US Supreme Court Suggests Some Judicial Review for Visa Denials

The Supreme Court suggested that it may allow a limited opportunity for US citizens to challenge a visa denial for their spouse.

But the justices at argument on Tuesday left it unclear how helpful some leeway would be for those seeking to bring their loved one to the US.

Sandra Muñoz, an American citizen, sued the State Department after her husband Luis Asencio-Cordero, a citizen of El Salvador, was denied a visa application.

Under the doctrine of consular nonreviewability courts generally can’t review visa denials for noncitizens for any reason. But there is a limited exception when the decision impinges the constitutional rights of a US citizen. In those cases, the government must provide a “facially legitimate and bona fide reason” for the denial.

A trial court agreed with the State Department that Muñoz couldn’t challenge the denial and dismissed the case. But the US Court of Appeals for the Ninth Circuit vacated that decision.

The appeals court said the the denial affected Muñoz’s rights related to her marriage and that the State Department’s bare-bones citation to the statute under which they denied Asencio-Cordero’s visa didn’t provide the kind of facially legitimate reason necessary to avoid judicial review.

Several justices appeared to agree that some limited judicial review was appropriate, but that Muñoz was asking for too much.

Previous cases don’t “require that much,” said Justice Amy Coney. But “you are asking for significantly more,” she told Muñoz’s attorney Eric Lee. “I guess I don’t see why” this isn’t “just game over.”

Game Over

Providing more information could expose law enforcement and national security “sensitivities,” Justice Department lawyer Curtis Gannon told the justices.

Gannon said the State Department issued 11 million visas last year and denied 62,000 applications. The point of the limited exception to consular nonreviewability isn’t to allow courts to second guess all of those decisions, but instead to ensure that the government had a reason for the denial, Gannon said.

Chief Justice John Roberts wondered how to balance the government’s national security interests with the fundamental right to marriage. That’s like comparing “apples to giraffes,” Roberts said.

And Justice Neil Gorsuch wondered whether revealing a bit more about the State Department’s reasons would actually be harmful to national security.

Gorsuch noted that the government has since revealed that it denied the visa because it believes Asencio-Cordero is a member of the Mara Salvatrucha, or MS-13, gang. How does that implicate serious government information, Gorsuch asked Gannon. Asencio-Cordero denies any gang affiliation.

Justice Elena Kagan emphasized that the exception is extremely narrow and would provide only limited information. But it is “something,” Kagan said. Knowing that the government thinks her husband is a gang member gives Muñoz a lever to try to test the accuracy of the government’s claim.

Several justices wondered what comes next, noting that Muñoz now knows the reason that the State Department denied the visa.

“What more would you be entitled to?” Roberts asked Lee.

Lee said they wanted a reason so that they weren’t fighting the visa denial with their hands tied behind their backs.

You got that, Gorsuch said. “So why are we here?”

Lee responded that they need a declaration from a court that the State Department’s reason for denying the visa was inadequate.

That’s asking for more process than previous cases said was available under the limited exception to consular nonreviewability, Justice Brett Kavanaugh said. Those court’s cases “suggest that a facially legitimate, bona fide reason is enough,” Kavanaugh said. “And you stop there.”

“Courts will neither look behind the exercise” of the State Department’s “discretion nor test it,” Kavanaugh said. “That’s kind of it.”

The case is Department of State v. Munoz, U.S., No. 23-334, argued 4/23/24.