Bouarfa v. Sec'y, Dep't of Homeland Sec.

75 F.4th 1157

Amina BOUARFA, Plaintiff-Appellant, v. SECRETARY, DEPARTMENT OF HOMELAND SECURITY, Director,U.S. Citizenship & Immigration Services (USCIS), Defendants-Appellees.

No. 22-12429

United States Court of Appeals, Eleventh Circuit

Filed: July 28, 2023

Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 8:22-cv-00224-WFJ-AEP

David H. Stoller, Law Offices of David Stoller, PA, Orlando, FL, for Plaintiff-Appellant.

James Cottrell Graulich, III, Office of Immigration Litigation, District Court Section, Washington, DC, for Defendants-Appellees.

Before William Pryor, Chief Judge, Jill Pryor, Circuit Judge, and Proctor,^* District Judge.

William Pryor, Chief Judge:

This appeal requires the Court to decide whether the district court had subject-matter jurisdiction over a complaint about the revocation of the approval of a visa petition. See 8 U.S.C. § 1155. The Immigration and Nationality Act bars judicial review of certain discretionary immigration decisions. Id. § 1252(a)(2)(B)(ii). Amina Bouarfa filed a petition to have her husband classified as her immediate relative so that he would be eligible to adjust his immigration status. The Secretary of the Department of Homeland Security approved the petition but later revoked that approval because Bouarfa's husband had entered a previous marriage for the purpose of evading immigration laws. Bouarfa sought judicial review of the Secretary's marriage-fraud determination. The district court dismissed her complaint for lack of subject-matter jurisdiction because it determined that Bouarfa's complaint challenged a discretionary decision. We affirm.

I. BACKGROUND

Amina Bouarfa is a United States citizen. Her husband, Ala'a Hamayel, is not. In 2014, Bouarfa submitted Form I-130 to the Department of Homeland Security to petition to have Hamayel classified as her immediate relative for purposes of the Immigration and Nationality Act. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1) (2022).

The Secretary has delegated many powers under the Act to United States Citizenship and Immigration Services within the Department. See 8 C.F.R. §§ 2.1, 100.1 (2022); 6 U.S.C. § 271. The parties do not dispute the legal authority of the officials who dealt with Bouarfa's petition. References in this opinion to the Secretary encompass all officials relevant to Bouarfa's petition.

The Secretary approved the petition in 2015. Two years later, the Secretary notified Bouarfa of an intent to revoke the approval of the petition. See 8 U.S.C. § 1155 (permitting the Secretary to revoke the approval of a petition). The Secretary stated that the Department had determined that Hamayel entered into one of his previous marriages solely for the purpose of evading immigration laws. The Act prohibits the approval of a petition to benefit an alien who has entered a sham marriage. Id. § 1154(c)(2).

Bouarfa responded to the notice and attempted to rebut the evidence the Secretary cited. Unpersuaded, the Secretary revoked the approval of Bouarfa's petition. Bouarfa unsuccessfully appealed to the Board of Immigration Appeals.

Bouarfa filed a complaint in the district court against the Secretary and the Director of Citizenship and Immigration Services. She challenged the officials' actions as arbitrary and capricious and stated that "[w]ere the agency to vacate its decision," she would seek injunctive relief and a writ of mandamus compelling the agency to adjudicate her Form I-130. She alleged that the administrative record compels the conclusion that Hamayel's previous marriage was not a sham.

The Secretary and Director moved to dismiss the complaint for lack of subject-matter jurisdiction. See FED. R. CIV. P. 12(b)(1). They argued that Bouarfa was "seeking . . . to review an unreviewable revocation decision." They cited a provision of the Act that bars judicial review of certain discretionary decisions. See 8 U.S.C. § 1252(a)(2)(B)(ii). They also cited unpublished decisions by this Court, as well as published decisions by our sister circuit courts, that state that the revocation of a visa under section 1155 is a discretionary decision.

The district court granted the motion to dismiss. It determined that a revocation under section 1155 is a discretionary action to which the section 1252 jurisdictional bar applies. It agreed with the officials that "[a]lthough [Bouarfa] attempts to distinguish the basis of the revocation decision from the revocation decision itself, the relief she seeks betrays that there is no true difference between the two." But it also stated that an initial denial of a petition based on a marriage-fraud finding would be a reviewable, non-discretionary decision and expressed concern that there was a "loophole" through which the Department "could evade judicial review by granting a visa petition it should have denied outright and then immediately revoking its approval."

