Favela Pacheco et al v. Blanche et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
NAVOR FAVELA PACHECO, et al.,
Plaintiffs,
v.
TODD BLANCHE, et al.,
Defendants.
Case No. 26-cv-11283-AMO
ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER
Re: Dkt. No. 5
Before the Court is a motion for temporary restraining order (“TRO”). Plaintiffs Navor
Favela Pacheco (“Mr. Favela”), Ofelia Favela Soto (“Mrs. Favela”), and their U.S. citizen
daughter Ofelia “Bella” Favela Soto (“Bella”) seek an order under the Administrative Procedures
Act (“APA”) postponing the effective date of the government’s rescission of the “Expedite
Policy.” The matter is fully briefed and suitable for decision without oral argument. Accordingly,
the hearing set for October 16, 2026, is VACATED. See Civil L.R. 7-1(b), Fed. R. Civ. Pro.
78(b). Having read the parties’ papers and carefully considered their arguments and the relevant
legal authority, the Court DENIES Plaintiffs’ motion for the following reasons.
I. BACKGROUND
Plaintiffs are citizens and nationals of Mexico residing in the United States for over 20
years. Mr. Favela has resided in the United States since February 2000, and Mrs. Favela since
April 2001. They are married and have two children together, both of whom are citizens of the
United States. Dkt. No. 1 (“Compl.”) ¶¶ 82-83. Plaintiffs’ 20-year-old daughter, Ofelia “Bella”
Favela Soto is a United States citizen born on October 22, 2005, who has lived her entire life in
her parents’ care. Bella was identified at birth with bilateral, profound, sensorineural hearing loss.
Dkt. No. 1-2 at 1. Bella has faced a range of health issues since that diagnosis, and she
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significantly relies on her parents. Bella’s evaluating psychologist identified Bella’s parents as a
protective factor essential to her development and concluded that separation from them would be
highly detrimental to her psychological, physical, developmental, and educational well-being. Id.
at 69. Bella will turn 21 years old on October 22, 2026.
Mr. and Mrs. Favela are presently in removal proceedings before the San Francisco
Immigration Court. The proceedings commenced with Notices to Appear (NTA) dated May 15,
2020, issued after the San Francisco Asylum Office denied their asylum applications. Dkt. No. 1-
3 at 2-3. Plaintiffs applied for cancellation of removal, and their merits hearing took place on
April 26, 2023, and July 27, 2023. Dkt. No. 1-3 at 20, 22.
On July 27, 2023, the Immigration Judge (“IJ”) indicated that he would reserve his
decision to grant Plaintiffs’ applications for cancellation of removal until a visa became available
for them. Dkt. No. 1-6 at 34. Cognizant that Bella was then 17 and that the wait for a visa
number would likely exceed four years, the IJ advised Plaintiffs’ counsel to file a motion for an
expedited decision before Bella turned 21: “So it might be in your interest to try to expedite. This
case. I think there’s some time here. . . . So maybe, you know, a year before she turns you might
want to get moving on it to be on the safe side.” Dkt. No. 1-6 at 35-37. The IJ explained that the
decision would be “not my call,” as he would have to ask his superiors whether they would “go
along with it.” Id. at 36. DHS, for its part, stated that it would not appeal a grant based on
hardship to Bella. Id. at 36.
Because only 4,000 people annually may be granted cancellation of removal relief of the
type sought by Plaintiffs, a grant number is normally not available at the time of hearing. 8 U.S.C.
§ 1229b(b)(1). Due to the ever-present backlog, the agency places people with a “reserved”
decision on a waiting list for when a number becomes available. 8 U.S.C. § 1229b(e), 8 C.F.R.
§ 1240.21.
Plaintiffs allege the “Expedite Policy” allowed an IJ to issue a final grant before a
qualifying child turned 21 when the applicant’s place in the queue made adjudication of the
cancellation of removal prior to the qualifying child’s birthday unlikely. In all cases in which the
Expedite Policy is implicated, an IJ has necessarily completed a hearing on the merits and
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indicated an intention to grant relief because of the exceptional and extremely unusual impact on
the child of their parents’ removal. Such expedited, or “out-of-order,” grants utilized one of 500
visa numbers reserved each fiscal year for detained cases and other humanitarian purposes from
the annual allotment of 4,000 grants. The Expedite Policy was not published in the Federal
Register, the EOIR Policy Manual, or other publicly accessible government sources, it was
implemented and treated within EOIR as an established policy and procedure.
In early 2025, the Assistant Chief Immigration Judge (ACIJ) informed IJs in San Francisco
that the Expedite Policy was suspended and that the Office of the Chief Immigration Judge would
not respond to requests for expedited or out of order visa numbers. Dkt. No. 1-5 at 48, 51, 56.
On September 16, 2026, Plaintiffs filed an emergency motion for an expedited decision on
their EOIR-42B, Application for Cancellation of Removal for Certain Non-Legal Permanent
Residents, in anticipation of Bella’s 21st birthday on October 22, 2026. Dkt. No. 1-4. The motion
remains pending.
II. DISCUSSION
Plaintiffs seek a temporary restraining order to postpone the effective date of the
government’s rescission of the Expedite Policy for cancellation of removal. See Dkt. No. 5. The
standard for issuing a temporary restraining order is substantially identical to the standard for
issuing a preliminary injunction. Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017).
