Amicus Curiae Brief — Amina Bouarfa, Petitioner v. Alejandro Mayorkas, Secretary of Homeland Security, et al.
Supreme Court briefJul 10, 2024
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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 FORMER EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW JUDGES
AS AMICI CURIAE IN SUPPORT OF PETITIONER
RICHARD W. MARK
Counsel of Record
AMER S. AHMED
VANESSA AJAGU
SASHA DUDDING
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
(212) 351-4000
rmark@gibsondunn.com
Counsel for Amici Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICI CURIAE ................................1
SUMMARY OF ARGUMENT .....................................2
ARGUMENT ...............................................................5
I.
IIRIRA § 1252(a)(2)(B)(ii) Does Not Block
Article III Review Where The Same
Finding Is Procedurally Classified As A
Revocation Rather Than An Initial
Denial. .............................................................5
II. Adopting The Eleventh Circuit’s Rule
Would Upset The Balance That IIRIRA
Strikes Between Executive Discretion
And Article III Review. ..................................9
III. Article III Review Of Nondiscretionary
Determinations Is Critical To Correct
Unavoidable Errors That Overburdened
Immigration Adjudicators Will Make. .........14
CONCLUSION ..........................................................23
APPENDIX: LIST OF AMICI CURIAE ...................1a
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott Lab’ys v. Gardner,
387 U.S. 136 (1967) ................................................ 9
Abdelwahab v. Frazier,
578 F.3d 817 (8th Cir. 2009) .................................. 7
Alzaben v. Garland,
66 F.4th 1 (1st Cir. 2023) ............................... 13, 18
ANA Int’l Inc. v. Way,
393 F.3d 886 (9th Cir. 2004) .................................. 6
Argueta-Hernandez v. Garland,
87 F.4th 698 (5th Cir. 2023) ................................ 21
Arita-Deras v. Wilkinson,
990 F.3d 350 (4th Cir. 2021) ................................ 21
Bangura v. Hansen,
434 F.3d 487 (6th Cir. 2006) .................................. 6
Beeman v. Napolitano,
2011 WL 1897931 (D. Or. May 17, 2011) ............ 15
Benslimane v. Gonzales,
430 F.3d 828 (7th Cir. 2005) ................................ 15
Berishaj v. Ashcroft,
378 F.3d 314 (3d Cir. 2004) ................................. 20
Billeke-Tolosa v. Ashcroft,
385 F.3d 708 (6th Cir. 2004) .................................. 7
Bouarfa v. Sec’y, Dep’t of Homeland Sec.,
75 F.4th 1157 (11th Cir. 2023) ...................... 2, 6, 8
iii
Bowen v. Mich. Acad. of Fam. Physicians,
476 U.S. 667 (1986) ................................................ 9
CFTC v. Schor,
478 U.S. 833 (1986) .............................................. 10
Cho v. Gonzales,
404 F.3d 96 (1st Cir. 2005) .................................... 7
Coniglio v. Garland,
556 F. Supp. 3d 187 (E.D.N.Y. 2021) .................. 16
Cuellar Lopez v. Gonzales,
427 F.3d 492 (7th Cir. 2005) .................................. 8
Dehrizi v. Johnson,
2016 WL 270212 (D. Ariz. Jan. 21, 2016) ........... 15
Doe I v. U.S. Dep’t of Homeland Sec.,
2022 WL 1212013 (N.D. Cal. Apr. 25, 2022) ....... 16
El-Khader v. Monica,
366 F.3d 562 (7th Cir. 2004) .................................. 8
Estrada-Ortega v. Barr,
824 F. App’x 559 (10th Cir. 2020) ......................... 8
Flores v. Garland,
72 F.4th 85 (5th Cir. 2023) .................................... 7
Fogo De Chao (Holdings) Inc. v.
U.S. Dep’t of Homeland Sec.,
769 F.3d 1127 (D.C. Cir. 2014) .............................. 8
Fong Haw Tan v. Phelan,
333 U.S. 6 (1948) .................................................... 9
Freeman v. Gonzales,
444 F.3d 1031 (9th Cir. 2006) .............................. 21
Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020) ........................................ 3, 9
iv
Hosseini v. Johnson,
826 F.3d 354 (6th Cir. 2016) ............................ 7, 15
Hussam F. v. Sessions,
897 F.3d 707 (6th Cir. 2018) .................................. 8
INS v. St. Cyr,
533 U.S. 289 (2001) ................................................ 5
Jay v. Boyd,
351 U.S. 345 (1956) ................................................ 5
Jilin Pharm. USA, Inc. v. Chertoff,
447 F.3d 196 (3d Cir. 2006) ............................. 8, 15
Jomaa v. United States,
940 F.3d 291 (6th Cir. 2019) .................................. 6
Kucana v. Holder,
558 U.S. 233 (2010) ...................................... 3, 9, 10
Lee v. United States,
582 U.S. 357 (2017) .............................................. 15
Lockhart v. Napolitano,
573 F.3d 251 (6th Cir. 2009) ................................ 21
Makwana v. Att’y Gen.,
611 F. App’x 58 (3d Cir. 2015) ............................. 20
Malik v. Att’y Gen.,
2022 WL 1024623 (3d Cir. Apr. 6, 2022) ............. 18
McNary v. Haitian Refugee Ctr., Inc.,
498 U.S. 479 (1991) ................................ 3, 9, 10, 11
Mejia Rodriguez v.
