Department of State v. Muñoz
Sandra Muñoz, a United States citizen, married a Salvadoran citizen fourteen years ago. So that they could live in the U.S. together, she later filed a family-based immigrant visa petition on her husband’s behalf. The Department of Homeland Security approved the petition and granted her husband an inadmissibility waiver. The last step in the visa application process was for her husband to be interviewed in El Salvador in person by an officer at the U.S. Consulate. After the interview, the consular officer denied the visa application. The only rationale offered for the denial was a citation to 8 U.S.C. § 1182(a)(3)(A)(ii)—a catch-all provision that renders inadmissible non-citizens who the consular officer believes will participate in “unlawful activity” in the United States. Ms. Muñoz’s husband had never been charged with a crime in any country.
Ms. Muñoz challenged the denial in court, and the case made its way to the Supreme Court. The Supreme Court granted certiorari to consider (1) whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges on a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under the catch-all statute satisfies due process.
Public Citizen wrote an amicus brief in support of Ms. Muñoz on the second question, arguing that the mere citation of the catch-all provision does not satisfy due process. The brief explains that, when the government adjudicates the rights of an individual, it must offer a statement that would permit that individual to understand why the government acted as it did so that the individual may decide whether—and how—to challenge that action. When the government denies a visa application, citation to the catch-all provision is inadequate to perform that function. At minimum, due process requires that a consular officer justify the denial with either a factual basis for the decision or a sufficiently specific statutory subsection that effectively conveys the same information.