Mukantagara v. Mullin

Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS October 5, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ AGNES MUKANTAGARA; EBENEZER SHYAKA, Plaintiffs - Appellants, v. No. 24-4071 MARKWAYNE MULLIN, Secretary, U.S. Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; MICHAEL CRABTREE, USCIS Field Office Director, Salt Lake City; EVA RUPP, USCIS District Office Director, Denver; JOSEPH B. EDLOW, Director, Defendants - Appellees. ------------------------------ INTERNATIONAL REFUGEE ASSISTANCE PROJECT, Amicus Curiae. _________________________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:20-CV-00897-RJS) _________________________________ Daniel R. Black (Marti L. Jones with him on the briefs), of Stowell Crayk, PLLC, Salt Lake City, Utah, for Plaintiffs-Appellants.  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 2 Aneesa Ahmed, Trial Attorney (Yaakov Roth, Acting Assistant Attorney General; August E. Flentje, Acting Director; William C. Silvis, Assistant Director; Katelyn Masetta-Alvarez, Senior Litigation Counsel; and Joshua C. McCroskey, Trial Attorney, with her on the brief), Department of Justice, Washington, District of Columbia, for Defendants-Appellees. _________________________________ Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges. _________________________________ PHILLIPS, Circuit Judge. _________________________________ Agnes Mukantagara and her son Ebenezer Shyaka sued United States Citizenship and Immigration Services in federal district court for terminating Mukantagara’s refugee status. The court dismissed their suit for lack of subject- matter jurisdiction. It relied on 8 U.S.C. § 1252(a)(2)(B)(ii), which bars courts from reviewing immigration agencies’ discretionary actions. It held that § 1252(a)(2)(B)(ii) applied to 8 U.S.C. § 1157(c)(4), the Immigration and Nationality Act’s provision for terminating refugee status. We held that 8 U.S.C. § 1252(a)(2)(B)(ii) does not apply to Mukantagara and her son’s suit. See Mukantagara v. Noem, 164 F.4th 765 (10th Cir. 2026), vacated by Mukantagara v. Mullin, 181 F.4th 1088 (10th Cir. 2026). We reasoned that the action Mukantagara and her son challenged was not discretionary, though a related action was. See id. The government moved for rehearing, and soon after, the Supreme Court issued its decision in Mullin v. Doe, 146 S. Ct. 2121 (2026). Doe seemed relevant, so we vacated our opinion 2  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 3 and asked the parties to brief us on it. With that briefing and argument, we’ve landed about where we started. Section 1252(a)(2)(B)(ii) doesn’t bar district court review of USCIS’s termination of refugee status. Doe’s careful consideration of the words “determination” and “decision” has refined our analysis, but it doesn’t substantially change it. Termination of refugee status under § 1157(c)(4) involves two decisions. The first is a mandatory, nondiscretionary decision— whether an alien met the INA’s definition of “refugee” when admitted into the U.S. The second is an exercise of discretion—the agency may choose to maintain an alien’s refugee status even if that person didn’t meet the INA’s definition of refugee when admitted into the country. Because Mukantagara and her son challenge only the first decision, which is nondiscretionary, § 1252(a)(2)(B)(ii) does not apply. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse judgment in favor of the government and remand to the district court for further proceedings. BACKGROUND I. Factual Background In 2005, USCIS admitted Agnes Mukantagara as a refugee and her son Ebenezer Shyaka as her minor dependent. Two years later, it paused Mukantagara’s refugee status and revoked her travel documents. By 2008, it 3  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 4 had begun investigating whether Mukantagara had participated in the Rwandan genocide. In 2016, it decided that she had. For this, USCIS terminated Mukantagara’s refugee status under 8 U.S.C. § 1157(c)(4). That provision lets the agency terminate a person’s refugee status if it finds that the person did not meet the INA’s definition of “refugee” when admitted into the United States. The agency found that Mukantagara had participated in the genocide, so she fell under the “persecutor bar,” meaning she didn’t qualify as a refugee. App. vol. I at 81; see 8 U.S.C. § 1101(a)(42). The government then placed Mukantagara and her son into removal proceedings. Mukantagara denied that