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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

ASHOK KUMAR CHEEJATI, ET AL.

v.

ANTONY BLINKEN, Secretary, 

United States Department of State, 

ET AL.

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§

§

§

§

§

§

CIVIL NO. 4:23-CV-600-SDJ

MEMORANDUM OPINION AND ORDER

Plaintiffs in this case are thirty-two Indian nationals with approved immigrant 

visas, each of whom has applied for an adjustment of status to become a lawful 

permanent resident of the United States—that is, a green card holder. Plaintiffs have 

sued the United States Department of State (DOS) and United States Citizenship 

and Immigration Services (USCIS), generally complaining of undue delays in the 

adjudication of their green-card applications. 

But before the Court today is a much larger ask than an order compelling the 

accelerated disposition of these Plaintiffs’ green-card applications. Plaintiffs have 

filed their “Motion for a Temporary Restraining Order or Preliminary Injunction,” 

(Dkt. #4), seeking emergency injunctive relief that would fundamentally alter the 

United States’ existing system for allocating immigrant visas. Specifically, Plaintiffs 

ask the Court to enjoin the DOS and USCIS from applying what Plaintiffs 

characterize as DOS and USCIS’s “Retrogression Hold Policies.” As will be explained 

further, the complained-of retrogression is part of DOS and USCIS’s processes 

concerning the timing of green-card adjudication when the demand for visas, whether 

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by category of visa or country of the applicant’s origin, exceeds the supply of available 

visas.

The motion will be denied because Plaintiffs’ claims are unlikely to succeed on 

the merits—indeed the Court likely lacks subject-matter jurisdiction to decide the 

claims—and Plaintiffs also cannot meet any of the other requirements for injunctive 

relief.

The proposed legal theory underlying Plaintiffs’ request turns on the 

Administrative Procedure Act (APA), which allows courts to “compel agency action 

unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). However, “a claim 

under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take 

a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 

542 U.S. 55, 64, 124 S. Ct. 2373, 159 L.Ed.2d 137 (2004) (“SUWA”). “A court’s 

authority to compel agency action is limited to instances where an agency ignored ‘a 

specific, unequivocal command’ in a federal statute or binding regulation.” Fort Bend 

Ctny. v. U.S. Army Corps of Eng’rs, 59 F.4th 180, 197 (5th Cir. 2023) (quoting SUWA, 

542 U.S. at 63). Because the “Retrogression Hold Policies” do not run afoul of any 

“specific, unequivocal command” of federal law, Plaintiffs’ APA-based challenge has 

no chance of success. And, unsurprisingly, the same challenges to so-called DOS and 

USCIS “retrogression hold” policies have already been asserted and rejected by courts 

across the country.1

1 See, e.g., Museboyina v. Jaddou, No. 4:22-CV-3169, 2022 WL 4608264, at *3–*5 (D. 

Neb. Sept. 30, 2022) (finding that plaintiffs had failed to establish a likelihood of success in 

their challenge against so-called visa retrogression policies); Babaria v. Blinken, No. 22-CVCase 4:23-cv-00600-SDJ Document 19 Filed 06/30/23 Page 2 of 16 PageID #: 152
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Equally unpersuasive are Plaintiffs’ allegations of irreparable harm, which 

turn entirely on (1) speculation that elimination of the complained-of retrogression 

process would speed up the adjudication of their green-card applications, which may 

or may not be true, and (2) alleged inconveniences associated with their current 

immigrant status that do not rise to the level of irreparable harm. Given the meritless 

nature of Plaintiffs’ claims and their lack of irreparable harm, as compared to the 

dramatic alteration in immigrant-visa-adjudication procedures proposed in their 

motion, the balance of equities weighs heavily against Plaintiffs. Likewise, the 

disruption to established visa-adjudication procedures contemplated by Plaintiffs 

would disserve the public interest. Accordingly, their request for injunctive relief will 

be denied.

I. BACKGROUND

A. Plaintiffs Seek Lawful Permanent Residence in the United States. 

Plaintiffs are lawful immigrants from India. They moved here under the EB-3 

employment visa, which applies to a broad category of “[s]killed workers,” 

“professionals,” and “other workers.” 8 U.S.C. § 1153(b)(3). And they have all applied 

for lawful permanent residence in the Unites States by requesting an adjustment of 

status from USCIS through a Form I-485; thus, they have applied for what is 

05521-SI, 2022 WL 10719061, at *5–6 (N.D. Cal. Oct. 18, 2022) (same); Mukkavilli v. Jaddou, 

No. 22-CV-2289, 2023 WL 4029344, at *10 (D.D.C. June 15, 2023) (dismissing for lack of 

subject-matter jurisdiction unlawful withholding claims involving the same retrogression 

policies at issue here).

