Diana Jomaa v. United States, 940 F.3d 291

Georgina Rizk, a Lebanese national, received conditional residency after marrying Mohamed Derbass; USCIS later found that marriage to be a sham entered to evade immigration laws and denied a waiver, finding fraud.
Rizk had been still married to a prior husband, Mohamed Jomaa, when she married Derbass; USCIS found inconsistent sworn statements and no evidence of bona fide marriage.
Earlier I-130 petitions filed on Rizk’s behalf were denied under INA § 204(c) (8 U.S.C. § 1154(c)) because of the prior sham-marriage finding.
In 2015 Rizk’s U.S.-citizen daughter filed an I-130 that USCIS mistakenly approved without considering the prior fraud finding; USCIS later revoked that approval, citing § 1154(c).
The BIA affirmed the revocation; the district court found jurisdiction, concluded the revocation was not arbitrary and capricious under the APA, and dismissed the complaint under Rule 12(b)(6).
On appeal the Sixth Circuit affirmed: (1) it had jurisdiction because the revocation was a nondiscretionary error correction grounded in § 1154(c), and (2) the agency’s application of § 1154(c) was not arbitrary and capricious; constitutional claims were forfeited.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether courts have jurisdiction under 8 U.S.C. § 1252(a)(2)(B) to review revocation of an approved petition	Rizk: Revocation under § 1155 is discretionary and § 1252 bars review	Gov’t: § 1155 revocation is discretionary and outside review	Court: Jurisdiction exists because revocation here was nondiscretionary error correction grounded in § 1154(c)
Whether application of § 1154(c) to Rizk (bigamous/void marriage) was arbitrary and capricious	Rizk: § 1154(c) should not apply like in Concepcion/Christos where no actual marriage occurred	Gov’t: § 1154(c) applies to marriages entered to evade immigration laws, even if void/bigamous	Court: BIA reasonably applied § 1154(c); revocation not arbitrary or capricious
Whether reliance on unpublished or distinguishing BIA decisions undermines the agency’s decision	Rizk: Unpublished BIA decisions (and Christos/Concepcion) support excluding § 1154(c) application	Gov’t: Unpublished decisions are not controlling; long-standing BIA precedent supports application	Court: Rejection of unpublished decisions was permissible; BIA’s consistent precedent supports the decision
Whether USCIS violated First Amendment / Equal Protection by treating arranged marriage evidence as fraud	Rizk: Statements reflect cultural arranged marriage, not fraud; claims implicate religion/equal protection	Gov’t: Claims forfeited—never raised below	Court: Claims forfeited on appeal; not considered

Mehanna v. USCIS, 677 F.3d 312 (6th Cir. 2012) (§1155 revocation construed as discretionary in that context)
Kucana v. Holder, 558 U.S. 233 (2010) (jurisdiction-stripping provisions construed narrowly; discretionary determinations by statute are excluded)
Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010) (courts must read INA jurisdictional bars narrowly)
Ginters v. Frazier, 614 F.3d 822 (8th Cir. 2010) (use of “shall” in §1154 indicates nondiscretionary treatment for marriage-fraud denials)
Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir. 2008) (validity of marriage for I-130 purposes is not discretionary under §1252)
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard for agency review)
Privett v. Sec’y, Dep’t of Homeland Sec., 865 F.3d 375 (6th Cir. 2017) (nondiscretionary underlying determinations are reviewable even when connected to discretionary actions)
Ferrante v. INS, 399 F.2d 98 (6th Cir. 1968) (BIA precedent applying §204(c) to void/bigamous sham marriages)
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (courts have special obligation to determine subject-matter jurisdiction)
Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006) (agency must examine relevant evidence and provide reasoned explanation)
Pulte Homes, Inc. v. Laborers’ Int’l Union, 648 F.3d 295 (6th Cir. 2011) (de novo review of Rule 12(b)(6) dismissal)