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Bouarfa v. Mayorkas

Oral argument transcript · No. 23-583 · October Term 2024 · argued October 15, 2024 · the respondent won

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 23-583, Bouarfa versus Mayorkas. Mr. Deger-Sen. ORAL ARGUMENT OF SAMIR DEGER-SEN ON BEHALF OF THE PETITIONER MR. DEGER-SEN: Mr. Chief Justice, and may it please the Court: In Section 1154(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 Official 1 when you've been in a sham marriage, then -- 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. 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 Official 1 same decision based on the same criteria. And the government concedes that a person could obtain review if they filed a new -- 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.

Justice Thomas: Does the government always revoke a decision when it discovers, later discovers, a sham marriage? MR. DEGER-SEN: 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 sham marriage, they -- as far as we can tell, their uniform practice is to revoke. And if you look at the actual decisions, the decisions all read like decisions Official 1 that are non-discretionary. 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 -- 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? 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.

Justice Thomas: Are there revocations that you think are not reviewable? MR. DEGER-SEN: Yes, absolutely. I think any revocation --

Justice Thomas: What -- what would -- what would that look like? MR. DEGER-SEN: So, for example, if -- if the agency, you know, determines that someone is eligible and then says later on -- finds out, you know, this person, you know, may be affiliated with a terrorist organization or Official 1 something like that, you know, we're going to 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 1155 is. It's, once you've met the eligibility criteria, the agency has discretion to come up with more reasons. So it's a way of saying the agency has flexibility to deny more petitions. What it's not is -- you know, gives the agency the flexibility to ignore the mandatory initial eligibility criteria and allow -- I mean, what they're claiming is allow more petitions through into the system that otherwise should have been revoked if the agency had made a mistake.

Justice Thomas: So you're saying it has to be for a reason other than the initial reason? MR. DEGER-SEN: Right. It can't just be a reconsideration. It can't be we made a mistake and so, you know, now we have the Official 1 discretion to not revoke it.

Justice Thomas: So what do you --

Chief Justice Roberts: Well --

Justice Thomas: -- rely on for that? MR. DEGER-SEN: And -- and we rely on 1154(c), and that language says no petition shall be approved. And we think in context --

Justice Thomas: But that's approval. I'm -- we're talking about revocation. MR. DEGER-SEN: Right. I think that's the question. You know, does -- does that language -- does it end on the day of approval, or does it create continuing obligations that the petition can't maintain the status of being approved after the first day? And so -- and I think, in context, it does mean the latter thing. And just to give you an example that might help, we have a few examples, but one example is no article shall be approved for publication if there is evidence of plagiarism. I think everyone would understand that if you approve the article of publication and then the next day you find out that there is plagiarism, it would be very strange to say: Well, the rule just says it shouldn't be Official 1 approved for publication. It's already been approved for publication, so we're just going to let it go ahead and get published. You would -- you would say: Well, we have to withdraw. We can't publish. And the reason I think that example is helpful is the green -- the -- the -- the visa petition is just a document saying you're eligible. So it's just a document saying you're approved for publication. It's not the publication itself. That's getting the green card. And so, in a situation where, in between those two times, approval of the petition and then going to the agency and getting the green card, the agency figures out it's made a mistake, it's very strange to say, well, the agency can just pretend it hasn't. It can just let you have the document, and it can go ahead and say you are, in fact, eligible for a green card.

Justice Sotomayor: Counsel --

Chief Justice Roberts: Well, but that's --

Justice Sotomayor: Sorry. Official

Chief Justice Roberts: I -- I mean, I get -- the government's position as far as I can tell is that you -- you just won't take yes for an answer. You want there to be review rather than review after revocation. And they're saying you can get that. Just apply again, and you'll get exactly what you would have -- you think you're entitled to, which is judicial review of the decision. And -- and what -- what more can -- what more do you want? MR. DEGER-SEN: Well, I mean, I think that underscores what's so senseless about the government's position. From -- our perspective, the harm is that it would be years of additional delay. We did refile. It's been two years of delay now.

Chief Justice Roberts: Well, they can't give you the years -- they can't give you the years back, but you're asking for a particular procedure and a particular level of judicial review. That's your request for relief. And they're saying you can get that. MR. DEGER-SEN: You -- you can get that -- Official

Chief Justice Roberts: They -- they should have given you -- I mean, yeah, they made a mistake in the first place, but they're letting you go ahead and do what you say you should have -- they should have done. MR. DEGER-SEN: Well, but at a much greater cost. They're saying you have to go back, file another petition, wait years for that to be adjudicated. And for us, for an immediate family petition, that's harmful, but for other kinds of petitions, it's -- it's could be really devastating because, for other kinds of petitions --

Chief Justice Roberts: Well, we'll worry about the other kinds of petitions in a case where they're raised. It seems to me that yours is pretty straightforward. And I'm sure -- I'm sure the government is sorry for the years, but it -- it -- it seems to me that that's the type of relief you would get. The relief is not going to be that they approve your application, right? MR. DEGER-SEN: No, the -- the relief is to get judicial review. But --

Chief Justice Roberts: And -- Official 1 MR. DEGER-SEN: -- for someone -- but, for example, for someone who is in a different -- like an employment-based or other kind of family eligibility category, which this -- the revocation rule governs every single kind of revocation, those people lose their priority date. And if you lose your priority date, as this Court noted in Tesoro, that could be 10 years, 15 years, because the -- the -- the number of green cards that are out there, the number of available green cards, is far smaller than the number of applicants. So there are millions pending --

Chief Justice Roberts: So that's another -- another case that is not like yours, right? MR. DEGER-SEN: Well, I mean, I think that the rule on the revocation absolutely governs, and the government, I think, would accept, absolutely governs that situation as well. And, in our situation, we still lose two years. And I think -- but I think the key point here is, if that's all true, why does the government care about barring judicial review? Official 1 They think this exact decision was reviewable yesterday when it was a denial. They think it's going to be reviewable tomorrow if we go through the process of refiling. The only difference is clients like mine have to -- live for years still not knowing whether their family is going to be separated. And that just shows there is no discretion here to protect. There is no reason to deny review of this exact decision.

