Doe et al v. Noem et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SVITLANA DOE, et al.,
Plaintiffs,
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Civil Action No. 1:25-cv-10495-IT	v. 	*
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MARKWAYNE MULLIN, et al.,1
Defendants.
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MEMORANDUM & ORDER
March 25, 2026
TALWANI, D.J.
Pending before the court is Defendants’ Motion for Reconsideration or Stay [Doc. No.
277]. Defendants ask the court to reconsider and dissolve the court’s Preliminary Injunction
[Doc. No. 257] preliminarily enjoining and staying Defendants’ Termination of Family
Reunification Parole Processes for Colombians, Cubans, Ecuadorians, Guatemalans, Haitians,
Hondurans, and Salvadorans, 90 Fed. Reg. 58032 (Dec. 15, 2025) (the “Federal Register
Notice”) and to do so by today. Defendants request, in the alternative, a stay pending
reconsideration and appeal. Also pending is Plaintiffs’ Motion for an Order to Show Cause, or in
the Alternative, to Strike Improper and Untimely Supplementation of the Administrative Record
[Doc. No. 283]. For the reasons below, the clerk shall set Plaintiffs’ motion for a hearing.
Defendants’ motion is DENIED without prejudice to refile a motion to dissolve or modify the
1 Secretary of the Department of Homeland Security Markwayne Mullin is substituted for former
Secretary Kristi Noem as a Defendant in this litigation. See Fed. R. Civ. P. 25(d) (“An action
does not abate when a public officer who is a party in an official capacity . . . ceases to hold
office while the action is pending. The officer’s successor is automatically substituted as a
party.”).
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court’s Preliminary Injunction [Doc. No. 257] based on the Corrected Certified Administrative
Record [Doc. No. 276-1] if the court denies Plaintiffs’ pending motion.
I. 	Request for Reconsideration
A. 	Standard of Review
“[A] district court has the inherent power to reconsider its interlocutory orders[.]”
Fernandez-Vargas v. Pfizer, 522 F.3d 55, 61 n.2 (1st Cir. 2008). Reconsideration of a motion
may be appropriate “if the moving party presents newly discovered evidence, if there has been an
intervening change in the law, or if the movant can demonstrate that the original decision was
based on a manifest error of law or was clearly unjust.” U.S. v. Allen, 573 F.3d 42, 53 (1st Cir.
2009). A motion for reconsideration “is normally not a promising vehicle for revisiting a party’s
case and rearguing theories previously advanced and rejected.” Palmer v. Champion Mortg., 465
F.3d 24, 30 (1st Cir. 2006).
B. 	Reconsideration Based on the “Corrected Administrative Record”
Defendants assert that “in its haste to respond to the motion for a preliminary injunction”
and related motions, the Department of Homeland Security (“DHS”) “inadvertently omitted five
documents” from the Administrative Record. Mem. ISO Mot. for Reconsideration 3 [Doc. No.
278]. Plaintiffs object to the court’s consideration of these additional documents, see Motion for
an Order to Show Cause, or in the Alternative, to Strike Improper and Untimely Supplementation
of the Administrative Record [Doc. No. 283], and argue further that, if considered, the additional
documents support rather than undermine the preliminary injunction, see Pls.’ Opp’n to Defs.’
Mot. for Reconsideration 10 [Doc. No. 286].
The court begins with the procedural history. On Friday, December 12, 2025, Plaintiffs
filed a Notice [Doc. No. 210] that the Federal Register Notice announcing the formal termination
of family reunification parole programs had been released that day (to be published on Monday,
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December 15, 2025). Id. Plaintiffs noted that they intended to challenge the Federal Register
Notice and would be asking the court to rule on such challenges prior to the January 14, 2026
effective date for the termination of the programs. Id. at 1, 3. Accordingly, Defendants were on
notice, as of December 12, 2025, that the Administrative Record would be needed on an
expedited basis.
Plaintiffs filed their opening brief on December 29, 2025, before the Administrative
Record was filed. Plaintiffs argued that the Secretary had “raised vague fraud concerns based on
an unreleased, internal report[.]” Pls.’ Mem. ISO Emergency Mot. for a TRO, Prelim. Inj. and/or
Stay 7 [Doc. No. 218]. Defendants did not respond to this claim in their first opposition brief.