she participated in the genocide. She claimed that USCIS parroted false allegations from a politically motivated organization acting on behalf of Rwanda’s ruling party. In removal proceedings, the immigration court found Mukantagara credible and granted her asylum. It also ruled that it couldn’t review USCIS’s termination of Mukantagara’s refugee status. But the immigration court denied asylum to Mukantagara’s son, Shyaka. It ruled that Shyaka neither independently qualified for asylum nor qualified as Mukantagara’s dependent, even though he had qualified as her dependent when she received refugee status. That’s because back in 2005, Shyaka was not yet twenty-one. By the time Mukantagara applied for asylum in removal proceedings—more than ten years later—Shyaka had aged out of eligibility. 4  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 5 The parties appealed to the Board of Immigration Appeals. The BIA remanded the immigration court’s decision granting asylum to Mukantagara and affirmed the decision denying asylum to Shyaka. On remand, the immigration court again granted Mukantagara asylum. For his part, Shyaka petitioned for review before this Court. The BIA abated the government’s appeal of the immigration court’s second grant of asylum to Mukantagara, and we abated Shyaka’s petition for review, pending the outcome in this case. II. Procedural History Mukantagara and her son sued USCIS in federal district court under the Administrative Procedure Act, challenging its decision to terminate Mukantagara’s refugee status. See Mukantagara v. DHS, 67 F.4th 1113, 1115 (10th Cir. 2023). The government moved to dismiss for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(b)(9), see id., which channels judicial review of actions related to final removal orders to the courts of appeal, see generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483 (1999). The district court granted the government’s motion. Mukantagara v. DHS, 67 F.4th at 1116. We reversed, holding that § 1252(b)(9) did not apply because USCIS’s decision to terminate refugee status was not part of removal proceedings. Id. On remand, USCIS again moved to dismiss. Mukantagara v. Mayorkas, 736 F. Supp. 3d 1117, 1122 (D. Utah 2024). In relevant part, USCIS argued that one of the INA’s jurisdiction-stripping provisions, 8 U.S.C. 5  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 6 § 1252(a)(2)(B)(ii), deprived the district court of subject-matter jurisdiction. Id. at 1122–23. The district court agreed. Id. at 1125–26. Mukantagara and her son appealed that order, arguing that § 1252(a)(2)(B)(ii) didn’t apply to USCIS’s termination of refugee status. Our now-vacated opinion agreed. See Mukantagara v. Noem, 164 F.4th 765. After seeking several extensions, the government petitioned for review en banc. While we were considering the petition, the Supreme Court issued Mullin v. Doe, 146 S. Ct. 2121, which involved similar INA jurisdiction-stripping questions. So we vacated our first opinion, see 181 F.4th at 1089, invited supplemental briefing and argument on Doe, and arrived here. DISCUSSION We review de novo a district court’s dismissal for lack of subject-matter jurisdiction. Breeze Aviation Grp., Inc. v. Nat’l Mediation Bd., 104 F.4th 1211, 1217 (10th Cir. 2024). The party seeking the court’s jurisdiction bears the burden of showing it exists. Green v. Napolitano, 627 F.3d 1341, 1344 (10th Cir. 2010). To start, we presume that there is “judicial review of administrative action.” Dekovic v. Rubio, 169 F.4th 1002, 1011 (10th Cir. 2026) (citation omitted). We then ask whether 8 U.S.C. § 1252(a)(2)(B)(ii), one of the INA’s jurisdiction-stripping provisions, applies to USCIS’s termination of Mukantagara’s refugee status under § 1157(c)(4). More precisely, the question 6  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 7 is whether it prohibits review of whether Mukantagara was not a refugee, as defined by the INA, when she was admitted into the country. To decide that, we consider the text of the jurisdiction-stripping provision, recent Supreme Court cases, and the government’s several counterarguments. I. Section 1252(a)(2)(B)(ii) does not apply to § 1157(c)(4)’s mandatory, nondiscretionary threshold decision. “Even when Congress expressly prohibits judicial review, we construe that prohibition narrowly.” Teva Pharms. USA, Inc. v. Kennedy, No. 25-5425, 2026 WL 2409591, at *7 (D.C. Cir. Aug. 18, 2026) (citation modified). The INA strips jurisdiction from courts to review “(i) any judgment regarding” five listed kinds of immigration relief and “(ii) any other decision or action [of USCIS] the authority for which is specified under this subchapter to be in the discretion of [USCIS].” 