Amicus Curiae Brief — Amina Bouarfa, Petitioner v. Alejandro Mayorkas, Secretary of Homeland Security, et al.

No. 23-583

IN THE

Supreme Court of the Anited States

AMINA BOUARFA,

Petitioner,

Vv.

ALEJANDRO MAYORKAS,

SECRETARY OF HOMELAND SECURITY, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF FOR FORMER EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW JUDGES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

RICHARD W. MARK

Counsel of Record

AMER S. AHMED

VANESSA AJAGU

SASHA DUDDING

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

(212) 351-4000

rmark@gibsondunn.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. .....cssscscssscssssssesssesssseesenn ii

INTEREST OF AMICI CURIAE oossesscssssssssssesssssessesen 1

SUMMARY OF ARGUMENT. .....cccccscsseesesseesseseeseseeees 2

ARGUMENT. ....ccscccssssscssssscssucecsecsssuccsssesesseceesaveceennecen 5

I. This Court Should Resolve The Circuit

Split Concerning Article III Review

Under IIRIRA § 1252(a)(2)(B)(i) «0... cece 5

II. The Eleventh Circuit’s Rule Upsets The

Balance That ITRIRA Strikes Between

Executive Discretion And Article III

Revie Wessiaiwsissewatesonensussecscsexatens avsas eaicaesesaseees 10

III. Article III Review Of Nondiscretionary

Determinations Is Critical to Correct

Unavoidable Errors That Overburdened

Immigration Adjudicators Will Make.......... 15

CONCLUSION uu... ee cceccccccecesceeseessreessseseseseaasenaees 23

li

TABLE OF AUTHORITIES

Cases

Abbott Lab’ys v. Gardner,

387 U.S. 136 (1967) 0... seeseseeseeseeteetseeees

Abdelwahab v. Frazier,

578 F.3d 817 (8th Cir. 2009)... eee

Alzaben v. Garland,

66 F.4th 1 (1st Cir. 2023)... eee

ANA Int'l Inc. v. Way,

393 F.3d 886 (9th Cir. 2004)... eee

Arita-Deras v. Wilkinson,

990 F.3d 350 (4th Cir. 2021)... eee

Bangura v. Hansen,

434 F.3d 487 (6th Cir. 2006)... eee

Beeman v. Napolitano,

No. 10-cv-803, 2011 WL 1897931

(D. Or. May 17, 2011)... eeeecceseesseeeeees

Benslimane v. Gonzales,

430 F.3d 828 (7th Cir. 2005)... eee

Berishaj v. Ashcroft,

378 F.3d 314 (3d Cir. 2004),

abrogated on other grounds by

Nbaye v. Att’y Gen., 665 F.3d 57

(3d Cir. 2011) ccnsncnensoxammesneesnennvsmenennncaness

Billeke-Tolosa v. Ashcroft,

385 F.3d 708 (6th Cir. 2004)...

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

75 F.4th 1157 (11th Cir. 2023)...

ili

Bowen v. Mich. Acad. of Fam. Physicians,

476 U.S. 667 (1986)... ccessssceesscceesssseeeesseeeees

Cho v. Gonzales,

404 F.3d 96 (1st Cir. 2005) occ eceeesseeeeseeeeees

Commodity Futures Trading Comm’n v. Schor,

478 U.S. 883 (1986) 00... cceeesteeeeeetreeeteterereesenseees

Coniglio v. Garland,

556 F. Supp. 3d 187 (E.D.N.Y. 2021) .........

Cuellar Lopez v. Gonzales,

427 F.3d 492 (7th Cir. 2005)... ccccesesseeeesreeenees

Dehrizi v. Johnson,

No. 15-cev-8, 2016 WL 270212

(D. Ariz. Jan. 21, 2016) .0......eceeceeceesecceeeeseeseereeeeees

Doe Iv. U.S. Dep’t of Homeland Sec.,

No. 20-ev-7517, 2022 WL 1212013

(N.D. Cal. Apr. 25, 2022) ssssssssissasavesssoissusssncyensisr

El-Khader v. Monica,

366 F.3d 562 (7th Cir. 2004)... cccecceeeeeeeeeee

Estrada-Ortega v. Barr,

824 F. App’x 559 (10th Cir. 2020) oe eee

Fang Lin Ai v. United States,

809 F.3d 503 (9th Cir. 2015)... eeeeeeesseeeeeeeenes

Flores v. Garland,

72 F.4th 85 (Sth Cir, 2028) oo. eececseeeeeeteeeeeneeee

Fogo De Chao (Holdings) Inc. v.

U.S. Dep’t of Homeland Sec.,

769 F.3d 1127 (D.C. Cir. 2014)... eee

Fong Haw Tan v. Phelan,

3338 U.S. 6 (1948)... eeccceessceeeereneeteessseeeeseeneanes

iv

Freeman v. Gonzales,

444 F.3d 1031 (9th Cir. 2006)... ee eeeeeeeeeeee 22

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020)... ecccsetecesesneeeees 3, 10

Hosseini v. Johnson,

826 F.3d 354 (6th Cir. 2016)... ee eeeeeseeee 7,16

Hussam F. v. Sessions,

897 F.3d 707 (6th Cir. 2018)... eeceeseeeeeeereeees 8

INS v. St. Cyr,

533 U.S. 289 (2001 )wusssscssvecccmsennmmnvarseccerceessnacees 5

Jay v. Boyd,

351 U.S. 845 (1956 )ssisennweasiesinnsonnonnwissonsveswaraennancas 5

Jilin Pharm. USA, Inc. v. Chertoff,

447 F.3d 196 (3d Cir. 2006) ....... eee eeeeeeees 7,16

Jomaa v. United States,

940 F.3d 291 (6th Cir. 2019) ..........cceeseeeseeseseeeereeees 6

Kucana v. Holder,

558 U.S. 233 (2010)... eeeeeeennereeeeees 3,9, 10, 11

Lee v. United States,

582 U.S. 357 (2017) <sssscwesvssuecessnssscevexarwayssecaaseness 17

Lockhart v. Napolitano,

573 F.3d 251 (6th Cir. 2009)..........ceessseseerseenes 22

Bernardo ex rel. M & K Eng’g, Inc. v.

