Department of State v. Muñoz

DOCTRINE OF CONSULAR NONREVIEWABILITY

The government argues that the doctrine of consular nonreviewability, which is deeply rooted in established law, prevents courts from reviewing an immigration decision made by a consular officer. Brief for Petitioners, Department of State at 16. The government asserts that the political branches have absolute authority to decide which noncitizens to admit into the country. Id. at 17–18. The government contends that this was Congress’s intent when it drafted its immigration laws. Id. at 18–19. Although the government admits that courts can review a consular decision where the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen, it argues that, under Kleindienst v. Mandel, this applies only when the government fails to provide a “facially legitimate and bona fide reason” for the denial. Id. at 19–20. The government argues that the Ninth Circuit erred in applying this standard to Asencio-Cordero because Muñoz had no legal right to have him admitted into the United States. Id. at 21.

Muñoz counters that consular nonreviewability is outside the scope of the questions presented and should not be addressed, and that the Court should reject the government’s arguments. Brief for Respondents, Muñoz at 13. Muñoz asserts that the Court has repeatedly considered claims pertaining to visa and admission decisions abroad, citing several cases including Mandel. Id. at 14–15. Muñoz contends that the doctrine of consular nonreviewability is independent of the political branches’ powers, as the Court still has authority over legal or constitutional claims brought by noncitizens. Id. at 15–16. Muñoz maintains that no statute precludes a cause of action in her case and that Congress would have drafted one if it wished to prevent courts from reviewing either § 1182(a)(3)(A)(ii) or consular determinations generally. Id. at 16–17. Muñoz points out that statutes take primacy over Congressional history and that the government cannot overturn the longstanding presumption of allowing judicial review of administrative agencies’ decisions. Id. at 18.

DENYING U.S. CITIZEN’S SPOUSE A VISA AND THE U.S. CITIZEN’S RIGHTS

The government argues that a U.S. citizen has no statutory or constitutional right to have a noncitizen spouse admitted to the United States. Brief for Petitioners at 21. The government contends that Muñoz cannot point to such a right under federal immigration law or the Constitution itself. Id. The government suggests that Muñoz had the right to petition the government to grant her husband a visa, but that the final decision on admission rests with the consular officer. Id. at 22. The government points out that under current law, a U.S. citizen petitioner has no right to be present at the interview for admission, no right to notice regarding a potential denial, and no right to challenge a denial. Id. at 22–23.

The government disputes the Ninth Circuit’s finding that a citizen has an inherent right under the word “liberty” in the Constitution to have her noncitizen spouse admitted to the country, arguing that this position clashes with a nation’s sovereign right to exclude or admit foreigners at its own discretion. Id. at 23–24. The government asserts that this principle was understood by the Founders and by the Court for over a century. Id. at 24. The government argues that it is implausible that the government must permit a noncitizen to enter and live in the United States purely because they are married to a U.S. citizen. Id. The government maintains that case law supports its position, as does the Court’s recognition that foreign citizens abroad, including those closely affiliated with U.S. persons, do not enjoy U.S. constitutional rights. Id. at 24–25.

The government argues that denying a visa to a noncitizen spouse does not infringe on the Constitutional right to marry. Id. at 26. The government asserts that it has not attempted to forbid Muñoz’s marriage nor refused to recognize Muñoz’s marriage and that the decision to deny Asencio-Cordero’s visa was unrelated to their marriage. Id. at 27. The government likewise contends that denying Asencio-Cordero’s visa does not force Muñoz to choose between her constitutional right to be with her spouse or her right to live in the United States because it was not directed at her or her marriage. Id. at 28–29. The government maintains that the indirect effects of its actions do not interfere with Muñoz’s constitutionally protected liberty interests. Id.

