The Supreme Court on June 21 denied an appeal aimed at allowing U.S. citizens whose spouses were denied immigrant visas an opportunity to challenge those denials in court.
The ruling was handed down days after President Joe Biden unveiled a new policy that allows immigrant spouses of U.S. citizens to apply for permanent resident status without leaving the United States.
“The steps I’m taking today are overwhelmingly supported by the American people, no matter what the other team says,” the president said in an apparent reference to Republicans critical of his immigration policies.
“The reason is simple: It embraces the American principle that we should keep families together,” President Biden said on June 18.
In the case, Department of State v. Munoz, the high court upheld the doctrine of “consular nonreviewability,” which is the legal principle that a U.S. consular official’s decision to refuse a visa to a foreigner is not subject to judicial review.
At the same time, the court found that a U.S. citizen “does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”
A liberty interest consists of an individual’s right to do or not do anything, as one wishes. The liberty interest is based on due process rights. Laws may curb an individual’s liberty interest but only to advance narrow, compelling governmental interests.
Immigration restrictionists had worried that the court might limit the doctrine, which they say would harm the immigration system and cripple its ability to process applications. Those who favor expanded immigration have said relaxing it would respect constitutional rights and the institution of marriage.
The case at hand goes back to 2005 when Luis Asencio-Cordero, a Salvadoran citizen, first arrived in the United States. U.S. citizen Sandra Munoz married him in 2010, and together, they had a child who is a U.S. citizen. Mr. Asencio-Cordero was in the United States illegally.
Ms. Munoz sponsored her husband for a U.S. immigration visa. In 2015, he returned to his native El Salvador to obtain the visa. At the initial interview abroad, he was subjected to a body search.
The officials photographed his tattoos and asked why he got them. They found a tattoo of comedy and tragedy theater masks, one of a pair of dice, and one of three ace cards. Other tattoos depicted the Virgin of Guadalupe, Sigmund Freud, and a tribal design featuring a paw print.
Officials asked Mr. Asencio-Cordero about his criminal record. He said he was arrested once when he got into a fight with a friend. They were held in jail for three days and released with no charges being filed.
After a significant delay, officials ruled that Mr. Asencio-Cordero could not be issued a visa because he was deemed criminally inadmissible to the United States.
Because of national security concerns, officials at the time didn’t elaborate other than to cite a passage in the Immigration and Nationality Act, which states, “Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in ... any other unlawful activity” was inadmissible.
The government argued that because of the doctrine of consular nonreviewability, the visa denial could not be challenged in court.
Ms. Munoz sued. Three years after the visa denial, she learned during the discovery process in federal district court that her husband was deemed to be inadmissible to the United States because the government believed he was a member of the MS-13 criminal organization. The husband denied having any gang affiliation.
The consular official reached this conclusion based on “the in-person interview, a criminal review of Mr. Asencio-Cordero, and a review of [his] tattoo,” according to the government. U.S. Department of State documents also described “the basis for the consular officer’s belief that Asencio-Cordero was a member of MS-13.”
The federal district court ruled in favor of the government in March 2021 and noted the consular officer’s finding that Mr. Asencio-Cordero was a member of MS-13.
As the denial was based on “a facially legitimate and bona fide reason, the court ruled that consular nonreviewability precludes respondents’ challenges to the Department’s decision,” the government said.
A divided panel of the U.S. Court of Appeals for the Ninth Circuit vacated the district court’s ruling and remanded the case to the lower court for reconsideration. The Ninth Circuit did not reject consular nonreviewability but held that, based on the facts of the case, the application of the doctrine violated the due process clause of the U.S. Constitution.
In the new majority opinion, Justice Barrett wrote that Ms. Munoz invoked a “fundamental right of marriage,” yet no consular official denied that she had a fundamental right to marry.
“It is difficult to pin down the nature of the right Munoz claims,” the justice wrote.
“Munoz claims something distinct: the right to reside with her noncitizen spouse in the United States,” which “involves more than marriage and more than spousal cohabitation—it includes the right to have her noncitizen husband enter (and remain in) the United States.”
“This right would be in a category of one: a substantive due process right that gets only procedural due process protection,” Justice Barrett wrote.
The court need not decide whether such a novel category exists because Ms. Munoz cannot show that the right to bring a noncitizen to the United States “is deeply rooted in this Nation’s history and tradition,” she wrote, citing previous precedent.
Substantive due process is the principle that the Constitution’s Fifth and Fourteenth Amendments safeguard fundamental rights from government interference. Both amendments prevent the government from depriving anyone of “life, liberty, or property without due process of law.” The Fifth Amendment covers federal action, while the Fourteenth Amendment pertains to state action, according to the Legal Information Institute at Cornell Law School.
Substantive due process protects those personal and relational rights, as distinguished from economic rights, that are not explicitly mentioned in the Constitution’s Bill of Rights and that are deeply rooted in U.S. history and tradition, as seen in the context of evolving social norms.
Procedural due process, on the other hand, is about the procedures the government has to use in criminal and civil proceedings.
The government has the authority to establish rules governing the admission and exclusion of noncitizens, and Ms. Munoz points “to no tradition that curbs this authority in the case of noncitizen spouses,” Justice Barrett wrote.
Justice Sotomayor filed a dissenting opinion that was joined by Justices Kagan and Jackson.
Although “marriage is not an automatic ticket to a green card,” there is no question that “excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision.”
Ms. Munoz enjoys “a constitutionally protected interest in her husband’s visa application because its denial burdened her right to marriage.”
But once her husband left the United States for his consular interview abroad, “their marriage ceased to matter. Suddenly the Government owed her no explanation at all,” Justice Sotomayor wrote.
“The constitutional right to marriage is not so flimsy. The Government cannot banish a U.S. citizen’s spouse and give only a bare statutory citation as an excuse,” she added.
Christopher Hajec, director of litigation at the Immigration Reform Law Institute, who previously said that a contrary decision could imperil the nation’s immigration system, told The Epoch Times the Supreme Court did the right thing.
“The country is entitled to decide whether people who might be threats to public safety may be excluded. There is nothing in the Constitution that limits that right, including the fact that such a person is married to a U.S. citizen,” Mr. Hajec, who co-wrote the group’s friend-of-the-court brief in the case, said.
“The Court applied the law and the Constitution correctly and did not read the Constitution to limit U.S. sovereignty,” he said.
The American Civil Liberties Union (ACLU), which also a filed friend-of-the-court brief in the case, criticized the new ruling.
“The Supreme Court says a U.S. citizen has no protected interest in living with her noncitizen spouse in her own country,” ACLU senior staff attorney Daniel Galindo said in a statement.
“We strongly disagree. At a minimum, she should be entitled to a fair process,” he said.
