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 OF ADMINISTRATIVE AND IMMIGRATION LAW PROFESSORS AS AMICI CURIAE

IN SUPPORT OF PETITIONER

ANDREW J. PINCUS

Counsel of Record

DANIEL E. JONES

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................2

ARGUMENT ...............................................................5

Long-Settled Administrative Law Principles

Demonstrate That A Section 1155

Revocation Decision Expressly Based On

Section 1154(c)’s Non-Discretionary

Standard Is Subject To Judicial Review. .............5

A. Precluding judicial review here

produces indefensible statutory

anomalies. .......................................................5

B. Three background principles of

administrative law and statutory

interpretation together weigh heavily

in favor of judicial review. ............................ 10

1. The presumption in favor of

judicial review. ....................................... 10

2. The presumption favoring

harmonization of statutes. ..................... 11

3. The principle that agency exercises

of “discretion” are subject to

judicial review when based on nondiscretionary grounds. ........................... 13

C. Section 1252 does not contain the required

clear indication of congressional intent to

preclude review. ................................................... 15

CONCLUSION .......................................................... 19

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bennett v. Spear,

520 U.S. 154 (1997) .............................................. 12

Bowen v. Michigan Academy of Family

Physicians,

476 U.S. 667 (1986) .................................... 9, 10, 11

Campos-Chaves v. Garland,

144 S. Ct. 1637 (2024) ............................................ 7

Center for Auto Safety v. Dole,

828 F.2d 799 (D.C. Cir. 1987) .............................. 15

Clifford v. Peña,

77 F.3d 1414 (D.C. Cir. 1996) .............................. 14

Dep’t of Commerce v. New York,

588 U.S. 752 (2019) ........................................ 13, 16

Dep’t of Homeland Sec. v. Regents of the

Univ. of Cal.,

591 U.S. 1 (2020) .................................................... 9

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ........................................ 11, 12

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ................................................ 9

Ghaly v. INS,

48 F.3d 1426 (7th Cir. 1995) .................................. 6

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) .............................................. 11

Haoud v. Ashcroft,

350 F.3d 201 (1st Cir. 2003) ................................ 14

iii

TABLE OF AUTHORITIES—continued

Page(s)

INS v. St. Cyr,

533 U.S. 289 (2001) .............................................. 13

Kucana v. Holder,

558 U.S. 233 (2010) .............................................. 11

Lindahl v. OPM,

470 U.S. 768 (1985) .............................................. 11

Mach Mining LLC v. EEOC,

575 U.S. 480 (2015) .................................... 6, 10, 11

Maslenjak v. United States,

582 U.S. 335 (2017) ................................................ 7

Massachusetts v. EPA,

549 U.S. 497 (2007) .............................................. 15

Morton v. Mancari,

417 U.S. 535 (1974) .............................................. 12

Patel v. Garland,

596 U.S. 328 (2022) ........................................ 16, 17

Reno v. American-Arab AntiDiscrimination Committee,

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

Reno v. Catholic Social Servs., Inc.,

509 U.S. 43 (1993) ................................................ 11

Russello v. United States,

464 U.S. 16 (1983) ................................................ 17

Salinas v. United States,

592 U.S. 188 (2021) ........................................ 11, 17

iv

TABLE OF AUTHORITIES—continued

Page(s)

Smiley v. Citibank (South Dakota), N.A.,

517 U.S. 735 (1996) ................................................ 9

Smith v. Berryhill,

139 S. Ct. 1765 (2019) .......................................... 11

Smriko v. Ashcroft,

387 F.3d 279 (3d Cir. 2004) ................................. 14

Trout Unlimited v. Pirzadeh,

1 F.4th 738 (9th Cir. 2021) .................................. 14

United States v. Carolina Freight

Carriers Corp.,

315 U.S. 475 (1942) ................................................ 6

United States v. Menasche,

348 U.S. 528 (1955) .............................................. 12

Vimar Seguros y Reaseguros, S.A. v.

