Bethney Lovo v. Loren Miller

USCA4 Appeal: 23-1571      Doc: 34         Filed: 07/03/2024     Pg: 1 of 46




                                                PUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                                No. 23-1571


        BETHNEY NICOLE LOVO; HUMBERTO LOVO,

                     Plaintiffs - Appellants,

        v.

        LOREN MILLER, Nebraska Service Center Director, U.S. Citizenship and Immigration
        Services; UR MENDOZA JADDOU, Director, U.S. Citizenship and Immigration Services,

                     Defendants - Appellees.


        Appeal from the United States District Court for the Western District of Virginia, at
        Harrisonburg. Elizabeth K. Dillon, District Judge. (5:22−cv−00067−EKD)


        Argued: January 25, 2024                                            Decided: July 3, 2024


        Before DIAZ, Chief Judge, and NIEMEYER and WYNN, Circuit Judges.


        Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer
        joined. Chief Judge Diaz wrote an opinion dissenting in part and in the judgment.


        ARGUED: Charles H. Seidell, MCDERMOTT WILL & EMERY LLP, Washington,
        D.C., for Appellants. James J. Wen, UNITED STATES DEPARTMENT OF JUSTICE,
        Washington, D.C., for Appellees. ON BRIEF: Benjamin Osorio, MURRAY OSORIO
        PLLC, Fairfax, Virginia; Paul W. Hughes, MCDERMOTT WILL & EMERY LLP,
        Washington, D.C., for Appellants. Brian M. Boynton, Principal Deputy Assistant Attorney
        General, William C. Peachey, Director, William C. Silvis, Assistant Director, Cara E.
        Alsterberg, Senior Litigation Counsel, Eric C. Steinhart, Office of Immigration Litigation,
        Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
USCA4 Appeal: 23-1571    Doc: 34        Filed: 07/03/2024   Pg: 2 of 46




        Christopher R. Kavanaugh, United States Attorney, Laura Taylor, Deputy United States
        Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
        Appellees.




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        WYNN, Circuit Judge:

               Plaintiffs—an American citizen and her noncitizen husband—brought this suit

        against two U.S. Citizenship and Immigration Services (“USCIS”) officials, claiming that

        USCIS has unreasonably delayed adjudicating a waiver application the husband submitted

        to USCIS two years ago. 1 Both before the district court and on appeal, Plaintiffs have

        asserted that the Administrative Procedure Act (“APA”) and the Mandamus Act grant

        subject-matter jurisdiction over their claims.

               The district court rejected that assertion and dismissed their claims, concluding that

        language in the Immigration and Nationality Act (“INA”) that denies courts jurisdiction

        over suits based on agency “decisions or actions” also bars suits over agency inaction. That

        was error. But we nonetheless affirm because no statute or regulation requires USCIS to

        adjudicate the husband’s waiver application, and the district court therefore lacked

        jurisdiction over Plaintiffs’ claims.

                                                     I.

                                                     A.

               Under the INA, noncitizens who are married to United States citizens can apply for

        lawful-permanent-resident status—colloquially known as receiving a “green card.” See 

(b)(2)(A)(i), 1153(a)(2). Typically, that process requires that a noncitizen


               1
                In line with Supreme Court practice, “[t]his opinion uses the term ‘noncitizen’ as
        equivalent to the statutory term ‘alien.’” Barton v. Barr, 

, 226 n.2 (2020).

              Since Plaintiffs sued the two defendants in their official capacities, we refer to the
        defendants collectively as “USCIS.”


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        first be the beneficiary of an approved immigrant petition, such as a Form I-130. See

        generally 

(a)(2), 1154 (describing petition process); 

(a)(1), 204.2(a) (regulations requiring Form I-130). If USCIS approves a Form I-

        130 or similar petition, the noncitizen may then take the next step in applying for

        adjustment of status.

               Some noncitizens may apply for adjustment of status from within the United States.

        See 

. But others—such as noncitizens who are unlawfully present in the

        United States—cannot. See 

 (limiting eligibility to apply for adjustment of status); 

 (same). Instead, before this second group of noncitizens can obtain lawful-

        permanent-resident status, they must exit the country and apply for an immigrant visa. See

        

(a) (“Every alien applying for an immigrant visa and for alien registration

        shall make application therefor in such form and manner and at such place as shall be by

        regulations prescribed.”); 

(a)–(b) (describing requirement to appear and

        have eligibility assessed by a consular officer); 

 § 41.81(b)(1) (requiring that “[t]he

        consular officer is satisfied that the alien is qualified [as a nonimmigrant spouse] and the

        consular officer has received a petition approved by the [Department of Homeland

        Security] . . . that was filed by the U.S. citizen spouse of the alien in the United States”).

               But that requirement creates a conundrum. If a noncitizen has been unlawfully

        present in the United States for more than one year and leaves the country voluntarily—

        such as when they leave to apply for a visa—they are ineligible to receive a visa for ten

        years. See 

(a)(9)(B)(i); 

(b). So, such a noncitizen, upon




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        leaving the country to apply for a visa as part of the process for seeking lawful-permanent-

        resident status, will find themselves barred from the country for a decade.

               That said, noncitizens are not always required to wait the full ten years. The

        Secretary of Homeland Security (“the Secretary”)—acting through USCIS—may waive a

        noncitizen’s unlawful presence and thereby do away with the ten-year ban. See 

(a)(9)(B)(v). 2 But, until 2013, noncitizens had to leave the country to apply for a

        waiver and “remain abroad until USCIS adjudicate[d their] waiver” application and they

        reapplied for a visa. Provisional Unlawful Presence Waivers of Inadmissibility for Certain

        Immediate Relatives, 

, 565 (2013). In addition, even if an applicant

        satisfied the statutory eligibility criteria, USCIS retained discretion whether to ultimately

        approve or deny any unlawful presence waiver application. 

(a)(9)(B)(v).

        Collectively, these requirements meant that a noncitizen who was married to a United

        States citizen, had spent nearly their entire life in the United States, and had built a career

        and family here had to face enormous uncertainty and the pain of potential long-term

        separation from their family members if they sought to take the steps legally required to

        obtain lawful-permanent-resident status.

               The government apparently recognized that many noncitizens might rationally

        avoid those risks and opt not to seek lawful-permanent-resident status. So, in 2013, the


               2
                 As drafted, the statute refers to the Attorney General’s authority. But Congress has
        since assigned authority for enforcement of immigration laws to the Secretary of Homeland
        Security. Homeland Security Act of 2002, 

, 

,
        2178 (2002). And the Secretary has delegated to USCIS authority over the provisions
        relevant here. See 

(a); 

(e)(1).


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        Department of Homeland Security attempted to resolve the dilemma. It did so by

        promulgating regulations that permit some noncitizens to apply for a provisional unlawful

        presence waiver without leaving the United States. See 

(e); Provisional

        Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed.

        Reg. at 536.

               Provisional unlawful presence waiver applications (“Provisional Waiver

        Applications”) are submitted to and adjudicated by USCIS using Form I-601A. See 

(e); Provisional Unlawful Presence Waivers of Inadmissibility for Certain

        Immediate Relatives, 78 Fed. Reg. at 536. If USCIS grants the provisional waiver, it

        automatically becomes effective when the noncitizen leaves the United States and appears

        at a United States embassy or consulate, so long as the State Department determines that

        the noncitizen is otherwise eligible for an immigrant visa. 

(e)(12)(i). Once

        effective, the waiver permits the noncitizen to receive an immigrant visa without the

        mandatory waiting period. 

 § 212.7(e)(12)(ii). The noncitizen then gains lawful-

        permanent-resident status after they seek to reenter the United States and are admitted by

        a Department of Homeland Security officer. 3 See 

(a) (setting requirements

        for adjustment of status, including admissibility); 

 § 1201(h) (stating that an erroneous

        grant of a visa does not waive inadmissibility); see also Consular Processing,



               3
                While lawful-permanent-resident status accrues upon entry to the United States,
        the physical green card is subsequently provided after a processing fee is paid. See
        Implementation of Immigrant Visa DHS Domestic Processing Fee, 77 Fed. Reg. 74490–
        91 (2012).


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        https://www.uscis.gov/green-card/green-card-processes-and-procedures/consular-

        processing [https://perma.cc/XU5Z-3DYT] (last updated July 20, 2023) (discussing

        consular processing).

                 This new system alleviated many of the problems with the prior unlawful presence

        waiver application process. But it is not without its flaws. Only a few years ago, USCIS

        processed most Provisional Waiver Applications in less than four months. See Historical

        National Median Processing Time (in Months) for All USCIS Offices for Select Forms By

        Fiscal       Year,   Fiscal   Year   2013   to       2018   (up   to   September   30,   2018),

        https://egov.uscis.gov/processing-times/historic-pt-2 [https://perma.cc/93F7-3BSX] (last

        visited Mar. 3, 2024) (noting a median processing time of 3.0 months in 2015). 4 Now,

        however, it takes more than three-and-a-half years to resolve most applications. See

        Historical National Median Processing Time (in Months) for All USCIS Offices for Select

        Forms By Fiscal Year, Fiscal Year 2019 to 2024 (up to January 31, 2024),

        https://egov.uscis.gov/processing-times/historic-pt [https://perma.cc/C524-AS2N] (last

        visited Feb. 29, 2024) (noting a current median processing time of 42.4 months). That

        growth in wait times has motivated numerous recent lawsuits, including this one.

                                                         B.

                 Humberto Lovo (“Mr. Lovo”) is a native and citizen of El Salvador who has lived

        in the United States continuously since he was six years old and is a Deferred Action for




                “[W]e may take judicial notice of governmental reports.” United States v. Doe,
                 4

        

, 147 n.6 (4th Cir. 2020).