Johnson,

814 F.3d 481 (Ast Cir. 2016) oe eeeeeeseeeeeeeees 14

Makwana v. Att’y Gen.,

611 F. App’x 58 (8d Cir. 2015)... eeeeceseeereees 21

Malik v. Att’y Gen.,

No. 21-2177, 2022 WL 1024623

(3d Cir. Apr. 6, 2022) ......cccccescescesscesceseeseeesenseess 19

McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991) ooo. eeeceeeeseteeeeeeeeeeeeees 3,10, 11

Mejia Rodriguez v. U.S. Dep’t of Homeland Sec.,

562 F.3d 1187 (11th Cir. 2009)... cccccceseeees 8

Mia v. Renaud,

No, 22-cv-2098, 2023 WL 7091915

CHDINAY . Oct.£26,2023) ecseancemanonamnamnmsemamneeen 13

Moore v. Frazier,

941 F.3d 717 (4th Cir. 2019)... eccccseeeeeeeees 8

Nasrallah v. Barr,

140 S. Ct. 1683 (2020)... cceeeeeeeereeenenenes 9,13

Niam v. Ashcroft,

354 F.3d 652 (7th Cir. 2004)... eeeseccsessteereeees 21

Nouritajer v. Jaddou,

18 F.4th 85 (2d Cir. 2021)........ eee cceccseessceeessneeeeees 7

Padilla v. Kentucky,

559 U.S. 356 (2010 )asvisscsesssssvscssssevsnnsvasvarrowsszonvanve 17

Patel v. Garland,

596) U.S. 328 (2022) ssncsccasmnanmmewnsennaxannen - 2+ 6, 13, 14

Pinho v. Gonzales,

432 F.3d 193 (8d Cir. 2005) oo. eecceseteeeeeeneeeeens 8

Poursina v. USCIS,

936 F.3d 868 (9th Cir. 2019)... cece eeesesteeeeeeees 8

Quinteros v. U.S. Att’y Gen,

945 F.3d 772 (3d Cir. 2019) 00... cceeccceeeeeeeeeeeeeeeees 22

vi

Rajasekaran v. Hazuda,

815 F.3d 1095 (8th Cir. 2016)............ccccceseseeees 7,8

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) scsscssnsacssnnacvesessvsereasscssnvoseave 22

Reno v. Am.-Arab Anti-Discrimination Comm..,

B25 U.S. 471 (1999)... ccesccccccccesscessssseseeeeeeenseenes 1,5

Reno v. Cath. Soc. Servs., Inc.,

509 U.S. 48 (1998)... eeccccsssssccceeseccesesesscesssaeees 10

Robinson v. Napolitano,

554 F.3d 358 (3d Cir. 2009) ....... ee eeeeeereeeeeeeneees 22

Romero-Torres v. Ashcroft,

327 F.3d 887 (9th Cir. 2008)........cccceececceseseeeeeeee 14

Samirah v. O’Connell,

335 F.3d 545 (7th Cir. 2008) .........ccccceseeeceeeeeesseees 16

Seila Law LLC v. Consumer Fin. Prot. Bureau,

140 S. Ct. 2188 (2020) scsiscssscacsvsvenssvvesssovessasessceeve 11

Sharkey v. Quarantillo,

541 F.3d 75 (2d Cir. 2008) sccsnucnneceesosnmveenxouavonsaness 8

Soltane v. U.S. Dep’t of Justice,

381 F.8d 143 (8d Cir. 2004) oo... eeeceeeeeneeeeeee 6

Spencer Enters., Inc. v. United States,

345 F.3d 683 (9th Cir. 2008)......... cc ceeeeeeececeeeeeeeeeees 6

Ssali v. Gonzales,

424 F.3d 556 (7th Cir. 2005)...........cccceesesecceeeesees 21

Stern v. Marshall,

564 U.S. 462 (2011 )asssssiscecstnnnvenasssechucsavesnvencanveate 11

United States v. Nourse,

34. U.S. 8 (1835) cssissessivssnsvevecccssssvernvsvvereswasounts 11

vii

Urena-Tavarez v. Ashcroft,

367 F.3d 154 (38d Cir. 2004) 0... eeceeesssteeeeeeeee 16

Valarezo-Tirado v. U.S. Att’y Gen..,

6 F.4th 542 (8d Cir, 2021)........ceeesssccecessteeeeeeees 23

Ved v. U.S. Citizenship & Immigr. Servs.,

No. 22-cv-88, 2023 WL 2372360

(D. Alaska Mar. 6, 20238) .........cccccssseessseseeeeeeeeeeeees 17

Voci v. Gonzales,

409 F.3d 607 (8d Cir. 2005) .00.. cece eeeseeeeteeeeees 22

Wellness Int'l Network, Ltd. v. Sharif,

575 U.S. 665 (2015)... isisecssssasesscereesnssessneiesenes 11, 12

Zavaleta-Policiano v. Sessions,

873 F.3d 241 (4th Cir. 2017)... eesseeseeeeeteees 21

Zemeka v. Holder,

989 F. Supp. 2d 122 (D.D.C. 2018)... eee 6

Statutes

8 U.S.C. § 1154 (0 haasssscecisanccsapersctoracnsacateemaaeeaans 6, 12

8 U.S.C. § 1155 oe ccccccecccseeeeeneeeeseeeeeeeeeteeeeneeeennes 19

8 U.S.C. § 1186 a()(4) 0. cece ceceeeeeeeeeeteeeeeeetneeeenees 19

8 U.S.C. § 1252(a)(2)(B) oc eee cecceseseeeetesetnreees 5, 6, 18

8 U.S.C. § 1252(a)(2)(B)G) oo. ceceescesseseessesseeseeseeeesenes 13

8 U.S.C. § 1252(a)(2)(BY GI) vec ceeeeceeccceeeeseveeeens passim

8 U.S.C. § 1252(a)(2)(C)HD) «2.2 .ecescesceeceeeeseteerseeeeeeees 13

8 U.S.C. § 1252(D)(2) ooo eccsseeeeseeeneeeeeteeeteaeeenneeeens 9

Pub. L. No. 104-208, 110 Stat. 3009.00... eeeseeeeees 5

viii

Other Authorities

All Appeals Filed, Completed, and Pending,

Dep’t of Justice, Exec. Off. for Immigr.

