UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
J. Z., et al.,
Plaintiffs,
Civil Action No. 26-01510 (AHA)
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants.
Memorandum Opinion and Order
The plaintiffs, people who have applied for immigration status and have been detained by
Immigrations and Customs Enforcement, sue federal agencies and officials, challenging their
adoption of a policy to stop collecting biometric information required to process their immigration
applications. The plaintiffs assert this policy violates the Administrative Procedure Act and ask
the court to stay and preliminarily enjoin the policy. The court grants the plaintiffs’ motion in part
and denies it in part, concluding, at least on the record at this early stage, that the plaintiffs have
satisfied their burden for a stay but have not shown the need for a preliminary injunction in
addition.
I. Background 1
The plaintiffs have pending applications with U.S. Citizenship and Immigration Services
(“USCIS”), part of the Department of Homeland Security (“DHS”), for some type of immigration
status. This includes applications for permanent residency; special immigrant juvenile status for
1
The facts here reflect the court’s findings based on the stay and preliminary injunction record. abused, abandoned, and neglected children; T visas for human trafficking survivors; U visas for
survivors of other serious crimes; and asylum to join a spouse or parent who has already been
granted asylum. ECF No. 1 ¶¶ 11–16. USCIS may require applicants to submit various kinds of
biometric information, including fingerprints, photographs, and signatures. See 8 C.F.R.
§ 103.2(b)(9) (authorizing USCIS to require applicants to appear for biometric collection). It is
undisputed USCIS requires biometric information to be collected as part of the application process
for the statuses at issue here. See, e.g., 8 C.F.R. § 214.204(k) (T visa applicants); id. § 214.14(c)(3)
(U visa applicants); see also ECF No. 17 at 6–7 (government explaining that “USCIS’s collection
of biometrics for immigration applications is crucial”). After someone applies, USCIS schedules
a biometrics appointment at a USCIS office, and if the person misses that appointment, their
application is “considered abandoned and denied” unless USCIS accepts their reason for missing
the appointment. 8 C.F.R. § 103.2(b)(13)(ii); see ECF No. 14-4 at 1. According to USCIS policy,
USCIS “does not approve requests to reschedule a biometrics appointment for reason of detention
or incarceration.” ECF No. 14-4 at 4.
Immigration and Customs Enforcement (“ICE”), also part of DHS, detained the plaintiffs,
pending proceedings over whether they can be deported. See ECF No. 14-5 ¶¶ 1, 4; ECF No. 14-6 ¶¶ 1, 3; ECF No. 14-7 ¶ 1; ECF No. 14-8 ¶¶ 1, 5; ECF No. 14-9 ¶¶ 1, 4; ECF No. 14-10 ¶¶ 1, 6.
It is undisputed that most of the plaintiffs could not be detained and would not be deported if
USCIS determines they are entitled to the immigration statuses they have applied for. See 8 C.F.R.
§ 1003.18(d)(1)(i)(D)(1), (3), (4). It is also undisputed that for some plaintiffs, the submission of
a complete application and satisfactory completion of background checks, which requires the
collection of biometrics, can itself be enough to stay deportation or allow deferred action—even
before USCIS’s adjudication of their application. See id. § 214.204(b)(2)(iii) (providing that if
2
USCIS determines a T visa application is “bona fide,” any final order of removal is automatically
stayed); id. § 214.205 (providing that a bona fide determination requires completion of background
and security checks); USCIS, Policy Manual, vol. 3, pt. C, Ch. 6, https://perma.cc/WX2M-WGXG
(recognizing that completion of background and security checks for the T visa bona fide
determination process requires biometrics and leads to consideration for deferred action); USCIS,
Policy Manual, vol. 3, pt. C, Ch. 5, https://perma.cc/7NHW-8XZQ (recognizing that completion
of background and security checks for the U visa bona fide determination process requires
biometrics and leads to consideration for deferred action); 8 C.F.R. § 1003.18(d)(1)(ii)(C)
(recognizing that deferred action may lead to termination of removal proceedings).
In December 2025, USCIS announced that DHS would stop collecting biometrics related
to USCIS immigration applications for people in its custody. ECF No. 14-2; ECF No. 14-3 at 2–
3. In its press release, USCIS said that going forward DHS “generally will not take biometrics of
detained aliens unless they are in removal proceedings and have a pending application or petition
filed with the Executive Office for Immigration Review.” ECF No. 14-2. That means DHS would
continue to collect biometrics only for certain applications for relief, including those that can be
made to immigration courts (which fall within the Executive Office for Immigration Review), but
not for applications for many kinds of immigration status, including the plaintiffs’ applications
(which must be submitted to and determined by USCIS). See 8 C.F.R. § 245.2(a)(1) (adjustment
of status); id. § 204.11(g)(1) (special immigrant juvenile status); id. § 214.204(a), (b)(1)(i) (T
visas); id. § 214.14(c) (U visas); id. § 208.21(c) (asylum for relative of asylee). USCIS also issued
an accompanying policy alert saying that, in addition to prohibiting USCIS staff or contractors
from traveling to detention facilities to collect biometrics, DHS was removing guidance that had
assigned ICE the responsibility to collect biometrics of USCIS applicants in custody. ECF No. 14-3
3. To implement this policy, DHS rescinded an intradepartmental agreement that required ICE to
collect biometrics for detained people with USCIS applications. See ECF No. 14-2 (press release
describing removal of “obsolete guidance to clarify that there is no controlling intradepartmental
agreement between USCIS and Immigration and Customs Enforcement regarding the collection
of biometrics for aliens in custody with pending USCIS benefit requests”); ECF No. 14-3 at 1
(policy alert describing removal of “outdated guidance that places the burden on ICE to collect
biometrics of aliens in custody”); compare ECF No. 14-4 at 4, with ECF No. 14-11 at 4 (revising
policy manual to delete a sentence stating that “[p]er intradepartmental agreement, U.S.
