United States | Supreme Court hears arguments involving spouse’s visa denial

The U.S. Supreme Court heard arguments last week in a closely followed case involving a California woman whose husband was denied an immigrant visa to rejoin her in the United States.

Sandra Muñoz, a U.S. citizen, sued the federal government after her husband, Luis Asencio Cordero, a citizen of El Salvador, was denied a visa after a U.S. consular officer in San Salvador found he was inadmissible under federal law. His visa refusal letter referred to the applicable section of law, INA 212(a)(3)(A)(ii) (“other unlawful activity”), but did not provide a detailed reason for the denial. As part of the litigation record, the Department of State later clarified that the basis of refusal was because the consular officer had reason to believe Asencio Cordero was a member of the gang MS-13, based in part on his tattoos.

At issue before the court are:

1. Whether a U.S. citizen has a constitutionally protected liberty interest in their noncitizen spouse’s visa application.
2. If so, whether citing the law that provides the basis for the denial without providing more specific information is sufficient due process.

The case is similar to Kerry v. Din, which the court heard nine years ago. In that case, a divided court ruled in favor of the government after a U.S. citizen challenged her husband’s visa denial. The law was left unsettled, however, after the justices issued three separate opinions, with no majority opinion.The Justices are expected to rule on the case they heard last week, Department of State v. Muñoz, in late June or early July. A transcript of the oral arguments is available here, and an audio recording is available here.

Additional Information: On Monday, the court agreed it would hear a separate immigration case involving the revocation of a foreign national’s visa petition after the Department of Homeland Security determined his marriage to a U.S. citizen was a “sham.” Specifically, the justices will decide whether the Eleventh Circuit Court of Appeals was right in determining that it lacked jurisdiction to review DHS’ purely discretionary revocation of the visa petition, where the underlying basis for the revocation was a generally reviewable nondiscretionary provision. The court’s decision could have broad implications for both family- and employment-based visa petitions.

This alert has been provided by the BAL U.S. Practice Group.

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