Shokri Varniab et al v. Edlow et al

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United States
 District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ZAHRA SHOKRI VARNIAB, et al.,
Plaintiffs,
v.
JOSEPH B. EDLOW, et al.,
Defendants.
Case No. 25-cv-10602-SVK
TEMPORARY RESTRAINING ORDER
AND ORDER TO SHOW CAUSE RE
ISSUANCE OF PRELIMINARY
INJUNCTION
ORDER ON DEFENDANTS’ MOTION
TO DISMISS SECOND AMENDED
COMPLAINT
Re: Dkt. Nos. 56, 81
Plaintiffs, medical doctors who are married to each other, lawfully immigrated to the
United States from Iran in March 2023. In May 2025, each Plaintiff filed a Form I-485
application for adjustment of status and a Form I-765 application for employment authorization.
Earlier in this case, the Court issued a preliminary injunction requiring the United States
Citizenship and Immigration Services (“USCIS”) to adjudicate Plaintiffs’ applications. At the
time the Court issued the preliminary injunction, Plaintiffs’ applications were on hold due to a
USCIS policy that placed a hold on final adjudication of applications for immigration benefits
filed by applicants from a number of countries, including Iran. In issuing the preliminary
injunction, the Court found that Plaintiffs were likely to succeed on their claims that the USCIS
adjudication hold policy was illegal. The urgency necessitating a preliminary injunction included
the fact that Plaintiff Zahra Shokri Varniab, who at the time was employed as a Postdoctoral
Research Fellow at Stanford University, had applied for a medical residency program and would
learn on March 20, 2026 whether she had matched with a program. If she matched with a
program, she would need to sign a contract and would need a valid work authorization shortly
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thereafter.
Following issuance of this Court’s preliminary injunction, USCIS adjudicated Plaintiffs’
applications by denying them all. The denials stemmed largely from USCIS’s conclusion that
Plaintiff Varniab had made a material misstatement because in visa applications she had filed in
March 2024 and April 2025, she had stated her intention to work as a medical researcher, whereas
in a declaration she filed in this case on February 11, 2026 (as well as a USCIS interview at
around the same time), she stated that she was seeking a medical residency as a step towards
becoming a practicing physician. Soon thereafter, the USCIS also took a step further by issuing
Notices of Intent to Revoke (“NOIRs”) already-granted visa petitions filed by Plaintiff Varniab
before she filed the applications at issue in this case, again based on what the agency characterized
as an inconsistency between her original intention to engage in medical research and her later
intention to seek a medical residency. On the same day USCIS denied Plaintiffs’ immigration
applications, Plaintiff Varniab matched to a medical residency program at the University of
California San Diego, which is set to begin in a few days, on June 22, 2026.
Since this Court issued the preliminary injunction, numerous other courts have issued
preliminary relief to other plaintiffs challenging the USCIS adjudication hold policies. In
addition, USCIS has now excluded applications from medical physicians from the adjudication
hold. Most recently, a federal district court in the District of Rhode Island declared USCIS’s
adjudication hold policies, and several others, unlawful and set them aside as contrary to law and
arbitrary and capricious, finding that in enacting the policies, USCIS “claims statutory and
regulatory authority that it does not possess; makes decisions without the reasoned explanations
that it must provide; acts without regard for the reliance interests of applicants that it must
consider; and justifies its actions with pretextual concerns of ‘national security’ that mask
anti-immigrant sentiments that it is forbidden from letting influence its decision-making.”
Dorcas Int’l Inst. of Rhode Island v. USCIS, No. 26-cv-132-JJM, PAS, -- F. Supp. 3d --, 2026 WL
1622708, at *1 (D.R.I. June 5, 2026).
As evidenced by these developments, the challenges to the USCIS adjudication hold
policies mounted by Plaintiffs in this case have been validated here and elsewhere. Had Plaintiffs
not been as proactive in asserting their rights, they might have benefited from USCIS’s suspension
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of the hold policies as to physicians or the later rulings of other courts. Yet Plaintiffs find
themselves in a situation where their applications for adjustment of status and employment
authorization have been denied, in large part based on information they provided in this litigation.
Most urgently, as things stand, Plaintiff Varniab does not have employment authorization to begin
her medical residency on June 22.
After USCIS denied Plaintiffs’ applications and issued the NOIRs, Plaintiffs filed a Second
Amended Complaint, alleging new claims, including claims that the Government violated their
constitutional rights by retaliating against them for bringing this lawsuit. Now before the Court is
the Government’s motion to dismiss the Second Amendment Complaint, which argues that none
of the conduct alleged by Plaintiffs is subject to judicial review. Also before the Court is
Plaintiffs’ motion for a temporary restraining order or temporary injunction, which the
Government opposes on the same jurisdictional grounds. The Court determines that
circumstances warrant ruling on these motions without oral argument. See Civil L.R. 7-1(b).1 For
the reasons that follow, both the Government’s motion to dismiss and Plaintiffs’ motion for a
temporary restraining order are GRANTED-IN-PART and DENIED-IN-PART.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
In December 2025 and January 2026, USCIS issued Policy Memoranda that placed an
“adjudicative hold” on a wide range of pending requests for immigration benefits filed by aliens
from a list of several countries, including Iran. See Dkt. 8-1 at 1, 2-3; Dkt. 8 ¶ 52. Plaintiffs’
applications for permanent residency and work authorization were subject to the adjudicative hold.
Dkt. 21 at 7.2
On December 11, 2025, Plaintiffs filed this action against Defendants (the “Government”)
1 As demonstrated in Plaintiffs’ TRO motion, time is of the essence. Further, the Court has
previously heard argument on subject matter jurisdiction (see Dkt. 35), Plaintiffs expressly waive
argument on the TRO motion (Dkt. 81 at 2), and the Government does not request it (see Dkt. 82).
2 In a press release dated March 30, 2026, USCIS announced that it had lifted the hold as to
“applications associated with medical physicians.”
https://www.uscis.gov/newsroom/alerts/update-on-uscis-strengthened-screening-and-vetting (last
visited June 11, 2026). As discussed below, by that time this Court had already issued a
preliminary injunction requiring adjudication of Plaintiffs’ applications, and USCIS had denied
their applications.
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to compel USCIS to adjudicate their Form I-485 and Form I-765 applications. Dkt. 1. Plaintiffs
filed a First Amended Complaint on January 1, 2026. Dkt. 8. Plaintiffs then moved for a
preliminary injunction directing the Government to complete adjudication of their pending
applications. Dkt. 9. In an order dated February 20, 2026, the Court granted Plaintiffs’ motion
and issued a preliminary injunction that required USCIS to adjudicate Plaintiffs’ applications
within 30 days. Dkt. 35 (the “PI Order”). The PI Order contains a more detailed factual
discussion concerning Plaintiffs and the background of this case.
Following issuance of the PI Order, USCIS denied both Plaintiffs’ applications for
adjustment of status and both Plaintiffs’ applications for employment authorization. Dkt. 42-1,
42-2, 44-1. The denial of Plaintiff Varniab’s Form I-485 application stated that “[a]fter reviewing
the evidence and the testimony provided at your interview, USCIS is denying your application as a
matter of discretion.” Dkt. 44-1 at PDF p. 7. The denial letter recited the following history
regarding Plaintiff Varniab:
• “You filed an Immigrant Petition for Alien Worker (Form I-140) on March 20, 2024, as a
post-doctoral researcher seeking classification as a member of the professions holding an
advanced degree or of exceptional ability, and a national interest waiver of the job offer
requirement attached to the employment-based second preference (EB-2). The petition
was approved on April 12, 2024.” Id. at PDF pp. 7-8.