U.S. Dep’t of Homeland Sec.,
562 F.3d 1137 (11th Cir. 2009) .............................. 8
Mia v. Renaud,
2023 WL 7091915 (E.D.N.Y. Oct. 26, 2023) ........ 13
v
Moore v. Frazier,
941 F.3d 717 (4th Cir. 2019) .................................. 7
Nasrallah v. Barr,
140 S. Ct. 1683 (2020) .......................................... 12
Niam v. Ashcroft,
354 F.3d 652 (7th Cir. 2004) ................................ 20
Nouritajer v. Jaddou,
18 F.4th 85 (2d Cir. 2021) ...................................... 8
Padilla v. Kentucky,
559 U.S. 356 (2010) .............................................. 15
Patel v. Garland,
596 U.S. 328 (2022) .................................... 7, 12, 13
Pinho v. Gonzales,
432 F.3d 193 (3d Cir. 2005) ................................... 7
Poursina v. USCIS,
936 F.3d 868 (9th Cir. 2019) .................................. 8
Quinteros v. U.S. Att’y Gen.,
945 F.3d 772 (3d Cir. 2019) ................................. 21
Rajasekaran v. Hazuda,
815 F.3d 1095 (8th Cir. 2016) ............................ 7, 8
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) .......................................... 22
Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471 (1999) ............................................ 1, 5
Reno v. Cath. Soc. Servs., Inc.,
509 U.S. 43 (1993) ................................................ 10
Robinson v. Napolitano,
554 F.3d 358 (3d Cir. 2009) ................................. 21
vi
Samirah v. O’Connell,
335 F.3d 545 (7th Cir. 2003) ................................ 15
Seila Law LLC v. Consumer Fin. Prot. Bureau,
140 S. Ct. 2183 (2020) .......................................... 10
Sharkey v. Quarantillo,
541 F.3d 75 (2d Cir. 2008) ..................................... 7
Soltane v. U.S. Dep’t of Just.,
381 F.3d 143 (3d Cir. 2004) ................................... 6
Spencer Enters., Inc. v. United States,
345 F.3d 683 (9th Cir. 2003) .................................. 6
Ssali v. Gonzales,
424 F.3d 556 (7th Cir. 2005) ................................ 20
Stern v. Marshall,
564 U.S. 462 (2011) .............................................. 10
United States v. Nourse,
34 U.S. 8 (1835) .................................................... 11
Urena-Tavarez v. Ashcroft,
367 F.3d 154 (3d Cir. 2004) ................................. 15
Valarezo-Tirado v. U.S. Att’y Gen.,
6 F.4th 542 (3d Cir. 2021) .................................... 22
Ved v. U.S. Citizenship & Immigr. Servs.,
2023 WL 2372360 (D. Alaska Mar. 6, 2023) ....... 16
Voci v. Gonzales,
409 F.3d 607 (3d Cir. 2005) ................................. 21
Wellness Int’l Network, Ltd. v. Sharif,
575 U.S. 665 (2015) ........................................ 10, 11
Zavaleta-Policiano v. Sessions,
873 F.3d 241 (4th Cir. 2017) ................................ 20
vii
Zemeka v. Holder,
989 F. Supp. 2d 122 (D.D.C. 2013) ........................ 6
Statutes
8 U.S.C. § 1155 .......................................................... 18
8 U.S.C. § 1252(a)(2)(B)(ii) ............ 1, 4, 5, 6, 7, 8, 9, 11
13, 14, 15, 16, 18, 22
Pub. L. No. 104–208, 110 Stat. 3009 .......................... 5
Regulations
8 C.F.R. § 103.3(c) ..................................................... 17
8 C.F.R. § 1003.1(a)(1) ............................................... 18
8 C.F.R. § 1003.1(b)(5) ............................................... 18
Other Authorities
Adjudication Statistics: Circuit Court
Remands Filed, Exec. Off. for Immigr.
Rev. (Jan. 18, 2024),
https://www.justice.gov/eoir/media/13449
96/dl?inline ........................................................... 21
Adjudication Statistics: Immigration Judge
(IJ) Hiring, Exec. Off. for Immigr. Rev.
(Jan. 2024),
https://www.justice.gov/eoir/media/13449
11/dl?inline ........................................................... 17
Adjudication Statistics: Pending Cases,
New Cases, and Total Completions, Exec.
Off. for Immigr. Rev. (Jan. 18, 2024),
https://www.justice.gov/eoir/media/13447
91/dl?inline ....................................................... 4, 17
viii
All Appeals Filed, Completed, and Pending,
Exec. Off. for Immigr. Rev.
(Jan. 18, 2024),
https://www.justice.gov/eoir/media/13449
86/dl?inline ....................................................... 4, 19
Amid “Nightmarish” Case Backlog, Experts
Call for Independent Immigration Courts,
ABA News (Aug. 9, 2019),
https://www.americanbar.org/news/abane
ws/aba-news-archives/2019/08/amid_nightmarish-case-backlog--experts-callfor-independent-imm ........................................... 18
Anne Edland & Ola Svenson, Judgment and
Decision Making Under Time Pressure:
Studies and Findings, in Time Pressure
and Stress in Human Judgment and
Decision Making (Ola Svenson & A. John
Maule eds., 1993) ................................................. 20
Annual Statistical Report FY 2022, U.S.
Citizenship & Immigr. Servs. (2022),
https://www.uscis.gov/sites/default/files/d
ocument/reports/FY2022_Annual_Statisti
cal_Report.pdf .......................................... 14, 15, 17
Board of Immigration Appeals, Exec. Off. for
Immigr. Rev. (last visited June 19, 2024),
https://www.justice.gov/eoir/board-ofimmigration-appeals#board ................................ 18
Eberhard Feess & Roee Sarel, Judicial Effort
and the Appeals System: Theory and
Experiment, 47 J. Legal Stud. 269 (2018) ........... 20
Faiza W. Sayed, The Immigration Shadow
Docket, 117 Nw. U. L. Rev. 893 (2023) ................ 19
ix
Federal Judicial Caseload Statistics 2023,
U.S. Courts,
https://www.uscourts.gov/statisticsreports/federal-judicial-caseloadstatistics-2023 ...................................................... 21
Historical National Median Processing Time
(in Months) for All USCIS Offices for
Select Forms by Fiscal Year,
U.S. Citizenship & Immigr. Servs.,
https://egov.uscis.gov/processingtimes/historic-pt ................................................... 17
Holly Straut-Eppsteiner, Cong. Rsch. Serv.,
R47637, Immigration Judge Hiring and
Projected Impact on the Immigration
Courts Backlog (2023),
https://crsreports.congress.gov/product/pd
f/R/R47637 ............................................................ 17
Jonah B. Gelbach & David Marcus,
Rethinking Judicial Review of High
Volume Agency Adjudication,
96 Tex. L. Rev. 1097 (2018) ................................. 20
Number of Service-Wide Forms by Quarter:
FY24 Q1 All Forms, USCIS,
https://www.uscis.gov/sites/default/files/d
ocument/data/quarterly_all_forms_fy2024
_q1.xlsx ............................................................. 4, 17
x
Number of Service-Wide Forms by Quarter,
Form Status, and Processing Time, July
1, 2022-September 30, 2022,
U.S. Citizenship & Immigr. Servs.
(Dec. 16, 2022),
https://www.uscis.gov/sites/default/files/d
ocument/data/Quarterly_All_Forms_FY20
22_Q4.pdf ............................................................. 15
INTEREST OF AMICI CURIAE1
Amici curiae are forty-three former immigration
judges (IJs) and members of the Board of Immigration
Appeals (BIA or Board). A complete list of signatories
can be found in the Appendix of Amici Curiae.
Amici have dedicated their careers to the
immigration court system and to upholding the
immigration laws of the United States. Each is
intimately familiar with the immigration court
system and its procedures. Together they have a
distinct interest in ensuring that claims duly asserted
in immigration cases are afforded the level of Article
III judicial review required by law.
In the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Congress passed
a number of provisions that were intended to
“protect[] the Executive’s discretion from the courts.”
Reno v. Am.-Arab Anti-Discrimination Comm., 525
U.S. 471, 486 (1999). One such provision is 8 U.S.C.
§ 1252(a)(2)(B)(ii), which eliminates judicial review of
“any other decision or action of the Attorney General
or the Secretary of Homeland Security the authority
for which is specified under this subchapter to be in
the discretion of the Attorney General or the
Secretary of Homeland Security.” Id. Circuit courts
around the country have, for many years, almost
uniformly interpreted this provision to strip federal
1 Amici state that this brief was not authored in whole or in
part by counsel for any party, and that no person or entity other
than amici, their members, or its counsel made a monetary
contribution intended to fund the preparation or submission of
this brief. Counsel of record for the parties received timely notice
of amici’s intent to file this brief.
2
courts of jurisdiction to review discretionary
decisions—but not nondiscretionary, predicate
determinations. In amici’s experience, this approach
recognizes the decisions that Congress committed to
executive discretion while preserving Article III
review for nondiscretionary determinations in
immigration or visa-related proceedings.