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“colloquially known as a ‘green card.’” Mantena v. Johnson, 809 F.3d 721, 723, 725 

(2d Cir. 2015). 

B. Adjustment of Status and Visa Retrogression

The Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101–1537, governs 

how aliens2 obtain immigrant visas to seek admission into and permanently reside 

in the United States. At issue here is Title 8 U.S.C. § 1255, which provides the 

Secretary of Homeland Security with discretionary authority, under such regulations 

2 Although the Government and Plaintiffs have used the term “noncitizen” in their 

filings, rather than “alien,” the Court sees no reason to depart from the language employed 

by Congress in the applicable statutory law. See, e.g., 8 U.S.C. § 1101(a)(3) (“The term ‘alien’ 

means any person not a citizen or national of the United States.”). There are several good 

reasons why this is so. First, as noted by Judge Bea of the Ninth Circuit, the words 

“noncitizen” and “alien” do not carry the same meaning. Avilez v. Garland, 69 F.4th 525, 543 

(9th Cir. 2023) (Bea, J., concurring) (observing that “alien” and “noncitizen” are not 

“interchangeable”). 

Second, it is the prerogative of Congress to choose the precise language used in federal 

statutes, and it makes good sense to apply federal laws using the same terminology employed 

by the Legislature. See id. at 544 (Bea, J., concurring) (observing that courts should “hew 

closely to the laws as they are written, both in form and in substance”). As relevant here, the 

term “alien” has appeared throughout the INA since it was enacted, and although Congress 

has routinely amended statutes addressing immigration issues, to the present day it also has 

consistently used the word “alien” to describe individuals who are not U.S. citizens or 

nationals. See, e.g., Energy Security & Lightering Independence Act of 2022, Pub. L. No. 117-

360, January 5, 2023, 136 Stat. 6292 (amending “the Immigration and Nationality Act to 

include aliens passing in transit through the United States to board a vessel on which the 

alien will perform ship-to-ship liquid cargo transfer operations within a class of 

nonimmigrant aliens, and for other purposes.” (emphases added)).

Third, as demonstrated by the continued and pervasive use of the term by Congress 

in this context, “[t]here’s no need to be offended by the word ‘alien.’ It’s a centuries-old legal 

term found in countless judicial decisions.” Khan v. Garland, 69 F.4th 265, 272 (5th Cir. 

2023) (Ho, J., concurring in judgment); see also id. (Ho, J., concurring in judgment) (“[W]e 

always read words in their proper context. And in the context of immigration law, we use 

‘alien,’ not to disparage one’s character—or to denote one’s planetary origin—but to describe 

one’s legal status . . . . [There is] no need to bowdlerize statutes or judicial decisions that use 

the word ‘alien’ by substituting terms like ‘non-citizen’”).

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as the Secretary may prescribe, to adjust the status of certain aliens to lawful 

permanent residence.3

Section 1255(a) provides several prerequisites that must be satisfied before the 

Secretary may exercise his discretion to confer permanent residence status, which 

include the following: “(1) the alien makes an application for such adjustment, (2) the 

alien is eligible to receive an immigrant visa and is admissible to the United States 

for permanent residence, and (3) an immigrant visa is immediately available to him 

at the time his application is filed.” 8 U.S.C. § 1255(a). When the INA was first 

enacted in 1952, the requirements for eligibility under this section included a 

requirement that a visa be immediately available both at the time of filing and at the 

time of adjudication of the application. INA, Pub. L. No. 414-163, § 245(a) (1952). In 

1960, Congress amended Section 1255(a) to delete the requirement that a visa 

number be available at the time of filing. INA, Pub. L. No. 86-648, § 10 (1960). Then,

in 1976, Congress reinstated the statutory requirement that a visa be available at 

the time of filing and removed the requirement that a visa be immediately available 

at the time of adjudication of the application. INA, Pub. L. No. 94-571, § 6 (Oct. 20, 

1976). Plaintiffs assert that, by removing the statutory requirement that a visa 

number be immediately available at the time of adjudication, Congress prohibited the

government from imposing such a requirement.

3 Although the statute refers to the Attorney General, authority has been transferred to the 

Secretary of Homeland Security. See 6 U.S.C. §§ 271(b)(5), 557; 8 C.F.R. § 245.2(a); Dong v. 

