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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12429
____________________
AMINA BOUARFA,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
DIRECTOR, U.S. CITIZENSHIP & IMMIGRATION SERVICES
(USCIS),
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cv-00224-WFJ-AEP
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2 Opinion of the Court 22-12429
____________________
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and
PROCTOR,* District Judge.
WILLIAM PRYOR, Chief Judge:
This appeal requires the Court to decide whether the district
court had subject-matter jurisdiction over a complaint about the
revocation of the approval of a visa petition. See
8 U.S.C. § 1155.
The Immigration and Nationality Act bars judicial review of certain
discretionary immigration decisions.
Id. § 1252(a)(2)(B)(ii). Amina
Bouarfa filed a petition to have her husband classified as her imme-
diate relative so that he would be eligible to adjust his immigration
status. The Secretary of the Department of Homeland Security ap-
proved the petition but later revoked that approval because
Bouarfa’s husband had entered a previous marriage for the purpose
of evading immigration laws. Bouarfa sought judicial review of the
Secretary’s marriage-fraud determination. The district court dis-
missed her complaint for lack of subject-matter jurisdiction be-
cause it determined that Bouarfa’s complaint challenged a discre-
tionary decision. We affirm.
I. BACKGROUND
Amina Bouarfa is a United States citizen. Her husband, Ala’a
Hamayel, is not. In 2014, Bouarfa submitted Form I-130 to the
* Honorable R. David Proctor, United States District Judge for the Northern
District of Alabama, sitting by designation.
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22-12429 Opinion of the Court 3
Department of Homeland Security to petition to have Hamayel
classified as her immediate relative for purposes of the Immigration
and Nationality Act. See
8 U.S.C. §§ 1151(b)(2)(A)(i),
1154(a)(1)(A)(i);
8 C.F.R. § 204.1(a)(1) (2022).
The Secretary has delegated many powers under the Act to
United States Citizenship and Immigration Services within the De-
partment. See
8 C.F.R. §§ 2.1, 100.1 (2022);
6 U.S.C. § 271. The par-
ties do not dispute the legal authority of the officials who dealt with
Bouarfa’s petition. References in this opinion to the Secretary en-
compass all officials relevant to Bouarfa’s petition.
The Secretary approved the petition in 2015. Two years
later, the Secretary notified Bouarfa of an intent to revoke the ap-
proval of the petition. See
8 U.S.C. § 1155 (permitting the Secretary
to revoke the approval of a petition). The Secretary stated that the
Department had determined that Hamayel entered into one of his
previous marriages solely for the purpose of evading immigration
laws. The Act prohibits the approval of a petition to benefit an alien
who has entered a sham marriage.
Id. § 1154(c)(2).
Boaurfa responded to the notice and attempted to rebut the
evidence the Secretary cited. Unpersuaded, the Secretary revoked
the approval of Bouarfa’s petition. Bouarfa unsuccessfully appealed
to the Board of Immigration Appeals.
Bouarfa filed a complaint in the district court against the Sec-
retary and the Director of Citizenship and Immigration Services.
She challenged the officials’ actions as arbitrary and capricious and
stated that “[w]ere the agency to vacate its decision,” she would
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4 Opinion of the Court 22-12429
seek injunctive relief and a writ of mandamus compelling the
agency to adjudicate her Form I-130. She alleged that the adminis-
trative record compels the conclusion that Hamayel’s previous
marriage was not a sham.
The Secretary and Director moved to dismiss the complaint
for lack of subject-matter jurisdiction. See FED. R. CIV. P. 12(b)(1).
They argued that Bouarfa was “seeking . . . to review an unreview-
able revocation decision.” They cited a provision of the Act that
bars judicial review of certain discretionary decisions. See
8 U.S.C.
§ 1252(a)(2)(B)(ii). They also cited unpublished decisions by this
Court, as well as published decisions by our sister circuit courts,
that state that the revocation of a visa under section 1155 is a dis-
cretionary decision.
