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

No. 23-583

IN THE

Supreme Court of the United States

d

AMINA BOUARFA ,

Petitioner,

—v.—

ALEJANDRO MAYORKAS ,

SECRETARY OF HOMELAND SECURITY, ET AL .,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICI CURIAE

THE AMERICAN CIVIL LIBERTIES UNION

AND THE ACLU OF FLORIDA

Lee Gelernt

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

Daniel B. Tilley

ACLU FOUNDATION OF FLORIDA

4343 West Flagler Street,

Suite 400

Miami, FL 33134

Cody Wofsy

Counsel of Record

Hannah Schoen Steinberg

Noelle A. Smith

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street,

7th Floor

San Francisco, CA 94104

(415) 343-0785

cwofsy@aclu.org

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI ............................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 1

ARGUMENT ............................................................... 6

I. PATEL DOES NOT APPLY TO

8 U.S.C. § 1252(a)(2)(B)(ii) ......................... 6

A. The Text of Clause (ii) Is

Critically Narrower than That

of Clause (i)....................................... 7

B. Clause (ii) Is a Catchall

Provision for Clause (i)’s

Forms of Relief, Not for Any

Judgment Regarding Those

Forms of Relief ............................... 11

C. Any Doubts as to the Statute’s

Interpretation Should Be

Resolved in Favor of

Judicial Review .............................. 19

CONCLUSION.......................................................... 22

i

TABLE OF AUTHORITIES

Page

CASES

Arcadia v. Ohio Power Co.,

498 U.S. 73 (1990) ............................................... 15

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ............................................. 16

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) ............................................. 16

Facebook, Inc. v. Duguid,

592 U.S. 395 (2021) ............................................. 14

Fischer v. United States,

603 U.S. ---, 2024 WL 3208034 (2024) ................ 17

Gallardo ex rel. Vassallo v. Marstiller,

596 U.S. 420 (2022) ......................................... 7, 10

Grecian Magnesite Mining, Industrial &

Shipping Co., SA v. Commissioner of

Internal Revenue Service,

926 F.3d 819 (D.C. Cir. 2019) ............................. 15

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) ............................................. 20

Hall v. United States Department of

Agriculture,

984 F.3d 825 (9th Cir. 2020) ............................... 15

Harrington v. Purdue Pharma L.P.,

603 U.S. ---, 2024 WL 3187799 (2024) ................ 16

ii

Jama v. Immigration & Customs Enforcement,

543 U.S. 335 (2005) ......................................... 9, 16

Kucana v. Holder,

558 U.S. 233 (2010) ..............5, 7, 10, 12, 17, 18, 20

Lamar, Archer & Cofrin, LLP v. Appling,

584 U.S. 709 (2018) ............................................... 8

Lindahl v. Office of Personnel Management,

470 U.S. 768 (1985) ............................................. 20

Lockhart v. United States,

577 U.S. 347 (2016) ....................................... 14, 15

Mellouli v. Lynch,

575 U.S. 798 (2015) ............................................. 13

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Dabit,

547 U.S. 71 (2006) ............................................... 19

Nken v. Holder,

556 U.S. 418 (2009) ............................................... 9

Patel v. Garland,

596 U.S. 328 (2022) ........2, 4, 5, 6, 8, 10, 13, 19, 21

Reno v. American-Arab Anti-Discrimination

Committee,

525 U.S. 471 (1999) ............................................. 18

Salinas v. United States Railroad

Retirement Board,

592 U.S. 188 (2021) ................................... 8, 20, 21

Sandoz Inc. v. Amgen Inc.,

582 U.S. 1 (2017) ................................................... 8

iii

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) ............................................... 7

United States v. Davis,

961 F.3d 181 (2d Cir. 2020) ................................. 15

United States v. Naftalin,

441 U.S. 768 (1979) ............................................. 10

Yates v. United States,

574 U.S. 528 (2015) ....................................... 16, 17

STATUTES

8 U.S.C. § 1155 .................................................. 2, 3, 18

8 U.S.C. § 1159(b) ....................................................... 3

8 U.S.C. § 1252(a)(2)(B) .................................... 2, 9, 20

8 U.S.C. § 1252(a)(2)(B)(i) .......................................... 4

8 U.S.C. § 1252(a)(2)(B)(ii) ........1, 2, 4, 5, 8, 10, 21, 22

8 U.S.C. § 1252(a)(2)(D) ............................................ 21

8 U.S.C. § 1252(b)(3)(B) .............................................. 9

OTHER AUTHORITIES

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2012) ............................... 7, 13, 14, 15

iv

INTEREST OF AMICI 1

The American Civil Liberties Union (“ACLU”)

is a nationwide, nonprofit, nonpartisan organization

with nearly two million members and supporters

dedicated to the principles of liberty and equality

embodied in our nation’s Constitution and civil rights

laws. The ACLU, through its Immigrants’ Rights

Project (“IRP”) and state affiliates, engages in a

nationwide program of litigation, advocacy, and public

education to enforce and protect the constitutional

and civil rights of noncitizens. The ACLU of Florida

is an affiliate of the ACLU.

