On December 10, 2024, the Supreme Court issued a 9-0 opinion in Bouarfa v. Mayorkas holding that there is no judicial review available when the Department of Homeland Security (DHS) revokes a previously approved visa petition based on a sham-marriage determination. Specifically, the Court found that 8 U.S.C. § 1252(a)(2)(B)(ii) (INA § 242(a)(2)(B)(ii))—a provision that strips federal courts of jurisdiction to review certain discretionary agency decisions—barred judicial review of such a revocation because it is a discretionary determination by the agency.

Notably, the Court did not decide the question of whether the jurisdiction-stripping provision would apply when a noncitizen is not in removal proceedings or seeking review of a final order of removal. The Court’s preservation of this issue is thanks in part to an amicus brief that the Northwest Immigrant Rights Project (NWIRP), the National Immigration Litigation Alliance (NILA), and our firm,  Van Der Hout LLP, authored and filed in the case in July 2024, arguing that the jurisdiction-stripping provision is limited to the removal context. The American Immigration Council (AIC) also joined the amicus brief.

The amicus brief filed by NWIRP, NILA, and Van Der Hout LLP can be found here, and the Supreme Court’s decision in Bouarfa v. Mayorkas can be found here.