Amicus Curiae Brief — Department of State, et al., Petitioners v. Sandra Muñoz, et al.

No. 23-334

In the Supreme Court of the United States

UNITED STATES DEPARTMENT OF STATE,

et al.,

Petitioners,

v.

SANDRA MUÑOZ, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF OF INTERNATIONAL REFUGEE

ASSISTANCE PROJECT AND AMERICAN

FAMILIES UNITED AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

Melissa S. Keaney

Counsel of Record

Mariko Hirose

Melissa Fich

INTERNATIONAL REFUGEE

ASSISTANCE PROJECT

One Battery Park Plaza,

33rd Fl.

New York, NY 10004

(916) 546-6125

mkeaney@refugeerights.org

Counsel for Amici Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF THE ARGUMENT ............................2

ARGUMENT ...............................................................3

I.

II.

Consular Officer Visa Denials Interfere with a

U.S. Citizen’s Right to Cohabitate with Their

Spouse in Safety ................................................4

A.

U.S. Citizens Cannot Live with Their

Spouse in Countries Where They Face

Persecution ....................................................5

B.

U.S. Citizens Risk Their Lives and U.S.

National Security When Forced to Live in

Countries Designated as Unsafe ...................7

C.

U.S. Citizens Married to a Spouse Whose

Home Country Criminalizes or Restricts the

Marriage Face Permanent Separation

When a Visa Is Denied Live with Their

Spouse in Countries Where They Face

Persecution...................................................10

Consular Officer Visa Denials Interfere

with

U.S.

Citizens’

Decisions

Over

Childbearing ....................................................11

III. Consular Officer Visa Denials Interfere with

a U.S. Citizen’s Right to Make Childrearing

Decisions and Harm U.S. Citizen Children ....15

CONCLUSION ..........................................................28

ii

TABLE OF AUTHORITIES

Cases

Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632 (1974) ................................................ 2

Eisenstadt v. Baird,

405 U.S. 438 (1972) .............................................. 11

Loving v. Virginia,

388 U.S. 1 (1967) .................................................... 3

Meyer v. Nebraska,

262 U.S. 390 (1923) .............................................. 15

Pak v. Biden,

No. 22-CV-250-SLC, 2023 WL 22077,

at *4–5 (W.D. Wis. Jan. 3, 2023), aff'd,

91 F.4th (7th Ciir. 2024)....................................... 10

Prince v. Massachusetts,

321 U.S. 158 (1944) .............................................. 15

Skinner v. Oklahoma,

316 U.S. 535 (1942) .......................................... 3, 11

Statutes

8 U.S.C. § 1101(a)(42)(A) ........................................... 5

8 U.S.C. § 1154(b)....................................................... 3

8 U.S.C. § 1157(c) ....................................................... 5

8 U.S.C. § 1158(b)(1)(A) ............................................. 5

8 U.S.C. § 1201(a)(1)(A) ............................................. 3

22 U.S.C. § 1731 ......................................................... 7

22 U.S.C. § 1732 ......................................................... 7

iii

22 U.S.C. § 1741 ......................................................... 7

Regulations

8 C.F.R. § 212.7(e) ...................................................... 3

Other Authorities

9 FAM § 103.4-1 ......................................................... 3

Central Intelligence Agency, World Factbook:

Maternal Mortality Ratio, https://www.cia.gov/theworld-factbook/field/maternal-mortalityratio/country-comparison/ .................................... 12

Executive Office for Immigration Review

Adjudication Statistics, Asylum Decision Rates by

Nationality (Oct. 23, 2023),

https://www.justice.gov/eoir/page/file/1107366/dl . 5

FINRA, Series 6 – Investment Company and

Variable Contracts Products Representative

Exam, https://www.finra.org/registration-exams-

ce/qualification-exams/series6 ............................... 8

Human Rights Watch, #Outlawed “The Love That

Dare Not Speak Its Name,”

https://features.hrw.org/features/features/lgbt_law

s/#_ftn1.................................................................. 10

Human Rights Watch, Iran: Events of 2023,

https://www.hrw.org/world-report/2024/countrychapters/iran ........................................................... 9

Randy Capps et al., Implications of Immigration

Enforcement for the Well-Being of Children in

Immigrant Families: A Review of the Literature,

Urban Institute & Migration Policy Institute

(Sept. 2015),

https://www.migrationpolicy.org/research/implicati

iv

ons-immigration-enforcement-activities-wellbeing-children-immigrant-families ...................... 16

Refugee Processing Center, Refugee Admissions

Report as of Feb. 29, 2024, Admissions and

Arrivals, https://www.wrapsnet.org/admissionsand-arrivals/ ........................................................... 5

Sue Coyle, MSW, Children and Families Forum: The

Impact of Immigrant Family Separation, 18

SOCIAL WORK TODAY, no. 5, Sept./Oct. 2018 at 8,

https://www.socialworktoday.com/archive/SO18p8.

shtml ..................................................................... 16

The World Bank, Mortality Rate, Infant,

https://data.worldbank.org/indicator/SP.DYN.IMR

T.IN ....................................................................... 11

U.N. Doc A/HRC/53/23 (June 21, 2023),

https://www.ohchr.org/en/statements/2023/06/iranupdate-human-rights ............................................. 9

U.S. Comm’n on Int’l Religious Freedom, 2023 AntiConversion Laws Compendium, at 5,

https://www.uscirf.gov/sites/default/files/202311/2023%20%20AntiConversion%20Laws%20Compendium.pdf ......... 11

U.S. Dep’t of State, El Salvador Travel Advisory

(July 17, 2023),

https://travel.state.gov/content/travel/en/internatio

nal-travel/International-Travel-CountryInformation-Pages/ElSalvador.html .................... 13

U.S. Dep’t of State, El Salvador Travel Advisory,

(July 17, 2023),

https://travel.state.gov/content/travel/en/traveladvi

sories/traveladvisories/el-salvador-traveladvisory.html ........................................................ 26

v

U.S. Dep’t of State, Iran Travel Advisory (Jan. 11,

2023),

https://travel.state.gov/content/travel/en/traveladvi

sories/traveladvisories/iran-travel-advisory.html . 9

U.S. Dep’t of State, Mexico Travel Advisory, (Aug.

