Manatt filed an amicus brief in a case before the U.S. Supreme Court over the denial of an immigrant visa to a U.S. citizen’s spouse, arguing it violates the citizen’s constitutional rights to due process and family unity.
In the case, U.S. Department of State v. Muñoz, a U.S. citizen petitioned for her El Salvadoran husband to become a lawful permanent resident. After establishing their legitimate relationship, the husband passing a background check by the Department of Homeland Security (DHS), and DHS’s determination that the U.S. citizen wife would suffer “extreme hardship” should she be separated from her husband or forced to live in El Salvador, the couple began the final step to obtaining his green card: the husband’s consular interview in El Salvador to obtain a visa to reenter the U.S. After the interview, a Department of State officer refused to issue a visa with no explanation beyond citing a statute that visas can be denied to anyone the officer believes may commit any crime in the future. Despite having no factual information about the denial, the couple guessed that the decision may have been based on his tattoos, and the couple submitted an affidavit from a gang expert who reviewed his tattoos and determined they did not indicate any gang affiliation.
During subsequent litigation over the decision, the consulate said the visa denial was based on criminal review, the consular interview, and his tattoos, though the spouse has no criminal record. Further, the State Department claimed the records involved with visa decisions are confidential and therefore could not be released to the couple to dispute the review. The district court ruled against the couple, but on appeal the Ninth Circuit reversed. The Ninth Circuit concluded that “where the adjudication of a non-citizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.” The Ninth Circuit’s ruling was especially notable as federal courts apply the doctrine of “consular non-reviewability” and rarely conduct judicial review of visa denials. According to this doctrine, the State Department’s decision to withhold a visa is not subject to judicial review.
Now before the Supreme Court, the case asks whether a consular officer’s refusal of a visa to a citizen’s noncitizen spouse violates the constitutionally protected interest of the citizen and if simply notifying that an applicant is inadmissible, without further details, suffices due process.
In the brief filed on behalf of HIAS, Manatt said the decision could affect U.S. citizens who had first come to the U.S. as refugee or seeking asylum, and may be separated from their spouses with no safe country in which to live together. The brief argued the history and tradition of family unity is deeply rooted in the United States and has long been a fundamental aspect of U.S. immigration policy in Congress. The authors also pointed to court precedent applying due process principles for families with mixed immigration status, adding, “[the] protections of the Due Process Clause do not disappear merely because the family unit includes someone who is not a U.S. citizen.”
Citing the violation of fundamental rights and other harms a U.S. citizen may face, the brief also said the chance to meaningfully engage in the review of an unfavorable decision is an essential part of due process. Oftentimes the inability to seek review of a consular officer’s decision means an applicant may never reunite with their spouse, leaving both the citizen and the noncitizen spouse with an impossible choice.
“Depriving a U.S. citizen of the factual basis behind the denial of an immigrant visa for their spouse and frustrating their ability to appeal or otherwise overcome the denial violates their procedural due process rights,” the brief said. “Moreover, for many families of mixed immigration-status, especially those who came to the United States to live in safety after fleeing persecution, they may be forced to choose between their life and the safety or their family.”
The Manatt team on the brief included Partners Benjamin Shatz and Timothy Lohse; Partner and Pro Bono Director Sirena Castillo; and Associates Patrice Ruane, Kayla LaRosa and Gabriella Zoia.
HIAS is a nonprofit providing vital services to refugees, asylum seekers, and other forcibly displaced and stateless persons around the world and advocates for their fundamental rights so they can rebuild their lives.
Read the full amicus brief here.