Immigration and Customs Enforcement, Enforcement and Removal Operations is responsible for
completing background and security checks for those who are incarcerated at DHS facilities and
applying for benefits with USCIS.”). Under this policy, ICE has stopped transporting detained
people to their biometrics appointments, as it previously had done, except in some ad hoc,
unexplained instances. See ECF No. 24-1 ¶ 22; ECF No. 37-1 ¶¶ 6–8; ECF No. 37-2 ¶ 7; ECF No.
37-3 ¶¶ 7–9; ECF No. 38; ECF No. 40 at 43. For example, after the court’s preliminary injunction
hearing, DHS collected biometrics for one plaintiff, J.Z., after he asked for reconsideration of his
application. ECF No. 43 ¶¶ 1, 9. But the government has not provided any explanation for the
circumstances in which ICE would or would not agree to collect biometrics. See ECF No. 40 at
43–44. 2
The plaintiffs sued, asserting that the defendants’ new policy to stop collecting biometrics
from detained people with pending USCIS immigration applications is contrary to the Immigration
2
Two plaintiffs, J.Z. and H.A., have successfully submitted biometrics, and have either been released from detention or been granted immigration status. ECF No. 14-1 at 14; ECF No. 42 ¶ 6; ECF No. 43 ¶¶ 1, 6. The parties appear to agree their claims are moot, and the court does not consider their claims. See ECF No. 14-1 at 14; ECF No. 33 at 17 n.4; ECF No. 43 ¶ 9.
4
and Nationality Act (“INA”) and its implementing regulations; is arbitrary and capricious,
unlawfully withholds agency action, and failed to go through notice-and-comment rulemaking
procedures, all in violation of the Administrative Procedure Act (“APA”); and violates due
process. The plaintiffs move to stay the biometrics policy pending the resolution of this case under
section 705 of the APA. They also move for a preliminary injunction on behalf of a putative class
of people detained by ICE with pending USCIS immigration applications that need biometrics.
II. Discussion
Section 705 of the APA permits courts to “issue all necessary and appropriate process to
postpone the effective date of an agency action or to preserve status or rights pending conclusion
of the review proceedings.” 5 U.S.C. § 705. Relief under section 705 is a temporary version of the
APA’s usual remedy of vacatur and is governed by the same factors that courts consider for a
preliminary injunction. Ctr. for Taxpayer Rts. v. Internal Revenue Serv., No. 26-5006, 2026 WL
2635380, at *14 (D.C. Cir. Sept. 8, 2026) (explaining that section 705 “allows a district court to
preliminarily ‘postpone the effective date of an agency action’ when ‘necessary to prevent
irreparable injury’” by “operat[ing] on the legal source of authority for an agency to act at all”
(quoting 5 U.S.C. § 705)); District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 15
(D.D.C. 2020) (collecting cases); Sierra Club v. Jackson, 833 F. Supp. 2d 11, 30 (D.D.C. 2012).
A plaintiff must show “that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008).
The court finds that the plaintiffs have satisfied their burden for preliminary relief. But the
record at this stage only supports issuance of a section 705 stay of the biometrics policy and DHS’s
rescission of the intradepartmental agreement requiring ICE to collect biometrics from detained
5
people with pending USCIS applications, restoring the status quo in which DHS collected such
biometrics, pending litigation of this case.
A. The Plaintiffs Are Likely To Show The Defendants’ Biometrics Policy Violates
The APA
Based on the record at this stage, the plaintiffs will likely succeed on their claim that the
biometrics policy must be vacated as arbitrary and capricious in violation of the APA because the
defendants adopted it without reasoned explanation and did not consider important aspects of the
problem. See 5 U.S.C. § 706 (requiring courts to “hold unlawful and set aside agency action,
findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law”). The court starts with the defendants’ threshold arguments that the
plaintiffs’ claims will likely fail because they do not have standing, and that the biometrics policy
cannot be reviewed under the APA because the policy is not a final and discrete agency action.
1. The Plaintiffs Have Shown A Substantial Likelihood They Have Standing To Challenge
The Defendants’ Biometrics Policy
A “party who seeks a preliminary injunction must show a substantial likelihood of
standing.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (quotation
marks omitted). “To establish Article III standing, the plaintiff must have ‘suffered an injury in
fact’ that ‘is fairly traceable to the challenged action of the defendant’ and it must be ‘likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.’” Banner
Health v. Price, 867 F.3d 1323, 1333–34 (D.C. Cir. 2017) (quoting Friends of the Earth v. Laidlaw
Env’t Servs., 528 U.S. 167, 180–81 (2000)). And parties seeking prospective injunctive relief must
“establish an ongoing or future injury that is ‘certainly impending.’” Arpaio v. Obama, 797 F.3d
11, 19 (D.C. Cir. 2015) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)).
