With immigration being a top issue ahead of the election, the Supreme Court will decide a case that could make it more difficult for migrants to appeal immigration officials’ decisions about who can enter and stay in America. 

On Tuesday, the Supreme Court will hear arguments in Bouarfa v. Mayorkas, determining whether federal courts can review an agency’s decision to revoke a visa petition. The case could make it harder for migrants to appeal officials’ decisions about whether they can be in the country. 

The case centers around the effort by Amina Bouarfa, who is an American citizen, to get a visa for her husband, Ala’a Hamayel, in 2014. Initially, the United States Citizenship and Immigration Services approved the petition, and it appeared Mr. Hamayel was on his way to being able to live in America with his wife and children.

However, two years later, immigration officials informed Ms. Bouarfa that the petition would be revoked because they said they received evidence Mr. Hamayel had entered into a sham marriage to enter America. The allegation was supported by testimony from Mr. Hamayel’s ex-wife; however, she later retracted the claim. 

If officials received information about Mr. Hamayel’s alleged effort to skirt immigration laws through his marriage to his ex-wife, federal law would have required them to deny the petition. However, that decision could have been subject to judicial review as it was based on a nondiscretionary matter. 

Ms. Bouarfa appealed the decision to revoke the visa petition, but she was unable to convince immigration officials to reverse course. A federal district court in Florida heard Ms. Bouarfa’s case. The court upheld the decision because it found the determination to be discretionary, which Congress blocked courts from reviewing. 

The Court of Appeals for the 11th Circuit also upheld the decision to revoke the petition, citing immigration laws that allow officials to withdraw a petition for “good and sufficient cause” at any time. The court ruled that even though the petition should have been denied initially as a nondiscretionary decision, the decision to revoke it later was discretionary and, therefore, immune from review by federal courts. 

The American Civil Liberties Union, which filed an amicus brief in the case, said if the Supreme Court upholds the government’s decision, there could be “devastating consequences for noncitizens and their families.” 

“The government seeks to block federal courts from even considering whether a mistake occurred in many immigration proceedings. And, in some situations, federal courts would be precluded from reviewing even a blatant constitutional violation—such as if the agency based its decision on racial stereotyping,” the ACLU added. 

An attorney with the National Immigration Alliance, Mary Kenney, told the Sun the case could “deprive many noncitizens of the ability to get a fair and independent review” of an immigration agency’s decision. 

The Department of Homeland Security declined to comment. 

Customs and Border Patrol reports there have been around 10 million encounters with migrants at the border trying to enter America since 2021. At the end of 2023, immigration courts had a backlog of more than 3 million cases, which Syracuse University’s Transactional Records Access Clearinghouse notes is more than the number of people who live at Chicago. 

Many of those cases involve migrants who were apprehended at the border and applied for asylum. In about half of the cases over two decades through 2021, TRAC found judges either granted asylum or provided a form of immigration relief. 

Data from federal immigration officials shows more than 8,000 of the approximately 37,000 migrants held in Immigration and Customs Enforcement custody have been convicted of crimes. Meanwhile, there are 13,000 migrants convicted of crimes who have not been detained. Overall, an estimated 662,566 migrants with criminal backgrounds are in the country. 

While migrants can appeal deportation orders, Bouarfa v. Mayorkas could make immigration officials’ decisions final and make it harder for illegal migrants to stay in the country. 

With a large backlog of cases, immigration advocates have warned about the potential for officials to make mistakes when determining who can stay in the country. 

Roughly one in five migrants through the 2020 fiscal year appealed decisions made by immigration courts, the Migration Policy Institute reported. Federal courts have tended to overturn decisions due to mistakes made by officials, such as misinterpreting a statute.