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

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 THE NATIONAL IMMIGRANT

JUSTICE CENTER, ASISTA IMMIGRATION

ASSISTANCE, OXFAM AMERICA, NATIONAL

IMMIGRANT WOMEN’S ADVOCACY PROJECT, ASIAN PACIFIC INSTITUTE ON GENDER-BASED VIOLENCE, AND NATIONAL

NETWORK TO END DOMESTIC VIOLENCE

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

CHARLES ROTH

NATIONAL IMMIGRANT

JUSTICE CENTER

111 W. Jackson Blvd.

Suite 800

Chicago, IL 60604

JULIUS KAIREY

JONES DAY

250 Vesey Street

New York, NY 10281

VICTORIA DORFMAN

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, D.C. 20001

(202) 879-3687

vdorfman@jonesday.com

NICOLE HENNING

JONES DAY

110 N. Wacker Dr.

Chicago, IL 60606

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT .............................................................. 8

I.

The Revocation Authority for U and T

Visas and VAWA Self-Petitions is Implicated by This Case. .......................................... 8

II.

Congressional Goals as Embodied in the

Statutory Provisions and the Overall

Statutory Scheme for U and T Visas

and VAWA Self-Petitions. ............................. 13

III.

The Presumption of Judicial Review Applies with Particular Force Here, in this

Immigration Context, where Congress

Singled Out Particular Vulnerable

Groups for Protection. ................................... 18

A.

There is a Long Tradition of Judicial Review in Immigration Matters, Which has Many Salutary

Effects. ................................................. 20

B.

Judicial Review is Essential to

Correct Legal and Systemic Analytical Errors. ...................................... 22

CONCLUSION ......................................................... 30

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Arguijo v. United States Citizenship &

Immigr. Servs.,

991 F.3d 736 (7th Cir. 2021) .......................... 22, 23

Bait It v. McAleenan,

410 F. Supp. 3d 874 (N.D. Ill. 2019) ................ 6, 17

Chaparro Navarro v. Dep’t of Homeland

Sec.,

612 F. Supp. 3d 986 (N.D. Cal. 2020) .................. 11

Contreras Aybar v. Sec’y U.S. Dep’t of

Homeland Sec.,

916 F.3d 270 (3d Cir. 2019) ................................. 14

Dep’t of State v. Munoz,

No. 23-334, 2024 WL 3074425

(U.S. June 21, 2024) ............................................... 1

Franjul-Soto v. Barr,

973 F.3d 15 (1st Cir. 2020) .................................. 10

Gegiow v. Uhl,

239 U.S. 3 (1915) .................................................. 20

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) .................................... 7, 18, 19

Hardt v. Reliance Standard Life Ins.

Co.,

560 U.S. 242 (2010) .............................................. 19

Henton v. U.S. Att’y Gen.,

520 F. App’x 801 (11th Cir. 2013)

(per curiam) .......................................................... 17

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Hernandez v. Ashcroft,

345 F.3d 824 (9th Cir. 2003) ................................ 23

Khawam v. Wolfe,

214 A.3d 455 (D.C. 2019) ..................................... 23

Kucana v. Holder,

558 U.S. 233 (2010) ........................................ 18, 19

L.D.G. v. Holder,

744 F.3d 1022 (7th Cir. 2014) ................................ 2

Mach Mining, LLC v. E.E.O.C.,

575 U.S. 480 (2015) .......................................... 7, 18

Manguriu v. Lynch,

794 F.3d 119 (1st Cir. 2015) ................................ 12

Medina Tovar v. Zuchowski,

982 F.3d 631 (9th Cir. 2020)

(en banc) ............................................................... 23

Mia v. Renaud,

No. 22-CV-2098 (FB), 2023 WL

7091915 (E.D.N.Y. Oct. 26, 2023)........................ 22

Perez Perez v. Wolf,

943 F.3d 853 (9th Cir. 2019) .................................. 9

United States v. Castleman,

572 U.S. 157 (2014) ................................................ 2

Wanrong Lin v. Nielsen,

377 F. Supp. 3d 556 (D. Md. 2019) ...................... 22

Washington v. Trump,

858 F.3d 1168 (9th Cir. 2017) ................................ 2

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

STATUTES

8 U.S.C. § 1101 ........................................................ 8, 9

8 U.S.C. § 1154 ...................................... 6, 8, 10, 12, 17

8 U.S.C. § 1155 ................................................ 5, 12, 19

8 U.S.C. § 1182 ............................................................ 9

8 U.S.C. § 1184 ............................................ 8, 9, 11, 14

8 U.S.C. § 1201 ...................................................... 7, 19

8 U.S.C. § 1252 ............................ 5, 6, 9, 11, 18, 19, 22

8 U.S.C. § 1367 .................................................... 12, 30

Trafficking Victims Protection Act,

22 U.S.C. § 7101 et seq. (2000)....................... 15, 18

22 U.S.C. § 7101 ......................................... 6, 15, 16

Victims of Trafficking and Violence

Prevention Act of 2000,

Pub. L. No. 106–386 (Oct. 28, 2000) .......... 6, 13, 14

Violence Against Women Act ..... 1–6, 8, 10–13, 16–18,

22, 23, 28–30

OTHER AUTHORITIES

8 C.F.R. § 103.3 ......................................................... 10

8 C.F.R. § 204.1 ......................................................... 10

8 C.F.R. § 214.11 ......................................... 5, 9, 10, 11

8 C.F.R. § 214.14 ............................................... 5, 8–11

89 Fed. Reg. 34864 (Apr. 30, 2024) ........................... 11

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Lenni B. Benson, You Can’t Get There

