[nom]
UNITED STATES COURT OF APPEALS
[nom] THE NINTH CIRCUIT
[nom] · Nos. 25-1313,
[nom] · 25-1939
[nom]
[nom] · D.C. No.
[nom] · 2:25-cv-00255-
SERVICES NORTHWEST, · JNW
Plaintiffs - Appellees, · OPINION
v.
DONALD J. TRUMP, in his official capacity as President of the United
States; MARCO RUBIO, in his official capacity as Secretary of State;
KRISTI NOEM, in her official capacity as Secretary of Homeland
Security; ROBERT F. KENNEDY
JR., in his official capacity as Secretary of Health and Human
Services,
Defendants - Appellants.
Appeal from the United States District Court
[nom] the Western District of Washington
Jamal N. Whitehead, District Judge, Presiding
2 · P ACITO V . T RUMP
Argued and Submitted September 3, 2025
Pasadena, California
Filed March 5, 2026
Before: Richard R. Clifton, Jay S. Bybee, and Kenneth K.
Lee, Circuit Judges.
Opinion by Judge Bybee;
Partial Dissent by Judge Lee
SUMMARY *
Immigration
The panel affirmed in part and reversed in part the district court’s preliminary injunctions prohibiting enforcement or implementation of Executive Order No.
14163, “Realigning the United States Refugee Admissions
Program,” 90 Fed. Reg. 8459 (Jan. 30, 2025), which suspended the United States Refugee Admissions Programs
(“USRAP”), as well as related suspensions of funding [nom]
USRAP.
Applying the factors set out in Winter v. Nat. Res. Def.
Council, 555 U.S. 7 (2008), [nom] evaluating a preliminary injunction, the panel reviewed the district court’s two broad grounds [nom] granting injunctive relief: (1) the executive order was beyond the President’s statutory authority; and (2) the
- This summary constitutes no part of the opinion of the court. It has been prepared by court staff [nom] the convenience of the reader.
P ACITO V . T RUMP · 3
State Department’s suspension of USRAP violated the Administrative Procedure Act (“APA”).
The panel concluded that Plaintiffs failed to make a strong showing that they are likely to succeed on the merits of their challenges to Executive Order No. 14163 as beyond the President’s statutory authority under 8 U.S.C. 1182(f) and the Refugee Act. As to the sections of the executive order that suspend the admission of approved refugees to the United States, the panel rejected the district court’s concerns that the President impermissibly suspended USRAP in its entirety and indefinitely. As to the section of the executive order that suspends decisions on all applications [nom] refugee status, nothing in the Refugee Act directs the President to continue to process applications while admissions have been suspended.
Turning to Plaintiffs’ APA challenges to decisions to defund various services offered under USRAP, the panel addressed the Government’s arguments that these claims were unreviewable. First, the Government argued that APA does not provide an avenue [nom] review because the Court of Federal Claims has exclusive jurisdiction over the organizational Plaintiffs’ claims under the Tucker
Act. Rejecting that contention, the panel concluded that neither the source of the rights upon which Plaintiffs based their claims nor the relief sought sounded in contract.
Next, the Government argued that the actions of the President and the agencies were not reviewable because the “agency action is committed to agency discretion by law.” 5
U.S.C. 701(a)(2). Reasoning that the Refugee Act is quite specific in describing the programs [nom] refugee resettlement, the panel concluded that the Government had not rebutted the strong presumption favoring judicial review.
4 · P ACITO V . T RUMP
Finally, the Government argued that there is no “final agency action” to review.” 5 U.S.C. 704. The panel agreed that the executive order itself is not subject to APA review because the President is not an agency within the meaning of the APA. With respect to the agencies’ decision to defund the refugee program, the panel rejected the argument that there was no final agency action because the State Department ultimately terminated funding.
Turning to the merits of Plaintiffs’ APA challenges, the panel could not conclude that it was arbitrary and capricious or otherwise not in accordance with the Refugee Act [nom] the State Department to defund overseas operations. The panel saw no reason why the State Department should be required to maintain an overseas structure capable of processing tens of thousands of applications when the executive order has limited entry to case-by-case consideration.
Next, the panel concluded that the district court did not abuse its discretion in concluding that the Government likely acted contrary to law by failing to provide statutorily mandated services to refugees already admitted to the United
States. The panel also concluded that the termination of cooperative agreements with resettlement support centers was likely arbitrary and capricious because the Government failed to provide reasoned explanations, factual findings, or bases [nom] the termination, and also terminated the cooperative agreements without first considering the reliance interests of individual refugees.
Turning to the remaining Winter factors with respect to Plaintiffs’ APA challenge to the defunding of domestic resettlement services, the panel concluded that those factors also weighed in Plaintiffs’ favor.
P ACITO V . T RUMP · 5
With respect to the scope of relief, the Government argued that the district court’s injunctions are so overly broad as to constitute “universal injunctions” that run afoul of Trump v. CASA, Inc., 606 U.S. 831 (2025). Because
CASA did not affect district courts’ ability to issue class-wide injunctive relief and a class had been certified in this case, the panel concluded that the district court’s injunctions complied with CASA.
Dissenting in part, Judge Lee disagreed on two points. First, Judge Lee did not think the court had jurisdiction over the organizational plaintiffs’ claims because they are breach-of-contract claims seeking money from the federal government and thus must be heard by the Court of Federal Claims. Second, even assuming jurisdiction, the better reading of the statutory provisions is that the United States has discretion whether to fund these services.
Judge Lee also wrote separately to highlight that district courts cannot stand athwart, yelling “stop” just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise. Otherwise, the courts risk inching towards an imperial judiciary that lords over the President and Congress.
6 · P ACITO V . T RUMP
COUNSEL
Linda B. Evarts (argued), Mevlüde A. Alp, Pedro Sepulveda
Jr., and Deepa Alagesan, International Refugee Assistance
Project, New York, New York; Melissa S. Keaney (argued), International Refugee Assistance Project, Fair Oaks, California; Laurie B. Cooper, International Refugee
Assistance Project, Washington, D.C.; Megan M. Hauptman and Laurie B. Cooper, International Refugee Assistance
Project, Washington, D.C.; Harry H. Schneider Jr., Jonathan
P. Hawley, and Shireen Lankarani, Perkins Coie LLP, Seattle, Washington; Joel W. Nomkin, Perkins Coie LLP, Phoenix, Arizona; John M. Devaney, Perkins Coie LLP, Washington, D.C.; Nicholas J. Surprise, Perkins Coie LLP, Madison, Wisconsin; [nom] Plaintiffs-Appellees.
