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True stories from immigration law: US citizens have no right to be with their spouses

The US legal doctrine of consular nonreviewability leads to over a million people being refused visas every year, with no legal avenue to challenge the consular officer’s decision, no matter how arbitrary, prejudiced, or groundless it may be. But beyond affecting these foreigners’ lives, there are real effects on US citizens too. One effect of racial segregation which social justice discussions often gloss over is how unjust laws oppressed not just the visible immediate victims, but also others, ostensibly privileged, who wished to engage with the oppressed. Such is the case with immigration laws around the world today. US legal precedent is especially enlightening here.

Filipino-Hawaiian lawyer Emmanuel Samonte Tipon last year blogged a useful overview of relevant cases touching on when someone might have legal standing to sue for judicial review of a visa application. Let’s go over them one by one.

  1. Sabataityte v. Powell: Sabataityte was denied a visa because the Warsaw consulate believed she had been previously unlawfully present in the US. She challenged this determination. The courts ruled that regardless of the merits, she had no right to mount such a challenge.
  2. Saavedra Bruno v. Albright: Saavedra was denied a visa, and had another visa revoked, because the US government believed he had previously illicitly trafficked drugs (based on a hit when they searched his name in a database). This was news to Saavedra and his American employer, both of whom sued the government to present the evidence so they could challenge the determination that he was a drug trafficker. The courts ruled that both Saavedra and his American employer had no legal basis to confront the claims against him or challenge the visa refusal.
  3. Hermina Sague v. United States: Sague, a citizen, married Berger, a Frenchman, and applied to permit him to enter the US so they could live together as a family. The government denied Berger a visa, and Sague sued, insisting she had a right as a citizen to live with her husband in the US. The courts ruled that it was impossible to challenge the consular refusal and moreover, based on legal precedent, “there is no constitutional right of a citizen spouse … to have her alien spouse enter the United States.” Perhaps even more perversely, “once an alien has entered our jurisdiction, even illegally, he may only be expelled after proceedings conforming to the traditional standards of fairness encompassed in due process of law. However … ‘an alien on the threshold of initial entry stands on a different footing.'” In other words, if you want due process, you need to enter the US illegally.
  4. Centeno v. Shultz: Centeno, a Filipino citizen, applied for a visa to visit his American family, and was denied. He and Coane, his American brother-in-law, sued to appeal this decision, arguing that the decision was arbitrary and violated Coane’s first amendment rights to engage in discussion with his brother-in-law. (You laugh, but violation of citizens’ first amendment rights is one of the few grounds citizens have to challenge consular officers’ decisions.) The US Court of Appeal essentially laughed Centeno and Coane out of court in a one-page decision.
  5. Patel v. Reno: Patel, a US citizen, applied for visas for his non-citizen wife and children. The government, suspecting Patel had obtained citizenship by fraudulent means, instructed the consulate in Mumbai to place Patel’s application in limbo, where it laid for 8 years. The courts ruled that since no final decision had been made, this visa application was subject to judicial review. Since the application had been in suspended state for 8 years, the courts ordered the consulate to make a final decision on whether to grant the application within 30 days. At the same time, the courts affirmed that not even the Secretary of State had the power to overturn the visa decision once it had been made.
  6. Kleindienst v. Mandel: A seminal case in US immigration law. Mandel was a Belgian Marxist who had travelled to the US many times to speak. In 1969 he applied for a visa and was refused on grounds of his politics. He and the citizens who had invited him to speak sued, citing amongst other factors, the government’s denial of the citizens’ first amendment rights to freedom of speech. The Supreme Court eventually ruled that an infringement of first amendment rights could be grounds for judicial review; broadly, the consular decision on a visa application must have “a facially legitimate and bona fide reason”. Immigration lawyers regard this as a landmark case for immigrant rights, but in reality, the Supreme Court went on to say that allowing Mandel his visa on first amendment grounds risked destroying the doctrine of consular nonreviewability, since by definition virtually all immigration restrictions infringe on citizens’ first amendment rights. The court then held that Mandel was not entitled to judicial review of the consular decision.
  7. Udugampola v. Jacobs: Udugampola, a US citizen, applied for an immigrant visa for her non-citizen father. The government initially approved the petition, but at the consular interview, the officer there denied the visa because he suspected her father of terrorism. Udugampola and her mother (also a legal immigrant to the US) sued the government. The courts ruled that neither Udugampola’s rights as a daughter nor her mother’s rights as a wife were constitutionally-protected in this case, and they had no basis to challenge the consular decision.