Chertoff, 513 F. Supp. 2d 1158, 1162 n.3 (N.D. Cal. 2007). 

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For their part, DOS and USCIS have pointed to 8 U.S.C. § 1255(b) as evidence 

that Congress requires visas to be allocated at the time of approval. They further

argue that this requirement is inconsistent with Plaintiffs’ argument. Section 1255(b) 

requires that, upon approval of an application for adjustment of status:

[T]he Attorney General shall record the alien’s lawful admission for 

permanent residence as of the date the order of the Attorney General 

approving the application for the adjustment of status is made, and the 

Secretary of State shall reduce by one the number of the preference visas 

authorized to be issued under sections 1152 and 1153 of this title within 

the class to which the alien is chargeable for the fiscal year then current.

8 U.S.C. § 1255(b). As DOS and USCIS note, because Section 1255(b) mandates that, 

after an adjustment of status application is approved, the Secretary of State must 

“reduce by one” the number of relevant visas that can be issued, it is a logical 

necessity that—when no visas are currently available to be reduced from the visa 

pool—an adjustment of status application must remain pending until a new visa 

becomes available. See Museboyina v. Jaddou, No. 4:22-CV-3169, 2022 WL 4608264, 

at *4 (D. Neb. Sept. 30, 2022) (“The Secretary obviously could not make such a 

reduction in the number of preference visas authorized if they are not available.”).

Thus, DOS and USCIS have confirmed that an applicant’s status will be adjusted 

only if the applicant has properly filed an I-485 application, a visa number was 

immediately available at the time of filing, and a visa number is immediately 

available at the time of adjudication. (Dkt. #17 at 5) (citing 8 U.S.C. § 1255(a)–(b); 8 

C.F.R. §§ 245.1(g), 245.2(a)(2)(i)(A)–(C) and (a)(5)(ii)); see also Koppula v. Jaddou, No. 

1:22-CV-844-RP, 2023 WL 3470904, at *2 (W.D. Tex. May 15, 2023). 

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DOS further notes that it is responsible for allocating immigrant visas within 

the limits set by Congress. 22 C.F.R. § 42.51. Congress has provided for DOS to “make 

reasonable estimates of the anticipated number of visas to be issued during any 

quarter of any fiscal year . . . and to rely upon such estimates in authorizing the 

issuances of visas.” 8 U.S.C. § 1153(g). When demand for immigrant visas in a 

particular category (in this case, EB-3 visas for Indian nationals) exceeds the number 

of visas available, DOS considers the category oversubscribed and imposes a “final 

action date.” Only applicants with priority dates before the final action date are 

considered to have visa numbers available and can apply and be approved for visas.

DOS publishes the cut-off dates in its monthly visa bulletin. The final action date will 

move forward as more visas become available; however, if demand rises above the 

number of visas available the dates may move backwards. This backwards movement 

is known as retrogression.

When a particular category retrogresses, an applicant whose priority date was 

previously before the cut-off may find that his priority date is now after the cut-off.

Even if that applicant filed his I-485 while a visa was available, USCIS will not 

approve the adjustment until the cut-off date once again progresses beyond the 

applicant’s priority date. Until that time, the application remains pending.

C. Plaintiffs File Suit to Avert Retrogression. 

Here, Plaintiffs’ pending adjustment of status applications will be retrogressed 

as of July 1, 2023. That means the final action date for Plaintiffs EB-3 preference 

category, chargeable to India, will move backward from June 15, 2012, to January 1, 

2009. 

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To prevent their pending applications from being “retrogressed,” Plaintiffs 

filed a complaint and their emergency motion with the Court. (Dkt. #1, #4). The 

complaint asserts claims under the APA and requests the following rulings: (1) that 

USCIS be directed to adjudicate the pending adjustment of status applications within 

six months; (2) that DOS be directed to issue visa numbers following approval of those 

applications; and (3) that the “Retrogression Hold Policies” be declared unlawful. 

(Dkt. #1 ¶¶ 113–21). The emergency motion requests that the Court enter a 

preliminary injunction broadly prohibiting DOS and USCIS from enforcing the 

retrogression hold policies pending a ruling on summary judgment.4 (Dkt. #4 at 18). 

The Government has appeared in the case and responded to the emergency motion. 

(Dkt. #17).