Tiberius T. Davis (argued), August E. Flentje, Joseph
McCarter, Lindsay W. Zimliki, Jason K. Zubata, Ilana
Kramer, and Alexandra Yeatts, Trial Attorneys; Office of Immigration Litigation, Civil Division; David Kim, Senior
Litigation Counsel; Drew C. Ensign, Deputy Assistant
Attorney General; Yaakov M. Roth, Principal Deputy
Assistant Attorney General; Ernesto H. Molina, Deputy
Director; Brett A. Shumate, Assistant Attorney General;
United States Department of Justice, Washington, D.C.; [nom]
Defendant-Appellants.
Elizabeth B. Wydra, Brianne J. Gorod, Miriam Becker- Cohen, and Nina G. Henry, Constitutional Accountability
Center, Washington, D.C., [nom] Amicus Curiae Constitutional
Accountability Center.
Andrew L. Schlafly, Far Hills, New Jersey, [nom] Amici Curiae
Immigration Reform Law Institute.
P ACITO V . T RUMP · 7
Fawn J. Rajbhandari-Korr, Lindsay Nako, and Lori Rifkin, Impact Fund, Berkeley, California, [nom] Amici Curiae The Impact Fund, Justice in Aging, Refugee and Immigrant
Center [nom] Education, Centro Legal de la Raza, Contra Costa
Senior Legal Services, Diverse Elders Coalition, La Raza
Centro Legal, Oasis Legal Services, Self-Help [nom] the Elderly, and Southeast Asia Resource Action Center.
Hannah C. Vail and Brett M. Gannon, Assistant Attorneys
General; Elizabeth D. Matos, Chief, Civil Rights Division;
Tasha J. Bahal, Deputy Solicitor General; Andrea J.
Campbell, Commonwealth of Massachusetts Attorney
General; Office of the Commonwealth of Massachusetts
Attorney General, Boston, Massachusetts; Emma Grunberg, Kelly A. Paradis, and Cristina Sepe, Deputy Solicitors
General; Nicholas W. Brown, Washington Attorney
General; Office of the Washington Attorney General, Olympia, Washington; Kristin K. Mayes, Arizona Attorney
General, Office of the Arizona Attorney General, Phoenix, Arizona; Rob Bonta, California Attorney General, Office of the California Attorney General, Sacramento, California;
Philip J. Weiser, Colorado Attorney General, Office of the Colorado Attorney General, Denver, Colorado; William
Tong, Connecticut Attorney General, Office of the Connecticut Attorney General, Hartford, Connecticut;
Kathleen Jennings, Delaware Attorney General, Office of the Delaware Attorney General, Wilmington, Delaware;
Anne E. Lopez, Hawai‘i Attorney General, Office of the Hawai‘i Attorney General, Honolulu, Hawai‘i; Kwame
Raoul, Illinois Attorney General, Office of the Illinois
Attorney General, Chicago, Illinois; Aaron M. Frey, Maine
Attorney General, Office of the Maine Attorney General, Augusta, Maine; Anthony G. Brown, Maryland Attorney
General, Office of the Maryland Attorney General,
8 · P ACITO V . T RUMP
Baltimore, Maryland; Dana Nessel, Michigan Attorney
General, Office of the Michigan Attorney General, Lansing, Michigan; Keith Ellison, Minnesota Attorney General, Office of the Minnesota Attorney General, St. Paul, Minnesota; Aaron D. Ford, Nevada Attorney General, Office of the Nevada Attorney General, Carson City, Nevada;
Matthew J. Platkin, New Jersey Attorney General, Office of the New Jersey Attorney General, Trenton, New Jersey;
Letitia James, New York Attorney General, Office of the New York Attorney General, New York, New York; Dan
Rayfield, Oregon Attorney General, Office of the Oregon
Attorney General, Salem, Oregon; Peter F. Neronha, Rhode
Island Attorney General, Office of the Rhode Island
Attorney General, Providence, Rhode Island; Joshua L.
Kaul, Wisconsin Attorney General, Office of the Wisconsin
Attorney General, Madison, Wisconsin; [nom] Amici Curiae
The State of Washington, Commonwealth of Massachusetts, and States of Arizona, California, Colorado, Connecticut, Delaware, Hawai‘i, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode
Island, Vermont, and Wisconsin.
Matthew Z. Crotty, Riverside NW Law Group PLLC, Spokane, Washington, [nom] Amici Curiae Refugees
International.
Clara J. Shin, Covington & Burling LLP, San Francisco, California; Michael E. Cunniff and Aparna Sundaram, Covington & Burling LLP, New York, New York; Alexis N.
Dyschkant and Evan K.W. Matsuda, Covington & Burling
LLP, Washington, D.C.; [nom] Amici Curiae Former U.S.
Government Officials.
Linda Dakin-Grimm, Milbank LLP, Los Angeles, California; Atara Miller, Victor Hollenberg, and Alex
P ACITO V . T RUMP · 9
Ruppert, Milbank LLP, New York, New York; [nom] Amici
Curiae Bet Tzedek Legal Services and Faith-Based
Organizations.
Gregory L. Diskant, Jonah Wacholder, Ian D. Eppler, and Colleen Anderson, Patterson Belknap Webb & Tyler LLP, New York, New York, [nom] Amici Curiae Ethiopian
Community Development Council and Lutheran Services
Carolinas.
Sarah M. Rich and Somil B. Trivedi, Democracy Forward
Foundation, Washington, D.C.; Sunil R. Varghese, Refugee
Council USA, Washington, D.C.; [nom] Amicus Curiae
Refugee Council USA.
10 · P ACITO V . T RUMP
OPINION
BYBEE, Circuit Judge:
On January 20, 2025, the President issued Executive
Order No. 14163, “Realigning the United States Refugee
Admissions Program.” 90 Fed. Reg. 8459 (Jan. 20, 2025).
Pursuant to 8 U.S.C. §§ 1182(f) and 1185(a), the President determined that “entry into the United States of refugees under the [United States Refugee Admissions Program
(USRAP)] would be detrimental to the interests of the United States” and directed that “entry into the United States of refugees under the USRAP be suspended” pending further findings. Exec. Order. No. 14163, 3(a). In response to the Executive Order, the Department of State suspended all funding of the USRAP program, purportedly pursuant to a different executive order entitled “Reevaluating and Realigning United States Foreign Aid.” Exec. Order No.
14169, 90 Fed. Reg. 8619 (Jan. 20, 2025). Pending further review, this included the suspension of funding [nom]
(1) processing applications from persons outside the United
States seeking refugee status here and (2) domestic resettlement services [nom] refugees admitted to the United
States.
