Oliveira et al v. Edlow et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
LUCIA GONCALVES OLIVEIRA, et al., )
)
Plaintiffs, 	)
) 	Civil Action No.
v. 	) 	25-13228-BEM
)
JOSEPH B. EDLOW, et al., 	)
)
Defendants. 	)
_______________________________________)
MEMORANDUM AND ORDER ON
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
MURPHY, J.
Congress implemented the Victims of Trafficking and Violence Protection Act
(“VTVPA”) to “strengthen the ability of law enforcement agencies to detect, investigate, and
prosecute cases of domestic violence [and] sexual assault.” Pub. L. No. 106-386, § 1513(a)(2)(A),
114 Stat. 1464. Its purpose is to “facilitate the reporting of crimes to law enforcement officials”
by “[p]roviding temporary legal status to aliens who have been severely victimized by criminal
activity.” Id. § 1513(a)(2)(B). Among other benefits, the VTVPA encourages victims to “fully
participate in the investigation of the crimes committed against them and the prosecution of the
perpetrators of such crimes.” Id. § 1513(a)(1)(B).
Plaintiff Lucia Goncalves Moreira Oliveira presents a tragic success story for the VTVPA.
On August 20, 2023, Ms. Oliveira was robbed and sexually assaulted on the streets of
Boston, Massachusetts. For any survivor of such an ordeal, the decision of whether to call the
police is often fraught with difficulty, both because of the intense emotional charge of the situation
and because of the considerable challenges in prosecuting crimes of that nature. Indeed, from
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2020–2023, only 13% of sexual assaults in urban areas were ever reported.1 For Ms. Oliveira, the
prospect may have been exceptionally daunting because she was then the subject of immigration
proceedings. Many in her position might have felt understandably apprehensive about inviting
law enforcement into the most sensitive parts of their life. But rather than let her attacker disappear
into the night, Ms. Oliveira did the right thing: she contacted the authorities and has since fully
cooperated with law enforcement. By doing so, she contributed to our collective safety.
Indeed, a Boston Police detective has signed an affidavit attesting to Ms. Oliveira’s ongoing,
active participation in their investigation.
Under the VTVPA, cooperating victims like Ms. Oliveira are entitled to apply for what is
known as a U visa. As set forth above, U visas serve a dual purpose: providing humanitarian relief
to victims of abuse and facilitating those victims’ participation in criminal investigations, much to
the benefit of our communities. And while an annual cap on U visas has unfortunately meant a
years-long backlog of applications, the Department of Homeland Security (“DHS”) has, until
recently, ensured that qualifying individuals would not be removed while waiting for final relief.
On January 30, 2025, DHS abruptly eliminated that benefit when Immigration & Customs
Enforcement (“ICE”) announced that it would no longer ask its DHS-sister agency, U.S.
Citizenship & Immigration Services (“USCIS”), to decide whether a U visa application is “bona
fide”—meaning whether it satisfies the prima facie requirements for relief, plus national security
and public safety background checks for the applicant—before executing the applicant’s order of
removal. As a result, individuals with bona fide, yet unadjudicated, U visa applications—“victims
of crimes committed against them in the United States, including rape, torture, kidnaping,
1 Bur. of Just. Stat., Reporting to Police by Type of Crime and Location of Residence, 2020–2023 (NCJ
310166, 2025), https://bjs.ojp.gov/library/publications/reporting-police-type-crime-and-location-residence-2020-
2023 [https://perma.cc/4CZN-BYPE].
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trafficking, incest, domestic violence, sexual assault, female genital mutilation, forced prostitution,
involuntary servitude, being held hostage,” and more—suddenly find themselves unprotected from
removal.2 Indeed, this is the exact position in which Ms. Oliveira finds herself. Ms. Oliveira’s
U visa application was submitted to USCIS ten months ago, almost quintuple what Congress
imagined as an appropriate length for deciding interim relief.3 Nevertheless, it has not been
enough, and Ms. Oliveira’s application continues to be outstanding.
Through their complaint, Ms. Oliveira and her husband ask the Court to find that the
rescission of ICE’s prior policy and the institution of its new policy (hereinafter, the “2025 Policy”)
violated the Administrative Procedure Act (“APA”) and the Due Process Clause. In the interim,
Plaintiffs ask the Court preliminarily to enjoin ICE from applying the 2025 Policy in their case.
At this stage, Defendants’ primary argument against relief is jurisdictional. Defendants
construe Plaintiffs’ claims as seeking review of a discretionary decision to execute Plaintiffs’
orders of removal, barred under 8 U.S.C. § 1252(g) (“section 1252(g)”). However, the Court finds
this argument unpersuasive. Plaintiffs challenge DHS’s effective “revo[cation] [of] a deferred
action program,” which the Supreme Court has held does not fall within the “narrow” scope of
section 1252(g). See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 19 (2020).
On the merits, Plaintiffs’ APA claim is particularly strong. ICE’s announcement of the
2025 Policy summarily states that “it is the policy of the United States to achieve the ‘total and
2 Pub. L. No. 106-386, § 1513(a)(1)(A), 114 Stat. 1464.
3 See 154 Cong. Rec. 10905 (2008) (“Immigrant victims of domestic violence, sexual assault and other violent
crimes should not have to wait for up to a year before they can support themselves and their families. [USCIS] should
therefore strive to issue work authorization and deferred action in most instances within 60 days of filing, consistent
with the need for safe and competent adjudication.”).
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efficient enforcement of [immigration] laws.’”4 But the VTVPA (including the availability of
interim relief) is part of our immigration laws. It is thus unclear how its implementation could
ever be at odds with DHS’s purported goal. Moreover, neither the announcement, nor the
Executive Order it cites, gives any indication that DHS has considered how its new policy will
impact the VTVPA’s law-enforcement and humanitarian aims, let alone the “serious reliance
interests” with which all agencies are required to reckon. Id. at 30 (quoting Encino Motorcars,
LLC v. Navarro, 579 U.S. 211, 212 (2016)).
