Jigar Babaria v. Antony Blinken ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIGAR BABARIA; MIRAL PATEL; No. 22-16700
SRINIVAS MUKUNDA;
NAGANANDINI CHITTA; S.M., a D.C. No. 3:22-cv-
minor, by and through their guardian 05521-SI
Srinivas Mukund; RAVI CHERUKU;
SWAPNA KONDA; S.C., a minor, by
and through their guardian Ravi OPINION
Cheruk; S.C., a minor, by and through
their guardian Ravi Cheruk;
MARTIAL ANTONY JOSEPH
LOURDES CAEN MARTIAL;
SWAPNASREE BANGALORE
ARUMUGAM; R.M.A.J., a minor, by
and through their guardian Martial
Antony Joseph Lourdes Caen Martia;
SHEETAL MUNJEWAR; RUPALI
MUNJEWAR; R.M., a minor, by and
through their guardian Sheetal
Munjewa; BHUVARAHAN
SRINIVASAN; VAISHNAVI
KOTHANDARAMAN; H.B., a minor,
by and through their guardian
Bhuvarahan Srinivasa; SANJAY
BHAVE; ANANYA BHAVE; B.B., a
minor, by and through their guardian
Sanjay Bhav; VENKAT
VELAGALA; CHAITANYA
2 BABARIA V. BLINKEN
VELAGALA; A.V., a minor, by and
through their guardian Venkat
Velagal; MOHIT SAXENA;
GARIMA SAXENA; A.S., a minor,
by and through their guardian Mohit
Saxen; YOGESHKUMAR PATEL;
RUCHI PATEL; SAHIL SHAH;
SHALINI NEGI; VINOD
MACHCHARLA; SRIJA PANNALA;
NEHUL PATEL; CHARMI PATEL;
KRISHNA SUNIL YEKASI;
LAKSHMI KRISHNA NEELIMA
ATLA; BHARGAVA DEEPAK
KONIDENA; SRINIVAS SRIRAM
KATURI; PONNADA SOUJANYA;
SRIKAR PACHVA; PRAVEENA
KANDIMALLA; SUJAY
SHYAMSUNDAR KULKARNI;
RENUKA CHANDRAKANT
CHILAJWAR; RISHI VERMA;
SHILPA VERMA; JAIMIN DAVE;
DISHA DAVE; BANDAN DAS;
VIDYA DADDALADKA;
HARIKANTH BANDA; ANITHA
CHEEKOTI; GAURAV NARULA;
NIDHI NARULA; ANUSHIYA
KANDASAMY; MANIVANNAN
CHELLAPPA; NITHIN SOMA;
VIJAY ARAVIND RAJAGOPALAN;
SHARMILA GOPALAKRISHNAN;
HARISH MURTHY; KAVYA
RAMESH RAJAN; KEERTHI
VARMAN ANNA JAYAPRAKASH;
BABARIA V. BLINKEN 3
MONISHA SOLAI ASHOK;
RANJANI PAI; GNANASEKARAN
GOVINDAREDDYPALAYAM
THIRUMAL; JAYASHREE
RAMAMOORTHY; NAGA
CHANDANA KORITALA;
KAUSHIK SIRVOLE; SHAKTHI
ARTHANARI; MADHUSUDHAN
KOODIGE; MITHUN MATE;
HARSHA SONDAWALE;
SUDHEER KUMAR ESSA;
ANNAPURNA JALAMADUGU;
SRINIVASA KOPPULA; SUJATHA
BATTINENI; SUDHEESH PILLAI;
MEENA VIJAYAKUMAR;
VALLISH GURU
VAIDYESHWARA; PALLAVI
HIRANNAIAH KALALE; FNU
SREEDHAR NATARAJAN;
PRASANNA RAMACHANDRAN;
SUBHRAMANYA KRISHNA
CHAITANYA PANUGANTI
VENKATA; VENKATA ANUSHA
GUNUGANTI; ONKAR
WALAVALKAR; PURVA JOSHI;
SARATBABU GINJUPALLI;
NARMADA KARTHIKA
CHITTURI; NAY THAKER;
MEGHA PABBY; SHANKAR
DHEERAJ KONIDENA; NAGA
RUKMINI SRIHARIKA DURGA,
Plaintiffs-Appellants,
4 BABARIA V. BLINKEN
v.
ANTONY J. BLINKEN, Secretary,
United States Department of State; UR
M. JADDOU, Director, United States
Citizenship and Immigration Services,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
VIKAS SINGH; VANDANA SINGH, No. 22-35702
Plaintiffs-Appellants, D.C. No. 2:22-cv-
01180-RAJ
v.
UR M. JADDOU, Director, United
States Citizenship and Immigration
Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
SIDHARTHA DATTA; MILLY No. 22-35773
BABARIA V. BLINKEN 5
SHARMA; A.D., a minor, by and
through their guardian Sidhartha D.C. No. 2:22-cv-
Datta; NAGI JONNALA; SWARNA 01302-JHC
GUNTAKA; V.S.J., a minor, by and
through their guardian Nagi Jonnala;
S.J., a minor, by and through their
guardian Nagi Jonnala;
SRINIVASULU MADARAPU;
ANURADHA MADARAPU;
V.A.C.M., a minor, by and through
their guardian Srinivasulu Madarapu;
SATHYA PRAKASH
VEERICHETTY; POORANI
DHARMASIVAM; S.S.P., a minor,
by and through their guardian Sathya
Prakash Veerichetty; BIKRAM
KUMAR SAHOO; NAMITA
MISHRA; S.S., a minor, by and
through their guardian Bikram Kumar
Sahoo; S.S., a minor, by and through
their guardian Bikram Kumar Sahoo;
SHAILESH NIRGUDKAR; DURGA
NIRGUDKAR; S.N., a minor, by and
through their guardian Shailesh
Nirgudkar; VENKATA SUDHAKAR
RAO MADDISETTY; SUJEEVANA
PULAGAM; S.M., a minor, by and
through their guardian Venkata
Sudhakar Rao Maddisetty;
SANDILYA DAMODARA;
JYOSTNA DAMODARA; S.D., a
minor, by and through their guardian
Sandilya Damodara; ASHOK JEKKA
6 BABARIA V. BLINKEN
JOTHIKRISHNAN; SHALINI
MUSUVATHY
BALASUBRAMANIAN;
SACHINTHA JOTHIKRISHNAN
ASHOK; HARISH THERANIKAL;
MADHULIKA THERANIKAL; R.T.,
a minor, by and through their guardian
Harish Theranikal; ABDUL SAMEER
SHAIK; RESHMIN CONTRACTOR;
R.S.A., a minor, by and through their
guardian Abdul Sameer Shaik;
VISWANADHA REGADAMILLI;
