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SUPREME COURT OF THE UNITED STATES
_________________
No. 23–583
_________________
AMINA BOUARFA, PETITIONER
v. ALEJANDRO
MAYORKAS, SECRETARY OF HOMELAND SECURITY, et al.
on writ of certiorari to the united states
court of appeals for the eleventh circuit
[December 10, 2024]
Justice Jackson delivered the opinion of the
Court.
A common feature of our Nation’s complex system
of lawful immigration is mandatory statutory rules paired with
discretionary exceptions. Executive Branch agencies implement both.
Whether any given agency decision is mandatory or discretionary
matters, because Congress has limited judicial review of many
discretionary determinations. See 66Stat. 208, as amended, 8
U. S. C. §1252(a)(2)(B). This case involves the Secretary
of Homeland Security’s decision to revoke initial approval of a
visa petition that Amina Bouarfa, a U. S. citizen, filed on
behalf of her noncitizen spouse.
The Secretary points to 8 U. S. C.
§1155 as the source of the agency’s revocation authority; that
provision states that the Secretary “may, at any time,” revoke
approval of a visa petition “for what he deems to be good and
sufficient cause.” The issue we address today is whether revocation
under §1155 qualifies as a decision “in the discretion of ”
the Secretary such that it falls within the purview of a separate
statute—§1252(a)(2)(B)(ii)—that strips federal courts of
jurisdiction to review certain discretionary actions. We hold that
it does.
I
A
The agency decision at issue in this case
occurs along the pathway to permanent legal status for a noncitizen
spouse of a U. S. citizen. There is no dispute about the steps
involved. A U. S. citizen kicks off the process by filing an
immigrant visa petition on behalf of her spouse with the U. S.
Citizenship and Immigration Services (USCIS), which exercises
authority delegated by the Attorney General and Secretary of
Homeland Security. §1154(a). If USCIS approves the petition, the
noncitizen may then apply for an immigrant visa to enter the
country as a lawful permanent resident, §§1201(a), 1202(a), or, if
he is already in the country, for adjustment of status, §1255.
USCIS’s decision to approve or deny a visa
petition filed on behalf of a noncitizen spouse involves a number
of mandatory determinations. For instance, if the agency
“determines that the facts stated in the petition are true” and
that the noncitizen is the petitioner’s spouse, it “
shall
. . . approve the petition.” §1154(b) (emphasis added).
However, as relevant here, there is also a mandatory exception: If
the noncitizen “has previously been accorded” or “sought to be
accorded” an immigration benefit “by reason of a marriage
determined by the Attorney General to have been entered into for
the purpose of evading the immigration laws,” the agency
must deny the petition. §1154(c). This is known as the
sham-marriage bar, and, although we have never held as much, the
parties agree that judicial review under the Administrative
Procedure Act (APA), 5 U. S. C. §701
et seq.,
is available to challenge the agency’s invocation of it. See,
e.
g.,
Mendoza v.
Secretary,
Dept. of
Homeland Security, 851 F. 3d 1348, 1352, 1354–1356 (CA11
2017) (
per curiam);
Ruiz v.
Mukasey, 552
F. 3d 269, 275–276 (CA2 2009).
The visa-petition-approval process for
noncitizen spouses of U. S. citizens can also involve certain
non-mandatory determinations that Congress has authorized
agency officials to make. One such statutory provision is at issue
here: It broadly states that the Secretary “may, at any time, for
what he deems to be good and sufficient cause, revoke the approval
of any petition.” §1155.[
1]
We took this case to determine whether the
Secretary’s decision under §1155 to revoke the agency’s approval of
a visa petition based on a sham-marriage determination is the kind
of discretionary decision that falls within §1252(a)(2)(B)(ii)—a
jurisdiction-stripping provision. As noted above, in the
immigration realm, properly identifying the mandatory or
discretionary nature of a particular agency decision can be
critical, precisely because that status has implications for
whether the agency’s decision can be challenged in court. Through
§1252(a)(2)(B), Congress stripped federal courts of jurisdiction to
review two categories of discretionary agency decisions. First,
Congress precluded review of “any judgment regarding the granting
of relief under” five listed statutory provisions that empower the
Attorney General to grant certain relief to noncitizens.
§1252(a)(2)(B)(i). Second, in the provision at issue here, Congress
barred review of “any other decision or action of the Attorney
General or the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the discretion of
the Attorney General or the Secretary.”[
2] §1252(a)(2)(B)(ii).