Plaintiffs are refugees who have been recently admitted to the United States; refugees who have been approved [nom]
resettlement in the United States but remain outside the country; U.S.-based individuals seeking admission [nom] their family members or sponsees; and three organizations that had cooperative agreements with the State Department to provide overseas processing and domestic resettlement services. Plaintiffs allege that Executive Order No. 14163’s suspension of the refugee program violates the Refugee Act
P ACITO V . T RUMP · 11
of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified in various provisions of the Immigration and Nationality Act, 8
U.S.C. §§ 1101 et seq.), and that the defunding of USRAP violates various provisions of the Administrative Procedure
Act, 5 U.S.C. 551 et seq. The district court issued two preliminary injunctions prohibiting the enforcement or implementation of §§ 3(a), (b), (c), and 4 of Executive Order
No. 14163 and the suspension of USRAP funding and reinstating the terminated cooperative agreements. The Government sought review.
Our task is to determine whether the President’s actions were within the statutory authority granted him under the INA. Whether we agree with those actions is beside the point: “The wisdom of the policy choices made by [the
President] is not a matter [nom] our consideration.” Sale v.
Haitian Centers Council, Inc., 509 U.S. 155, 165 (1993).
“We do not sit as a committee of review . . . .” TVA v. Hill, 437 U.S. 153, 194–95 (1978). We conclude that, with one exception, Plaintiffs have not made the requisite showing that they are likely to succeed on the merits. We thus vacate the preliminary injunctions in large measure.
I. BACKGROUND
A. Constitutional and Statutory Background
In this section, we first review the constitutional framework [nom] the power of the political branches to regulate the admission of aliens to the United States. We then consider the statutory authorities and describe how USRAP works in practice. Because of the breadth of Plaintiffs’ challenge and the complexity of USRAP, we set this forth in some detail.
12 · P ACITO V . T RUMP
It has long been “an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” Nishimura Ekiu v. United States, 142 U.S.
651, 659 (1892). It is beyond dispute that “[t]he exclusion of aliens is a fundamental act of sovereignty.” U.S. ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see
Landon v. Plasencia, 459 U.S. 21, 32 (1982). The Constitution commits this “broad, undoubted power over the subject of immigration and the status of aliens” to Congress and the President. Arizona v. United States, 567 U.S. 387, 394 (2012); see also Fiallo v. Bell, 430 U.S. 787, 792 (1977).
Congress wields the bulk of this power. The Constitution vests in Congress the power “[t]o establish an uniform rule of Naturalization,” U.S. Const. art. I, 8, cl. 4, to “regulate
Commerce with foreign Nations,” id. art. I, 8, cl. 3, and to “declare War,” id. art. I, 8, cl. 11, facilitated by the more general power “[t]o make all Laws which shall be necessary and proper [nom] carrying into Execution the foregoing
Powers,” id. art. I, 8, cl. 18. The Supreme Court has long read these provisions as granting Congress plenary power to establish the country’s substantive immigration policy. See
Ekiu, 142 U.S. at 659; see also INS v. Chadha, 462 U.S. 919, 940 (1983) (“The plenary authority of Congress over aliens under Art. I, 8, cl. 4 is not open to question . . . .”); Fiallo, 430 U.S. at 792 (“‘[O]ver no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.”) (quoting Oceanic Navigation Co.
v. Stranahan, 214 U.S. 320, 339 (1909)).
P ACITO V . T RUMP · 13
That said, the power to exclude aliens “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Knauff, 338 U.S.
at 542. Although “the source of the President’s power to act in foreign affairs does not enjoy any textual detail,” Am. Ins.
Ass’n v. Garamendi, 539 U.S. 396, 414 (2003), it flows generally from the President’s duty to “receive Ambassadors and other public Ministers,” U.S. Const. art. II, 3, and secondarily from the President’s role as “Commander in Chief,” id. art. II, 2, cl. 1, the Vesting Clause, id. art. II, 1, cl. 1, and the President’s broad responsibility to “take Care that the Laws be faithfully executed,” id. art. II, 3; see also
Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 33–34
(2015). Indeed, “Article II of the Constitution has recognized the President’s ‘vast share of responsibility [nom]
the conduct of our foreign relations.’” Garamendi, 539 U.S.
at 414 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)).
Whether or not the President has authority independent of Congress to authorize or forbid the admission of aliens, “the decision to admit or to exclude an alien may be lawfully placed with the President.” Knauff, 338 U.S. at 543.
The precise steps [nom] this constitutional choreography are not critical to our decision. In general, Congress, possessing plenary “power to set the procedures to be followed in determining whether an alien should be admitted,” DHS v.
Thuraissigiam, 591 U.S. 103, 139 (2020), determines who is admissible, under what terms they may be admitted, and under what conditions they may be excluded or removed.
See Mathews v. Diaz, 426 U.S. 67, 82–83 (1976); Galvan v.
Press, 347 U.S. 522, 531 (1954). The President, possessing the discretion to admit or exclude aliens when Congress has
14 · P ACITO V . T RUMP
delegated him the power to do so, executes the policy. See
Trump v. Hawaii, 585 U.S. 667, 683–85 (2018).
- Statutory Background a. The Immigration and Nationality Act
Admission of refugees. · Congress enacted the
Immigration and Nationality Act of 1952 (INA), codified at 8 U.S.C. 1101 et seq., to establish “a comprehensive and complete code covering all aspects of admission of aliens to this country.” Elkins v. Moreno, 435 U.S. 647, 664 (1978);
see also Immigration and Nationality Act, U.S. Citizenship
& Immigr. Servs. (last updated July 10, 2019),
[lien] (in enacting the INA, Congress “collected many provisions and reorganized the structure of immigration law”). Through the INA, Congress prescribed the terms on which aliens may be admitted to the United States, the conditions under which they may remain within its borders, and the requirements [nom] aliens to become naturalized as U.S. citizens. See 8 U.S.C. 1101 et seq.
The INA defines an “alien” as “any person not a citizen or national of the United States.” 8 U.S.C. 1101(a)(3).
“The terms ‘admission’ and ‘admitted’” refer to “the lawful
entry of [an] alien into the United States.” · Id.
1101(a)(13)(A) (emphasis added). In general, to qualify
[nom] entry, an alien must apply [nom] admission, be approved [nom]
an immigrant visa, and present specified travel or identification documents. See 8 U.S.C. 1181(a).
Section 1182 of the INA details various conditions under which an alien may be ineligible [nom] admission. See id.