The other preliminary injunction factors weigh likewise in favor of relief. Removal would
irreparably harm Plaintiffs by precluding them from receiving interim U visa relief to which they
may be entitled. And while “[t]here is always a public interest in prompt execution of removal
orders,” Nken v. Holder, 556 U.S. 418, 436 (2009), Congress has specifically identified here a
public interest in “women and children . . . [being] able to report [violent and sexual] crimes to
law enforcement and fully participate in the . . . prosecution of the perpetrators of such crimes.”5
Put simply, if Ms. Oliveira is removed, it becomes virtually certain that a sexual predator is never
brought to justice, and it becomes more likely that the next person in her position sees no reason
to jeopardize their own privacy and well-being for our collective safety. Congress passed the
VTVPA to avoid precisely this result.
For these reasons, and those stated herein, the Court will grant Plaintiffs’ motion and enjoin
DHS from relying on the 2025 Policy in the administration of their removal.
4 U.S. Immigr. & Customs Enf’t, Directive 11005.4, Interim Guidance on Civil Immigration Enforcement
Actions Involving Current or Potential Beneficiaries of Victim-Based Immigration Benefits [hereinafter,
“ICE Directive 11005.4”] at 2 (quoting Protecting the American People Against Invasion, Exec. Order No. 14159, 90
Fed. Reg. 8443, 8443 (Jan. 29, 2025)), https://www.ice.gov/doclib/foia/policy/11005.4.pdf [https://perma.cc/ET7M-
HPQX].
5 Pub. L. No. 106-386, § 1513(a)(1)(B), 114 Stat. 1464.
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I. 	Background
A. 	Legal and Factual Background
1. 	U Visas and Interim Relief (2000 – 2021)
Congress created the U visa in 2000 to provide “temporary legal status,” with a pathway
to lawful permanent residency, for non-citizen crime victims who assist law enforcement in their
investigations.6 However, each year, only 10,000 U visas are available, creating a backlog of
applications and a recognized need for interim relief.7
In 2008, Congress partially filled this gap by authorizing DHS to grant stays of removal to
U visa applicants who have demonstrated “prima facie” eligibility for approval, 8 U.S.C.
§ 1227(d), and work authorization for applicants with “bona fide” claims, id. § 1184(p)(6).8 In
2021, DHS exercised its authority under these statutes by implementing a specific process by
which USCIS would make such Bona Fide Determinations (“BFD”) on U visa applications.9
6 Pub. L. No. 106-386, § 1513(a)(2)(B), 114 Stat. 1464.
7 See New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72
Fed. Reg. 53014, 53027 (September 17, 2007) (citing 8 U.S.C. § 1184(p)(2)).
8 From 2000–2007, DHS independently instituted its own “procedures to ensure that those aliens who
appeared to be eligible for U nonimmigrant status . . . would not be removed from the United States until they had an
opportunity to apply for such status.” See 72 Fed. Reg. at 53015 (citing prior guidance). Since 2007, USCIS has also
maintained a “waiting list,” entitling applicants to interim relief pending visa availability. See id. at 53033.
9 U.S. Citizenship & Immigr. Servs., Policy Alert PA-2021-13, Bona Fide Determination Process for Victims
of Qualifying Crimes, and Employment Authorization and Deferred Action for Certain Petitioners (June 14, 2021),
https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210614-VictimsOfCrimes.pdf
[https://perma.cc/38DB-7FYY]. “Where USCIS issues a [Bona Fide Determination Employment Authorization
Document] to a petitioner, the petitioner is also considered to have established a prima facie case for approval within
the meaning of [8 U.S.C. § 1227(d)(1)].” 3 U.S. Citizenship & Immigr. Servs., Policy Manual pt. C, ch. 5
(Nov. 27, 2025), https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5 [https://perma.cc/PFP2-Z8LL].
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During the BFD process, USCIS first determines whether a pending petition is bona
fide. Second, USCIS, in its discretion, determines whether the petitioner poses a
risk to national security or public safety, and otherwise merits a favorable exercise
of discretion. If USCIS grants the alien a Bona Fide Determination Employment
Authorization Document (BFD EAD) as a result of the BFD process, USCIS then
also exercises its discretion to grant that alien deferred action for the period of the
BFD EAD. . . .
As a primary goal, USCIS seeks to adequately evaluate and adjudicate petitions as
efficiently as possible. The BFD process provides an opportunity for certain
petitioners to receive BFD EADs and deferred action while their petitions are
pending, consistent with the William Wilberforce Trafficking Victims
Reauthorization Act of 2008 (TVPRA 2008).
Only petitioners living in the United States may receive BFD EADs, since those
outside the United States cannot as a practical matter work in the United States.
Likewise, deferred action can only be accorded to petitioners in the United States
since those outside the United States have no potential removal to be deferred.10
Also in 2021, DHS announced that ICE would exercise its discretion to “defer decisions
on civil immigration enforcement action against [a U visa] applicant . . . until USCIS ma[de] a . . .
[n]egative bona fide determination or waiting list determination for pending U visa petitions . . .
request[ing] that USCIS expedite the adjudicative action” as needed.11 Under this 2021 Policy,
10 3 U.S. Citizenship & Immigr. Servs., Policy Manual pt. C, ch. 5 (Nov. 27, 2025),
https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5 [https://perma.cc/PFP2-Z8LL].
11 U.S. Immigr. & Customs Enf’t, Directive 11005.3, Using a Victim-Centered Approach with Noncitizen
Crime 	Victims 	§§ 	2.1, 	5.4 	(Dec. 	2, 	2021),
https://www.ice.gov/doclib/foia/policy/11005.3_UsingVictimCenteredApproachNoncitizenVictims.pdf
[https://perma.cc/2B4K-5GAU].
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except in “exceptional circumstances,” non-citizens with pending U visa applications “should
generally be issued a stay of removal,” unless a negative BFD has already been made.12
2. 	Plaintiffs’ History (2021 – 2024)
In November 2021, Plaintiffs (Mr. and Ms. Oliveira) entered the United States at the
southern border. See Oliveira et al v. Lyons et al, No. 1:25-cv-12859-LTS, Dkt. 11 at 2 (D. Mass.
