Bouarfa v. Mayorkas

LII note: The U.S Supreme Court has now decided Bouarfa v. Mayorkas

Issues

Can a visa petitioner challenge an immigration visa revocation decision in court if the revocation is based on the incorrect application of non-discretionary criteria?

The questions for the Supreme Court to consider are: first, whether USCIS can revoke a visa petition on discretionary grounds based on non-discretionary reasoning; second, whether courts can examine this decision to revoke a visa petition; and third, whether an applicant can order a review of a court’s petition denial. Petitioner Amina Bouarfa argues that courts should be able to review discretionary USCIS decisions where the premise for the decision is non-discretionary, and that an applicant is entitled to a court review these decisions. Respondents Alejandro Mayorkas and the Department of Homeland Security counter that the plain statutory language of immigration law prohibits Article III court review of these discretionary decisions; and, instead, USCIS has control over reviewing and reversing immigration decisions. The outcome of this case will influence the balance of power between the executive and judicial branches.

Questions as Framed for the Court by the Parties

Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of non-discretionary criteria.

Facts

In 2014, Petitioner Amina Bouarfa, a U.S. citizen, filed an I-130 immediate relative visa petition with U.S. Citizenship and Immigration Services (“USCIS”) a division of the Department of Homeland Security (“the agency”), on behalf of her husband, Ala’a Hamayel, a noncitizen from Palestine. Upon approval from USCIS, an I-130 petition allows a U.S. citizen to classify a non-citizen as an immediate relative, which then makes the non-citizen eligible for permanent immigration status. The petition was approved by the agency in 2015. In 2017, the agency revoked Bouarfa’s petition based on testimony from Hamayel’s ex-wife that Hamayel had previously entered into a marriage to secure his legal immigrant status in the U.S., also known as a “sham marriage.” Noncitizens who have entered into a sham marriage may not obtain a petition approval under 8 U.S.C. § 1154(c) .

Bouarfa appealed the USCIS’s revocation decision to the Board of Immigration Appeals ("the Board") , but the Board upheld determination, concluding that Bouarfa’s initial I-130 approval was made in error. Bouarfa then brought suit against the Secretary of Homeland Security Alejandro Mayorkas and the Director of Citizenship and Immigration Services in the United States District Court for the Middle District of Florida , alleging that Hamayel’s previous marriage was not a sham. Mayorkas filed a motion to dismiss for lack of subject-matter jurisdiction , which the district court granted. In granting Mayorkas’s motion, the district court reasoned that all revocations under 8 U.S.C. § 1155 , including the USCIS’s revocation determination, are unreviewable under Eleventh Circuit precedents.

Bouarfa then appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit . The appellate court affirmed the district court’s decision. The court rejected Bouarfa’s argument that USCIS revocations under § 1155 are subject to judicial review , citing the statute’s language, including the terms “may,” “at any time,” and “what he deems to be good and sufficient cause.” The court held that USCIS’s decision is discretionary because it was based on the Secretary’s determination of “good and sufficient cause,” and thus, judicial review is barred.

Bouarfa petitioned for a writ of certiorari , which the Supreme Court granted on April 29, 2024. .

Analysis

JUDICIABILITY OF A REVOCATION DETERMINATION

Bouarfa argues that USCIS’s determination to revoke visa approval is subject to judicial review because it is non-discretionary. Bouarfa contends that 8 U.S.C. § 1252(a)(2)(B)(ii) , which bars judicial review of the Secretary of Homeland Security’s discretionary decisions or actions, applies only to discretionary decisions or actions–those ­left to the “judgment of the Executive branch.” Thus, Bouarfa asserts that the statute does not preclude judicial review of non-discretionary decisions or actions, such as those mandated by statutes. Bouarfa asserts that USCIS’s determination to revoke visa approval is non-discretionary because USCIS is obligated by law to decide whether to approve or deny a petition. Bouarfa further argues that agencies itself have previously viewed sham marriage revocations as mandatory.

