Alyse Sanchez v. Markwayne Mullin
Split Score
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Case Summary
Disposition
Vacated
In this immigration-class action, the Fourth Circuit held that non-citizens’ suit challenging DHS’s authority to remove them while they pursue provisional unlawful-presence waivers is not barred by 8 U.S.C. § 1252(g), but the court rejected the district court’s merits ruling that the regulations categorically protect applicants from removal. Concluding the record was insufficient to prove the government used the waiver program to target arrests, the panel vacated the summary judgment for plaintiffs and remanded for further proceedings.
Circuit Split Identified
Legal Issue
Whether 8 U.S.C. § 1252(g) strips federal courts of jurisdiction over suits by non-citizens who challenge the government’s legal authority to execute removal orders while they are pursuing provisional unlawful-presence waivers under 8 C.F.R. § 212.7(e).
Circuit Positions
§ 1252(g) is narrow and does not bar review of claims asserting DHS lacks legal authority (as opposed to discretion) to execute a removal order while a provisional-waiver application is pending.
§ 1252(g) bars review of challenges to the execution of removal orders even where the alien alleges DHS currently lacks legal authority because a provisional-waiver process is underway.
Conflict Summary
The circuits disagree on the scope of § 1252(g). The Fourth Circuit holds that § 1252(g) bars only challenges to discretionary enforcement decisions and therefore does not preclude review of claims alleging the Executive entirely lacks legal authority to remove an alien at a particular time. The Third and Eleventh Circuits interpret § 1252(g) more broadly to bar review of any challenge to the timing of removal, even when the alien claims the agency has no legal authority to act while a provisional-waiver process is pending.