Fofana: The Adjustment Review Bar Covered Eligibility as Well as Discretion

In Fofana v. Noem, No. 24-2485, the Eighth Circuit held that a federal district court lacked jurisdiction to review the denial of an asylee’s application for adjustment of status. The January 9, 2026 opinion treated the statutory bar as covering the agency’s eligibility determination as well as its ultimate discretionary decision. It reversed a judgment for the applicant and directed dismissal of the complaint.

Subsequent history: The Supreme Court’s official docket in No. 25-1154 records denial of certiorari on October 13, 2026. That leaves the Eighth Circuit judgment in place; denial of review is not a Supreme Court merits opinion.

The decision arose in Minnesota and applies the Eighth Circuit’s reading of the jurisdictional statute. Its central lesson is about the route to review: A district court must have authority to hear the challenge before it can decide whether the agency’s reasons were legally or factually sound.

An asylum grant preceded a disputed adjustment denial

Abrahim Fofana, a Liberian citizen, attempted to enter the United States using fraudulent documents in January 2001. When seeking asylum, he disclosed that he had raised money for the United Liberation Movement of Liberia for Democracy while a student in Saudi Arabia. He claimed that his affiliation with ULIMO would expose him to persecution in Liberia. An immigration judge granted asylum in April 2001. Official opinion, page 2.

Fofana applied for adjustment in July 2002. USCIS denied the application in June 2018, finding him inadmissible because he had solicited funds for what the agency considered a Tier III terrorist organization. The asylum grant and the later adjustment application therefore produced different agency outcomes concerning the disclosed conduct. The appeal before the court in 2026 concerned judicial review of the adjustment decision, rather than a new decision on the original asylum application.

The district court had twice ruled for Fofana

Fofana first obtained a district-court judgment based on collateral estoppel. The Eighth Circuit reversed that judgment in 2021 and remanded. On remand, the district court again ruled for him, this time rejecting the government’s jurisdictional objection and identifying several defects in the agency’s inadmissibility analysis. Pages 2–3.

The district court distinguished statutory definitions concerning terrorist activity and fundraising. It also concluded, alternatively, that the agency had not adequately addressed whether ULIMO’s violent activities were authorized by its leadership, and that the record did not support the finding about Fofana’s knowledge. It ordered reconsideration by USCIS. These were the district court’s merits rulings; the 2026 appellate disposition turned instead on whether the district court could make them. Page 3.

The dispute centered on the catchall review bar

Section 1252(a)(2)(B) contains two clauses. Clause (i) identifies particular forms of relief. Clause (ii), at issue here, addresses other decisions or actions whose authority is specified by statute to be discretionary. The asylee-adjustment statute, 8 U.S.C. § 1159(b), expressly places adjustment in the Secretary’s or Attorney General’s discretion. Pages 3–4.

Fofana accepted that the ultimate discretionary choice was insulated from review. He argued that eligibility came first and was a separate, nondiscretionary determination. Under that proposed two-step reading, a court could examine whether he satisfied the eligibility requirements even if it could not review the final exercise of discretion. Page 4.

The panel read the bar to cover the entire adjustment decision

The panel noted that the Supreme Court had not resolved the eligibility-versus-final-discretion question, citing Bouarfa v. Mayorkas, 604 U.S. 6, 19 (2024). That observation matters when identifying whose rule this is: The January opinion states the Eighth Circuit’s answer, rather than a Supreme Court holding on asylee-adjustment eligibility. Fofana, page 4.

The court used the Supreme Court’s reasoning in Patel v. Garland to interpret the neighboring catchall clause. Patel had construed clause (i)’s reference to any judgment regarding specified relief to include eligibility findings, rather than only the last discretionary choice. The Eighth Circuit considered clause (ii)’s reference to any other decision or action at least as broad. Pages 4–5.

The panel also relied on Kucana v. Holder in treating the enumerated clause and catchall as addressing decisions made discretionary by legislation. Because § 1159(b) specified discretion over adjustment, the panel concluded that the review bar covered all aspects of the decision, including eligibility. It rejected the contention that the absence of the word “regarding” in clause (ii) required a narrower result. Pages 5–6.

This was a statutory-interpretation holding about the adjustment decision under review. The panel did not reach the district court’s competing analyses of ULIMO, the statutory terrorism definitions or Fofana’s knowledge. The court’s jurisdictional conclusion prevented a district-court merits judgment from standing.

The earlier predicate-question decision did not preserve jurisdiction

Fofana relied on Bremer v. Johnson, which had discussed review of certain nondiscretionary legal questions. The panel distinguished the actual question in Bremer: whether a petition already filed meant there was any decision left for the Secretary to make. That was different from reviewing the Secretary’s decision on an adjustment application. Pages 6–7.

The court clarified broader language in earlier cases in light of Patel. Calling an objection a legal question or an eligibility issue therefore did not resolve the jurisdictional problem in Fofana’s district-court suit. The particular statute, agency decision and procedural route remained essential.

The judgment required dismissal, not a new adjustment merits ruling

The Eighth Circuit reversed and remanded with instructions to dismiss for lack of jurisdiction. Page 7. It did not itself decide that the agency’s terrorism-related factual findings were correct. Nor did it order USCIS to approve adjustment.

For an asylee facing an adjustment problem, the underlying inadmissibility question and the available review procedure need separate analysis. The practical guide to admissibility review after an asylum grant explains why the earlier grant does not eliminate the later review. A California case also requires assessment of the governing law and procedural posture for the forum where review is sought.