from Here: Managing Judicial

Review of Immigration Cases,

2007 U. Chi. Legal F. 405 (2007) ......................... 22

Jacquelyn C. Campbell et al., Risk

Factors for Femicide in Abusive

Relationships: Results From a

Multisite Case Control Study,

93 Am. J. Pub. Health 1089 (2003)...................... 28

Mary Ann Dutton, Lisa A. Goodman &

Lauren Bennett, Court-Involved Battered

Women’s Responses to Violence: The Role

of Psychological, Physical, and Sexual

Abuse, 14 Violence & Victims 89 (1999) .............. 28

D. Epstein & L. Goodman, Discounting

Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their

Experiences, 167 U. Pa. L. Rev. 399 (2019) ... 26–28

Sharon Gil et al., Review Article, Memory of

the Traumatic Event as a Risk Factor for

the Development of PTSD: Lessons from

the Study of Traumatic Brain Injury,

11 CNS Spectrums 603 (2006)............................. 25

Judith G. Greenberg, Domestic Violence and

the Danger of Joint Custody

Presumptions, 25 N. Ill. U. L. Rev. 403

(2005) .................................................................... 29

H.R. Rep. No. 103–395 (1993) ............................... 6, 17

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

H.R. Conf. Rep. 107-278,

2002 U.S.C.C.A.N. 793 (2001) ............................. 17

H.R. Rep. 109-233, 114, 120,

2005 U.S.C.C.A.N. 1636 (2005) ..................... 17, 24

Sarah L. Halligan et al., Cognitive

Processing, Memory, and the Development

of PTSD Symptoms: Two Experimental

Analogue Studies, 33 J. Behav. Therapy

& Experimental Psychiatry 73 (2002) ........... 24, 25

Giselle Hass, Nawal Ammar, & Leslye

Orloff, Battered Immigrants and

U.S. Citizen Spouses ............................................ 28

Helene Jackson et al., Traumatic Brain

Injury: A Hidden Consequence for

Battered Women,

33 Prof. Psychol. 39 (2002) .................................. 25

Louis L. Jaffe, The Right to Judicial

Review I, 71 Harv. L. Rev. 401 (1958) ........... 20, 21

Stephen H. Legomsky, Political Asylum

and the Theory of Judicial Review,

73 Minn. L. Rev. 1205 (1989)......................... 21, 22

Joan S. Meier, Domestic Violence, Child

Custody, and Child Protection:

Understanding Judicial Resistance and

Imagining the Solutions,

11 Am. U. J. Gender Soc. Pol’y & L. 657

(2003) .................................................................... 26

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Maria Angeles Pico-Alfonso,

Psychological Intimate Partner

Violence: The Major Predictor of

Posttraumatic Stress Disorder in

Abused Women, 29 Neuroscience &

Biobehav. Revs. 181 (2005) .................................. 28

Revocation of VAWA-Based Self-Petitions (Aug. 5, 2002), 9 Immigration

Law Service 2d PSD Selected DHS

Document 4810 .................................................... 12

Revocation of VAWA Self-Petitions,

2 Immigration Law Service 2d § 7:169 ............... 12

Oliver Sundermann et al., Perceptual

Processing During Trauma, Priming

and the Development of Intrusive

Memories, 44 J. Behav. Therapy &

Experimental Psychiatry 213 (2013)................... 27

USCIS Policy Manual, Chapter 3 – Effect of Certain Life Events ................................... 13

1

INTEREST OF AMICI CURIAE 1

The Amici Curiae are organizations which have

many years of experience working with survivors of

domestic violence and human trafficking and representing them in all stages of proceedings, including in

this Court.

The National Immigrant Justice Center (NIJC) is

a Chicago-based not-for-profit organization that provides legal representation and consultation to low-income noncitizens, including immigrant survivors of

domestic violence and human trafficking. Alongside

other immigration matters, see Dep’t of State v. Munoz,

No. 23-334, 2024 WL 3074425 (U.S. June 21, 2024),

NIJC represents hundreds of survivors of domestic violence and human trafficking through its staff attorneys and its network of approximately 2000 pro bono

attorneys. NIJC has a deep interest in ensuring that

immigration statutes are properly interpreted.

ASISTA Immigration Assistance (ASISTA) is a national organization dedicated to helping attorneys in

immigration matters concerning noncitizen survivors

of violence. ASISTA has worked with Congress to create and expand routes to immigration status for survivors of domestic violence, sexual assault, and other

violent crimes. These efforts culminated in the enactment of the groundbreaking Violence Against Women

Act (VAWA) of 1994 and its progeny. ASISTA now

serves as liaison between those who represent immi-

1 No counsel for any party authored this brief in any part,

and no person or entity other than amici, their members, or their

counsel made a monetary contribution to fund its preparation or

submission.

2

grant survivors and the Department of Homeland Security (DHS) personnel charged with implementing

the laws at issue in this appeal, including Citizenship

and Immigration Services (USCIS), Immigration and

Customs Enforcement (ICE), and DHS’s Office for

Civil Rights and Civil Liberties. In addition, ASISTA

trains and provides technical support to local law enforcement officials, civil and criminal court judges,

and domestic violence advocates, as well as nonprofit,

pro bono, and private attorneys working with noncitizen survivors. ASISTA has previously filed amicus

briefs with the United States Supreme Court and various federal courts of appeal. See, e.g., United States

v. Castleman, 572 U.S. 157 (2014); Washington v.

Trump, 858 F.3d 1168 (9th Cir. 2017); L.D.G. v.

Holder, 744 F.3d 1022 (7th Cir. 2014). ASISTA is a

nonprofit organization, having no corporate parent,

and is not publicly traded.

Oxfam America is a non-profit development

agency dedicated to developing lasting solutions to

poverty and social injustice. A centerpiece of this

work involves supporting the world’s most vulnerable

communities, including migrants. Oxfam supports

displaced communities by tackling the drivers of migration, providing emergency humanitarian aid to

those fleeing persecution, and advocating that governments protect and respect the human rights of migrants.

The National Immigrant Women’s Advocacy Project, Inc. (NIWAP Inc.) is a nonprofit training, technical assistance, and public policy advocacy organization that develops, reforms, and promotes the implementation and use of laws and policies that improve

legal rights, services, and assistance to immigrant

3

women and children who are victims of domestic violence, sexual assault, stalking, child abuse, human

trafficking, and other crimes. As a national resource

center, NIWAP offers technical assistance and training at the federal, state, and local levels to assist a

wide range of professionals who work with immigrant

crime victims. NIWAP’s Director worked closely with

Congress in the drafting of the immigration protections included in the Violence Against Women Acts

(VAWA), both the original 1994 Act and VAWA amendments made in 1996, 2000, 2005 and 2013 and the

Trafficking Victims Protection Acts (TVPA), the original Act of 2000 and the 2008 amendment. NIWAP

provides direct technical assistance and training for

attorneys, advocates, state family court judges, immigration judges, Board judges and judicial staff, police,

sheriffs, prosecutors, Department of Homeland Security adjudication and enforcement staff, and other

professionals. This case has the potential to impact

access to the protections for immigrant victims of domestic violence, child abuse, sexual assault, stalking,

and human trafficking that Congress specially created for immigrant victims and their children.

The Asian Pacific Institute on Gender-Based Violence is a national resource center on domestic violence, sexual violence, trafficking, and other forms of

gender-based violence impacting Asian and Pacific Islander and immigrant communities. The Institute

supports a national network of advocates and community-based service and advocacy programs that work

with Asian and Pacific Islander and immigrant and

refugee survivors of domestic violence, sexual assault,

human trafficking, and other forms of gender-based

violence, and provides analysis and consultation on

4

critical issues facing victims of gender-based violence

in the Asian, Native Hawaiian, Pacific Islander, and

immigrant and refugee communities, including training and technical assistance on implementation of legal protections in the Violence Against Women Act

and the Trafficking Victims Protection Act for immigrant and refugee survivors. The Institute leads by

promoting culturally relevant intervention and prevention, expert consultation, technical assistance and

training; conducting and disseminating critical research. As co-chair of the Alliance for Immigrant Survivors, the Institute works to inform public policy to

improve systemic and legal responses to survivors and

to decrease the ability of abusers to leverage the legal

system to further inflict harm.