Amici have a longstanding interest in the

jurisdictional issues in this case. ACLU IRP has

litigated numerous cases addressing the jurisdictional

provisions of the immigration laws, including INS v.

St. Cyr, 533 U.S. 289 (2001) as counsel, and Kucana v.

Holder, 558 U.S. 233 (2010) and Guerrero-Lasprilla v.

Barr, 589 U.S. 221 (2020) as amicus.

INTRODUCTION AND SUMMARY OF

ARGUMENT

If a noncitizen seeking a family-based

immigrant visa has entered into a sham marriage in

the past, the government has no discretion to grant

the visa; it must deny. There is no dispute that if the

government denies the visa on this nondiscretionary

sham-marriage ground, the noncitizen’s petitioning

spouse may seek judicial review. This case presents

the question whether judicial review is precluded

under 8 U.S.C. § 1252(a)(2)(B)(ii) if that same sham1 No party or counsel for a party authored this brief in whole or

in part, and no one other than amici, their members, and their

counsel have paid for the preparation or submission of this brief.

1

marriage determination is made in the context of a

visa revocation, rather than by denying the visa

petition in the first place.

In this case, the government initially approved

Petitioner Amina Bouarfa’s visa petition on behalf of

her husband, Ala’a Hamayel.

However, the

government subsequently revoked the petition under

8 U.S.C. § 1155, which provides that the Secretary of

Homeland Security “may, at any time, for what he

deems to be good and sufficient cause, revoke” a visa

approval, after the agency concluded that

Mr. Hamayel had entered into a prior marriage for the

purpose of evading the immigration laws.

The agency’s conclusion that Mr. Hamayel’s prior

marriage was a “sham” was a nondiscretionary

determination. It is thus reviewable because the

jurisdictional

statute

at

issue

here,

8 U.S.C. § 1252(a)(2)(B)(ii), eliminates review over

discretionary determinations, but does not bar review

of nondiscretionary determinations, whether or

not related to discretionary forms of relief.

As set forth below, Congress made that clear by the

words it chose.

The government has offered two principal

arguments for why the agency’s nondiscretionary

determination

is

nonetheless

unreviewable.

See Br. for Resp’ts in Opp’n (“BIO”) 8–13.

The government’s first argument is sweeping: that

the Court should apply its jurisdictional holding in

Patel v. Garland, 596 U.S. 328 (2022), regarding

clause (i) of § 1252(a)(2)(B), to the jurisdictional

provision at issue here, clause (ii). BIO 12. 2 On that

2 8 U.S.C. § 1252(a)(2)(B) provides in relevant part:

2

view, clause (ii) would bar review of all determinations,

whether discretionary or nondiscretionary, that relate

in some way to the various discretionary issues

covered by clause (ii). 3 The government’s narrower

argument is that, even if Patel’s holding does not

apply and the jurisdictional provision at issue here

precludes

review

of

only

discretionary

determinations—as the plain words of the statute

indicate—Ms. Bouarfa is still not entitled to review.

Id. at 8–11. That is because, in the government’s view,

it seemingly does not matter why the agency chose to

revoke the visa petition as long as it could revoke a

visa petition under § 1155 in the exercise of discretion.

Both arguments are incorrect. In this brief, amici

[N]o court shall have jurisdiction to review-(i)

any judgment regarding the granting of

relief under section 1182(h), 1182(i),

1229b, 1229c, or 1255 of this title, or

(ii)

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, other than the granting of relief

under section 1158(a) of this title.

3 In the course of reaching a decision on discretionary relief, an

agency may make numerous subsidiary determinations, each of

which may or may not be discretionary. For example, the

Secretary of Homeland Security or the Attorney General may, “in

the Secretary’s or the Attorney General’s discretion,” adjust the

status of an asylee to that of a lawful permanent resident.

See 8 U.S.C. § 1159(b). But in order to do so, the Attorney

General must conclude, inter alia, that the noncitizen has been

physically present in the United States for at least one year after

being granted asylum; this issue is a nondiscretionary

determination. Id. § 1159(b)(2).

3

address only the government’s first argument and

explain why Patel’s holding should not apply here.

Patel addressed only clause (i) of 8 U.S.C.

