The U.S. Court of Appeals for the Fourth Circuit is weighing whether to overturn a lower court order in Maryland that bars immigration officials from arresting certain people during green card interviews with their U.S. citizen spouse, a tactic being employed by the Trump administration elsewhere in the country.
In the appeal that was initially filed by the Biden administration, Justice Department attorneys argued on Thursday that a 2024 judgment imposing the ban should be reversed because the plaintiffs in a 2020 class-action lawsuit have been issued final orders of removal and “lack any right to remain in the United States,” according to a live stream of the oral arguments before a three-judge panel.
Attorneys with the American Civil Liberties Union of Maryland say that the administration’s effort amounts to a “bait and switch,” in that, under its current policy, people with final orders of removal are invited with their U.S. citizen spouse to show up for a green card interview to begin a first step toward gaining legal permanent status. U.S. Immigration and Customs Enforcement officers then arrested some while they were in the offices of U.S. Citizenship and Immigration Services for the interview.
“If you want to change that policy, you have to issue new rules, or you have to rescind the old ones,” said Michael Abrams, an attorney working with the ACLU of Maryland on a pro bono basis. “That’s why it’s become this procedural fight about how the government is supposed to work.”
The legal dispute revolves around rules the Department of Homeland Security instituted in 2013 that allowed for immediate relatives of U.S. citizens to seek what is known as a provisional unlawful presence waiver, meant to avoid long periods of separation that begins with the green card application that prompts an interview to confirm a marriage.
Getting approval for the waiver is a step to legal residency that lifts a 10-year bar on reentry for people found to have been in the country illegally. In 2016, DHS extended the process to people with final removal orders, according to the federal register.
Under the rule, anyone granted the waiver is still required to leave the country to process an immigrant visa at a U.S. Consulate abroad. Getting the waiver approved does not guarantee legal status, according to the USCIS website.
During President Donald Trump’s first administration, U.S. Immigration and Customs Enforcement officers began arresting people with final removal orders after they and their spouse showed up for their green card interview.
In November 2018, the ACLU filed a federal lawsuit on behalf of Wanrong Lin, a father of three from Maryland who was arrested after he went in for an interview that August to validate his 14 year-long marriage to his wife, a U.S. citizen.
Lin, who according to court documents entered the country illegally, was later ordered removed to China. A judge paused that order as part of the lawsuit.
Other Maryland families came forward alleging the same treatment by ICE at provisional waiver interviews, and the cases were consolidated into a class-action suit in 2020.
In 2024, Judge George L. Russell III ruled in their favor, prohibiting DHS from arresting, detaining or removing people who are in the process of applying for the provisional unlawful presence waiver. The federal government appealed that ruling, which only applies to Maryland, in May 2024.
Whatever the Fourth Circuit judges decide would affect the states within its jurisdiction, which, besides Maryland, includes Virginia, West Virginia, North Carolina and South Carolina.
“This court should reverse and vacate the District Court’s sweeping declaratory judgment, which allows even dangerous criminal aliens to remain in the United States despite their final orders of removal,” Mary Larakers, a Justice Department attorney, said during oral arguments Thursday.
Larakers argued that with “indisputably valid” final orders of removal, the plaintiffs’ claims are barred. The court has to look back at the regulation, she said.
“In 2013, it it doesn’t give legal status and it doesn’t provide a stay,” Larakers said. “Then in the Form I-601A instructions that are still valid today, it says that you can’t expect not to be removed from the United States.”
Judge Paul V. Niemeyer repeatedly questioned Abrams about the regulation, specifically whether there’s an exception allowing ICE to carry out these final removal orders.
Abrams said there is no exception. Abrams continued that Russell, who was appointed to the federal bench by Barack Obama, found that DHS did have a practice of removing people from the interviews, and that’s what’s at stake.
By federal law, if a new administration wants to change an agency’s policy, Abrams said, it must explain itself through new rules.
“But this government started targeting people who had a pathway to lawful status,” Abrams said. “If they wanted to do it differently, they had to explain it. And what they did instead is create this atmosphere of terror and disincentivize people from coming forward … and punish the people who had a pathway to lawful status.”
“You have the government in official rules saying, in the years prior, `We want you to come forward, and we’re not going to separate you from your family,’ and then there’s a new president, and when you come forward, relying on the Department of Homeland Security’s guidance, you face the opposite,” he said.
The plaintiffs are not accused of or charged with criminal acts, and are “not dangerous,” Abrams said. They’ve lived and worked in the country for years and raised families, he added.
Abrams said the rule was meant to keep families together and encourage people to come forward to get lawful status through visas instead of fearing it entirely.
Appellate Judge Pamela A. Harris closed the hearing by asking the federal government attorney whether it is intentionally targeting green card interviews.
“Are you in a position to tell us whether the government is targeting people for removal based on the fact that they are in this process or not?” Harris said.
Larakers said ICE agents aren’t aware of the provisional waiver process when they’re picking up applicants.
“ICE was just taking enforcement actions when and where it could,” Larakers said. “And it happened to be that some people who were class members got arrested at I-130 interviews.”
Abrams said the legal precedent in Maryland would hold significance across the country. The judges did not say when they plan to render a decision on the case.
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