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        Childhood Arrivals (“DACA”) recipient. Bethney Nicole Lovo is an American citizen. The

        two have been married for over a decade and have two children together.

               DACA permits Mr. Lovo to receive forbearance of removal, work authorization,

        and various federal benefits. See generally Dep’t of Homeland Sec. v. Regents of the Univ.

        of Cal., 

, 11 (2020). But it does not grant permanent status. 

(a)(4) (requiring renewal every two years). And without permanent status, Mr.

        Lovo cannot advance his career through employment with the federal government, see 

 (limiting competitive service positions to individuals who are citizens or

        nationals of the United States), cannot freely travel outside the United States, see 

(b)(2) (“[U]nauthorized travel outside of the United States on or after August 15,

        2012, will interrupt continuous residence[.]”), and must worry about whether future

        executive action will curtail his ability to live in the United States.

               In 2018, Plaintiffs started the process of applying for lawful-permanent-resident

        status for Mr. Lovo by submitting to USCIS a Form I-130. USCIS approved that form,

        permitting Plaintiffs to proceed with the process of obtaining a visa for Mr. Lovo (the next

        step toward lawful-permanent-resident status).

               However, because he does not qualify as lawfully present, Mr. Lovo would be

        barred from returning to the United States for ten years if he left the country in order to

        apply for a visa. He therefore applied for a provisional unlawful presence waiver, and

        USCIS received his Provisional Waiver Application on April 11, 2022.

               After spending more than ten months waiting for a decision, Plaintiffs filed this

        lawsuit in March 2023. In their amended complaint, they brought one claim for relief


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        pursuant to the APA and another claim seeking a writ of mandamus, alleging that USCIS

        had unreasonably delayed in adjudicating the application and seeking an order requiring

        USCIS to do so in a timely fashion. While they sought to require USCIS to adjudicate Mr.

        Lovo’s application, Plaintiffs did not demand that it reach a specific outcome from the

        adjudication process. In other words, Plaintiffs sought only to receive an answer, one way

        or the other, from USCIS.

               USCIS moved pursuant to Rule 12(b)(1) to dismiss Plaintiffs’ Amended Complaint

        for lack of subject-matter jurisdiction and pursuant to Rule 12(b)(6) to dismiss for failure

        to state a claim.

               After briefing, the district court dismissed the case for lack of subject-matter

        jurisdiction, finding that 

(a)(9)(B)(v)’s bar on judicial review of a “decision

        or action” regarding an unlawful presence waiver applied to Plaintiffs’ claims, reasoning

        that USCIS’s inaction fell within the meaning of the term “action.” Lovo v. Miller, No.

        5:22-CV-00067, 

, at *3 (W.D. Va. May 18, 2023). Plaintiffs timely

        appealed.

                                                     II.

               When a district court dismisses a complaint pursuant to Rule 12(b)(1), we review

        its legal conclusions de novo. Polfliet v. Cuccinelli, 

 (4th Cir. 2020).

        Conducting that review here, we conclude that the district court applied an erroneous

        reading of the INA’s jurisdictional bar, but that it nonetheless lacked subject matter

        jurisdiction over the case because the decision whether to adjudicate Plaintiffs’ application

        was committed to USCIS’s discretion.


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               The APA establishes a “basic presumption of judicial review” of agency action. 5

        Lincoln v. Vigil, 

 (1993) (internal quotation marks and citation omitted).

        And, under the APA’s judicial-review provisions, “[a] person suffering legal wrong

        because of agency action, or adversely affected or aggrieved by agency action within the

        meaning of a relevant statute, is entitled to judicial review thereof.” 

; see

        also 

 § 704 (permitting review of “[a]gency action made reviewable by statute and final

        agency action for which there is no other adequate remedy in a court”). When a court

        reviews agency action under the APA, it “shall . . . compel agency action unlawfully

        withheld or unreasonably delayed.” Id. § 706(1).

               Courts may not, however, exercise jurisdiction over an APA claim if the claim falls

        under an exception to the APA’s judicial-review provisions. See Gonzalez v. Cuccinelli,

        

 (4th Cir. 2021) (affirming decision to dismiss a subset of claims for lack

        of subject-matter jurisdiction because claims did not satisfy the portion of the APA judicial-

        review provisions embodied in 

(a)(2)).

               The APA provides two such exceptions: one for when “statutes preclude judicial

        review” and the other for when “agency action is committed to agency discretion by law.”


               5
                 The APA itself “is not a jurisdiction-conferring statute.” Lee v. U.S. Citizenship &
        Immigr. Servs., 

 (4th Cir. 2010) (quoting Trudeau v. FTC, 

 (D.C. Cir. 2006)). But it operates in conjunction with 

 to provide
        courts with jurisdiction to review agency action. See 

 (conferring
        jurisdiction over federal questions); Califano v. Sanders, 

 (1977)
        (recognizing that 

 “confer[s] jurisdiction on federal courts to review
        agency action”); Bowen v. Massachusetts, 

, 891 n. 16 (1988) (“[I]t is common
        ground that if review is proper under the APA, the District Court ha[s] jurisdiction under
        

.”).


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(a)(1)–(2). USCIS argues that an explicit jurisdictional bar in the INA

        applies to this case and, regardless, that the decision whether to adjudicate Provisional

        Waiver Applications is committed to its discretion by law. So, we must decide “whether

        the INA precludes review of [Plaintiffs’] claim under the APA,” Lee, 

,

        through either an explicit jurisdictional bar or by committing the relevant agency action to

        USCIS’s discretion. If either exception applies, the district court correctly determined that

        it lacked subject-matter jurisdiction over Plaintiffs’ claims. While the first exception does

        not apply, the second exception does, and we therefore affirm.

                                                     A.

               We first assess the issue that the district court found dispositive: whether 

(a)(9)(B)(v) bars review of inaction or delay in adjudicating Provisional Waiver

        Applications. 6

               When determining whether a statute deprives us of jurisdiction, we apply the “well-

        settled and strong presumption [that] when a statutory provision is reasonably susceptible

        to divergent interpretation, we adopt the reading that accords with traditional

        understandings and basic principles: that executive determinations generally are subject to

        judicial review.” Guerrero-Lasprilla v. Barr, 

 (2020) (internal quotation

        marks and citations omitted). “The presumption can only be overcome by ‘clear and


               6
                The Illegal Immigration Reform and Immigration Responsibility Act of 1996
        amended the INA to add the jurisdiction-stripping provisions in 

(a)(9)(B)(v) and 

(a)(2)(B). See Illegal Immigration Reform and
        Immigration Responsibility Act of 1996, 

Div. C, 

-577,
        3009-607. Throughout, we refer to these provisions as part of the INA.


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        convincing evidence’ of congressional intent to preclude judicial review.” 

 (quoting

        Reno v. Catholic Soc. Servs., Inc., 

 (1993)).

               With that presumption in mind, we start with the relevant text. The portion of the

        INA that permits provisional unlawful presence waivers states that

               [t]he [Secretary] has sole discretion to waive [an applicant’s disqualifying
               unlawful presence] in the case of an immigrant who is the spouse . . . of a
               United States citizen . . . if it is established to the satisfaction of the
               [Secretary] that the refusal of admission to such immigrant alien would result
               in extreme hardship to the citizen or lawfully resident spouse or parent of
               such alien. No court shall have jurisdiction to review a decision or action by
               the [Secretary] regarding a waiver under this clause.

        

(a)(9)(B)(v) (emphasis added). 7

               The parties agree that § 1182(a)(9)(B)(v) bars review of USCIS’s ultimate decision

        on the waiver application. See Opening Br. at 39; Response Br. at 24. But they dispute

        whether the statute’s reference to “decision or action” also bars review of the agency’s

        inaction or delay.

               The INA does not define either “action” or “decision.” See 

. So, we

        must look elsewhere to determine whether the plain meaning of “decision or action” under

        the INA includes inaction or delay. Matson v. Alarcon, 

 (4th Cir. 2011)



               7
                 Another INA provision bars review of “any . . . decision or action of the Attorney
        General or the Secretary of Homeland Security the authority for which is specified under
        this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland
        Security[.]” 

(a)(2)(B)(ii). That provision effectively reiterates the
        requirements imposed by 

(a)(1)–(2). Accordingly, we do not separately
        analyze that provision. Cf. Gonzalez, 

 n.4 (recognizing that
        § 1252(a)(2)(B)(ii) may “reinforce” a holding based on a lack of jurisdiction pursuant to
        the APA’s judicial-review provisions but declining to analyze the provision separately).


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        (stating that “[w]hen the terms at issue are not defined in the statute, we apply their plain

        and ordinary meaning,” with careful consideration to “the context in which they are

        employed”).

               We begin that inquiry with the text itself. Nat’l Coal. for Students with Disabilities

        Educ. & Legal Def. Fund v. Allen, 

, 288–89 (4th Cir. 1998). In doing so, “[w]e

        customarily turn to dictionaries for help in determining whether a word in a statute has a

        plain or common meaning.” Id. at 289; accord Davidson v. United Auto Credit Corp., 

 (4th Cir. 2023) (“Searching for the plain meaning of a statute’s text often

        starts with reading dictionaries published close in time to when it was enacted.”).

               When the statute was enacted in 1996, Black’s Law Dictionary defined “decision”

        as “[a] determination arrived at after consideration of facts, and, in legal context, law.”

