R.O.A.,1 Petitioner, v. EDLOW (2025)

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

Petitioner R.O.A. brings this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., against the Director of U.S. Citizenship and Immigration Services, the Secretary of the Department of Homeland Security, the Acting Director of Immigration and Customs Enforcement (“ICE”), and the U.S. Attorney General (collectively, “the Government”). Petitioner's Complaint raises three claims. The first is for unreasonable delay in the adjudication of his Violence Against Women Act (“VAWA”) self-petition and his application for T nonimmigrant status (“T visa”). The second cause of action challenges the recission of ICE Policy Directive 11005.3 as arbitrary and capricious. The third cause of action argues that ICE failed to follow ICE Policy Number 11005.4 in taking immigration enforcement action against Petitioner. Petitioner currently seeks a preliminary injunction staying his removal from the United States pending the adjudication of his claims.

Factual Background

The following facts are drawn from the Complaint.

Petitioner is a 54-year-old native and citizen of Ghana. (Doc. 1 ¶ 9.) He became a lawful permanent resident (“LPR”) of the United States on April 4, 2000, after winning entry through the Diversity Visa Lottery. (Id.) On November 6, 2002, a federal grand jury indicted Petitioner for one count of bribery in violation of 18 U.S.C. § 201(b)(2)(A), two counts of bribery in violation of 18 U.S.C. § 201(b)(2)(C), and two counts of introducing contraband into a penal institution in violation of D.C. Code Ann. § 22-2603. (Id. ¶ 21.) Petitioner was released on personal recognizance on November 7, 2002, and, shortly thereafter, fled to Canada, where he sought—and was denied—asylum. (Id. ¶ 22.) He was extradited from Canada to the United States on April 20, 2007. (Id. ¶ 23.) On June 6, 2007, Petitioner pled guilty to one count of bribery in violation of 18 U.S.C. § 201(b)(2)(C). (Id.) He was sentenced to eight months imprisonment, three years of probation, and a $900 fine. (Id.)

The Department of Homeland Security (“DHS”) commenced removal proceedings against Petitioner on January 7, 2008. (Id. ¶ 24.) Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture, but the Immigration Judge ultimately found Petitioner to be removable, denied his applications for relief, and ordered him removed to Ghana. (Id. ¶ 25.) The Board of Immigration Appeals affirmed the Immigration Judge's decision and denied Petitioner's motion to reconsider. (Id.) Petitioner did not file a petition for review, and his order for removal is final. Petitioner was ultimately released from ICE detention on an order of supervision. (Id. ¶ 26.) He has remained under ICE supervision ever since. (Id.)

In May 2020, Petitioner married a U.S. citizen. (Id. ¶ 28.) U.S. immigration law provides a path to LPR status and citizenship for non-citizen spouses of U.S. citizens. 8 U.S.C. § 1154. Under these laws, a non-citizen spouse may not, under most circumstances, petition for status on their own behalf; instead, the U.S. citizen spouse must petition on the non-citizen's behalf. Id. § 1154(a)(1)(A)(i). However, the Violence Against Women Act of 1994 and its subsequent reauthorizations amended the Immigration and Nationality Act (“INA”) to allow the abused spouse, intended spouse, or former spouse of a U.S. citizen to file a petition themselves. See Pub. L. 103-322, Title IV, 108 Stat. 1976, 1902 (Sept. 13, 1994); see also, Pub. L. 113-4, 127 Stat. 54, 110 (Mar. 7, 2013). Petitioner filed a VAWA self-petition on August 25, 2022, alleging emotional, psychological, and physical abuse by his spouse. (Id.) On November 28, 2022, USCIS determined that Petitioner had established a prima facie case for classification under the self-petitioning provisions of VAWA. (Id. ¶ 30.) The application remains pending.

On July 15, 2024, Petitioner also filed an application for a T visa, a status potentially available to noncitizens who have been victims of human trafficking while in the United States. (Id. ¶ 31.) Petitioner applied based on his alleged experience as a victim of labor trafficking in the U.S. (Id.) The application remains pending with USCIS.

