Department of State v. Muñoz: Evaluating the cost of separation
Written by Jaden Flach
Luis Asenico-Cordero arrived in the United States in 2005. He married Ms. Muñoz, a U.S. citizen, five years later in 2010. Mr. Asenico-Cordero and Ms. Muñoz had their first child soon after. It was only in 2013 that Mr. Ascenico-Cordero finally applied for a green card, hoping that he and his family could live without fear. In April of 2015, Mr. Asenico-Cordero returned to El Salvador for his visa interview, the final step in a routine process. Yet that would mark the last time that he stood on American soil.
The U.S. consulate’s decision to deny his visa in December 2015 was largely a mystery to Mr. Asenico-Cordero. His family theorized that his highschool tattoos, La Virgen de Guadalupe, theater masks, and a pair of dice, may have played a part. After months of litigation they were proved correct. Formally, the decision stated thatMr. Asenico-Cordero had clear potential to commit a crime. Even after a declaration from a gang expert affirmed that Mr. Asenico-Cordero’s tattoos were not affiliated to the multinational terrorist organization, MS13, the decision remained unchanged.
Following the government’s denial of Mr. Asenico-Cordero’s visa petition, Ms. Muñoz sued the US Department of State, arguing that the decision violated her constitutional liberty interest by denying her husband’s visa petition and failing to provide substantial evidence as to why Mr. Asenico-Cordero was denied. Specifically, she wanted an explanation of the basis of crimmigration, or the criminalization of immigration law, that was used in the court’s decision. The district court invoked the Doctrine of Consular Nonreviewability, preventing Ms. Muñoz from challenging the visa decision in a court of law. The doctrine, a US immigration law that prevents the judicial system from reviewing visa decisions made by consular officers, is widely used in Visa denials similar to Mr. Asenico-Corderos. However, the Ninth Circuit Court of Appeals vacated the district court’s decision, holding that Ms. Muñoz did, in fact, have a constitutional liberty interest in her husband’s visa petition. Due to her explicit rights, the court reasoned that the Due Process Clause required the State Department to provide Ms. Muñoz a reason for denying Mr. Asenico-Cordero.
The Due Process Clause of the constitution protects the fundamental rights and liberties which are deeply rooted in the history and tradition of the United States. In this case, Ms. Muñoz invokes her fundamental right to marriage as one that is intrinsically intertwined with the foundation of this nation. Further, she claims that the right to reside with her noncitizen spouse in the United States also falls under her right to marriage.
In order to address the question of whether Ms. Muñoz’s constitutional right to marriage was infringed upon by the government, Justice Barrett evaluates the facts of the case using the Glucksberg test. The test evaluates whether a right should be evaluated under the due process clause using two measures. First, a thorough description of the argued liberty or right. Second, whether the identified right is deeply rooted within the history of the United States and is thus protected under the Due Process Clause. The freedom that is identified by Ms. Muñoz is the right to live in the United States with her noncitizen spouse, one that is not dissimilar from the fundamental right to marry. Further, Ms. Muñoz argues that this right is fundamental enough that the government can't place unfair obstacles in the way of that right without a fair legal process.
In her opinion, Justice Barrett recognizes the uniqueness of Ms. Muñoz’s claims. Although she affirms that this unique liberty could exist in a category of its own, she claims it is not necessary to decide whether such an exception exists. As the majority opinion continues, Justice Barrett brings into discussion many examples of past legislation that protects the very rights that Ms. Muñoz argues for. One such example is the War Brides Act of 1945 which provided the noncitizen spouses of World War II veterans exemptions from certain admissibility bars and documentary requirements. Justice Barrett thus acknowledges herself that the question of a citizen’s rights to reside with their noncitizen spouse is not a new one. In fact, this issue has been argued throughout American history.
Justice Barret concludes that, although Ms. Muñoz has suffered harm from the denial of Mr. Asencio-Cordero’s visa petition, that harm does not give her a constitutional right to participate in his consular process and thus argue that her rights have been violated. This opinion leaves many questions, mainly concerning whether there exists a fundamental liberty protection to reside with one’s spouse. The failure of the court to conclude whether this specific category exists for Ms. Muñoz, continues to leave the scope of protections that fall under the right to marriage in question.
In her dissenting opinion, Justice Sotomayor acknowledges this very issue. She highlights that the right to marry is a fundamental right that has deep roots in this nation. In Obergefell v Hodges, the court even goes so far as to say that “marriage is a right older than the Bill of Rights”. Moreover, Justice Sotomayor highlights how this right also has roots under the context of immigration. The court has in fact already recognized that excluding a noncitizen from the country can burden the constitutional rights of a citizen spouse in Kleindienst v. Mandel. It was this burden and extreme hardship Ms. Muñoz would face if her husband was denied that formed the very foundation for his United States Citizen and Immigration Services waiver of inadmissibility in the first place. Yet in the majority opinion of this case, the Court instead chooses to restrict the right to marriage in immigration cases and greatly limit the court's long-standing precedent on this issue. In doing so, the Court tells Ms. Muñoz that the government has no responsibility in her or Mr. Asenico-Cordero’s liberty to marriage.
The fourteenth amendment of the United States Constitution protects the right to marriage under the Equal Protection Clause. It ensures that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In Obergefell v Hodges, the right to marriage was once again upheld and strengthened. It held that the Fourteenth Amendment and judicial precedent together has solidified the right to marry as a fundamental liberty and one that safeguards children and legally recognizes the right of families to build a home. In Loving v Virginia, a similar conclusion was made. The court recognized that the freedom to marry cannot be infringed upon by the state. As Justice Sotomayor highlights, the Court did not tell Mr. or Ms. Loving to stay in the District of Columbia or Mr. Obergefell and Mr. Arthur to stay in Maryland. Instead they recognized their right to marriage in any place they sought to live. We can then beg the question, why should Ms. Muñoz not be afforded this same right?
The Courts have chosen not to decide whether citizens have a protected right to reside with their spouses, yet their silence speaks volumes. Ms. Muñoz’s family has been ripped apart by this inaction, but her suffering is not isolated. As a nation, we have seen what can happen when families are not protected. We have also witnessed the effects of immigration policies fueled by hatred and fear. It was not so long ago that children were living in cages without the safety, love, or protection of their families. With the decision of this case, we are further legitimizing the separation of families. Now, in 2024, as in 2020, the threat of such policies has returned. Mr. Asenico-Cordero’s daughter is now 17. She has been forced to grow up without a father, forever wondering when he will be able to come home.