        Decision, Black’s Law Dictionary (6th ed. 1991). Webster’s Dictionary similarly defined

        “decision” as “the act or process of deciding” or “a determination arrived at after

        consideration.” Decision, Webster’s Third New International Dictionary (1993). And

        Black’s Law Dictionary defined “action” as “conduct; behavior; something done[,]”

        Action, Black’s Law Dictionary (6th ed. 1991), while Webster’s Dictionary variously

        defined it as “a deliberative or authorized proceeding,” “the process of doing,” and “a thing

        done,” Action, Webster’s Third New International Dictionary (1993). Those definitions

        each point to some affirmative conduct, not mere inaction or delay. And they align with

        the intuition that the definition of a word like “action” would not typically include its

        logical opposite. Cf. Murphy v. F.D.I.C., 

 (9th Cir. 1994) (refusing to

        read the term “assets” to include “liabilities” because the words “are antonyms, not


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        equivalents”). So, while dictionary definitions are not always dispositive, here, they

        strongly indicate that neither delay nor inaction falls within the ordinary definition of

        “decision or action.”

               Context could of course warrant departing from a term’s dictionary definition. But

        the context in which the phrase “decision or action” appears in the INA does not sway us

        to disturb the ordinary definition. USCIS primarily argues against using the ordinary

        definitions of “action” and “decision” by suggesting that “action” in § 1182(a)(9)(B)(v)

        has the same definition that “agency action” has under the APA. It is true that the APA

        defines “[a]gency action” as “the whole or a part of an agency rule, order, license, sanction,

        relief, or the equivalent or denial thereof, or failure to act.” 

(13) (emphasis

        added). If the INA incorporated the APA’s definition of “agency action” into its own

        definition of “action,” then § 1182(a)(9)(B)(v) would undoubtedly bar review of Plaintiffs’

        claims. But “[t]he term ‘[agency ]action’ as used in the APA is a term of art,” Village of

        Bald Head Island v. U.S. Army Corps of Eng’rs, 

 (4th Cir. 2013), and

        there is no indication that Congress incorporated that bespoke definition into the INA

        generally or into its jurisdictional bars specifically.

               In fact, Congress’s decision to explicitly include the “failure to act” within the

        APA’s definition of agency action suggests Congress did not believe that inaction fell

        within the ordinary definition of “action” as used in other statutes. And the APA’s

        legislative history suggests that this special definition was included to resolve the specific

        problem that review of agency indecision would not be covered by the statute if the

        ordinary definition of “action” applied. See S. Rep. No. 79-752, at 12 (1945) (stating that


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        the “agency action” definition was intended to “assure the complete coverage of every form

        of agency power, proceeding, action, or inaction”); accord H.R. Rep. No. 79-1980, at 21

        (1946) (similar).

                Because Congress crafted the APA’s defined terms for a specialized purpose, we

        have held that “when Congress [has] wanted to incorporate APA definitions into [other

        statutes], it d[oes] so expressly.” Lansdowne on the Potomac Homeowners Ass’n, Inc. v.

        OpenBand at Lansdowne, LLC, 

 (4th Cir. 2013); accord 

        (stating that the APA’s definitions apply “[f]or the purpose of this subchapter”); Sosa v.

        Alvarez-Machain, 

, 711 n.9 (2004) (“[W]hen the legislature uses certain

        language in one part of the statute and different language in another, the court assumes

        different meanings were intended.” (quoting 2A Norman Singer, Statutes and Statutory

        Construction § 46:06, at 194 (6th rev. ed. 2000))). Even though the INA’s jurisdictional

        bar at issue here was enacted after the APA, and the APA therefore provides a backdrop

        against which Congress enacted the jurisdictional bar, Congress elected neither to

        explicitly incorporate the APA’s definition, nor to use the term “agency action” in the

        jurisdictional bar. Therefore, Congress provided no indication that it intended to eschew

        the ordinary definition of “action” in favor of the specialty definition of “agency action”

        utilized in a different statute.

               Nor is the case law particularly helpful for our task. In both the context of this

        specific provision of the INA and other INA provisions, courts are deeply divided on




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        whether to adopt the dictionary definitions of “decision” and “action” 8 or the definition

        proposed by USCIS. 9 Given the divided nature of the answers to this question, we decline


               8
                 E.g., Bamba v. Jaddou, No. 1:23-CV-357, 

 (E.D. Va. Aug. 18,
        2023) (finding 

(a)(9)(B)(v) does not bar review of agency delay or
        indecision); Torres Guevera v. Miller, No. 1:23-CV-397-MSN-WEF, 

        (E.D. Va. Jan. 8, 2024) (same); Estrada v. Miller, No. 1:23-CV-402-MSN-LRV, 

 (E.D. Va. Jan. 8, 2024) (same); Escobar v. Miller, No. 1:23-CV-399-MSN-WEF,
        

 (E.D. Va. Jan. 8, 2024) (same); Granados v. United States, No. 23-CV-
        250-MEH, 

 (D. Colo. Aug. 23, 2023) (same); Lara-Esperanza v.
        Mayorkas, No. 23-CV-01415-NYW-MEH, 

 (D. Colo. Oct. 24, 2023)
        (same); Saavedra Estrada v. Mayorkas, No. 23-2110, 

 (E.D. Pa. Nov.
        21, 2023) (same); Segovia v. Garland, No. 1:23-CV-1478-AT, 

 (N.D.
        Ga. Mar. 21, 2024) (same); Novack v. Miller, No. 23-CV-10635-AK, 

        (D. Mass. Mar. 29, 2024) (same); Chen v. Mayorkas, No. 23-CV-1357, 

        (E.D.N.Y. June 5, 2024) (same); see also Iddir v. Immigr. & Naturalization Serv., 

, 496–98 (7th Cir. 2002) (holding that a failure to timely adjudicate is neither a
        “judgment” nor a “decision or action” within the meaning of 

(a)(2)(B));
        Liu v. Novak, 

, 5–7 (D.D.C. 2007) (collecting decisions on either side of
        the divide from cases not involving § 1182(a)(9)(B)(v) and concluding that the plain
        meaning of “action” does not include “inaction”).
               9
                 E.g., Soni v. Jaddou, 

 (7th Cir. 2024) (reaching the same conclusion
        as the district court here); Lopez Real v. U.S. Citizenship & Immigr. Servs., No. 23 C 14684,
        

 (N.D. Ill. Feb. 9, 2024) (same); Carrillo v. U.S. Citizenship & Immigr.
        Servs., No. 23-CV-06298, 

 (N.D. Ill. May 28, 2024) (same); Singh v.
        Mayorkas, No. 3:23-CV-00527, 

 (M.D. Tenn. Feb. 5, 2024) (same),
        appeal docketed, No. 24-5260 (6th Cir. Mar. 21, 2024); Beltran v. Miller, No.
        4:23CV3053, 

 (D. Neb. Oct. 20, 2023) (same); Reyes Silva v. Miller,
        No. 4:23CV3038, 

 (D. Neb. Oct. 26, 2023) (same); Grajales Cortes v.
        Miller, No. 4:23CV3073, 

 (D. Neb. Oct. 20, 2023) (same); Solorio v.
        Miller, No. 4:23CV3071, 

 (D. Neb. Nov. 1, 2023) (same); Ybarra v.
        Miller, No. 4:23CV3082, 

 (D. Neb. Nov. 7, 2023) (same), appeal
        docketed, No. 23-3520 (8th Cir. Nov. 15, 2023); Macias v. Miller, No. 4:23CV3078, 

 (D. Neb. Nov. 13, 2023) (same); Cisneros v. Miller, No. 4:23CV3074, 

 (D. Neb. Nov. 14, 2023) (same); Hernandez v. Miller, No. 4:23CV3084,
        

 (D. Neb. Nov. 15, 2023) (same); Sanchez v. U.S. Citizenship & Immigr.
        Servs., No. 4:23CV3102, 

 (D. Neb. Nov. 16, 2023) (same); Mercado v.
        Miller, No. 2:22-cv-02182-JAD-EJY, 

 (D. Nev. July 7, 2023) (same),
        appeal docketed, No. 23-16007 (9th Cir. July 17, 2023); Echeverri v. U.S. Citizenship &


                                                     16
USCA4 Appeal: 23-1571      Doc: 34          Filed: 07/03/2024     Pg: 17 of 46




        to stray from the usual meaning of “action” merely because some courts have been

        persuaded by USCIS’s interpretation.

               Nor do we find persuasive USCIS’s argument that the Supreme Court’s decision in

        Patel v. Garland requires us to abandon the ordinary definition of “action.” Mirroring the

        reasoning on which the district court based its decision, USCIS argues that “action”

        includes “inaction” because the Supreme Court’s decision in Patel v. Garland requires a




        Immigr. Servs., No. 23-CV-21711-RAR, 

 (S.D. Fla. Aug. 21, 2023)
        (same); Mafundu v. Mayorkas, No. 23-CV-60611-RAR, 

 (S.D. Fla. Aug.
        8, 2023) (same); Mashiach v. Mayorkas, No. 23-60692-CIV, 

 (S.D. Fla.
        Nov. 27, 2023) (same); Tetelain v. Jaddou, No. 23-60742-CIV, 

 (S.D.
        Fla. Nov. 27, 2023) (same); Morales Sanchez v. Garland, No. 23-60701-CIV, 

 (S.D. Fla. Jan. 12, 2024) (same); De Lima v. United States, No. 23-60793-CIV,
        

 (S.D. Fla. Jan. 12, 2024) (same); Vijay v. Garland, No. 2:23-CV-157-
        SPC-KCD, 

 (M.D. Fla. Sept. 18, 2023) (same); Calisto v. Sec’y
        Homeland Sec., No. 6:23-CV-422-WWB-DCI, 

 (M.D. Fla. Jan. 22, 2024)
        (same); Singh v. Jaddou, No. 1:23-CV-00254, 

 (M.D. Pa. Dec. 1, 2023)
        (same); Juarez v. Mayorkas, No. CV 23-00463-BAJ-SDJ, 

 (M.D. La.
        Feb. 8, 2024) (same), appeal docketed, No. 24-30188 (5th Cir. Mar. 27, 2024); Candido v.
        Miller, No. 23-CV-11196-DJC, 

 (D. Mass. Feb. 21, 2024) (same); Arciba
        v. Garland, No. 4:23-CV-00611-P, 

 (N.D. Tex. Mar. 28, 2024) (same);
        Muniz v. Miller, No. 23-CV-11075-DJC, 

 (D. Mass. Feb. 14, 2024)
        (applying the same interpretation of § 1182(a)(9)(B)(v) as the district court here but stating
        in dicta that USCIS has a nondiscretionary duty to adjudicate all Provisional Waiver
        Applications); Soto v. Miller, No. 1:23-CV-03016-EFS, 

 (E.D. Wash.
        Dec. 21, 2023) (same); Valencia Gonzalez v. Moran, No. 1:23-CV-3166-EFS, 

 (E.D. Wash. Mar. 19, 2024) (same); see also Cheejati v. Blinken, 

 (5th Cir. 2024) (holding that “the pace at which” USCIS adjudicates applications
        qualifies as an “action” within the meaning of 

(a)(2)(B)(ii)).

