and] he must satisfy his burden of proof by a preponderance of the 12 evidence.’” Aditya W. H., 2025 WL 1420131, at *7 (quoting Freeman v. Pullen, 658 13 F. Supp. 3d 53, 58 (D. Conn. 2023) (citations omitted)). 14 Sepulveda Ayala’s detention turns on a pure question of law: the meaning of 15 “deferred action.” The Government detains him under 8 U.S.C. § 1231(a) because it
16 intends to deport him. But Sepulveda Ayala argues his detention violates federal 17 law because the Government has deferred his deportation through the grant of 18 deferred action, eliminating any legal basis for his continued confinement. 19 Sepulveda Ayala’s interpretation of deferred action finds strong support in 20 established precedent. The Supreme Court described deferred action in AADC as 21 meaning “no action will thereafter be taken to proceed against an apparently
22 deportable alien, even on grounds normally regarded as aggravated.” 525 U.S. at 23 484 (quoting 6 C. Gordon, S. Mailman, & S. Yale–Loehr, Immigration Law and 1 Procedure § 72.03 [2][h] (1998)). AADC cited Fifth Circuit precedent to support this 2 definition. Id. (citing Johns v. Dep’t of Justice, 653 F.2d 884, 890–92 (5th Cir. 1981)).
3 In Johns, the Fifth Circuit distinguished deferred action from a stay of removal, 4 explaining that deferred action means the Government chooses to “refrain from (or, 5 in administrative parlance, to defer in) executing an outstanding order of 6 deportation.” 653 F.2d at 890. 7 The Ninth Circuit has consistently held that deferred action means the 8 Government agency “takes no action ‘to proceed against an apparently deportable
9 alien’ based on a prescribed set of factors generally related to humanitarian 10 grounds.” Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001) 11 (citation omitted); Ariz. Dream Act Coal. v. Brewer, 81 F. Supp. 3d 795, 800 12 (D. Ariz. 2015) (defining deferred action, generally, as “a form of prosecutorial 13 discretion” by which the Secretary of Homeland Security “decide[s] not to pursue 14 the removal of a person unlawfully in the United States”). 15 Numerous Ninth Circuit opinions confirm that deferred action prevents
16 recipients’ removal from the United States. See Lee v. Holder, 599 F.3d 973, 974–75 17 (9th Cir. 2010) (interim relief program providing deferred action to U-visa 18 applicants prevented their removal from the United States); see also Ariz. Dream 19 Act Coal. v. Brewer, 855 F.3d 957, 958 (9th Cir. 2017) (dissent) (explaining that 20 while deferred action does not grant legal status, it is the Government’s 21 “commitment not to deport”); Alvarez Leal v. Lynch, 673 F. App’x 630, 632 (9th Cir.
22 2017) (Pregerson, J., dissenting) (“For decades, the federal government’s mechanism 23 for exercising prosecutorial discretion in the context of immigration enforcement 1 has been deferred action, the formal determination not to remove a particular 2 individual.”); De Sousa v. Dir. of U.S. Citizenship and Immigr. Servs., 755 F. Supp.
3 3d 1266, 1268 (N.D. Cal. 2024) (holding interim benefit of deferred action “protects 4 [noncitizens] against removal from the United States” while U-visa applicants wait 5 for a visa to become available under the statutory cap); Medina v. U.S. Dep’t of 6 Homeland Sec., 804 F. Supp. 3d 1224, 1228 (W.D. Wash. 2019) (“Being approved for 7 DACA status is essentially a conditional promise from the Government that it will 8 not seek removal for the applicable term.”).
