Biden asks Supreme Court to give State Department sweeping power to separate immigrant families, provoking anger across Latin America

On Friday, the US Supreme Court will decide whether to hear a case that has the potential to strip millions of undocumented immigrants and their US citizen family members of constitutional rights in the “consular process,” a main mechanism through which undocumented people can legally acquire green cards. News of the case has spread on social media across the US and Latin America, provoking anger and concern among immigrants and their families across the hemisphere.

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The case, State Department v. Sandra Muñoz, involves a husband and wife who had lived together in Los Angeles, California for years. The couple was separated in 2015 as a result of an arbitrary decision by a consular official at the US Embassy in El Salvador, denying Luis Asencio, Sandra Muñoz’s husband, the ability to re-enter the country without explaining why. Though the Ninth Circuit Court of Appeals ruled this violated the Constitution, the Biden administration is appealing the decision to the right-wing Supreme Court, arguing that the Constitution does not apply in the consular process, not even to US citizens who are permanently separated from their spouses.

US citizen and prominent Los Angeles workers’ rights attorney Sandra Muñoz met her husband at a mutual friend’s wedding in 2008. Asencio had come to the US in 2005 without immigration papers, but has no criminal record in any country. The couple fell in love and were married in 2010. In 2013, they initiated the consular process, which allows undocumented people with immediate US citizen relatives to erase the consequences of their unlawful entry if they meet certain requirements and are deemed “admissible” at an interview at a US consulate in their country of origin.

Each year, hundreds of thousands of spouses of citizens undergo this process, which requires proving the marriage is “bona fide” and establishing that the citizen-spouse will suffer “extreme hardship” if separated. The process is costly and intrusive, and requires both spouses give federal agents the ability to enter their bedrooms without warning and interview their neighbors to determine if the marriage is legitimate.

Luis Asencio-Cordero and Sandra Muñoz, separated for over 8 years and counting [Photo by Sandra Muñoz]

Immigration officials determined Muñoz and Asencio met these requirements, and approved Asencio’s petition for a provisional waiver of his unlawful status. As the last step toward acquiring a green card, the couple traveled to El Salvador in the spring of 2015 for an interview at the US consulate. They assumed the trip would be a brief one, but the couple has been separated ever since. A consular officer denied Asencio admission to the US claiming he might “incidentally” engage in “any other unlawful activity,” without providing any further reason.

Though federal regulations give immigrants and their citizen-spouses one year to provide exculpatory evidence to overcome such determinations, the State Department’s refusal to provide any reason for the denial made it impossible for Muñoz or Asencio to disprove the officer’s allegations.

“I was heartbroken, confused, and frustrated,” Muñoz told the World Socialist Web Site. “I knew and I know my husband. He was not going to engage in unlawful activity—whatever in the world that meant. I didn’t know how to disprove it except to point to our lives. My husband didn’t have a criminal history. I didn’t have a criminal history. I am a lawyer, I am an officer of the court. It was just unfathomable that the US government had come to a conclusion that was completely unsupported by the facts and by our histories.”

The couple filed a lawsuit against the State Department and then-Secretary of State John Kerry in January 2017, and in November 2018, three years after the interview, a State Department official said Asencio had been deemed inadmissible because his tattoos show he is a member of the transnational drug cartel MS-13. Asencio’s tattoos are of the Virgin of Guadalupe, a profile of Sigmund Freud, depictions of theatrical masks, dice and cards and a tribal image with a paw print. A gang expert provided the State Department with a sworn affidavit stating these tattoos are not related to MS-13 or any other gang.

After a lengthy legal battle, a three-judge panel of the Ninth Circuit Court of Appeals held in October 2022 that the denial violated Muñoz’s fundamental right to marriage and due process. By refusing to provide the couple with a reason for the denial, the State Department deprived Muñoz of her constitutional right to timely notice of the factual basis of the denial and an opportunity to respond, the court of appeals said. The Biden administration asked the full Ninth Circuit to overturn the three-judge panel, but the court, sitting “en banc,” agreed with the panel, ruling in July 2023 that the government’s actions were unconstitutional. Eleven Trump-appointed judges on the Ninth Circuit published strong dissents.

Instead of complying with the Ninth Circuit and reuniting Muñoz with Asencio in Los Angeles, the Biden administration vindictively appealed the decision to the Supreme Court at the end of 2022. Its appeal brief repeated the arguments by the Trump-appointed dissenters and argued that the courts may never review the decisions of consular officers, even when the rights of US citizen spouses are implicated.

This spring will mark the ninth year they have been separated.

The Biden administration argues that Muñoz’s right to marriage has not been violated since she can move to El Salvador, writing in its brief to the Supreme Court that the administration “has not prohibited a married couple from living together or otherwise intruded on their marital privacy.”

But US citizens have the fundamental right to live in the US under protection of the Constitution as well as the right to marriage, and the Ninth Circuit held the government cannot make the exercise of one right dependent upon forfeiting another. Moreover, El Salvador is currently under martial law, and the State Department currently warns US citizens not to travel to the country, and that “several U.S. and other foreign citizens have been detained under the State of Exception, some in a reportedly arbitrary manner.”

Responding to the Biden administration’s argument that her rights have not been violated, Muñoz said, “It is not in any way reasonable to suggest that I can easily move to El Salvador. I am an American citizen. I was born in this country. I am part of this country. My father fought in World War II. It took a lot of really hard work on my part to earn my law degree and to establish myself as an attorney here in this country. I have practiced law for 26 years and I have had my own office since 2011. My career is how I make a living, it is how I contribute to this country. I cannot just pick up and leave all of that behind.”

The decision to appeal the case has provoked outrage across the US and Latin America. Last Friday, Andrea Castillo of the Los Angeles Times published an exposé on the couple’s case, and segments on national Spanish-language news in the US went viral over the weekend. On social media, millions have viewed and shared information about the case, while many major national media outlets across Central and South America have reported on it.

“Masses of people across the US and Latin America are rightfully angered by the Biden administration’s actions and are fearful of what this means for their families,” the couples’ lawyer, Eric Lee, told the World Socialist Web Site. “The stakes could not be higher. Over 1 million US citizens have undocumented spouses and almost 4 million US citizen children have undocumented parents. Biden echoes Trump and argues that none of these people have the right to a day in court when the federal government arbitrarily blocks their loved ones from returning to the family home.”

Lee, who also represents rank-and-file autoworker Will Lehman in his pending lawsuit against the Department of Labor over voter suppression in the UAW election, says the Biden administration is providing the executive branch with immense powers which Trump will use if elected this November. “Trump justified his travel bans by making the same arguments Biden and his lawyers are making today. As this case shows, it is becoming nearly impossible to distinguish between the two parties’ policies on the rights of immigrants and their families. Democracy in America is already hanging by a thread. We appeal to all who are concerned to spread awareness of this case.”