Garcia Morao v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ANTONIO ALEJANDRO GARCIA
MORAO,
Plaintiff,
v.
KRISTI NOEM, et al.,
Defendants.
MEMORANDUM AND ORDER DENYING
WITHOUT PREJUDICE EX PARTE
EMERGENCY MOTION FOR
TEMPORARY RESTRAINING ORDER
Case No. 2:26-cv-00087-AMA
District Judge Ann Marie McIff Allen
This matter comes before the Court on Plaintiff Antonio Alejandro Garcia Morao’s ex parte
Emergency Motion for Temporary Restraining Order.1 In this Motion, Plaintiff asks the Court to
enjoin Defendants from proceeding with removal hearings, issuing removal orders, or taking
enforcement action that would interfere with the adjudication of Plaintiff’s pending Form I-485
application during the pendency of this action. For the reasons below, the Court will deny
Plaintiff’s Motion without prejudice.
DISCUSSION
“Preliminary injunctive relief—whether a temporary restraining order or a preliminary
injunction—‘is an extraordinary remedy never awarded as of right.’”2 Because it is such a
“drastic remed[y]—the exception rather than the rule—plaintiffs must show that they are clearly
1 ECF No. 2, filed February 3, 2026.
2 Schiermeyer ex rel. Blockchain Game Partners, Inc. v. Thurston, 697 F. Supp. 3d 1265, 1269
(D. Utah Oct. 9, 2023) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).
Case 2:26-cv-00087-AMA Document 6 Filed 02/04/26 PageID.<pageID> Page 1
of 5

2
and unequivocally entitled to relief.”3 Under Rule 65(b) of the Federal Rules of Civil Procedure,
the Court may issue a temporary restraining order without notice to the adverse parties or their
attorneys only if: (1) “specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the adverse
part[ies] can be heard in opposition[,]” and (2) “the movant’s attorney certifies in writing any
efforts made to give notice and the reasons why it should not be required.”4
Plaintiff’s Motion does not comply with Rule 65(b). Plaintiff’s Complaint is not verified,
and there are no supporting affidavits attached to the Motion. Plaintiff’s Motion also does not
indicate—and his attorney does not certify in writing—that any efforts to give notice to
Defendants have been made nor does it explain why notice should not be required.
Furthermore, an ex parte temporary restraining order is “reserved for circumstances
where the applicant would face immediate and irreparable harm if the court waited for the
preliminary injunction proceeding.”5 To obtain such relief, a party must show that (1) he “is
substantially likely to succeed on the merits;” (2) he “will suffer irreparable injury if the
injunction is denied’” (3) his “threatened injury outweighs the injury the opposing party will
suffer under the injunction;” and (4) “the injunction would not be adverse to the public interest.”6
“The likelihood-of-success and irreparable-harm factors are ‘the most critical’ in the analysis.”7
3 Adrian v. Westar Energy, Inc., No. 11-1265-KHV, 2011 WL 606148, at *3 (D. Kan. Dec. 5,
2011) (citing Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070
(10th Cir. 2010)).
4 Fed. R. Civ. P. 56(b).
5 Geiger v. Epsy, 885 F. Supp. 231, 232 (D. Kan. 1995).
6 Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016).
7 Legacy Church, Inc. v. Kunkel, 455 F. Supp. 3d 1100, 1132 (D.N.M. 2020) (quoting Nken v.
Holder, 556 U.S. 418, 434 (2009)).
Case 2:26-cv-00087-AMA Document 6 Filed 02/04/26 PageID.<pageID> Page 2
of 5