Here, the plaintiffs have satisfied their burden to show a concrete and impending injury
that is caused by the biometrics policy and redressable by the court—namely, that the defendants’
6
policy is preventing them from pursuing immigration applications that, if granted, would preclude
their detention and deportation. The court finds, at least based on the evidence in the preliminary
record that, since the defendants adopted the new policy, the plaintiffs cannot submit the
biometrics information required for their USCIS applications. See ECF No. 14-6 ¶¶ 1–3, 8–9; ECF
No. 14-7 ¶¶ 1, 3–7; ECF No. 14-8 ¶¶ 1, 3–6; ECF No. 14-10 ¶¶ 1, 5–10; ECF No. 42 ¶¶ 1–2, 4–5;
ECF No. 43 ¶¶ 2–5. And because the policy prevents the plaintiffs from appearing at their
biometrics appointments, it leads to the inevitable denial of their applications, unless USCIS
accepts their reasons for missing the appointments. See 8 C.F.R. § 103.2(b)(13)(ii). The policy has
therefore injured the plaintiffs’ ability to obtain immigration relief that they may be entitled to
receive, while also creating a concrete and imminent risk of continued detention and eventual
deportation. See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 20 (D.D.C. 2020) (concluding plaintiffs
had shown cognizable injury from allegedly unlawful procedures that harmed their “interest in
seeking asylum and avoiding the risk of deportation”); Rossville Convenience & Gas, Inc. v.
Garland, No. 20-cv-2218, 2021 WL 5865446, at *7 (D.D.C. Dec. 10, 2021) (concluding the
plaintiff showed a concrete injury in fact from the loss of a “significant opportunity to receive an
immigrant visa”). At least based on the preliminary record, the plaintiffs have shown those injuries
are fairly traceable to the defendants’ biometrics policy because the policy ended DHS’s practice
of collecting biometrics from people detained by ICE, including rescinding the intradepartmental
agreement that required ICE to collect the plaintiffs’ biometrics. See ECF No. 14-2 (announcing
there is no longer an agreement between USCIS and ICE “regarding the collection of biometrics
for aliens in custody with pending USCIS benefit requests”); ECF No. 14-3 at 1 (announcing that
ICE no longer has “the burden . . . to collect biometrics of aliens in custody”); ECF No. 17 at 8
(showing the removal of language from USCIS’s policy manual that said ICE “is responsible for
7
completing background and security checks for those who are incarcerated at DHS facilities and
applying for benefits with USCIS”). And they have shown a substantial likelihood that vacatur of
the new policy satisfies the redressability requirement, which would restore the prior status quo in
which ICE was required to collect biometrics from detained people with pending USCIS
applications. See ECF No. 14-2; ECF No. 14-3 at 1; ECF No. 17 at 8; ECF No. 37-1 ¶¶ 6–8; ECF
No. 37-2 ¶ 7; ECF No. 37-3 ¶¶ 7–9. Restoring this obligation would enable the plaintiffs to submit
their biometrics and pursue their immigration status applications and is thus a “necessary first step
on a path that could ultimately lead to relief fully redressing” the plaintiffs’ injuries. Duberry v.
District of Columbia, 924 F.3d 570, 583 (D.C. Cir. 2019). 3
The defendants challenge the plaintiffs’ standing on two grounds but neither works. First,
they say their biometrics policy does not prohibit the plaintiffs’ biometrics from being collected
and therefore has not caused the plaintiffs’ injury. ECF No. 17 at 13. According to the defendants,
this is so because the policy does not prohibit the plaintiffs from either (1) showing up at their
USCIS biometrics appointments, or (2) asking ICE officers to voluntarily collect their biometrics
3
The defendants say there has been no “rescission” of the agreement obligating ICE to collect biometrics and that the agency documents simply reflect the “current absence” of that agreement. ECF No. 33 at 20 n.7. It’s not clear what that means. The defendants do not dispute that, under the current policy, ICE is no longer obligated to collect biometric information from detained people with pending USCIS applications. And the court finds, at least based on the preliminary record before it, that ICE was collecting biometric information from detained people with pending USCIS applications before the policy and is not doing so after the policy. See ECF No. 14-2; ECF No. 14-3 at 1; ECF No. 17 at 8; ECF No. 37-1 ¶¶ 6–8; ECF No. 37-2 ¶ 7; ECF No. 37-3 ¶¶ 7–9.
The defendants also say that USCIS’s policy announcement “lacks any mention that this is ICE’s position” and may not reflect “the entire Department’s views.” ECF No. 17 at 14 (alterations omitted). That also makes little sense. The policy was explicitly announced as a DHS-wide policy, and ICE is a component of DHS. See ECF No. 14-2 (announcing that “the Department of Homeland Security generally will not take biometrics of detained aliens”). The defendants’ attempt to raise questions about ICE’s position also conflicts with the court’s finding that ICE was collecting biometric information from detained people with pending USCIS applications before the policy and is not doing so after the policy.
8
or take them to their biometrics appointments, even though ICE is no longer required to do so. Id.;
see also ECF No. 40 at 43 (defendants’ counsel representing that “there do still seem to be
instances where ICE is, to some extent, offering to facilitate biometrics collections”). But this
argument makes little sense—the plaintiffs are detained, so they cannot just go to their biometrics
appointments. And, while the record indicates there have been some instances in which ICE has
collected some biometrics from detained people with pending USCIS applications, the defendants
were not able to articulate when ICE would or would not agree to collect biometrics. Id. at 43–44.
(defendants’ counsel stating he could not give “a very specific answer” on this and has “certainly
tried” to get the information from his clients). At least some of the instances the defendants point
to involve circumstances where ICE collected biometrics in response to litigation or a court order.
