Zavala Leiva v. Mullin et al

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
NORMA XIOMARA ZAVALA LEIVA,
Plaintiff,
U.S.
DISTRICT
COURT
OISTRlCT
OF
VERMONT
FILED
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Case No. 2:26-cv-253
MARKWA YNE MULLIN et al.,
Defendants.
ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER AND MOTION
FOR PRELIMINARY INJUNCTION
(Doc. 10)
Plaintiff Norma Xiomara Zavala Leiva brings this action against several government
officials ("the Government") alleging that she was unlawfully removed from the United States.
She states that she had deferred action and work authorization due to a favorable bona fide
determination ("BFD") on her pending U nonimmigrant status ("U visa") application and that the
Government therefore had no authority to act on her outstanding removal order. Immigration
and Customs Enforcement ("ICE") nevertheless removed her to El Salvador on May 16, 2026.
(See Compl., Doc. 1.) She now seeks a temporary restraining order ("TRO") and a preliminary
injunction requiring the Government "to treat her deferred action as valid and in force, and
directing them to facilitate her return to the United States in the status she held on the day she
was removed." (Doc. 10-1 at 2.)
The court heard oral argument on the motion on August 19, 2026, at which time the court
set deadlines to respond to the preliminary-injunction request and to file a motion to dismiss.
The Government subsequently sought dismissal for lack of venue, which the court denied on
September 25, 2026. (Doc. 27.) In that decision, the court noted additional factual
developments, including a Revocation Notice that the U.S. Citizenship and Immigration Services
2:26-cv-00253-gwc Document 39 Filed 10/15/26 Page 1 of 19

("USCIS") Nebraska Service Center issued to Ms. Zavala Leiva revoking her work authorization
and terminating the deferred action that the Vermont Service Center had previously granted.
(Doc. 24-1.) The court ordered further argument on the preliminary-injunction motion "in light
of
events that have transpired since the August 2026 motion hearing." (Doc. 27 at 11.) The
court heard additional argument on October
9,
2026.
Statutory and Regulatory Framework
The court begins with a brief explanation
of
the U visa program and adjudicative process.
The court provides additional details as necessary throughout this order.
The U visa program, codified at 8 U.S.C. § 1101(a)(15)(U), was created as part
of
the
Victims
of
Trafficking and Violence Protection Act
of
2000, Pub. L. 106-386, § 1513(a)(2)(A),
114 Stat. 1464, 1533 (2000). The program allows noncitizens who are victims
of
crimes in the
United States to apply for lawful nonimmigrant status and receive employment authorization. To
be eligible, the noncitizen must report the crime and,
if
asked, assist law enforcement with
investigation and prosecution. 8 U.S.C. § 1184(p)(6). Certain family members
of
a principal
U visa petitioner may also be eligible to receive a derivative U visa. See 8 C.F .R. § 214.14(f).
USCIS is authorized to issue only 10,000 principal U visas per year, 8 U.S.C.
§ 1184(p)(2)(A), which has created a significant backlog
of
applications. To ensure that U visa
applicants can receive work authorization and protection from deportation while awaiting their
U visas, Congress has passed legislation allowing USCIS to provide interim benefits to
applicants, including to those applicants who have submitted a bona fide application for a U visa.
8 U.S.C. § l 184(p)(l)-(6). USCIS acted on its power to issue bona fide determinations
("BFDs") in 2021, when it announced the new BFD process. See, e.g., USCIS, Policy Alert (PA-
2021-13 Jun. 14, 2021), https://www.uscis.gov/sites/default/files/document/policy-manual-
2
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updates/20210614-VictimsOfCrimes. pdf [https://perma.cc/S5UD-R99T]. USCIS considers an
application to be bona fide "based on the petitioner's compliance with initial evidence
requirements and successful completion
of
background checks." USCIS Policy Manual, Vol. 3,
Part
C,
ch. 5, https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5
[https://perma.cc/PW3H-H3A5].
If
the application is bona fide, USCIS then considers whether it should grant deferred
action and employment authorization as a matter
of
discretion. "Approval
of
deferred action
status means that
...
no action will thereafter be taken to proceed against an apparently
deportable [noncitizen], even on grounds normally regarded as aggravated." Reno
v.
Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471,484 (1999) ("AADC') (internal quotation marks and
citation omitted). The grants
of
employment authorization and deferred action are linked, with
the grant
of
deferred action allowing for the issuance
of
work authorization. See 8 C.F.R.
