The U.S. Supreme Court is looking at a decision from the Eleventh Circuit court in which the court determined that federal courts lack the authority to review the revocation of a previously approved visa petition of a Palestinian man. The Eleventh Circuit found that the man’s previous marriage skirted immigration laws.
In July 2023, the circuit court stated that under the Immigration and Nationality Act, federal judges are not allowed to question what the appeals court deemed a discretionary decision to withdraw the approved visa petition filed by a U.S. citizen on behalf of her husband. The visa petition was revoked two years after it was approved when immigration authorities found out that the husband’s previous marriage was fraudulent. This finding invoked the INA’s sham marriage bar.
The man’s wife contested the ruling. She argued that had DHS denied her application from the start, she would still have access to judicial review. With the Eleventh Circuit’s ruling, she lost that right, and her family is permanently separated.
The Eleventh Circuit’s decision underlines the existing split among the circuits regarding the reviewability of visa petition revocations. Unlike the Eleventh Circuit, the Sixth and Ninth Circuits maintain that such revocations are subject to judicial review when they involve nondiscretionary criteria.
Both the Biden administration and DHS urged the Supreme Court to reject the petition. They assert that the Eleventh Circuit’s ruling is in line with the prevailing view across circuits. They also argued that the decision to revoke the Palestinian man’s visa petition was discretionary. Further they argued, under the INA, the DHS Secretary has the authority to do so.
The Eleventh Circuit’s ruling caused concern about possible loopholes in visa petition revocation procedures that could sidestep judicial review. Ultimately, the court deemed the decision discretionary and therefore not reviewable.
As always, we actively monitor updates to U.S. immigration policy and work with our clients every step of the way. If you have any U.S. immigrations related questions, please reach out to us.