Bethney Lovo v. Loren Miller, 107 F.4th 199

Plaintiffs are a U.S. citizen and her noncitizen husband, Humberto Lovo, who is a DACA recipient married to a U.S. citizen with an approved Form I-130.
Because Mr. Lovo is unlawfully present, he cannot adjust his status in the U.S. and would face a 10-year reentry bar if he departed to apply for a visa, unless he obtains a provisional unlawful presence waiver (Form I-601A) from USCIS.
Mr. Lovo filed the waiver application in April 2022 and, after lengthy inaction, sued under the APA and Mandamus Act, alleging unreasonable agency delay and seeking an order compelling USCIS to adjudicate the application.
The district court dismissed the case for lack of subject-matter jurisdiction, holding that the Immigration and Nationality Act (INA) barred judicial review of USCIS's delay as an unreviewable "action."
On appeal, the Fourth Circuit held the district court erred in its reading of the INA's jurisdictional bar but nonetheless lacked jurisdiction because neither statute nor regulation unequivocally required USCIS to adjudicate these waivers.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does INA § 1182(a)(9)(B)(v) bar judicial review of delay?	Delay/inaction is not a barred "action"/"decision."	"Action" includes inaction, so review is barred.	No, the bar applies only to affirmative actions/decisions, not delay.
Does the APA authorize review of delayed action?	APA allows courts to compel unreasonably delayed action.	Delays concerning waivers are unreviewable because the action is discretionary.	APA bars review where agency action is committed to discretion by law.
Are USCIS regulations mandatory as to adjudication?	Regulations and fee/payment indicate a clear duty to adjudicate.	Regs say "may adjudicate"; adjudication discretionary; no unequivocal mandate.	No clear mandate; permissive language means adjudication is discretionary.
Mandamus Act: Is there a clear duty to act?	Agency is bound by regulation to act on application.	No clear duty; action is at agency's discretion.	No clear duty; court lacks mandamus jurisdiction for this claim.

Lincoln v. Vigil, 508 U.S. 182 (APA presumes judicial review, except as committed to agency discretion)
Norton v. S. Utah Wilderness All., 542 U.S. 55 (mandamus/APA claims limited to enforcement of specific, unequivocal commands)
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (presumption in favor of judicial review can be overcome by clear congressional intent)
Gonzalez v. Cuccinelli, 985 F.3d 357 (APA/mandamus jurisdiction turns on whether agency action is mandatory or discretionary)
Patel v. Garland, 596 U.S. 328 (broad reading of "judgment" jurisdictional bar in INA, but does not extend to all forms of inaction)
I.N.S. v. St. Cyr, 533 U.S. 289 (habeas jurisdiction can reach discretionary immigration relief where standards/procedures exist)