8 U.S.C. § 1252(a)(2)(B). So was USCIS’s finding that Mukantagara wasn’t a refugee at the time of her admission a “decision or action” “specified . . . to be in the discretion of” USCIS? See id. It wasn’t. Start with the words in § 1157(c)(4). See Smith v. Bd. of Governors of Fed. Rsrv. Sys., 73 F.4th 815, 820 (10th Cir. 2023). That provision says: The refugee status of any alien (and of the spouse or child of the alien) may be terminated by the Attorney General pursuant to such regulations as the Attorney General may prescribe if the Attorney General determines that the alien was not in fact a refugee within the meaning of section 1101(a)(42) of this title at the time of the alien’s admission. 7  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 8 As we read it, termination of refugee status involves two separate decisions. First, USCIS decides whether “the alien was not in fact a refugee [under 8 U.S.C. § 1101(a)(42)] at the time of the alien’s admission.” 8 U.S.C. § 1157(c)(4). And we agree with practically every other circuit court to interpret this provision that this threshold decision is mandatory. See Maiwand v. Gonzales, 501 F.3d 101, 106 (2d Cir. 2007) (“Refugee status may be terminated only if . . . [the] alien did not qualify as a refugee at the time of entry.” (emphasis added)); Kaganovich v. Gonzales, 470 F.3d 894, 898 (9th Cir. 2006) (similar); Romanishyn v. Att’y Gen. of U.S., 455 F.3d 175, 181–82 (3d Cir. 2006) (similar). USCIS can’t terminate refugee status if it doesn’t make this decision. Second, USCIS has discretion to maintain the refugee status of a person who wasn’t a refugee when admitted into the U.S.—as in, the statute lets USCIS not terminate an otherwise eligible person’s refugee status. 1 Now, we ask whether either of these decisions is a “decision or action [of USCIS] the authority for which is specified under this subchapter to be in the discretion of [USCIS].” 8 U.S.C. § 1252(a)(2)(B)(ii). This provision clearly bars review of USCIS’s second decision, a discretionary one. 1 USCIS has removed this discretion by regulation, see 8 C.F.R. § 207.9, but that doesn’t matter here because the jurisdiction-stripping provision applies “only when the statute itself” specifies that an action is discretionary. See Kucana v. Holder, 558 U.S. 233, 243–45 (2010). 8  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 9 But Mukantagara and her son challenged the first decision: they argued that USCIS flubbed the analysis because they were refugees as defined by the INA when admitted into the U.S. And the review bar doesn’t apply to this decision, because it was nondiscretionary. We decide “whether a particular decision is discretionary or non-discretionary . . . on a case-by-case basis.” See Sosa-Valenzuela v. Holder, 692 F.3d 1103, 1115 (10th Cir. 2012) (citation omitted), abrogated by Patel v. Garland, 596 U.S. 328 (2022). A decision is likely the latter when “there is a clear standard . . . for which no evaluation of non-discretionary criteria is required.” Id. (citation omitted); see also Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. 9, 23–24 (2018) (denying that decision was “committed to agency discretion by law,” because the decision required the agency to “justify its determination under a standard set forth in the statute”) (emphasis added). Section 1157(c)(4) sets forth a clear standard: whether “the alien was not in fact a refugee within the meaning of [§] 1101(a)(42) of this title at the time of the alien’s admission.” So because the relevant decision isn’t one within USCIS’s discretion, § 1252(a)(2)(B)(ii) doesn’t prohibit courts from reviewing it. And we’re unconvinced by the government’s arguments otherwise. First, it argues that all decisions under § 1157(c)(4) are discretionary because the provision uses several phrases that suggest discretion: “may prescribe,” “may 9  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 10 be terminated,” and “if the [agency] determines.” It also notes that the provision does not contain words like “shall.” But we read sentences “as a whole.” See Harbison v. Bell, 556 U.S. 180, 196 (2009) (Roberts, C.J., concurring). The government’s first two phrases don’t relate to USCIS’s threshold decision. “[M]ay prescribe” refers to the agency’s power to pass regulations relating to the statute. 