Rev. (Oct. 12, 2023),

https://www justice.gov/d9/pages/attachm

ents/2020/02/12/38_all_appeals_filed_com

pleted_pending. pdf........... eee eeeeeeeeeeeeeeeeeneeees

Amid “Nightmarish” Case Backlog, Experts

Call for Independent Immigration Courts,

A.B.A. News (Aug. 9, 2019),

https:/www.americanbar.org/news/abane

ws/aba-news-archives/2019/08/amid-

_nightmarish-case-backlog--experts-callfor-independent-imm ................::sccccsssessneees

Anne Edland & Ola Svenson, Judgment and

Decision Making Under Time Pressure

Studies and Findings, in TIME PRESSURE

AND STRESS IN HUMAN JUDGMENT AND

DECISION MAKING

(Ola Svenson & A. John Maule eds., 1993)

Annual Statistical Report FY 2022, U.S.

Citizenship & Immigr. Servs. (2022),

https://www.uscis.gov/sites/default/files/d

ocument/reports/FY2022_Annual Statisti

cal_Report. pdf ...........ccccecsessssssnseeceeseseneeeees

Board of Immigration Appeals, Exec. Off. for

Immigr. Rev (last visited Dec. 26, 2023),

https://www justice.gov/eoir/board-ofimmigration-appeals#board ..............:c00000

ix

Eberhard Feess & Roee Sarel, Judicial Effort

and the Appeals System: Theory and

Experiment, 47 J. LEGAL STUD. 269 (2018)......... 21

Faiza W. Sayed, The Immigration Shadow

Docket, 117 Nw. U.L. REV. 893 (2023) ....20, 22, 23

Holly Straut-Eppsteiner, Cong. Rsch. Serv.,

R47637, Immigration Judge Hiring and

Projected Impact on the Immigration

Courts Backlog (2023),

https://crsreports.congress.gov/product/pd

E/R/RA163 7 sessexasusovaczecencsavesuvsvoireaseavensssncsvcoresvesseies 18

Immigration Court Backlog Tops 3 Million;

Each Judge Assigned 4,500 Cases,

Transactional Records Access

Clearinghouse (Dec. 18, 2023),

https://trac.syr.edu/reports/734 ........cccceceeseees 4,18

Jonah B. Gelbach & David Marcus,

Rethinking Judicial Review of High

Volume Agency Adjudication,

96 TEX. L. REV. 1097 (2018)... eeeeeeeeeeeteeeees 20

Number of Service-wide Forms by Quarter,

Form Status, and Processing Time April

1, 2028 — June 30, 2023, U.S. Citizenship

& Immigr. Servs.

(last visited Sept. 28, 2023),

https://www.uscis.gov/sites/default/files/d

ocument/data/quarterly_all_forms_fy2023

x

Number of Service-wide Forms By Quarter,

Form Status, and Processing Time July 1,

2022 — September 30, 2022,

U.S. Citizenship & Immigr. Servs.

(Dec. 16, 2022),

hitps://www.uscis.gov/sites/default/files/d

ocument/data/Quarterly_All_ Forms_FY20

22 QA. pf ssceccecmmmmccwpesccisewasencerenuaisicswssieecures 15

Historical National Median Processing Time

(in Months) for All USCIS Offices for

Select Forms By Fiscal Year, U.S.

Citizenship & Immigr. Servs.,

https://egov.uscis.gov/processingtimes/historic-pt (last updated Oct. 31,

DOQB) ...serccccscresscnsvonsscctevsrererecceseresesscsensresenGesdaabbala 18

Rule

Sup. Ct. R. LO... ceceeessseesesseceeeeeeeeeeeneeeeseeeeeeeeeenes

Regulations

8 C.E.LR. § 108.30) ssisssvivensssorsnscscecesonswcesaveuseveccceseeteests 18

8 C.F.R. § 1003.1(a)(L esssessssssasnsevssnccstacsssessdsssensaaponds 19

8 C_FLR. § 1003. 1(b)(5 essiisscccssarenccexaacascinaisansscestasseneas 19

INTEREST OF AMICI CURIAE1

Amici curiae are forty-three former immigration

judges (IJs) and members of the Board of Immigration

Appeals (BIA or Board). A complete list of signatories

can be found in the Appendix of Amici Curiae.

Amici have dedicated their careers to the

immigration court system and to upholding the

immigration laws of the United States. Each is

intimately familiar with the immigration court

system and its procedures. Together they have a

distinct interest in ensuring that claims duly asserted

in immigration cases are afforded the level of Article

III judicial review required by law.

In the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Congress passed

a number of provisions that were intended to

“protect[] the Executive’s discretion from the courts.”

Reno v. Am.-Arab Anti-Discrimination Comm., 525

U.S. 471, 486 (1999). One such provision is 8 U.S.C.

§ 1252(a)(2)(B)Gi), which eliminates judicial 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 of Homeland Security.” Jd. Circuit courts

around the country have, for many years, almost

uniformly interpreted this provision to strip federal

1 Amici state that this brief was not authored in whole or in

part by counsel for any party, and that no person or entity other

than amici, their members, or its counsel made a monetary

contribution intended to fund the preparation or submission of

this brief. Counsel of record for the parties received timely notice

of amici’s intent to file this brief.

2

courts of jurisdiction to review discretionary

decisions—but not nondiscretionary, predicate

determinations. In amici’s experience, this approach

recognizes the decisions that Congress committed to

executive discretion while preserving Article III

review for nondiscretionary determinations in

immigration or visa-related proceedings.

SUMMARY OF ARGUMENT

Congress drew clear boundaries in IIRIRA. The

statute shields executive-branch discretionary

decisions in immigration cases from judicial review

while preserving Article III court review of

nondiscretionary determinations that underlie

discretionary decisions.

