Provisional Unlawful Presence Waivers Do Not Stay Removal; § 1252(g) Allows Pure “Authority” Challenges, but “Lure-to-Arrest” Claims Require Evidence

1. Introduction

Alyse Sanchez v. Markwayne Mullin (consolidated with Wanrong Lin; Hui Fang Dong v. Markwayne Mullin) presented a high-stakes conflict between family-unity–oriented immigration regulations and the government’s continued enforcement of final removal orders. The plaintiffs—seven U.S.-citizen/noncitizen married couples (plus class members in the Baltimore USCIS field-office area)—sought to pursue provisional unlawful presence waivers under 8 C.F.R. § 212.7(e), a pathway designed to reduce family separation by allowing certain waiver adjudications to occur while the noncitizen remains in the United States.

The litigation was triggered when some noncitizen spouses, appearing for USCIS Form I-130 interviews (the first step of what the parties called the “provisional waiver process”), were allegedly arrested by ICE at the USCIS facility; others avoided interviews out of fear of apprehension. The district court granted summary judgment for plaintiffs, declaring the government’s conduct unlawful and issuing broad relief. The Fourth Circuit, however, vacated and remanded, holding that the record and governing law did not support summary judgment.

The appeal centered on two core issues: (1) whether 8 U.S.C. § 1252(g) stripped the courts of jurisdiction; and (2) whether the provisional-waiver framework either categorically shields applicants from detention/removal while the process is pending, or instead prohibits the government from using the program as a tool to target them for enforcement.

2. Summary of the Opinion

  • Jurisdiction: The court held that § 1252(g) does not bar claims that raise a pure legal challenge to the government’s authority to execute removal orders at a particular time, as opposed to challenging the government’s discretionary decision to execute removal orders.
  • “Shield” theory rejected: The court held that the provisional waiver regulations do not create a stay of removal or otherwise bar ICE from arresting, detaining, or removing noncitizens during the provisional-waiver process. Regulatory text and the 2013 Rule’s preamble expressly negate any implied protection from removal.
  • Due process claim undermined by intervening precedent: Relying on Lovo v. Miller, the court held that USCIS has no legal obligation to adjudicate provisional-waiver applications, weakening any claimed entitlement to an interference-free “right to apply.”
  • “Sword” (lure/targeting) theory not resolved—insufficient record: The court held that, on the thin, no-discovery record, plaintiffs had not established as a matter of law that ICE arrested them because they sought provisional waivers (i.e., as “bait”), rather than merely using USCIS appointments as a convenient location to execute existing final orders.
  • Disposition: Vacated and remanded for further proceedings.

3. Analysis

3.1. Precedents Cited

Jurisdiction and § 1252(g): narrow scope tied to discretion

  • Reno v. American-Arab Anti-Discrimination Committee ("AADC"), 525 U.S. 471 (1999): The cornerstone for construing § 1252(g) narrowly. The Fourth Circuit follows AADC’s view that § 1252(g) targets three “discrete actions” and is aimed at protecting prosecutorial discretion. This framing allowed the court to distinguish between (i) challenges to discretionary enforcement choices and (ii) legal challenges to whether the government has authority to act at all at a particular time.
  • U.S. Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1 (2020): Reaffirmed that § 1252(g) has a “narrow” ambit and is not a general bar to deportation-related claims. The Fourth Circuit uses Regents to reinforce that broad readings of § 1252(g) are “implausible.”
  • Bowrin v. U.S. Immigration and Naturalization Service, 194 F.3d 483 (4th Cir. 1999) (per curiam): The key Fourth Circuit application of AADC. Bowrin’s “pure law” / “authority vs. discretion” distinction is decisive here: challenges to the extent of legal authority are not barred.
  • Mapoy v. Carroll, 185 F.3d 224 (4th Cir. 1999): The government argued Mapoy undercut Bowrin. The panel rejected that, reading Mapoy as consistent with AADC/Bowrin: Mapoy addresses whether habeas jurisdiction can circumvent § 1252(g) when it applies, not an expansion of what claims fall within § 1252(g).
  • Tazu v. Attorney General, 975 F.3d 292 (3d Cir. 2020): The Third Circuit held a similar “authority to remove now” claim barred because discretion over “whether” includes discretion over “when.” The Fourth Circuit declined to adopt that approach, reasoning it collapses the jurisdiction inquiry into the merits by assuming the government’s authority is intact.
  • Camarena v. Director, Immigration and Customs Enforcement, 988 F.3d 1268 (11th Cir. 2021): Noted as rejecting the “discretion-versus-authority distinction.” The Fourth Circuit’s contrary, circuit-specific approach remains governed by Bowrin.
  • Zadvydas v. Davis, 533 U.S. 678 (2001) and U.S. Immigr. & Naturalization Serv. v. St. Cyr, 533 U.S. 289 (2001), superseded by statute on other grounds as recognized in Nasrallah v. Barr, 590 U.S. 573 (2020): Cited for the broader interpretive tradition distinguishing review of legal authority from review of discretionary immigration judgments—supporting jurisdiction over “pure” legal questions.