8 U.S.C. § 1157(c)(4). “May be terminated” gives the agency authority for its later decision—whether it will not terminate status even though it could. Id. And we reject that the words “if the [agency] determines” reveal discretion. Even the government concedes that when terminating refugee status, USCIS “must ‘choose’ or ‘decide’” the threshold question. See Resp. Br. at 19 (emphasis added). It has not argued that USCIS could forego the first decision when deciding to terminate a person’s refugee status. The government’s remaining arguments concern Supreme Court decisions, which we address case-by-case. II. Patel does not apply here. The government argues that Patel v. Garland prevents district courts from reviewing USCIS’s first-step decisions. It argues that § 1252(a)(2)(B)(ii) precludes review of nondiscretionary threshold eligibility decisions if the agency exercises discretion in a later step of the same determination. But Patel interpreted § 1252(a)(2)(B)(i)’s text, which differs from that at issue here. 10  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 11 In Patel, the Supreme Court held that § 1252(a)(2)(B)(i) bars review of an immigration court’s factual findings regarding non-refugee adjustment of status. See 596 U.S. at 347. While in removal proceedings, Patel had applied for non-refugee adjustment of status. Id. at 334. The immigration court concluded that Patel was ineligible to adjust because he had lied about his immigration status by marking that he was a citizen on a form for a driver’s license. Id. at 334–35. Patel argued that he had made an honest mistake. Id. But the immigration court found that Patel was not credible. Id. So it denied Patel’s application to adjust status, then ordered him removed. Id. Patel appealed the immigration court’s ruling to the Eleventh Circuit. That court held that § 1252(a)(2)(B)(i) removed its jurisdiction to review the immigration court’s factual findings. Patel v. Att’y Gen. of U.S., 971 F.3d 1258, 1272–73, 1283 (11th Cir. 2020) (en banc). That decision was based on the text of § 1252(a)(2)(B)(i), which bars review of “any judgment regarding the granting of relief” for five listed kinds of relief, including that relief Patel sought: non-refugee adjustment of status. See id. at 1273. The Eleventh Circuit held that the immigration court’s credibility finding was a “judgment regarding the granting of relief.” Id. The Supreme Court affirmed. 596 U.S. at 331. But Patel doesn’t dictate our interpretation of § 1252(a)(2)(B)(ii) because its holding rests on words particular to § 1252(a)(2)(B)(i)—“any judgment” and “regarding the granting of relief.” 596 U.S. at 337–39. The Court interpreted “any judgment” to mean “judgments of whatever kind . . . not just discretionary 11  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 12 judgments or the last-in-time judgments.” Id. at 338–39 (citation modified). It interpreted the phrase “regarding the granting of relief” as “broadening” § 1252(a)(2)(B)(i) to cover eligibility decisions. Id. at 338–39 (citation omitted). We follow the “cardinal principle” giving effect “to every clause and word of a statute.” Parker Drilling Mgmt. Servs., Ltd. v. Newton, 587 U.S. 601, 611 (2019). Section 1252(a)(2)(B)(ii) uses neither “judgment” nor “regarding the granting of relief.” Instead of “judgment,” which Patel defined as an “authoritative decision,” it uses “decision or action,” both of which suggest discrete steps—including not-so-authoritative ones. 596 U.S. at 337. And instead of “regarding the granting of relief,” it uses the phrase “specified . . . to be in the [agency’s] discretion.” 8 U.S.C. § 1252(a)(2)(B)(ii). Putting the two together, we read the provision as applying to all decisions or actions that are also specified to be in the agency’s discretion. As in, it applies to discretionary decisions. This is entirely in line with Patel, which held that “regarding” broadens § 1252(a)(2)(B)(i) to reach judgments “relating to the granting of relief.” 