Chief Justice Roberts: Well, isn't that -- isn't that the argument you're going to make on the merits when you -- if you do reapply? MR. DEGER-SEN: I mean, if we do reapply, I think the government's position if the -- there's -- there decided we're in a sham marriage and they're going to deny. And, great, once you've gone through that arduous process --

Chief Justice Roberts: At that point, you get judicial -- MR. DEGER-SEN: -- you'll get review.

Chief Justice Roberts: Yeah. MR. DEGER-SEN: Well, and that just shows that why are they -- you know, there is -- Official 1 I -- the -- the why question, I think, just jumps off the page here on the government's side. Why is the government denying judicial review? What possible reason is there to deny judicial review of a revocation if they believe that this decision is non-discretionary and is, in fact, the kind of thing that should easily be subject to judicial review?

Justice Jackson: Well, maybe they -- maybe -- maybe they do think it's discretionary and they just happen to exercise their discretion consistently, which is what I think that we would want. I mean, the -- the strange thing about your argument to me is that it seems as though saying that the agency has discretion not to revoke would generally be more favorable to people who are applying, right, that the agency makes a mistake in the first instance, it does not follow whatever the mandatory criteria are for approval, and it gives the person approval, and then they discover that that was a mistake. I would think that the argument made from people who are applying would be you have discretion to -- to keep the approval in place. Official 1 You don't have to revoke it. You know, it was your mistake. We've gotten past that stage, so let me just keep going. The implications of your argument is that, no, if they make a mistake, then they actually have to revoke their approval and -- and -- and that's -- that that's non-discretionary. And that just seems odd to me coming from your side of this argument. MR. DEGER-SEN: Right. But it's -- it's no surprise that, you know, all the amici from various organizations and immigration attorneys that work in this field, they've all lined up on our side because, in reality, the government does not believe it has any discretion. It's never exercised any discretion. Any -- no one has even made this request really the government because it doesn't exercise any discretion. And I think the -- maybe the more important point is, as I understand the government's view of what discretion it has to exercise, it is just the discretion to not revoke. I think the government thinks it still has to deny your green card, and so I think Official 1 that's probably why --

Justice Jackson: Yeah, but that's at later stages. I mean, they have these sort of check-in points at later stages. As you articulated, this is just the beginning of a long process toward get -- getting you a green card. And if things come up in that process -- whether they overlap with previous stages or not seems to be neither here or there. The government continues on and allows you to continue on, and if those same factors come up, that could be a reason to deny the green card. It's just odd, I think, to suggest that when we get to this stage, you -- you clear the approval hurdle, which, in general, I think, is positive from the standpoint of the person who is applying, to -- to suggest that the government has to keep going back and deciding whether or not it was right to give you approval to begin with seems to me to be less favorable from your perspective. MR. DEGER-SEN: But -- but it's not because, in practice, the -- the government always denies -- I think understands itself in every BIA decision -- Official

Justice Jackson: Isn't that better than arbitrarily going back and forth? I mean, the -- the -- if -- if the government is consistent in its practices with respect to how it exercises its discretion, isn't that what one would want in a rule of law kind of scenario? MR. DEGER-SEN: It -- it's consistent because -- well, I don't think in a situation where there's discretion. I think if -- I think it would be problematic if you have -- you know, you protect judicial review because there's discretion for the government. The government never exercises discretion, doesn't conceive of itself as really being capable of exercising discretion, and the result of that, of course, is no one gets judicial review.

Justice Jackson: Except for the --

Justice Barrett: Well, what if it did? Oh, sorry.

Justice Jackson: Go ahead.

Justice Barrett: What if it did? What if it started exercising discretion? Would your case go away? Or what if it had been conducting itself the way Justice Jackson is Official 1 positing, you know, sometimes revoking it, sometimes not? Then do you have no case? MR. DEGER-SEN: Well, I mean, I think as long as what they would be able to do then is to allow someone to be eligible for the green card. I think what they're saying is we believe that we can just still deny green cards. And we don't believe that the government can do that so, because the only place where this criteria exists, 1154(c), is at the petition approval stage. So what the -- what -- what -- what the -- what a valid petition says, what a non-revoked petition says is it says you are eligible for a green card. You have not engaged in a sham marriage. That's something you've not done. That's what it's signifying to the agency. So then I think, if the agency says, well, you have that, so you've not engaged in a sham marriage, even though it separately found that you have, we're going to exercise our discretion to allow you to go ahead into the process and get a green card, that would be a meaningful kind of discretion. But I don't Official 1 think that's what the government is suggesting as the kind of discretion it has. I think it's saying we -- we -- we have a sham-marriage finding. We're independently allowed to say we're going to stop your green card. We -- we -- we're allowed to say -- we have to -- we have to stop you having a green card as a result of that, but what you're allowed to do is hang on to this piece of paper, and this piece of paper now means nothing because, even though the only significance of the piece of paper is I'm eligible for a green card, we actually don't think you're eligible for a green card.

Justice Barrett: What if they don't give a reason for revoking it? Do they have to? MR. DEGER-SEN: They have to give --

Justice Barrett: I mean, how are we supposed to know if -- if it was because they concluded it actually was a sham marriage? MR. DEGER-SEN: Right. They have to give a reason under their regulations. That's at 8 C.F.R. 205(2)(c). So it would be a violation of their own procedures if they didn't give a reason. Official 1 I think if, you know, if they abolished all of their own procedures and BIA review, I think we would still have an argument that that was arbitrary and capricious.