Bouarfa also contends that the Eleventh Circuit wrongly concluded that all USCIS revocation decisions are discretionary simply because USCIS “can decide to revoke as a matter of discretion.” Bouarfa argues that while § 1155’s phrase “good and sufficient cause” allows USCIS to revoke a decision when it has a good reason, it does not preclude the agency from being obligated to revoke under circumstances. According to Bouarfa, statutory law can still mandate USCIS to revoke a decision when necessary. Bouarfa alleges that 8 U.S.C. § 1154 mandates revocation in certain situations.

Mayorkas argues that revocation determinations are judicially unreviewable because they fall within the agency’s discretion. Mayorkas contends that the plain statutory language clearly bars judicial review of discretionary decisions. Mayorkas alleges that all revocation decisions by the Secretary are discretionary under 8 U.S.C. § 1155 , which states that the Secretary “may…revoke the approval of any petition…for good and sufficient cause.” Mayorkas asserts that this language shows the broad discretion granted to the Secretary in all revocation decisions.

Mayorkas further argues that any attempt by Bouarfa to challenge the unreviewability of § 1155 revocations would contradict the near-unanimous rulings of the courts of appeals. Mayorkas points out that the Bouarfa relies on a Ninth Circuit case that elevates “good cause” over the statutory terms “may” and “deem” within § 1155. However, Mayorkas claims that other Courts of Appeals prioritize the latter, which shows an ongoing disagreement in interpretation. Mayorkas also criticizes Bouarfa’s reasoning based on the agency’s practice or view. Mayorkas contends that arguments based on that reasoning lack merit, as the discretion of a decision under § 1252(a)(2)(B)(ii) is determined by the statute, not by regulations or agency practices.

JUDICIABILITY OF UNDERLYING DETERMINATIONS

Bouarfa maintains that even if the action to revoke is discretionary, the statute still does not bar review of the underlying decisions that lead to ultimate discretionary action. Bouarfa explains that visa revocation determinations involve two steps: (1) a visa-eligibility determination, which is non-discretionary, and then (2) an ultimate action to revoke, which is discretionary. Bouarfa argues that the eligibility determination which underlies the ultimate action to revoke is non-discretionary, even though it leads to a discretionary action. Thus, Bouarfa contends that an underlying decision to reconsider nondiscretionary approval criteria are subject to judicial review.

Bouarfa also argues that Respondents misread Patel v. Garland ’s definition of “any . . . decision” to mean all agency judgments to revoke the previous approval of a visa petition under § 1155. Bouarfa explains that the Patel court confined the meaning of “any judgment” to only judgments about judicial review covered by § 1252(a)(2)(B)(i), rather than all agency judgments. Bouarfa argues that if Patel were applied to non-discretionary judgments, it would lead to non-discretionary statutes affecting other types of court cases. According to Bouarfa, this in turn would render other statutes inapplicable, leading to the preclusion of underlying questions in other types of cases.

Mayorkas counters that judicial review of any underlying determination is statutorily barred. Mayorkas maintains that there is no textual basis to support Congress’ intent to allow judicial review of such underlying determinations. Mayorkas further argues that Bouarfa’s position relies on Supreme Court cases that do not address the relevant statutory language. Mayorkas further asserts that Bouarfa’s contention that questions of law are reviewable is irrelevant as this case involves a question of fact.

Finally, Mayorkas asserts that the Government’s position in Patel is not precedential, because the Supreme Court ruled against them. Mayorkas adds that Patel only allows judicial review of non-discretionary decisions when they are intertwined with discretionary decisions. Mayorkas then argues that even if the Government’s oral argument was precedential, Bouarfa misinterprets it because the argument merely stated that courts must determine where discretion lies under the law. According to Mayorkas, Patel affirmed that the agency has the power to make discretionary decisions without interference from Article III courts seeking non-discretionary alternatives.

INTERPRETING THE CONGRESS INTENT

Bouarfa asserts that the Eleventh Circuit’s ruling leads to a large discrepancy between the requirements for revoking a visa and granting a visa. . Bouarfa argues that the Eleventh Circuit’s decision leads to a precedent of the prohibition of judicial review when reviewing a visa revocation but allows judicial review when reviewing an initial visa application, even though the criteria for both are identical. Therefore, Bouarfa asserts that the Eleventh Circuit’s decision should be reversed to allow for a more logical reading of the statute. Bouarfa additionally points out that if Congress had intended to disallow judicial review in initial decisions but allow it in revocation decisions, it would have developed textual differences between the visa revocation process and the statute regarding the initial visa review process. Instead, the languages in both statutes are identical.