Muñoz counters that her liberty interest in her marriage to Asencio-Cordero can be inferred from statutes and regulations. Brief for Respondents at 24. Muñoz argues that Congressional history and legislation support this liberty interest; for example, U.S. citizens’ spouses are exempt from immigration quotas. Id. at 25. Muñoz asserts that the protections under the Immigration and Nationality Act makes her entitled to live with her husband unless the government finds him inadmissible. Id. at 25–27. Muñoz claims that visa rules require her to be legally responsible for her husband, demonstrating her valid interest in her spouse’s admission. Id. at 28. Muñoz disputes the government’s assertion that current law does not require notice for someone found inadmissible, arguing that regulations require the consulate to inform the applicant of the basis for any visa denial and permit an opportunity to rebut any basis for inadmissibility within one year. Id. at 28–29.

Muñoz argues that she has a liberty interest in her marriage which historically and traditionally includes cohabitation. Id. at 19. Muñoz contends that marital interests are implicated by laws that require a couple to reside elsewhere such as in Loving v. Virginia, where the Court found that Virginia had violated the Lovings’ fundamental right to marry because its laws prevented the Lovings from cohabitating in the state. Id. at 20. Muñoz maintains that cohabitation is so essential to marriage that it can be a sufficient basis for inferring the marital relationship. Id. at 21. Muñoz claims that in the immigration context, the Court has held that the right to rejoin one’s immediate family is significant, and that even during periods when Congress has restricted immigration, it has always given special consideration to marriage. Id. at 21–22.

Muñoz contends that she was directly affected by the government’s denial of her husband’s visa. Id. at 30. Muñoz argues that she played a necessary role in petitioning Asencio-Cordero’s visa from start to finish; the State Department referred to her as the “petitioner” and directed its communications to her, she commenced the petitioning process, and the process itself is designed to advance her interests rather than her husband’s. Id. at 31–32. Muñoz claims that she has a separate liberty interest in her ability to live in the United States; and, the government violates that right if it forces her to choose between living in the United States or cohabitating with her spouse abroad without due process. Id. at 35–36.

WHETHER CITING THE STATUTORY GROUND OF INADMISSIBILITY SATISFIES DUE PROCESS

The government asserts that, even if a liberty interest supports judicial review of Ascensio-Cordero’s visa denial, a consular officer’s citation of the unlawful activity provision of 8 U.S.C. § 1182(a)(3)(A)(ii) qualifies as a “facially legitimate and bona fide reason” to explain the denial under Mandel. Brief for Petitioners at 31. The government argues that Mandel’s exception to the doctrine of consular nonreviewability requires a less demanding test than even rational-basis review. Id. at 31–32. The government contends that intent to engage in “unlawful activity” is a facially legitimate reason to deny the visa; and, the officer had reasonable grounds to believe Asencio-Cordero intended to engage in unlawful activity under the statute. Id. at 32–33. The government argues that any additional requirement that the consular officer explain his decision would violate Mandel because it would require a court to review that decision. Id. at 33. The government further asserts that Congress intended that a consular officer need not provide an explanation when denying a visa on security-related grounds. Id. at 37–38.

Muñoz counters that merely citing § 1182(a)(3)(A)(ii) does not provide sufficient notice to satisfy due process. Brief for Respondents at 37. Muñoz argues that the “facially legitimate and bona fide” test is inappropriate where there is a claim that an agency has violated Congress’s chosen immigration policies. Id. at 37–38. Muñoz contends that Congress enacted an objective test requiring an officer to have reasonable grounds to believe an applicant is inadmissible, that such grounds are akin to probable cause in criminal law, and that the State Department violated its statutory duties by denying Asencio-Cordero a visa without a valid reason. Id. at 40–41. Muñoz asserts that she is not asking the Court to overrule fundamental policy choices made by the political branches but for the Court to provide her with a constitutionally mandated factual basis for determining whether the agency erred in its application of the statute. Id. at 41–43. Muñoz maintains that a mere citation to the statute is so broad that it is effectively equivalent to citing “any reason.” Id. at 48.