P ACITO V . T RUMP · 15
1182(a)(1)–(10) (defining “[c]lasses of aliens ineligible [nom]
visas or admission”). It further provides:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and [nom] such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
8 U.S.C. 1182(f).
Congress has amended the INA several times over the years. Particularly relevant to this appeal, the Refugee Act of 1980 amended the INA “to revise the procedures [nom] the admission of refugees” and to “establish a more uniform basis [nom] the provision of assistance to refugees.” Pub. L.
No. 96-212, 94 Stat. 102 (1980). In the years leading up to the Refugee Act’s passage, refugee admission policy had been “reactive and piecemeal as it grew in response to humanitarian crises and ethnic conflicts.” Policy Manual
Chapter 1 - Purpose and Background, U.S. Citizenship &
Immigr. Servs. (last updated Dec. 12, 2025),
[lien] In an attempt to address these issues, Congress passed the Refugee Act to establish
“a permanent and systematic procedure [nom] the admission to this country of refugees of special humanitarian concern to the United States, and to provide comprehensive and uniform provisions [nom] [their] effective resettlement.” Pub.
L. No. 96-212, 101(b), 94 Stat. at 102.
16 · P ACITO V . T RUMP
To accomplish this end, the Refugee Act made a number of changes to the INA. First, it established a uniform definition [nom] “refugee” as a person who (1) “is outside any country of such person’s nationality” and (2) “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country”
(3) “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. 1101(a)(42).
Importantly, the Refugee Act exempted aliens who qualify as “refugees” from the standard visa requirement and admission procedures specified in the INA. 8 U.S.C.
1181(c) (“The provisions of subsection (a) shall not apply to an alien whom the Attorney General admits to the United
States under section 1157 of this title.”). Instead, the Act created a separate, comprehensive framework [nom] the processing, admission, and resettlement of refugees. See generally 8 U.S.C. §§ 1157, 1521–24.
Section 1157 of the INA lays out the process [nom]
admitting refugees to the United States. It provides procedures [nom] determining an annual “[m]aximum number of admissions,” [nom] increasing that number in the case of unforeseen emergency refugee situations, and [nom] allocating admissions among refugees. See 8 U.S.C. 1157(a)–(c).
Specifically, it provides that “the number of refugees who may be admitted” each year “shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation” with Congress. Id.
1157(a)(2).
[nom] purposes of the Refugee Act, “appropriate consultation” requires in-person discussions between
P ACITO V . T RUMP · 17
“designated Cabinet-level representatives of the President with members of the Committees on the Judiciary of the Senate and of the House of Representatives.” Id. 1157(e).
These parties must “discuss the reasons [nom] believing that the
[President’s] proposed admission of refugees is justified,” and the President’s representatives must provide Congress with various sets of descriptions, analyses, and other information. Id. The “substance of such consultation” must be published, id. 1157(d)(2), and a hearing must generally be held “to review the proposed” number of refugee admissions, id. 1157(d)(3)(A).
After this consultation, individual refugee admissions are “allocated among refugees of special humanitarian concern to the United States.” Id. 1157(a)(3). 1 Subject to the “numerical limitations” determined by the President, the Attorney General is then authorized to, in his or her
“discretion and pursuant to such regulations as the Attorney
General may prescribe, admit any refugee who” is: (1) “not firmly resettled in any foreign country”; (2) “determined to be of special humanitarian concern to the United States”; and (3) is otherwise “admissible.” Id. 1157(c)(1).
Section 1157(c) also creates a special class of “follow-to-join” refugees. It provides that the spouse or child of a principal refugee shall “be entitled to the same admission status” as the principal refugee so long as the spouse or child is “accompanying, or following to join, such refugee” and the spouse or child is otherwise “admissible” under the INA.
Id. 1157(c)(2)(A). The admission of such a spouse or child
“shall be charged against the numerical limitation
1 The President may also increase the number of annual refugee admissions under certain emergency situations “after appropriate consultation.” 8 U.S.C. 1157(b).
18 · P ACITO V . T RUMP
established in accordance with the appropriate subsection under which the [principal] refugee’s admission is charged.”
Id.
Finally, 1157 expressly exempts refugees from being deemed inadmissible under certain 1182 grounds. 8
U.S.C. 1157(c)(3). Specifically, refugees may not be deemed inadmissible because they are “likely at any time to become a public charge” under 1182(a)(4), are seeking to enter the United States “[nom] the purpose of performing skilled or unskilled labor” under 1182(a)(5), or do not possess a valid visa or other valid entry document under
1182(a)(7)(A). 8 U.S.C. 1157(c)(3). The Attorney
General is further authorized to waive, with several narrow exceptions, “any other provision” of 1182 “[nom]
humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” Id.
Resettlement of refugees. Once an alien has been admitted to the United States as a refugee, he or she acquires certain rights and responsibilities. [nom] example, the sole cause [nom] revoking refugee status is a determination that an alien was “not in fact a refugee . . . at the time of the alien’s admission,” 8 U.S.C. 1157(c)(4), but an admitted refugee may contest removal proceedings by demonstrating his or her refugee status, see 8 U.SC. 1252(e)(2)(c), (e)4(b).
After a refugee has been physically present in the United
States [nom] at least one year, the refugee is generally entitled to have his or her status adjusted to lawful permanent residency. See 8 U.S.C. 1159(a).
The Refugee Act also establishes procedures to provide various domestic resettlement services to recently admitted refugees. See 8 U.S.C. §§ 1521–24. Section 1521 establishes the Office of Refugee Resettlement (ORR)
P ACITO V . T RUMP · 19
within the Department of Health and Human Services
(HHS). 8 U.S.C. 1521(a). ORR’s “function” is “to fund and administer” refugee assistance programs under
Subchapter IV. Id. 1521(b). Section 1522 outlines the initial domestic resettlement services to be provided and authorizes the Government to work with States and nonprofit agencies to provide them. The statute expressly identifies
Congress’s “intent . . . in providing refugee assistance under this section” is that (1) “employable refugees” be employed
“as soon as possible after their arrival; (2) “social service funds” be focused on “employment-related services, English-as-a-second-language training . . ., and case-management services”; and (3) local voluntary agencies work in close cooperation with state and local governments.
8 U.S.C. 1522(a)(1)(B).
The first provision of 1522 directs that “[i]n providing assistance under this section, the Director [of ORR] shall, to the extent of available appropriations,” follow four charges.
Id. 1522(a)(1)(A). First, the Director shall “make available sufficient resources [nom] employment training and placement in order to achieve economic self-sufficiency among refugees as quickly as possible.” Id. Second, the Director shall “provide refugees with the opportunity to acquire sufficient English language training to enable them to become effectively resettled as quickly as possible.” Id.