               We recognize that the only other circuit to address this issue with respect to
        § 1182(a)(9)(B)(v) interpreted the provision to bar judicial review. See Soni, 

. However, the Seventh Circuit’s decision in that case failed to address any of the
        reasoning on which we rely, and instead summarily concluded that “[n]o review means no
        review[.]” 

 Needless to say, we find that paper-thin rationale unpersuasive.


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        broad reading of jurisdictional bars in the INA. See Patel v. Garland, 

 (2022).

        But that reading of Patel is badly mistaken.

               In Patel, the petitioner challenged an Immigration Judge’s denial of his application

        for adjustment of status, primarily arguing that the Immigration Judge erred in assessing

        his credibility as a witness. 

 at 337–38. The relevant jurisdictional limitation in that case,

        

(a)(2)(B)(i), bars review of questions of fact that relate to “any judgment

        regarding the granting of relief,” 10 so the petitioner argued that the credibility assessment

        was not a “judgment” for the purposes of the statute. The Supreme Court disagreed, holding

        that the term “any judgment regarding the granting of relief” demands a broad

        interpretation that includes not only a final yes-or-no decision on an application for

        adjustment of status, but also other determinations, such as ones made regarding credibility,

        that support an Immigration Judge’s ultimate decision. Patel, 

; see 

 at

        338–41.

               The district court here stated—and USCIS reiterates—that Patel instructs a broad

        reading of § 1182(a)(9)(B)(v)’s language such that “action” encompasses inaction or delay.

        See Lovo, 

, at *3. In doing so, both USCIS and the district court read

        more into Patel than the decision can bear. The effect of the Supreme Court’s broad

        construction was to decide that the “judgment” referred to in § 1252(a)(2)(B)(i) includes

        “any authoritative decision” rather than only a “discretionary” or “last-in-time judgment.”


               10
                 That jurisdictional bar only applies to decisions under 

(h),
        1182(i), 1229b, 1229c, and 1255, and therefore is not relevant here. See 

(a)(2)(B)(i).


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        Patel, 596 U.S. at 337–38. Devoid of context, each of the definitions between which the

        Supreme Court chose at least plausibly fit the definition of a “judgment.” Here, by contrast,

        USCIS and the district court would have us apply a definition of “action” that encompasses

        its logical opposite even though none of the ordinary definitions discussed above support

        that meaning. Because Patel neither applied a reading so broad that it flipped the meaning

        of a word on its head nor instructed us to do so, we decline to adopt such a strange

        interpretation.

               Finally, USCIS argues that behind its inaction and delay are hidden policy choices

        about how to allocate resources, so what seems to outsiders like agency inaction really

        constitutes some affirmative action. But that ignores that § 1182(a)(9)(B)(v) refers to “a

        decision or action . . . regarding a waiver,” not high-level policy choices regarding all

        waivers. 

(a)(9)(B)(v) (emphasis added). Since any policy decision USCIS

        makes—whether about Provisional Waiver Applications or not—could have some

        downstream impact on the resources available to review Provisional Waiver Applications,

        the logic of USCIS’s reading could bar review of agency actions or inactions far afield

        from Provisional Waiver Applications. In other words, under USCIS’s theory, 

(a)(9)(B)(v) could operate to deprive courts of jurisdiction to review almost any

        USCIS action. In light of the actual text of § 1182(a)(9)(B)(v), which precludes only

        judicial review of “a decision or action . . . regarding a waiver,” we are confident that

        Congress did not intend that result.

               In sum, because the ordinary definition of “decision or action” does not include

        inaction or delay, and because Congress provided no indication that it intended a special


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        definition to apply in § 1182(a)(9)(B)(v), the district court erred by finding that provision

        bars review of Plaintiffs’ claim.

                                                     B.

               However, even without an explicit jurisdictional bar, the APA does not permit

        judicial review of a challenge to “agency action [that] is committed to agency discretion

        by law.” 

(a)(2). A claim for agency action unlawfully withheld or

        unreasonably delayed “can proceed only where a plaintiff asserts that an agency failed to

        take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All.,

        

 (2004). “[W]here an agency is not required to do something, we cannot

        compel the agency to act—let alone to act faster.” Gonzalez, 

 (emphasis

        omitted). We therefore must decide whether the INA or its enacting regulations require

        USCIS to adjudicate Mr. Lovo’s Provisional Waiver Application. Because we conclude

        neither do, we affirm.

               While we typically apply a presumption in favor of judicial review when we assess

        a specific jurisdiction-stripping provision, an analogous presumption does not apply when

        we determine whether an action is committed to agency discretion by law. Rather, we will

        only hold that an agency is mandated to act—and therefore that its failure to act is subject

        to judicial review—if there is a “clear indication of binding commitment” imposed on the

        agency. Norton, 

. To hold otherwise would transform a presumption in favor

        of judicial review into a presumption in favor of mandating agency action. So, “[j]ust like

        the traditional mandamus remedy from which [

(1)] is derived, claims to

        compel agency action are limited to enforcement of a specific, unequivocal command, over


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USCA4 Appeal: 23-1571       Doc: 34         Filed: 07/03/2024      Pg: 21 of 46




        which an official has no discretion.” City of New York v. U.S. Dep’t of Def., 

 (4th Cir. 2019) (internal quotation marks omitted and emphasis added).

               To assess whether an agency is bound to act, we first look to the text of the relevant

        statutes and regulations. Our decision in Gonzalez v. Cuccinelli provides useful guidance

        for when language in those sources is sufficiently clear for us to conclude that an agency

        is mandated to act. See Gonzalez, 

. In Gonzalez, we were asked to decide

        whether federal courts had subject-matter jurisdiction to review USCIS’s delays

        adjudicating 1) applications for work authorization pending U-Visa approval, and 2) U-

        Visa petitions. The statute addressing work authorization did not mandate adjudication, see

        

(p)(6), and the relevant regulation stated that “USCIS, in its discretion,

        may authorize employment for . . . petitioners and qualifying family members,” 

(d)(2) (emphasis added). So, we held that the language in neither the statute nor

        the regulation was sufficient to mandate USCIS to act regarding work authorization, and

        its failure to act was therefore unreviewable. Gonzalez, 985 F.3d at 366–71.

               In contrast, the relevant regulations for the U-Visa petitions provided that “[i]f

        USCIS determines that the petitioner has met the requirements for U-1 nonimmigrant

        status, USCIS will approve [the U-Visa application],” 

(c)(5)(i) (emphasis

        added)), and that “[a]ll eligible petitioners who, due solely to [a statutory cap on the number

        of U-Visas], are not granted U-1 nonimmigrant status must be placed on a waiting list,” 

        § 214.14(d)(2) (emphasis added)). Those uses of mandatory language provided no room

        for agency discretion and therefore established that USCIS “committed itself by regulation

        to” adjudicate the petitions and to “place eligible applicants on the [U-Visa] waiting list.”


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USCA4 Appeal: 23-1571      Doc: 34          Filed: 07/03/2024     Pg: 22 of 46




        Gonzalez, 

 n.10. Since USCIS had so bound itself, its failure to timely

        adjudicate U-Visa petitions was reviewable. 

               As illustrated by our conclusion in Gonzalez, the presence of “unmistakably

        mandatory” language, such as the word “will,” can provide sufficient evidence of the

        unequivocal command required for us to hold that an agency is compelled to act. Ewell v.

        Murray, 

 (4th Cir. 1993) (quoting Hewitt v. Helms, 

        (1983)). Likewise, explicit references to an agency’s discretion, or even to discretionary

        language, such as the term “may,” are “generally construed as permissive rather than

        mandatory[.]” United Hosp. Ctr., Inc. v. Richardson, 

, 1453 (4th Cir. 1985).

        However, the impact of seemingly mandatory or permissive language depends heavily on

        the context in which it appears. See id. (stating that “the construction of” mandatory or

        permissive language “is reached in every case ‘on the context of the statute [or regulation],

        and on whether it is fairly to be presumed that it was the intention of the legislature [or

        agency] to confer a discretionary power or to impose an imperative duty’” (alterations in

        original) (quoting Thompson v. Clifford, 

 (D.C. Cir. 1968))); Norton, 

 (holding that references in a conservation plan to what an agency “will” do were

        not mandatory without additional indicia of a binding commitment).

               In this case, the parties agree that the statutory provisions of the INA do not require

        USCIS to adjudicate Provisional Waiver Applications. E.g., Opening Br. at 31 (“USCIS’s

        obligation to adjudicate waiver requests originates in regulation rather than statute.”);

        Response Br. at 16 (“The statute does not require adjudication at all.”); accord 28 U.S.C.




