Every semester I find at least one sleeper case. These decisions attracted little public attention but gained some considerable constitutional support. In OT in 2019, there are Agency for International Development v. Open Society Alliance. In 2020 OT, there are BP v. Baltimore. In OT 2022, there are Mallory v. Norfolk Southern. This semester, the sleeper situation is Department of State v. Muñoz.
Sandra Munoz, an American citizen, married Luis Asencio-Cordero, a foreigner. (No, I will not use the new term “non-citizen.”) Under immigration law, the husband must return to his native country of El Salvador in order to apply for a spousal visa. However, consular officials denied his visa. Eventually, the government cited the regulation to indicate that foreigners were inadmissible due to certain “illegal activities.” Long story short, the government suspects Asencio-Cordero has ties to the MS-13 gang. Since the husband is no longer in the United States, he has no mechanism to challenge the visa denial in court. However, his wife, a U.S. citizen, filed suit in the Ninth Circuit Court of Appeals.
The court scored 6-3, divided along the left and right lines. Justice Barrett wrote the majority opinion and Justice Sotomayor wrote the dissenting opinion. But to be clear, no judge found that the husband was entitled to a visa. In fact, I think all nine judges agreed that Muñoz’s rationale – that her husband’s alleged gang ties – afforded her all due process. All nine justices would have overturned the Ninth Circuit’s decision. I agree with Ed Whelan that Sotomayor’s opinion should be labeled “concurring in part, dissenting in part” or “concurring verdict” or something similar. But Sotomayor’s term of “dissent” muddies the bottom line.
Justice Barrett’s majority opinion played an important role by clearing up some unresolved issues in the relationship between immigration law and the Constitution.
firstThe court explained that under the principle of consular non-reviewability, “the Immigration and Nationality Act (INA) does not authorize judicial review of consular officers’ actions in denying visas; therefore, generally, federal courts cannot review these decisions.” Trump v. Hawaii Not the other way around. Barrett writes in the book trump cardthe court “assumed[d] no decision [the] Plaintiff’s statutory claim [were] I have always been very skeptical of this claim. to defeat the host’s immigration-related challenges.
secondthe Court addressed another issue pending before Justice Kennedy Kerry v. Din (2015):
In Din, the court considered this issue but did not resolve it. The majority concluded that citizens do not have a fundamental right to bring their noncitizen spouses to the United States. 576 US, page 96. Ibid. at 105 (opinion of Kennedy, J.). The presence of the right continues to divide the circuit courts since Din. Today we address this outstanding question. Like the Ding majority, we hold that citizens do not have a fundamental liberty interest in the admission of their noncitizen spouses to the country.
There is widespread debate over what to hold during travel ban proceedings from used to be. Lower courts relied almost entirely on Justice Kennedy’s concurrence. But looking forward, this problem has been solved very well.
thirdthe court applies glucsburg (I think) since Dobbs. The court more or less skipped over the first element and did not actually decide whether Muñoz described the liberty interest specifically enough.
We begin with a “careful description of the fundamental liberal interests claimed.” Ibid., page 721 (internal quotation marks omitted). Muñoz cited the “fundamental right to marry,” but the State Department did not deny that Muñoz (who was already married) had fundamental rights to marry. Muñoz claimed something unique: the right to reside in the United States with her noncitizen spouse. This involves not only marriage and spousal cohabitation, but also the right to have her non-citizen husband enter (and remain) in the United States. It is difficult to determine the nature of Muñoz’s correct claim.
But (shockingly) the courts have focused extensively on whether there is a “tradition” of such liberal interests. Today, it’s all about “tradition.” (I haven’t read it yet Laxmi;I’ve put it off as long as I can.
This right falls into the first category: substantive due process rights protected only by procedural due process. Same as above. We need not decide whether such a category exists because Muñoz fails the second step of the Glucksberg test: proving that the right to bring a noncitizen spouse to the United States is “deeply rooted in this country’s history and Tradition. Muñoz noted that there is no subsidiary tradition that can limit this power in the case of a non-citizen spouse.
In fact, the court relied on the Friends of Foreigners Act, which is part of the Foreigners and Sedition Act. Although the Sedition Act was struck down in the “History Tribunal” – or so Judge Brennan told us in the “History Tribunal”. New York Times v. Sullivan– The Aliens Act remains the effective basis of federal immigration powers.
