The Supreme Court confirmed in 2024 that discretionary immigration decisions specified by statute are unreviewable. The bar's text still speaks of a decision or action, which is why delay claims usually survive it.
The government's most frequent jurisdictional defense in immigration delay cases rests on 8 U.S.C. § 1252(a)(2)(B)(ii). It bars 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 that official. In Bouarfa v. Mayorkas, No. 23-583 (U.S. Dec. 10, 2024), the Supreme Court applied the bar to a decision revoking an approved visa petition. This article explains what the decision held and why it does not by itself defeat a claim that an application has simply not been decided.
What Bouarfa decided
A U.S. citizen's approved I-130 petition for her husband was revoked after the agency concluded that a prior marriage of his had been a sham. The revocation rested on 8 U.S.C. § 1155, which allows the Secretary to revoke an approved petition "at any time, for what he deems to be good and sufficient cause". The Court held, unanimously, that this language specifies the authority to be discretionary, so § 1252(a)(2)(B)(ii) bars judicial review of the revocation, even where the underlying ground is one the agency was required to apply. The decision builds on Kucana v. Holder, 558 U.S. 233 (2010), which held that the bar covers only discretion conferred by statute, not discretion an agency grants itself by regulation.
Why the bar is usually read not to reach delay
The bar applies to a "decision or action". A delay claim challenges the absence of a decision. Courts have generally held that the duty to decide within a reasonable time, drawn from 5 U.S.C. § 555(b) and enforced through § 706(1) and 28 U.S.C. § 1361, is not itself discretionary even when the decision eventually made will be. The Seventh Circuit's decision in Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), is frequently cited for that distinction. The argument and its variations are developed in INA § 242(a)(2)(B)(ii): The Discretionary-Action Bar and Why It Does Not Reach Delay.
Where the line is contested
The distinction is harder to hold where the statute makes the pace or order of processing discretionary, rather than the outcome. The government argues in those cases that a challenge to the speed of processing is a challenge to a discretionary "action". District courts have not answered that argument uniformly, and the result depends on the precise statutory wording, not on general principles. By contrast, where a statute sets a timeline, the delay claim is stronger: for investors removing conditions on residence, the statute directs a determination within a fixed period after the petition or interview; see I-829 Mandamus. How future investment thresholds affect pending investors is discussed in The 2027 EB-5 Investment Increase.
What Bouarfa means for a petitioner
- A claim that seeks to undo a discretionary decision, such as a revocation, is likely barred.
- A claim that seeks a decision on an application that has not been decided is ordinarily not barred, but must still satisfy the APA and the TRAC factors.
- A claim that attacks the order or speed of processing under a statute that commits that order to the Secretary's discretion faces a contested argument.
- Constitutional claims and questions of law raised on a petition for review are preserved by § 1252(a)(2)(D), a separate path from district-court mandamus.
For family petitions specifically, see I-130 Mandamus. For the related review bar in the TPS statute, read broadly in 2026, see Mullin v. Doe.
Key points
- Bouarfa v. Mayorkas (2024) held that revocation of an approved petition under 8 U.S.C. § 1155 is discretionary and unreviewable under § 1252(a)(2)(B)(ii).
- Kucana v. Holder (2010) limits the bar to discretion specified by statute.
- The bar addresses a "decision or action"; courts generally hold that it does not reach a failure to decide.
- Claims about the pace or order of processing under statutes that commit those matters to discretion remain contested.
- Statutory timelines strengthen a delay claim.
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