§ 1252(a)(2)(B), which covers five specific forms of

discretionary relief from removal. 596 U.S. at 336–37.

The Court held that all agency judgments relating to

those five forms of relief are barred from review

regardless of whether the judgment at issue is

discretionary or nondiscretionary.

Id. at 338.

Accordingly, the Court found no jurisdiction over the

factual determination at issue there. Id. at 347.

This case involves clause (ii), 8 U.S.C.

§ 1252(a)(2)(B)(ii), which is a catchall provision

covering other discretionary decisions or actions not

enumerated in clause (i). Unlike clause (i), which

refers to “any judgment regarding” the five

enumerated forms of relief from removal, clause (ii)

explicitly refers to “any other decision or action”

statutorily placed “in the discretion of the Attorney

General or the Secretary of Homeland Security.”

Therefore, clause (ii)’s bar on judicial review does not

reach nondiscretionary determinations that form the

basis

of

the

agency’s

decision—here,

the

nondiscretionary determination that Mr. Hamayel’s

prior marriage was illegitimate.

The government’s clause (ii) argument is that a

nondiscretionary determination relating to an

ultimate exercise of discretion triggers the bar on

judicial review.

But this ignores the critical

distinction Congress made between the text of the two

clauses: Clause (i) bars review broadly over “any

judgment regarding the granting of relief” under the

five enumerated statutory provisions.

8 U.S.C.

§ 1252(a)(2)(B)(i) (emphasis added). Stressing the

4

word “regarding,” Patel held that Congress intended

to preclude review not just of the ultimate exercise of

discretion, but of any determination “relating to” these

forms of relief. 596 U.S. at 338–39 (emphasis omitted).

Had Congress wanted to strip jurisdiction as

broadly as the government suggests here, it could

have included “any judgment regarding” in clause (ii),

or as part of the prefatory language that applies across

both clause (i) and clause (ii).

Instead, as to

discretionary “decisions” or “actions” not enumerated

in clause (i), Congress did not use the broadening

phrase “any judgment regarding [the discretionary

decision]” and provided instead that review is barred

only over “any other decision or action . . . the

authority for which is specified [by statute] to be in the

discretion of” agency officials. 8 U.S.C. § 1252(a)(2)(B)(ii).

A sham-marriage determination is not “specified [by

statute] to be in the discretion of” agency officials.

Under the plain text of clause (ii), nondiscretionary

decisions, like the sham-marriage determination at

issue here, are therefore reviewable.

In arguing otherwise, the government suggests

that because clause (ii) is a catchall provision, it

should be understood to have the same scope as clause

(i). BIO 17–18. But the catchall phrase “any other

decision or action” refers back to “the granting of relief

under [the five enumerated sections]” covered by

clause (i)—not to “any judgment regarding the

granting of relief” under those sections.

That

conclusion is compelled by the statutory text, context,

and structure; by canons of statutory interpretation;

and by this Court’s decision in Kucana v. Holder, 558

U.S. 233 (2010), which explained the relationship

between the two clauses.

5

The Court should reject the government’s

argument that Patel applies to clause (ii)—an

argument that, if accepted, would vastly expand

clause (ii)’s scope to bar review over all sorts of

consequential nondiscretionary immigration decisions

related to a potentially wide range of discretionary

decisions and actions, far beyond the visa revocation

statute at issue here. But Congress has given no

indication that it intended such a broad bar on judicial

review. To the contrary, the plain words Congress

chose, and the presumption in favor of judicial review,

foreclose the government’s proffered reading.

ARGUMENT

I.

PATEL DOES NOT APPLY TO 8 U.S.C.

§ 1252(a)(2)(B)(ii).

In Patel, the Court held that clause (i) of

§ 1252(a)(2)(B) eliminates judicial review over all

determinations, discretionary and nondiscretionary,

related to the listed forms of relief. 596 U.S. at 338–

39. The government urges the Court to apply Patel’s

broad interpretation of clause (i) to clause (ii), even

though Patel relied on clause (i)’s specific text, and

Congress used different words in the two clauses.

Those differences in the text matter, and fatally

undermine the government’s argument. Resisting

that conclusion, the government points to the catchall

language in clause (ii) to suggest the two provisions

mean the same thing. But the term “any other

decision or action” in clause (ii) refers back to “the

granting of relief” under specified subsections—not

“any judgment regarding the granting of relief” under

those subsections. The government’s approach would

rewrite the statutory text to bar judicial review in

6

vastly more cases than Congress intended, turning

the presumption in favor of judicial review on its head.

A.

The Text of Clause (ii) Is Critically

Narrower than That of Clause (i).

