Provisional Unlawful Presence Waivers Do Not Implicitly Stay Removal; § 1252(g) Does Not Bar Pure “Authority” Challenges

I. Introduction

These consolidated appeals arose from a District of Maryland class action brought by U.S.-citizen spouses and their noncitizen spouses who were unlawfully present and subject to final orders of removal, but who sought to pursue the “provisional unlawful presence waiver” pathway under 8 C.F.R. § 212.7(e). The plaintiffs alleged the government lacked legal authority to arrest, detain, or remove them while they engaged in the “provisional waiver process,” beginning with Form I-130 interviews at a USCIS field office. After several noncitizen plaintiffs were arrested by ICE immediately following I-130 interviews—and others avoided interviews out of fear—the district court granted summary judgment to plaintiffs, issued declaratory relief, and entered injunctions barring arrests/removals during the process.

The Fourth Circuit vacated and remanded. It held (1) the case was not jurisdictionally barred by 8 U.S.C. § 1252(g) because plaintiffs presented a “pure law” challenge to legal authority rather than an attack on discretionary enforcement, but (2) plaintiffs were not entitled to summary judgment on either their “shield” theory (that the regulations themselves bar removal while the process is pending) or their “sword/bait-and-switch” theory (that ICE used the waiver process to target and lure applicants), the latter failing on the undeveloped record.

II. Summary of the Opinion

  • Jurisdiction: The court affirmed jurisdiction despite § 1252(g), treating the claim as a legal challenge to authority to execute removal orders “at a particular time,” not a challenge to discretionary execution decisions.
  • Merits—“Shield” theory rejected: The provisional waiver regulations do not create an implied stay of removal. Regulatory text and the 2013 Rule’s preamble expressly state that filing does not protect from removal, and the 2016 amendments did not alter the operative language.
  • Due process “right to apply” undermined: After the district court’s decision, Lovo v. Miller held USCIS has no legal obligation to adjudicate provisional waiver applications; thus, plaintiffs could not maintain an entitlement-based procedural due process theory premised on guaranteed access to adjudication.
  • Merits—“Sword/bait-and-switch” theory not proved on current record: The arrests after I-130 interviews, without discovery, do not establish ICE targeted individuals because they sought provisional waivers; summary judgment was improper.
  • Disposition: Vacated and remanded for further proceedings; the court did not decide whether the “bait-and-switch” conduct, if proven, would be unlawful, nor did it reach remedy-scope disputes.

III. Analysis

A. Precedents Cited

1. Jurisdiction-stripping and the “pure law” carve-out

  • Reno v. American-Arab Anti-Discrimination Committee ("AADC"): The opinion relies on AADC’s narrow construction of § 1252(g), limiting it to three “discrete actions” (commence proceedings, adjudicate cases, execute removal orders) and emphasizing Congress’s concern with insulating prosecutorial discretion. The Fourth Circuit used AADC to frame § 1252(g) as targeting challenges to discretionary enforcement choices, not challenges to legal authority.
  • U.S. Dep't of Homeland Sec. v. Regents of the Univ. of Cal.: Cited to reaffirm that § 1252(g) has a “narrow” ambit and does not impose a sweeping jurisdictional bar over all claims connected to deportation.
  • Bowrin v. U.S. Immigration and Naturalization Service: Central Fourth Circuit precedent: § 1252(g) does not bar review of claims that “raise questions of pure law.” The court applied Bowrin’s distinction between challenges to discretionary execution and challenges to authority to act at all.
  • Mapoy v. Carroll: Addressed by the court to rebut the government’s argument that Mapoy undermines Bowrin. The panel explained Mapoy concerned whether habeas jurisdiction can overcome § 1252(g) when § 1252(g) applies; Mapoy remained consistent with the discretion-focused reading of AADC and did not eliminate Bowrin’s “pure law” pathway.
  • Tazu v. Attorney General (Third Circuit) and Camarena v. Director, Immigration and Customs Enforcement (Eleventh Circuit): The court acknowledged contrary out-of-circuit decisions. It criticized Tazu’s “when to execute is itself discretionary” framing as effectively collapsing jurisdiction into merits by presupposing the government’s authority persists during the waiver process. Camarena was distinguished as rejecting the discretion/authority distinction adopted by Bowrin.
  • Zadvydas v. Davis and U.S. Immigr. & Naturalization Serv. v. St. Cyr (and Nasrallah v. Barr as a later statutory-supersession note): Used to show the Supreme Court’s longstanding approach of distinguishing challenges to legal authority from challenges to discretionary decisions when interpreting immigration jurisdiction-stripping provisions.

