Abrahim Mohamed Fofana v. Kristi Noem

United States Court of Appeals
For the Eighth Circuit
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No. 24-2485
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Abrahim Mohamed Fofana,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Kristi Noem, in her official capacity as Secretary of the United States Department
of Homeland Security; Angelica Alfonso-Royals, in her official capacity as Acting
Director of the United States Citizenship and Immigration Services; Connie
Nolan, in her official capacity as Associate Director, Service Center Operations,
United States Citizenship and Immigration Services; Steven G. Rice, Director,
Minneapolis St Paul Field Office, U.S. Citizenship and Immigration Services;
United States Citizenship and Immigration Service,
lllllllllllllllllllllDefendants - Appellants.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 21, 2025
Filed: January 9, 2026
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Before COLLOTON, Chief Judge, LOKEN and BENTON, Circuit Judges.
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COLLOTON, Chief Judge.
Abrahim Fofana, a native and citizen of Liberia, sued the Secretary of
Homeland Security and others to challenge the denial of his application for
adjustment of status to lawful permanent resident. The district court concluded that
the government’s action was arbitrary and capricious, and granted summary judgment
for Fofana. We conclude that the district court lacked jurisdiction to review the
Secretary’s decision, so we reverse the judgment.
I.
Fofana tried to enter the United States with fraudulent documents on January
28, 2001. When he later applied for asylum, Fofana disclosed that he had raised
money for the United Liberation Movement of Liberia for Democracy (ULIMO)
while he was a student in Saudi Arabia, and that he was “an active supporter of the
ULIMO fighters.” Fofana claimed that if he returned to Liberia, he would face
persecution on account of his affiliation with ULIMO. In April 2001, an immigration
judge granted the application for asylum.
On July 22, 2002, Fofana filed an application for adjustment of status to
become a lawful permanent resident. The Secretary of Homeland Security may, in
her discretion, adjust the status of an alien granted asylum if the alien meets five
statutory criteria, including that the alien “is admissible . . . as an immigrant.” 8
U.S.C. § 1159(b). The United States Citizenship and Immigration Services, acting
for the Secretary, denied the application in June 2018. The USCIS determined that
Fofana was inadmissible because he had solicited money for ULIMO, a Tier III
terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(i)(I), (a)(3)(B)(iv)(IV)(cc).
Fofana sued in the district court, alleging that the USCIS was precluded from
declaring him inadmissible and that the agency’s decision was arbitrary and
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capricious. The district court ruled for Fofana based on collateral estoppel, but this
court reversed and remanded. Fofana v. Mayorkas, 4 F.4th 668 (8th Cir. 2021).
On remand, the district court again granted summary judgment for Fofana.
First, the district court rejected the government’s argument that the court lacked
jurisdiction to review the Secretary’s decision. Second, the court concluded that
Fofana was not inadmissible for “engag[ing] in a terrorist activity,” even though
soliciting funds for a terrorist organization is defined as “engag[ing] in terrorist
activity,” because a separate definition of “terrorist activity” does not encompass
solicitation of funds. See 8 U.S.C. § 1182(a)(3)(B)(i)(I), 1182(a)(3)(B)(iii). Third,
the court concluded alternatively that the agency’s determination that ULIMO was
a terrorist organization was arbitrary and capricious because the agency did not
address whether the organization’s violent activities were authorized by its
leadership. As a final alternative, the district court concluded that the record did not
support the agency’s finding that Fofana knew or should have known that ULIMO
was engaged in terrorist activity. The court thus ordered the case returned to the
USCIS for reconsideration.
II.
On appeal, the government argues that the district court lacked jurisdiction to
review the Secretary’s decision on whether Fofana is inadmissible. Congress has
circumscribed judicial review of the discretionary-relief process in immigration cases.
The governing jurisdictional statute provides:
Notwithstanding any other provision of law . . . no court shall have
jurisdiction to review--
(i) any judgment regarding the granting of relief under section 1182(h),
1182(i), 1229b, 1229c, or 1255 of this title, or
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(ii) 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 the Attorney General or the
Secretary of Homeland Security, other than the granting of relief under
section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B) (emphasis added).
Clause (ii) is at issue in this case. The statute governing Fofana’s application
for adjustment of status provides that “[t]he Secretary of Homeland Security or the
Attorney General, in the Secretary’s or the Attorney General’s discretion and under
such regulations as the Secretary or Attorney General may prescribe, may adjust to
the status of an alien lawfully admitted for permanent residence the status of any alien
granted asylum.” 8 U.S.C. § 1159(b) (emphasis added).
Fofana acknowledges that clause (ii) precludes judicial review of the
Secretary’s ultimate discretionary decision to deny an adjustment of status. He
maintains, however, that § 1159(b) contemplates a two-step process under which the
Secretary first makes a non-discretionary determination about whether the alien has
satisfied the five eligibility criteria for adjustment, and then makes a discretionary
decision whether to adjust the alien’s status. On his view, the court has jurisdiction
to review the first determination and lacks jurisdiction only with respect to the
second.