The district court granted the motion to dismiss. It deter-
mined that a revocation under section 1155 is a discretionary action
to which the section 1252 jurisdictional bar applies. It agreed with
the officials that “[a]lthough [Bouarfa] attempts to distinguish the
basis of the revocation decision from the revocation decision itself,
the relief she seeks betrays that there is no true difference between
the two.” But it also stated that an initial denial of a petition based
on a marriage-fraud finding would be a reviewable, non-discretion-
ary decision and expressed concern that there was a “loophole”
through which the Department “could evade judicial review by
granting a visa petition it should have denied outright and then im-
mediately revoking its approval.”
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22-12429 Opinion of the Court 5
II. STANDARD OF REVIEW
“We review subject matter jurisdiction de novo.” Mejia Rodri-
guez v. U.S. Dep’t of Homeland Sec.,
562 F.3d 1137, 1142 (11th Cir.
2009).
III. DISCUSSION
We divide our discussion into two parts. First, we explain
that judicial review of a revocation decision under section 1155 is
barred. Second, we explain that judicial review of the cited basis for
the revocation decision—the determination that Hamayel had
committed marriage fraud and that the marriage fraud served as
good and sufficient cause to revoke the approval—is also barred.
A. Courts Lack Jurisdiction over a Section 1155 Revocation.
The threshold issue is whether section 1252 bars judicial re-
view of the revocation of a petition approval under section 1155.
Bouarfa concedes that the decision to revoke an approval is not
subject to judicial review. Although the district judge erroneously
treated our unpublished opinions as precedential, we now join
most of our sister circuits in holding that a section 1155 revocation
is a discretionary decision not subject to judicial review. See Ber-
nardo ex rel. M & K Eng’g, Inc. v. Johnson,
814 F.3d 481, 482 (1st Cir.
2016); Nouritajer v. Jaddou,
18 F.4th 85, 88 (2d Cir. 2021); Jilin Pharm.
USA, Inc. v. Chertoff,
447 F.3d 196, 205 (3d Cir. 2006); Polfliet v. Cucci-
nelli,
955 F.3d 377, 383 (4th Cir. 2020); Ghanem v. Upchurch,
481 F.3d
222, 223 (5th Cir. 2007); Mehanna v. U.S. Citizenship & Immigr.
Servs.,
677 F.3d 312, 313 (6th Cir. 2012); El-Khader v. Monica,
366
F.3d 562, 563 (7th Cir. 2004); Abdelwahab v. Frazier,
578 F.3d 817,
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6 Opinion of the Court 22-12429
821 (8th Cir. 2009); Green v. Napolitano,
627 F.3d 1341, 1343 (10th
Cir. 2010); iTech U.S., Inc. v. Renaud,
5 F.4th 59, 68 (D.C. Cir. 2021).
But see Jomaa v. United States,
940 F.3d 291, 295–96 (6th Cir. 2019)
(holding that although revocation can be discretionary, a revoca-
tion primarily based on discovery of a mistake was “a nondiscre-
tionary act of error correction”); ANA Int’l Inc. v. Way,
393 F.3d 886,
894 (9th Cir. 2004) (holding that the authority to revoke the ap-
proval of a petition is bounded by objective criteria and therefore
subject to judicial review).
The Administrative Procedure Act provides that a person
adversely affected by final agency action is entitled to judicial re-
view.
5 U.S.C. §§ 702, 704. “Although the [Administrative Proce-
dure Act] independently does not confer subject-matter jurisdic-
tion, 28 U.S.C. [section] 1331 confers jurisdiction on federal judges
to review agency action under federal-question jurisdiction.” Perez
v. U.S. Bureau of Citizenship & Immigr. Servs.,
774 F.3d 960, 965 (11th
Cir. 2014). Where a statute bars judicial review or agency action is
committed to agency discretion by law, the Administrative Proce-
dure Act does not permit judicial review. Id.; see
5 U.S.C. § 701(a).
“When a statute is reasonably susceptible to” multiple interpreta-
tions, we apply a “presumption favoring judicial review of admin-
istrative action.” Kucana v. Holder,
558 U.S. 233, 251 (2010) (citation
and internal quotation marks omitted). But that presumption may
be rebutted by “clear and convincing evidence.”
