Bouarfa v. Mayorkas: Homeland Security’s discretionary authority to revoke a previously-approved visa application is not subject to judicial review
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
The statute which states that the Secretary of Homeland Security “may, at any time” revoke prior approval of a visa petition “for what he deems to be good and sufficient cause” means federal courts do not have authority to review that discretionary decision, the U.S. Supreme Court ruled December 10 in Bouarfa v. Mayorkas, its first immigration opinion of its 2024-25 Term.
Amina Bouarfa is a U.S. citizen, who married Ala’a Hamayel, a noncitizen from the Middle East.
Bouarfa filed a visa petition on her husband’s behalf. The Department of Homeland Security initially approved the visa, but two years later, sent Bouarfa notice that it was revoking the approval because the agency determined it had been erroneously granted.
The agency claimed that, nearly a decade earlier, Hamayel had engaged in a sham-marriage to try to enter the country. The agency claimed that if it had known this, it would have denied the visa petition.
Bouarfa denied the allegations. She appealed the revocation to the Board of Immigration Appeals, which affirmed the denial.
Bourafa then sought review in federal district court. But the district court ruled that 8 U.S.C. Sec. 1252(a)(2)(B)(ii), a jurisdiction-stripping provision, barred judicial review of the agency’s decision.
The 11th Circuit affirmed.
Holding
The Supreme Court affirmed, in a unanimous opinion.
“A common feature of our Nation’s complex system of lawful immigration is mandatory statutory rules paired with discretionary exceptions”, the Court said.
“Whether any given agency decision is mandatory or discretionary matters, because Congress has limited judicial review of many discretionary determinations”, the Court said.
Title 8 U.S.C. Sec. 1155 states that the Secretary “may, at any time,” revoke approval of a visa petition “for what he deems to be good and sufficient cause.”
“The issue we address today is whether revocation under Sec. 1155 qualifies as a decision ‘in the discretion of’ the Secretary such that if falls within the purview of a separate statute – Sec. 1252(a)(2)(B)(ii) – that strips federal courts of jurisdiction to review certain discretionary actions”, the Court said. “We hold that it does.”
“It is clear on the face of Sec. 1155 that the revocation provision is a quintessential grant of discretion to the Secretary”, the Court said.
The use of the word “may” in the statute “clearly connotes discretion”, the Court said.
“Moreover, here, Congress has in no way prescribed how that discretion must be exercised”, the Court said. “There are no conditions that the Secretary must satisfy before he can revoke the agency’s approval”.
“That discretion is a two-way street”, the Court said. “By granting the Secretary discretion to revoke the agency’s approval of a visa petition, Congress has also vested the Secretary with discretion to decline to revoke an approval the agency previously gave.”
“As a general matter, then, this discretion may work to the benefit of visa petition beneficiaries, since rather than tying the agency’s hands by forcing revocation, Congress created ‘room for mercy’”, the Court said.
In passing, the Court noted that, at least in Bourfra’s case, she had another remedy available to her in that she could file another visa petition to challenge the underlying sham-marriage determination. Since another statute provides that the agency “must” deny an applicant who was involved in a sham-marriage scheme, that is a mandatory agency decision which is subject to judicial review by the courts.