Tenth Circuit Finds APA Jurisdiction to Review USCIS Decision to Terminate Refugee Status

The Tenth Circuit has determined that federal courts have jurisdiction under the Administrative Procedure Act to review USCIS’s decision to terminate refugee status.

“We first consider 8 U.S.C. § 1157(c)(4), the provision under which USCIS terminated Mukantagara’s refugee status. As we interpret it, that provision provides a two-step process. At step one, USCIS evaluates whether the noncitizen meets the statute’s eligibility requirement of not being a ‘refugee’ when admitted into the United States. At step two, USCIS has discretion to terminate the refugee status of any noncitizen who is eligible at step one. After that, we consider whether the INA’s jurisdiction-stripping provision at 8 U.S.C. § 1252(a)(2)(B)(ii) covers a district court’s review of USCIS’s eligibility determination at the above step one. We conclude that § 1252(a)(2)(B)(ii) applies only to discretionary actions and that the eligibility determination under § 1157(c)(4)’s step one is not discretionary.”

“When the INA directs immigration agencies to assess statutory eligibility criteri in a first step before exercising discretion in a second, the first step is not discretionary. Section 1157(c)(4)’s first step requires the agency to assess eligibility before deciding to terminate refugee status. Section 1157(c)(4)’s first step is nondiscretionary.“

The full text of Mukantagara v. Noem can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111366275.pdf

DC Circuit Permits APA Challenge to FAM Guidance to Move Forward

The Court of Appeal for the District of Columbia has issued a decision permitting a challenge to the Foreign Affairs Manual’s guidance that a visa can be denied if there is a “reason to believe” the applicant has previously made a material misrepresentation. The court found that this forward facing challenge to the FAM was not a challenge to a visa denial, and thus, was not covered by the doctrine of consular nonreviewability. “[W]e are not confident that Congress authorized a consular officer unilaterally to deem a person to have made willful misrepresentations and thereby trigger permanent ineligibility for a visa based only on an implicit ‘reason to believe’ standard – especially considering its decision to make that standard explicit for other categories of noncitizens posing elevated risks to national interests.”

The full text of Pietersen v. Department of State can be found here:

https://media.cadc.uscourts.gov/opinions/docs/2025/05/24-5092-2118190.pdf

Fifth Circuit finds no Jurisdiction over APA Delay Challenge Involving Pending Adjustment

The Fifth Circuit has determined that it lacks subject matter jurisdiction over a claim under the Administrative Procedure Act that an adjustment of status application has been unreasonably delayed.

The full text of Cheejati v. Blinken can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-40398-CV1.pdf

Seventh Circuit Finds No Jurisdiction to Review Delay in I-601A Waiver Application

The Seventh Circuit has determined that federal courts lack jurisdiction to review the delay in adjudication of provisional waivers of unlawful presence (Form I-601A) under the Administrative Procedure Act.  The court cited the prohibition in 8 USC 1182(a)(9)(B)(v) on federal court review of any action regarding waivers of unlawful presence.

The full text of Soni v. Jaddou can be found here: 

https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2024/D06-06/C:23-3220:J:Easterbrook:aut:T:fnOp:N:3