Francisco v. U.S. Citizenship and Immigration Services et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
RAQUEL CRISTOBAL FRANCISCO,
Plaintiff,
v.
U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,
Defendants.
Case No.: 26-CV-1834 TWR (SBC)
ORDER GRANTING TEMPORARY
RESTRAINING ORDER
(ECF No. 3)
Presently before the Court is Plaintiff Raquel Cristobal Francisco’s Application for
Temporary Restraining Order (“TRO”). (“TRO Appl.,” ECF No. 3.) For the reasons stated
below, the Court GRANTS Plaintiff’s Application for a TRO.
BACKGROUND
Plaintiff is a citizen and native of Guatemala. 	(“Compl.,” ECF No. 1 at 18.) 	She
currently resides in the Southern District of California with her three minor children, who
are also Guatemalan citizens. (Id.) Plaintiff entered the United States without inspection
on or around June 30, 2021. (See id. at 18, 55, 157.) Sometime after entry, Plaintiff entered
removal proceedings. 	(See generally id. at 147–59.) 	On May 31, 2022, an Immigration
Judge (“IJ”) denied Plaintiff’s application for relief from removal and ordered her removed
to Guatemala. 	(Id. at 19, 153–55.) 	Plaintiff appealed the IJ’s decision to the Board of
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Immigration Appeals (“BIA”), which affirmed the IJ’s decision on November 7, 2023. (Id.
at 19, 150–52.) 	Plaintiff then appealed to the Ninth Circuit Court of Appeals, which
affirmed the BIA’s decision on December 5, 2024. (Id. at 156–159.)
Plaintiff contends she was a victim of severe trafficking and/or sexual exploitation
during her journey to the United States. (See 18–19.) Accordingly, on August 11, 2025,
Plaintiff 	submitted 	a 	Form 	I-914, 	Petition 	for 	T 	Nonimmigrant 	Status 	(“T-Visa
application”) as well as a Form I-192, Application for Advance Permission to Enter as
Nonimmigrant, to USCIS. (See id. at 40.) A T-Visa provides immigration protection to
noncitizens who are victims of severe forms of human trafficking and comply with
reasonable 	requests 	for 	assistance 	in 	the 	investigation 	or 	prosecution 	of 	acts 	of
trafficking. 	See 8 U.S.C. § 1101(a)(15)(T); 8 C.F.R. § 214.202. 	By statute, USCIS may
grant only a certain number of T-Visas in a fiscal year. 	See U.S.C. § 1184(o)(2). When
the statutory cap is reached, USCIS defers issuance of new T-Visas until the start of the
next fiscal year. 	See id.; 8 C.F.R. § 214.210(a), (b). 	Upon deferral, applicants whose
petitions have been determined approvable (i.e., applicants who receive a “bona fide
determination”) are provided temporary protection from removal pending issuance of their
T-Visa. See 8 C.F.R. § 214.204(b)(2).
On November 24, 2025, USCIS sent plaintiff a notice of receipt stating her
applications were received on August 21, 2025. (Compl. at 33–37.) On March 19, 2026,
Plaintiff appeared for an in-person interview at the ICE San Diego Field Office. (Id. at 19.)
On that date, ICE officers instructed her to purchase an airline ticket and to “plan to leave
the United States” by March 24, 2026. 	(Id.) 	As of the date of her TRO Application,
Plaintiff’s applications with USCIS remain pending. (See generally TRO Appl.)
On March 23, 2026, Plaintiff filed a Complaint against all Defendants alleging their
failure to adjudicate her T Visa application within a reasonable time constitutes violations
of the Administrative Procedure Act and the Fifth Amendment. 	(See Compl. at 24–29.)
Plaintiff also filed an Application for TRO requesting this Court enjoin Defendants from
executing her removal orders while this action is pending. (See TRO Appl. at 15.) Plaintiff
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makes clear that she does not seek review of any removal order or discretionary
enforcement decision; rather, she seeks only to preserve the status quo (i.e., her presence
in the United States) so the Court can determine whether Defendants have unlawfully
withheld or unreasonably delayed adjudication of her pending T Visa application and to
provide time for Defendants to adjudicate her application. (Id. at 3.)
LEGAL STANDARD
In 	determining 	whether 	to 	grant 	a 	TRO, 	the 	Court 	evaluates 	four 	factors:
“(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” 	Nken v. Holder, 556 U.S. 418, 426
(2009). The third and fourth factors “merge when the Government is the opposing party.”
Id. at 435.
