Supreme Court skeptical of married couple’s right to challenge visa denial over gang tattoos

WASHINGTON (CN) — The Supreme Court was doubtful on Tuesday that a U.S. citizen’s spousal interest could overcome her El Salvadorian husband’s immigrant visa denial for supposed gang tattoos.

“She has not been permanently separated from the man she loves,” Chief Justice John Roberts, a George W. Bush appointee, said. “That man has not been permitted in the United States.”

Sandra Munoz has spent the last eight years fighting her husband’s denied visa application. In 2010, she married Luis Asencio-Cordero, a citizen of El Salvador. Munoz’s immigrant-relative petition for Ascencio-Cordero was approved by the government, but when he traveled to the U.S. consulate in San Salvador in 2015, the State Department denied his visa application.

The government said it had reason to believe that Ascencio-Cordero’s reason for entering the U.S. was related to unlawful activity. Munoz tried to get the State Department to tell her how it had come to that decision but the government denied her request.

Munoz believed Ascencio-Cordero’s application was denied because of his tattoos. Ascencio-Cordero said none of his tattoos are gang related and called on a gang expert to dispute the government’s assumption. The expert said most of his tattoos were commonly known images like Catholic icons and clowns.

The State Department refused to reverse its decision. Munoz sued, arguing that her fundamental rights were violated. The right to marriage includes the right to live with one’s spouse and Munoz claimed the government had trampled that right when it denied Ascencio-Cordero’s application.

After a lower court refused to dismiss Munoz’s case, the government stated that it believed Ascencio-Cordero was a member of the MS-13 gang. The court granted summary judgment in favor of the government. The Ninth Circuit then reversed, and the government appealed to the Supreme Court.

Munoz told the justices that she had a constitutional right to judicial review of the State Department’s denial.

“We do not claim that Ms. Munoz has a right to do what she wants, live with her husband in the U.S. even if her husband is inadmissible,” said Eric Lee, an attorney with Diamante Law Group representing Munoz. “We’re merely asking for a reasonable and workable solution, which is that some basis for the denial be given so that we can correct the possibility that there was a mistake.”

The justices seemed confused by this request because the State Department eventually told Munoz that it believed her husband was connected to MS-13.  

“Why isn’t this whole thing over because you got what you wanted?” Justice Elena Kagan, a Barack Obama appointee, asked.

Lee claimed the delayed notice from the government on why the application was denied prevented Munoz from being able to contest the State Department’s findings. Munoz said this decision was final, with no opportunity to present a new application. The government claimed that was incorrect and Munoz could file a new application.

Visa denials are traditionally exempt from judicial review; however, the court’s ruling in Kleindiest v. Mandel created an exception to that rule. U.S. citizens can use Mandel to claim a constitutionally protected interest in a visa denial and force the government to provide an explanation they would not otherwise be obligated to provide.

Munoz claimed her right to marriage constituted a liberty interest that made judicial review necessary. Justice Clarence Thomas, a George H.W. Bush appointee, said this right had not previously been recognized.

“I can think of no other case where the right to have your spouse immigrate to this country has been considered,” Thomas said.

Even just under the court’s precedents around marriage rights, many justices said the Mandel standard had been met because Munoz received an explanation for the denial.

The justices seemed to think Munoz was forcing the court to weigh marriage rights against national security.

“I don’t see how you can avoid the conclusion that that involves weighing what I at least see as totally disparate and perhaps unweighable interests,” Roberts said.

The government said it had approved over 11 million immigrant and nonimmigrant visas last year. Curtis Gannon, deputy solicitor general at the Justice Department, said the State Department had also rejected 62,000 visas under the same standard applied to Ascencio-Cordero.

Gannon said there was no end run around the nonreviewability doctrine preventing noncitizens from challenging consular visa denials. He said U.S. citizens were affected only indirectly by the government’s decision about the noncitizen.

“Munoz cannot challenge the denial of her husband’s visa application any more than she could challenge a decision at the end of a removal proceeding … or at the end of a criminal trial,” Gannon said.

The Supreme Court will issue a ruling in the case by the end of June.

Follow @KelseyReichmann

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