22, 2023),

https://travel.state.gov/content/travel/en/traveladvi

sories/traveladvisories/mexico-traveladvisory.html ........................................................ 22

U.S. Dep’t of State, Pakistan Travel Advisory (June

23, 2023),

https://travel.state.gov/content/travel/en/traveladvi

sories/traveladvisories/pakistan-traveladvisory.html ........................................................ 18

U.S. Dep’t of State, “Travel Advisories,”

https://travel.state.gov/content/travel/en/traveladvi

sories/traveladvisories.html/ .................................. 7

World Health Organization, Maternal Mortality,

(Feb. 22, 2023), https://www.who.int/newsroom/fact-sheets/detail/maternal-mortality ........ 12

1

INTEREST OF AMICI CURIAE 1

Amici curiae are two non-profit organizations that

advocate to improve family reunification pathways to

the United States. Recognizing that family unity is a

basic human right, the amici organizations support

fair and equitable processes that keep families

together.

The International Refugee Assistance Project

(“IRAP”) is dedicated to advancing and defending the

rights of refugees, asylum seekers, and other

displaced people. In light of obstacles to traditional

resettlement around the world, IRAP has increased

its focus on family reunification as a primary pathway

to safety for refugees and other forced migrants. IRAP

works to protect the right to family unity through

direct legal services, policy advocacy, and litigation.

American Families United (“AFU”) represents

U.S. citizens in advancing solutions to overcome

immigration issues for their spouses and children,

which AFU considers to be the highest priority for

legal immigration. AFU has a particular focus on

spouses and children of Americans who have been

denied a visa by a consular officer. Through its

advocacy and public education work, AFU’s goal is to

improve immigration pathways so American families

can stay together and live in safety in the United

States without the fear of separation.

1 Under Rule 37.6 of the Rules of this Court, amici curiae certify

that no counsel for a party authored this brief, in whole or in

part, and no person or entity other than amici and their counsel

made a monetary contribution to the preparation or submission

of this brief.

2

SUMMARY OF THE ARGUMENT

“Personal choice in matters of marriage and family

life is one of the liberties” fundamental to the rights

protected by the Due Process Clause. Cleveland Bd. of

Educ. v. LaFleur, 414 U.S. 632, 639 (1974) (citing

cases). Yet for the many U.S. citizens married to a

noncitizen, the enjoyment of this right depends on the

largely unreviewable decision-making of a U.S. State

Department consular officer.

Petitioners are wrong that a consular visa denial

does not implicate a U.S. citizen’s marriage rights

because the couple can live elsewhere. As the stories

in this brief illustrate, many couples cannot live

elsewhere. Even if they can, being forced to make this

choice interferes with the free exercise of other rights

U.S. citizens enjoy, including the right to make

decisions over childbearing and childrearing.

The court below rightly upheld the principle that

a visa denial for a U.S. citizen spouse implicates a

U.S. citizen’s due process rights and affirmed a

limited judicial role in reviewing such decisions. Were

this Court to foreclose all judicial review, the fate of

thousands of American families would lie in the hands

of a single consular officer. The tribulations of several

such families are profiled here, illustrating the fallacy

of Petitioners’ callous argument and the importance

of this case to these families and the many others who

have experienced a spousal visa denial.

3

ARGUMENT

As this Court has recognized, “[m]arriage is one of

the ‘basic civil rights of man’, ‘fundamental to our very

existence and survival.’” Loving v. Virginia, 388 U.S.

1, 12 (1967) (quoting Skinner v. Oklahoma, 316 U.S.

535, 541 (1942)). For many American families,

however, the ability to partake in this basic civil right

is rendered impossible by a U.S. Department of State

consular officer decision.

To obtain a visa for a noncitizen spouse, a U.S.

citizen first files an I-130 petition with U.S.

Citizenship and Immigration Services. See 8 U.S.C. §

1154(b). Once approved, the spouse abroad submits a

visa application to the U.S. Department of State. 8

U.S.C. § 1201(a)(1)(A). A State Department consular

officer adjudicates the visa application, 8 U.S.C.

§ 1201(a), (d), and (g), and there is no formal process

to appeal the consular officer’s decision, see U.S. Dep’t

of State, 9 Foreign Affairs Manual (FAM) § 103.4-1. If

the noncitizen spouse has been present in the United

States without legal authorization, they may apply

for a provisional waiver of unlawful presence before

departing the United States for a visa interview. See

8 C.F.R. § 212.7(e). A noncitizen is only eligible for the

provisional waiver if they are not inadmissible on any

other grounds. 8 C.F.R. § 212.7(e)(14).

As the stories in this brief reflect, many American

families traverse this lengthy process only to receive

a boilerplate visa denial at the last step. A visa denial

has profound ramifications for U.S. citizen spouses

and their families. A U.S. citizen spouse may be forced

to consider moving to a country where they face risk

of violence or kidnapping, or where they lose access to

4

necessary medical care or educational support. If

instead they decide to remain in the United States,

the couple’s children may be forced to grow up without

one of their parents. Despite the gravity of these

consequences, families facing a visa denial are left

with few, if any, avenues for recourse. The following

are stories of individuals 2 who, with their families,

have been devastated by a consular visa denial. 3

I.