This case illustrates what happens when that

Congressional plan is disregarded. Two years after

approving Amina Bouarfa’s application to have her

husband classified as her immediate relative, the

Secretary revoked that approval on the grounds that

the Department of Homeland Security (DHS) lacked

discretion to issue the visa in the first place. It is

undisputed that a nondiscretionary denial of Ms.

Bouarfa’s application when she first filed it would

have been judicially reviewable. However, because

the Secretary subsequent reassessment was

procedurally classified as a revocation—albeit on the

same substantive grounds—the Eleventh Circuit

concluded that Ms. Bouarfa had lost her right to

judicial review. See Bouarfa v. Sec’y, Dep’t of

Homeland Sec., 75 F.4th 1157, 1164 (11th Cir. 2023).

In doing so, the Eleventh Circuit deepened a circuit ,

split, as the Sixth and Ninth Circuits would have

allowed review of the revocation (just like an initial

3

denial) because of the nondiscretionary criteria

underlying it.

The Eleventh Circuit’s view yields the absurd

result that the denial of an immigrant visa petition is

subject to judicial review but revocation a day after

approval is not—even where both decisions are based

on the same substantive grounds. This incongruity

makes an immigrant’s fate dependent on chance

factors—the judicial circuit where the petition is filed

and whether the agency determines it made an error

before or after issuing a visa.

Permitting judicial review of nondiscretionary

determinations comports with the “well-settled” and

“strong” presumption of judicial review that has

“consistently” been applied to immigration legislation,

“particularly to questions concerning the preservation

of federal-court jurisdiction.” Guerrero-Lasprilla v.

Barr, 1408S. Ct. 1062, 1069 (2020) (quoting McNary v.

Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 498

(1991)); Kucana v. Holder, 558 U.S. 233, 251 (2010).

And it avoids the “[sleparation-of-powers concerns”

created by further removing these cases from the

judiciary’s domain. Kucana, 558 U.S. at 237.

In amici’s experience, maintaining Article III

review of predicate nondiscretionary determinations

aids the proper functioning of the immigration

adjudication system. Immigration adjudicators face

heavy caseloads and are under significant pressure to

complete cases rapidly, as amici have experienced

firsthand. Indeed, U.S. Citizenship and Immigration

Services (USCIS) officers face a backlog of nearly 9

million forms, immigration courts face a backlog of

over 3 million cases, and the BIA ended the past fiscal

4

year with a record-high 113,511 pending appeals.”

These severe and growing backlogs lead to errors and

inconsistent results, as amici have also witnessed. In

these circumstances, permitting Article III courts to

correct agency mistakes and provide authoritative,

consistent guidance on the _ application of

nondiscretionary statutory criteria (as Congress

intended) becomes all the more essential. Article III

court review of objective, nondiscretionary

determinations improves outcomes and _ builds

confidence in the system. It is a checking function

that Article III judges routinely undertake. Indeed,

there are numerous examples of federal courts—

including in cases involving erroneous determinations

underlying denials of discretionary relief covered by

§ 1252(a)(2)(B)Gi)—correcting decisions of USCIS,

IJs, and the BIA. Article III review promotes fair,

reasoned, and legally sound immigration proceedings

without interfering in decisions committed to

executive discretion. When individuals like Ms.

Bouarfa find their applications revoked based on a

nondiscretionary determination, ITRIRA does not

block Article III review.

2 See Immigration Court Backlog Tops 3 Million; Each Judge

Assigned 4,500 Cases, Transactional Records Access

Clearinghouse (Dec. 18, 2023), https://trac.syr.edu/reports/734;,

All Appeals Filed, Completed, and Pending, Dep’t of Justice,

Exec. Off. for Immigr. Rev. (Oct. 12, 2028),

https://www _justice.gov/d9/pages/attachments/2020/02/12/38_all

_appeals_filed_completed_pending.pdf; Number of Service-wide

Forms by Quarter, Form Status, and Processing Time April 1,

2023 — June 30, 20238, U.S. Citizenship & Immigr. Servs. (last

visited Dec. 28, 2023),

https://www.uscis.gov/sites/default/files/document/data/quarterl

y_all_forms_fy2023_q3.pdf.

5

ARGUMENT

I. THIS COURT SHOULD RESOLVE THE CIRCUIT

SPLIT CONCERNING ARTICLE III REVIEW

UNDER ITRIRA § 1252(A)(2)(B) (Dp

“Traditionally, courts recognized a distinction

between eligibility for discretionary relief, on the one

hand, and the favorable exercise of discretion, on the

other hand.” INS v. St. Cyr, 533 U.S. 289, 307 (2001).

As such, “[e]ligibility that was ‘governed by specific

statutory standards’ provided ‘a right to a ruling on

an applicant’s eligibility, even though the actual

granting of relief was ‘not a matter of right under any

circumstances, but rather is in all cases a matter of

grace.” Id. at 307-08 (quoting Jay v. Boyd, 351 U.S.

345, 353-54 (1956)).

The statutory provision at issue here reflects that

distinction. In 1996, Congress amended the

Immigration and Nationality Act by enacting the

Illegal Immigration Reform and _ Immigrant

Responsibility Act. Pub. L. No. 104-208, 110 Stat.

38009. The “theme” of IIRIRA was “protecting the

Executive’s discretion from the courts.” Reno, 525

U.S. at 486 (emphasis added).

One provision that provides such protection is 8

U.S.C. § 1252(a)(2)(B). This subsection, titled

“Denials of discretionary relief,” contains two

subclauses. The second, at issue here, provides that

“no court shall have jurisdiction to review”

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 of

6

Homeland Security, other than the granting

of relief under section 1158(a) of this title.

Id. § 1252(a)(2)(B)Gi) (emphasis added).

The Sixth and Ninth Circuit Courts of Appeals

agree that, although the plain language of this

provision limits judicial review of the Secretary’s

discretionary decisions, it does not strip jurisdiction

when the Secretary revokes approval of an immigrant

visa petition on the basis of nondiscretionary criteria.