M/V Sky Reefer,

515 U.S. 528 (1995) .............................................. 12

Weyerhouser Co. v. U.S. Fish & Wildlife

Serv.,

586 U.S. 9 (2018) .............................................. 6, 13

Statutes

5 U.S.C. § 701(a)(2) ............................................. 13, 16

8 U.S.C.

§ 1154(c).................................. 2, 6, 8, 11, 14, 15, 18

§ 1154(c)(2) ................................................... 6, 8, 12

§ 1155................................................ 2, 3, 6, 7, 9, 12

v

TABLE OF AUTHORITIES—continued

Page(s)

§ 1252........................................................ 12, 15, 18

§ 1252(a)(2)(B)(i) .................................................. 17

§ 1252(a)(2)(B)(ii) ........................... 3, 15, 16, 17, 18

46 U.S.C. app. § 1222(b) ............................................ 14

INTEREST OF THE AMICI CURIAE

Amici curiae are law professors with deep expertise in administrative law and immigration issues

who have a strong interest in proper interpretation

and application of principles of administrative law

and statutory construction. Amici are filing this brief

to explain that those principles demonstrate that

agency determinations such as the one challenged

here are subject to judicial review.1

Amici are participating solely in their individual

capacities; their academic affiliations are listed solely

for identification purposes. Amici are:

William Araiza, Stanley A. August Professor of

Law at Brooklyn Law School;

Harold J. Krent, Professor of Law at Chicago-Kent

College of Law;

Alan B. Morrison, Lerner Family Associate Dean

for Public Interest and Public Service Law at George

Washington University Law School;

Lynn Marcus, Clinical Professor of Law and Director of the Immigration Law Clinic and Community

Immigration Law Placement Clinic at the University

of Arizona James E. Rogers College of Law;

Richard J. Pierce, Lyle T. Alverson Professor of

Law at George Washington University Law School;

and

Michael J. Wishnie, William O. Douglas Clinical

Professor of Law at Yale Law School.

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no entity or person other than amici or their counsel made a monetary contribution intended to fund its preparation or submission.

1

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case requires the Court to address a narrow,

but important, question regarding petitions for an immigrant visa. The decision whether to grant these petitions is critical for the families involved: spouses

who either will be able to live together or be permanently separated; children—frequently U.S. citizens—who will learn whether they will be able to grow

up nurtured by both of their parents.

In deciding whether to approve a visa petition, the

Department of Homeland Security reviews the petition for compliance with certain statutory requirements in the Immigration and Nationality Act. That

statute includes a section providing that “no petition

shall be approved” if the petitioner previously entered

into a marriage “for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c). Lower courts have

held, and the government agrees, that denial of a visa

petition under that provision, often referred to as the

“sham-marriage bar,” is a non-discretionary determination subject to judicial review.

After a petition is approved under Section 1154,

the government “may, at any time, for what [it] deems

to be good and sufficient cause, revoke the” approval. 8 U.S.C. § 1155.

In this and many other cases in which the government granted the visa petition—and necessarily concluded that there was insufficient evidence of an immigration law-evading marriage—the government

subsequently uses its Section 1155 authority to conclude that it got the Section 1154 “sham marriage” determination wrong. The government revokes the visa

for the express reason that the petitioner entered into

3

a marriage for the purpose of evading the immigration

laws, so the petition should never have been approved

in the first place.

Given the stakes, judicial review of this determination is an essential check on arbitrary, unjustified

agency action. But the ruling below bars judicial review if the decision is made in the revocation.

In other words, a decision that would have been

reviewable if made at an earlier stage of the process

becomes unreviewable because it comes later—even

though the later decision reverses the earlier determination that Section 1154 did not bar issuance of the

visa.

The question is whether judicial review of the

sham-marriage determination made in the revocation

context under Section 1155 is barred by 8 U.S.C.

§ 1252(a)(2)(B)(ii), which states that courts lack jurisdiction to review “any * * * 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.”

The Eleventh Circuit agreed with the government

that, because Section 1155 grants discretion to revoke

a visa, a sham-marriage determination that would

have been reviewable if made under Section 1154 is

not reviewable when made under Section 1155.

That interpretation produces multiple intolerable

anomalies. It draws irrational distinctions between

similarly situated visa petitioners based solely on the

stage of the process at which the agency makes the

sham marriage determination. It incentivizes the

agency to defer investigations into sham marriages

and related decisions until later in the process, to

4

insulate the agency from judicial review. And it yields

the bizarre result that the agency’s change in position

and correction of a perceived error subjects it to less

scrutiny than if it had initially denied the petition for

the same reason.

