May 9, 2024 | Volume 31, Issue 11
This Report summarizes cases granted review on April 19 and 26, 2024 (Part I).
Cases Granted Review
Garland v. VanDerStok, 23-852.
This case involves the federal government’s attempted regulation of “firearms parts kits,” otherwise known as “ghost guns.” The Gun Control Act of 1986 (Act) imposes various licensing, background-check, recordkeeping, and serialization requirements on individuals engaged in the business of importing, manufacturing, or dealing in firearms. The Act defines a “firearm” as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” in addition to “the frame or receiver of any such weapon.” 18 U.S.C. §921(a)(3)(A) and (B). The Act does not, however, define either a “frame” or a “receiver.” Recently, there has been a dramatic increase in crimes involving ghost guns, which are almost impossible to trace because they lack serial numbers and transfer records. As a result, in 2022 the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a rule pertaining to the definitions of “firearm” and “frame or receiver” in the Act. 27 C.F.R. 478.11, 478.12(c) (the Rule). The Rule states that the definition of “firearm” includes weapon parts kits that can be “readily” assembled into a firearm. In addition, the Rule states that the term “frame or receiver,” as referenced in the Act’s “firearm” definition, includes “a partially complete . . . frame or receiver.”
Respondents, a group of individuals, advocacy groups, and manufacturers/distributers of firearm-related products, sued (some as original plaintiffs and others as intervenors) to challenge the Rule’s inclusion of weapon parts kits and partially completed frames or receivers in the Act’s “firearm” definition. “The district court granted respondents’ motions for summary judgment, concluding that the two challenged provisions of the Rule contradict the Act.” The court’s remedy, however, was to vacate the entire rule, including unchallenged portions. The Government appealed, and the Fifth Circuit granted the Government’s motion for stay pending appeal. That court “stayed the district court’s vacatur of the unchallenged portions of the Rule but otherwise denied relief.” The U.S. Supreme Court stayed the district court’s judgment pending resolution on appeal. While this stay was in effect, the district court granted two of the respondents a broad injunction on the Government’s application of the rule pending resolution on appeal. Although the Fifth Circuit narrowed the injunction to cover only the parties, the U.S. Supreme Court “vacated the injunction in its entirety.” Ultimately, the Fifth Circuit affirmed the lower court’s decision in part, holding that the plain meaning of the Act’s text does not cover weapon parts kits or partially completed frames and receivers. 86 F.4th 179. The court vacated the judgment, however, and remanded for the district court’s reconsideration of its original remedy (i.e., vacatur of the entire Rule).
In its petition, the Government argues that, although there is no split of authority as to this Rule, certiorari is warranted because the Fifth Circuit had incorrectly nullified key provisions of an important regulation. On the merits, the Government argues that the Fifth Circuit erred in several respects. First, the court’s decision “contradicts the Act’s plain text.” The government insists that the Rule simply provides clarification of the Act’s text in more explicit text. For instance, the inclusion of weapon parts kits is entirely consistent with Congress’s broad definition of “firearm” in the Act. Likewise, the Rule clarifies that the Act covers partially completed “frames or receivers” that can be readily converted “by, for example, drilling holes or removing plastic rails.” Second, the court’s nullification of this important regulatory scheme would “frustrate the Act’s design.” As a result, “anyone could buy a kit online and assemble a fully functional gun in minutes―no background check, records or serial number required,” flooding our communities with ghost guns and thwarting law enforcement’s crime-solving efforts.
Respondents, while not objecting to Supreme Court review, disagree on the merits, arguing that the Rule impermissibly expands the definition of both “firearm” and “frame or receiver” beyond the bounds contemplated by the Act. They maintain that the Act regulates the weapons themselves, not kits from which a weapon can be built. And any attempt by the Rule to regulate kits without frames or receivers must fail because the Act “contemplates that every firearm will have a frame or receiver and have its serial number imprinted on that location.” In addition, respondents say, the Rule’s expanded definition of “frame or receiver” to cover those that are only partially completed necessarily fails because the Act’s language refers to weapons themselves that may be readily converted, not frames or receivers of such weapons. Respondents alternatively assert that the Fifth Circuit’s judgment should be upheld so as to avoid any constitutional infirmity under the Second Amendment and the Fifth Amendment’s Due Process Clause. Finally, respondents argue that even if the Act were ambiguous, the rule of lenity means that the ambiguity must be resolved against the Government.
