Luis Acensio Cordero has been separated from his wife Sandra Muñoz for nine years after he was denied a visa to return to the U.S. The couple sued, arguing the federal government had violated Muñoz’s constitutional right to marriage and due process by denying her husband’s visa without providing a timely explanation.
They secured a victory in California’s 9th Circuit Court of Appeals in 2022. Then the Biden administration appealed to the Supreme Court.
On Friday, the court announced it will hear the case but limit its review to the first two of three questions presented by the federal government in its appeal.
Those questions are “whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen,” and “whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible… suffices to provide any process that is due.”
The third question not taken up by the court was whether due process requires the government to provide a further factual basis for the visa denial “within reasonable time.”
The outcome of the case could have ripple effects for immigrants like Acensio, who rarely win challenges to the government’s visa denials. 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 while in office.
Acensio had been living in the U.S. unlawfully when he and Muñoz got married in 2010. The final step in his green card petition was to return to his native country of El Salvador for a consular interview. The government denied it, saying Acensio would be likely to engage in unlawful activity if allowed back into the U.S.
In court proceedings, consular officials argued that they didn’t owe the family an explanation for the decision. They cited 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.” But in certain cases, a U.S. citizen who proves they were harmed by the denial can challenge the doctrine.
The couple learned in 2018 that, based on Acensio’s in-person interview, a criminal review and a review of his tattoos, the federal government believed he was a member of MS-13, the Salvadoran criminal gang that started in Los Angeles in the 1980s, according to court documents.