Merits: regulations, administrative law, and due process

  • Lovo v. Miller, 107 F.4th 199 (4th Cir. 2024): An intervening and pivotal decision. Lovo held USCIS has no legal obligation to adjudicate provisional-waiver applications; whether to act is “committed to agency discretion by law.” The panel used Lovo to undercut the district court’s view that the regulations created a protected “right to apply” supporting procedural due process.
  • FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009): The district court relied on Fox for the proposition that agencies must supply reasons when changing policy. The Fourth Circuit held there was no “sub silentio” policy change because the regulations never promised protection from removal in the first place.
  • Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d 684 (4th Cir. 2019): Cited to emphasize that a “reasoned explanation” is required for changes in policy, but only if there is an actual change from a prior policy—not a misreading of existing rules.
  • Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002): Applied for the due process principle that protected interests require an entitlement; discretionary relief ordinarily does not create one. Combined with Lovo, it reinforces that neither approval nor even adjudication of a provisional waiver is an entitlement.
  • United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954): The district court invoked Accardi to suggest due process problems when the government fails to follow its own regulations. The Fourth Circuit did not decide the legality of the alleged “lure” conduct under Accardi; it instead held the record was too thin to justify summary judgment.
  • Outdoor Amusement Bus. Ass'n, Inc. v. U.S. Dep't of Homeland Sec., 983 F.3d 671 (4th Cir. 2020): Cited for the summary-judgment review standard (de novo), framing the appellate posture and reinforcing that plaintiffs must win under the governing legal standards on the existing record.

3.2. Legal Reasoning

(A) Jurisdiction: why § 1252(g) did not bar the suit

The court treated § 1252(g) as directed at interference with executive discretion in three particular acts: commencing proceedings, adjudicating cases, and executing removal orders. The plaintiffs’ principal framing—“the government lacks legal authority to execute removal orders during the provisional waiver process”—was characterized as a legal-authority claim, not a discretion claim. Under Reno v. American-Arab Anti-Discrimination Committee ("AADC") and Bowrin v. U.S. Immigration and Naturalization Service, that distinction keeps the courthouse doors open.

Importantly, the court rejected the government’s attempt to recast timing challenges (“remove now”) as necessarily discretionary (“remove when”). It reasoned that accepting that logic would effectively decide the merits (that the government’s authority is unchanged) inside the jurisdiction analysis.

(B) The “shield” theory: text and regulatory history defeat implied non-removal protection

On the merits, the court emphasized that the plaintiffs’ “shield” theory required reading an implied stay of removal into the provisional-waiver regime. But the regulations and their promulgation history point the other way:

  • 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.” The court treated this as incompatible with any claim that waiver pursuit itself suspends enforceability of removal orders.
  • The preamble to the Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives ("2013 Rule"), 78 Fed. Reg. 536 explicitly warns that filing does not “protect” a noncitizen from removal. The court treated the 2016 Rule’s failure to repeat that warning as non-significant because the operative regulatory text did not change; omission of duplicative commentary does not imply reversal of meaning.

With the “shield” premise rejected, the court also rejected the related APA “policy-change” theory: there was no enforceable non-enforcement policy to have been abandoned “sub silentio.”

(C) Procedural due process: Lovo removes any entitlement to an adjudicated “right to apply”

The district court had separated a discretionary “right to the waiver” from a due-process-protected “right to apply.” The Fourth Circuit held that intervening precedent—Lovo v. Miller—defeats this move because USCIS has no legal duty to adjudicate such applications at all. If adjudication is discretionary and unreviewable under the APA, it is difficult to characterize access to the process as an “entitlement” protected by procedural due process.