596 U.S. at 339. To the contrary, “specified” narrows § 1252(a)(2)(B)(ii) to reach only actions and decisions involving discretion. The government argues that both § 1252(a)(2)(B) subsections travel together. First, it spotlights the word “other.” Because § 1252(a)(2)(B)(ii) says “any other decision or action” (emphasis added), the government argues, it 12  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 13 must have the same scope as § 1252(a)(2)(B)(i). We agree that “any other” means that subsection (ii) applies to similar sorts of immigration determinations as the five listed kinds of relief mentioned in subsection (i). For example, subsection (i) expressly applies to non-refugee adjustment of status (§ 1255). And because subsection (ii) applies to other decisions or actions, it applies to refugee adjustment of status (§ 1159), which is not listed in subsection (i). See Hosseini v. Johnson, 826 F.3d 354, 358–59 (6th Cir. 2016); Fofana v. Noem, 163 F.4th 1135, 1139 (8th Cir. 2026), appeal for cert. docketed 25-1154. But that’s all “any other” does. To think otherwise would require us to ignore Congress’s choice of “regarding” and “judgment” in subsection (i) and its choice of “action,” “decision,” and “specified” in subsection (ii). The government next points to Kucana v. Holder, which mentions that § 1252(a)(2)(B)(i) “is instructive in determining the meaning of the [§ 1252(a)(2)(B)(ii)] catchall.” 558 U.S. 233, 247 (2010). But Kucana included this only to show that (B)(ii) applies to provisions in which Congress gives immigration agencies “discretionary authority in the statute.” Id. And Kucana later warns that when “Congress includes particular language in one section . . . but omits it in another section of the same Act,” we should presume that Congress acted “intentionally and purposely in the disparate inclusion or exclusion.” Id. at 249. As in, we should presume that Congress had a reason for 13  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 14 using “regarding” and “judgment” in (B)(i) and “decision or action” and “specified” in (B)(ii). Similarly, the Court has cautioned that when two neighboring provisions “contain distinct language,” those provisions don’t “necessarily travel together.” See Slack Techs., LLC v. Pirani, 598 U.S. 759, 770 n.3 (2023). The government argues that Slack Technologies is inapplicable because it concerned provisions that were in separate sections, while the provisions here are part of the same subsection. But closer proximity further suggests different meaning. Next, the government says that our reading of § 1252(a)(2)(B)(ii) creates a circuit split with the three other courts to have decided this issue. We don’t feel as lonely as the government suggests we should be. See Alzaben v. Garland, 66 F.4th 1, 6 (1st Cir. 2023) (Patel’s interpretation of “any judgment” in § 1252(a)(2)(B)(i) “does not directly address the scope” of § 1252(a)(2)(B)(ii)); see also Ortez v. USCIS, 169 F.4th 269, 273 (4th Cir. 2026) (allowing district court’s APA review of USCIS’s “legal interpretation of the statute” that resulted in denial of discretionary relief). Plus, after Patel, the Eleventh Circuit reiterated that district courts may review “a non-discretionary determination that is a statutory predicate to [an agency’s] exercise of discretion.” See Bouarfa v. Sec’y DHS, 75 F.4th 1157, 1163 (11th Cir. 2023) (citing Mejia Rodriguez v. DHS, 562 F.3d 1137, 1143 (11th Cir. 2009)). That said, the government is correct that some circuits have applied Patel’s rationale root and branch to § 1252(a)(2)(B)(ii). In Fofana, the Eighth 14  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 15 Circuit held as much because “[c]lause (ii) is not narrower [than clause (i)]; it is just phrased differently.” 163 F.4th at 1139. And sure, we could imagine that “perhaps to stave off . . . boredom,” “Congress may . . . engage in elegant variation—adopting different language to mean the same thing,” but this shouldn’t be our go-to interpretative framework. See Karczewski v. DCH Mission Valley LLC, 862 F.3d 1006, 1021 (9th Cir. 2017) (citation modified) (Bybee, J., dubitante). Fofana goes on to reason, “[a]s 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.” 163 F.4th at 1139 (citation modified) (emphasis added). But because we think “decision . . . specified . . . to be in the discretion” of USCIS means exactly that, we respectfully disagree with Fofana. Similarly, in Shaiban v. Jaddou, the Fourth Circuit was “unable to identify any basis for concluding that Patel’s broad construction of clause (i) should not equally apply to clause (ii).” 97 F.4th 263, 267 (4th Cir. 2024); see also Zia v. Garland, 112 F.4th 1194 (9th Cir. 2024) (reaching same conclusion). But we see two: First, clause (ii) uses “decision or action” instead of clause (i)’s “judgment”; second, clause (ii) uses “specified” instead of clause (i)’s “regarding.” Plus, in Ortez, the Fourth Circuit narrowed Shaiban’s holding to permit “inherently legal questions about the applicability of statutes.” 