See ECF No. 17 at 15, 19 (discussing Walter A. v. Easterwood, No. 26-cv-1393, 2026 WL 836428,
at *8, 24 (D. Minn. Mar. 26, 2026)); Covarrubias-Ramirez v. Noem, No. 26-cv-1230, 2026 WL
1256111, at *2 (D. Ariz. May 7, 2026)); see also ECF No. 38 (email broadcast recognizing “where
ongoing legal activity may necessitate the timely collection of fingerprints” of detained people in
removal proceedings “ICE will initiate the fingerprinting process upon the request from
the attorney of record”). And more to the point, the court finds ICE has not collected the plaintiffs’
biometrics as required for their USCIS applications even though it previously would have been
required to do so. See ECF No. 14-6 ¶¶ 2, 9; ECF No. 14-7 ¶¶ 5–7; ECF No. 14-8 ¶ 6; ECF No.
14-10 ¶¶ 9–10; ECF No. 42 ¶¶ 1–2, 4–5; ECF No. 43 ¶¶ 2–5. 4
4
The defendants’ evidence indicates ICE has, in ad hoc instances, collected fingerprints for detained people with USCIS applications. The defendants do not argue that collecting fingerprints alone is sufficient to satisfy USCIS’s biometric requirements. See ECF No. 14-4 at 5–6 (USCIS policy manual listing fingerprints, photographs, and signatures as biometrics collected for USCIS applications). And the court finds, at least on the preliminary record, that these ad hoc instances of fingerprint collection have not impacted the plaintiffs’ ability to pursue their USCIS applications.
9
Second, the defendants argue that the plaintiffs do not suffer injury even if the biometrics
policy means they will be deported before resolution of their USCIS applications because the
plaintiffs have no right to have their applications adjudicated before deportation, and some
plaintiffs would be able to pursue their applications after being deported. ECF No. 17 at 15–16.
But the plaintiffs have shown injury from the policy, which acts as a de facto denial of their
applications, substantially injuring their ability to obtain the immigration statuses they may be
entitled to receive and leading to ongoing detention and the concrete risk of deportation that could
not occur under law if their applications are granted. See Kirwa v. U.S. Dep’t of Def., 285 F. Supp.
3d 21, 43–44 (D.D.C. 2017); Rossville Convenience & Gas, Inc., 2021 WL 5865446, at *7. While
it may be true that some plaintiffs could continue to pursue their applications upon deportation,
deportation itself is plainly injury in fact. Indeed, in addition to the concrete injury of being
removed from the country, the record contains evidence that some plaintiffs face threats to their
lives in their home countries. See ECF No. 14-8 ¶¶ 2, 7; ECF No. 14-10 ¶¶ 2, 6, 13.
2. The Plaintiffs Are Likely To Show The Biometrics Policy Is Final Agency Action
The defendants argue the plaintiffs are not likely to show the biometrics policy is “final
agency action” reviewable under the APA. 5 U.S.C. § 704; see ECF No. 17 at 17–20. Agency
action is final if it (1) “marks the consummation of the agency’s decisionmaking process and is
not of a merely tentative or interlocutory nature,” and (2) “it is an action by which rights or
obligations have been determined, or from which legal consequences will flow.” Soundboard
Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (cleaned up) (quoting Bennett
v. Spear, 520 U.S. 154, 177–78 (1997)). At least on the record at this stage, both are present.
The record indicates, for instance, that ICE collected fingerprints from two plaintiffs but did not collect other required biometrics. ECF No. 42 ¶¶ 4–5; ECF No. 43 ¶¶ 4–5.
10
The record before the court indicates that DHS’s decision to stop collecting biometrics
from detained people with pending USCIS applications is not tentative or interlocutory. The
defendants have publicly announced the decision on their website, updated their policy manual to
reflect it, and implemented it by rescinding an agreement that required ICE to collect the
biometrics. See ECF No. 14-2; ECF No. 14-3 at 1; compare ECF No. 14-4 at 4, with ECF No. 14-11 at 4 (policy manual revisions). The press release and policy alert make clear the policy is
“effective immediately” and “supersedes any related prior guidance.” ECF No. 14-2; ECF No. 14-3 at 1. The decision plainly determines rights and obligations and has legal consequences—as the
court has found, it means the plaintiffs cannot pursue their USCIS applications for immigration
status. The legal consequence is that USCIS will deny the plaintiffs’ applications for failing to
show up for their biometrics appointments. See 8 C.F.R. § 103.2(b)(13)(ii); ECF No. 14-4 at 4
(USCIS policy manual stating that the agency “does not approve requests to reschedule a
biometrics appointment for reason of detention or incarceration”).
The defendants’ two arguments are unpersuasive. First, they say the plaintiffs will not be
able to show any final decision with legal consequence until USCIS denies, or otherwise resolves,
the plaintiffs’ immigration applications. ECF No. 17 at 17. That argument might have logic if the
plaintiffs were challenging the grant or denial of their USCIS applications. But they aren’t—they
challenge the defendants’ decision that they will not collect biometrics from detained people with
pending USCIS applications. That decision is separate from any grant or denial of the applications
themselves. 5
5
The defendants suggest in passing that the plaintiffs’ APA claim may be prudentially unripe, for the same reasons. ECF No. 17 at 20 (citing Marcum v. Salazar, 694 F.3d 123, 129 (D.C. Cir. 2012)). But, as explained, the biometrics policy is a final agency decision, so there is no concern review will “inappropriately interfere with further administrative action,” and the policy’s injury
11
The defendants, second, say the policy that they announced just clarified “USCIS’s view
of DHS’s obligations” as it relates to biometrics collection. ECF No. 17 at 17–19. It is, of course,
true that when an agency “merely clarifies existing duties under a statute,” there is no final agency
action. Del. Valley Reg’l Ctr., LLC v. U.S. Dep’t of Homeland Sec., 106 F.4th 1195, 1204 (D.C.
