This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
[Note: Parole in Place applications should open on Monday, August 19. As part of the Department of Homeland Security’s ongoing campaign to make Statutes of Liberty’s advertisements harder to draft, no guidance for this important program has been issued as of our publication date, August 15. We refer our readers to our predictions about what that guidance will say.]
Americans are, and always have been, a litigious people — always appealing to our Constitution to support our opinions, and always ready to go to court to right real, or imagined, wrongs. But, as the Supreme Court explained this term in Department of State v. Muñoz, the right to have your day in court stops at our borders. No non-citizen can challenge a consular officer’s decision to deny a visa.
In this advertorial, we’ll explain how the doctrine of Consular Non-Reviewability works, and then provide information about the rare exceptions to the doctrine.
The facts of Department of State v. Muñoz show a typical application of consular non-reviewability. A U.S. citizen, Sandra Muñoz, married a Salvadoran man, Luis Asencio-Cordero. Asencio-Cordero had previously entered the United States illegally, so Muñoz had to file several applications inside the United States.
First, Muñoz filed a petition seeking recognition of the validity and good-faith nature of her marriage, which USCIS approved. Then, Muñoz filed a waiver application seeking the government’s agreement that separating her and her husband would result in “extreme hardship”; again, USCIS approved. Having obtained both of these approvals, Asencio-Cordero was able to leave the United States to apply for an immigrant visa, which, if granted, would have allowed him to re-enter the U.S. as a permanent resident.
Applications for immigrant visas are handled by the U.S. embassies and consulates abroad. Asencio-Cordero attended an interview at the U.S. Embassy in San Salvador and was denied an immigrant visa. What was the reasoning? Asencio-Cordero was not told. At this point, Muñoz and Asencio-Cordero filed a lawsuit.
In the absence of an explanation from the State Department, they guessed (accurately) that the State Department believed him to be a member of a Central American street gang, and guessed (again accurately) that the reason they believed this was his tattoos, which included Our Lady of Guadalupe, the face of Sigmund Freud, a ‘tribal pattern’ with a paw print, and a theatrical mask with dice and cards.
Muñoz’s lawsuit alleged that the State Department had deprived her, as a United States citizen, of a protected liberty interest, namely living with her husband in the United States.
The Supreme Court ruled — effectively, 9-0 — that Muñoz could not appeal to the federal courts for a review of the Embassy’s decision. A majority of six justices found that Muñoz was not even entitled to an explanation of the denial beyond a bare statutory citation; the dissenting three held that the State Department could deny visa applications without judicial review, but should be required to provide a “facially legitimate and bona fide reason” for the denial.
This doctrine of consular non-reviewability is, with rare exceptions, absolute. The exceptions embrace classes, not individuals. For example, in Trump v. Hawaii, the Court allowed plaintiffs arguing against the Trump Administration’s travel ban — which embraced entire nationalities — to proceed despite the doctrine of consular non-reviewability.
And, in Kleindienst v. Mandel, the Court allowed a group of professors to at least receive a reasoned explanation for the denial of a visa application by a colleague who had been barred from entering the United States as a Marxist. But these exceptions are narrow, rare, and rarely substantive. If your visa application is denied, there is rarely an opportunity to apply again.
As a footnote, we would like to note that the non-citizen in Muñoz would almost certainly have qualified for parole in-place if he had remained in the United States and had been present on June 17, 2024. But, of course, the non-citizen had no way of knowing that parole in place would be offered in the future. The Muñoz decision was issued on June 21st, 2024.
As always, we are grateful for your questions and comments, and will do our best to respond.
