Procedural Challenges to §1155 Revocations Survive §1252(a)(2)(B)(ii): Eleventh Circuit Revives “NOIR Mismatch” Claims

Introduction

In T & B Holding Group, LLC v. U.S. Attorney General (11th Cir. Apr. 3, 2025) (per curiam) (non-argument calendar) (unpublished), the Eleventh Circuit confronted the scope of federal court jurisdiction over challenges to the U.S. Citizenship and Immigration Services’ (USCIS) revocation of an immigrant visa petition under 8 U.S.C. § 1155 following the Supreme Court’s decision in Bouarfa v. Mayorkas, 604 U.S. 6 (2024).

The petitioner, T & B Holding Group, LLC (“T & B”), had obtained approvals related to a key executive, Vito Tuozzolo, including L-1A nonimmigrant status via Form I-129 and later an employment-based immigrant visa petition via Form I-140. Years later, USCIS issued a Notice of Intent to Revoke (NOIR) and ultimately revoked the I-140, concluding that Tuozzolo had not primarily served in an executive or managerial capacity. The agency also denied a subsequent I-129 petition, and the Administrative Appeals Office (AAO) affirmed.

T & B challenged the revocation and denials in district court under the Administrative Procedure Act (APA), alleging both substantive and procedural error. The district court dismissed for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii), finding the challenges unreviewable. On appeal, T & B principally argued:

The INA’s jurisdiction-stripping provision does not bar review of procedural errors connected to the revocation; and
USCIS’s decision on statutory eligibility was nondiscretionary and thus reviewable.

The Eleventh Circuit affirmed in part and vacated and remanded in part. Most importantly, while reaffirming that courts lack jurisdiction to entertain substantive challenges to § 1155 revocations, the court held that a specific procedural challenge — that the AAO revoked on a ground not noticed in the NOIR (a “NOIR mismatch” claim) — remains reviewable. The panel also rejected a rigid application of “shotgun pleading” doctrine to bar that claim merely because it was presented in the complaint’s argument section and not as a separate numbered count.

Summary of the Opinion

The Eleventh Circuit:

Affirmed dismissal of T & B’s substantive APA challenges to USCIS’s revocation of the I-140 (e.g., arbitrary-and-capricious, substantial evidence, and burden-of-proof contentions) as unreviewable under 8 U.S.C. § 1252(a)(2)(B)(ii), in line with Bouarfa.
Vacated and remanded as to T & B’s procedural “NOIR mismatch” claim — the allegation that the AAO relied on a revocation ground not identified in the NOIR — holding that such a procedural claim is reviewable and was adequately pled, even though not set out as a distinct numbered count.
Did not reach whether the district court should have sua sponte allowed amendment, because remand is required on the procedural claim.

Analysis

Precedents Cited

Bouarfa v. Sec’y, Dep’t of Homeland Sec., 75 F.4th 1157 (11th Cir. 2023), aff’d sub nom. Bouarfa v. Mayorkas, 604 U.S. 6 (2024). The Eleventh Circuit held (and the Supreme Court affirmed) that revocations under § 1155 are discretionary and therefore generally unreviewable under § 1252(a)(2)(B)(ii), regardless of the asserted grounds. The Eleventh Circuit’s Bouarfa opinion recognized two categories of challenges that may survive the bar: (1) non-discretionary, threshold statutory determinations; and (2) procedural-error claims. The Supreme Court affirmed the nonreviewability of revocation decisions but expressly reserved judgment on whether procedural or constitutional claims and threshold eligibility determinations are reviewable.
Kurapati v. U.S. Bureau of Citizenship & Immigr. Servs., 775 F.3d 1255 (11th Cir. 2014). The court held that even when a decision is committed to agency discretion, allegations that the agency failed to follow its own binding regulations and procedures are reviewable. There, petitioners alleged USCIS revoked without providing required notice, a procedural defect that the court permitted to proceed.
Matter of Arias, 19 I. & N. Dec. 568 (BIA 1988). The BIA held that a revocation may not be predicated on grounds not stated in the NOIR; it emphasized that a NOIR must fairly apprise the petitioner of the derogatory information and the specific bases for revocation. The Eleventh Circuit treats a claim premised on failure to adhere to this binding procedural precedent as a reviewable procedural challenge.
Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015), and Barmapov v. Amuial, 986 F.3d 1321 (11th Cir. 2021). These cases define and police “shotgun pleadings” under Federal Rules of Civil Procedure 8(a)(2) and 10(b). The court catalogues four types of shotgun pleadings and underscores the need to give fair notice of claims and their supporting facts.

