The Supreme Court has agreed to review the case of an El Salvadoran citizen whose immigration visa was denied in part because a visa officer thought his tattoos indicated gang membership.
The government argues that under federal law the visa denial cannot be challenged in court.
At issue is 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 ordinarily subject to judicial review.
The first is whether is 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 second is whether, if such a constitutional interest exists, “notifying a visa applicant that he was deemed inadmissible … suffices to provide any process that is due.”
The court granted the petition for certiorari, or review, in Department of State v. Munoz, in an unsigned order on Jan. 12. No justices dissented. The court did not explain its decision. At least four of the nine justices must vote for the petition for the case to advance to the oral argument stage.
The case goes back to 2005 when Luis Asencio-Cordero first arrived in the United States. U.S. citizen Sandra Munoz, an attorney, married him in 2010 and they had a child together who is a U.S. citizen. The husband was unlawfully present in the country.
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 at the U.S. Consulate in San Salvador, he was subjected to a body search, according to the Los Angeles Times.
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 and 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 few months, officials ruled that Mr. Asencio-Cordero could not be issued a visa.
MS-13 Gang
Ms. Munoz sued. During the discovery process at the federal district court level evidence was produced showing her husband was turned down because he was believed to be a member of the MS-13 criminal gang.She wrote in a footnote that the government also presented to the court “for in camera review, 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 did not rely on that in camera material in its summary judgment ruling,” she added.
The district court ruled in favor of the government in March 2021 and noted the consular officer’s finding that Asencio-Cordero was a member of MS-13.
“Because the denial was therefore based on a facially legitimate and bona fide reason, the court ruled that consular non-reviewability precludes respondents’ challenges to the Department decision.”
The circuit court held that because the government had waited almost 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.
The court concluded that the government had forfeited its claim of consular non-reviewability by failing to hand over a timely explanation to the couple. The visa decision cannot be “shield[ed] … from judicial review” and the district court “may ‘look behind’ the government’s decision,” Ms. Prelogar wrote, quoting the court.
The 9th Circuit noted in its decision that the couple submitted a declaration from an attorney and court-approved gang expert who said that Mr. Asencio-Cordero “does not have any tattoos that are representative of the [MS-13] gang or any other known criminal street gang,” and that none of his tattoos were “related to any gang or criminal organization in the United States or elsewhere.”
The expert added that “[m]ost of the tattoos ... are merely commonly known images, such as images of Catholic icons, clowns, and other non-gang related tattoos.”
The Epoch Times reached out for comment to Ms. Munoz’s attorneys, Eric Lee of Diamante Law Group in Southfield, Michigan, and Charles Roth of the National Immigration Justice Center in Chicago, Illinois, as well as the U.S. Department of Justice.
No comments were received as of press time.
The court has not yet scheduled an oral argument in the case. A decision is expected by June.
