Ramos Sanchez v. US Department of Homeland Security, Secretary et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Loani Ramos Sanchez
v. Case No. 1:25-cv-422-PB-AJ
Opinion No. 2026 DNH 148
Markwayne Mullin, Secretary,
United States Department of
Homeland Security, et al.
MEMORANDUM AND ORDER
Loani Ramos Sanchez challenges a decision by U.S. Citizenship and
Immigration Services (“USCIS”) to deny her deferred action after approving
her petition for Special Immigrant Juvenile Status (“SIJS”). According to
Ramos Sanchez, USCIS’s failure to apply certain presumptions in favor of
granting deferred action to those approved for SIJS constitutes a violation of
the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The
government contends that the Court is barred from exercising jurisdiction
over Ramos Sanchez’s claim by 8 U.S.C. § 1252(g) and 5 U.S.C. § 701(a)(2). It
has accordingly moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1). Because I am unpersuaded that either provision
divests this Court of jurisdiction, I deny the government’s motion.
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I. BACKGROUND
A. Regulatory Framework
SIJS is available to certain qualifying noncitizens who entered the
United States as juveniles. To be eligible for SIJS, a petitioning individual
must, at the time of filing, be (i) under 21 years of age; (ii) unmarried; (iii)
physically present in the United States; and (iv) subject to a juvenile court
order meeting relevant criteria. 8 C.F.R. § 204.11(b)-(c); see also 8 U.S.C. §
1101(a)(27)(J). Those criteria require that the juvenile court (i) declare the
petitioner “dependent upon the juvenile court” or commit to or place the
petitioner under the custody of a state agency or state-appointed entity; (ii)
determine that “parental reunification with one or both parents is not viable
due to abuse, abandonment, neglect, or a similar basis under State law”; (iii)
determine that “it would not be in the petitioner’s best interest to be returned
to the petitioner’s or their parent’s country of nationality or last habitual
residence”; and (iv) issue the order pursuant to the juvenile court’s “authority
over the petitioner as a juvenile” and in accordance with “applicable State
law.” 8 C.F.R. § 204.11(c); see also 8 U.S.C. § 1101(a)(27)(J). Once a petitioner
presents evidence satisfying the above requirements and USCIS approves the
petition, the petitioner is granted SIJS. See 8 C.F.R. § 204.11(b)-(d).
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SIJS can substantially ease a noncitizen’s attainment of lawful
permanent residence.1 While noncitizens must normally have been “inspected
and admitted or paroled into the United States” in order to apply for
adjustment to permanent resident status, 8 U.S.C. § 1255(a), those granted
SIJS are excepted from this general rule and automatically “deemed . . . to
have been paroled into the United States, regardless of the actual method of
entry into the United States,” 8 C.F.R. § 245.1(a); see also 8 U.S.C. § 1255(h).
Thus, individuals granted SIJS can apply for lawful permanent residence
even where their manner of entry into the United States would not normally
entitle them to do so.
But SIJS does not entirely clear the way to lawful permanent
residence. Another requirement for adjustment to lawful permanent resident
status is that “an immigrant visa [be] immediately available to [the
applicant] at the time his application is filed.” 8 U.S.C. § 1255(a). Noncitizens
1 Noncitizens are “lawfully admitted for permanent residence” if they
have “the status of having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance with the
immigration laws.” 8 U.S.C. § 1101(a)(20). Such a designation allows a
noncitizen to obtain a Form I-551 Permanent Resident Card (commonly
known as a “Green Card”), see 7 USCIS Policy Manual, pt. A, ch. 1, § B
(2026), and authorizes employment in the United States without restriction,
see 8 C.F.R. § 274a.12(a)(1).
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with SIJS are eligible for EB-4 visas.2 However, because the number of EB-4
visas available each year is subject to statutorily mandated caps, noncitizens
with SIJS must frequently wait years after attaining SIJS to obtain the visa
they need to apply for lawful permanent resident status.
In a Policy Alert issued in March 2022 (the “2022 Policy”3), USCIS
acknowledged that the ongoing unavailability of EB-4 visas had been
preventing many individuals with SIJS from applying for adjustment to
lawful permanent resident status. 2022 Policy at 1. Reasoning that the effect
of the EB-4 visa backlog was inconsistent with congressional intent to protect
an “especially vulnerable population,” USCIS declared that it “will consider
granting deferred action on a case-by-case basis to noncitizens classified as
SIJs who are ineligible to apply for adjustment of status solely due to
unavailable immigrant visa numbers.” Id.