Justice Barrett: But we're interpreting the statute. I mean, the statute doesn't itself require a reason, right? MR. DEGER-SEN: The -- the statute doesn't require a reason, but I think it would be very hard for the government to avoid giving a reason, and it might well be arbitrary and capricious if the agency's path can't be discerned. And I'll also say that the government has made this type of argument in other cases. This Court has consistently rejected it. To -- to quote the language in this Court's Hawks' decision, "such a count-your-blessings argument is not an adequate rejoinder to the assertion of a right to judicial review under the APA."

Justice Sotomayor: Counsel, I -- I -- I -- you've conceded that 1155 doesn't say mandatorily you have to revoke, correct? MR. DEGER-SEN: That's correct.

Justice Sotomayor: So you're asking Official 1 us to say because of, as a matter of practice, this is what they believe they must do. But I don't even know if the agency has to bother, meaning, if you posited that if they -- they couldn't use the sham marriage later, but I don't know why not. If the petition wasn't revoked, they could just simply deny you a visa or an adjustment of status because you're under -- you're not admissible under 1182(a)(6)(C)(i) because of the fraud bar. MR. DEGER-SEN: But the fraud bar is waiveable. The -- that --

Justice Sotomayor: Well, you think the -- the fact that they didn't revoke makes it waiveable? They could -- that makes no sense to me. MR. DEGER-SEN: Right. I -- I think and what the lower courts have held is that 1154(c) is a non-waiveable perpetual restriction on someone who has been found to be in a sham marriage, i.e., in that situation, the agency just loses -- and one of the very few restrictions in the immigration code that looks like this --

Justice Sotomayor: Alright. So what Official 1 do you do with 11 -- MR. DEGER-SEN: -- loses all discretion.

Justice Sotomayor: -- what do you do with 1182(i), which allows the attorney general to waive the fraud bar if the applicant is the spouse of a U.S. citizen and refusing admission would result in extreme hardship to the citizen? It seems to me that if the government chose -- it just hasn't, but that doesn't mean much to me. If it chose, if someone was here, let's say, 50 years, I suspect there's going to be a lot of movement for the government not to revoke on the basis of sham marriage. MR. DEGER-SEN: So -- so the 50-year thing, you know, wouldn't happen because that -- this is just that period of time between the petition and getting --

Justice Sotomayor: And when the -- well, yeah. MR. DEGER-SEN: Right. So, you know, there's obviously 1256 and there's all kinds of rescission provisions.

Justice Sotomayor: But go ahead to my 1182. Official 1 MR. DEGER-SEN: Right. I mean, the lower courts have held -- I think it's been the government consistent position that 1154(c) is non-waiveable, as in it doesn't fall under that provision. Now they can obviously deny on the basis of fraud if they want, but they're not obligated to. And our understanding or our argument is that 1154(c) --

Justice Sotomayor: So, if they're not obligated to, they can't waive either? Well, your -- MR. DEGER-SEN: Right. They --

Justice Sotomayor: -- your opposing counsel can answer my question. That's fine. MR. DEGER-SEN: Right. And our position is 1154(c), that what Congress intended was that is a restriction that is not -- that -- that takes away discretion from the government, and they accept that at the petition approval stage. They can't say: Well, there's a lot of equities here, we're going to --

Justice Sotomayor: No, that's because the law requires them not to give it. Official 1 MR. DEGER-SEN: Exactly. And so then --

Justice Sotomayor: But that says nothing about what happens later. MR. DEGER-SEN: And -- and that -- but I think that's the nub of the dispute. I mean, I think there's a lot of common ground here. And, really, the nub of the dispute is, does 1154(c) apply just on the day of approval, or does it extend to the day after? And that's why I think the example I gave is helpful. There are -- there are lots of ordinary English contexts where you can -- you know, the -- the -- an obligation on the day of approval is logically understood --

Justice Sotomayor: Alright, counsel.

Deger Sen: -- to apply to the next day.

Justice Alito: Why does it matter whether the government, in fact, has been exercising discretion? 1252(a)(2)(B)(ii) strips jurisdiction over decisions Congress specified to be in the agency's discretionary authority. It uses the term "authority." So why does practice matter? Official 1 MR. DEGER-SEN: Oh, I think practice only matters in that it informs what the statute requires. And we think that 1154(c) makes this non-discretionary in this situation, i.e., because the agency has to revoke when it has found a sham marriage. It's non-discretionary and falls outside of the relief bar.

Justice Alito: Well, if you concede that interpretation of the provision that I just mentioned, then what do you do with a very straightforward statutory argument, if you put that together with 1255, you're in a lot of trouble? MR. DEGER-SEN: With 1155? Well, no, I --

Justice Alito: , yes. MR. DEGER-SEN: No, I mean, I -- I think 1155 gives the government a measure of discretion to come up with additional reasons to revoke, but it doesn't mean that they are allowed to ignore the mandatory criteria. It doesn't speak to the question of when they have to revoke. And the government accepts this, by the way, because -- you know, they accept that 1154(h) decisions are reviewable because, of Official 1 course, if you have -- you know, X statute says you have discretion to do all of these things, and then another statute says but you don't have discretion to do this, then, clearly, that second statute means you don't have discretion to do that second thing. And so the fact that 1155 gives a measure of discretion doesn't mean that every single revocation is discretionary. The question is, is there a separate statutory restriction that prohibits the government from exercising discretion in this situation? And that's why I think it all comes back to our interpretation of 1154(c).

