-
Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
May 9, 2024 | Volume 31, Issue 11
This Report summarizes cases granted review on April 19 and 26, 2024 (Part I).
Case Granted Review
Bouarfa v. Mayorkas, 23-583.
The question presented is whether the Secretary of Homeland Security’s “decision to revoke the approval of an immigrant visa petition is subject to judicial review in district court.” The Immigration and Nationality Act provides “a two-step process through which a noncitizen may become a legal permanent resident” by marrying a U.S. citizen. First, the citizen-spouse files an immigrant visa petition (Form I-130) “on the noncitizen’s behalf . . . requesting that the United States Citizenship and Immigration Services (USCIS) classify the noncitizen as an ‘immediate relative,’” pursuant to 8 U.S.C. §1154. Under §1154, if the noncitizen spouse previously had entered into a “sham marriage” to evade U.S. immigration laws, USCIS cannot approve the I-130 petition visa. If the petition is denied, the remedy is an administrative appeal with the Board of Immigration Appeals. If that, too, is unsuccessful, the citizen-spouse can seek judicial review. Conversely, if the petition is granted, “the noncitizen may file an application for adjustment of status [to that of legal permanent resident], which the Secretary ‘may’ grant,” pursuant to 8 U.S.C. §1155. Critically here, §1155 provides that the Secretary “may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him.” Pursuant to certain relevant regulations, and as relevant here, “[a] USCIS officer may . . . revoke the approval of a visa petition on any other appropriate ground ‘when the necessity for the revocation comes to the attention of [USCIS].’” If the approval is revoked on a non-automatic ground, the noncitizen receives notification, the opportunity to offer evidence to counter the decision and, where revocation officially occurs, written notifications with specific reasons for that decision. In that case, “[t]he petitioner may file an administrate appeal with the Board.” But in 8 U.S.C. §1252, Congress has limited judicial review of the Secretary’s discretionary decisions. Specifically, the section provides that courts lack jurisdiction to review “any other decision or action of” the Secretary where the relevant statutes have provided the Secretary with discretion in such actions or decision-making.
In 2011, petitioner Amina Bouarfa, who is a U.S. citizen, married Ala’a Hamayel, a noncitizen. Several years after they married, Bouarfa “filed a Form I-130 petition seeking to classify her husband as an immediate relative, which would make him eligible for adjustment to permanent immigration status.” In 2015, Bouarfa’s petition was approved. But two years later, USCIS issued a notice to revoke its approval of the petition on the basis that “‘it never should have approved [the] I-130 in the first place because there was substantial and probative evidence that . . . Hamayel entered his first marriage for the purpose of evading immigration laws.’” This evidence was the sworn statement of one of Hamayel’s ex-wives that their marriage was a sham in which she had asked for $5,000 in exchange for filing an I-130 petition on his behalf. Bouarfa filed a response in which she disputed the allegations with counterevidence of her own. USCIS was not persuaded by Bouarfa’s evidence, and it officially revoked its prior approval of her visa petition. Bouarfa appealed to the Board of Immigration Appeals, which upheld the revocation. When Bouarfa filed suit in district court to challenge the revocation, the Government moved to dismiss based on “Section 1252(a)(2)(B)(ii)’s bar on judicial review of the Secretary’s discretionary decisions.” The district court dismissed the case for lack of jurisdiction. The Eleventh Circuit affirmed. 75 F.4th 1157.
The Eleventh Circuit first concluded that §1155’s text demonstrates that the Secretary’s revocation decision in this situation is discretionary and therefore falls under §1252(a)(2)(B)(ii)’s jurisdictional bar. Next, the court explained that it did not matter if the basis for the revocation involved a nondiscretionary matter; the Secretary’s decision nevertheless “remain[ed] discretionary and barred from judicial review.” Finally, at bottom, petitioner’s claim was simply “that the Secretary should have exercised his discretion in a different manner.”
Bouarfa argues in her petition that the Secretary’s “nondiscretionary determination under Section [1154’s] marriage-fraud bar should not become discretionary and unreviewable simply because the agency uses that determination as the basis for a revocation rather than an initial denial.” In support of her argument, Bouarfa relies on the Supreme Court’s previous application of a legal “‘presumption favoring judicial review of administrative action’” and its immigration precedent recognizing “‘a distinction between eligibility for relief . . . and the favorable exercise of discretion.’” In addition, Bouarfa notes that there is no dispute among the circuits to address the issue that §1154’s sham-marriage provision “imposes a nondiscretionary duty on USCIS” to deny a petition. Furthermore, when USCIS denies a petition on, for instance, marriage-fraud, §1155’s standard of “good and sufficient cause” for the Secretary’s revocation “provides a meaningful standard for review” that a court can readily apply. Finally, Bouarfa expresses her concern that the Secretary will use this statutory interpretation to improperly insulate from judicial review future immigration decisions by invoking a “grant first, revoke later” standard.
The Government responds that the text of §§1155 and 1252 refute Bouarfa’s claim because together they “foreclose judicial review of the Secretary’s decision to revoke the approval of an immigrant visa petition regardless of the basis for revocation.” The Government also counters that, in the context of a “jurisdiction-stripping statute,” the text’s statute should be given greater weight than an “‘interpretive presumption.’” Finally, the Government discounts Bouarfa’s “grant first, revoke later” argument, noting that there has been no evidence of such behavior in this or any other case.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Melissa Patterson, Supreme Court Fellow
- Amanda Schwartz, Supreme Court Fellow
The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services.
Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.