Cir. 2024) (cleaned up). But, at least on the present record, the court finds that characterization of
what the agency did here is not credible. The plaintiffs have proffered credible evidence that the
policy changed the status quo, in which ICE collected biometric information, generally by taking
detained people to their biometrics appointments. ECF No. 37-1 ¶¶ 6–8; ECF No. 37-2 ¶ 7; ECF
No. 37-3 ¶¶ 7–9. Indeed, the plaintiffs have presented evidence that USCIS will reject biometrics
from detained people brought to appointments or who otherwise submit their biometrics. See ECF
No. 14-1 at 11 (citing Walter A., 2026 WL 836428, at *14 (explaining that a USCIS supervisor
invoked the revised USCIS policy manual to decline to process biometrics for a detained person
who was brought to his appointment by ICE under a court order)); ECF No. 35 at 4 (citing Vu v.
Lyons, No. 26-cv-2930, 2026 WL 1722908, at *4 (C.D. Cal. June 11, 2026) (explaining that an
ICE officer told Plaintiff’s counsel that “USCIS will not accept biometrics from persons who are
in detention unless it is for the purpose of a benefit filed with EOIR”)). And contrary to the
defendants’ characterization of the policy, the press release and accompanying policy alert (both
odd vehicles to say that nothing has changed) describe a change, saying USCIS is “updating”
policy, that the policy is “effective immediately,” and that it “supersedes any prior guidance on
the topic.” ECF No. 14-2; ECF No. 14-3 at 1. And, as discussed, the updated policy rescinds the
agreement that required ICE to collect biometrics from detained people with USCIS applications.
of preventing the plaintiffs from submitting biometrics essential to their applications is “sufficiently direct and immediate as to render the issue appropriate for judicial review.” Marcum, 694 F.3d at 129.
12
See ECF No. 14-2; ECF No. 14-3 at 1; compare ECF No. 14-4 at 4, with ECF No. 14-11 at 4.
While the press release also uses words like “clarifies,” “reiterates,” and “affirms,” an agency’s
label does not control whether its action is final agency action. See PDK Labs Inc. v. Ashcroft, 338
F. Supp. 2d 1, 10–11 (D.D.C. 2004) (explaining that “how an agency characterizes its actions does
not determine whether they are final,” because otherwise an agency could avoid judicial review
because it “refused to frankly acknowledge their finality” (citing N.Y. Stock Exch. v. Bloom, 562
F.2d 736, 740 (D.C. Cir. 1997))); Natural Res. Def. Council v. EPA, 22 F.3d 1125, 1132–33 (D.C.
Cir. 1994))). Nor does the defendants’ characterization of the biometrics policy as an
“interpretative” statement, ECF No. 17 at 18, get them far. See Cal. Cmtys. Against Toxics v. EPA,
934 F.3d 627, 635 (D.C. Cir. 2019) (explaining that “interpretive rules can be final” and “the test
for finality is independent of the analysis for whether an agency action is a legislative rule rather
than an interpretive rule”). Indeed, when asked whether their position is that there has been no
practical change in their policies, the defendants would not commit to that position and could not
explain whether there has been any policy change. See ECF No. 40 at 39–41.
Based on the preliminary record, the plaintiffs are likely to show the biometrics policy was
a final decision of concrete practical and legal consequence and is therefore final agency action
under the APA.
3. The Plaintiffs Are Likely To Show The Biometrics Policy Is Discrete Agency Action
The defendants argue that their decision to stop collecting biometrics from detained people
with pending USCIS applications is not reviewable under the APA because it is made up of several
different agency actions. ECF No. 17 at 20–22. According to the defendants, this runs afoul of the
APA’s requirement to identify and challenge “discrete agency actions.” Norton v. S. Utah
Wilderness All., 542 U.S. 55, 62 (2004). This is not a sound argument. It is, of course, true that the
APA is not a vehicle to “seek wholesale improvement” of a government program and, rather,
13
requires a plaintiff to challenge “some particular agency action.” Lujan v. Nat’l Wildlife Fed., 497
U.S. 871, 891 (1990) (quotation marks omitted). This case is not at all like cases challenging
programs at large—the plaintiffs identify a specific policy DHS has adopted that has been
implemented by its subcomponents. That’s a challenge to “particular agency action” reviewable
under the APA. Id. (quotation marks omitted).
The defendants’ argument that their multiple actions taken to recognize the policy (like the
press release and policy alert) and to implement the policy (like the policy manual revisions and
rescission of the intradepartmental agreement) somehow preclude review of DHS’s policy to stop
collecting biometrics from detained people with pending USCIS applications, has no support in
the cases they cite. To the contrary, the clear and repeated recognition of the policy and the
implementation of the policy through particular actions reinforce that the plaintiffs challenge final
and discrete agency action, as the APA requires. See Biden v. Texas, 597 U.S. 785, 808–10 (2022)
(explaining that memoranda that “bound DHS staff by forbidding them to continue the
[challenged] program in any way” were themselves “operative agency actions, each of them an
‘agency statement . . . designed to implement, interpret, or prescribe law or policy’” and therefore
subject to APA review (quoting 5 U.S.C. § 551(4))); Ctr. for Taxpayer Rts., 2026 WL 2635380,
at *7 (“When an agency implements a policy choice, putting it into motion in a way that leads to
concrete results and prescribes consequences, it takes final agency action.”). Perhaps recognizing
that, the defendants try to characterize the plaintiffs’ case as mounting a broader challenge to the
immigration regime that includes other regulations, like the one that requires USCIS to deny
immigration applications when applicants fail to attend their biometrics appointments. See ECF
No. 17 at 21–22. But the plaintiffs don’t challenge that regulation or any broader immigration
regime. To the contrary, their argument is premised on the validity of that regulation—that the
14
defendants’ policy to stop collecting biometrics will lead USCIS to deny their applications under
the regulation. The plaintiffs’ challenge is thus focused on DHS’s discrete decision that it
“generally will not take biometrics of detained aliens” with pending USCIS applications. ECF No.