DISCUSSION
Regarding the first Nken factor, Petitioner has made a sufficient showing that she
will succeed on the merits of her claim. The Court is particularly persuaded that Plaintiff’s
removal pending adjudication of her T-Visa application violates her due process rights
under the Fifth Amendment. As explained by the Ninth Circuit, noncitizens in deportation
proceedings are “entitled to the fifth amendment guaranty of due process.” 	Cuadras v.
INS, 910 F.2d 567, 573 (9th Cir. 1990). Due process “is satisfied only by a full and fair
hearing,” id., which requires that each case “be evaluated on its own merits to determine
whether the [noncitizen’s] factual support and concrete evidence are sufficient” to meet the
noncitizen’s burden of proof. 	Sarvia–Quintanilla v. INS, 767 F.2d 1387, 1392 (9th Cir.
1985). “To prevail on a due process challenge to deportation proceedings, [a noncitizen]
must show error and substantial prejudice. 	A showing of prejudice is essentially a
demonstration that the alleged violation affected the outcome of the proceedings . . . .”
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (internal citations omitted).
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If Plaintiff is removed prior to the adjudication of her T-Visa application, she will
lose her opportunity to achieve T nonimmigrant status because of the “physical presence”
requirement for T-Visa applicants. See 8 C.F.R. § 214.207(a). In other words, if Plaintiff
leaves the United States, she will no longer be eligible for T nonimmigrant status. See id.
Additionally, the fact that Plaintiff was previously denied relief from removal does not
affect her ability to achieve T nonimmigrant status. Indeed, an applicant subject to a final
order of removal may file a T-Visa application. See 8 C.F.R. § 214.204(b)(2). Moreover,
a T-Visa applicant who is subject to a final order of removal but then receives a “bona fide
determination” is automatically provided temporary protection from removal pending
issuance of his or her T-Visa. See id. Accordingly, Petitioner would be prejudiced if she
was removed prior to the adjudication of her T-Visa application. See I.N.S. v. St. Cyr, 533
U.S. 289, 307 (2001) (“Traditionally, courts recognized a distinction between eligibility
for discretionary relief, on the one hand, and the favorable exercise of discretion, on the
other hand”); see also Ixcot v. Holder, 646 F.3d 1202, 1213 (9th Cir. 2011) (“Although we
cannot determine whether [a noncitizen] is entitled to a grant of asylum relief, we can and
do decide that he is entitled to an adjudication of his asylum application . . . on its merits.”);
S.N.C. v. Sessions, 325 F. Supp. 3d 401, 411 (S.D.N.Y. 2018) (granting TRO staying
removal for noncitizen who had a pending T-Visa application on due process grounds).
Regarding the second Nken factor, it is clear Plaintiff would suffer irreparable injury
if she was removed prior to adjudication of her T-Visa application because removal from
the United States would render her ineligible for T immigration status. 	See 8 C.F.R. §
214.207(a). Finally, regarding the third and fourth Nken factors, staying Plaintiff’s removal
will not only enable Defendants to fully respond to the allegations in the Complaint, but
will also give the Court an opportunity to decide the important issues raised therein.
Further, there would be little harm, if any, to Defendants should Plaintiff’s removal be
delayed for two weeks.
/ / /
/ / /
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CONCLUSION
In light of the foregoing, the Court GRANTS Plaintiff a TRO enjoining her removal
for fourteen (14) days. In accordance with Federal Rule of Civil Procedure 65(b)(2), the
TRO will expire on April 7, 2026. 	Moreover, Defendants U.S. Citizenship and
Immigration Services (“USCIS”); Joseph Edlow, in his official capacity as Director of
USCIS; USCIS Vermont Service Center; Carrie M. Selby, in her official capacity as Acting
Director of the Vermont Service Center of USCIS; U.S. Immigration and Customs Services
(“ICE”); Todd M. Lyons, in his official capacity as Acting Director of ICE; and Patrick
Divver, in his official capacity as San Diego Field Officer Director of ICE, are ORDERED
TO SHOW CAUSE on or before March 30, 2026, why the TRO should not be converted
to a preliminary injunction. Plaintiff MAY FILE an optional response on or before April
1, 2026. Additionally, the Court SETS an Order to Show Cause Hearing for April 2, 2026,
at 1:30 p.m. in Courtroom 14A.
IT IS SO ORDERED.
Dated: March 24, 2026
--,-;~ 	¼~Honorable Todd ,¥ . Robinson
United States District Judge
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