Thus, a party seeking a temporary restraining order must establish “[1] that he is likely to succeed
on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,
[3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Alternatively, movants
may show “serious questions going to the merits” and a balance of hardships that tips sharply in
their favor, provided that the other elements are satisfied. All. for Wild Rockies v. Cottrell, 632
F.3d 1127, 1134-35 (9th Cir. 2011). “Where, as here, the party opposing injunctive relief is a
government entity, the third and fourth factor – the balance of equities and the public interest –
merge.” Hubbard v. City of San Diego, 139 F.4th 843, 854 (9th Cir. 2025) (citation & internal
quotation marks omitted).
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Defendants contend that Plaintiffs cannot show a likelihood of success on the merits
because Title 8 U.S.C. § 1252 strips the District Court of jurisdiction over issues arising from
removal proceedings, like the application of the Expedite Policy. Under Title 8 U.S.C.
§ 1252(a)(5), “a petition for review filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for judicial review of an order of removal
entered or issued under any provision of this chapter[.]” Further, Title 8 U.S.C. § 1252(b)(9),
entitled “[c]onsolidation of questions for judicial review” states:
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter shall
be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall
have jurisdiction . . . to review such an order or such questions of
law or fact.
8 U.S.C. § 1252(b)(9). These judicial review provisions “were designed to make perfectly clear
‘that only courts of appeals – and not district courts – could review a final removal order,’ that
‘review of a final removal order is the only mechanism for reviewing any issue raised in a removal
proceeding,’ and that the statute was ‘intended to preclude all district court review of any issue
raised in a removal proceeding.’ ” J.E.F.M. v. Lynch, 837 F.3d 1026, 1034 (9th Cir. 2016)
(quoting H.R. Rep. No. 109-72, at 173).
The distinction between claims arising from removal proceedings and independent claims
turns on the relief sought. Martinez v. Napolitano, 704 F.3d 620, 622-23 (9th Cir. 2012). For
example, in Martinez, the court held that a plaintiff’s APA challenge to the Board of Immigration
Appeals’ denial of asylum, withholding of removal, and relief under the Convention Against
Torture was an impermissible attempt to review the removal order. Id., 704 F.3d at 621-22. And
in another case, the Ninth Circuit held that claims about the right to counsel in removal
proceedings were subject to the petition-for-review process rather than review in district court.
J.E.F.M., 837 F.3d at 1029, 1035.
Claims “inextricably linked” to the removal order are reviewable only through a petition to
the Ninth Circuit. Martinez, 704 F.3d at 623. A challenge to the statutory cap for cancellations of
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removal necessarily implicates the 4,000-grant cap and “arises from” the removal proceedings.
Gomez v. McAleenan, No. 19-CV-04199-JCS, 2019 WL 5722619, at *3-4 (N.D. Cal. Nov. 5,
2019). In Gomez, the plaintiff sought cancellation of removal due to hardship to her son, and she
was placed in the queue after the cap was reached. Id. at *1. The court dismissed her federal
lawsuit for lack of jurisdiction because the challenge to agency procedures was inextricably linked
to the removal order. Id. at *1, *4 (rejecting argument that Title 8 U.S.C. § 1252 did not govern
because a removal order had not been issued).
Here, the Court begins by reviewing the relief sought to determine whether Plaintiffs’
claims arise from removal proceedings or are independent claims. See Martinez, 704 F.3d at 622-
23. Plaintiffs request a TRO
postponing the effective date of the challenged Rescission of the
cancellation of removal Expedite Policy . . . and all action
reasonably necessary to ensure plaintiffs and other impacted parties
receive the opportunity to benefit from the policy, including by
processing Plaintiffs’ pending September 16, 2026 motion to
expedite under the Policy before Bella’s twenty-first birthday on
October 22, 2026.
Dkt. No. 5 at 30. Plaintiffs, in essence, seek cancellation of removal based on the Expedite Policy.
Contrary to Plaintiffs’ repeated argument that this APA action is collateral to their removal
proceedings, Dkt. No. 5 at 15-25 & Dkt. No. 17, these Plaintiffs’ requested relief is inextricably
linked to their removal proceedings. Gomez, 2019 WL 5722619, at *3-4; see also Gomez Alvarez
v. Blanche, No. 26-CV-06530-LB, 2026 WL 2395237, at *4 (N.D. Cal. Aug. 17, 2026) (rejecting
identical argument that APA challenge was collateral to removal proceedings); Suarez Soto v.
Blanche, No. 3:26-CV-01700-JSC, 2026 WL 1454308, at *7-8 (N.D. Cal. May 22, 2026) (same).
Because Plaintiffs’ claims arise from their removal proceedings, the Court lacks jurisdiction over
this APA action. 8 U.S.C. § 1252(b)(9). Therefore, the Plaintiffs cannot demonstrate a likelihood
of success or a serious question as to the merits of their claims.
//
//
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III. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs’ motion for a TRO. The Court
ORDERS the parties to file a joint statement proposing a schedule for disposition of the action or
stipulating that the reasoning of this Order warrants dismissing the action for lack of jurisdiction
and entering judgment. The parties’ joint statement shall be filed by October 29, 2026.
IT IS SO ORDERED.
Dated: October 15, 2026
ARACELI MARTÍNEZ-OLGUÍN
United States District Judge
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