United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE
spouses of U.S. citizens who entered the United States
without inspection or who have been ordered removed from the
United States are eligible to apply for lawful status that
will permit them to reside permanently in the United States,
but only after leaving the United States to complete a
procedure called consular processing. This process often
results in long periods of separation, and many spouses have
thus chosen not to apply for lawful status. In 2016, in
recognition of this problem, United States Customs and
Immigration Services (“USCIS”) promulgated a rule
that allowed spouses with final orders of removal to apply
for a waiver of inadmissibility prior to leaving the United
States to begin the consular processing procedure.
Wanrong Lin and his American-citizen wife,
Plaintiff-Petitioner Hui Fang Dong (collectively,
“Petitioners”) applied for this waiver and, on
August 29, 2018, arrived at a USCIS office for a mandatory
interview to confirm that their relationship was bona fide.
After the interview concluded, Lin was escorted into a
separate room where he was arrested by Immigration and
Customs Enforcement (“ICE”) officers. Petitioners
filed a complaint and petition for habeas corpus, alleging
that his arrest, detention, and removal are in violation of
the Immigration and Nationality Act, the Due Process Clause,
and the Administrative Procedure Act. ECF No. 1. Petitioners
subsequently filed a Motion for a Preliminary Injunction. ECF
No. 15. A motions hearing was held on March 15, 2019. ECF No.
22. For the following reasons, the Motion for a Preliminary
Injunction is granted.
alien “who has been ordered removed” is
inadmissible for re-entry to the United States for five, ten,
or twenty years from the date of departure or removal,
depending on whether the alien is removed upon arrival, is
removed after arrival, has already been removed once before,
or has been convicted of an aggravated felony. 8 U.S.C. §
1182(a)(9)(A)(i-ii); 8 C.F.R. 212.2(a). An alien who remains
“inadmissible” is ineligible to receive a visa to
be admitted to the United States as a lawful permanent
resident. 8 U.S.C. § 1182(a). This inadmissibility may
be waived by the Secretary of Homeland Security's consent
to reapply for admission, 8 U.S.C. § 1182(a)(9)(A)(iii),
but the waiver application process can take well over a year,
78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Prior to 2013, an
alien who wanted to seek lawful permanent resident status and
apply for this waiver of admissibility was required to first
depart from the United States. Id.
2013, recognizing that undocumented immediate family members
of citizens who were living in the United States were
choosing to forego applying for visas rather than be
separated from their families for at least a year, and
potentially longer, the Department of Homeland Security
(“DHS”) promulgated a rule “to allow
certain immediate relatives of U.S. Citizens who are
physically present in the United States to request
provisional unlawful presence waivers prior to departing from
the United States for consular processing of their immigrant
visa applications.” Id. (“[M]any
immediate relatives who may qualify for an immigrant visa are
reluctant to proceed abroad to seek an immigrant
visa.”). The rule was expressly promulgated to
“significantly reduce the time that U.S. citizens are
separated from their immediate relatives, ”
id., and to “encourage immediate relatives who
are unlawfully present to initiate actions to obtain an
immigrant visa to become [lawful permanent residents],
” id. at 567. In 2016, DHS promulgated another
rule extending eligibility for these provisional unlawful
presence waivers to aliens with final removal orders. 81 Fed.
process requires first filling out a Form I-130, which
establishes a qualifying relationship to a U.S. citizen. 78
Fed. Reg. 536-01 at 547-48. After the Form I-130 is approved,
the individual must file a Form I-212, which requests a
waiver of inadmissibility and, pursuant to 8 C.F.R. §
212.2(j), can be conditionally approved while the individual
remains in the United States. 78 Fed. Reg. 536-01 at 547-48.
Once the I-212 is conditionally approved, the individual must
complete Form I-601A, an application for a provisional
unlawful presence waiver. Id.; see also 8
C.F.R. § 212.7(e)(4)(iv). Once the waiver is approved,
the individual departs from the United States to obtain the
immigrant visa, executing the prior removal order.
See 8 U.S.C. § 1101(g).
Dong became a naturalized U.S. Citizen on February 24, 2004.
ECF No. 1 ¶ 29. Petitioners have been married since May
2004. Id. ¶ 28. Petitioner Lin is a citizen of
the People's Republic of China and has had a removal
order from the United States since his request for asylum was
denied on March 10, 2008. Id. ¶¶ 28-29.
The Board of Immigration Appeals (“BIA”) affirmed
the denial in November 2009, and later denied a motion to
reopen. Id. ¶ 29; Lin v.
Holder, 771 F.3d 177, 181 (4th Cir. 2014). The Fourth
Circuit denied a petition for review in 2011. Lin v.
Holder, 452 Fed.Appx. 369 (4th Cir. 2011). Lin filed
another motion to reopen in December 2012, which was also
denied by the BIA, and the Fourth Circuit once more denied a
petition for review. Lin, 771 F.3d 177.
2016, Petitioners began the provisional waiver application
process by completing a Form I-130. Id. ¶ 31.
As part of this process, USCIS scheduled Petitioners for a
mandatory interview on August 29, 2018 to determine that they
were in a bona fide relationship. Id. Though the
USCIS interviewer approved the petition, ICE agents arrested
Mr. Lin at the conclusion of the interview and transported
him to Anne Arundel County Detention Center to be held for
deportation. Id. On November 19, 2018 at 9:35 AM
EST, Petitioners filed this complaint and petition for habeas
corpus, as well as a motion for a temporary restraining order
staying Lin's deportation. A flight carrying Mr. Lin
departed from Newark, N.J. for Shanghai, China at 9:54 AM
that same day. A hearing was held at 3:00 PM that afternoon.
ECF No. 4. That evening, before Lin's flight arrived in
Shanghai, the Court granted the motion for a temporary
restraining order and ordered ICE to return Lin to the United
States. ECF No. 6. Lin was returned to the United States on
December 13, 2018. ECF No. 11. The pending Motion for
Preliminary Injunction was filed on December 19, 2018. ECF
contest both the Court's jurisdiction to hear
Petitioners' challenge and the merits of the ...