Petitions of the week

Couple seeks review of revoked visa

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

U.S. citizens and lawful permanent residents – “green-card holders” – can apply for a visa for their immediate relatives. If their petition is denied, they might seek to appeal that decision in federal court. But Congress, seeking to reduce the second-guessing of immigration officials, has foreclosed judicial review of purely “discretionary” immigration decisions. This week, we highlight petitions that ask the justices to consider, among other things, whether a federal judge can review the revocation of a previously approved visa when that revocation was based on the application of nondiscretionary criteria, which would have been reviewable.

Amina Bouarfa and Ala’a Hamayel married in 2011. Bouarfa and their three children are U.S. citizens. Hamayel, a Palestinian national, is not. Seeking permission for her husband to remain in the United States permanently, Bouarfa filled out a document known as Form I-130, asking United States Citizenship and Immigration Services to recognize her husband as her immediate relative. The agency approved the petition in 2015.

Two years later, the agency notified the couple that it planned to revoke Hamayel’s visa after uncovering evidence that he had allegedly entered a previous marriage in an effort to evade immigration laws. Had it known of this information when it received Bouarfa’s Form I-130, the agency explained, it would have been required to deny her petition.

After her appeal within the agency was unsuccessful, Bouarfa went to federal court. A federal district court in Florida dismissed her claim. It concluded that the revocation of a petition for a visa is a purely discretionary decision by immigration officials, which Congress has stripped courts of the power to review. But it added that it was “troubled by the potential implications” of its ruling – specifically, the possibility that agencies could “dodge judicial review” by granting petitions and then revoking them, rather than denying them in the first place.

The U.S. Court of Appeals for the 11th Circuit affirmed that decision. The immigration laws provide that federal officials may revoke their approval of a petition at any time “for good and sufficient cause,” the court of appeals explained. Even if a petition should have originally been denied for a nondiscretionary reason, the 11th Circuit reasoned, a decision to revoke it later is an exercise of discretion – one that federal courts cannot review.

In Bouarfa v. Mayorkas, Bouarfa asks the justices to take up her case and reverse the 11th Circuit’s ruling. She argues that the courts of appeals are divided over whether the revocation of a visa because of an original, nondiscretionary mistake is a discretionary immigration decision. “[T]he initial decision to deny the petition would have been judicially reviewable,” Bouarfa writes, and it would be “senseless and arbitrary” if a mistake in the agency’s original decision means that she can never have that “decision – and the permanent separation of her family – reviewed.”

A list of this week’s featured petitions is below:

Paulson v. United States
23-436
Issue: Whether 26 U.S.C. § 6324(a)(2) allows the government to impose personal liability on transferees, trustees, or beneficiaries who receive property from the decedent’s estate only at the time of decedent’s death, or instead allows the imposition of personal liability for estate taxes on persons who receive estate property at any time after the decedent’s death and in amounts which could potentially exceed the current value of the property received.

Moss v. Miniard
23-444
Issue: Whether, when counsel is physically present, state action is required before a court may find a complete denial of counsel under United States v. Cronic.

Pickens v. United States
23-571
Issue: Whether under 26 U.S.C. § 6324(a)(2), which imposes personal liability for unpaid estate taxes on any person “who receives, or has on the date of the decedent’s death, [non-probate] property included in the gross estate,” the limiting phrase “on the date of the decedent’s death,” applies to both the verbs “receives” and “has.”

Bouarfa v. Mayorkas
23-583
Issue: Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.