3
“It is insufficient . . . that a moving party demonstrate that there is only a ‘possibility’ of either
success on the merits or irreparable harm.”8 Here, Plaintiff has not met his “heightened burden to
show [he] is likely to prevail on the merits and that [he] would be irreparably harmed if the
[temporary restraining order] is denied.”9
With regard to the likelihood of success on the merits, Plaintiff’s Motion raises questions
related to this Court’s jurisdiction to review Plaintiff’s claims. For example, while it does not
appear the Tenth Circuit has yet addressed the issue, the Eleventh, Eighth, Fifth, and Third
Circuits have held “that [8 U.S.C.] § 1252(a)(2)(B)(ii) precludes jurisdiction over challenges to
USCIS delays in adjudicating Form I-485 adjustment of status applications.”10 The Court makes
no comment as to how it would resolve these jurisdictional questions but finds that it would be
unwise to attempt to do so without adversarial briefing. Moreover, the complexity of these
questions makes it difficult for the Court to conclude at this point that Plaintiff has shown a
likelihood of success on the merits.
Even assuming the Court has jurisdiction, Plaintiff seeks relief under § 706 of the
Administrative Procedures Act, which allows a court to compel agency action that the agency
has “unlawfully withheld or unreasonably delayed.”11 To determine whether an unreasonable
8 Id. (citing Diné Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276 (10th Cir. 2016)).
9 Tickets for Less, LLC v. Cypress Media, LLC, No. 20-2047-JAR-GEB, 2020 WL 528449, at *4
(D. Kan. Feb. 3, 2020).
10 Kanapuram v. Dir., US Citizenship & Immigr. Servs., 131 F.4th 1302, 1306–07 (11th Cir.
2025); see also Thigulla v. Jaddou, 94 F.4th 770, 777–78 (8th Cir. 2024); Cheejati v. Blinken,
106 F.4th 388, 394–96 (5th Cir. 2024); Geda v. Dir., US Citizenship & Immigr. Servs., 126 F.4th
835, 845–47 (3rd Cir. 2025). 8 U.S.C. § 1252(a)(2)(B)(ii) provides in relevant part that “no court
shall have jurisdiction to review . . . any other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is specified under this subchapter to be
in the discretion of the Attorney General or the Secretary of Homeland Security . . .”
11 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004).
Case 2:26-cv-00087-AMA Document 6 Filed 02/04/26 PageID.<pageID> Page 3
of 5

4
delay has occurred, the Court must consider “(1) the extent of the delay, (2) the reasonableness
of the delay in the context of the legislation authorizing agency action, (3) the consequences of
the delay, and (4) administrative difficulties bearing on the agency’s ability to resolve an
issue.”12 At present, the Court lacks information necessary to weigh these factors. Plaintiff does
not make clear exactly how long his I-485 application has been processing, and without a
response from Defendants, the Court cannot determine what administrative difficulties bear on
the agency’s ability to resolve the issue. Thus, again, the Court cannot conclude at this juncture
that Plaintiff has met his burden in showing a likelihood of success on the merits.
With regard to immediate and irreparable harm, Plaintiff also falls short of his burden.
Plaintiff has been in immigration detention, and his immigration removal proceedings have been
pending, since late September of 2025.13 It is unclear to the Court why emergency relief
enjoining the removal proceedings is necessary now when it seemingly was not necessary over
the past several months. There is no indication that Plaintiff’s immigration removal proceedings
are wrapping up such that Plaintiff will imminently be subject to a removal order. Thus, it does
not appear to the Court that any sufficiently immediate irreparable harm justifying this relief will
occur to Plaintiff before Defendants can be heard in opposition.
Overall, because Plaintiff has failed to comply with Rule 65(b) and has not shown at this
time a likelihood of success on the merits or immediate and irreparable harm, the Court denies
Plaintiff’s Motion without prejudice. If circumstances materially alter before, or once,
Defendants have been properly served in accordance with Rule 4 of the Federal Rules of Civil
Procedure, Plaintiff may renew his request.
12 Qwest Commc’n Intern., Inc. v. F.C.C., 398 F.3d 1222, 1239 (10th Cir. 2005).
13 See ECF No. 1 ¶ 27.
Case 2:26-cv-00087-AMA Document 6 Filed 02/04/26 PageID.<pageID> Page 4
of 5

5
ORDER
For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE Plaintiff’s
Emergency Motion for Temporary Restraining Order (ECF No. 2).
DATED this 4th day of February 2026. 	BY THE COURT:
_________________________
Ann Marie McIff Allen
United States District Judge
Case 2:26-cv-00087-AMA Document 6 Filed 02/04/26 PageID.<pageID> Page 5
of 5