From the outset, the entry of non-citizens into the country was characterized as “conducive to [and] J. Madison, “Report of 1800” (January 7, 1800), in 17 Papers of James Madison 319 (D. Mattern, J. Stagg, J. Cross, and S. Perdue eds. 1991) (emphasis added); See also 2 Records of the Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (recalling Gouverneur Morris’s observation, “From a great nation to a club, every association[s] “The right to declare conditions for the admission of new members”); Debate on the Virginia Resolutions, Reports of Virginia 1799-1800, p. 31 (1850) (“[B]Under international law, all countries have the right to take measures regarding the entry of foreigners as they deem convenient”). Consistent with this view, the Alien Act of 1798 gave the president complete discretion to remove “all aliens who, in his opinion, constitute a danger to the peace and security of the United States.
The court declined to accept any purported substantive due process rights at issue here.
fifthduring travel ban proceedings, there were questions about whether United States ex rel. Knauf v. Shaughnessy (1950) is still good law. The law gives the attorney general virtually unlimited power to exclude foreigners. The court held that Knauf Inconsistent with Justice Kennedy’s concurrence from, and tend to the latter. But the Roberts Court forcefully reiterated Knauf:
Thus, Knauf reiterated the long-standing principle that “the United States may … prohibit aliens or classes of aliens from entering its territory as a matter of public policy” and that “[n]Courts can impose limits on this power… Furthermore, we have repeatedly reiterated that Knauf remains good law.
sixththe court read Kleindienst v. Mandel (1972) is very narrow. The Hamburg court decision provides U.S. citizens with some procedural due process rights to challenge the denial of entry to aliens if their First Amendment rights have been violated. During the travel ban proceedings, I was convinced that this precedent had been annulled by subsequent decisions curtailing procedural due process. exist Munozthe courts will scale back:
For the avoidance of any doubt, Mandel does not believe that citizens have procedural due process rights in the visa proceedings of others. That’s how the Ninth Circuit seemed to interpret Mandel, but it was a misreading. . . . The court explicitly declined to discuss whether a constitutional challenge “could be used to attack [an] Exercised discretion without assigning any reasons. File a procedural due process claim in court.
Whatever it means, Mandel It is not held that a citizen’s independent constitutional rights (such as free speech claims) entitle the citizen to due process rights in explaining the visa denial of others on “ostensibly legitimate and bona fide grounds.”
what is Mandel Or even represent this moment? not much. I’m sure immigration professors will regret this secret veto Mandel. So be it. This precedent is long past its prime.
Justice Sotomayor’s dissent makes case more important like, Obergefelland Dobbs. Judge Barrett was not amused and dismissed the arguments as “rhetoric”:
The dissent never addressed the actual issue in the case, which is whether the judiciary has the authority to review visa decisions made by the State Department. Instead, the dissenters chose rhetorically An easier way to accuse the courts of jeopardizing the fundamental right to marry. See post, 11-14. To be clear: Today’s decision does not cast any doubt on any of this Court’s precedents, including those protecting marriage as a fundamental right.
Still, the rhetorical power is strong:
This Court has never held that a married couple’s ability to move their home eliminates a burden on their constitutional rights. It didn’t tell Richard and Mildred Loving to stay in DC, or James Obergefell and John Arthur to stay in Maryland. It upholds their ability to exercise their marital rights no matter where they make their home.
Justice Sotomayor also reviewed the court before Trump took office, announcing that the two Obergefell and from It was decided “ten years ago”. The good old days where the courthouse was only Legitimate government departments. Remember when Justice Kennedy was the swing vote?
I am a member.
The timing of this dissent, however, is somewhat ominous. Earlier last week, President Biden announced a new policy that would allow Easier Obtaining a green card for the alien spouse of a U.S. citizen. In short, these foreigners will no longer need to return to their home country and apply for a visa abroad. Justice Sotomayor’s dissent explains in a nuanced way all the hoops a spouse must jump.
marriage is Automatic ticket that is not a green card. Married citizen-noncitizen couples must jump through a series of administrative hurdles to apply for the legal permanent residence rights conferred by marriage. Non-citizen spouses from abroad must apply for a visa to enter the United States. However, in some cases, the law even requires couples who met and married in the United States to send their non-citizen spouse back to their country of origin to do the same thing. In doing so, the couple must pursue the stability of their legal immigration status at a significant risk: The noncitizen spouse will face unexpected deportation when he attempts to reenter the United States.
Biden’s policy would effectively make marriage “an automatic ticket to a green card.” In fact, a couple can get married immediately to take advantage of this automatic ticket. Biden’s executive actions, still Not yet published in the Federal Register, many of these restrictions would be eliminated. I suspect that policy is being rewritten as we talk about new decisions.
This quoted passage will be cited ad infinitum in the inevitable litigation. I wonder if Justice Sotomayor considered giving up after Biden’s policy was announced? I thought it would be a little awkward. Bad timing all around.