SRIDEVI REGADAMILLI; R.S., a
minor, by and through their guardian
Viswanadha Regadamilli;
RAMANAN RENGARAJ;
SIVASANKARI RAMANAN; R.R., a
minor, by and through their guardian
Ramanan Rengaraj; VIDYADHAR
JANGALE; MANISHA JANGALE;
RISHIKESH JANGALE;
RANADHEER R. VANGATE;
PRUDHVI REDDY BADDAM;
ABILASHA RANGARAJAN;
VENKATRAMAN RAJAGOPAL;
P.V., a minor, by and through their
guardian Abilasha Rangarajan;
MUKUL SATHE; APARNA SATHE;
P.S., a minor, by and through their
guardian Mukul Sathe;
SARAVANAN SANMUGAVEL;
MUTHULAKSHMI
RAMACHANDRAN; P.S., a minor,
BABARIA V. BLINKEN 7
by and through their guardian
Saravanan Sanmugavel; DEVA
SURESH DACHURI; MEENA
DACHURI; P.M.Y.D., a minor, by
and through their guardian Deva
Suresh Dachuri; NUTAN KUNALA;
MEENA CHITTURI; P.M.K., a
minor, by and through their guardian
Nutan Kunala; MANIVANNAN
VENKATARAMANUJAM; CHITRA
SEENIVASAN; P.M., a minor, by and
through their guardian Manivannan
Venkataramanujam; SENTHIL VEL
GUNASEKARAN; N.S., a minor, by
and through their guardian Senthil Vel
Gunasekaran; SANDEEP
DESHPANDE; DEVYANI
DESHPANDE; M.S.D., a minor, by
and through their guardian Sandeep
Deshpande; KODAMANA
SHIMJITH DIVAKAR; RENJIMA
DIVAKAR; MALAVIKA
DIVAKAR; M.D., a minor, by and
through their guardian Kodamana
Shimjith Divakar; KRISHNA RAO
RAPARLA; DEVI RAPARLA;
L.S.R., a minor, by and through their
guardian Krishna Rao Raparla; R.R., a
minor, by and through their guardian
Krishna Rao Raparla;
VIJAYABHASKARA KUNAM;
SUMALATHA SIDDAREDDY; L.K.,
a minor, by and through their guardian
8 BABARIA V. BLINKEN
Vijayabhaskara Kunam; WASEEM
SHERIFF HUMAYOON SHERIFF;
HAMEEDA FOIZ WASEEM
SHERIFF; L.E.W.S., a minor, by and
through their guardian Waseem Sheriff
Humayoon Sheriff; NARAYANA
LATCHI; KUSUMA LATCHI;
LAKSHMI LATCHI; S.L., a minor,
by and through their guardian
Narayana Latchi; FNU MADHU
SUDAN; HIMANI KAPOOR; K.K., a
minor, by and through their guardian
Fnu Madhu Sudan; JAYAPRAKASH
RADHAKRISHNAN;
THIRUPURASUNDARI
JAYAPRAKASH; K.J., a minor, by
and through their guardian
Jayaprakash Radhakrishnan; ANUJ
JAISWAL; MADHULIKA JAIN;
K.J., a minor, by and through their
guardian Anuj Jaiswal; GAUTAM
GUPTA; K.G., a minor, by and
through their guardian Gautam Gupta;
NAGENDRA GONDHI; YASHIKA
KETIPALLI; K.G., a minor, by and
through their guardian Nagendra
Gondhi; BABUL GANESINA;
NAGA GANESINA; J.G., a minor, by
and through their guardian Babul
Ganesina; D.G., a minor, by and
through their guardian Babul
Ganesina; PRANAV SINGH;
HARPREET KAUR; I.K., a minor, by
BABARIA V. BLINKEN 9
and through their guardian Pranav
Singh; VISHAL AYAPILLA;
VENKATA SANTOSH RUPA
KUMARI AYAPILLA; H.A., a minor,
by and through their guardian Vishal
Ayapilla; UMAKANT PATEL;
RAMYATA PATEL; D.U.P., a minor,
by and through their guardian
Umakant Patel; TAPAN K DAS;
NEERJA SAHU; D.D., a minor, by
and through their guardian Tapan K
Das; S.K.D., a minor, by and through
their guardian Tapan K Das; SUSHIL
KUMAR; SHIVANI SHARMA;
AYUSHI SHARMA; PAVAN
DEVULAPALLY; SWAPNA
MADHURI NAMAVARAPU;
A.S.D., a minor, by and through their
guardian Pavan Devulapally;
ANURAG SHARMA; NIDHI
SHARMA; AYUSHI SHARMA;
JEETENDRA RODDAM; VASAVI
RODDAM; A.R., a minor, by and
through their guardian Jeetendra
Roddam; N.R., a minor, by and
through their guardian Jeetendra
Roddam; JAYANT NAMJOSHI;
SARITA NAMJOSHI; A.J.N., a
minor, by and through their guardian
Jayant Namjoshi; LAKSHMI
ISUKAPALLY; SAYEERAM
GUNDU; ABHIRAAM GUNDU;
A.G., a minor, by and through their
10 BABARIA V. BLINKEN
guardian Lakshmi Isukapally; LAXMI
KONDAPALLI; PRAVEEN
DEVARAPALLY; ABHINAV
DEVARAPALLY; ANOOP
GOPALAKRISHNAN; DEVI
PARVATI CHITRA; A.A.M., a
minor, by and through their guardian
Anoop Gopalakrishnan; VENKATA
NATTI; ASWINI KETTE;
CHANDRA KOTA; RAMYAH
RAMMOHAN SYAMALA;
RAJENDRA DANDA; LAKSHMI
RAMYA SILPA ALAPATI;
NEETHU ELIZABETH SIMON;
BOBEN PHILIP; VENKATA
VISHNU CHAKRADHARA RAO
JYOTHULA; KIRANMAI
MADDURI; SHASHIKANT
TIWARI; RITA TIWARI;
CHANDRASHEKHAR
BHARATIPUDI; PREETHI
NAGARAJU; NARAYANA
MURTHY CHUNDURI; LAKSHMI
SOWJANYA MUNDLURI; KARTIK
DESAI; DARSHANA DESAI;
AMEY PARMARTHI; POORNA
DHAMANKAR; UMANG
BHARDWAJ; EESHA ACHARYA;
SNEHAL M PATEL; KIRTI VEGAD;
RAGHAVENDAR AMBALA;
KRISHNA REGANI; ANOOP
BALAKRISHNAN RADHAMMA;
REMYA NEKKUTH MELATH;
BABARIA V. BLINKEN 11
