Dozens of individuals and organizations, including members of Congress, former immigration and consular officers, the American Bar Association, law professors, advocates, and faith-based groups, have signed amicus briefs submitted this week to the U.S. Supreme Court in support of California civil rights attorney Sandra Muñoz. Her legal team will argue next month that U.S. citizens have a right to know the reasoning for their spouses’ visa denials so that they can challenge those decisions.
The friend-of-the-court briefs in U.S. Department of State v. Muñoz offer an array of arguments defending due process and family unity rights for Ms. Muñoz and other mixed-status families.
The National Immigrant Justice Center (NIJC) is co-counseling 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 her husband, Luis Asencio-Cordero.
Oral argument in the case is scheduled for April 23 at 10 a.m. Eastern Time.
"The case raises the critical question of what rights a U.S. citizen has when the government denies a visa and permanently separates her from her spouse,” said Chuck Roth, director of appellate litigation at NIJC. “The government has already acknowledged that separating Ms. Muñoz from her husband will cause her extreme hardship, but is now claiming in this case that she is a mere bystander to his immigration process. Those positions are incompatible.”
Ms. Muñoz and Mr. 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 cite to a broad legal provision that gave no information as to the actual basis for the decision. The couple has spent more than eight years challenging the denial in federal court, learning long after the visa decision became final and only through litigation, that the Department of State denied the visa based on false allegations that Mr. Asencio-Cordero was a gang member. The State Department has never provided any basis for its determination, other than a vague reference to a criminal record that Mr. Asencio-Cordero does not in fact have, tattoos that do not indicate gang ties, and other unknown factors revealed at his interview. To date, neither Ms. Muñoz nor Mr. Asencio-Cordero has been given the actual reason for the denial. In fact, the State Department has gone so far as to take the position that visa records behind the consular decision are “confidential” and cannot be released to the applicant or even members of Congress. Despite prevailing before the U.S. Court of Appeals for the Ninth Circuit in 2023, the couple remains separated.
“The government argues that the executive branch has the power to permanently separate a U.S. citizen from her husband and break apart their marital home without giving the couple a reason why,” said Eric Lee, counsel of record in the case. “We are heartened that organizations representing such a broad cross section of American society have come forward to oppose the administration’s extreme and anti-democratic position.”
Following are selected excerpts from individuals and organizations who submitted briefs in support of Ms. Muñoz:
Family Unity, Public Interest, and Immigrant Rights Advocates
From the brief filed by the International Refugee Assistance Project and American Families United, which shares the stories of 12 U.S. citizens whose families have been devastated, sometimes irreparably, by a consular visa denial:
“A consular officer’s denial of a visa to a noncitizen spouse impacts the entire family. The resulting family separation can impact a family’s financial situation as well as the health and emotional well-being of all family members. ... Were this Court to foreclose all judicial review, the fate of thousands of American families would lie in the hands of a singular consular officer.”
From the brief filed by Fred T. Korematsu Center for Law and Equality and Asian Americans Advancing Justice which describes how the outdated "doctrine of consular nonreviewability,” which the government still relies on to block court review of consular visa denials, emerged from a line of racist 19th century decisions permitting the exclusion of Asian immigrants:
“As the history of the doctrine of consular nonreviewability makes clear, unreviewable plenary power is a vehicle for allowing prejudice to infect government decision-making. Although the overt racism of the 19th century has retreated from official declarations of policy, empirical evidence suggests that, even to this day, vesting consular officers with 'extremely broad administrative discretion, as well as immunity from judicial review' allows 'racial discrepancies and bias' to seep into the visa approval process.”
From the brief filed by the nonprofit public interest group Public Citizen:
“Public Citizen submits this brief to explain that the government’s position — that a consular officer may support her decision to deny a spousal visa by citing a broad statutory ground of inadmissibility without providing specificity — is inconsistent with constitutional due process principles. If this Court were to accept the government’s view, it would fail to enforce the Constitution’s requirement of vital procedural safeguards against the risk of arbitrary or otherwise unlawful government action.”
From the brief filed by HEAL Refugee Health & Asylum Collaborative, a public health partnership among the Johns Hopkins University, Esperanza Center/Catholic Charities of Baltimore, Asylee Women Enterprise, and Loyola University Maryland:
“Evidence-based research studies from the field of public health have made three key findings relevant to the question presented to the Court in this case. First, that U.S. citizens suffer negative health consequences when separated from their non-citizen spouses. Second, that spousal separation often has harmful downstream effects on U.S. citizen children in families with mixed immigration status. And third, that attainment of lawful immigration status by non-citizens married to U.S. citizens has a positive impact on the health of the entire family.”
From the brief filed by the American Civil Liberties Union, ACLU of Southern California, ACLU of Northern California, and ACLU of San Diego and Imperial Counties:
“The government’s position that U.S. citizens have no constitutional interest whatsoever in a decision to exclude their spouses from the country is contrary to the constitutional protections afforded to marriage, and unnecessary to safeguard the government’s interests in the visa process.”
From the brief filed by the American Immigration Lawyers Association and the American Immigration Council, who argue that judicial review of Mr. Asencio Cordero’s consular visa denial is required under the Administrative Procedure Act (APA), which generally assures individuals the right to challenge agency federal actions that depart from the governing statutory and administrative rules:
“This case offers a quintessential example of the circumstances in which APA review is valuable, judicially manageable, and an essential safeguard against arbitrary or capricious agency action. The governing statute sets out a familiar factual standard that governs the agency action, establishing specific, judicially determinable factual grounds for inadmissibility. And here, for all that appears in the public record, the consular officer did not properly apply that standard (or, indeed, make any serious attempt to apply it at all). Accordingly, there are strong grounds to believe that judicial review would find error in the agency action.”