Under the 2022 Policy, deferred action decisions must be made “on a
case-by-case basis, based on the totality of the evidence, whether the person
2 The term “EB-4” refers to the subcategory of visas available to “special
immigrants” (of which individuals with SIJS are one subgroup among others)
within the broader category of “employment-based” visas. See 8 U.S.C. §
1153(b)(4); 8 U.S.C. § 1101(a)(27). The “worldwide number” of employment-
based visas is determined annually according to the formula provided in 8
U.S.C. § 1151(d), and the number of EB-4 visas is set at 7.1 percent of that
worldwide number by 8 U.S.C. § 1153(b)(4).
3 U.S. Citizenship & Immigr. Servs., Policy Alert PA-2022-10, Special
Immigrant Juvenile Classification and Deferred Action (Mar. 7, 2022).
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warrants a favorable exercise of discretion.” Id. at 3 n.6. Individuals granted
deferred action—who would otherwise be removable and unable to attain
lawful employment authorization—are temporarily immune from removal
and eligible to apply for employment authorization. Id. at 2-3; see also 8
C.F.R § 274a.12(c)(14). When USCIS issued the 2022 Policy, it argued that
the deferred action program would advance Congress’s purposes in
establishing the SIJS designation and avoid leaving individuals with SIJS “in
limbo” for years. 2022 Policy at 1.
Although the 2022 Policy requires only case-by-case consideration of
deferred action, contemporaneous statements made in USCIS’s Policy
Manual strongly suggest that deferred action should be granted to those with
approved SIJS petitions. These statements provide that “[o]ne particularly
strong positive factor that weighs heavily in favor of granting deferred action
is that the person has an approved [SIJS petition]” and that “the eligibility
criteria for SIJ classification are generally strong positive factors in such a
determination.” 6 USCIS Policy Manual, pt. J, ch. 4, § G(2) (2024)
(reproduced in Doc. 10-2). Further evidence of the then-presumptive effect of
an SIJS designation is the fact that, during the first two years of the
program, “the vast majority of SIJS approvals came with a grant of deferred
action.” A.C.R. v. Noem, 809 F.Supp.3d 103, 112 (E.D.N.Y. 2025) (citing
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affidavit from immigration attorney in case involving claims similar to those
presented here).
Starting in April 2025, however, USCIS ceased to apply any
presumption in favor of deferred action. At first, USCIS simply stopped
granting deferred action concurrent with SIJS approval, even though it had
not officially changed its policy guidelines. See id. (again citing affidavits
from immigration attorneys). Then, in June 2025, USCIS issued another
Policy Alert (the “2025 Policy”4) that effectively rescinded the 2022 Policy.
The 2025 Policy declared that “USCIS will no longer consider granting
deferred action on a case-by-case basis to aliens classified as SIJs who are
ineligible to apply for adjustment of status solely due to unavailable
immigrant visas.” 2025 Policy at 2. USCIS also updated the relevant
provisions of its Policy Manual accordingly. See 6 USCIS Policy Manual, pt.
J, ch. 4, § G (2026).
Within months, USCIS was enjoined from rescinding the 2022 Policy.
In A.C.R. v. Noem, 809 F.Supp.3d 103, the Eastern District of New York
decided that USCIS’s failure to adequately consider reliance interests and
reasonable alternatives when issuing the 2025 Policy rendered its rescission
likely “arbitrary and capricious” and thereby in violation of the APA, 5 U.S.C.
4 U.S. Citizenship & Immigr. Servs., Policy Alert PA-2025-07, Special
Immigrant Juvenile Classification and Deferred Action (June 6, 2025).
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§ 706(2)(A). The court issued a preliminary injunction on November 19, 2025,
staying the rescission of the deferred action program and requiring USCIS to
“conduct deferred-action and employment-authorization adjudications
pursuant to the 2022 Policy Alert, pending promulgation of a valid rescission
policy or further order from this Court.”5 A.C.R., 809 F.Supp.3d at 128. While
USCIS subsequently issued a new Policy Memorandum in April 2026, U.S.
Citizenship & Immigr. Servs., Policy Memorandum PM-602-0198, Special
Immigrant Juvenile Classification and Deferred Action (April 10, 2026) (the
“2026 Policy”), again rescinding the 2022 Policy, the memorandum is
expressly prospective in nature, only taking effect thirty days after issuance.