RENJITH CHANDRAN PILLAI;
SREEPARVATHY JAYALEKSHMI;
BALAJI CHIDAMBARAM;
SANGEETHA PARTHIBAN;
RAJESH UPADHYAY; PRERNA
SINGH; THENNARASU
ESWARAN; GOWRIDEVI
NATARAJAN; SRINIVAS
JAKKULA; NAYEENTARA
ATMAKUR; YETHENDRA PAIDA;
RAMYA SETTIGIRI; AKSHIL
SHAH; KARISHMA SHAH;
BHAGYA SHREE SHEKHAWAT;
SANDEEP SHEKHAWAT;
CHETHAN RAO; DEEPTI
BETTAMPADI; ARVIND
RANGARAJAN; AISWARYA
ARVIND; KIRAN AVVARU;
CHANDANA METIKALA; HIMANI
AJAY MANGLANI; AJAY
MANGLANI; SRIKIRAN NELLI;
VENKATA PARAMSETTY;
MAYANKKUMAR PATEL;
MITVIBEN GARACHH; KANCHAN
ANANDMADHAV DAMLE;
HARDIK SHANKARLAL MODI;
PUSHPAK ARVIND KULKARNI;
PRAJAKTA SUDHIR GOKHALE;
VAMSHI BASIKA; MILKA
BASIKA; ARPIT AGARWAL;
SHWETA AMARJEET SINGH;
VIJAY MOHAN RAGI; BHUVANA
DEVI GANESAN; AKHIL KAMMA;
12 BABARIA V. BLINKEN
APOORVA BUGGAVEETI; MOHIT
KUMAR MAHAJAN; SHRADHA
MAHAJAN; RISHI MASHELKAR;
PAYAL TADE; NANDA KISHORE
REDDY VEERAPU REDDY; UMA
MAHESWARI NAGELLA;
RAZIUDDIN MOHAMMED;
SABINA KHAN; CHAITHANYA
BOTTA KRISHNA; KEERTHI SREE
KANTAM; CHANDRASEKHAR
GADDIPATI; TEJASWI
MUMMANENI;
HARSHAVARDHAN SHIVARAM
GANGOLLI BHAT; NIYATA
HARSHAVARDHAN BHAT;
KANNAPIRAN KALEESWARAN
SAMPATH; SINDHUJA SELVAN;
BHAGYA NAGA RAJA
MUKKAMALA; REVATHI DEVI
MUKKAMALA; BHARATH
RAMKUMAR; VASANTHI
NARAYANAN; SHAKEER AHMED
MOHAMMAD; SADIYA
SULTANA; NAGARJUNA
PARUPALLI; NARMADHA
RAJKUMAR; SRAJAN KUMAR
MALLINENI; SINDHU KONERU;
SAI KIRAN TOGITA; SAI KRUSHI
VALLAKONDA; SUBRAHMANYA
VEDANTHAM; SUPRAJA
NAGAMANGALAM; KHWAJA
MOHINUDDIN KHAN; NO NAME
GIVEN WASEEM BANU;
BABARIA V. BLINKEN 13
KADHIRY SALAI ABDUL
KHALIQU; HALIMA SANOFER
SEYED MOGDOOM; ANIRUDHA
BOKIL; KAVITA KAMTIKAR;
HARSHITKUMAR PARMAR;
SEFALI JADAV; SRINU BABU
JANYAVULA; BHARGAVI
YERRAPOTHU; PRASAD
MOHAPATRA SAKTI;
DEBAHRUTI MISHRA;
LAKSHMIKANTHAN KASI;
REVATHI BAALA
JANAKIRAMAN; KIRTHINIDHI
BANDAKGANGADHAR;
SHAILAJA PATIL; ARATI
KELEKAR; ANUPAM SULE;
RAGESH RAMCHANDRAN NAIR;
NIVEDITA NAIR;
MAYANKKUMAR PATEL;
AMRUTA PATEL; SREEHARSHA
PANGULURI; LAVANYA
INAMPUDI; CHINTAN
MAHESHKUMAR VAKHARIA;
KHUSHALI VAKHARIA;
SASANKA ANNAPUREDDY;
HARIKA BODDU; PADMA
KATAPALLI; MADHUSUDHAN
PANTULA; KALYAN
ALUGUBELLY; NAGA HARISHA
KARANAM; PRIYANKA ANAND;
ARUN SHARMA; KRISHNA RAO
MOKIRALA; SWATHI
MURAHARI; PAYAL MUTHA;
14 BABARIA V. BLINKEN
YASHRAJ KURANI; VIKRANTH
CHALASANI; MANASA AMBATI;
SWETALKUMAR BRAHMBHATT;
MEHA DESAI; KARTHIK
RAJASHEKARAN; MAYANK
SRIVASTAVA; PRATIKSHA
MADANSWAROOP SAXENA;
AMITKUMAR UMEDKUMAR
TANNA; KHYATI TARUNKUMAR
SHAH; VENKATA RAMANA
DHUGGISHETTY; SHIRISHA
RAMAKUMAR VALAKONDA;
ALVIN GEORGE; JOISE JOY
KALLARAKKAL; VIKRANTH
CHALASANI; MANASA AMBATI;
SURYA KAMAL KIRAN
KUCHIBHOTLA; PRATHYUSHA
DWIVEDULA; PRASHANT
DHODLA; SRAVANI KOMMURI;
KRISHNA CHAITANYA
MEDASANI; SWAPNA
PATCHAVA; ANURAG
AMBEKAR; ANUJA DESHPANDE;
ARNAB SOM; ARUPA SOM;
NIKHIL UPADHYAY; ARCHITA
UPADHYAY; VENKATA SRI SAI
ARCHANA STHANAM; ROHIT
BHOSEKAR; KAUSHIK
VENKATESAN SUNDARESA;
MAHALAXMI KRISHNAMURTHY;
ANANDA ROY; TAMASI ROY;
KAUSHIK VENKATESAN
SUNDARESA; MAHALAXMI
BABARIA V. BLINKEN 15
KRISHNAMURTHY; NARAYAN
RAJARAM; ARTHI
UTHAMARAJAN; VEERA
MADDIMSETTI; RADHA GOWRI
MADDIMSETTI; SRIKANTH
GADEELA; PRIYADARSHINI
GADEELA; RAMYA
UTHAMARAJAN; RANJANI PAI;
DEEPAK CHAMAN CHHABRA;
PALAK ARORA; GAYATHRI DEVI
ATHREYAPURAPU; KIRAN
KUMAR REDDY ENDREDDY;
DURGA VARA PRASADA RAO
NARINDI TULASI VENKATA;
SWATHI MALEY; PRANEETH
KUMAR CHALLA; VIDYA AERY;
HARISH CHANDA; VENKATA
BODLA; RANGANATH
LINGUNTLA; SANDYARANI
GALI; PRAVEEN KUMAR
MANTHRI; SWETHA MERUGU;
SAILATHA CHANDRASEKAR;
RASHPAL SINGH GILL; JASPREET
KAUR GILL; SAIRAM THENNETTI
SUBBARAMAN; ESWARA RAO
CHANGHALASETTY;
PRANEETHA LELLA;
SUBRAHMANYAM ADDALA;
SIRISHA TANNERU; NAVEEN
VEMULA; SINDHURA BOJJA;
TEJVARUN GARLAPATI;
MADHUSWETHA PESALA;
GAUTAM PARAB; MANISHA
16 BABARIA V. BLINKEN
PARAB; SAHITHI VIDUKULLA;
SAKETH GAGGENAPALLI;
SHRAMIKA REDDY BOJJA;
KISHORE BRAMHAMDAM
PHANINDRA SIVA; CHETANA
MADIRAJU; KISHORE
BRAMHAMDAM PHANINDRA
SIVA; CHETANA MADIRAJU;
KISHORE KUMAR RAJU ALLURI;
NAGA MONIKA PENMETSA;
VENKATA SATISH POTINENI;
DHARITRI BOLLINI; ASHISH
CHITALIA; SHRUTI CHITALIA;
CHAITHANYA VANAMA;
KEERTHI TADAKAMALLA;
ASHOK KANDIKANTI; POOJA
SABGANI; VIJAY K
THUMMAIPALLI; NAGA
VENKATA LAKSHMI PAVANI
BURELA; RANJANA REGUNATHA
SARMA; SHRIRAM KRISHNAN;
PRAMOD LUMBURU; SARNAYA
GUNASEKARAN; BHAVANA
VARALA; KARAN VINAY K.
