Background
The plaintiffs are seven married couples, each consisting of a U.S. citizen and a noncitizen who was unlawfully present and subject to a final removal order. The noncitizens sought lawful permanent residence through a process that included pursuing provisional unlawful-presence waivers under 8 C.F.R. § 212.7(e). Three were arrested and detained by Immigration and Customs Enforcement immediately after attending I-130 interviews at a USCIS office in Baltimore; the others postponed or abandoned their interviews for fear of arrest.
The plaintiffs alleged that the government lacked authority to arrest or remove them while they pursued provisional waivers and, alternatively, that immigration officials unlawfully used the waiver process to identify and apprehend them. Without fact discovery, the district court granted summary judgment to the plaintiffs, issued class-wide declaratory relief, and enjoined the government from arresting, detaining, or removing the named noncitizen plaintiffs during the waiver process.
The Court’s Holding
The Fourth Circuit first held that 8 U.S.C. § 1252(g) did not eliminate jurisdiction. The plaintiffs raised a legal challenge to the government’s authority to execute their removal orders during the provisional-waiver process, rather than challenging a discretionary decision to execute orders that the government unquestionably had authority to enforce.
On the merits, the court rejected the theory that participation in the provisional-waiver process shields a noncitizen from arrest, detention, or removal. The regulations state that a pending or approved waiver neither grants lawful status nor constitutes an authorized period of stay, and the 2013 rule’s preamble expressly warned that filing an application does not protect a noncitizen from removal. The court also held that the related APA and procedural-due-process theories failed, noting that intervening circuit precedent established that USCIS has no legal obligation to adjudicate provisional-waiver applications.
The court nevertheless did not foreclose the plaintiffs’ alternative allegation that officials used the waiver process as bait to target noncitizens for removal. It held only that the record, developed without discovery, did not support summary judgment on that theory. The evidence showed arrests at USCIS offices but did not establish that participation in the waiver process motivated or facilitated the arrests. The court therefore vacated the judgment and remanded without deciding whether the alleged conduct, if proven, would violate the law.
Key Takeaways
- Section 1252(g) did not bar jurisdiction over this legal challenge to the government’s authority to execute removal orders during the waiver process.
- Seeking a provisional unlawful-presence waiver does not itself protect a noncitizen with a final removal order from arrest, detention, or removal.
- The plaintiffs may pursue their targeting theory on remand, but arrests at USCIS interviews alone were insufficient to prove that the government used the waiver process as a trap.
Why It Matters
The decision confirms that the provisional-waiver program, although designed to reduce family separation, does not create an automatic stay of removal or a protected right to remain in the United States while the process is pending. It also preserves judicial review of pure legal challenges to executive authority notwithstanding § 1252(g).
At the same time, the court left open whether evidence that immigration officials deliberately leveraged the waiver process to identify or apprehend applicants could support APA or constitutional liability. That issue returns to the district court for further proceedings on a more developed factual record.