The National Network to End Domestic Violence

(NNEDV) represents the 56 U.S. state and territorial

coalitions against domestic violence. NNEDV is dedicated to creating a social, political, and economic environment in which domestic violence no longer exists.

NNEDV works to make domestic violence a national

priority, change the way society responds to domestic

violence, and strengthen domestic violence advocacy

at every level. NNEDV was instrumental in the passage and implementation of the Violence Against

Women Act. NNEDV has a strong interest in ensuring that immigrant abuse victims, including crime

and trafficking victims, have real and practical access

to the remedies Congress has created to protect them.

SUMMARY OF ARGUMENT

The Court’s decision on the question presented in

this case will have broad implications for the ability of

noncitizens to access the courts when life-altering decisions are made regarding their immigration status.

5

The government’s position in this case is that its decision to revoke a visa petition on the ground that it

never should have been issued is unreviewable, even

if a decision to deny on the same ground would have

been reviewable. If the Court adopts that interpretation, noncitizens seeking vital forms of immigration

relief designed to protect those who have been victims

of crime or domestic violence, including U visas, T visas, and self-petitions under the Violence Against

Women Act (VAWA), may also have their paths to the

courthouse blocked, with no ability to challenge administrative legal and factual error.

Such a decision would be contrary to Congress’

goals in establishing these forms of immigration relief,

and contrary to the presumption of reviewability,

which is well-rooted in our legal tradition and in this

Court’s jurisprudence interpreting the Immigration

and Nationality Act (INA). That is particularly worrisome in the context of U-Visas, T-Visas, and VAWA relief, because adjudications for vulnerable individuals

who have been victims of domestic abuse, child abuse,

sexual assault, human trafficking, or other crime are

more prone to error. Those decisions—even more so

than others—should be subject to judicial review.

I. The revocation authority for U and T visas is implicated here because the government, by regulation,

claims the power to revoke each type of relief, including on the ground that a visa was erroneously issued.

See 8 C.F.R. § 214.14(h)(2) (U visas); 8 C.F.R. §

214.11(m)(2) (T visas). The government has the statutory power to revoke VAWA self-petitions under the

same provision at issue in this case. See 8 U.S.C. §

1155. Thus, the Court’s interpretation of 8 U.S.C. §

6

1252(a)(2)(B)(ii) will affect reviewability of government decisions to revoke these other forms of relief designed to offer life-saving protections for victims and

their children. Further, the Court’s decision implicates the scope of the jurisdictional rule of §

1252(a)(2)(B)(ii) as it applies to other forms of discretionary relief, many of which also affect survivors of

domestic violence and human trafficking.

II. Congress’ goals in establishing the U and T visas, and in allowing noncitizens to self-petition for relief in cases of domestic abuse and child abuse,

strongly support reviewability. U visas were established to shield noncitizens who have been victims of

crime from deportation, as well as to encourage cooperation with law enforcement in the investigation and

prosecution of criminal activity. See Pub. L. No. 106386, § 1513(a)(1). T visas were established to protect

noncitizen victims of human trafficking who assist

law enforcement, or are unable to do so because of the

harm caused by the trafficking. See 22 U.S.C. §

7101(b). And the VAWA self-petition process was established so that noncitizens would not have to rely on

an abusive U.S.-citizen or lawful permanent resident

spouse, parent or stepparent in seeking immigration

relief. See 8 U.S.C. § 1154(a)(1)(A), (B); Bait It v.

McAleenan, 410 F. Supp. 3d 874, 880 (N.D. Ill. 2019)

(“Congress sought to prevent the U.S. citizen-abuser

‘from using the petitioning process as a means to control or abuse an alien spouse.’”) (quoting H.R. Rep. No.

103–395). Congress’ express findings regarding the

importance of these forms of relief signal that Congress did not intend to give the government unreviewable authority to make eligibility determinations.

7

III. The presumption of judicial review applies

with particular force here. This Court applies a

“strong presumption favoring judicial review of administrative action.” Mach Mining, LLC v. E.E.O.C.,

575 U.S. 480, 486 (2015) (quotation marks omitted).

And this Court has “‘consistently applied’ the presumption of reviewability to immigration statutes.”

Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020).

Nothing in the text of the INA displaces that presumption here. Congress knows how to clearly and unambiguously strip the courts of the authority to review

visa revocation decisions, see, e.g., 8 U.S.C. § 1201(i),

but chose not to do so here, suggesting that Congress

did not intend to displace the presumption. Allowing

review is also consistent with this country’s long tradition of judicial review of administrative action,

which stands as a bulwark against arbitrary government power. Finally, the government has too often

committed both legal and factual error in adjudicating

cases where noncitizens seek these special victimbased forms of humanitarian immigration relief, requiring correction by the courts. Given that applicants are often subject to language or cultural barriers,

and have been subjected to criminal acts and abusive

treatment perpetrated against them in the U.S. and

must face the traumatic impact of these events to seek

immigration relief Congress created to protect them,

the risk of error is especially acute. For that reason,

too, the availability of judicial review over denials of

protection from human trafficking and domestic violence is crucial.

8

ARGUMENT

I.

The Revocation Authority for U and T Visas

and VAWA Self-Petitions is Implicated by

This Case.

At issue in this case is the extent of judicial review

of government decisions to revoke visa petitions. Had

Petitioner Amina Bouarfa’s visa petition been originally denied based on a finding of marriage fraud, see

8 U.S.C. § 1154(c) (providing that “no petition shall be

approved” if the individual seeking a visa has previously entered a marriage “for the purpose of evading

the immigration laws”), that decision would have been

reviewable in federal court. But the government contends that the decision to revoke on the very same

ground is beyond the power of the courts to review.

The Court’s decision will have far reaching consequences because it will affect reviewability for a wide

range of noncitizens seeking immigration relief.

The government has adopted regulations under

which it claims discretionary authority over adjudication and revocation of both U and T visas. Given those

regulations, the government’s authority with respect

to both types of visas is implicated by the Court’s reviewability determination in this case. To be eligible

for a U visa, a noncitizen must (1) have been a victim

of a qualifying criminal activity (QCA), which resulted

in substantial physical and mental abuse, and (2) provide a certification from a federal, state, tribal, or local

law enforcement official, stating that the person has

been or is being helpful in the investigation or prosecution of the QCA. See 8 U.S.C. § 1101(a)(15)(U); id.