SUMMARY OF ARGUMENT
Congress drew clear boundaries in IIRIRA. The
statute shields executive-branch discretionary
decisions in immigration cases from judicial review
while preserving Article III court review of
nondiscretionary determinations that underlie
discretionary decisions.
This case illustrates what happens when that
Congressional plan is disregarded. Two years after
approving Amina Bouarfa’s petition to have her
husband classified as her immediate relative, the
Secretary revoked that approval on the grounds that
the Department of Homeland Security (DHS) lacked
discretion to grant the petition in the first place. It is
undisputed that a nondiscretionary denial of Ms.
Bouarfa’s petition when she first filed it would have
been judicially reviewable.
Here, because the
Secretary denied the petition on a reassessment, it
was classified as a revocation. The Eleventh Circuit
concluded that Ms. Bouarfa had no right to judicial
review of the visa petition denial even though it
reflects a nondiscretionary determination based on
the same law and facts as the initial visa petition
grant. See Bouarfa v. Sec’y, Dep’t of Homeland Sec.,
75 F.4th 1157, 1164 (11th Cir. 2023). In doing so, the
Eleventh Circuit deepened a circuit split, as the Sixth
3
and Ninth Circuits would have allowed review of the
revocation (just like an initial denial) because of the
nondiscretionary criteria underlying it.
The Eleventh Circuit’s view yields the absurd
result that the denial of an immigrant visa petition is
subject to judicial review but revocation a day after
approval is not—even where both decisions are based
on the same substantive grounds. This incongruity
makes an immigrant’s fate dependent on chance
factors—the judicial circuit where the petition is filed
and whether the agency determines it made an error
before or after granting a visa petition.
Permitting judicial review of nondiscretionary
determinations comports with the “well-settled” and
“strong” presumption of judicial review that has
“consistently” been applied to immigration legislation,
“particularly to questions concerning the preservation
of federal-court jurisdiction.” Guerrero-Lasprilla v.
Barr, 140 S. Ct. 1062, 1069 (2020) (quoting McNary v.
Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 498
(1991)); Kucana v. Holder, 558 U.S. 233, 251 (2010).
And it avoids the “[s]eparation-of-powers concerns”
created by further removing these cases from the
judiciary’s domain. Kucana, 558 U.S. at 237.
In amici’s experience, maintaining Article III
review of predicate nondiscretionary determinations
aids the proper functioning of the immigration
adjudication system. Immigration adjudicators face
heavy caseloads and are under significant pressure to
complete cases rapidly, as amici have experienced
firsthand. Indeed, U.S. Citizenship and Immigration
Services (USCIS) officers face a backlog of over 9
million forms, immigration courts face a backlog of
4
nearly 3 million cases, and the BIA ended the last
quarter with a near-record-high 112,907 pending
2
appeals. These severe and growing backlogs lead to
errors and inconsistent results, as amici have also
witnessed. In these circumstances, permitting Article
III courts to correct agency mistakes and provide
authoritative, consistent guidance on the application
of nondiscretionary statutory criteria (as Congress
intended) becomes all the more essential. Article III
court review of nondiscretionary determinations—a
checking function that Article III judges routinely
perform—improves outcomes and builds confidence in
the system. Indeed, there are numerous examples of
federal courts—including in cases involving erroneous
nondiscretionary determinations underlying denials
of discretionary relief covered by § 1252(a)(2)(B)(ii)—
correcting decisions of USCIS, IJs, and the BIA.
When individuals like Ms. Bouarfa find that the grant
of their visa petitions were revoked based on a
nondiscretionary determination, IIRIRA does not
block Article III court review.
2 See Adjudication Statistics: Pending Cases, New Cases, and
Total Completions, Exec. Off. for Immigr. Rev. (Jan. 18, 2024),
https://www.justice.gov/eoir/media/1344791/dl?inline (through
the first quarter of 2024); All Appeals Filed, Completed, and
Pending, Exec. Off. for Immigr. Rev. (Jan. 18, 2024),
https://www.justice.gov/eoir/media/1344986/dl?inline; Number of
Service-Wide Forms by Quarter: FY24 Q1 All Forms, USCIS,
https://www.uscis.gov/sites/default/files/document/data/quarterl
y_all_forms_fy2024_q1.xlsx.
5
ARGUMENT
I.
IIRIRA § 1252(a)(2)(B)(ii) DOES NOT BLOCK
ARTICLE III REVIEW WHERE THE SAME
FINDING IS PROCEDURALLY CLASSIFIED AS A
REVOCATION RATHER THAN AN INITIAL
DENIAL.
“Traditionally, courts recognized a distinction
between eligibility for discretionary relief, on the one
hand, and the favorable exercise of discretion, on the
other hand.” INS v. St. Cyr, 533 U.S. 289, 307 (2001).
As such, “[e]ligibility that was ‘governed by specific
statutory standards’ provided ‘a right to a ruling on
an applicant’s eligibility,’ even though the actual
granting of relief was ‘not a matter of right under any
circumstances, but rather is in all cases a matter of
grace.’” Id. at 307–08 (quoting Jay v. Boyd, 351 U.S.
345, 353–54 (1956)).
The statutory provision at issue here reflects that
distinction.
In 1996, Congress amended the
Immigration and Nationality Act by enacting the
Illegal Immigration Reform and Immigrant
Responsibility Act. Pub. L. No. 104–208, 110 Stat.
3009. The “theme” of IIRIRA was “protecting the
Executive’s discretion from the courts.” Reno, 525
U.S. at 486 (emphasis added).
One provision that provides such protection is 8
U.S.C. § 1252(a)(2)(B).
This subsection, titled
“Denials of discretionary relief,” contains two
subclauses. The second, at issue here, provides that
“no court shall have jurisdiction to review”
any other decision or action of the Attorney
General or the Secretary of Homeland
6
Security the authority for which is specified
under this subchapter to be in the discretion
of the Attorney General or the Secretary of
Homeland Security, other than the granting
of relief under section 1158(a) of this title.
Id. § 1252(a)(2)(B)(ii) (emphasis added).
The Sixth and Ninth Circuit Courts of Appeals
agree that, although the plain language of this
provision limits judicial review of the Secretary’s
discretionary decisions, it does not strip jurisdiction
when the Secretary revokes approval of an immigrant
visa petition on the basis of nondiscretionary criteria.
See Jomaa v. United States, 940 F.3d 291, 294–96 (6th
Cir. 2019); ANA Int’l Inc. v. Way, 393 F.3d 886, 894
(9th Cir. 2004). Rightfully so. There is no dispute that
Article III courts can review an initial denial of a
§ 1154(c) petition based on a nondiscretionary
finding.3 And as the government acknowledged in a
3 See Bouarfa, 75 F.4th at 1162 (noting the parties’ agreement
“that the denial of a petition based on section 1154(c) . . . is a nondiscretionary decision that is subject to judicial review” and the
court’s previous review of the denial of an I-130 petition); see also
Soltane v. U.S. Dep’t of Just., 381 F.3d 143, 146–47 (3d Cir. 2004)
(holding that the denial of an employment-based visa petition is
reviewable by a federal court despite § 1252(a)(2)(B)(ii) because
the statute states that a visa “shall be made available” under
certain conditions); Spencer Enters., Inc. v. United States, 345
F.3d 683, 689 (9th Cir. 2003) (same); Bangura v. Hansen, 434
F.3d 487, 498 (6th Cir. 2006) (presuming that denials of spousal
visa petitions are reviewable under the Administrative
Procedure Act); Zemeka v. Holder, 989 F. Supp. 2d 122, 127–32
(D.D.C. 2013) (reviewing the denial of a visa petition based on
marriage fraud).