§ 27 4a. l 2(c)( 14) (authorizing employment authorization for a noncitizen "who has been granted
deferred action"). The grant
of
deferred action and work authorization is valid for four years.
USCIS Policy Manual, Vol. 3, Part C, ch.
5.
Additionally, when USCIS issues work
authorization based on a BFD, "the petitioner is also considered to have established a prima facie
case for approval within the meaning
of
[8
U.S.C. § 1227(d)]." Id 	Section 1227(d) in tum
provides that the Secretary
of
Homeland Security "may grant
...
an administrative stay
of
a final
order of removal" to a U visa applicant who has established a prima facie case for approval.
Factual Background
The following facts are drawn from the parties' filings and the documents attached to
those filings.
3
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Ms. Zavala Leiva is a citizen and national
of
El Salvador. (Doc. 1-4
,r
I.) She is married
to Oved Isaias Martinez Larin, with whom she shares three children.	
(Id.
,r
2.) Her husband and
children are also citizens and nationals
of
El Salvador. (Id.) In 2016, the family came to the
United States to seek asylum.
(Id.
,r
3.) An immigration judge denied Ms. Zavala Leiva's
application for asylum and ordered her removed on July 19, 2018.
(Id.
,r
5.) Her motion to
reopen and appeal to the Board oflmmigration Appeals ("BIA") were also denied.
(Id.
,r
6.)
The removal order became final on January 31, 2022. (Id.) Ms. Zavala Leiva requested a stay
of
removal, which ICE granted, and she was then placed under an Order
of
Supervision on
March 9, 2022, which required her to appear for periodic check-ins with ICE. (Id
,r
8,
Doc. 1
,r
50.)
Also in March 2022, 1 Ms. Zavala Leiva and her family were the victims
of
a violent
robbery. (Doc. 1-4
,r
9.) The charges against the assailant included aggravated assault, felony
unlawful use
of
a weapon, and endangering the welfare
of
a minor child, all under Missouri law.
(Doc. 1
,r
51.) The family reported the crime to the police and cooperated with all requests from
the police department. (Doc. 1-4
,r
9.) Based on their victimization and their assistance with the
investigation, the family applied for U visas, with Mr. Martinez Larin as the principal applicant.
(Id
,r
10.)
On February 7, 2025, USCIS's Vermont Service Center granted a favorable BFD and
deferred action to Ms. Zavala Leiva. (Doc. 1-1.) She was approved for work authorization at the
same time. (Doc. 1-2.) Both her deferred action and work authorization stated that they were
valid from February 7, 2025, until February 6, 2029. (Docs. 1-1, 1-2.)
1 While Ms. Zavala Leiva states in her declaration that the robbery took place in
March 2022, the complaint states that the crime occurred on December 20, 2021. (Doc. 1
,r
51.)
For the purposes of this motion, the date on which the crime occurred does not matter.
4
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On May 4, 2026, Ms. Zavala Leiva reported for an ICE check-in at the ICE office in
Kansas City. (Doc. 1-4
,r
13.) Although Ms. Zavala Leiva's deferred action remained valid, ICE
took her into custody without explanation except for a single piece
of
paper: a two-sentence
memorandum stating that ICE had canceled her Form I-220A Order
of
Release on Recognizance
"for the reasons stated in Form I-213, dated October 21, 2016." 2 (Doc. 1
,r
55; Doc. 1-3; Doc.
1-
4
,r,r
16-19.) Over the next several days, ICE transferred Ms. Zavala Leiva to detention facilities
in Kansas and Louisiana before ultimately removing her to El Salvador on May 15, 2026.
(Doc.1-4,r,r 18-20.)
On August 18, 2026, citing Ms. Zavala Leiva's May 2026 deportation, USCIS's
Nebraska Service Center issued a Revocation Notice revoking Ms. Zavala Leiva's work
authorization and terminating the deferred action that the Vermont Service Cener had previously
granted. (Doc. 24-1.) The Government represents that "as part
of
a workload realignment
USCIS is currently undergoing, any further action that USCIS will take on [Ms. Zavala Leiva's]
U-visa petition will occur in the Nebraska Service Center." (Doc. 17 at 2.) On October 8, 2026,
USCIS's Nebraska Service Center issued a "Notice
of
Intent to Revoke" advising that it was
rescinding the revocation and termination notice issued in August 2026 and that USCIS intended
"to revoke the approval previously granted for the Form I-765, Application for Employment
Authorization, filed by you on October 7, 2022." (Doc. 37-1 at 2.)
