This post has been contributed by Professor Susan Harris Rimmer, a Professor in the Griffith Law School, Leader of the Climate Action Beacon and co-founder of the Gender Equality Research Network (GERN) and a member of the Law Futures Centre and Ms Emma Robinson, a PhD Candidate and Lecturer in the Griffith Law School and member of the Law Futures Centre.

Emma Robinson and Susan Harris Rimmer joined other Australian, Canadian, EU, UK and US experts in drafting an amicus curiae brief led by Ian M. Kysel at Cornell Law School in the case of Department of State v. Muñoz (Docket No.23-334 in the 9th Circuit).  The case involves a U.S. Citizen, Sandra Muñoz, who has been separated from her Salvadoran husband, Luis Asencio Cordero, for nearly a decade because the U.S. State Department denied Luis an immigrant visa in 2015 without any review. The National Immigrant Justice Center is co-counselling with Eric Lee of the Diamante Law Group and Erwin Chemerinsky, dean of the University of California, Berkeley Law School to represent Sandra and Luis in the case, which is currently pending before the Supreme Court. Instead of providing Sandra and Luis information that they might use to refute the inadmissibility finding, the State Department has taken the position that visa records behind the decision are “confidential” and cannot be released to the applicant or even members of Congress. According to the Government, “all” visa decisions implicate national security, so they cannot turn over the reasoning in this particular case or in others like it. The case that is now at the Supreme Court raises a number of concerns, including the secrecy behind the U.S. State Department’s visa decisions, the important interests that U.S. citizens have in the marriage-based immigration process, and what process if any exists for correcting erroneous consular decisions. The court has been asked to consider : (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due.

The Cornell amicus brief argues that the substantial majority of the world’s most significant migrant hubs, including this country’s closest allies, afford due process–including meaningful notice and judicial review–to family unity visa applicants. These countries provide due process even in cases involving security concerns, safeguarding sensitive information, national security, and foreign relations. This comparative evidence should inform the Court’s analysis here for three reasons. First, countries hosting most of the world’s migrants afford family unity visa applicants judicial review, demonstrating its feasibility here. Second, the United States’ closest intelligence partners afford these applicants due process even in cases involving security concerns while safeguarding sensitive information and continuing to share intelligence with each other. This shows that international intelligence information sharing is not incompatible with due process. Finally, European countries’ laws show that the widespread availability of due process in the context of family unity visa determinations arises in significant part from agreement that the fundamental right to family unity requires such protections. This consensus reflects a common thread: that spouses who do not share citizenship cannot be deprived of a right to live together without first being able to mount a challenge. A ruling for Petitioners risks leaving the United States as an outlier among its closest peers.  The full brief can be found here: