By Leslie Dellon | Immigration Impact
In Department of State v. Munoz, the Supreme Court has chosen procedural concerns over the reality that errors by consular officers may bar U.S. citizens from residing in the United States with their noncitizen spouses.
Consular nonreviewability is a judge-made doctrine. Courts have barred review of visa denials due to separation of powers concerns—that decisions about admitting or excluding noncitizens may raise foreign policy concerns and should be left to the “political branches.”
In 2015, the Supreme Court in Kerry v. Din left open the question of whether a U.S. citizen spouse has a protected liberty interest in their spouse’s visa application. Four justices concluded that no constitutional right existed, but added that even if there were, the U.S. citizen spouse had received due process. Justice Kennedy’s concurring opinion (joined by Justice Alito) assumed a constitutional right existed, but agreed that the process provided satisfied the Due Process Clause of the U.S. Constitution.
In Munoz, the Court decided that a U.S. citizen does not have a protected liberty interest, holding that a U.S. citizen spouse has no constitutional right to live in the United States with their noncitizen spouse.
In January 2017, Ms. Munoz, a U.S. citizen, and Mr. Asencio-Cordero, a Salvadoran citizen, filed a lawsuit in a federal district court in California after trying unsuccessfully for more than one year to overcome the denial of his marriage-based immigrant visa. Since the Din case never resolved the issue, the district court followed a prior Ninth Circuit decision that concluded a U.S. citizen had a constitutionally protected liberty interest in their noncitizen spouse’s visa application. The Ninth Circuit’s position on the constitutional question meant that the federal district court decision, and the appeal, would focus on whether Ms. Munoz received due process.
The couple married in 2010. Because Mr. Asencio-Cordero did not have a status in the United States, he could only become a U.S. lawful permanent resident (LPR) by consular processing (receiving an immigrant visa abroad) and then being admitted to the United States as a LPR.
But without a waiver of his “unlawful presence,” because he was in the United States for years without being admitted or paroled by a government official, he could not return to the United States for 10 years. The couple received approval from U.S. Citizenship and Immigration Services of the immigrant petition filed by Ms. Munoz and a provisional waiver of Mr. Asencio-Cordero’s unlawful presence. The waiver would only benefit Mr. Asencio-Cordero if a consular officer did not find any other ground making him inadmissible to the United States.
However, after several interviews with a U.S. consular officer in San Salvador, the officer denied his visa application in December 2015. The officer cited to a statute making a noncitizen inadmissible if the officer “knows or has reasonable ground to believe” that the noncitizen seeks to enter to commit specified offenses or “any other unlawful activity.” Suspecting that Mr. Asencio-Cordero’s tattoos were a factor, the couple submitted a declaration from a gang tattoo expert that his tattoos were not gang-related. Mr. Asencio-Cordero had no criminal record in the United States or El Salvador and repeatedly denied that he was an MS-13 gang member.
During the lawsuit and nearly three years after the visa denial, the government submitted a declaration that the consular officer deemed him inadmissible for belonging to MS-13, based on personal interview, a “criminal review” of him, and review of his tattoos. The government also provided confidential law enforcement information only for the federal district court’s review. Applying a standard the Supreme Court announced in a 1972 decision, Kleindienst v. Mandel, the court considered whether the government had provided a “facially legitimate and bona fide reason” for the visa denial. While Mandel concerned the Attorney General’s denial of a waiver after the consular officer found a noncitizen inadmissible for a visitor visa, Justice Kennedy followed the Mandel standard in Din when considering consular nonreviewability. Satisfied with the evidence, the district court entered summary judgment for the government.
The Ninth Circuit reversed. The Ninth Circuit concluded that timeliness is a “core” component of due process, making the government’s disclosures three years after the visa denial “insufficient” to satisfy the Mandel standard. The court decided that because the government did not meet “the notice requirements of due process,” it could not invoke the consular nonreviewability doctrine and the district court could review the visa denial. The Supreme Court then accepted the government’s petition to consider the case, and in its June 2024 decision, rejected the Ninth Circuit’s analysis.
The Supreme Court could have ruled for the government in Munoz without deciding the question of a U.S. citizen’s liberty interest. Justice Gorsuch, who concurred with the five-justice opinion written by Justice Barrett, and Justice Sotomayor, joined by Justices Kagan and Jackson in dissent, pointed out that the Court did not have to reach this constitutional question. Instead, the majority could have assumed such a right exists, and concluded that Ms. Munoz received all the process she was due. Whether sufficient process meant (a) the consular officer only had to provide the citation to the “any other unlawful activity” inadmissibility ground, as the majority observed or (b) the facts the government provided after being sued, as the dissent said, the result would be no judicial review—and the constitutional issue would remain to be considered if warranted in a future lawsuit.
The dissent also pointed out that the majority disregarded the burden that foreclosing judicial review of a visa denial imposes on a U.S. citizen’s constitutional right to marry. The dissent gave examples of same-sex marriages or the marriage of a U.S. citizen to a wife whose country does not recognize derivative immigration status for their noncitizen spouses.
“The majority’s failure to respect the right to marriage in this country consigns U.S. citizens to rely on the fickle grace of other countries’ immigration laws to vindicate” the right to marry and live together, the dissenting justices commented.
The Munoz decision should not be viewed as an end to challenges to visa denials. The Mandel standard may provide a mechanism to challenge a visa denial as lacking a “facially legitimate and bona fide reason” if challengers can show a First Amendment violation (although Munoz seems to foreclose a U.S. citizen basing an argument on the noncitizen spouse’s visa application). A cause of action based on the Administrative Procedure Act (APA) challenging a visa denial as “arbitrary and capricious” or an “abuse of discretion” may be possible in those courts where this avenue has not been foreclosed. Another possibility may be if the consular officer’s decision can be demonstrated to be in bad faith.
More research and more decisions will reveal whether successful challenges can be made.