The United States Supreme Court unanimously upheld the authority of the government to revoke visas for fraudulent marriages.
The high court found that such decisions fall within the discretion of the Department of Homeland Security (DHS) and cannot be reviewed by courts.
The case was brought by Amina Bouarfa, a U.S. citizen married to a non-citizen from Hamas-controlled Gaza.
Bouarfa’s petition for a spousal visa was initially approved by the U.S. Citizenship and Immigration Service.
However, the agency later revoked the approval when it found her husband had been involved in a sham marriage in the past.
Writing for the court, Justice Ketanji Brown Jackson noted that federal law grants the DHS secretary power to revoke an approved visa petition “at any time, for what he deems to be good and sufficient cause.”
In the court’s opinion, Jackson wrote:
“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.”
The DHS initially accepted Bouarfa’s application.
However, DHS officials later discovered 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.
She then escalated 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.
The 11th Circuit affirmed the ruling.
Bouarfa had argued that her case could 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, according to Bouarfa, the issue is not really up to the DHS secretary’s discretion.
However, 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.
The justice explained that 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.
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