• “You then filed a second Form I-140 on April 17, 2025, as a self-petitioner seeking
classification as an alien of extraordinary ability (E11 Form I-140) as a post-doctoral
researcher in the field of medicine. On Form I-140, you indicated that you were a
researcher in medicine who intended to work as a postdoctoral scholar. You described
your duties as researching and developing novel imaging approaches to visualize,
characterize, and quantify molecular and cellular processes involved in disease etiology
and treatments. USCIS approved Form I-140 on May 2, 2025.” Id. at PDF p. 8.
• “On May 12, 2025, you filed an Application to Register Permanent Residence or Adjust
Status (Form I-485). The E11 Form I-140 formed the basis for eligibility for the instant
application for adjustment of status while the EB-2 Form I-140 provided the priority date
for eligibility for an immigrant visa.” Id.
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• On February 5, 2026, you appeared for an interview at the USCIS San Jose Field Office
for purposes of assessing your eligibility for adjustment of status. During the interview
and review of your application, you testified that the information on your Form I-485,
along with any amendments made during the adjustment interview, and supporting
evidence were true and correct. At the interview, you provided testimony under oath.” Id.
The denial letter then set forth an explanation of the reasons USCIS denied Plaintiff
Varniab’s Form I-485 application, stating that during her interview, she “provided answers to a
USCIS officer that are inconsistent with information in your Form I-140 filings which
substantively are very similar.” Id. The denial letter also asserted that Plaintiff Varniab’s
“answers also contradict a sworn declaration you submitted to the United States District Court on
February 11, 2026,” referring to a declaration she had filed in this case. Id. The alleged
inconsistencies and contradictions identified in the denial letter centered on the fact that Plaintiff
Varniab stated in her February 2026 declaration and USCIS interview that she had applied for
medical residency, whereas “the basis of both I-140 petitions involve post-doctoral research, not
clinical physician work, and [her] intention to instead seek medical residency was not mentioned
in either of [her] Form I-140 petitions.” Dkt. 44-1 at PDF pp. 8-9.
Plaintiff Langroudi’s Form I-485 application for adjustment for status, which he had filed
as a spouse derivative beneficiary of Plaintiff Varniab, was denied because of the denial of
Plaintiff Varniab’s Form I-485. Dkt. 44-1 at PDF p. 4 (“An applicant adjusting status as a
derivative beneficiary is only entitled to the same immigrant status as the principal beneficiary.
See INA 203(d).”).
USCIS denied both Plaintiffs’ Form I-765 applications for employment authorization,
informing them that “your Form I-485 was denied on March 20, 2026” and “[t]herefore, you are
not eligible to receive employment authorization under 8 CFR § 274a.12(c)(9).” Dkt. 44-1 at PDF
pp. 12, 14.
Thus, the denial of Plaintiff Varniab’s Form I-485 application for adjustment of status also
resulted in the denial of Plaintiff Langroudi’s Form I-485 as well as both Plaintiffs’ Form I-765
applications for employment authorization.
On March 23, 2026, USCIS took the additional actions of issuing a Notice of Intent to
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Revoke (“NOIR”) each of Plaintiff Varniab’s previously-approved I-140 petitions. Dkt. 49-16,
49-17. As with the denial of her Form I-485 application, the NOIRs focus on an alleged
inconsistency regarding the stated basis of her I-140 petitions (work as a medical researcher) and
her subsequent application for a medical residency program with the stated intention of becoming
a practicing physician, as outlined in her February 2026 USCIS interview and “her sworn
statements before the court.” See, e.g., Dkt. 49-16 at PDF pp. 5, 6, 8, 10; Dkt. 49-17 at PDF pp. 2-
3, 8. The NOIR concerning the National Interest Waiver (EB-2) I-140 petition concludes that “the
original basis” for the approval the petition “no longer exists” and “[a]s such, USCIS intends to
revoke the approval of the present petition with a finding of willful misrepresentation of the
material facts regarding the nature of the petitioner’s proposed endeavor.” Dkt. 49-16 at PDF
p. 10. Similarly, the NOIR concerning the alien of extraordinary ability (EB-1A) I-140 petition
concludes that “the claims made by the petition in conjunction with Form I-140 were not true” and
that USCIS intends to “revoke Form I-140.” Dkt. 49-17 at PDF pp. 8-9. Both NOIRs gave
Plaintiff Varniab 30 days to submit evidence in response. Dkt. 49-16 at PDF pp. 10-11; Dkt.
49-17 at PDF p. 9.
At a March 24, 2026 Case Management Conference held following the denial of Plaintiffs’
applications for immigration benefits, they expressed an intention to file a Second Amended
Complaint. See Dkt. 47. Defendants took the position that the Court lacks subject matter
jurisdiction over such claims. See id. It was agreed at the Case Management Conference that
Defendants’ arguments regarding subject matter jurisdiction would be most efficiently resolved by
allowing Plaintiffs to file a Second Amended Complaint and then having Defendants file a motion
to dismiss, which would be briefed on an expedited schedule. See id.
Plaintiffs filed the Second Amended Complaint on March 30, 2026. Dkt. 49 (“SAC”).
Before that time, all named Parties had consented to the jurisdiction of a magistrate judge. Dkt. 6,
16. The SAC named new individual Defendants in both their individual and official capacities.
See SAC ¶¶ 6-8. The named individual Defendants consented to a magistrate judge in their
official capacities. Dkt. 55. Because those Defendants had not consented in their individual
capacities, this case was reassigned to a District Judge. Dkt. 60-63. At a June 2, 2026 Case
Management Conference before the District Judge and in a written notice filed thereafter,
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Plaintiffs dismissed the claims against the individual Defendants in their individual capacities.
Dkt. 73, 74. Because all remaining Parties have consented to the jurisdiction of a magistrate judge
(Dkt. 6, 16, 55), the case was reassigned back to the undersigned on June 3, 2026. Dkt. 78.
Now before the Court is the Government’s motion to dismiss the SAC, which is fully
briefed. Dkt. 56 (motion), 57 (opposition), 58-1 (reply).
Also before the Court is Plaintiffs’ emergency motion for a temporary restraining order or
temporary injunction, filed on June 6, 2026. Dkt. 81 (the “TRO Motion”). The Government filed
a response on the same day. Dkt. 82.
II. THE GOVERNMENT’S MOTION TO DISMISS THE SAC
A. LEGAL STANDARD
The Government’s motion to dismiss the SAC is based exclusively on Federal Rule Civil
Procedure 12(b)(1), which permits a party to seek dismissal of an action for lack of subject matter
jurisdiction. Dkt. 56 at i. Rule 12(b)(1) jurisdictional challenges can be either facial or factual.
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial challenge, the
party challenging jurisdiction asserts that the allegations in the complaint are insufficient on their
face to invoke federal jurisdiction. Id. In a factual attack, “the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal jurisdiction,” and the court may
review evidence beyond the complaint. Id. “It is to be presumed that a cause lies outside” the
limited jurisdiction of the federal courts, “and the burden of establishing the contrary rests on the
party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Amer., 511 U.S. 375, 377
(1994) (citations omitted).
