In its first decision on the merits in the current term, a unanimous U.S. Supreme Court (per Jackson, J.) has held in Bouarfa v. Mayorkas that revocation of an approved visa petition under 8 U.S.C. §1155, based on a sham-marriage determination by the Secretary of Homeland Security (the “Secretary”), is the kind of discretionary decision that falls within the purview of 8 U.S.C. §1252(a)(2)(B)(ii), which strips federal courts of jurisdiction to review certain actions “in the discretion of ” the agency.
The Court held that Section 1155 is a "quintessential grant of discretion." Thus, the Secretary “may” revoke a previously approved visa petition “at any time” for what the Secretary deems “good and sufficient cause.”
This broad grant of authority “fairly exudes deference” to the Secretary. This conclusion is similar to that reached as to other statutes held to “commi[t]” a decision “to agency discretion.” Webster v. Doe, 486 U. S. 592, 600. Following its recent line of decisions (here, unusually, unanimously), the Court takes a literal view of the text, holding that "Congress did not impose specific criteria or conditions limiting this authority, nor did it prescribe how or when the Secretary must act."
The Court concluded that "because the presumption that administrative action is subject to judicial review may be overcome by ‘clear and convincing evidence’ of congressional intent to preclude judicial review,” Guerrero-Lasprilla v. Barr, 589 U. S. 221, 229, there is no need to resort to the presumption of reviewability where, as here, “the statute is clear.”
One might ask why I am reporting on this rather mundane case that has nothing to do with the areas of practice of most of this blog’s readers. The answer is simple: Justice Kagan said a few terms ago, "We are all textualists now."
Today's unanimous decision affirms that, at least much of the time, that statement holds true across philosophical lines. While, with Chevron gone, agencies will get no deference in interpreting statutes where Congress has written ambiguous delegations, an agency's action will be unreviewable where Congress has clearly legislated an intention to foreclose judicial review.
In sum, the Court is, in a sense, rewarding Congress for doing its job—whereas it has, in the recent past, criticized Congress for failing to do so by legislating without clarity and completeness.
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