Supreme Court Confirms No ‘Right’ for Foreigners to Enter US: The BorderLine
The one poker rule I taught my kids was: “Don’t cry when you lose, don’t gloat when you win.” Ideally, this would apply to our court system, though lower court decisions seem increasingly to be influenced by ideology and politics. The Supreme Court is our highest and last protection, and its justices should be the smartest lawyers and scholars and able to constrain themselves to their duty: to interpret the law and rule as to its constitutionality. One recent decision, in the case of Department of State v. Muñoz was a relief to me, U.S. consular officers, and even the Biden administration. The court ruled that a U.S. citizen “has no legal interest in the visa application of a third party, even a relative,” and, therefore, has no constitutional right to bring a non-citizen spouse to the United States. Like all foreign nationals, alien spouses must qualify for a visa under U.S. law to come here.
In 2010, Sandra Muñoz married Luis Asencio-Cordero, and she later filed with U.S. Citizenship and Immigration Services to get an immigrant visa for him. To get it, he had to leave the U.S. (where he was living illegally) for an interview at the U.S. Embassy in El Salvador. The consular officer who interviewed Asencio-Cordero found him ineligible for a visa under the Immigration and Nationality Act, suspecting he was a member of the MS-13 gang due to his distinctive tattoos. Muñoz sued the government, arguing that depriving her of her alleged right to live with her husband violated her Fifth Amendment rights. The Fifth Amendment states that no U.S. person can be “deprived of … liberty … without due process.” The 9th U.S. Circuit Court of Appeals—notorious for siding with immigrants against the government—ruled that the State Department owed Muñoz an explanation for denying her husband’s visa. The government appealed to the Supreme Court, which overturned the 9th Circuit and ruled that U.S. citizens can’t force a court to review a consular officer’s decision made abroad.
The Muñoz case was the latest round in a battle by immigration activists against the doctrine of “consular non-reviewability,” which holds that decisions made by consular officers overseas in visa cases can’t be challenged in U.S. courts. If they were, the system would crumble—much like the asylum system has under President Joe Biden’s flood of released and paroled inadmissible aliens. Most foreigners applying for visas—usually for tourism, business, or family visits—are required to prove to a consular officer that they are likely to do what they claim and then go home again. Failure to convince on that score is the reason for most visa refusals. Refusal rates vary widely by a country’s economy—it’s much harder to get visas in a very poor country than in one where people have stable governments and good jobs where they are more likely to return home.
Thanks to the media assault, public confidence in the Supreme Court is polling at around 40%, a historic low. But I’d argue that a popular Supreme Court today would not be doing its job properly.
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