Consular Officer Visa Denials Interfere with a

U.S. Citizen’s Right to Cohabitate with Their

Spouse in Safety.

Families with one U.S. citizen spouse and one

noncitizen spouse often have only two options for

where they can live permanently and stably as a

family unit: the United States or the noncitizen

spouse’s home country. Petitioners are thus wrong in

claiming that a consular visa denial does not

implicate a U.S. citizen’s right to live with their

spouse, see Pet. Br. 28—when living in the noncitizen

spouse’s country of origin is not an option, a consular

officer’s denial of a spousal visa application effectively

forecloses the couple’s ability to live together. 4

2 Where noted by an asterisk, the individual’s name has been

changed or abbreviated to protect privacy.

3 Information for all the stories is on file with Melissa Keaney at

the International Refugee Assistance Project.

4 For the same reason, Amicus Curiae Immigration Reform Law

Institute’s (“IRLI”) argument that a consular visa denial

does not “prevent[] the couple from residing together,” ignores

the reality faced by many American families. IRLI Amicus Br.

5-6.

5

A. U.S. Citizens Cannot Live with Their

Spouse in Countries Where They Face

Persecution.

U.S. citizens who come to the United States as a

refugee or asylee and marry a national from their

country of origin by definition cannot live in their

spouse’s home country. 5 In such cases, the United

States may be the only country where the couple can

live together as a family. Thousands of people arrive

to the United States as refugees from more than

seventy-four countries each year. 6 Individuals

granted asylum similarly come from more than one

hundred countries around the world. 7

Ms. F.* 8 Ms. F, a naturalized American citizen,

fled Taliban-controlled Afghanistan with her family

when she was a child and grew up in California. In

5 In granting an individual admission as a refugee or asylee, the

U.S. government has found that the individual has faced and/or

will face persecution in their home country on account of one of

several enumerated grounds. See 8 U.S.C. § 1157(c) (providing

for admission of refugees); 8 U.S.C. § 1158(b)(1)(A) (providing for

admission of asylees who meet the refugee definition); see also 8

U.S.C. § 1101(a)(42)(A) (defining “refugee”).

6 Refugee Processing Center,

Feb.

29,

2024,

Refugee Admissions Report as of

Admissions

and

https://www.wrapsnet.org/admissions-and-arrivals/.

Arrivals,

See Executive Office for Immigration Review Adjudication

Statistics, Asylum Decision Rates by Nationality (Oct. 23, 2023),

https://www.justice.gov/eoir/page/file/1107366/dl.

7

amici International Refugee Assistance

Project in a case challenging the consular officer’s denial of a

spousal visa for Mr. R.

8 Ms. F. is a client of

6

2010, when traveling to Afghanistan to visit her

extended family because the Taliban was no longer in

power, she met her future husband, Mr. R,* an

Afghan national, with whom she fell in love because

of his patience, honesty, and kindness. As their

relationship deepened, they talked about their hope of

living together and starting a family in the United

States.

But after they were married, State Department

consular officers repeatedly denied the couple’s

attempts to live together in the United States.

Throughout the early years of their marriage, Ms. F

visited Mr. R and then returned to the United States

to give birth to their children, without Mr. R by her

side.

Ms. F was in Afghanistan with the couple’s three

children and Mr. R when the Taliban retook control of

the country in the Fall of 2021. U.S. government

evacuated the family but detained them at a U.S.

military base in Kosovo for nearly twelve months

while refusing to allow Mr. R into the United States.

Then, a consular officer denied Mr. R’s visa based on

“Security and Related Grounds,” without any

explanation or even a cite to the applicable subsection

of the general inadmissibility provision. In September

2022, Ms. F left the base with their three children,

because she was due to give birth to their fourth child.

For years now, Ms. F and her children have not

had a place in the world where they can count on

living permanently with Mr. R as a family. Mr. R has

never met his youngest child. Despite having her

degree in biochemistry, Ms. F has had to give up on

her dream of becoming a doctor while she raises four

children on her own. Mr. R grew up without knowing

7

his father and lives in anguish about his inability to

be present in the daily lives of his children.

B. U.S. Citizens Risk Their Lives and U.S.

National Security When Forced to Live in

Countries Designated as Unsafe.

Some U.S. citizens are married to someone from a

country that the U.S. Department of State has

designated as a “Do Not Travel” country, meaning the

U.S. government advises U.S. citizens not to travel

there because of safety concerns. Currently nineteen

countries have such a designation, with additional

political subdivisions within certain countries also so

designated. 9

A U.S. citizen whose spouse is from one of those

countries and is denied a visa may be forced to choose

between family unity and putting their life at risk by

moving to such a country. And when a U.S. citizen is

forced to live in a country that the U.S. government

advises its citizens not to travel to, this raises not only

safety and security concerns for the U.S. citizen, but

also national security and foreign relations concerns

for the United States. See, e.g., 22 U.S.C. § 1732

(requiring the President to use “such means, not

amounting to acts of war * * * necessary” to obtain the

release of U.S. citizens detained abroad); 22 U.S.C. §

1731 (providing the same protection to naturalized

citizens); 22 U.S.C. § 1741 (outlining duties of the

Secretary of State in cases of U.S. citizens unlawfully

or wrongfully detained abroad).

See U.S. Dep’t of State, “Travel Advisories,”

https://travel.state.gov/content/travel/en/traveladvisories/travel

advisories.html/.

9

8

Iris.* Iris is a U.S. citizen who grew up in Cary,

North Carolina, as part of a large, close-knit PersianAmerican extended family. Iris was working in San

Francisco after college when a relative introduced her

to Mohammad,* an Iranian physician. They dated

long distance for a while, and soon knew that they

wanted to be together. They married in 2016 and

applied for a visa for Mohammad to join Iris in the

United States.