On or about June 4, 2025, ICE took Petitioner into custody, stating that Petitioner had failed to comply with the terms of his order of supervision because he has not provided the agency with his Ghanaian passport. (Id. ¶ 32.) He is currently detained in Hopkins County Jail in Madisonville, Kentucky. (Id. ¶ 33.) Petitioner believes his removal from the United States is “imminent.” (Id. ¶ 38.)

Legal Standard

Plaintiff seeks a preliminary injunction under Fed. R. Civ. P. 65(a).

In general, a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of a preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest.

Daileader v. Certain Underwriters at Lloyds London Syndicate 1861, 96 F.4th 351, 356 (2d Cir. 2024) (cleaned up). Although each factor is important, “[t]he showing of irreparable harm is perhaps the single most important prerequisite for the issuance of a preliminary injunction, and the moving party must show that injury is likely before the other requirements for an injunction will be considered.” Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (cleaned up). When the Government is a party in a lawsuit, “ ‘the Government's interest is the public interest,’ [so] the balance of the hardships and public interest merge as one factor.” Saget v. Trump, 375 F. Supp. 3d 280, 339–40 (E.D.N.Y. 2019) (quoting New York v. U.S. Dep't of Com., 351 F. Supp. 3d 502, 673 (S.D.N.Y. 2019)).

Analysis

The Government opposes the Motion for Preliminary Injunction on both jurisdictional and substantive grounds. The court begins with the jurisdictional question.

I. Jurisdiction

A. Undue Delay Claim

1. Section 1252(a)(5)

The Government argues that 8 U.S.C. § 1252(a)(5) strips the court of jurisdiction to hear Petitioner's claims. Section 1252(a)(5) provides:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and section 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e).

This provision—and 8 U.S.C. § 1252(b)(9)—“consolidate review of challenges to orders of removal in the courts of appeals.” Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011) (per curiam). “It is well-settled that direct appeals and indirect attacks on removal orders issued by the immigration courts are heard in the first instance in the applicable circuit courts.” Mahdawi v. Trump, 781 F. Supp. 3d 214, 227 (D. Vt. 2025).

“[A] suit brought against immigration authorities is not per se a challenge to a removal order; whether the district court has jurisdiction will turn on the substance of the relief that a plaintiff is seeking.” Delgado, 643 F.3d at 55. When the relief a petitioner seeks from the court would render an order of removal invalid, it amounts to an indirect challenge to the removal order and implicates § 1252(a)(5). Id.

The Second Circuit addressed indirect challenges to removal for the first time in Delgado. There, the petitioner attempted to enter the United States with false documents and was removed under an expedited order of removal. After her removal, she entered the U.S. without inspection. She ultimately married a U.S. citizen and sought legal status through her husband. Because of her expedited removal and subsequent reentry, she could not adjust status to that of a legal permanent resident without first obtaining an I-212 waiver of inadmissibility. Form I-212 is an application for permission to reapply for admission to the United States after being removed or deported. The petitioner submitted the waiver and application to adjust status, but USCIS denied both applications. In the case of Form I-212, USCIS denied the waiver because the petitioner applied from within the United States, and Form I-212 relief can only be granted to petitioners who apply from outside the United States. Immigration authorities then arrested the petitioner and reinstated her removal order.

The petitioner brought a mandamus action “to compel USCIS to make a determination on the merits of her I-212 application, alleging that USCIS denied her application in violation of the [APA], the Due Process Clause, and the Equal Protection Clause.” 643 F.3d at 54. The court held that the petitioner's lawsuit was an indirect challenge to her order of removal because the I-212 waiver was a prerequisite to adjusting status, which would, in turn, invalidate her removal order. Id. at 55.

