SCOTUS Rules U.S. Citizens Cannot Challenge Spouses’ Visa Denial

A recent Supreme Court decision limits U.S. citizens’ ability to challenge visa denials for their non-citizen spouses, even if it means tearing families apart. The Court ruled that U.S. citizens don’t have a constitutional right to challenge these decisions.

Background

Sandra Muñoz sued the State Department after her husband, Luis Asencio-Cordero, a citizen of El Salvador, was denied a visa. The consular officer denied Luis’s visa during his interview, finding him ineligible under an ambiguous provision of immigration law which applies where an immigration officer “knows, or has reasonable grounds to believe, [that the applicant] seeks to enter the United States to engage solely, principally, or incidentally in [certain specific offenses or] any other unlawful activity.” Ultimately the State Department said it rejected Luis’s visa based on the belief he was affiliated with the notorious MS-13 gang. Luis denied being a member of the group. Suspecting the denial was related to Luis having multiple tattoos, the family asked the consular for answers and got none.

In its decision, the Supreme Court found that that U.S. citizens do not have a fundamental right to live with their noncitizen spouses inside the United States and so are not entitled to a review of the Department of State’s visa refusal. Immigration practitioners should be aware of this new ruling and its potential implications for noncitizens and their families to properly advise clients seeking to consular process abroad.

Overview

In a recent 6-3 decision, the Supreme Court ruled that U.S. citizens do not have a fundamental liberty interest in having their noncitizen spouses admitted to the country. This decision, authored by Justice Barrett, reversed a Ninth Circuit ruling that required the government to provide a factual basis for denying a spouse’s immigrant visa. The case involved Ms. Muñoz, a U.S. citizen, and her husband, Mr. Asencio-Cordero, whose visa was refused without detailed explanation. The Court’s decision underscores the government’s authority over immigration and limits judicial review of consular decisions.

This ruling has significant implications for U.S. citizens seeking to live with their noncitizen spouses, as it restricts their ability to challenge visa refusals. Despite dissenting opinions arguing for the protection of marital rights, the Court maintained that immigration decisions are a matter of government discretion. This decision may lead to increased challenges for families separated by immigration barriers and highlights the complexities of immigration law.

This decision makes it harder for spouses of U.S. citizens to immigrate to the U.S. It also makes it difficult to know why a visa was denied, which could be due to bias or mistakes. Spouses of U.S. citizens are generally eligible for an immigrant visa as an “immediate relative” of a citizen. This allows them to become legal permanent residents and, after a certain number of years, apply for U.S. citizenship. However, people who entered the United States “without inspection” (e.g. by crossing the U.S./Mexico border without prior approval) have a much harder path to permanent residency through their spouses. The only option generally available for them is so bureaucratically onerous, and risky, that many of them have been unable to receive the green cards for which they are theoretically eligible. As a result, some 1.2 million people are married to U.S. citizens without having formal immigration status themselves—even though, in theory, many should have a path to green cards.

The Law

Under federal law, some immigrants—namely, those who have already been “inspected and admitted” (generally, anyone who entered through an official port of entry) or “inspected and paroled” into the U.S.—can apply to adjust their status to permanent residency without having to depart the country to attend an immigrant visa interview at a U.S. embassy or consulate abroad. However, immigrants who entered without inspection do not have this option. They must leave the United States, go to a consulate abroad, and obtain a new immigrant visa to reenter.

Once they leave the United States to go to a consulate, however, they often trigger a years-long bar on legally reentering the country to be reunited with their families. This is because of a 1996 law that imposed bars of up to ten years on anyone who has been “unlawfully present” in the United States for more than one year, preventing them from receiving visas for which they would otherwise be eligible. Immigrants married to U.S. citizens may apply for a waiver of the bar—thus allowing them to receive their immigrant visas and come back into the U.S. as permanent residents—if they can demonstrate that their citizen spouses would suffer “extreme hardship”4 from such a prolonged separation. Because approval of the waiver is not guaranteed, leaving the U.S. before the waiver has been approved is risky. Immigrants are allowed to apply for “provisional” waivers before leaving the U.S. to solve this problem. However, as of April 2024, the U.S. government was taking over 41 months—three and a half years—to adjudicate these waivers, in addition to the amount of time taken to adjudicate the underlying application for the immigrant visa and arrange a trip to the U.S. consulate.

What immigration lawyers can do

• Carefully review clients’ backgrounds for potential visa denial reasons.
• Use Freedom of Information Act (FOIA) requests to get relevant government records.
• Ask clients questions about their past to identify potential red flags for visa applications.
• Explain the limited ability to challenge visa denials by consular officers.
• Explore alternative ways for non-citizen spouses to stay in the U.S., such as the new “parole-in-place” program.
• For more information, make sure you stay updated HERE.