Visa Denial Can Get Review Because Government Gave Facts Late

A US citizen and her Salvadoran husband won their bid for court review of a consular decision to deny the husband’s visa application because the government didn’t meet a requirement of “timely and adequate notice” of the supporting facts.

The government’s nearly three-year wait to reveal the basis for its belief that Luis Asencio-Cordero was ineligible for admission to the US distinguished the case from another one where the notice came within a matter of weeks, the 2–1 US Court of Appeals for the Ninth Circuit said Wednesday.

Consular decisions on visa applications are normally unreviewable, but there’s an exception where a US citizen’s fundamental rights—such as marriage—are affected, the court said.

Asencio-Cordero and his wife, Sandra Muñoz, will be able to go to the district court to argue the merits of their claims that his application was improperly denied.

The pair lived in the US, married in 2010, and have a child, according to the court. Asencio-Cordero returned to El Salvador to get an immigrant visa in 2015 and was interviewed at the consulate there. But the government rejected his application, citing a law making inadmissible anyone who intends to engage in “unlawful activity.”

The couple’s attorney followed up with the State Department, asking for the factual basis of the decision and for reconsideration. They submitted a declaration from an expert on gang tattoos, who said Asencio-Cordero’s tattoos are “merely commonly known images, such as images of Catholic icons, clowns, and other non-gang related tattoos.” Eventually, they filed suit.

The government disclosed in court documents in 2018 that the consular officer determined Asencio-Cordero was a member of the MS-13 gang, based on his interview, his tattoos, and a criminal review.

The Ninth Circuit said that information was sufficient. But the timing made the notice insufficient to overcome Muñoz’s right to review, it said. Where “the adjudication of a non-citizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest,” Judge Kermit V. Lipez said for the court. Judge Mary M. Schroeder joined Lipez, who’s with the First Circuit and sat by designation on the panel.

Judge Kenneth K. Lee, in dissent, said the majority was imposing a new timeliness requirement that infringed on executive branch powers.

Diamante Law Group APLC represented Asencio-Cordero and Muñoz. The Department of Justice represented the Department of State and government officials.

The case is Muñoz v. Dep’t of State, 9th Cir., No. 21-55365, 10/5/22.