The Supreme Court seemed open on April 23 to the possibility of allowing U.S. citizens whose spouses were denied immigrant visas a narrowly defined opportunity to challenge those denials in court.
The case, Department of State v. Munoz, concerns the doctrine of “consular nonreviewability,” which is the legal principle that a consular official’s decision to refuse a visa to a foreigner is not subject to judicial review.
Limiting the doctrine would harm the immigration system and cripple its ability to process applications, supporters of the nonreviewability principle say. Opponents, such as those who favor expanded immigration, say relaxing it respects constitutional rights and the institution of marriage.
The doctrine, which comes out of Kleindienst v. Mandel (1972), is an exception to the Administrative Procedure Act, a federal statute enacted in 1946 that governs administrative law procedures for federal executive departments and independent agencies.
The case 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. The husband was in the United States illegally.
Gang Tattoos?
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 laid.
After a significant delay, officials ruled that Mr. Asencio-Cordero could not be issued a visa because he was viewed as criminally inadmissible to the United States.
Officials didn’t elaborate other than to cite a passage in the Immigration and Nationality Act, which states “[a]ny 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” is inadmissible.
The government argues that because of the doctrine of consular nonreviewability, under federal law, the visa denial cannot be challenged in court.
Ms. Munoz sued. Three years after the denial, she learned during the discovery process in federal district court that the government deemed her husband inadmissible to the country because he was thought to be a member of the MS-13 criminal organization.
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 husband denies any gang affiliation.
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.
Because the denial was based on “a facially legitimate and bona fide reason, the court ruled that consular nonreviewability precludes respondents’ challenges to the Department decision,” the government said.
A divided panel of the U.S. Court of Appeals for the 9th Circuit vacated the district court’s ruling and remanded the case to the lower court for reconsideration. The 9th Circuit did not reject consular nonreviewability but held that, on the facts of the case, the application of the doctrine violated the Due Process Clause of the U.S. Constitution.
The circuit court affirmed the district court’s holding that Ms. Munoz’s due process rights had been violated because, as a U.S. citizen, she had both “a fundamental liberty interest in their marriage” and “a liberty interest in residing in their country of citizenship.” The denial harmed her due process rights because its cumulative effect was “a direct restraint on [her] liberty interests.”
The court also held that because the government had waited three years after the denial of the visa to provide the married couple with the declaration about the tattoo “and did so only when prompted by judicial proceedings,” the explanation was deemed untimely.
Government’s Argument
During oral arguments on April 23, Deputy U.S. Solicitor General Curtis Gannon said last fiscal year the State Department issued 11 million immigrant and nonimmigrant visas. It denied 62,000 visa applications on inadmissibility grounds, including applications from about 5,400 noncitizens seeking to live in the United States with their U.S. citizen spouses or fiances.Ms. Munoz has no more right to challenge the denial of her husband’s visa than she would have at the conclusion of his deportation proceeding or the end of a criminal trial after which he would be sent to “a prison far across the country,” he said.
Even if for sake of argument she had “a sufficient constitutional interest to trigger any judicial review,” the Supreme Court should at a minimum find that the State Department complied with the standard laid down in Kleindienst v. Mandel, Mr. Gannon said. That precedent says as long as a visa denial was “facially legitimate and bona fide,” the courts cannot review it to ensure its constitutionality.
In this case, the consular officer provided “a facially legitimate and bona fide reason by citing a valid statutory ground of inadmissibility,” he said.
Justice Clarence Thomas asked if consular nonreviewability would preclude Ms. Munoz from winning the case even if she had a valid liberty interest.
Mr. Gannon said Ms. Munoz can’t win because she is “only indirectly affected by the government’s decision … [and] cannot challenge that.”
Justice Sonia Sotomayor agreed “the husband has no right of review,” but said the wife is arguing that each spouse “should have a right to dispute whatever basis it was that formed your denial,” which could be “something as simple … as misidentification.”
“Here, you’re saying she’s entitled to nothing,” the justice said.
Mr. Gannon replied, saying that although marriage is “an important right and that she has liberty interests that are implicated there,” the doctrine of consular nonreviewability supersedes that because it is “rooted” in the political branch’s power to determine which noncitizens should be admitted to the country and what procedures should be used in that process.
Chief Justice John Roberts asked Mr. Gannon how the government’s interest in national security should be weighed against a person’s right to marry, suggesting measuring the two things was like a comparison of “apples to giraffes.”
Responding to Justice Brett Kavanaugh, Mr. Gannon said that because security-based visa denials involve sensitive law enforcement and intelligence information, Congress decided the State Department doesn’t have to provide the information when denying a visa.
The danger in providing more information about the criminal inadmissibility finding regarding Mr. Asencio-Cordero is that “we’d be sharing information that indicates what we might know about transnational criminal organizations’ operations,” the attorney said.
Justice Neil Gorsuch questioned whether the State Department’s providing more of an explanation would actually hurt national security.
“You could simply say we think he’s a member of … a gang based on our contacts with law enforcement, period,” the justice said.
‘Very Limited’ Right of Review
Justice Sotomayor said Ms. Munoz may not have a liberty interest in the visa being granted, “but she does have a liberty interest in knowing why and an opportunity to oppose it if there is an opposition that can be had.”Such a review “would be very limited,” she added.
Ms. Munoz’s attorney, Eric T. Lee, said the government violated his client’s “right to procedural due process by denying her husband’s visa without providing a reason why.”
“This court has repeatedly acknowledged that the constitutional rights of U.S. citizens can be implicated by visa denials, and when they are, that review is necessary,” the lawyer said.
“We’re merely asking for a reasonable and workable solution, which is that some basis for the denial be given so that we can correct the possibility that there was a mistake.”
Justice Amy Coney Barrett told Mr. Lee that the Kleindienst v. Mandel precedent “doesn’t require that much” on the part of government, but “you are asking for significantly more.”
“If we think you don’t get that much more under Mandel, I guess I don’t see why” this isn’t “just game over.”
Justice Elena Kagan told Mr. Lee that even if his rights-based argument succeeds, he won’t get very much.
“It gets you this very limited judicial review, which says the government now has to say why it’s excluding that person,” she said.
“It just gives you the ability to force the government to say one or two sentences about why they’re excluding that person,” the justice added.
Because your side eventually found out that the husband was rejected because of a criminal inadmissibility finding, “why isn’t this whole thing over because you got what you wanted,” Justice Kagan told Mr. Lee.
Mr. Lee said because now, for the first time, his side would have the opportunity “to go back and harness the facts that’s necessary to try and prove the government wrong.”
There is no guarantee of a favorable result, “but that’s what due process requires,” he said.
The Supreme Court is expected to rule on Department of State v. Munoz by the end of June.
