Judicial Review
Discretionary Agency Decisions
After Chevron Deference
Circuit Split
8 U.S.C. §1252(a)(2)(B)(ii) bars judicial review of decisions “made discretionary by legislation.” Kucana v. Holder, 558 U. S. 233, 246–247.
(…) Nor is it unreasonable to suggest that Congress created a system in which a sham-marriage determination is subject to judicial review when an agency denies a visa petition but not when the agency revokes a prior approval. That distinction “reflects Congress’ choice to provide reduced procedural protection for discretionary relief.” Patel v. Garland, 596 U. S. 328, 345.
(…) 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,” Patel, 596 U. S., at 347.
The Secretary points to 8 U. S. C. §1155 as the source of the agency’s revocation authority; that provision states that the Secretary “may, at any time,” revoke approval of a visa petition “for what he deems to be good and sufficient cause.” The issue we address today is whether revocation under §1155 qualifies as a decision “in the discretion of” the Secretary such that it falls within the purview of a separate statute §1252(a)(2)(B)(ii)—that strips federal courts of jurisdiction to review certain discretionary actions. We hold that it does.
Through §1252(a)(2)(B), Congress stripped federal courts of jurisdiction to review two categories of discretionary agency decisions. First, Congress precluded review of “any judgment regarding the granting of relief under” five listed statutory provisions that empower the Attorney General to grant certain relief to noncitizens. §1252(a)(2)(B)(i). Second, in the provision at issue here, Congress barred review of “any other 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 the Attorney General or the Secretary.” §1252(a)(2)(B)(ii).
We granted certiorari to resolve a question that has split the courts of appeals: Whether federal courts have jurisdiction to review the Secretary’s revocation of the agency’s prior approval of a visa petition.
It is clear on the face of §1155 that the revocation provision is a quintessential grant of discretion to the Secretary. Once again, that provision provides that the Secretary “may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any visa petition.” §1155. As “this Court has ‘repeatedly observed,’” “‘the word “may” clearly connotes discretion.’” Biden v. Texas, 597 U. S. 785, 802 (2022) (quoting Opati v. Republic of Sudan, 590 U. S. 418, 428 (2020)). Moreover, here, Congress has in no way prescribed how that discretion must be exercised. There are no conditions that the Secretary must satisfy before he can revoke the agency’s approval; he may do so “at any time,” for whatever reason “he deems to be good and sufficient cause.” That broad grant of authority “fairly exudes deference” to the Secretary and is similar to other statutes that we have held “‘commit’” a decision “‘to agency discretion.’” Webster v. Doe, 486 U. S. 592, 600 (1988) (holding that a statute permitting the agency to terminate an employee whenever it “‘deems such termination necessary or advisable in the interests of the United States’” was discretionary).
That discretion is a two-way street. By granting the Secretary discretion to revoke the agency’s approval of visa petitions, Congress has also vested the Secretary with discretion to decline to revoke an approval the agency previously gave. So, if the Secretary determines that the agency’s approval of a visa petition was erroneous, he can revoke that approval—or he can let the error stand. As a general matter, then, this discretion may work to the benefit of visa-petition beneficiaries, since rather than tying the agency’s hands by forcing revocation, Congress created “room for mercy.” Patel v. Garland, 596 U. S. 328, 331 (2022).
Nor is it unreasonable, as Bouarfa protests, to suppose that Congress created a system in which a sham-marriage determination is reviewable if it is the reason for the agency’s denial of a petition, but not if it is the reason for the agency’s revocation. That distinction “reflects Congress’ choice to provide reduced procedural protection for discretionary relief.” Patel, 596 U. S., at 345. In the interest of finality, Congress vested the Secretary with the discretion to allow the agency’s mistakes to inure to the benefit of the noncitizen. At the same time, Congress did not want this discretion to open up a new source of litigation. Cf. Guerrero-Lasprilla v. Barr, 589 U. S. 221, 230 (2020) (observing Congress’s goal of “‘consolidating judicial review of immigration proceedings into one action’” (quoting INS v. St. Cyr, 533 U. S. 289, 313 (2001)). “The context in which” the agency makes the sham-marriage determination thus “explains the difference in protection afforded.” Patel, 596 U. S., at 345.
(U.S. Supreme Court, Dec. 10, 2024, Amina Bouarfa v. Alejandro Mayorkas, Secretary of Homeland Security, Docket No. 23-583, J. Jackson, Unanimous)