B. DISCUSSION
1. First through Fourth Causes of Action
The Government argues that the Immigration and Naturalization Act (“INA”) strips this
Court of jurisdiction over Plaintiffs’ claims, citing 8 U.S.C. §§ 1252(a)(2)(B)(i) and (ii), 1255, and
1324a and Patel v. Garland, 596 U.S. 328, 329 (2022). Dkt. 56 at 8. The Court discussed those
legal authorities at length in its PI Order in this case (Dkt. 35 at 8-18) and in its preliminary
injunction order in Behdin v. Edlow, No. 26-cv-00566-SVK, 2026 WL 1031079, at *5-11 (N.D.
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Cal. Apr. 16, 2026). In relevant part, the Court concluded that it had subject matter jurisdiction in
those cases because Plaintiffs did not seek review of the decisions on their applications for
immigration benefits but instead sought review of the Government’s failure to issue a decision on
their applications because of USCIS’s adjudication hold policy set forth in PM-0192 and
PM-0194. See, e.g., Dkt. 35 at 11; Behdin, 2026 WL 1031079, at *6. Numerous other courts that
have considered the USCIS adjudication hold policies have since reached similar conclusions.
See, e.g., Dorcas, -- F. Supp. 3d --, 2026 WL 1622708, at *11-36 and cases cited therein.
As discussed in the PI Order in this case (see Dkt. 35 at 10-11), in Nakka v. USCIS, the
Ninth Circuit concluded that Ҥ 1252(a)(2)(B)(i) does not categorically strip federal district courts
of jurisdiction” to hear claims that “challenge generally applicable agency policies without
referring to or relying on denials of individual applications for relief.” Nakka v. USCIS, 111 F.4th
995, 999 (9th Cir. 2024); see also id. at 1009. As the Ninth Circuit explained in its subsequent
decision in Garcia v. USCIS, “Nakka [] concluded that Congress clearly indicated that it did not
intend § 1252(a)(2)(B)(i) to preclude district court jurisdiction over collateral policy and procedure
claims when not made in connection with a challenge to the denial of individual discretionary
relief.” Garcia v. USCIS, 146 F.4th 743, 749 (9th Cir. 2025) (internal quotation marks and
citations omitted). The Ninth Circuit held in both Nakka and Garcia that it could not hear such
“collateral” claims by the particular plaintiffs in those cases. In Nakka, a putative class action
challenging a USCIS policy relating to visa retrogression, “only one of the named Plaintiffs filed
an application for adjustment of status.” Nakka, 111 F.4th at 1010. The Ninth Circuit held that
the “non-filing” plaintiffs did not have ripe claims. Id. at 1010-11. Although the one “filing”
plaintiff had a ripe claim, the court lacked jurisdiction for a different reason: her application for
adjustment of status had been denied, so under 8 U.S.C. § 1252(a)(2)(D) her challenge was
“channeled” into a different, more limited review process. Id. at 1012, 1014-15. The plaintiff in
Garcia fell into the same category as the one “filing” plaintiff in Nakka because USCIS had
denied her application for adjustment of status. Garcia, 146 F.3d at 751.
At the time of the PI Order, the Court found that the Plaintiffs in this case fell into “a third
category not at issue in Nakka or Garcia: they have filed petitions for adjustment of status but
USCIS has not decided the petitions (and will not do so) because of the adjudication hold policy.”
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Dkt. 35 at 10-11. Following issuance of the PI Order, however, USCIS denied Plaintiffs’ I-485
and I-765 applications and issued NOIRs for both of Plaintiff Varniab’s approved I-140s. SAC at
1-2. The Government now attempts to characterize the claims in the SAC as relying for ripeness
on the USCIS’s denials of their immigration benefits applications. Therefore, the Government
argues, the Court lacks jurisdiction because Plaintiffs “are necessarily challenging USCIS’s
judgment, decisions, and finding.” See, e.g., Dkt. 56 at 12. Because the analysis of whether the
Court has subject matter jurisdiction depends in part on the legal theory underpinning each of the
claims in the SAC, the Court separately addresses Plaintiffs’ constitutional claims (the first and
second causes of action in the SAC) and their APA claims (the third and fourth causes of action in
the SAC).
a. First and Second Causes of Action: Constitutional Claims
The Government’s argument that Plaintiffs are “necessarily challenging USCIS’s
judgment, decisions, and finding” (Dkt. 56 at 12 (emphasis in original)) overlooks critical aspects
of the first and second causes of action in the SAC. In the first cause of action, Plaintiffs allege a
constitutional violation, specifically that “USCIS has an unannounced Policy of denying
immigration benefit requests—including adjustments of status—for litigants who successfully
challenge USCIS adjudication hold policies in federal court.” SAC ¶ 113. Plaintiffs allege that
“[t]he denials of Plaintiffs’ I-485 and I-765 applications are evidence of USCIS’s retaliatory
policy; it (sic) is not the object of this claim.” SAC ¶ 120. Plaintiffs claim that the alleged USCIS
policy is unconstitutional because it penalizes applicants for exercising their First Amendment
rights in bringing lawsuits like this one. SAC ¶¶ 122-140.
The second cause of action alleges another constitutional violation: denial of Plaintiff
Varniab’s I-485 application (which led to the denial of Plaintiffs’ other applications) and issuance
of NOIRs on her previously-approved I-140 petitions in retaliation for her exercise of her First
Amendment rights (participation in this lawsuit) and without an impartial adjudicator as required
by the Fifth Amendment’s Due Process Clause. Dkt. 49 ¶¶ 149-168.
The Ninth Circuit recently held that “we retain jurisdiction over colorable constitutional
claims that challenge the procedures used by the agency [USCIS].” Chairez v. Mayorkas,
168 F.4th 1227, 1237 (9th Cir. 2026) (per curiam) (emphasis in original). The Ninth Circuit held
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that its earlier decision in Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) “controls” on this
question. Id. The Government does not address Chairez or Poursina in its briefing on the motion
to dismiss. See Dkt. 56, 58-1.
One of the claims made by the plaintiff in Poursina concerned his request for a
national-interest waiver of a labor-certification requirement associated with his application for an
employment-based visa. Poursina, 936 F.3d at 876. USCIS denied the plaintiff’s application
when he did not respond to a request for evidence issued by the agency. Id. Plaintiff alleged that
he never received a copy of the request for evidence or the subsequent denial of his application
and therefore contended that the denial violated his right to due process. Id. Although the Ninth
Circuit ultimately rejected the plaintiff’s constitutional claim “on the merits,” it held that “[t]his
constitutional claim is not subject to § 1252(a)(2)(b)(ii)’s jurisdictional bar,” explaining that
“decisions that violate the Constitution cannot be discretionary, so claims of constitutional
violations are not barred by § 1252(a)(2)(B).” Id. (internal quotation marks and citation omitted).
