Immigration Blogs

Background

The recent Supreme Court decision in Department of State v. Muñoz represents a significant missed opportunity to advance the principles of a “living constitution,” one that evolves with societal changes and values. Instead, the Court’s ruling perpetuates outdated and discriminatory policies reminiscent of the Chinese Exclusion Act of the 1800s, undermining the rights of families to remain together.

Historical Context: The Chinese Exclusion Act and Consular Nonreviewability

The doctrine of consular non-reviewability, central to the Court’s majority opinion, traces its origins to discriminatory practices such as the Chinese Exclusion Act of 1882. Enacted in 1882, the Chinese Exclusion Act was the first significant law restricting immigration into the United States, specifically targeting Chinese laborers. This act laid the groundwork for the plenary power doctrine, granting the executive and legislative branches broad authority over immigration matters, with minimal judicial oversight.

Key Supreme Court cases, such as Chae Chan Ping v. United States (1889), also known as the Chinese Exclusion Case, and Fong Yue Ting v. United States (1893), entrenched the principle that immigration decisions, made by consular officers abroad, are beyond the purview of the judiciary. This principle, born out of discriminatory practices, continues to influence immigration law today, as seen in the Department of State v. Muñoz decision.

Historical Context of the Supreme Court’s Conservative Control

Since the late 1960s, the Supreme Court has predominantly been composed of justices appointed by Republican presidents, beginning with President Nixon’s four appointments. These appointments marked the start of a conservative shift in the Court’s composition, which has generally maintained a Republican-appointed majority since then. This conservative influence was somewhat balanced by a republican appointed justices such as Justice Kennedy, Justice Sandra Day O’Connor, and Justice David Souter often regarded as a swing vote, who sided with the protection of individual rights on numerous occasions. Justice Kennedy’s retirement marked a pivotal shift, culminating in a strong conservative super-majority by 2020. As of now, the Supreme Court consists of six justices appointed by Republican presidents and three justices appointed by Democratic presidents, leading to a Supreme Court where conservative-appointed justices now dominate decisions, often tilting the balance away from more progressive interpretations of individual rights. This current court composition has made it increasingly difficult to challenge restrictive and outdated legal doctrines, such as those affirmed in the Muñoz ruling.

Current Problems in Consular Processing

The dissenting opinion led by Justice Sotomayor referred to evidence highlighting a significant lack of fundamentally fair processes in the issuance of visas by consular officers. Former consular officers have raised substantial concerns about the lack of accountability in consular processing. They assert that deficient information, inconsistent training, and inadequate oversight lead to decisions often based on stereotypes, tropes, or even bias and bad faith. Visa applicants frequently experience disparate outcomes based on the luck or misfortune of which diplomatic post and consular officer they are assigned.

The State Department’s Office of the Inspector General has documented numerous deficiencies in consular processing across several continents. For instance, a 2019 inspection of the U.S. Embassy in Bogota, Colombia, revealed that consular managers required visa adjudicators to maintain an average of 30 in-person interviews per hour, compromising the quality of the adjudication process. Additionally, supervisors are mandated to review a certain percentage of visa denials but often fail to do so, further exacerbating the problem. As a result, the families of U.S. citizens are often separated or forced to live in countries other than the United States, causing economic hardship and exposing them to dangerous conditions overseas. For example, families may find themselves in countries with poor healthcare systems, increasing their vulnerability to illness and lack of medical treatment. Children may be subjected to substandard education systems, significantly impacting their future opportunities. Same-sex couples may be forced to live in countries where laws penalize them for being in a same-sex relationship, facing legal prosecution, social ostracism, and even violence. Women and children might be exposed to regions with high rates of gender-based violence and human trafficking, further endangering their safety and well-being. These forced relocations can also lead to job loss for the U.S. citizen spouse, exacerbating financial instability and making it challenging to support their family adequately.

Case Summary

Sandra Muñoz, a celebrated workers’ rights lawyer from Los Angeles, married Luis Asencio-Cordero in 2010 and filed a petition with U.S. Citizenship and Immigration Services (USCIS) to classify him as an immediate relative. While USCIS approved the petition, a consular officer in San Salvador denied Asencio-Cordero’s visa application, citing his alleged affiliation with MS-13 under provision §1182(a)(3)(A)(ii) of the Immigration and Nationality Act, which bars entry to those believed to be involved in unlawful activity.

Despite multiple appeals and submission of evidence refuting the gang affiliation, the State Department upheld the consular officer’s decision. Muñoz then filed a lawsuit, claiming her constitutional liberty interest in her marriage was violated by the insufficient explanation for her husband’s visa denial.