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USCA4 Appeal: 23-1571       Doc: 34         Filed: 07/03/2024      Pg: 23 of 46




        § 1182(a)(9)(B)(v) (referring to USCIS’s “sole discretion”). But they disagree regarding

        whether USCIS’s regulations impose such a requirement.

               A regulation can mandate action even if a statute does not. See Gonzalez, 

 n.10 (recognizing that an agency can be bound to act by its regulations); Norton,

        

 (recognizing that “[t]he limitation to required agency action . . . includes, of

        course, agency regulations that have the force of law” (emphasis omitted)); Fort Stewart

        Schs. v. Fed. Lab. Rels. Auth., 

 (1990) (“It is a familiar rule of

        administrative law that an agency must abide by its own regulations.”). So, we must

        evaluate whether the regulations implementing § 1182(a)(9)(B)(v) mandate USCIS to

        adjudicate Provisional Waiver Applications. 11

               The Secretary has enacted regulations that govern provisional unlawful presence

        waivers, see 

(e), three of which are relevant for determining whether

        USCIS is required to adjudicate Provisional Waiver Applications. First, 

(e)(1) delegates to USCIS “exclusive jurisdiction to grant a provisional unlawful

        presence waiver[.]” 

(e)(1). Next, § 212.7(e)(2)(i) provides that “USCIS

        may adjudicate applications for a provisional unlawful presence waiver of inadmissibility


               11
                  The dissenting opinion cites Immigr. & Naturalization Serv. v. St. Cyr, 

 (2001), to suggest that the mere fact that USCIS enacted regulations permitting
        Provisional Waiver Applications means that it bound itself to adjudicate the applications.
        Not so. For one, St. Cyr was based on the “uniqueness of habeas” review and therefore “is
        inapplicable here.” Gonzalez, 

. Further, Norton makes clear that we must
        look to whether a statute or its implementing regulations require agency action—not
        merely whether implementing regulations exist. See Norton, 

; Gonzalez, 

 (“Despite the presence of statutes and regulations mandating agency action and
        a land use plan discussing future actions, the Court in Norton found that the agency retained
        broad discretion to act.”).

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USCA4 Appeal: 23-1571      Doc: 34         Filed: 07/03/2024      Pg: 24 of 46




        based on [§ 1182(a)(9)(B)(v)] filed by eligible aliens described in paragraph (e)(3) of this

        section.” Id. § 212.7(e)(2)(i) (emphasis added). Finally—and most important for Plaintiffs’

        argument—§ 212.7(e)(8) provides that “USCIS will adjudicate a provisional unlawful

        presence waiver application in accordance with this paragraph and [§ 1182(a)(9)(B)(v)].”

        Id. § 212.7(e)(8) (emphasis added).

               Plaintiffs argue that § 212.7(e)(8) imposes on USCIS a “nondiscretionary duty to

        adjudicate” Provisional Waiver Applications. Opening Br. at 31. We disagree.

               There is only one way to read these regulations as part of a harmonious scheme. As

        explained below, that reading requires us to conclude that 1) § 212.7(e)(1) grants USCIS

        jurisdiction to adjudicate Provisional Waiver Applications; 2) § 212.7(e)(2)(i) provides

        that whether to adjudicate the Provisional Waiver Applications at all is left to USCIS’s

        discretion; and 3) § 212.7(e)(8) requires that when, in its discretion, USCIS decides to

        adjudicate claims, it must do so in accordance with the standards and procedures laid out

        in the statute and regulations. Plaintiffs’ alternative interpretation of § 212.7(e)(8) would

        have us ignore important regulatory text and render at least one of the other relevant

        provisions surplusage.

               We recognize that if read in isolation, the use of the word “will” in § 212.7(e)(8)

        could be understood to provide the requisite unequivocal command to adjudicate. But while

        the provision starts by stating that “USCIS will adjudicate a provisional unlawful presence

        waiver application,” it does not end there. Instead, it continues on to say that “USCIS will

        adjudicate a provisional unlawful presence waiver application in accordance with this

        paragraph and [§ 1182(a)(9)(B)(v)].” 

(e)(8) (emphasis added). And the


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USCA4 Appeal: 23-1571      Doc: 34         Filed: 07/03/2024      Pg: 25 of 46




        conclusion of that sentence suggests that the provision merely instructs that any

        adjudication must conform with other statutory and regulatory requirements, such as the

        requirement later in § 212.7(e)(8) that “if USCIS determines in its discretion that a waiver

        is not warranted, USCIS will deny the waiver application” and the requirement in

        § 212.7(e)(7) that sets out the standard of proof for adjudicating Provisional Waiver

        Applications. 

(e)(7)–(8). So, § 212.7(e)(8) does not unequivocally

        require USCIS to adjudicate the Provisional Waiver Applications, even before we consider

        whether Plaintiffs’ proposed reading conflicts with other provisions of the regulation.

               Moreover, “we must read the regulation’s words—just like a statute’s—‘in their

        context and with a view to their place in the overall [regulatory] scheme.’” Mohamed v.

        Bank of Am. N.A., 

 (4th Cir. 2024) (alteration in original) (quoting Lynch

        v. Jackson, 

 (4th Cir. 2017)). As an extension of that principle, we

        endeavor to avoid interpretations of one provision that would render other provisions

        surplusage. See United States v. Briley, 

 (4th Cir. 2014). Reading

        § 212.7(e) as a whole, we conclude there is no way to provide § 212.7(e)(8) the broader

        reading that Plaintiffs advance without either unnecessarily rendering § 212.7(e)(1) or

        § 212.7(e)(2)(i) surplusage or manifesting a direct conflict between the provisions.

               Specifically, the statement in § 212.7(e)(2)(i) that USCIS “may adjudicate”

        Provisional Waiver Applications offers a clear indication that USCIS is not mandated to

        do so. 

(e)(2)(i) (emphasis added). Under Plaintiffs’ proposed reading,

        therefore, § 212.7(e)(2)(i) would directly conflict with § 212.7(e)(8).




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USCA4 Appeal: 23-1571      Doc: 34         Filed: 07/03/2024      Pg: 26 of 46




               Plaintiffs have failed to offer an alternative interpretation of § 212.7(e)(2)(i) that

        could convincingly reconcile all the relevant provisions. Nor can we imagine such an

        interpretation. For example, it might be possible to read § 212.7(e)(2)(i) as a grant of

        jurisdiction to adjudicate and § 212.7(e)(8) as a subsequent mandate to utilize that

        jurisdiction. But because the Secretary already provided USCIS with jurisdiction through

        § 212.7(e)(1), that interpretation would only shift the problem by rendering a different

        provision surplusage. So, interpreting § 212.7(e)(8) to mandate USCIS to adjudicate

        Provisional Waiver Applications would require us to read out of the regulation either

        § 212.7(e)(1) or § 212.7(e)(2)(i). Because there is a straightforward, commonsensical way

        to read all three provisions harmoniously, and no textual reason not to do so, we must

        follow that reading.

               The dissenting opinion points to a fourth regulation, 8 C.F.R § 212.7(e)(9), to argue

        that USCIS bound itself to adjudicate Provisional Waiver Applications. But that argument

        fails for the same reasons as does Plaintiffs’ argument about § 212.7(e)(8). Section

        212.7(e)(9) provides that “USCIS will notify” a noncitizen that has submitted a Provisional

        Waiver Application “of the decision in accordance with 8 CFR 103.2(b)(19).” 

(e)(9). The dissenting opinion is correct to recognize that language mandating

        notification of an agency’s ultimate decision can create a requirement to adjudicate. See

        Dis. Op. at 41. But it does not do so where, as here, the agency enacts regulations that

        preserve its discretion over whether to adjudicate. Absent the permissive language in

        § 212.7(e)(2), the mandatory language in § 212.7(e)(9)—like the mandatory language in

        § 212.7(e)(8)—might well convince us that USCIS bound itself to adjudicate Provisional


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USCA4 Appeal: 23-1571      Doc: 34          Filed: 07/03/2024     Pg: 27 of 46




        Waiver Applications. But the permissive language in § 212.7(e)(2) colors our

        interpretation of the later regulations. Just as we can read § 212.7(e)(2) in harmony with

        § 212.7(e)(8), we can also read it in harmony with § 212.7(e)(9) by understanding the

        notification requirement as kicking in only once USCIS decides to adjudicate a Provisional

        Waiver Application. And because that commonsensical approach again accords with the

        text and avoids reading out part of the regulations, we must do so.

               Plaintiffs suggest that we should also consider the regulations “[a]t most . . .

        ambiguous” and look to other context to determine whether USCIS must adjudicate Mr.

        Lovo’s Provisional Waiver Application. Reply Br. at 21–22. But we are not convinced.

               To be sure, some contextual clues support Plaintiffs’ position. First, USCIS

        regulations require applicants to pay a fee of $630 to “fil[e] an application for provisional

        unlawful presence waiver.” 

(a)(25) (setting fee); 

(e)(5)(i)

        (requiring payment). When the Department of Homeland Security enacted a rule that

        increased the required fee, it stated that it was “adjust[ing] the fee for Form I-601A to

        reflect the estimated full cost of adjudication.” 12 U.S. Citizenship and Immigration Services


               12
                  The rule change sought to increase the fee from $630 to $960. USIC Fee Schedule
        and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. at
        46,791. But that change did not go into effect because of a preliminary injunction. See Nw.
        Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs., 

, 83
        (D.D.C. 2020). An updated rule, effective April 1, 2024, sets the fee at $795. See U.S.
        Citizenship and Immigration Services Fee Schedule and Changes to Certain Other
        Immigration Benefit Request Requirements, 

, 6324, 6388 (2024). In
        enacting the updated rule, USCIS stated that it had changed a series of fees “to fully recover
        costs and maintain adequate service.” 