In this case, the Government contends that Petitioner's undue delay claim is an indirect challenge to his removal order because his ultimate goal is to achieve lawful status and avoid removal. If USCIS favorably adjudicates either the T visa or the VAWA application, that decision may affect Petitioner's current removal order. Petitioner responds that he is not asking the court to order a favorable adjudication of his applications, as was the case in Delgado; instead, he merely asks that the court compel USCIS to adjudicate those applications one way or the other before he is removed. In Petitioner's view, because USCIS retains the discretion to approve or deny the applications, his APA action is not an indirect challenge to his order of removal.²

The court in Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018) considered a scenario very similar to the one in this case and sided with the petitioner. In Calderon, the petitioner had a final order of removal when he began the process of obtaining a provisional unlawful presence waiver, an initial step toward adjustment of status. Before his application for a waiver could be adjudicated, ICE detained him with the intention of executing the removal order. The petitioner requested that the court order the respondents to (1) release him from custody; (2) enjoin the respondents from removing him from the New York City area; and (3) stay his removal pending resolution of the petition.

The respondents argued that § 1252(a)(5) stripped the court of jurisdiction to hear the petition because it was an indirect challenge to the petitioner's order of removal, citing Delgado. The court distinguished Delgado, explaining that the claims in the two cases were “fundamentally different”:

The plaintiff's claim in Delgado was premised on more than a right to seek access to a lawful regulatory process; it was premised on a right to remain in the United States, that if USCIS were to reach the merits of her I-212 application, she would be granted the right to remain in the United States. That is not what Petitioner claims here. Petitioner claims only that he has a right to seek access to a lawful regulatory process that the DHS makes available to people in his precise position, and seeks review of ICE's legal authority in executing an order of removal notwithstanding his right. Looked at another way, Petitioner seeks consideration of his legitimate and authorized pursuit of an existing process before the government exercises its right to remove. That is not a claim of a right to remain in the United States. That is neither a direct nor indirect challenge to his removal order.

Id. at 956. See also Duarte v. Mayorkas, 27 F.4th 1044, 1055 (5th Cir. 2022) (“If the district court were to determine that USCIS was the correct body and order it to adjudicate Appellants’ [adjustment of status] applications, it would have no effect on their deportation orders because USCIS would maintain discretion to deny the applications on the merits. The courts that have held that no jurisdiction exists over this type of claim have not meaningfully analyzed this significant distinction between an order requiring adjudication and [an] order requiring a certain result ․”).

The same reasoning applies here. Petitioner concedes the validity of his removal order and recognizes that USCIS may deny his T visa application and VAWA petition. He seeks only to have USCIS review his applications for status. Petitioner is candid about his hope that his applications will be favorably adjudicated and that he will remain in the United States, but the case before this court is limited in scope and is neither a direct nor an indirect challenge to Petitioner's order of removal.

There is an additional ground for distinguishing Delgado. There, the Second Circuit's decision turned on the fact that the I-212 application was “inextricably linked” to the petitioner's removal order. 643 F.3d at 55 (quoting Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1082–83 (9th Cir. 2010)). Form I-212 is necessarily linked to an order of removal because it is an application for permission to seek admission after the applicant is subjected to a final order of removal. In Delgado, the petitioner's removal order had been reinstated, and she sought to use the Form I-212 to invalidate that removal order.

By contrast, T visa applications and VAWA petitions exist separate and apart from any removal proceedings—applicants might or might not have removal orders and might or might not be in removal proceedings. In fact, in Delgado, the Second Circuit explicitly cited a challenge to the denial of an I-130—the form pending in Petitioner's VAWA case—as an example of an action not barred by § 1252(a)(5) “because such a denial is unrelated to any removal action or proceeding.” Id. at 55 n.3 (quoting Ruiz v. Mukasey, 552 F.3d 269, 274 n.3 (2d Cir. 2009)). Further, as the court in S.N.C. v. Sessions, No. 18 Civ. 7680, 2018 WL 6175902, at *4 (S.D.N.Y. Nov. 26, 2018) noted in distinguishing that case from Delgado, Petitioner's T visa application is not “inextricably linked” to his order of removal because, even if granted a T visa, his order of removal would remain valid, and he would need to seek reopening of his immigration case and recission of the removal order. See 8 C.F.R. 214.204(o)(2) (“A[ ] [T visa] applicant who is the subject of an order of removal, deportation or exclusion issued by an immigration judge or the Board of Immigration Appeals may seek recission of such order by filing a motion to reopen and terminate removal proceedings with the immigration judge or the Board.”).

