Ninth Circuit Decision Expands Due Process for Visa Applicants and Families
On October 5 2022, the Ninth Circuit Court of Appeals published an important decision expanding the rights of immigrants and their families. In Sandra Muñoz v. State Department (case no. 21-55365), the court ruled that US citizen spouses of visa applicants have a due process right to be given a factual reason why the government denied their spouse’s visa, and that the reason must be provided in a timely manner.
In this case, the Ninth Circuit ruled that the State Department violated due process and the fundamental right to marriage by denying a visa without providing any reason for the denial for three years. I wanted to share this win because the ruling is a significant step forward that will positively impact the lives of many immigrants in the visa and green card application process.
The lawsuit was filed in January 2017 by Sandra Muñoz, a 53-year-old U.S. citizen and civil rights attorney in Los Angeles, and her husband, 46-year-old Luis Asencio-Cordero, who is originally from El Salvador. Sandra has lived in Los Angeles her whole life and Luis has lived in the U.S. from 2005 to 2015. The couple was married in 2010, and Luis also has a U.S. citizen daughter. Luis has no criminal record.
Luis has been separated from his family since 2015, when he traveled to El Salvador for an interview at the U.S. consulate as the final step in his green card application and was not allowed to return.
Luis and his family assumed the interview process would be quick, and that he would soon be back in Los Angeles with a green card. After the interview, however, the government denied Luis admission back into the U.S. claiming he would engage in “other unlawful activity” and found him ineligible for a green card. Suddenly, Luis was stranded in the country he had fled years before due to extreme levels of violence and poverty. For years, the United States government supported dictators and death squads in El Salvador, including for the deadliest parts of the brutal civil war of 1979-92, which Luis lived through.
The most disturbing part of the visa denial was the fact that the State Department refused to tell Luis or his family why they believed he was likely to commit “unlawful activity,” or what that activity might be. The government provided no additional factual reason for the denial, leaving his family with no way to respond to the allegation. He has several non-gang-related tattoos, including of a Christian cross and of Sigmund Freud. An expert witnesses provided testimony to the State Department explaining that his tattoos cannot be construed as having anything to do with gang activity, but the State Department maintained its decision. The family was left with nothing to go on, no way to disprove this “fact” and bring Luis home.
The district court ruled against Sandra and Luis, but on appeal the Ninth Circuit reversed. In a 2-1 decision, the Ninth Circuit ruled: “We thus conclude that, where the adjudication of a non-citizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.” Other immigration law practitioners know that federal courts rarely conduct judicial review of visa denials due to the doctrine of “consular non-reviewability.” Under this doctrine, which originated at the time of Chinese Exclusion, the courts cannot intervene as long as the State Department’s visa denial was “facially legitimate and bona fide.”
Here, the Ninth Circuit ruled that the decision did not meet this standard because the State Department did not provide a factual basis for the denial for three years. It may be the first time a federal court has ruled that a denial did not meet this low standard. It was not until long after litigation began that the State Department told Luis and Sandra that consular officers concluded Luis was a member of MS-13. The Ninth Circuit said the lengthy delay made the denial illegitimate, and suggested that in the future, immigration officials must provide the factual basis for all visa denials within 30 days of issuing the denial.
This decision is a victory for democracy and the rights of immigrants everywhere. The State Department, which issued the initial denial under Barack Obama, put this couple in a nightmarish situation. Three presidential administrations deprived Sandra and Luis of 7 years of their lives together, time they will never get back. It is time for the State Department to let Luis come home where he belongs.
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Stay tuned for a deeper dive into the topic of consular nonreviewability by Eric Lee and coauthor Sabrina Damast in the forthcoming Fall 2022 edition of the AILA Law Journal, to be published on November 15!