Several long-settled principles of administrative

law and statutory interpretation require clarity—in

the statute’s text and structure—in order to foreclose

judicial review and accept these anomalous results.

First, this Court has repeatedly recognized the

strong presumption in favor of judicial review. Second, the Court has consistently instructed that statutes should be construed in harmony rather than to

displace one another. Third, courts consistently hold

that an agency’s exercise of discretionary authority is

subject to judicial review when the agency expressly

bases its decision on a non-discretionary standard.

Precedent holds that clear congressional intent is

required to displace each of these principles. Here,

where all three are applicable, they create a very high

bar for finding preclusion of judicial review.

The text and structure of Section 1152(a)(2)(B)(ii)

do not come close to satisfying that demanding standard. The text focuses on “decision[s] or action[s]” that

are “in the discretion” of the agency—and here the relevant “decision” is the non-discretionary sham-marriage determination. The text therefore provides no

basis for concluding that Congress intended to preclude review of that otherwise reviewable decision.

The decision below should be reversed.

5

ARGUMENT

Long-Settled Administrative Law Principles

Demonstrate That A Section 1155 Revocation

Decision Expressly Based On Section 1154(c)’s

Non-Discretionary Standard Is Subject To Judicial Review.

The decision below acknowledges that judicial review is available when the agency denies a visa petition on the ground that a noncitizen entered into a

sham marriage. But, according to the court of appeals,

if the very same determination is the stated basis for

revoking a previously-granted petition, the agency’s

determination is insulated from judicial oversight.

The government must satisfy a heavy burden to

establish that Congress intended these anomalous results. It cannot meet that burden. Well-settled principles of administrative law all militate in favor of judicial review. The text and structure of the statute point

in the same direction—and they certainly do not

clearly and unambiguously foreclose judicial review,

as required to overcome the strong presumption in favor of judicial review of agency decisions.

A. Precluding judicial review here produces indefensible statutory anomalies.

Judicial review of agency action serves the essential role of preventing arbitrary agency decision-making and administrative determinations not rooted in

the facts before the agency decision-maker. It also precludes unlawful and unconstitutional agency action.

And the possibility of judicial review provides a strong

incentive for agencies to conform their actions to the

governing legal standards.

6

This Court has repeatedly recognized that judicial

review is an important protection against the “legal

lapses and violations” that inevitably occur in the administrative process—and that are “especially” inevitable “when they have no consequence.” Mach Mining

LLC v. EEOC, 575 U.S. 480, 489 (2015); accord Weyerhouser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. 9,

22-23 (2018). Congress provides for judicial review “as

an additional assurance that its policies” will be executed properly. United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 489 (1942).

That purpose is especially important here. The

wrongful denial of a visa petition can have draconian

consequences for noncitizens and their families—including separating spouses and separating parents

from their U.S. citizen children. See Pet. Br. 2, 7.

Moreover, a finding that a noncitizen has entered into

a sham marriage means that the noncitizen is ineligible for an immigrant visa and can never become a U.S.

citizen or even a permanent resident. See 8 U.S.C.

§ 1154(c)(2); Ghaly v. INS, 48 F.3d 1426, 1436 (7th

Cir. 1995) (Posner J., concurring).

The court of appeals’ holding that no judicial review is available for Section 1155 revocation decisions

based on a sham-marriage determination under the

Section 1154(c) standard produces bizarre, unjustifiable anomalies.

First, the court of appeals’ interpretation generates irrational distinctions among visa petitioners depending on when the government makes an adverse

determination under the Section 1154(c) standard.

If the government makes an adverse determination under Section 1154 at the threshold step of reviewing the petitioner’s compliance with the statutory

7

requirements, that petitioner has recourse to the

courts. But if the agency first approves a visa petition

and only later corrects its perceived error by revoking

the petition under Section 1155 on the basis of the

Section 1154 standard, there is no judicial review.

That distinction makes no sense because it rests

on the agency’s own conduct and the timing of its decision, not on any differences between visa petitioners—who suffer the same severe consequences.

Assume that the government makes the same erroneous sham-marriage determination for two similarly-situated visa petitioners. The only difference is

that the government makes the error at the initial review stage for the first petitioner, and at the revocation stage for the second petitioner. Under the court of

appeals’ interpretation, it is irrelevant that the government applied the same statutory test to the petitioners’ identical circumstances, committed the very

same error, and the two petitioners suffered the very

same harms. Only the first petitioner may obtain judicial review and reversal of the erroneous determination; the second petitioner cannot obtain review.

