Supreme Court hears arguments in Buarfa v. Mayorkas over review of visa-petition revocations

At oral argument in Buarfa v. Mayorkas, the Supreme Court considered whether revocation of an approved visa petition after a finding of a sham marriage is a discretionary agency act shielded from judicial review or a nondiscretionary correction that courts may review.

Petitioner's counsel argued that Section 11 54 c's language — "no petition shall be approved if the beneficiary engaged in a sham marriage" — should be read to prevent an approval from persisting once the agency later finds a sham marriage. "If Congress believed you shouldn't get that piece of paper saying that you're eligible when you've been in a sham marriage, then the agency has to take it away when it determines that you're not, in fact, eligible," counsel said, urging that revocation is nondiscretionary and therefore reviewable.

The petitioner pressed the practical stakes: a revoked petition can cost years and the loss of a priority date in categories with limited visa numbers, potentially delaying relief by a decade or more. Counsel argued that requiring a petitioner to refile and await a fresh adjudication is not an adequate substitute for immediate judicial review because of the length and consequences of delay.

Government counsel responded that Congress assigned broad discretionary authority to the Secretary of Homeland Security under Section 11 55 and that Section 12 52 strips courts of jurisdiction over decisions the authority for which is specified to be discretionary. "Section 12 52 bars review of actions the authority for which is specified to be in the discretion of the Secretary of Homeland Security," government counsel said, and emphasized the text'''s repeated discretionary phrasing ("may," "deems," and "for good and sufficient cause"). The government told the Court that, consistent with the statutory text and the large volume of petitions, Congress intended to streamline review by preventing litigation at the revocation stage.

Justices probed both sides on practice and consequence. The bench asked whether the agency in fact always revokes after a sham-marriage finding and whether there is any record of the agency exercising discretion to decline revocation. Petitioner's counsel acknowledged that the government commonly revokes in practice but contended that practice does not alter the statute's meaning; government counsel said the agency "strives" to revoke when evidentiary burdens are met but maintained that the statute confers discretionary authority and that historical practice does not eliminate that statutory discretion.

The Court also explored related issues: whether the jurisdiction-stripping provision in Section 12 52 applies outside removal proceedings, whether procedural-error claims are reviewable despite a broad review bar, and whether constitutional claims would survive a revocation-stage bar. The government declined to adopt a definitive position on whether constitutional claims are fully insulated at the revocation stage; some justices noted circuit authority allowing constitutional review in related contexts.

Petitioner answered hypotheticals about cases in which the agency might exercise discretion for reasons separate from the initial eligibility criteria (for example, safety or national-security concerns) and distinguished those scenarios from the sham-marriage bar at issue. Petitioner maintained that the sham-marriage restriction in 11 54 c is a narrow, nonwaivable restriction intended to prevent approval when the beneficiary engaged in a sham marriage, and that it should therefore render revocation nondiscretionary when such a finding is made.

In rebuttal, petitioner reiterated the statutory analogies and the high human cost of delay, arguing that re-filing is an inadequate substitute and that the practical effect of the government's reading would be to deny meaningful judicial review. The bench thanked counsel and the case was submitted.

The Court's questioning focused on statutory text, agency practice, circuit precedent about procedural exceptions, and the real-world consequences of the two readings; no decision was announced from the bench at argument's end. The case was submitted to the Court for decision.