Judges Can’t Review Visa Revocations, Supreme Court Says (1)

The US Supreme Court said federal courts can’t second-guess visa revocations even though judicial review would’ve been available if a visa was denied in the first place.

The justices on Tuesday unanimously ruled that visa revocations are left to the discretion of the Homeland Security Department, meaning Congress has stripped courts of the authority to review them.

Writing for the court, Justice Ketanji Brown Jackson said the decision was “a quintessential grant of discretion” to DHS that judges can’t review.

DHS initially approved a visa for US citizen Amina Bouarfa’s husband, but revoked it after determining he’d engaged in a previous “sham marriage.” Sham marriages permanently bar individuals from remaining legally in the country.

All parties agree that judicial review would be “available to challenge the agency’s” initial determination, Jackson said. That’s because that initial determination is mandatory, not discretionary.

Congress has stripped courts of the ability to review certain discretionary decisions, but preserved it where the decisions are mandatory.

Under the “sham-marriage bar,” DHS “must deny the petition,” Jackson said.

But the decision to later revoke the visa is left totally up to the homeland security secretary. The “secretary ‘may at any time,’ revoke approval of a visa petition” for what that official deems “good and sufficient cause,” Jackson said, quoting the statute.

The fact that the initial determination could be reviewed by courts but the revocation couldn’t didn’t matter, Jackson said.

Discretion “is a two-way street,” she said, meaning that once DHS is made aware of the sham marriage post-visa approval, it “can revoke that approval” or “let the error stand.”

“Congress created ‘room for mercy,’” and court’s can’t second-guess that, Jackson said.

She also noted that Bouarfa could always file another petition on behalf of her husband, despite the agency’s revocation.

“Indeed, Bouarfa has already taken advantage of that alternative here,” Jackson said. “That petition is still pending, and if it is denied due to the agency’s sham-marriage determination, Bouarfa can seek judicial review of that determination.”

The case is Bouarfa v. Mayorkas, U.S., No. 23-583.