Martinez-Andino v. Mullin

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOSE ELIEZER MARTINEZ-ANDINO, Plaintiff, Civil Action No. 26-1208 (BAH) v. Judge Beryl A. Howell U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. MEMORANDUM OPINION Plaintiff Jose Eliezer Martinez-Andino, who is an immigrant from Honduras with no criminal history, but with a three-year old U.S. citizen daughter dependent on the authorization he held to work legally in the United States, Am. Compl. ¶¶ 22-23, ECF No. 19, was removed from this country in a manner that “boggles the mind,” Hr’g Tr. (Apr. 10, 2026) at 10:17, ECF No. 17. After being arrested and detained in Montana by immigration authorities and moved between at least six detention centers in different States across the country, Pl.’s Aff. at 1, ECF No. 13-1, he seemingly disappeared—he was not permitted to contact his attorneys for more than ten days, and neither Immigration and Customs Enforcement (“ICE”) nor Customs and Border Protection (“CBP”) would tell his attorneys where he was or in which agency’s custody, despite repeated requests, Am. Compl. ¶¶ 29-31. Not until his attorneys filed this lawsuit, initially seeking only a temporary restraining order (“TRO”) directing defendants to tell them where and in whose custody plaintiff was located, see Compl., ECF No. 1; Pl.’s First Emergency Mot. for TRO (“Pl.’s First TRO Mot.”), ECF No. 2, did the government disclose that he had been removed to Honduras that same day, purportedly because he had voluntarily agreed to that departure, Hr’g Tr. at 5:1-3, 7:22- 23; see also Am. Compl, Ex. A, Email from Defs.’ Counsel to Pl.’s Counsel (Apr. 10, 2026, at 3:29 1 PM), ECF No. 19-1. 1 Disputing defendants’ characterization of the voluntariness of his removal from the United States, plaintiff alleges that his agreement to removal was neither knowing nor voluntary, Am. Compl. ¶ 63, and that his removal occurred after his repeated requests to speak to counsel were denied and his repeated attempts to revoke any signed documents were also denied, id. ¶ 43—to which serious allegations defendants neither proffer nor supply any evidentiary response. As a result, plaintiff claims that his removal resulted from the government violating the Fifth Amendment, the Administrative Procedure Act (“APA”), and Immigrations and Customs Enforcement’s (“ICE”) own regulations by depriving him of counsel and his counsel of access to him and by depriving him of any legitimate process prior to removal other than his allegedly infirm agreement to removal, id. ¶¶ 63, 70-81. As ultimate relief, he seeks mandamus directing that defendants undo this harm by facilitating his return to the United States, paroling him into the country out of detention, and reinstating the deferred action status he had prior to his removal, as well as a declaratory judgment that defendants violated his right to counsel and a permanent injunction barring further interference with his rights. Id. at 18-19 (Prayer for Relief). More urgently, plaintiff seeks a TRO directing defendants to facilitate his return to this country and to parole him here. Pl.’s Second Mot. for TRO (“Pl.’s Second TRO Mot.”), ECF No. 8. Meanwhile, defendants move to dismiss the Amended Complaint in full. Defs.’ Mot. to Dismiss (“Defs.’ MTD”), ECF Nos. 21, 23 (Errata). For the reasons explained below, defendants’ motion to dismiss is GRANTED IN PART, as to naming as a defendant Acting Attorney General Todd Blanch, as to plaintiff’s APA claim, and his claim based on defendants’ alleged violations of 8 C.F.R. § 292.5, and DENIED IN PART as 1 As defendants, plaintiff names the Department of Homeland Security (“DHS”), the DHS Secretary, the Acting Director of ICE, the Acting Executive Associate Director of ICE’s Enforcement and Removal Operations, the Commissioner of CBP, the Chief of CBP, and the Acting Attorney General. See Am. Compl. at 1. 