As the government concedes, BIO 17, the text

of clause (i) differs from the text of clause (ii). That

difference is fatal to the government’s argument that

clause (i) and clause (ii) should be interpreted in the

same way.

“[W]here

Congress

includes

particular

language in one section of a statute but omits it in

another section of the same Act, it is generally

presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”

Kucana, 558 U.S. at 249 (internal quotation marks

omitted); see also Sw. Airlines Co. v. Saxon, 596 U.S.

450, 458 (2022) (where a statute employs “one term in

one place, and a materially different term in another,

the presumption is that the different term denotes a

different idea”) (quoting Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts 170 (2012)) (discussing this “meaningfulvariation canon”). Accordingly, the Court “must

give effect to, not nullify, Congress’ choice to

include . . . language in some provisions but not

others.” Gallardo ex rel. Vassallo v. Marstiller,

596 U.S. 420, 431 (2022).

Here, Congress chose to use the phrase “any

judgment regarding” in clause (i) but not in clause (ii).

Clause (i) includes two phrases: (1) “any judgment

regarding” and (2) “the granting of relief under section

1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.”

Patel held that the phrase “any judgment regarding”

significantly expanded clause (i)’s scope because

7

clause (i) “does not restrict itself to certain kinds of

decisions” but rather “prohibits review of any

judgment regarding the granting of relief under” the

enumerated provisions. 596 U.S. at 338 (emphasis in

original). The Court explained that “the use of

‘regarding’ ‘in a legal context generally has a

broadening effect, ensuring that the scope of a

provision covers not only its subject but also matters

relating to that subject.’” Id. at 338–39 (quoting

Lamar, Archer & Cofrin, LLP v. Appling, 584 U.S. 709,

717 (2018)). The Court thus concluded that clause (i)

“encompasses not just ‘the granting of relief’ but also

any judgment relating to the granting of relief,”

including factual findings. Id. at 339.

In contrast, clause (ii) does not include the

broadening phrase “any judgment regarding.”

Instead, Congress chose to bar judicial review of “any

other decision or action”—that is, as explained below,

other than the forms of discretionary relief

enumerated in clause (i)—that Congress placed “in

the discretion of the Attorney General or the Secretary

of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii).

Juxtaposed against clause (i)’s “regarding” language,

clause (ii) reaches only determinations that are

discretionary in nature.

The “omission” of the broadening language

from clause (ii) “is especially notable because

Congress used” that language elsewhere in the same

section of the statute. Salinas v. U.S. R.R. Ret. Bd.,

592 U.S. 188, 196 (2021); see also Sandoz Inc. v.

Amgen Inc., 582 U.S. 1, 20 (2017) (emphasizing

absence of language found in an “adjacent provision”).

And Congress’s choice to vary language between

clause (i) and clause (ii) carries even greater weight

because the two clauses “were enacted as part of a

8

unified overhaul of judicial review procedures.” Nken

v. Holder, 556 U.S. 418, 430–31 (2009) (contrasting

§ 1252(b)(3)(B)’s use of the word “stay” with the fact

that “the language of subsection (f) says nothing

about stays”).

Had Congress wanted clause (ii) to capture not

only decisions that are discretionary but also all

matters “regarding” discretionary choices, it could

have instead placed the phrase “any judgment

regarding” in clause (ii), or in the general text of

§ 1252(a)(2)(B), which scopes over both clause (i) and

clause (ii). For example, Congress could have drafted

the statute as follows (with changes from the enacted

text noted in bold and strikethrough font):

(B) . . . no court shall have jurisdiction to

review any judgment regarding -(i) any judgment regarding the granting

of relief under section 1182(h), 1182(i),

1229b, 1229c, or 1255 of this title, or

(ii) 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, other than the granting of relief

under section 1158(a) of this title.

But Congress chose not to do so.

The text governs: The Court must give effect to

Congress’s choice to include the language in clause (i)

but not in clause (ii). See Jama v. Immigr. & Customs

Enf’t, 543 U.S. 335, 341–42 (2005) (relying on

Congress’s choice to include language in one specific

9

subsection among several); Kucana, 558 U.S. at 248

(“If Congress wanted the jurisdictional bar to

encompass decisions specified as discretionary by

regulation along with those made discretionary by

statute . . . Congress could easily have said so.”); Patel,

596 U.S. at 341 (similar); Gallardo, 596 U.S. at 429–

30 (similar); see also United States v. Naftalin, 441

U.S. 768, 773 (1979) (rejecting attempt to read

additional requirement into a statutory provision

when “[t]he short answer is that Congress did not

write the statute that way”).

In reaching its conclusion about the scope of

clause (i), Patel emphasized that Congress chose not

to limit the term “any judgment regarding” to only

discretionary judgments, instead simply referring to

“any judgment.”