See Jomaa v. United States, 940 F.3d 291, 294-96 (6th

Cir. 2019); ANA Intl Inc. v. Way, 393 F.3d 886, 894

(9th Cir. 2004). Rightfully so. There is no dispute that

an initial denial of a § 1154(c) petition based on a

nondiscretionary finding would be reviewable.? And

as the government acknowledged in a different case,4

3 See Bouarfa, 75 F.4th at 1162 (noting the parties’ agreement

“that the denial of a petition based on section 1154(c)...is anondiscretionary decision that is subject to judicial review” and the

court’s previous review of the denial of an I-130 petition); see also

Soltane v. U.S. Dep’t of Justice, 381 F.3d 148, 147-48 (8d Cir.

2004) (holding that the denial of an employment-based visa

petition is reviewable by a federal court despite

§ 1252(a)(2)(B)(ii) because the statute states that a visa “shall be

made available” under certain conditions); Spencer Enters., Inc.

v. United States, 345 F.3d 683, 689 (9th Cir. 2003) (same);

Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006) (presuming

that denials of spousal visa petitions are reviewable under the

Administrative Procedure Act); Zemeka v. Holder, 989 F. Supp.

2d 122, 127-32 (D.D.C. 2018) (reviewing the denial of a visa

petition based on marriage fraud).

4 See Br. for Resp’t Supporting Pet’r 11, 23, 31, Patel v.

Garland, 596 U.S. 328 (2022) (No. 20-979) (explaining that

§ 1252(a)(2)(B) “bars review of discretionary determinations, but

not of underlying nondiscretionary determinations,” and noting

7

§ 1252(a)(2)(B)Gi) does not bar review of “nondiscretionary decisions that underlie determinations

that are ultimately discretionary.” Hosseini v.

Johnson, 826 F.3d 354, 358 (6th Cir. 2016) (quoting

Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir.

2004)); see also Rajasekaran v. Hazuda, 815 F.3d

1095, 1099 (8th Cir. 2016) (“[S]till reviewable is .. . ‘a

nondiscretionary determination underlying the denial

of relief.”) (quoting Abdelwahab v. Frazier, 578 F.3d

817, 821 (8th Cir. 2009)). Logically, the agency’s

nondiscretionary determination concerning the same

relief should not become unreviewable just because it

is procedurally classified as a revocation rather than

an initial denial.

Despite the Sixth and Ninth Circuits’ wellreasoned rulings, the Eleventh Circuit precluded

judicial review and deepened the circuit split.

Bouarfa, 75 F.4th at 1162-64. Following the Second,

Third, and Seventh Circuits, the Eleventh Circuit

concluded that courts lack subject-matter jurisdiction

to review revocations of visa petitions based on

nondiscretionary criteria, ignoring the fact that the

sham-marriage bar underlying the revocation of Ms.

Bouarfa’s petition is a nondiscretionary statutory

factor. Nouritajer v. Jaddou, 18 F.4th 85, 89-90 (2d

Cir. 2021); Jilin Pharm. USA, Inc. v. Chertoff, 447

F.3d 196, 203-05 (3d Cir. 2006); El-Khader v. Monica,

366 F.3d 562, 568 (7th Cir. 2004). Put differently,

although all Courts of Appeals agree that

§ 1252(a)(2)(B)Gi) does not strip jurisdiction over

that “nearly all court of appeals” to address this issue has

agreed).

8

nondiscretionary determinations,® there is a circuit

split over whether a citizen can obtain judicial review

5 See Cho v. Gonzales, 404 F.3d 96, 99-102 (1st Cir. 2005)

(finding that § 1252(a)(2)(B)Gi) did not bar review of the relevant

decision because it was non-discretionary); Sharkey v.

Quarantillo, 541 F.3d 75, 86 (2d Cir. 2008) (finding that “the

jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)ii) does not apply”

because the alleged rescission was not “in the discretion of the

Attorney General”); Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.

2005) (“Non-discretionary actions .. . remain subject to judicial

review.”); Moore v. Frazier, 941 F.3d 717, 725 (4th Cir. 2019)

(finding that “the district court erred in dismissing the complaint

for lack of jurisdiction” because the relevant decision was nondiscretionary); Flores v. Garland, 72 F Ath 85, 92 (5th Cir. 2023)

(“[A] court may have jurisdiction to review the agency’s nondiscretionary decision... . .”); Hussam F. v. Sessions, 897 F.3d

707, 723 (6th Cir. 2018) (“The jurisdiction-stripping provision in

8 U.S.C. § 1252(a)(2)(B)Gi) does not extend to non-discretionary

decisions upon which the discretionary decision is predicated.”)

(internal quotation marks omitted); Cuellar Lopez v. Gonzales,

427 F.3d 492, 493 (7th Cir. 2005) (“[A] non-discretionary question

of statutory interpretation .. . falls outside § 1252(a)(2)(B)’s

jurisdiction stripping rule.”); Rajasekaran, 815 F.3d at 1099

(“{S]till reviewable is . . . a nondiscretionary determination

underlying the denial of relief.”) (internal quotation marks

omitted); Poursina v. USCIS, 936 F.3d 868, 875 (9th Cir. 2019)

(Ҥ 1252(a)(2)(B)Gi) allows us to review certain legal conclusions

made on nondiscretionary grounds... .”) (internal quotation

marks omitted); Estrada-Ortega v. Barr, 824 F. App’x 559, 563

(10th Cir. 2020) (“[Wle have jurisdiction to hear appeals from

nondiscretionary BIA decisions.”); Mejia Rodriguez v. U.S. Dep’t

of Homeland Sec., 562 F.3d 1137, 114445 (11th Cir. 2009)

(Ҥ 1252(a)(2)(B)Gi) does not preclude... review[] ... because. .

. non-discretionary ... decisions made by USCIS fall outside the

limitations on judicial review in the INA.”) (emphasis in

original); Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland

Sec., 769 F.3d 1127, 1138-89 (D.C. Cir. 2014) (finding that

§ 1252(a)(2)(B)Gi) did not bar review of the relevant decision

because it was non-discretionary).

9

of DHS’s subsequent revocation of an approved visa

petition on the basis of a nondiscretionary

requirement.