A common thread runs through all these: no matter whose interest are at stake, there is virtually no right to question a consular decision, even if it is based on flimsy evidence or is egregiously wrong. Even if it splits up a marriage, the government has absolute totalitarian power. And these are just the cases which get as far as prominent courts in the US. How many thousands of families must there be, lives ruined by immigration law, around the world? How can any self-respecting person in this day and age reconcile the outright disdain immigration law has for our families and communities with modern ideals of liberty and human rights?

The photograph featured at the top of this post is of Mario Chavez embracing his wife Lizeth through the US-Mexico border fence at Playas de Tijuana. The original photograph is copyright David Maung, and was published by Human Rights Watch; a higher-resolution version is available at their website.

 

John Lee is an administrator of the Open Borders website. Liberal immigration laws are a personal passion for him. See all blog posts by John.

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7 thoughts on “True stories from immigration law: US citizens have no right to be with their spouses”

  1. “Such is the case with immigration laws around the world today. US legal precedent is especially enlightening here.”

    I am not a lawyer, but my impression is that US legal precedent is an outlier in this regard. Most common law jurisdictions seem to put visa applications under the same category as any other action by a public authority: subject to judicial review, at a minimum under the Wednesbury test. In general a court won’t interfere with a finding of fact by an immigration officer, but they will instruct the consulate to process the application anew where they committed an error of law or came to their decision “irrationally” (without regard to published procedures & standards or without considering evidence placed before them).

    Here in Hong Kong one recent (and rather politically-charged) case in this regard was Epoch Group v Director of Immigration, in which a Falun Gong-linked musical group successfully challenged a decision to deny employment visas to some of their members:
    http://legalref.judiciary.gov.hk/lrs/common/ju/ju_body.jsp?DIS=75550

    We in HK don’t have much to be proud of with regards to the openness of our immigration law (especially after the recent decision denying permanent residence to domestic workers), but at least we have judicial review of visa denials, unlike the US.

    1. Yup, the US is a definite outlier with respect to judicial review of visa applications. What I was getting at was that although the specific way each country may implement immigration policy will differ, in general most immigration policies feel free to disregard the interests of even their own citizens: “One effect of racial segregation which social justice discussions often gloss over is how unjust laws oppressed not just the visible immediate victims, but also others, ostensibly privileged, who wished to engage with the oppressed.”

      The businessperson who wants to hire someone, or speak to a potential business partner, is harmed. The family who wants to reunite with an old friend or relative is harmed. Yet these interests are given short shrift by the immigration policies of many countries. Even the process of bringing a foreign-born spouse over can be fraught with difficulties, and that is the best case scenario: for a citizen trying to exercise the “right to invite,” it only gets harder from there.

      Also, I think the troubling issue is in fact that potential immigrants and the citizens harmed by their inability to enter don’t have an avenue to challenge determinations of fact. (This I believe is true not only in the US but in quite a few other countries. I think I’ve heard Germany does allow judicial review of some findings of fact in immigration proceedings.)

      Typically to be punished for say, terrorism or drug trafficking under a country’s laws, that country’s government needs to allow you to confront the evidence they’re using to make that determination. In many ways, deportation or refusal of entry are as bad (some might argue even worse) than a jail sentence, and yet there is rarely an avenue to challenge the determinations of fact which these decisions are based on, because of immigration law being treated as an arm of administrative law.

      (BTW interesting that you know of the concept of Wednesbury reasonableness when you aren’t a lawyer — I was under the impression that this was a fairly obscure concept in constitutional/administrative English law.)

      1. I’m glad I am not alone as a US citizen feeling that I am living as a second class citizen. I thought my constitution and the bill of rights was created to help me enjoy life liberty and the pursuit of happiness but I guess not. As an American married to a Canadian fighting off his deportation from the United states I feel totally disregarded where my constitutional rights are concerned. It is a shame that my government can decide the fate of my marriage, can hold me hostage to affidavits of support without relief of being able to claim said support on a tax return, can make me under threat of lawsuit enter into a legally binding contract that denies me any governmental aid for a period of 5 years after a green card is issued, can stop me from getting medical coverage for my alien spouse, life insurance coverage and death benefits for my alien spouse, hell even my car insurance company can drop my coverage because I have an unlicensed alien spouse living under my roof…They even go as far as saying things like you have a better chance of getting a green card if you have dependent children as if somehow dependent children is what constitutes a family. Hello, I depend on my spouse too but I don’t seem to count in any of the wording of immigration law. My husband will be deported eventually as we are in court but there is no guarantee that I will be able to stop the 10 year bar, I will be forced to support two houses in two countries while we wait for his visa and I cant travel to be with him when it happens. So much for my citizenship protecting me…Doesn’t even look like I can challenge on my own behalf it’s all so dishertening to be an American these days.

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