596 U.S. at 342 (noting that

“the absence of any reference to discretion in

§ 1252(a)(2)(B)(i) undercuts the Government’s efforts

to read it in” to limit the term “judgment”); see id. at

341 (“Had Congress intended instead to limit the

jurisdictional bar to ‘discretionary judgments,’ it could

easily have used that language . . . .”). But clause (ii)

does the opposite. Unlike the phrase “any judgment”

in clause (i), clause (ii) explicitly uses the term

“discretion.” See 8 U.S.C. § 1252(a)(2)(B)(ii) (barring

review of decisions or actions “the authority for which

is specified . . . to be in the discretion of the Attorney

General or the Secretary”) (emphasis added). The

contrast is sharp: Clause (i) employs the broadening

term “regarding” without reference to discretion,

while clause (ii) zeroes in on just those decisions in the

“discretion” of the agency. Where, as here, Congress

employed “broad language” in one provision of an act

but used “limiting language” in another, the Court

must give effect to that difference. Gallardo, 596 U.S.

10

at 429–30 (distinguishing between two provisions on

this ground).

In sum, the critically different text employed in

clause (i) and clause (ii) underscores that the two

provisions have different meanings. Accordingly,

Patel’s holding should not be applied to clause (ii).

B.

Clause (ii) Is a Catchall Provision for

Clause (i)’s Forms of Relief, Not for Any

Judgment

Regarding

Those

Forms

of Relief.

Despite these clear textual differences, the

government contends that clauses (i) and (ii) should

be interpreted identically because clause (ii) is a

catchall provision.

See BIO 17–18.

In the

government’s view, because clause (ii) includes the

phrase “any other,” its scope must match that of

clause (i). This argument misunderstands clause (ii)’s

catchall language. In clause (ii), “any other decision

or action” does not refer to “any judgment regarding

the granting of relief” (the critical broadening phrase

that Patel emphasized in construing clause (i)), but

rather to discretionary decisions or actions other than

the enumerated statutory forms of relief listed in

clause (i). That conclusion follows from text, context,

structure, canons of construction, and caselaw.

The structure of clause (i) is instructive. It

begins with a direct object (“any judgment”), followed

by a preposition (“regarding”), which is in turn

followed by a prepositional object (“the granting of

11

relief”) that lists five discretionary forms of relief. It

can be diagramed as follows:

any judgment regarding the granting of relief under [enumerated provisions]

direct

object

preposition

prepositional object

The government’s view is that “any other” in clause

(ii) refers to the direct object of clause (i). That is

incorrect. It refers to the prepositional object, which

is “the granting of relief under [the enumerated

provisions].”

Thus, the phrase “any judgment

regarding,” on which the Court relied in Patel to find

that Congress had eliminated review over both

discretionary and nondiscretionary determinations,

has no application to clause (ii).

Indeed, the government’s preferred reading of

clause (ii) is at odds with this Court’s interpretation in

Kucana, which explained that the term “any other”

refers back to the list of “statutory provisions

referenced in clause (i).” 558 U.S. at 246–47. Kucana

found “[t]he clause (i) enumeration” of specific forms of

discretionary relief “instructive in determining the

meaning of the clause (ii) catchall.” Id. at 247

(emphasis added). Thus, the Court explained, “other

decisions falling within § 1252(a)(2)(B)(ii)’s compass

are most sensibly understood to include only decisions

made discretionary by Congress.” Id. at 247 n.14

(emphasis in original). The clear import of this

analysis is that “any other” in clause (ii) refers to

discretionary decisions or actions other than the

enumerated provisions in clause (i).

12

Although the Court subsequently interpreted

clause (i) to reach not just the ultimate grant or denial

of discretionary relief under the five enumerated

statutes, but also “any judgment relating to” that

ultimate exercise of discretion, Patel, 596 U.S. at 339

(emphasis omitted), nothing in Patel’s reading of

clause (i)’s “any judgment regarding” term disturbs

the Court’s sound interpretation in Kucana of clause

(ii)’s “any other decision or action” term. Indeed, the

Court’s analysis in Patel confirms Kucana’s

explanation that “any other” refers to the

prepositional object in clause (i)—namely “the

granting of relief under [the enumerated provisions].”

Specifically, Patel noted that Kucana’s “comparison

between clauses (i) and (ii) . . . focused on the fact that

each form of relief identified in clause (i) was

entrusted to the Attorney General’s discretion by

statute.” Id. at 343 (emphasis omitted). Patel thus

explained that the comparison between clauses (i) and

(ii) “focused on” the forms of relief enumerated in

clause (i). Id.