It is not entirely clear from Plaintiffs’ filings how long their applications for 

adjustment of status have been pending. But it appears that most of them have been 

pending for at least several months and that some of them may have been pending 

for a longer period of time. See, e.g., (Dkt. #4 at 3) (indicating that USCIS “has been 

working on adjudicating” Plaintiffs’ adjustment of status forms “[o]ver the last couple 

of years”).

4 As an alternative to a preliminary injunction, the emergency motion also requests a 

temporary restraining order. Temporary restraining orders are treated as “accelerated”

preliminary-injunction motions and evaluated under the same factors. Sharing Servs. Glob. 

Corp. v. Oblon, No. 4:20-CV-989-SDJ, 2021 WL 3410670, at *1 (E.D. Tex. Jan. 8, 2021). 

Because the Court denies the requested preliminary injunction, it follows that the requested 

temporary restraining order must be denied as well. 

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II. LEGAL STANDARD

A preliminary injunction is an “extraordinary and drastic remedy.” 

Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009) (quotation omitted). To issue 

such relief, a court “must balance the competing claims of injury and must consider 

the effect on each party of the granting or withholding of the requested relief.” 

Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) 

(quotation omitted). And only when the movant has “clearly carried the burden of 

persuasion” should a court grant preliminary injunctive relief. Anderson, 556 F.3d at 

360.

In order to obtain a preliminary injunction, a movant must establish the 

following factors: (1) a substantial likelihood of success on the merits, (2) a substantial 

threat of irreparable injury if the injunction is not issued, (3) that the threatened 

injury if the injunction is denied outweighs any harm that will result if the injunction 

is granted, and (4) that the grant of an injunction will not disserve the public interest.

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). If the movant fails to establish 

any one of these factors, the movant cannot obtain injunctive relief. See Lake Charles 

Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th Cir. 2003) (explaining that a 

preliminary injunction “should not be granted unless the party seeking it has clearly 

carried the burden of persuasion on all four requirements” (quotation omitted)).

Preliminary injunctions are “particularly disfavored” when they impose 

“mandatory” relief against a party: meaning, that they require the party to do more 

than simply maintain the status quo. See Roark v. Individuals of Fed. Bureau of 

Prisons, Former & Current, 558 F.App’x 471, 472 (5th Cir. 2014) (per curiam) (quoting 

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Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)); see also Exhibitors Poster 

Exch., Inc. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1971) (per curiam) 

(“The purpose of a preliminary injunction is to preserve the status quo and thus 

prevent irreparable harm . . . .”). And here, Plaintiffs seek injunctive relief not in 

order to maintain the status quo, but rather to force DOS and USCIS to dramatically 

alter established processes for allocating immigrant visas.

III. DISCUSSION

Plaintiffs have not established the necessary grounds for entering a 

preliminary injunction. The Court begins by addressing whether Plaintiffs have 

established a strong likelihood of success on the merits. The Court then turns to the 

remaining factors for evaluating a preliminary injunction motion.

A. Likelihood of Success on the Merits 

Far from establishing a strong likelihood of success on the merits, Plaintiffs’ 

filings demonstrate the opposite: that the case will likely be dismissed at the outset 

for lack of subject-matter jurisdiction. 

To prevail on an unlawful withholding claim under the APA, Plaintiffs must 

demonstrate not only that the Defendants failed to perform discrete actions, but also 

that the Defendants were indisputably required to perform those actions under the 

relevant statutes. See 5 U.S.C. § 706(1); SUWA, 542 U.S. at 64 (holding that a claim 

for unlawfully withheld government action “can proceed only where a plaintiff asserts 

that an agency failed to take a discrete agency action that it is required to take.”). If 

the relevant statutes impose no clear duty on the Defendants to act—or if the relevant 

statutes commit that decision to the “agency’s discretion” or expressly “preclude[d] 

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[judicial] review”—then the Court must dismiss any challenge to Defendants’ refusal 

to act for lack of subject matter jurisdiction. 5 U.S.C. § 706(1). “A court’s authority to 

compel agency action is limited to instances where an agency ignored ‘a specific, 

unequivocal command’ in a federal statute or binding regulation.” Fort Bend Cnty., 

59 F.4th at 197 (quoting SUWA, 542 U.S. at 63); see also Mysaev v. U.S. Citizenship 

& Immigr. Servs., No. 3:22-CV-0371-B, 2022 WL 2805398, at *4 (N.D. Tex. July 18, 

2022) (“[J]urisdiction under the APA is appropriately exercised only if [the alien] can 

establish that the Defendants had a clear, non-discretionary duty to adjudicate his 

[adjustment of status] application within a certain period.”).