B
Amina Bouarfa is a U. S. citizen who
married Ala’a Hamayel, a noncitizen and Palestinian national. They
have three young children, all of whom are U. S. citizens. A
few years after they married, Bouarfa filed a visa petition on
Hamayel’s behalf.
USCIS initially approved the petition. But two
years later, the agency sent Bouarfa a Notice of Intent to Revoke
its approval. The agency informed Bouarfa that it had uncovered
evidence suggesting that, nearly a decade earlier, her husband had
entered into a marriage for the purpose of evading immigration
laws. According to the agency, during an interrogation, Hamayel’s
ex-wife had stated that her marriage with Hamayel had been
“ fraudulent ” and that she had asked him for $5,000
before filing a visa petition on his behalf. App. to Pet. for Cert.
14a. The agency told Bouarfa that, had it been aware of this
evidence at the time it reviewed her visa petition, it never would
have approved it.
Bouarfa vigorously denied these
characterizations. She pointed out that her husband’s ex-wife had
later recanted her statements, claiming that she had made them
under duress. Nonetheless, USCIS concluded that there was
“substantial and probative evidence to support a finding that”
Hamayel’s prior marriage “was for the purpose of conveying
immigration benefits.” Addendum to Brief for Petitioner 12a.
Recognizing that the Secretary was permitted to “revoke the
approval of any petition” “for good and sufficient cause,”
id., at 9a, the agency decided to revoke approval of the
visa petition that Bouarfa had filed on her husband’s behalf.
Bouarfa appealed that revocation to the Board of
Immigration Appeals, which affirmed. The Board explained that USCIS
had revoked its approval because it determined that the “visa
petition was approved in error” in light of §1154(c)’s
sham-marriage bar. App. 12. On
de novo review, the
Board concluded that the evidence supported USCIS’s determination
that Hamayel had entered into a sham marriage. The fact that such a
determination would have prevented the agency from approving the
petition in the first instance, the Board found, constituted “good
and sufficient cause” for revocation.
Id., at 15.
Having struck out before the agency, Bouarfa
turned to the courts. She filed an APA action in Federal District
Court, arguing that the agency’s revocation was “ ‘arbitrary
and capricious, an abuse of discretion and not in accordance with
law’ ” because the agency lacked sufficient evidence to
support its sham-marriage determination. App. to Pet. for Cert.
25a. The District Court granted the Government’s motion to dismiss,
holding that §1252(a)(2)(B)(ii), a jurisdiction-stripping
provision, barred judicial review of the agency’s revocation.
In
Bouarfa v.
Secretary, Dept. of
Homeland Security, 75 F. 4th 1157 (2023), the Eleventh Circuit
affirmed. It concluded that the text of §1155 “makes clear that the
Secretary’s authority to revoke the approval of a petition is
discretionary.”
Id., at 1162. In the court’s view, it made
no difference that the agency rested its revocation on a
determination that would have required the agency to deny the
petition in the first instance. “[N]othing in the statute,” the
court reasoned, “
requires the Secretary to revoke the
approval of a petition in any circumstance, even when the
Department later determines that the approval was in error.”
Ibid.
We granted certiorari to resolve a question that
has split the courts of appeals: Whether federal courts have
jurisdiction to review the Secretary’s revocation of the agency’s
prior approval of a visa petition. 601 U. S. ___
(2024).[
3] Bouarfa challenges
the Secretary’s revocation on the assumption that the fact that her
husband is not in removal proceedings does not affect the
jurisdictional analysis.[
4]
II
A
It is clear on the face of §1155 that the
revocation provision is a quintessential grant of discretion to the
Secretary. Once again, that provision provides that the Secretary
“may, at any time, for what he deems to be good and sufficient
cause, revoke the approval of any [visa] petition.” §1155. As
“[t]his Court has ‘repeatedly observed,’ ” “ ‘the word
“may”
clearly connotes discretion.’ ”
Biden v.
Texas, 597 U. S. 785, 802 (2022) (quoting
Opati
v.
Republic of Sudan, 590 U. S. 418, 428 (2020)).
Moreover, here, Congress has in no way prescribed how that
discretion must be exercised. There are no conditions that the
Secretary must satisfy before he can revoke the agency’s approval;
he may do so “at any time,” for whatever reason “he deems to be
good and sufficient cause.” That broad grant of authority “fairly
exudes deference” to the Secretary and is similar to other statutes
that we have held “ ‘commi[t]’ ” a decision “ ‘to
agency discretion.’ ”
Webster v.
Doe, 486
U. S. 592, 600 (1988) (holding that a statute permitting the
agency to terminate an employee whenever it “ ‘
deem[s]
such termination necessary or advisable in the interests of the
United States’ ” was discretionary).