Looking forward to a life together with

Mohammad, Iris moved back to North Carolina,

bought a house, and furnished it. Iris thrived at her

new job at Wells Fargo and obtained a Series 6

license 10 with her employer’s support. Mohammad

also began studying so that he could continue his

medical practice in the United States. The future

looked bright.

But Mohammad’s visa application remained on

hold through multiple rounds of former President

Trump’s executive orders and proclamations banning

Iranians from immigrating to the United States. After

years of waiting, the couple’s dreams were dashed

when Mohammad received a denial in November

2019 citing Immigration and Nationality Act (INA)

§ 212(a)(3)(B). During the wait, the Trump

Administration had made the controversial decision

10 A Series 6 license is a certification issued by the

Financial Industry Regulatory Authority (FINRA), which

allows its recipient to sell certain investment products.

See FINRA, Series 6 – Investment Company and

Variable

Contracts

Products

Representative

Exam,

https://www.finra.org/registration-exams-ce/qualificationexams/series6.

9

to designate Iran’s National Revolutionary Guard

Corps, an arm of Iran’s government, as a terrorist

organization; Mohammad had, years ago, served his

mandatory military service in that division in a

medical capacity.

Iris now lives in Iran so that she can be with her

husband, but life is unstable and uncertain. Iris is

easily identifiable as American because of her accent

and mannerisms; she does not feel secure in a country

that the State Department warns U.S. citizens not to

travel to “for any reason” due to “the risk of terrorism,

civil unrest, kidnapping and the arbitrary arrest of

U.S. citizens.” 11 During the women’s rights protests

beginning in 2022 that resulted in the government

killing hundreds and arresting thousands of

protestors, 12 Iris was afraid to leave the house for fear

of being inadvertently targeted by the state-led

violence.

The most heartbreaking part of this nightmare for

Iris and Mohammad is that they may not be able to

have children because of the consular officer’s denial

of a visa. Years ago, Iris had a surgery in the United

States to treat an ovarian cyst, but it led to severe

U.S. Dep’t of State, Iran Travel Advisory (Jan. 11, 2023),

https://travel.state.gov/content/travel/en/traveladvisories/travel

advisories/iran-travel-advisory.html.

11

Human Rights Watch, Iran: Events of 2023,

https://www.hrw.org/world-report/2024/country-chapters/iran;

see also U.N. Office of the High Commissioner for Human

Rights, Presentation of the Secretary-General’s report on the

situation of human rights in the Islamic Republic of Iran, U.N.

Doc

A/HRC/53/23

(June

21,

2023),

https://www.ohchr.org/en/statements/2023/06/iran-updatehuman-rights.

12

10

complications and a month-long hospitalization. The

doctors told her that she could still have children, but

it would be difficult. Iris needs American medical care

for a chance to have a child, and she does not want to

undergo childbirth by herself, away from her

husband. The consular officer’s denial has thus

prevented Iris and Mohammad from building their

family.

C. U.S. Citizens Married to a Spouse Whose

Home Country Criminalizes or Restricts the

Marriage Face Permanent Separation

When a Visa Is Denied.

For still others, laws in the noncitizen spouse’s

country of origin may make living there as a couple

an impossibility. For example, same-sex couples with

a noncitizen spouse from a country that criminalizes

same-sex relationships may face indefinite separation

if a spousal visa is denied. See, e.g., Pak v. Biden, No.

22-CV-250-SLC, 2023 WL 22077, at *4–5 (W.D. Wis.

Jan. 3, 2023), aff'd, 91 F.4th 896 (7th Cir. 2024)

(describing a U.S. citizen who is in a same-sex

relationship with a gay man in Iran, a country that

considers his sexuality punishable by death). Seven

countries maintain the death penalty as punishment

for same-sex conduct and a further fifty-six countries

criminalize same-sex conduct. 13

As another example, the U.S. Commission on

International Religious Freedom reports that twenty13 See Human Rights Watch,

Not

Speak

#Outlawed “The Love That Dare

Its

Name,”

https://features.hrw.org/features/features/lgbt_laws/#_ftn1.

11

six countries restrict interfaith marriages. 14 For any

U.S. citizen whose marriage is criminalized or

restricted by their spouse’s country of origin, a

spousal visa is a necessity for the relationship.

II. Consular Officer Visa Denials Interfere with

U.S. Citizens’ Decisions Over Childbearing.

This Court has recognized that the “right to have

offspring” is a “sensitive and important area of human

rights.” Skinner, 316 U.S. at 536; see also Eisenstadt

v. Baird, 405 U.S. 438, 453 (1972) (recognizing the

right “to be free from unwarranted governmental

intrusion into matters so fundamentally affecting a

person as the decision whether to bear or beget a

child.”). Yet, a consular visa denial, which may

operate to effectively prevent a U.S. citizen from

cohabitating with a noncitizen spouse, can essentially

foreclose the U.S. citizen’s ability to have children.

Moreover, U.S. citizens forced to move from the

United States to be with a noncitizen spouse forego

their access to the American medical system, which

could put their lives and the lives of their future

children at risk. The United States has a lower infant

mortality rate than over seventy percent of the

world’s countries. 15 More than 120 countries have a

higher maternal mortality rate than the United

U.S. Comm’n on Int’l Religious Freedom, 2023 Antiat

5,

Laws

Compendium,

https://www.uscirf.gov/sites/default/files/202311/2023%20%20AntiConversion%20Laws%20Compendium.pdf.

14

Conversion

See The World Bank, Mortality Rate, Infant,

https://data.worldbank.org/indicator/SP.DYN.IMRT.IN.

15

12

States. 16 The World Health Organization reports that

every day in 2020, almost 800 women died from

preventable causes related to pregnancy and

childbirth worldwide. 17 As discussed supra, the

consular visa denial in Iris’ case may interfere with

her ability to have children, but this is not an isolated

story.