Even apart from Kucana and Patel, the

conclusion that “any other” refers to discretionary

decisions or actions other than the enumerated

statutory forms of relief is correct under canons of

statutory interpretation. The nearest reasonable

referent canon provides that a “modifier normally

applies only to the nearest reasonable referent.”

Scalia & Garner, supra, at 152; see also Mellouli v.

Lynch, 575 U.S. 798, 811 (2015) (applying canon).

Under this canon, courts interpret a modifier to attach

13

to the closest noun it can reasonably modify, not one

that is more grammatically distant. 4

Scalia and Garner offer the following example:

A statute “provided that ‘the provisions of this act

shall not be construed to prevent any person from

manufacturing for his domestic consumption at his

home . . . wine or cider from fruit of his own

raising . . . .’” Scalia & Garner, supra, at 152. The

question

presented

was:

“Did

this

mean

manufacturing at his home or consumption at his

home—or both?” Id. Scalia and Garner explain that

the answer must be “consumption” because it is the

nearest reasonable referent. Id. at 152–53. “In the

phrase ‘manufacturing for his domestic consumption’

both manufacturing and consumption are nouns,”

with consumption serving as part of a “prepositional

phrase modifying” manufacturing. Id. at 153. In this

kind of grammatical construction—namely noun,

preposition, prepositional object, modifier—the

modifier attaches to the prepositional object, not the

more distant noun. Id.

4 This canon applies when a statute’s “syntax involves something

other than a parallel series of nouns or verbs.” Scalia & Garner,

supra, at 152. A parallel series is “a list of verbs [or nouns]

followed by a modifying clause,” Facebook, Inc. v. Duguid, 592

U.S. 395, 402–03 (2021), where “the listed items are simple and

parallel” and “readers are used to seeing [them] listed together,”

Lockhart v. United States, 577 U.S. 347, 352 (2016). The Court

applies a different canon in that circumstance: the seriesqualifier canon, which applies a modifier to each word in the list.

See id. (applying the series-qualifier canon to the phrase “the

laws, the treaties, and the constitution of the United States”).

Here, the relevant text of clause (i)—“any judgment regarding

the granting of relief”—is not a parallel series, so the series

qualifier canon is inapplicable.

14

In this case, § 1252(a)(2)(B) has a closely

related structure. As in Scalia and Garner’s example,

clause (i) contains an initial noun followed by a

preposition and a prepositional object. And, like that

example, the prepositional object is followed by a

phrase in search of a referent: the “any other” catchall

language of clause (ii). See Arcadia v. Ohio Power Co.,

498 U.S. 73, 78–79 (1990) (analyzing different possible

referents for the phrase “any other subject matter”).

The ordinary rules of language and the rules of

statutory interpretation both indicate that “any other”

refers to the closest reasonable referent. That referent

is the prepositional object immediately preceding it:

“the granting of relief under section 1182(h), 1182(i),

1229b, 1229c, or 1255 of this title.” Clause (ii) thus

refers to “any” discretionary decision or action “other”

than the decision to grant relief under the enumerated

provisions. 5

Under the government’s interpretation, the

term “any other decision or action” refers all the way

back to “any judgment.” But this Court has previously

rejected interpretations because they “stretch[] the

5 The nearest reasonable-referent canon’s “close cousin,” the rule

of the last antecedent, supplies a similar rule. See United States

v. Davis, 961 F.3d 181, 188 (2d Cir. 2020). Specifically, that rule

provides that “qualifying words or phrases,” like the catchall

clause, “modify the words or phrases immediately preceding

them and not words or phrases more remote.” Lockhart, 577 U.S.

at 351 (cleaned up); Scalia & Garner, supra, at 144–46. As

several courts of appeals have recognized, “the substance of the

rule is the same” regardless of which of these canons applies.

Hall v. U.S. Dep’t of Agric., 984 F.3d 825, 838 (9th Cir. 2020); see

Grecian Magnesite Mining, Indus. & Shipping Co., SA v. Comm’r

of Internal Revenue Serv., 926 F.3d 819, 824 (D.C. Cir. 2019)

(same).

15

modifier too far.” Jama, 543 U.S. at 342. The Court

should do the same here.

The same result obtains if one applies the canon

of ejusdem generis, which instructs that, “[w]hen faced

with a catchall phrase . . . , courts do not necessarily

afford it the broadest possible construction it can bear.”

Harrington v. Purdue Pharma L.P., 603 U.S. ---, 2024

WL 3187799, at *7 (2024). Rather, the catchall phrase

“must be . . . read to ‘embrace only objects similar in

nature’ to the specific examples preceding it.” Id.

