The Supreme Court unanimously upheld the authority of the government to revoke visas for fraudulent marriages, finding such decisions fall within the discretion of the Department of Homeland Security and cannot be reviewed by courts.
The case was brought by Amina Bouarfa, a U.S. citizen married to a Palestinian non-citizen.
Bouarfa's petition for a spousal visa was initially approved by the U.S. Citizenship and Immigration Service, but the agency later revoked the approval when it found her husband had engaged in a sham marriage in the past.
Writing for the court, Ketanji Brown Jackson noted that federal law grants the Secretary of Homeland Security power to revoke an approved visa petition "at any time, for what he deems to be good and sufficient cause."
“Congress granted the Secretary [of the U.S. Department of Homeland Security] broad authority to revoke an approved visa petition ‘at any time, for what he deems to be good and sufficient cause,’” Jackson wrote in the court’s opinion.
“Such a revocation is thus ‘in the discretion’ of the agency."
The DHS initially accepted Bouarfa's application but later found that her husband, Ala’a Hamayel, had paid his ex-wife $5,000 in exchange for a green card.
Bouarfa appealed at the agency level, to no avail, before taking the matter to the federal court system. A federal court in Florida ruled that revocation was a discretionary action that the courts have no power to review, and the 11th Circuit affirmed.
Bouarfa had argued that her case can be reviewed in court because the DHS was forced to revoke her initial approval. She argued that the agency consistently revokes applications it later finds to be fraudulent, so the issue is not really up to the Secretary's discretion.
But federal law places no such constraints on the Secretary's discretion, Jackson noted. Neither does the agency's general practice of revoking fraudulent applications tie its hands.
Discretion is a "two-way street," Jackson noted: just as the government can revoke a sham petition, it can choose to "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,'" Jackson wrote.
While revocations cannot be challenged in court, nothing is stopping Bouarfa from starting the process over again, and she has already done so. If the government rejects her new petition, she may seek judicial review, Jackson said.