2. Merits and administrative law frameworks

  • Lovo v. Miller: The decisive intervening precedent on due process/entitlement. Lovo held USCIS has no legal obligation to adjudicate provisional waiver applications; adjudication is “committed to agency discretion by law.” The panel treated this as fatal to any “right to apply/access the process” theory premised on mandatory adjudication.
  • FCC v. Fox Television Stations, Inc.: The district court relied on Fox for the idea that agencies must provide a reasoned explanation when changing policy. The Fourth Circuit rejected the predicate that the rules created a non-enforcement policy—so there was no relevant “change” to explain.
  • Casa De Maryland v. U.S. Dep't of Homeland Sec.: Cited for the principle that an agency must provide a reasoned explanation for a policy change; again, the court used it to reinforce that plaintiffs failed to show any policy embedded in the regulations that would trigger this requirement.
  • Smith v. Ashcroft: Cited for the procedural due process rule that a protected liberty/property interest requires an “entitlement” directed by statute/regulation; discretionary relief does not create a protected interest.
  • United States ex rel. Accardi v. Shaughnessy: Invoked in discussing the district court’s Accardi-based concerns (government must follow its own regulations). The Fourth Circuit did not decide the legality of the alleged “bait-and-switch” theory; it held only that the factual predicate was not established on the no-discovery record.
  • Outdoor Amusement Bus. Ass'n, Inc. v. U.S. Dep't of Homeland Sec.: Cited for de novo review standards applicable to summary judgment and legal questions.

B. Legal Reasoning

1. Why § 1252(g) did not bar jurisdiction

The court’s key move was to categorize the plaintiffs’ challenge as one to the government’s legal authority to execute removal orders during a particular period (the provisional waiver process), rather than a challenge to how the government exercised enforcement discretion. Under AADC and Bowrin v. U.S. Immigration and Naturalization Service, § 1252(g) is aimed at insulating the Executive’s discretionary prosecutorial choices at the three enumerated stages. A claim that the government cannot legally act “at all” (even temporarily) is treated as a reviewable legal question.

The court explicitly rejected the government’s approach—echoing Tazu v. Attorney General—that discretion over execution necessarily includes discretion over timing. For the Fourth Circuit, that argument assumes the very merits question at issue: whether timing discretion is limited by law during the provisional waiver process.

2. Why the “shield” theory failed (regulations do not create a stay)

On the merits, the panel refused to infer a removal bar from regulatory purpose. While acknowledging the waiver program’s objective of reducing family separation, it held that purpose does not override clear textual signals that provisional waiver applications do not grant lawful status or an authorized stay.

  • Regulatory text: 8 C.F.R. § 212.7(e)(2)(i) states that a pending or approved provisional waiver “does not constitute a grant of a lawful immigration status or a period of stay authorized by the Secretary.”
  • 2013 Rule preamble: The agency expressly warned filing does “not . . . protect” a noncitizen from removal, consistent with enforcement policies and prosecutorial discretion.
  • 2016 Rule amendments: The plaintiffs argued the 2016 Rule’s preamble did not repeat the warning and therefore silently imposed constraints on enforcement. The court found this implausible because the operative language remained unchanged; omission of a repeated clarification is best read as maintaining the original meaning, not reversing it “sub silentio.”

The APA “policy change” claim fell with the “shield” theory: if the regulations never created a non-enforcement rule, the government did not “change” policy in a way that required a reasoned explanation under FCC v. Fox Television Stations, Inc. and Casa De Maryland v. U.S. Dep't of Homeland Sec..

3. Why the procedural due process “right to apply” could not sustain summary judgment

The district court had characterized the interest as a distinct “right to apply” for a provisional waiver (separate from entitlement to approval). The Fourth Circuit concluded that framing could not survive Lovo v. Miller, which held USCIS has no legal duty to adjudicate provisional waiver applications at all. Without a mandatory obligation to adjudicate, there is no entitlement-like interest in the “process” that could ground procedural due process under Smith v. Ashcroft.