Legal Reasoning

The panel proceeded in two steps: jurisdictional scope after Bouarfa and adequacy of T & B’s pleadings.

1) Substantive challenges are barred. Relying on Bouarfa, the Eleventh Circuit reiterated that § 1155 revocations are discretionary “no matter the basis for revocation,” because the statute empowers the Secretary to revoke if he “deems there to be good and sufficient cause,” without mandating or forbidding revocation in any particular circumstances. As a result, APA challenges that effectively argue “the Secretary reached the wrong conclusion” — e.g., insufficient evidence, wrong evidentiary weight, elevated burden of proof — are classic merits attacks on a discretionary decision and fall within § 1252(a)(2)(B)(ii)’s jurisdictional bar.

2) Procedural challenges may proceed. The court carefully distinguished true procedural claims from disguised merits challenges. It emphasized:

Under its own precedent (Kurapati) — which the Supreme Court’s Bouarfa decision did not disturb — even if a decision is discretionary, courts retain jurisdiction to review allegations that the agency failed to comply with binding procedural rules or precedent.
Not all “procedural” labels suffice; litigants may not evade § 1252(a)(2)(B) by reframing a merits challenge as procedural. If the claim boils down to “USCIS reached the wrong outcome,” it is barred. But where the complaint alleges the agency lacked discretion to proceed as it did because it violated controlling procedures, a reviewable procedural claim is stated.

Applying that framework, the panel held T & B’s “NOIR mismatch” claim was reviewable. The claim posits that the AAO revoked on a ground not noticed in the NOIR, contrary to Matter of Arias, which requires that revocations be tethered to the allegations set forth in the NOIR and that petitioners have notice of and an opportunity to respond to the derogatory information and grounds. This is an asserted failure to follow binding procedural precedent — not a complaint about the weighing of evidence or the bottom-line judgment — and thus fits squarely within the procedural-error carve-out recognized by Kurapati and preserved post-Bouarfa.

3) Pleading sufficiency and “shotgun” concerns. The district court appeared to discount the mismatch claim because it was discussed in the complaint’s “ARGUMENT” section rather than set out as a distinct numbered count. The Eleventh Circuit rejected such formalism:

Rule 10(b) requires separate counts only where doing so would promote clarity. Here, the mismatch theory was clearly delineated, legally argued, and supported with citations (including Arias); it provided adequate notice.
Although the complaint might resemble the third type of shotgun pleading (failing to separate each claim into different counts), the mismatch claim was sufficiently clear to avoid the core vice of shotgun pleadings — lack of fair notice of the claim and its grounds.
Consequently, the procedural claim was properly raised and should not have been dismissed as unpled or as an improper “shotgun” allegation.

4) Open questions reserved by the Supreme Court remain open. The panel acknowledged that the Supreme Court in Bouarfa expressly declined to decide whether § 1252(a)(2)(B)(ii) bars review of (a) constitutional or procedural claims associated with revocations, or (b) threshold nondiscretionary eligibility determinations. The Eleventh Circuit accordingly limited its holding to the issues presented: it barred substantive merits challenges to the revocation but permitted the specific procedural NOIR-mismatch claim to go forward. It did not resolve whether T & B (or others) can obtain review of “threshold statutory eligibility” determinations in the revocation context; nor did it opine on the merits of the mismatch claim.

Impact

This decision has several notable implications for immigration litigation, agency practice, and civil pleading in the Eleventh Circuit:

Procedural claims survive Bouarfa. After the Supreme Court’s Bouarfa decision, district courts in the Eleventh Circuit must still entertain genuine procedural-error challenges to § 1155 revocations. Litigants can proceed where they plausibly allege USCIS or the AAO failed to follow binding procedures or precedent (e.g., inadequate NOIR notice, reliance on unstated grounds, failure to serve derogatory evidence, or violations of governing regulations).
NOIR drafting and AAO review must be precise. USCIS and the AAO should ensure a tight match between the NOIR’s stated grounds and the eventual basis for revocation. Arias’s rule — that revocation cannot rest on allegations not noticed — carries renewed salience. Failure to align revocation decisions with NOIR content risks remand via a procedural challenge, even though the merits are insulated from review.
Limits on reframing merit arguments as procedure. Petitioners must take care not to cloak standard merits arguments (e.g., “USCIS weighed the evidence incorrectly”) in procedural garb. The court specifically warned against such repackaging. A successful procedural claim identifies a discrete rule, regulation, or binding precedent the agency failed to follow and explains how the decision exceeded the agency’s discretion as a result.
Pleading practice: substance over form. While best practice remains to state each claim in a separate count, this case cautions district courts against elevating form over substance. A procedurally grounded claim, clearly articulated in the body of the complaint with supporting law, can suffice even if it appears outside numbered counts. At the same time, practitioners should avoid “shotgun” pitfalls by organizing claims cleanly.
Unsettled terrain: threshold eligibility. The Supreme Court in Bouarfa left open whether courts may review nondiscretionary threshold determinations antecedent to a § 1155 revocation. The Eleventh Circuit did not decide that question here, so counsel should preserve such arguments but recognize the current uncertainty.
Relief and remedies. Given the jurisdictional bar on merits review, the primary remedy for a successful procedural challenge is likely remand to the agency for compliance with proper procedures (e.g., issuance of a compliant NOIR, opportunity to respond), rather than a judicial determination on the ultimate eligibility or the substantive correctness of revocation.

Complex Concepts Simplified

Form I-129 (L-1A) and Form I-140: The I-129 is used to petition for nonimmigrant workers, including L-1A intracompany transferees in executive or managerial roles. The I-140 is the immigrant petition for alien workers seeking permanent residence in employment-based categories.
Notice of Intent to Revoke (NOIR): A formal notice issued by USCIS advising that it intends to revoke a previously approved petition, stating the derogatory evidence and reasons, and affording the petitioner a chance to respond. Under Matter of Arias, revocation must be based on the grounds specified in the NOIR.
8 U.S.C. § 1155 (Revocation): Authorizes the Secretary to revoke approval of visa petitions for “good and sufficient cause” at any time. Decisions to revoke are discretionary.
8 U.S.C. § 1252(a)(2)(B)(ii) (Jurisdiction-Stripping Provision): Bars judicial review of discretionary decisions or actions specified under the INA, including § 1155 revocations, thus foreclosing APA merits review of such revocations.
Administrative Procedure Act (APA): Provides a cause of action to challenge federal agency action, generally allowing courts to set aside actions that are arbitrary, capricious, or contrary to law. However, the APA yields to specific statutes (like § 1252(a)(2)(B)(ii)) that preclude judicial review of certain agency actions.
Procedural vs. Substantive Challenges: Substantive (merits) challenges contest the agency’s ultimate decision or evidentiary weighing; these are barred for § 1155 revocations. Procedural challenges assert that the agency failed to follow binding procedural requirements; these remain reviewable in the Eleventh Circuit post-Bouarfa.
“Shotgun Pleading” and FRCP 8/10: A disfavored pleading style that obscures claims and their bases. While Rule 10(b) prefers separate counts for clarity, a clearly presented claim outside numbered counts may still be adequate if it gives fair notice and is logically distinct.
Standard of Review on Jurisdiction: The Eleventh Circuit reviews subject-matter jurisdiction de novo.

Conclusion

T & B Holding Group confirms an important post-Bouarfa boundary in the Eleventh Circuit: while district courts lack jurisdiction to review the substance of USCIS’s § 1155 revocation decisions, they may review genuine procedural challenges alleging the agency failed to follow binding procedures or precedent. The court specifically recognized the viability of a “NOIR mismatch” claim — that the AAO revoked on a ground not noticed in the NOIR, contrary to Matter of Arias — and remanded for the district court to consider it.

The opinion also takes a pragmatic approach to pleading, declining to penalize a clearly articulated procedural claim that appeared outside the complaint’s numbered counts. For practitioners, the decision underscores a two-track strategy: (1) avoid merits-based APA challenges to revocations, which are jurisdictionally barred; and (2) carefully identify and develop procedural defects, particularly NOIR-related notice issues, that remain reviewable and can yield remand for proper agency process. For USCIS and the AAO, the case is a reminder to ensure NOIRs comprehensively state the grounds for revocation and that final decisions map precisely onto those grounds.

Although unpublished, T & B’s careful synthesis of Bouarfa, Kurapati, and Arias provides persuasive guidance in the Eleventh Circuit on how litigants and courts should separate barred merits challenges from reviewable procedural claims in the § 1155 revocation context.