Members of Congress
Led by U.S. Representative Pramila Jayapal and Representative Linda T. Sánchez, 35 members of Congress submitted a brief describing how federal agencies’ refusal to share information with constituent services offices obstructs a core congressional function:
"Constituent service cannot effectively support Congress’ legislative and oversight functions when executive agencies fail to comply with their obligations to provide information to which Congress is entitled. These obligations are well understood but often ignored, hampering constituent service, frustrating efforts to address systemic problems — and, in the case of Ms. Muñoz, leading to significant individual hardship.”
Former Immigration Officers
From the brief filed by seven former Department of Homeland Security officials:
“In Mr. Asencio-Cordero’s case, the lack of parity between the protections that would have been afforded to him if he could have remained in the United States and applied for LPR [lawful permanent resident] status domestically through the DHS Adjustment of Status process, and his ultimate experience with DOS’s Consular Processing to obtain LPR status, demonstrates the inequitable outcomes faced by noncitizen spouses of U.S. citizens. Under DHS adjudication proceedings, Mr. Asencio-Cordero would have been provided: a notice of intent to deny with the factual basis for the proposed denial; multiple opportunities to be heard and challenge any derogatory information; the factual basis for any denial; and opportunities to rebut or appeal a DHS decision.”
From the brief filed by eight former Department of State consular officers:
“The doctrine of consular nonreviewability is justified on the notion that the consular officers’ immigration-related decisions reflect the careful exercise of executive branch discretion regarding sensitive matters of national security, foreign policy, and sovereignty and the careful weighing of policy interests that courts are ill-equipped to undertake or even to question. ... The reality in today’s Department of State is quite different. The overwhelming majority of visa adjudications involve the exercise of individual consular officers’ often wide discretion, reflecting their own personal opinions and biases, within the framework of the statute or regulation they are implementing. While most consular officers exercise their discretion reasonably, sometimes consular officers’ decisions to deny visas are arbitrary and capricious, based on misinformation or misunderstandings, or grounded in stereotypes. ... Some judicial oversight is therefore needed, at least when a visa refusal implicates the fundamental interests of Americans — such as a decision concerning an immigrant visa for the spouse of a U.S. citizen.”
American Bar Association
From the brief filed by the American Bar Association, which addresses a question before the Court regarding whether the executive branch can evade judicial review by referencing secret evidence in immigration proceedings:
“[U]nless this Court holds that the government is required to disclose the reasoning for a denial, and not hide behind secret evidence, attorneys cannot provide their clients with meaningful legal advice. Noncitizens seeking visas often must travel abroad for interviews and, when they do so, they risk serious consequences such as being denied re-entry into the United States. Unless the government indicates why it denies visas, attorneys advising non-citizens and their citizen spouses cannot sufficiently gauge these risks or meaningfully challenge visa denials.”
Professors of Law, History, and Sociology
From the brief filed by the Migrant Rights Initiative and Immigration, International, and Comparative Law Scholars:
"Holding that the U.S. Constitution guarantees spousal immigrant visa applicants and their U.S. citizen spouses such process would be consonant with the law of scores of other countries hosting most of the world’s migrants, including this country’s closest allies.”
From the brief filed by professors and scholars who are experts regarding law enforcement’s use of tattoos to designate gang membership and the intersection of gang membership-designation and immigration law:
“Law enforcement entities maintain that certain tattoos can be evidence that someone is a gang member. However, as courts, law enforcement officials, and scholars have all recognized, common methodology for identifying gang membership is imprecise (at best) and tattoos, standing alone, can be woefully unreliable for identifying whether someone is or has ever been an active gang member. In particular, certain categories of tattoos that law enforcement uses to designate gang membership (such as some of Mr. Asencio-Cordero’s) carry deep significance to Latinx culture and identity wholly unrelated to any gang membership or criminal activity.”
From the brief filed by immigration law and history scholars:
“Federal immigration regulation in the United States has a complex history with some dark chapters; yet, it has regularly treated marriage as a special category, providing married couples with benefits and privileges not extended to others seeking to immigrate.”
Faith-based Organizations
From the brief filed by the United States Conference of Catholic Bishops and the Catholic Legal Immigration Network, Inc.:
“Since our Nation’s founding, the right to marry and to form a family have been fundamental to American society. These rights — which include the right of individuals to cohabitate, procreate, raise children, and decide their place of residence with their immediate family — predate and are encompassed by the Fifth and Fourteenth Amendments’ Due Process Clauses. ... A U.S. citizen’s right to marital and familial unity does not depend on whether that citizen has a domestic family or an immigrant family. For a U.S. citizen like Mrs. Muñoz — who has lived apart from her spouse for over eight years of marriage — the adjudication of a spousal visa implicates the fundamental liberty interest in marriage and family, and is sufficient to trigger procedural due process.”
From the brief filed by HIAS Inc.:
“When the spouse of a U.S. citizen is denied a visa, without any reasoned explanation or the ability to correct an erroneous determination, the United States has not only turned its back on the core value of family unity, but has also denied that U.S. citizen her fundamental right to due process. And the results of that denial are heartbreaking: the U.S. citizen faces the impossible choice of either moving to another country to live with their spouse, thereby forfeiting their right to live in the country of their citizenship, or remaining in the United States and giving up their right to live in unity with their family. This choice is especially acute for U.S. citizens who are former refugees or asylees because they may not be able to return to their home country and live with their spouse due to the risk of harm, persecution, or torture that forced them out of their home country.”