In Chairez, the Ninth Circuit held that USCIS’s denial of a specific benefit (the plaintiff’s
request for a waiver of inadmissibility) fell within the jurisdiction-stripping provisions of section
1252(a)(2)(B)(ii). Chairez, 168 F.4th 1232. However, the plaintiff in Chairez had an additional
“constitutional claim” that USCIS “violated procedural due process because, he asserts, the
decision maker was biased against him.” Id. at 1237. The court in Chairez discussed the
distinction drawn in Poursina between claims asserting constitutional arguments and those
challenging discretionary agency decisions:
In Poursina, as here, the agency denied the waiver of a requirement for a visa; the
plaintiff then filed suit in district court; and we held that the statute granted
discretion to the agency, so the agency’s decision was generally unreviewable.
936 F.3d at 870-75. But we also held in Poursina that we retained jurisdiction over
the plaintiff’s constitutional argument that he had been deprived of due process
because he allegedly failed to receive notice from the agency. Id. at 875-76. We
held that “[t]his constitutional claim is not subject to § 1252(a)(2)(B)(ii)’s
jurisdictional bar,’ and we addressed the merits of the claim. Id. at 876.
168 F.4th at 1237 (emphasis in original). The court in Chairez likened the plaintiff’s
constitutional claim in that case to the one in Poursina in that it was “purely a procedural due
process claim challenging the agency’s process, not a claim challenging the underlying merits of
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the agency’s discretionary determination.” Id. (citations omitted).3 The majority in Chairez
concluded that Poursina is not in tension with Garcia or Nakka “because the plaintiff in Garcia
challenged the denial of her U visa only on statutory—not constitutional—grounds” and because
in Nakka “no plaintiff challenged the agency’s procedures in adjudicating a specific application.”
Chairez, 168 F.4th at 1237-39. The Ninth Circuit in Chairez thus concluded that “we have
jurisdiction to review Plaintiff’s procedural constitutional claim—if it is colorable.” Chairez, 168
F.4th at 1237.
The Ninth Circuit ultimately concluded that the plaintiff’s constitutional claim in Chairez
was “entirely speculative and not colorable.” Id. at 1238. Here, by contrast, the Court finds that
the constitutional claims set forth in the first and second causes of action are colorable,
considering the specific facts alleged in the SAC (see, e.g., SAC ¶¶ 112-168), as further explained
in Plaintiffs’ TRO Motion (see, e.g., Dkt. 81 at 10-13), and as discussed in the Court’s analysis of
Plaintiffs’ likelihood of success on those claims in section III.B.1. below. See Torres-Aguilar v.
I.N.S., 246 F.3d 1267, 1271 (9th Cir. 2001) (“To be colorable in this context, the alleged violation
need not be “substantial,” [] but the claim “must have some possible validity.” [] (citations
omitted)). Notably, the Government does not move to dismiss the SAC under Rule 12(b)(6) for
failure to state a claim and does not otherwise argue in the opening brief on the motion to dismiss
that the claims of the SAC are not colorable.4
Moreover, although the Government criticizes Plaintiffs’ claims based on the fact that their
3 The INA’s savings clause, § 1252(a)(2)(D), “channels” judicial review of certain constitutional
and legal claims into a petition for review from a final order of removal filed with the appropriate
court of appeals. 8 U.S.C. § 1252(a)(2)(D). However, in support of its holding in Chairez, the
Ninth Circuit cited Zadyvdas v. Davis, 533 U.S. 678, 688 (2001) as “rejecting the argument that
§ 1252(a)(2)(B) stripped jurisdiction over a procedural due process claim brought in district court
and addressing the merits.” Chairez, 168 F.4th at 1237 (emphasis added). Chairez thus indicates
that colorable constitutional claims challenging the procedures used by USCIS, such as the first
and second causes of action in this case, are properly brought in district court. See 168 F.4th at
1237-38; see also id. at 1238 (Bea, J., concurring) (stating that “the majority asserts … that
procedural due process claims as to agency actions which deny a requested visa status may be
brought in federal district court”).
4 The Government’s reply brief argues that even if the Court considers Plaintiffs’ constitutional
claims, those claims are “unsupported by facts” (Dkt. 58-1 at 1), but the Government did not make
this argument in its opening brief. In any event, the Court disagrees for the reasons discussed in
section III.B.1. below.
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immigration applications have been denied (see, e.g., Dkt. 56 at 8), the Ninth Circuit indicated in
Chairez that a plaintiff challenging agency polices must “challenge[] the agency’s procedures in
adjudicating a specific application.” Id. at 1238 (emphasis added). Here, Plaintiffs’ constitutional
claims do so. See, e.g., SAC ¶ 120 (alleging that denial of Plaintiffs’ I-485 and I-765 applications
“are evidence of USCIS’s retaliatory policy”); SAC ¶ 152 (challenging “the constitutionally
impermissible reason” for the USCIS’s decision to deny Plaintiff Varniab’s I-485 application).
The Court therefore concludes that it has subject matter jurisdiction over Plaintiffs’ first
and second causes of action because they set forth the type of constitutional claims over which the
Ninth Circuit has found jurisdiction in Chairez and Poursina. The first cause of action in the SAC
alleges that USCIS has an unconstitutional policy and practice of retaliating against applicants for
the exercise of their First Amendment rights. SAC ¶¶ 112-142. As explained in the PI Order,
section 1252(a)(2)(B) does not bar judicial review of categorical challenges to agency policies and
procedures concerning the adjudication of applications for immigration benefits. See generally
PI Order at 8-18. Other recent cases are in accord. See, e.g., Dorcas, 2026 WL 1622708, at * 11
(stating that “[t]he Government interprets [section 1252(a)(2)(B)(i) far too broadly” because “[i]n
the context of judicial review over immigration benefit determinations, the Supreme Court has
long differentiated between the direct review of individual denials of applications and general
collateral challenges to [unlawful] practices and policies used by the agency in processing
applications” (internal quotation marks and citations omitted)); id. at *13 and cases cited therein
(“As many courts have held, Section 1252(a)(2)(B)(ii)—much like Section 1252(a)(2)(B)(i)—bars
judicial review of orders denying discretionary benefits in individual cases, but the statute does
not foreclose categorical challenges to agency policies and procedures concerning the
adjudication of those benefits” (citations omitted; emphasis in original)). Of particular note, the
second cause of action in the SAC closely resembles the constitutional claim over which the Ninth
Circuit found jurisdiction existed in Chairez: just as Plaintiffs assert in the second cause of action
in this case (see SAC ¶¶ 143-168), the plaintiff in Chairez “argue[d] that the agency violated
procedural due process because, he asserts, the decision maker was biased against him.” Chairez,
168 F.4th at 1237.
Accordingly, the Government’s motion to dismiss the first and second causes of action is
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DENIED insofar as those causes of action relate to the denials of Plaintiffs’ Form I-465 and Form
I-785 applications. Plaintiffs’ constitutional claims relating to the NOIRs are discussed in section
II.B.1.c. below, where the Court also DENIES the Government’s motion to dismiss the first and
second causes of action insofar as they relate to the NOIRs.
b. Third and Fourth Causes of Action: APA Claims
The third and fourth causes of action allege violations of the APA, specifically violation of
5 U.S.C. § 706(2)(D) (third cause of action, SAC ¶¶ 169-174) and violation of 5 U.S.C.
§ 706(2)(A)-(C), (E), and (F) (fourth cause of action, SAC ¶¶ 175-182). As reflected in the
allegations of the SAC and Plaintiffs’ arguments in their opposition to the motion to dismiss, the
third and fourth causes of action allege that denial of Plaintiffs’ immigration benefit applications
and issuance of the NOIRs resulted from “legal errors” under the APA including: (1) the INA
does not require a job offer requirement for the EB-2 or EB-1A I-140s; (2) because there is no job
offer requirement, Plaintiff Varniab’s alleged representation about her future plans was not a
“material misrepresentation”; and (3) even if there is a job offer requirement, the Government
ignored the leniency and job portability provided by Congress to employment-based immigrants.
