Tattoo disputes at the Supreme Court risk slamming the door on visa appeals

A short interview was enough to dissuade Luis Asencio Cordero from rejoining his American wife in the US.

In May 2015, an immigration officer at the U.S. consulate in San Salvador asked him to take off his shirt. Asencio obeyed and revealed his tattoos. The officer asked if he was a member of a gang. Asencio said no.

Asencio later received a letter denying him a visa to rejoin his wife, Sandra Muñoz, due to alleged “unlawful activities.” According to court documents, the couple believed Asencio’s tattoos aroused the immigration officer’s suspicions of a gang affiliation.

The couple’s legal battle to find out what was behind the visa denial and to challenge the consular officer’s findings is at the heart of a case the Supreme Court will hear on Tuesday. Department of State v. Muñoz.

The case is the Supreme Court’s first test in nearly a decade of whether U.S. citizens have a constitutional interest in visa decisions for their foreign spouses. It also discusses what applicants for a fair trial are entitled to in the event of a visa refusal. A decision could have ripple effects for other visa categories, such as employment-based visas.

The Biden administration is asking judges to reverse a court decision in favor of Muñoz’s ruling that consular officials failed to provide sufficient reason for the visa denial within a reasonable time. Her lawyers say that decision correctly found that she had a fundamental right to marriage affected by the visa refusal, and that the couple had not had a proper opportunity to challenge the decision.

“The Biden administration’s argument is that regardless of whether the sponsor is a spouse or an employer, the petitioner has no rights if the visa is denied, no matter how arbitrary the denial,” said Eric Lee, Muñoz’s attorney.

The case has revived the possibility that the justices could revise a decades-old judicial shield for consular officials: Once an official denies a visa, the petitioner can no longer appeal the decision to the court. The Biden administration has asked the justices to clarify that there are no time limits on the shield, known as the doctrine of consular non-reviewability.

The doctrine was shaped by Supreme Court decisions of the early and mid-20th century, which held that established visa decisions could not be reviewed by the courts.

Muñoz’s attorney and U.S. citizens trying to bring their spouses to the U.S. hope the case will temper the unlimited powers of consular officials. But other advocates fear the conservative majority on the Supreme Court could deal a setback to immigrants by finding that Americans have no protected interest in foreign spouses’ visa applications or by further entrenching consular non-revocability.

Free rein?

The government violated Muñoz’s rights by waiting too long to explain the denial, the Ninth Circuit found. The country’s failure to act more quickly prevented the US from preventing a review. The Biden administration has argued that the ruling was incorrect because the government met its due process obligations by citing the relevant statute.

If the right to marry a spouse isn’t seen as a core right in the U.S., it’s hard to imagine that employment-based visa denial challenges will have a chance in court, says Daniel Pierce, partner of the Government Strategies and Compliance Group. at Fragomen Del Rey Bernsen & Loewy LLP.

“I worry that they will rule more broadly than necessary and that they will eliminate the rights of American employers and other forms of family relationships,” he said. “There are many cases that will be heard in the lower courts.”

The court could go further in narrowing the issues by ruling that spouses of citizens have no rights related to visa denials, said Ira Kurzban, an attorney at Kurzban Kurzban Tetzeli & Pratt, PA and former president of the American Immigration Lawyers Association . Kurzban has argued several cases before the Supreme Court.

“The question is: Do they want to pontificate about whether there will ever be a constitutional right, for anyone, and at least in the future? Or do they just want to close the door on that completely?” he said.

The Supreme Court will likely uphold the rights of consular officials to deny visas, said Muzaffar Chishti, a senior fellow at the Migration Policy Institute, a nonpartisan think tank that conducts research and analysis on immigration and border issues. He said other recent decisions by the court led by Chief Justice John Roberts on foreign policy and border issues have granted the administration foreign policy discretion.

“Every immigration case in the last three to four years — residency in Mexico, prosecutorial discretion, handcuffs at the Texas border — the government has prevailed because of the chief justice,” Chishti said.

Tattoo problems

Asencio, an undocumented immigrant, married Muñoz in July 2010. Five years later, after his visa application was approved by U.S. Citizenship and Immigration Services, he traveled to El Salvador for a consular interview, the final step in securing his immigrant visa, but months later he received a denial from the consulate.

Suspecting that the denial was related to Asencio’s tattoos, the couple filed an expert affidavit in 2016 that Asencio’s tattoos of Catholic icons and clowns were not gang-related. The Ministry of Foreign Affairs ruled that there was no reason to question the original decision. After Muñoz sued the State Department in 2017, court documents confirmed that the application was denied because a consular officer linked her husband’s tattoos to MS-13, an international gang.

Meanwhile, another couple asked the Supreme Court to review a decision by the U.S. Court of Appeals for the District of Columbia rejecting a visa denial appeal. Kristen and Edvin Colindres Juarez appealed to the DC Circuit after a lower court ruled that the decision was barred from review by the doctrine of consular non-reviewability. The Supreme Court has not yet decided whether it will hear their case.

In response to a request for comment on the Muñoz case, a State Department spokesperson said it does not comment on pending litigation. National security is the ministry’s top priority when assessing visa applications, the official said.

‘Bona Fide’ denial

The court last examined marital rights in 2015 in a case, Kerry vs. Din, involving a U.S. citizen who filed a lawsuit alleging visa denial for her husband, an Afghan citizen and former official in the Taliban government. The Ninth Circuit said the government had not provided a “facially legitimate and bona fide” reason for the denial, but the court sided with the government in a 5-4 decision.

Justice Antonin Scalia, joined by two other justices, said in a majority opinion that U.S. citizens do not have a constitutional right to live in the same country as their spouse. But in a more limited, concurring opinion that set a legal precedent in that case, Justice Anthony Kennedy sidestepped that question entirely, ruling that even if a constitutional interest was at stake, the government had met its obligations to establish a legitimate provide reasons for the decision. denial by citing relevant laws prohibiting individuals from participating in “terrorist activities.”

A Supreme Court ruling could clarify the conflicting interpretations of the court’s decision. The Ninth Circuit sided with Muñoz, ruling that she had a constitutional interest in her husband’s case and that the government must timely state the reasons for the denial. In the D.C. Circuit, the court ruled that marriage itself did not give rise to a constitutional liberty interest and that the government only had to provide a simple legal justification for denying a visa, Pierce van Fragomen said.

The courts had read the Kennedy opinion “in radically different ways to reach opposing conclusions, at least in part because of the confusion over which of the opinions was in control,” he said.

The government has argued that, if the Ninth Circuit’s interpretation is upheld, visa decisions in U.S. consulate operations could be disrupted and delayed as officials try to comply with the Ninth Circuit’s requirement to provide timely explanations for visa denials. It will also create a “chilling effect” on information sharing by government agencies and foreign partners on security issues, the government said.

Muñoz’s lawyer said the prospect of information from a foreign government leading to the visa denial highlighted the importance of judicial review.

Companies and elected officials often pressure consular officials to overturn or change visa decisions, said Simon Hankinson, a senior research fellow at the Heritage Foundation’s Border Security and Immigration Center, which supports restrictive immigration policies. But the hundreds of thousands of files per year for consular officials make reopening individual decisions unworkable, he said.

“I see no national interest in opening these types of cases to review,” he said. “Does this mean that every now and then a decision is made that, if reviewed, could be reversed? Probably. You have to balance the national interest in being able to quickly assess many applicants, so that you can admit the majority.’

The case is Dep’t of State v. Muñoz, U.S., No. 23-334, oral arguments 04-23-24.