Oct. 24, 2025).13 Soon thereafter, Plaintiffs were encountered by U.S. Customs and Border
Protection (“CBP”), which initiated removal proceedings against them. Id. Plaintiffs were then
released, subject to monitoring and check-in requirements, with which Plaintiffs have since duly
complied. Id.
Two years later, on or about August 20, 2023, Ms. Oliveira was robbed and sexually
assaulted in public in Boston, Massachusetts. Id.14 She has since fully cooperated with that
criminal investigation, as attested by a Boston Police detective. Id.15 Following that incident,
12 Id. § 5.4. Indeed, the 2021 Policy substantially mirrored a prior ICE policy from before the BFD process
was established, which relied on the lesser “prima facie” standard, per 8 U.S.C. § 1227(d), and which ran from 2009
to 2019. See U.S. Immigr. & Customs Enf’t, Directive 11005.1, Guidance: Adjudicating Stay Requests Filed by U
Nonimmigrant 	Status 	(U-Visa) 	Applicants 	at 	2–3 	(Sept. 	24, 	2009),
https://www.ice.gov/doclib/foia/dro_policy_memos/11005_1-hd-stay_requests_filed_by_u_visa_applicants.pdf
[https://perma.cc/HK34-H3C8]. In August 2019, in a parallel turn of events, DHS rescinded this policy and announced
that ICE would “no longer routinely request prima facie determinations nor expedited adjudications from USCIS.”
See U.S. Immigr. & Customs Enf’t, Directive 11005.2, Stay of Removal Requests and Removal Proceedings Involving
U Nonimmigrant Status (U Visa) Petitioners §§ 2, 5.2.2 (Aug. 2, 2019),
https://www.ice.gov/doclib/foia/policy/11005.2_StayRemovalReqRemProcUVisaPetitioners.pdf
[https://perma.cc/249E-4J6H]. Like Directive 11005.4, Directive 11005.2 was challenged in court. See generally,
e.g., ASISTA Immigration Assistance, Inc. v. Johnson, No. 3:20-cv-00206-JAM (D. Conn.). However, following a
change in administration, Directive 11005.2 was stayed and subsequently superseded by the 2021 Policy.
13 See also Dkt. 1 ¶ 31. As discussed in Section I(A)(4), Plaintiffs’ personal narratives were recently set forth
by another session of this court in connection with habeas petitions. Here, the Court recites only an abbreviated
version, incorporating other facts as necessary.
14 See also Dkt. 1 ¶ 34.
15 See also Dkt. 2 at 3.
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Plaintiffs hired an attorney to file U visa applications on their behalf.16 Id. However, unbeknownst
to Plaintiffs, their attorney never filed the paperwork, and on January 16, 2025, Plaintiffs were
ordered removed.17
3. 	The 2025 Policy
On January 30, 2025, ICE rescinded its 2021 Policy:
On January 20, 2025, President Donald J. Trump issued an Executive Order (EO)
entitled “Protecting the American People Against Invasion,” which states it is the
policy of the United States to achieve the “total and efficient enforcement of
[immigration] laws” against all inadmissible and removable aliens. Accordingly:
. . .
ICE will no longer routinely request expedited adjudications from USCIS. ICE
officers and agents may continue to do so subject to a case-by-case determination
that it is in ICE’s best interests.18
The announcement itself makes no mention of non-citizens’ willingness to report or participate in
criminal investigations or of any victims’ reliance interests.
The Executive Order quoted in the announcement makes no mention itself of U visas or
qualifying victims. Rather, it presents as its rationale that certain non-citizens present in the United
States constitute “significant threats to national security and public safety” or have otherwise
“abused the generosity of the American people,” requiring the “efficient and expedited removal of
16 Mr. Oliveira is putatively a “[q]ualifying family member” who may pursue interim and final U visa relief
in conjunction with his wife. See 8 C.F.R. §§ 214.14(a)(10), 214.14(f).
17 See Dkt. 1 ¶¶ 35–38. The Court further notes an immaterial discrepancy in the record. An affidavit
submitted by the respondents in Plaintiffs’ habeas action states that Plaintiffs were ordered removed in August 2024
and that their appeal was dismissed by the Board of Immigration Appeals on January 16, 2025. See Oliveira, No.
1:25-cv-12859-LTS, Dkt. 11 at 2. In their current complaint, Plaintiffs state that their merits hearing was in
August 2024; that they were ordered removed on January 16, 2025; and that their prior attorney failed to inform them
of the deadline to appeal. Dkt. 1 ¶¶ 35–38. These differences appear to have no bearing on the legal analysis, so the
Court will use Plaintiffs’ complaint version of events.
18 ICE Directive 11005.4 at 3.
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aliens from the United States.”19 As such, the Order states that agencies should take “all
appropriate action, consistent with law, to rescind the policy decisions of the previous
administration that led to the increased or continued presence of illegal aliens in the United
States.”20 Furthermore, the Order instructs agencies to “ensur[e] that . . . employment
authorization is not provided to any unauthorized alien in the United States,” presumably in
consideration of the “economic well-being of Americans.”21
4. 	Plaintiffs’ Controversy
On or about March 19, 2025, and notably before any departure order was issued by ICE,
Plaintiffs hired new counsel and filed their U visa applications. 	See Oliveira,
No. 1:25-cv-12859-LTS, Dkt. 11 at 3.22 On April 4, 2025, ICE gave Plaintiffs an initial departure
plan, with a departure date of May 2, 2025. Id.23 Following two motions to reopen—the first of
which resulted in a stay of removal but was ultimately unsuccessful; the second of which remains
pending before the Board of Immigration Appeals—ICE gave Plaintiffs a final self-deportation
deadline of October 3, 2025. Id.