Here, Plaintiffs have not established that there is any “unequivocal command” 

in federal law for DOS and USCIS to adjudicate their green-card applications by a 

particular date or to adjudicate those applications without regard to the current 

availability of visas. To the contrary, Section 1255(a) confers broad authority on the 

Secretary to approve adjustment of status applications at his “discretion” and “under 

such regulations as he may prescribe,” if the applicant meets certain requirements. 

8 U.S.C. § 1255(a). As the Fifth Circuit explained in Bian v. Clinton, Section 1255 

“does not specify a deadline or even a time frame for adjudication of applications, 

instead committing not only the USCIS’s decision but also any ‘regulations’ necessary 

for making such a decision to agency discretion.” 605 F.3d 249, 253 (5th Cir. 2010), 

vacated as moot, No. 09-10568, 2010 WL 3633770 (5th Cir. Sept. 16, 2010).5 The Bian

5 Bian was admittedly vacated as moot and therefore lacks precedential value. Balfour 

Beatty Constr., L.L.C. v. Liberty Mut. Fire Ins. Co., 968 F.3d 504, 516 n.20 (5th Cir. 2020) 

(citing Asgeirsson v. Abbott, 696 F.3d 454, 459 (5th Cir. 2012)). Even so, the Court treats its 

reasoning as persuasive, as have other district courts in this circuit. See, e.g., Chuttani v. 

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Court further concluded that the Government’s discretion extended not only to its 

ultimate decision, but also to its adjudicative process: including its policy of refusing 

to grant “adjustments of status until visa numbers be available”—precisely the same 

policy challenged in this case. Id. at 253–55. Thus, the court upheld USCIS’s refusal 

to approve an adjustment of status under that policy even though the agency 

conceded that the alien otherwise met the statutory requirements for approval. Id.

at 251; see also Koppula, 2023 WL 3470904, at *2 (dismissing for lack of subjectmatter jurisdiction plaintiffs’ claims seeking to compel action on pending adjustment 

of status applications).6

There is also nothing in Section 1255(a)’s text that precludes the retrogression 

procedures complained-of by Plaintiffs, or the premise of the procedure that Plaintiffs’

applications, like those of other similarly situated applicants, will be adjusted only 

when a visa number is immediately available at the time of adjudication. Recall that 

Section 1255(a) allows for an adjustment when “(1) the alien makes an application 

for such adjustment, (2) the alien is eligible to receive an immigrant visa and is 

U.S. Citizenship & Immigr. Servs., No. 3:19-CV-02955-X, 2020 WL 7225995, at *3 n.22 (N.D. 

Tex. Dec. 8, 2020) (treating Bian as “[a]t the very least, . . . highly persuasive.”); Khokha v. 

U.S. Citizenship & Immigr. Servs., No. 3:21-CV-2577-L, 2021 WL 5742329, at *3 (N.D. Tex. 

Dec. 2, 2021) (“While this decision by the Fifth Circuit was subsequently vacated when 

motions to dismiss the appeal as moot were filed, the undersigned finds this well-reasoned 

decision persuasive.”); Dommaraju v. Thompson, No. 3:21-CV-2585-S, 2021 WL 5104375, at 

*1 (N.D. Tex. Oct. 28, 2021) (“[W]hile the Fifth Circuit vacated that appeal and opinion due 

to mootness, its logic remains sound and persuasive.”).

6 In a recent unpublished decision, the Fifth Circuit again found that USCIS is under 

“no clear mandate” to adjudicate adjustment of status applications at any particular pace. 

Li v. Jaddou, No. 22-50756, 2023 WL 3431237, at *1 (5th Cir. May 12, 2023) (per curiam). 

The court upheld dismissal under Rule 12(b)(6) without addressing the question of subjectmatter jurisdiction. Id. 

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admissible to the United States for permanent residence, and (3) an immigrant visa 

is immediately available to him at the time his application is filed.” 8 U.S.C. 

§ 1255(a). According to Plaintiffs, because in 1976 Congress deleted the additional 

requirement that an immigrant visa be immediately available to an applicant at the 

time of approval, DOS and USCIS are prohibited from conditioning the allocation of 

the adjustment on the availability of a visa at the time of approval. Plaintiffs misread 

the statute’s plain text. The requirements of Section 1255(a) establish a floor, not a 

ceiling, on the considerations for approval of an application for adjustment; that is to 

say, the statute provides that the Secretary “may” adjust an applicant’s status only 

“if” the applicant meets the stated requirements in Section 1255(a). Beyond those 

requirements, Section 1255(a) “says nothing about whether a visa must be available 

at the time an application is approved.” Museboyina, 2022 WL 4608264, at *4;

Babaria v. Blinken, No. 22-CV-05521-SI, 2022 WL 10719061, at *5 (N.D. Cal. Oct. 18, 

2022) (same).