Sloane Arias. Sloane Arias was born in Los

Angeles, California and moved with her family to

Arkansas as a child. She met her now-husband, Otto,

at a music festival, and they immediately connected

because both of their families are originally from El

Salvador. Sloane’s father took to Otto because of their

shared love of agriculture.

When Sloane faced health challenges, eventually

requiring removal of her gallbladder, Otto was by her

side, nursing her back to health. They decided they

wanted to start a family, but facing difficulties

conceiving, they turned to help from a local fertility

clinic. They were still trying to conceive when they

decided to get married in 2017 and pursue securing

Otto’s immigration status.

After USCIS approved Sloane’s petition and a

waiver of unlawful presence, the couple traveled

together to El Salvador for Otto’s visa interview.

Sloane took vacation time from her position as a

preschool teacher to accompany Otto, assuming,

16 See Central Intelligence Agency,

Mortality

Ratio,

World Factbook: Maternal

https://www.cia.gov/the-worldfactbook/field/maternal-mortality-ratio/country-comparison/.

Maternal Mortality, (Feb. 22,

2023),

https://www.who.int/news-room/factsheets/detail/maternal-mortality.

17 See World Health Organization,

13

based on Otto’s clean record in the U.S. and El

Salvador, that they would soon return with a visa for

Otto in hand. She never imagined she would be gone

for several months, during which Otto was

interviewed twice and questioned extensively about

whether he had any gang affiliations. Still, the couple

assumed there must be some mistake and thought it

would all be worked out in time and Otto would be

granted a visa. They were devastated when, instead,

Otto received a denial notice, which cited only the

general “Security and Related Grounds” of

inadmissibility without any further details.

As her bills started to mount up and her position

at the preschool was at risk because of her extended

leave, Sloane made the difficult decision to return to

the United States without Otto. The resulting

financial strain forced Sloane to give up the couple’s

apartment and move in with her parents, and to give

up on her dream of becoming a licensed preschool

teacher in favor of a job with better benefits and pay.

The couple now see each other only occasionally

when Sloane can save enough money and take time

off work to visit Otto in El Salvador, a country that

the State Department warns Americans to reconsider

visiting due to crime. 18 Sloane fears that they will

never be able to start their family and she suffers

from severe Major Depressive Disorder due to the

stress her separation from Otto has caused.

18 U.S. Dep’t of State, El Salvador Travel Advisory (July 17,

2023), https://travel.state.gov/content/travel/en/internationaltravel/International-Travel-Country-InformationPages/ElSalvador.html.

14

Iman Achkar. Iman Achkar is a U.S. citizen born

in Madison, Wisconsin, and a Ph.D student with the

dream of one day being an oncology researcher at one

of the well-known medical institutions in Boston.

While she was working as a cancer research specialist

with Weill Cornell Medical College in Qatar, she met

Walid Ajaj, a graduate of the Lebanese American

University and a bank worker who, like her, had

traveled extensively around Europe. Iman and Walid

got along well, and they were soon engaged. Although

COVID delayed their wedding plans, they were

married in September 2020.

Iman planned to return to the United States as

soon as her Ph.D was complete, and Walid agreed it

would be best to raise their future children there. The

couple started the visa process. At the consular

interview in October 2021, soon after the birth of the

couple’s first daughter, the officer requested that

Iman submit a letter of resignation from her position

as evidence of the couple’s “intent to immigrate.”

Iman submitted a resignation letter to her employer

the following month as instructed. Although Walid’s

visa had not issued yet, Iman booked a flight to return

to the United States in June 2022.

But shortly before the planned trip, Walid received

an email from the consular officer, denying his visa

citing INA § 212(a)(3)(B), with no other explanation.

Neither Iman nor Walid had employment at this

point, and they had an infant daughter to support.

Unsure of how to proceed, Iman took the scheduled

flight with her daughter but without Walid. Iman

and her daughter moved into her grandmother’s home

in Madison, and Iman sought out work. The

15

separation was difficult for the family, even with

occasional visits to Qatar.

In March 2023, Iman found out that she was

pregnant with the couple’s second child. Iman was

excited about their growing family, but the strain of

being a single parent in a long-distance relationship

was wearing on her. After she and her daughter

traveled to Qatar to spend time with Walid prior to

the delivery, Iman suffered a second trimester

miscarriage that required her to receive a medical

abortion. The couple arranged a funeral for their

second child – a loss that they trace back to the

distress and grief that the consular officer’s denial

imposed on the family.

Iman is now pregnant again and planning to

return to the United States with the couple’s now twoand-a-half-year-old to give birth. But without her

husband by her side, she worries about who will care

for their daughter and support her during and after

the delivery. The couple remains confused about the

visa denial given Walid’s ability to secure visas to

other countries, including European destinations.

III. Consular Officer Visa Denials Interfere with a

U.S. Citizen’s Right to Make Childrearing

Decisions and Harm U.S. Citizen Children.

The Due Process Clause protects the sacrosanct

right of parents to “establish a home and bring up

children” without undue interference from the state.

Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see also

Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It

is cardinal with us that the custody, care and nurture

of the child reside first in the parents, whose primary

16

function and freedom include preparation for

obligations the state can neither supply nor hinder.”).

U.S. citizens prevented from cohabitating with a

noncitizen spouse by a consular visa denial

experience interference in virtually every aspect of

family life.