2 to plaintiff’s claims alleging violations of the Fifth Amendment and ICE’s Performance-Based National Detention Standards (“PBNDS”). Since plaintiff has shown a likelihood of success on his claims that his removal was caused by violations of his Fifth Amendment right to due process, and he has satisfied the other requirements for a TRO, plaintiff’s second motion for a TRO is GRANTED IN PART and defendants are ordered immediately to facilitate plaintiff’s return to the United States “to ensure that his case is handled as it would have been had he not been improperly sent to” Honduras. See Noem v. Abrego Garcia, 145 S. Ct. 1017, 1018 (2025). Plaintiff’s motion is DENIED IN PART to the extent the relief he seeks is moot and to the extent he seeks an order directing the Secretary of the Department of Homeland Security, upon plaintiff’s return to the United States, to exercise a discretionary power to parole plaintiff into the country outside of detention. I. BACKGROUND For the purposes of assessing defendants’ motion to dismiss, the facts as stated in plaintiff’s Amended Complaint are summarized next, along with the procedural history of this matter. A. Factual Background Martinez-Andino is a Honduran citizen who entered the United States on or around September 12, 2020, when he was fourteen years old, by crossing the United States/Mexico border in Texas. Am. Compl. ¶ 19. Deemed “to be an unaccompanied minor child,” he was “placed in immigration removal proceedings” immediately thereafter. Id. ¶¶ 19-20; Compl., Ex. D, Notice to Appear (Sept. 11, 2020), ECF No. 1-2 at 11. In July 2023, an immigration court “granted dismissal of removal proceedings upon joint motion by [plaintiff] and the U.S. Department of Homeland Security,” noting that plaintiff had “an approved I-360 Application for Special Immigrant Juvenile Status and intends to file . . . [an application] to become a lawful permanent 3 resident.” Am. Compl. ¶ 21. “Special Immigrant Juvenile” (“SIJ”) is a statutorily defined category encompassing certain individuals under 21 years old who are present in the United States and whom a state court has found cannot be returned to their parents or home country due to abuse, neglect, or abandonment. 8 U.S.C. § 1101(a)(27)(J); see also U.S. Citizenship and Immigration Serv. (“USCIS”), Special Immigrant Juveniles, https://www.uscis.gov/working-in-US/eb4/SIJ [https://perma.cc/P5EM-FBD5]. Individuals with SIJ status may apply for lawful permanent residency, 8 U.S.C. § 1255(h), though this process may take several years, since applications for lawful permanent residency are reviewed on a rolling basis based on the date when the SIJ status was approved, Am. Compl. ¶ 21. Since 2022, the government has offered deferred action (i.e., withholding of removal) to individuals with SIJ status, along with employment authorization. See USCIS, Special Immigrant Juveniles. 2 On March 18, 2026, plaintiff was arrested by immigration officials “and detained at the Cascade County Jail in Montana.” Am. Compl. ¶ 24. Plaintiff’s relatives contacted his current counsel, but the online ICE Detainee Locator showed no information about plaintiff. Compl., Ex. A, Decl. of Alison T. Chan, Pl.’s Counsel (“Chan Decl.”) ¶ 2, ECF No. 1-2 at 1. Five days later, on March 23, 2026, while still in the jail, plaintiff called attorney Allison Chan. Id. ¶ 3; Am. Compl. ¶ 25. In that call, plaintiff communicated that he had “sign[ed] documents he did not fully understand,” which he characterized as “removal paperwork,” although he was “unable to articulate to [Chan] what documents he signed.” Am. Compl. ¶ 25. 3 On March 31, plaintiff’s 2 On June 6, 2025, USCIS rescinded the deferred action policy for SIJ status, though the change left in place deferred action for those individuals, like plaintiff, already holding that status. Id. 3 Defendants’ motion to dismiss, docketed on May 20, 2026, includes as attachments two forms bearing plaintiff’s signature, which plaintiff attests was not voluntarily and knowingly affixed: (1) a single page DHS Form I- 826, titled “Notice of Rights and Request for Disposition,” in Spanish, with plaintiff’s signature next to the typewritten date “03/18/2026”—the same date as his arrest and detention—with the redacted name of an “Immigration Officer,” next to a different typed date “March 19, 2026 10:08 AM,” see Defs.’ MTD, Ex. A, Pl.’s I-826 Form, ECF No. 21-1; and (2) a four-page DHS Form I-210, confirming receipt of plaintiff’s agreement to removal (i.e., the I-826 form), 4 counsel was retained by plaintiff’s family and entered a notice of appearance with ICE, since “CBP . . . informed Counsel that the Plaintiff [was] transferred to ICE custody on or about March 31, 2026.” Id. ¶¶ 27-28; cf. Chan Decl. ¶ 9 (“On March 31, 2026, Cascade County Jail confirmed to me by phone that Mr. Martinez Andino was transferred to ICE custody on March 28, 2026.”). Between March 31 and April 10, plaintiff’s counsel contacted ICE and CBP multiple times to obtain information as to plaintiff’s location and which agency had custody of plaintiff. Am. Compl. ¶ 29. Both ICE and CBP denied having