A complex upcoming Supreme Court case could weaken a key tool the government uses in immigration law enforcement and throw the system into chaos, legal sources say.
On April 23, the Supreme Court will hear Department of State v. Munoz, which concerns spousal sponsorship.
The case at hand deals with the doctrine of “consular nonreviewability,” which is the legal principle that a consular official’s decision to refuse a visa to a foreigner isn’t subject to judicial review.
Clamping down on the doctrine would harm the immigration system and cripple its ability to conduct business, 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 is a judge-made exception to the Administrative Procedure Act (APA), a federal statute enacted in 1946 that governs administrative law procedures for federal executive departments and independent agencies. At the time, Sen. Pat McCarran (D-Nev.) said the APA was “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the federal government.”
The power to decide who gets to enter the United States is vested in the legislative and the executive branches, not the judicial branch.
Facts of the Case
Foreign citizens have minimal rights in the immigration process, so the Supreme Court is expected to focus on whether U.S. citizens have a constitutionally protected interest in visa petitions sponsoring their spouses.The case is about Luis Asencio-Cordero, a Salvadoran citizen with no criminal record whose U.S. immigration visa was denied because a consular officer thought his tattoos indicated gang membership. His wife, U.S. citizen Sandra Muñoz, challenged the consular decision in court, arguing that her rights as a citizen were violated.
Mr. Asencio-Cordero first arrived in the United States in 2005. Ms. Muñoz married him in 2010 and they had a child together who is a U.S. citizen. Mr. Asencio-Cordero was in the country illegally.
Ms. Muñoz 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 at the U.S. Consulate in San Salvador, 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 aces. 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 had been 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 couldn’t be issued a visa because he was viewed as criminally inadmissible to the United States.
The government argues that under federal law, the visa denial can’t be challenged in court.
Ms. Muñoz sued. Three years after the denial, she learned during the discovery process in federal district court that the government deemed him inadmissible to the country because he was thought to be a member of the MS-13 criminal organization.
She wrote in a footnote that the government also presented to the court “State Department documents containing sensitive information describing the basis for the consular officer’s belief that Asencio-Cordero was a member of MS-13.”
The 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.
Court of Appeals
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 didn’t 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. Muñoz’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 untimely.
The court concluded that the government had forfeited its claim of consular nonreviewability by failing to hand over a timely explanation to the couple. The visa decision cannot be “[shielded] ... from judicial review” and the district court “may ‘look behind’ the government’s decision.”
Judge Patrick Bumatay dissented from the denial of the rehearing, writing that the panel was wrong to find that Ms. Muñoz had a “liberty interest” in the visa denial of her husband.
And this “novel ‘timeliness’ requirement has no basis in the law,” he wrote. Throughout the 100-year existence of consular nonreviewability, “no court has invented the rule that the government must act within a certain timeframe.”
“Congress has explicitly said that the government has no duty to give timely notice to an alien excluded on security-related grounds,” the judge wrote.
“This new speedy-notice requirement will be an administrative nightmare. Now consular officers will have to sift through countless visa applications to determine who is entitled to the heightened notice by relation to some citizen.”
She argued that she has a due process-based right to be given a reasonable opportunity to respond to the inadmissibility finding.
The due process clause “prohibits consular officers from upending the marital home of a U.S. citizen without providing notice or a meaningful opportunity to respond,” the brief states.
‘Chaos’ If Doctrine Struck Down
Former immigration judge Matt O’Brien told The Epoch Times that a decision by the Supreme Court to strike down or modify consular nonreviewability “threatens chaos” and may drive the business of the courts “to a halt.”U.S. courts are already overburdened with an up to 6 million-case backlog, said Mr. O’Brien, who is now director of investigations at the Immigration Reform Law Institute (IRLI).
“And the fastest growing category of cases in the federal courts are immigration-related matters,“ he said. ”So this could have a serious impact on the courts, because what it would do is create a whole new category of people that now have a right to federal judicial review of a decision which traditionally has not been one that the courts would occupy themselves with.”
Immigration is a national security issue that isn’t supposed to be left to the courts, he said.
The Ninth Circuit’s decision in this case is an “aberration.” It amounts to a ruling that “all the immigration laws are meaningless when it comes to people married to U.S. citizens.”
Consular nonreviewability is “a good doctrine” that appropriately leaves decisions with the bodies that were intended to make them, according to the constitutional framework the nation’s Founders created, he said.
The doctrine leaves decisions to Department of State officials on the ground who have expertise about specific countries and the specific issues related to those countries, instead of assigning them to judges who the week before may have been dealing with bankruptcies and violations of the Migratory Bird Act or other statutes, he said.
Although Ms. Muñoz doesn’t have any right of review in the courts, the left wants to expand the power of the courts to address perceived wrongs, Mr. O’Brien said.
“[They] want to believe that the court is a referee with no limits on its jurisdiction, so whenever there is a dispute that involves anything that resembles law, they [think they] can bring it in front of the court and get a decision, and that settles the matter,“ he said. ”But of course, that’s not the function of courts in a common law system, and particularly in a constitutionally oriented common law system like we have.”
“The open-borders extremists align, generally speaking with the radical progressive left, and believe the notion that the Constitution is a living document that adapts [and this] means that legal decisions are never finalized and binding.”
But that doesn’t mean Ms. Muñoz is out of options, he said.
There is no permanent bar to an immigration application’s being submitted again in the future, and there is still an internal appellate process within the immigration system for visa denials, he said.
“You don’t have as a traditional right, deeply rooted in our nation’s history and tradition, to live in the United States with your dangerous alien spouse,” Mr. Hajec told The Epoch Times.
“The American people have a sovereign right to determine who comes here to live, and that’s not ever been thought to be lessened because of marriage.”
The marriage in this case doesn’t supersede other public policy considerations, he said. Mr. Asencio-Cordero and Ms. Muñoz are free to go live together in a foreign country, he added.
Weakening the doctrine “would result in an unworkable immigration system where you can review everything and cripple the ability of the government to protect the country from dangerous aliens.”
“You can’t have a smoothly functioning system if it’s going to be plunged into court at every turn,” Mr. Hajec said.
Longtime court watcher Curt Levey, president of the conservative Committee for Justice, said that although the government discussed the doctrine in its submissions to the Supreme Court, the court didn’t actually mention the doctrine when it agreed to hear the case.
The court said it would consider whether a consular official’s denial of a visa to a noncitizen spouse of a U.S. citizen “impinges upon a constitutionally protected interest of the citizen.” The court also said that if such a constitutional interest exists, it would consider whether “notifying a visa applicant that he was deemed inadmissible ... suffices to provide any process that is due.”
It’s difficult to predict how the Supreme Court will decide the case because the two sides disagree on what the existing law is, Mr. Levey told The Epoch Times.
There is no statute here defining any liberty interest Ms. Muñoz may have, but that interest could be grounded in existing law and constitutional law, he said.
That said, the court seems unlikely to make a “sweeping” ruling about the doctrine, he said.
“The nonreviewability of most immigration decisions is not at stake here,“ Mr. Levey said. ”At most, it’s nonreviewability of visa applications in consular offices.”
“There’s no threat to the immigration system, generally.”
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