A consular officer’s denial of a visa to a noncitizen

spouse impacts the entire family. The resulting family

separation can impact a family’s financial situation as

well as the health and emotional well-being of all

family members. The financial hardship imposed by

maintaining two households and the lost income of

the noncitizen spouse can lead to housing instability

and shortages of basic necessities. 19

Impact of family separation is particularly acute

for children. 20 Separation from a parent can result in

“toxic stress,” the “long-term effects of [which] * * *

can include anxiety, PTSD, and depression.” 21 Young

children who are separated from a parent can develop

an insecure attachment with the missing parent,

“[t]he ramifications of [which] are typically long term”

19 See Randy Capps et al., Implications of Immigration

Enforcement for the Well-Being of Children in Immigrant

Families: A Review of the Literature, Urban Institute &

Migration

Policy

Institute

(Sept.

2015),

https://www.migrationpolicy.org/research/implicationsimmigration-enforcement-activities-well-being-childrenimmigrant-families.

, e.g., id. at 9 (“Children separated from their parents are

more likely to report depressive symptoms than children who

have not experienced separation.”).

20 See

21 See Sue Coyle, MSW, Children and Families Forum: The

Impact of Immigrant Family Separation, 18 SOCIAL WORK

TODAY,

no.

5,

Sept./Oct.

2018

at

https://www.socialworktoday.com/archive/SO18p8.shtml.

8,

17

and may include “difficulty tolerating stress, poor

control of anger, [and] difficulty maintaining stable

relationships.” 22

As the stories below illustrate, a visa denial can

result in traumatic separations, causing fear, anxiety,

and sadness. When families make frequent trips

abroad or relocate permanently to be reunited, family

members may experience harm from inadequate

medical care, and children endure disruptions that

affect their education.

Sara.* When Sara was a child, she and her parents

fled persecution in Afghanistan and came to the

United States as refugees. Sara became a U.S. citizen

and grew up in Tucson, Arizona. She trained as a

phlebotomist and began working in a local hospital.

Sara met her now-husband, Ali,* at a family wedding

in Pakistan and the two fell in love and were married

in 2014. Ali is a well-respected doctor in Lahore,

Pakistan, where he has been practicing medicine for

over ten years. Desiring to start a family together in

the United States, Sara quickly applied for an

immigrant visa for Ali, who was interviewed at the

U.S. Embassy Islamabad in 2015.

After three years awaiting a decision, the couple

received notice that Ali’s visa was denied. The denial

notice cited only the broad “Security and Related

Grounds” inadmissibility provision without any

additional detail. The couple believes the denial may

be due to misidentification: when Ali’s family

members return to the United States after travel

abroad, they have been questioned about someone

22 See

id.

18

they do not know who shares the same name as Ali

and purportedly resides in Tucson, Arizona. Ali has

never been to the United States.

As a result of the visa denial, Sara has spent their

almost ten-year marriage split between two homes:

her home in Arizona where she prefers to raise their

four children, and Pakistan, the only place the family

can currently be together. After the birth of each of

their first three children, Sara packed up the family’s

belongings in Arizona and returned to Pakistan so the

children could meet their father.

The decision to continue traveling back to

Pakistan—a country that the State Department

warns American citizens to reconsider visiting due to

terrorism and kidnapping 23—is difficult each time,

and the couple’s children fear living there. Their

eldest child hates attending school in Pakistan, where

she has been bullied because she is an American. The

couple decided to send their daughter to private

school because incidents of children being kidnapped

from school for ransom are common in Pakistan and

they feel it is unsafe for their children to attend public

school.

The couple’s third daughter was born with a

serious medical condition requiring frequent

hospitalizations. In one scary incident, she developed

pneumonia and febrile seizures in Pakistan. They

immediately brought her to the hospital, but they

were turned away because there were no available

beds in the ICU. Instead, Sara and her husband cared

23 See U.S. Dep’t of State, Pakistan Travel Advisory (June 23,

2023),

https://travel.state.gov/content/travel/en/traveladvisories/travel

advisories/pakistan-travel-advisory.html.

19

for their daughter at home, relying on his medical

knowledge and access to medical equipment.

Despite all the challenges of living in Pakistan,

Sara is still considering moving her family there

again because the prospect of permanent separation

from Ali is far worse. When the couple’s third child

was again hospitalized for two weeks in Arizona last

fall, Sara faced the heart-wrenching decision to leave

her then-two-year-old in the hospital without a parent

because she did not have anyone who could care for

her then-infant son. Incidents like these have taken a

toll on Sara and she suffers from depression, which at

its lowest point caused her to consider taking her own

life. Ali and Sara hate the idea of uprooting their

children from their lives in the United States and

subjecting them to the difficulties and dangers of life

in Pakistan, but if Ali is unable to secure a visa to the

United States, they fear they will have no choice.

Mark Stancil. Mark is a U.S. citizen and an army

veteran who met his current wife, Deborah, on a

dating site for Christians over a decade after his first

wife passed away. Deborah is a Kenyan citizen and a

fellow committed Christian who had previously been

to the United States on a State Department organized

trip for Kenyan entrepreneurs. After corresponding

online for months, they decided that they wanted to

build a life together. Mark traveled to Kenya where

they celebrated a church wedding in 2018 and began

the visa process for Deborah and her daughter (now

Mark’s stepchild).

As Mark did not have a way to support their family

if he left his job at a Ford factory in Missouri, he

remained separated from Deborah and her daughter

20

while they waited for visa processing. He traveled to

Kenya twice a year to see them, and in March 2020,

Mark and Deborah welcomed their own daughter.

They did not expect what happened next: after

years of waiting, in 2023 the State Department issued

a visa to Mark’s 10-year-old stepdaughter but not to

Deborah. A congressional inquiry on Mark’s behalf

revealed that the consular officer was accusing

Deborah of misrepresenting her marital status in an

earlier visa application to the United States.

Faced with an expiring visa for Mark’s

stepdaughter, the couple made the heart wrenching

decision to have her move to Missouri without her

mother. The couple decided that their four-year old

child, though a U.S. citizen through her father, should

remain with Deborah in Kenya given her young age.