II. STANDARD OF REVIEW

"We review subject matter jurisdiction de novo." Mejia Rodriguez v. U.S. Dep't of Homeland Sec., 562 F.3d 1137, 1142 (11th Cir. 2009).

III. DISCUSSION

We divide our discussion into two parts. First, we explain that judicial review of a revocation decision under section 1155 is barred. Second, we explain that judicial review of the cited basis for the revocation decision—the determination that Hamayel had committed marriage fraud and that the marriage fraud served as good and sufficient cause to revoke the approval—is also barred.

A. Courts Lack Jurisdiction over a Section 1155 Revocation.

The threshold issue is whether section 1252 bars judicial review of the revocation of a petition approval under section 1155. Bouarfa concedes that the decision to revoke an approval is not subject to judicial review. Although the district judge erroneously treated our unpublished opinions as precedential, we now join most of our sister circuits in holding that a section 1155 revocation is a discretionary decision not subject to judicial review. See Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481, 482 (1st Cir. 2016); Nouritajer v. Jaddou, 18 F.4th 85, 88 (2d Cir. 2021); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 205 (3d Cir. 2006); Polfliet v. Cuccinelli, 955 F.3d 377, 383 (4th Cir. 2020); Ghanem v. Upchurch, 481 F.3d 222, 223 (5th Cir. 2007); Mehanna v. U.S. Citizenship & Immigr. Servs., 677 F.3d 312, 313 (6th Cir. 2012); El-Khader v. Monica, 366 F.3d 562, 563 (7th Cir. 2004); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Green v. Napolitano, 627 F.3d 1341, 1343 (10th Cir. 2010); iTech U.S., Inc. v. Renaud, 5 F.4th 59, 68 (D.C. Cir. 2021). But see Jomaa v. United States, 940 F.3d 291, 295-96 (6th Cir. 2019) (holding that although revocation can be discretionary, a revocation primarily based on discovery of a mistake was "a nondiscretionary act of error correction"); ANA Int'l Inc. v. Way, 393 F.3d 886, 894 (9th Cir. 2004) (holding that the authority to revoke the approval of a petition is bounded by objective criteria and therefore subject to judicial review).

The Administrative Procedure Act provides that a person adversely affected by final agency action is entitled to judicial review. 5 U.S.C. §§ 702, 704. "Although the [Administrative Procedure Act] independently does not confer subject-matter jurisdiction, 28 U.S.C. [section] 1331 confers jurisdiction on federal judges to review agency action under federal-question jurisdiction." Perez v. U.S. Bureau of Citizenship & Immigr. Servs., 774 F.3d 960, 965 (11th Cir. 2014). Where a statute bars judicial review or agency action is committed to agency discretion by law, the Administrative Procedure Act does not permit judicial review. Id.; see 5 U.S.C. § 701(a). "When a statute is reasonably susceptible to" multiple interpretations, we apply a "presumption favoring judicial review of administrative action." Kucana v. Holder, 558 U.S. 233, 251, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (citation and internal quotation marks omitted). But that presumption may be rebutted by "clear and convincing evidence." Id. at 252, 130 S.Ct. 827 (citation omitted).

Two statutory provisions govern this jurisdictional issue. The Immigration and Nationality Act bars judicial review of "any . . . 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" those officials. 8 U.S.C. § 1252(a)(2)(B)(ii). Section 1155 is part of that subchapter. See id. ch. 12, subch. II. Section 1155 states that the Secretary "may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title." Id. § 1155.

Section 1155 makes clear that the Secretary's authority to revoke the approval of a petition is discretionary. The clear import of the terms "may," "at any time," and "what he deems to be good and sufficient cause" is that the Secretary is free to exercise his authority to revoke the approval of a petition as he sees fit. Cf. Brasil v. Sec'y, Dep't of Homeland Sec., 28 F.4th 1189, 1192-93 (11th Cir. 2022) (explaining that the provision that "[t]he Attorney General may, when the Attorney General deems it to be in the national interest, waive" certain requirements clearly specifies that the waiver decision is discretionary). Because section 1155 is unambiguous, the presumption in favor of judicial review when a statute is "reasonably susceptible to" multiple interpretations, Kucana, 558 U.S. at 251, 130 S.Ct. 827 (citation omitted), does not come into play.

B. Courts Lack Jurisdiction over the Basis for a Section 1155 Revocation.

Bouarfa contends that although the decision to revoke the approval of her petition was discretionary, "the underlying basis for the agency's action involve[d] non-discretionary decision-making" that the district court may review. In particular, she cites the "application of [section] 1154(c)," the...