On June 21, the Supreme Court issued its opinion in Dep’t of State v. Munoz, a case that involves an illegal entrant married to a U.S. citizen who found himself barred from admission after he left the United States to pick up an immigrant visa at the U.S. consulate abroad — a visa the consulate refused to issue. Three days before that opinion was issued, the Biden administration hurriedly announced that illegal aliens married to U.S. citizens would be able to seek “parole in place” (PIP) — an extra-statutory scheme that obviates the need for aliens (like the one in Munoz) to depart for visa processing. The timing is curious and raises the question of whether the administration may have illicitly received an early version of that opinion. Personally, I doubt it, but again the timing is fishy.
Dep’t of State v. Munoz. The alien in question in Munoz is Luis Asencio-Cordero, an El Salvadoran national who entered the United States illegally at an unknown date and married the respondent in the case, a U.S. citizen named Sandra Munoz, in 2010.
Thereafter, Munoz filed a petition for an immigrant visa on her husband’s behalf, which USCIS approved. As the Court explained, however: “Because Asencio-Cordero had entered the United States unlawfully, he was required to return to El Salvador and submit his visa application at a consulate there”.
So he left the United States and headed to the U.S. consulate in San Salvador. After several interviews with a consular officer, his application was denied under section 212(a)(3)(A)(ii) of the Immigration and Nationality Act (INA).
It states (in pertinent part): “Any alien who a consular officer ... knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in ... (ii) any other unlawful activity ... is inadmissible”.
That was all that the consular officer had to say on the matter, but the majority opinion fills in some of the blanks with respect to the nature of the “unlawful activity” in question:
Asencio-Cordero guessed (as it turns out, accurately) that he was denied a visa based on a finding that he was a member of MS–13, a transnational criminal gang. He also guessed (again, accurately) that this finding was based at least in part on the conclusion that his tattoos signified gang membership.
Ascencio-Cordero and Munoz denied that he was affiliated with the gang and asked the consulate to reconsider, but that request was refused. They then asked the State Department to review the decision on appeal, “submitting evidence that the tattoos were innocent”, but the department concurred with the officer’s decision.
The couple then sued the consulate and the State Department, alleging inter alia that it had “abridged Munoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the ‘unlawful activity’ bar”.
The district court ordered discovery, at which point State confirmed that Ascencio-Cordero was deemed to be admissible “because he belonged to MS-13”. In addition, “the State Department provided the District Court with confidential law enforcement information, which it reviewed ,in camera, identifying Ascencio-Cordero as a member of MS–13”.
Satisfied with what it had learned, the district court granted summary judgment in favor of the State Department. The Ninth Circuit vacated that lower-court decision on appeal.
Specifically, and in line with its (then-) precedent, the circuit held that because Munoz is a citizen, she “had a constitutionally protected liberty interest in her husband’s visa application”.
Given that interest, the Ninth Circuit concluded, the State Department had a duty under the Due Process clause of the U.S. constitution to provide Munoz with a “facially legitimate and bona fide reason” for its denial of her husband’s visa application. The mere citation to the INA provision was insufficient, and the later-filed affidavit before the district court was untimely.
Normally, the “doctrine of consular nonreviewability” would have protected the consular decision from judicial review. Briefly, that doctrine holds that because the INA fails to authorize judicial review of consular decisions denying visas, federal courts lack authority to review those denials.
According to the three-judge circuit panel, however, “the State Department had forfeited its entitlement ‘to shield its visa decision from judicial review’” when it refused to provide Munoz with more information about the denial earlier in the process.
DOJ requested a rehearing of that circuit-court decision en banc, by a larger panel of the Ninth Circuit, but that request was denied, so the department sought certiorari from the Supreme Court.
I’ll spare you all the legal analysis by telling you that the justices — by a six-three vote, including a concurring opinion by Justice Gorsuch — concluded that a U.S. citizen spouse does not have a “fundamental liberty interest” in her alien spouse’s admission into the United States.
In reaching this conclusion, the justices reaffirmed several key immigration-related legal tenets, including the doctrine of consular nonreviewability itself and the principle “that the United States can, as a matter of public policy forbid aliens or classes of aliens from coming within its borders, and no limits can be put by the courts upon that power”.
Those disheartened by recent Supreme Court opinions dismissing state challenges to immigration policies implemented by the Biden administration should note that the justices’ conclusions about limitations on the judiciary’s ability to second-guess immigration-related policy decisions cut both ways.
In any event, this precedent opinion cast doubt on the ability of alien beneficiaries of USCIS-approved visa petitions who entered the United States illegally (like Ascencio-Cordero) to leave the country to pick up their visas abroad safe in the knowledge that they will almost definitely be allowed back in — notwithstanding the unique facts in this case.
Biden’s Half-Baked “Parole in Place” Amnesty. On June 18, DHS and the White House announced a “new process” under which alien spouses of U.S. citizens who entered illegally and have been continuously present in the United States for 10 years (as of June 17, 2024) will be eligible to apply for “parole in place” (PIP).