Context reinforces what the text makes plain.
Section 1252(a)(2)(B)(ii)’s neighboring provision,
§1252(a)(2)(B)(i), bars judicial review of determinations under
five statutory provisions that address “different form[s] of
discretionary relief from removal.”
Kucana v.
Holder,
558 U. S. 233, 246 (2010). Each of those provisions “contains
language indicating that the decision is entrusted to the Attorney
General’s discretion.”
Ibid.; see,
e.
g.,
§1229b(a) (“The Attorney General may cancel removal
. . . ”); §1229c(a)(1) (“The Attorney General may
permit an alien voluntarily to depart the United States
. . . ”). Section 1155 contains similar
language.
Indeed, many of the undoubtedly discretionary
provisions listed in §1252(a)(2)(B)(i) vest
less discretion
in the Attorney General than §1155 vests in the Secretary. The
Attorney General may, for instance, cancel removal for a permanent
resident
only if he determines that the noncitizen has been
a lawful permanent resident for at least five years, has
continually resided in the United States for at least seven years,
and has not been convicted of an aggravated felony. §1229b(a). He
may exercise his discretion to waive the consequences of a fraud
determination that would otherwise bar relief only if failing to do
so “would result in extreme hardship” to the noncitizen’s family
members or, in certain situations, the noncitizen. §1182(i)(1). And
he has discretion to adjust a noncitizen’s status only if he first
confirms that certain preconditions have been satisfied. §1255(a).
When it comes to the Secretary’s discretion to revoke the agency’s
approval of a visa petition, though, Congress imposed no such
threshold requirements. If the provisions listed in
§1252(a)(2)(B)(i) pertain to discretionary agency determinations,
surely §1155 does too.
That discretion is a two-way street. By granting
the Secretary discretion to revoke the agency’s approval of visa
petitions, Congress has also vested the Secretary with discretion
to
decline to revoke an approval the agency previously gave.
So, if the Secretary determines that the agency’s approval of a
visa petition was erroneous, he can revoke that approval—or he can
let the error stand. As a general matter, then, this discretion may
work to the benefit of visa-petition beneficiaries, since rather
than tying the agency’s hands by forcing revocation, Congress
created “room for mercy.”
Patel v.
Garland, 596
U. S. 328, 331 (2022).
In any event, when the Secretary opts to revoke
a petition that he determines should not have been approved in the
first place, the petitioner is not out of options. As the
Government concedes, nothing prohibits a citizen from filing
another petition on behalf of the same relative. Brief for
Respondents 3. Indeed, Bouarfa has already taken advantage of that
alternative here. After the Secretary revoked the agency’s approval
of her petition, Bouarfa filed another one. 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.
B
Bouarfa disputes hardly any of this. She
concedes that some revocations are discretionary for purposes of
§1252(a)(2)(B)(ii). But she argues that this particular revocation
was not. In Bouarfa’s view, if the Secretary approves a visa
petition and later determines that the beneficiary had previously
entered into a sham marriage, the Secretary has no choice but to
revoke the agency’s approval. We cannot agree. Nothing in the
statute’s text or context limits the Secretary’s discretion in this
way.
1
Bouarfa’s textual argument rests on §1154(c),
which she argues creates an ongoing duty for the agency to
continually confirm that its prior approval was sound. Section
1154(c) commands that “no petition shall be approved” if the
Attorney General makes a sham-marriage determination. According to
Bouarfa, we should interpret this provision as directing that “no
petition shall be approved
or remain approved” if a
sham-marriage determination is made.
The problem for Bouarfa’s argument is that
§1154(c) nowhere suggests that its command extends beyond the point
of approval. Nothing in the provision mentions revocation. And we
need not guess in what situations Congress wanted the Secretary to
revoke the agency’s approval, because Congress answered that
question directly: The Secretary “may” do so whenever he “deems”
there to be “good and sufficient cause.” §1155. This specific grant
of discretion to revoke forecloses the argument that Congress
silently mandated revocation in certain situations.
Turning to context, Bouarfa argues that, because
a noncitizen may use an approved visa petition to continue along
the path toward lawful permanent residency, Congress implicitly
required the agency to continually reassess whether its prior
approval was in error. But nothing about the statutory scheme
requires the agency to revisit its past decisions. Instead, each
stage of the process comes with its own criteria. See,
e.
g., §1255 (adjustment of status); §1182 (visa
eligibility). Of course, if the Secretary determines at any point
along the way that the agency’s prior approval of a visa petition
was erroneous, he can exercise his discretion to revoke it. Under
Bouarfa’s interpretation, the Secretary would be
required to
do so any time he determined that the agency made a mistake—no
matter the circumstance. Congress, however, left that decision to
the Secretary. The agency’s
mea culpa may—but need
not—result in the noncitizen losing his ability to gain permanent
residency.
