U.S. Department of State v. Muñoz involves a U.S. Citizen, Sandra Muñoz, who has been separated from her Salvadoran husband, Luis Asencio Cordero, for nearly a decade because the U.S. State Department denied Luis an immigrant visa in 2015. The National Immigrant Justice Center is co-counseling with Eric Lee of the Diamante Law Group and Erwin Chemerinsky, dean of the University of California, Berkeley Law School to represent Sandra and Luis in the case, which is currently pending before the Supreme Court. 

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About The Case 

Sandra Muñoz is a U.S. citizen from California who met Luis Asencio-Cordero in 2008 and married him two years later. In 2013, Sandra initiated the immigrant visa process by petitioning for Luis to become a lawful permanent resident. The couple established that their marriage was bona fide. The Department of Homeland Security (DHS) then conducted a background check on Luis to determine that he posed no risk to national security and found that Sandra would suffer extreme hardship if separated from him or forced to move to El Salvador. The next step was a consular interview in El Salvador. The couple anticipated a short stay in El Salvador, but for Luis, that stay is now approaching 10 years. 

At the interview, the consular officer refused to issue Luis a visa. The consulate provided no explanation for the denial except a citation to a statute that says a person is inadmissible if the officer has reason to believe they will commit “any” crime at some unknown point in the future. Sandra and Luis tried to refute the finding, but without further information about why the consulate had declared Luis inadmissible, that task was impossible. Sandra and Luis guessed that the decision might have been based on various tattoos that Luis has, so they submitted an affidavit from a gang expert who reviewed the tattoos and determined they did not indicate gang affiliation.  

Later, in litigation over the denial, the consulate said that the decision was “based on” a criminal review, an interview with Luis, and his tattoos. But as to the first in this list, Luis has no criminal record, and he has consistently denied any gang affiliation. It is therefore unclear whether his visa was denied because of his tattoos, because of bias, or because of a mistake in unreliable intergovernmental data sharing systems that might have erroneously tied him to a criminal record in his home country. 

Instead of providing Sandra and Luis information that they might use to refute the inadmissibility finding, the State Department has taken the position that visa records behind the decision are “confidential” and cannot be released to the applicant or even members of Congress. According to the Government, “all” visa decisions implicate national security, so they cannot turn over the reasoning in this particular case or in others like it. 

The case that is now at the Supreme Court raises a number of concerns, including the secrecy behind the U.S. State Department’s visa decisions, the important interests that U.S. citizens have in the marriage-based immigration process, and what process if any exists for correcting erroneous consular decisions. The precise questions presented to the Court are: 

(1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and  

(2) Whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due. 

The Plaintiffs 

The plaintiffs are Sandra Muñoz and Luis Ernesto Asencio-Cordero. Sandra is an award-winning, L.A.-based civil rights attorney who represents workers who have been subject to workplace abuse. She is a former President of the Latina Lawyers Bar Association and won the California Lawyer Attorney of the Year Award in 2016. Her husband Luis is a Salvadoran national who has been separated from his family since 2015. Sandra has suffered greatly as a result of the decision to deny her husband’s return to the United States. She has had to endure multiple hardships without the support of her husband by her side, including ongoing medical issues, as well as the recent deaths of her sister and her mother. 

Timeline 

December 2015 - The consulate denies Luis Asencio-Cordero’s visa application. 

April 2016 - The consulate notifies Sandra Muñoz and Luis Asencio-Cordero that his visa application would be forwarded to the immigration visa unit for review; Sandra and Luis request the “reason” for the inadmissibility decision.  

Late April 2016 - Sandra and Luis submit exculpatory evidence from gang expert showing his tattoos are not gang related. 

May 2017 - Department of State responds that the rebuttal submission contains “no new information” and that the case would not continue to be adjudicated. 

January 2017 - Sandra and Luis sue in the Central District of California.  

December 2017 - Government’s motion to dismiss is denied. 

November 2018 - In discovery, State Department says for the first time that it denied Luis’s visa based on a consular officer’s belief he is a member of MS-13, in part due to his tattoos.  

October 2022 - The Ninth Circuit grants Sandra’s appeal and orders remand. It rules that U.S.-citizen spouses of visa applicants have a due process right to be provided a factual reason why the government denied their spouse’s visa, and that the reason must be provided in a timely manner. The court concludes that the reasoning here, which came only through litigation and three years after the fact was far too late. 

November 2023 - The Government petitions the Supreme Court for certiorari.  

January 2024 - The Government’s petition is granted. 

Feb.-April 2024 - Briefing before the Supreme Court is completed, with 15 different amicus briefs filed in support of Sandra and Luis, including from members of Congress, former government officials, religious organizations, academics, legal services providers, and the American Bar Association.

Relevant Documents 

• Ninth Circuit decision ordering remand (October 2022) 

• Opening Brief of Petitioners, Department of State, et al. (February 2024) 

• Brief of Respondents Sandra Muñoz and Luis Asencio-Cordero. (March 2024) 

Amicus Briefs

• Members of Congress, led by Representative Pramila Jayapal and Representative Linda T. Sánchez, joined by 33 members of Congress 

• American Bar Association 

• International Refugee Assistance Project and American Families United

• Former Consular Officers with the Department of State 

• Former Department of Homeland Security Officials

• United States Conference of Catholic Bishops, Catholic Legal Immigration Network, Inc. 

• Immigration Law and History Scholars

• Professors and Scholars with Expertise on Gangs and Tattoos 

• Public Citizen 

• American Immigration Lawyers Association and the American Immigration Council

• American Civil Liberties Union, ACLU of Southern California, ACLU of Northern California, and ACLU of San Diego and Imperial Counties

• Fred T. Korematsu Center for Law and Equality, Asian Americans Advancing Justice

• HEAL Refugee Health & Asylum Collaborative 

• Migrant Rights Initiative and Immigration, International, and Comparative Law Scholars 

• HIAS Inc. 

In The Media 

• Los Angeles Times: Los Angeles couple’s Supreme Court case sheds light on immigrant visa rejections (March 29, 2024)

• Press release: Dozens Of Experts, Advocates Urge Supreme Court To Uphold U.S. Citizen’s Right To Family Unity And Due Process In Spouse’s Immigration Case (March 29, 2024)

• Press release: Supreme Court To Hear Arguments On Family Unity Rights For Mixed-Status Spouses (January 12, 2024) 

• Los Angeles Times: A Los Angeles man was denied a green card over his tattoos. The Supreme Court might take up his case (January 4, 2024) 

Others: 

• Law360: Justices Take Up Citizens' Rights In Spousal Visa Applications (January 12, 2024) 

• New York Law Journal: When U.S. Citizens Must Choose Between Love and Country (December 7, 2023)  

• Reuters: U.S. must face lawsuit over denying visa to alleged gang member: court | Reuters (October 5, 2022)