For these reasons, § 1252(a)(5) does not bar review in this case.

2. Section 1252(g)

The Government also asserts that 8 U.S.C. § 1252(g) deprives the court of jurisdiction to hear Petitioner's claims. (Doc. 11 at 8.) Section 1252(g) states:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g).

In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (“AADC”), the Supreme Court read § 1252(g) narrowly, explaining that it “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” Id. at 482 (quoting § 1252(g)). The Supreme Court recently affirmed that textual interpretation in Jennings v. Rodriguez, 583 U.S. 281, 294 (2018).

Despite the Court's narrow reading of § 1252(g), the Government contends that this case falls within its scope; ICE currently seeks to execute a removal order against Petitioner, and Petitioner seeks to delay the execution of the removal order until his T visa application and VAWA petition have been adjudicated. If one of those forms of relief is granted, ICE might find itself unable to execute the removal order.

On its face, the Government's argument might appear compelling. However, “courts in this [circuit] have held that § 1252(g) does not strip courts of jurisdiction when the petitioner is seeking to challenge ICE's legal authority over a removal order, rather than its discretionary decisions regarding removal orders.” S.N.C., 2018 WL 6175902, at *5 (collecting cases). That reading of § 1252(g) once again stems from AADC, a decision that considered whether § 1252(g) deprived the federal courts of jurisdiction over selective-enforcement lawsuits. As the Supreme Court explained, § 1252(g) focuses on the three discrete acts of commencing proceedings, adjudicating cases, and executing removal orders because, “[a]t each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice ․ of exercising that discretion for humanitarian reasons or simply for its own convenience.” AADC, 525 U.S. at 483–84.

But, because “no generous act goes unpunished ․ the INS's exercise of this discretion opened the door to litigation in instances where the INS chose not to exercise it.” Id. at 484. Specifically,

[e]fforts to challenge the refusal to exercise such discretion on behalf of specific [noncitizens] sometimes [were] favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion.

Id. at 484–85 (quoting 6 C. Gordon, S. Mailman, & S. Yale Loehr, Immigration Law and Procedure § 72.03[2][a] (1998)). “It was this reason, the AADC Court explained, that motivated Congress to limit judicial review of these particular, discrete acts.” You, Xiu Qing v. Nielsen, 321 F. Supp. 3d 451, 457 (S.D.N.Y. 2018). Thus, “[§] 1252(g) is directed ‘against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.’ ” Ozturk v. Hyde, 136 F.4th 382, 397 (2d Cir. 2025) (quoting AADC, 525 U.S. at 485 n.9).

In this case, Petitioner seeks to challenge the lawfulness of USCIS's delay in adjudicating his T visa and VAWA petition. The Complaint does not challenge the merits of ICE's discretionary decision to remove Petitioner or its power to remove him. Rather, it challenges USCIS's failure to expedite adjudication of Petitioner's applications in light of his impending removal. Implicit in the Complaint, however, is a challenge to ICE's power to remove Petitioner while his applications for relief remain pending. Because Petitioner challenges whether ICE has the authority to remove him during the pendency of his applications, not ICE's discretionary choice to remove him, § 1252(g) does not strip the court of jurisdiction to hear Petitioner's claim.

B. Recission of ICE Policy Directive 11005.3

In addition to his undue delay claim, Petitioner challenges the recission of ICE Policy Directive 11005.3 as arbitrary and capricious. ICE rescinded the directive on January 30, 2025, when it issued ICE Policy Number 11005.4. ICE Policy Number 11005.4, https://www.ice.gov/doclib/foia/policy/11005.4.pdf [https://perma.cc/2NAG-2VD2]. While Directive 11005.3 was in place, it required ICE employees to “refrain from taking civil immigration enforcement action against known beneficiaries of victim-based immigration benefits and those known to have a pending application for such benefits.” ICE Policy Directive 11005.3, https://www.ice.gov/doclib/foia/policy/11005.3_UsingVictimCenteredApproachNoncitizenVictims.pdf [https://perma.cc/D7AA-QNMA].