Third, the Director shall “insure that cash assistance is made available to refugees in such a manner as not to discourage their economic self-sufficiency.” Id. And finally, the Director shall “insure that women have the same opportunities as men to participate in training and instruction.” Id.
Section 1522(a) imposes several additional duties on the Government. [nom] example, it provides that the Government
20 · P ACITO V . T RUMP
“shall develop and implement . . . policies and strategies [nom]
the placement and resettlement of refugees within the United
States.” Id. 1522(a)(2)(B). Those policies and strategies must take into account various factors, including the “likelihood of refugees placed in the area becoming self-sufficient and free from long-term dependence on public assistance.” Id. 1522(a)(2)(C)(iii). The Government is also required to conduct “periodic assessment[s]” to evaluate the needs of admitted refugees, id. 1522(a)(3), and it must
“develop a system” to monitor and evaluate “the assistance provided under this section,” id. 1522(a)(7).
The remaining provisions of 1522 are a mix of mandatory duties and permissive authorizations. Among other things, the Government “shall”: “assure that an adequate number of trained staff are available at the location” where arriving refugees “enter the United States,” id. 1522(b)(4)(A); “attempt to arrange [nom] the placement”
of · “unaccompanied · refugee · children,” · id.
1522(d)(2)(B)(ii); “assume legal responsibility (including financial responsibility) [nom]” any in-transit or admitted unaccompanied refugee children that have not yet been placed, id.; and “develop and implement alternative projects” to “provide[] interim support, medical services, support services, and case management” [nom] refugees who have been in the United States [nom] less than thirty-six months and who are not otherwise receiving cash or medical assistance, id. 1522(e)(7)(A).
The Government is further “authorized” to “make grants to, and contracts with, public or private nonprofit agencies
[nom] initial resettlement (including initial reception and placement with sponsors) of refugees in the United States.”
Id. 1522(b)(1)(A). Such grants or contracts must be made
“consistent with the objectives” outlined in 1522(a), and
P ACITO V . T RUMP · 21
any assistance provided via such contracts and agreements must “be provided in coordination with the Director’s provision of other assistance under” Subchapter IV. Id.
The Government is required to track domestic resettlement services provided under 1522, and 1523 requires the Secretary of HHS to submit a detailed annual report to Congress on such activities. See generally 8 U.S.C.
1523.
b. Implementation of the INA
The Refugee Act’s statutory framework is implemented through a variety of government agencies in coordination with United Nations partnership agencies and other nonprofit agencies located both domestically and abroad. It is managed by the Department of State (DOS), through its sub-agency the Bureau of Population, Refugees, and Migration (PRM), and it is jointly administered by HHS, through its sub-agency ORR, and by the Department of Homeland Security (DHS), through its sub-agencies U.S.
Citizenship and Immigration Services (USCIS) and U.S.
Customs and Border Protection (CBP). Collectively, this multi-agency implementation framework is referred to as the “United States Refugee Assistance Program” (USRAP).
The executive has promulgated extensive regulations to govern the implementation of USRAP. See generally 8
C.F.R. 207 et seq. (admission of refugees); 45 C.F.R. 400 et seq. (refugee resettlement programs). In practice, the admission and resettlement of refugees under the Refugee
Act occurs according to the following procedures.
Admission of refugees. Each year, “after appropriate consultation” with Congress, the President determines the number of refugees that “may be admitted” to the United
States in the following fiscal year. 8 U.S.C. 1157. This
22 · P ACITO V . T RUMP
finding is formalized in the annual “Presidential
Determination on Refugee Admissions.” E.g., Presidential
Determination No. 2024-13, 89 Fed. Reg. 83767 (Sept. 30, 2024) (determining that “[t]he admission of up to 125,000 refugees” during fiscal year 2025 “is justified by humanitarian concerns or is otherwise in the national interest”). These determinations often include flexible
“allocation ranges” indicating how many refugees may be admitted from different regions. See, e.g., id.
Once the Presidential Determination has been issued, USCIS begins processing applications [nom] refugee status.
See 8 C.F.R. 207.1(a). To submit an application [nom] refugee status, each applicant first “must receive a referral to the
[USRAP] [nom] consideration as a refugee.” Refugees, U.S.
Citizenship & Immigr. Servs. (last updated Sept. 17, 2025),
[lien] 8 C.F.R. 207.2(c) (all refugee applicants “must be sponsored by a responsible person or organization”). The United Nations High
Commissioner [nom] Refugees (UNHCR) is a common source of referrals. The United States Refugee Admissions Program
(USRAP) Consultation and Worldwide Processing
Priorities, U.S. Citizenship & Immigr. Servs. (last updated
Sept. 17, 2025), [lien] Other referral sources include “U.S. embassies, certain senior U.S.
government · officials, · certified · non-governmental
organizations (NGOs), and Welcome Corps private sponsors.” Refugee Admissions, U.S. Dept. of State (last visited Dec. 14, 2025), [lien]
After an applicant receives a referral, a Resettlement
Support Center (RSC) assists the alien with submitting a refugee application (Form I-590) and completing a pre-
screening process. · Refugee Processing and Security
Screening, U.S. Citizenship & Immigr. Servs. (last updated
P ACITO V . T RUMP · 23
Mar. 14, 2024), [lien] RSCs are international or non-governmental organizations with which
DOS enters into “cooperative agreements” to prepare applicants [nom] adjudication and to otherwise assist with USRAP implementation. During the pre-screening process, RSCs conduct interviews, initiate security, biometric, and biographic checks [nom] all applicants, and help applicants schedule USCIS eligibility interviews. Id.
USCIS maintains waiting lists [nom] all applications submitted [nom] filing, and applicants are selected from these lists according to “processing priorities” adopted by the Secretary of HHS. 8 C.F.R. 207.5. The priorities may be based on “such considerations as reuniting families, close association with the United States, compelling humanitarian concerns, and public interest factors.” Id. “Fulfilling a processing priority enables a refugee applicant the opportunity to interview with a USCIS officer, but does not
guarantee acceptance.” · The United States Refugee
Admissions Program (USRAP) Consultation and Worldwide
Processing Priorities, U.S. Citizenship & Immigr. Servs.
(last updated Sept. 17, 2025), [lien]
8LBY.
After the pre-screening process is complete, applicants over fourteen years old that are selected [nom] processing must conduct an in-person, under-oath interview with a USCIS officer overseas to determine whether the applicant is eligible [nom] refugee status and resettlement in the United
States. 8 C.F.R. 207.2(a). During the interview, a specially trained USCIS officer elicits information to confirm that the applicant meets the statutory requirements [nom] refugee status and is otherwise eligible [nom] admission to the United States.
