Dept. of State v. Munoz (23-334)
argument 23-334Dept. of State v. Munoz
Supreme Court of the United States
1h 31m
8 speakers
8 chapters
transcribed 7 days ago
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What is the case and the doctrine of consular non‑reviewability being argued?
We will hear argument first this morning in case twenty three three three three three three three four, Department of State versus MUNOS.
Mr. Gannon? Mr. Chief Justice, and may it please the court. Last fiscal year, the Department of State issued eleven million immigrant and non immigrant visas. It also refused sixty two thousand visa applications on the basis of one or more of the admissibility grounds in eight USC eleven eighty two A, including applications from approximately fifty four hundred non citizens seeking to live with their U.S. citizen spouses or fiancees. Under the doctrine of consular non review reviewability, a non citizen outside the United States cannot obtain judicial review of a consular officer's denial of a visa. Congress has not provided for that form of review in the INA, and when it added new visa related provisions in 2002, it reaffirmed that it was not providing an end run around that.
Nor is an end run available when a U.S. citizen family member, here the non citizen spouse, wants the non citizen to be admitted into the United States. As the carry against Din plurality concluded in 2015, that is not a liberty interest protected by the Due Process Clause, and the U.S. citizen is affected only indirectly by the government's action against the non citizen. Thus, respondent Munoz cannot challenge the government. Challenge the denial of her husband's visa application any more than she could challenge a decision at the end of removal proceeding that he will be removed from the United States or at the end of a criminal trial that he would be sent to a prison far across the country. With respect to the second question presented, even assuming that respondent Munoz has a sufficient constitutional interest to trigger any judicial review, the court should at the very least hold that the State Department satisfied the Mandel standard.
The consular officer provided a facially legitimate and bona fide reason by citing a valid statutory ground of inadmissibility, the unlawful activity bar, just as Justice Kennedy's concurrence had found had been the case. case in Din, where the government cited the neighbouring terrorist activities bar. I welcome the court's questions.
Uh just for clarification. Uh Would if assuming uh that uh Ms. Munoz d does in fact have a liberty interest, uh would the councillor non reviewability uh preclude rec uh her winning here. We think that
It would. How would that work then? The only potential exception there would be if there were a constitutional right that this Court has recognized, that that would be the only potential exception. We otherwise think that the point here is of consular nonreviewability is that the person whose interest is directly at stake doesn't have a right to review. And offerciori, it seems that somebody who is only indirectly affected by the government's decision in that proceeding also cannot challenge that. And so the second question presented, assuming that she has a constitutional interest, would be that um we at least satisfy Well
I understand that. I'm just trying to figure without g even getting to Din, whether or not reviewability, non reviewability would preclude any uh her having any recovery at all whatsoever, that you wouldn't even have to get to dent.
Well, uh the case has been litigated on the presumption that there would be an exception to concern non-reviewability if if we were to lose on the first QP, and that is what Justice Kennedy's concurrence said in Din. I don't know what the cause of action is that she has in order to bring that. The Ninth Circuit has been assuming that there is one, I guess, under the under the Constitution. We think there is not one under the APA, and none of the Courts of Appeals has found that there is. Is one there, and so we think that there still would be reasons to say that there isn't going to be any review even in those circumstances, but at the least we would satisfy Mandel.
Counsel, um the husband has no right of review. You're correct. And it's a judicially created exception.
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Chapters
8 chapters
1
What is the case and the doctrine of consular non‑reviewability being argued?
0:00–10:37
2
How do the parties define the constitutional liberty interest of a U.S. citizen’s spouse?
10:37–21:57
3
What is the Mandel standard and does the statutory citation satisfy it?
21:57–33:35
4
How does the court balance the marriage‑related liberty interest against national‑security concerns?
33:35–46:12
5
What procedural due‑process rights (notice and opportunity to respond) are claimed?
46:12–58:23
6
What specific relief is the plaintiff seeking (declaratory judgment, reconsideration, etc.)?
58:23–1:10:30
7
How do the Justices question the existence of an ex parte‑Young cause of action?
1:10:30–1:20:25
8
What are the parties’ final arguments and the Court’s pending decision?
1:20:25–1:31:24