This Court should not lightly conclude that the

statutory scheme Congress created is subject to “profound mismatch[es]” of this kind. Maslenjak v. United

States, 582 U.S. 335, 345-46 (2017); accord CamposChaves v. Garland, 144 S. Ct. 1637, 1648 (2024).

Second, the court of appeals’ interpretation gives

the government both the incentive and the means to

circumvent judicial review. Under the government’s

view of the law, nothing stops the agency from approving a visa petition at the initial stage of Section 1154

review and then revoking the petition under Section

1155 by making a sham-marriage determination

8

under the Section 1154(c) standard—the same determination that would have required denying the petition had that determination been made at the first

stage.

This concern does not require the Court to assume

that the agency will defy its obligation to deny petitions on the basis of a sham-marriage determination

under Section 1154(c)(2). Rather, the Eleventh Circuit’s interpretation gives the agency an incentive not

to investigate the possibility of or make an authoritative determination about a sham marriage until the

revocation stage, in order to sidestep judicial scrutiny.

And under the government’s view of the law, there is

nothing a petitioner can do to avoid that loss of her

recourse to the courts.

The government’s suggestion in its brief in opposition (at 18)—that a petitioner can file a new visa petition and seek judicial review of its inevitable denial—is no answer. The government’s proposed solution instead underscores the irrational results that

follow from its interpretation. The government has no

explanation why Congress would design a system in

which petitioners must proceed through a futile refiling and endure years of additional delay before a court

can review the same sham-marriage determination

that the agency has already made.

Indeed, the government’s concession that judicial

review is available in this roundabout way wholly undermines its arguments that judicial review should be

barred here.

Third, as a general matter the same decisionmaker’s reversal of a prior decision should be a

reason for more judicial scrutiny, certainly not less.

9

To be sure, this Court has held that the APA does

not contain “a requirement that all agency change be

subjected to more searching review” than initial

agency decisions. FCC v. Fox Television Stations, Inc.,

556 U.S. 502, 514 (2009) (emphasis added). But

agency change generally is not less reviewable. Indeed, an agency must provide a “reasoned explanation” for its new action, and that sometimes requires

“a more detailed justification than what would suffice”

for initial agency action, especially if the agency’s

prior position or conferred benefit has “engendered serious reliance interests that must be taken into account.” Id. at 515 (citing Smiley v. Citibank (South

Dakota), N.A., 517 U.S. 735, 742 (1996)); accord Dep’t

of Homeland Sec. v. Regents of the Univ. of Cal., 591

U.S. 1, 30 (2020).

The court of appeals’ interpretation turns these

principles upside down. It immunizes the agency’s

sham-marriage determination from judicial scrutiny

only when the agency changes course by revoking a

previously granted visa petition under Section 1155,

and not when the agency initially denies a petition on

the basis of the same sham-marriage determination.

As we next discuss, settled administrative law

principles require extremely “clear and convincing”

congressional intent—expressed in the statute’s

text—to support the government’s “extreme position”

and justify these bizarre results. Bowen v. Michigan

Academy of Family Physicians, 476 U.S. 667, 680-81

(1986) (quotation marks omitted). There is no such

clear intent here.

10

B. Three background principles of administrative law and statutory interpretation

together weigh heavily in favor of judicial review.

Multiple background principles of administrative

law and statutory interpretation are relevant here,

and each requires clear and convincing evidence that

Congress intended to bar judicial review. First, there

is a strong presumption in favor of judicial review of

agency decision-making. Second, there is also a powerful presumption that statutes should be harmonized

rather than placed in conflict with one another. Third,

in a variety of contexts courts hold that an agency’s

exercise of discretionary authority is subject to judicial review when the decision rests on non-discretionary grounds.

The combined effect of these three principles requires the government to satisfy an extraordinarily

high bar to demonstrate preclusion of judicial review.

1. The presumption in favor of judicial review.

“Congress rarely intends to prevent courts from

enforcing its directives to federal agencies.” Mach

Mining, 575 U.S. at 486. That is because Congress

does not lightly enact statutes as “‘blank checks

drawn to the credit of some administrative officer or

board.’” Bowen, 476 U.S. at 671 (quoting S. Rep. No.