Lackey v. Stinnie, 23-621.
Under 42 U.S.C. §1988(b), the “prevailing party” in certain civil rights actions can recover reasonable attorney’s fees. The questions presented relate to the definition of “prevailing party” and ask: (1) “Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. §1988”; and (2) “[w]hether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. §1988.”
Under Virginia Code §46.2-395, a resident’s driver’s license faced automatic suspension if she failed to satisfy specific court fines and fees. Respondents, a group of indigent citizens who had their licenses revoked due to an inability to cover court debts, filed suit against petitioner, the Virginia Department of Motor Vehicles Commissioner (the Commissioner). Respondents challenged the constitutionality of §46.2-395 under the Fourteenth Amendment, alleging that the automatic suspension without prior notice or a hearing infringed upon their due process rights. They sought a preliminary injunction, which the district court granted after determining that their procedural due process claim was likely to succeed on its merits. The injunction enjoined the statute’s enforcement as to respondents and ordered the Commissioner to remove any current suspension of respondents’ driver’s licenses under §46.2-395. Following the issuance of the injunction, the Commissioner recommended to the General Assembly that the law be repealed. Before trial, the Virginia General Assembly passed a Budget Amendment pausing the enforcement of §46.2-395 for a year. At the Commissioner’s request, the district court stayed the case until the next legislative session, during which time the General Assembly fully repealed the statute. Consequently, respondents no longer required relief ordered by the court. The parties stipulated that the action was moot, and the court dismissed it.
Respondents then petitioned for attorney’s fees under §1988(b), alleging they were a “prevailing party.” The district court denied the motion based on the Fourth Circuit precedent Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002), which created a bright-line rule that a plaintiff who is awarded a preliminary injunction is never a prevailing party. Respondents appealed, and a panel of the Fourth Circuit affirmed, stating that Smyth remained good law. The Fourth Circuit then granted respondents’ petition for rehearing en banc and determined that Smyth’s categorical bar went too far. 77 F.4th 200. The en banc court ruled that a prediction of the likelihood of success is sufficiently on the merits to justify prevailing-party status, and that the “court-ordered change” from a preliminary injunction is sufficiently “enduring.” Applying its approach here, the court held that respondents “prevailed,” making them eligible for a fee award, and remanded to the district court to determine the specific fee to which respondents are entitled.
The two key precedents are Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001), and Sole v. Wyner, 551 U.S. 74 (2007). In Buckhannon the Court clarified that for a party to prevail, the relief obtained must be “judicially sanctioned,” indicating that a defendant’s voluntary change in behavior “lacks the necessary judicial imprimatur on the change.” Then, in Sole, the Court emphasized that the success must also be “enduring” rather than “ephemeral,” meaning that a preliminary injunction that is later “reversed, dissolved, or otherwise undone by the final decision in the same case” does not qualify a party as prevailing. But the Court in Sole left open the possibility that success in obtaining a preliminary injunction might, in some cases, justify an award of counsel fees.
The Commissioner argues in his petition that the Fourth Circuit’s answer to both questions presented was erroneous. First, he argues that a decision based on the likelihood of success merely constitutes a prediction and does not definitively decide the merits. The Commissioner maintains that permitting fees based on a “likelihood” of success lacks the ready administrability required by Buckhannon. That is because it leaves unanswered questions regarding the threshold of likelihood necessary for relief on the merits and the level of rigor in the procedures leading to the prediction, given that preliminary injunctions are typically granted with less formal procedures and incomplete evidence compared to a trial on the merits. Second, the Commissioner claims that the Fourth Circuit erred by finding that the preliminary injunction itself need not provide enduring relief, stating that the decision conflicts with the Court’s precedent. Here, he says, respondents received enduring relief when the Virginia General Assembly repealed §46.2-395, meaning the lasting change did not come from the court, which is insufficient for prevailing-party status.
Respondents argue that 11 circuits recognize that a preliminary injunction can establish prevailing-party status when the case becomes moot, provided the injunction alters the legal relationship between the parties beyond maintaining the status quo, and that until this case the Fourth Circuit was the sole outlier. On the merits, respondents assert that the Fourth Circuit’s analysis aligns well with the Court’s precedent, which emphasizes a “generous formulation” for prevailing-party status. They insist that “[t]he preliminary injunction hearing was merits-based, as shown by the district court’s own extensive decision—one reached after a full evidentiary hearing involving exhibits and live testimony from six witnesses (some of whom were experts). The preliminary injunction changed the legal relationship between the parties, as it immediately shielded [r]espondents from the unconstitutional application of Virginia Code §46.2-395. The relief was concrete. And the relief was enduring. After the preliminary injunction, the Commissioner did everything in his power to stop Respondents from having a trial and lobbied the General Assembly for reform.” (Internal citations omitted.) Respondents distinguish Buckhannon because there, “[t]he plaintiff never won a preliminary injunction or any other judicial relief.”