(quoting Epic Sys. Corp. v. Lewis, 584 U.S. 497, 512

(2018)). Thus, under ejusdem generis, “the residual

clause . . . should itself be controlled and defined by

reference to the enumerated categories . . . which are

recited just before it.” Cir. City Stores, Inc. v. Adams,

532 U.S. 105, 115 (2001); see Harrington, 2024 WL

3187799, at *7 (defining catchall phrase based on the

“detailed list” that appeared before it). Here, the

residual clause is “any other decision or action,” and

the enumerated categories “just before it” are the

enumerated provisions in clause (i). Thus, the general

term “any other decision or action” should be defined

in relation to the granting of relief under the

enumerated provisions rather than the more distant

expansionary phrase “any judgment regarding”

such relief.

The related canon of noscitur a sociis is also

instructive. That canon “avoid[s] ascribing to one

word a meaning so broad that it is inconsistent with

its accompanying words, thus giving unintended

breadth to the Acts of Congress.” Yates v. United

States, 574 U.S. 528, 543 (2015) (internal quotation

marks omitted). Courts thus look to “[t]he words

immediately surrounding” the language to be

interpreted to ascertain the “more precise content” of

16

that language.

Id. (emphasis added) (internal

quotation marks omitted). For example, this Court

recently held that a residual provision (employing the

catchall term “otherwise”) should be interpreted in

light of the “offenses enumerated” in the immediately

preceding provision. Fischer v. United States, 603 U.S.

---, 2024 WL 3208034, at *6 (2024). Similarly, in this

case, the residual provision, clause (ii), should be

interpreted in light of the statutes enumerated in

clause (i). This interpretation is “[g]uided by the basic

logic that Congress would not go to the trouble of

spelling out the list . . . if a neighboring term

swallowed it up.” Id. Indeed, under the government’s

broad interpretation of clause (ii), that provision

would encompass all the judgments covered by clause

(i), rendering all of clause (i) superfluous. Id. (noting

that, under government’s interpretation, “the sweep of

[the residual clause] would consume [the preceding

clause], leaving that [] provision with no work to do”).

Moreover, the remainder of clause (ii)’s text

confirms that the term “any other decision or action”

refers to the specified forms of relief, not to any

judgment regarding the granting of relief. Consider

the exception to clause (ii): The jurisdictional bar

applies to decisions or actions “other than the granting

of [asylum] relief under section 1158(a) of this title.”

See Kucana, 558 U.S. at 247 n.13 (discussing this

exception). The granting of asylum is just one part

of the asylum process—namely the ultimate,

discretionary choice. See id. (“Absent the exception,

asylum applicants might fall within § 1252(a)(2)(B)(ii)’s

jurisdictional bar because a statutory provision,

§ 1158(b)(1)(A),

specifies

that

‘the

Attorney

General may grant asylum.’”). And it is an example of

a decision that fits with the prepositional object in

17

clause (i)—namely the “granting of relief” pursuant

to discretionary statutes. 6 Because that exception

identifies a discretionary decision whether to grant a

specific form of relief (namely asylum) and uses

language exactly parallel to the phrase “the granting

of relief” in clause (i), it reinforces the conclusion that

“any other” naturally refers to the enumerated

provisions rather than the more distant phrase “any

judgment regarding.”

Another aspect of the text of clause (ii) bolsters

the same conclusion.

Clause (ii) uses different

language at the outset, covering any “decision or

action” rather than any “judgment” as in clause (i).

The term “decision or action” appears in § 1252 in one

additional place, § 1252(g), which strips jurisdiction

over any “decision or action by the Attorney General

to commence proceedings, adjudicate cases, or execute

removal orders against any [noncitizen].” In § 1252(g),

“decision or action” refers to discrete choices made (or

foregone) as a matter of executive prosecutorial

discretion. See Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 482–83 (1999) (holding that

§ 1252(g) “applies only to three discrete actions” that

“represent the initiation or prosecution of various

stages in the deportation process” over which the

Executive has particular discretion).

The term

6 The parties have not addressed what kind of statutory language

is necessary to trigger clause (ii). See Kucana, 558 U.S. at 248

(indicating that certain statutes including terms like “discretion”

were covered by clause (ii)). In addressing the asylum exception,

the Court reserved this question. See id. at 247 n.13 (reserving

whether the statutory term “may” is sufficient, indicating only

that it “might” be). Without the benefit of briefing on this issue,

the Court should not opine on that question of what other

decisions or actions—many of which are specified using different

formulations than § 1155—may be covered by clause (ii).