See Dkt. 57 at 6-7. Plaintiffs also allege “procedural violations” of the APA such as USCIS’s
denial of Plaintiff Varniab’s applications: (1) based on adverse information of which she was
unaware and without issuance of a request for evidence or Notice of Intent to Deny; and (2) by an
attorney rather than an adjudicator. See Dkt. 57 at 8. Plaintiffs contend that they are not
challenging USCIS’s fact-finding and argue that section 1252(a)(2)(B)(i)-(ii) does not strip the
Court of jurisdiction to review these “questions of law” and “procedural violations.” Dkt. 57 at
6-8.
This section will discuss Plaintiffs’ APA claims concerning the adjudication of their Form
I-485 applications for adjustment of status and Form I-765 applications for employment
authorization. The NOIR-related allegations are addressed in section II.B.1.c. below.
The Ninth Circuit’s recent decision in Chairez again provides useful guidance, this time
regarding the circumstances under which APA claims are subject to judicial review, by explaining
that the APA “does not apply when other ‘statutes preclude judicial review’ of the agency action
in question, or when the ‘agency action is committed to agency discretion by law.’” 168 F.4th at
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1231 (citing 5 U.S.C. § 701(a)). Chairez identifies 8 U.S.C. § 1252(a)(2)(B) as one of the
“statutes that preclude judicial review” as referenced in 5 U.S.C. § 701(a)(1). See 168 F.4th at
1231 (holding that “the APA’s express limitation that it does not apply when ‘statutes preclude
judicial review,’ 5 U.S.C. § 701(a)(1), applies whenever the agency action at issue falls within the
INA’s jurisdictional bar in section 1252(a)(2)(B)(ii).”). The Court has already concluded in
section II.B.1.a. above, that neither section 1252(a)(2)(B)(i) or (ii) preclude judicial review of
Plaintiffs’ constitutional claims in this case, but the Court must now determine whether either of
those subsections bar judicial review of Plaintiffs’ statutory APA claims.
One issue in Chairez was whether APA claims fell within section 1252(a)(2)(B)(ii), so the
Court will begin there. As discussed above and in Chairez, subsection (B)(ii) strips federal courts
of jurisdiction to review “any other decision or action of the … Secretary of Homeland Security
the authority for which is specified under this subchapter to be in the discretion of the …
Secretary.” 8 U.S.C. § 1252(a)(2)(B)(ii); see also 168 F.4th at 1231. Chairez characterizes this
provision as “expansive.” 167 F.4th at 1232. The Ninth Circuit held that judicial review was
precluded in that case under subsection (B)(ii) in because the statute at issue, which concerned the
plaintiff’s request for a waiver of admissibility, “allows the Secretary, in the Secretary’s
discretion, to waive certain requirements ‘if the Secretary of Homeland Security considers it to be
in the public or national interest to do so’” and thereby conferred discretion on the Secretary.
168 F.4th at 1232. The Ninth Circuit also explained that if “Congress signals” in the relevant
statute “that it is merely providing guidance to the agency in its exercise of discretion, the
discretionary judgment all as a whole falls within the jurisdiction-stripping provision of 8 U.S.C.
§ 1252(a)(2)(B)(ii),” distinguishing such statutes from those that “grant discretion to an agency,
but only if certain statutory requirements are met.” Id. at 1234.
In this case, the Government has identified statutes which, it contends, give USCIS
discretion to adjust the status of aliens and grant them employment authorization. See Dkt. 56 at
9-11 (citing 8 U.S.C. §§ 1324a(a)(1)(A), 1324a(a)(1)(h)(3), 1255).5 Plaintiffs attempt to cast their
5 Relevant to Plaintiffs’ applications for employment authorization, 8 U.S.C. § 1324a(a)(1)(A),
(h)(3) state that the Attorney General may authorize an alien for employment. The statute
concerning adjustment of status, 8 U.S.C. § 1255(a), states in relevant part that “[t]he status of an
alien who was inspected and admitted . . . into the United States . . . may be adjusted by the
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claims as seeking review not of discretionary decisions but of issues such as “legal errors that
resulted in a finding of a nondiscretionary denial” and imposing “a job offer requirement that does
not exist for I-140s.” See Dkt. 57 at 4-8. However, the Court finds that Plaintiffs have failed to
show that the APA claims in the SAC fall outside of the “expansive” scope of section
1252(a)(2)(B)(ii). See Chairez, 168 F.4th at 1232; see also Poursina, 936 F.3d at 875-86 (holding
that subsection (B)(ii) barred review of APA claims that USCIS regulations and precedential
decisions misinterpreted statutes regarding national interest waiver, that the agency failed to
consider certain evidence, and that the agency misinterpreted the evidence it did consider,
rejecting argument that those were “purely legal” decisions and finding instead that they were a
“core exercise of the discretion that the statute vests in the government” that are not subject to
judicial review).
Judicial review of Plaintiffs’ APA claims concerning their I-485 applications, as currently
pleaded, is barred for an additional reason. As explained in Chairez, section 1252(a)(2)(B)(i) and
(ii) “ deal with different sets of discretionary relief,” with subsection (B)(i) enumerating several
statutory provisions, none of which were at issue in that case. 168 F.4th at 1231. Here, by
contrast, denial of Plaintiffs’ Form I-485 applications for adjustment of status occurred under
8 U.S.C. § 1255, which is one of the statutes identified in subsection (B)(i). See 8 U.S.C.
§ 1252(a)(2)(B)(i). As presently pleaded, Plaintiffs’ APA claims regarding their I-485s concern
the “act of granting or denying an individual application for relief” under 8 U.S.C. § 1255, not
“collateral actions challenging general policies and procedures.” See Nakka, 111 F.4th at 1004,
1009; see also Garcia, 146 F.4th at 749. The jurisdictional bar of that section encompasses not
only the agency’s ultimate decision but also “factual findings,” meaning that federal courts are
precluded from reviewing “facts found as part of discretionary-relief proceedings.” Patel, 596
U.S. at 339, 347. Accordingly, judicial review of the APA claims in the SAC concerning denial of
Plaintiffs’ I-485 applications is also barred under subsection (B)(i).
Plaintiffs have failed to carry their burden of demonstrating that the Court has subject
Attorney General, in his discretion and under such regulations as he may prescribe, to that of an
alien lawfully admitted for permanent residence” if certain prerequisites are met.
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matter jurisdiction over the APA claims in the third and fourth causes of action concerning
adjudication of Plaintiffs I-485 and I-765 applications, as those claims appear in the SAC.
See Kokkonen, 511 U.S. at 377. The Government’s motion to dismiss for lack of subject matter
jurisdiction therefore is GRANTED as to the third and fourth causes of action in the SAC insofar
as those claims relate to denial of Plaintiffs I-485 and I-765 applications. Plaintiffs’ APA claims
relating to the NOIRs are discussed in section II.B.1.c. below, where the Court also GRANTS the
Government’s motion to dismiss the third and fourth causes of action insofar as they relate to the
NOIRs.
