The Supreme Court closed a major immigration loophole Tuesday by ruling that the Department of Homeland Security Secretary has discretion to revoke visa restrictions without judicial review.
In a 12-page unanimous decision written by Justice Ketanji Brown Jackson, the court ruled in Bouarfa v. Mayorkas that Congress granted under 8 U.S.C. §1154(b) the DHS Secretary "broad authority to revoke an approved visa petition at any time, for what he deems to be good and sufficient cause." Such a revocation, Jackson wrote, is thus "in the discretion of " the agency and Section 1252 of the Immigration and Nationality Act "bars judicial review of the Secretary's revocation."
The case involves Amina Bouarfa, a U.S. citizen with three children, who married Ala'a Hamayel, a Palestinian national, in 2011. According to court records, Bouarfa sought permission for her husband to remain in the U.S. permanently, and U.S. Citizenship and Immigration Services approved her petition in 2015.
But two years later, the agency notified the couple it planned to revoke Hamayel's visa after uncovering evidence that he allegedly entered into a previous "sham" marriage to evade immigration laws. The agency said had it known of such information when it received Bouarfa's petition, it would have denied it. Sham marriages permanently bar individuals from remaining legally in the country.
A federal district court in Florida dismissed her appeal, concluding, like the Supreme Court did, that revoking a petition for a visa is purely discretionary by immigration officials, which Congress has stripped courts of the power to review, SCOTUSBlog reported.
The U.S. Court of Appeals for the 11th Circuit affirmed that decision, ruling that federal officials can revoke their approval of a petition at any time "for good and sufficient cause." Even if a petition should have originally been denied for a nondiscretionary reason, the 11th Circuit ruled, a decision to revoke it later is an exercise of discretion – one that federal courts cannot review.
Because the initial determination could be reviewed by courts, but the revocation couldn't, it didn't matter, Jackson wrote. Discretion "is a two-way street," she wrote, meaning that once DHS was made aware of the sham marriage after the pre-approval, it "can revoke that approval" or "let the error stand."
"Congress created 'room for mercy'" and courts can't second-guess that, Jackson wrote.
The Supreme Court heard oral arguments in October.