14-2. 6
4. The Plaintiffs Are Likely To Show The Biometrics Policy Is Arbitrary And Capricious
The APA requires courts to “hold unlawful and set aside” agency action that is arbitrary or
capricious. 5 U.S.C. § 706(2)(A). The scope of this review is “narrow,” and it is not a mechanism
for a court “to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A court instead “must confirm that the agency
has fulfilled its duty to examine the relevant data and articulate a satisfactory explanation for its
action including a rational connection between the facts found and the choice made.” Ark Initiative
v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016) (quotation marks omitted) (quoting State Farm,
463 U.S. at 43). An agency falls short of fulfilling that duty if it “has relied on factors which
6
The defendants argue that the INA precludes APA review for one plaintiff, Luis Felipe Estrada Trejo, who has applied for adjustment of status based on his marriage to a U.S. citizen. ECF No. 17 at 22–25; see ECF No. 14-7. They point to 8 U.S.C. § 1252(a)(2)(B)(i)–(ii), which provides that courts do not have jurisdiction to review “any judgment regarding the granting of relief” of several kinds of immigration status, including adjustment of status, or any “decision or action” that “is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(i)–(ii). But Estrada Trejo does not challenge the denial of an application for adjustment of status, or any findings made in support of a denial; he challenges the defendants’ policy of generally not collecting biometrics for detained people with pending USCIS applications. The defendants’ arguments that these provisions preclude review of that policy is not persuasive. See Nakka v. U.S. Citizenship & Immigr. Servs., 111 F.4th 995, 1004 (9th Cir. 2024) (explaining that the language of 8 U.S.C. § 1252(a)(2)(B)(i) refers to “a single act of granting or denying an individual application for relief,” not a general “policy or procedure”); Make The Rd. N.Y. v. Wolf, 962 F.3d 612, 629–30 (D.C. Cir. 2020) (explaining that 8 U.S.C. § 1252(a)(2)(B)(ii) may preclude review of agency decisions on “individualized forms of discretionary relief from removal or exclusion,” but does not preclude review of “generally applicable rulemaking governing [] procedures”). And in any event, the defendants do not argue that the INA precludes APA review for the other plaintiffs whose claims are not moot.
15
Congress has not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” Id. (quoting State Farm, 463 U.S. at 43).
The court concludes, at least on the preliminary record before it, that the plaintiffs are likely
to show the defendants entirely failed to consider important aspects of the problem and to articulate
a satisfactory explanation when they adopted their policy to stop collecting biometrics from
detained people with pending USCIS applications. Perhaps most fundamentally, the present record
before the court indicates that the defendants adopted this policy without any indication that they
considered that it would preclude detained people from pursuing pending USCIS applications for
immigration status, let alone articulated “a satisfactory explanation” for that direct consequence of
their decision. Ark Initiative, 816 F.3d at 127. The defendants therefore “failed to consider an
important aspect of the problem.” Id. Their decision is further arbitrary and capricious because it,
without any explanation, effectively denies immigration relief to a whole category of people
irrespective of their eligibility for the status they have applied for under the criteria Congress
adopted. See Judulang v. Holder, 565 U.S. 42, 55 (2011) (holding that a “method for disfavoring
deportable aliens” that is unrelated “to an alien’s fitness to remain in the country” is arbitrary and
capricious).
The defendants’ policy is also arbitrary and capricious because it lacks a “rational
connection between the facts found and the choice made.” Ark Initiative, 816 F.3d at 127. The sole
explanation provided for the policy is that it is intended to “deter the filing of frivolous claims and
provide operational consistency.” ECF No. 14-2. But that makes little sense. The defendants’
policy is not limited to frivolous claims; it would refuse biometrics collection and lead to the denial
16
of immigration status for people who have valid claims, including those who can show they are
eligible as victims of child abuse, domestic violence, or human trafficking. See 8 U.S.C.
§ 1101(a)(15)(T), (a)(15)(U), (a)(27)(J). And the very purpose of biometrics collection, according
to USCIS’s policy manual, is to support the integrity of applications and the immigration process—
to “verify a person’s identity,” facilitate “background checks,” and “ensure that the person is
eligible for the benefit sought,” all of which would seem to help in sorting out frivolous claims.
ECF No. 17-5 at 1. That biometrics are required by USCIS during the application process makes
it difficult to understand how “operational consistency” is served by refusing to collect them for
people who have applied. And that justification is contradicted by the policy itself, which treats
applicants seeking immigration status from USCIS differently from those seeking relief from
immigration courts without any explanation for that inconsistency. See Burlington N. & Santa Fe
Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 776 (D.C. Cir. 2005) (“An agency must provide an
adequate explanation to justify treating similarly situated parties differently.”). The court is not
alone in its inability to see a rational connection—at the preliminary injunction and stay hearing
in this case, the court asked how this policy would “deter the filing of frivolous claims and provide
operational consistency,” and defendants’ counsel responded: “That’s a good question . . . . I don’t
have an answer to that right now.” ECF No. 40 at 53. 7
7
Short of an explanation, most of the defendants’ remaining arguments run away from the policy they adopted, repeating arguments that the biometrics policy does not prohibit collection of the plaintiffs’ biometrics, was just clarifying existing obligations, and should be viewed as a series of distinct actions. See ECF No. 17 at 34–37. For the reasons stated, these are not credible arguments. Even if the defendants adopted the policy believing that detained people could still somehow submit, and the defendants would still somehow collect, biometrics, they have not explained how this works.