Refugee Processing and Security Screening, U.S.
Citizenship & Immigr. Servs. (last updated Mar. 14, 2024),
24 · P ACITO V . T RUMP
[lien] · USCIS also considers
conditions in the applicant’s country of origin and initiates its own biometric and biographic checks. Id.
Throughout this process, DOS and DHS conduct extensive, individualized security vetting and background checks. Biographic data is provided to the intelligence community and to law enforcement partners, and biometrics are collected and submitted to the FBI, DOD, and other agency partners. Id. According to the Presidential
Determination on Refugee Admissions [nom] Fiscal Year 2026, “refugees receive the most stringent identification verification of any class of alien seeking admission or entry into the United States.” Presidential Determination No.
2025-13, 90 Fed. Reg. 49005 (Sept. 30, 2025).
The information collected on each refugee is synthesized in an assessment that is provided to USCIS. Refugee
Processing and Security Screening, U.S. Citizenship &
Immigr. Servs. (last updated Mar. 14, 2024),
[lien] · Before approving any
refugee application, USCIS confirms that all security checks have been completed and that all collected information has been reviewed and analyzed. Id. If an applicant has completed and cleared all security checks, is found to qualify
[nom] refugee status under the Act, is not otherwise inadmissible, and has no unresolved national security concerns, USCIS may adjudicate the applicant’s Form I-590 and conditionally approve the applicant as a refugee.
Refugee Admissions, U.S. Dept. of State (last visited Dec.
14, 2025), [lien] There is no appeal if USCIS denies an application [nom] refugee status. 8 C.F.R.
207.4.
P ACITO V . T RUMP · 25
Once an applicant has been conditionally approved by USCIS [nom] refugee status, the refugee is assigned to an RSC to assist with the final steps of admission. The RSC helps the refugee undergo mandatory medical screening examinations, 8 C.F.R. 207.2(b), and it arranges pre-entry cultural orientation programs. The RSC also obtains a “sponsorship assurance” from an approved domestic
Resettlement Agency (RA). · The RA enters into a
cooperative agreement with DOS, through which the RA commits to providing various initial resettlement services during the refugee’s first ninety days post-admission to the
United States. · See 8 U.S.C. 1522(b)(7) (listing
resettlement agencies’ statutory duties). Refugees are not permitted to travel to the United States until a sponsorship assurance has been obtained.
After a refugee has completed all pre-travel requirements, the RSC refers the refugee’s case to the International Organization [nom] Migration (IOM) to book travel to the United States. IOM is a nonprofit with which
DOS contracts to coordinate travel [nom] approved refugees and that serves as the RSC at certain overseas processing locations. The United States Refugee Admissions Program
(USRAP) Consultation and Worldwide Processing
Priorities, U.S. Citizenship & Immigr. Servs. (last updated
Sept. 17, 2025), [lien] IOM books the refugee’s travel with an interest-free loan that the refugee is expected to pay back after resettlement in the United
States.
The refugee must then arrive at a port of entry of the United States “within four months of the date the refugee application was approved.” 8 C.F.R. 207.4. Even with an approved Form I-590, the refugee must still be inspected by CBP upon arrival at a port of entry, and CBP has ultimate
26 · P ACITO V . T RUMP
authority whether to admit the refugee into the United States.
See id.
Resettlement of refugees. After a refugee has been admitted, ORR and PRM fund resettlement services “to provide [nom] the effective resettlement of refugees and to assist them to achieve economic self-sufficiency as quickly
as possible.” · 45 C.F.R. 400.1(b). To fund these
resettlement services, the Government has historically entered into cooperative agreements with domestic nonprofit
RAs. See 8 U.S.C 1522(b)(1)–(7) (authorizing such collaboration with “public or private nonprofit agencies [nom]
initial resettlement (including initial reception and placement with sponsors) of refugees in the United States”).
Domestic RAs must compete in an annual competitive funding process administered by PRM. PRM then executes
“Reception and Placement cooperative agreements” with the successful RAs, through which PRM grants federal funds to the RAs to provide initial reception services to newly admitted refugees, often [nom] a period of thirty to ninety days. 2
Such services may include: providing transportation from the airport upon arrival; developing an individualized service plan [nom] the refugee; providing initial housing and basic furnishings, groceries, and clothing [nom] at least thirty days; assisting the refugee with securing permanent housing;
providing cultural-orientation and English-language training; enrolling the refugee in school; helping the refugee apply [nom] a Social Security card and other public benefits;
2 Effective January 1, 2026, responsibility [nom] administering initial resettlement services under USRAP transferred from DOS to HHS- ORR. See Presidential Determination No. 2025-14, 90 Fed. Reg. 49007
(Oct. 31, 2025).
P ACITO V . T RUMP · 27
connecting the refugee with social services; and arranging medical appointments.
ORR also funds or administers various longer-term refugee resettlement projects. [nom] instance, ORR funds refugee cash and medical assistance programs [nom] up to thirty-six months after a refugee is admitted. ORR also provides funds [nom] “employment services, on-the-job training, English language instruction, vocational training, case management, translation/interpreter services, social adjustment services, health-related services, home management, childcare, and transportation” [nom] “up to five years after arrival.”
Finally, after a refugee has been physically present in the United States [nom] a year, the refugee is required to apply [nom]
lawful permanent residence status (a “Green Card”). See 8
C.F.R. 209.1. Upon application, USCIS will once again determine whether the refugee is admissible under 1182, subject to the exceptions and waiver provisions of 1159.
Id. 209.1(e)–(f). If the refugee is found to be otherwise admissible, the refugee’s status is adjusted to lawful permanent residence, and the refugee is considered to have been admitted as a lawful permanent resident as of the date of the refugee’s initial arrival in the United States. Id.
209.1(e); 8 U.S.C. 1159(a)(2). Although there is no appeal of a denial, the refugee may renew the request [nom]
lawful permanent resident status during removal proceedings. 8 C.F.R. 209.1(e).
B. Factual and Procedural Background of This Case
President Biden set the annual admissions ceiling [nom]
FY25 at 125,000 refugees. Presidential Determination No.
2024-13, 89 Fed. Reg. 83767 (Sept. 30, 2024). At the time
President Trump took office, over 128,000 individuals were
28 · P ACITO V . T RUMP
conditionally approved [nom] refugee status, and approximately 37,000 refugees had already been admitted to the United States pursuant to the FY25 allocation.