This Court should grant a writ of certiorari to

resolve the open conflict. See Supreme Court Rule 10

(noting that conflict among the circuits is a basis for

certiorari). As a consequence of the circuit split,

DHS’s denial of an immigrant visa petition is subject

to judicial review but a DHS revocation of the same

approved petition performed just a day after DHS

approval is not—even where both decisions concern

the same relief and are based on the same substantive

grounds. Cf. Kucana, 558 U.S. at 252 (“If the Seventh

Circuit’s construction of § 1252(a)(2)(B)Gi) were to

prevail, the Executive would have a free hand to

shelter its own decisions from abuse-of-discretion

appellate court review simply by issuing a regulation

declaring those decisions ‘discretionary.”). And that

incongruity leads to the absurd result that a

petitioner’s fate depends on which circuit’s rule covers

the location where a visa petition is filed and

adjudicated. See 8 U.S.C. § 1252(b)(2) (“The petition

for review shall be filed with the court of appeals for

the judicial circuit in which the immigration judge

completed the proceedings.”); see also Fang Lin Ai v.

United States, 809 F.8d 503, 507 (9th Cir. 2015)

(explaining that “a circuit split would create two

mutually exclusive rules ... leading to uncertainty

and obvious forum shopping opportunities”). That

more circuits have adopted the government’s view

does not weigh against granting review or suggest

that this view has merit. See, e.g., Nasrallah v. Barr,

140 S. Ct. 1688, 1689 (2020) (“Most Courts of Appeals

have sided with the Government|.]”).

10

II. THE ELEVENTH CIRCUIT’S RULE UPSETS THE

BALANCE THAT ITRIRA STRIKES BETWEEN

EXECUTIVE DISCRETION AND ARTICLE III

REVIEW

The Eleventh Circuit’s arbitrary rule conflicts

with ITRIRA’s mandate and this Court’s rulings on the

strong presumption in favor of judicial’ review,

warranting a grant of certiorari. See Kucana, 558

U.S. at 251-52. “From the beginning,” the Court has

established that “judicial review of a final agency

action by an aggrieved person will not be cut off unless

there is persuasive reason to believe that such was the

purpose of Congress.” Bowen v. Mich. Acad. of Fam.

Physicians, 476 U.S. 667, 670 (1986) (quoting Abbott

Lab’ys v. Gardner, 387 U.S. 136, 140 (1967)).

As a result, there is a “well-settled” and “strong”

presumption favoring judicial review of

administrative action. Guerrero-Lasprilla, 140 S. Ct.

at 1069 (quoting McNary, 498 U.S. at 496, 498). The

Court has “consistently” applied this presumption to

“legislation regarding immigration, and particularly

to questions concerning the preservation of federalcourt jurisdiction.” Kucana, 558 U.S. at 251; see also

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)

(“[S]ince the stakes are considerable for the

individual, we will not assume that Congress meant

to trench on his freedom beyond that which is required

by the narrowest of several possible meanings of the

words used.”). To that end, the Court “assumes that

‘Congress legislates with knowledge of the

presumption,” and thus requires “clear and

convincing evidence’ to dislodge” it. Kucana, 558 U.S.

at 252 (quoting Reno v. Cath. Soc. Servs., Inc., 509

USS. 48, 64 (1993)).

11

Relatedly, “[s]leparation-of-powers concerns” also

militate “against reading legislation, absent clear

statement, to place in executive hands authority to

remove cases from the Judiciary’s domain.” Jd. at 237.

“Article II] is an inseparable element of the

constitutional system of checks and balances” and

“preservels] the integrity of judicial decisionmaking.”

Stern v. Marshall, 564 U.S. 462, 482, 484 (2011)

(internal quotation marks omitted). Consequently,

this Court has found that Article III “bar[s]

congressional attempts to transfer jurisdiction [to

non-Article III tribunals] for the purpose of

emasculating constitutional courts and _ thereby

preventing the encroachment or aggrandizement of

one branch at the expense of the other.” Commodity

Futures Trading Comm’n v. Schor, 478 U.S. 833, 850

(1986) (alteration in original) (internal quotation

marks omitted). Accordingly, in the bankruptcy

context, for instance, this Court has held that “Article

I adjudicators” may decide claims without “offend[ing]

the separation of powers” only “so long as Article III

courts retain supervisory authority over the process.”

Wellness Int'l Network, Ltd. v. Sharif, 575 U.S. 665,

678 (2015). To allow otherwise risks upsetting the

Framers’ “solution to governmental power and its

perils .. .: divid[ing] it.” Seila Law LLC v. Consumer

Fin. Prot. Bureau, 140 S. Ct. 2183, 2202 (2020).

Against this backdrop, “it is most unlikely that

Congress intended to foreclose all forms of meaningful

judicial review” in § 1252(a)(2)(B)Gi). McNary, 498

U.S. at 496 (emphasis added). Doing so would leave

an individual aggrieved by an _ incorrect

nondiscretionary determination with “no remedy, no

appeal to the laws of his country.” United States v.

12

Nourse, 34 U.S. 8, 9 (1835) (Marshall, C.J.). At the

same time, it would deny Article III courts

“supervisory authority” to check that

nondiscretionary determinations are correct, and to

provide administrative adjudicators consistent

guidance on such determinations going forward.

Wellness Intl, 575 U.S. at 678. And it would do so in

a particularly arbitrary manner, allowing judicial

review of visa petitions denied outright on predicate

nondiscretionary grounds like the sham-marriage bar

but not visa decisions later revisited and revoked on

the very same basis.

This case illustrates why § 1252(a)(2)(B)(ii)

should not be read to foreclose Article III review of

agency determinations that in any way touch upon the

forms of relief specified therein. Ms. Bouarfa’s

application to have her husband, Ala’a Hamayel,

classified as her immediate relative was approved.

But two years later, the Secretary revisited that

decision and revoked the approval on the ground that

DHS should have denied her application in the first

place under 8 U.S.C. § 1154(c)’s “sham-marriage bar.”

There is no dispute that an initial decision to deny the

petition based on §1154(c) would have been

reviewable in every circuit. But under the Eleventh

Circuit’s ruling, that the Secretary (by his own belated

estimation) later found error in that initial decision

means that Ms. Bouarfa lost her access to judicial

review of the very same statutory factor.

