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Monday, July 17, 2023


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10 Ninth Circuit Judges Dissent to Denial of Rehearing En Banc in Alien-Exclusion Case

Three Judge Panel’s Decision That Could Lead to Member of Street Gang Gaining Admittance Is Left Standing


By a MetNews Staff Writer


Ten of the 29 active members of the Ninth U.S. Circuit Court of Appeals yesterday indicated their disagreement with the decision not to grant a rehearing en banc in a case in which the majority of a three-judge panel declared that the government failed to meet the notice requirements of due process by taking almost three years to explain that it was denying a visa because the applicant was a member of a dangerous criminal gang.

The opinion, filed Oct. 5, was authored by Kermit V. Lipez, a senior judge of the First U.S. Circuit Court of Appeals, sitting by designation, and was joined in by Ninth Circuit Senior Judge Mary M. Schroeder. Ninth Circuit Judge Kenneth K. Lee dissented.

The panel acted on an appeal by Sandra Muñoz from a decision by Magistrate Judge Alka Sagar of the Central District of California. Sagar granted summary judgment to the government based on the doctrine of consular nonreviewability, upholding the decision to bar Muñoz’s husband, Luis Asencio-Cordero, a citizen of El Salvador, from entering the U.S. based on his “unlawful activity.”

8 U.S.C. §1182(a)(3)(A)(ii) provides that that an alien “who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in...any…unlawful activity” may not be admitted.

Lipez’s Decision

Lipez said that Muñoz, as a citizen, has standing to contest the exclusion and that “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.”

He declared that “the government’s nearly three-year delay in providing appellants with the reason for the denial of Asencio-Cordero’s visa—and only after being prompted by court order—was clearly beyond the pale.” As to what constitutes “reasonable timeliness,” he said a determination of that “is informed by the 30-day period in which visa denials must be submitted for internal review and the 1-year period in which reconsideration is available upon the submission of additional evidence.”

The failure of the government to provide timely notice, he wrote, “means that the government is not entitled to invoke consular nonreviewability to shield its visa decision from judicial review.”

The case was remanded to the District Court for a consideration of “the merits of appellants’ claims.”

Lee’s Dissent

Lee said in his dissent:

“Here, the State Department—despite its delay—has met its burden of identifying a valid statute of inadmissibility….It advised Muñoz that the government believes that her husband has connections to the MS-13 gang and notified her of the statutory provision that bars him from entering the United States. Muñoz, for her part, has not shown bad faith [on the government’s part].That should be the end of the story.

“The majority opinion, however, has crafted an exception to the longstanding consular non-reviewability doctrine: consular officers now must provide a facially legitimate and bona fide reason for denying a visa—within a reasonable time. But that conflicts with the separation-of-powers principle….[H]ere, Congress has imposed no time limit for a consular officer to inform a foreigner the reason that his or her visa is being denied.”

Party Lines

Lipez and Schroeder were appointed by Democratic presidents—Lipez by Jimmy Carter and Schroeder by Bill Clinton—and Lee was placed on the bench by Donald Trump, a Republican president.

All of the 10 judges who dissented from the denial of en banc review were Republican appointees. Trump had awarded judgeships to Bridget Shelton Bade, Mark J. Bennett, Daniel Aaron Bress, Patrick J. Bumatay, Daniel P. Collins, Ryan D. Kenneth Kiyul Lee, Nelson and Lawrence VanDyke and George W. Bush had conferred a seat on the court on Consuelo M. Callahan and Sandra S. Ikuta. Bress wrote a brief dissent, joined in by Lee, in which he said that “the clear legal infirmity in our court’s new timing rule—and the confusion it will surely cause—provides more than sufficient reason to conclude both that the government should easily prevail and that en banc review was warranted.” He indicated agreement with Part III.B of a dissent by Bumatay.

Collins also confined his agreement with Bumatay’s dissent to that portion.

Bumatay’s Opinion

In Part III.B, the correctness of creating a timeliness requirement is disputed. In other portions of the dissent, Bumatay opined that Muñoz lacks standing to challenge the exclusion of her husband and that the government should not be compelled to produce evidence in support of its stance that an alien is subject to exclusion based on “unlawful activity.”

Bumatay wrote:

“Given that the doctrine of consular nonreviewability is rooted in the separation of powers, we should reject efforts to create—out of whole cloth—novel burdens on the Executive branch….To impose a categorical time limit for consular nonreviewability has no basis in the text or history of the Constitution, Supreme Court precedent, or statute.”

Circumventing Congressional Will

He argued:

“[O]ur court’s decision ignores the will of Congress. Remember. Congress has established that consular officers must give an alien ‘timely written notice’ of the grounds for a visa denial….But Congress has expressly exempted aliens found inadmissible under the ‘unlawful activity’ bar from this timely notice requirement.”

He said the timeliness requirement is borrowed from a U.S. Supreme Court decision dealing with the termination of public assistance payments which, Bumatay asserted, has no relevance to the matter of denying a visa.

The jurist went on to say:

“That we have placed new burdens on the Executive’s discretion without explaining how it can comply with those burdens makes matters worse. At a minimum, we should have taken this case en banc to clarify the government’s obligations under our new regime.

“Our court’s creation of new hurdles for the Executive in the security context is troubling. Respect for the government’s interest in protecting our security should give us more pause before inventing new due process regimes.”

The case is Muñoz v. United States Department of State, 21-55365.

Street Gang

A 2011 opinion of California’s First District Court of Appeal says of the gang in which Muñoz’s husband was found to have membership:

“Mara Salvatrucha (or ‘MS–13’) street gang…is known to traffic in illegal drugs and narcotics throughout the United States…, and its members are known to ruthlessly maintain and increase the gang’s share of the illegal drug market by committing murder and other crimes of violence, sometimes for no purpose other than to cause terror and fear.”

A 2022 opinion of the U.S. District Court of the Eastern District of California notes:

“The evidence presented at trial demonstrates that MS-13 is an international criminal gang, which engages in drug trafficking and weapons crimes, among other crimes. The gang is ultra-violent and has been suspected of numerous murders, beatings and attacks in the Mendota, California area in the years 2015 through 2017.”

Bumatay referred to it as “a singularly brutal gang.”


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