Id. at 252 (citation
omitted).
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Two statutory provisions govern this jurisdictional issue.
The Immigration and Nationality Act bars judicial review of “any
. . . decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under this
subchapter to be in the discretion of” those officials.
8 U.S.C.
§ 1252(a)(2)(B)(ii). Section 1155 is part of that subchapter. See
id. ch.
12, subch. II. Section 1155 states that the Secretary “may, at any
time, for what he deems to be good and sufficient cause, revoke
the approval of any petition approved by him under section 1154
of this title.”
Id. § 1155.
Section 1155 makes clear that the Secretary’s authority to re-
voke the approval of a petition is discretionary. The clear import of
the terms “may,” “at any time,” and “what he deems to be good
and sufficient cause” is that the Secretary is free to exercise his au-
thority to revoke the approval of a petition as he sees fit. Cf. Brasil
v. Sec’y, Dep’t of Homeland Sec.,
28 F.4th 1189, 1192–93 (11th Cir.
2022) (explaining that the provision that “[t]he Attorney General
may, when the Attorney General deems it to be in the national in-
terest, waive” certain requirements clearly specifies that the waiver
decision is discretionary). Because section 1155 is unambiguous,
the presumption in favor of judicial review when a statute is “rea-
sonably susceptible to” multiple interpretations, Kucana,
558 U.S.
at 251 (citation omitted), does not come into play.
B. Courts Lack Jurisdiction over the Basis for a Section 1155 Revocation.
Bouarfa contends that although the decision to revoke the
approval of her petition was discretionary, “the underlying basis for
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8 Opinion of the Court 22-12429
the agency’s action involve[d] non-discretionary decision-making”
that the district court may review. In particular, she cites the “ap-
plication of [section] 1154(c),” the marriage-fraud bar, to her peti-
tion. She frames the issue as whether the revocation “insulates the
agency from judicial review of agency action that is otherwise sub-
ject to review.” We disagree.
The Act makes clear that revocation is discretionary—no
matter the basis for revocation. See
8 U.S.C. § 1155. The only stat-
utory predicate for revocation is that the Secretary deems there to
be good and sufficient cause.
Id. The statute does not require that
the Secretary make any finding of fact or conclusion of law to sup-
port that determination. Indeed, nothing in the statute requires the
Secretary to revoke the approval of a petition in any circumstance,
even when the Department later determines that the approval was
in error. See El-Khader,
366 F.3d at 568; contra Jomaa, 940 F.3d at 296
(holding that a revocation after the discovery of a mistake was a
non-discretionary act of “error correction”). Neither does anything
in the statute prohibit the Secretary from revoking the approval of
any petition.
The parties agree that the denial of a petition based on sec-
tion 1154(c), which provides that “no petition shall be approved” if
the alien previously committed marriage fraud, is a non-discretion-
ary decision that is subject to judicial review. We have previously
reviewed the denial of an I-130 petition, although our decision did
not explicitly discuss the non-discretionary nature of that decision.
See Mendoza v. Sec’y, Dep’t of Homeland Sec.,
851 F.3d 1348, 1353–56
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22-12429 Opinion of the Court 9
(11th Cir. 2017). Bouarfa contends that because the marriage-fraud
determination would have been reviewable if her petition had been
denied outright, it ought to remain reviewable regardless of the
context in which it was made.
The fundamental flaw in Bouarfa’s argument is that it goes
to the Secretary’s decision how to exercise his discretion, unlike the
types of claims we have held are subject to judicial review. Section
1252 does not foreclose judicial review of all claims connected to a
discretionary decision. We have identified two types of claims that
are not subject to the jurisdictional bar even when the challenged
action relates to a discretionary decision. Bouarfa’s claim is not
within those categories but is instead analogous to a claim that we
have held falls under the jurisdictional bar.