§ 1184(p); 8 C.F.R. § 214.14(c)(2). The Ninth Circuit

has held that denials of U visas are reviewable in federal court if the denial is based on a non-discretionary

9

determination. See Perez Perez v. Wolf, 943 F.3d 853,

868 (9th Cir. 2019) (holding that 8 U.S.C. §

1252(a)(2)(B)(ii) does not strip the courts of jurisdiction over challenges to the denial of U visas).

With respect to T visas as well, agency regulations

invoke government discretion in its adjudication decision. To be eligible for a T visa, a noncitizen must (1)

have been the victims of a severe form of trafficking in

persons, and (2) have complied with any reasonable

request from law enforcement for assistance in the investigation or prosecution of human tracking, or are

unable to cooperate because of physical or psychological trauma. See 8 U.S.C. § 1101(a)(15)(T); id. § 1184(o);

8 C.F.R. § 214.11. If the noncitizen is inadmissible under the INA, as the majority of T-visa applicants are,

they must seek a discretionary waiver of the inadmissibility ground before the visa can be approved. See 8

U.S.C. § 1182(d)(3) & (d)(13).

In general, applications for U and T visas never get

before either an immigration judge (IJ) or the Board

of Immigration Appeals (BIA), rendering judicial review all the more crucial. By regulation, U.S. Citizenship and Immigration Services (USCIS) “has sole jurisdiction over all petitions for U nonimmigrant status.” 8 C.F.R. § 214.14(c). Even a noncitizen in removal proceedings or with a final order of removal entered against him or her may only apply for a U visa

directly with USCIS. See id. USCIS “in its sole discretion” determines the evidentiary value of submitted evidence. 8 C.F.R. § 214.14(c)(5). If a petition is

denied, the noncitizen’s appeal is to the Administrative Appeals Office of USCIS, not to an IJ or the BIA.

8 C.F.R. § 214.14(c)(5)(ii). With regard to revocation,

10

USCIS may, on notice to the noncitizen, revoke an approved petition for U nonimmigrant status based on,

among other things, error in approval of the petition

or fraud in the petition. 8 C.F.R. § 214.14(h)(2). Appeals of such revocations also are filed with the Administrative Appeals Office, not with an IJ or the BIA.

8 C.F.R. § 214.14(h)(3).

In the same vein, “USCIS has sole jurisdiction over

all applications for T nonimmigrant status.” 8 C.F.R.

§ 214.11(d). As with denials of U visas, denials of T

visas are appealed to USCIS’ Administrative Appeals

Office. 8 C.F.R. § 214.11(d)(10); see also 8 C.F.R. §

214.11(m) (revocations are appealed to the Administrative Appeals Office).

VAWA self-petitions are also not presented to an IJ.

“[T]he VAWA self-petitioning process allows an alien

spouse of an abusive United States citizen to seek

classification as an immediate relative or a preference

immigrant by filing a Form I-360 with USCIS.”

Franjul-Soto v. Barr, 973 F.3d 15, 17 (1st Cir. 2020)

(citing 8 C.F.R. § 204.1). “The self-petition must

‘demonstrate[ ] to the Attorney General that ... during

the marriage ... the alien ... has been battered or has

been the subject of extreme cruelty perpetrated by the

alien’s spouse.’”

Id. (quoting 8 U.S.C. §

1154(a)(1)(A)(iii)(I)) (alteration in original).

“If,

‘[a]fter an investigation ... the Attorney General ... determines that the facts stated in the petition are true,’

he ‘shall ... approve the petition’ and award classification as an immediate relative or preference immigrant,

and the alien may thereafter be eligible for a visa.” Id.

at 17-18 (quoting 8 U.S.C. § 1154(b)). Denials of VAWA

self-petitions are also appealed to the USCIS’ Administrative Appeals Office. See 8 C.F.R. § 103.3.

11

The government exercises revocation authority

with respect to U visas, T visas, and VAWA self-petitions. With respect to U visas, the Department of

Homeland Security (DHS) has adopted regulations

that allows it to revoke such visas. See 8 C.F.R. §

214.14(h)(2). DHS has argued—and at least one court

has deferred to it on this point—that its power to do

so is authorized by statute. See Chaparro Navarro v.

Dep’t of Homeland Sec., 612 F. Supp. 3d 986, 995 (N.D.

Cal. 2020). Section 1184(a)(1) gives the Secretary of

Homeland Security the authority to prescribe, by regulation, the time and conditions of admission of any

nonimmigrant.

A decision that 8 U.S.C. §

1252(a)(2)(B)(ii) proscribes judicial review of the marriage-fraud determination at issue in this case could

equally apply to bar judicial review where USCIS revokes a visa under 8 C.F.R. § 214.14(h)(2)(i)(B) on the

ground that the noncitizen was not eligible for a U

visa in the first place.

DHS has also adopted regulations authorizing it to

revoke T visas. See 8 C.F.R. § 214.11(m). A decision

that 8 U.S.C. § 1252(a)(2)(B)(ii) proscribes judicial review of the marriage-fraud determination at issue in

this case could equally apply to bar judicial review

where USCIS revokes a visa that it unilaterally determines was approved in error under 8 C.F.R. §

214.11(m)(2)(i) 2 because the noncitizen was not eligible for a T visa in the first place.

2 This provision will be redesignated as 8 C.F.R. §

214.213(b)(1) effective August 28, 2024. See Classification for

Victims of Severe Forms of Trafficking in Persons; Eligibility for

“T” Nonimmigrant Status, 89 Fed. Reg. 34864, 34940 (Apr. 30,

2024).

12

With respect to VAWA self-petitions, the government also retains the authority to revoke a petition

grant. Since 8 U.S.C. § 1155 allows the revocation of

any petition approved under 8 U.S.C. § 1154, it also

permits the revocation of a VAWA self-petition under

8 U.S.C. § 1154(a)(1)(A)(iii). Thus, a decision that the

marriage-fraud determination is unreviewable because Section 1155 gives unfettered and unreviewable

discretion to the agency would equally bar review with

regard to a VAWA self-petitioner whose status the

agency wishes to revoke. See, e.g., Manguriu v. Lynch,

794 F.3d 119, 122 (1st Cir. 2015) (“USCIS revoked the

petitioner’s VAWA petition on the basis of marriage

fraud.”); Revocation of VAWA-Based Self-Petitions

(Aug. 5, 2002), 9 Immigration Law Service 2d PSD Selected DHS Document 4810 (“[E]ffective the date of

this memorandum, the [Vermont Service Center] shall

have sole authority to revoke an approved VAWAbased self-petition.”); see also Revocation of VAWA

Self-Petitions, 2 Immigration Law Service 2d § 7:169.