752, 79th Cong., 1st Sess., 26 (1945) (legislative history of APA)).

For this reason, and given the critical safeguards

provided by judicial review (see pages 5-6, supra), this

Court has time and again emphasized the “strong presumption favoring judicial review of administrative

action.” Mach Mining, 575 U.S. at 486 (quotation

11

marks omitted); see also, e.g., Salinas v. United

States, 592 U.S. 188, 197 (2021); Guerrero-Lasprilla v.

Barr, 589 U.S. 221, 229 (2020); Smith v. Berryhill, 139

S. Ct. 1765, 1776 (2019); Kucana v. Holder, 558 U.S.

233, 247-48 (2010); Bowen, 476 U.S. at 670; Lindahl

v. OPM, 470 U.S. 768, 779-80 (1985).

This Court has “consistently applied that interpretive guide to legislation regarding immigration,

and particularly to questions concerning the preservation of federal-court jurisdiction.” Kucana, 558 U.S. at

251. And because the presumption in favor of judicial

review is “well-settled,” the Court has also assumed

that Congress is aware of and legislates against the

backdrop of the presumption. Id. at 251-52 (quotation

marks omitted).

The presumption, while rebuttable, is hard to displace. The presumption can only be overcome by

“‘clear and convincing evidence’” of congressional intent to preclude judicial review of agency action. Guerrero-Lasprilla, 589 U.S. at 229 (quoting Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 64 (1993)). That

means that Congress must speak clearly and unambiguously through the statute’s “language or structure” (Mach Mining, 575 U.S. at 486); and any uncertainty must be resolved in favor of judicial review (Salinas, 592 U.S. at 197). The government bears the

“heavy” burden of showing that Congress has satisfied

this demanding standard. Smith, 139 S. Ct. at 1777

(quoting Mach Mining, 575 U.S. at 486).

2. The presumption favoring harmonization

of statutes.

This Court has also repeatedly recognized a presumption “for harmony over conflict in statutory interpretation.” Epic Sys. Corp. v. Lewis, 584 U.S. 497,

12

511 (2018). “Respect for Congress as drafter counsels

against too easily finding irreconcilable conflicts in its

work.” Ibid.

As a result, “[a] party seeking to suggest that two

statutes cannot be harmonized, and that one displaces

the other, bears the heavy burden of showing ‘a clearly

expressed congressional intention’ that such a result

should follow.” Epic Sys., 584 U.S. at 510 (quoting

Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,

515 U.S. 528, 533 (1995)); see also Morton v. Mancari,

417 U.S. 535, 551 (1974) (courts confronted with an

alleged conflict between two statutes must strive “to

give effect to both” unless Congress has expressed a

“clear and manifest” contrary intent).

That presumption applies not only to safeguard

against “repeals by implication” when a later enacted

statute “touch[es] on the same topic” as an earlier one

(Epic Sys., 584 U.S. at 510), but also to give full effect

to each section within the same statutory scheme.

This Court has long recognized the common-sense

principle of statutory construction that sections of a

statute generally should be read “to give effect, if possible, to every clause * * * rather than to emasculate

an entire section.” United States v. Menasche, 348

U.S. 528, 538-39 (1955) (quotation marks and internal

citation omitted); accord Bennett v. Spear, 520 U.S.

154, 173 (1997).

The court of appeals’ interpretation conflicts with

this presumption by substantially weakening Congress’s directive in Section 1154(c)(2). In the government’s view, Section 1252, as applied to Section 1155,

erases the right to judicial review that applies to

sham-marriage determinations based on Section

1154(c). For the reasons already discussed, that

13

creates anomalies that Congress could not have intended.

3. The principle that agency exercises of “discretion” are subject to judicial review when

based on non-discretionary grounds.

Courts also routinely review agency actions based

on non-discretionary grounds, even if the decision

rests on statutory authority that permits the agency

to exercise discretion.

As petitioner explains (at Br. 32-37), the distinction between an agency’s non-discretionary determinations and the agency’s ultimate exercise of discretion is well-settled in immigration law. See INS v. St.

Cyr, 533 U.S. 289, 307 (2001).