PASPULETE; WILSON VICTOR
GOMES; MARIYA LAVEENA
RODRIGUES; ANKUSH BHATIA;
FNU KIRAN JOT KAUR; AJIT
RAJAGOPAL VENKATESAN;
ARTHI NAGARAJAN; KISHORE
KURAPATI; KAVITHA KOTA;
BHASKAR APPARAJU VENKATA;
PADMAJA GANUGAPATY;
BABARIA V. BLINKEN 17
KRANTHI KOTTHA; AARTI
RANGWAR; ANIL KAKUMANU;
ALEKHYA KURMALA; MUKUND
RAJENDRAN; SOWMIYA
VENKATARAMAKRISHNAN;
HANEESH KUMAR PEPALA;
KRANTHI NALLAMOTHU; ROHIT
KUMAR AMBALA; KARTHICK
KUMAR KAVINDAPADI
NAGARAJAN; VISHAY VANJANI;
TANVI GALOHDA; BHARGAVA
KALATHURU; SWAPNA REDDY
BAITAPALLI; MANSI
PEDGAONKAR; HRISHIKESH
TENDULKAR; UDAY MARIPALLI;
SHALINI RAVI; YASHWANTH
SHEELAVATHI KAMALANATH;
NO NAME GIVEN MELKOTE
SUNDAR RAJAN NAGABRINDA;
SNEHA NAGENDRA; ASHISH
AMARNATH; GAURAV
RAJASEKAR; VIDYA
SADANANDAN; BHUPENDER
PANWAR; SEEMA MALIK;
SATEESH NAGULAPALLY;
KEERTHANA BACHARAJU;
VASANTH KUMAR NAGARAJAN;
PRIYADARSHINI RAVIKUMAR;
SHANTHAN REDDY PASHAM;
KIRANMAYEE KANDADI;
GAURAV ANAND (NO LAST
NAME); SHELLY JUNEJA;
CHANDANA TUMMALA;
18 BABARIA V. BLINKEN
SRIKANTH MAKINENI; RAJESH
SAGIRE; RADHIKA AKULA;
MAYUR PATEL; ANKITA PATEL;
ANAND VENKATESWARAN;
VIDHYA ANAND; MAHESH
CHUDAMANI; DEEPIKA DIXIT;
PAYAL SHANTILAL MUTHA;
YASHRAJ KURANI; PARIKSHIT
SHARMA; MISHA SHARMA,
Plaintiffs-Appellants,
v.
UR M. JADDOU, Director, United
States Citizenship and Immigration
Services; ANTONY J. BLINKEN,
Secretary, United States Department
of State,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
John H. Chun, District Judge, Presiding
Argued and Submitted March 29, 2023
Seattle, Washington
Filed December 1, 2023
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,
BABARIA V. BLINKEN 19
Circuit Judges, and Philip S. Gutierrez, * Chief District
Judge.
Opinion by Judge Nguyen
SUMMARY **
Immigration/Preliminary Injunctions
In consolidated appeals, the panel affirmed the district
courts’ denials of injunctive relief in cases in which plaintiffs
sued to compel U.S. Citizenship and Immigration Services
to act on their applications for adjustment of status.
Plaintiffs are natives of India who have lawfully worked
in the United States for years. Their employers sponsored
them for immigrant visas, and plaintiffs have been waiting
in a visa queue for more than 10 years. After the State
Department estimated that it had reached plaintiffs’ places
in line, plaintiffs applied for adjustment of status to become
lawful permanent residents, but the State Department then
revised its forecast and concluded that it had hit the visa cap
for the year. Before the district courts, plaintiffs moved to
enjoin the government from considering the availability of
visas when evaluating their applications.
*
The Honorable Philip S. Gutierrez, Chief United States District Judge
for the Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
20 BABARIA V. BLINKEN
The panel concluded that the district court properly
denied injunctive relief, determining that plaintiffs are
unlikely to succeed on the merits of their claims. Plaintiffs
contended that 8 C.F.R. § 245.2(a)(5)(ii) violates
Congressional intent by requiring an immigrant visa to be
available before the government can adjudicate an
adjustment application. Looking to the statute governing
adjustment of status, 8 U.S.C. § 1255(a), the panel explained
that nothing in its text conflicts with the regulation, and the
Immigration and Nationality Act is otherwise silent on the
issue. The panel also rejected plaintiffs’ arguments that
other statutory provisions, as well as legislative and
regulatory history, supported their positions. Further, the
panel explained that the regulation is consistent 8 U.S.C.
§ 1255 and reasonably fills in a procedural detail left open
by Congress.
COUNSEL
Brad Banias (argued), Banias Law LLC, Charleston, South
Carolina, for Plaintiffs-Appellants.
Alessandra Faso (argued) and Joseph G. Nose, Trial
Attorneys; Glenn M. Girdharry, Deputy Director; William
C. Peachey, Director; Brian M. Boynton, Principal Deputy
Assistant Attorney General; United States Department of
Justice, Civil Division, Office of Immigration Litigation,
District Court Section, Washington, D.C.; Elizabeth D.
Kurlan, Trial Attorney, United States Department of Justice,
United States Attorney’s Office, San Francisco, California;
for Defendants-Appellees.
BABARIA V. BLINKEN 21
OPINION
NGUYEN, Circuit Judge:
Plaintiffs, natives of India, have lawfully worked in the
United States for years. Their employers sponsored them for
an immigrant visa—the first step to obtaining a “green card”
entitling them to lawful permanent resident status. But due
to the long and arduous process, plaintiffs have been waiting
in an immigrant visa queue for more than 10 years.
The root of the problem is mismatched supply and
demand. The Immigration and Nationality Act (“INA”) caps
the number of immigrant visas available each year. The cap
has not changed since 1995 even though demand for a green
card has substantially increased and consistently exceeds
supply. Consequently, there is a long and growing line of
green card seekers.
After the State Department estimated it had reached their
places in line, plaintiffs applied to U.S. Citizenship and
Immigration Services (“USCIS”) for a green card. As lawful
permanent residents, plaintiffs would no longer face
restrictions on work or international travel, among other
benefits. But before USCIS processed plaintiffs’
applications, the State Department revised its forecast and
concluded that it had already hit the immigration cap for the
year. That means, as USCIS and the State Department
(collectively, “the government”) interpret the INA, plaintiffs
will have to wait indefinitely to adjust their status until more
immigrant visas become available in a future fiscal year.
Plaintiffs challenge the government’s interpretation of
the INA. Before the State Department announced it had hit
the immigration cap, plaintiffs sued to compel USCIS to act
22 BABARIA V. BLINKEN
on their applications for adjustment of status. The district
courts denied injunctive relief.
We affirm. The government’s procedure, while
understandably frustrating, comports with longstanding
policy. Although the State Department initially estimated
that it had immigrant visas available to plaintiffs, an estimate
is not a guarantee. The State Department can and must
revise its estimate when the circumstances change.
Therefore, plaintiffs are unlikely to establish that their
claims are meritorious. See Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (requiring a plaintiff to establish,
among other factors, a likelihood of success on the merits to
obtain injunctive relief).
I. BACKGROUND
A. Adjusting status to lawful permanent resident
A noncitizen who is lawfully present in the United States
and seeks lawful permanent residence generally must (1)
apply for adjustment of status; (2) be eligible for an
immigrant visa and admission to the United States for
permanent residence; and—at issue here—(3) have an
immigrant visa “immediately available to him at the time his
application is filed.” 8 U.S.C. § 1255(a); see also id.§ 1181(a), (c) (requiring immigrants other than refugees to
obtain a visa). The Attorney General “may” adjust the status
of a noncitizen who satisfies these statutory requirements “in
his discretion and under such regulations as he may
prescribe.” Id. § 1255(a).