. However, not all fees are set to recover
        full cost of their related services, see, e.g., 

 (“[T]he fees for Forms G-1041 and
        G-1041A will not recover their full cost, but other USCIS fees will offset their cost.”), and


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        Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,

        

, 46,850 (2020). And the instructions for the application itself indicate

        that “[w]hen you send a payment, you agree to pay for a government service.” I601A,

        Application    for    Provisional   Unlawful      Presence     Waiver       (Jan.   30,   2024),

        https://www.uscis.gov/i-601a [https://perma.cc/W5U3-QMKL] (emphasis omitted); see

        also Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate

        Relatives, 78 Fed. Reg. at 549 (“USCIS uses these fees to process applicants[’] benefit

        requests and to cover its administrative costs.”).

               Second, in the preamble to the final provisional unlawful presence waiver

        regulations, USCIS provided its own summary of the “Problems Addressed by the Rule.”

        Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate

        Relatives, 78 Fed. Reg. at 565. In that summary, USCIS stated that “[t]he final rule will

        permit certain immediate relatives to apply for a provisional unlawful presence waiver

        prior to departing from the United States. USCIS will adjudicate the provisional unlawful

        presence waiver[.]” Id. (emphasis added).

               This contextual evidence certainly suggests that USCIS intends or desires to

        adjudicate the Provisional Waiver Applications. And if we lacked any reasonable way to

        reconcile the text of § 212.7(e)(2)(i) and § 212.7(e)(8), then the additional contextual clues

        to which Plaintiffs point would be useful for choosing which of the two provisions to give




        USCIS did not state whether the updated fee for filing Form I-601A would cover the full
        cost of adjudication.


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        effect. But none of the additional context pushes us to abandon the sole reading that gives

        effect to both.

               To start, it is a significant logical leap to conclude that USCIS bound itself to

        adjudicate because it required applicants to pay the full cost of adjudication up front or

        stated that the fees fund adjudication. At most, the required payment might show that

        USCIS must either adjudicate or return the applicant’s fee, not that an applicant can compel

        USCIS to adjudicate their application. Indeed, USCIS’s regulations contemplate refunding

        application fees in at least some situations where it would not adjudicate a Provisional

        Waiver Application. E.g., 

(e)(5)(ii) (stating that “[a]n application for a

        provisional unlawful presence waiver will be rejected and the fee and package returned”

        if, for example, the applicant fails to sign their application or provide supporting evidence

        required to adjudicate the application). And if USCIS retained an applicant’s fee but either

        explicitly or effectively refused to adjudicate their application, the applicant would likely

        have a cause of action related to refunding the fee. See, e.g., Astakhov v. U.S. Citizenship

        & Immigr. Servs., No. CV 23-1502 (JEB), 

, at *6–7 (D.D.C. Oct. 5,

        2023) (discussing how applicants for immigration benefits might bring illegal exaction

        claims against the United States pursuant to the Tucker Act if USCIS unlawfully collects

        fees); 

(a) (providing district courts with jurisdiction over certain Tucker

        Act claims). Therefore, while an applicant might have a claim against USCIS if the agency

        collects an application fee but refuses to adjudicate the application, it does not follow that

        the claim permits an applicant to force USCIS to adjudicate when its regulations otherwise

        make that decision discretionary.


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               Similarly, USCIS’s cursory summary of the “Problems Addressed by the Rule” in

        the regulation’s preamble does not justify discarding one of the regulations. That summary

        would be valuable if we thought the regulations read as a whole were ambiguous, but it

        does not resolve the fundamental issue that Plaintiffs’ proposed interpretation is

        irreconcilable with the promulgated text. See Mejia-Velasquez v. Garland, 

 (4th Cir. 2022) (“[T]o the extent there is a conflict between the preamble and the

        regulation, the regulation must control because a preamble cannot be read to require more

        than the regulation requires.”); Wyo. Outdoor Council v. U.S. Forest Serv., 

 (D.C. Cir. 1999) (recognizing that “language in the preamble of a regulation is not

        controlling over the language of the regulation itself” but that courts often look to “the

        preamble to a regulation [as] evidence of an agency’s contemporaneous understanding of

        its proposed rules”); Peabody Twentymile Mining, LLC v. Sec’y of Lab., 

        (10th Cir. 2019) (“[W]hile the preamble can inform the interpretation of the regulation, it

        is not binding and cannot be read to conflict with the language of the regulation itself.”).

               So, while context is vital to understanding the meaning of text, none of the context

        here resolves the key conflict Plaintiffs’ reading of the regulations creates or convinces us

        that there is an “unequivocal command” requiring USCIS to adjudicate Provisional Waiver

        Applications.

               Plaintiffs last argue that § 212.7(e) must mandate adjudication because “Congress

        did not, sub silentio, endow USCIS with the authority to unilaterally impose a de facto

        moratorium on all applications.” Reply Br. at 19–20 (cleaned up). But Plaintiffs have

        already conceded that Congress did not mandate adjudication when it passed the INA and


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        instead base their argument solely on the regulations in § 212.7(e). See Opening Br. at 31

        (“USCIS’s obligation to adjudicate waiver requests originates in regulation rather than

        statute.”). They have therefore effectively conceded that, at a minimum, USCIS could

        amend the regulations to omit the language on which Plaintiffs base their argument and

        then impose a de facto moratorium. Cf. Gonzalez, 

 (discussing how

        Congress for years had not required the Secretary to enact regulations implementing the

        U-Visa program, the Secretary therefore opted not to implement the program at all, and

        Congress eventually intervened to mandate implementation).

               In short, the text of § 212.7(e) compels us to conclude that even though the

        provisional unlawful presence waiver program was established with the goal of easing the

        visa-application process, USCIS retains discretion under the regulations to decide if it will

        adjudicate an application at all. USCIS has made efforts to adjudicate Provisional Waiver

        Applications—albeit at a slower and slower rate. But because neither Congress nor USCIS

        itself has ever bound USCIS to adjudicate these applications, the federal courts lack

        jurisdiction to consider Plaintiffs’ APA claim. Accordingly, we must affirm the judgment

        of the district court as to that claim.

                                                      C.

               In addition to agreeing that the district court lacked subject matter jurisdiction over

        Plaintiffs’ APA claim, we also agree with the district court’s determination that it lacked




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        subject-matter jurisdiction over Plaintiffs’ request for mandamus relief. 13 See 

. Similar to the APA, the Mandamus Act only permits federal courts to exercise

        jurisdiction if an agency has a clear duty to act. See Murray Energy Corp. v. Adm’r of Env’t

        Prot. Agency, 

, 537 n.4 (4th Cir. 2017) (recognizing that § 1361 “only

        empower[s] a court to respond to an agency’s failure to act in the face of a clear-cut duty”),

        as amended (July 18, 2017); cf. City of New York, 

 (“Just like the traditional

        mandamus remedy from which [the APA judicial review provisions] derive[], claims to

        compel agency action are limited to enforcement of a specific, unequivocal command, over

        which an official has no discretion.” (internal quotation marks omitted)). Because, as

        discussed above, there was no clear duty to act, we also affirm the judgment of the district

        court as to Plaintiffs’ claim for mandamus relief.

                                                     III.

               Our role in determining whether and when Plaintiffs receive an answer on Mr.

        Lovo’s Provisional Waiver Application is narrowly circumscribed. Because federal courts

        may not order an agency to act when neither statute nor regulation provides a basis for

        doing so, we lack the authority to provide Plaintiffs the relief they seek.

               In so concluding, we in no way mean to downplay the anguish Plaintiffs must be

        enduring while they wait for USCIS to adjudicate Mr. Lovo’s application. Receiving the

        provisional unlawful presence waiver for which Plaintiffs have applied would no doubt be


               13
                 USCIS has argued that Plaintiffs’ claim to jurisdiction under the Mandamus Act
        was forfeited on appeal. Response Br. at 32. Because we would affirm even if the issue
        was not forfeited, we decline to address whether the issue was forfeited.


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        life-changing, and USCIS’s prolonged delay in adjudicating Mr. Lovo’s Provisional

        Waiver Application is sure to be incredibly stressful. Nor do we seek to justify USCIS’s

        years-long delays in processing applications that it previously processed in a matter of

        months. But Plaintiffs’ complaint must be addressed to the political branches. Because we

        lack jurisdiction to order the relief Plaintiffs seek, we affirm the judgment of the district

        court.


                                                                                        AFFIRMED




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        DIAZ, Chief Judge, dissenting in part and in the judgment:


                                                     I.

               Humberto Lovo has dreamed of permanent residence in this country for decades.

        Five years ago, U.S. Citizenship and Immigration Services (“USCIS”) approved an

        immediate-relative petition filed by Lovo’s U.S. citizen wife on his behalf. But Lovo was

        never lawfully admitted at a port of entry, so he couldn’t adjust his status from within the

        United States.

               Instead, Lovo had two options. He could wait outside the country for ten years for

        his period of inadmissibility to pass. Or he could apply for a provisional unlawful presence

        waiver, which would allow him to obtain permanent residence without spending the

        mandatory ten-year period abroad.

               To remain with his wife and their U.S. citizen children, Lovo reasonably chose the

        latter option. In April 2022, he filed his waiver application and paid USCIS the $630

        application fee. But more than two years later, USCIS has yet to act on that application —

        and its current processing time for waiver applications is more than 3.5 years. In the

        interim, the Lovo family must remain in limbo while they await Mr. Lovo’s fate.

               Like many waiver applicants, the Lovos sued USCIS to compel it to adjudicate Mr.