The same is true outside of the immigration context. Courts applying the APA’s provision precluding

review when “agency action is committed to agency

discretion by law,” 5 U.S.C. § 701(a)(2), have consistently concluded that agency action based on non-discretionary grounds is subject to judicial review.

This Court has read the APA’s Section 701(a)(2)

exception “quite narrowly, restricting it to ‘those rare

circumstances where the relevant statute is drawn so

that a court would have no meaningful standard

against which to judge the agency’s exercise of discretion.” Dep’t of Commerce v. New York, 588 U.S. 752,

772 (2019) (quoting Weyerhaeuser, 586 U.S. at 23).

In keeping with that narrow reading, lower courts

review non-discretionary determinations in a variety

of contexts, even if it is only the agency’s own regulations or policies that supply the relevant law to apply.

For example, in Clifford v. Peña, the D.C. Circuit

held that it could review a challenge to the Maritime

14

Administration’s decision to grant a waiver to an

American carrier that allowed it to operate new foreign-flag vessels. 77 F.3d 1414, 1415 (D.C. Cir.

1996). The relevant statute said that “[u]nder special

circumstances and for good cause shown, the Secretary of Transportation may, in his discretion” issue a

waiver to any contractor. Id. at 1417 (quoting 46

U.S.C. app. § 1222(b)). Despite this “unrestricted and

undefined” language, the court concluded that the

waiver decision was reviewable because the agency

had developed policies that listed factors to guide its

waiver decision-making process. Ibid. These policies

“provided standards rendering what might arguably

be unreviewable agency action reviewable.” Ibid.

Similarly, in Trout Unlimited v. Pirzadeh, the

Ninth Circuit held that the Clean Water Act did not

restrict the Environmental Protection Agency’s ultimate discretionary determination to withdraw a proposed action. 1 F.4th 738, 752-53 (9th Cir. 2021). The

agency’s decision was nonetheless reviewable because

the agency’s implementing regulations supplied “a

meaningful legal standard against which to measure

the agency’s action.” Id. at 753. As the court noted,

even undertaking “a wholly discretionary course of action” may give rise to “a resulting non-discretionary

duty that is governed by a manageable legal standard.” Id. at 756; see also, e.g., Smriko v. Ashcroft, 387

F.3d 279, 292-94 (3d Cir. 2004) (agency’s regulations

provided a non-discretionary standard reviewable by

courts); Haoud v. Ashcroft, 350 F.3d 201, 205-06 (1st

Cir. 2003) (same).

Here, the agency’s evaluation of the statutory criteria in Section 1154(c) is not discretionary. And the

reviewability of the agency’s decision should be even

clearer when the statute itself—here, the sham-

15

marriage standard in Section 1154(c)—supplies the

non-discretionary basis for the agency’s decision. Cf.

Center for Auto Safety v. Dole, 828 F.2d 799, 803 (D.C.

Cir. 1987) (concluding that the standard set forth in

the agency’s regulations made the agency’s action judicially reviewable but observing that “there could be

no doubt” about the availability of judicial review if

the same standard “had appeared in the Motor Vehicle Safety Act itself”).

Massachusetts v. EPA, 549 U.S. 497 (2007), is also

instructive. The Court held that EPA’s denial of a petition for rulemaking was reviewable under the APA

because it was based on an underlying determination—that EPA lacked statutory authority to regulate

new vehicle emissions—that the Clean Air Act itself

made judicially reviewable. Id. at 528.

In sum, the presumptions of judicial review and

harmonizing statutes, and the principle that agency

exercises of statutory authority are subject to judicial

review when based on non-discretionary grounds together place a heavy weight on the scale in favor of

judicial review.

C. Section 1252 does not contain the required clear indication of congressional

intent to preclude review.

The language and structure of Section 1252 do not

demonstrate the clear and convincing evidence of congressional intent needed to foreclose judicial review of

sham-marriage determinations.

The text of Section 1252(a)(2)(B)(ii) precludes judicial review only of particular “decision[s] or action[s]” that are “in the discretion” of the agency. Here

the USCIS and BIA decisions both expressly apply the

non-discretionary test under Section 1154(c). Pet. Br.

16

13-15. The particular “decision” at issue—the determination that petitioner entered into a sham marriage—is therefore not discretionary.

