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.

2 USCA4 Appeal: 23-1571 Doc: 34 Filed: 07/03/2024 Pg: 3 of 46

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 8

U.S.C. §§ 1151(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, 590 U.S. 222, 226 n.2 (2020).

Since Plaintiffs sued the two defendants in their official capacities, we refer to the defe