Justice Alito: Well, I know that's the provision you want to talk about, but 1155, it's perhaps an understatement to say that it confers a measure of discretion. It confers about the broadest measure of discretion that you could imagine. The Secretary of Homeland Security may at any time for what he deems to be good and sufficient cause. Anything that he deems to be good and sufficient cause seems to fall under that. MR. DEGER-SEN: Well, it -- it allows Official 1 the -- the agency to come up with lots of additional reasons. It's -- it's a way of saying the agency, even in situations where the eligibility criteria have been satisfied, we can come up with additional reasons. We can stop visa petitions coming through. But I think the -- the government's way of reading it means that it allows more visa petitions through. I mean, to use one example, they use the example --

Justice Alito: Well -- well, we would have to -- wouldn't we have to say when it -- it refers to what he deems to be good and sufficient cause, that doesn't govern because it is not good and sufficient to -- well, anyway, alright. Never mind. Go ahead. Continue. MR. DEGER-SEN: Oh, I mean, and I -- I -- and I -- I mean, I -- I -- to use the babysitter example we gave in our -- in our hypothetical, you can have a situation where the babysitter has -- can -- for good and sufficient cause, can take away the iPad, a very broad array of discretion. But you can also have a rule saying no iPad at the dinner table. And --

Justice Alito: But it doesn't say -- Official 1 you changed it. You said where the babysitter says for good and sufficient cause, not what the babysitter deems to be for good and sufficient cause. MR. DEGER-SEN: Yeah. For -- for -- for what the babysitter deems to be good and sufficient cause, they have free discretion. And it can be a terrible reason. They can say: Oh, you know, you looked at me the wrong way, I'm going to take away the iPad. And the -- and the parent couldn't complain. But, if the parent said no iPad at the dinner table and comes home and finds that someone is at the dinner table with the iPad, it would be very strange to say, well, you said, for good and sufficient cause, I could take away the iPad in other situations. That's not the kind of discretion that's being spoken to in that situation. And that's what we have here, which, again, routes us back to 1154(c) and --

Justice Alito: Thank you. Thank you. MR. DEGER-SEN: I'm sorry.

Justice Kagan: If -- if I understand the argument, it's that we're supposed to ignore Official 1 the very discretionary language of 1255 because of the very non-discretionary language of 1154(c). But the non-discretionary language of 1154(c) does not pertain to revocations. It applies -- it pertains instead to the initial approval or denial of a petition. And you're saying, well, how could it be that you -- that that wouldn't also pertain to revocations? But there might be good reasons why Congress would have thought, no matter what you do or no matter what we demand that you do at the initial stage, once you've already given a petition, there might be reasons to just keep the status quo going. There might be -- it might be costly to change. There might be reliance interests. Whatever. The -- the decision to revoke is just different from the decision to approve or deny in the first instance. So this language about approving or denying in the first instance doesn't really speak to the decision to revoke, which is instead governed by 1255. MR. DEGER-SEN: I think all of that might be true in a situation where what's being given is -- is something other than just that Official 1 piece of paper. But the government has been very clear. Its longstanding position is there's no reliance interest in this piece of paper because it's just -- it confers no substantive benefits. All it is is something that says you met those criteria. It's all -- that's literally the entire value of the paper. And you take it to the next -- and you take it to the agency the next day and it says, I met the criteria. And if the government has now decided you don't meet those criteria, then I think it has to take the piece of paper away. And that's why I think the examples are sort of helpful --

Justice Kagan: Yeah, I -- I don't know what the government will say to that, but it does seem to me that under the statute, if you have an approved petition, you're entitled to certain benefits. So, if you have an approved petition, you're entitled to those benefits even though you might say, oh, the approval was -- was -- was wrong in the first instance. MR. DEGER-SEN: But the only benefit you're entitled to is the fact that you have Official 1 that piece of paper that allows you to go apply for the green card. That -- that's literally what that approved petition means. And if the government has said you're in a sham marriage and we don't actually think that you are able to apply for -- you know, apply for the green card, we're going to deny the green card probably, we have to deny the green card. I think that's what they think, that they have to deny the green card. Then the discretion we're talking about in this case --

Justice Kagan: Well, they have to deny the green card if they've revoked the petition, but they don't have to deny the green card if the person has an approved petition and nothing's happened to it. MR. DEGER-SEN: Well, that's an interesting question. I think that -- that's a question, I think, for the government. The government's longstanding position has been the -- the -- the 1154(c) sham-marriage bar. Congress enacted it. It's one of very few restrictions like this that is non-waiveable. It was such a fundamental thing that they said your petition shouldn't even get off the ground. Official 1 Your application should -- and it's -- and it's, you know, described as one of the most serious and disabling judge -- judgments you can have against you. You can -- it's perpetual. It's non-waiveable. You can never become -- you can never get U.S. status. So that's why it's so fundamental. And the government's position, I think, is that, yeah, we are not able to give you the ultimate immigration benefit. If the government says, yes, we can exercise discretion to just let you through the system and get a green card, I think their argument looks different. I don't think they've said that anywhere in their briefs. And that would be contradictory to their longstanding position. And that's all consistent with, in fact, what happens in the real world, which is that in over 50 -- you know, 50 years or maybe even 70 years, there has just never been an instance where this purported discretion has ever been exercised. So where this all cashes out is this means nothing other than taking away judicial review from people who, you know, have this -- Official 1 this very disabling judgment made against them. And, in some instances, that means getting kicked back in line and having to wait 10 more years. And the government cannot come up with a single reason why that makes any sense. It agrees that can be reviewed yesterday. It can be reviewed tomorrow. It's the kind of decision that's generally reviewed. Why does it not allow review in this situation?

Chief Justice Roberts: Thank -- MR. DEGER-SEN: I've never seen a case quite like it.

Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito, anything? No? Justice Barrett?

Justice Jackson: Can I just --

Chief Justice Roberts: Justice Jackson?

