Married to a US Citizen But Facing Visa Denial? Here's Why You Might Feel Helpless
You've found the love of your life, gotten married, and now it's time for them to join you in the United States. But what happens if your spouse's visa application gets denied? Unfortunately, even for US citizens sponsoring a spouse's green card, a little-known legal principle called "consular non-reviewability" can leave you feeling helpless.
This article explains what consular non-reviewability is, why it exists, the recent Supreme court decision around it and how it could impact your immigration journey.
What is Consular non-reviewability?
Consular non-reviewability is a legal principle that generally prevents U.S. courts from reviewing or overturning decisions made by consular officers regarding visa denials or other visa-related decisions.
Usually, an immigrant or a non-immigrant visa is required to enter the United States. When someone applies for a visa to enter the United States, a consular officer at a U.S. embassy or consulate makes a decision based on the applicant's eligibility under U.S. immigration laws. This decision can involve factors such as the applicant's background, purpose of visit, and ties to their home country.
Consular officers have unfettered discretion in these decisions, and U.S. law traditionally gives them extensive authority without interference from courts. This principle is rooted in the idea that foreign policy and national security concerns are best managed by executive branch officials (like consular officers) rather than by judicial review.
Now that we’ve understood what is consular non-reviewability is, let’s understand what the recent Supreme Court case was.
The US Supreme Court - Department of State v. Munoz:
Supreme Court Decision in Department of State v. Munoz:
At the center of this case are Sandra Muñoz and Luis Asencio-Cordero. Muñoz is a U.S. citizen working as a civil rights attorney in Los Angeles. Her husband, Asencio-Cordero, is from El Salvador
Sandra Muñoz, a U.S citizen filed for a green card for her spouse based on marriage but it was denied by the consulate. U.S citizen sued the department of state on this issue and a federal court in the Ninth Circuit decided that she has a constitutionally protected liberty interest in her husband’s visa process and hence, due process requires the State Department to provide reasons for the denial. Hence, the State Department disclosed that the visa was denied on “reason to believe” that he seeks to enter the U.S to engage in unlawful activity.
Government officials suspected Asencio-Cordero of having ties to MS-13, a dangerous gang. This suspicion was based mainly on his tattoos, which include images of theater masks, the Virgin of Guadalupe, and a tribal design with a paw print.
Asencio-Cordero said he had no connection to any gang. To support this, an expert on gangs examined his tattoos and agreed they were not related to gang activity. Despite this evidence and the fact that Asencio-Cordero had no criminal record in the U.S., his visa was still denied. The State Department appealed the Ninth Circuit decision in Supreme Court.
The Supreme Court Verdict
The Supreme Court ruled that consular officers' decisions on visa applications are generally not subject to judicial review. The Court emphasized that consular officers have the authority to interpret and apply immigration laws and regulations as they see fit, within the bounds set by Congress and the executive branch.
The Supreme court discussed that the Fundamental Right to Marry is distinct from the right to reside with a non-citizen spouse in the United States. In the context of immigration law, the distinction becomes significant because while the right to marry is constitutionally protected, the right to live with a spouse in the United States is subject to federal immigration laws and policies. Consular officers play a crucial role in evaluating visa applications based on these laws, including considerations of eligibility, admissibility, and other factors related to national interests.
Right to Marry Vs Right to Live with One's Spouse:
Fundamental Right to Marry:
The Supreme Court has recognized marriage as a fundamental right under the Due Process Clause of the Fourteenth Amendment. This means that individuals have a constitutional right to marry the person of their choosing, subject to certain legal restrictions such as age and consanguinity i.e they shouldn’t be blood relatives.
Right to Live with Spouse in the United States:
This right pertains to the ability of a U.S. citizen or lawful permanent resident to live with their foreign spouse in the United States. It involves the immigration process, where the spouse seeks a visa to join or accompany their partner who is already living in the U.S.
The Court emphasized that the admission of non-citizens into the country is characterized as a favor and not a right. While the denial of one’s spouse may cause serious harm or trauma, it does not constitute a direct restraint of a U.S. citizen’s liberty. The court also noted that the right to bring a noncitizen spouse to the United States is not "deeply rooted in this Nation’s history and tradition". It highlighted that historically, the government has sovereign authority to set the terms governing the admission and exclusion of noncitizens, and while Congress has made it easier for spouses to immigrate, it has never made it a matter of right.
Hence, it is important to understand the difference between adjustment of status and consular processing.
If you sponsor your spouse for a green card through consular processing and the consulate denies the immigrant visa, the U.S citizen spouse has no constitutional right to challenge that decision. The denial cannot be challenged in the courts in the United States.
What Happens Next?
This decision could lead to several changes:
Congress might consider new laws to give U.S. citizens more rights in these situations.
The government might change how it trains visa officers and how visa decisions are made.
Immigration advocacy groups are likely to push for changes to protect families.
There might be more public discussion about immigration policies and how they affect families.
As the effects of this decision become clearer over time, it will likely remain an important topic in discussions about immigration, family rights, and the power of government in the United States.
Book Consultation:
An expert to look at your case is always the best option than searching for information on the internet especially when it comes to your immigration status. If you have any questions related to family or employment based immigration in the US, please don’t hesitate to book an initial consultation using this link: https://www.sharmalawassociates.com/book-consultation