Under one such regulation, an employment-based
application for adjustment of status “shall not be approved
until an immigrant visa number has been allocated by the
Department of State.” 8 C.F.R. § 245.2(a)(5)(ii). Once an
BABARIA V. BLINKEN 23
application is approved, the Attorney General must record
the noncitizen’s lawful admission for permanent residence
“as of the [approval] date,” and the Secretary of State must
“reduce by one the number of [employment-based]
preference visas authorized to be issued.” 8 U.S.C.
§ 1255(b).
Thus, an immigrant visa must be available both when an
application for adjustment of status is filed per the statute,
id. § 1255(a), and when the application is approved per the
regulation, 8 C.F.R. § 245.2(a)(5)(ii). Availability, however,
is a moving target. An immigrant visa that is available when
the noncitizen applies to adjust status can become
unavailable by the time the application is processed and
ready to be approved due to the chicken-and-egg nature of
the determination. Applying for adjustment of status
requires visa availability, but visa availability turns on the
number of applications for each category of visa.
B. Numerical limitations on employment-based
immigrant visas
Obtaining an immigrant visa usually requires
sponsorship by a U.S. citizen relative or employer, and often
a years-long wait. 1 See 8 U.S.C. §§ 1151(a)(1)–(2),
1153(a)–(b). For employment-based visas, a sponsoring
employer generally files an immigrant petition on the
noncitizen’s behalf. See 8 C.F.R. § 204.5(a). An approved
immigrant petition is required for a green card. See id.§ 245.2(a)(2)(i)(B). But neither sponsorship nor an
approved immigrant petition guarantees an available visa;
1
Another route to an immigrant visa is luck. A lottery promoting
diversity allocates a limited number of visas each year regardless of
sponsorship. See 8 U.S.C. §§ 1151(a)(3), 1153(c); 22 C.F.R. § 42.33(c).
24 BABARIA V. BLINKEN
the INA limits the annual number of immigrant visas except
for immediate family members and a few other special
groups not implicated in this appeal. See 8 U.S.C. § 1151.
The authorized number of employment-based immigrant
visas varies from year to year and from person to person,
depending on several dynamic, interrelated factors. As a
starting point, the State Department—the agency tasked with
calculating visa availability, see id. § 1255(b)—can
authorize 140,000 employment-based visas during each
fiscal year. See id. § 1151(d)(1)(A). In addition, any family-
sponsorship visas that were authorized but unallocated
during the previous year can be reauthorized as employment-
based visas. See id. § 1151(d)(1)(B), (2)(C).
Two other statutory provisions limit the number of
employment-based immigrant visas available to individual
applicants. First, the INA imposes country-based
immigration caps—no more than seven percent of the
combined family- and employment-based visa
authorizations may be allocated to natives of any single
state. 2 See id. § 1152(a)(2). Second, certain types of
immigrant visas are also capped. Employment-based visas
fall into one of five “preference” categories, defined by
characteristics of the immigrant’s skills or job, and each
2
More precisely, the seven-percent cap applies to applicants who are
“chargeable” to a particular country. See 8 U.S.C. § 1152(b); see also
id. § 1255(b) (providing that approved green card applications
“reduce . . . the number of preference visas authorized to be issued under
[8 U.S.C. §§ 1152 and 1153] within the class to which the alien is
chargeable”). Noncitizens are typically chargeable to their country of
birth, but there are exceptions to promote family unity. See 8 U.S.C.
§ 1152(b)–(c); 22 C.F.R. § 42.12. Throughout this opinion, we use
“native of” and “chargeable to” interchangeably because the differences
are immaterial to the issue before us.
BABARIA V. BLINKEN 25
preference category has its own percentage limits. See id.§ 1153(b). For example, visa allocations in each of the two
preference categories at issue here—individuals with
advanced professional degrees or exceptional ability (“EB-
2”) and skilled workers, professionals, and other workers
(“EB-3”)—ordinarily cannot exceed 28.6% of all
employment-based visas worldwide. See id. § 1153(b)(2)–
(3).
To avoid available visas going unused, two key
provisions apply when an employment preference category
is undersubscribed. One lifts the seven-percent country cap
in any calendar quarter where “the total number of visas
available” in a particular preference category “exceeds the
number of qualified immigrants who may otherwise be
issued such visas.” 3 Id. § 1152(a)(5). The other lifts the
percentage caps on certain preference categories by making
available unused visas in other categories—thus allowing
visas to “fall down” from one category to another. See id.
§ 1153(b)(1), (2).
These provisions greatly benefit immigrants from India.
The exception to country caps in § 1152(a)(5) has been
applied every year since 1990, when the current statutory
scheme was established, and the “fall down” provisions in
§ 1153(b)(1) and (2) particularly help Indians seeking EB-2
visas. For example, in fiscal year 2021 (October 2020
through September 2021), Indian nationals used 47% of all
EB-2 visas and 27% of all EB-3 visas.
3
The State Department sets monthly and quarterly limits on the number
of immigrant visas that may be issued. See 22 C.F.R. § 42.51(a).
26 BABARIA V. BLINKEN
C. Employment-based immigrant visa queues
The State Department processes the immigrant visa
queue “on a ‘first-come, first-served’ basis.” Tovar v.
Sessions, 882 F.3d 895, 897 (9th Cir. 2018) (quoting
Scialabba v. Cuellar de Osorio, 573 U.S. 41, 48 (2014)
(plurality opinion)). Petitions for an employment-based
immigrant visa receive a “priority date” marking the
applicant’s place in the queue. Visas chargeable to any
given country and preference category combination must be
issued to eligible immigrants in the order of their priority
dates. See 8 U.S.C. § 1153(e)(1); 22 C.F.R. § 42.51(b). For
EB-2 and EB-3 visas, the priority date is usually the date that
the Department of Labor accepts for filing the sponsoring
employer’s application for labor certification. 4 See 8 C.F.R.
§§ 204.5(d), 245.1(g)(2); 22 C.F.R. § 42.53(a).
Based on the number of available visas and the priority
dates of those in the queue, the State Department determines
cutoff dates for each country in each preference category.
These “final action” dates, which the State Department
publishes in its monthly Visa Bulletin, represent the first
priority date for which a visa is unavailable. See U.S. Dep’t
of State, Bureau of Consular Affs., Visa Bull.,
https://perma.cc/GN3P-VEXL. Put differently, the State
Department projects that a visa will be immediately
available to any immigrant with a priority date earlier than
4
Before submitting an immigrant petition on the noncitizen’s behalf,
most sponsoring employers must first obtain certification from the
Department of Labor that insufficient qualified U.S. workers are
available for the position and the noncitizen’s employment will not
adversely affect wages and working conditions. See 8 U.S.C.
§ 1182(a)(5)(A)(i); 8 C.F.R. § 204.5(a)(2), (c); see also 8 U.S.C.
§ 1153(b)(3)(C). If labor certification is not required, the priority date is
the date of the properly filed immigrant petition. See 8 C.F.R. § 204.5(d).
BABARIA V. BLINKEN 27
the published final action date. If the State Department
anticipates being able to accommodate all visa petitions
chargeable to a country and preference category, it lists the
final action date as “current.” More generally, “current”
refers to a priority date earlier than the final action date—
i.e., a priority date for which an immigrant visa is
immediately available.
