The Supreme Court decided this week to consider whether the U.S. government can revoke an immigration visa after it determines the immigrant’s marriage to a U.S. citizen is a sham.
The U.S. Department of Homeland Security (DHS) rescinded a Palestinian man’s visa after it found he previously attempted to pass off another one of his marriages as legitimate in order to obtain a green card. Because he allegedly engaged in fraud before, the current marriage was deemed fraudulent, and his visa, which had been approved, was rescinded.
DHS argues its ruling is “discretionary” and cannot be challenged in the courts. Federal courts of appeal disagree on whether such decisions can reviewed by courts.
The court is expected to hear the case in its new term, which will begin in October.
The respondent is Alejandro Mayorkas, the secretary of the U.S. Department of Homeland Security.
The petitioner, Amina Bouarfa, a U.S. citizen, married noncitizen Ala’a Hamayel from Palestine. They produced three children, all of whom are U.S. citizens, according to Ms. Bouarfa’s petition.
Around three years after they married, Ms. Bouarfa filed what’s known as a Form I-130 petition seeking to classify her husband as an immediate relative, which would make him eligible for adjustment to permanent resident status.
On Jan. 6, 2015, U.S. Citizenship and Immigration Services (CIS), an agency of DHS, approved the wife’s petition. Then, on March 1, 2017, CIS issued a Notice of Intent to Revoke regarding its approval of the immigration petition. The agency said “it never should have approved [the] I-130 petition in the first place because there was substantial and probative evidence that Mr. Hamayel entered his first marriage for the purpose of evading immigration laws.”
The agency also said that if it had taken “into account a previous finding that Mr. Hamayel had entered into a sham marriage,” it would not have “initially granted the petition.”
Ms. Bouarfa responded to the notice, presenting evidence purporting to show that her husband’s previous marriage was legitimate, but on June 7, 2017, the agency formally revoked approval of the immigration petition, citing its prior “sham marriage” finding.
She filed an appeal with the Board of Immigration Appeals, which was dismissed on Dec. 1, 2021. The board affirmed CIS’s decision, holding federal law barred approval of the petition and crediting statements about Mr. Hamayel’s prior marriage that were later retracted, according to the petition filed with the Supreme Court.
On Jan. 27, 2022, Ms. Bouarfa filed a legal complaint in federal court in Florida, requesting a review of the board’s decision under the Administrative Procedure Act. The federal district court threw out the complaint, ruling it lacked subject-matter jurisdiction.
The court noted that CIS had revoked Ms. 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) “‘impose[s] 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 the case was “complicated” by the fact that CIS first approved Ms. Bouarfa’s petition and later revoked its 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,” according to the court petition.
A panel of the 11th Circuit then affirmed the lower court ruling. It found that federal law precludes judicial review of the revocation of a visa under Section 1155 and revocations made under the section are “discretionary—no matter the basis for revocation.”
“The conflict has far-reaching consequences in an area of the law with life-altering implications,” Ms. Bouarfa’s petition stated.
CIS’s decision “to initially grant, and then revoke approval of, petitioner’s application means that she will suffer the unconscionable choice between moving her U.S.-born children to Palestine, or forcing her children to live permanently separated from their father.”
The court’s “review of the question presented is not warranted at this time,” she wrote, urging that the circuit court decision be upheld.
The Bouarfa case comes as the Supreme Court is deliberating another immigration visa case.
The justices seemed open during oral arguments on April 23 to the possibility of allowing U.S. citizens whose spouses were denied immigrant visas a narrowly defined opportunity to challenge those denials in court.
The case, Department of State v. Munoz, concerns the doctrine of “consular nonreviewability,” which is the legal principle that a consular official’s decision to refuse a visa to a foreigner is not subject to judicial review.
Limiting the doctrine would harm the immigration system and cripple its ability to process applications, supporters of the nonreviewability principle say. Opponents, such as those who favor expanded immigration, say relaxing it respects constitutional rights and the institution of marriage.
The case goes back to 2005 when Luis Asencio-Cordero, a Salvadoran citizen, first arrived in the United States. U.S. citizen Sandra Munoz married him in 2010, and together, they had a child who is a U.S. citizen. The husband was in the United States illegally.
Ms. Munoz sponsored her husband for a U.S. immigration visa. In 2015 he returned to his native El Salvador to obtain the visa. At the initial interview abroad, he was subjected to a body search. The visa was denied because the Department of State found that Mr. Asencio-Cordero was criminally admissible.
The department ruled that he was a member of the MS-13 criminal organization, an accusation the husband denied.
The court is expected to rule on Department of State v. Munoz by the end of June.