Ms. Zavala Leiva's family remains in the United States. They are facing a number
of
hardships because
of
Ms. Zavala Leiva's absence. (Doc. 1-4
,r
22.) Of particular note, Ms.
2 The referenced October 2016 Form I-213 is not before the court. The Government has
submitted a copy of a Form I-213 dated May 4, 2026, which indicates that officers notified Ms.
Zavala Leiva that there was "an outstanding warrant for her arrest." (Doc. 17-1 at 2.) The
Form I-213 referenced "current criminal charges" of May 4, 2026, under 8 U.S.C. § 1251. (Id)
5
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Zavala Leiva was the primary caregiver for her oldest daughter, Gabriela, who is deaf, has a
speech delay, and has global developmental delay.
(Id)	
Without Ms. Zavala Leiva's care,
Gabriela has been struggling both physically and emotionally. (Id
,r
23.) Ms. Zavala Leiva's
husband and second oldest child are attempting to fill her shoes, but they cannot communicate as
effectively with Gabriela as Ms. Zavala Leiva could. (Id
,r,r
23-24.) Through this lawsuit, she
seeks to be united with them.
Legal Standards
Ms. Zavala Leiva seeks a temporary restraining order under Fed.
R.
Civ.
P.
65(b) and a
preliminary injunction under Rule 65(a). "The standard for entry
of
a TRO is essentially the
same as for a preliminary injunction." Free Country Ltd.
v.
Drennen, 235
F.
Supp. 3d 559, 565
(S.D.N.Y. 2016) (citing Andino
v.
Fischer, 555
F.
Supp. 2d 418,419 (S.D.N.Y. 2008)). "The
main differences are, first, that a TRO is often granted ex parte but thereafter has a limited
lifespan and, second, that even where
...
there is a subsequent adversarial hearing on the TRO, it
typically occurs before there has been extensive discovery."
Id.	
Here, although there has been
no discovery, the relevant facts are derived primarily from administrative actions, the occurrence
of
which is not in dispute. Briefing on the request for Rule
65
relief is complete, and the court
has heard argument from the parties at two separate hearings, giving both sides ample
opportunity to present their positions. This case has proceeded beyond the earliest stages where
a TRO might be appropriate; the court therefore focuses on the request for a preliminary
injunction under Rule 65(a).
Rule 65(a) authorizes the court to "issue a preliminary injunction only on notice to the
adverse party." As noted above, the Government has had ample notice of Ms. Zavala Leiva's
request for preliminary relief. "A preliminary injunction is an equitable remedy and an act of
6
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discretion by the court." Top Ridge Invs., LLC
v.
Anichini, Inc., No. 16-cv-00076, 2016 WL
8809223, at *2 (D. Vt. June 15, 2016); (quoting Am. Civil Liberties Union
v.
Clapper, 804 F.3d
617,622 (2d Cir. 2015)); see also, e.g., Cabrera Martinez
v.
Marich, 816 F. Supp. 3d 356,362
(W.D.N.Y. 2025) (noting district court's "wide discretion in determining whether to grant a
preliminary injunction" (quoting Valenzuela Arias
v.
Decker, 612
F.
Supp. 3d 307,311
(S.D.N.Y. 2020))). At the same time, courts recognize that "[a] preliminary injunction is an
extraordinary remedy never awarded as
of
right." Winter
v.
Nat. Res.
Def
Council, Inc.,
555 U.S.
7,
24 (2008).
The standard for analyzing a request for a preliminary injunction is well established:
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).
Analysis
Ms. Zavala Leiva raises claims under the Administrative Procedure Act ("AP A"), the
Due Process Clause
of
the Fifth Amendment, and the Mandamus Act, arguing that her removal
was unlawful under each. The Government argues that the requests for a TRO and for a
preliminary injunction should be denied. (Doc. 17 at 2.)
Before proceeding to the enumerated preliminary-injunction factors, the court notes the
Government's assertion that the preliminary-injunction standard in this case is "heightened"
7
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because Ms. Zavala Leiva is seeking a mandatory injunction-i.e., an injunction that alters the
status quo. (Doc. 19 at 11.) Ms. Zavala Leiva asserts that the requested injunction would not
alter the status quo, which she defines as the time when she was "living in Kansas City with an
unrevoked bona fide determination, employment authorization, and deferred action." (Doc. 24
at 15.) The court need not resolve this dispute because the court's conclusion is the same under
either the ordinary or the "heightened" standard.