See 2026 Policy at 1, 9. The 2026 Policy provides that “[a] petition that is or
has been submitted or approved before this policy is effective will be subject
to the policy that this memorandum terminates.” Id. at 9. Therefore, the
A.C.R. injunction had the effect of requiring USCIS to automatically consider
granting deferred action in conjunction with the approval of any petition for
SIJS submitted before May 10, 2026.
5 The A.C.R. court expressly noted that its order staying the 2025 Policy
was not constrained by the Supreme Court’s limitations on universal relief
set forth in Trump v. CASA, Inc., 606 U.S. 831 (2025), as CASA “left open the
possibility that plaintiffs could obtain universal injunctive relief by seeking
vacatur under the APA.” 809 F.Supp.3d at 129 n.25 (citing 606 U.S. at 847
n.10).
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B. Plaintiff’s Status
Ramos Sanchez was born in Honduras in 2003 and entered the United
States as a seventeen-year-old in February 2021. See Doc. 1 at 6. Upon entry,
she was held by the Office of Refugee Resettlement and then released to her
brother, who lived in New Hampshire. Id. at 1. On September 10, 2021, the
day before Ramos Sanchez turned eighteen years old, a different brother filed
a Petition for Abuse and Neglect with the Manchester Family Division of the
New Hampshire Ninth Circuit Court (the “Family Court”). Id. In the petition,
Ramos Sanchez’s counsel expressly consented to the Family Court retaining
jurisdiction over her case even after her eighteenth birthday, as permitted
under New Hampshire law. See Doc. 1-1 (citing N.H. Rev. Stat. Ann. § 169-
C:4, II).
On June 3, 2024, the presiding judge of the Family Court issued a
Judgment and Special Finding of Facts and Ruling of Law determining that
(i) the Family Court had jurisdiction pursuant to New Hampshire law to
make determinations about Ramos Sanchez’s dependency; (ii) Ramos
Sanchez was dependent upon the Family Court; (iii) Ramos Sanchez had
been neglected and/or abandoned by both of her parents; (iv) reunification
with either of her parents was not viable; (v) it was in Ramos Sanchez’s best
interest to remain in New Hampshire in the care of her brother; and (vi) it
was not in her best interest to be returned to Honduras. See Doc. 1-2. In the
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order, the presiding judge expressly entered the findings “nunc pro tunc,
relating back to the date of the original petition’s filing on September 10,
2021.” Id. at 2.
Citing the determinations of the Family Court, Ramos Sanchez then
filed a petition for SIJS with USCIS. Doc. 1 at 2. However, on October 22,
2024, USCIS issued a Notice of Intent to Deny with respect to Ramos
Sanchez’s petition on the ground that the Family Court’s nunc pro tunc
order—issued after Ramos Sanchez had turned eighteen—did not establish
that the Family Court exercised jurisdiction over Ramos Sanchez as a
juvenile under New Hampshire law because the order did not correct a prior
signed court order issued while Ramos Sanchez was still a minor. See Doc. 1-
4 at 3. Ramos Sanchez responded with a legal memorandum arguing that a
nunc pro tunc order does not need to correct a prior signed court order to
have retroactive effect under New Hampshire or federal law. See Doc. 1-5 at
4-8. Notwithstanding Ramos Sanchez’s legal arguments, USCIS denied her
petition on December 3, 2024, asserting that “[y]ou have not met your burden
of proof showing this court exercised jurisdiction over you as a juvenile under
State law pursuant to [8 U.S.C. § 1101(a)(27)(J)].” Doc. 1-6 at 3.
Once Ramos Sanchez’s petition had been denied, she filed motions to
reopen and reconsider her petition pursuant to 8 C.F.R. § 103.5(a). Doc. 1 at
2-3. That provision allows petitioners to request reopening and
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reconsideration if they state “new facts to be provided” and “state the reasons
for reconsideration . . . supported by any pertinent precedent decisions to
establish that the decision was based on an incorrect application of law or
[USCIS] policy.” 8 C.F.R. § 103.5(a). Ramos Sanchez attached to her motions
an amended order from the Family Court, issued January 2, 2025, in which
the presiding judge reiterated her determinations from the initial order and
clarified that New Hampshire law does not require a prior court order to be
amended for a subsequent nunc pro tunc order to take retroactive effect. See
Doc. 1 at 2-3; Doc 1-7. Nevertheless, USCIS again rejected Ramos Sanchez’s
arguments, issuing a decision denying reconsideration on February 13, 2025.