Medical Marijuana, Inc. v. Horn, 23-365.
At issue is whether economic harms resulting from personal injuries can be injuries to “business or property by reason of” the defendant’s acts for purposes of a civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act (RICO). Title 18 U.S.C. §1964(c), known as civil RICO, authorizes “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter [to] sue therefor in any appropriate United States district court[.]” Respondent Douglas Horn was a commercial truck driver subject to random drug testing. Following a car accident, he investigated natural remedies for pain and discovered petitioners’ CBD product, Dixie X, which was advertised as tetrahydrocannabinol (THC) free. But after consuming the product, Horn failed his employer’s drug tests and lost his job. Suspecting that Dixie X was to blame for his positive test, he sent some to an independent lab to test the product, which confirmed the product contained THC. Horn filed a nine-count complaint in federal court alleging eight New York state-law claims and one RICO claim. The district court granted summary judgment to petitioners on the civil RICO claim, finding that Horn’s lost earnings stemmed from a personal injury, the bodily invasion of THC, and therefore did not constitute an injury to “business or property” that is recoverable in a civil RICO action. The Second Circuit reversed. 80 F.4th 130.
The Second Circuit stated that the district court improperly relied on the Sixth Circuit’s narrow interpretation of the civil RICO statute. Instead, the Second Circuit found that the term “business” encompasses “employment,” and thus Horn suffered an injury as contemplated by the civil RICO statute. The Second Circuit explicitly rejected what it termed “the antecedent-personal-injury bar,” finding that there is no textual reason to extend RICO’s exclusion of recovery for personal injury to an injury to a “business or property” to which a personal injury was a precursor. By doing so, the Second Circuit joined the Ninth Circuit in finding that civil RICO permits recovery for injuries derivative of a personal injury.
Petitioners take up the Sixth Circuit’s “antecedent-personal-injury bar,” which they allege is also applied in the Seventh and Eleventh Circuits. In those circuits, civil RICO’s “business or property” requirement firmly excludes economic harms arising from personal injuries. Petitioners argue that this limit is supported by Congress’s choice to limit civil RICO to “business or property” injuries. In petitioners’ view, “[p]ersonal injuries are the antithesis of injuries to business or property,” and “[a]ny other reading would deprive RICO’s ‘business or property’ requirement of ‘restrictive significance.’” And petitioners insist that “[i]f plaintiffs suffering any monetary harm can sue under civil RICO, . . . [c]ountless state-law tort claims could be repleaded as federal treble-damages actions.” In short, maintain petitioners, “[e]conomic harms from personal injuries are part of the personal injury and thus not injuries to ‘business or property’ covered by RICO.”
Horn argues that the circuit split is illusory and that no circuit has adopted a rule that bars recovery in a civil RICO claim because a personal injury occurred in the chain of causation between the prohibited racketeering activity and an otherwise compensable business or property injury. Further, he argues that petitioners’ concerns about opening floodgates are unfounded because a cause of action under §1964(c) is comprised of “three elements: (1) an injury to business or property (2) by reason of (3) a violation of Section 1962.” Defendants must commit “at least two crimes enumerated in Section 1961 within a ten-year period”; and the “by reason of” language “imposes a proximate-causation requirement more stringent than the common-law doctrine.”
Royal Canin U.S.A., Inc. v. Wullschleger, 23-677.
The Court granted certiorari to resolve whether a party can compel a remand to state court by amending the complaint to omit federal questions in an action that has already been properly removed to federal court pursuant to 28 U.S.C. §1441(a). The questions presented are (1) whether a post-removal amendment of the complaint defeats federal-question subject matter jurisdiction and (2) whether such a post-removal amendment of the complaint precludes a district court from exercising supplemental jurisdiction over the plaintiffs’ remaining state-law claims pursuant to 28 U.S.C. §1367.
