Applicant can’t force AG to act on hardship waiver

Where a man sought a writ of mandamus requiring the Attorney General to act on his April 2022 application for a hardship waiver, but the statute prohibits judicial review of a hardship waiver determination, the suit was dismissed.

Background

Bethney Lovo is a United States citizen. She is married to Humberto Lovo. Mr. Lovo is a native and citizen of El Salvador. His parents brought him to the United States when he was six years old. He speaks fluent English and has never left the United States.

Mr. Lovo and his wife have a son and daughter and are homeowners. Lovo currently benefits from the Deferred Action for Childhood Arrivals program. He is eligible to work, but he cannot travel without prior authorization from the U.S. Citizenship and Immigration Services, or USCIS, which will only be approved for urgent humanitarian reasons.

Plaintiffs filed Form I-130 with USCIS in 2018. The agency approved the application in 2019. The approval of Form I-130 means that USCIS found that the plaintiffs have a bona fide marriage but does not provide any immigration benefits by itself.

Because Mr. Lovo’s parents brought him to the United States unlawfully, he must leave the United States to complete the immigrant visa process at a U.S. embassy abroad. However, because he has been unlawfully present in the United States for more than 365 days, Mr. Lovo will be barred from returning to the United States for 10 years unless he first obtains a waiver.

Plaintiffs therefore filed Form I-601A with USCIS on April 11, 2022. Form I-601A is used for applicants who entered the United States illegally but who have immediate family members (such as a parent or spouse) that are U.S. citizens or green card holders. USCIS has not requested any additional documents or information from the plaintiffs. Their application remains pending with USCIS.

Plaintiffs seek a writ of mandamus ordering USCIS to decide Humberto Lovo’s I-601A application within a reasonable time. Defendants move to dismiss, arguing that the court lacks subject matter jurisdiction and, in the alternative, that plaintiffs fail to state a claim on which relief can be granted.

Analysis

Defendants argue that judicial review is precluded by a provision in the Immigration and Nationality Act stating that the Attorney General has sole discretion to decide hardship waiver applications, and that “[n]o court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.” Courts have held or observed that this language prohibits judicial review of a hardship waiver determination.

Plaintiffs argue that 8 U.S.C. § 1182(a)(9)(B)(v) does not preclude judicial review because they are requesting an order directing defendants to process their I-601A application, not a particular outcome on the application. In other words, plaintiffs ask the court to distinguish between USCIS having the discretion to either grant or deny a waiver and a non-discretionary duty to decide the waiver application.

However, the failure or refusal to act on a waiver application, in and of itself, is “a decision or action … regarding a waiver ….” A recent Supreme Court decision involving another jurisdiction-stripping provision in the INA confirms that this is the correct interpretation. Thus, § 1182(a)(9)(B)(v) applies to USCIS’s decision or action to delay the processing of plaintiffs’ I-601A application because that decision or action relates to plaintiffs’ unlawful presence waiver. Accordingly, the court concludes that judicial review of defendants’ delay in processing plaintiffs’ I-601A application is precluded by § 1182(a)(9)(B)(v).

Defendant’s motion to dismiss granted.

Lovo v. Miller, Case No. 5:22-cv-00067, May 18, 2023. WDVA at Harrisonburg (Dillon). VLW 023-3-265. 7 pp.