        Lovo’s waiver application. The district court held that the Immigration and Nationality

        Act deprived it of subject matter jurisdiction over the suit and dismissed it. I agree with

        the majority that the district court was wrong. But USCIS can’t simply decide not to




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        adjudicate Lovo’s application at all. Because the majority holds otherwise, I respectfully

        dissent.



                                                     II.

               Section 706 of the Administrative Procedure Act provides a cause of action to

        compel “agency action” that has been “unlawfully withheld or unreasonably delayed.” 

(1). But § 706 has “inherent limits.” Gonzalez v. Cuccinelli, 

 (4th Cir. 2021).

               Indeed, a § 706 claim “can proceed only where a plaintiff asserts that an agency

        failed to take a discrete agency action that it is required to take.” Norton v. S. Utah

        Wilderness All., 

 (2004). “Just like the traditional mandamus remedy from

        which this provision is derived, claims to compel agency action are limited to enforcement

        of a specific, unequivocal command, over which an official has no discretion.” City of

        New York v. U.S. Dep’t of Def., 

 (4th Cir. 2019) (cleaned up). If an

        agency isn’t required to do something, “we cannot compel the agency to act—let alone to

        act faster.” Gonzalez, 

 (citing Norton, 

 n.1).

               An agency may be made to act not just when Congress has ordered it to by statute,

        but also when the agency has “committed itself [to do so] by regulation.” Id. at 370; cf.

        Elec. Components Corp. of N.C. v. NLRB, 

 (4th Cir. 1976) (“It is well

        settled that the rules and regulations of an administrative agency are binding upon it as well

        as upon the citizen even when the administrative action under review is discretionary in

        nature.”).


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               That’s true even if the agency retains discretion over the decision: If it has bound

        itself to render some decision, a plaintiff has a valid cause of action if the agency fails to

        do so within a reasonable time.

                                                      A.

               Our decision in Gonzalez illustrates this point.   There, we reviewed a challenge to

        USCIS’s delays in adjudicating immigration applications. Gonzalez, 985 F.3d at 360–61.

        The plaintiffs had applied for U-Visas, 1 and they had also applied to receive work

        authorization while their U-Visa applications were pending. Id. at 364. They argued that

        USCIS had “unreasonably delayed” adjudications of both applications. Id. at 365.

               We held that the district court had no jurisdiction over the plaintiffs’ claims for work

        authorization because USCIS retained discretion over whether to adjudicate the work

        authorization applications at all. See id. at 366–71. For context, Congress had passed an

        amendment to the Immigration and Nationality Act that stated, “The Secretary may grant

        work authorization to any alien who has a pending, bona fide application” for a U-Visa. 

(p)(6) (emphasis added). But even though that amendment permitted USCIS

        to grant work authorization to U-Visa applicants, the agency had discretion over whether




               1
                 A U-Visa is a form of nonimmigrant status granted to eligible noncitizens “who
        are victims of serious crime and who cooperate with law enforcement.” Gonzalez, 

. But “Congress capped the number of U-Visas at 10,000 per year,” 

 and
        USCIS regularly receives more applications than the cap. So USCIS promulgated
        regulations that created a “waiting list” for applicants whose applications it approved, but
        who couldn’t immediately receive a U-Visa because of the statutory cap. 

 USCIS grants
        work authorization to U-Visa applicants after placing them on the waiting list. 

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        to issue regulations implementing that statute. See, e.g., Gonzalez, 

. And

        it chose not to. 

.

               The plaintiffs argued that Congress’s “grant of discretionary authority, combined

        with eligibility standards (i.e., ‘pending, bona fide application’), required the agency to

        make a decision.” 

 (cleaned up). But we found that even if eligibility standards

        could compel the agency to act, “there [were] no policies or regulations to direct the

        agency’s action,” 

, nor anything more than a “broad standard[]” in the statute, 

 (cleaned up).

               We contrasted that circumstance with I.N.S. v. St. Cyr, 

 (2001), where

        the Supreme Court held that habeas jurisdiction encompassed review of the agency’s

        failure to “adjudicate a particular benefit request even though procedures and standards for

        evaluating such requests existed and had historically been employed.” Gonzalez, 

 (citing St. Cyr, 533 U.S. at 301–09).

               In St. Cyr, the habeas petitioner was a permanent resident who had pleaded guilty

        to a criminal offense that made him deportable. 

. After his plea, but before

        the commencement of his removal proceedings, Congress passed two statutes that repealed

        the Attorney General’s ability to grant suspension of deportation, a form of discretionary

        relief, to permanent residents convicted of aggravated felonies, as St. Cyr was. 

               St. Cyr argued that the lower court could exercise habeas jurisdiction to determine

        whether that repeal applied retroactively. See 

 The Supreme Court agreed, 

,

        noting there must be a “clear statement of congressional intent to repeal habeas

        jurisdiction,” 

.


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               We said in Gonzalez that St. Cyr “discussed habeas corpus jurisdiction for

        immigration proceedings and is best limited to those issues.” 

. But we then

        distinguished St. Cyr on the ground that the statute there had regulations and “defined

        procedures” for adjudication, unlike the work authorization statute at issue in Gonzalez.

        

 So while St. Cyr isn’t directly on point, we interpreted it in Gonzalez as holding that an

        agency has a duty to adjudicate when it has established procedures for doing so.

               But in Gonzalez, “there [were] no regulations or defined procedures, much less

        longstanding ones, for evaluating pre-waiting-list work authorizations.” 

 Thus, the

        “pending, bona fide” language in the statute, standing alone, didn’t “transform the

        discretionary ‘may’ into a mandatory ‘shall.’” 

. “The decision to adjudicate

        remain[ed] discretionary,” 

 so the plaintiffs’ claim wasn’t justiciable.

               On the other hand, the plaintiffs could challenge USCIS’s delay in adjudicating their

        U-Visa applications. 

 at 374 n.10. That’s because, unlike with the work authorization

        statute, “the agency ha[d] committed itself by regulation to place eligible applicants on the

        waiting list.” 

 That regulatory commitment created a duty for USCIS to adjudicate

        applications. See 

 So we remanded the case for consideration of the plaintiffs’

        unreasonable delay claims. 

 at 374–76.

                                                      B.

               Although the majority holds otherwise, the provisional unlawful presence waiver

        application process is more like the U-Visa scheme, and less like the completely

        unimplemented work authorization scheme. In my view, then, USCIS has a duty to

        adjudicate Lovo’s application.


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               Unlike the work authorization statute, USCIS has—in its discretion—promulgated

        a comprehensive regulatory regime governing the implementation and administration of

        the waiver. See 

(e).

               The majority thinks that this regulatory scheme leaves USCIS with discretion over

        whether it adjudicates waiver applications at all. That’s not right.

               As the majority states, three regulations are relevant here. Maj. Op. at 23–24. It

        explains:

               First, 

(e)(1) delegates to USCIS “exclusive jurisdiction to
               grant a provisional unlawful presence waiver[.]” 

(e)(1).
               Next, § 212.7(e)(2)(i) provides that “USCIS may adjudicate applications for
               a provisional unlawful presence waiver of inadmissibility based on
               [§ 1182(a)(9)(B)(v)] filed by eligible aliens described in paragraph (e)(3) of
               this section.” Id. § 212.7(e)(2)(i) (emphasis added). Finally—and most
               important for Plaintiffs’ argument—§ 212.7(e)(8) provides that “USCIS will
               adjudicate a provisional unlawful presence waiver application in accordance
               with this paragraph and [§ 1182(a)(9)(B)(v)].” Id. § 212.7(e)(8) (emphasis
               added).

        Id.

               The majority reads § 212.7(e)(2) and § 212.7(e)(8) together to mean that “[W]hen,

        in its discretion, USCIS decides to adjudicate claims, it must do so in accordance with the

        standards and procedures laid out in the statute and regulations.” Maj. Op. at 24.

               Viewed in isolation, these provisions are susceptible to that reading. But given the

        broader regulatory context, I don’t think the word “may” in § 212.7(e)(2) is the death knell

        the majority takes it to be. See Mohamed v. Bank of Am. N.A., 

 (4th Cir.

        2014) (“Of course, we must read the regulation’s words—just like a statute’s—in their

        context and with a view to their place in the overall regulatory scheme.” (cleaned up)).



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               As the Supreme Court has stated, “may” can sometimes be “ambiguous.” Zadvydas

        v. Davis, 

 (2001). Though “the word may . . . normally confers a

        discretionary power, not a mandatory power . . . this rule is not inflexible, and there are

        situations where legislative intent indicates that the term ‘may’ should be interpreted as

        mandatory.” Sverdrup Corp. v. WHC Constructors, Inc., 

 (4th Cir. 1993)

        (cleaned up).

               For example, the government uses “may adjudicate” in regulations implementing

        nondiscretionary forms of relief, such as certificates of citizenship. See 

(a). Under 

(a), people who derive U.S. citizenship through a parent

        may apply for a special document, called a certificate of citizenship, that confirms their

        citizenship. If the applicant is eligible, the government must issue the certificate. 

(a) (“Upon proof to the satisfaction of the Attorney General that the applicant is a

        citizen, and that the applicant’s alleged citizenship was derived as claimed . . . such

        individual shall be furnished by the Attorney General with a certificate of citizenship[.]”

        (emphasis added)). But the regulation implementing that law uses permissive language. 

(a) (“USCIS may adjudicate the application only after the appropriate

        approving official has reviewed the report, findings, recommendation, and endorsement of

        the USCIS officer assigned to adjudicate the application.” (emphasis added)).

               Another waiver regulation, 

(e)(9), informs my reading. It states

        that “USCIS will notify the alien and the alien’s attorney of record or accredited

        representative of the decision in accordance with 

(b)(19).” 