4. Why the “sword/bait-and-switch” theory required more facts

The panel treated plaintiffs’ alternative theory as fact-dependent: it is one thing to say ICE may execute final orders even when an I-130 is pending; it is another to say ICE intentionally used the provisional waiver pathway to identify, lure, and target applicants because they pursued that program.

On the summary-judgment record (no discovery), the court found the evidence insufficient. The known facts—arrests following I-130 interviews—did not establish motive or causal use of the provisional waiver program, especially since the I-130 interview is only the first step and precedes any I-601A filing. The government’s admission that ICE sometimes arrests individuals with final orders at USCIS offices “on a case-by-case basis” did not, without more, tie arrests to the provisional waiver program.

Importantly, the court did not decide whether the “bait-and-switch” conduct, if proven, would violate the APA, the Accardi doctrine, or substantive due process; it held only that plaintiffs had not proven that conduct on the existing record.

C. Impact

  • No implied stay of removal from § 212.7(e): Within the Fourth Circuit, litigants face a substantial barrier to arguing that initiation (or pendency) of the provisional waiver process itself legally prevents ICE from executing a final removal order. The decision emphasizes text (no lawful status/stay) and regulatory history (2013 preamble warning) over purpose-based inferences.
  • Procedural due process strategies narrowed by Lovo v. Miller: Claims reframed as a “right to apply” or “right to access the process” are weakened where the underlying adjudication is not legally required. This may redirect challenges away from entitlement theories and toward claims based on discriminatory targeting, retaliation, or arbitrary-and-capricious enforcement—if factually supported.
  • Jurisdictional path preserved for pure authority claims: The Fourth Circuit reinforces a meaningful opening for district-court review notwithstanding § 1252(g) when plaintiffs plausibly allege the government lacks legal authority to act in a particular circumstance. This deepens the circuit split with Tazu v. Attorney General and Camarena v. Director, Immigration and Customs Enforcement.
  • Litigation posture: discovery matters: The remand signals that challenges to allegedly pretextual or “lure” enforcement practices are unlikely to succeed on a no-discovery record. Parties pursuing “targeting” theories should expect to litigate evidentiary questions about policy, criteria, interagency coordination, and motive.

IV. Complex Concepts Simplified

  • “Provisional unlawful presence waiver” (Form I-601A): A discretionary waiver that, if approved, reduces the risk that a noncitizen will be barred for years after departing the U.S. to obtain an immigrant visa. It is “provisional” because final admissibility is determined later in consular processing.
  • Final order of removal: A completed removal order authorizing the government to remove the person. Unless some other legal protection applies, ICE may execute it.
  • “Jurisdiction-stripping” under 8 U.S.C. § 1252(g): A statute limiting when courts can hear claims related to removal. Under this opinion, it generally bars suits trying to control the government’s discretionary choices to prosecute removal, but it does not bar suits arguing the government lacks legal authority to act.
  • APA “arbitrary and capricious” review: Courts can set aside agency actions that are irrational or unexplained, including unexplained policy reversals. But a plaintiff must first show there was an actual policy to reverse.
  • Accardi doctrine: A due-process-linked principle that agencies must follow their own regulations, especially when those regulations are designed to constrain discretion or protect fairness in decision-making.
  • Procedural due process “entitlement”: Due process protects “rights” or “entitlements” that law requires the government to provide; it usually does not protect access to purely discretionary benefits, or to processes the agency is not obligated to conduct.

V. Conclusion

The Fourth Circuit’s central contributions are twofold. First, it reinforces that § 1252(g) does not automatically bar suits connected to removal when plaintiffs raise a pure legal challenge to the government’s authority—preserving district-court jurisdiction under the Fourth Circuit’s Bowrin v. U.S. Immigration and Naturalization Service framework. Second, it rejects the notion that the provisional waiver regulations in 8 C.F.R. § 212.7(e) create an implicit stay of removal, emphasizing that pending/approved waivers do not confer lawful status or authorized stay and that the 2013 Rule expressly warned removal could still occur.

At the same time, the court left open (without deciding) whether an enforcement strategy that affirmatively uses the waiver process as a “trap” could be unlawful under the APA, due process, or the United States ex rel. Accardi v. Shaughnessy principle—holding only that plaintiffs had not proven such a strategy on a no-discovery record. The case thus stands as both a substantive limitation on “implied stay” arguments and a procedural lesson: claims about targeted “bait-and-switch” enforcement will likely rise or fall on developed evidence.