The Government articulated another preliminary concern at the October 9 hearing: that
proceeding to a ruling on the request for a preliminary injunction deprives the Government
of
an
opportunity to test the veracity
of
Ms. Zavala Leiva' s allegations and creates a risk that others
might abuse the Rule 65 process. But as stated above, the Government has had ample
opportunity to present its position at this preliminary stage. The Government has not identified
any material factual dispute, and the court finds it proper to proceed to the preliminary injunction
analysis based on the papers.	
Cf
Davis
v.
N.YC. Hous. Auth., 166 F.3d 432, 437-38 (2d Cir.
1999) ("[M]otions for preliminary injunction should not be resolved on the basis
of
affidavits
that evince disputed issues
of
fact.").
	If
plaintiffs in other cases abuse the Rule 65 process, the
court anticipates that the Government can use its significant powers to identify and prosecute
such abuses.
I. 	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
8
2:26-cv-00253-gwc Document 39 Filed 10/15/26 Page 8 of 19

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).
"[P]rolonged family separation amounts to irreparable injury." Sunny
v.
Eiden, 573
F.
Supp. 3d 759, 772 (E.D.N.Y. 2021) (collecting cases); see also Andreiu
v.
Ashcroft, 253 F.3d
477,484 (9th Cir. 2001) (en bane); Juarez
v.
Noem, No. 26-cv-00801, 2026 WL 799976, at
*8
(E.D. Cal. Mar. 23, 2026). This may be especially true when a parent and child are separated.
D.JC. V
v.
US. lmmigr. & Customs Enf't, No.
18
Civ. 9115, 2018 WL 10436675, at
*1
(S.D.N.Y. Oct. 15, 2018) ("Except in the most dreadful circumstances, a court should not
countenance the cruelty
of
the separation
of
a parent and child by the government.").
Here, Ms. Zavala Leiva was separated from her husband and three children for about
100 days between the time that ICE detained her in May 2026 and the time that USCIS's
Nebraska office issued the Revocation Notice in August 2026. That separation has likely already
caused irreparable harm, and certainly continued separation will do so. 3
II.	
Likelihood
of
Success on the Merits
Ms. Zavala Leiva argues that ICE removed her despite lacking the statutory or regulatory
authority to do so and in violation
of
her right to due process. For the reasons below, the court
3 Ms. Zavala Leiva also argues that, "(b]ecause (she] alleges the deprivation
of
a
constitutional right, no separate showing
of
irreparable harm is required." (Doc. 10-1 at 11.)
The Second Circuit recently stated that, while it has often "presumed irreparable harm for
alleged deprivations
of
certain constitutional rights
...
the Supreme Court has never applied this
presumption outside of the First Amendment context." Nat
'I
Ass 'n for Gun Rights
v.
Lamont,
153 F.4th 213, 248 (2d Cir. 2025). "And even in that context, [the Second Circuit] has not
axiomatically applied the presumption that plaintiffs alleging deprivations
of
First Amendment
rights have satisfied the requirement of irreparable harm." Id. 	Because Ms. Zavala Leiva has
demonstrated other irreparable harm, the court need not address whether the alleged deprivation
of her due process rights amounts to irreparable harm in this case.
9
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finds that she is likely to succeed on the first
argument-that
is, she is likely to succeed on the
merits
of
her claim that ICE removed her in violation
of
U.S. immigration laws.
Ms. Zavala Leiva contends that ICE had no authority to either revoke her deferred action
or to remove her while her deferred action remained valid. Her argument amounts to a challenge
under the AP A for agency action "not in accordance with law," "in excess
of
statutory
jurisdiction, authority, or limitations, or short
of
statutory right," and "without observance
of
procedure required by law." 5 U.S.C. § 706(2)(A), (C), (D). The Government maintains that
ICE had discretion to cancel the Order
of
Release on Recognizance and that deferred action
granted Ms. Zavala Leiva only "lower priority" for removal, not absolute protection from
removal. (Doc.