7
different case,4 § 1252(a)(2)(B)(ii) does not bar judicial
review of “non-discretionary decisions that underlie
determinations that are ultimately discretionary.”
Hosseini v. Johnson, 826 F.3d 354, 358 (6th Cir. 2016)
(quoting Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711
(6th Cir. 2004)); see also Rajasekaran v. Hazuda, 815
F.3d 1095, 1099 (8th Cir. 2016) (“[S]till reviewable is
. . . ‘a nondiscretionary determination underlying the
denial of relief.’” (quoting Abdelwahab v. Frazier, 578
F.3d 817, 821 (8th Cir. 2009)). Logically, the agency’s
nondiscretionary determination concerning the same
relief should not become unreviewable just because it
is procedurally classified as a revocation rather than
an initial denial.
Although all Courts of Appeals agree that
§ 1252(a)(2)(B)(ii) does not strip courts of jurisdiction
over nondiscretionary determinations,5 the Eleventh
4 See Br. for Resp’t Supporting Pet’rs 11, 14, 23, 31, Patel v.
Garland, 596 U.S. 328 (2022) (explaining that § 1252(a)(2)(B)
“bars review of discretionary determinations, but not of
underlying nondiscretionary determinations,” and noting that
“nearly all of the courts of appeals” to address this issue have
agreed).
5 See Cho v. Gonzales, 404 F.3d 96, 99–102 (1st Cir. 2005)
(finding that § 1252(a)(2)(B)(ii) did not bar review of the relevant
decision because it was nondiscretionary); Sharkey v.
Quarantillo, 541 F.3d 75, 86 (2d Cir. 2008) (finding that “[t]he
jurisdictional bar in [8 U.S.C. § 1252(a)(2)(B)(ii)] does not apply”
because the alleged rescission was not “in the discretion of the
Attorney General”); Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.
2005) (“Non-discretionary actions . . . remain subject to judicial
review.”); Moore v. Frazier, 941 F.3d 717, 725 (4th Cir. 2019)
(finding that “the district court erred in dismissing the complaint
for lack of jurisdiction” because the relevant decision was
nondiscretionary); Flores v. Garland, 72 F.4th 85, 92 (5th Cir.
8
Circuit ignored the fact that the sham-marriage bar
underlying the revocation of Ms. Bouarfa’s petition is
a nondiscretionary statutory factor and erroneously
concluded that courts lack subject-matter jurisdiction
to review revocations of visa petitions, even when
based on nondiscretionary criteria. Bouarfa, 75 F.4th
at 1162–64 (citing Nouritajer v. Jaddou, 18 F.4th 85,
89–90 (2d Cir. 2021) (per curiam); Jilin Pharm. USA,
Inc. v. Chertoff, 447 F.3d 196, 203–05 (3d Cir. 2006);
and El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir.
2004)).
If this Court were to adopt the Eleventh Circuit’s
2023) (“[A] court may have jurisdiction to review the agency’s
non-discretionary decision . . . .”); Hussam F. v. Sessions, 897
F.3d 707, 723 (6th Cir. 2018) (per curiam) (“The jurisdictionstripping provision in 8 U.S.C. § 1252(a)(2)(B)(ii) does not extend
to non-discretionary decisions upon which the discretionary
decision is predicated.” (internal quotation marks omitted));
Cuellar Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir. 2005) (“[A]
non-discretionary question of statutory interpretation . . . falls
outside
§ 1252(a)(2)(B)’s
jurisdiction
stripping
rule.”);
Rajasekaran, 815 F.3d at 1099 (“[S]till reviewable is . . . a
nondiscretionary determination underlying the denial of relief.”)
(internal quotation marks omitted); Poursina v. USCIS, 936 F.3d
868, 875 (9th Cir. 2019) (Ҥ 1252(a)(2)(B)(ii) allows us to review
certain legal conclusions made on nondiscretionary grounds
. . . .”) (internal quotation marks omitted); Estrada-Ortega v.
Barr, 824 F. App’x 559, 563 (10th Cir. 2020) (“[W]e have
jurisdiction to hear appeals from nondiscretionary BIA
decisions.”); Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562
F.3d 1137, 1144–45 (11th Cir. 2009) (per curiam)
(Ҥ 1252(a)(2)(B)(ii) does not preclude . . . review[] . . . because . . .
non-discretionary . . . decisions made by USCIS fall outside the
limitations on judicial review in the INA.”) (emphasis in
original); Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland
Sec., 769 F.3d 1127, 1138–39 (D.C. Cir. 2014) (finding that
§ 1252(a)(2)(B)(ii) did not bar review of the relevant decision
because it was nondiscretionary).
9
holding, it would lead to the absurd result that DHS’s
denial of an immigrant visa petition is subject to
judicial review, but a DHS revocation of the same
approved petition performed just a day after DHS
approval is not—even where both decisions concern
the same relief and are based on the same law and
facts. Cf. Kucana, 558 U.S. at 252 (“If the Seventh
Circuit’s construction of § 1252(a)(2)(B)(ii) were to
prevail, the Executive would have a free hand to
shelter its own decisions from abuse-of-discretion
appellate court review simply by issuing a regulation
declaring those decisions ‘discretionary.’”).
II. ADOPTING THE ELEVENTH CIRCUIT’S RULE
WOULD UPSET THE BALANCE THAT IIRIRA
STRIKES BETWEEN EXECUTIVE DISCRETION
AND ARTICLE III REVIEW.
“From the beginning,” the Court has established
that “judicial review of a final agency action by an
aggrieved person will not be cut off unless there is
persuasive reason to believe that such was the
purpose of Congress.” Bowen v. Mich. Acad. of Fam.
Physicians, 476 U.S. 667, 670 (1986) (quoting Abbott
Lab’ys v. Gardner, 387 U.S. 136, 140 (1967)).
As a result, there is a “well-settled” and “strong”
presumption
favoring
judicial
review
of
administrative action. Guerrero-Lasprilla, 140 S. Ct.
at 1069 (quoting McNary, 498 U.S. at 496, 498). The
Court has “consistently” applied this presumption to
“legislation regarding immigration, and particularly
to questions concerning the preservation of federalcourt jurisdiction.” Kucana, 558 U.S. at 251; see also
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)
(“[S]ince the stakes are considerable for the
10
individual, we will not assume that Congress meant
to trench on his freedom beyond that which is required
by the narrowest of several possible meanings of the
words used.”). To that end, the Court “assumes that
‘Congress legislates with knowledge of’ the
presumption,” and thus requires “‘clear and
convincing evidence’ to dislodge” it. Kucana, 558 U.S.
at 252 (quoting McNary, 498 U.S. at 496; Reno v.
Cath. Soc. Servs., Inc., 509 U.S. 43, 64 (1993)).