2
With text and context against her, Bouarfa
turns to agency practice. She contends that, as a practical matter,
the Secretary always revokes the agency’s approval of a visa
petition if the agency later makes a sham-marriage determination.
That may be true. At oral argument, the Government was unable to
identify a single instance in which the agency declined to revoke
its approval after determining that the beneficiary had entered
into a sham marriage. Tr. of Oral Arg. 38. But Congress did not
make the availability of judicial review dependent on agency
practice. Rather, §1252(a)(2)(B)(ii) bars judicial review of
decisions “made discretionary
by legislation.”
Kucana, 558 U. S., at 246–247 (emphasis added).
Furthermore, the fact that the agency appears to be exercising its
revocation discretion consistently is a virtue, not a vice.
Bouarfa’s use-it-or-lose-it theory of agency discretion creates
perverse incentives, encouraging an agency to act arbitrarily (by
revoking some approvals after a sham-marriage finding while
maintaining others) or risk losing congressionally granted
insulation from judicial review.
Nor is it unreasonable, as Bouarfa protests, to
suppose that Congress created a system in which a sham-marriage
determination is reviewable if it is the reason for the agency’s
denial of a petition, but not if it is the reason for the agency’s
revocation. That distinction “reflects Congress’ choice to provide
reduced procedural protection for discretionary relief.”
Patel, 596 U. S., at 345. In the interest of finality,
Congress vested the Secretary with the discretion to allow the
agency’s mistakes to inure to the benefit of the noncitizen. At the
same time, Congress did not want this discretion to open up a new
source of litigation. Cf.
Guerrero-Lasprilla v.
Barr,
589 U. S. 221, 230 (2020) (observing Congress’s goal of
“ ‘consolidat[ing] judicial review of immigration proceedings
into one action’ ” (quoting
INS v.
St. Cyr, 533
U. S. 289, 313 (2001)). “[T]he context in which” the agency
makes the sham-marriage determination thus “explains the difference
in protection afforded.”
Patel, 596 U. S., at
345.[
5]
3
Finally, our precedent does not mandate
Bouarfa’s interpretation. In
Patel, we held that
§1252(a)(2)(B)(i) precludes judicial review of factual findings
that underlie a denial of discretionary relief—including when those
findings are “threshold requirements established by Congress” to
access the relevant discretion.
Id., at 332, 347. In
concluding that §1252(a)(2)(B)(i) reaches those threshold
determinations, we relied on the fact that the provision prohibits
judicial review of “
any judgment
regarding the
granting of relief ” under the enumerated provisions.
Id., at 338. Bouarfa argues that, because the
jurisdiction-stripping provision at issue here lacks similar
language, its scope must be narrower. But even assuming that is
true, that does not help Bouarfa here, because unlike the
discretionary determination at issue in
Patel, §1155’s
revocation authorization has
no threshold requirements. We
therefore need not resolve whether §1252(a)(2)(B)(ii) strips courts
of jurisdiction to review threshold determinations that the agency
must make before exercising discretion.
Bouarfa also leans on the general “presumption”
that administrative action is subject to judicial review. See
Guerrero-Lasprilla, 589 U. S., at 229. But that
presumption may be overcome by “ ‘clear and convincing
evidence’ of congressional intent to preclude judicial review.”
Ibid. (quoting
Reno v.
Catholic Social Services,
Inc., 509 U. S. 43, 64 (1993)). Section
1252(a)(2)(B)(ii)—“which is, after all, a jurisdiction-stripping
statute,”
Patel, 596 U. S., at 347—clearly expresses
Congress’s desire to preclude judicial review of the Secretary’s
discretionary revocation of an approved visa petition. “Because the
statute is clear, we have no reason to resort to the presumption of
reviewability.”
Ibid.
* * *
In §1155, Congress granted the Secretary broad
authority to revoke an approved visa petition “at any time, for
what he deems to be good and sufficient cause.” Such a revocation
is thus “in the discretion of ” the agency.
§1252(a)(2)(B)(ii). Where §1252(a)(2)(B)(ii) applies, then, it bars
judicial review of the Secretary’s revocation under §1155.
Therefore, we affirm the judgment of the Court of Appeals.
It is so ordered
.