Mayorkas argues that the Eleventh Circuit correctly interpreted the statute. . He asserts that Congress had valid reasons for limiting Administrative Procedure Act (APA) review to visa petitions, as allowing broader review could result in procedurally unreasonable situations, such as simultaneous hearings. Mayorkas contends that, unlike the case cited by Bouarfa, which argues against textual interpretations that create inconsistencies, the statute in question does not contain any language suggesting such a mismatch. Furthermore, any illogical outcomes that arise are merely procedural, not substantive. Mayorkas maintains that judicial review of visa petitions is not implied simply because the statute does not explicitly bar it; the statute does not reference judicial review of visa petitions at all. As a result, Mayorkas concludes that visa petitions must also meet the additional requirements set by the APA to be reviewable, which they do not.

Discussion

PREVENTING ABUSE OF POWER BY USCIS THROUGH CHECKS AND BALANCES

In support of Bouarfa, the Northwest Immigrant Rights Project (“NWIRP”) and others argue that affirming the Eleventh Circuit ’s decision would reduce the checks and balances between the executive branch and the judicial branch . This, in turn, would encourage U.S. Citizenship and Immigration Services (“USCIS”) to make decisions about immigration status outside the permissibility of the law. In support of Bouarfa, Former Executive Office for Immigration Review Judges (“EOIR Judges”) highlight that judicial review provides a layer of protection to ensure that USCIS’s immigration decisions follow the law. EOIR Judges point out that there is a history of significant errors made by an overburdened USCIS, which were corrected only when courts reviewed the decisions. In a similar vein, the American Immigrant Investor Alliance (“AIIA”) and others suggest that USCIS often retroactively applies new policies and interpretations of policies to pending cases, and some of these agency interpretations are flawed and unlawful. AIIA and others allege that this problem can be resolved by frequent review by Article III courts.

Mayorkas argues there is no evidence that affirming the Eleventh Circuit’s decision would lead to the policy concerns highlighted by Bouarfa. Mayorkas maintains that it is unnecessary to have an Article III court review a revoked I-130 petition when an immigrant petitioner can simply reapply through USCIS. Mayorkas points out that having an Article III court review a revoked petition while USCIS looks at the reapplied petition would waste government resources. Mayorkas maintains that allowing Article III review would also overburden USCIS because USCIS would have to participate in litigation. Further, Thomas Fuller Ogden, esq. (“Ogden”) points out there are laws separate from those in question which already prevent USCIS from knowingly manipulating procedure to avoid judicial review. Therefore, Ogden argues, Petitioner’s policy concerns are not relevant to the current case.

PROTECTION OF THE RIGHTS OF IMMIGRANTS

The American Civil Liberties Union and the ACLU of Florida argue that affirming the Eleventh Circuit’s decision would prevent courts from reviewing the reasoning behind USCIS’s decisions, potentially allowing racial stereotypes or prejudices to influence immigration petition decisions. In support of Bouarfa, the National Immigrant Justice Center (“NIJC”) and others argue that the possibility of judicial review prompts USCIS to base its decisions on facts rather than non-factual grounds. NIJC and others follow that immigrants, as a vulnerable group, are significantly impacted by decisions based on non-factual considerations. For example, in support of Bouarfa, Administrative and Immigration Law Professors emphasize that a USCIS ruling determining that an immigrant entered a sham marriage has lasting consequences, affecting both current and future petitions.

In support of Mayorkas, Ogden argues that affirming the Eleventh Circuit’s decision would not increase the risk of USCIS acting to avoid review of decisions based on non-factual grounds. Ogden argues instead that affirming the Eleventh Circuit’s decision would allow USCIS to correct agency oversights. Ogden maintains that in cases where USCIS acts “nefariously”, including seeking to deny petitions for unlawful reasons, immigrants can still obtain justice by seeking judicial review. Further, Ogden also highlights recent changes to the I-130 disclosure procedure making it easier for courts to identify which USCIS decisions warrant review.

Conclusion

Authors

Written by Zachary Jacobson and Johanna Hussain

Edited by Sean Lee

Additional Resources