However, on October 2, 2025, Plaintiffs filed habeas petitions, “target[ing] ICE’s efforts
to remove Petitioners while they still have pending requests” for relief. Id. at 3–4. Another session
of this court denied those petitions, stating that it was “not empowered via its habeas jurisdiction”
to grant relief but that, “[t]o the extent [Plaintiffs] wish to assert general civil (non-habeas) claims,
19 90 Fed. Reg. at 8443, 8445.
20 Id. at 8445.
21 Id. at 8446.
22 See also Dkt. 1 ¶ 39.
23 See also Oliveira et al v. Lyons et al, No. 1:25-cv-12859-LTS, Dkt. 8 ¶ 16 (D. Mass. Oct. 9, 2025).
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they may do so by filing a civil complaint,” as to the potential merits of which the court expressed
“no view.” Id. at 8 & n.8.
B. 	Procedural Background
Following dismissal of their habeas petitions, on October 31, 2025, Plaintiffs filed the
instant action. Dkt. 1. Plaintiffs assert one claim each under the APA, id. ¶¶ 49–57; under 8 U.S.C.
§ 1227(d), id. ¶¶ 58–62; under the Due Process Clause, id. ¶¶ 63–72; and for a writ of mandamus,
id. ¶¶ 73–77. For their APA claim, on which the Court focuses in this decision, Plaintiffs assert
that the 2025 Policy constitutes final agency action “because it marks the consummation of
Respondents’ decision-making process and is an action ‘from which legal consequences will
flow,’” id. ¶ 51 (internal quotation marks omitted) (quoting Bennett v. Spear, 520 U.S. 154, 156
(1997)), and that “Defendants’ scant reasoning [for the 2025 Policy] fails the APA’s ‘requirement
that [the agency] provide a reasoned explanation for its action’ and is therefore arbitrary and
capricious,” id. ¶ 54 (quoting Regents, 591 U.S. at 35).
Plaintiffs further moved for a temporary restraining order and preliminary injunction,
asking the Court to “enjoin[] [Defendants] from further immigration enforcement actions until
they complete the BFD process.” Dkt. 2 at 7. The Court then issued a temporary restraining order
to preserve the status quo and to give it time to assess its own jurisdiction. Dkt. 5.24
To that end, the Court also ordered Plaintiffs to show cause for why this case should not
be dismissed pursuant to section 1252(g).25 Id. Both sides responded, Dkts. 8, 13, and, with leave,
the American Civil Liberties Union of Massachusetts filed an amicus brief, Dkts. 9–10, 14.
24 That temporary order was later extended until December 3, 2025, to give the Court time to consider the
issues raised in Plaintiffs’ motion. Dkts. 14, 16, 19.
25 In his decision on Plaintiffs’ habeas petitions, Judge Sorokin highlighted section 1252(g) as a potential
barrier to relief. See Oliveira, No. 1:25-cv-12859-LTS, Dkt. 11 at 6. The Court thus felt it appropriate to ensure that
there was a colorable basis for jurisdiction before making Defendants spend time and resources on a response.
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Satisfied that there was at least a colorable basis on which to proceed, the Court ordered
Defendants to respond to the motion for preliminary injunction, Dkts. 14, 17.26 On November 19,
2025, the Court held a hearing and took the motion under advisement. Dkt. 18.27
II. 	Legal Standard
“[T]he issuance of preliminary injunctive relief is ‘an extraordinary and drastic remedy that
is never awarded as of right.’” Howe v. U.S. Bank Nat’l Ass’n as Tr. for RMAC Tr. Series
2016-CTT, 440 F. Supp. 3d 99, 102 (D. Mass. 2020) (quoting Peoples Fed. Sav. Bank v. People’s
United Bank, 672 F.3d 1, 8–9 (1st Cir. 2012)). “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 preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” Together Emps. v. Mass Gen. Brigham Inc., 32 F.4th 82, 85 (1st Cir.
2022) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). However, “in a case
like this one, where the Government is the party opposing the preliminary injunction,” the last two
factors merge. Devitri v. Cronen, 289 F. Supp. 3d 287, 297 (D. Mass. 2018) (citing Nken, 556
U.S. at 435).
Of the four factors, likelihood of success “weighs most heavily” in the analysis. Ryan v.
U.S. Immigr. & Customs Enf’t, 974 F.3d 9, 18 (1st Cir. 2020). In deciding a motion for preliminary
injunction, the Court “has broad discretion in deciding what evidence to consider.” Rice v. Wells
26 As noted elsewhere in this opinion, Defendants’ opposition focuses almost exclusively on section 1252(g),
to the exclusion of virtually any other likelihood-of-success argument, even though Defendants already had a separate
opportunity to brief that issue. In the interest of fairly assessing Plaintiffs’ actual likelihood of success, the Court has
done its best to shadowbox in Defendants’ place, as appropriate, and anticipates that it may need to revisit several of
these issues later in the case as Defendants’ position becomes clearer.
27 On December 3, 2025, the Court granted Plaintiffs’ motion, upon the findings and conclusions expressed
herein, stating that a full written decision was forthcoming. Dkt. 23. The Court notes that the December 3, 2025
docket order refers to “ICE Directive 11005.4, including its rescission of ICE Directive 11005.3,” whereas the Court
here refers to the “2025 Policy,” which is defined in the introduction to include the rescission of the 2021 Policy. To
be clear, insofar as the Directives embody the Policies, the Court considers these orders to be substantively identical.
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Fargo Bank, N.A., 2 F. Supp. 3d 25, 31 & n.34 (D. Mass. 2014) (citing Asseo v. Pan Am. Grain
Co., 805 F.2d 23, 26 (1st Cir. 1986)).
III. Discussion
A. 	Likelihood of Success
The Court finds that Plaintiffs are likely to succeed, at a minimum, on their APA claim.
The Court’s federal-question jurisdiction is not withdrawn under section 1252(g), and Plaintiffs
are likely to show that the issuance of the 2025 Policy, including the rescission of the 2021 Policy,
was arbitrary and capricious, in violation of the APA.