Respondents are Missouri consumers whose pets suffered from health issues that veterinarians advised could be treated with prescription pet food from petitioners’ companies. Respondents paid a premium for the food, but allege that the food contained no medication and was not a prescription product. Based on the higher sales price and lack of medicine, respondents filed a complaint against petitioners in Missouri state court alleging violations of Missouri’s antitrust laws, Missouri’s Merchandising Practices Act, and unjust enrichment. Petitioners removed the case to federal court based on the substantial federal question doctrine. On appeal, the Eighth Circuit determined that respondents’ antitrust and unjust enrichment claims encompassed significant federal questions. Respondents then modified their complaint to remove all mentions of federal law, abandoned their antitrust and unjust enrichment allegations, and introduced a civil conspiracy claim. Based on their amended complaint, respondents moved to have the case remanded to Missouri state court. The district court denied the motion, stating that federal-question jurisdiction still existed, and instead granted petitioners’ motion to dismiss for failure to state a claim. On appeal of the motion to dismiss, the Eighth Circuit asked the parties to submit supplemental briefing on whether subject matter jurisdiction exists. The Eighth Circuit, relying on the “longstanding rule that an amended complaint supersedes an original complaint and renders the original complaint without legal effect,” ruled that respondents’ amendment to the complaint destroyed federal-question jurisdiction and precluded supplemental jurisdiction. The court vacated and remanded with directions to remand the case to Missouri state court. 75 F.4th 918.
Petitioners argue that “the Eighth Circuit purposefully departed from uniform law in all other circuits” by erroneously looking at the amended complaint to determine whether, in a properly removed action, subject matter jurisdiction remains. Petitioners claim that the Eighth Circuit mistakenly relied on cases initially filed in federal court, which do not implicate a defendant’s statutory right to remove a case to federal court. In doing so, petitioners allege that the Eighth Circuit ignored that cases removed to the federal court are treated differently than those initially filed in federal court and would allow forum manipulation. According to petitioners, the Eighth Circuit’s rule would allow a plaintiff to “destroy the jurisdictional choice that Congress intended to afford a defendant in the removal statute.” Petitioners emphasize the forum gamesmanship, noting that “[i]f a motion to remand is denied on the basis that the claims are federal in nature, a plaintiff may simply amend the complaint to eliminate or conceal the federal allegations, move to remand a second time, and force the district court to return the case to state court.”
Respondents counter that the Eight Circuit’s ruling was correct because an amended complaint supersedes an earlier complaint for all purposes. They assert that there “is no statutory basis for treating amendments in cases that were removed from state court on the basis of federal question justification differently from those amendments in cases first filed in federal court” because they both involve the elimination of all claims giving rise to federal jurisdiction. Given that the amended complaint here failed to assert any claim supporting federal-question jurisdiction, respondents claim the Eighth Circuit correctly declined to create a “time of filing” rule to evaluate jurisdiction in cases like this one. Respondents contend there is no rationale for treating cases removed to federal court differently. They point to the disparate results under petitioners’ rule under which “the existence of federal jurisdiction in two cases with the same amended complaint—with identical nonfederal claims and parties—would depend solely on where the action was first filed.” They further dismiss petitioners’ reliance on the removal statute to support varying outcomes, pointing out that “Congress could have instructed federal courts to handle post-removal amendments to complaints removed from state court differently from those originating in state court.” They also emphasize that while a defendant has the right to pursue a federal forum for resolving claims based on federal law, there’s no inherent entitlement for any party to litigate state-law claims in federal court unless diversity is involved.
Bufkin v. McDonough, 23-713.
The issue presented is whether the U.S. Court of Appeals for Veterans Claims must “ensure that the benefit-of-the-doubt rule,” set forth in 38 U.S.C. §5107(b), “was properly applied during the claims process [to] satisfy 38 U.S.C. §7261(b)(1), which directs the [court] to ‘take due account’ of [the Secretary of Veterans Affairs’] application of that rule.” For over a century, our country has maintained a policy that in the context of veterans benefit claims adjudication, it is the veteran, rather than the Government, who “receives the benefit of the doubt on” close issues. That policy was codified in §5107(b). That section requires that the Secretary, when considering the information and evidence contained in the record, “shall” give the claimant the “benefit of the doubt” “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter . . . .” If a claimant receives an adverse decision before the VA regional office in her pursuit of benefits, she can appeal to the Board of Veterans Appeals and, if unsuccessful again, to the Court of Appeals for Veterans Claims (Veterans Court), which “has exclusive jurisdiction to review Board decisions.” Section 7261(a) sets forth the scope of Veterans Court review. That court decides questions of law; it “set[s] aside or reverse[s] ‘a finding of material fact adverse to the claimant … if the finding is clearly erroneous”; and it will set aside Board decisions deemed “arbitrary, capricious, or contrary to law.” In 2002, Congress enacted §7261(b), which instructs the Veterans Court that, in making its “‘determinations under subsection (a),’ the [court] must ‘take due account’ of the rule of prejudicial error and the Secretary’s application of the benefit-of-the-doubt rule.”
