Justices Unlikely to Let Courts Second-Guess Visa Rulings (1)

The Supreme Court seemed unlikely to side with American citizens challenging the revocation of their spouses’ visa seeking to stay in the US.

In the case argued Tuesday, the government approved a visa for Amina Bouarfa’s husband. But it was later revoked because immigration authorities determined that he had engaged in a previous “sham marriage” in order to stay in the US. Such a marriage permanently bars a person from remaining legally in the country.

The question for the justices is whether the reversal can be reviewed by federal courts.

Under statute, federal courts can only review decisions that are automatic, not those left to the Homeland Security Department’s discretion. With regard to discretionary matters, Congress didn’t want federal courts second-guessing the agency.

All parties agree the initial decision whether to approve the visa was automatic, meaning that Bouarfa could’ve had a court take a look if it had been denied. But subsequent revocation is discretionary in that it can be revoked anytime the agency thinks there is “good and sufficient cause.”

Justice Samuel Alito suggested court’s don’t have the power to review visa revocations. The “good and sufficient” language “confers about the broadest measure of discretion that you could image,"Samuel Alito said.

Life Destroying

Justice Clarence Thomas said it was “a bit odd that the underlying determination initially was not discretionary and now it is being disposed of after the fact in a discretionary way.”

And Justice Neil Gorsuch wondered if the revocation really was being exercised in a discretionary way. The “fact that the government’s unable to point to a single circumstance in which it’s ever waived the sham-marriage requirement, and it’s starting to look pretty non-discretionary.”

But Justice Elena Kagan said “the decision to revoke is just different from the decision to approve or deny in the first instance.” So the statutory language about whether the initial determination is automatic “doesn’t really speak to the decision to revoke,” she said.

Bouarfa’s attorney Samir Deger-Sen of Latham & Watkins emphasized that it makes no sense to say the government somehow has discretion because it made a mistake about the initial visa determination that was automatic.

“The ‘why’ question just jumps off the page here,” Deger-Sen said.

Arguing for the government, Colleen Sinzdak noted there were more than 900,000 of these visa applications filed last year. “Given this volume, Congress had every reason to streamline judicial review by prohibiting litigation at the revocation stage,” Sinzdak said.

Moreover, Chief Justice John Roberts said Bouarfa can just file another visa application and will get judicial review if and when it is denied.

“What more do you want?” Roberts asked Deger-Sen. “You just won’t take yes for an answer.”

Deger-Sen said it was no answer to require the applicant to go back to the beginning of the process, noting that it can take years for an initial determination.

He said families like Bouarfa’s are living under uncertainty of whether they can remain together in the US.

These are “life altering, life destroying” decisions, he said.

The case is Bouarfa v. Mayorkas, U.S., No. 23-583, argued 10/15/24.