USCIS recognizes that marriage fraud findings are

particularly fraught because these findings will often

rely at least in part on perpetrator-provided information. Reliance solely on that information to reach

a marriage-fraud finding in a domestic violence case

usually implicates the confidentiality provisions of

VAWA. See 8 U.S.C. § 1367. As a result, USCIS’ VAWA

self-petition policy manual gives VAWA self-petition

adjudicators the ability to decide de novo, considering

the totality of the circumstances and facts in the selfpetitioner’s case, whether there was marriage fraud

at all. See USCIS Policy Manual, Chapter 3 – Effect

of Certain Life Events, (“Officers may not rely solely

on a prior finding of marriage fraud but must make a

13

separate and independent determination that the selfpetitioner previously engaged in marriage fraud.”),

available at https://www.uscis.gov/policy-manual/volume-3-part-d-chapter-3.

II. Congressional Goals as Embodied in the

Statutory Provisions and the Overall Statutory Scheme for U and T Visas and VAWA

Self-Petitions.

The importance of judicial review of administrative determinations with respect to U and T visas, as

well as VAWA self-petitions, is evident from Congress’

goals in enacting each type of immigration relief.

In establishing the U visa, Congress sought to encourage immigrant victims of domestic violence, child

abuse, and other specified criminal activity to cooperate with police and prosecutors, both to provide relief

to the victims of such crimes, and to facilitate their

investigation and criminal prosecution. U visas were

established as part of the Victims of Trafficking and

Violence Prevention Act of 2000, Pub. L. No. 106–386

(Oct. 28, 2000). Congress made explicit findings and

expressions of purpose in the Act. Specifically, Congress found that “[i]mmigrant women and children

are often targeted to be victims of crimes committed

against them in the United States, including rape, torture, kidnaping, trafficking, incest, domestic violence,

sexual assault, female genital mutilation, forced prostitution, involuntary servitude, being held hostage or

being criminally restrained.” Pub. L. No. 106-386, §

1513(a)(1)(A). “All women and children who are victims of these crimes committed against them in the

United States,” Congress explained, “must be able to

report these crimes to law enforcement and fully participate in the investigation of the crimes committed

14

against them and the prosecution of the perpetrators

of such crimes.” Id. § 1513(a)(1)(B).

Accordingly, Congress created the U visa “to

‘strengthen the ability of law enforcement agencies to

detect, investigate, and prosecute’ the specified crimes,

and to ‘offer[ ] protection to victims of such offenses in

keeping with the humanitarian interests of the

United States.’” Contreras Aybar v. Sec’y U.S. Dep’t of

Homeland Sec., 916 F.3d 270, 272 (3d Cir. 2019) (quoting Pub. L. No. 106-386, § 1513(a)(2)(A)) (alterations

in original). “Creating a new nonimmigrant visa classification will facilitate the reporting of crimes to law

enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status.” Pub. L. No. 106-386, § 1513(a)(2)(B).

At the same time, it “gives law enforcement officials a

means to regularize the status of cooperating individuals during investigations or prosecutions.” Id. Finally, Congress explained that “[p]roviding temporary

legal status to aliens who have been severely victimized by criminal activity also comports with the humanitarian interests of the United States.” Id. The

method by which these petitions must be adjudicated

also reflects the humanitarian purpose served by U

visas. As part of the statutory scheme, Congress directed the government to consider “any credible evidence” relevant to the petition. 8 U.S.C. § 1184(p)(4).

In other words, the government is not permitted to demand specific types of evidence of a noncitizen who

seeks a U visa, which types may ordinarily be difficult

for noncitizens to obtain when they are suffering

abuse or their safety is at risk, but must consider the

totality of the evidence provided in assessing the

noncitizen’s eligibility.

15

In establishing the T visa, Congress also sought to

serve important goals: providing relief to survivors of

human trafficking and facilitating the investigation

and criminal prosecution of traffickers. T visas were

established as part of the Trafficking Victims Protection Act, 22 U.S.C. § 7101 et seq. (2000). As Congress

explained, its purpose was “to combat trafficking in

persons, a contemporary manifestation of slavery

whose victims are predominantly women and children,

to ensure just and effective punishment of traffickers,

and to protect their victims.” 22 U.S.C. § 7101(a).

Congress included over 24 paragraphs of findings. 22

U.S.C. § 7101(b). Most notably, Congress found that:

• “Traffickers primarily target women and girls,

who are disproportionately affected by poverty, the lack of access to education, chronic

unemployment, discrimination, and the lack

of economic opportunities in countries of

origin.” Id. § 7101(b)(4);

• “Victims are often forced through physical violence to engage in sex acts or perform slavery-like labor. Such force includes rape and

other forms of sexual abuse, torture, starvation, imprisonment, threats, psychological

abuse, and coercion.” Id. § 7101(b)(6);

• “Trafficking also involves violations of other

laws, including labor and immigration codes

and laws against kidnapping, slavery, false

imprisonment, assault, battery, pandering,

fraud, and extortion.” Id. § 7101(b)(10);

• “Existing laws often fail to protect victims of

trafficking, and because victims are often illegal immigrants in the destination country,

they are repeatedly punished more harshly

16

than the traffickers themselves.” Id. §

7101(b)(17);

• “[V]ictims often find it difficult or impossible

to report the crimes committed against

them or to assist in the investigation and

prosecution of such crimes.”

Id. §

7101(b)(20);

• “Current practices of sexual slavery and trafficking of women and children are … abhorrent to the principles upon which the United

States was founded,” including the principle

of the inherent dignity and worth of all people. Id. § 7101(b)(22);

• “The United States and the international community agree that trafficking in persons involves grave violations of human rights and

is a matter of pressing international concern.” Id. § 7101(b)(23); and

• “Trafficking in persons is a transnational

crime with national implications. To deter

international trafficking and bring its perpetrators to justice, nations including the

United States must recognize that trafficking is a serious offense. This is done by prescribing appropriate punishment, giving

priority to the prosecution of trafficking offenses, and protecting rather than punishing the victims of such offenses.” Id. §

7101(b)(24).

The upshot is clear: trafficking in persons is a

scourge, and the United States must offer refuge to

noncitizen victims willing to help combat it by providing assistance to law enforcement.

Finally, the VAWA self-petition process exists to

17

protect noncitizens from abuse from their U.S. citizen

and lawful permanent resident spouses and parents.

See 8 U.S.C. § 1154(a)(1)(A), (B); Bait It, 410 F. Supp.

3d at 880 (“Congress sought to prevent the U.S. citizen-abuser ‘from using the petitioning process as a

means to control or abuse an alien spouse.’”) (quoting

H.R. Rep. No. 103–395). VAWA was designed “to permit battered spouses to leave their abusers without

fear of deportation or other immigration consequences.” Henton v. U.S. Att’y Gen., 520 F. App’x 801,

804 (11th Cir. 2013) (per curiam).

