Supreme Court rules against Los Angeles couple denied visa in part over husband's tattoos

Los Angeles, CA - July 13: Portrait of Sandra Munoz, a celebrated civil rights attorney sitting at her desk in Los Angeles on January 3, 2024, in Los Angeles, CA. She and her husband Luis have been separated since 2015. Luis, who was undocumented, applied for a waiver of his illegal entry to seek citizenship after they got married. The final step was considered a formality -- he would go back to El Salvador for an interview at the U.S. consulate there and fly back to the U.S. once it was approved. Instead, it was denied. When their lawyers pressed the government for why, the State Department admitted that his tattoos -- of La Virgen de Guadalupe, a tribal design and theatrical masks -- were among the reasons they had found him to be an MS-13 gang member, an assertion he vehemently denies. Last year, the 9th Circuit sided with the couple, but the Biden administration appealed to the Supreme Court. The high court is expected to decide next month whether to take up the case, which would have ripple effects for any immigrant seeking to challenge the government's views of their character. (Francine Orr / Los Angeles Times)
Sandra Muñoz, a civil rights attorney, and her husband, Luis Asencio Cordero, have been separated since 2015. (Francine Orr / Los Angeles Times)

The U.S. Supreme Court voted 6 to 3 on Friday against a Los Angeles woman who argued that her constitutional rights were violated when the federal government denied a visa to her Salvadoran husband, in part because they viewed his tattoos as gang-related.

The broad ruling is a major setback for Americans with foreign spouses, because it explicitly rejects the idea that a citizen has a constitutional right to attempt to bring their noncitizen spouse into the country.

The conservative majority, led by Justice Amy Coney Barrett, said that while the plaintiff, L.A. civil rights attorney Sandra Muñoz, does have a fundamental right to marriage, she had failed to establish that her right extends to living with her husband in the U.S.

“In fact, Congress’s longstanding regulation of spousal immigration — including through bars on admissibility — cuts the other way,” Barrett said, so “a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”

Read more: Supreme Court skeptical of siding with L.A. man denied visa in part over tattoos

Luis Asencio Cordero, who lived in the U.S. until 2015, has been separated from Muñoz since his visa was denied during a consular interview in El Salvador.

The couple sought to file a new visa application with evidence they said refuted his alleged membership in the MS-13 gang, and wanted assurance that the federal government would review it.

The government said it denied the visa due to concerns that Asencio Cordero would be likely to engage in unlawful activity if he were allowed back into the U.S.

Muñoz argued the government violated her rights to marriage and due process by failing to provide a timely explanation for her husband’s visa denial. The couple sued, and learned through their lawsuit that the government believed he was an MS-13 member based on his tattoos, an interview and a background check including “confidential law enforcement information.” Asencio Cordero had no criminal history in the U.S. or in El Salvador.

Asencio Cordero’s tattoos depict the comedy and tragedy theater masks, La Virgen de Guadalupe and a tribal design with a paw print. He denies they are gang-related, and a court-approved gang expert agreed.

A long-established judicial policy — the doctrine of consular nonreviewability — prevents court reviews of visa determinations except in limited cases.

The 9th Circuit Court of Appeals ruled in favor of the couple in 2022. The Biden administration asked the Supreme Court to reverse the ruling, arguing that because Muñoz and Asencio Cordero could choose to live outside the U.S., her right to marriage had not been violated.

Immigration officers have broad discretion about whom to admit into the country, administration lawyers said. They also said that requiring the government to disclose specific details about the evidence and intelligence used in such decisions would slow processing, pose a risk to public safety and could chill future information-sharing with foreign partners.

But the dispute over tattoos and what role they played in the visa denial was not decisive for the justices. Instead, the majority agreed with the State Department’s concern that Muñoz’s claims could have “unsettling collateral consequences.” They questioned whether a wife could then challenge her husband’s assignment to a remote prison or overseas military deployment, or whether a citizen could challenge their immigrant spouse’s deportation proceedings.

Muñoz’s position would “usher in a new strain of constitutional law,” Barrett wrote, because the Constitution doesn’t prevent the government from taking actions that indirectly affect a citizen’s rights.

Barrett wrote that while Congress can use its authority over immigration to prioritize family unity, that is “a matter of legislative grace.” She said the 9th Circuit Court, based in San Francisco, stood alone in having embraced that as an “asserted right.”

“Muñoz has suffered harm from the denial of Asencio-Cordero’s visa application, but that harm does not give her a constitutional right to participate in his consular process,” Barrett wrote.

Liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson disagreed. Writing in dissent, Sotomayor said the majority’s fear that the case could result in a slippery slope of constitutional challenges was groundless.

Sotomayor said she did agree with conservative Justice Neil M. Gorsuch’s opinion concurring with the majority that because the basis for the denial of Asencio Cordero’s visa had been revealed, Muñoz has already received the process she was due.

“There is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision,” Sotomayor wrote.

That simple resolution should have ended the case, she said, but instead “the majority swings for the fences,” limits the court’s long-standing precedent about the fundamental right to marriage, “and gravely undervalues the right to marriage in the immigration context.”

That a married couple could move elsewhere does not suddenly remove the burden of not being able to live together in the U.S., Sotomayor wrote. She cited Loving vs. Virginia, the 1967 ruling that struck down state bans on interracial marriage.

The court “did not tell Richard and Mildred Loving to stay in the District of Columbia,” she said. “It upheld their ability to exercise their right to marriage wherever they sought to make their home.”

Sotomayor continued: “The majority’s holding will also extend to those couples who … depend on American law for their marriages’ validity. Same-sex couples may be forced to relocate to countries that do not recognize same-sex marriage, or even those that criminalize homosexuality.”

Advocates for immigrants slammed the decision as allowing another form of family separation.

The National Immigrant Justice Center said the decision will make litigation by families in similar situations all but impossible. So while Muñoz and Asencio Cordero eventually got a basic explanation for his visa denial, others might never get such information.

The couple’s attorney Eric Lee said he worries the decision opens the door to justifying the dismantling of other rights that are not explicitly spelled out in the Constitution, such as gay marriage.

“It’s hard to overstate how dangerous this decision is, not only for our clients and for similarly situated mixed-immigration families,” Lee said. “It sets the stage for taking the country back to a very dark period in its history.”

Read more: Immigrant spouses of U.S. citizens protected from deportation under Biden’s latest action

Earlier this week, President Biden announced an executive order to protect citizens’ immigrant spouses who have lived consecutively in the U.S. for at least a decade. At the White House on Tuesday, he said it was the right thing to do.

“There’s already a system in place for people we’re talking about today,” Biden said. “But the process is cumbersome, risky, and it separates families. From the current process, undocumented spouses of U.S. citizens must go back to their home country ... to obtain long-term legal status. They have to leave their families in America, with no assurance they’ll be allowed back in.”

Had he never left the country, Asencio Cordero could have qualified for protections. For Lee, the announcement was bittersweet. He implored Biden to extend similar protections to families who have already been separated due to such visa denials.

“We hope the new relief applies to as many families as possible,” the couple’s lawyer said, “but it is hard not to ask: If these are the new criteria, then why did the administration fight Sandra and Luis’ case as hard as they did for so many years?”

Times staff writer David G. Savage contributed to this report.

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This story originally appeared in Los Angeles Times.