Banuelos

On December 10, 2024, the Unites States Supreme Court decided the Bouarfa v. Mayorkas (2024) case that was argued on October 15, 2024. The question presented was whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of non-discretionary criteria. The question addressed was whether revocation under 8 U. S. C. §1155 qualifies as a decision “in the discretion of ” the Secretary such that it falls within the purview of a separate statute—§1252(a)(2)(B)(ii)—that strips federal courts of jurisdiction to review certain discretionary actions. Justice Jackson delivered the opinion for a unanimous Court, siding with Mayorkas, where they held that revocation of an approved visa petition under §1155 based on a sham-marriage determination by the Secretary is the kind of discretionary decision that falls within the purview of §1252(a)(2)(B)(ii), which strips federal courts of jurisdiction to review certain actions “in the discretion of ” the agency.

Background: Amina Bouarfa, a United States citizen, began the process of obtaining permanent legal residence for Ala’a Hamayel, her noncitizen spouse, by completing a visa petition with the U.S. Citizenship and Immigration Services (USCIS). Relevant here, if USCIS determines that the facts stated in the petition are true and that the noncitizen is the petitioner’s spouse, then USCIS “shall . . . approve” a visa petition. 8 U. S. C. §1154(b). If the noncitizen has previously sought or received an immigration benefit “by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws,” the agency must deny the petition. §1154(c).

Initially, the USCIS approved Bouarfa’s visa petition, however, two years later, the agency sent Bouarfa a Notice of Intent to Revoke its approval based on evidence suggesting that Ala’a Hamayel had previously entered into a marriage for the purpose of evading immigration laws. The Secretary of Homeland Security revoked its prior approval applying its statutory authority under §1155 to “revoke the approval of any petition” “for good and sufficient cause.” The Board of Immigration Appeals affirmed the revocation. Bouarfa challenged the agency’s revocation in federal court. The District Court dismissed the suit, holding that §1252(a)(2)(B)(ii)—a provision that strips federal courts of jurisdiction to review certain discretionary agency decisions—barred judicial review of the agency’s revocation. The United States Court of Appeals for the Eleventh Circuit affirmed.

Reasoning: The Supreme Court highlighted two key points: (a) the discretionary nature of §1155 and (b) Bouarfa’s argument against the discretionary nature of revocation and its rejection by the Court.

Concerning the discretionary nature of §1155, Section 1155 grants the Secretary of Homeland Security the authority to revoke an approved visa petition “at any time” for what the Secretary deems to be “good and sufficient cause.” The Court emphasized that the language of the statute uses the word “may,” which clearly indicates discretion rather than a mandatory action. The Court found that §1155 is a quintessential grant of discretion, similar to other statutes that give broad authority to administrative agencies. In this case, the absence of any limitations or specific criteria imposed by Congress meant that the Secretary had significant leeway in deciding whether to revoke a visa petition.Contextual analysis of related provisions further supported the conclusion that the decision under § 1155 was discretionary. For instance, §1252(a)(2)(B)(i) bars judicial review of certain decisions by the Attorney General, and §1155 contains similar language regarding discretion. This reinforced the Court’s view that the revocation decision falls within the scope of §1252(a)(2)(B)(ii).

Concerning Bouarfa’s argument against the discretionary nature of revocation, Bouarfa contended that the revocation was not discretionary, arguing that once the Secretary approves a visa petition, the Secretary must revoke the approval if it is later determined that the beneficiary had entered into a sham marriage. The Court rejected this argument for several reasons: (1) the text of §1154(c) does not create an ongoing duty for the agency to reassess approval; (2) Congress did not mandate revocation upon discovery of a sham marriage; and (3) precedent does not support Bouarfa’s Interpretation.

First, the Court clarified that §1154(c), which bars approval of petitions in cases of sham marriages, does not impose an ongoing responsibility on the agency to continually reassess its initial decisions. §1154(c) applies only at the time of approval, and the agency is not required to revisit its past decisions unless new information arises. The Court explained that each stage of the visa process has its own criteria, and §1155 specifically grants the Secretary discretion to revoke approval if new, sufficient evidence emerges, such as the discovery of a sham marriage.

Second, the Court also rejected Bouarfa’s assertion that the Secretary is required to revoke a petition whenever a sham marriage is discovered. The Court emphasized that §1252(a)(2)(B)(ii) does not make judicial review contingent on how the agency acts in practice, but rather on whether the statute grants discretionary authority. Since §1155 provides the Secretary with discretionary authority to revoke a visa petition, this discretion is not limited by any presumed mandate to revoke upon discovering a sham marriage. The Court pointed out that Congress likely designed the system such that a sham-marriage determination may be subject to judicial review when a visa petition is denied but not when a prior approval is revoked. This distinction reflects Congress’s choice to provide reduced procedural protections for discretionary agency decisions.

Third, the Court further explained that previous precedent, such as Patel v. Garland (2022), does not support Bouarfa’s argument. In Patel, the Court dealt with discretionary decisions that involved specific thresholds, but §1155 does not impose such thresholds. Instead, it provides a broad grant of discretion to the Secretary to revoke a petition without additional procedural conditions. The Court reaffirmed that judicial review of agency action may be limited by “clear and convincing evidence” of congressional intent to preclude it, and in this case, the statute’s language was clear enough to overcome any presumption in favor of judicial review.

Reflection: What implications does the outcome of Bouarfa v. Mayorkas have for international marriages, specifically those between a U.S. citizen and a non-U.S. citizen? In short, this case reinforces the discretionary power of U.S. immigration agencies, particularly USCIS and the Secretary of Homeland Security, in deciding whether to revoke visa petitions based on the discovery of sham marriages. For international marriages, this decision means that visa petitions can be revoked at any time based on new evidence of fraud, and judicial review of these revocations is extremely limited. Couples need to be aware of the potential for increased scrutiny and documentation requirements throughout the immigration process, as well as the reduced legal recourse available if a visa petition is revoked.

Conclusion: The key points to take away are: (1) The U.S. government has the discretionary power to revoke a previously approved visa petition if evidence of a sham marriage is discovered. This power is granted under 8 U.S.C. §1155, which allows the Secretary of Homeland Security to revoke approval “for good and sufficient cause” at any time; (2) The ruling affirms that federal courts cannot review the decision to revoke a visa petition based on a sham-marriage determination, due to the jurisdictional bar in 8 U.S.C. §1252(a)(2)(B)(ii), which restricts judicial review of discretionary decisions made by immigration authorities; (3) The decision places increased, or heightened, scrutiny on the legitimacy of marriages in the immigration process. Noncitizen spouses will need to prove that their marriage is genuine and not entered into for the purpose of evading immigration laws; (4) The revocation of a visa petition can block or delay the noncitizen spouse’s path to permanent residency. This can potentially prevent them from progressing in the green card application process; (5) The ruling signals that immigration agencies may conduct more rigorous investigations into marriage-based visa petitions. The government has broad discretion to revoke petitions and is not bound by strict procedural rules, making it easier for authorities to act based on suspicions of fraud; and (6) International couples must be prepared to provide comprehensive documentation of their genuine relationship, such as joint financial records and shared experiences, to prevent their marriage from being flagged as fraudulent by immigration authorities.