custody of plaintiff. Id. ¶ 30. CBP asserted that ICE had taken custody of him on March 30 or 31, whereas ICE denied having ever taken custody of him. Id. During this ten-day period, neither ICE or CBP would confirm plaintiff’s physical whereabouts or put counsel in touch with him directly. Id. ¶ 36. Plaintiff’s family also did not hear from him after “the weekend of March 28,” id. ¶ 37. B. Procedural History On Friday, April 10, 2026, after at least 10 days of not hearing from plaintiff and being denied information by defendants as to plaintiff’s whereabouts or custodial status, plaintiff’s counsel initiated this action, filing the complaint and an accompanying motion for temporary restraining order at approximately 11:30 AM on April 10, 2026. See Compl.; Pl.’s First TRO Mot. As relief, plaintiff sought an order directing defendants to (1) disclose plaintiff’s “current physical location”; (2) “identify the agency currently exercising custody” over plaintiff; and (3) “provide Plaintiff with immediate access to counsel.” Pl.’s First TRO Proposed Order at 1-2, ECF No. 2-1. The original complaint also contained a petition for a writ of habeas corpus. Compl. ¶¶ 53-55. dated “March 19, 2026”—the next date after plaintiff’s arrest and detention—and affirming that DHS has “granted voluntary departure,” requiring plaintiff to depart on or before March 23, 2026, which form has plaintiff’s signature next to the handwritten date “3/19/2026,” and the redacted name of an “Authorized DHS Official” digitally signed on “2026.03.19 10:36:37,” id., Ex. B, Pl.’s I-210 Form, ECF No. 21-2. 5  The case was assigned to the undersigned at 12:28 PM that same day, and a teleconference TRO hearing was scheduled for 4:00 PM that afternoon. See First Minute Order (Apr. 10, 2026). Due to technical difficulties on defendants’ counsel’s part, the hearing began at 4:07 PM. See Hr’g Tr. at 1. At the outset, defendants’ counsel stated that plaintiff “flew to Honduras this morning, and the flight that he was on . . . landed in Honduras at 10:50 Honduras time [12:50 EST],” and that plaintiff was “no longer . . . in the custody of any government agency.” Id. at 5:1-5. Plaintiff’s counsel indicated that, prior to that afternoon, they “had no idea he was going to be deported” and expressed that they “don’t believe that he could have knowingly and voluntarily signed something if he was being deprived of advice of counsel for over a week.” Id. at 10:9, 11:23-25. The Court granted plaintiff’s motion for TRO to the extent that motion sought information about plaintiff’s custody and location, since defendants had provided that information, and directed that, if still in government custody, plaintiff be provided with access to counsel. Hr’g Tr. at 12:19- 24, 14:18-22; Second Minute Order (Apr. 10, 2026). The Court denied the motion “insofar as plaintiff is no longer in the custody of any agency of the U.S. Government,” since the request that he be allowed to contact counsel was predicated on his being in U.S. custody. Second Minute Order (Apr. 10, 2026); Hr’g Tr. at 13:2-7. At approximately 6:00 PM the same Friday, April 10, 2026, plaintiff filed a second motion for a TRO, seeking an order directing defendants to (1) disclose whether plaintiff was still in U.S. custody at the time of the hearing and which agency last had custody or plaintiff; (2) provide plaintiff access to counsel, if plaintiff was still in U.S. custody; (3) “[n]ot . . . release the Plaintiff to the Honduran government or to his liberty in Honduras; (4) “[p]arole Plaintiff back into the United States under 8 C.F.R. § 212.5(d)(5) to rectify his wrongful removal”; and (5) “facilitate his return to the custody of the United States for him to be paroled back to the United States,” if 6 plaintiff was no longer in U.S. custody. Pl.’s Second TRO Mot. at 3. The Court directed the government to file, by Monday, April 13, 2026, at 2:00 PM, responses to the factual disclosures sought by plaintiff, with plaintiff’s response due the following day. Third Minute Order (Apr. 10, 2026). On April 13, 2026, the government filed a response, accompanied by a declaration from Christopher George, the Deputy Assistant Director of the International Operations Division within ICE’s Removal Division of Enforcement and Removal Operations. See Defs.’ Resp. to Order of the Ct., ECF No. 10; Decl. of ICE Deputy Ass’t Dir. Christopher George (“First ICE Decl.”), ECF No. 12. The ICE declaration stated that “at approximately 8:00 AM EST, Martinez-Andino departed the United States via Mesa, Arizona, on a chartered removal flight to Honduras,” at which time he was in ICE custody. First ICE Decl. ¶ 5. According to ICE, plaintiff landed at “approximately 12:50 PM EST,” and “no later than 2:00 PM EST . . . was transferred from ICE custody to the custody of the Government of Honduras[].” Id. ¶ 6. Later that same day, plaintiff, whom counsel had apparently been able to contact in Honduras, filed an affidavit, stating that “[t]he paperwork [he] signed when [he] was detained was not explained to [him],” and he was “told the only option [he] had in detention was to sign for the paperwork.” Pl.’s Aff. at 1, ECF No. 13-1. He “asked to speak with [his] attorneys for 9 days between March 31 and April 9,” which “requests were ignored or denied,” and he “told immigration officials that [he] was afraid to return to Honduras and . . . wanted an interview or a hearing with the Judge,” which requests were also “ignored or denied.” Id. During his U.S. detention, he “felt terribly mistreated,” due to poor food and no access to showers. Id. Plaintiff also recounted a timeline of removal quite different from that offered by defendants, either through defendants’ counsel at the TRO hearing held the afternoon of Friday, April 10 or in the ICE 7 Declaration filed on Monday, April 13. According to plaintiff, he landed in Honduras “around 2:00 p.m. (Honduras time)” (4:00 PM EST) on April 10, after which he “spent about 2 hours on the plane.” Id. “It was about 4:00 p.m. (Honduras time) [6:00 PM EST] when [they] first started to go through immigration in Honduras,” and plaintiff “remember[s] the time because [they] asked what time it was when [they] landed, and then [they] asked what time it was when [they] got off the plane.” Id. Plaintiff believes “it took about 1.5 hours to go be processed by Honduran officials,” placing the time of processing at around 7:30 PM EST. Id. Plaintiff is “afraid to be . . . in Honduras” because he “suffered a lot of physical abuse by [his] father when [he] was a child” and “still ha[s] scars on [his] body from what [his] father did to [him].” Id. at 2. 4 Given the apparent factual conflicts and concomitant legal issues as to the legal viability of plaintiff’s claims and relief sought, the parties were directed to propose a briefing schedule, Minute Order (Apr. 14, 2026), which proposal was adopted, Minute Order (Apr. 15, 2026); see also Jt. Status Report, ECF No. 16 (proposing schedule for plaintiff’s filing of any amended complaint or amended TRO or preliminary injunction (“PI”) motion, for defendants’ filing of a motion to dismiss, and for briefing to be completed by June 17, 2026, on both motions). Plaintiff subsequently filed the operative Amended Complaint, see Am. Compl., without any amended TRO or PI motion. 5 The Amended Complaint contains five claims for relief: (1) 4 Plaintiff appears to be at liberty in Honduras. See Pl.’s Second TRO Mot. (seeking facilitation of his return without mentioning that he needs to first be released from Honduran custody); Pl.’s MTD Opp’n at 13 (“Plaintiff has been dumped into San Pedro Sula, Honduras.”). 5 Defendants argue, without citation to any authority, that the filing of the Amended Complaint renders plaintiff’s prior-filed second pending TRO request moot, Defs.’ MTD at 14-15, but this is incorrect. A motion to dismiss the complaint is mooted automatically by the filing of an amended complaint as of right, Barnes v. Dist. of Columbia, 42 F. Supp. 3d 111, 117 (D.D.C. 2014), since such motions to dismiss are directed at the complaint itself and therefore cannot be evaluated when the original complaint has been superseded and is no longer the operative pleading. In contrast, here, plaintiff’s second TRO motion is fully amenable to evaluation, even with the original complaint superseded—indeed, as defendants note, the Amended Complaint provides the factual allegations necessary to evaluate the second TRO motion. Defs.’ MTD at 15. 