Immigration – ‘Significant negative factor’ policy

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Where a policy has been adopted by U.S. Citizenship and Immigration Services that treats an individual’s nationality as a “significant negative factor” in the adjudication of their benefit application if they come from one of the countries listed in presidential proclamations, a motion for a preliminary injunction should be granted in part, as (1) the plaintiffs are likely to succeed on their claim that the significant negative factor policy is contrary to law insofar as it applies to applications for adjustment of status and work authorization and (2) certain plaintiffs have demonstrated that they are likely to be irreparably harmed absent preliminary injunctive relief and that the balance of the equities tips in their favor.

“This case concerns two United States Citizenship and Immigration Services (‘USCIS’) policies affecting the adjudication of discretionary benefit requests made by noncitizens living in the United States. Following a series of presidential proclamations declaring that certain countries have inadequate systems for vetting and screening noncitizens for admission into the United States, USCIS adopted a policy in November 2025 that treats an individual’s nationality as a ‘significant negative factor’ in the adjudication of their benefit application if they come from one of the countries listed in the proclamations. This decision refers to that policy as the ‘significant negative factor’ policy. Soon after, in December 2025 and January 2026, USCIS issued Policy Memoranda announcing an indefinite hold on the adjudication of benefit applications submitted by individuals from the identified countries, and all asylum applications, subject to certain exceptions. This policy is referred to as the ‘adjudicative hold’ policy.

“The approximately 200 plaintiffs in this case have various benefit applications pending before USCIS, including applications for asylum, naturalization, adjustment of status to that of a permanent resident, and work authorization. They have sued USCIS, the Department of Homeland Security, and four individuals in their official capacities — Donald J. Trump, as President of the United States; Markwayne Mullin, as Secretary of Homeland Security; Joseph B. Edlow, as Director of USCIS; and Dorothy Michaud, as Field Office Director of USCIS in Boston — claiming that the policies are ultra vires, arbitrary and capricious, and contrary to law, in violation of the Administrative Procedure Act (‘APA’); were adopted in violation of the APA’s notice-and-comment rulemaking requirements; and violate the due process and equal protection rights safeguarded by the Fifth Amendment to the United States Constitution. The plaintiffs have moved for an administrative stay of both policies or a preliminary injunction requiring the defendants to lift the adjudicative hold and cease applying the significant negative factor policy to their benefit applications. They assert that they are likely to succeed on the merits of their claims that the policies are contrary to law or arbitrary and capricious. The government argues that the Court lacks jurisdiction over certain of the plaintiffs’ claims, that its policies are not final agency action or constitute matters committed to agency discretion, and that the plaintiffs have not demonstrated a likelihood of success on the merits, irreparable harm, or a favorable balance of the equities.

“The plaintiffs’ motion for a preliminary injunction will be granted in part and denied in part. The Court concludes that the adjudicative hold and significant negative factor policies are final agency action subject to judicial review, that it has jurisdiction to consider challenges to those policies, and that the policies are not committed to agency discretion. On the merits, the Court concludes that the plaintiffs are likely to succeed on their claim that the adjudicative hold policy is contrary to law and arbitrary and capricious, and on their claim that the significant negative factor policy is contrary to law insofar as it applies to applications for adjustment of status and work authorization. By submitting declarations attesting to the harm they are experiencing because of USCIS’s policies, certain plaintiffs have demonstrated that they are likely to be irreparably harmed absent preliminary injunctive relief and that the balance of the equities tips in their favor. The parties will be ordered to confer regarding whether the remaining plaintiffs are likewise entitled to injunctive relief on the basis of facts contained in declarations not yet submitted to the Court and the reasoning that follows. …

“For the foregoing reasons, the motion for a preliminary injunction and administrative stay, ECF 8, is granted in part and denied in part. The Court orders as follows:

“(1) The defendants are enjoined from enforcing the adjudicative hold policy, set forth in PM 602-0192 and PM 602-0194, to the pending benefit applications of the 22 plaintiffs who submitted declarations. The defendants are ordered to immediately lift the adjudicative hold as to those plaintiffs.

“(2) The defendants are enjoined from enforcing the significant negative factor policy, set forth in PA 2025-26, to pending applications for adjustment of status and work authorization of any of the 22 plaintiffs who submitted declarations. The defendants are ordered to cease applying the significant negative factor policy to the adjudication of those plaintiffs’ applications for adjustment of status and work authorization.

“(3) The parties are ordered to confer regarding whether this Order should likewise apply to the plaintiffs who have not filed declarations with the Court. The parties are further ordered to file a status report by May 7, 2026 identifying which plaintiffs have demonstrated irreparable harm, and thus may be covered by this Order, in accordance with the Court’s determinations concerning the 22 plaintiffs whose declarations it reviewed. If the parties are unable to reach agreement, the plaintiffs are ordered to submit the contested declarations to the Court, with appropriate redactions, by May 11, 2026.”

Doe, et al. v. Trump, et al. (Lawyers Weekly No. 02-246-26) (45 pages) (Kobick, J.) (No. 1:25-cv-13946-JEK) (April 30, 2026).

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