In their briefing and at the court’s preliminary injunction and stay hearing, the defendants also argued they should be given more time to compile and produce an administrative record. ECF No. 17 at 35; ECF No. 40 at 46–47, 69. The court invited the defendants to follow up with a timeline
17
The court accordingly concludes the plaintiffs are likely to show the biometrics policy is
arbitrary and capricious. Because the plaintiffs need only show a likelihood of success on one of
their claims to be entitled to a stay, the court need not consider whether they are also likely to show
the biometrics policy is contrary to the INA and its regulations and violates the Fifth Amendment.
B. The Plaintiffs Have Shown Irreparable Harm
The irreparable harm inquiry to obtain an APA stay or preliminary injunction is onerous.
The plaintiffs must show injury that is “certain and great” and “of such imminence that there is a
‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisc. Gas Co. v. FERC,
758 F.2d 669, 674 (D.C. Cir. 1985)). And that injury must be one that is “beyond remediation.”
Id. As the D.C. Circuit has explained:
The key word in this consideration is irreparable. Mere injuries, however
substantial, in terms of money, time and energy necessarily expended in the absence
of a stay are not enough. The possibility that adequate compensatory or other
corrective relief will be available at a later date, in the ordinary course of litigation
weighs heavily against a claim of irreparable harm.
Id. at 297–98.
The plaintiffs have satisfied that heavy burden here. As the court has found, the practical
consequence of the defendants’ policy is that the plaintiffs cannot submit biometrics in support of
their USCIS applications, leaving them vulnerable to detention and deportation. It is undisputed
that the defendants’ policy does not depend or in any way account for the plaintiffs’ eligibility for
immigration status—in other words, it has the effect of exposing the plaintiffs to deportation
for producing the administrative record to the extent one would assist. ECF No. 40 at 69. Despite asking for “a slight indulgence for a little bit more time for that” and committing to “go back to the agency and try and get that as soon as we can,” the defendants never sought to produce any further administrative record before this court. Id. The court therefore finds that, for the purposes of this preliminary posture, the defendants have forfeited any argument that an administrative record would support a different result.
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irrespective of whether they are eligible as permanent residents; as people who were abused,
abandoned, or neglected as children; or as survivors of human trafficking or other serious crimes.
Each day the policy risks denying them adjudication of that status, in favor of further detention
and risk of deportation. See ECF No. 40 at 23–24. And several of the plaintiffs proffer evidence
that deportation would lead to their separation from family or to suffering violence in their home
countries. See ECF No. 14-6 ¶ 10; ECF No. 14-7 ¶ 8; ECF No. 14-8 ¶ 6; ECF No. 14-10 ¶¶ 2, 6,
11–12; L.G.M.L. v. Noem, 800 F. Supp. 3d 100, 131 (D.D.C. 2025) (finding that removal of
plaintiffs “prior to receiving the protections that the immigration laws provide” is irreparable harm
(cleaned up)); Miot v. Trump, 818 F. Supp. 3d 126, 182 (D.D.C. 2026) (finding that removal would
constitute irreparable harm where it would result in “forced family separation” and where “it may
not be possible to restore Plaintiffs to the status quo”), rev’d on other grounds sub nom. Mullin v.
Doe, 146 S. Ct. 2121 (2026).
The defendants argue this is not irreparable harm because some of the plaintiffs could
continue to pursue immigration status from outside the country. ECF No. 17 at 39. In particular,
the government says that applicants for U visas and adjustment of status can pursue relief abroad.
Id. This argument is unsatisfactory for many reasons. As an initial matter, it does not apply to all
the plaintiffs. See, e.g., ECF No. 1 ¶ 75. And, while it may be true that some people can apply for
adjustment of status outside of the country, it is not clear these plaintiffs would be able to continue
their applications if deported. See Kalilu v. Mukasey, 548 F.3d 1215, 1218 (9th Cir. 2008) (“If an
alien is removed, his adjustment application is deemed abandoned” and he “cannot reapply for
adjustment of status until he has reentered the United States.” (citing 8 C.F.R. §§ 245.1(a),
245.2(a)(4)(ii)(A))). And even if that subset of applicants could seek relief outside the U.S.,
deportation would mean they are barred from reentering the country for at least 5 years, and in
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some cases 10 or 20 years. See 8 U.S.C. § 1182(a)(9)(A). And, on top of all that, the defendants’
argument does not address the harm to plaintiffs of being separated from their families or returned
to violence in their home countries—in some instances, the very same countries in which they
faced abuse that may qualify them for immigration status. See ECF No. 14-5 ¶¶ 1, 13. 8
C. The Balance Of Equities And The Public Interest Favor The Plaintiffs
The balance of equities and public interest factors merge here because the government is
the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). The plaintiffs have satisfied these
factors. The plaintiffs seek to have their biometrics processed so that USCIS can evaluate their
eligibility for immigration status and they may avoid detention and risk of deportation. The
defendants have not contested that collecting biometrics is feasible, and, as discussed, have not
offered a rational explanation for changing their biometrics policy. The court has found the
plaintiffs are likely to succeed in showing that the biometrics policy violates the APA, and, as the
D.C. Circuit has explained, “[t]here is generally no public interest in the perpetuation of unlawful
agency action.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). “To
the contrary, there is a substantial public interest in having governmental agencies abide by the
federal laws that govern their existence and operations.” Id. (quotation marks omitted).
