The Supreme Court recently cut off another path for judicial review of decisions by U.S. Citizenship and Immigration Services (USCIS) adjudicators. In Bouarfa v. Mayorkas, the Court held that a decision to revoke the prior approval of an immigrant visa petition filed by a U.S. citizen on behalf of her noncitizen spouse could not be reviewed because Congress intended the revocation decision to be completely within the agency’s discretion. The revocation statute says that the secretary of Homeland Security “may, at any time, for what he deems to be good and sufficient cause,” revoke the approval of a family-based or employment-based immigrant visa petition. Yet there is federal district court jurisdiction to review the denial of an immigrant visa petition.
Before the Supreme Court decided Bouarfa, most federal circuit courts of appeals had already decided that district courts were barred from reviewing revocations of immigrant visa petitions, although some made exceptions where the revocation was based on a purely legal issue or a mixed question of law and fact. But judicial review was available in district courts within the Ninth Circuit Court of Appeals (which includes California, Arizona, Washington and six other states, plus two U.S. territories) because the Ninth Circuit concluded that the statutory language “good and sufficient cause” established an objective standard which courts could review. Because the revocation statute applies to immigrant visa petitions beyond a U.S. citizen filing on behalf of their spouse, courts likely will apply the Supreme Court’s decision to bar federal district court review of all decisions by USCIS to revoke immigrant visa petitions.
The Decision
Ms. Bouarfa, a U.S. citizen, had received USCIS approval of an immigrant visa petition filed on behalf of her spouse. But USCIS later revoked the approval, maintaining that the noncitizen spouse’s previous marriage was a “sham” (entered into for the purpose of evading U.S. immigration laws). After failing to overcome the USCIS’ notice of intent to revoke and failing to reverse the revocation at the Board of Immigration Appeals, Ms. Bouarfa filed a lawsuit in federal district court. She argued that USCIS’ revocation was “arbitrary and capricious” because the agency lacked sufficient evidence of a “sham” marriage. The district court granted the government’s motion to dismiss and the Eleventh Circuit affirmed on the ground that the Immigration and Nationality Act bars district court review of USCIS’ decision to revoke the approval of the petition, as a “decision or action” which Congress intends to be in the agency’s discretion.
Ms. Bouarfa argued that because USCIS is required to deny an immigrant visa petition if it finds a “sham” marriage, then USCIS was required to revoke—a nondiscretionary decision—which the district court could review. However, the Supreme Court agreed with the Eleventh Circuit that the text of the revocation statute clearly gave the Secretary discretion whether to revoke, even when USCIS later decides it wrongly approved the petition. The Supreme Court concluded that the requirements for denying an immigrant visa petition did not carry over to the revocation statute.
Even Broader Impact
The Supreme Court also has effectively foreclosed, without truly considering, whether the jurisdictional bar should apply when the noncitizen is not in removal proceedings. Ms. Bouarfa assumed that the jurisdictional bar applied but that the decision was not subject to the bar. The Northwest Immigrant Rights Project, the National Immigration Litigation Alliance, and the American Immigration Council submitted an amicus brief arguing that Congress intended that 8 U.S.C. § 1252, in which the jurisdictional bar relevant to this case and another jurisdictional bar (which the Supreme Court construed in Patel v. Garland) appear, apply only to cases involving removal proceedings. In Bouarfa, the Supreme Court said that it also “assume[d]—without deciding” that the section of the INA containing the two jurisdictional bars applies “when, as here, a noncitizen is neither in removal proceedings nor seeking review of a final order of removal.” Although the Court professes not to decide the issue—which it also did in Patel—it will be difficult to persuade lower courts not to apply the bar when a noncitizen is not in proceedings.
Bouarfa potentially creates major problems for employment-based petitions. Ms. Bouarfa has already filed another immigrant visa petition on her husband’s behalf and if it is denied, she will be able to challenge that denial in federal district court. An employer may find the challenges too daunting to continue sponsoring the noncitizen. For example, the noncitizen may have been working for the employer that filed the immigrant visa petition, or for a subsequent employer, based on employment authorization USCIS issued because the noncitizen was a pending adjustment applicant (for a green card). If USCIS later denies the adjustment application and terminates the work authorization after revoking the immigrant visa petition, the noncitizen likely has no option to remain in the United States and continue their employment. And an employer would then face years without the noncitizen’s services in the United States if U.S. Department of Labor and USCIS approval are required to proceed with new processing. And there could be further delays because the demand for employment-based immigrant visa numbers is greater than the annual limits.
Bouarfa raises the possibility that USCIS could approve an immigrant visa petition and later revoke to avoid accountability. It is disturbing that the Supreme Court continues to bar review when it has not yet fully considered whether these jurisdictional bars should apply outside of removal proceedings at all.
FILED UNDER: Supreme Court, USCIS