The nondiscretionary determination embedded

within the agency’s ultimate conclusion—whether Mr.

Hamayel entered into a previous “sham marriage’—

is the type of nondiscretionary determination that

Article III courts are well equipped to review. Cf.

13

Nasrallah, 140 S. Ct. at 1694 (holding that 8 U.S.C.

§ 1252(a)(2)(C)+4D) does not preclude judicial review

of facts underlying Convention Against Torture

orders). Section 1252(a)(2)(B) reflects “Congress’

choice to provide reduced procedural protection for

discretionary relief’ only, Patel v. Garland, 596 U.S.

328, 345 (2022) (emphasis added), not

nondiscretionary decisions like the application of the

sham-marriage bar.

This case provides the Court with an opportunity

to elucidate, consistent with Patel, the types of

nondiscretionary decisions that are judicially

reviewable. Patel held that § 1252(a)(2)(B)(i)’s text,

which is directed to “any judgment regarding” actions

taken by the Secretary, precluded judicial review of

underlying nondiscretionary determinations. Patel,

596 U.S. at 338 (emphasis in original). In contrast,

the text of the subsection at issue here references only

decisions or actions “in the discretion of’ the

Secretary. 8 U.S.C. § 1252(a)(2)(B)Gi) (emphasis

added); see also Mia v. Renaud, No. 22-cv-2098, 2023

WL 7091915, at *5 (E.D.N.Y. Oct. 26, 2023)

(explaining that “the provision at issue in Patel,

§ 1252(a)(2)(B)G), materially differs from

§ 1252(a)(2)(B)Gi)”). Thus, subsection (ii) explicitly

addresses only judicial review of discretionary

decisions, and does not speak to judicial review of

nondiscretionary decisions, such as whether Mr.

Hamayel engaged in a prior “sham marriage,”

regardless of whether the Secretary was “required” to

revoke the petition approval as a result. Patel did not

directly address subsection (ii), and the Court should

therefore resolve the circuit conflict over whether

Congress intended to leave open Article III judicial

14

review under that provision. See Alzaben v. Garland,

66 F.4th 1, 6 (1st Cir. 2023) (noting that Patel “does

not directly address the scope” of § 1252(a)(2)(B)(ii)).

“Congress has to structure and allocate the

resources of our immigration system,” such that

“judicial review may be thought to be warranted in

some, but not all, situations.” Bernardo ex rel. M & K

Eng’g, Inc. v. Johnson, 814 F.3d 481, 494 (1st Cir.

2016). In § 1252(a)(2)(B)Gi) of IIRIRA, Congress

defined a protected territory for certain agency

decisions by removing judicial review over “subjective

question|[s] that depend|[] on the value judgment of the

person or entity examining the issue,” Romero-Torres

v. Ashcroft, 327 F.3d 887, 891 (9th Cir. 2003) (internal

quotation marks omitted), while retaining judicial

review over underlying nondiscretionary

determinations.

This division prevents Article III courts from

second-guessing subjective determinations—such as

whether discretionary relief is appropriate in any

particular case—while preserving the courts’ ability

to correct agency errors involving statutory factors or

objective factual determinations that are antecedent

to those discretionary determinations. See Patel, 596

U.S. at 353, 358 (Gorsuch, J., dissenting) (explaining

that by labelling this subsection, “Denials of

discretionary relief,” “Congress left little doubt that

subparagraph (B) and its accompanying clauses (i)

and (ii) are designed to bar review of only those

decisions invested to the Attorney General’s

discretion, not antecedent statutory eligibility

determinations”).

Tor these reasons, the decision below conflicts

15

with this Court’s rulings, and cannot be squared with

text, precedent, or common sense.

III. ARTICLE ITI REVIEW OF NONDISCRETIONARY

DETERMINATIONS IS CRITICAL TO CORRECT

UNAVOIDABLE ERRORS THAT OVERBURDENED

IMMIGRATION ADJUDICATORS WILL MAKE

The Eleventh Circuit’s decision to foreclose all

forms of meaningful review in § 1252(a)(2)(B)Gi) has

far-reaching consequences. Every year, USCIS, the

immigration courts, and the BIA adjudicate literally

hundreds of thousands of proceedings that involve

ultimate exercises of discretion under

§ 1252(a)(2)(B)i). For example, in FY 2022, USCIS

issued:

76,200 revocations of employment-based

nonimmigrant visas;

528,548 advance parole decisions;

109,925 decisions on petitions to remove

conditions on residence;

70,821 decisions on applications to adjust asylees’

and refugees’ status;

9,492 denials of petitions for fiancée visas; and

6,064 decisions on applications for provisional

unlawful presence waivers.8

6 Annual Statistical Report FY 2022, at 10, U.S. Citizenship &

Immigr. Servs. (2022),

https://www.uscis.gov/sites/default/files/document/reports/FY20

22_Annual_Statistical_Report.pdf; Number of Service-wide

Forms By Quarter, Form Status, and Processing Time July 1,

2022 — September 30, 2022, U.S. Citizenship & Immigr. Servs.

(Dec. 16, 2022),

16

The interpretation of § 1252(a)(2)(B)Gi)’s scope

determines whether and to what extent these types of

frequently recurring decisions are subject to judicial

review.’ When such decisions turn on

nondiscretionary determinations, those

nondiscretionary determinations ought to be subject

to Article III review. Article III review of

nondiscretionary determinations—including those

that underlie the agency’ ultimate exercise of

discretion—can provide critical guidance to agency

decisionmakers so that “minimum standards of legal

justice” are met in this flood of adjudications.

Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir.

2005).

In cases like this one, an erroneous agency

determination could require families to make the

impossible choice of either living in different countries

or leaving the United States altogether. Because

“[djeportation is always ‘a particularly severe

penalty” for individuals and their families, Lee v.

https://www.uscis.gov/sites/default/files/document/data/Quarter]

y_All_Forms_FY2022_Q4.pdf.