Other circuits have “recognized a narrow judicial path for challenging purely procedural
rulings” under the APA on immigration benefit applications or petitions that do not “implicate a
petition’s merits.” Doe v. McAleenan, 926 F.3d 910, 914-15 (7th Cir. 2019) (emphasis in
original); see also Kurapati v. USCIS, 775 F.3d 1255, 1262 (11th Cir. 2014) (distinguishing
between “judicial review of the I-140 revocation and judicial review of whether the agency
complied with the applicable administrative procedure in revoking the I-140” and holding that the
district court had jurisdiction to review the latter type of APA claim). As presently drafted,
Plaintiffs’ APA claims concerning the denials of their applications for adjustment of status and for
employment authorization do not identify procedural or legal issues that are sufficiently discrete
from the merits of the decisions on those applications. However, the Court grants Plaintiff
LEAVE TO AMEND the third and fourth causes of action if they wish to attempt to address this
deficiency and can do so in accordance with the Ninth Circuit authority discussed in this section.
The Court will discuss the timing and parameters of any such amendment at the June 18, 2026
preliminary injunction hearing.
c. Additional Jurisdictional Arguments Directed at NOIR Claims
The Government offers the following additional arguments as to why the Court lacks
jurisdiction over Plaintiffs challenges relating to the NOIRs: (1) those claims are not yet ripe
because Plaintiff Varniab’s approved I-140 petitions have not yet been revoked, and (2) even if
Plaintiffs can challenge revocation before it occurs, section 1252(a)(2)(B)(ii) strips the Court of
jurisdiction because under 8 U.S.C. § 1155, “Congress granted DHS discretionary authority to
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revoke any petition for status or classification ‘at any time’ for ‘what he (sic) deems to be good
and sufficient cause.’” Dkt. 56 at 10-11.6
Plaintiffs’ claims regarding the NOIRs again fall into two categories: APA claims (see,
e.g., SAC ¶¶ 172, 181) and constitutional claims (see, e.g.., id. ¶¶ 149, 154, 155, 159-160, 172,
173). The outcome on the Government’s ripeness argument is different for each category of
claims.
Plaintiff Varniab’s I-140 petitions had not been revoked and she had not exhausted the
administrative process, at least at the time the SAC was filed. See Dkt. 49-16, 49-17; see also Dkt.
56 at 10-11. Thus, the APA claims based on the NOIRs must be dismissed either because they are
not ripe or she has not exhausted her administrative remedies. Adab v. USCIS, No. 15-248 (JEB),
2017 WL 4358686, at *5 (D.D.C. Sep. 29, 2017) (dismissing suit based on issuance of NOIRs as
not ripe because USCIS had initiated revocation proceedings but plaintiff might convince the
agency not to revoke her petition); Diakite v. USCIS, No. 23-cv-00725 (ALC), 2024 WL 1053610,
at *3 (S.D.N.Y. Mar. 11, 2024) (dismissing suit for mandamus relief concerning NOIRs because
plaintiff had not exhausted administrative remedies or pleaded an exception). Because the APA
claims concerning the NOIRs are not yet ripe or suitable for determination, the Court does not
reach the issue of whether it would have subject matter jurisdiction over APA claims concerning
revocation of Plaintiff Varniab’s I-140s.
By contrast, under the circumstances of this case, the Court concludes that Plaintiffs’
constitutional claims concerning the NOIRs, which allege that the NOIRs were issued in
retaliation for Plaintiffs’ exercise of their First Amendment rights, are ripe. See Gorbach v. Reno,
219 F.3d 1087, 1091-91 (9th Cir. 2000) (rejecting argument that claims, including due process
claims, brought by recipients of NOIRs concerning Attorney General’s authority to issue
regulations concerning revocation of naturalization were not ripe “because these are individuals
against whom proceedings are pending under the new regulations, and who would have to defend
themselves effectively or lose their citizenship in the administrative proceedings were it not for the
6 8 U.S.C. § 1155 provides that “[t]he Secretary of DHS may, at any time, for what he deems to be
good and sufficient cause, revoke the approval of any petition approved” under 8 U.S.C. § 1154.
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injunction that they have obtained, they have standing to challenge the authority of the Attorney
General to promulgate the new regulations.”); see also Gorbach v. Reno, 179 F.3d 1111, 1116 (9th
Cir.), reh'g granted, opinion withdrawn, 192 F.3d 1329 (9th Cir. 1999), and on reh'g en banc, 219
F.3d 1087 (9th Cir. 2000) (identifying nature of claims in the case, including due process claims).
Moreover, regardless of whether USCIS has discretion to revoke approved I-140 petitions, it does
not have discretion to violate the Constitution. Poursina, 936 F.3d at 876. For the reasons
discussed in section II.B.1.a. above, the Court has jurisdiction over Plaintiffs’ constitutional claims
concerning the NOIRs.
Accordingly, the Government’s motion to dismiss as unripe the third and fourth causes of
action (APA claims) as they relate to Plaintiffs’ challenge to the NOIRs is GRANTED. The
Government’s motion to dismiss the first and second causes of action (constitutional claims) as
they relate to Plaintiffs’ challenge to the NOIRs is DENIED.
2. Fifth Cause of Action: Writ of Mandamus, 28 U.S.C. § 1361 and
With respect to Plaintiffs’ fifth cause of action seeking mandamus relief, the Government
argues that courts lack mandamus jurisdiction in the immigration context when “the application at
issue has been denied and there is no outstanding duty the court could compel.” Dkt. 56 at 12-13.
The SAC alleges that the Government has a duty stemming from the due process requirements of
the Fifth Amendment to adjudicate their applications and NOIRs without bias or retaliation.
See, e.g., SAC ¶¶ 196-189. District courts have mandamus jurisdiction to enforce constitutional
duties. Kapp v. Shweiker, 556 F. Supp. 16, 23 (N.D. Cal. 1981) (denying motion to dismiss
mandamus claim, finding that court had jurisdiction where plaintiff alleged that his constitutional
due process rights were violated by Secretary of Health and Human Services’ failure to allow him
a hearing on his application for Social Security benefits). Accordingly, the Government’s motion
to dismiss the fifth cause of action is DENIED.
3. Sixth Cause of Action: All Writs Act, 28 U.S.C. § 1651
The Government argues that the Court lacks subject matter jurisdiction over Plaintiffs’
sixth cause of action under the All Writs Act because the court’s power to issue writs “is
contingent on that court’s subject-matter jurisdiction over the case or controversy,” which the
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Government argues is lacking here. Dkt. 56 at 13. As discussed above, the Court has subject
matter jurisdiction over several claims in this case. Accordingly, the Government’s motion to
dismiss the sixth cause of action is DENIED.
4. Seventh Cause of Action: Bivens Claim
The seventh cause of action in the SAC purported to assert a Bivens claim against
Defendants Hannah Lam, Carrie M. Selby, and Jane Does 1-10. SAC ¶¶ 195-198. In the motion
to dismiss the SAC, the Government characterized the Bivens claim as being brought against the
individual Defendants in their individual capacity because a “Bivens action can be maintained
against a defendant in his or her individual capacity only, and not in his or her official capacity.”