8
The defendants argue that the plaintiffs’ irreparable harm showing is undermined by the fact that they moved for preliminary relief five months after the biometrics policy was announced. ECF No. 17 at 39. But the plaintiffs have explained that this time was needed to develop a record that the defendants would not collect biometrics or facilitate transport for biometrics appointments, secure counsel, and arrange witness interviews. ECF No. 24 at 24–25. The court finds this explanation credible, and in light of the evidentiary record, the time that passed does not undermine the credibility of the plaintiffs’ irreparable harm. See Make the Rd. N.Y. v. Noem, 805 F. Supp. 3d 139, 172 (D.D.C. 2025) (explaining that only “unexplained delays in seeking emergency relief undermine” an irreparable harm showing); see also Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011) (stating that “a delay in filing is not a proper basis for denial of a preliminary injunction”).
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D. Scope Of Relief
The plaintiffs move for both a stay of the biometrics policy under section 705 of the APA
and a preliminary injunction “prohibiting DHS from refusing to take biometrics from noncitizens
in DHS custody to the extent necessary to adjudicate the merits of their applications for relief from
USCIS.” ECF No. 14-1 at 41–42. The court’s conclusion that the plaintiffs are likely to show the
biometrics policy violated the APA and also satisfied their burden under the remaining factors
warrants a stay under section 705 to restore the status quo before the unlawful agency action took
place, pending litigation. See Ctr. for Taxpayer Rts., 2026 WL 2635380, at *14 (explaining that
section 705 “allows a district court to preliminarily ‘postpone the effective date of an agency
action’ when ‘necessary to prevent irreparable injury’” (quoting 5 U.S.C. § 705)); District of
Columbia, 444 F. Supp. 3d at 15 (explaining that the “factors governing issuance of a preliminary
injunction also govern issuance of a § 705 stay” (collecting cases)).
While the plaintiffs point out that they have satisfied the typical preliminary injunction
factors, and that the APA or class action provisions may authorize broader relief, see ECF No. 14-1 at 42–43, the plaintiffs have not shown that additional relief is necessary on the current record.
The court finds that a section 705 stay—which does not “simply insulate certain parties from
enforcement measures” but acts as a temporary form of vacatur, “operat[ing] on the legal source
of authority for an agency to act at all”—is sufficient to restore the status quo before the biometrics
policy was implemented, in which DHS collected biometrics from detained people with pending
USCIS applications. Ctr. for Taxpayer Rts., 2026 WL 2635380, at *14; see Make the Rd. N.Y. v.
Noem, No. 25-5320, 2025 WL 3563313, at *16 (D.C. Cir. Nov. 22, 2025) (statement of Millett
and Childs, JJ.). The court therefore sets aside the biometrics policy, including the agency press
release and policy alert, and implementing agency actions, including the policy manual revisions
and rescission of the intradepartmental agreement requiring ICE to collect biometrics from
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detained people with pending USCIS applications. See ECF No. 14-2; ECF No. 14-3; ECF No.
14-4.
The defendants argue that setting aside agency action pending litigation under APA section
705 should apply only to the parties before the court, pointing to the Supreme Court’s ruling in
Trump v. CASA, Inc., 606 U.S. 831 (2025). See ECF No. 17 at 41. But the D.C. Circuit has
expressly acknowledged that “CASA does not control the scope of relief available under 5 U.S.C.
§ 705.” Ctr. for Taxpayer Rts., 2026 WL 2635380, at *14 (quotation marks omitted) (rejecting the
government’s argument that “the district court erred by entering relief that extended beyond the
parties”); see CASA, Inc., 606 U.S. at 847 n.10 (limiting relief based on the authority conferred by
the Judiciary Act of 1789 but leaving open “the distinct question whether the Administrative
Procedure Act authorizes federal courts to vacate federal agency action”); id. at 873 (Kavanaugh,
J., concurring) (explaining that, even after CASA, district courts may grant “the functional
equivalent of a universal injunction” by “preliminarily setting aside . . . an agency rule under the
APA”); see also Make the Rd. N.Y., 2025 WL 3563313, at *36 (statement of Millett and Childs,
JJ.) (explaining that the Supreme Court has applied section 705 to stay agency actions “in toto
pending judicial review without narrowing its relief to the parties at hand” (citing NFIB v. OSHA,
595 U.S. 109 (2022); West Virginia v. EPA, 577 U.S. 1126 (2016))).
III. Conclusion
For these reasons, the court grants in part and denies in part the plaintiffs’ motion for a stay
under 5 U.S.C. § 705 and preliminary injunction, ECF No. 14. The court grants a stay of the
biometrics policy and its implementation under section 705 of the APA and denies a preliminary
injunction. The court therefore orders:
• The defendants’ policy that they “generally will not take biometrics of detained aliens”
with pending applications to USCIS for immigration status, ECF No. 14-2; December 2025
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press release, id.; December 2025 policy alert, ECF No. 14-3; and implementation of the
policy, including policy manual revisions, ECF No. 14-4, and rescission of ICE’s
obligation to collect biometrics, see ECF Nos. 14-2, 14-3, are stayed under 5 U.S.C. § 705
pending resolution of this action, restoring the status quo in which DHS collected
biometrics for detained people with pending USCIS applications.
• The defendants shall file a status report by October 21, 2026, apprising the court of
compliance with this order.
AMIR H. ALI
United States District Judge
Date: October 7, 2026
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