Unreported / Non-Citable
Background
Navor Favela Pacheco, Ofelia Favela Soto, and their U.S.-citizen daughter Bella sought an order under the Administrative Procedure Act postponing the government's rescission of the "Expedite Policy." The parents, citizens and nationals of Mexico living in the United States for over 20 years, were in removal proceedings before the San Francisco Immigration Court; their asylum applications had been denied and they had applied for cancellation of removal. Bella, identified at birth with bilateral, profound, sensorineural hearing loss, significantly relied on her parents, and her evaluating psychologist called them a protective factor essential to her development, concluding that separation would be highly detrimental to her well-being.
In 2023 the immigration judge reserved decision on the parents' cancellation applications until a visa number became available, because only 4,000 people annually may receive that relief and reserved cases sit on a waiting list. He advised counsel to seek an expedited decision before Bella turned 21 on October 22, 2026. Plaintiffs allege the Expedite Policy allowed out-of-order final grants before a qualifying child's 21st birthday using visa numbers reserved for detained and humanitarian cases, and that it was never published in the Federal Register or EOIR manual. In early 2025 the policy was suspended, and on September 16, 2026 plaintiffs filed an emergency expedite motion that remained pending.
In district court they sought a TRO postponing the rescission and requiring processing of their expedite motion before Bella's birthday. The matter was fully briefed, the October 16, 2026 hearing was vacated, and the court denied the motion.
The Court’s Holding
The court applied the preliminary-injunction standard, which is substantially identical for a TRO: likely success on the merits, likely irreparable harm, favorable equities, and the public interest, with the alternative serious-questions formulation; the equities and public-interest factors merge when the government opposes relief. The decisive issue was likelihood of success, because defendants argued that 8 U.S.C. § 1252 strips the district court of jurisdiction over issues arising from removal proceedings: § 1252(a)(5) makes a court-of-appeals petition the exclusive means of reviewing a removal order, and § 1252(b)(9) channels all questions arising from removal actions into review of a final order.
Under Martinez v. Napolitano, the distinction between independent claims and claims arising from removal proceedings turns on the relief sought, and claims inextricably linked to a removal order are reviewable only by petition to the Ninth Circuit. The court also relied on Gomez v. McAleenan, which dismissed a challenge to the cancellation-of-removal queue for lack of jurisdiction even though no removal order had issued. Here the requested TRO sought processing of the plaintiffs' expedite motion before Bella turned 21, so the plaintiffs were, in the court's words, "in essence, seek[ing] cancellation of removal based on the Expedite Policy." The court cited two other Northern District of California decisions rejecting the same collateral-action argument.
The court held that the claims arose from the removal proceedings, that it lacked jurisdiction under § 1252(b)(9), and that plaintiffs therefore could not demonstrate likely success or a serious question on the merits. It denied the TRO but did not itself dismiss the action or enter judgment; instead it ordered the parties to file a joint statement by October 29, 2026, proposing a disposition schedule or stipulating that the order's reasoning warranted dismissal for lack of jurisdiction and entry of judgment.
Key Takeaways
- The court denied the TRO because the requested relief was tied directly to obtaining cancellation of removal, not because it resolved the lawfulness of the Expedite Policy's rescission.
- Under 8 U.S.C. § 1252(b)(9), claims arising from removal proceedings cannot establish likely success or a serious merits question in district court.
- The request to process the family's expedite motion before Bella's 21st birthday was central to the conclusion that the APA challenge was inextricably linked to removal.
- Final disposition remained open: the court ordered a joint statement proposing either a schedule or a stipulation supporting jurisdictional dismissal and judgment.
Why It Matters
The decision shows how the relief requested in an APA complaint determines whether a district court may hear a challenge connected to immigration proceedings. Although framed as a challenge to rescission of an agency policy, the request sought concrete processing that could lead to cancellation of removal for these plaintiffs, placing the controversy in the statutory petition-for-review channel rather than an independent collateral action.
The ruling was an interim denial of emergency relief, not a final judgment or a merits adjudication of the Expedite Policy. Its express jurisdictional reasoning nevertheless cast doubt on the action's future, while the joint-statement requirement left the parties to address whether dismissal should follow.