Relatedly, “[s]eparation-of-powers concerns” also
militate “against reading legislation, absent clear
statement, to place in executive hands authority to
remove cases from the Judiciary’s domain.” Kucana,
558 U.S. at 237. “Article III is an inseparable element
of the constitutional system of checks and balances”
and
“preserve[s]
the
integrity
of
judicial
decisionmaking.” Stern v. Marshall, 564 U.S. 462,
482–84 (2011) (internal quotation marks omitted).
Consequently, this Court has found that Article III
“bar[s] congressional attempts to transfer jurisdiction
[to non-Article III tribunals] for the purpose of
emasculating constitutional courts and thereby
preventing the encroachment or aggrandizement of
one branch at the expense of the other.” CFTC v.
Schor, 478 U.S. 833, 850 (1986) (second alteration in
original) (internal quotation marks omitted).
Accordingly, in the bankruptcy context, this Court has
held that “Article I adjudicators” may decide claims
without “offend[ing] the separation of powers” only “so
long as Article III courts retain supervisory authority
over the process.” Wellness Int’l Network, Ltd. v.
Sharif, 575 U.S. 665, 678 (2015). To allow otherwise
risks upsetting the Framers’ “solution to
governmental power and its perils.” Seila Law LLC v.
11
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2202
(2020).
Against this backdrop, “it is most unlikely that
Congress intended to foreclose all forms of meaningful
judicial review” in § 1252(a)(2)(B)(ii). McNary, 498
U.S. at 496 (emphasis added). Doing so would leave
an
individual
aggrieved
by
an
incorrect
nondiscretionary determination with “no remedy, no
appeal to the laws of his country.” United States v.
Nourse, 34 U.S. 8, 29 (1835) (Marshall, C.J.). At the
same time, it would deny Article III courts
“supervisory
authority”
to
check
that
nondiscretionary determinations are correct, and to
provide administrative adjudicators consistent
guidance on such determinations going forward.
Wellness Int’l, 575 U.S. at 678. And it would do so in
a particularly arbitrary manner, allowing judicial
review of visa petitions denied outright on predicate
nondiscretionary grounds like the sham-marriage bar
but not visa petitions later revisited and revoked on
the very same basis.
This case illustrates why § 1252(a)(2)(B)(ii)
should not be read to foreclose Article III review of
agency determinations that in any way touch upon the
forms of relief specified therein. Ms. Bouarfa’s
petition to have her husband, Ala’a Hamayel,
classified as her immediate relative was approved.
But two years later, the Secretary revisited that
decision and revoked the approval on the ground that
DHS should have denied her petition in the first place
under 8 U.S.C. § 1154(c)’s “sham-marriage bar.”
There is no dispute that if DHS had denied the
petition based on § 1154(c) Ms. Bouarfa could have
obtained judicial review of that denial in every circuit.
12
But under the Eleventh Circuit’s ruling, Ms. Bouarfa
has no right to judicial review of the Secretary’s later
determination (by his own belated estimation) that
the initial decision was wrong even though that later
revocation is based on the very same law and facts as
the initial (reviewable) decision.
The nondiscretionary issue embedded within the
agency’s ultimate conclusion—whether Mr. Hamayel
entered into a previous “sham marriage”—is work
that Article III courts regularly perform.
Cf.
Nasrallah v. Barr, 140 S. Ct. 1683, 1694 (2020)
(holding that 8 U.S.C. § 1252(a)(2)(C)–(D) does not
preclude judicial review of facts underlying
Convention Against Torture orders).
Section
1252(a)(2)(B) reflects “Congress’ choice to provide
reduced procedural protection for discretionary relief”
only, Patel v. Garland, 596 U.S. 328, 345 (2022)
(emphasis added), not nondiscretionary decisions like
the application of the sham-marriage bar.
The Court should hold that these types of
nondiscretionary decisions are judicially reviewable.
Doing so would be entirely consistent with Patel,
which addressed the distinct text of § 1252(a)(2)(B)(i).
Because that provision is directed to “any judgment
regarding” actions taken by the Secretary, the Court
found it precluded judicial review of underlying
nondiscretionary determinations. 596 U.S. at 338.
The Court relied on the precise wording of subsection
(i), noting that “the word ‘any’ has an expansive
meaning,” such that this provision “applies to
judgments ‘of whatever kind’ under § 1255, not just
discretionary judgments or the last-in-time
judgment.” Id. (citations omitted) (cleaned up). The
Court noted that, “[h]ad Congress intended instead to
13
limit the jurisdictional bar to ‘discretionary
judgments,’ it could easily have used that language—
as it did elsewhere in the immigration code.” Id. at
341. Here, in § 1252(a)(2)(B)(ii), Congress did just
that: subsection (ii)’s jurisdictional bar is expressly
limited to discretionary decisions. Unlike subsection
(i), subsection (ii) limits the word “any” by referencing
only decisions or actions “in the discretion of” the
Secretary. 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis
added); Mia v. Renaud, 2023 WL 7091915, at *5
(E.D.N.Y. Oct. 26, 2023) (explaining that “the
provision at issue in Patel, § 1252(a)(2)(B)(i),
materially
differs
from
§ 1252(a)(2)(B)(ii)”).
Moreover, Patel rejected the government’s arguments
“drawing the comparison between clauses (i) and (ii),”
and addressed its ruling only to subsection (i). 596
U.S. at 343. Thus, subsection (ii) explicitly addresses
only judicial review of discretionary decisions and
does not speak to judicial review of nondiscretionary
decisions, such as whether Mr. Hamayel engaged in a
prior “sham marriage,” regardless of whether the
Secretary was “required” to revoke the petition
approval as a result. See also id. at 353, 358–59
(Gorsuch, J., dissenting) (explaining that by labelling
this subsection, “Denials of discretionary relief,”
“Congress left little doubt that subparagraph (B) and
its accompanying clauses (i) and (ii) are designed to
bar review of only those decisions invested to the
Attorney General’s discretion, not antecedent
statutory eligibility determinations”); The Court
should therefore find that Congress intended to allow
for Article III judicial review under that provision,
and embodied that decision in subsection (ii). See
Alzaben v. Garland, 66 F.4th 1, 6 (1st Cir. 2023)
(noting that Patel “does not directly address the scope”
14
of § 1252(a)(2)(B)(ii)).
For these reasons, the decision below conflicts
with this Court’s rulings, and cannot be squared with
text, precedent, or common sense.
III. ARTICLE III REVIEW OF NONDISCRETIONARY
DETERMINATIONS IS CRITICAL TO CORRECT
UNAVOIDABLE ERRORS THAT OVERBURDENED
IMMIGRATION ADJUDICATORS WILL MAKE.
If this Court were to adopt the Eleventh Circuit’s
decision to foreclose all forms of meaningful review in
§ 1252(a)(2)(B)(ii), it would remove a critical check on
immigration decisions made by overburdened agency
adjudicators. Every year, USCIS, the immigration
courts, and the BIA adjudicate literally hundreds of
thousands of proceedings that involve ultimate
exercises of discretion under § 1252(a)(2)(B)(ii). For
example, in FY 2022, USCIS issued:
76,200
revocations
nonimmigrant visas;
of
employment-based
528,548 advance parole decisions;
109,925 decisions on
conditions on residence;
petitions
to
remove
70,821 decisions on petitions to adjust asylees’
and refugees’ status;
9,492 denials of petitions for fiancée visas; and
6,064 decisions on petitions for provisional
unlawful presence waivers.6
6 Annual Statistical Report FY 2022, at 10, U.S. Citizenship &
Immigr.
