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Supreme Court Update: Bouarfa v. Mayorkas (No. 23-584)
This week saw the first โrealโ decision of the term (that is, an opinion in an argued case), a unanimous affirmance in Bouarfa v. Mayorkas (No. 23-583), holding that federal courts lack jurisdiction to review the discretionary decision of U.S. Citizenship and Immigration Services (USCIS) to revoke an approved visa petition based on a so-called โsham-marriage determination.โ
Petitioner Amina Bouarfa is a U.S. citizen who filed a visa petition for her noncitizen spouse, Alaโa Hamayel. The Immigration and Nationality Act (INA) generally requires USCIS to approve a visa petition if it determines that the facts stated in the petition are true. However, under the โsham-marriage bar,โ 8 U.S.C. ยง 1154(c), if the noncitizen spouse has previously sought any immigration benefit โby reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws,โ then USCIS must deny the petition. Here, USCIS initially approved Bouarfaโs petition, but later gave notice of its intent to revoke that approval based on evidence suggesting Hamayel had previously entered into a marriage with another citizen for the purpose of evading immigration laws. Though Bouarfa and Hamayel disputed this, USCIS ultimately revoked the approval pursuant to its authority under 8 U.S.C. ยง 1155, which permits it to โrevoke the approval of any petitionโ for โwhat [the Secretary of Homeland Security] deems to be good and sufficient cause.โ The Board of Immigration Appeals affirmed, concluding that the fact that Bouarfaโs petition would have been denied had the USCIS known of Hamayelโs earlier sham marriage constituted โgood and sufficient causeโ for the later revocation. Bouarfa challenged the revocation in federal court, but the District Court dismissed the case, concluding that it lacked jurisdiction pursuant to 8 U.S.C. ยงโฏ1252(a)(2)(B)(ii), which strips federal courts of jurisdiction over certain discretionary agency decisions. The Eleventh Circuit affirmed, deepening a circuit split over whether federal courts have jurisdiction to review the revocation of prior visa approvals.
The Supreme Court affirmed, confirming that ยง 1252(a)(2)(B)(ii) strips federal courts of jurisdiction over visa revocations because they are discretionary determinations. Writing for the unanimous Court, Justice Jackson stressed that the revocation provision, ยงโฏ1155, โis a quintessential grant of discretion to the Secretary.โ It states that the Secretary (through USCIS) โmayโ revoke a previously approved petition โat any timeโ for โwhat he deems to be good and sufficient cause.โ In granting this authority, Congress did not prescribe limitations or conditions or otherwise dictate how or when the Secretary must act. This broad and grant of authority thus โcommitsโ the matter of revocation โto agency discretion.โ Bouarfa argued that, while some revocations may be discretionary, the revocation here was not, because the sham-marriage bar requires USCIS to deny a visa petition if there is evidence that the noncitizen spouse has previously entered into a sham marriage to evade immigration laws. Jackson countered that the sham-marriage bar only compels USCIS to deny a petition where there is evidence of a previous sham marriage; it does not extend โbeyond the point of approvalโ to compel USCIS to revoke a petition that it had already granted. That USCIS always, as a practical matter, revokes petitions if it later makes a sham-marriage determination is of no consequence, Jackson concluded, because โCongress did not make the availability of judicial review dependent on agency practice.โ
As this case illustrates, Congressโs decision to strip federal courtsโ jurisdiction over discretionary decisions may lead to unusual results. Here, for example, if USCIS had initially denied Bouarfaโs petition based on the sham-marriage bar, then she would have been able to challenge the decision because USCIS lacks discretion to approve an application where there is evidence of prior marriage fraud. But, as Justice Jackson pointed out, this simply โreflects Congressโ choice to provide reduced procedural protection for discretionary relief.โ