19
at 12.) 4
As Plaintiff points out, she is not arguing that her BFD granted "total" protection from
removal. (Doc. 24 at 4.) Instead, she asserts that ICE lacked authority to cancel the BFD that
USCIS had granted. (Id. at 2.) The court agrees. USCIS' s Policy Manual clearly indicates that
it is USCIS (not ICE) that has the authority to revoke a grant
of
deferred action. USCIS Policy
Manual, Vol. 3, Part B, ch. 6 ("USCIS may terminate the grant
of
deferred action and revoke the
BFD [employment authorization] at any time
if
it determines the favorable exercise
of
discretion
or BFD [employment authorization] are no longer warranted
....
"). 5 The court in Alfaro
v.
4 The Government also states that "ICE currently has the resources to pursue lower
priority cases for removal." (Id.) That appears to be accurate,
if
not an understatement.
See Secure America Act, Pub. L. No. 119-98, §§ 102,202, 140 Stat. 837 (appropriating more
than $38 billion for ICE for fiscal year 2026).
5 Plaintiff cites 8 C.F.R. § 214.14(d)(3) for the proposition that USCIS alone has
authority to terminate a grant of deferred action. (Doc. 24 at 3.) That regulation supports the
proposition insofar as the deferred action is granted in connection with placement on the waiting
list specified at§ 214.14(d)(2). See 8 C.F.R. § 214.14(d)(3) ("[A] petitioner may be removed
from the waiting list, and the deferred action or parole may be terminated at the discretion of
USCIS."). The waiting list is not the same interim benefit as a BFD, but the court views the
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Mullin reached the same conclusion regarding authority to revoke deferred action based on
approval for Special Immigrant Juvenile Status.
	831
F.
Supp. 3d 177, 184 (E.D.N.
Y.
2026).
And, although this case does not involve Deferred Action for Childhood Arrivals ("DACA"),
8 C.F .R. § 236.23 specifically states that it is USCIS that may terminate a grant
of
deferred
action under that program. 8 C.F.R. § 236.23(d)(l)-{2). By contrast, the parties have not
presented-and
the court has not
found-any
evidence that ICE has authority to terminate a
noncitizen's deferred action. 6 Ms. Zavala Leiva is therefore likely to succeed on this point.
As for the effect
of
deferred action, the idea that an "unrevoked grant
of
deferred action
prevents
...
removal
...
is consistent with the Supreme Court's description
of
deferred action in
AADC." Nevarez Jurado
v.
Freden, 813
F.
Supp. 3d 376,389 (W.D.N.Y. 2025). As noted
above, the Supreme Court stated in that case that "[a]pproval
of
deferred action status means that
...
no action will thereafter be taken to proceed against an apparently deportable [noncitizen],
even on grounds normally regarded as aggravated." AADC 525 U.S. at 484 (internal quotation
marks and citation omitted). The Supreme Court has similarly referred to deferred action as
"forbearance ofremoval." DHS
v.
Regents
of
the Univ.
of
Cal.,
591
U.S.
1,
1 (2020). The
USCIS Policy Manual provides a similar definition, saying that "[d]eferred action is the formal
documenting
of
a decision to exercise prosecutorial discretion to not pursue removal action or
deportation against a[] [noncitizen] for a certain period
of
time." USC IS Policy Manual, Vol.
1,
regulation as supporting-or at least consistent with-Plaintiffs position as to the locus ofauthority for terminating deferred action granted to BFD recipients.
6 The Government cites 8 C.F.R. § 241.4(/) as supporting its argument that ICE had
discretion to cancel the Order of Release on Recognizance. (Doc. 19 at 12.) That might be so,
but as the Government itself concedes, the Order of Release on Recognizance is "separate[]"
from USCIS' s 2025 grant of a BFD and deferred action. (Id. at 13.) The court has located no
authority for the proposition that ICE's cancellation of the prior Order of Release could nullify or
otherwise affect USCIS 's grant of deferred action.
11
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Part
I,
ch. 2, https://www.uscis.gov/policy-manual/volume-1-part-i-chapter-2
[https://perma.cc/6Q26-2Z7W]. Based on this authority, other courts have found that ICE cannot
remove--or
detain-a
noncitizen with a valid grant
of
deferred action. See Nevarez Jurado,
813
F.
Supp. 3d at 389; Sepulveda Ayala
v.
Bondi, 794
F.
Supp. 3d 901, 912-13 (W.D. Wash.
2025) (collecting cases); Alfaro,
831
F.