Servs.
(2022),
15
When such decisions turn on nondiscretionary
determinations, subsection (ii) contemplates that
those nondiscretionary determinations will be subject
to Article III review.7 That review can provide critical
guidance to agency decisionmakers so that “minimum
standards of legal justice” are met in this flood of
adjudications. Benslimane v. Gonzales, 430 F.3d 828,
830 (7th Cir. 2005).
In cases like this one, an erroneous agency
determination could require families to make the
impossible choice of either living in different countries
or leaving the United States altogether. Because
“[d]eportation is always ‘a particularly severe
penalty’” for individuals and their families, Lee v.
United States, 582 U.S. 357, 370 (2017) (quoting
Padilla v. Kentucky, 559 U.S. 356, 365 (2010)), review
https://www.uscis.gov/sites/default/files/document/reports/FY20
22_Annual_Statistical_Report.pdf; Number of Service-Wide
Forms by Quarter, Form Status, and Processing Time, July 1,
2022–September 30, 2022, U.S. Citizenship & Immigr. Servs.
(Dec.
16,
2022),
https://www.uscis.gov/sites/default/files/document/data/Quarterl
y_All_Forms_FY2022_Q4.pdf.
7 See Hosseini, 826 F.3d at 358 (finding decision on adjustment
of asylee’s status to permanent resident falls under
§ 1252(a)(2)(B)(ii), but reviewing predicate nondiscretionary
determination); Jilin Pharm., 447 F.3d at 205 (finding revocation
of an employment-based nonimmigrant visa falls under
§ 1252(a)(2)(B)(ii)); Urena-Tavarez v. Ashcroft, 367 F.3d 154, 156
(3d Cir. 2004) (decisions on petition to remove conditions on
residence); Samirah v. O’Connell, 335 F.3d 545, 547 (7th Cir.
2003) (decisions on advance parole); Dehrizi v. Johnson, 2016 WL
270212, at *1 (D. Ariz. Jan. 21, 2016) (adjustment of asylee’s
status to permanent resident); Beeman v. Napolitano, 2011 WL
1897931, at *2 (D. Or. May 17, 2011) (denial of petition for
fiancée visa).
16
of predicate nondiscretionary determinations is
essential
to
preventing
adjudicators
from
categorically barring discretionary relief or making a
discretionary decision—with severe consequences—
based on an incorrect underlying determination. And,
where courts do find and correct errors in the
application of nondiscretionary statutory factors,
agencies can look to those decisions for clear guidance
going forward.
Reading § 1252(a)(2)(B)(ii) in the manner
advocated by Petitioner, and followed by the Sixth and
Ninth Circuits, would allow Article III judges to
perform a review function with which they are
completely familiar. Indeed, federal courts have
stepped in to address significant nondiscretionary
errors underlying visa revocations and to offer clear
directives for avoiding future errors of that nature.
See, e.g., Ved v. U.S. Citizenship & Immigr. Servs.,
2023 WL 2372360, at *6, *9 (D. Alaska Mar. 6, 2023)
(finding USCIS’s revocation of an employment-based
visa after ten-plus years, based on the agency’s
finding that visa’s issuance was mistaken, was “not
adequately explained or supported” and relied on “an
inaccurate representation of the record”); Doe I v. U.S.
Dep’t of Homeland Sec., 2022 WL 1212013, at *7 (N.D.
Cal. Apr. 25, 2022) (reversing revocation of an
employment visa where USCIS failed to follow notice
requirements); Coniglio v. Garland, 556 F. Supp. 3d
187, 204, 207 (E.D.N.Y. 2021) (cautioning that
“agencies [must] adhere to circuit precedent,”
reviewing nondiscretionary legal decisions underlying
visa revocation, and finding that USCIS erroneously
“separate[d] a family to satisfy a rule of bureaucratic
convenience”).
17
Practically speaking, Article III judicial review
would provide the relevant administrative actors—
USCIS officers, IJs, and the BIA—with the guidance
needed to manage their burgeoning dockets. First,
USCIS officers face a backlog of over 9 million forms,
including 2 million I-130 petitions to classify a noncitizen as a relative of a U.S. citizen.8 In 2022, USCIS
received more I-130 visa petitions than it had in the
previous five years, but adjudicated fewer.9
Compounding the risk of error and inconsistency, only
a fraction of USCIS decisions are published.10
Immigration courts likewise face a growing
national backlog of around 2.8 million cases.11 That
calculates to an average backlog of nearly 3,800 cases
for each of the approximately 725 IJs.12 One judge
8 Number of Service-Wide Forms by Quarter: FY24 Q1 All
Forms, supra note 2; see also Historical National Median
Processing Time (in Months) for All USCIS Offices for Select
Forms by Fiscal Year, U.S. Citizenship & Immigr. Servs.,
https://egov.uscis.gov/processing-times/historic-pt (last updated
May 31, 2024) (showing increase in I-130 processing times over
past five years, albeit with a slight dip in 2024 to date).
9 Annual Statistical Report FY 2022, supra note 6.
10 8 C.F.R. § 103.3(c) (providing for publication only of
precedential decisions selected by higher-level officials).
11 Adjudication Statistics: Pending Cases, New Cases, and
Total Completions, supra note 2.
12 Id.; Adjudication Statistics: Immigration Judge (IJ) Hiring,
Exec.
Off.
for
Immigr.
Rev.
(Jan.
2024),
https://www.justice.gov/eoir/media/1344911/dl?inline.
An
estimated 1,349 IJs would be needed to clear the backlog by 2032.
Holly Straut-Eppsteiner, Cong. Rsch. Serv., R47637,
Immigration Judge Hiring and Projected Impact on the
18
described her experience as “nightmarish,” explaining
that to tackle her “pending caseload [of] about 4,000
cases”—a staggering number, yet one that falls below
the current average—she had only “about half a
judicial law clerk and less than one full-time legal
assistant to help [her].”13 While IJs are not involved
in decisions to revoke visas issued under Form I-130
like Ms. Bouarfa’s—USCIS makes those decisions,
and the BIA handles appeals from them, see 8 U.S.C.
§ 1155; 8 C.F.R. § 1003.1(b)(5)—IJs do adjudicate
other applications and proceedings that courts have
held fall under § 1252(a)(2)(B)(ii).14
The BIA—which currently has 22 out of a
statutorily capped 23 members, plus three temporary
members—is swamped.15 At the end of the first
quarter in 2024, it had 112,907 pending appeals, up
14.6 percent from the end of 2022 and 217 percent
Immigration
Courts
Backlog
6–7
https://crsreports.congress.gov/product/pdf/R/R47637.
(2023),
13 Amid “Nightmarish” Case Backlog, Experts Call for
Independent Immigration Courts, ABA News (Aug. 9, 2019),
https://www.americanbar.org/news/abanews/aba-newsarchives/2019/08/amid-_nightmarish-case-backlog--experts-callfor-independent-imm.