Dkt. 56 at 14 (quoting Consejo De Desarrollo Economico De Mexicali, A.C. v. United States, 482
F.3d 1157, 1173 (9th Cir. 2007) (citation omitted)); see also Ardalan v. McHugh, No. 13-cv-
01138-LHK, 2012 U.S. Dist. LEXIS 169470, at *32 (N.D. Cal. Nov. 27, 2013) (“Bivens suits
against federal employees acting in their official capacities are barred by sovereign immunity, and
the Court lacks subject matter jurisdiction to hear such claims” (emphasis in original). In their
opposition to the motion to dismiss, Plaintiffs did not dispute this analysis, thereby effectively
conceding that their Bivens claim was brought against the individual Defendants in their individual
capacities. See Dkt. 57 at 13-14. Plaintiffs subsequently voluntarily dismissed all claims against
the individual Defendants in their individual capacities. Dkt. 74. Accordingly, the motion to
dismiss the Bivens claim is DENIED AS MOOT because Plaintiffs have already dismissed that
claim.
5. Eighth through Eleventh Causes of Action: FTCA Claims
Plaintiffs concede that they have not yet exhausted their administrative remedies on the
FTCA claims contained in the eighth, ninth, tenth, and eleventh causes of action in the SAC
(see Dkt. 57 at 14), and those causes of action are therefore DISMISSED WITHOUT
PREJUDICE.
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6. Conclusion on the Government’s Motion to Dismiss the SAC
For the reasons discussed above, the Court ORDERS as follows:
1. The third and fourth causes of action are DISMISSED WITH LEAVE TO
AMEND.
2. The Government’s motion to dismiss the seventh cause of action is DENIED AS
MOOT because Plaintiffs have already dismissed that claim.
3. The eighth, ninth, tenth, and eleventh causes of action are DISMISSED
WITHOUT PREJUDICE.
4. Except as specified above, the Government’s motion to dismiss the SAC is
DENIED.
******
III. PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING
ORDER OR TEMPORARY INJUNCTION
On June 9, 2026, Plaintiffs filed an emergency motion seeking a temporary restraining
order or temporary injunction as follows:
(1) lifting the denial decisions on Plaintiffs’ I-485s and I-765s;
(2) ceasing further action on Plaintiff Varniab’s I-140s;
(3) compelling the Government to adjudicate Plaintiffs’ I-765 applications and deliver
EADs to them within 7 days, and/or otherwise provide employment authorization
so Plaintiff Varniab can start her residency by June 22, 2026;
(4) directing the Government either to re-adjudicate the I-485s within 90 days or to file
a status report identifying remaining adjudicatory steps and a date certain for
decisions; and
(5) enjoining DHS and/or ICE from taking any action against Plaintiffs during the
pendency of this action including any possible appeal process.
Dkt. 81 (the “TRO Motion”).
Plaintiffs gave notice of the Government of the TRO Motion, and the Government filed a
response the same day, stating that it opposes the motion because the Court lacks subject matter
jurisdiction for the reasons briefed in connection with the Government’s Motion to Dismiss the
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SAC. Dkt. 83.
For the reasons that follow, Plaintiffs’ TRO Motion is GRANTED IN PART and
DENIED IN PART.
A. LEGAL STANDARD
The “legal standards applicable to TROs and preliminary injunctions are substantially
identical.” Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017) (internal quotation
marks and citation omitted). “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). Its purpose is to
maintain the “status quo ante litem”—that is, “the last uncontested status which preceded the
pending controversy”—pending a decision on the merits. GoTo.com, Inc. v. Walt Disney Co.,
202 F.3d 1199, 1210 (9th Cir. 2000) (finding “status quo ante litem” in trademark infringement
suit “existed before [the defendant] began using its allegedly infringing logo”) (internal quotation
marks and citation omitted).
To obtain a TRO or preliminary injunction, Plaintiffs must establish that: (1) they are
likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the
public interest. Winter, 555 U.S. at 20. A showing on all four Winter factors is required.
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). However, the Ninth
Circuit takes a “sliding scale” approach, under which “the elements of the preliminary injunction
test are balanced, so that a stronger showing of one element may offset a weaker showing of
another.” Id. at 1131; see also Planned Parenthood Great Nw., Hawaii, Alaska, Indiana,
Kentucky v. Labrador, 122 F.4th 825, 843–44 (9th Cir. 2024). Specifically, “a preliminary
injunction may issue where ‘serious questions going to the merits were raised and the balance of
hardships tips sharply in plaintiff’s favor’ if the plaintiff ‘also shows that there is a likelihood of
irreparable injury and that the injunction is in the public interest.’” Planned Parenthood, 122
F.4th at 844 (quoting Cottrell, 632 F.3d at 1135).
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B. TRO FACTORS
1. Likelihood of success
For the reasons discussed above in connection with the Government’s motion to dismiss
the SAC, the Court concludes it has subject matter jurisdiction over Plaintiffs’ first and second
causes of action (constitutional claims), and fifth and sixth causes of action (writ of mandamus/All
Writs Act).
At a minimum, Plaintiffs have demonstrated that they are likely to succeed on the First
Amendment retaliation theories set forth in the first and second causes of action.
Plaintiffs claim that USCIS retaliated against them for filing this lawsuit by denying their
I-485 and I-765 applications and by issuing the NOIRs. See SAC ¶¶ 112-168. “A plaintiff
claiming First Amendment retaliation must show that (1) [she] was engaged in a constitutionally
protected activity, (2) the defendant’s actions would chill a person of ordinary firmness from
continuing to engage in the protected activity and (3) the protected activity was a substantial or
motivating factor in the defendant’s conduct.” Los Angeles Press Club v. Noem, 171 F.4th 1179,
1188 (9th Cir. 2026) (quoting AFGE v. Trump, 148 F.4th 648, 654 (9th Cir. 2025) (per curiam).
Plaintiffs’ filing and prosecution of this lawsuit are constitutionally protected activities.
Supreme Court precedent “confirm[s] that the Petition Clause” in the First Amendment “protects
the right of individuals to appeal to courts and other forums established by the government for
resolution of legal disputes.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 386 (2011). “It has
long been recognized that resident aliens enjoy the protections of the First Amendment.” Price v.
U.S. I.N.S., 962 F.2d 836, 841 (9th Cir. 1991) (citations omitted).
Plaintiffs have demonstrated that they are likely to succeed in showing that the
Government’s actions in denying their applications for immigration benefits and in issuing the
NOIRs could reasonably be expected to have a chilling effect on the exercise of the right to
petition courts for the redress of grievances, including identifying lawsuits that they claim have
been dismissed by plaintiffs fearing retaliation and social media posts in which immigrants
express fears about filing litigation against the Government. SAC ¶¶ 131, 136; Dkt. 49-9.
The third factor, which requires a showing that First Amendment activity was a
“substantial or motivating factor” in the Government’s action against them, generally “can be met
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with either direct or circumstantial evidence.” Los Angeles Press Club, 171 F.4th at 1188-89
(internal quotation marks and citations omitted). Plaintiffs have demonstrated a likelihood of
success on their allegation that their protected activity in filing and prosecuting this lawsuit was a
substantial or motivating factor in taking adverse action on their immigration applications.