169 F.4th at 273. And Mukantagara and her son’s question is whether “the alien was not in fact a refugee within the meaning of [§] 1101(a)(42),” as 15  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 16 in, whether USCIS correctly applied a statute. See § 1157(c)(4). So Shaiban hasn’t convinced us to change course either. We acknowledge that this is a split, and we respectfully disagree with our colleagues in the Fourth, Eighth, and Ninth Circuits. Because we interpret § 1252(a)(2)(B)(ii) based on what Congress said, and not what it may have meant to the contrary, see Antonin Scalia, A Matter of Interpretation 17–18 (Amy Gutmann ed., 1997), we think we have the better read of the statute. That said, there’s also a way to read Fofana, Zia, and Shaiban in tandem with our decision here. In each of those cases, USCIS could have exercised its discretion to deny the immigration benefit sought by the alien. USCIS could have said, “you might be eligible for this benefit, but we’re denying you relief anyway as a matter of discretion.” Here, only if USCIS first answered the non- discretionary question in the negative, could it then exercise its discretion to remove a benefit: it couldn’t have said, “you might have been an INA-defined refugee when you were admitted, but we’re removing your status anyway.” Like we said, we disagree with Fofana, Zia, and Shaiban, but this route to distinguish them also exists. III. Bouarfa does not apply to § 1157(c)(4). The government also argues that the Supreme Court’s decision in Bouarfa requires holding that § 1252(a)(2)(B)(ii) bars review here. In Bouarfa, the Court held that § 1252(a)(2)(B)(ii) bars a district court from reviewing USCIS’s decision to revoke a visa under § 1155. 604 U.S. at 9. 16  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 17 Section 1155 says that USCIS “may, at any time, for what [it] deems to be good and sufficient cause” revoke an approved visa petition. The Court called this language “a quintessential grant of discretion.” Bouarfa, 604 U.S. at 13; see also Hamilton v. Gonzales, 485 F.3d 564, 568 (10th Cir. 2007) (holding the same); Green, 627 F.3d at 1343 (same). But Bouarfa distinguished § 1155 from provisions in the INA with mandatory, nondiscretionary decisions. The Court pointed out that the standard in § 1155—“good and sufficient cause”—imposes “no conditions that the [agency] must satisfy” before revoking an approved visa. Bouarfa, 604 U.S. at 14. It distinguished non-refugee adjustment of status—the procedure at issue in Patel—from § 1155, which “has no threshold requirements.” Id. at 19. And the Court declined to “resolve whether § 1252(a)(2)(B)(ii) strips . . . jurisdiction to review threshold determinations.” Id. So we read Bouarfa as saying that “good and sufficient cause” is a discretionary standard that courts can’t review. Not so for the standard here: whether an “alien was not in fact a refugee within the meaning of [§] 1101(a)(42) of this title at the time of the alien’s admission.” See § 1157(c)(4). This is the sort of standard courts are expected to review, and this suffices to distinguish Bouarfa. 17  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 18 IV. Doe does not apply. We vacated our previous opinion because at first glance, Mullin v. Doe seemed to undermine its holding. 146 S. Ct. 2121 (2026). After considering supplemental briefing and oral argument, we don’t think it does. In Doe, recipients of Temporary Protected Status sued the Secretary of Homeland Security under the APA for removing their home countries’ TPS designations. See id. at 2131, 2133. The TPS statute contains a jurisdiction- stripping provision, 8 U.S.C. § 1254a(b)(5)(A), which says that “[t]here is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” The TPS recipients conceded that the jurisdiction-stripping provision prevented them from challenging the Secretary’s ultimate discretionary choice to cancel a country’s TPS. See Doe, 146 S. Ct. at 2136. They argued that they could still challenge the Secretary’s failure to carry out an earlier step: consulting with appropriate agencies about country conditions. Id. The Supreme Court disagreed. First, it zoomed in on the statute’s use of “determination.” Id. at 2133–34. It explained that in the relevant statute, there are two possible usages of “determination.” Id. at 2133. One is “a synonym for ‘decision.’” Id. (citation omitted). The