Lovo v. Miller

107 F.4th 199

Bethney Nicole LOVO; Humberto Lovo, Plaintiffs - Appellants, v. Loren MILLER, Nebraska Service Center Director,U.S. Citizenship and Immigration Services; Ur Mendoza Jaddou,Director, U.S. Citizenship and Immigration Services, Defendants - Appellees.

No. 23-1571

United States Court of Appeals, Fourth Circuit

Argued: January 25, 2024

Decided: July 3, 2024

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Elizabeth K. Dillon, District Judge. (5:22-cv-00067-EKD)

ARGUED: Charles H. Seidell, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Appellants. James J. Wen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Benjamin Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia; Paul W. Hughes, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Appellants. Brian M. Boynton, Principal Deputy Assistant Attorney General, William C. Peachey, Director, William C. Silvis, Assistant Director, Cara E. Alsterberg, Senior Litigation Counsel, Eric C. Steinhart, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Christopher R. Kavanaugh, United States Attorney, Laura Taylor, Deputy United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellees.

Before DIAZ, Chief Judge, and NIEMEYER and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer joined. Chief Judge Diaz wrote an opinion dissenting in part and in the judgment.

WYNN, Circuit Judge:

Plaintiffs—an American citizen and her noncitizen husband—brought this suit against two U.S. Citizenship and Immigration Services ("USCIS") officials, claiming that USCIS has unreasonably delayed adjudicating a waiver application the husband submitted to USCIS two years ago.¹ Both before the district court and on appeal, Plaintiffs have asserted that the Administrative Procedure Act ("APA") and the Mandamus Act grant subject-matter jurisdiction over their claims.

The district court rejected that assertion and dismissed their claims, concluding that language in the Immigration and Nationality Act ("INA") that denies courts jurisdiction over suits based on agency "decisions or actions" also bars suits over agency inaction. That was error. But we nonetheless affirm because no statute or regulation requires USCIS to adjudicate the husband's waiver application, and the district court therefore lacked jurisdiction over Plaintiffs' claims.

I.

A.

Under the INA, noncitizens who are married to United States citizens can apply for lawful-permanent-resident status—colloquially known as receiving a "green card." See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2). Typically, that process requires that a noncitizen first be the beneficiary of an approved immigrant petition, such as a Form I-130. See generally 8 U.S.C. §§ 1153(a)(2), 1154 (describing petition process); 8 C.F.R. §§ 204.1(a)(1), 204.2(a) (regulations requiring Form I-130). If USCIS approves a Form I-130 or similar petition, the noncitizen may then take the next step in applying for adjustment of status.

Some noncitizens may apply for adjustment of status from within the United States. See 8 U.S.C. § 1255. But others—such as noncitizens who are unlawfully present in the United States—cannot. See id. (limiting eligibility to apply for adjustment of status); 8 C.F.R. § 245.1 (same). Instead, before this second group of noncitizens can obtain lawful-permanent-resident status, they must exit the country and apply for an immigrant visa. See 8 U.S.C. § 1202(a) ("Every alien applying for an immigrant visa and for alien registration shall make application therefor in such form and manner and at such place as shall be by regulations prescribed."); 22 C.F.R. § 42.62(a)-(b) (describing requirement to appear and have eligibility assessed by a consular officer); id. § 41.81(b)(1) (requiring that "[t]he consular officer is satisfied that the alien is qualified [as a nonimmigrant spouse] and the consular officer has received a petition approved by the [Department of Homeland Security] . . . that was filed by the U.S. citizen spouse of the alien in the United States").

But that requirement creates a conundrum. If a noncitizen has been unlawfully present in the United States for more than one year and leaves the country voluntarily—such as when they leave to apply for a visa—they are ineligible to receive a visa for ten years. See 8 U.S.C. § 1182(a)(9)(B)(i); 22 C.F.R. § 40.92(b). So, such a noncitizen, upon leaving the country to apply for a visa as part of the process for seeking lawful-permanent-resident status, will find themselves barred from the country for a decade.