The four-year old now asks why her father has left her

in Kenya while taking her sister.

Mark cannot move to Kenya as he would have no

way to support his family financially or pay off

outstanding loans. He also wants to continuing living

near his other children and grandchildren in the

United States. The family has been financially and

emotionally strained because of the separation, and

all they want is to be allowed to live together.

Ana.* Ana is a U.S. citizen who grew up in the Los

Angeles area. She met her future husband, Alberto,*

in 2003 at a local fundraiser for a community in

Michoacan, Mexico, where both of their families are

from. She noticed that Alberto was charismatic and

kind. As they began to spend time together, she fell in

love with the way Alberto always made her laugh.

21

Ana and Alberto started dating and got married in

2007. A few years later, they had their first son. They

did not have a lot of money back then, but they were

happy: they lived close to Ana’s family and

participated actively in their church community.

Alberto supported Ana so that she could obtain a

degree in speech therapy and disability. They looked

forward to having more children.

In 2014, once Ana and Alberto achieved more

financial stability, they decided to try to regularize

Alberto’s status in the United States through the I130 petition process. After receiving a waiver of

unlawful presence from USCIS, the couple traveled to

Ciudad Juarez with their four-year-old son for the

consular interview. They expected to be home in a few

days.

Ana was devastated when Alberto walked out of

the consular interview with a notice of denial. With

nowhere else to go together, the family flew to

Michoacan to consider their next steps. But within a

week, Ana had to return to work in the United States

with their son, leaving Alberto behind.

Back in the United States without Alberto, Ana

could no longer afford the family’s apartment, so she

and their son had to move in with her family. Ana’s

son, who had never been away from his dad until

then, was inconsolable: he held a picture of his dad

and cried for days, developing acute separation

anxiety.

Eventually, Alberto decided to cross the border

again to be with his family as it would not be safe for

Ana and their son to move to Michoacan where

violence and kidnappings are rampant and the State

Department warns Americans not to travel due to

22

crime and kidnappings. 24 In fact, a few years ago,

Alberto’s father disappeared, and the family still does

not know where he is.

Because of the consular officer’s decision to deny

Alberto a visa, Ana and their children live every day

scared for the future. The couple’s eldest child, now a

teenager, is constantly afraid that his father could be

deported at any time, but the family feels they do not

have another option. In Mexico, Ana would not have

the support of her family, would not be able to

continue her career, and – most importantly – would

not be able to secure health care for the couple’s

youngest son, who has a critical heart condition.

Sam.* Sam is a U.S. veteran who served in Kuwait

and Iraq and is currently in federal service with the

U.S. Customs and Border Protection. He has been

married for almost a decade to a Mexican woman who

was denied a visa to live with him in the United

States because she had once entered unlawfully at a

port of entry as a juvenile. They have a U.S. citizen

child together who has autism.

Sam cannot live with his family in Mexico due to

the requirements of his federal service, so his wife and

child live across the border in Mexicali where he tries

to visit them twice a week – not at all the same as

leading a life together. He is not able to be there for

his wife to help take care of their child and he misses

See U.S. Dep’t of State, Mexico Travel Advisory, (Aug. 22,

2023),

https://travel.state.gov/content/travel/en/traveladvisories/travel

advisories/mexico-travel-advisory.html.

24

23

many special occasions. Sam’s wife struggles to meet

their child’s needs within the Mexican education

system, which does not offer the same support for

autistic children that would be available in the United

States.

Celenia Gutierrez. U.S. citizen Celenia Gutierrez

met her future husband Isaias Sanchez Gonzalez

when they were both teenagers, at a quinceañera

party in the Los Angeles neighborhood where their

families lived. Soon, they were inseparable. Celenia

moved in with Isaias and they had their first child.

Isaias supported Celenia while she finished high

school and college and studied to become a nurse, and

they eventually had two more children. Over the

years, Isaias spent his time with the kids, planned

family camping trips, and coached his sons’ soccer

teams.

After almost 15 years of raising a family together,

Celenia and Isaias decided that it was time to marry

and to formalize Isaias’s status in the United States.

Isaias obtained a waiver of unlawful presence and

traveled to Ciudad Juarez, Mexico for an interview in

January 2016 for what the family thought would be a

short trip. Isaias had no criminal record and no

reason to believe that he would have a problem

obtaining a visa. Yet when the consular officer saw his

tattoos – tattoos personal to him like the Virgin Mary

and Aztec symbols for his Mexican heritage – the

officer denied his visa based on INA § 212(a)(3)(A)(ii).

The family has not lived together since January

2016. When Celenia realized that Isaias would not

return home, she was distraught. She struggled to

support the family financially while being present for

24

her three children. She often worked night shifts until

11pm or even 4am, missing parent-teacher

conferences and the kids’ sports games. Her second

son quit playing soccer, shut down, and began having

behavioral problems at school. Her oldest son

remained stoic but broke down before his graduation

from high school, crying to Celenia that he felt like he

has had to be the man of the household. Celenia and

Isaias’s family has been destroyed by a single

consular officer’s erroneous decision that Isaias’s

tattoos indicated criminal activity.

Karina Rivera. Karina Rivera and Jimmy are high

school sweethearts. After they had their first son in

2003, they decided to get married. They wanted to

provide a better life for their son and buy a home, but

Jimmy’s lack of immigration status made it difficult

for him to obtain a well-paying job. In 2011, they

started the process to secure Jimmy’s immigration

status.

After USCIS approved Karina’s petition and a

waiver of unlawful presence, Jimmy traveled to El

Salvador for his visa interview. During the interview,

the consular officer brought him to a room, told him

to undress, and examined his tattoos—which include

drawings of his family members, fish, and the phrase

that appears on the Salvadoran flag, “God, union,

liberty.”