14 See, e.g., Alzaben, 66 F.4th at 6–8 (analyzing hardship waiver
under 8 U.S.C. § 1186a(c)(4)); Malik v. Att’y Gen., 2022 WL
1024623, at *3 n.4 (3d Cir. Apr. 6, 2022) (noting the denial of a
hardship waiver under 8 U.S.C. § 1186a(c)(4)).
15 See 8 C.F.R. § 1003.1(a)(1); Board of Immigration Appeals,
Exec. Off. for Immigr. Rev. (last visited June 19, 2024),
https://www.justice.gov/eoir/board-of-immigrationappeals#board. The number of temporary members can vary.
19
from 2018.16 As a result, each BIA member spends
just one hour adjudicating each appeal.17 The BIA
publishes only 0.001% of its decisions each year,
leaving thousands of unpublished, nonprecedential
decisions where errors and inconsistencies lurk
unseen.18
In amici’s respectful view, these docket pressures
further heighten the risk that USCIS, IJ, and BIA
errors will go unseen and uncorrected, and that they
will repeat themselves across future cases. For all of
these agency adjudicators, “[c]onsistency and
accuracy across this staggering number of decisions
may be impossible to achieve.”19 Congress recognized
as much in IIRIRA, cutting off judicial review in some
circumstances
(discretionary
decisions)
but
preserving Article III courts’ ability to provide
authoritative
oversight
and
guidance
over
nondiscretionary decisions.
Although agency
adjudicators may have a better sense of the “overall
. . . landscape” than federal judges, “the time and
resource shortfalls that afflict agency decision-making
may make its adjudicators more error-prone, while
federal judges’ comparative surfeit of both improves
16 All Appeals Filed, Completed, and Pending, supra note 2
(tallying “[a]ppeals from completed removal, deportation,
exclusion, asylum-only, and withholding-only proceedings”).
17 Faiza W. Sayed, The Immigration Shadow Docket, 117 Nw.
U.L. Rev. 893, 945 (2023).
18 Id. at 926. Around 13 percent of federal circuit court
decisions are published, and those unpublished decisions are far
more easily accessible and citable by parties. Id. at 900.
19 Id. at 944.
20
their relative capacity to decide cases accurately.”20
Indeed, social science research confirms that “[t]he
accuracy of human judgments decreases under time
pressure.”21
The pressures on the immigration
adjudication system have already produced
significant factual errors and oversights, which
Article III courts have corrected and set guardrails for
avoiding in future cases.22 And the federal reporters
are replete with decisions of Article III courts
20 Jonah B. Gelbach & David Marcus, Rethinking Judicial
Review of High Volume Agency Adjudication, 96 Tex. L. Rev.
1097, 1111 (2018).
21 Anne Edland & Ola Svenson, Judgment and Decision
Making Under Time Pressure: Studies and Findings, in Time
Pressure and Stress in Human Judgment and Decision Making
29, 35–36 (Ola Svenson & A. John Maule eds., 1993); see also
Eberhard Feess & Roee Sarel, Judicial Effort and the Appeals
System: Theory and Experiment, 47 J. Legal Stud. 269, 270–71
(2018) (concluding from a laboratory experiment that penalizing
reversals prompts greater trial-level effort compared with
systems with no appeals and systems where reversals are not
penalized).
22 See, e.g., Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248
(4th Cir. 2017) (“[T]he IJ and BIA failed to appreciate, or even
address, critical evidence in the record.”); Makwana v. Att’y Gen.,
611 F. App’x 58, 61 (3d Cir. 2015) (per curiam) (remanding case
because of a factual error by the BIA regarding the date that the
visa was revoked); Ssali v. Gonzales, 424 F.3d 556, 563 (7th Cir.
2005) (BIA was “not aware of the most basic facts of [the
petitioner’s] case” and ruling lacked “a rational basis”); Niam v.
Ashcroft, 354 F.3d 652, 656 (7th Cir. 2004) (IJ’s opinion “is riven
with [factual] errors” that “were not noticed by the [B]oard”);
Berishaj v. Ashcroft, 378 F.3d 314, 331 (3d Cir. 2004) (BIA’s
summary affirmance “shirked its role and duty of ensuring that
the final agency determination in an immigration case is
reasonably sound and reasonably current”), abrogated on other
grounds by Nbaye v. Att’y Gen., 665 F.3d 57 (3d Cir. 2011).
21
concluding that agency adjudicators followed deficient
legal reasoning, and outlining the correct standards to
apply going forward.23 Indeed, since 2014, the circuit
courts have remanded over 10,000 BIA decisions.24
Last year, the circuit courts issued remands in around
20 percent of all BIA appeals.25
To be sure, as amici are familiar, “the large
number of cases” on their dockets “imposes practical
limitations on the length” of written opinions. Voci v.
Gonzales, 409 F.3d 607, 613 n.3 (3d Cir. 2005). IJs
and BIA members may have spent more time
23 See, e.g., Argueta-Hernandez v. Garland, 87 F.4th 698, 703
(5th Cir. 2023) (“[T]he BIA misapplied prevailing case law,
disregarded crucial evidence, and failed to adequately support its
decisions.”); Arita-Deras v. Wilkinson, 990 F.3d 350, 358 (4th Cir.
2021) (criticizing numerous IJ and BIA decisions in the case as
“err[oneous] as a matter of law,” “flawed,” with “no plausible
basis . . . in violation of the Board’s precedent”); Quinteros v. U.S.
Att’y Gen., 945 F.3d 772, 791 (3d Cir. 2019) (McKee, J.,
concurring) (“There are numerous examples of [the BIA’s] failure
to apply the binding precedent of this Circuit,” including “in the
two years since we explicitly emphasized its importance”);
Lockhart v. Napolitano, 573 F.3d 251, 260 (6th Cir. 2009)
(finding USCIS’s interpretation of the statue “creates an
arbitrary, irrational and inequitable outcome” (quoting Robinson
v. Napolitano, 554 F.3d 358, 371 (3d Cir. 2009) (Nygarrd, J.,
dissenting))); Freeman v. Gonzales, 444 F.3d 1031, 1041 (9th Cir.
2006) (remanding because USCIS followed an “untenable
interpretation” of the statute).
24 Adjudication Statistics: Circuit Court Remands Filed, Exec.
Off.
for
Immigr.
Rev.
(Jan.
18,
https://www.justice.gov/eoir/media/1344996/dl?inline.
2024),
25 Id.; Federal Judicial Caseload Statistics 2023, U.S. Courts,
https://www.uscourts.gov/statistics-reports/federal-judicialcaseload-statistics-2023 (noting that BIA appeals accounted for
79 percent of the 4,450 administrative agency appeals in 2023).
22
evaluating a case than the length of an opinion alone
would suggest. At the same time, “[e]very judge must
learn to live with the fact he or she will make some
mistakes; it comes with the territory.” Ramos v.