See Doc. 1-8. USCIS provided no new reasoning and offered no
acknowledgment that it had even received the amended order from the
Family Court submitted with Ramos Sanchez’s motion. See id.
C. Procedural Posture
Ramos Sanchez then initiated legal proceedings before this Court, filing
a complaint on October 28, 2025. Doc. 1. She claimed that USCIS, in entirely
failing to address the Family Court’s interpretation of New Hampshire law
and instead imposing its own view of state law, had “arbitrarily and
capriciously” denied her petition for SIJS in violation of the APA. See id. at
11-13. But Ramos Sanchez did not need to wait for this Court to rule before
obtaining relief on the specific issue of the denial of her petition. On March 4,
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2026, USCIS reopened and approved Ramos Sanchez’s petition for SIJS—but
with the express qualification that deferred action did not accompany
approval. USCIS offered no reasoning to justify its denial of deferred action.
See Doc. 8-1.
Soon after approving Ramos Sanchez’s petition, the government moved
to dismiss her initial complaint under Rule 12(b)(1). Doc. 8. The government
argued that because Ramos Sanchez had “already received all of the relief
she seeks in her Complaint, this case no longer presents a live case or
controversy for this Court to adjudicate” and should therefore be dismissed
for mootness. Id. at 4.
Although Ramos Sanchez had been granted the relief she specifically
sought in her initial complaint (namely, SIJS), that relief by itself did not
resolve Ramos Sanchez’s dispute with USCIS regarding her legal status. Due
to the continuing shortage of EB-4 visas, Ramos Sanchez still could not apply
for adjustment to lawful permanent resident status. See Doc. 16 at 2-3. Thus,
without an attendant grant of deferred action, SIJS left Ramos Sanchez
without protection against removal or the ability to apply for employment
authorization.
Ramos Sanchez filed an amended complaint on April 6, 2026, in which
she argues that USCIS, in granting her SIJS without deferred action, failed
to adhere to its “operative policy requir[ing] that a grant of SIJS itself be a
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strong positive factor in granting deferred action.” Doc. 10 at 10. Because
USCIS failed to offer a reasoned explanation for its decision, Ramos Sanchez
claims that USCIS acted “arbitrarily and capriciously,” thereby violating the
APA. Id. at 9-10. She requests that USCIS’s denial of deferred action be set
aside. Id. (citing 5 U.S.C. § 706(2)(A)).
In response to the amended complaint, the government again moved to
dismiss under Rule 12(b)(1). Doc. 14. The government now argues that I am
precluded by statute from exercising jurisdiction over Ramos Sanchez’s claim
challenging her denial of deferred action. See id. at 7-11.
II. STANDARD OF REVIEW
A defendant may attack the court’s subject matter jurisdiction through
a motion to dismiss pursuant to Rule 12(b)(1) either by challenging the facial
sufficiency of the plaintiff’s jurisdictional claim or by questioning its factual
basis. Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007)
(citing Fed. R. Civ. P. 12(b)(1)). Facial challenges, like the one presented in
this case, are evaluated using the familiar plausibility standard that applies
to motions to dismiss for failure to state a claim. Gordo-González v. United
States, 873 F.3d 32, 35 (1st Cir. 2017). Under that standard, dismissal “is
appropriate only when the facts adumbrated in the plaintiff’s complaint,
taken at face value, fail” to demonstrate the court’s jurisdiction. Id.
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III. ANALYSIS
Under the APA, a “person suffering legal wrong because of agency
action” is generally “entitled to judicial review thereof.” 5 U.S.C. § 702. The
government argues, however, that jurisdiction over Ramos Sanchez’s
challenge is barred for two reasons. See Doc. 14 at 7-11. First, it contends
that the jurisdiction-stripping provision of 8 U.S.C. § 1252(g) applies in the
context of USCIS’s denial of deferred action. Id. at 7-8. And second, it claims
that the decision whether to grant deferred action in an individual case is an
action “committed to agency discretion by law” and thus unreviewable under
8 U.S.C. § 701(a)(2). Id. at 8-11. I address the parties’ arguments with respect
to both provisions.