Jimmy has always liked tattoos and

considers them a form of expression. He never

dreamed that his tattoos would prevent him from

obtaining a visa to be reunited with his family in the

United States, but that seems to be what happened.

A consular officer denied Jimmy’s visa application

citing only INA § 212(a)(3)(A)(ii) without further

25

explanation. The couple believe the tattoos were the

reason, given the consular officer’s extensive

questioning about them. Attempts to have this

decision reviewed were unsuccessful, leaving Jimmy

stranded in El Salvador, and Karina alone to parent

their son in the United States.

The family endured almost four years of

separation because of the visa denial. With Jimmy no

longer able to contribute to the family’s finances,

Karina and their son had to move in with Karina’s

mother, which forced her son to change schools three

times. This compounded the trauma their son

experienced after suddenly losing his father, with

whom he was very close. During the years he lived in

El Salvador, Jimmy was repeated targeted by

Salvadoran gangs and the Salvadoran police, beaten

severely, and robbed. Fearing for his life, he made the

difficult decision to return to the United States. At the

border, he received a positive credible fear

determination and was released on bond to pursue his

asylum claim.

Since that time, Karina and Jimmy have

welcomed two more sons to their family and they have

done their best to build a secure future for their

children. But Karina lives in constant fear that

someday Jimmy could be forced to return to El

Salvador, leaving her sons, once again, fatherless. She

feels this is something no child should have to

experience, but should Jimmy be forced to leave the

United States, Karina fears they would be unable to

join him because it is not safe to raise their sons in El

26

Salvador, where Jimmy has already faced targeting

by criminal gangs. 25

Anna Kathleen Alberto.

Anna was born in

Norristown, Pennsylvania. She met her nowhusband, Noe, while salsa dancing with her friends.

The couple was married at Anna’s grandparents’

house and soon welcomed their son. The delivery was

difficult and when Anna had to deliver via emergency

cesarean, Noe was by her side, whispering wonderful,

uplifting things in her ear the entire time. Due to

complications of the surgery, Anna faced a long

recovery and Noe was the primary caretaker of their

newborn son, forever cementing the strong bond that

they share.

Tiring of the constant fear over whether Noe might

be deported, the couple elected to try to regularize his

status. Anna’s I-130 petition and a waiver for

unlawful presence were both approved and Noe

appeared for his visa interview in Honduras. But

much to their dismay, Noe’s visa was denied due to a

5-year immigration bar, requiring him to wait that

period outside of the United States before his visa

application can be reconsidered.

Anna took a leave of absence from her job as a

kindergarten teacher and traveled to Honduras with

their son. She hoped to be able to stay with Noe for as

long as possible, but the hardships they faced living

in Honduras, including health issues and persistent

El Salvador Travel Advisory, (July

17,

2023),

https://travel.state.gov/content/travel/en/traveladvisories/travel

advisories/el-salvador-travel-advisory.html

(advising

U.S.

citizens to reconsider travel to El Salvador due to crime).

25 See also U.S. Dep’t of State,

27

worry over the security situation, forced them to leave

after about one year.

Even though Noe has passed the 5-year waiting

period, the couple has been unable to get the U.S.

Embassy in Honduras to reconsider the prior visa

denial. Though separated by thousands of miles, Noe

does his best to continue to be involved in his family’s

life, such as by joining parent-teacher conferences

virtually. Anna and their son try to visit Noe for short

periods during the summer, in between summer

school sessions that Anna teaches to increase the

family’s income. It has been difficult for her to support

the family and send money to Noe, who can only find

work in Honduras infrequently, particularly as she

faces mounting debt including student loans from her

master’s studies. Their continued separation has not

only imposed financial strain on the family but also

takes an emotional toll—their son, now in fourth

grade, still wakes during the night crying for his

father.

Matthew Bryan. A proud fifth generation Kansan,

Matthew Bryan grew up on the farm where his family

has lived since the 1880s. He is a chemical engineer

and has been employed with the same oil and gas

company since 1997. His work has taken him around

the world, including to Mexico, where he met his wife,

Minerva. The couple married in 2010.

In 2011, Matthew’s company offered him the role

of V.P. of Personnel for North America. Matthew

could not imagine taking the position without his wife

by his side, so he applied for an immigrant visa for

Minerva to join him in the United States.

Unfortunately, Minerva’s visa was denied because as

28

a juvenile she had once mistakenly identified herself

as a U.S. citizen to a border official—an error she

corrected when the officer began asking her questions

in her native Spanish language.

Matthew declined the North America position and

instead took a role in the Caribbean so he and

Minerva could remain together. As a result of the visa

denial, he has missed out on job opportunities and

career advancement. Houston is the hub of the oil and

gas industry, but Matthew cannot work there without

being separated from Minerva.

The couple now live in Canada and are parents to

two U.S. citizen children (ages 7 and 5). Their son is

autistic, non-verbal, and requires constant care, but

Matthew and Minerva have no extended family in

Canada to support them in caring for him. Matthew

wishes they could all live in the country his family has

called home for generations. Instead, they are forced

to live abroad.

CONCLUSION

For the reasons provided by Respondents and the

reasons given above, this Court should affirm the

decision below and find that a consular officer’s visa

denial implicates a U.S. citizen’s due process rights,

giving rise to certain minimum procedural

protections.

29

Respectfully submitted,

Melissa S. Keaney

Counsel of Record

Mariko Hirose

Melissa Fich

INTERNATIONAL REFUGEE

ASSISTANCE PROJECT

One Battery Park Plaza,

33rd Fl.

New York, NY 10004

(916) 546-6125

mkeaney@refugeerights.org

Counsel for Amici Curiae