Louisiana, 140 S. Ct. 1390, 1408 (2020). In that
context, Article III courts play a crucial role in
ensuring
that
executive-branch
productivity
mandates do not override the obligation to give due
attention to a case; and that “crowded dockets or a
backlog of cases” do not “allow an IJ or the BIA to
dispense with an adequate explanation . . . merely to
facilitate
or
accommodate
administrative
expediency.” Valarezo-Tirado v. U.S. Att’y Gen., 6
F.4th 542, 549 (3d Cir. 2021). Moreover, judicial
review is vital not just to correct error in individual
cases, but also to ensure that agency adjudicators
apply consistent, correct legal standards in future
cases as they wade through their backlogs.26 This
judicial review (and the attendant checks it provides)
should be available to petitioners nationwide, instead
of only to those living in a jurisdiction that, under the
current circuit split, permits Article III review.
The Court should read § 1252(a)(2)(B)(ii) to
permit Article III courts to continue to correct the
underlying nondiscretionary determinations that can
be critical in requests for ultimate discretionary relief
like Ms. Bouarfa’s.
26 See Sayed, supra note 17, at 921, 925 (noting “the welldocumented inconsistencies in the application of immigration
law” by agency adjudicators and finding that “precedent is
crucial for creating uniformity in immigration law”); see also id.
at 947 (observing that “restrictions on judicial review” make it
“likely that BIA errors will go unchecked,” with “profound
consequences on the lives of noncitizens and their families”).
23
CONCLUSION
For the reasons stated above and in Petitioner’s
brief, the Court should reverse the Eleventh Circuit’s
judgment.
24
Respectfully submitted,
RICHARD W. MARK
Counsel of Record
AMER S. AHMED
VANESSA AJAGU
SASHA DUDDING
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
(212) 351-4000
rmark@gibsondunn.com
Counsel for Amici Curiae
July 10, 2024
APPENDIX
Table of Contents
Page
List of Amici Curiae .................................................. 1a
1a
LIST OF AMICI CURIAE
1.
The Honorable Steven Abrams served as an
Immigration Judge at the New York, Varick
Street, and Queens Wackenhut Immigration
Courts in New York City from 1997 until 2013.
2.
The Honorable Terry A. Bain served as an
Immigration Judge in New York from 1994 until
2019.
3.
The Honorable Sarah M. Burr served as an
Immigration Judge, and then as Assistant Chief
Immigration Judge, in New York from 1994 until
2012.
4.
The Honorable Esmerelda Cabrera served as
an Immigration Judge in New York, Newark, and
Elizabeth, NJ from 1994 until 2005.
5.
The Honorable Jeffrey S. Chase served as an
Immigration Judge in New York City from 1995
until 2007.
6.
The Honorable George T. Chew served as an
Immigration Judge in New York from 1995 until
2017.
7.
The Honorable Joan V. Churchill served as an
Immigration Judge in Washington DC-Arlington
VA, including 5 terms as a Temporary Member of
the BIA, from 1980 until 2005.
8.
The Honorable Bruce J. Einhorn served as an
Immigration Judge in Los Angeles from 1990
until 2007.
9.
The Honorable Cecelia M. Espenoza served as
a Member of the BIA from 2000 until 2003.
2a
10. The Honorable Noel A. Ferris served as an
Immigration Judge in New York from 1994 until
2013. Previously, she served as Chief of the
Immigration Unit at the U.S. Attorney’s Office for
the Southern District of New York from 1987 until
1990.
11. The Honorable James R. Fujimoto served as
an Immigration Judge in Chicago from 1990 until
2019.
12. The Honorable Annie S. Garcy served as an
Immigration Judge in Newark and Philadelphia
from 1990 until 2023.
13. The Honorable Alberto E. Gonzalez served as
an Immigration Judge in San Francisco from 1995
until 2005.
14. The Honorable John F. Gossart, Jr. served as
an Immigration Judge in Baltimore from 1982
until 2013.
15. The Honorable Miriam Hayward served as an
Immigration Judge in San Francisco from 1997
until 2018.
16. The Honorable Sandy Hom served as an
Immigration Judge in New York from 1993 until
2018.
17. The Honorable Charles M. Honeyman served
as an Immigration Judge in Philadelphia and
New York from 1995 until 2020.
3a
18. The Honorable Rebecca Jamil served as an
Immigration Judge in San Francisco from 2016
until 2018.
19. The Honorable William P. Joyce served as an
Immigration Judge in Boston from 1996 until
2002.
20. The Honorable Edward F. Kelly served as an
Assistant Chief Immigration Judge at the
headquarters of the Executive Office for
Immigration Review from 2011 until 2013, as a
Deputy Chief Immigration Judge from 2013 until
2017, and as an Appellate Immigration Judge on
the BIA from 2017 until 2021.
21. The Honorable Samuel Kim served as an
Immigration Judge in San Francisco from 2020
until 2022.
22. The Honorable Carol King served as an
Immigration Judge in San Francisco from 1995
until 2017. She served as a Temporary Member
of the BIA for six months between 2010 and 2011.
23. The Honorable Christopher M. Kozoll served
as an Immigration Judge in Memphis from 2022
until 2023.
24. The Honorable Elizabeth A. Lamb served as
an Immigration Judge in New York from 1995
until 2018.
25. The Honorable Dana Leigh Marks served as
an Immigration Judge in San Francisco from 1987
until 2021.
4a
26. The Honorable Margaret McManus served as
an Immigration Judge in New York from 1991
until 2018.
27. The Honorable Steven Morley served as an
Immigration Judge in Philadelphia from 2010
until 2022.
28. The Honorable Charles Pazar served as an
Immigration Judge in Memphis from 1998 until
2017.
29. The Honorable Laura L. Ramirez served as an
Immigration Judge in San Francisco from 1997
until 2018.
30. The Honorable John W. Richardson served as
an Immigration Judge in Phoenix from 1990 until
2018.
31. The Honorable Lory D. Rosenberg served as a
Member of the BIA from 1995 until 2002.
32. The Honorable Susan G. Roy served as an
Immigration Judge in Newark from 2008 until
2010.
33. The Honorable Paul W. Schmidt served as an
Immigration Judge in Arlington from 2003 until
2016. He previously served as Chairman of the
BIA from 1995 until 2001, and as a Member of the
BIA from 2001 until 2003. He served as Deputy
General Counsel of the former INS from 1978
until 1987, serving as Acting General Counsel
from 1979 until 1981 and 1986 until 1987.
34. The Honorable Patricia M. B. Sheppard
served as an Immigration Judge in Boston from
1993 until 2006.
5a
35. The Honorable Ilyce S. Shugall served as an
Immigration Judge in San Francisco from 2017
until 2019.
36. The Honorable Helen Sichel served as an
Immigration Judge in New York from 1997 until
2020.
37. The Honorable Andrea Hawkins Sloan
served as an Immigration Judge in Portland from
2010 until 2017.
38. The Honorable Gita Vahid served as an
Immigration Judge in Los Angeles from 2002
until 2024.
39. The Honorable Robert D. Vinikoor served as
an Immigration Judge in Chicago from 1984 until
2017.
40. The Honorable Polly A. Webber served as an
Immigration Judge in San Francisco from 1995
until 2016.
41. The Honorable Robert D. Weisel served as an
Immigration Judge, and then as an Assistant
Chief Immigration Judge, in New York from 1989
until 2016.
42. The Honorable Mimi Yam served as an
Immigration Judge in San Francisco and Houston
from 1995 until 2016.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.