Plaintiffs’ evidence in support of this allegation includes USCIS’s letters denying Plaintiffs’ Form
I-485 and I-765 applications and the NOIRs issued by USCIS, which repeatedly refer to the
declaration Plaintiff Varniab filed in this case and use that declaration as evidence of her supposed
misrepresentations. Dkt. 44-1. Plaintiffs also allege that when they were interviewed by USCIS,
the interviewer exhibited knowledge of this lawsuit and stated that an attorney would make the
decision on Plaintiffs’ applications. Plaintiffs identify other alleged irregularities in the processing
of their applications. See, e.g., SAC ¶¶ 60-61, 70-92. Moreover, Plaintiffs offer evidence of a
statement made by the Government in a brief filed in other litigation regarding the policies at issue
here several weeks before USCIS denied Plaintiffs’ applications, stating that if a court were to
order “premature adjudication … without completed security screening, the result will be for
USCIS to deny the application or petition …” Dkt. 49-3.
The Government based its opposition to the TRO Motion purely on jurisdictional grounds
and has not argued that Plaintiffs are unlikely to succeed on the merits of their claims. See
Dkt. 82.
Based on the record before the Court, it concludes that Plaintiffs are likely to succeed on
the First Amendment retaliation-based claims in their first and second causes of action.
2. Irreparable harm
The PI Order extensively discussed the type of irreparable harm that can stem from even a
delay in processing immigration benefit applications. See Dkt. 35 at 37-40. Such harms are even
more pronounced where, as here, immigration benefit applications have been denied. Plaintiff
Varniab has demonstrated that she faces imminent irreparable harm in the absence of immediate
injunctive relief because she has an offer to begin a medical residency on June 22, 2026, but needs
employment authorization to do so. See Dkt. 29-1; Dkt. 42-3. Plaintiff Langroudi’s previous
employment authorization expired on March 31, 2026, and his application for new employment
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authorization was denied following the Court’s issuance of the preliminary injunction. As
explained in the PI Order, in the Ninth Circuit, the loss of opportunity to pursue one’s chosen
profession constitutes irreparable harm. PI Order at 38-39 and cases cited therein.
Not only have these and other harms to Plaintiffs been crystallized by the denial of their
I-485 and I-765 applications, but as discussed above Plaintiffs have demonstrated that they are
likely to succeed on their claims that their constitutional rights have been violated. “It is well
established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable
injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976)).
Further adverse action, such as revocation of the previously-approved I-140s, Plaintiffs’
accrual of unlawful status, or the initiation of immigration proceedings that might result in their
detention, removal, or deportation, will cause Plaintiffs additional irreparable harm. Doe v. Noem,
778 F. Supp. 3d 1151, 1164-65 (W.D. Wash. 2025) (citing Dep’t of Homeland Sec. v. Regents of
the Univ. of Cal., 591 U.S. 1, 140 S. Ct. 1891 (2020)); see also Melendres, 695 F.3d at 1002
(concluding that plaintiffs’ reasonable fear of being subject to unlawful detention may constitute
irreparable harm); Dorcas, 2026 WL 1622708, at *33.
The Government based its opposition to the TRO Motion purely on jurisdictional grounds
and has not argued that Plaintiffs do not face irreparable harm. See Dkt. 82.
Accordingly, Plaintiffs have demonstrated that they will suffer irreparable harm in the
absence of a TRO that authorizes Plaintiffs to work and prohibits further adverse immigration
actions against them while this lawsuit proceeds.
3. Balance of equities and public interest
Where, as here, the Government is a party, the “balance of equities” and “public interest”
factors “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiffs raise “serious First
Amendment questions, ... [so] the balance of hardships tips sharply in [their] favor.” Los Angeles
Press Club, 171 F.4th at 1190 (citations omitted). The Ninth Circuit has made clear that “it is
always in the public interest to prevent the violation of a party's constitutional rights” and has
“consistently recognized the significant public interest in upholding First Amendment principles.”
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Los Angeles Press Club, 171 F.4th at 1190 (citations omitted). As discussed above, Plaintiffs’
original challenges to the USCIS’s adjudicative hold policies have been validated in this case and
others, and they are likely to succeed on their claims that the Government retaliated against them
for bringing this litigation. They will likely suffer irreparable harm in the absence of an injunction
while this case proceeds.
The Government based its opposition to the TRO Motion purely on jurisdictional grounds
and has not argued that the balance of equities or the public interest tip in favor of the
Government. See Dkt. 82.
Accordingly, the balance of equities and the public interest favor issuance of a TRO that
authorizes Plaintiffs to work and prohibits further adverse immigration actions against them while
this lawsuit proceeds.
C. RELIEF
Plaintiff’s TRO Motion is GRANTED IN PART and DENIED IN PART WITHOUT
PREJUDICE. The Court ORDERS as follows:
1. Defendants and all of their respective officers, agents, servants, employees, attorneys, and
any person in active concert or participation with them who receive actual notice of this
Order are ORDERED to take all steps necessary to deliver an Employment Authorization
Document (“EAD”) or other employment authorization to Plaintiffs Zahra Shokri Varniab
and Ashkan Pourabhari Langroudi by June 16, 2026 at 5:00 p.m. Pacific Daylight Time.
The employment authorization issued to Plaintiff Varniab must be sufficient in scope and
duration to permit her to commence her medical residency on June 22, 2026. The
employment authorizations issued to both Plaintiffs may not expire sooner than one year
from issuance.
2. Defendants and all of their respective officers, agents, servants, employees, attorneys, and
any person in active concert or participation with them who receive actual notice of this
Order are ENJOINED from taking any further action on Plaintiffs’ previously-approved I-
140s.
3. Defendants and all of their respective officers, agents, servants, employees, attorneys, and
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any person in active concert or participation with them who receive actual notice of this
Order are ENJOINED from taking any action in connection with the deportation, removal,
or detention for immigration violations of Plaintiffs or either of them.
4. Counsel for Defendants must provide written notice of this Order to all officers, agents,
servants, and employees of Defendant with responsibility for the foregoing matters by
June 15, 2026 at 5:00 p.m. Pacific Daylight Time. Defendants must file a copy of the
notice on the docket at the same time, and the notice filed with the Court must identify the
first initial and last name, agency, and job title of all recipients of the notice. Defendants’
notice may be filed under seal.
5. Plaintiffs’ other requests for temporary relief are DENIED WITHOUT PREJUDICE to
their ability to seek additional temporary or preliminary injunctive relief during the
pendency of this action.
6. Defendants are ORDERED TO SHOW CAUSE, in writing and on or before June 16,
2026 at 5:00 p.m. Pacific Daylight Time, why a preliminary injunction incorporating the
terms of this Order should not issue.
7. The videoconference hearing on June 18, 2026 at 10:00 a.m., previously set on the
Government’s motion to dismiss, is hereby CONVERTED to a preliminary injunction
hearing.
8. This Order SHALL take effect immediately and shall remain in effect through and
including June 24, 2026 at 11:59 p.m. Pacific Daylight Time unless modified by the
Court.
9. The Court finds that a bond is not required for this temporary restraining order under
Federal Rule of Civil Procedure 65(c) because the Government did not request a bond or
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submit any evidence that it is likely to suffer damages from the injunction. See
Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir.
2003).
SO ORDERED.
Dated: June 12, 2026
SUSAN VAN KEULEN
United States Magistrate Judge
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