(D) The “sword” theory: plausible allegation, but summary judgment cannot rest on speculation

The court treated the plaintiffs’ alternative “bait-and-switch” allegation (targeting because of provisional-waiver pursuit) as fact-dependent. The central evidentiary gap: arrests occurred at I-130 interviews—a step that precedes Form I-601A filing. The record did not establish that ICE acted because the plaintiffs were pursuing provisional waivers, as opposed to acting because they had final orders and could be located at scheduled USCIS appointments.

The government’s sole admission—ICE arrests some final-order noncitizens at USCIS offices “on a case-by-case basis”—did not connect enforcement to the provisional-waiver program. Without discovery, the district court could not properly resolve motive, targeting, or programmatic “lure” practices as a matter of law.

3.3. Impact

Immediate doctrinal effects in the Fourth Circuit

  • No implied stay of removal from provisional-waiver pursuit: Litigants in the Fourth Circuit face a substantial obstacle if they argue that initiating the provisional-waiver process strips ICE of authority to arrest/detain/remove during pendency.
  • Due process claims narrowed by Lovo: Arguments premised on an entitlement to adjudication or to a protected “right to apply” for provisional waivers are significantly weakened.
  • § 1252(g) remains narrow in this circuit: The court reaffirmed a pathway for judicial review where the claim is framed as a challenge to the government’s legal authority, preserving a meaningful forum for certain “pure law” disputes despite jurisdiction-stripping provisions.

Practical litigation consequences

  • Discovery becomes central for “targeting/lure” theories: Plaintiffs pursuing the “sword” theory must develop evidence of motive or programmatic practice (communications, policies, coordination, data), not merely show arrests at or near USCIS events.
  • Relief design likely constrained on remand: Because the Fourth Circuit vacated without reaching the legality of the alleged “lure” conduct or the propriety of broad remedies, future injunctions will depend heavily on proof and on tailoring to proven unlawful conduct.
  • Inter-circuit tension persists: The court’s approach to § 1252(g) diverges from Tazu v. Attorney General (Third Circuit) and Camarena v. Director, Immigration and Customs Enforcement (Eleventh Circuit), leaving open the possibility of continued forum-dependent outcomes and potential Supreme Court interest if conflicts deepen.

4. Complex Concepts Simplified

Provisional unlawful presence waiver (Form I-601A)
A discretionary waiver that, if granted, reduces the risk that a noncitizen will be barred for years from reentering the U.S. after departing to finish immigrant-visa processing. It does not by itself grant legal status.
Final order of removal
A conclusive administrative determination that the person is removable; ICE generally has authority to execute it unless restrained by law (e.g., a stay) or policy discretion.
8 U.S.C. § 1252(g) (jurisdiction-stripping)
A statute limiting courts’ power to hear certain claims “arising from” the government’s decisions to start removal proceedings, decide removal cases, or execute removal orders. In this opinion, it does not bar claims that argue the government lacks legal authority to act at a particular time.
“Authority” vs. “discretion”
“Authority” asks whether the government has legal power to do something; “discretion” asks how the government chooses to use that power. The Fourth Circuit allowed review of authority questions even when discretion is insulated.
Accardi doctrine
A due process-related principle that the government generally must follow its own regulations and procedures; failure to do so can invalidate agency action. Here, the Fourth Circuit did not decide whether Accardi was violated; it held the evidence was insufficient for summary judgment.
Summary judgment
A judgment without trial granted only when there is no genuine dispute of material fact. The Fourth Circuit held material factual development was missing for the “lure/targeting” theory.

5. Conclusion

The Fourth Circuit’s decision establishes (or reinforces) three practical rules. First, participation in the 8 C.F.R. § 212.7(e) provisional-waiver framework does not itself create a legal stay shielding noncitizens with final orders from arrest, detention, or removal. Second, within the Fourth Circuit, § 1252(g) does not foreclose judicial review of pure legal challenges to the government’s authority, even when those challenges relate to the timing of removal execution. Third, allegations that the government used the provisional-waiver process as “bait” for enforcement are not resolved as a matter of law on a no-discovery record; such claims require evidence of targeting or motive.

The opinion’s broader significance lies in its dual message: courts will not infer immigration “protections” absent clear regulatory text, but they will also preserve judicial review for genuinely legal limits on executive power—while demanding factual rigor before condemning enforcement practices as unlawful “traps.”