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Tuesday, June 25, 2024 | Back issues
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Married couple loses Supreme Court visa appeal over tattoos

The high court’s ruling favors the State Department’s national security concerns over a U.S. citizen’s spousal interests.

WASHINGTON (CN) — The Supreme Court on Friday ruled that a U.S. citizen could not challenge her Salvadoran husband’s immigrant visa denial over supposed gang tattoos. 

The high court decided 6-3 in favor of the Department of State, finding that a U.S. citizen does not have a fundamental right to have their noncitizen spouse admitted to the country.

Sandra Muñoz, a citizen, argued that her right to live with her noncitizen husband, Luis Ascencio-Cordero, in the United States was implicit in the “liberty” protected by the Fifth Amendment, and that denying his visa request deprived her of that liberty and violated her due process rights.

The consular officer who denied her husband’s application violated her right to due process by not disclosing the reason her husband was deemed “inadmissible,” which opens the officer’s decision to judicial review, despite visa denials normally being unreviewable.

Muñoz later found out during litigation in federal court that the decision was based on the officer’s finding that Ascencio-Cordero’s tattoos were associated with the transnational gang MS-13 and his concern that he would commit crimes upon entering the country.

Justice Amy Coney Barrett, in writing the court’s opinion, wrote that Muñoz’s argument failed because she could not prove that her asserted right to bring her spouse to the country was “deeply rooted in this nation’s history and tradition.”

“In fact, Congress’s longstanding regulation of spousal immigration — including through bars on admissibility — cuts the other way,” the Trump appointee wrote.

The justices reaffirmed the rule that the decisions of consular officers are not subject to judicial review.

The court had previously held that there is a narrow exception to the rule in cases where the denial would burden the constitutional rights of a citizen in Trump v. Hawaii, which Barrett said did not apply in this case. 

Following the denial, Muñoz and Ascencio-Cordero sued the Department of State, the Secretary of State and the U.S. consul in El Salvador, alleging that the State Department had abridged Muñoz’s liberty by failing to provide a sufficient reason why her husband was deemed inadmissible.

A federal judge granted summary judgment in favor of the State Department and dismissed the suit.

The Ninth Circuit Court of Appeals, however, vacated the judgement and remanded the case, ruling that by declining to give Muñoz a reason earlier in the process it had forfeited its entitlement to “shield its visa decision from judicial review.”

“The Ninth Circuit got it wrong,” Barrett said, speaking from the bench on Friday. “This case boils down to who gets to decide, and the answer is the executive branch.”

The court reversed the Ninth Circuit’s decision and remanded the case back to federal court for further proceedings.

Muñoz married Ascencio-Cordero in 2010. Muñoz, a U.S. citizen, initially filed an immigrant-relative petition for Ascencio-Cordero, a citizen of El Salvador. The petition was approved, but when Ascencio-Cordero returned to the U.S. consulate in San Salvador years later, the State Department denied his visa application.

Later Muñoz would discover that her husband’s application was denied because of his tattoos. The government claims that Ascencio-Cordero’s tattoos are gang-related and suspected that he intended to enter the country for illicit activities.

A gang tattoo expert presented by Muñoz claimed that Ascencio-Cordero’s tattoos are not gang-related and instead common images of Catholic icons and clowns.

The government urged the Supreme Court to reverse the appeals court’s ruling. Curtis Gannon, deputy solicitor general at the Justice Department, compared the denial of a visa application to a ruling at the end of a removal proceeding or criminal trial, stating that the decision could not be challenged.

The Supreme Court previously recognized one exception to the rule prohibiting judicial review on visa denials. In Kleindiest v. Mandel, the court said citizens can claim a constitutionally protected interest in a visa denial to force the government to explain the rejection.

Justice Sonia Sotomayor wrote a dissent, on which fellow liberal justices Elena Kangan and Ketanji Brown Jackson joined, in which she opened with a quote from the landmark 2015 Obergefell v. Hodges, which legalized same-sex marriage.

“The right to marry is fundamental as a matter of history and tradition,” Sotomayor wrote, expressing concern over her colleagues’ seeming dilution of fundamental marriage rights. “The majority today chooses a broad holding on marriage over a narrow one on procedure.”

She highlights the conservative majority’s supposed “assurance” in Dobbs v. Jackson Women’s Health Organization that their decision would not undermine other entrenched substantive due process rights, such as the right to marry, live with and raise children with one’s spouse.

“Because, to me, there is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the government to provide at least a factual basis for its decision, I respectfully dissent,” Sotomayor wrote.

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Categories / Appeals, Civil Rights, Immigration

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