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

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 FOR 35 MEMBERS OF CONGRESS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

LEON B. GREENFIELD

JULIE AUST WELLY

JUSTIN R. METZ

COURTNEY BIBBS

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

ERIN MARIE MEYER

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8800

erin.meyer@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................... iii

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 2

ARGUMENT ....................................................................... 6

I.

CONGRESS CANNOT PERFORM ITS

CONSTITUTIONALLY PRESCRIBED

FUNCTIONS WHEN AGENCIES REFUSE

TO PROVIDE CONGRESSIONAL OFFICES

INFORMATION TO WHICH THEY ARE

ENTITLED ...................................................................... 6

A. Advocating For Administrative Action

On Behalf Of Constituents Has Been A

Core Congressional Function Since

The Founding......................................................... 6

B. Advocating On Behalf Of Constituents

Furthers Congress’ Core Legislative

And Oversight Functions .................................... 9

C. Ms. Muñoz’s Case Is Typical—It

Is Impossible For Congress To Play

Its Constitutional Role When

Executive Agencies Refuse To

Provide Information To Which

Congress Is Entitled .......................................... 13

ii

TABLE OF CONTENTS—Continued

Page

II. THIS COURT NEED NOT ADDRESS

CONSULAR NONREVIEWABILITY, BUT IF

IT DOES, IT SHOULD DECLINE THE

DEPARTMENT’S INVITATION TO EXPAND

THE DOCTRINE ........................................................... 16

A. Congress Has Authorized Presumptive

Judicial Review Of Consular Visa

Denials Under Section 1182(a) .......................... 16

B. The Department’s Arguments Suggesting Congressional Support For An

Expanded Consular Nonreviewability

Doctrine Are Wrong ........................................... 20

III. INFORMATION-SHARING WITH CONGRESS

AND REVIEWING CONSULAR DECISIONS AS

PRESUMPTIVELY REQUIRED BY LAW

RESPECTS CONGRESSIONAL INTENT AND

HONORS THE SEPARATION OF POWERS .................. 22

CONCLUSION ................................................................. 24

APPENDIX: LIST OF AMICI CURIAE ................... 1a

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Arizona v. United States, 567 U.S. 387 (2012) ................ 2

Brownell v. We Shung, 352 U.S. 180 (1956) ............. 19, 21

Central Bank of Denver, NA, v. First

Interstate Bank of Denver, NA,

511 U.S. 164 (1994) ..................................................... 20

Davis v. Passman, 442 U.S. 228 (1979) .......................... 22

Department of Homeland Security v.

Regents of University of California,

140 S.Ct. 1891 (2020) .................................................. 19

Fong Yue Ting v. United States, 149 U.S. 698

(1893) .................................................................. 5, 23, 24

Goldberg v. Kelly, 397 U.S. 254 (1970).............................. 3

Guerrero-Lasprilla v. Barr, 589 U.S. 221

(2020) ............................................................................ 19

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014) ..................................................... 21

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) ....................................................... 18

INS v. Chadha, 462 U.S. 919 (1983) .......................... 22, 24

Kerry v. Din, 576 U.S. 86 (2015) ................................ 19, 20

Kleindienst v. Mandel, 408 U.S. 753 (1972) ....... 16, 19, 20

Nishimura Ekiu v. United States,

142 U.S. 651 (1892) ..................................................... 17

Pension Benefit Guaranty Corp. v. LTV

Corp., 496 U.S. 633 (1990) ......................................... 20

iv

TABLE OF AUTHORITIES—Continued

Page

Shaughnessy v. Pedreiro, 349 U.S. 48 (1955) .......... 19, 21

Star Athletica, LLC v. Varsity Brands, Inc.,

580 U.S. 405 (2017) ..................................................... 21

Trump v. Hawaii, 585 U.S. 667 (2018) ..................... 16, 19

United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950) ..................................................... 17

United States v. Nixon, 418 U.S. 683 (1974) ............ 22, 24

Vieth v. Jubelirer, 541 U.S. 267 (2004) ........................... 10

Wilkinson v. Austin, 545 U.S. 209 (2005) ...................... 14

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. I ......................................................... 10

5 U.S.C.

§ 551 .............................................................................. 17

§ 701 .................................................................. 17, 18, 21

§ 704 .............................................................................. 22

6 U.S.C. § 236 ..................................................................... 21

8 U.S.C.

§§ 1101 et seq. .............................................................. 22

§ 1105a .......................................................................... 19