The Supreme Court has not resolved this question, see Bouarfa v. Mayorkas,
604 U.S. 6, 19 (2024), but the decision in Patel v. Garland, 596 U.S. 328, 336 (2022),
is enlightening. The Court held that the phrase “any judgment regarding the granting
of relief” under § 1255 in clause (i) applies not only to the ultimate judgment to grant
or deny relief, but also to nondiscretionary determinations that are necessary in
determining whether an applicant is eligible for relief. Id. at 338-39. The breadth of
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the term “any” shows that the phrase “any judgment” means “judgments of whatever
kind under § 1255, not just discretionary judgments or the last-in-time judgment.”
Id. at 338.
Patel concerned clause (i), but the analysis informs the meaning of clause (ii).
Clause (i) enumerates certain decisions that are insulated from judicial review, and
“Congress added in clause (ii) a catchall provision covering ‘any other decision . . .
the authority for which is specified under this subchapter [to be in the discretion of
the Secretary].’” Kucana v. Holder, 558 U.S. 233, 246 (2010). “The proximity of
clauses (i) and (ii), and the words linking them—‘any other decision’—suggests that
Congress had in mind decisions of the same genre, i.e., those made discretionary by
legislation.” Id. at 246-47. “The clause (i) enumeration . . . is instructive in
determining the meaning of the clause (ii) catchall.” Id. at 247.
Fofana argues that while Congress broadly precluded judicial review of “any
judgment”—discretionary or non-discretionary—regarding the granting of relief
under the sections enumerated in clause (i), the catchall reference to “any other
decision or action” in clause (ii) refers only to discretionary decisions or actions.
This contention is unpersuasive. We agree with Judge Liman that the phrase “any
other decision or action” is at least as broad as “any judgment.” Morina v. Mayorkas,
No. 22-cv-02994, 2023 WL 22617, at *10 (S.D.N.Y. Jan. 3, 2023). “Any judgment”
means “judgments of whatever kind,” Patel, 596 U.S. at 338, and “any other
decision” thus naturally means decisions “of whatever kind”—not just discretionary
decisions or last-in-time decisions. The authority for the decision whether to adjust
Fofana’s status is “specified under [the] subchapter to be in the discretion of . . . the
Secretary,” 8 U.S.C. § 1252(a)(2)(B)(ii), so the entire decision whether to adjust
status—including the decision on whether Fofana is eligible—is insulated from
judicial review.
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Fofana argues that clause (ii) is narrower because it does not employ the
broadening effect of the word “regarding” that is used in clause (i). The Court in
Patel concluded that because clause (i) refers to any judgment “regarding” the
granting of relief under certain sections, the clause “encompasses not just ‘the
granting of relief’ but also any judgment relating to the granting of relief.” 596 U.S.
at 339.
Clause (ii) is not narrower; it is just phrased differently. Clause (i) uses the
phrase “regarding the granting of relief” to define the type of judgment that is not
reviewable. Clause (ii) specifies in a different manner the type of decision or action
that is not reviewable—a decision or action “the authority for which is specified
under this subchapter to be in the discretion of the Attorney General or the Secretary
of Homeland Security.” Where, as with adjustment of status, the statute specifies that
the authority to grant relief is in the discretion of the Secretary, clause (ii) insulates
the decision from judicial review. Patel establishes that the unreviewable
decision—“any decision,” like “any judgment”—is not limited to a final discretionary
decision but includes the Secretary’s decision on all aspects of the application for
adjustment. See id. As with clause (i), if Congress intended to limit the jurisdictional
bar in clause (ii) to “discretionary decisions,” then “it could easily have used that
language—as it did elsewhere in the immigration code.” Id. at 341.
Fofana points to Bremer v. Johnson, 834 F.3d 925 (8th Cir. 2016), where this
court cited prior circuit authority and said that “[e]ven where a statute precludes
judicial review of discretionary agency actions, courts may review certain
non-discretionary legal determinations that underlie an agency’s exercise of
unreviewable discretion.” Id. at 929 (citing Ibrahimi v. Holder, 566 F.3d 758, 763-64
(8th Cir. 2009) and Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008)). Bremer
concerned a provision of the Adam Walsh Act that says a citizen generally “may file”
a petition seeking immediate relative status for a spouse. 8 U.S.C. § 1154(a)(1)(A)(i).
That clause and the right to file a petition, however, “shall not apply to a citizen of
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the United States who has been convicted of a specified offense against a minor,
unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable
discretion, determines that the citizen poses no risk to the alien with respect to whom
a petition described in clause (i) is filed.” Id. § 1154(a)(1)(A)(viii). This court held
that the district court had jurisdiction to resolve whether the Act and its conferral of
a right to file a petition applied at all to Bremer’s petition or whether it was
inapplicable because a petition already had been filed. 834 F.3d at 929.
Bremer is not controlling here, because the “predicate legal question” at issue
in that case did not concern a “decision” by the Secretary to allow or disallow the
filing of a petition under § 1154(a)(1)(A)(i). The disputed issue was whether the fact
that a petition already had been filed meant that there was no decision for the
Secretary to make. Insofar as prior decisions or language in Bremer regarding
jurisdiction to make “non-discretionary legal determinations” suggested a broader
declaration, we clarify here the proper analysis in light of the Supreme Court’s
intervening decision in Patel.
For these reasons, the judgment of the district court is reversed, and the case
is remanded with directions to dismiss the complaint for lack of jurisdiction.
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