Justice Jackson: Yes. Can I just quickly ask about -- your client is not in removal, right? MR. DEGER-SEN: No. Official

Justice Jackson: And we've never held that 1252 applies in the non-removal context. So isn't there at least a threshold issue that -- I mean, the Northwest Immigrants' Rights Project amicus raises that, so I didn't know if you wanted to speak to that or -- MR. DEGER-SEN: No, absolutely. I mean, that was the question this Court reserved in Patel. It's a threshold issue that wasn't raised in our case, so -- but I think it's absolutely something that this Court can and should reserve. It -- it has enormous ramifications. I mean, I think, if you -- if one were to hold that -- that -- that both underlying eligibility determinations like this are reviewable and also that this provision that the review bar applies in the district courts, that applies to dozens and dozens of provisions across the immigration code, administering things like U visas and T visas for victims of child trafficking, VAWA self-petitions, adjustment of -- and various benefits administrations, status adjustments, all kinds -- Official

Justice Jackson: So you're say -- so it wasn't -- it wasn't briefed, though, in this case? MR. DEGER-SEN: It wasn't briefed in this case, so I -- I -- I -- I --

Justice Jackson: So any holding against you would have to make clear that we're reserving that issue? MR. DEGER-SEN: Reserving that issue. The same issue that was reserved in Patel. Absolutely.

Justice Jackson: Thank you.

Chief Justice Roberts: Thank you, counsel. Ms. Sinzdak. ORAL ARGUMENT OF COLLEEN R. SINZDAK ON BEHALF OF THE RESPONDENTS

Colleen R. Sinzdak: Mr. Chief Justice, and may it please the Court: There were more than 900,000 I-130 visa petitions filed last year, and USCIS granted, denied, or revoked more than 800,000 such petitions. Given this volume, Congress had every reason to streamline judicial review by prohibiting litigation at the revocation stage. Official 1 And, to be clear, the government believes that Congress did prohibit litigation by making revocations discretionary, including in the face of a sham-marriage determination. The government does not view a revocation as mandatory in that stage, and I am not aware of a longstanding position of the kind that counsel suggests. The text is very clear on this. Section 1252 bars review of actions, the authority for which is specified to be in the discretion of the Secretary of Homeland Security. And Section 1155 specifies that the Secretary's authority to revoke visa petitions is discretionary at least three times over, as Justice Alito was noting. It uses the term "may," which connotes discretion. It uses the term "deems," which fairly exudes discretion. And it uses the capacious term "good and sufficient cause," which calls for a discretionary judgment. Now I -- I don't hear Petitioner today to be advancing the secondary argument that I think we saw in his briefing with respect to the idea that a sham -- at least an underlying Official 1 sham-marriage determination might be reviewable even if the revocation decision itself is not because the revocation decision is clearly discretionary under Section 1155, and I think that's for good reason. I don't think that this Court has ever suggested that someone can evade a judicial review bar on review of a decision by breaking that decision into its constituent parts. And, here, the text of Section 1252(a)(2)(B)(ii) is very clear because it says that you -- it puts the focus on the nature of the agency's authority. So it says: A decision, the authority for which is specified to be in the Secretary's discretion. And any decision that the Secretary is making using his discretionary revocation authority is therefore covered. I welcome the Court's questions.

Justice Thomas: But don't you think it's a bit odd that the underlying determination initially was not discretionary and now it is being disposed of after the fact in a discretionary way?

Colleen R. Sinzdak: I -- I do think that Official 1 you've put your finger on perhaps the oddity of this statute, which is that approval is banned, and that's a mandatory decision, but revocation is discretionary. I think that, as Justice Jackson was suggesting, that is to the benefit for the most part of non-citizens because it allows some discretion on the part of the agency to decide not to revoke when it notices that it has made a mistake in the past. So I -- I agree that's a little bit odd. It is the plain text of the statute. And I think that in -- in the mine-run of situations, it's going to be helpful to non-citizens.

Justice Gorsuch: Ms. Sinzdak, your friend on the other side suggested that the government has never exercised its discretion to overlook a sham marriage. Is that correct?

Colleen R. Sinzdak: We do not have a record of the government overlooking a sham marriage. We do not keep records with respect to times that the government --

Justice Gorsuch: Are you aware of any case? Official

Colleen R. Sinzdak: I -- I am not.

Justice Gorsuch: Okay. The other question I had is your friend on the other side also suggests that this obligation of approval is ongoing because you cannot grant a green card either or any kind of visa relief in the end if there is a sham marriage. Is that right?

Colleen R. Sinzdak: No. So there is a -- the -- the -- the government has the discretion whether or not to revoke. Then, at the green -- green card stage, I believe Justice Sotomayor was alluding to another statute, which is 80 -- 1182(a)(6).

Justice Gorsuch: Six.

Colleen R. Sinzdak: That says that if the non -- the non-citizen has made a misrepresentation in order to get immigration benefits of any kind, then he has no eligibility. But that, as Justice Sotomayor pointed out, is waiveable. There can be a waiver. So I think that's the way that the -- the statutes interact.

Justice Gorsuch: Can you explain that to me a little bit more?

Colleen R. Sinzdak: Sure. So 1182 -- again, Official 1 1182(a) --

Justice Gorsuch: That's non-discretionary as well, (a)(6), right?

Colleen R. Sinzdak: It -- it is -- it -- it says that the -- the non-citizen is inadmissible. But the way in which it becomes, I -- I suppose you could say, discretionary, in that there is a discretionary waiver under 1182(i), which says that in an instance where there has been extreme hardship, where -- on -- to -- where there would be extreme hardship to a U.S. citizen --

Justice Gorsuch: U.S.

Colleen R. Sinzdak: -- then the government has the discretion to waive 1182(a)(6)'s admissibility bar.

Justice Gorsuch: But, other than that carveout for an effect on a U.S. citizen, the bar is mandatory?

Colleen R. Sinzdak: That's correct.

Justice Gorsuch: So I think that's your friend's point, is that throughout the process, a sham marriage is, in many cases, an absolute non-discretionary bar to relief.

Colleen R. Sinzdak: And that's simply Official 1 incorrect.

Justice Gorsuch: And -- and you -- and you put that together with the fact the government's unable to point to a single circumstance in which it's ever waived the sham-marriage requirement, and it -- it's starting to look pretty non-discretionary. I think that's the nature of the argument.