Hours after taking office on January 20, 2025, President
Trump issued Executive Order No. 14163, which suspended the entry of all refugees into the United States under USRAP pending further findings. Exec. Order No. 14163 3(a).
The executive order first states that “[o]ver the last 4 years, the United States has been inundated with record levels of migration,” which has caused some jurisdictions to “declare[] states of emergency.” Id. 1. It further asserts that the United States “lacks the ability to absorb large numbers of . . . refugees, into its communities in a manner that does not compromise the availability of resources [nom]
Americans, that protects their safety and security, and that ensures the appropriate assimilation of refugees.” Id.
Based on these assertions and the President’s finding
“that entry into the United States of refugees under the USRAP would be detrimental to the interests of the United
States,” the executive order suspends all entry of refugees under USRAP “until a finding is made in accordance with section 4 of th[e] order.” Id. 3(a). Section 3(b) of the order further suspends all “decisions on applications [nom] refugee status” until such a finding is made. Id. 3(b). Section 3(c) establishes a limited exception to the general suspension of admissions, under which the Secretary of State and the Secretary of Homeland Security “may jointly determine” to admit refugees “on a case-by-case basis” if they determine that such admission “is in the national interest and does not pose a threat to the security or welfare of the United States.”
Id. 3(c).
P ACITO V . T RUMP · 29
Section 4 of the executive order sets out the mechanism and criteria [nom] the resumption of USRAP. It directs the Secretary of Homeland Security to submit a report to the President every ninety days regarding whether resumption of USRAP would be in the interests of the United States in “light of [four] polic[y]” considerations. Id. 4. Those considerations are: (1) “public safety and national security”;
(2) the ability of refugees to “fully and appropriately assimilate into the United States”; (3) the preservation of “taxpayer resources [nom] [U.S.] citizens”; and (4) the involvement of “State and local jurisdictions” in the resettlement process. Id. 2. The order directs the Secretary to continue submitting such reports “until [the President]
determine[s] that resumption of the USRAP is in the interests of the United States.” 3 Id. 4.
Federal agencies immediately began implementing
Executive Order No. 14163. On January 21, 2025, DOS sent an email to its refugee resettlement partners stating that all refugee arrivals were suspended “until further notice,” all previously booked travel was canceled, no new bookings were to be made, all refugee case processing and pre-departure activities must cease, refugees should not be moved to transit centers, and no new referrals should be made to USRAP. 4
3 President Trump has since issued a “Presidential Determination on Refugee Admissions [nom] Fiscal Year 2026,” setting the annual cap at 7,500 refugees to “primarily be allocated among Afrikaners from South
Africa.” Presidential Determination No. 2025-13, 90 Fed. Reg. 49005
(Sept. 30, 2025).
4 During the final week of the Biden Administration, senior PRM officials were informed that President Trump intended to issue an executive order suspending all refugee admissions immediately upon
30 · P ACITO V . T RUMP
On January 24, 2025, DOS issued written notices to resettlement agencies stating that all “award(s)” were
“immediately suspended . . . pending a Department-wide review of foreign assistance programs,” that recipients must
“stop all work under the award(s),” “cancel as many outstanding obligations as possible,” and incur no new costs.
Recipients were also informed that they may “submit payment requests [nom] legitimate expenses incurred prior to” or “associated with” the suspension. The suspension notices purported to be issued pursuant to a different executive order, “Reevaluating and Realigning United States Foreign
Aid,” which directed federal agencies to “immediately pause new obligations and disbursements” of “foreign development assistance” funds. Exec. Order No. 14169
3(a), 90 Fed. Reg. 8619 (Jan. 20, 2025).
On February 10, 2025, Plaintiffs filed a putative class action in the Western District of Washington against the President and the Secretaries of State, Homeland Security, and Health and Human Services. Plaintiffs comprise nine individuals and three refugee-resettlement organizations.
The individual Plaintiffs include three distinct groups:
(1) refugees abroad, whose travel or processing was canceled; (2) U.S.-based individuals, seeking admission [nom]
their family members under the follow-to-join program or
[nom] their sponsees; and (3) recently arrived refugees, who allege loss of resettlement support. The organizational
taking office. · In anticipation of the forthcoming order, DOS
preemptively canceled all travel scheduled [nom] after 12:00 p.m. on January 20, 2025. This was apparently done to prevent refugees from being stranded at a U.S. port of entry or a layover location in a third country.
P ACITO V . T RUMP · 31
Plaintiffs include two of the ten national resettlement agencies and a local affiliate of a third. 5
On February 11, 2025, Plaintiffs moved [nom] a preliminary injunction to block the enforcement of Executive Order No.
14163 and the suspension of funding [nom] resettlement services. Specifically, Plaintiffs argued that Executive Order
No. 14163 was ultra vires under the INA, that the executive order violated follow-to-join refugees’ due process rights, that the agencies’ cessation of refugee processing and admissions violated the Administrative Procedure Act
(APA), and that the suspension of funding [nom] resettlement services violated the APA.
During a hearing on February 25, 2025, the district court granted Plaintiffs’ request and orally issued a preliminary injunction prohibiting the enforcement or implementation of §§ 3(a), 3(b), 3(c), and 4 of Executive Order No. 14163. On February 28, the district court issued a written order to define the scope of its February 25 ruling, specifying that the preliminary injunction also prohibits the suspension of USRAP funding and the withholding of reimbursements [nom]
work already performed pursuant to the cooperative agreements. Pacito v. Trump, 768 F. Supp. 3d 1199, 1239
(W.D. Wash. 2025).
On February 26, the day after the district court’s oral ruling, the Government began emailing notices to terminate
5 Plaintiffs Church World Services, Inc. (CWS) and HIAS, Inc. are resettlement agencies that entered into cooperative agreements with DOS to assist both with overseas USRAP processing and with domestic
resettlement services. · Plaintiff Lutheran Community Services
Northwest (LCSNW), an affiliate of a national resettlement agency, entered into cooperative agreements with DOS to provide domestic resettlement services in the Pacific Northwest.
32 · P ACITO V . T RUMP
its USRAP-related cooperative agreements. By February
27, it had terminated every cooperative agreement to provide resettlement services [nom] refugees in the United States and all but one of the cooperative agreements to provide USRAP processing support abroad. The termination notices were identical, one-page letters that stated:
The U.S. Department of State hereby notifies the recipient that this award is immediately terminated as of February 27, 2025. This award no longer effectuates agency priorities and is terminated in accordance with the U.S.
Department of State Standard Terms and Conditions, 2 CFR 200.340, and/or Award
Provisions as applicable.
Like the suspension notices, the termination notices permitted recipients to submit reimbursement requests “[nom]
legitimate costs incurred prior to this” termination.