8 pursuant to the Mandamus Act, 28 U.S.C. § 1361, due to defendant’s breach of “duty to maintain accurate custody information and permit attorney access,” id. ¶¶ 64-69 (Count I, Mandamus); (2) for violation of the Administrative Procedure Act, 5 U.S.C. § 706(1), since defendants “unlawfully withheld agency action by failing to disclose Plaintiff’s location and permit access to counsel while he was under the custody of the agency,” id. ¶¶ 70-72 (Count II, APA); (3) for violation of the Fifth Amendment, due to defendants’ interference with plaintiff’s “access to counsel,” id. ¶¶ 73-76 (Count III, Fifth Amendment); (4) for violation of the Accardi doctrine, which requires agencies to comply with their own regulations, id. ¶¶ 77-81 (Count IV, Accardi doctrine); and (5) pursuant to the All Writs Act, 28 U.S.C. § 1651, in the form of “[a]n order compelling the facilitation of Plaintiff’s return . . . to restore the Court’s jurisdiction,” id. ¶¶ 82-87 (Count V, All Writs Act). As relief, plaintiff seeks (1) a declaratory judgment that defendants’ denial of plaintiff’s access to counsel, obtaining plaintiff’s agreement to removal “through coercive tactics,” and removing plaintiff from the United States “violated the Fifth Amendment, the APA, and the Accardi doctrine,” (2) a writ of mandamus directing defendants to “facilitate” plaintiff’s return to the United States, “issu[e] humanitarian parole travel documents under 8 C.F.R. § 212.5 to allow for admission into the United States,” and “provid[e] for the cost of Plaintiff’s return flight to the United States,” (3) vacatur of plaintiff’s removal and restoration of his deferred action status; (4) a permanent injunction prohibiting interference by defendants with plaintiff’s right to counsel or right to seek adjustment of status; and (5) attorneys’ fees. Id. at 18-19 (Prayer for Relief). 6 Defendants have now moved to dismiss the Amended Complaint for lack of subject-matter jurisdiction and failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 6 Plaintiff is no longer in U.S. government custody, and thus, the Amended Complaint drops the habeas claim set out in the original complaint. 9 (b)(6). See Defs.’ MTD. Attached to this motion is a second declaration by the same ICE official correcting his prior declaration. Second Decl. of Christopher George (“Second ICE Decl.”) ¶¶ 5- 7, ECF No. 23-3. Specifically, the Second ICE declaration states that the declarant “discovered that the times as reported in the records [he] used to prepare for [his first] declaration were reported in local time in Honduras, not Eastern Standard Time as [he] originally believed,” and, with the correct time zones, that plaintiff “departed the United States” “in ICE custody” on April 10, 2026, at “approximately 10:00 AM EST,” landed in Honduras at “approximately 2:50 PM EST,” and “all aliens on the removal flight were confirmed as handed over to the custody of the Government of Honduras[] . . . by 4:10 PM EST”—which is ten minutes into the scheduled hearing time on April 10 and approximately three minutes after the April 10 hearing actually began. 7 Also attached to defendants’ motion are two forms, DHS Form I-826 and Form I-210, which reflect plaintiff’s signature on the day of and the morning after his initial arrest and detention in a Montana jail, and on which defendants base their assertion that plaintiff was voluntarily deported. See supra n.3 (describing Defs.’ MTD, Ex. A, Pl.’s I-826 Form, ECF No. 21-1, and Ex. B, Pl.’s I-210 Form, ECF No. 21-2). The DHS Form I-826 states, inter alia, that “[y]ou have the right to contact an attorney or other legal representative,” and outlines three options for disposition of an immigration case: (1) “I request a hearing before the Immigration Court to determine whether or not I may remain in the United States”; (2) “I believe I face harm if I return to my country. My case will be referred to the Immigration Court for a hearing”; and (3) “I admit that I am in the United States illegally, and I believe I do not face harm if I return to my country. I give up my 7 The parties devote significant briefing to which accounting of this timeline is correct, whether the government’s initial, erroneous timeline was provided to the Court in bad faith, and whether defendants “engineered their own mootness defense” by “completing Plaintiff’s removal during the pendency of this action,” see Pl.’s MTD Opp’n at 11; see also id. at 3-5; Defs.’ MTD at 8-10; Defs.’ MTD Reply at 2-8. Since neither jurisdiction nor plaintiff’s claims appear to hinge on the precise timeline of plaintiff’s removal relative to the first TRO hearing in this matter, these disputes are not resolved or further addressed at this time. 10 right to a hearing before the Immigration Court. I wish to return to my country as soon as arrangements can be made to effect my departure. I understand that I may be held in detention until my departure.” Pl.’s I-826 Form. Notably, the form states, “If you choose to return to your country, you may change your mind and request a hearing before an immigration judge at any time before your departure from the United States. You must immediately notify an immigration officer if you change your mind.” Id. The copy of the form provided by defendants shows plaintiff’s initials next to the third option (“I wish to return to my country . . .”), and his signature, with the typewritten date, “03/18/2026.” The bottom of the form has checked boxes for the Notice was “read by subject” and “read to subject by [redacted name] in the Spanish language,” followed by the redacted name in a digital signature of an “Immigration Officer” affixed at “2026.03.19 10:10:41” with the letters “CBP,” and the typewritten date “March 19, 2026 10:08 AM.” Id. The second form submitted by defendants, DHS Form I-210, confirms receipt by DHS of plaintiff’s agreement to removal (i.e., the I-826 form), and affirms that DHS has “granted voluntary departure,” requiring plaintiff to depart “on or before March 23, 2026.” Pl.’s I-210 Form. Plaintiff’s handwritten signature appears next to the handwritten date, “3/19/2026.” Id. The addendum to this form also bears plaintiff’s handwritten signature, next to the handwritten date, “3/19/2026,” under the text, stating, in part, “I hereby knowingly, voluntarily, and intelligently waive my opportunity to file any and all applications for relief or protection from removal, deportation, or exclusion under the immigration laws. I acknowledge that I do not have a fear of return to my country.” Id. The Form I-210 and addendum are both in English, with the addendum stating that “[t]he alien was provided an oral interpretation/written translation of this Declaration in the alien’s preferred language,” above the digital signature of a redacted name, digitally signed “2026.03.19 10:40:28,” by a “Supervisory Border Patrol Agent.” Id. In short, these forms indicate 11 that between about 10:08 AM and 10:40 AM on March 19, 2026, the morning after plaintiff was picked up and detained in a Montana jail, and before finding, consulting with, and retaining counsel, plaintiff had executed DHS forms volunteering to leave the United States. Briefing on both plaintiff’s second TRO motion and defendants’ motion to dismiss became ripe for resolution on June 17, 2026, in accordance with the schedule proposed by parties and adopted by the Court. See Minute Order (Apr. 15, 2026). II. APPLICABLE LEGAL STANDARDS A. Motion to Dismiss for Lack of Subject Matter Jurisdiction “Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited subject- matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which Congress grants jurisdiction.’” Bronner ex rel. Am. Stud. Ass’n v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020) (alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012)); see also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))). Federal courts therefore have a corresponding “independent obligation to ensure that they do not exceed the scope of their jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Absent subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); FED. R. CIV. P. 12(h)(3). To survive a motion to dismiss for lack of subject matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of demonstrating the court’s subject- matter jurisdiction over the claim at issue. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). 12 The court resolves jurisdictional questions by accepting as true all uncontroverted material factual allegations contained in the complaint and “constru[ing] the complaint liberally, granting plaintiff[s] the benefit of all inferences that can be derived from the facts alleged.” Hemp Indus. Ass’n v. DEA, 36 F.4th 278, 281 (D.C. Cir. 2022) (second alteration in original) (internal quotation marks omitted) (quoting Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)). Inferences drawn by the plaintiffs need not be accepted, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. Id. at 288 (noting that liberally construing complaint in plaintiffs’ favor “does not entail accepting inferences unsupported by facts or legal conclusions cast in the form of factual allegations” (alterations accepted and internal quotation marks omitted)). The court “may consider materials outside the pleadings” in assessing whether subject matter jurisdiction may be exercised. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). B. Motion to Dismiss for Failure to State a Claim To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” although the allegations need not be “detailed.” VoteVets Action Fund v. U.S. Dep’t of Veterans Affs., 992 F.3d 1097, 1104 (D.C. Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The alleged facts must not be “‘merely consistent with’ a defendant’s liability” but rather must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). All factual allegations in the complaint must be accepted as true, “even if doubtful in fact,” Twombly, 550 U.S. at 555, though the court does “not assume the truth of legal conclusions, nor . . . ‘accept inferences that are unsupported by the facts set out in the complaint,’” Arpaio, 797 13 F.3d at 19 (citation omitted) (quoting Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)). In assessing the sufficiency of a complaint under Rule 12(b)(6), a court’s consideration is limited “to materials properly before it,” including, in this Circuit, “‘the facts alleged in the complaint, [and] documents attached thereto or incorporated therein.’” Page v. Comey, 137 F.4th 806, 813 (D.C. Cir. 2025) (alteration in original) (quoting Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (noting that, in deciding motion to dismiss, consideration may be given to “documents incorporated into the complaint by reference, and matters of which the court may take judicial notice”). C. Temporary Restraining Order Much like a preliminary injunction, a temporary restraining order is “an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004)). “The standard for obtaining either a TRO or a preliminary injunction is identical.” Dellinger v. Bessent, No. 25- 5028, 2025 WL 559669, at *3 (D.C. Cir. Feb. 15, 2025) (citing Gordon v. Holder, 632 F.3d 722, 723-24 (D.C. Cir. 2011)). Thus, to obtain a temporary restraining order “the movant must show: (1) ‘he is likely to succeed on the merits,’ (2) ‘he is likely to suffer irreparable harm in the absence of preliminary relief,’ (3) ‘the balance of equities tips in his favor,’ and (4) issuing ‘an injunction is in the public interest.’” Hanson v. Dist. of Columbia, 120 F.4th 223, 231 (D.C. Cir. 2024) (per curiam) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see Gordon, 632 F.3d at 723-24 (applying the preliminary injunction standard to review a district court decision 14 denying a motion for a temporary restraining order and preliminary injunction). “The balance of the equities weighs the harm to [plaintiff] if there is no injunction against the harm to [defendants] if there is,” and, when the government opposes the preliminary injunction, “the [government]’s harm and the public interest are one and the same, because the government’s interest is the public interest,” so the third and fourth factors merge. Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original). While the standard is the same for a TRO and a preliminary injunction, other aspects of these two forms of emergency relief differ. Specifically, a “TRO often is used to provide immediate relief upon the filing of a lawsuit and may be issued without notice to the adverse party,” Dellinger, 2025 WL 559669, at *3 (citing FED. R. CIV. P. 65(b)(1)), and “‘expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension,’” id. (quoting FED. R. CIV. P. 65(b)(2)), beyond which “timeframe of a TRO, the district court may grant a preliminary injunction to provide relief that extends until the lawsuit is resolved,” id. III. DISCUSSION Defendants move for dismissal on several grounds, which are discussed first before turning to the merits of plaintiff’s request for a temporary restraining order based on the surviving claims. A. Defendants’ Motion to Dismiss Defendants claim that the Amended Complaint must be dismissed on the following four grounds: (1) improperly naming the Acting Attorney General as a defendant, (2) mootness, (3) lack of standing, and (4) failing to state a claim under the Accardi doctrine, each of which is addressed seriatim. 15  1. Naming Acting Attorney General as Defendant Defendants argue that, though plaintiff “named Acting Attorney General Todd Blanche as a defendant in this lawsuit,” plaintiff “does not allege any wrongdoing by the Department of Justice,” and therefore Blanche should be dismissed as a defendant. Defs.’ MTD at 13. Plaintiff fails to address this argument, essentially conceding the point. See D.D.C. Local Civil Rule 7(b) (unopposed motions may be “treat[ed] . . . as conceded”); FDIC v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997) (“Where the district court relies on the absence of a response as a basis for treating the motion as conceded, [the Circuit] honor[s] its enforcement of the rule.” (internal quotation marks omitted) (quoting Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997)); Uranga v. U.S. Citizenship & Immigr. Servs., 490 F. Supp. 3d 86 (D.D.C. 2020) (“[I]t is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” (quoting CD Int’l Enters., Inc. v. Rockwell Cap. Partners, Inc., 251 F. Supp. 3d 39, 46 (D.D.C. 2017))). Thus, defendants’ motion to dismiss Blanche as defendant is granted, and all claims are dismissed as to Blanche. 2. Mootness of Plaintiff’s Claims Defendants contend that mootness dooms all plaintiff’s claims. 8 “It has long been settled that a federal court has no authority ‘to give opinions upon moot questions.’” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). A controversy is moot “when the issues presented are no longer ‘live’ or the parties 8 Defendants also argue that certain relief sought in the second TRO is moot because the relief has already been provided, see Defs.’ MTD at 30 (describing as moot plaintiff’s requested relief in the form of information about the timeline of plaintiff’s removal and his access to counsel, and for plaintiff not to be released from U.S. custody), but this focus on relief has no bearing on defendants’ motion to dismiss the Amended Complaint. The relief requested in the TRO that is available is discussed infra in Part III.B. 16 lack a legally cognizable interest in the outcome.” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). Analysis of each claim shows this mootness challenge does not pass muster, except as to the APA claim in Count II. (a) Count I (Mandamus) Count I, seeking relief pursuant to the Mandamus Act, 28 U.S.C. § 1361, is not moot, since that count seeks a forward-looking remedy for the legal violations alleged in other substantive claims in the Amended Complaint. See Am. Compl. ¶¶ 64-69. Plaintiff’s Prayer for Relief reveals that plaintiff relies on the mandamus writ not to direct defendants to disclose plaintiff’s location or allow him access to counsel, which relief plaintiff has already obtained, but to “facilitate” plaintiff’s return to the United States, “issu[e] humanitarian parole travel documents under 8 C.F.R. § 212.5 to allow for admission into the United States,” and “provid[e] for the cost of Plaintiff’s return flight to the United States.” Id. at 18 (Prayer for Relief). In other words, plaintiff argues that because defendants breached clear duties under the Fifth Amendment, APA, and Accardi doctrine, as set out in the causes of action in Counts II, III, and IV, respectively, see Am. Compl. ¶¶ 70-81, by failing to provide plaintiff access to counsel and plaintiff’s counsel access to information about plaintiff’s custody status, plaintiff is entitled to mandamus ordering defendants to correct the resultant effects of those breaches, including his detention, removal, and revocation of deferred action, see Am. Compl. at 18 (Prayer for Relief). Setting aside the merits of this request for mandamus, plaintiff has a cognizable and continuing interest that is not moot in directing defendants to return him to the United States, and Count I is accordingly not moot. (b) Count II (APA Claim Under 5 U.S.C. § 706(1)) Plaintiff’s claim for relief, pursuant to the APA, 5 U.S.C. § 706(1), is moot, because the only relief available under § 706(1) is an order “compel[ling] agency action unlawfully withheld 17 or unreasonably delayed,” 5 U.S.C. § 706(1), but the only agency actions alleged to be unreasonably delayed are “disclos[ure] [of] Plaintiff’s location” and “permit[ting] access to counsel,” Am. Compl. ¶ 70. Since defendants have now taken both actions plaintiff claims they unreasonably delayed, no more relief is available for plaintiff to seek under § 706(1). Mehneh v. Rubio, 164 F.4th 928, 931 (D.C. Cir. 2026) (claim under § 706(1) moot when allegedly delayed action was completed by agency during pendency of litigation). As such, Count II, as alleged, is moot and dismissed. (c) Count III (Fifth Amendment) Defendants do not dispute that noncitizens have a constitutional, Fifth Amendment right to the advice of counsel, nor do they offer any explanation why plaintiff was denied access to his counsel for the ten days immediately prior to his removal. See generally Defs.’ MTD; see also infra Part III.B.1(a) (discussing the rights to due process and counsel in immigration proceedings). Instead, defendants argue, first, “there is no further relief for the Court to grant” on plaintiff’s Fifth Amendment