Because no statutory language supports their argument, Plaintiffs “spin[] out 

an argument based on § 1255(a)’s structure and history,” concluding it was Congress’s 

intent knowingly to reject the requirement to have a current visa number at approval. 

Mukkavilli v. Jaddou, No. 22-CV-2289, 2023 WL 4029344, at *10 (D.D.C. June 15, 

2023). Like other courts that have considered this argument, the Court “declines to 

draw inferences about Congress’s intent, especially where those inferences stem from 

statutory silence.” Id. (citing Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2496–97, 

213 L.Ed.2d 847 (2022)).

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For all of these reasons, Plaintiffs have little or no likelihood of success on the 

merits.7

B. The Remaining Preliminary Injunction Factors

It follows from the Court’s reasoning on the first preliminary injunction factor

that Plaintiffs cannot meet the remaining three factors either. To begin, Plaintiffs 

have not demonstrated a risk of irreparable harm. Irreparable harms mean those 

harms for which “there is no adequate remedy at law.” See Louisiana v. Biden, 

55 F.4th 1017, 1033–34 (5th Cir. 2022) (quotations omitted). A harm does not qualify 

as irreparable when it is “merely possible” that the harm will occur, as opposed to 

“likely,” or when the harm amounts to “speculat[ion]” or “unfounded fear.” Id. 

(quotations omitted); Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 

710 F.3d 579, 585 (5th Cir. 2013). 

Here, Plaintiffs cannot establish that they suffered any harm, let alone an 

irreparable one. That is so because Plaintiffs are not entitled to relief from the 

complained-of retrogression policies for all the reasons explained above: namely, 

because the agencies have sweeping discretion in establishing the policies by which 

they adjudicate adjustment of status applications. Supra Part III(A). And when an 

7 DOS and USCIS have also argued, and the Court agrees, that subject-matter 

jurisdiction may also be absent under 8 U.S.C. § 1252. Specifically, Defendants assert that 

the Supreme Court’s recent decision in Patel v. Garland, 142 S.Ct. 1614, 212 L.Ed.2d 685

(2022), confirms that 8 U.S.C. § 1252(a)(2)(B) strips the Court of subject-matter jurisdiction 

to review a decision relating to an adjustment of status under 8 U.S.C. § 1255. The Court will 

request briefing from the parties on this issue concerning the potential dismissal of this case. 

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adjustment of status application is approved, that approval is a matter of grace, not 

a matter of right. Id. 

Plaintiffs’ alleged harms are also speculative and far from irreparable. 

Notably, a delay in obtaining lawful permanent residency will not cause Plaintiffs to 

be removed from the country so long as they maintain their employment 

authorizations. Likewise, that Plaintiffs’ visas will retrogress does not mean that they 

will be “kicked out of the line” for lawful permanent residence. Banerjee v. U.S. 

Citizenship & Immigr. Servs., No. 4:21-CV-3293, 2021 WL 4918183, at *3 (D. Neb. 

Oct. 21, 2021). To the contrary, Plaintiffs will keep their spots in line and may become 

eligible again for lawful permanent residence when new visas become available. It is 

therefore entirely possible that the Court’s refusal to enjoin the retrogression policies 

will have no effect on the timing by which Plaintiffs’ applications are adjudicated. In 

the meantime, Plaintiffs will not suffer any injuries except for the alleged 

inconveniences associated with maintaining their current immigration status. If 

those injuries are irreparable, Plaintiffs have not explained how. It is also entirely 

possible that the agencies will ultimately deny Plaintiffs’ adjustment of status 

applications—a possibility that renders Plaintiffs’ alleged harms even more 

speculative. 

Finally, the balance of equities and public interest factors also cut against the 

requested preliminary injunction. It would be both inequitable and offend the public 

interest to enjoin the Defendants from enforcing policies that are statutorily 

committed to their discretion and beyond the scope of judicial review. 

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IV. CONCLUSION

Plaintiffs’ Motion for a Temporary Restraining Order or Preliminary 

Injunction, (Dkt. #4), is DENIED.

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