1. 	Jurisdiction
Defendants view Plaintiffs’ claims as “arising from the decision or action” to “execute
[their] removal orders,” barred under section 1252(g). See Dkt. 17 at 5–18.
However, Defendants’ argument is undermined by a simple fact: Plaintiffs’ APA claim
crystalized on January 30, 2025, when the 2025 Policy was issued, before Plaintiffs were even
aware of any ‘decision’ or ‘action’ to remove them.28 See Corner Post, Inc. v. Bd. of Governors
of Fed. Rsrv. Sys., 603 U.S. 799, 804 (2024). Before that date, Ms. Oliveira had already come
forward and assisted law enforcement in their investigation. Thus, she had already fulfilled her
half of the ‘quid pro quo’ agreement undergirding the U visa program and so, on January 30, 2025,
was “injured by final agency action” that withdrew part of the benefit to which she and her husband
would have been otherwise entitled. See id.; see also McCuin v. Sec’y of Health & Hum. Servs.,
817 F.2d 161, 166 (1st Cir. 1987) (holding that the mere “threat of withdrawal of benefits
constitutes a present legal harm” when circumstances make that “deprivation of certainty”
28 See Oliveira, No. 1:25-cv-12859-LTS, Dkt. 11 at 3 (“In early April [2025], ICE notified Petitioners of a
departure plan providing them four weeks to self-deport.”).
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meaningful).29 Even to the extent one might argue that Plaintiffs were not “injured” by the new
rule until after they officially submitted their U visa applications, on March 19, 2025, that timing
still demonstrates that the claim precedes—and thus cannot “aris[e] from”—the April 4, 2025
departure order.30
Defendants cannot sweep Plaintiffs’ claims into section 1252(g)’s “narrow” scope by
appealing to the broader gestalt of removal. See Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 482–83, 487 (1999). Section 1252(g) “applies only to three discrete actions,” not
implicated here: the “‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute
removal orders.’” See id. at 482 (quoting 8 U.S.C. § 1252(g) (emphases added)). “It is implausible
that the mention of three discrete events along the road to deportation was a shorthand way of
referring to all claims arising from deportation proceedings.” Id.
The Supreme Court’s decisions in Reno and Regents provide apt points of comparison. In
Reno, a group of plaintiffs alleged that the Government had “target[ed] them for deportation
because of their affiliation with a politically unpopular group.” 525 U.S. at 472. Thus, the
“initiation of deportation” proceedings was the precise ‘act’ that the plaintiffs challenged, id. at
474, and the Supreme Court held that such claims, akin to a “selective prosecution” defense in the
criminal context, were “precisely” what section 1252(g)’s drafters intended to avoid, id. at 477,
29 Defendants argue that, “if ICE agreed to wait to execute Plaintiffs’ removal orders, Plaintiffs ‘would have
no “cause or claim” to pursue.’” Dkt. 17 at 7 (quoting Balogun v. Sessions, 330 F. Supp. 3d 1211, 1212 (C.D. Cal.
2018)). However, that is not necessarily right or even relevant. If ICE simply canceled Plaintiffs’ current deportation
plan, without more, Plaintiffs would likely still have a claim based on a “deprivation of certainty.” See McCuin, 817
F.2d at 166. And even to the extent Defendants might be correct, Plaintiffs’ claim would likely fail for lack of standing,
not because of any change in the Court’s inherent jurisdiction—i.e., Plaintiffs could not bring this lawsuit, but another
party could. ICE’s mooting the action would not transform the nature of the underlying claims.
30 While this timing is certainly sufficient to show the lack of any causal connection between the existence
of Plaintiffs’ claims and the decision to execute their orders of removal, it is worth noting that, even if there were
some relationship between the two, that would still not necessarily be sufficient. See Kong v. United States, 62 F.4th
608, 613 (1st Cir. 2023) (holding that a “but-for” causal connection is insufficient to satisfy section 1252(g)’s “arising
from” language).
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479. By contrast, the Regents Court had no difficulty distinguishing the kind of
selective-prosecution claim at issue in Reno from one more similar to Plaintiffs’ here, an APA
challenge to the rescission of the Deferred Action for Childhood Arrivals (DACA) program.
Regents, 591 U.S. at 19 (“We have previously rejected as ‘implausible’ the Government’s
suggestion that § 1252(g) covers ‘all claims arising from deportation proceedings’ or imposes ‘a
general jurisdictional limitation.’” (quoting Reno, 525 U.S. at 482)). In one sentence of analysis,
the Regents Court summarily stated that “[t]he rescission, 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.
Plaintiffs’ case is much closer to Regents than Reno.31 Plaintiffs reasonably assert that the
BFD process and 2021 Policy—implemented within months of each other, both under the auspices
of DHS—“work together” to provide interim relief for eligible U visa applicants. Dkt. 1 ¶ 55.
That makes intuitive sense and is apparent, for example, in the fact that the BFD process combines
the “prima facie” and “bona fide” determinations into a single adjudication.32 This may avoid
duplication of efforts within DHS as it considers U visa applicants’ eligibility for different kinds
31 The Court notes that its analysis here bleeds into the related-but-distinct question of whether the 2021 and
2025 Policies constitute “agency action . . . committed to agency discretion by law” within the meaning of the APA.
See 5 U.S.C. § 701(a)(2). Indeed, the Regents Court devoted substantially more attention to this issue than its
jurisdictional cognate. See 591 U.S. at 16–19. That makes sense because the deportation process contains “many . . .
decisions [and] actions,” not necessarily encompassed within section 1252(g), that are arguably committed to agency
discretion. Reno, 525 U.S. at 482. Unfortunately, Defendants devote no attention to this broader question of
reviewability, see generally Dkt. 17, and because the APA is not, strictly speaking, a jurisdictional statute, see Califano
v. Sanders, 430 U.S. 99, 107 (1977), the Court is under no obligation to police its requirements independently.
