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March 28, 2024

ABA urges U.S. Supreme Court to require explanation of the basis for visa denials

CHICAGO, March 28, 2024 — The American Bar Association filed an amicus brief today with the U.S. Supreme Court, asking the court to rule that the U.S. government must provide a factual basis beyond citing a catch-all federal statute to satisfy due process requirements when a consular officer denies a visa application of a U.S. citizen's noncitizen spouse.

The Supreme Court will review two questions in the case. First, whether a U.S. citizen has a due process interest in the denial of their noncitizen spouse’s visa. Second, assuming such interest exists, whether the government complies with due process when a consular officer denies a visa application by simply referencing a federal statute that makes an applicant inadmissible based on a belief that the applicant will enter the U.S. to engage in unspecified “unlawful activity.”

The ABA’s brief addresses the second question and urges the court to hold that due process requires that a consular officer explain the basis for a visa denial and the evidence on which that decision is based. The brief explains why allowing consular officers to rely on “secret evidence” that is not disclosed to the applicant violates due process and prevents attorneys from providing reliable legal advice to clients who must travel abroad to seek a visa at a U.S. consulate.   

“Merely notifying visa applicants that they were deemed inadmissible … because they might engage in some unspecified ‘other unlawful activity’ does not suffice to provide the process that is due,” the ABA brief explains. “Permitting the government to rely solely on this provision would authorize the government to rely on ‘secret evidence’ in making inadmissibility determinations — evidence unavailable to the applicant, their citizen-spouse and their attorney tasked with counseling them on the legal ramifications of their decisions.”

The ABA brief asks the Supreme Court to uphold a 2022 decision of the U.S. Court of Appeals for the Ninth Circuit that held “where the adjudication of a non-citizen's visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.” The U.S. Department of State is challenging that decision.

“Unless (the Supreme Court) holds that the government is required to disclose the reasoning for a denial, and not hide behind secret evidence, attorneys cannot provide their clients with meaningful legal advice,” the brief said. “Non-citizens seeking visas often must travel abroad for interviews and, when they do so, they risk serious consequences such as being denied re-entry into the United States. Unless the government indicates why it denies visas, attorneys advising non-citizens and their citizen spouses cannot sufficiently gauge these risks or meaningfully challenge visa denials.”

The case is set for argument on April 23. The ABA brief in Department of State v. Sandra Muñoz is here. The law firm of Sidley Austin LLP filed the brief pro bono on behalf of the ABA.

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