Supp. 3d at 184; Garcia Lanza
v.
Noem, 822
F.
Supp. 3d
326, 333-34 (collecting cases).
On May 20,
2026-a
few days after Ms. Zavala Leiva's detention and
removal-Judge
Andre Birotte Jr. issued his decision in Immigration Center for Women & Children
v.
Noem
("ICWC'), 351 F.R.D. 324 (C.D. Cal. 2026). The plaintiffs in that case challenged ICE's
January 2025 policy decision (the "2025 Guidance") that "expressly repealed previous policy
and dramatically changed ICE's enforcement posture towards individuals with pending petitions
for victim-based immigration benefits from a policy
of
refraining from immigration enforcement
against such persons in deference to their pending applications, to a policy
of
enforcement
despite their pending applications."
Id.
at 348. The plaintiffs claimed, among other things, that
the 2025 Guidance improperly "permits ICE to disregard USCIS grants
of
deferred action."
Id.
at 361. The ICWC court concluded that preliminary class certification was appropriate and that
the plaintiffs were entitled to a preliminary injunction, reasoning, in part, that the 2025 Guidance
"reflects a decision to subject persons with deferred action to immigration enforcement, directly
contrary to caselaw holding that deferred action protects a person from immigration enforcement
action."
Id.
at 386 (citing AADC, 525 U.S. at 484). The ICWC court stayed the 2025 Guidance,
and further stayed "the De Facto Revocation Policy, under which ICE does not honor grants of
deferred action conferred by USCIS to individuals with pending petitions for U or T visas." Id.
at 397.
12
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The Government defendants appealed the ICWC court's decision in June 2026; that
appeal is pending in the Ninth Circuit. No. 26-3961 (9th Cir. filed June 19, 2026). Then, as
noted above, the Government defendants in Ms. Zavala Leiva's case took the following
additional steps. On August 18, 2026, citing Ms. Zavala Leiva's May 2026 deportation,
USCIS's Nebraska Service Center issued a Revocation Notice revoking Ms. Zavala Leiva's
work authorization and terminating the deferred action that the Vermoq.t Service Cener had
previously granted. (Doc. 24-1.) On October 8, 2026, the Nebraska Service Center issued a
"Notice
of
Intent to Revoke" advising that it was rescinding the revocation and termination
notice issued in August 2026 and that USCIS intended "to revoke the approval previously
granted for the Form 1-765, Application for Employment Authorization, filed by you on
October 7, 2022." (Doc. 37-1 at 2.) The October 2026 notice is consistent with the
Government's position in this case that USCIS has discretion to revoke a BFD "at any time" and
that, even
if
there was some infirmity in the August 2026 Revocation Notice, USCIS could
simply revoke the deferred action again. (Doc.
19
at 14-15.)
Whatever discretion USCIS enjoys for revoking a BFD, and whatever notice or process is
required for doing so, there is no dispute that USCIS had not revoked Ms. Zavala Leiva's BFD at
the time that she was detained and deported in May 2026. Although those agency actions did not
violate the stay imposed in
JCWC-the
court decision was not issued until some days after Ms.
Zavala Leiva was deported-the ICWC ruling supports the conclusion that Ms. Zavala Leiva is
likely to succeed on the merits. It appears that ICE's conduct in this case was in furtherance of
the decision in the 2025 Guidance "to subject persons with deferred action to immigration
enforcement, directly contrary to caselaw holding that deferred action protects a person from
immigration enforcement action." JCWC, 351 F.R.D. at 386.
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In short, USCIS had not revoked Ms. Zavala Leiva's deferred action at the time ICE
arrested her or at any time before she was deported, ICE had no authority to revoke it, and ICE
had no authority to remove her while her deferred action remained valid. Ms. Zavala Leiva is
therefore likely to succeed on the merits
of
her claim that ICE removed her in violation
of
U.S.
immigration laws.
The court therefore turns to the likelihood
of
obtaining the requested relief. See Strougo
v.
Barclays PLC, 194 F. Supp. 3d 230,233 (S.D.N.Y. 2016) ("[D]emonstrating likelihood
of
success on the merits requires more than a mere possibility
of
relief" (emphasis added; internal
quotation marks omitted)); Be/dock
v.