Final action dates are only estimates, however, subject to
revision as the State Department receives updated
information. The INA permits the State Department to
“make reasonable estimates of the anticipated numbers of
visas to be issued during any quarter of any fiscal year” for
the various employment-based preference categories and to
“rely upon such estimates in authorizing the issuance of
visas.” 8 U.S.C. § 1153(g).
In the long run, final action dates tend to advance over
time as the State Department accommodates the oldest
priority dates. In the short run, the movement of final action
dates can slow or even retrogress (i.e., change to an earlier
date) if the number of available visas is less than
anticipated—such as when demand for immigrant visas in
other preference categories and by applicants from other
countries is greater than projected. Because visa petitions
are processed in the order of their priority dates,
retrogression does not affect an immigrant’s place in the
queue. USCIS and the State Department attempt to allocate
all available employment-based immigrant visa numbers
during each fiscal year. 5
5
For example, during fiscal years 2013 to 2019, USCIS and the State
Department used more than 99% of available visas. In fiscal year 2021,
28 BABARIA V. BLINKEN
D. Plaintiffs’ applications for adjustment of status
Plaintiffs are longtime U.S. residents in nonimmigrant
status who have applied for green cards. They have
approved EB-2 immigrant petitions chargeable to India.
Their priority dates, which range from 2012 to 2014, were
current when plaintiffs applied for adjustment of status and
remained current at the beginning of September 2022.
On September 6, 2022, however, the State Department
announced that it had reached worldwide and country limits
on EB-2 visas and would not authorize any additional visas
during the final three weeks of the fiscal year. Then, in the
October 2022 Visa Bulletin, the State Department
announced the final action date for EB-2 visas chargeable to
India had retrogressed from December 1, 2014, to April 1,
2012. Consequently, plaintiffs’ priority dates are no longer
current.
Plaintiffs sued in August and September 2022, alleging
that the government is unlawfully withholding final action
on their applications for adjustment of status in violation of
the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706(1). 6 Plaintiffs moved for a temporary restraining
when the number of available visas nearly doubled from a typical pre-
pandemic year, they used 52% more visas but only 75% of those
available.
6
We reject USCIS’s contention that the Singh plaintiffs did not make
this argument in the district court and thus forfeited it on appeal.
Although the Singh plaintiffs have referred to the government’s
adherence to 8 C.F.R. § 245.2(a)(5)(ii) variously as an “Adjudication
Hold Policy” and a “Regression Policy,” their argument has remained
the same—that the regulation is invalid. While plaintiffs could frame
their challenge in myriad ways—including attacking the regulation
directly as arbitrary and capricious, see 5 U.S.C. § 706(2), their
challenge’s likelihood of success does not rise or fall with its framing.
BABARIA V. BLINKEN 29
order (“TRO”) enjoining the government from considering
the availability of immigrant visas when evaluating their
applications. In each case, the district court denied the
motion. See Babaria v. Blinken, No. 22-cv-05521, 2022 WL
10719061 (N.D. Cal. Oct. 18, 2022); Singh v. Jaddou, No.
22-cv-01180, 2022 WL 4094373 (W.D. Wash. Sept. 2,
2022); Datta v. Jaddou, No. 22-cv-1302, 2022 WL 4547018(W.D. Wash. Sept. 29, 2022). We consolidated the three
appeals.
II. JURISDICTION
In Babaria, the district court converted the TRO motion
into a motion for a preliminary injunction, which the court
denied. We have appellate jurisdiction to review that order.
See 28 U.S.C. § 1292(a)(1) (authorizing appeals from
“[i]nterlocutory orders . . . refusing . . . injunctions”);
Monarch Content Mgmt. LLC v. Ariz. Dep’t of Gaming, 971
F.3d 1021, 1026–27 (9th Cir. 2020).
The government challenges our jurisdiction to consider
the appeals from the denial of TROs in Singh and Datta.
Although orders ruling on TRO motions “are typically not
appealable,” E. Bay Sanctuary Covenant v. Biden, 993 F.3d
640, 659–60 (9th Cir. 2021), that is largely for prudential
rather than jurisdictional reasons, see Religious Tech. Ctr. v.
Scott, 869 F.2d 1306, 1308 (9th Cir. 1989) (discussing the
general disallowance of TRO appeals due to “the interests of
avoiding uneconomical piecemeal appellate review”
(quoting Kimball v. Commandant Twelfth Naval Dist., 423
F.2d 88, 89 (9th Cir. 1970))).
30 BABARIA V. BLINKEN
For one thing, TROs provide only temporary relief. 7 See
Fed. R. Civ. P. 65(b)(2) (limiting TROs to 14 days,
extendable to 28 days with good cause and longer only if the
adverse party consents). Because of their limited duration,
TROs do not count as “injunctions” under § 1292(a)(1). See
Gon v. First State Ins., 871 F.2d 863, 865 (9th Cir. 1989)
(defining “injunction” in relevant part to mean “an order that
is . . . designed to accord or protect some or all of the
substantive relief sought by a complaint in more than
temporary fashion” (footnote omitted)).
Another concern about reviewing TROs is that they can
issue without the adverse party receiving notice or an
opportunity to respond, see Fed. R. Civ. P. 65(b)(1); E. Bay
Sanctuary Covenant v. Trump, 932 F.3d 742, 762 (9th Cir.
2018), leaving us with an incomplete record, see Haitian
Refugee Ctr., Inc. v. Baker, 950 F.2d 685, 686 (11th Cir.
1991) (per curiam) (explaining that the adverse party’s lack
of notice “allow[s] the trial judge to hear only one side of the
case”).
Neither of those concerns is present here. Plaintiffs
sought relief that exceeded the scope of a TRO. As USCIS
acknowledged, the Singh plaintiffs’ TRO motion sought
“total relief on the merits of their claims.” The Datta
plaintiffs moved to enjoin the government from enforcing 8
C.F.R. § 245.2(a)(5)(ii) beginning on October 1, 2022—then
more than two weeks away. Although the plaintiffs did not
7
The limited duration of a TRO can also render an appeal moot—a
jurisdictional concern—when the order expires or is supplanted by a
preliminary injunction. See Serv. Emps. Int’l Union v. Nat’l Union of
Healthcare Workers, 598 F.3d 1061, 1068–69 (9th Cir. 2010). For
reasons discussed below, the Singh and Datta plaintiffs’ claims are not
moot.
BABARIA V. BLINKEN 31
specify how long the injunction should last, their complaint
sought to compel USCIS to issue final decisions on their
applications for adjustment of status within six months, and
their TRO motion reiterated the need “to get timely
decisions.” In both cases, the government had notice of the
TRO motions and submitted oppositions with additional
evidence.
“[A] denial of a TRO may be appealed if the
circumstances render the denial ‘tantamount to the denial of
a preliminary injunction.’” Religious Tech. Ctr., 869 F.2d at
1308 (quoting Env’t Def. Fund, Inc. v. Andrus, 625 F.2d 861,
862 (9th Cir. 1980)). Such is the case here. The requested
injunctions would have lasted “well beyond the fourteen-day
limit imposed by Federal Rule of Civil Procedure 65(b),” E.