See Defs.’ Mem. in Opp’n to Pls.’ Emergency Mot. for a TRO and/or Stay [Doc. No. 233].
At the January 9, 2026 TRO hearing, Defendants volunteered that they would be
producing the administrative record by January 13, 2026. Hearing Tr. 37:7–37:10 [Doc. No.
244]. The court directed Defendants to do so by that date, and extended Defendants’ deadline for
their opposition to the motion for a preliminary injunction to January 15, 2026. Electronic Order
[Doc. No. 242]. On January 13, 2026, Defendants produced the Administrative Record [Doc.
Nos. 246-1, 246-2] with a Certification of Administrative Record [Doc. No. 246-1], in which the
individual “responsible for the oversight and management of the Office of the Executive
Secretary, which oversees the management of written communications intended for, and
originated by, the Secretary and Deputy Secretary of Homeland Security, and the maintenance of
official Department records[,]” certified under penalty of perjury that the documents provided
“constitute the nonprivileged documents and materials directly or indirectly considered by DHS
and that these documents constitute the administrative record the agency considered in issuing
the Federal Register Notice[.]” See id. ¶¶ 1–2.
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Defendants’ further opposition brief, filed two days after the Administrative Record was
filed, was still silent as to Plaintiffs’ argument concerning an unreleased, internal report. See
Defs.’ Mem. in Opp’n to Pls.’ Mot. for a Prelim. Inj. and/or Stay [Doc. No. 251].
On January 20, 2026, Plaintiffs noted in their reply brief that the Administrative Record
contained no “recent internal audit.” See Pls.’ Reply Mem. ISO Mot. for a Prelim. Inj., TRO,
and/or Stay 3 [Doc. No. 253] (“[E]ven though Secretary Noem twice referenced a ‘recent
internal audit’ as allegedly raising fraud or security concerns about the FRP processes, that
‘internal audit’ is not in the AR[.]” (quoting Termination of Family Reunification Parole
Processes, 90 Fed. Reg. at 58041)).
On January 24, 2026, this court issued its Preliminary Injunction [Doc. No. 257] and
Memorandum and Order [Doc. No. 258], see Doe v. Noem, No. 1:25-CV-10495-IT, 2026 WL
184883 (D. Mass. Jan. 25, 2026).2 The court determined, inter alia, that Plaintiffs were likely to
succeed on their claim that the Secretary’s decision to terminate the FRP programs was arbitrary
and capricious, relying in part on the court’s finding that “[a]s evidence of the purported fraud by
parolees whose parole is being terminated, DHS cited ‘a recent internal audit’” but that the
Administrative Record “include[d] no such audit[.]” Doe, 2026 WL 184883, at *12 (citing
Termination of Family Reunification Parole Processes, 90 Fed. Reg. at 58041).
On February 13, 2026, Defendants’ counsel sought Plaintiff’s stipulation to add material
to the Administrative Record and Plaintiffs’ counsel refused to stipulate. See Decl. of Esther
Sung ¶ 4 (“Sung Decl.”) [Doc. No. 284]; Sung Decl. Ex. 1 [Doc. No. 284-1] (February 13, 2026
email chain).
2 The Memorandum and Order [Doc. No. 258] is published in Westlaw but the Preliminary
Injunction [Doc. No. 257] is not. The court will cite the Westlaw publication for references to the
Memorandum and Order but will use the docket cite for references to the Preliminary Injunction.
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Three weeks later, Defendants filed, without seeking leave of court and without noting
Plaintiffs’ opposition, a Notice of Corrected Certified Administrative Record [Doc. No. 276] to
“correct[] the certification and administrative record originally filed with the Court.” Id. at 1. The
accompanying certification offers little explanation, stating only: “[i]n our haste to provide the
court with a complete administrative record in a timely manner, USCIS experts have determined
that a few documents that were considered in the decision-making process were not included.”
Certification of Corrected Administrative Record ¶ 3 [Doc. No. 276-1].