7 See Hosseini, 826 F.3d at 358 (finding decision on adjustment

of asylee’s status to permanent resident falls under

§ 1252(a)(2)(B)(ii), but reviewing predicate nondiscretionary

determination); Jilin Pharm., 447 F.3d at 205 (finding revocation

of an employment-based nonimmigrant visa falls under

§ 1252(a)(2)(B)Gi)); Urena-Tavarez v. Ashcroft, 367 F.3d 154, 156

(8d Cir. 2004) (decisions on petition to remove conditions on

residence); Samirah v. O'Connell, 335 F.3d 545, 547 (7th Cir.

2003) (decisions on advance parole); Dehrizi v. Johnson, No. 15-

cv-8, 2016 WL 270212, at *1 (D. Ariz. Jan. 21, 2016) (adjustment

of asylee’s status to permanent resident); Beeman v. Napolitano,

No. 10-ev-808, 2011 WL 1897931, at *2 (D. Or. May 17, 2011)

(denial of petition for fiancée visa).

17

United States, 582 U.S. 357, 370 (2017) (quoting

Padilla v. Kentucky, 559 U.S. 356, 365 (2010)), review

of predicate nondiscretionary determinations is

essential to preventing adjudicators from

categorically barring discretionary relief or making a

discretionary decision—with severe consequences—

based on an objectively incorrect finding. And, where

courts do find and correct errors in the application of

nondiscretionary statutory factors, agencies can look

to those decisions for clear guidance going forward.

Reading § 1252(a)(2)(B)Gi) in the manner

advocated by Petitioner, and followed by the Sixth and

Ninth Circuits, would allow Article III judges to

perform a review function with which they are

completely familiar. Indeed, federal courts have

stepped in to address significant nondiscretionary

errors underlying visa revocations and to offer clear

directives for avoiding future errors of that nature.

See, e.g., Ved v. U.S. Citizenship & Immigr. Servs., No.

22-cv-88, 2023 WL 2372360, at *6, *9 (D. Alaska Mar.

6, 2023) (finding USCIS’s revocation of an

employment-based visa after ten-plus years, based on

the agencys finding that visa’s issuance was

mistaken, was “not adequately explained or

supported” and _ relied on (“an _ inaccurate

representation of the record”); Doe I v. U.S. Dep’t of

Homeland Sec., No. 20-cv-7517, 2022 WL 1212018, at

*7 (N.D. Cal. Apr. 25, 2022) (reversing revocation of

an employment visa where USCIS failed to follow

notice requirements); Coniglio v. Garland, 556 F.

Supp. 3d 187, 204, 207 (E.D.N.Y. 2021) (cautioning

that “agencies [must] adhere to circuit precedent,”

reviewing nondiscretionary legal decisions underlying

visa revocation, and finding that USCIS erroneously

18

“separate[d] a family to satisfy a rule of bureaucratic

convenience”).

Practically speaking, Article III judicial review

would provide the relevant administrative actors—

USCIS officers, IJs, and the BIA—with the guidance

needed to manage their burgeoning dockets.

First, USCIS officers face a backlog of nearly 9

million forms, including 1.9 million I-130 petitions to

classify a non-citizen as a relative of a U.S. citizen.

In 2022, USCIS received more I-130 visa petitions

than it had in the previous five years, but adjudicated

fewer.9 Compounding the risk of error and

inconsistency, only a fraction of USCIS decisions are

published.10

Immigration courts likewise face a growing

national backlog of over 3 million cases.1! That

calculates to an average backlog of nearly 4,500 cases

for each of the approximately 682 IJs.12 One judge

8 Number of Service-wide Forms by Quarter, supra note 2; see

also Historical National Median Processing Time (in Months) for

All USCIS Offices for Select Forms By Fiscal Year, U.S.

Citizenship & Immigr. Servs., https://egov.uscis.gov/processingtimes/historic-pt (last updated Oct. 31, 2023) (showing increase

in I-130 processing times over past five years, albeit with a slight

dip in the first month of FY 2024).

9 Annual Statistical Report FY 2022, supra note 6.

10 g CFR. § 103.3(c) (providing for publication only of

precedential decisions selected by higher-level officials).

11 Immigration Court Backlog Tops 3 Million, supra note 2.

12 Td. An estimated 1,349 IJs would be needed to clear the

backlog by 2032. Holly Straut-Eppsteiner, Cong. Rsch. Serv.,

R47637, Immigration Judge Hiring and Projected Impact on the

19

described her experience as “nightmarish,” explaining

that to tackle her “pending caseload [of] about 4,000

cases”—a staggering number, yet one that falls below

the current average—she had only “about half a

judicial law clerk and less than one full-time legal

assistant to help [her].”18 While IJs are not involved

in decisions to revoke visas issued under Form I-130

like Ms. Bouarfa’s—USCIS makes those decisions,

and the BIA handles appeals from them, see 8 U.S.C.

§ 1155; 8 C.F.R. § 1003.1(b)(5)—IJs do adjudicate

other applications and proceedings that courts have

held fall under § 1252(a)(2)(B)(ii).14

The BlIA—capped at 23 members, plus four

temporary members—is swamped.15 At the end of

fiscal year 2023, it had 113,511 pending appeals, up

14 percent from the prior year and 151 percent from

Immigration Courts Backlog 10 (2028),

https://crsreports.congress.gov/product/pdf/R/R47637.

13 Amid “Nightmarish” Case Backlog, Experts Call for

Independent Immigration Courts, A.B.A. News (Aug. 9, 2019),

https://www.americanbar.org/news/abanews/aba-newsarchives/2019/08/amid-_nightmarish-case-backlog--experts-callfor-independent-imm.

14 See, e.g., Alzaben, 66 F.4th at 6-8 (analyzing hardship waiver

under 8 U.S.C. § 1186a(c)(4)); Malik v. Att’y Gen., No. 21-2177,

2022 WL 1024623, at *3 n.4 (8d Cir. Apr. 6, 2022) (noting the

denial of a hardship waiver under 8 U.S.C. § 1186a(c)(4)).

15 See 8 C.F.R. § 1003.1(a)(1); Board of Immigration Appeals,

Exec. Off. for Immigr. Rev (last visited Dec. 26, 2023),

https://Awww justice. gov/coir/board-of-Immigrationappeals#board. The number of temporary members can vary.

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