Deutsche-Eco
USA
Corp., No. 16-cv-14, 2016 WL
8809221, at *5 (D. Vt. Feb. 22, 2016) ("In assessing the likelihood
of
success on the merits, the
court considers the likelihood that the plaintiff will ultimately obtain the same relief at the end
of
the case."); Miami Gold Productions,
Inc.
v.
Gannett Co., 593 F. Supp. 672,674 (S.D.N.Y.
1984) ("The likelihood
of
success refers not to the likelihood
of
establishing a cause
of
action but
to the likelihood
of
obtaining injunctive relief.").
Here, the requested permanent relief is very similar to the requested interim relief. In the
complaint, Ms. Zavala Leiva seeks a declaration that her removal in May 2015 was unlawful and
that her deferred action remains in effect; she also seeks a writ
of
mandamus ordering the
Government to honor the grant
of
deferred action. (Doc. 1 at 18.) She further seeks an order
requiring the Government to facilitate her return to the United States, and an injunction
prohibiting Defendants from removing or detaining her "while she is on BFD status." (Id at 19;
see also Doc. 36 (supplemental petition dated October 6, 2026, seeking similar relief).) The
proposed preliminary relief seeks a similar injunction "for so long as her deferred action remains
unrevoked." (Doc. 10-5 at 2.)
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useIS's
October 2026 "Notice oflntent to Revoke" indicates that
users
intends to
revoke Ms. Zavala Leiva's deferred action and employment authorization, stating that a final
decision will be issued after November 10, 2026. (Doc. 37-1.) Because the requested injunction
would only be in place as long as Ms. Zavala Leiva' s deferred action remains unrevoked, the
practical effect
of
the injunction may be limited, particularly
if
she is unable to persuade the
agency not to revoke and
if
she is unsuccessful in any appeal. 7 The court nevertheless concludes
that Ms. Zavala Leiva is likely to succeed at least on her request for a declaratory judgment that
her removal in May 2026 was unlawful. In the meantime, for the reasons stated below, the
balance
of
equities and the public interest favor granting the requested preliminary injunction.
III. 	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, 555 U.S. at 24. "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.
US. Dep 't
of
Educ., 477
F.
Supp. 3d at 305. The last two factors merge when the
Government is a party in the case. Saget
v.
Trump, 375 F. Supp. 3d 280, 339--40 (S.D.N.Y.
2019).
7 In her supplemental petition dated October 6, 2026, Ms. Zavala Leiva has added a
request for a declaration that the deferred action and employment authorization granted to her in
February 2025 "remain in force through February 6, 2029." (Doc. 36 at 31.) That requested
relief would require court interference in
users'
s ongoing proceedings as described in the
October 2026 "Notice oflntent to Revoke." The court is not persuaded that Ms. Zavala Leiva is
likely to obtain that particular aspect of the requested relief, but this issue can be addressed at a
later stage of this case.
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Here, the injury to Ms. Zavala Leiva is severe. She is separated from her family and the
place that has been her home since 2016. She lost her job and her right to work and live in the
United States.
	Of
course, the court recognizes the Government's legitimate interest in swiftly
executing removal orders. But it was also the Government that granted Ms. Zavala Leiva
deferred action. That grant post-dated Ms. Zavala Leiva's removal order, and USCIS
nevertheless judged that she should be able to remain in the United States while her U visa
application was still pending. Based on the record as developed thus far in this case, there were
no changed circumstances to justify changing that conclusion. The Government's interest in
removing Ms. Zavala Leiva is also lessened in this case because she may yet be granted a U
visa-her
removal does not render her ineligible. That grant would allow her to return to and
live in the United States and to eventually seek legal permanent resident status.
In this case, Ms. Zavala Leiva's "'extremely high likelihood
of
success on the merits is a
strong indicator that a preliminary injunction would serve the public interest' because '[t]here is
generally no public interest in the perpetuation
of
unlawful agency action."' New York
v.
Admin.
for Child. & Families, 833
F.
Supp. 3d 361,403 (S.D.N.Y. 2026) (alterations in original; quoting
League
of
Women Voters
of
US.
v.
Newby, 838 F.3d
1, 12 (D.C. Cir. 2016)); see also Rodriguez
v.
Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (holding that the Government "cannot suffer
harm from an injunction that merely ends an unlawful practice").