The program also extends to those aliens’ children (the stepchildren of the U.S. citizens), but in order to seek benefits under this program, alien spouses must have been married to U.S. citizens as of June 17, 2024, with the child’s eligibility being dependent on the alien parent’s eligibility for PIP.
PIP is a legally questionable status with little support in statute, as I explained back in April when this proposal first broke in the press, and neither the White House nor DHS expounded in their “fact sheets” on how they intended to defend this program against inevitable legal challenges.
Moreover, this plan wasn’t announced through an executive order (EO) or presidential proclamation (PP) — White House documents that add legal gloss to most administrative immigration proposals. This is all “fact-sheet-driven”, at least at this point.
Finally, USCIS will be adjudicating the estimated 550,000 PIP applications that are expected to be filed under this program, and while that agency also published its own “Process to Promote the Unity and Stability of Families” web page explaining the program to would-be applicants on June 18, it’s at best a perfunctory placeholder, shot through with statements like:
USCIS will soon publish a Federal Register Notice to implement this process, explain the application process, and provide additional guidance on requirements to be considered for parole in place. This notice will explain what forms to file, the associated filing fees, any required documentation, and supporting evidence that will be needed to request parole in place. The application process is expected to begin later this summer.
There would be no reason — aside from pure politics — why that Federal Register rule implementing the Biden PIP program would not have been issued at the same time that the program was announced. At this point, the PIP proposal is little more than a “promise” to do something — not a plan to actually do it.
Given all of this, the White House’s PIP proposal is at best “half-baked”, taken out of the administrative oven before its time. Unless this is a political sop offered to appease the president’s progressive base, which was angered by the administration’s June 4 “Proclamation on Securing the Border” (which itself is all show and no substance), this PIP is simply a slapdash plan rolled out before its time.
So Many Questions. Even if this PIP is a purely political ploy, though, the timing still doesn’t make sense. President Biden has secured the Democratic nomination, and the election itself is still four months off — plenty of time for him to mend fences with his base by announcing a fully formed PIP proposal.
One thing that could have forced the president’s hand would have been the Supreme Court’s issuance of the Munoz decision itself.
As I’ve explained since such proposals were first floated in April, this PIP isn’t really necessary because alien spouses of U.S. citizens who are barred from adjusting status (obtaining a green card) in the United States because they entered illegally already have a way they gain lawful permanent residence, and it begins with the filing of an I-601A “Application for Provisional Unlawful Presence Waiver” with USCIS.
If the I-601A waiver is approved (as 93.8 percent were in the first quarter of FY 2024), the alien spouse can then journey to a consulate abroad to apply for the visa there. If that’s approved, the alien spouse can use it to reenter the United States as a lawful permanent resident and obtain his or her green card.
The Court’s opinion in Munoz, however, makes it more likely that an alien — even one with an approved I-601A — will be denied a visa at the consulate and will be stuck outside the United States. That, in turn, provides the administration with greater incentives to do an end-around that waiver process by allowing alien spouses to apply for PIP, which if granted would allow them to obtain a green card without leaving.
The problem, of course, is that the opinion in Munoz wasn’t issued until three days after the Biden administration’s hurried announcement of its PIP plan, and the timing has some of the president’s critics wondering whether the White House may have (arguably improperly) received an leaked copy of the Munoz draft opinion.
You may remember that a leaked copy of the 2022 opinion in Dobbs v. Jackson Women’s Health (which overturned Roe v. Wade) triggered a massive investigation and more than a little recrimination among those on both sides of the abortion issue. The stakes in Munoz, however, are much lower.
I have no way of knowing whether the administration had a heads-up that Munoz was headed down the pike and preemptively made its PIP announcement, but frankly it didn’t take a leaker to know which way this case was headed.
As alluded to above, the current Supreme Court has been loath to second-guess administrative decisions in the field of immigration.
The doctrine of consular nonreviewability has protected such decisions from judicial review for more than 70 years, and if the current justices were going to put non-detention decisions by Biden’s DHS off limits to judicial review (which it did last year in U.S. v. Texas), it was unlikely to open the courts to every spouse of a U.S. citizen abroad who was denied a visa at a consulate.
As for the timing, it should be noted that Biden’s solicitor general argued in favor of what the Court ultimately decided in Munoz, and it was his DOJ that sought certiorari in the first place.
The Supreme Court’s term ends next week, so the White House knew that exactly this sort of opinion was imminent. That likely lit a fire under both the administration and DHS to head off the inevitable result, albeit somewhat preemptively, by making their PIP announcements.
So I doubt that the White House had advance notice of the Supreme Court’s opinion, or much needed it. The key takeaway from the justices’ opinion is that the political branches — not the courts — get to decide which aliens are allowed to enter the United States, and which must leave. That’s an important principle should any future administration choose to enforce the rules Congress has enacted — a choice the Biden administration’s parole in place plan evades.