Colleen R. Sinzdak: The question under (b)(2) is whether Congress has specified that a decision is in the discretionary authority of the Secretary.

Justice Gorsuch: Right. But that's -- that's the question.

Colleen R. Sinzdak: There's just no --

Justice Gorsuch: I mean, you're stating the question rather than giving the answer. So help me with the answer.

Colleen R. Sinzdak: Sure. The answer is that Section 1155 makes the decision whether to revoke discretionary.

Justice Gorsuch: Mm-hmm.

Colleen R. Sinzdak: So, because the statute makes it discretionary, the fact that the agency Official 1 has always exercised it in one particular direction doesn't have anything to do with the applicability of the review bar.

Justice Gorsuch: Got it. Next --

Justice Sotomayor: Can you imagine -- I'm sorry.

Justice Gorsuch: I'm -- I'm sorry. I'll finish it real quick.

Justice Sotomayor: Go ahead.

Justice Gorsuch: The -- the case -- cases below which you cite and rely on have this broad reading of -- of the bar. But many of them, including the Eleventh Circuit, also permit review on an allegation of procedural error, including, it seems, procedural error of regulations that the -- the agency's adopted itself. Where do you stand on whether those decisions are reviewable?

Colleen R. Sinzdak: That's right. There is something of a circuit dispute. It's not implicated here. I -- I -- I think that we think that procedural errors are similarly foreclosed by the discretionary relief bar.

Justice Gorsuch: So, even if the Official 1 government completely abandons its existing procedures, ignores them willy-nilly, that's not reviewable in the government's view?

Colleen R. Sinzdak: If we're talking about a procedural error. And --

Justice Gorsuch: Yes.

Colleen R. Sinzdak: -- here, I'm setting aside constitutional claims --

Justice Gorsuch: Yes.

Colleen R. Sinzdak: -- which I think go in at least into a different basket, then --

Justice Gorsuch: I'm talking about procedural errors.

Colleen R. Sinzdak: -- yes. I think a judicial review bar, the way that it works is to bar claims that the government has made a mistake, including in that way.

Justice Gorsuch: So, if the government makes a mistake by throwing all the papers up in the air and say, we're going to -- we're -- we're going to revoke the pile that lands over there, despite all of our fine-tuned regulations --

Colleen R. Sinzdak: I --

Justice Gorsuch: -- that the bar on Official 1 judicial review applies?

Colleen R. Sinzdak: I think that when Congress enacts judicial review bars, it assumes that the agency is not going to behave like a monster or --

Justice Gorsuch: I would have thought. But you're -- you're telling me that they can.

Colleen R. Sinzdak: I -- I'm telling you that Congress has made the decision that it does not think that kind of behavior is going to happen, or at least that it's going to be such a fringe case that the benefits of barring judicial review are going to be worth it.

Justice Gorsuch: Got it. Thank you. I'm sorry.

Justice Kagan: You said that you didn't know of a case in which revocation wasn't the decision, but do -- but you also said you didn't know of a policy that made revocation automatic. Is that what you said?

Colleen R. Sinzdak: Yes. So I think there's a couple of things here. First of all, USCIS does not keep records of times that it decided not to revoke. Official 1 So I'm not sure that I would be aware if there were these non-revocations --

Justice Kagan: Okay. I was really asking about the second half of that. You said you were not aware of any policy that revocation was automatic.

Colleen R. Sinzdak: That's right. It is not --

Justice Kagan: So, in all your conversations, which I imagine you -- you had, with the people who are implementing this law, they said, we -- we don't have a policy that revocation is automatic. We think that we have discretion.

Colleen R. Sinzdak: I want to be clear. They believe that they have statutory discretion. Sham-marriage -- the sham-marriage bar is not one of the reasons for automatic revocation. Those reasons are set out --

Justice Kagan: I -- I understand. We're talking about, in practice, do they think of themselves as having a policy of yes, of course, we would always revoke? Or do they think of themselves as having something like: Well, of course, we would usually revoke, but we Official 1 retain the right to not revoke in certain circumstances?

Colleen R. Sinzdak: I think that it's exactly what we said in our brief, which is that they do strive to revoke when they determine that there has been a sham-marriage determination. They're not required to do so by statute. And that's dispositive with respect to the application of the judicial review bar. But I do think that they are -- where they find sufficient evidence, they are revoking.

Justice Kagan: So what you're saying is that there really are no set of circumstances in which they would say, in this case, because of the peculiarities of this case, we're not going to revoke?

Colleen R. Sinzdak: I -- I can't say that there would never be that circumstance. They have not -- they -- they -- when I have spoken to them, what they have said is that, in general, if they do find sufficient evidence, they will revoke. But let me just, again --

Justice Kagan: Well, I guess, I -- Official 1 I -- I -- you know, the "in general" in that sentence, is it in general, or is it always? Like, when you talk to them, do they say: Of course, we always revoke?

Colleen R. Sinzdak: Well, I think, quite honestly, the problem is that this is being done by individual adjudicators who have been given discretion under the statute. And so what they are telling -- telling me is that, to their knowledge, where there are -- the evidentiary burden is satisfied, the agency generally is going to revoke if it determines that there has been a sham marriage but not that the statute requires it. And that's the key -- that's the key question. And I just want to make clear, because I think it's getting a little fuzzy, we're looking at discretionary authority, and -- and so if I can just give kind of my own child hypothetical. If I tell my daughter that she may have dessert after dinner every night, she has discretionary authority to decide whether to have dinner -- whether to have dessert. As a practical matter, she is going to eat dessert every single night. Official 1 (Laughter.)

Colleen R. Sinzdak: I can assure you of that. But I have given her discretionary authority. And so, if there was a judicial review bar, it would cover.