Bay Sanctuary Covenant v. Biden, 993 F.3d at 660, and “the
denial of the TRO effectively decided the merits of the case”
and rendered plaintiffs’ claims moot, Graham v. Teledyne-
Cont’l Motors, 805 F.2d 1386, 1388 (9th Cir. 1986).
Therefore, we have jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1) in all three appeals.
III. STANDARD OF REVIEW
We review the district court’s denial of preliminary
injunctive relief for abuse of discretion, see Mobilize the
Message, LLC v. Bonta, 50 F.4th 928, 934 (9th Cir. 2022),
but review questions of statutory interpretation de novo, see
Washington v. U.S. Dep’t of State, 996 F.3d 552, 560 (9th
Cir. 2021).
IV. DISCUSSION
“To obtain a preliminary injunction, a plaintiff must
establish (1) a likelihood of success on the merits, (2) a
likelihood of irreparable harm in the absence of preliminary
32 BABARIA V. BLINKEN
relief, (3) that the balance of equities favors the plaintiff, and
(4) that an injunction is in the public interest.” Geo Group,
Inc. v. Newsom, 50 F.4th 745, 753 (9th Cir. 2022) (en banc)
(citing Winter, 555 U.S. at 20). “[T]he legal standards
applicable to TROs and preliminary injunctions are
‘substantially identical.’” Washington v. Trump, 847 F.3d
1151, 1159 n.3 (9th Cir. 2017) (per curiam) (quoting
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d
832, 839 n.7 (9th Cir. 2001)).
A. Likelihood of success on the merits
Plaintiffs contend that 8 C.F.R. § 245.2(a)(5)(ii)
“violate[s] clear Congressional intent” by requiring an
immigrant visa to be available before the government can
adjudicate an application for adjustment of status. For the
reasons below, we disagree.
1. Statutory text
Congress set forth the requirements for a green card in 8
U.S.C. § 1255(a). That statute provides in relevant part that
a noncitizen’s “status . . . may be adjusted by the Attorney
General, in his discretion and under such regulations as he
may prescribe . . . [,] if . . . an immigrant visa is immediately
available to [the noncitizen] at the time his application is
filed.” Id.While plaintiffs are correct that § 1255(a)’s “plain
text . . . does not require an immigrant visa to be
immediately available at the time of adjudication,” neither
does the text foreclose such a requirement. In fact, by
providing that the Attorney General “may” adjust an
applicant’s status “in his discretion” and “under such
regulations as he may prescribe,” id., the statute vests the
government with considerable leeway in establishing the
BABARIA V. BLINKEN 33
process, see Ruiz-Diaz v. United States, 618 F.3d 1055, 1061
(9th Cir. 2010) (“Congress expressly manifested its intent
that the [government] regulate the process by which status
will be adjusted except for [§ 1255(a)’s] three . . .
prerequisites . . . .”).
Plaintiffs rely on our statement in Hernandez v. Ashcroft
that “there is no indication that possession of an allocated
visa number is an eligibility requirement for adjusting
status,” 345 F.3d 824, 844 (9th Cir. 2003), but eligibility to
adjust status is not the issue here. The issue, rather, is the
timing—whether the government can make plaintiffs wait
for an allocated visa number before finally adjudicating their
applications.
Recognizing this distinction, Hernandez harmonized the
eligibility requirement of an immediately available visa at
the time of filing with 8 C.F.R. § 245.2(a)(5)(ii)’s
requirement of an allocated immigrant visa number at the
time of approval. 345 F.3d at 844 n.21. The latter is “a
mechanical requirement necessary to actually adjust status,
one that does not defeat eligibility but which may affect
processing of an approved petition.” Id.If anything, Hernandez undermines plaintiffs’ argument.
We recognized that “adjustment cannot actually be granted
unless a [visa] number is also available at the time of
adjustment. Should the numbers meanwhile fall behind and
become unavailable for the applicant’s priority date,
adjustment is postponed until the number does become
available.” Id. (cleaned up) (quoting Charles Gordon et al.,
Immigration Law & Procedure § 51.02(2)(b)(iii) (2003)).
Thus, nothing in the statutory text conflicts with 8 C.F.R.
§ 245.2(a)(5)(ii), and the INA is otherwise silent on the need
for an available immigrant visa to approve status adjustment.
34 BABARIA V. BLINKEN
2. Statutory structure
Plaintiffs cite several other statutory provisions, but none
supports their interpretation of 8 U.S.C. § 1255(a). Plaintiffs
first assert that § 1255(b) “assumes that, if there is an
application for adjustment of status filed, there will be a visa
number available for that applicant.” To the contrary,
§ 1255(b) assumes only that a visa number will be available
at the time an application is approved:
Upon the approval of an application for
adjustment made under subsection (a), the
Attorney General shall record the alien’s
lawful admission for permanent residence as
of the [approval] date . . . , and the Secretary
of State shall reduce by one the number of the
preference visas authorized to be issued
under [8 U.S.C. §§ 1152 and 1153] within the
class to which the alien is chargeable for the
fiscal year then current.
The statute is agnostic as to why a visa must be available
when adjustment of status is approved—whether because the
visa number must be allocated at the time of the application
or because the application cannot be approved until a visa
number is available. By expressing no preference and
authorizing the Attorney General to issue “such regulations
as he may prescribe,” id. § 1255(a), Congress plainly left the
decision in the government’s hands. See, e.g., Morton v.
Ruiz, 415 U.S. 199, 231 (1974) (“The power of an
administrative agency to administer a congressionally
created and funded program necessarily requires the
formulation of policy and the making of rules to fill any gap
left, implicitly or explicitly, by Congress.”).
BABARIA V. BLINKEN 35
Similarly, the government can adhere to 8 U.S.C.
§ 1153(e)’s requirement of issuing visas in the order of
priority dates whether it allocates available visa numbers
when the application is filed or approved. Plaintiffs posit
that “a fluctuation in the visa bulletin” could make a visa
available to the principal applicant but not her derivative
family members, contrary to § 1153(d)’s provision that the
family members are “entitled to . . . the same order of
consideration,” but they offer no explanation how such a
circumstance could arise. The final action dates published
in the Visa Bulletin are specific days, and § 1153(d) ensures
that derivative family members have the same priority date
as the principal applicant. Retrogression thus affects both
principal and derivative applicants alike.
Plaintiffs also argue that the Child Status Protection Act
(“CSPA”), 8 U.S.C. § 1153(h)(1), “assumes immigrant visas
need only be available at the time of filing.” Once again,
this is a non sequitur. The CSPA “provide[s] age-out
protection” for noncitizens who were less than 21 years old
when an immigrant petition was filed on their behalf.
Ochoa-Amaya v. Gonzales, 479 F.3d 989, 992 (9th Cir.
2007). It “ensures that the time Government officials have
spent processing immigration papers will not count against
the [child] in assessing his status.” Scialabba v. Cuellar de
Osorio, 573 U.S. 41, 45 (2014) (plurality opinion). It has
nothing to do with the time at which visa numbers are
allocated.
3. Legislative and regulatory history
Lastly, plaintiffs argue that legislative and regulatory
history support their argument. They are mistaken.
From 1952 to 1960, the INA required an immediately
available immigrant visa both “at the time of [the]
36 BABARIA V. BLINKEN
application for adjustment” and “at the time [the] application
is approved.” INA, ch. 477, § 245, 66 Stat. 163, 217 (1952).