Congress’ express purpose and findings establish

that U visas, T visas, and the VAWA self-petition process are critical to protect noncitizens from severe

harm and facilitate the solving and punishment of

crime and abuse. Recognizing the special nature of

these types of immigration relief, Congress even removed authority over some applications from regular

USCIS adjudicators, and mandated that these applications be adjudicated in a specialized unit. In 1997,

the Immigration and Naturalization Service (INS)

consolidated adjudication of VAWA self-petitions and

VAWA-related cases in one specially trained unit that

adjudicates all VAWA immigration cases nationally.

T-visa and U-visa adjudications were also consolidated in the specially trained VAWA unit. See H.R.

Rep. 109-233, 114, 120, 2005 U.S.C.C.A.N. 1636, 1666,

1672 (2005). Congress acknowledged the potentially

higher risk of error in these cases, and has strongly

supported the creation of a specially trained unit to

adjudicate each of the victim-based forms of immigration relief created by VAWA and the TVPA. See H.R.

Conf. Rep. 107-278, 79, 2002 U.S.C.C.A.N. 793, 808

18

(2001) (“[T]he conferees adopt by reference Senate direction to provide $5,500,000 to the Eastern Adjudication Service Center to process immigration self-petitions and U visas under the Violence Against Women

Act, and T visas under the Victims of Trafficking and

Violence Protection Act, and agree that of this amount,

$500,000 shall be for the Eastern Adjudication Center

as directed by the Senate.”).

III. The Presumption of Judicial Review Applies

with Particular Force Here, in this Immigration Context, where Congress Singled Out

Particular Vulnerable Groups for Protection.

The Court’s decision in this case will also have important implications for courts’ understanding of the

presumption of reviewability. The Court has repeatedly recognized the importance of judicial review, especially in the immigration context. “Congress rarely

intends to prevent courts from enforcing its directives

to federal agencies. For that reason, this Court applies a strong presumption favoring judicial review of

administrative action.” Mach Mining, 575 U.S. at 486

(quotation marks omitted). That presumption is rebuttable “when a statute’s language or structure

demonstrates that Congress wanted an agency to police its own conduct.” Id. But an executive agency

bears a heavy burden in trying to establish the nonreviewability of its actions. Id.

This Court has “‘consistently applied’ the presumption of reviewability to immigration statutes.” Guerrero-Lasprilla, 589 U.S. at 229 (quoting Kucana v.

Holder, 558 U.S. 233, 251 (2010)). In Kucana, for example, the Court applied the presumption and held

that “[a]ction on motions to reopen … remain subject

to judicial review” notwithstanding 8 U.S.C. §

19

1252(a)(2)(B)(ii). 558 U.S. at 253. In GuerreroLasprilla, the Court again applied the presumption

and held that mixed questions of law and fact are reviewable under the Limited Review Provision, 8 U.S.C.

§ 1252(a)(2)(D). 589 U.S. at 229-30.

The text of the INA militates against the government’s assertion of non-reviewability. “Congress

knows how to” clearly rebut the presumption of judicial review in the INA—but it did not do so here.

Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242,

252 (2010). If Congress had wanted to bar judicial review of revocation decisions pursuant to Section 1155,

it could have used language similar to other provisions of the INA that unambiguously bar such review.

For example, Congress has provided that visa revocation decisions by consular officers or the Secretary of

State are unreviewable. See 8 U.S.C. § 1201(i)

(providing that “[a]fter the issuance of a visa or other

documentation to any alien, the consular officer or the

Secretary of State may at any time, in his discretion,

revoke such visa or other documentation. … There

shall be no means of judicial review (including review

pursuant to section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of

such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under

section 1227(a)(1)(B) of this title.”). Congress’ decision

not to include similar language in Section 1155 suggests that it did not intend to bar review of revocation

decisions. At least, the failure of Congress to expressly shield such decisions from review suggests

that the government has not carried its heavy burden

to rebut the presumption of reviewability.

20

A. There is a Long Tradition of Judicial Review in Immigration Matters, Which has

Many Salutary Effects.

Judicial review in the immigration context has a

long history, and is essential in correcting agency misinterpretation of law. More than a century ago, this

Court overturned a determination that a noncitizen

was a “public charge,” which determination was

grounded in agency misreading of statute. See Gegiow

v. Uhl, 239 U.S. 3, 10 (1915). See also Louis L. Jaffe,

The Right to Judicial Review I, 71 Harv. L. Rev. 401,

425-26 (1958) (deeming the Court’s Gegiow decision a

“strong manifestation of a general presumption of reviewability”). As Professor Jaffe observed a half-century ago when detailing the history of the right to judicial review, justices of the peace in 18th Century

England engaged in administrative activities “within

well-defined areas: laws relating to the poor, to liquor

licensing, to apprentices, and to game protection, and

to the levy of rates to support these minimum functions.” Id. at 404. This is the “tradition which we inherited in colonial times and which we carried over

more or less intact into the states and the nation. Our

Revolution emphasized once more the themes of a limited government and a limited executive.” Id.

This tradition came under aggressive attack in

Professor Jaffe’s time: “[D]uring the New Deal, our

courts, belabored for their hostility to administration

(and quite correctly belabored), appeared to yield

somewhat to the arguments for executive autonomy

and omnipotence.” Id. “But the conservative interest

in this country showed more elasticity, more vigor and

self-assurance; the courts, backed by a written Constitution, recovered from their sense of guilty usurpation,

21

and in these latter days even the New Deal liberals

have rushed to the defense and reinvigoration of judicial review.” Id. It is “the teaching of our history and

tradition” that “an individual whose interest is acutely

and immediately affected by an administrative action

presumptively has a right to secure at some point a

judicial determination of its validity.” Id. at 420. That

right can be no more urgent than where individuals

face severe harm from domestic violence, child abuse,

sexual assault, human trafficking, and other violent

crimes, and uncorrected administrative error threatens to sustain or even exacerbate such harm, while at

the same time undermining the ability of law enforcement and prosecutors to successfully prosecute perpetrators.

In addition to being part of the American tradition,

judicial review in the immigration context has numerous salutary effects. Federal courts possess “independence and generalist legal knowledge,” which “effectively improve the quality of the decisions that actually are reviewed in court.” Stephen H. Legomsky,

Political Asylum and the Theory of Judicial Review,

73 Minn. L. Rev. 1205, 1210 (1989). Moreover, “judicial review also serves another function, one that operates even in cases that never reach court”: to encourage administrative decisionmakers to make more logical, carefully reasoned decisions. Id. “The mere possibility that an alien will seek judicial review of an

asylum decision encourages the various administrative authorities to study the case carefully and to state

their reasoning intelligibly. The process of drafting

reasoned dispositions can help administrative decisionmakers expose and resolve analytical problems on

22

their own.” Id. at 1210-11. “[J]udicial review in federal court” also “provides a structure for the gradual

development of legal doctrine.” Id. at 1211. Finally,

judicial review “may have its own efficiency value,” allowing courts to clarify the meaning of statutory text

and thus promote greater predictability in immigration law. Lenni B. Benson, You Can’t Get There from

Here: Managing Judicial Review of Immigration

Cases, 2007 U. Chi. Legal F. 405, 431-32 (2007).