Nevertheless, particularly in this preliminary, predictive posture, the Court finds it appropriate to assume that
Defendants will at least make the same “chain of reasoning” argument put forth (unsuccessfully) in Regents: that “the
rescission of a non-enforcement policy is no different . . . from the adoption of that policy,” which adoption is itself
“equivalent to . . . individual non-enforcement decision[s]” that have traditionally been considered non-reviewable
under the APA. See Regents, 591 U.S. at 17–18. However, for the reasons stated in this section, the Court finds that
the 2025 Policy is “more than a non-enforcement policy,” making APA review appropriate. See id. at 19.
32 See note 9, supra.
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of interim relief. However, it also introduces the obvious risk that an individual will be removed
before the more-stringent BFD can be made, destroying the applicant’s eligibility for either.33 The
2021 Policy directly addresses that problem, effectively filling a gap within the BFD process.
Thus, the 2025 Policy constitutes at least the partial rescission of the U visa interim relief system,
“a program for conferring affirmative immigration relief,” which offers the “types of benefits . . .
‘courts are often called upon to protect.’” Cf. Regents, 591 U.S. at 18 (quoting Heckler v. Chaney,
470 U.S. 821, 832 (1985)).34
Defendants’ most tempting argument essentially asks the Court to set aside the finer points
of section 1252(g) and locate the ‘gist’ of Plaintiffs’ claim in their requests for relief.35 But that
mixes things up and puts the cart before the horse. “When asking if a claim is barred by § 1252(g),
courts must focus on the action being challenged,” not the “relief sought.” Canal A Media
Holding, LLC v. U.S. Citizenship & Immigr. Servs., 964 F.3d 1250, 1257–58 (11th Cir. 2020).36
This follows from the basic principle that a court’s decision as to remedy “is, of course, different
from [and subsequent to] the question [of] whether there is jurisdiction.” Avco Corp. v. Aero
Lodge No. 735, Int’l Ass’n of Machinists & Aerospace Workers, 390 U.S. 557, 561 (1968).
33 See note 10 and accompanying text, supra.
34 For comparison, Plaintiffs’ claim looks decidedly unlike those in Reno. Plaintiffs do not suggest that
Defendants are “selectively” “targeting” them. Cf. Reno, 525 U.S. at 472, 474. And, unlike in Reno, adjudication
will not require probing the sensitive, fact-intensive, subjective reasons behind the Government’s “decision to
prosecute.” Cf. id. at 489–90 (quoting Wayte v. United States, 470 U.S. 598, 607 (1985)).
35 See Dkt. 17 at 7 (“But the relief sought by a plaintiff obviously relates to and sheds light on the action
being challenged.”). The Court notes that a different version of this argument (not made by Defendants) might ask
whether any part of section 1252 “impliedly forbids the relief which is sought.” See 5 U.S.C. § 702. However, also
in this (non-jurisdictional) context, the Supreme Court has cautioned against “look[ing] only to the kind of relief a
plaintiff seeks, rather than the type of grievance he asserts.” See Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 567 U.S. 209, 216 n.3 (2012).
36 See also Mingrone v. Adducci, 2017 WL 4909591, at *4 (E.D. Mich. July 5, 2017) (“So the appropriate
inquiry under § 1252(g) is not merely whether a stay would interfere with ICE’s ability to execute the final removal
order—the answer is ‘yes’—but whether [the petitioner’s] claim arises from ICE’s execution of the final removal
order.” (citing Mustata v. U.S. Dep’t of Just., 179 F.3d 1017, 1022–23 (6th Cir. 1999))).
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Section 1252(g) is a jurisdictional bar, not a remedial limitation. Cf. Biden v. Texas, 597 U.S. 785,
798 (2022) (discussing section 1252(f)). And in any event, the Court has broad discretion to ensure
that any relief given is proper. Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 321 (1st Cir.
1989).
In sum, Plaintiffs challenge DHS’s issuance of the 2025 Policy and, by extension, its
rescission of the 2021 Policy. These are not “decision[s] or action[s] . . . to execute removal
orders.” Cf. 8 U.S.C. § 1252(g). And while Plaintiffs’ APA framing certainly impacts what relief
is available, it does not foreclose the Court’s ability to prevent irreparable harm in this case.
2. 	Merits
Plaintiffs assert that DHS’s issuance of the 2025 Policy was arbitrary and capricious, in
violation of the APA. Dkt. 1 ¶ 53 (citing 5 U.S.C. § 706(2)(A)). Defendants make no meaningful
counter.37 Nonetheless, the Court tests Plaintiffs’ APA claim and finds it substantial.
a. 	Final Agency Action
To be reviewable under the APA, a challenged action must constitute “final agency action.”
5 U.S.C. § 704. Agency action is considered “final” where it is “the ‘consummation’ of the
agency’s decision[-]making process,” and an action “by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will flow.’” Harper v. Werfel, 118 F.4th 100,
116 (1st Cir. 2024) (quoting Bennett, 520 U.S. at 178).
For purposes of this preliminary injunction, the Court is satisfied that Plaintiffs will be able
to show that the 2025 Policy constitutes final agency action. As to the first Bennett prong, the
2025 Policy represents the straightforward execution of a clearly articulated policy: on
January 20, 2025, President Trump ordered that DHS “rescind [certain] policy decisions of the
37 See note 26, supra.
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previous administration.”38 On January 30, 2025, DHS did so. Granted that the 2025 Policy itself
purports to be only “interim guidance” that “may be modified, rescinded, or superseded at any
time.”39 However, an agency cannot exempt itself from APA review merely by labeling its policy
interim “[g]uidance.” Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1020–23 (D.C. Cir. 2000).
“The fact that a law may be altered in the future has nothing to do with whether it is subject to
judicial review at the moment.” Id. at 1022. For the same reason, “boilerplate” disclaimers are
non-dispositive. Id. at 1022–23. Here, in the absence of any indication that Defendants’ position
on this issue is “tentative” or otherwise evolving, cf. Harper, 118 F.4th at 116, the Court finds it
likely that the 2025 Policy constitutes DHS’s final word on the matter (at least for now).
