A recent Supreme Court ruling that could influence the lives of thousands of people seeking immigration to the U.S. via consular offices gives renewed life to legal precedents built on anti-Asian discrimination of the 1800s, say advocates and legal experts.
The case, decided late last month, was “Department of State v. Muñoz.” It centers on a U.S. citizen’s years’ long attempts to sponsor her husband from El Salvador to live with her and their child. A consular official denied their spousal visa application – at the time without explanation – because the husband had tattoos that the officer believed were related to the MS-13 gang. The husband, however, had no criminal record in the U.S. or in his home country and denied being a gang member. Justices sided 6-to-3 with the U.S. government.
The ruling, say advocates, harms the marriage rights of citizens who want to live with their non-citizen spouses and further limits due process in similar marriage cases. But Asian rights groups say the ruling also gives renewed strength to what is called the “doctrine of consular nonreviewability,” which is often associated with the Richard Nixon-era, anti-socialist case “Kleindienst v. Mandel.” In effect, the ruling further empowers consular officials to make big decisions about visa applications without fear of accountability – such as worrying about applicants challenging them over visa denials or even explaining those denials so applicants can make a challenge.
Attorneys and advocates from Asian rights groups say the ruling is especially harmful because this little-known doctrine can actually be traced back to a series of precedents dating to the 1800s in rulings that blocked Asians – particularly Chinese and some Japanese migrants – from living in the U.S.
“It’s important that the public knows that the doctrine of consular nonreviewability is not something that exists in the Constitution, it’s not something that we had to abide by,” Shalaka Phadnis, a litigation staff attorney with Asian Americans Advancing Justice, told the Sampan during a phone interview. “It’s a doctrine that was made by judges, that was made by the Supreme Court, in the context of really wanting to keep out Asian migrants. These cases were Chinese migrants, Japanese migrants. The court explicitly adopted, and validated the racist reasons that the U.S. was seeking to keep these migrants out.”
The doctrine’s history, in fact, can be traced back to the “Chinese Exclusion Case” of the late 1800s, said Phadnis. In that case, the Supreme Court upheld an addendum of the Chinese Exclusion Act, effectively yielding vast powers on immigration matters and allowing the government to block thousands of Chinese laborers, many of whom worked on the nation’s railroad system, from returning to the U.S. if they traveled abroad.
Phadnis said the Muñoz ruling could harm Asian migrant visa applications.
“There are national security assumptions that are made about Asians … all the time, whether it’s about Chinese people being spies or South Asian people having some sort of connection to terrorism, which is based in racism, we know that that comes up.”
Those kinds of biases, she said, could come up as easily as the alleged gang affiliation in this Supreme Court case, and applicants would have virtually no way to challenge the accusations or know they were the basis for a denial in the first place.
Calling consular offices “kind of a black box in terms of their decision making,” Phadnis warned that the Supreme Court’s ruling could affect many types of visa applications that are processed through the offices.
Phadnis worked on an amicus brief with the Fred T. Korematsu Center, for the case, siding with Muñoz’s position.
But writing the court’s six-to-three majority decision, Justice Amy Coney Barrett, states essentially that U.S. citizens have no “fundamental liberty interest in” having their non-citizen spouse admitted to the country.
Further, Barrett, notes the statute holding that consular officials are not required to give explanation “ ‘to any alien inadmissible’ on certain grounds related to crime and national security.”
“This case involves a non-citizen to whom this statutory exception applies,” writes Barrett, who was appointed by former President Trump, in the decision.
The U.S. citizen spouse in this case is Sandra Muñoz, a civil rights attorney herself. She wanted to bring her husband, Luis Asencio-Cordero, back into the U.S. from El Salvador. They were married in 2010 but he was in the U.S. unlawfully for several years, so to apply for a spousal visa he had to go to the consular office in El Salvador, where the couple believed a spousal visa would be granted. The visa was denied, however, as the consular officer, they later found out, felt Asencio-Cordero was likely to commit a crime in the U.S. if allowed into the country.
Muñoz made the case that the U.S. government violated her rights in part by failing to explain within a reasonable time frame why Asencio-Cordero’s visa was denied. The couple sued and the case went through lower courts, during which time they learned that the denial was based on his tattoos that were believed to show links to the MS-13 gang, despite his lack of any criminal record.
Finally, 12 years after their marriage, the 9th Circuit Court of Appeals ruled in favor of Muñoz and Asencio-Cordero. But the Biden administration requested the Supreme Court reverse the ruling, according to a report in the L.A. Times. The government held that the couple could reside in another country and thus Muñoz’s right to marriage had not been violated. Barrett agreed, saying the right to bring a non-citizen spouse to the United States is not an “unenumerated constitutional right.”
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented. Sotomayor notes that if Muñoz wanted to live together with her husband and their child again, she would have to move to El Salvador. “The reason? A consular officer’s bare assertion that her husband, who has no criminal record in the United States or El Salvador, planned to engage in ‘unlawful activity.’”
“Muñoz has a constitutionally protected interest in her husband’s visa application because its denial burdened her right to marriage,” writes Sotomayor. “The constitutional right to marriage is not so flimsy. The Government cannot banish a U. S. citizen’s spouse and give only a bare statutory citation as an excuse. By denying Muñoz the right to a factual basis for her husband’s exclusion, the majority departs from longstanding precedent and gravely undervalues the right to marriage in the immigration context.”
For groups like AAAJ and the Fed T. Korematsu Center, the decision continues a legacy of policy based in racism and “anti-immigrant rhetoric.”
After the decision, Robert Chang, executive director of the Korematsu Center, said in a statement that he was disappointed the court is continuing to uphold the consular nonreviewability doctrine and expressed concern about the “countless other families who have been and may be torn apart” through the policy.
The Korematsu Center is named after Fred Korematsu, whose own history was another example of the U.S.’ anti-Asian policy, enduring decades after the Chinese Exclusion Case. At age 22 Korematsu defied orders to report to an internment camp where thousands of other Japanese Americans during World War II were confined against their will. He was arrested and convicted for his defiance, and both his arrest and conviction were upheld by the Supreme Court in 1944, in what many view as a dark period for civil rights in the U.S.
Eric Lee of Diamante Law Group, one of the group’s representing the couple, said in a statement that the Supreme Court’s decision “has thrown another shovel of dirt on the coffin of American democracy. It is a milestone attack on the right to marriage, the rights of immigrants, and the Due Process Clause.”
The nation’s highest court, Phadnis said, in its ruling is furthering an “unchecked system that can result in discrimination and stereotyping to guide visa decisions and risks tearing the livelihoods and families of immigrants apart.”
“It does allow officers to make decisions not just on marriage visas, but on other types of visa applicants that are being processed at a consulate. So, officers’ decisions are essentially being shielded from review by the court.”
