The black ink images of La Virgen de Guadalupe, theater masks, a pair of dice and Ace playing cards were throwbacks to his high school days. But to government officials conducting a body search, the tattoos showed he was an MS-13 gang member.
(Francine Orr / Los Angeles Times)
The couple sued, securing a victory in California’s 9th Circuit Court of Appeals, only to have that decision challenged by the Biden administration. Now the case is headed to the Supreme Court.
On Friday, justices are scheduled to review the case and decide whether to take it up. If they decline, the appeals court decision would stand and Acensio’s lawyers believe he would likely be allowed to return to live in the U.S. for the first time in nine years.
The outcome of the case could have ripple effects for immigrants like Acensio because it’s so rare to win challenges to the government’s visa denials. But his attorneys fear that if the Supreme Court sides with the Biden administration, former President Trump, if reelected, would use the decision, and the underlying authority, to justify blanket bans of people from certain countries, as he did during his first term.
Acensio, now 47, was undocumented when he met Muñoz in 2008 at a wedding. They married two years later and in 2013 he filed for a green card.
In 2015, Acensio returned to El Salvador for what the couple believed was the final security screening and an interview at the U.S. consulate. He expected to be in El Salvador only a few weeks, so Muñoz met him there and booked their return flights back home to L.A. together.
He remembers vividly the day of the interview, being asked to take his clothes off, having photos taken of his tattoos and being asked why he got them. On his chest, one features comedy and tragedy theater masks with a set of dice and three Ace cards. The others are of La Virgen de Guadalupe, a profile of Sigmund Freud and a tribal design with a paw print.
A consular officer asked about his criminal history, and Acensio said he described the only time he’d been arrested, when he and a friend got into a fight. They spent three days in jail and were released without charge.
After the interview, Muñoz spent the rest of the week desperately checking her email. “That email never came and I had to come back alone,” she said. “The first of many trips back alone.”
The government’s denial arrived six months later, saying Acensio would likely engage in unlawful activity if allowed back in the U.S.
A State Department spokesperson declined to comment to The Times because of pending litigation.
In court proceedings, consular officials argued they didn’t owe the family an explanation and there was no way to appeal because of the doctrine of consular non-reviewability, which prevents judicial reviews of visa determinations made by consular officers as long as the decision is “facially legitimate and bona fide.”
Sandra Muñoz is a civil rights attorney in Los Angeles.
(Francine Orr / Los Angeles Times)
In certain cases, a U.S. citizen who proves they were harmed by the denial can challenge the doctrine. Immigration attorney Alan Diamante, Muñoz’s friend from law school, took on the case.
They filed a lawsuit in 2017 in U.S. District Court for the Central District of California challenging the constitutionality of Acensio’s denial. Humberto Guizar, a lawyer and court-approved gang expert who has testified in 50 cases, submitted a declaration stating that he is intimately familiar with gang tattoos and that Acensio had none.
The couple learned in 2018 that the federal government believed Acensio was a member of MS-13, the Salvadoran criminal gang that started in Los Angeles in the ’80s, according to court documents. That determination, lawyers wrote, was based on the in-person interview, a criminal review and a review of his tattoos. Reviews of the visa denial by the consulate and State Department had not “revealed any grounds to change the finding of inadmissibility.”
Eric Lee, their lead attorney, said tattoos are a common reason for visa denials. In Acensio’s case, Lee said he isn’t sure whether the consular officer acted based solely on the tattoos or whether foreign databases had provided erroneous information about his background.
As the case made its way through the courts, Acensio and Muñoz settled into separate lives. He started a business in El Salvador giving electric four-wheeler bike tours. She was named California Lawyer of the Year by the Daily Journal after helping secure a $23-million settlement against Walmart and other companies on behalf of warehouse workers.
She bought a house in Montebello and decorated it with photos of her and Acensio, vowing that one day it would be his home, too.
