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IMMIGRATION NOVEMBER 13, 2026 | The Indian Eye 40

Challenging a Nonimmigrant Visa

Revocation in Removal Proceedings

BY CYRUS D. MEHTA retary of State or a consular of- of review permitted by § 221(i) termination is warranted if the clusory notation does not estab-
revocation on which the sole
ficer authority to revoke a visa
in removal proceedings, the re-
lish who revoked the visa, when
A “at any time, in his discretion.” spondent should first require charge depends was legally in- the action occurred, whether it
visa is a travel document
DHS to prove that an autho-
and is not the same as
It expressly forecloses judicial
effective, while recognizing that
remains operative, or the stat-
having a nonimmigrant
ity to adjudicate the underlying
cluding review through habeas
appropriate safeguards if the
status. Ordinarily, revocation of review of the revocation—in- rized official actually revoked the immigration judge’s author- utory basis invoked, and seek
the visa, that the revocation was
an F-1 visa while the student is corpus, mandamus, or the All final and remained operative, validity of the revocation re- government invokes classified
in the United States prevents the Writs Act—except in the context and that the revocation con- mains unsettled. Counsel should or law-enforcement-sensitive in-
student from using that visa for of a removal proceeding when cerned the visa or other docu- build the administrative record formation. The respondent need
a future admission until they ob- the revocation provides the sole mentation on which the charge with the revocation notice, the not disprove an undisclosed ra-
tain a new visa stamp, but does ground for removal under INA rests. The respondent should State Department communi- tionale; DHS bears the burden
not by itself terminate nonimmi- § 237(a)(1)(B). The bar applies also preserve the argument that cation, the consular file to the of proving the charged ground
grant status. That familiar dis- to review of the revocation itself; § 221(i)’s review proviso permits extent obtainable, the SEVIS with reliable evidence in the re-
tinction, however, does not end it does not necessarily foreclose the immigration judge to consid- history if the respondent is a moval record.
the inquiry. Congress expressly habeas or other review of a le- er legal and constitutional ob- student, the Form I-20 record, The “sole ground” limita-
made deportable a noncitizen gally distinct claim concerning jections to the revocation when proof of continuing study, and tion is crucial. If DHS pleads
“whose nonimmigrant visa (or detention, transfer, or another it supplies the sole ground of any evidence bearing on the stat- both revocation and a separate
other documentation autho- collateral government action removability, while recognizing ed ground for revocation. If the status violation—for example,
rizing admission into the Unit- merely because a visa revoca- that the extent of such review asserted basis implicates speech failure to pursue a full course
ed States as a nonimmigrant) tion appears in the factual back- remains unsettled. A dismissal or an unsupported inadmissibil- of study—the government may
has been revoked” under INA ground. of the criminal charge underly- ity finding, those issues should argue that § 221(i)’s review
§ 221(i). See INA § 237(a)(1) The regulation likewise ing the revocation may be rele- be raised expressly before the proviso has not been triggered.
(B). Thus, DHS may attempt to confirms broad revocation au- vant to that challenge, but does immigration judge and again be- Counsel should contest unsup-
convert the State Department’s thority, including provisional re- not necessarily establish that the fore the BIA. ported alternative allegations,
revocation of the visa foil into vocation, while requiring notice revocation lacked a legally suf- Why a Petition for Review Is Still demand clarity about whether
a charge of deportability even only “if practicable.” 22 C.F.R. ficient basis. In all events, DHS Necessary? the charges are genuinely in-
when the F-1 student has con- § 41.122. The regulation should must establish the charge of re- If the judge sustains the dependent, and preserve the
tinued to attend school and oth- nevertheless be read together movability by clear and convinc- charge, the respondent should argument that the government
erwise complied with the condi- with the governing statute and ing evidence. See INA § 240(c) appeal to the BIA and exhaust cannot defeat Congress’s review
tions of status. the State Department’s own (3)(A); 8 C.F.R. § 1240.8(a). each legal and constitutional mechanism merely by repackag-
The Statutory Basis for Review rules and procedures. Because What the Immigration Judge Can claim. That course is reinforced ing the same alleged conduct as
INA § 221(i) gives the Sec- there appears to be no report- Decide? by Acting Director Sirce E. Ow- a second charge.
ed decision defining the scope
The immigration judge
has statutory and regulato- en’s Policy Memorandum 25-45, Has a Court of Appeals Recently
Consideration of Constitutional
Decided the Issue?
ry authority to determine Arguments in Agency Adjudica- As of October 2026, there
removability. INA § 240(a) tions (Sept. 5, 2025), which states does not appear to be a recent
(1), (c)(1)(A); 8 C.F.R. § that EOIR adjudicators gen- published BIA precedent or re-
1240.1(a)(1). If the only erally may consider arguments ported federal court of appeals
charge is the visa-revoca- arising under constitutional law decision squarely adjudicating
tion clause of § 237(a)(1) and, in particular, constitutional a petition for review in which
(B), the judge must deter- challenges to the application of an F-1 student’s visa revoca-
mine whether DHS has a statute in an individual case, tion was the sole ground of re-
proved every element of subject to limited exceptions. Ju- movability under § 237(a)(1)
that charge. The respon- dicial review of the final order of (B). The scarcity of authority is
dent should further argue removal would then ordinarily itself significant. The 2025 stu-
that § 221(i)’s express ex- be sought through a petition for dent cases generated extensive
ception permits the pre- review in the appropriate court district-court litigation over SE-
sentation of legal and con- of appeals under INA § 242, VIS terminations, detention,
stitutional objections to the rather than through an action in and constitutional claims, but
revocation in that proceed- federal district court under the they did not produce a report-
ing; otherwise, the statutory Administrative Procedure Act. ed merits decision defining the
phrase permitting review The petition for review must or- scope of § 221(i) review after an
“in the context of a removal dinarily be filed within 30 days immigration judge and the BIA
proceeding” would appear of the final order. INA § 242(b) entered a final removal order.
to do no work. Because (1). Counsel should invoke the See Congressional Research
no reported decision has court of appeals’ authority to Service, Visa Issuances, Refus-
defined the scope of that review preserved questions of als, and Revocations: Selected
review, however, counsel law and constitutional claims, Current Legal Considerations,
should preserve the argu- while recognizing that no re- R49040, at 18–20 (July 21, 2026)
ment without assuming that ported decision appears to have (discussing visa revocations in-
m of the immigration judge may determined whether, or to what side the United States, removal
CYRUS D. MEHTA & PARTNERS PLLC reconsider every factual or extent, § 221(i) permits review proceedings following revoca-
of the underlying discretionary
tion, and the 2025 student-visa
discretionary premise un-
derlying the State Depart- revocation in that posture. enforcement actions, but identi-

ment’s action. The principal practical ob- fying no modern reported appel-
That does not neces- stacle may be access to the re- late decision resolving the scope

  sarily mean that an immi- vocation record. Visa records of § 221(i) review).
   
­ gration judge can order the are generally confidential under The Öztürk Case: A Successful
€
‚   Department of State to re- INA § 222(f), and DHS may rely IJ Challenge, but No Petition-for-
issue or reinstate a visa. The on database entries, interagency Review Precedent
immigration judge may ter- communications, or summaries Rümeysa Öztürk’s case
minate proceedings if DHS rather than the underlying con- provides a useful recent illustra-
fails to prove deportability.
sular material. Counsel should
although it did not culminate in
2 6th Floor The respondent should also request the documents on which tion of the administrative route,

    preserve the argument that DHS relies, object when a con- a court of appeals decision re-
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