The U.S. Supreme Court recently ruled that a U.S. citizen whose husband was denied admission to the United States did not have the right to demand that the State Department provide a reason for refusing to grant her husband a visa. This decision reversed a determination by the Ninth Circuit Court of Appeals, who had held that the citizen, Sandra Muñoz, had a constitutionally protected liberty interest in her husband’s visa application. Instead, the U.S. Supreme Court found that whatever interests she had did not rise to a level that would justify overriding the discretion of the U.S. State Department.
What does this decision mean for visa applicants who are waiting for a decision or who have been denied admission even though they are married to U.S. citizens? While the full ramifications may not be immediately clear, it becomes more important than ever to ensure that visa applicants do all they can to present documentation showing that any suspicious activity in their background should no longer provide grounds for concern. There was evidence that the visa applicant in this case had been a member of the transnational criminal gang MS-13 and he apparently did not take sufficient steps to sever connections that posed a threat to national security, at least in the eyes of immigration officials.
What Happened in the Case
The Supreme Court decision, Department of State v. Munoz, involves a married couple, Sandra Muñoz and Luis Asencio-Cordero. Muñoz is a U.S. citizen and Asencio-Cordero is a native of El Salvador. While USCIS approved the couple’s petition for immigration, when Asencio-Cordero applied for a visa at the consulate in El Salvador, an official denied his application after evidence indicated that Asencio-Cordero was a member of MS-13. The officer did not give a reason for the decision.
While Asencio-Cordero did not have legal grounds to challenge the decision, his wife believed she did have grounds. She argued that her right to live with her husband in the U.S. was protected by the Fifth amendment as a liberty right, and that the government could not deny that right without due process of law. By failing to reveal the reason for denying her husband’s visa, Muñoz claimed that the immigration official denied her due process right.
Visa Denials Are Not Usually Reviewable in Court
Generally, a decision to deny a visa is not a decision that can be appealed in court. In this case, the couple tried to create a different way to review the decision by relying on the rights of the applicant’s spouse, who was a citizen, instead of the rights of the applicant.
However, the Supreme Court held that the right to bring a noncitizen spouse into the U.S. is not a constitutional right. Muñoz would have had to prove that such a right was “deeply rooted in this Nation’s history and tradition,” and the Court said she failed to make such a showing. The Court held that decisions of consular officers can only be reviewed in very narrow circumstances.
When Do Consular Officers Have to Provide Reasons for Denying a Visa?
This issue in this case did not technically hinge on the admission of the spouse into the U.S. but rather on the State Department’s failure to explain why they refused admission. Normally, when an officer at an embassy or consulate determines that a foreign national is inadmissible, they must specify the provisions in the law that provide grounds for the finding of inadmissibility. However, when an individual is found to be inadmissible due to reasons related to criminal activity or national security, then an explanation is not required. In this case, the consular officer cited the legal provision making an individual inadmissible when the officer “knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in” certain specified offenses or “any other unlawful activity.”
Concern for Abuse of Consular Discretion
Some immigration attorneys have expressed concerns that this decision could encourage consular officials to make “erratic” decisions knowing that their determination cannot be challenged in court. In addition, the finding that a citizen does not have a fundamental liberty interest in bringing a spouse to the U.S. could make it more difficult for spouses to reunite in some cases.
Learn More About Family Reunification, Visas for Spouses, Consular Processing, and Other Key Issues
The Muñoz case calls attention to several critical issues in immigration law and demonstrates the need to take great care before embarking on each step in the immigration process. If Asensio-Cordero had not revealed an MS-13 tattoo at his immigration interview, or if he had worked with an attorney to provide evidence to prove he had no current connection with the gang, his application might have been approved without the need for legal action.
While the Muñoz case may be disappointing, it still leaves open many avenues for successful immigration for those who take the right steps to prepare. A consultation with a knowledgeable immigration lawyer early in the process could have helped bring about a very different outcome.