From 1960 to 1976, the INA required an immediately
available visa only “at the time [the] application is
approved.” Act of July 14, 1960, Pub. L. No. 86-648, § 10,
74 Stat. 504, 505. And since 1976, the INA has required an
immediately available visa only “at the time [the] application
is filed.” INA Amendments of 1976, Pub. L. No. 94-571,
§ 6, 90 Stat. 2703, 2705–06.
Plaintiffs argue that this history “reveals Congress
knowingly rejected the requirement to have a current visa
number at approval.” We have rejected a similar argument
in another context. The 1960 amendment to § 1255(a), in
addition to changing the point in the process at which a visa
must be immediately available, removed language requiring
that the person seeking to adjust status be a “bona fide”
nonimmigrant. See Garcia Castillo v. INS, 350 F.2d 1, 3
(9th Cir. 1965). Yet the government continued to rely on a
nonimmigrant’s lack of “bona fides”—i.e., his having
obtained a nonimmigrant visa with the intent of residing in
the United States permanently—as a basis for denying his
application to adjust status. See id. at 2–3.
One unsuccessful applicant argued that “Congress, by
elimination of entry as a bona fide nonimmigrant as a
statutory requirement . . . , also made entry as a bona fide
nonimmigrant without significance in the [government’s]
exercise of discretion under [§ 1255(a)].” Id. at 3. We
disagreed, explaining that the 1960 amendment “involved a
change in the statutory [eligibility] requirements” but “did
not directly or otherwise limit the scope of the Attorney
General’s discretion.” Id. We explained that Congress’s
purpose in removing the language was merely to ensure that
violating the “bona fide nonimmigrant” standard would not
BABARIA V. BLINKEN 37
automatically bar an applicant from adjusting status. Id. at
3–4.
Congress likely intended a similar effect here for reasons
having nothing to do with visa quotas. Until the statute took
its present form in 1976, it required that an immigrant visa
be “immediately available to [the applicant for adjustment of
status] at the time his application is approved.” 66 Stat. at
217; 74 Stat. at 505. This meant not only that the numerical
limitations for the applicant’s country and visa type had not
been exceeded that year, see 8 C.F.R. § 245.1(g), but also
that the applicant had an approved family- or employment-
sponsored visa petition, see INS v. Miranda, 459 U.S. 14, 15
(1982) (per curiam).
If circumstances changed while the application was
pending—for example, if the applicant’s marriage or job
ended, and the immigrant visa petition was consequently
denied or revoked—the statute foreclosed adjustment of
status. See Miranda, 459 U.S. at 15–16. Long agency
processing times increased the likelihood of such an
outcome. See id. at 18 (observing the difficulty of
“process[ing] an application as promptly as may be
desirable”); cf. Kalezic v. INS, 647 F.2d 920, 922 (9th Cir.
1981) (“[B]ecause of the tortoise-like pace of immigration
proceedings, the alien who seeks [marriage-based] relief
[from deportation] may commence proceedings with a valid
claim and see it disintegrate some years later as his case
creeps through INS channels.”). By changing the statute,
Congress enabled the executive branch to ameliorate some
of the harsh consequences to applicants whose
circumstances changed while they awaited status
adjustment. See Tien v. INS, 638 F.2d 1324, 1329 n.13 (5th
Cir. Unit A Mar. 1981) (suggesting that the statutory change
38 BABARIA V. BLINKEN
“indicat[es] Congress’ awareness of the delays involved
prior to agency action on an application”).
Another reason to doubt that the statutory change made
the regulation anachronistic is the absence of Congressional
action to address the regulation. At the time of the 1976
statutory change, the precursor to 8 C.F.R. § 245.2(a)(5)(ii)
had been in place for more than a decade. See Miscellaneous
Amendments, 30 Fed. Reg. 14772, 14778 (Nov. 30, 1965)
(formerly codified at 8 C.F.R. § 245.1(g)) (“The application
shall not be approved until an immigrant visa number has
been allocated by the Department of State.”). And in the
nearly 50 years since the statutory change, Congress has left
the substance of the regulation in place despite amending 8
U.S.C. § 1255 on numerous other occasions. Congress’s
longstanding silence about the regulation implies tacit
legislative approval. See Haig v. Agee, 453 U.S. 280, 300–
01 (1981).
4. Reasonableness
As we have explained, 8 C.F.R. § 245.2(a)(5)(ii) is
consistent with 8 U.S.C. § 1255 and reasonably fills in a
procedural detail left open by Congress. The rule
championed by plaintiffs, on the other hand, makes little
sense. Plaintiffs acknowledge that under § 1255(b), the
State Department “is required to allocate a visa number from
whatever fiscal year is ‘then current’ at the time of approval,
not the fiscal year when the application was filed.” But
given long processing times, not all applications will be filed
and approved in the same fiscal year. Under plaintiffs’ view,
the visa numbers allocated at the time of filing would go at
BABARIA V. BLINKEN 39
least temporarily unused in such cases. 8 So too with
applications that are ultimately withdrawn or denied.
Plaintiffs’ proposed rule would result in inefficiency and
further delay.
Even if, for the sake of argument, plaintiffs offered the
superior policy choice, they are not trying to change the
government’s policy. Plaintiffs do not seek to represent the
entire class of individuals pursuing employment-based visas
chargeable to India. Instead, plaintiffs’ requested relief
would have them leapfrog ahead of others in the queue,
contravening 8 U.S.C. § 1153(e)(1)’s requirement of
allocating visas in the order of priority dates.
For all these reasons, plaintiffs are unlikely to succeed in
challenging 8 C.F.R. § 245.2(a)(5)(ii).
B. Other factors for injunctive relief
We need not consider the remaining Winter factors
because plaintiffs fail to show a likelihood of success on the
merits. See Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d
848, 856 (9th Cir. 2017) (“Likelihood of success on the
merits ‘is the most important’ Winter factor; if a movant fails
to meet this ‘threshold inquiry,’ the court need not consider
the other factors in the absence of ‘serious questions going
8
Unused employment-based visa numbers in any given fiscal year would
not truly be “wasted,” as the government asserts, because they would be
reallocated the following year to family-sponsored visas. See 8 U.S.C.
§ 1151(c)(1)(A), (3)(C). And to the extent the visa numbers are not used
as family-sponsored visas, they would be reallocated back to
employment-based visas in the second year. See id. § 1151(d)(1)(B),
(2)(C). But if they are used as family-sponsored visas, then the visa
numbers are “wasted” from the perspective of someone waiting for an
employment-based visa. Whatever the case, the visa queue would
lengthen as the time visa numbers go unused increases.
40 BABARIA V. BLINKEN
to the merits.’” (citations omitted) (first quoting Garcia v.
Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc);
then quoting All. for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1134 (9th Cir. 2011))); see also All. for the Wild
Rockies v. Petrick, 68 F.4th 475, 497 (9th Cir. 2023)
(explaining that “serious questions” do not exist where
injunctive relief depends on “an incorrect interpretation of a
statute”).
* * *
Despite lawful employment in the United States for more
than a decade, plaintiffs still have no clear indication of
when their application for a green card will be approved.
The long immigrant visa queue imposes significant
hardship, and plaintiffs are understandably frustrated. But
in this instance, relief must come from action by the
executive and legislative branches rather than the judiciary.
The district courts properly denied injunctive relief.
AFFIRMED.