A. 8 U.S.C. § 1252(g)
In relevant part, § 1252(g) provides that “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.” 8 U.S.C. § 1252(g). The
Supreme Court adopted a “narrow reading” of this language in Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999),
emphasizing that the jurisdictional bar applies only to review of “three
discrete actions that the Attorney General may take: her ‘decision or action’
to ‘commence proceedings, adjudicate cases, or execute removal orders,’” id. at
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482 (quoting 8 U.S.C. § 1252(g)) (emphasis in original). A corollary of this
interpretation is that “many other decisions or actions that may be part of the
deportation process” remain outside the scope of § 1252(g). Id.
In Department of Homeland Security v. Regents of the University of
California, 591 U.S. 1 (2020), the Supreme Court held that § 1252(g)’s
jurisdictional prohibitions did not prevent it from reviewing agency decisions
denying deferred action, see id. at 19. That case involved an APA challenge to
the rescission of Deferred Action for Childhood Arrivals (“DACA”). See id. at
9-13. Like the 2022 Policy did for those with SIJS, DACA temporarily
protected certain qualifying noncitizens from removal and permitted them to
apply for employment authorization. See id. The Court, citing Reno, reasoned
that “[t]he rescission [of DACA], which revokes a deferred action program
with associated benefits, is not a decision to ‘commence proceedings,’ much
less to ‘adjudicate’ a case or ‘execute’ a removal order.” Id. at 19 (citing 525
U.S. at 482).
According to the government, § 1252(g) precludes jurisdiction over this
case because Ramos Sanchez’s claim “necessarily seeks to challenge the
Executive’s decision to continue—i.e., not defer—the prosecution of her
removal proceedings” and therefore “plainly constitutes a challenge to the
government’s decision to ‘adjudicate’ her removal proceedings.” Doc. 14 at 8.
Moreover, the government argues, the Court’s statement in Reno that
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“[s]ection 1252(g) seems clearly designed to give some measure of protection
to ‘no deferred action’ decisions and similar discretionary determinations”
militates against assuming jurisdiction. See id. (quoting 525 U.S. at 485).
The government’s contentions fail to persuade for two principal
reasons. First, its reading of “adjudication” is inconsistent with Regents. The
government’s declaration that Ramos Sanchez’s claim “plainly constitutes” a
challenge to the adjudication of her removal proceedings falls flat in light of
the Regents Court’s unambiguous position that agency decisions denying
deferred action do not amount to decisions to “adjudicate” a case (or to
decisions “commencing proceedings” or “executing” removal orders, for that
matter). See 591 U.S. at 19.
Second, the facts of Reno are sufficiently distinguishable to render its
discussion of Congress’s intent inapposite here. In Reno, the Court decided
that § 1252(g) barred review of the respondents’ claims that the Immigration
and Naturalization Service (the precursor to USCIS) unconstitutionally
targeted them for deportation due to their political affiliations. See 525 U.S.
at 472-76. Crucially, the respondents in Reno argued that the discretionary
institution of removal proceedings was itself unlawful, see id., placing their
claims much more squarely within § 1252(g)’s prohibition on review of claims
arising out of decisions to “commence proceedings.” Here, the government
does not base its argument on the existence of any ongoing removal
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proceedings against Ramos Sanchez.6 Without removal proceedings
underway, the controlling force of Reno becomes tenuous.7
6 Ramos Sanchez acknowledges that she had been subject to removal
proceedings in the past, but she asserts that the proceedings were terminated
in July 2024. See Doc. 16 at 4-5. The government nowhere claims that any
removal proceedings against Ramos Sanchez are currently ongoing. See Doc.
14. To the extent that the government’s position relies at all on the past
removal proceedings, it is unclear why the fact of terminated removal
proceedings would influence the § 1252(g) inquiry regarding a challenge to a
denial of protection against future removal proceedings, and the government
offers no reasoned analysis supporting that proposition.
7 It is worth noting that even in circumstances where removal
proceedings have been instituted or removal has already been executed
against individuals previously granted SIJS and deferred action, several
courts have found § 1252(g) not to prohibit challenges to the (explicit or
implicit) rescission of deferred action. For example, in Ramos-Lopez v. Bondi,
838 F.Supp.3d 457 (D. Md. 2026), the District of Maryland considered a claim
brought by a noncitizen who had been removed to Guatemala despite having
been granted SIJS and deferred action. In ordering the government to
facilitate the individual’s return to the United States, the court found that §
1252(g) did not apply because the plaintiff did “not challenge the execution of
the in absentia removal order, but rather its effect: that his removal from the
United States without process amounts to an illegal rescission of his SIJS
and deferred action.” Id. at 467; see also Hernandez Garcia v. Mullin, 2026
WL 1266246, at *8 (E.D. Tenn. May 8, 2026) (holding that § 1252(g) did not
bar a habeas petition challenging a noncitizen’s termination of deferred
action and subsequent detention, as the petition concerned “review of conduct
outside of § 1252(g)’s orbit: conduct relating to the manner of the termination
of a discretionary form of affirmative relief from removal”); Primero v.