9 Current USCIS policy aligns with this precedent. The USCIS Policy Manual 10 defines deferred action as “a form of prosecutorial discretion to defer removal action 11 (deportation) against an alien for a certain period of time. Aliens granted deferred 12 action are considered to be in a period of stay authorized under USCIS policy for the 13 period deferred action is in effect.” USCIS Policy Manual, Vol. 1, Part H, 14 Ch. 2(A)(4), https://www.uscis.gov/policy-manual/volume-1-part-h-chapter-2 (last 15 visited July 24, 2025).1 ICE evidently applied this understanding when it denied
16 Sepulveda Ayala’s stay application in March, concluding that staying his removal 17 was “unnecessary and redundant” because USCIS had granted him deferred action. 18
19 1 The Government argues this section of the manual concerns “Emergencies or Unforeseen Circumstances” and is thus “non-relevant.” Dkt. No. 15 at 8–9. But the 20 Government offers no argument or authority explaining why the Court should disregard this comprehensive definition in favor of fragmentary descriptions found 21 elsewhere in the manual. Rather than addressing this gap, the Government directs the Court to USCIS Policy Manual Volume 3, Part C, Chapter 5, asserting that 22 “USCIS has plainly defined deferred action” there. Dkt. No. 15 at 8. The Court has looked. There is no definition of “deferred action” to be found, and what is “plain” is 23 the definition’s absence. 1 Dkt. No. 2-1 at 14-15. This denial explicitly acknowledged that deferred action 2 operates as a stay of removal, but after litigation began, ICE conducted what it
3 termed a “secondary review” and changed its position entirely. This contradiction 4 undermines the Government’s current stance and appears more like a post-hoc 5 rationalization than reasoned agency interpretation. See Bowen v. Georgetown 6 Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to what appears to be nothing 7 more than an agency’s convenient litigating position would be entirely 8 inappropriate.”).
9 The Government asks this Court to depart from Ninth Circuit guidance and 10 the USCIS Policy Manual and instead accept the truncated description in 11 Sepulveda Ayala’s BFD notice, which states that “deferred action is an act of 12 administrative convenience to the government which gives some cases lower 13 priority for removal.” Dkt. No. 2-1 at 12. Setting aside the fact that the Government 14 cites no authority requiring this Court to defer to this description, this description 15 need not conflict with established law: giving cases “lower priority” naturally flows
16 from the Government’s decision not to proceed with removal, the core meaning of 17 deferred action. 18 The Government also cites 8 U.S.C. § 1227(d) in support of its position that it 19 may keep processing removal orders over a grant of deferred action, but this statute 20 undermines rather than supports its argument. Dkt. No. 15 at 8. Section 1227(d) 21 provides that the denial of an administrative stay “shall not preclude the alien from
22 applying for a stay of removal, deferred action, or a continuance or abeyance of 23 removal proceeding under any other provision of the immigration laws[.]” 1 8 U.S.C. § 1227(d)(2). But if deferred action means only “lower priority” with no 2 effect on the Government’s ability to remove a beneficiary, as the Government
3 contends, then ICE would remain free to remove individuals with deferred action 4 whenever it chooses, rendering this statutory alternative merely an illusion. 5 Next, the Government suggests that deferred action granted through the 6 BFD process differs from deferred action generally speaking. Yet the Government 7 cites no authority establishing a special definition of deferred action for U-visa 8 petitioners. To the contrary, the term “deferred action” has carried consistent
9 meaning “for decades” as the Government’s “formal determination not to remove a 10 particular individual.” Alvarez Leal, 673 F. App’x at 632 (Pregerson, J., dissenting); 11 see AADC, 525 U.S. at 484; cf. Barrios Garcia, 25 F.4th at 449 (explaining that 12 DACA mirrors BFD process—both establish a process for giving people deferred 13 action benefits). 14 Lastly, citing Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), the 15 Government argued for the first time at the preliminary injunction hearing that
16 Sepulveda Ayala’s deferred action and work authorization are not constitutionally 17 protected property interests because whether to confer or revoke such status is 18 within the Government’s discretion. The Fifth Amendment provides that the 19 Government shall not deprive a person of “life, liberty, or property, without due 20 process of law.” U.S. Const. amend. V. Castle Rock established that “a benefit is not 21 a protected entitlement if government officials may grant or deny it in their
22 discretion.” 545 U.S. at 756. Yet once in possession of a particular benefit, it may 23 not to be taken away without procedural due process. Bell v. Burson, 402 U.S. 535, 1 539 (1971); see Medina v. U.S. Dep’t of Homeland Sec., No. C17-0218RSM, 2 2017 WL 5176720, at *9 (W.D. Wash. Nov. 8, 2017) (“[T]he Court also finds that the
