Key Points

  • The Tenth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) does not bar district court review of USCIS's mandatory threshold determination that a person was not a refugee at the time of admission.
  • The court explicitly acknowledged creating a circuit split with the Fourth, Eighth, and Ninth Circuits on the scope of the jurisdiction-stripping provision.
  • The majority distinguished between 'subsidiary' determinations that are integral to a discretionary scheme and 'preliminary' ones that are antecedent to any exercise of discretion.
  • Judge Tymkovich dissented, arguing that the Supreme Court's decision in Mullin v. Doe requires holding that subsidiary decisions merge into unreviewable final agency actions.
  • A cert petition is already pending at the Supreme Court in a related Eighth Circuit case, Fofana v. Noem.

The U.S. Court of Appeals for the Tenth Circuit ruled Monday that federal courts have jurisdiction to review whether immigration officials correctly determined that a person was not a refugee at the time of admission, explicitly breaking with three sister circuits and deepening a split that could draw Supreme Court attention.

The 2-1 decision in Mukantagara v. Mullin reversed a district court dismissal and allows a Rwandan woman accused of participating in the 1994 genocide to challenge the government's termination of her refugee status. Judge Phillips wrote for the majority, joined by Judge McHugh. Judge Tymkovich dissented.

The case turns on whether 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial review of immigration decisions "specified" to be within agency discretion, applies to the threshold question of whether someone met the statutory definition of "refugee" when admitted to the country. The majority held it does not, reasoning that terminating refugee status involves two distinct decisions: first, a mandatory finding about whether the person qualified as a refugee at admission, and second, a discretionary choice about whether to terminate status.

Because Mukantagara and her son challenged only the first decision, which the court deemed nondiscretionary, the jurisdiction-stripping provision does not apply, Phillips wrote.

The ruling puts the Tenth Circuit at odds with the Fourth, Eighth, and Ninth Circuits, which have applied Supreme Court precedent broadly to strip courts of jurisdiction over subsidiary determinations leading to discretionary immigration decisions. The majority did not shy from the disagreement.

"We acknowledge that this is a split, and we respectfully disagree with our colleagues in the Fourth, Eighth, and Ninth Circuits," Phillips wrote. The court added that it interprets the statute "based on what Congress said, and not what it may have meant to the contrary."

The case has an unusual procedural history. The same panel originally ruled for Mukantagara in early 2026, but vacated that decision after the Supreme Court issued Mullin v. Doe, which addressed similar jurisdiction-stripping questions in the context of Temporary Protected Status. The panel invited supplemental briefing and held new oral arguments before reaching substantially the same result—but this time without Tymkovich, who had joined the original opinion and now dissents.

Agnes Mukantagara entered the United States as a refugee in 2005, with her son Ebenezer Shyaka admitted as her minor dependent. Two years later, the government paused her status and began investigating whether she had participated in the Rwandan genocide. In 2016, U.S. Citizenship and Immigration Services concluded she had and terminated her refugee status under the "persecutor bar."

Mukantagara denied the allegations, claiming that USCIS relied on false accusations from a politically motivated organization acting on behalf of Rwanda's ruling party. An immigration court found her credible and granted her asylum in separate removal proceedings, but ruled it could not review USCIS's termination of her refugee status.

She then sued USCIS in federal district court under the Administrative Procedure Act. The district court dismissed, holding that the jurisdiction-stripping provision applied.

The majority distinguished the Supreme Court's recent decision in Mullin v. Doe, which held that mandatory steps leading to a discretionary TPS termination were "subsidiary" to the final decision and thus shielded from review. Phillips drew a line between subsidiary determinations—those integral to a discretionary scheme—and "preliminary" ones that answer separate questions antecedent to any exercise of discretion.

The refugee determination, Phillips wrote, "is preliminary to the Attorney General's exercise of discretion" because it "applies a fixed statutory definition that exists outside of the discretionary scheme to a specific question about prior eligibility."

Tymkovich, in dissent, called the majority's subsidiary-preliminary distinction "one without a difference." He argued that Doe's merger principle controls: when an agency's final action is unreviewable, so too are the subsidiary decisions leading to it.

"By making USCIS's subsidiary decision subject to judicial review, the majority has effectively stripped the agency of its discretion to terminate an alien's refugee status," Tymkovich wrote. "The agency can now terminate an alien's refugee status only if a court agrees with its subsidiary decision that the alien was not a refugee when he entered the country."

He warned that the ruling "flies in the face of Congress's statutory scheme" and would "eviscerate the bar on judicial review."

The circuit split could tee up Supreme Court review. A cert petition is already pending in the Eighth Circuit's Fofana v. Noem decision, docketed as No. 25-1154, which reached the opposite conclusion on the scope of the jurisdiction-stripping provision.

The case now returns to the District of Utah, where the court will consider the merits of Mukantagara's APA challenge for the first time.

Daniel R. Black of Stowell Crayk represented the appellants. Aneesa Ahmed of the Justice Department appeared for the government.