Judicial review is especially important in the immigration context given that vulnerable immigrants

could suffer greatly from uncorrected administrative

errors. See Mia v. Renaud, No. 22-CV-2098 (FB), 2023

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

“a broad construction § 1252(a)(2)(B)(ii)” because it

“would suppose that, for the past twenty-five years,

Congress has been silent about its intent to deprive

numerous, vulnerable people of the opportunity for a

federal court to review blatant administrative errors”);

Wanrong Lin v. Nielsen, 377 F. Supp. 3d 556, 565 (D.

Md. 2019) (explaining that it is in the public interest

for courts to bar “arbitrary and capricious agency action towards vulnerable undocumented immigrants”).

Recognizing this, Congress has repeatedly intervened

to correct agency errors in this area, including, as

mentioned above, through supporting the creation of

a specialized unit to handle certain types of immigration cases.

B. Judicial Review is Essential to Correct

Legal and Systemic Analytical Errors.

The government’s adjudication of U-visa and

VAWA self-petition cases has too often been affected

by legal error. For example, in Arguijo v. United

States Citizenship & Immigr. Servs., 991 F.3d 736 (7th

23

Cir. 2021), the Seventh Circuit held that “in the context of the Violence Against Women Act ‘stepchild’ status survives divorce.” Id. at 740. Its ruling repudiated

USCIS’ narrow construction of VAWA, which would

have “defeat[ed] application of the substantive rule

that abused stepchildren are entitled to an immigration benefit.” Id. at 739. Another example is Medina

Tovar v. Zuchowski, 982 F.3d 631 (9th Cir. 2020) (en

banc). There, the Ninth Circuit held that USCIS had

gone beyond its statutory authority in requiring Uvisa applicants who wished to include their spouses as

U-visa derivatives to show their marriage existed at

the time of the U-visa application instead of just at the

time of adjudication. Id. at 644. And in Hernandez v.

Ashcroft, 345 F.3d 824 (9th Cir. 2003), the Ninth Circuit rejected the government’s misinterpretation of

the term “extreme cruelty” as used in the VAWA. Id.

at 838-41. Without judicial review, these agency errors would have gone uncorrected and survivors of

abuse would have lost lifechanging immigration outcomes granted to them by Congress. And the government’s circumscribed view of judicial review here

would potentially render future errors beyond the

power of the courts to fix.

Removing judicial review would also leave uncorrected systematic analytical errors made by the

agency. Domestic abuse issues, which often arise in

the context of VAWA self-petitions and U visa cases,

pose special challenges of adjudication that may increase the risk of such errors. See, e.g., Khawam v.

Wolfe, 214 A.3d 455, 461-62 (D.C. 2019) (explaining

that “implicit bias is a matter of real concern” where

claims of domestic violence are raised and “in the particular context of family law,” and citing D. Epstein &

24

L. Goodman, Discounting Women: Doubting Domestic

Violence Survivors’ Credibility and Dismissing Their

Experiences, 167 U. Pa. L. Rev. 399 (2019)). T-visa petitions may also be implicated to the extent that language or cultural barriers, misunderstood trauma response, fundamental misunderstanding of the nature

of coercion often used on trafficking victims, or similar

factors, make agency factual determinations less reliable. A brief explanation of some of those aspects may

help both to illuminate Congress’ decision to establish

a specialized adjudication unit for these cases, and to

explain the need for some review. See H.R. Rep. 109233, 114, 120, 2005 U.S.C.C.A.N. 1636, 1666, 1672

(2005).

Research demonstrates the heightened risk of error where an individual has experienced trauma as a

result of being a victim of domestic violence. Many

domestic violence victims are unable to recount their

experiences in an internally consistent manner. That

is because domestic violence frequently results in both

neurological and psychological trauma, either or both

of which can severely hamper memory and comprehension. The scientific literature shows that trauma

often causes survivors’ testimony to be disjointed, nonlinear, and fragmented, which makes it appear to be

internally inconsistent and implausible. 3 Thus, the

3 Like traumatic brain injury, psychological trauma and ex-

treme stress severely undermine survivors’ ability to remember

all of the details of their experiences or to recount them in a linear manner. Sarah L. Halligan et al., Cognitive Processing,

Memory, and the Development of PTSD Symptoms: Two Experimental Analogue Studies, 33 J. Behav. Therapy & Experimental

Psychiatry 73, 73–74 (2002). Traumatic memories are “pro(continued)

25

fragmented nature of testimony about abuse—the

very factor that would demonstrate to an expert the

truth of the alleged trauma—is sometimes mistakenly

used to discount, rather than corroborate, a survivor’s

credibility.

More specifically, a large number of domestic violence victims experience some form of traumatic brain

injury, often from blunt force trauma to the head or

from reduced oxygen to the brain from strangulation.

For example, in one study of women in New York domestic violence shelters, 92% responded that they had

been hit in the head more than once by their partners,

with 8% having been hit in the head more than twenty

times in the previous year. 40% of respondents had

lost consciousness as a result of these assaults. Helene Jackson et al., Traumatic Brain Injury: A Hidden

Consequence for Battered Women, 33 Prof. Psychol. 39,

41 (2002).

Traumatic brain injury, which is commonly associated with impaired memory of the event, or “retrograde amnesia,” see Sharon Gil et al., Review Article,

cessed differently than ordinary memories. This results in a failure to organize the traumatic event into a coherent verbally represented narrative. The abnormal nature of traumatic memories

is considered to be a central feature of PTSD.” Sharon Gil et al.,

Review Article, Memory of the Traumatic Event as a Risk Factor

for the Development of PTSD: Lessons from the Study of Traumatic Brain Injury, 11 CNS Spectrums 603, 604 (2006) (emphases added) (endnotes omitted). Such memories may first arise as

mere fragments of a sound, a feeling, or a touch. Halligan, supra,

at 74. This phenomenon is well-established in the scientific literature, and may be explained by the way the brain focuses on

“sensory impressions” during a traumatic event, rather than processing the context and meaning of what is occurring. Id. at 74,

87.