Because Petitioner has two pending applications for victim-based immigration benefits, he falls within the scope of the now-rescinded policy. The Government argues that § 1252(a)(5) bars review of his claim. (Doc. 11 at 9 n.3.) It does not argue that § 1252(g) is a bar to this claim. (See id.)

In D'Ambrosio v. Scott, 784 F. Supp. 3d 699 (D. Vt. 2025), this court held that the petitioner's APA claim for the unlawful recission of ICE Directive 11005.3 was an indirect challenge to his order of removal. Id. at 704. The Government contends that the court should therefore hold that Petitioner's challenge to the recission of ICE Directive 11005.3 is likewise an indirect challenge to his order of removal. (Doc. 11 at 9 n.3.) But the facts in D'Ambrosio were different in an important respect.

When ICE arrested the petitioner in that case, he had a pending VAWA petition but no order of removal. When ICE detained him, it issued him a Notice to Appear, and he received a removal order shortly thereafter. Under the now-rescinded ICE Directive 11005.3, ICE would have been required to refrain from taking enforcement action against the petitioner, which, in that case, meant that the petitioner would never have received a removal order to begin with. Thus, in challenging the recission of the ICE directive, the petitioner was challenging the very validity of his removal order; if the recission of the directive was illegal, the government had no authority to issue the removal order. Thus, this court held that the petitioner's requested relief was “the kind of ‘indirect’ challenge to a final order of removal that the Second Circuit held that district courts are foreclosed from adjudicating.” Id.

In this case, Petitioner already had a removal order when he filed his VAWA petition and T visa application. The rescission of ICE Policy Directive 11005.3 therefore has no bearing on the validity of his removal order. Instead, it affects only whether ICE has the legal authority to execute his removal order while his applications for relief are pending. Section 1252(a)(5) does not bar review of this claim.

II. Preliminary Injunction

A. Irreparable Harm

“The irreparable harm requirement is the single most important prerequisite for the issuance of a preliminary injunction. This requirement must therefore be satisfied before the other requirements for an injunction can be considered.” State Farm Mut. Auto. Ins. Co. v. Tri-Borough NY Med. Prac. P.C., 120 F.4th 59, 80 (2d Cir. 2024) (internal quotation marks and citations omitted). “[I]rreparable harm exists where, but for the grant of equitable relief, there is a substantial chance that upon final resolution of the action the parties cannot be returned to the positions they previously occupied.” Id. (internal quotations marks and citation omitted).

1. VAWA Petition

According to the Complaint, Petitioner has an I-360 VAWA self-petition pending with USCIS. (Doc. 1 ¶ 9.) Although VAWA applicants may concurrently file an I-360 and an I-485 Application to Register Permanent Residence or Adjust Status, Petitioner has not filed an I-485. (Id.) An applicant may apply for VAWA from abroad. USCIS, Abused Spouses, Children, and Parents, https://www.uscis.gov/humanitarian/abused-spouses-children-and-parents [https://perma.cc/DC7Q-HBUP]. Although applicants for adjustment of status may be deemed to have abandoned such an application if they leave the United States, Petitioner has not filed for adjustment of status. If his I-360 is granted while he is abroad, he can apply for legal permanent residence through a process called consular processing. Id.

Because his removal would not affect his eligibility for VAWA, Petitioner cannot demonstrate irreparable harm in connection with his VAWA petition.

2. T Visa

In contrast to his VAWA petition, Petitioner's T visa application cannot move forward if he is removed from the U.S. To be eligible for a T visa, an applicant must be “physically present in the United States ․ or at a port of entry thereto, on account of such trafficking.” 8 U.S.C. § 1101(a)(15)(T)(i)(II). Thus, if Petitioner is removed, he will no longer be eligible for a T visa.