Supreme Court’s Majority Ruling and Issues with It

The Supreme Court has ruled that a U.S. citizen does not have a fundamental liberty interest in their noncitizen spouse being admitted to the country. The opinion, delivered by Justice Barrett and joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kavanaugh, emphasized the principle of consular nonreviewability. Key points of the majority opinion, along with the issues in these points, include:

1. Consular Nonreviewability Doctrine:
   • The Court reiterated that an executive officer’s decision to admit or exclude a noncitizen is final and not subject to judicial review. This principle is intended to prevent judicial interference in immigration matters.
   • Issue: The doctrine undermines judicial oversight and accountability. There is legal precedent for limited judicial review in cases where constitutional rights are at stake, which the doctrine should not ignore.
2. Constitutional Rights and Due Process:
   • The Court argued that while certain constitutional rights are fundamental and warrant heightened protection, the right to have a noncitizen spouse admitted to the U.S. is not deeply rooted in the nation’s history and tradition, and thus does not qualify as a fundamental liberty interest under the Due Process Clause.
   • Issue: While the court framed the fundamental right claimed as “the right to have a noncitizen spouse admitted to the U.S.,” the fundamental right claimed by Muñoz is the right to marry and live with her spouse, including the right to live in the United States with her spouse. This right should indeed trigger strict scrutiny. Recognizing such a right does not prevent the government from controlling the entry of foreign nationals in general; it would only prevent the government from denying entry to the spouse of a U.S. citizen without providing an adequate reason. Interference with this right should be subject to strict scrutiny, requiring the government to demonstrate a compelling interest and that the denial is narrowly tailored to achieve that interest. The majority opinion fails to acknowledge the need for such rigorous judicial review in cases involving the fundamental right to marriage.
3. Historical Context:
   • The decision emphasized that immigration control has always been a matter of legislative grace, with numerous historical precedents for restrictions and qualifications on the admission of noncitizens, including spouses of U.S. citizens.
   • Issue: The majority’s reliance on historical practices from an era with different societal norms and values overlooks the progress in constitutional interpretation that recognizes and protects individual rights in a more inclusive and equitable manner. The Supreme Court has demonstrated inconsistency by anchoring this decision in historical precedent while disregarding precedent in other cases, such as the recent overturning of Roe v. Wade. Our laws have many examples from the 1800s that are found unconstitutional today because they curtailed the fundamental rights of classes of people we were then willing to discriminate against but would not discriminate against today. The law must evolve with the times, and our Constitution has long been recognized as a living, breathing document rather than one frozen at its inception. Moreover, the Immigration and Nationality Act (INA) has treated not just spouses but all immediate relatives differently from other immigrants. This special treatment reflects the recognition of the importance of family unity, which the majority opinion fails to adequately consider.

Dissenting Opinions

The dissenting justices, led by Justice Sotomayor and joined by Justices Kagan and Jackson, provided a robust counterargument, challenging the majority’s reasoning:

1. Fundamental Right to Marriage: Justice Sotomayor argued that the decision undermines the fundamental right to marriage, emphasizing that the exclusion of a noncitizen spouse directly burdens the U.S. citizen’s right to live with their spouse and raise a family in their own country. She highlighted the inconsistency of the majority’s ruling with previous decisions that recognized and protected marital rights.
2. Due Process Violations: The dissent criticized the majority for ignoring the procedural due process owed to Muñoz. Justice Sotomayor contended that the government should at least provide a factual basis for the visa denial, arguing that the majority’s decision leaves U.S. citizens vulnerable to arbitrary and unexplained government actions that disrupt their family lives.
3. Judicial Overreach: The dissenters accused the majority of judicial overreach, arguing that the decision reflects a partisan agenda to curtail immigrant rights and limit judicial oversight of executive actions. They stressed that the majority’s approach disregards the real-life impact on American families and undermines long-standing constitutional protections.

Implications

The ruling in Department of State v. Muñoz has significant implications for spousal immigration cases, reinforcing the broad discretionary power of the executive branch in immigration matters and limiting the scope of judicial review of arbitrary decisions made by consular officers that have devastating effects of family unity of U.S. citizens. The decision underscores the need for a more balanced approach that considers the fundamental rights of U.S. citizens and the due process owed to them.

In conclusion, the Supreme Court’s decision in Department of State v. Muñoz reflects a contentious partisan divide and raises critical legal questions about the balance between executive power and constitutional protections. The dissenting opinions provide a powerful critique of the majority’s ruling, advocating for a more nuanced and rights-respecting approach to immigration law.