26

Memory of the Traumatic Event as a Risk Factor for

the Development of PTSD: Lessons from the Study of

Traumatic Brain Injury, 11 CNS Spectrums 603, 605

(2006), can have a profound effect on a victim’s ability

to recall what occurred in a linear sequence or to

clearly recall the details of an event. “Even mild [traumatic brain injury]—which can occur after only a

short period without oxygen to the brain—can result

in a significant and profound impact on memory and

behavior, inducing symptoms such as confusion, poor

recall, inability to link parts of the story together or to

articulate a logical sequence of events, uncertainty

about detail, and even recanting of stories.” Epstein,

Discounting Women, supra, at 408.

To those familiar with traumatic brain injury, the

impressionistic character of a survivor’s testimony

about an abusive incident is perfectly consistent with

her allegations; indeed the fragmented way she presents her story makes her account more plausible.

However, to most adjudicators, such testimony fails to

meet the traditional standards of internal consistency

and coherence used to determine credibility in other

contexts. To them, the disjointed nature of the survivor’s testimony makes it sound implausible. Thus,

the more careful a survivor is to provide details in her

application about what she actually does and does not

recall about the trauma she experienced, the less

plausible she may appear to an adjudicator, causing

her testimony to be mistakenly—and unfairly—discounted.

Trauma also affects the demeanor of domestic violence victims in ways that predictably lead to credibility discounting. See Joan S. Meier, Domestic Violence,

Child Custody, and Child Protection: Understanding

27

Judicial Resistance and Imagining the Solutions, 11

Am. U. J. Gender Soc. Pol’y & L. 657, 691-92 (2003).

For example, flashbacks—intrusive memories experienced as happening in the “here and now,” Oliver Sundermann et al., Perceptual Processing During Trauma,

Priming and the Development of Intrusive Memories,

44 J. Behav. Therapy & Experimental Psychiatry 213,

213 (2013)—can impair a survivor’s ability to testify

in a “normal” sequential fashion, Epstein, Discounting

Women, supra, at 422.

Even if a survivor is able to testify coherently

about her experience, a significant disconnect may exist between her demeanor and an adjudicator’s expectations of how a credible witness would present on the

stand. For example, one symptom of PTSD is emotional numbness, causing survivors to testify about

their experience of abuse with an entirely flat affect.

Id. at 421. A witness’ unemotional demeanor when

testifying about a harrowing experience, such as a

sexual assault, may be jarring to an adjudicator expecting a strong emotional reaction. Similarly, hyperarousal, another core element of PTSD, “can cause a

victim to seem highly paranoid or subject to unexpected outbursts of rage,” and thus to seem less trustworthy. Id. Both categories of PTSD symptoms may

therefore result in the imposition of an erroneous

credibility discount. This substantial body of research

about the effect of trauma on crime victims underscores the need for judicial review as a backstop

against erroneous factual determinations in agency

adjudications.

Moreover, there are several persisting and widespread assumptions about abuse which diverge from

the actual experience of most survivors, resulting in

28

discounting nonconforming testimony as implausible

and thus, leading to incorrect credibility assessments

and decisions in U visa, T visa, and VAWA petitions

and revocations. First, if the abuse was serious, a

woman would not continue her relationship with her

abuser. However, many have nowhere to go or lack

resources or believe there will be retribution by the

abusive partner for leaving, including harming their

children. See, e.g., Jacquelyn C. Campbell et al., Risk

Factors for Femicide in Abusive Relationships: Results

From a Multisite Case Control Study, 93 Am. J. Pub.

Health 1089, 1092 (2003).

Second, physical abuse might seem worse than

psychological abuse and, thus, a “real” victim would

focus her testimony primarily on the former. However,

many women experience psychological harm as more

salient and more damaging than physical abuse. Epstein, Discounting Women, supra, at 418. In addition,

research shows that psychological abuse, not physical

violence, plays the largest role in the development of

PTSD symptoms and depression. See, e.g., Mary Ann

Dutton, Lisa A. Goodman & Lauren Bennett, CourtInvolved Battered Women’s Responses to Violence: The

Role of Psychological, Physical, and Sexual Abuse, 14

Violence & Victims 89 (1999); Maria Angeles Pico-Alfonso, Psychological Intimate Partner Violence: The

Major Predictor of Posttraumatic Stress Disorder in

Abused Women, 29 Neuroscience & Biobehav. Revs.

181, 188 (2005). Research also shows that immigrant

survivors stay in abusive relationships longer and suffer more harm, in part because many do not leave the

relationship until they are able to obtain legal work

authorization. See generally Giselle Aguilar Hass,

Nawal Ammar, & Leslye Orloff, Battered Immigrants

29

and U.S. Citizen Spouses, available at https://niwaplibrary.wcl.american.edu/wp-content/uploads/2015/BB_RSRCH_ImmVictims_Battered_Imm.pdf.

Third, victims of physical and sexual abuse always

report the abuse and possess external evidence corroborating their allegations. In fact, lack of physical

evidence and the absence of contemporaneous reports

of domestic violence is the norm. “Proof of domestic

violence is extremely difficult because of the nature

and effects of the violence itself. Because of the effects

of the violence on its victims, they have a tendency to

react in ways that make the violence invisible. It is

rarely reported to officials who might keep records.”

Judith G. Greenberg, Domestic Violence and the Danger of Joint Custody Presumptions, 25 N. Ill. U. L. Rev.

403, 415 (2005). These sorts of misconceptions about

the experiences and evidence available to noncitizen

survivors have the propensity to lead to erroneous denials or revocations of any immigration benefit submitted by a survivor. This could include marriagebased petitions submitted by people who happen to be

survivors of abuse or crime, and could especially include U visa, T visa, or VAWA petitions, which are

forms of relief that Congress found were of utmost importance for humanitarian, law enforcement, and

public safety reasons.

If judicial review of decisions to revoke these forms

of relief is not preserved, these vulnerable individuals

will have no way to address erroneous adverse actions,

and the will of Congress to provide special protections

that account for their special vulnerabilities will have

been thwarted.

30

Finally, revocation on the ground that the visa petition was erroneously granted could occur in problematic circumstances, such as a criminal conviction

linked to trafficking or domestic violence or immigration officials revoking an approved self-petition relying solely upon information provided by a domestic violence or child abuse perpetrator in violation of 8

U.S.C. § 1367 (the VAWA confidentiality protections).

This raises the risk of factual error due to bias and

underscores the need for judicial review.

CONCLUSION

For the foregoing reasons, the Court should reverse the decision below.

July 10, 2024

Respectfully submitted,

CHARLES ROTH

NATIONAL IMMIGRANT JUSTICE CENTER

111 W. Jackson Blvd.

Suite 800

Chicago, IL 60604

VICTORIA DORFMAN

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, D.C. 20001

(202) 879-3687

vdorfman@jonesday.com

JULIUS KAIREY

JONES DAY

250 Vesey Street

New York, NY 10281

NICOLE HENNING

JONES DAY

110 N. Wacker Dr.

Chicago, IL 60606

Counsel for Amici Curiae