Plaintiffs ask the court to strike Defendants’ filing, arguing, inter alia, that the delay in
bringing the documents to the court’s attention raises “a serious question whether the purportedly
‘corrected’ administrative record represents ‘the full administrative record that was before the
Secretary at the time [s]he made h[er] decision[.]]’” Pls. Mem. ISO Mot. for Order to Show
Cause or to Strike Supplementation of the Administrative Record 6 [Doc. No. 285] (citing
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419-20 (1971)).
In their opposition to Plaintiffs’ motion, filed late yesterday afternoon, Defendants charge
that Plaintiffs’ concern is “disingenuous, as the omitted material was referenced and relied upon
in the decisional document, and pre-date the decisional document.” Defs.’ Opp’n to Pls.’ Mot.
for an Order to Show Cause 2 [Doc. No. 287]. The Federal Register Notice at issue in the
preliminary injunction described a “recent internal audit” as “revealing that over 700 requests to
be a supporter were filed under the names of deceased individuals of which USCIS confirmed
approximately half.” Termination of Family Reunification Parole Processes, 90 Fed. Reg. at
58041. The first of the new documents submitted by Defendants, identified as U.S. Citizenship
and Immigr. Serv., Fraud Detection & Nat’l Sec. Directorate, Brief Analysis of Family
Reunification Parole Data (Dec. 4, 2024), appears to be a report on an internal audit that does
reference 700+ additional deceased petitioners[,] but the date of the report is unclear and is
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certainly not December 4, 2025. See Certification of Corrected Administrative Record FRP-
FRN-01574 [Doc. No. 276-1] (noting report was “[i]ssued December 4, 2024, but providing an
“Update: Since completing the initial draft of this report on December 4, 2024”); id. at FRP-
FRN-01581 (providing an “Update: January 23, 2025). Even more concerning, the Federal
Register Notice asserted that “the same internal audit concluded that the vetting standards
applied to co-supporters under the modernized FRP programs were even weaker than those for
primary supporters, further compromising program integrity.” Termination of Family
Reunification Parole Processes, 90 Fed. Reg. at 58041. On an initial review, the new internal
audit document does not appear to contain this conclusion.
The court finds Plaintiffs’ objections and concerns as to the compilation of the
Administrative Record warrant further review. Accordingly, before the court considers
modification or vacatur of the Preliminary Injunction, the court will resolve first whether the
additional documents are part of the Administrative Record. Accordingly, reconsideration based
on the new documents is DENIED without prejudice.
C. 	Reconsideration Based on Alleged Legal Error
Defendants’ motion for reconsideration based on legal error does not satisfy the standard
for reconsideration set forth above. Defendants point to no newly discovered evidence, no
intervening change in the law, and no “manifest” error of law or clear injustice.
Instead, Defendants rehash their prior arguments, asserting that all of Plaintiffs’
challenges improperly “attack, and seek relief from, the substantive decision” made by the
Secretary. Mem. ISO Mot. for Reconsideration 9–10 [Doc. No. 278]. In doing so, Defendants
ignore the nuances of the court’s decision. For example, while the court determined that 8 U.S.C.
§ 1252(a)(2)(B)(ii) did not divest the court of jurisdiction to determine “whether the procedures
adopted in this case for the exercise of [the Secretary’s] discretion are in accordance with the
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law” and whether “the steps taken” by the Secretary to terminate parole were proper, the court
also acknowledged that it could not review final determinations of whether to revoke individual
grants of parole, because those determinations were within the Secretary’s discretion. Doe, 2026
WL 184883, at *7 (emphasis added); see also id. at *9 (finding for purposes of the motion for a
preliminary injunction that Plaintiffs have not shown a substantial likelihood of success as to
Plaintiffs’ claims that the Secretary’s en masse termination exceeded her statutory authority); id.
at *10 (rejecting Plaintiffs’ argument that Secretary failed to recognize FRP Programs were
directed at family reunification, and finding that Secretary was within her discretion in
considering whether the purpose of deterring irregular migration was served by the termination
of the FRP programs where “deterring irregular migration was included as a factor (albeit a
minor one) in the notices establishing the FRP Programs, and the Secretary was within her
discretion in considering whether that purpose was served by the termination of the FRP
Programs”); id. at *16 (finding for purposes of the motion for a preliminary injunction that
Plaintiffs have not shown a substantial likelihood of success as to Plaintiffs’ claims that notice-
and-comment was required prior to the en masse termination of FRP parole grants).