As to the second Bennett prong, the rescission of the 2021 Policy has had “direct and
immediate consequences,” at a minimum, for U visa applicants like Plaintiffs. See Ass’n of Int’l
Auto. Mfrs., Inc. v. Comm’r, Mass. Dep’t of Env’t Prot., 208 F.3d 1, 5 (1st Cir. 2000); see also
Regents, 591 U.S. at 30–31 (acknowledging the “radiat[ing]” consequences of DACA’s rescission
and rejecting the argument that, “because the DACA Memorandum stated that the program
‘conferred no substantive rights,’” DHS was not required to consider the consequences of that
rescission). Notably, in Benitez v. Wilkinson, 987 F.3d 46 (1st Cir. 2021), the First Circuit
considered a direct predecessor to the 2025 Policy, issued in 2019, and assumed that ICE was
“bound” by that “guidance,” with rights-based implications for the petitioner in that case.40 Id. at
56. Accordingly, the Court concludes that the 2025 Policy is likely final agency action.
38 90 Fed. Reg. at 8445.
39 ICE Directive 11005.4 at 4.
40 See note 12, supra.
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b. 	Arbitrary and Capricious
Finally, the Court turns to whether DHS’s decision to issue the 2025 Policy, rescinding the
2021 Policy, was arbitrary and capricious. As noted above, the announcement succinctly stated
that “it is the policy of the United States to achieve the ‘total and efficient enforcement of
[immigration] laws.’”41 In turn, it cited an Executive Order more generally addressing “threats to
national security and public safety” and the “economic well-being of Americans.”42
“The APA’s arbitrary-and-capricious standard requires that agency action be reasonable
and reasonably explained.” FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). Courts
must uphold even “a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513–14 (2009) (quoting Bowman
Transp., Inc. v. Ark.-Best Freight System, Inc., 419 U.S. 281, 286 (1974)). However, “an agency
rule would be arbitrary and capricious if the agency . . . entirely failed to consider an important
aspect of the problem.” Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
“Agencies are,” of course, “free to change their existing policies.” Encino, 579 U.S. at
212. However, “in explaining its changed position, an agency must be cognizant that longstanding
policies may have ‘engendered serious reliance interests that must be taken into account.’” Id.
(quoting Fox, 556 U.S. at 515). Indeed, when an agency is “not writing on a blank slate, it [is]
required to assess whether there were reliance interests, determine whether they were significant,
and weigh any such interests against competing policy concerns.” Regents, 591 U.S. at 33 (internal
citation and quotation marks omitted).
41 ICE Directive 11005.4 at 2 (quoting 90 Fed. Reg. at 8443).
42 90 Fed. Reg. at 8443.
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Here, the record currently before the Court indicates that DHS “entirely failed to consider
an important aspect of the problem,” see State Farm, 463 U.S. at 43, indeed one that was
specifically and explicitly addressed by Congress through the VTVPA and subsequent
legislation—that “women and children who are victims of [violent and sexual] crimes committed
against them in the United States must be able to report these crimes to law enforcement and fully
participate in the investigation of the crimes committed against them and the prosecution of the
perpetrators of such crimes.”43 Nowhere does DHS seem to recognize, let alone address, that
withdrawing protections might chill non-citizen cooperation and “[weaken] the ability of law
enforcement.”44 Indeed, DHS seems unaware of the fact that its actions are plainly in tension,
following Congress’s logic, with the President’s expressed concern for “national security and
public safety.”45
DHS highlights its interest in the “total and efficient enforcement of [immigration] laws,”
yet seems to forget that the VTVPA is one of those laws. It is worth noting that, in Regents, DHS’s
main argument was that DACA was unlawful and thus its rescission necessarily reasonable. See
591 U.S. at 25–26. Here, we are talking about relief programs that are explicitly authorized by
Congress.46 It is thus unclear how the withdrawal of lawful benefits follows from any
law-enforcement priority.47 This failure to set out a “reasonably . . . discern[able]” “path” itself
renders DHS’s action arbitrary and capricious. See Fox, 556 U.S. at 513–14.
43 Pub. L. No. 106-386, § 1513(a)(1)(B), 114 Stat. 1464.
44 Id. § 1513(a)(2)(A).
45 90 Fed. Reg. at 8443.
46 8 U.S.C. §§ 1184(p)(6), 1227(d).
47 Even taking at face value the “economic” concerns raised in the Executive Order, it does not follow that
the correction would result in removals. See Regents, 591 U.S. at 28–30 (stating that the failure to consider deferral
separate from work authorization was “alone” sufficient to hold the rescission of DACA arbitrary and capricious).
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There is likewise no indication that DHS was at all “cognizant” of any “serious reliance
interests” engendered in the 2021 Policy. See Encino, 579 U.S. at 212. Without belaboring the
point, it is worth remembering that U visa applicants include crime victims who have taken
affirmative steps to assist American law enforcement. This Court knows well that can mean
putting oneself, as a complaining witness, in a dangerous (or even just uncomfortable) position. It
is, of course, true that “DHS has considerable flexibility in carrying out its responsibility,” meaning
that it might have assessed and weighed the reliance interests at stake in different ways,
accommodating or not accommodating them however it can reasonably justify within the bounds
of the APA. See Regents, 591 U.S. at 31–33. However, the Court has no reason to believe that
happened here, and Defendants do not give even a perfunctory suggestion that it did. “Making
that difficult decision was the agency’s job, but the agency failed to do it.” See id. at 32.
Based on the preliminary record, the Court finds that the 2025 Policy does not follow from
DHS’s stated rationale. Moreover, it ignores congressional findings and closes its eyes to the
effects on people like Plaintiffs. Each of these would constitute an independent basis to conclude
that the issuance of the 2025 Policy was arbitrary and capricious.