18

“decision or action” has a similar meaning in clause

(ii)—namely, capturing a set of discrete choices that

involve agency discretion. See Merrill Lynch, Pierce,

Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 86 (2006)

(“Generally, identical words used in different parts of

the same statute are . . . presumed to have the same

meaning”) (internal quotation marks omitted). This

set is smaller than the set of all judgments covered by

clause (i). See Patel, 596 U.S. at 337–38 (interpreting

the term “judgment” broadly, to mean “any

authoritative decision”).

In sum, “any other decision or action” refers to

a discretionary decision or action other than the

granting of the enumerated statutory forms of

discretionary relief in clause (i), such as the granting

of other forms of discretionary relief. Congress was

not referring to any nondiscretionary “judgment

regarding” such a discretionary decision or action;

indeed, it omitted that very phrase, which it used in

the immediately preceding clause.

Because the

catchall clause does not refer to “any judgment

regarding” discretionary decisions or actions, there is

no reason to apply Patel’s holding to clause (ii).

C.

Any

Doubts

as

to

the

Statute’s

Interpretation Should Be Resolved in

Favor of Judicial Review.

As shown above, the text is clear and requires

petitioner’s reading, not that of the government. But

even if the provision were ambiguous, the same result

would be required. Under the “well-settled” and

“strong” presumption favoring judicial review of

administrative action, “when a statutory provision is

reasonably susceptible to divergent interpretation,”

the Court will “adopt the reading that accords with . . .

19

basic principles: that executive determinations

generally are subject to judicial review.” GuerreroLasprilla v. Barr, 589 U.S. 221, 229 (2020) (internal

quotation marks omitted); see Kucana, 558 U.S. at 251.

“Congress is presumed to legislate with [this

presumption] in mind.” Salinas, 592 U.S. at 197.

Accordingly, “when Congress intends to bar judicial

review altogether, it typically employs language [that

is] unambiguous and comprehensive.” Lindahl v. Off.

of Pers. Mgmt., 470 U.S. 768, 779–80 (1985).

The government’s strained reading is at odds

with the presumption favoring judicial review. Its

interpretation does violence to the text, and would

completely cut off judicial review for a significant

number of noncitizens. If accepted, the government’s

reading would bar review over all sorts of issues

related to a potentially wide range of discretionary

decisions and actions far beyond the specific visa

revocation statute at issue in this case. See Kucana,

558 U.S. at 247 n.14 (noting that “over thirty

provisions in the relevant subchapter of the INA . . .

explicitly grant the Attorney General . . . ‘discretion’

to make a certain decision” such that clause (ii)

applies) (internal quotation marks omitted).

If this Court adopts the government’s reading,

noncitizens pursuing petitions for review of their

removal orders, who face the serious and potentially

life-changing consequence of removal from the

country, could be denied any opportunity for judicial

review of indisputably nondiscretionary factual

determinations—even in the case of flagrant errors.

The implications are even more sweeping if the Court

concludes that § 1252(a)(2)(B) applies to litigation in

district court brought by individuals who are not in

removal proceedings. For those challenging a removal

20

order, 8 U.S.C. § 1252(a)(2)(D) restores jurisdiction

over constitutional claims and questions of law. But

that provision is of no help outside of a petition for

review. Patel, 596 U.S. at 345. So the government’s

reading could entirely preclude review in any forum of

constitutional or legal errors—no matter how

egregious—in matters that will not be litigated in a

petition for review (and so will not be subject to

§ 1252(a)(2)(D)).

Even a blatant constitutional

violation, such as a conclusion expressly based on

racial stereotyping, would be rendered entirely

beyond the reach of courts.

Congress gave no

indication, much less an unambiguous one, that it

intended such a drastic result.

Nothing in the text of clause (ii) supports—

much less dictates—the government’s interpretation.

Cf. id. at 347 (presumption overcome only because

“the statute [wa]s clear”). The government thus

has not met the “heavy burden” required to rebut

the presumption favoring judicial review of

administrative action. Salinas, 592 U.S. at 197

(internal quotation marks omitted). To the contrary,

the plain language of 8 U.S.C. § 1252(a)(2)(B)(ii), in

contrast to its adjacent provision, clause (i), shows

that Congress intended to preserve judicial review of

nondiscretionary decisions.

21

CONCLUSION

The Court should conclude that 8 U.S.C.

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

nondiscretionary determinations.

Respectfully submitted,

Lee Gelernt

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

Daniel B. Tilley

ACLU FOUNDATION OF

FLORIDA

4343 West Flagler Street,

Suite 400

Miami, FL 33134

22

Cody Wofsy

Counsel of Record

Hannah Schoen Steinberg

Noelle A. Smith

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street

7th Floor

San Francisco, CA 94104

(415) 343-0785

cwofsy@aclu.org