Today the U.S. Supreme Court issued its decision in Department of State v. Muñoz, a case about what constitutional rights a U.S. citizen has in knowing the basis for her spouse’s immigrant visa denial.
The Court, in a 6-3 decision authored by Justice Amy Coney Barrett, held that U.S. citizen Sandra Muñoz does not have a liberty interest in her husband’s visa application. In a monumental attack on the right to marriage, it reasoned that U.S. citizen spouses do not have a liberty interest in living with their partners.
Ms. Muñoz and Luis Asencio-Cordero have been forced to live apart since 2015, when an officer at the U.S. consulate in El Salvador denied Mr. Asencio-Cordero’s application for an immigrant visa with no explanation apart from a citation to a broad legal provision that makes people inadmissible to the United States if the consulate has reason to believe the person will commit “any” crime at some unknown point in future.
The couple has spent more than eight years challenging the denial in federal court. And though Ms. Muñoz and Mr. Asencio-Cordero were able to get some additional reasoning for the basis for the denial in their case through years of federal court litigation, this decision will make that litigation all but impossible for families going forward, meaning they might never have access to any information providing the basis for a visa denial. Indeed, the State Department has never provided any basis for its determination regarding Mr. Asencio-Cordero, other than a reference to his tattoos, which the lower court described as “random.”
Writing for the dissent, Justice Sonia Sotomayor recognized the stark implications of the Court’s decision. She wrote:
“Muñoz has a constitutionally protected interest in her husband’s visa application because its denial burdened her right to marriage. . . . It was the extreme hardship Muñoz faced from her husband’s exclusion that formed the basis for USCIS’s waiver of his inadmissibility. For the majority, however, once Muñoz’s husband left the country in reliance on those approvals, their marriage ceased to matter. Suddenly, the Government owed her no explanation at all. The constitutional right to marriage is not so flimsy. The Government cannot banish a U. S. citizen’s spouse and give only a bare statutory citation as an excuse. By denying Muñoz the right to a factual basis for her husband’s exclusion, the majority departs from longstanding precedent and gravely undervalues the right to marriage in the immigration context.”
The National Immigrant Justice Center co-counseled with Eric Lee of the Diamante Law Group and Erwin Chemerinsky, dean of the University of California, Berkeley Law School, to represent Ms. Muñoz and Mr. Asencio-Cordero.
Eric Lee of Diamante Law Group responded to the ruling: “With this decision the Supreme Court has thrown another shovel of dirt on the coffin of American democracy. It is a milestone attack on the right to marriage, the rights of immigrants, and the Due Process Clause. Make no mistake: responsibility for the anti-democratic ripple effects that will follow falls not only on the Court, but also on the Biden administration, which petitioned for certiorari after Mrs. Muñoz and her husband prevailed at the Ninth Circuit and pressed forward with this case, all while claiming that it values family unity in the immigration context. It is of utmost urgency that the parole-in-place program announced earlier this very week be extended to the thousands of families already separated by wrongful visa denials. We will never stop fighting for Sandra, Luis and families like them.”
Charles Roth, director of appellate litigation at the National Immigrant Justice Center, responded to the ruling: “Today’s decision is a travesty, it makes a mockery of due process to say that a U.S. citizen can be separated from their spouse without any chance to have judicial review. We don’t understand why the Biden administration would have wished to establish this cruel precedent. It is completely inconsistent with the administration’s rhetoric that immigrants and citizens should be seen as human beings. It’s just one more form of family separation. Congress can fix this. It may seem unrealistic in this world, where people are so divided, but we would hope that everyone should agree that U.S. citizens have rights and that the right to marriage should be protected.”
Dean Chemerinsky of the University of California, Berkeley Law School, responded: "This is a terrible decision that ignores basic constitutional principles and basic human decency."