B. 	Irreparable Harm
The Court finds that, in the absence of an injunction, Plaintiffs will suffer irreparable harm,
including the lost opportunity to receive U visa interim relief. Defendants fault Plaintiffs for their
delay in filing this suit. See Dkts. 18–19. Under the circumstances, the Court finds this of no
consequence. For the past year, Plaintiffs have diligently sought relief, including two actions in
this court, and there is no indication that a differently timed lawsuit would have produced any other
result.
Defendants further highlight that Plaintiffs have not sought administrative stays of removal
from ICE. Dkt. 17 at 19. For their part, Plaintiffs’ counsel states that an ICE agent “told him that
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he should not bother” because they are virtually never granted. See Dkt. 1 ¶ 41. Given that ICE
is free to stay Plaintiffs’ removal at any time but appears unwilling, the Court does not find it
meaningful that Plaintiffs have not completed this paperwork.48
C. 	Balance of the Equities and Public Interest
The Court likewise finds that the balance of equities and public interest weigh in favor of
relief. The Court recognizes that “[t]here is always a public interest in prompt execution of
removal orders.” Nken, 556 U.S. at 436. As DHS puts it, the “total and efficient” administration
of our laws is generally a public good.49
However, as discussed above, giving Plaintiffs the opportunity to receive interim U visa
relief would not be inconsistent with our laws—indeed, it would seem to track Congress’s intention
behind the VTVPA, which benefits the public by encouraging non-citizens to report crime,
strengthening law enforcement. Where Congress has seen fit to speak directly to the public benefit
in granting relief to a specific set of non-citizens, including Plaintiffs, the Court finds it appropriate
to weigh that interest heavily.
IV. Remedy
A. 	Scope
In the APA context, “vacatur is the normal remedy,” Allina Health Servs. v. Sebelius, 746
F.3d 1102, 1110 (D.C. Cir. 2014), and “a stay is the temporary form of vacatur,” All. for
Hippocratic Med. v. FDA, 78 F.4th 210, 254 (5th Cir. 2023), rev’d and remanded on other grounds
48 Defendants also point out that Plaintiffs have not filed petitions for review with the First Circuit. See
Dkt. 17 at 19 n.6. At the hearing, both parties seemed to agree that Plaintiffs could not now submit a petition, while
they have pending motions to reopen, although Defendants suggested that Plaintiffs might have filed petitions between
their two motions. In any event, the Court does not find that Plaintiffs’ claim here—challenging the rescission and
issuance of a policy under the APA—is of the type that could be “raised efficaciously” in that channel. Cf. Aguilar v.
U.S. Immigr. & Customs Enf’t, 510 F.3d 1, 11 (1st Cir. 2007).
49 ICE Directive 11005.4 at 2 (quoting 90 Fed. Reg. at 8443).
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sub nom. FDA v. All. for Hippocratic Med., 602 U.S. 367 (2024). Accordingly, the most natural
preliminary relief in this case would arguably be to stay the 2025 Policy in its entirety under
5 U.S.C. § 705.
Nevertheless, the Court finds that a more narrowly tailored preliminary injunction is the
appropriate relief at this stage, given Defendants’ limited response to the merits issues and because
it is the “less drastic remedy” that the Court could employ while still preventing irreparable harm.50
See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). In crafting that injunction,
the Court bears in mind the principles of administrative law that frame Plaintiffs’ likely successful
claim. In particular, the Court will not “enjoin[] [Defendants] from further immigration
enforcement actions until they complete the BFD process.” Cf. Dkt. 2 at 7. Rather, the Court will
simply enjoin Defendants from relying upon the 2025 Policy, including its rescission of the
2021 Policy, with respect to Plaintiffs. That puts Plaintiffs in the exact same position as they were,
subject to DHS policy, before the likely unlawful issuance.
B. 	Bond
Federal Rule of Civil Procedure 65(c) provides that a “court may issue a preliminary
injunction or a temporary restraining order only if the movant gives security in an amount that the
court considers proper to pay the costs and damages sustained by any party found to have been
wrongfully enjoined or restrained.” That said, there is “ample authority for the proposition that
the provisions of Rule 65(c) are not mandatory and that a district court retains substantial discretion
50 As discussed in Section III(A)(1), a substantial part of Defendants’ jurisdictional argument hinges on
characterizing Plaintiffs’ claims based on their requests for relief. It is somewhat paradoxical that this argument could
be avoided by taking the more drastic measure of setting aside (or, for the time being, staying) the 2025 Policy in its
entirety, as did, for example, the district court in Regents. See 591 U.S. at 14, 36. Nevertheless, the Court is mindful
that relief should be “narrowly tailored,” Brown v. Trs. of Bos. Univ., 891 F.2d 337, 361 (1st Cir. 1989), and therefore
has chosen the objectively lesser option. However, if that relief were found to be improper for whatever reason, it
continues to seem apparent that a full stay would be an available and proper course.
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to dictate the terms of an injunction bond.” Int’l Assoc. of Machinists & Aerospace Workers v.
E. Airlines, 925 F.2d 6, 9 (1st Cir. 1991); see also Pineda v. Skinner Servs., Inc., 22 F.4th 47, 57
(1st Cir. 2021) (concluding that the district court did not abuse its discretion by not requiring
low-wage laborers to post a bond). Here, Defendants have not suggested what “costs [or]
damages” might flow from being “wrongfully enjoined” in this case, see Dkt. 17 at 20 (quoting
Fed. R. Civ. P. 65(c)), and the Court can imagine none. Accordingly, the Court will not require
Plaintiffs to post bond.
V. 	Conclusion
For the foregoing reasons, Plaintiffs’ motion for preliminary injunction is GRANTED.
Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, the Court hereby
PRELIMINARILY ENJOINS Defendants, their agents, and anyone acting in concert or
participation with Defendants from implementing, instituting, maintaining, or giving effect to the
2025 Policy, including its rescission of the 2021 Policy, in any form with respect to Plaintiffs until
further order issued by this Court.
So Ordered.
/s/ Brian E. Murphy
Brian E. Murphy
Dated: December 4, 2025 	Judge, United States District Court
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