Homeland Security Secretary Alejandro Mayorkas urged the Supreme Court on Aug. 26 to uphold the cancelation of the visa of a Palestinian man who married a U.S. citizen and then was accused of a sham marriage.
The new brief previews oral arguments the federal government will make when the court hears the case, Bouarfa v. Mayorkas, on Oct. 15.
DHS determined that Hamayel had attempted to pass off a previous marriage of his as legitimate to obtain a green card, that is, permanent resident status. Because he was found to have engaged in fraud before, the current marriage to Bouarfa was deemed fraudulent, and his visa, which had been approved, was revoked.
DHS argues its ruling is “discretionary” and cannot be challenged in the courts. Federal courts of appeal disagree on whether such decisions can be reviewed by courts.
Three years after they married, Bouarfa filed an immigration petition seeking to classify her husband as an immediate relative, which would make him eligible for adjustment to permanent resident status.
In January 2015, Citizenship and Immigration Services (CIS), an agency within DHS, approved the wife’s petition.
Later, in March 2017, CIS revoked the approval, saying it erred in approving the petition “because there was substantial and probative evidence that Mr. Hamayel entered his first marriage for the purpose of evading immigration laws,” Bouarfa said in her Supreme Court petition.
Bouarfa presented evidence that she argued showed the previous marriage was legitimate but in June 2017 the agency affirmed the revocation.
She appealed to the Board of Immigration Appeals, which upheld the CIS decision in December 2021, finding federal law barred approval of the immigration petition.
In January 2022, Bouarfa sued in a federal district court in Florida, but that court threw out the complaint.
The court noted that CIS had revoked Bouarfa’s petition under 8 U.S. Code Section 1155, but said that section was “not the only relevant provision here,” because CIS “clearly stated it based its revocation on” Section 1154(c).
Because Section 1154(c) imposes “discretionless obligations,” the court reasoned, if CIS had denied the visa petition “in the first instance—as mandated by [Section] 1154(c)—that denial would have been subject to judicial review.”
But Bouarfa argued in her Supreme Court petition that the case was “complicated” by the fact that CIS first approved the immigration petition and later rescinded the approval. The district court believed incorrectly that it was “bound to follow” nonprecedential U.S. Court of Appeals for the 11th Circuit cases, indicating that the revocation of a visa petition was a “discretionary decision insulated from judicial review.”
The 11th Circuit then affirmed the district court in July 2023, finding that Section 1155 bars judicial review of the case and that revocations are “discretionary—no matter the basis for revocation.”
Section 1154(c)(1) says a visa petition must be denied if the agency finds the noncitizen ever “sought” or has “been accorded” immigration benefits “by reason of a marriage determined … to have been entered into for the purpose of evading the immigration laws.”
Such a petition “may” be revoked “at any time” when the DHS secretary finds there is cause to do so.
Moreover, 8 U.S. Code Section 1252(a)(2)(B)(ii) precludes judicial review of “any … decision or action” that is “specified under” Title II of the Immigration and Nationality Act “to be in the discretion of the … Secretary of Homeland Security,” including revocation of a petition for an immigrant visa.
“The plain terms of those provisions foreclose judicial review of the Secretary’s discretionary decision to revoke the previous approval of an immigrant visa petition.”
The Epoch Times reached out for comment to Bouarfa’s attorney, Samir Ibrahim Deger-Sen of Latham and Watkins in New York City, but no reply was received by publication time.
The policy change allows illegal immigrants who are adults and married to citizens to remain in the country while seeking legal status. Spouses must have resided in the United States for a minimum of 10 years as of June 17.
The White House said the policy would shield about 500,000 spouses of U.S. citizens as well as about 50,000 children of a parent married to a U.S. citizen.
