Supreme Court Visa Denial Case Risks Slamming Door on Appeals

A brief interview was all it took for Luis Asencio Cordero to be blocked from rejoining his American wife in the US.

At the US Consulate in San Salvador in May 2015, the immigration officer asked him to take off his shirt. Asencio complied, revealing his tattoos. The officer asked if he was a gang member. Asencio said no.

Asencio later got a letter denying him a visa to rejoin his wife, Sandra Muñoz, because of alleged “unlawful activity.” The couple believed that Asencio’s tattoos triggered the immigration officer’s suspicions of a gang affiliation, according to court documents.

The couple’s legal battle to find out what was behind the denied visa and to challenge the consular officer’s findings is at the heart of a case the Supreme Court will hear Tuesday, Dep’t of State v. Muñoz.

The case is the first test at the high court in nearly a decade of whether US citizens have a constitutional interest in visa decisions for their foreign spouses. It also raises what due process applicants are entitled to in cases of a visa denial. A decision could have ripple effects for other visa categories like employment-based visas.

The Biden administration is asking justices to reverse a circuit court decision in favor of Muñoz finding that consular officials didn’t provide sufficient reason in a reasonable time for the visa denial. Her lawyers say that decision correctly found she has a fundamental right to marriage affected by the visa denial and that the couple didn’t have a proper chance to contest the decision.

“The argument of the Biden administration is that whether the sponsor is a spouse or an employer, the petitioner has no rights when the visa is denied, no matter how arbitrary the denial,” said Eric Lee, the attorney for Muñoz.

The case has revived the possibility that the justices could revisit a decades-old judicial shield for consular officials—once an official denies a visa, the petitioner can’t appeal the decision through the courts. The Biden administration has asked the justices to make clear that there are no time limits on the shield, known as the doctrine of consular nonreviewability.

The doctrine was shaped by Supreme Court decisions from the early and mid-20th century that established visa decisions couldn’t be reviewed by the courts.

Muñoz’s lawyer and US citizens who are trying to bring their spouses to the US hope the case will temper the unlimited powers of consular officers. But other attorneys fear that the conservative majority in the Supreme Court could deliver a setback for immigrants by finding Americans don’t have a protected interest in foreign spouses’ visa applications or by further entrenching consular nonreviewability.

Free Rein?

The government violated Muñoz’s rights by taking too long to explain its denial, the Ninth Circuit found. Its failure to act more promptly meant that the US couldn’t prevent a review. The Biden administration has argued that the ruling was wrong because the government met its due process obligations by citing the relevant statute.

If the right to marriage with a spouse in the US isn’t seen as a core right, it’s hard to imagine challenges to employment-based visa denials standing a chance in court, said Daniel Pierce, a partner with the government strategies and compliance group at Fragomen Del Rey Bernsen & Loewy LLP.

“I’m nervous that they may rule more broadly than they need to and shut off rights for US employers and other types of family relationships,” he said. “There are a lot of cases that are going to be affected in the lower courts.”

The court could go further in restricting challenges by finding citizen spouses have no rights implicated by visa denials, said Ira Kurzban, an attorney at Kurzban Kurzban Tetzeli & Pratt, P.A. and past president of the American Immigration Lawyers Association. Kurzban has argued several cases before the Supreme Court.

“The question is, do they want to pontificate on whether there is a constitutional right ever, for anybody, in any case in the future? Or do they just want to shut the door on that entirely?” he said.

The Supreme Court will likely defend the rights of consular officers to deny visas, said Muzaffar Chishti, a senior fellow at the Migration Policy Institute, a nonpartisan think tank that produces research and analysis on immigration and border issues. He said other recent decisions by the court under Chief Justice John Roberts on foreign policy and border cases have granted the administration discretion in foreign policy.

“Every single immigration case in the last three to four years — remain in Mexico, prosecutorial discretion, buoys on the Texas border — the administration has prevailed because of the chief justice,” Chishti said.

Tattoo Trouble

Asencio, an undocumented immigrant, married Muñoz in July 2010. Five years later, his visa petition approved by US Citizenship and Immigration Services, he traveled to El Salvador for a consular interview, the final step to secure his immigrant visa, but months later received a denial from the consulate.

Suspecting the denial was linked to Asencio’s tattoos, the couple submitted an affidavit from an expert in 2016 that Asencio’s tattoos of Catholic icons and clowns were not gang-related. The State Department ruled it had no reason to question the original decision. After Muñoz sued the State Department in 2017, court documents confirmed the application was rejected because a consular official linked her husband’s tattoos to MS-13, an international gang.

Meanwhile, another couple asked the Supreme Court to review a US Court of Appeals for the District of Columbia decision rejecting a challenge to a visa denial. Kristen and Edvin Colindres Juarez appealed to the D.C. Circuit after a lower court found the decision was insulated from review by the doctrine of consular nonreviewability. The high court hasn’t decided if it will take up their case yet.

Kristen and Edvin Colindres Juarez.

Photo: Courtesy of Kristen Colindres

In response to a request for comment on the Muñoz case, a State Department spokesperson said it doesn’t comment on pending litigation. National security is the department’s top priority when adjudicating visa applications, the official said.

‘Bona Fide’ Denial

The court last considered spousal rights in 2015 in a case, Kerry v. Din, involving a US citizen who sued over a visa denial for her husband, an Afghan citizen and former civil servant with the Taliban government. The Ninth Circuit said the government hadn’t offered a “facially legitimate and bona fide” reason for the denial, but the court sided with the government in a 5-4 decision.

Justice Antonin Scalia said in a majority opinion joined by two other justices that US citizens had no constitutional right to live in the same country as their spouse. But in a more narrow concurring opinion that established legal precedent in that case, Justice Anthony Kennedy sidestepped that question entirely and found that, even if a spouse had a constitutional interest at stake, the government had met its obligations to offer a legitimate reason for the denial by citing relevant statute barring individuals for engaging in “terrorist activities.”

A Supreme Court ruling could clarify contrasting circuit court interpretations of that ruling. Siding with Muñoz, the Ninth Circuit ruled that she did have a constitutional interest in her husband’s case and that the government was required to cite reasons behind the denial in a timely manner. In the D.C. Circuit, the court found marriage alone didn’t lead to a constitutional liberty interest and that the government only needed to offer a bare-bones statutory justification for denying a visa, said Pierce of Fragomen.

The circuit courts had read the Kennedy opinion “in radically different ways to reach opposite conclusions, at least in part because of confusion regarding which of the opinions control,” he said.

The government has argued that, if allowed to stand, the Ninth Circuit’s interpretation could disrupt and slow visa adjudications at US consulate operations as officials attempt to comply with the Ninth Circuit’s requirement of a timely explanation of visa denials. It will also create a “chilling effect” on information sharing by government agencies and foreign partners about security issues, the government said.

Muñoz’s lawyer said the prospect of information from a foreign government leading to the visa denial emphasized the importance of judicial review.

Businesses and elected officials often press consular officials to overturn or change visa decisions, said Simon Hankinson, a senior research fellow at the Heritage Foundation’s Border Security and Immigration Center, which backs restrictive immigration policies. But caseloads in the hundreds of thousands per year for consular officers make re-opening individual decisions unworkable, he said.

“I can see no national interest in opening up cases like this for reviewability,” he said. “Does it mean every now and then a decision will be made that might, if had been reviewed, overturned? Probably. You have to balance the national interest of being able to quickly review lots and lots of applicants so that you can let the majority in.”

The case is Dep’t of State v. Muñoz, U.S., No. 23-334, oral arguments 4/23/24.