3 representations made to applicants for DACA cannot and do not suggest that no 4 process is due to them, particularly in Plaintiff’s case where benefits have already 5 been conferred.”). 6 Castle Rock does not control here for several reasons. That case involved only 7 an “indirect” benefit from police enforcement of a restraining order, 545 U.S. at 8 767–68, while deferred action is a direct benefit personally conferred on Sepulveda
9 Ayala with concrete entitlements including lawful presence and work authorization. 10 Even more to the point, Castle Rock involved a prospective claim to future services, 11 while this case involves benefits already granted. As one court observed, “even 12 absent a claim of entitlement to an important benefit, once it is conferred, recipients 13 have a protected property interest that requires a fair process before the 14 government may take that benefit away.” Inland Empire—Immigrant Youth 15 Collective v. Nielsen, Case No. EDCV 17-2048, 2018 WL 4998230, at *19
16 (C.D. Cal. 2018) (internal quotation marks omitted) (emphasis in original) 17 (collecting cases). The Government’s position that it can grant deferred action while 18 simultaneously ignoring it entirely in order to detain people would also create the 19 kind of “arbitrary imprisonment without law or the appearance of law” that violates 20 due process. Boumediene, 553 U.S. at 785. Thus, Castle Rock’s reasoning simply 21 does not apply when the Government seeks to revoke without explanation or
22 process a concrete entitlement it has already bestowed. 23 1 For the reasons above, the Court finds that Sepulveda Ayala’s interpretation 2 of deferred action—that the Government will refrain from executing his removal—
3 finds strong support in Supreme Court precedent, circuit authority, and USCIS 4 policy. In sum, Sepulveda Ayala has shown a likelihood of success on his habeas 5 petition that his detention is unlawful. 6 3.4 Sepulveda Ayala faces imminent and irreparable harm. 7 The Court has already concluded that Sepulveda Ayala would face 8 irreparable and imminent harm absent preliminary injunctive relief.
9 Dkt. No. 11 at 11. The Court found that this Winter factor tips sharply in Sepulveda 10 Ayala’s favor and makes that finding again for the same reasons. Id. Sepulveda 11 Ayala is 53 years old and has lived in the United States for most of his life. He has 12 resided here continuously for over 20 years, and his wife, children, and 13 grandchildren all live here. He faces deportation, family separation, and additional 14 hurdles in the U-visa process if removed. He will also be unable to use the benefits 15 the Government has affirmatively granted him, including his authorization to work
16 legally in the United States, if ICE removes him. At the hearing, the Government 17 asserted that the only reason it had not removed Sepulveda Ayala was to comply 18 with this Court’s TRO. And Sepulveda Ayala’s attorney submitted a declaration 19 providing more evidence that Sepulveda Ayala’s removal is imminent absent 20 preliminary injunctive relief. 21
22 23 1 3.5 The equities and public interest favor a preliminary injunction. The final two Winter factors, which involve balancing the equities and 2 considering the public interest, merge when the Government is a party to a case. 3 Padilla v. Immigr. & Customs Enf’t, 953 F.3d 1134, 1141 (9th Cir. 2020). These 4 factors also tip sharply in Sepulveda Ayala’s favor. A preliminary injunction would 5 impose little to no prejudice on the Government, which has already issued deferred 6 action and BFD EAD benefits to Sepulveda Ayala. Dkt. 11 at 11–12. Indeed, ICE 7 acknowledged on March 6, 2025, after it detained him, that his removal would be 8 inappropriate given his deferred action status. Ultimately, the Court continues to 9 find that preliminary injunctive relief precluding Sepulveda Ayala’s deportation 10 would change little to nothing for the agencies involved. On the other hand, 11 Sepulveda Ayala would face life-changing and irreparable harm absent a 12 preliminary injunction. The public interest also favors ensuring that the 13 Government does not detain or deport individuals without a legal basis. 14 4. CONCLUSION 15 Accordingly, the Court ORDERS that Defendants and all their officers, 16 agents, servants, employees, attorneys, and persons acting on their behalf in concert 17 or in participation with them are immediately enjoined from: 18 (a) Removing or deporting Sepulveda Ayala from the United States; and 19 (b) Transferring Sepulveda Ayala from the Northwest ICE Processing Center 20 to any other facility during the pendency of these proceedings. 21 22 23 1 No security bond is required under Federal Rule of Civil Procedure 65(c) 9 || because Defendants face no realistic likelihood of harm from enjoining their
3 conduct. Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003). 4 Respondents are ORDERED to respond to Sepulveda Ayala’s petition, 5 Dkt. No. 1, by July 28, 2025. If Sepulveda Ayala elects to file a reply, it is due on
G July 30, 2025. The Clerk of the Court is DIRECTED to NOTE the Petition for
7 30, 2025. Dkt. No. 1.
8 9 Dated this 24th day of July, 2025 at 4:37 p.m. (PT). 10 11 C = N. Whitehead United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23