Acensio was separated not only from his wife, but also from his young daughter, who lives in Las Vegas and whom he would frequently visit. She is now 17, and he has missed seeing her grow up.
Muñoz, 54, has also faced difficulties. She got COVID-19 and suffered from brain fog and fatigue for several months. Her sister and her best friend died in 2021. She fell and tore a quad tendon in 2022, was hospitalized for weeks and still uses a cane to walk. Then her mother’s health began to deteriorate; she died a week before Christmas.
“It was so sad because I had built my life there with her,” Acensio said. “And I’ve never been there as her husband to help her in the most difficult moments. I feel helpless.”
Still, the couple found ways to stay connected. They text throughout the day and frequently do video calls. They traveled to Barcelona together, and her visits to El Salvador deepened her relationship with his family.
Muñoz visited Acensio at least three times a year until the pandemic started. In 2022, he received a Mexican visitor visa and they were able to meet in Tijuana. Their last trip was in May.
El Salvador’s President Nayib Bukele launched a sweeping crackdown against the country’s powerful street gangs, netting more than 70,000 arrests since 2022. Muñoz feared her husband would get caught in the dragnet.
Acensio said police stopped him last year at a checkpoint, looked over his body and let him go. If they believed he was involved with gangs, he said, they would have jailed him.
In October 2022, the 9th Circuit Court of Appeals agreed that the federal government had violated Muñoz’s fundamental right to marriage and due process as a U.S. citizen by denying her husband’s visa without providing an explanation for three years. That decision marked the first time a federal judge had rejected the government’s initial effort to dismiss a lawsuit by citing consular non-reviewability, Lee said.
Lee said he has since advised on similar cases, including four that have resulted in family reunification. Earlier this year, a judge in Arkansas cited Muñoz’s case in a ruling ordering the federal government to provide a better explanation for denying the visa of a U.S. citizen’s foreign husband.
After the appeals court ruling, Acensio applied for humanitarian parole, a form of temporary legal entry, to reunite with his wife. The State Department informed Muñoz’s lawyers that they would not oppose the application. Even so, it was denied last month.
In its petition to the Supreme Court, Biden administration lawyers echoed previous circuit court decisions in arguing that Muñoz’s right to marriage has not been violated because the government “has done nothing more than to say that the residence of one of the marriage partners may not be in the United States.”
Government lawyers argued the 9th Circuit ruling “represents a serious encroachment on the separation of powers. If allowed to stand, it will cause considerable disruption in U.S. consulates.”
Heidi Altman, policy director at the National Immigrant Justice Center, which is co-counsel on the Supreme Court case, said that Acensio and Muñoz’s case is an example of the Biden administration walking away from its commitment to immigrants. It also shows how central family separation is to the U.S. immigration system, she said.
“Fighting this case means really digging in on one particular way that family separation is regularly effectuated by immigration officers,” who ensure there is “no way to correct those mistakes, so that the family separation becomes permanent,” Altman said.
A similar case made its way to the Supreme Court in 2015. A man who had been employed in Afghanistan’s welfare department when the Taliban ruled the country was denied a green card after marrying a U.S. citizen, because the government reasoned he was engaged in terrorist activity.
In that case, the 9th Circuit had also ruled that the government didn’t offer a legitimate enough reason for the denial. But the Supreme Court ultimately ruled against the couple.
The notion that Acensio is a gang member is offensive, Muñoz said. As an attorney, she said, she’s naturally skeptical. And as an officer of the court, she’s sworn to uphold the Constitution.
“It just breaks my heart that this country — that my country — has taken so much from my husband and me,” she said.
Muñoz thinks back to a discrimination case she litigated in which she represented a Latino Los Angeles Sheriff’s deputy who was referred to by supervisors as the “Mexican Mafia.” The county responded by claiming he was in a deputy gang based solely on his tattoo, she recalled.
“A tattoo in and of itself doesn’t mean that somebody is a bad cop, a bad person,” she said. “You can’t simplify it that much. We went to trial in that case. We won.”