The Government has offered scant commentary on the effect
of
USC IS' s post hoc August
and October 2026 actions to revoke or announce an intent to revoke the BFD that was in force in
May 2026. Presumably the Government's position is that those more recent events tip the
balance of equities against preliminary relief because USCIS has arguably sought to ratify ICE' s
enforcement actions after the fact. Ms. Zavala Leiva maintains that the October 2026 notice
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"sharpens the need for interim relief' because, "[a]bsent an order preserving Petitioner's status
pending conclusion
of
these proceedings, USCIS has stated it may extinguish that status on or
after November 10, 2026, before the Court reaches the merits." (Doc. 37 at 4.)
In light
of
the ICWC court's order, it does not appear that an injunction in this case is
necessary to put an end to ICE's apparently unlawful practice
of
taking enforcement action
against BFD holders. That broader issue is being litigated elsewhere. At the same time, Ms.
Zavala Leiva's separation from her family is a severe injury and the court concludes that
preliminary and limited injunctive relief is appropriate and necessary. It is also consistent with
USCIS' s October 2026 notice, which rescinds the prior revocation and appears to recognize that
'
Ms. Zavala Leiva currently has deferred action because USCIS "intends" to revoke it.
Of
course, USCIS's October 2026 notice suggests that Ms. Zavala Leiva faces a steep
incline with that agency going forward. But the preliminary relief that the court orders here
recognizes the severity
of
the harm and gives her an opportunity to present her case with the
agency and before this court with the status and with the family support that she enjoyed before
ICE's alleged unlawful conduct. As discussed below, the appropriate preliminary remedy
minimizes any hardship to the Government.
IV. 	Remedy
"Once the legal requirements for an injunction are met, this Court may exercise its equity
jurisdiction to mold a decree to the necessities
of
the case." Lichtenberg
v.
Besicorp Grp. Inc.,
43 F. Supp. 2d 376,384 (S.D.N.Y. 1999) (citing Weinberger
v.
Romero-Barcelo, 45 U.S. 305,
312 (1982)). "Unless a statute in so many words, or by a necessary and inescapable inference,
restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized
and applied." Romero-Barcelo, 456 U.S. at 313 (internal quotation marks and citation omitted).
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In this case, the AP A allows the court to "hold unlawful and set aside agency action" found to be
unlawful. 5 U.S.C. § 706(2). To "set aside" means "cancel, annul, or revoke." Corner Post,
Inc.
v.
Bd
of
Governors
of
Fed Rsrv. Sys., 603 U.S. 799,829 (Kavanaugh, J., concurring)
(quoting Black's Law Dictionary 1612 (3d ed. 1933)).
In this case, cancelling, annulling, or revoking the allegedly unlawful action requires the
Government to undo its removal
of
Ms. Zavala Leiva. It is within the court's power to order that
relief, as the Supreme Court has affirmed. Abrego Garcia, 604
U.S.----,
145
S.
Ct. 1017, 1018
(2025). The court does not require the Government to fund Ms. Zavala Leiva' s return from
El Salvador, but, as in JCWC, will preliminarily ENJOIN Defendants from preventing her re-
entry to the United States "in the same immigration status she had prior to her detention and
removal." ICWC, 351 F.R.D. at 397.
Conclusion
Plaintiffs Motion for a Preliminary Injunction (Doc. 10) is GRANTED as follows.
Defendants are preliminarily ENJOINED from preventing Ms. Zavala Leiva's re-entry to the
United States in the same immigration status she had on May 4, 2026, prior to her detention and
removal. Defendants shall treat Plaintiffs deferred action and employment authorization,
granted through the bona fide determination process on February 7, 2025, as valid and in full
force and effect. Defendants are preliminarily ENJOINED from taking any action to remove Ms.
Zavala Leiva from the United States, or to detain her for removal, based on the removal order
entered in her immigration proceedings, for so long as her deferred action remains unrevoked.
Defendants shall file a written status report confirming compliance with this Order within
seven days and shall promptly report any material developments concerning Ms. Zavala Leiva' s
return to the country. No security is required under Fed. R. Civ. P. 65(c). This Order shall
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remain in effect pending further order
of
the court. Insofar as it seeks a TRO, the Motion is
MOOT; and insofar as it seeks preliminary relief other than the relief ordered here, the Motion is
DENIED.
Dated at Burlington, in the District
of
Vennont, this
]5~tober,
2026. 	J
19
Geoffrey W. Crawford, Judge
United States District Court
2:26-cv-00253-gwc Document 39 Filed 10/15/26 Page 19 of 19