Mattivelo, 2025 WL 1899115, at *3 (D. Mass. July 9, 2025) (similarly finding
that § 1252(g) did not preclude review of a habeas petition challenging the
detention of a noncitizen granted SIJS and deferred action but subject to a
removal order). Considering that these courts have held § 1252(g) to be
inapplicable even where review of a deferred action decision is significantly
intertwined with ongoing or completed removal proceedings, it stands to
reason that § 1252(g) would not bar jurisdiction where the deferred action
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Furthermore, the “no deferred action” decisions contemplated in Reno,
see 525 U.S. at 485, differ substantially from the denial of deferred action
here. The respondents in Reno did not claim that they qualified for deferred
action under a program set forth in an agency policy document that would
have protected them from future removal proceedings. See id. at 472-76.
Rather, they claimed that the government had selectively exercised its
discretion to institute removal proceedings in a way that violated their
constitutional rights. Id. For this reason, the “deferred action” determinations
referenced in Reno are more closely analogous to entirely discretionary
decisions to refrain from instituting removal proceedings than to policy
programs systematically granting deferred action to qualifying individuals.
Had Ramos Sanchez been ineligible for any kind of deferred action program
created by a federal agency and simply been subject to removal proceedings
pursuant to executive discretion to enforce immigration statutes, her claim
might well be on different legal footing. But that is not the case at bar.
B. 5 U.S.C. § 701(a)(2)
Section 701(a)(2)’s bar on judicial review of actions “committed to
agency discretion by law,” 5 U.S.C. § 701(a)(2), is an exception to the APA’s
“basic presumption of judicial review for one suffering legal wrong because of
decision at issue would only protect against hypothetical future removal
proceedings.
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agency action,” Regents, 591 U.S. at 16-17 (internal quotations omitted)
(cleaned up). “[T]o honor the presumption of review,” the Supreme Court has
“read the exception in § 701(a)(2) quite narrowly,” Weyerhaeuser Co. v. U.S.
Fish & Wildlife Serv., 586 U.S. 9, 23 (2018), finding its application
appropriate only where “a court would have no meaningful standard against
which to judge the agency’s exercise of discretion,” Heckler v. Chaney, 470
U.S. 821, 830 (1985).
Agency decisions to refrain from instituting enforcement proceedings
comprise one such category of cases immune from judicial review under §
701(a)(2), see id. at 837-38, and the government attempts to place Ramos
Sanchez’s claim within this category, see Doc. 14 at 9-10. The government
primarily relies on Heckler v. Chaney to support its position. See id. (citing
470 U.S. 821). In Chaney, the Supreme Court considered claims brought by
death-row inmates challenging the Food and Drug Administration’s refusal to
institute enforcement actions against states utilizing purportedly illegal
substances for lethal injections. See 470 U.S. at 823-27. Reasoning that “an
agency’s decision not to prosecute or enforce . . . is a decision generally
committed to an agency’s absolute discretion,” the Court held that the refusal
to prosecute was precluded from judicial review by § 701(a)(2). Id. at 831-38.
But despite the government’s repeated citations to Chaney, the
putative connection between Chaney’s holding and the unreviewability of the
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kind of deferred action decision at issue here has already been severed by the
Supreme Court. In Regents, the government contended that DACA amounted
to a discretionary non-enforcement program that was equivalent, for the
purposes of a § 701(a)(2) inquiry, to the individualized non-enforcement
decisions considered in Chaney. See 591 U.S. at 17-18. In disposing of this
argument, the Court noted that pursuant to the DACA program, “USCIS
solicited applications from eligible aliens, instituted a standardized review
process, and sent formal notices indicating whether the alien would receive
the two-year forbearance.” Id. at 18. Moreover, the Court emphasized,
deferred action conferred additional benefits—eligibility for employment
authorization, Social Security, and Medicare—beyond just protection against
removal for two years. Id. at 18-19. For these reasons, DACA was not a
“passive non-enforcement policy,” but a “program for conferring affirmative
immigration relief” whose rescission was not immunized from judicial review
by § 701(a)(2). Id.