Justice Kagan: But -- but your daughter would be able to tell you: I have a policy of giving -- of having dessert every night. (Laughter.)

Justice Kagan: So I'm asking, do they have a policy of never -- of always revoking?

Colleen R. Sinzdak: I -- I think what you have seen is there is -- it's not an automatic grounds for revocation. I -- I have not -- the -- the agency could not point me to a case where they have decided not to revoke. I -- I -- what I'm concerned about, and I don't want to misrepresent to you, is whether there's some sort of unwritten policy. I don't know whether the adjudicators all sort of sit around and say, of course, because 1154(c) seemed to have been really, really important to Congress, we really do --

Justice Kavanaugh: How -- Official

Colleen R. Sinzdak: -- always revoke. I just don't know.

Justice Kavanaugh: How many decision makers are there?

Colleen R. Sinzdak: There are many. I do not know the exact number.

Justice Jackson: Do you agree that Bouarfa could obtain judicial review by refiling a petition in this case? The government's not going to pop up and say if he tries to do that, no?

Colleen R. Sinzdak: That's correct. He might not need to if he does -- sorry, it's a -- Bouarfa is a she.

Justice Jackson: She. Excuse me.

Colleen R. Sinzdak: She -- no, my --

Justice Jackson: Sorry.

Colleen R. Sinzdak: She -- if she refiles and the -- and the agency tooks a -- takes a fresh -- since she has refiled, if the agency takes a fresh look at the facts or if she were to submit additional evidence, the agency could, of course, change its mind. But, if it did not, then, yes, judicial review would be available.

Justice Jackson: Then she could get Official 1 review judicial review at that point? All right. The applicability of the judicial review bar in 1252 it seems to me is a threshold determination that hasn't been briefed here. So, if we agree with you that the discretionary nature -- about the discretionary nature of the revocation provision, would you have any problem with a line that expressly preserves that threshold question?

Colleen R. Sinzdak: I don't think that it's a threshold question because I think Congress was quite clear here in terms of the language of (b), which says that it applies regardless of whether the judgment, decision, or action is made in removal proceedings. I haven't been able to think of another way to read that line. I --

Justice Jackson: No, I mean, you -- you -- you -- you think the issue comes out in the government's favor, but, clearly, it's a threshold question. I mean, we have -- we -- we -- we would have to decide whether 1252 applies. And my concern is that by just jumping Official 1 to your conclusion -- let's say I, for the purpose of this, agree with you that this is a discretionary decision under 1154 or what -- 1155. We only get to precluding judicial review through 1252, correct?

Colleen R. Sinzdak: Yes.

Justice Jackson: In other words, the -- the -- the judicial stripping -- the -- the jurisdiction stripping comes from 1252?

Colleen R. Sinzdak: That's correct. Now I don't want to hide the ball because there is jurisdiction stripping in the APA context because the APA bars review of decisions that --

Justice Jackson: Yes. Setting that aside, the parties here have been assuming that the jurisdiction stripping is coming from 1252?

Colleen R. Sinzdak: Correct.

Justice Jackson: And 1252 says you don't have jurisdiction of discretionary decisions. And so the argument here has been about whether or not this is a discretionary decision. But there's a threshold issue because it seems to me -- at least I haven't found a case in which we have applied 1252 jurisdiction stripping in the non-removal context. So, if we Official 1 were to suddenly say in agreement with you this is discretionary and, therefore, there's jurisdiction stripping under 1252, we would be assuming that 1252 applies in this context. And so I'm asking you -- you know, your counsel on the other side says, yes, we're all over here looking at the nature of this. Is it discretionary? But you should at least make clear that there is this threshold issue and preserve it because we have not briefed it. Is the government on board with at least that little -- even though I know you think you win.

Colleen R. Sinzdak: Okay.

Justice Jackson: Okay.

Colleen R. Sinzdak: I will happily take the win in this case --

Justice Jackson: Yes.

Colleen R. Sinzdak: -- with the knowledge that in the future, I will win on this other question. (Laughter.)

Justice Jackson: Fine. Okay. Thank you.

Justice Kavanaugh: But you don't Official 1 think we should reserve it, right?

Colleen R. Sinzdak: I -- I -- I don't think there's any --

Justice Kavanaugh: Because there's no -- yeah.

Colleen R. Sinzdak: -- ambiguity in the text.

Justice Kavanaugh: I don't --

Justice Sotomayor: Counsel --

Justice Jackson: But we have to decide it. I mean, I'm just saying I don't want the answer to this question to necessarily decide -- and there's a -- there's a cert petition, I understand, that's coming up that's asking just this question. Amicus here says this is a separate question. We don't have to -- you all haven't briefed the answer to this question, correct?

Colleen R. Sinzdak: That's correct.

Justice Jackson: Okay.

Justice Sotomayor: Justice Gorsuch's hypothetical would give rise to a constitutional challenge, wouldn't it?

Colleen R. Sinzdak: I --

Justice Sotomayor: That if -- if the Official 1 INS just decided to throw the pile of applications on the floor?

Colleen R. Sinzdak: I -- I suspect that the non-citizen would raise a due process contention. I think they would then have to deal with Munoz. And I also want to be clear here there is division in the circuits regarding whether constitutional claims are reviewable in the revocation context because there is judicial review available after the denial of a visa petition, so this isn't a situation --

Justice Gorsuch: What's your view on that?

Colleen R. Sinzdak: The government has not taken a position.

Justice Gorsuch: The government has no position on whether an individual can raise a constitutional claim about a -- a -- a -- a violation in -- in revocation?

Colleen R. Sinzdak: A non-citizen certainly can raise a constitutional claim after the denial of a -- visa petitions.

Justice Gorsuch: After the denial of the visa at the end of this process, which, as your friend points out, is a continuing process, Official 1 but not after the revocation decision itself? That's the government's view?

Colleen R. Sinzdak: It -- it -- I -- no. The government has not taken --

Justice Gorsuch: Not taken a view.