In contrast, the court found a likelihood of success as to Plaintiffs’ challenge that DHS
failed to give proper notice of termination and that the failure violated DHS regulations and
constitutional due process. Defendants offer no discussion whatsoever as to how Plaintiffs’
notice challenge could possibly be a challenge to a “substantive decision” rather than a
procedural one.
As to Plaintiffs’ arbitrary and capricious challenge (where the court also found a
likelihood of success on the merits), the dispute as to the proper administrative record
underscores the problem with Defendants’ arguments. The court found Plaintiffs’ arbitrary and
capricious claim likely to succeed not because the court disagreed with DHS’s weighing of the
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record or exercise of discretion, but because nothing in the record supported certain findings. See
id. For example, in pointing to concerns about insufficient vetting and fraud, DHS relied on “a
recent internal audit,” id. at *12 (quoting Termination of Family Reunification Parole Processes,
90 Fed. Reg. at 58041), that, as discussed above and as is now conceded by Defendants, was not
part of the Administrative Record that the court reviewed, see Mem. ISO Mot. for
Reconsideration 3 [Doc. No. 278]. Defendants’ suggestion that the court is without jurisdiction
to determine if there is any support in the Administrative Record for agency action runs counter
to “the presumption favoring judicial review of administrative action.” Kucana v. Holder, 558
U.S. 233, 251 (2010).
II. 	Stay Request
Defendants request that if the court does not dissolve its preliminary injunction, it should
stay the order. The court declines to do so.
As set forth in the court’s Memorandum and Order, the court found that Plaintiffs
demonstrated a likelihood of success on the merits of both its notice claim and its arbitrary and
capricious claim, that Plaintiffs faced irreparable harm, and that in light of the limited relief
Plaintiffs sought, the balance of equities and the public interest weigh in favor of preliminary
relief. See Doe, 2026 WL 184883. Nothing in Defendants’ motion pushes that balance in
Defendants’ favor.
First, to the extent that the issues related to the Corrected Administrative Record are not
yet resolved, Defendants’ unexplained delay in raising the issue weighs strongly against staying
the Preliminary Injunction while the court considers those late-raised issues.
Second, contrary to Defendants’ assertions, a stay of this court’s order would cause
irreparable harm to Plaintiffs. The Federal Register Notice, published December 15, 2025,
terminated parole recipients’ grants of parole, effective January 14, 2026. See Termination of
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Family Reunification Parole Processes, 90 Fed. Reg. at 58043. At that time, class members had
the option to leave the United States in advance of termination or accrue unlawful presence in the
country (which would negatively impact their years-long quests for immigrant-visas). See Doe,
2026 WL 184883, at *19. The court stayed that Federal Register Notice from going into effect.
See id. If the court’s order is now stayed, all class members presently in the country would
immediately be out-of-lawful status, accruing unlawful presence without first being afforded
notice and the opportunity to leave in advance of the termination of their parole.
III. 	Conclusion
For the foregoing reasons, the clerk shall set Plaintiffs’ Motion for an Order to Show
Cause, or in the Alternative, to Strike Improper and Untimely Supplementation of the
Administrative Record [Doc. No. 283] for a hearing. Defendants shall file an amended
opposition, and declaration(s) as appropriate, to support their contention that the late-discovered
documents were part of the record considered by DHS in issuing the December 15, 2025 Federal
Register Notice. No later than one week after Defendants file their amended opposition,
Plaintiffs may file a reply.
Defendants’ Motion for Reconsideration or Stay [Doc. No. 277] is DENIED without
prejudice to the filing of a motion to modify or terminate the injunction based on the Corrected
Certified Administrative Record [Doc. No. 276-1], if Plaintiffs’ pending motion is denied.
IT IS SO ORDERED.
March 25, 2026 	/s/ Indira Talwani
United States District Judge
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