In light of the termination notices, the district court permitted Plaintiffs to amend their complaint and file a new motion [nom] a preliminary injunction. On March 24, 2025, the district court issued a second preliminary injunction and enjoined the Government, except [nom] President Trump individually, from enforcing or implementing any portion of the termination of the cooperative agreements. Pacito v.
Trump, 722 F. Supp. 3d 1204, 1227–28 (W.D. Wash. 2025).
The second injunction also required the Government to reinstate all cooperative agreements terminated after the February 25 ruling. Id. The Government filed notices of appeal on February 28 and March 25, 2025.
On March 8, 2025, the Government sought a stay pending appeal of the February 28 injunction. Citing Trump
P ACITO V . T RUMP · 33
v. Hawaii, 585 U.S. 667, 684 (2018), a motions panel of this court granted in part and denied in part the Government’s stay request. Pacito v. Trump, 2025 WL 1325305, at *1 (9th
Cir. Mar. 25, 2025). Specifically, the motions panel declined to stay the district court’s injunction to the extent it applied to “individuals who were conditionally approved [nom] refugee status . . . before January 20, 2025.” Id. Upon further motions, the panel issued two additional orders clarifying the scope of this “limited carveout from the stay.” 6 Pacito v.
Trump, 2025 WL 1325306 (9th Cir. Apr. 21, 2025). On July
14, 2025, the district court issued an order establishing a detailed framework [nom] enforcing the carveout and appointing a magistrate judge to oversee its implementation.
On July 18, 2025, we issued an administrative stay of that enforcement order.
On July 30, 2025, the district court granted Plaintiffs’ motion [nom] class certification and certified three subclasses under Federal Rule of Civil Procedure 23(b)(2). Pacito v.
Trump, 796 F. Supp. 3d 692, 702–03 (W.D. Wash. 2025).
First, “all persons who are being or will be processed [nom]
admission . . . as a refugee or who have applied or will apply
[nom] a family member to be processed.” Id. Second, “all refugees and Afghan and Iraqi Special Immigration Visa holders resettled to the United States and within their first ninety days post-resettlement as of January 20, 2025, . . . or who currently are, or will be, resettled in the United States and within their first ninety days post-resettlement.” Id. at 703. And third, “all persons in the United States who are currently petitioning or will petition [nom] family members to
6 According to the Government, 77 conditionally approved refugees, including two of the individual Plaintiffs, were admitted to the United
States under the motions panel’s carveout.
34 · P ACITO V . T RUMP
be admitted to the United States under the follow-to-join
(“FTJ”) refugee program.” Id.
Finally, on September 12, 2025, following oral argument, we issued a partial stay of the district court’s injunctions pending final resolution of the appeal. Although we concluded that the Government was likely to prevail against most of Plaintiffs’ claims, we declined to stay the injunctions to the extent they required the Government to “reinstate such cooperative agreements necessary to provide the reception and placement services described in 1522 to refugees who have been admitted to the United States.”
Pacito v. Trump, 152 F.4th 1082, 1088 (9th Cir. 2025).
II. JURISDICTION
The district court had jurisdiction pursuant to 28 U.S.C.
1331. We have jurisdiction under 28 U.S.C. 1292(a)(1).
III. STANDARD AND SCOPE OF REVIEW
The decision to grant a preliminary injunction is within the discretion of the district court. We thus review an order granting a preliminary injunction “[nom] abuse of discretion, but review any underlying issues of law de novo.” Karnoski v. Trump, 926 F.3d 1180, 1198 (9th Cir. 2019) (per curiam).
A district court abuses its discretion when its ruling is based
“on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Aargon Agency, Inc. v.
O’Laughlin, 70 F.4th 1224, 1230 (9th Cir. 2023) (quoting
CTIA - The Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 838 (9th Cir. 2019)).
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.
Council, 555 U.S. 7, 22 (2008). A plaintiff seeking
P ACITO V . T RUMP · 35
preliminary injunctive relief thus bears the burden of demonstrating that four elements are met:
[1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and
[4] that an injunction is in the public interest.
Id. at 20. While a plaintiff must establish all four elements, our circuit uses a “sliding scale approach” under which “a stronger showing of one element may offset a weaker showing of another.” All. [nom] the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). “Likelihood of success on the merits is a threshold inquiry and is the most important factor.” Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989
(9th Cir. 2020). But under our sliding scale approach, “if a plaintiff can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d
1281, 1291 (9th Cir. 2013) (quoting Cottrell, 632 F.3d at 1135).
We likewise review the scope of a preliminary injunction
[nom] abuse of discretion. Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 886 F.3d 803, 823 (9th Cir. 2018). “A trial court abuses its discretion ‘by fashioning an injunction which is overly broad.’” Id. (quoting United States v. AMC
Ent., Inc., 549 F.3d 760, 768 (9th Cir. 2008)).
36 · P ACITO V . T RUMP
IV. LIKELIHOOD OF SUCCESS ON THE MERITS
The district court granted Plaintiffs’ request [nom]
injunctive relief on two broad grounds: First, Executive
Order No. 14163, which suspends USRAP, is beyond the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a).
Second, the State Department’s suspension of USRAP violated the Administrative Procedure Act. We address the first issue in Part IV.A; the second, in Part IV.B.
A. Executive Order No. 14163
The district court held that Executive Order No. 14163 was ultra vires because it “overrides USRAP in its entirety” and “suspends USRAP indefinitely,” thereby “effect[ing] a wholesale reversal of legislatively established policy” and “exceeding the President’s statutory authority.” The district court explained that 1182(f) authorizes only temporary suspensions of USRAP, and in its view, Executive Order No.
14163 “had no fixed end date and failed to tie the suspension to any resolvable, triggering event or condition.” The district court enjoined “[e]nforcing or implementing”
§§ 3(a), 3(b), 3(c), and 4 of the executive order “in their entirety.”
Because §§ 3(a), 3(c), and 4 address admission of approved refugees to the United States, while 3(b) addresses applications [nom] refugee status, we will address these issues separately.
- Sections 3(a), 3(c), and 4
Section 1182(f) provides:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the
P ACITO V . T RUMP · 37
interests of the United States, he may by proclamation, and [nom] such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
“By its plain language, 1182(f) grants the President broad discretion to suspend the entry of aliens into the United
States.” Trump v. Hawaii, 585 U.S. 667, 683–84 (2018).
Indeed, the Court continued, 1182(f) exudes deference to the President in every clause. It entrusts to the President the decision whether and when to suspend entry
(“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); [nom] how long (“[nom]
such per