Colleen R. Sinzdak: -- a position on that.

Justice Gorsuch: You're not going to -- we don't know?

Colleen R. Sinzdak: I'm not going to take a position on that. I --

Justice Gorsuch: Wait for coming attractions?

Colleen R. Sinzdak: -- I -- I would note, Justice --

Justice Gorsuch: Don't you think that's an important thing for us to know in -- in terms of interpreting the scope of this, to say, if we're going to insulate substantive and procedural determination -- questions, arbitrary-and-capricious-type decisions, the throwing the papers up in the air, and perhaps that's what happened here, we don't know for all we know, don't you think it's important for us to understand that whether you'd really even bar constitutional questions? Official

Colleen R. Sinzdak: Justice Gorsuch, the Eleventh Circuit itself has treated these as separate issues because it has actually held that constitutional claims are reviewable. But, of course, we're up on a -- defending a decision in which it said that these claims are not reviewable.

Justice Gorsuch: If you agree that it's reviewable at the end of the process, the visa process, why wouldn't the same be true here? This question of the sham-marriage determination, would be -- would it be reviewable at the end of -- at the end of the process?

Colleen R. Sinzdak: If the agency does not --

Justice Gorsuch: Mm-hmm.

Colleen R. Sinzdak: -- reach a different outcome, yes.

Justice Gorsuch: Mm-hmm. Okay. So it's reviewable at the beginning. It's reviewable at the end. You're just saying this one's not reviewable in the middle?

Colleen R. Sinzdak: That's correct.

Justice Gorsuch: And on Official 1 constitutional claims, we don't know? Wait?

Colleen R. Sinzdak: That's correct.

Justice Gorsuch: Okay. Got it.

Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito, anything further? No? Justice Jackson -- oh, Justice Barrett? Thank you, counsel.

Colleen R. Sinzdak: Thank you.

Chief Justice Roberts: Rebuttal, Mr. Deger-Sen? REBUTTAL ARGUMENT OF SAMIR DEGER-SEN ON BEHALF OF THE PETITIONER MR. DEGER-SEN: Thank you, Your Honor. Four quick points. So I think the key thing that we heard again was that they strive to revoke. And what "strive to revoke" I understand means is we try to find everyone, and when we find someone, we revoke. In the real world, they are interpreting and administering the statute in exactly the way we're describing. So why -- and, again, that's not going to be enough, but I think it's good evidence Official 1 that, in fact, this is the right way to read the statute. And the right way to read the statute is the way we've been describing, which is 1154(c) doesn't just apply on the first day; it applies the day after. And ordinary English often connotes that. So, as I gave the example, no article should be approved for publication if there's evidence of plagiarism. I can give you a few more examples. No person shall be approved for TSA pre-check if they lied on the application. No ballot proposition shall be listed if there are less than a hundred signatories. No lawyer shall be licensed if they've committed a felony. In all of these situations, no one seriously thinks that the obligation is on the first day and no -- and -- and no further, that if they find out you lied on your TSA application, that they don't have to revoke approval. You can still go on and be approved, or that a lawyer can just continue to be licensed, or that the ballot proposition has to go ahead and, you know, be voted on in the future even though, in fact, there were not enough signatories. Official 1 Routine error correction that happens the next day is subsumed within the idea that something can't initially be approved. And ordinary English reflects that. And, as this Court said in Campos-Chaves, there's no -- you know, there's no canon of construction against reading, you know, and using common sense and construing laws what -- saying what they obviously mean. That's what this obviously connotes. That's why the government administers it this way. The government believes that Congress enacted a sham-marriage bar that was this fundamental restriction that was so important it couldn't even -- an application couldn't even get off the ground. The idea that then the very next day, Congress would have thought, actually, it's optional, the agency has discretion, it can get to do whatever it wants, and the thing which triggers the agency's discretion is the agency made a mistake. Because the agency made a mistake, suddenly, it's important for the agency to get discretion. And if you think that reliance interests are at stake, the government has Official 1 always said there are no reliance interests in this document. And if you care about reliance interests, then you want our results because, if people have been in the system for a while, the result here of -- of accepting the government's view is that those are the people that are going to have their revocations not judicially reviewed and get kicked back to the beginning of the process. And I do think the question about the fraud bar is important. The government is basically saying, well, we can, we have discretion to administer this at the back end, but Congress never told us we have to. Congress never said the sham marriage is -- is mandatory. But its longstanding position has been that the sham-marriage bar is mandatory, not for revocations, they get to revoke, but we can't give you benefits. In the real world, we can never give you benefits because that's obviously what Congress meant. Congress thought this is the threshold requirement. Of course, Congress would have thought it would carry over to the day after approval and would carry over further into the Official 1 process. On the constitutional question issue, there is -- the logic of the government's position, because there is no preservation for constitutional or legal claims, we're not in a removal proceeding. So subparagraph (D) doesn't apply. So as -- as I understand the logic of the government's position is that it is allowed to violate the Constitution with impunity in the context of revocation and that it's fine because you can go ahead and refile later and that -- this is my final point -- refiling later is not an adequate substitute. It is -- I -- I've never known a situation where years of delay is considered to just be equivalent, especially when you're living under uncertainty of whether you're family's going to be unified. And for lots of people, that can be, as this Court said in Tesoro, a decade, a decade and a half, two decades of just not -- of -- of -- of, you know, being waiting in line, suddenly having your -- your petition revoked, going back to the beginning and starting again. That is a life-altering, life-destroying result. Official 1 So there are real stakes in this case, but there are no stakes on the government's side. There's no streamlining. If, you know, the government -- the -- the -- the streamlining is a product of the government's own view in this case. If there was judicial review straight out, we never would have had to file in the first place. So there is literally no reason to support the government's -- no logical reason to support the government's view in this case.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:06 p.m., the case was submitted.)