Bouarfa v. Mayorkas, Sec. of Homeland Security (23-583)

argument 23-583

Bouarfa v. Mayorkas, Sec. of Homeland Security

Supreme Court of the United States 49 min 7 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the legal issue at the heart of Bouarfa v. Mayorkas?

John G. Roberts 0:00

We'll hear argument next

Unknown 0:01

in case twenty three five eighty three, Buarfa versus Majorcas. Mr. Degerson? Mr Chief Justice, and may it please the Court. In section eleven fifty four C, Congress unequivocally stated that no petition shall be approved if the beneficiary engaged in a sham marriage. In context, that requirement applies not just to the day of approval, but to the next day as well. In other words, the petition cannot remain approved if the agency reconsiders its initial decision and concludes that there was a sham marriage. That's because an approved visa petition confers no substantive benefits. It is simply a piece of paper signifying that a beneficiary is eligible to apply for a green card. If Congress believed you shouldn't get that piece of paper saying that you're eligible when you've been in a sham marriage, uh

Unknown 0:50

then then th then then the agency has to take it away when it determines that you're not in fact eligible. That resolves this case. Because the revocation here was non discretionary, it is reviewable. The government seeks to shield itself from judicial review by claiming it has discretion to not revoke the petition, even after a sham marriage finding. Yet it identifies no circumstance in which it has ever or would ever exercise that purported discretion, nor does it explain what purpose such discretion could serve if, as the government appears to believe, it's not actually allowed to give the beneficiary a green card. The discretion appears to simply be the discretion to allow a person to hold on to a now meaningless piece of paper that has been drained of all of its value.

Unknown 1:34

That cannot be the kind of discretion that Congress sought to protect. The government's view also layers one anomaly on top of another. Most significantly, it creates a disparity in review between an initial decision and a reconsideration of that same decision based on the same criteria. And the government concedes that a person could obtain review if they filed a new petition and had it denied. But that gives the game away. That is the exact same non discretionary decision that the government claims needs to be. Shielded from review. The only difference is years of additional delay where families and children live under constant fear that they will be separated. I welcome the Court's questions.

Clarence Thomas 2:14

Does the government always revoke uh a decision uh when it discovers uh later discovers a sham marriage?

Unknown 2:21

Yes, we've identified no case and the government has identified no case where the government has ever exercised any purported discretion to not revoke. So what the government does in these situations is when they discover that there has been a share marriage, they as far as we can tell, their uniform practices to revoke. And if you look at the actual decisions, the decisions all read like decisions that are nondiscretionary. The decision to revoke looks exactly like the decision to deny. They apply the same criteria. They use the same language. No one mentions discretion. That's a stark contrast to the kinds of decisions on adjustment of status, for example, where you see people asking the agency, could you exercise discretion?

Unknown 2:57

The agency says we're not going to exercise discretion for these reasons. We have not been identified a single BIA opinion where the the agency has ever talked about the possibility of exercising discretion in this situation, so it is treated as automatic in practice.

Clarence Thomas 3:11

Are there um revocations that you think are not re uh reviewable?

Unknown 3:15

Yes, absolutely. I think uh any revocation

Clarence Thomas 3:18

what would that look like?

Unknown 3:19

So for example, uh if if the agency determines that someone is eligible and then uh says later on finds out you know this person you know may be affiliated with a terrorist organization or something like that, you know, we're gonna revoke their petition. We don't want them to even apply for a green card. The agency has a lot of discretion. There's a big universe of cases where the agency absolutely can exercise discretion to come up with additional reasons. But that's what section eleven fifty five