Losing the opportunity to receive a T visa amounts to irreparable harm. The United States has been Petitioner's home for the better part of two decades, and, without the opportunity to pursue his T visa, his removal would likely mean that he could never return to the United States. Losing the opportunity to obtain lawful status in the United States and being separated from his three U.S. citizen children certainly constitutes irreparable harm. See D'Ambrosio v. Scott, No. 25-cv-468, 2025 WL 1504312, at *3 (D. Vt. May 9, 2025) (slip copy) (“The likely permanent loss of the opportunity to obtain [legal permanent resident] status in the United States certainly also constitutes irreparable harm.”); see also Du v. U.S. Dep't of Homeland Sec., No. 25-cv-644, 2025 WL 1220254, at *3 (D. Conn. Apr. 28, 2025) (slip copy) (“Plaintiffs surely will suffer irreparable harm absent injunctive relief. First, Plaintiffs are in immediate danger of deportation.”); D'Ambrosio, 784 F. Supp. 3d at 703 (“As before, if Mr. D'Ambrosio is removed from the country, he will be barred from returning to the United States for 10 years. The United States has been Mr. D'Ambrosio’s home for eight years. Being removed from his community, likely permanently, constitutes irreparable harm.”); Peralta-Veras v. Ashcroft, No. CV 02-1840, 2002 WL 1267998, at *6 (E.D.N.Y. Mar. 29, 2002) (removal from United States would constitute irreparable harm because the petitioner would be separated from his family and would be unable to return to the United States).

The court reaches this conclusion despite the fact that, in theory, there are other ways Petitioner could obtain relief from removal. For instance, under 8 C.F.R. 214.204(b)(2), Petitioner may seek an administrative stay of removal on the basis of his pending T visa application. As the Government notes, Petitioner has not indicated whether he has sought an administrative stay. Moreover, USCIS regulations provide that the agency will conduct a bona fide determination (“BFD”)—an initial review of a T visa application for completeness and prima facie eligibility—for any applicant who is issued a Request for Evidence (“RFE”). 8 C.F.R. § 214.205(a). If the applicant receives a positive BFD, it results in an automatic stay of removal pending final resolution of the T visa application. Id. § 214.205(g). Petitioner's reply brief reports that he was issued an RFE on September 5, 2025, concerning a particular step in his T visa process – his application for an I-192 Waiver Application (Application for Advance Permission to Enter as Nonimmigrant) addressing his unlawful arrival (Doc. 15 at 3.) On September 29, 2025, Petitioner informed the court that USCIS denied his BFD on September 15, 2025 (Doc. 17.) Despite the denial of BFD status at this time, Petitioner's T visa application remains open. The next step is for Petitioner to respond to the pending RFE by providing additional information in support of his Waiver Application. Petitioner has therefore made a showing that there is a “substantial chance” he would suffer irreparable harm.

B. Likelihood of Success on the Merits

Petitioner argues that USCIS has failed to adjudicate his petition “within a reasonable amount of time” in violation of 5 U.S.C. § 555(b). The court has the power to “compel agency action unlawfully withheld or unreasonably delayed” under 5 U.S.C. § 706. Petitioner has submitted evidence that USCIS generally takes 42 months to adjudicate a VAWA petition (Doc. 1-8) and 23 months to adjudicate at T visa application (Doc. 1-9). Petitioner's VAWA application has been pending since August 25, 2022—approximately 37 months. (Doc. 1 ¶ 29.) His T visa application has been pending since July 15, 2024—approximately 14.5 months. (Doc. 1 ¶ 31.) Petitioner does not challenge the typical processing times as per se unreasonable but argues that they are unreasonable in his case, due to his impending removal. (Doc. 1 ¶ 39.)

In adjudicating cases of undue delay, courts look to the six factors set out in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”):

1. Whether the time the agency takes to make a decision is governed by a “rule of reason”;

2. Any statutory timetable or indication of the speed Congress expects;

3. That delays are less tolerable when human health or welfare is at stake;

4. The effect of expediting delayed action on agency activities of a competing or higher priority;

5. The nature and extent of the interests prejudiced by delay;

6. That no impropriety is required to find the delay unreasonable.

The most important of the TRAC factors in this case are USCIS's rule of reason, the implications for human health or welfare, the effect of expediting delayed action on other agency activities, and the nature and extent of the interests prejudiced by the delay.