Given the principles discussed above, Congress

would have to speak with far more clarity to bar judicial review of decisions in the revocation context that

are reviewable when made at other points in the visa

process.

In particular, nothing in the statute demonstrates

an intent by Congress to displace the principle that

review remains available when an agency makes a

non-discretionary decision in connection with exercising discretionary authority. Indeed, the language of

Section 1252(a)(2)(B)(ii) roughly parallels the APA

provision barring review of discretionary actions.

Compare 8 U.S.C. § 1252(a)(2)(B)(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”), with 5 U.S.C. § 701(a)(2) (“agency action is

committed to agency discretion by law”).

Section 1252(a)(2)(B)(ii) should therefore also be

read “quite narrowly” (Dep’t of Commerce, 588 U.S. at

772), and there is likewise no basis for concluding that

Congress intended to preclude review of otherwise-reviewable non-discretionary decisions. That is especially true given the precedents requiring judicial review when an agency’s exercise of discretionary authority rests on non-discretionary grounds, as here.

The government relies on Patel v. Garland, 596

U.S. 328 (2022), but Patel’s analysis supports this conclusion. The Patel Court found sufficiently clear intent

to bar judicial review based on its conclusion that

17

Section 1252(a)(2)(B)(i)’s use of the phrase “any judgment regarding the granting of relief” under five specific sections of the INA not at issue here encompasses

all subsidiary determinations, including factual findings. Id. at 338-39. Key to the Court’s holding was that

this expansive phrase “does not restrict itself to certain kinds of decisions,” and instead covers all subsidiary determinations “relating to the grant of relief.”

Ibid. (first emphasis added)

In Section 1252(a)(2)(B)(ii), by contrast, Congress

used a different formulation—“decision or action”—

and barred review of only those “decision[s] or action[s]” for which the statutory “authority * * * is specified * * * to be in the [agency’s] discretion.” The Patel

Court relied on this very distinction. 596 U.S. at 34243.

“‘Where 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.’” Salinas, 592 U.S. at 196

(quoting Russello v. United States, 464 U.S. 16, 23

(1983)). The different, narrower text in Section

1252(a)(2)(B)(ii) compels a different conclusion here

from the one the Court reached in Patel.

The government cannot rely on the use of “any” in

Section 1252(a)(2)(B)(ii) as grounds for expanding the

preclusion of review to reach agency decisions based

on non-discretionary grounds. To the contrary: the

phrase “any other decision or action” merely confirms

the contrast between the narrower language of Section 1252(a)(2)(B)(ii) and the far broader jurisdictionstripping language in Section 1252(a)(2)(B)(i) that immediately precedes it.

18

Section 1252(a)(2)(B)(ii) thus draws the same line

as the APA, permitting review when a decision rests

on non-discretionary grounds. There is certainly no

basis for concluding that Congress intended broader

preclusion of judicial review—even when a decision

rests on non-discretionary grounds and in particular

when it did not preclude judicial review with respect

to the very same decision when made earlier in the

visa application process.

That reading is also consistent with what the

Court has recognized as the purpose of the judicial review exclusions throughout Section 1252: “protecting

the Executive’s discretion from the courts.” Reno v.

American-Arab Anti-Discrimination Committee, 525

U.S. 471, 486 (1999). In Reno, for example, the Court

recognized that Congress enacted other provisions of

Section 1252 to preclude litigation over deferred action and similar discretionary determinations: such

litigation “attempt[ed] to impose judicial constraints

upon prosecutorial discretion.” Id. at 485 & n.9. By

contrast, there is no discretion in the sham-marriage

determination under Section 1154(c) or in a decision

to revoke a petition previously granted based on the

application of that non-discretionary standard.

Finally, permitting judicial review is a particularly appropriate result because it precludes the irrational consequences detailed above (at 5-9). The government’s position, if accepted, would deprive some

applicants of judicial review based solely on the timing of a decision that, if made earlier, would be subject

to judicial review; create a strong incentive for bureaucrats to move investigations and decisions later

in the process to avoid judicial review; and provide

less scrutiny of agency determinations reversing a

19

prior ruling. Nothing in the statutory text comes close

to requiring those irrational results.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

ANDREW J. PINCUS

Counsel of Record

DANIEL E. JONES

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amici Curiae

JULY 2024