The first type of claim courts may review is a claim that the
Secretary erred when he made a non-discretionary determination
that is a statutory predicate to his exercise of discretion. In Mejia
Rodriguez, we explained that although the ultimate decision
whether to grant an alien temporary protected status is discretion-
ary and not subject to judicial review, the Secretary’s determina-
tion about the alien’s statutory eligibility for that discretionary re-
lief is a non-discretionary decision. See
562 F.3d at 1143. By statute,
the Secretary cannot grant temporary protected status unless he
first determines that the alien is statutorily eligible.
Id. at 1140 &
n.5 (citing 8 U.S.C. § 1254a(c)). So, when the Secretary denied tem-
porary protected status because he determined that the alien was
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statutorily ineligible, the district court had subject-matter jurisdic-
tion to review the eligibility determination. Id. at 1144.
Second, courts may review a claim that the Secretary failed
to follow the correct procedure in making a discretionary decision.
In Kurapati v. United States Bureau of Citizenship & Immigration Ser-
vices, we determined that the district court had jurisdiction over a
claim that the Secretary failed to follow the correct procedure
when he revoked his approval of a petition.
775 F.3d 1255, 1262
(11th Cir. 2014). The Secretary does not have the discretion to ig-
nore regulations and binding precedent when he carries out the
process to reach a discretionary determination, so section 1252
does not prohibit judicial review of “the conduct of . . . administra-
tive proceedings.”
Id.
Regarding that second category of reviewable claims, we
have explained that Kurapati does not stand for the proposition that
all assertions of procedural error necessarily subject the Secretary’s
actions to judicial review. When the Secretary has exercised his dis-
cretion to deny relief and determined that an earlier procedural er-
ror was immaterial to that denial, “[a] petitioner may not sidestep
the jurisdictional bar in [section] 1252(a)(2)(B) by reframing a chal-
lenge to the agency’s denial of relief as a claim of procedural error.”
Blanc v. U.S. Att’y Gen.,
996 F.3d 1274, 1280 (11th Cir. 2021) (apply-
ing section 1252(a)(2)(B)(i), which bars review of “any judgment
regarding the granting of relief under” enumerated provisions). In
such a circumstance, “there is nothing left for us to correct.”
Id.
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A claim that the Secretary reached the wrong outcome
when he decided how to exercise his discretion stands in stark con-
trast to a claim of error in determining statutory eligibility or a
claim of procedural error. We recently held that section 1252 bars
judicial review of a claim that the Secretary erroneously applied his
own standard for determining how to exercise his discretion. In
Brasil, we explained that when a petitioner does not contend that
the Secretary failed to follow his own procedures or failed to apply
the correct standard from his binding precedent, there is nothing
for a court to review. 28 F.4th at 1194. A complaint that the Secre-
tary reached the wrong conclusion is nothing more than a claim
that the Secretary should have exercised his discretion in a different
manner. Id. at 1191–92, 1194; see Nouritajer, 18 F.4th at 89–90.
Bouarfa’s complaint, like the one in Brasil, is not subject to
judicial review. Bouarfa asserts that the Secretary reached the
wrong outcome when he determined that there was good and suf-
ficient cause to revoke the approval of her petition. To be sure, the
agency has articulated a standard to guide its evaluation of whether
good and sufficient cause exists. See In re Ho,
19 I. & N. Dec. 582,
590 (B.I.A. 1988) (explaining that there is good and sufficient cause
to revoke an approval if the evidence in the record warrants de-
nial). But as we could not review the petitioner’s claim in Brasil that
the Secretary erroneously applied the standard that guides his dis-
cretion, we cannot review Bouarfa’s complaint that the Secretary
reached the wrong conclusion in her case. The sole statutory pred-
icate for revocation is that the Secretary deem that there is good
and sufficient cause.
8 U.S.C. § 1155. That the Secretary has, in his
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12 Opinion of the Court 22-12429
discretion, created additional standards to explain what constitutes
good and sufficient cause and linked that determination in
Bouarfa’s case to the marriage-fraud provision does not alter the
bar on judicial review of the Secretary’s discretionary decision.
IV. CONCLUSION
We AFFIRM the judgment in favor of the Secretary and Di-
rector.