(e)(9) (emphases added). USCIS repeats that language in its waiver application


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        instructions.   U.S. Citizenship & Immigr. Servs., Instructions for Application for

        Provisional              Unlawful               Presence               Waiver              18,

        https://www.uscis.gov/sites/default/files/document/forms/i-601ainstr.pdf

        [https://perma.cc/P4EU-2AW7] (last visited June 13, 2024) (“USCIS will notify you of our

        decision in writing.” (emphases added)).

               Read in context then, once USCIS receives an application, it must render a decision,

        and it must notify the applicant and the applicant’s attorney or accredited representative of

        “the decision.” See 

(e)(9).

               Next, consider 

(a)(5)(i), which provides that an applicant for

        adjustment of status (another discretionary benefit) “shall be notified of the decision, and

        if the application is denied, of the reasons for the denial.” 2 A bevy of courts have held that

        the regulation’s mandatory language imposes on USCIS “a non-discretionary, mandatory

        duty to act on Plaintiffs’ applications.” Yu v. Brown, 

 (D.N.M.

        1999); accord Singh, 470 F. Supp. 2d at 1067 n.6 (finding the same); Burni v. Frazier, 

, 904–06 (D. Minn. 2008) (same); Linville v. Barrows, 

 (W.D. Okla. 2007) (same); cf. Patel v. Cissna, 

, 1380




               2
                 Another regulation, 

(f), which applies to adjustment of status for
        asylees, contained identical language. USCIS promulgated a new version, which provides,
        “USCIS will notify the applicant in writing of the decision on his or her application.” 

        Courts have likewise interpreted § 209.2(f) to require USCIS to adjudicate the application.
        See Singh v. Still, 

, 1067 & n.6 (N.D. Cal. 2007); Zhu v. Chertoff, 

 (W.D. Mo. 2007); Saini v. U.S. Citizenship & Immigr. Servs., 

 (E.D. Cal. 2008).

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        (M.D. Ga. 2019) (finding no duty to adjudicate U-Visa work authorization applications and

        contrasting that with duty to adjudicate adjustment of status applications).

               So too here. That USCIS “will notify” applicants of “the decision” creates a duty

        to rule on Lovo’s application. If it were otherwise, why would § 212.7(e)(9) reference “the

        decision,” and not “any decision” or “a decision”? We’ve recognized that “there is a

        fundamental difference between the definite and indefinite article.” United States v.

        McCauley, 

 (4th Cir. 2020). I choose to take USCIS at its word that each

        application has a corresponding decision, one that USCIS must send to the applicant and,

        if applicable, his attorney.

               Then there’s the preamble, which says that “USCIS will adjudicate the provisional

        unlawful presence waiver.” Provisional Unlawful Presence Waivers of Inadmissibility for

        Certain Immediate Relatives, 

, 565 (Jan. 3, 2013) (emphasis added). Of

        course, “to the extent there is a conflict between the preamble and the regulation, the

        regulation must control.” Mejia-Velasquez v. Garland, 

 (4th Cir. 2022)

        (emphasis added). But here, because one regulation—§ 212.7(e)(2) —appears to conflict

        with other regulations, the language in the preamble may inform our interpretation. Cf.

        Mejia-Velasquez, 

 (acknowledging that while not binding, “‘the preamble

        can inform the interpretation of the regulation’” (quoting Peabody Twentymile Mining,

        LLC v. Sec’y of Lab., 

 (10th Cir. 2019)). See also Wyo. Outdoor Council

        v. U.S. Forest Serv., 

 (D.C. Cir. 1999) (noting that a “preamble to a

        regulation is evidence of an agency’s contemporaneous understanding of its proposed

        rules” and “may serve as a source of evidence concerning contemporaneous agency


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        intent”); City of Las Vegas v. Fed. Aviation Admin., 

 (9th Cir. 2009)

        (“When a regulation is ambiguous, we consult the preamble of the final rule as evidence of

        context or intent of the agency promulgating the regulations.”).

               Finally, that there’s a streamlined application process itself is strong evidence that

        adjudication is mandatory. In Gonzalez, there was no such process for work authorization,

        as there was for the U-Visa application. 

. The applicants merely ticked a

        box on their U-Visa applications that they wished to obtain work permits. 

 They also

        tried to submit the general USCIS form used for work authorization applications, 

 but

        they couldn’t properly complete it.       Because USCIS never implemented the work

        authorization provision, it never provided a basis for work authorization that the U-Visa

        applicants could select on the form, nor did it set an application fee. 3 See also Rodriguez

        v. Nielson, No. 16-cv-7092, 

, at *9 (E.D.N.Y. Sept. 30, 2018) (noting

        that USCIS “has routinely rejected” U-Visa applicants’ work authorization application

        forms because of the lack of “appropriate basis for [work authorization] eligibility”).




               3
                  Almost every applicant for work authorization must submit Form I-765,
        Application for Employment Authorization. See U.S. Citizenship & Immigr. Servs., I-765,
        Application                  for                   Employment                  Authorization,
        https://www.uscis.gov/sites/default/files/document/forms/i-765.pdf
        [https://perma.cc/K7MH-L4CD] (last accessed June 11, 2024). The form requires the
        applicant to specify a two- or three-digit code, corresponding to the subsection in the
        relevant regulation that establishes his eligibility for work authorization. So, for example,
        a noncitizen granted asylum would designate (a)(5), corresponding to 8 C.F.R. §
        274a.12(a)(5), on his Form I-765. A noncitizen granted deferred action, after being placed
        on the U-Visa waiting list, would designate (c)(14), corresponding to 8 C.F.R. §
        274a.12(c)(14), on his Form I-765. But for U-Visa applicants, there’s no such
        corresponding regulation, so the applicant can’t complete Form I-765.

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               But for the provisional unlawful presence waiver, there’s a detailed application

        process and clear standards for adjudication. An applicant must complete the required form

        and attach evidence of his eligibility for relief. 4 He must also provide biometrics. 

(e)(6). And crucially, he must pay a hefty fee. 5 

(e)(5)(i); 

(a)(25).

               It should be obvious that the fee is for “process[ing] applicants’ benefit requests,”

        78 Fed. Reg. at 549, and adjudicating the application—not for the possibility that the

        application may be adjudicated. As USCIS states on its online application, “When you

        send a payment, you agree to pay for a government service. Filing and biometric services

        are final and nonrefundable.” 6

               Indeed, it beggars belief that USCIS could receive the Lovos’ application, deposit

        their check, do nothing for three years, and then return their check without adjudicating the

        application. USCIS doesn’t suggest that it has ever, in its discretion, refused to adjudicate

        a waiver application. And though USCIS may return the application fee if the applicant

        fails to sign his application or provide supporting evidence, 

(e)(5)(ii), no

        regulation gives USCIS the authority to refund the fee for a properly filed waiver




               4
                  See U.S. Citizenship & Immigr. Servs., I-601A, Application for Provisional
        Unlawful Presence Waiver, https://www.uscis.gov/i-601a [https://perma.cc/7WQY-DJZJ]
        (last accessed June 13, 2024).
                5
                  USCIS recently increased the filing fee to $795. See 

(a)(34).
                6
                  See U.S. Citizenship & Immigr. Servs., I-601A, Application for Provisional
        Unlawful Presence Waiver, https://www.uscis.gov/i-601a [https://perma.cc/7WQY-DJZJ]
        (last accessed June 13, 2024) (emphasis added).


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        application once it has cashed the applicant’s check, issued a receipt, and begun processing

        it. 7

                USCIS also tells applicants that the fee is “final and nonrefundable.” See U.S.

        Citizenship & Immigr. Servs., I-601A, Application for Provisional Unlawful Presence

        Waiver, https://www.uscis.gov/i-601a [https://perma.cc/7WQY-DJZJ] (last accessed June

        13, 2024) (emphasis added). That contradicts USCIS’s litigating position that it will refund

        fees if it elects to simply not adjudicate an application. See also Segovia v. Garland, No.

        1:23-cv-1478, 

, at *11 (N.D. Ga. Mar. 21, 2014) (recognizing that “the

        Government cannot charge a fee for the adjudication of an application and then argue that

        it has no duty to adjudicate a properly filed application” (cleaned up)).

                Given all this, the majority’s proposed solution—require the Lovos to hire an

        attorney, bring a Tucker Act suit to compel a refund, and pay still more filing fees—makes

        no sense. Nor does anything in the regulations require the Lovos to undertake this

        burdensome (and expensive) endeavor. Rather, when the Lovos paid USCIS to adjudicate



                7
                 USCIS recently amended its regulations, which now state: “Filing fees generally
        are non-refundable regardless of the outcome of the benefit request, or how much time the
        adjudication requires, and any decision to refund a fee is at the discretion of USCIS.” 

(a)(1). But the preamble to this regulation suggests that USCIS will refund
        fees only in limited circumstances, such as “when [it] made an error which resulted in the
        application being filed inappropriately, or when an incorrect fee was collected.” U.S.
        Citizenship and Immigration Services Fee Schedule and Changes to Certain Other
        Immigration Benefit Request Requirements, 

, 6321 (Jan. 31, 2024). As
        for applicants, “USCIS makes its no-refund policy clear on its website. Filing and
        biometric fees are final and non-refundable, regardless of any action USCIS takes on an
        application, petition, or request”—including, presumably, electing not to adjudicate it and
        returning it to the application—“or if requestors withdraw a request.” 

 (internal
        citations omitted).

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        Mr. Lovo’s waiver application, they rightfully expected that USCIS would give them a

        decision at some point.

               The Lovos might not prevail on their claim of undue delay. But they are entitled to

        a ruling on the merits. Because the majority holds otherwise, I respectfully dissent.




                                                    46