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Martinez v. Nielsen - "Mr. and Ms. Martinez began the provisional waiver process in 2016. USCIS scheduled them for an interview on their I-130 application to confirm the bona fides of their marriage. On April 27, 2018, together with their lawyer, Mr. and Ms. Martinez appeared for an interview in Manhattan, New York. At the conclusion of the interview, two Immigration and Customs Enforcement (“ICE”) agents entered the interview room and abruptly arrested Mr. Martinez, purportedly based on a “new policy” of detaining any individual with an outstanding order of removal at an interview.3 ICE agents transported Mr. Martinez to Hudson County Correctional Facility in New Jersey where he has been detained since April 27, 2018. Less than one week later, USCIS approved the Martinez’s I-130 application. Nevertheless, Mr. Martinez remains in custody. On June 22, 2018, Mr. Martinez filed this petition for a writ of habeas corpus and an emergency motion for a temporary restraining order seeking, inter alia, his release from custody and to enjoin Respondent-Defendants from removing him from the United States while he is pursuing the provisional waiver process. ECF Nos. 1, 2. That same day, the Court stayed Mr. Martinez’s removal pending further order of the Court. ECF No. 6. Pursuant to L. Civ. R. 78.1, this Order supplements the Court’s prior Order with a formal opinion to follow. Mr. Martinez’s petition for a writ of habeas corpus and his motion for a temporary restraining order are hereby GRANTED. The Court finds that it has jurisdiction to review the limited question of whether Mr. Martinez has a right to complete the process of obtaining a provisional waiver of grounds of inadmissibility before his removal. The Court’s jurisdiction is not stripped by 8 U.S.C. § 1252(g) because Mr. Martinez does not challenge ICE’s prosecutorial discretion but rather its legal authority. It is also not stripped by § 1252(a)(5) or (b)(9) because the Court is not vacating or reviewing Mr. Martinez’s order of removal. See Villavicencio Calderon v. Sessions, et al., No. 18-5222 (S.D.N.Y. Aug. 1, 2018) (slip op.). Rather, the Court holds that Mr. Martinez has the right to complete the process that he lawfully began, and that the government’s attempt to detain and deport Mr. Martinez before he could complete the process contravenes that right, in violation of the Administrative Procedure Act (“APA”) and the Fifth Amendment."