marriage

Department of State v. Muñoz

Issues

(1) Does the government infringe upon a U.S. citizen’s constitutionally protected interest when it denies the citizen’s non-citizen spouse a visa? (2) If such an interest exists, does merely notifying the visa applicant that their visa was rejected under 8 U.S.C. § 1182(a)(3)(A)(ii) suffice in providing that citizen with due process?

This case asks the Supreme Court to determine whether the government infringes upon a U.S. citizen’s constitutionally protected interest when it denies their non-citizen spouse’s visa, and if so, whether the government’s citation of a statute as its reasoning is sufficient to provide that citizen with due process. Sandra Muñoz, a U.S. citizen, married Luis Asencio-Cordero, a non-citizen, and petitioned the government to grant her husband an immigration visa. The government denied the application, giving only a citation to 8 U.S.C. § 1182(a)(3)(A)(ii) as the reason. The government argues that Muñoz has no statutory or constitutional right to appeal the visa denial nor any right to further explanation of the reasoning behind the decision. Muñoz argues that the denial of her husband’s visa infringes upon her constitutionally protected liberty interests, and that she is entitled to further explanation about the denial under due process. This case has important ramifications for U.S. citizens with noncitizen spouses who wish to live together in the United States, for national security, and the ability of Congress to exercise oversight over agencies.

Questions as Framed for the Court by the Parties

(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.

In July 2010, Sandra Muñoz, a U.S. citizen, married Luis Asencio-Cordero, a citizen of El Salvador who first arrived in the United States in 2005. Muñoz v. Department of State at 8–9. Muñoz filed an immigration petition for Asencio-Cordero which was approved, and Asencio-Cordero returned to El Salvador in April 2015 to interview for his immigrant visa at the local U.S. consulate.

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Kerry v. Din

Issues

Does the refusal of a U.S. citizen’s alien spouse’s visa application bestow upon the citizen an enforceable constitutionally protected interest?

The Supreme Court will decide whether refusing the visa application of a U.S. citizen’s alien-spouse triggers the citizen’s constitutionally protected interests, and whether the citizen may challenge this refusal. Secretary of State Kerry argues that a citizen’s liberty interests are not implicated because neither the Immigration and Nationality Act (“INA”) nor the Due Process Clause confer upon the citizen a legally cognizable interest in the consular officer’s determination, and consular officers’ determinations should not be challenged in court because judicial review would conflict with the consular nonreviewability doctrine and congressional intent in establishing the INA. In opposition, Din, a U.S. citizen, argues that the consular officer’s determination conflicts with the Court’s jurisprudence, which establishes a fundamental right to marry and to benefit from the associational interests in marriage, and that the consular officer’s determination should be subjected to judicial review in order to protect citizens’ liberty interests from arbitrary restrictions. The Court’s ruling in this case implicates the ability of the government to prevent disclosure of confidential information related to national security concerns and the ability of citizens to live with their alien spouse in the United States.

Questions as Framed for the Court by the Parties

  1. Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and
  2. Whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

Fauzia Din, a U.S. citizen, married Kanishka Berashk, an Afghani national, in September 2006. See Din v. Kerry, 718 F.3d 856, 858 (9th Cir. 2013). Din shortly thereafter filed a visa petition in order for Berashk to be admitted into the United States.

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Additional Resources

  • Lawrence Hurley: Supreme Court to Weigh Spouse Rights Over Denied Visa, Reuters (Oct. 2, 2014).
  • Ian R. Macdonald: SCOTUS Grants Certiorari to Two Immigration-Based Cases for 2015 Term: Will the Government Have to Explain its Exercise of “Discretion”?, The National Law Review (Oct. 15, 2014).
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Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

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