Like DACA, the 2022 Policy set up a formal system for determining
grants of deferred action that involved specified criteria and attendant
benefits apart from removal protections. See 2022 Policy. As the Eastern
District of New York reasoned in A.C.R. with respect to the reviewability of
the rescission of the 2022 Policy:
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The same logic [as in Regents] applies here. USCIS solicited petitions
for SIJS, which it also treated as applications for deferred action. The
applicants had to meet enumerated criteria . . . . USCIS then
established a standardized process for reviewing those applications,
which would—if successful—result in deferred action for a defined
period and the ability to seek work authorization. Thus, much like
DACA, [the 2022 Policy] was “more than a non-enforcement policy”—it
was a “program for conferring affirmative immigration relief.”
809 F.Supp.3d at 116 (citations omitted). The 2022 Policy’s analogous
structure to DACA thus renders implausible the government’s contention
that the refusal to grant Ramos Sanchez deferred action is unreviewable.
Insofar as the government bases its argument on the individualized
nature of the deferred action determination here as opposed to the wholesale
rescissions of deferred action programs considered in Regents and A.C.R., its
position is still unconvincing. The government points out that the A.C.R.
court expressly noted that its order “should not be read to suggest that
USCIS remains bound by . . . any prior presumption in favor of granting
deferred action to SIJS recipients.” Doc. 14 at 6 (quoting A.C.R., 809
F.Supp.3d at 128 n.24 (emphasis in original)). Thus, although the
government does not develop this argument,8 one might posit that the
8 In fact, the government explicitly does not rely on the absence of
presumptive constraints in its argument for the applicability of § 701(a)(2),
writing: “[p]utting aside that USCIS was not bound by its earlier Policy
Manual or any presumptions therein when considering Plaintiff for deferred
action, USCIS’s discretionary decision to deny Plaintiff deferred action is not
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decision whether to grant one person deferred action pursuant to the 2022
Policy is meaningfully different from the rescission of an entire program in
that the former involves a greater degree of agency discretion than the
latter.9 But reframing the issue in this way does not allow the government to
evade the holding of Regents or the logic of A.C.R. The Regents Court based
its decision concerning reviewability not on its ultimate conclusion as to
whether the rescission was lawful; rather, it focused on specific features of
the DACA program—the enumerated criteria for eligibility and the benefits
beyond removal protection that the program conferred—that made DACA an
affirmative relief program. See 591 U.S. at 16-19. Those features are shared
subject to judicial review under the APA.” Doc. 14 at 9 (internal citations
omitted).
9 Even this premise, however, is contestable. In both Regents and A.C.R.,
the respective court set aside the rescission of the relevant deferred action
program not because the federal government lacked the authority to rescind
the program under any circumstances, but because the government had not
adequately considered reliance interests and reasonable alternatives in
explaining the rescission. See 591 U.S. at 24-33; 809 F.Supp.3d at 121-23.
Thus, the central defect determining the unlawfulness of the rescission was
procedural in both cases. Here, Ramos Sanchez alleges not only that USCIS
was bound by certain presumptions in favor of granting deferred action but
also that USCIS’s failure to explain in any way its decision to deny deferred
action made its denial “arbitrary and capricious” and in violation of the APA.
See Doc. 10 at 10. For this reason, her claim can be understood as relevantly
similar to the claims brought in Regents and A.C.R. in that they all challenge
the procedure by which the government made certain deferred action
decisions, regardless of its broader authority to make the relevant decisions
had it done so in a different way.
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by the 2022 Policy and constitute the relevant factors in determining the
reviewability of denials of deferred action, regardless of whether the denials
affect one person, as here, or an entire class of individuals, as in A.C.R.
At this stage in the litigation, the appropriate focus of analysis is not on
whether USCIS unlawfully failed to apply relevant presumptions in favor of
granting Ramos Sanchez deferred action, but instead on whether the denial
of deferred action is reviewable at all. Because the 2022 Policy created a
systematic program for considering grants of deferred action and bestowed
additional benefits beyond simple non-enforcement of removal provisions,
Ramos Sanchez’s claim before this Court is not blocked by § 701(a)(2).
IV. CONCLUSION
For the foregoing reasons, the government’s motion to dismiss is
denied.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
October 14, 2026
cc: Counsel of Record
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