Background
The plaintiffs are seven married couples, each consisting of a U.S. citizen and a noncitizen who is unlawfully present and subject to a final removal order. The noncitizens sought lawful permanent residence and intended to pursue provisional unlawful-presence waivers, which can reduce the time eligible applicants must remain abroad while completing the immigration process.
After the couples filed family-based I-130 petitions, three noncitizen spouses were arrested by Immigration and Customs Enforcement following interviews at a USCIS office in Baltimore. Others postponed or abandoned their interviews out of fear of arrest. The District of Maryland granted summary judgment to the plaintiffs, declared that the government could not interfere through arrest, detention, or removal once they initiated the provisional-waiver process, and enjoined enforcement against the named noncitizens while they pursued waivers.
The Court’s Holding
The Fourth Circuit held that 8 U.S.C. § 1252(g) did not eliminate federal jurisdiction. The plaintiffs challenged the government’s legal authority to execute their removal orders while they pursued provisional waivers, not a discretionary decision to execute concededly enforceable orders. Under circuit precedent, that pure question of legal authority remained reviewable.
On the merits, however, the court held that the provisional-waiver regulations do not shield applicants from arrest, detention, or removal. A pending or approved provisional waiver provides neither lawful status nor an authorized period of stay, and the regulatory materials expressly preserve immigration officials’ removal authority. Intervening circuit precedent also foreclosed the procedural-due-process theory because USCIS has no legal obligation to adjudicate a provisional-waiver application.
The record likewise could not support summary judgment on the alternative theory that officials used the waiver process as bait to identify and apprehend noncitizens. Evidence that some noncitizens were arrested after I-130 interviews did not establish that their anticipated pursuit of provisional waivers motivated or facilitated the arrests. Because the parties had conducted no discovery, the court vacated the judgment and remanded without deciding whether the alleged targeting, if proven, would violate the APA or the Constitution.
Key Takeaways
- Section 1252(g) did not bar review of the plaintiffs’ pure legal challenge to the government’s removal authority.
- Beginning the provisional unlawful-presence-waiver process does not create a stay of removal or otherwise immunize an applicant from arrest, detention, or removal.
- The plaintiffs lacked a protected procedural-due-process interest in access to a waiver process that USCIS has discretion not to adjudicate.
- Claims that officials used immigration interviews as a trap required factual development and could not be resolved for the plaintiffs on the sparse, discovery-free record.
Why It Matters
The decision rejects the broad proposition that eligible noncitizens may remain in the United States simply because they have begun pursuing provisional waivers. Immigration officials retain enforcement authority while that process is pending.
But the court left open whether the government would violate the APA or constitutional protections by deliberately using the waiver program to lure applicants into custody. That issue may be litigated on remand after development of evidence about the government’s motives and practices.