other could “be used to describe the chain of events leading up to a decision.” Id. The Court held that whichever of these definitions applied, the phrase “with respect to” meant that the provision 18  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 19 covered the “chain of events.” Id. That’s because “with respect to” broadened the scope in the same way “regarding” broadened “judgment” in Patel. Id. at 2133–34. So under either definition, the jurisdiction-stripping provision precluded judicial review of any component decision of canceling a country’s TPS. So far, so good. This resembles the analysis from Patel. And our response is similar. Section 1252(a)(2)(B)(ii) uses “decision or action” instead of “determination.” Those words align with the Doe majority’s narrower definition of “determination”—the one that isn’t a “chain of events.” Id. at 2133. And again, § 1252(a)(2)(B)(ii) says “specified” instead of Patel’s “regarding” or Doe’s “with respect to,” see 146 S. Ct. at 2133. This key “textual signal” tells us that even though § 1252(a)(2)(B)(ii) uses the words “any other,” its scope is more limited than provisions which use “with respect to” or “regarding.” See Teva Pharms., 2026 WL 2409591, at *9 (distinguishing Doe in part because the relevant review bar lacked language resembling “with respect to”). But Doe goes on to prompt a different challenge from the government. Later, when responding to the dissent, the majority wrote, “[i]n APA cases, an agency’s subsidiary decisions merge into the final agency action, which is then subject to review. . . . If the final agency action is unreviewable, then so too are subsidiary determinations.” Doe, 146 S. Ct. at 2136. 19  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 20 On its face, this language seems to pose a problem for Mukantagara and her son. Indeed, while they attempt to distinguish Doe by noting that § 1157(c)(4) establishes a “mandatory, nondiscretionary predicate,” Appellants’ Spml. Br. at 22, § 1254a(b) imposes a series of mandatory and nondiscretionary predicates. It is uncontested that the Secretary must “complete four steps to terminate a TPS designation: (1) consult with appropriate agencies about the country’s conditions, (2) review those conditions, (3) determine whether those conditions are still bad enough to meet the statutory criteria, and (4) publish a notice in the Federal Register. All agree those steps are mandatory.” Doe, 146 S. Ct. at 2145 (Kagan, J., dissenting). Thus, the mere presence of a mandatory and nondiscretionary predicate cannot, by itself, be what separates this case from Doe. The relevant distinction, however, is not whether a predicate is mandatory; rather, it is the relationship that the predicate shares with the grant of discretionary authority. A mandatory determination may be subsidiary to an otherwise discretionary decision when the determination itself constitutes part of the judgment that Congress entrusted to the agency. Cf. Heckler v. Chaney, 470 U.S. 821, 832–33 (1985) (treating decisions traditionally committed by Congress to agency discretion as unreviewable). Or it may be preliminary to that decision when it answers a separate question that must be resolved prior to the exercise of discretionary authority. Cf. Wilkinson, 601 U.S. at 217–18 20  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 21 (separating satisfaction of eligibility criteria from discretionary cancelation of removal). The mandatory steps for TPS termination are properly understood as subsidiary. The country conditions determination is an evaluative, forward- looking judgment premised on the satisfaction of the statutory criteria for a continuing TPS designation. See Doe, 146 S. Ct. at 2129–30. That inquiry is integral to the termination scheme itself—the Secretary must engage in consultations and assess current conditions to determine whether to exercise the statutory discretion to make a change in designation. See id. at 2145 (Kagan, J., dissenting). Although the statute requires the Secretary to make that determination while following specific steps, all those steps exist as part of the same exercise of judgment that Congress committed to the Secretary. The refugee determination required by § 1157(c)(4), in contrast, is preliminary to the Attorney General’s exercise of discretion. Section 1157(c)(4) does not ask the Attorney General to evaluate whether changing circumstances warrant termination of a status that concededly applies. Instead, it requires