WSJ (“Supreme Court Says U.S. Citizens Don’t Have Right to Bring Noncitizen Spouses to U.S.“):
The Supreme Court ruled Friday that U.S. citizens don’t have a fundamental right to have their noncitizen spouses admitted to the U.S.
The court, in a 6-3 decision along ideological lines, ruled against a California woman who sued the State Department and claimed her rights were violated because her Salvadoran husband’s green card application was denied without explanation.
The ruling deals a blow to Americans who want to marry foreigners. U.S. courts have already drastically limited Americans’ ability to challenge visa denials in court, but Friday’s decision further limits the grounds on which they can sue.
Writing for the majority, Justice Amy Coney Barrett said Congress is free to write immigration laws in a way that gives priority to family unification, but the Constitution doesn’t require such policies.
“This is an area in which more than family unity is at play: Other issues, including national security and foreign policy, matter too,” Barrett wrote.
On that description, the majority is clearly right. Congress has the authority to make immigration policy and has delegated enforcement to various Executive agencies, notably US Customs and Border Protection. And, while the ruling was along predictable lines, this is noteworthy:
The Biden administration had urged the court to rule against the couple—a move that angered some pro-immigration groups.
Biden has threaded the needle between trying to satisfy those wanting more aggressive enforcement of our borders while also making some humanitarian concessions for those already here illegally.
Generalities aside, though, the specific case in controversy is rather outrageous:
The case was brought by Sandra Muñoz, a U.S. citizen living in California who works as a workers’ rights attorney.
In 2008, she met Luis Asencio-Cordero, a Salvadoran citizen who was living without authorization in the Los Angeles area.
Muñoz and Asencio-Cordero married in 2010 and had a child together. She eventually sought a spousal visa for him, and during the final stage of that process in 2015 he was required to travel from Los Angeles to the U.S. consulate in El Salvador for an interview.
He has been stuck in El Salvador ever since. The State Department denied his application, citing a statute that allows the U.S. government to turn away applicants who could be engaged in illegal activity. The department didn’t provide an explanation for why it believed he might break the law.
Later, after years of litigation, the government disclosed that the consular officer found that Asencio-Cordero may be a gang member because of his tattoos. Asencio-Cordero submitted a declaration that he’s never been a gang member, and that his tattoos are “expressive of his intellectualism and deeply-held Catholic faith.”
So, basically, an American citizen wife and her American citizen child have been separated from their husband and father for nine years because of an arbitrary and wrong decision by a low-level official. And the Court ruled they have no rights in the matter.
Muñoz alleged the government had violated her fundamental right to live with her spouse in her country of citizenship without affording her due process.
The U.S. Ninth Circuit Court of Appeals, in San Francisco, ruled for Muñoz in 2022, saying she “possessed a liberty interest in her husband’s visa application” and that the government therefore owed her at least an explanation for denying it.
The high court reversed that ruling.
Barrett wrote that Muñoz has no legal interest in the visa application of a third party—that is, her husband. And as a noncitizen overseas, Asencio-Cordero has no right to federal court review of the U.S. consul’s visa decision.
In dissent, the court’s three liberal justices said the government should be required to explain its reasoning and warned the decision could particularly harm people with limited legal and financial means, as well as same-sex couples.
Justice Sonia Sotomayor, writing for the dissenters, said some same-sex couples won’t be able to live together in the U.S. and may be forced to relocate to countries that don’t recognize same-sex marriage or criminalize homosexuality.
“Muñoz may be able to live in El Salvador alongside her husband or at least visit him there, but not everyone is so lucky,” Sotomayor wrote.
The homosexuality argument is just bizarre but, yes, it seems reasonable that spouses have a due process interest in the immigration status of their partner. But SCOTUS is likely right here that it’s up to Congress to create that policy via the legislative process rather than to have the judiciary find it hiding in the Constitution.
The sad irony is that, had Asencio-Cordero never filed for legal status and just remained here illegally, he’d be home free.
The ruling comes just days after President Biden created a new program essentially easing a path to permanent residency for spouses of U.S. citizens who are in the country illegally.
The circumstances from Friday’s case differ from the types of situations the Biden program would benefit. In Muñoz’s case, had her husband remained in the U.S. rather than leaving the country for a visa appointment, it is possible he could have benefited from Biden’s new policy.
I understand why the administration opposed the 9th Circuit’s ruling. It would be a nightmare if every consular decision was able to be litigated in court.
My knowledge of immigration law is broad, so I have no sense as to whether Biden could issue an executive order creating more due process rights in the case of aliens married to U.S. citizens. But this surely seems like a matter that Congress could agree to fix on a bipartisan basis.
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Author: James Joyner
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