Visa Revocation Ruling From High Court Limits Applicant Options

A US Supreme Court decision rejecting the appeal of a green card revocation for a citizen’s spouse adds to limits on court review of government decisions and will affect a range of immigrant visa applicants, including businesses sponsoring foreign workers.

Amina Bouarfa, a US citizen, sued US Citizenship and Immigration Services after the agency revoked a visa petition for her husband Ala’a Hamayel based on evidence of a previous sham green card marriage. Although the couple contested that evidence, the high court unanimously held in a Dec. 10 decision that a visa revocation is a discretionary agency decision not subject to judicial review.

Their decision precludes a major avenue for immigrants and their sponsors to seek review of agency decisions that was previously available in some appellate courts. But just how broadly the ruling will apply in the employment-based visa realm may require further litigation to clarify.

Bouarfa v. Mayorkas follows a divided 2022 decision in Patel v. Garland in which the court found that review of discretionary decisions was barred even in cases involving factual disputes. Although the ruling in Bouarfa allowed that judicial review would be available in the case of a visa denial, the decision to later rescind the approved visa was completely up to the discretion of the secretary of homeland security.

The case applies equally to immigrant visa petitions, and means applicants would have to go through the application process again to get a straightforward denial they can challenge, said Charles Kuck, an immigration attorney at Kuck Baxter Immigration Partners LLC.

“Basically you need to refile,” he said.

Prolonged Process

Justices took up the case because circuit courts have split over whether revocations of previously approved visas can be challenged in court.

The Department of Homeland Security argued in Bouarfa that judicial review of visa revocations was unnecessary because applicants could re-file a petition and challenge a denial in court. But starting the petition process over would mean petitioners go to the “back of the line” in visa queues, said Edward Ramos, a partner at Kurzban Kurzban Tetzeli and Pratt P.A., who co-wrote an amicus brief backing the plaintiffs on behalf of investor visa enterprises.

Many employment-based visa categories are backlogged, and re-filing a petition would mean applicants lose their original place in line.

“That can add years or even decades of time waiting for a green card,” Ramos said.

The opinion written by Justice Kentanji Brown Jackson left open the possibility that court review may not be precluded outside the removal context. A footnote in the opinion said that justices assumed, without deciding, that a jurisdiction stripping provision of the statute applies in cases like Bouarfa’s where a noncitizen is not contesting removal.

“There’s an open question as to whether or not this jurisdictional bar applies in cases involving affirmative benefits,” Ramos said. While judicial review of revocations looks to be off the table, the matter may need further litigation to clarify how broadly the ruling applies, he said.

But the decision to further restrict options for court review could shake the faith of employers in the immigration system by making it function less logically, Ramos said.

“There shouldn’t be this mismatch between judicial review of revocations versus outright denials even when they’re substantially identical,” he said.

The case is Bouarfa v. Mayorkas, U.S., No. 23-583, opinion issued 12/10/24.