That said, noncitizens are not always required to wait the full ten years. The Secretary of Homeland Security ("the Secretary")—acting through USCIS—may waive a noncitizen's unlawful presence and thereby do away with the ten-year ban. See 8 U.S.C. § 1182(a)(9)(B)(v).² But, until 2013, noncitizens had to leave the country to apply for a waiver and "remain abroad until USCIS adjudicate[d their] waiver" application and they reapplied for a visa. Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536, 565 (2013). In addition, even if an applicant satisfied the statutory eligibility criteria, USCIS retained discretion whether to ultimately approve or deny any unlawful presence waiver application. 8 U.S.C. § 1182(a)(9)(B)(v). Collectively, these requirements meant that a noncitizen who was married to a United States citizen, had spent nearly their entire life in the United States, and had built a career and family here had to face enormous uncertainty and the pain of potential long-term separation from their family members if they sought to take the steps legally required to obtain lawful-permanent-resident status.

The government apparently recognized that many noncitizens might rationally avoid those risks and opt not to seek lawful-permanent-resident status. So, in 2013, the Department of Homeland Security attempted to resolve the dilemma. It did so by promulgating regulations that permit some noncitizens to apply for a provisional unlawful presence waiver without leaving the United States. See 8 C.F.R. § 212.7(e); Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. at 536.

Provisional unlawful presence waiver applications ("Provisional Waiver Applications") are submitted to and adjudicated by USCIS using Form I-601A. See 8 C.F.R. § 212.7(e); Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. at 536. If USCIS grants the provisional waiver, it automatically becomes effective when the noncitizen leaves the United States and appears at a United States embassy or consulate, so long as the State Department determines that the noncitizen is otherwise eligible for an immigrant visa. 8 C.F.R. § 212.7(e)(12)(i). Once effective, the waiver permits the noncitizen to receive an immigrant visa without the mandatory waiting period. Id. § 212.7(e)(12)(ii). The noncitizen then gains lawful-permanent-resident status after they seek to reenter the United States and are admitted by a Department of Homeland Security officer.³ See 8 U.S.C. § 1255(a) (setting requirements for adjustment of status, including admissibility); id. § 1201(h) (stating that an erroneous grant of a visa does not waive inadmissibility); see also Consular Processing, https://www.uscis.gov/green-card/green-card-processes-and-procedures/consular-processing [https://perma.cc/XU5Z-3DYT] (last updated July 20, 2023) (discussing consular processing).

This new system alleviated many of the problems with the prior unlawful presence waiver application process. But it is not without its flaws. Only a few years ago, USCIS processed most Provisional Waiver Applications in less than four months. See Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year, Fiscal Year 2013 to 2018 (up to September 30, 2018), https://egov.uscis.gov/processing-times/historic-pt-2 [https://perma.cc/93F7-3BSX] (last visited Mar. 3, 2024) (noting a median processing time of 3.0 months in 2015).⁴ Now, however, it takes more than three-and-a-half years to resolve most applications. See Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year, Fiscal Year 2019 to 2024 (up to January 31, 2024), https://egov.uscis.gov/processing-times/historic-pt [https://perma.cc/C524-AS2N] (last visited Feb. 29, 2024) (noting a current median processing time of 42.4 months). That growth in wait times has motivated numerous recent lawsuits, including this one.

B.

Humberto Lovo ("Mr. Lovo") is a native and citizen of El Salvador who has lived in the United States continuously since he was six years old and is a Deferred Action for Childhood Arrivals ("DACA") recipient. Bethney Nicole Lovo is an American citizen. The two have been married for over a decade and have two children together.

DACA permits Mr. Lovo to receive forbearance of removal, work authorization, and various federal benefits. See generally Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 11, 140 S.Ct. 1891, 207 L.Ed.2d 353 (2020). But it does not grant permanent status. 8 C.F.R. § 236.23(a)(4) (requiring renewal every two years). And without permanent status, Mr. Lovo cannot advance his career through employment with the federal government, see 5 C.F.R. § 7.3 (limiting competitive service positions to individuals who are citizens or nationals of the United States), cannot freely travel outside the United States, see 8 C.F.R. § 236.22(b)(2) ("[U]nauthorized travel outside of the United States on or after August 15, 2012, will interrupt continuous residence[.]"), and must worry about whether future executive action will curtail his ability to live in the...