377 F. Supp. 3d 556
D. Maryland2019Background
- Wanrong Lin, a Chinese national with a final removal order since 2008, married U.S. citizen Hui Fang Dong in 2004; they sought a provisional unlawful presence waiver to avoid prolonged family separation during consular processing.
- DHS rules (2013, expanded 2016) allow certain immediate relatives — including some with final removal orders — to pursue a provisional waiver in the U.S. before departing for consular processing, via sequential Forms I-130, I-212, and I-601A.
- Petitioners attended a mandatory USCIS I-130 interview on August 29, 2018; after the interview approved the petition, ICE arrested Lin in a separate room and began his removal.
- Petitioners filed habeas and APA claims and sought a preliminary injunction to prevent Lin’s removal and allow completion of the provisional waiver process; a TRO was granted and Lin was returned to the U.S.
- The government argued jurisdictional bars (8 U.S.C. §§ 1252(a)(5), (b)(9), (g)) and that Lin was ineligible because he had not completed I-212; Petitioners argued DHS’s arrest policy nullified the provisional-waiver process and violated the APA and Due Process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §§ 1252 preclude district-court review | Lin's claims challenge an agency policy undermining provisional waivers, not the removal order itself | §§ 1252(a)(5), (b)(9), (g) strip district courts of jurisdiction over matters "arising from" removal | Court: §1252 does not bar review here; challenge is to DHS policy/legal questions, not to the Attorney General's prosecutorial discretion or the removal order |
| Whether DHS's arrest-and-remove practice violated the APA (arbitrary & capricious) | DHS adopted a de facto policy using I-130 interviews to arrest applicants, thwarting the waiver process — agency acted arbitrarily by departing from its rule without reasoned explanation | Government contends Lin was ineligible because he had not yet filed/received I-212 approval, so arrest did not thwart a lawful procedure | Court: Likely success on APA claim; arrest at interview prevented prescribed sequential filing and thus was arbitrary and capricious |
| Irreparable harm from removal | Removal would separate family indefinitely; Lin lacks ties/resources in China; harm to spouse, children, and family business | Government emphasizes immigration enforcement interests | Court: Petitioners demonstrated irreparable harm (family separation, hardship) |
| Preliminary-injunction equities & public interest | Petitioners followed DHS rules; injunction preserves right to pursue waivers and protects family unity | DHS public-interest/enforcement considerations favor removal authority | Court: Balance favors Petitioners; public interest supports agency adherence to its own rules — injunction granted |
Key Cases Cited
- Jennings v. Rodriguez, 138 S. Ct. 830 (advising against overbroad readings of "arising from" language in §1252)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (an agency must provide reasoned explanation when changing policy)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (agency may not depart from prior policy without reasoned analysis)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (standard for preliminary injunction requires showing likelihood of success and irreparable harm)
- Reno v. Am. Arab Anti-Discrimination Comm., 525 U.S. 471 (§1252(g) addresses limitations on judicial review of prosecutorial discretion)
- Sierra Club v. Dep't of the Interior, 899 F.3d 260 (4th Cir.) (discussing arbitrary-and-capricious review and agency reasoning)
- United States v. Hovsepian, 359 F.3d 1144 (9th Cir.) (district court may decide purely legal questions that do not challenge prosecutorial discretion)