the Attorney General to determine whether the noncitizen “was not in fact a refugee” under § 1101(a)(42) “at the time of” admission. That inquiry applies a fixed statutory definition that exists outside of the discretionary scheme to a specific question about prior eligibility. Only after that question is answered, and only if it is answered in the negative, does the statute authorize the Attorney General to choose whether to terminate refugee status. Cf. INS v. 21  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 22 Cardoza-Fonseca, 480 U.S. 421, 427–28 (1987) (distinguishing legal question of refugee status from Attorney General’s separate discretion to grant relief after establishment of eligibility). If the Attorney General determines that the noncitizen was in fact a refugee under § 1101(a)(42) at the time of admission, the inquiry is completed and there is no discretionary decision to make. The pertinent distinction is thus between mandatory predicates that are subsidiary to the exercise of discretion and mandatory predicates that are preliminary to the exercise of discretion. The former are inseparable from the discretionary judgment because they constitute part of the authority that Congress entrusted to the agency. Cf. Doe, 146 S. Ct. at 2136. The latter are distinct because they determine whether that agency may exercise its judgment in the first place. They are not merely “advisory,” nor do they fail to “mark[] the consummation” of the decisionmaking process. U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 578 U.S. 590, 597 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)). Rather, they are antecedent to the process itself. We further clarify, in response to the dissent, that we use the term “preliminary” not to delineate a final or independently reviewable action under the APA, but to describe the relationship of that mandatory predicate and the Attorney General’s discretionary authority. In our view, the relevant question here is not whether the refugee determination merges into the final termination decision, see Sackett v. EPA, 566 U.S. 120, 126–27 (2012), but whether Congress committed the refugee determination itself to the Attorney General’s 22  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 23 discretion. 2 That is because the Attorney General is barred from exercising the discretion conferred by § 1157(c)(4) unless he first determines that the alien was not a refugee at the time of admission. That fact guides our result. To be sure, a mandatory determination may sometimes be subsidiary to an otherwise unreviewable agency action. See Doe, 146 S. Ct. at 2136. But Doe does not establish that every mandatory determination is subsidiary and thus unreviewable. Further, in instances where an antecedent determination requires application of a statutory provision independent of the discretionary scheme, treating the application of that provision as unreviewable would insulate from review a decision Congress did not actually commit to its discretion. See Kucana, 558 U.S. at 246–47 (explaining that § 1252(a)(2)(B)(ii) only applies where particular legislation specifies that the relevant authority is discretionary). Simply put, that cannot be Congress’s intended result. See La. 2 Seemingly, a determination that an individual was not a refugee at the time of admission cannot satisfy the finality requirement, as the Attorney General is free to decide against terminating refugee status after making such a finding. See Bennett v. Spear, 520 U.S. 154, 178 (1997) (noting that a final agency action must mark the “consummation of the agency’s decisionmaking process” and be “an action from which legal consequences will flow” (internal quotation marks omitted)). In turn, the predicate question of refugee status would likely be final if it is answered affirmatively, as that finding would end any further inquiry. But procedural merger under the APA, while perhaps determinative as to reviewability, does not by itself establish that Congress intended to extend the Attorney General’s discretion to the predicate question of whether the noncitizen was a refugee, as defined by statute, at the time of admission. In short, finality controls when a party can appeal. Here, we decide what a party can appeal. 23  Appellate Case: 24-4071 Document: 94-1 Date Filed: 10/05/2026 Page: 24 Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.”). This distinction is well founded. In Wilkinson, the Supreme Court similarly distinguishe