USCIS's rule of reason is, generally speaking, a “first-in-first-out” procedure, but it also has an established policy for expediting certain requests. USCIS Policy Manual, Vol. 1, Part A, ch. 5, https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5 [https://perma.cc/C5XK-SKMB]. Plaintiff requested expedited processing for his VAWA petition on March 7, 2024, but that request was denied. (Doc. 1 ¶ 15.) Plaintiff also requested expedited processing of his T visa application on August 18, 2025, which USCIS granted after the hearing on this motion. (Doc. 1 ¶ 17.) USCIS therefore appears to be abiding by its rule of reason with respect to the T visa. It is unclear why, despite evidence of Petitioner's outstanding removal order, USCIS denied the request to expedite review of the VAWA petition.

As for the other factors, the court begins by noting that most T visa and VAWA applicants, not just Petitioner, lack legal status in this country and are, therefore, at risk of removal. Some of those applicants have final orders of removal, making the risk of removal more imminent and acute. The regulatory procedures recognize these risks, and there are processes in place to attempt to mitigate them: T visa applicants may apply for administrative stays of removal. 8 C.F.R. § 214.204(b)(2). A positive bona fide determination for a T visa application triggers an automatic stay of removal pending final resolution of the application. 8 C.F.R. § 214.205(g). VAWA petitioners may file motions to reopen their immigration cases and have their orders of removal rescinded based on their pending applications for relief. 8 U.S.C. § 1229a(c)(7)(C)(iv). The regulations therefore contemplate that the applications of people in Petitioner's position should generally be processed on the same first-in-first-out basis as other applications, with the caveat that the various mechanisms for avoiding or delaying removal will obviate any exigency in adjudicating those applications first.

That being said, Petitioner appears not to have received any of this interim relief, suggesting that expedited processing may be warranted in his case. Human welfare is certainly at stake, as Petitioner has lived in the United States for 25 years and will lose his opportunity to receive a T visa if removed. As an applicant facing imminent removal, Petitioner's application is also arguably of higher priority than most other applications, so expediting review in his case would not have a negative impact on other high priority cases. Thus, in the absence a grant of relief from USCIS while Petitioner's T visa application is pending, Petitioner is likely to succeed on the merits of his claim.

Having concluded that Petitioner has shown a likelihood of success on the merits of his first claim, the court need not address his remaining claims for the purposes of this motion.

C. Balance of the Equities and the Public Interest

In analyzing the last two injunction factors, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief,” as well as “the public consequences in employing the extraordinary remedy of injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “To establish that the balance of hardships tips in their favor, the plaintiffs must demonstrate that the harm they would suffer absent the relief sought is substantially greater than the harm the defendants would suffer if the injunction were granted.” New York v. U.S. Dep't of Educ., 477 F. Supp. 3d at 305. As noted above, the last two factors merge when the Government is a party in the case. Saget, 375 F. Supp. 3d at 339–40.

In this case, issuing an order barring Petitioner's removal while this case is pending would appropriately balance the equities and serve the public interest. The court recognizes the Government's legitimate interest in swiftly executing removal orders. However, if USCIS ultimately determines that Petitioner is not eligible for relief, the court's order will only temporarily prevent Petitioner's removal during the adjudication of his claim for relief. If Petitioner is eligible for relief, the equities are strongly in his favor, as Congress specifically created T visas for people in Petitioner's position. In a similar vein, the court must consider the public's interest in successful criminal investigations and crime prevention, both of which are goals of the T visa program.

Conclusion

The court GRANTS Petitioner's Motion for Preliminary Injunction (Doc. 3). The Government may not remove Petitioner from the United States during the pendency of this litigation.

FOOTNOTES

2.   Petitioner also argues that Delgado is no longer good law after the Supreme Court's decision in Jennings v. Rodriguez, 583 U.S. 281 (2018). The court does not find support for that position and therefore focuses on Petitioner's arguments that Delgado is distinguishable.

Geoffrey W. Crawford, Judge