Petitioners Joshua Bufkin and Norman Thornton separately filed for disability benefits with the VA, claiming service-related PTSD. Each was unsuccessful in the lower proceedings (regional office, Board, and Veterans Court). In Bufkin’s case, the benefit-of-the-doubt rule was not applied because the Board concluded “that the preponderance of the evidence weighed against” Bufkin’s claim, rendering the rule inapplicable. Although the rule was applied in Thornton’s case, he nevertheless was aggrieved because he did not receive the particular disability rating that he sought. Petitioners appealed to the Federal Circuit to “challenge[ ] the Veterans Court’s interpretation of §7261(b)(1).” In Bufkin’s case, one panel of the court held “that ‘the Veterans Court applied the appropriate standard of review, clear error, and properly took account of the Board’s application of the benefit of the doubt rule.’” 75 F.4th 1368. Another panel of the court (in an unpublished opinion) relied on the Bufkin decision in rejecting Thornton’s interpretation of §7261(b)(1), and affirmed the Veterans Court decision. “Summarizing its combined holding reflecting both cases, [the panel in Thornton’s case] announced the following interpretation of §7261(b)(1): the statutory command that the Veterans Court take due account of the benefit of the doubt rule does not require the Veterans Court to conduct any review of the benefit of the doubt issue beyond the clear error review required by §7261[(a)], and if no issue that touches upon the benefit of the doubt rule is raised on appeal, the Veterans Court is not required to sua sponte review the underlying facts and address the benefit of the doubt issue.” (Internal quotation marks omitted.)
Petitioners argue that the Federal Circuit misinterpreted §7261(b)(1)’s plain text. Instead, petitioners argue, the statute’s text requires the Veterans Court to “ensure that the Secretary correctly applied the benefit-of-the-doubt rule” such that, “if the evidence on any material issues is in approximate balance, the issue [is] resolved in the claimant’s favor.” “Here, that means that the Veterans Court should have ‘reviewed the record’ in [petitioners’] cases, assessed whether there were any material issues for which the evidence was in ‘approximate balance,’ ensured that those issues were resolved in the veterans’ favor, and determined the proper disposition of each appeal in light of that inquiry.” According to petitioners, this review is entirely separate from the obligations imposed on the Veterans Court in subsection (a) of §7261 and must be addressed “even if the claimant does not raise any issue touching on it.” Petitioners further argue that the Federal Circuit’s misinterpretation of §7261(b)(1) “frustrates Congress’s clear intent,” as evidenced in the legislative history, to address the pre-2002 “‘perceived lack of searching appellate review of [Board] decisions’ and persistent ‘failure to consider the benefit of the doubt rule.’”
In response, the Secretary agrees that §7261’s text is plain; but he argues that petitioners’ argument contravenes it. The Secretary argues that the Federal Circuit correctly held that §7261(a) and (c) limit the scope of the Veterans Court’s review. Applying those subsections in the present case “means that the Veterans Court may determine whether the Board committed clear error in its application of the benefit-of-the-doubt rule. And if the court finds such error, it may, in appropriate circumstances, ‘reverse’ the Boad’s decision rather than remanding it.” Contrary to petitioners’ argument, “the Veterans Court is authorized to consider the benefit-of-the-doubt rule only when ‘making the determinations under subsection (a),’ 38 U.S.C. 7261(b), and those determinations may be made only ‘to the extent necessary to the Veterans Court’s decision ‘and when presented,’ 38 U.S.C. 7261(a).” Section 7261(b)(1) does not “impose[ ] a freestanding requirement that the Veterans Court address the Secretary’s application of the . . . rule even if the claimant does not raise any issue touching on it.” The Secretary adds that, even if the statute’s legislative history were relevant here, it does not support petitioners’ argument “that Congress intended to create a different or additional standard of review for the Veterans Court’s review of the Secretary’s benefit-of-the-doubt determination.”
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
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