Judicial Review of Visa Petition Revocations: A “Precedential Cascade”

Abstract

The Secretary of Homeland Security has the power to revoke approved visa petitions pursuant to the grant of authority in 8 U.S.C. § 1155, part of the Immigration and Nationality Act (INA). The circuit courts disagree over whether the Secretary’s decisions under this provision are subject to judicial review. On April 7, 2020, the United States Court of Appeals for the Fourth Circuit, in Polfliet v. Cuccinelli, held that the Secretary’s authority under 8 U.S.C. § 1155 is discretionary. In doing so, the Fourth Circuit joined nine other circuit courts to find that visa petition revocation decisions are discretionary and, as such, 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review of the decisions. This Comment considers the impact of the 2010 Supreme Court decision, Kucana v. Holder, on the analysis of jurisdictional bars in cases like Polfliet. This Comment argues that the Fourth Circuit, in Polfliet, should have adopted the interpretive principles that the Supreme Court used in Kucana and resisted the precedential cascade.