§ 1182 .................................................. 3, 4, 14, 17, 18, 20

Administrative Procedure Act,

Pub. L. No. 79-404, 60 Stat. 237 (1946) ...................... 5

Immigration and Nationality Act,

Pub. L. No. 82-414, 66 Stat. 163 (1952) ................ 5, 17

Omnibus Consolidated Appropriations Act,

Pub. L. No. 104-208, 110 Stat. 3009 (1996) .............. 18

v

TABLE OF AUTHORITIES—Continued

Page

REAL ID Act, Pub. L. No. 109-13,

119 Stat. 302 (2005)..................................................... 18

REGULATIONS AND LEGISLATIVE MATERIALS

22 C.F.R. § 42.81 ...................................................... 3, 14, 15

98 Cong. Rec. 4416 (1952) ................................................. 21

98 Cong. Rec. 5578 (1952) ................................................. 21

142 Cong. Rec. 19,015 (1996) ............................................ 11

A Continued Assessment of Delays in VA

Medical Care and Preventable Veterans

Deaths: Hearing Before House

Committee on Veterans’ Affairs,

113th Cong. (2014) ...................................................... 11

Protecting Our Children: Current Issues In

Children’s Product Safety: Hearing

Before the Subcommittee on Commerce,

Trade, and Consumer Protection of the

House Committee on Energy and

Commerce, 100th Cong. (2007) ................................. 10

OTHER AUTHORITIES

Bassett, John Spencer, James K. Polk and

His Constituents, 1831-1832, 28 Am. Hist.

Rev. 68 (1922) ................................................................ 6

Chambers, Jr., Henry L., Enclave

Districting, 8 Wm. & Mary Bill Rts. J.

135 (1999) ..................................................................... 10

vi

TABLE OF AUTHORITIES—Continued

Page

Eckman, Sarah J., Congressional Research

Services, R44726, Constituent Services:

Overview and Resources (Jan. 23, 2023),

https://crsreports.congress.gov/product/p

df/R/R44726 ................................................................... 6

Gould, Jonathan S., The Law of Legislative

Representation, 107 Va. L. Rev. 765

(2021) ............................................................................ 10

Herb, Jeremy, et al., Inside the scramble to

help Americans and Afghans escape

Afghanistan, CNN (Aug. 20, 2021),

https://www.cnn.com/2021/08/20/politics/

congressional-nongovernmental-effortsto-help-escape-afghanistan/index.html ................. 8, 9

Hynes, Mary, After escaping the Taliban,

would a young Afghan couple reunite in

Las Vegas?, Las Vegas Rev.-J. (Oct 8,

2022), https://www.reviewjournal.com/

local/local-las-vegas/after-escaping-thetaliban-would-a-young-afghan-couplereunite-in-las-vegas-2653981/ ..................................... 9

Incumbency Advantage and Accountability,

23 Cumb. L. Rev. 61 (1993) ......................................... 7

Johannes, John R., Casework as a Technique

of U.S. Congressional Oversight of the

Executive, 4 Legis. Studies Q. 325 (1979) ............... 12

Levin, Ronald M., Congressional Ethics and

Constituent Advocacy in an Age of

Mistrust, 95 Mich. L. Rev. 1 (1996) .......................... 10

vii

TABLE OF AUTHORITIES—Continued

Page

Schulz, Kathryn, What Calling Congress

Achieves, The New Yorker (Feb. 26,

2017), https://www.newyorker.com/

magazine/2017/03/06/what-callingcongress-achieves ......................................................... 7

United States Department of State, Foreign

Affairs Manual, https://fam.state.gov/

(visited Mar. 26, 2024) ................................ 3, 13, 14, 15

IN THE

Supreme Court of the United States

No. 23-334

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 FOR 35 MEMBERS OF CONGRESS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE1

Amici are 35 members of the United States Congress who are familiar with the U.S. immigration system

and who regularly engage in outreach on behalf of constituents struggling with that system. Amici have a

strong interest in helping their constituents navigate the

many layers of the immigrant and non-immigrant visa

processes, particularly in ensuring that the executive

branch provides constituents with timely immigration

1

No counsel for a party authored this brief in whole or in part,

and no entity or person, other than amici, its members, and its counsel, made a monetary contribution intended to fund the preparation

or submission of this brief.

2

determinations that comport with applicable law and are

supported by constitutionally sufficient reasoning. Separately, amici have a particular interest in upholding the

Constitution’s separation of powers by ensuring that the

executive branch makes available information that is

necessary for Congress to engage in immigration-related outreach, oversight, and other core legislative

functions. Finally, amici have a strong interest in ensuring that, where the judiciary has traditionally deferred

to congressional decisionmaking—as it has when considering whether it may review exclusionary immigration

determinations—that deference correctly reflects Congress’ express statements of legislative will.

A full list of amici appears in the Appendix.

INTRODUCTION AND SUMMARY OF ARGUMENT

From the earliest days of the Republic, one of Congress’ core functions has been outreach on behalf of constituents navigating complex federal programs. That

outreach often involves contacting officials in other

branches to champion constituents’ rights and interests

as they apply for federal programs.

One of those programs is the U.S. visa system. That

system is an “extensive and complex” web of statutes

and regulations that involve executive determinations of

often opaque admission criteria. Arizona v. United

States, 567 U.S. 387, 395 (2012). When that system fails

or stalls, constituents often turn to their congressional

representatives for guidance and support.

This was one such case. Respondent Sandra Muñoz,

a U.S. citizen, successfully sponsored her husband, Respondent Luis Asencio-Cordero, a Salvadoran citizen,

for an immigrant-relative petition and inadmissibility

waiver. Subsequently, Mr. Asencio-Cordero’s visa was

3

denied at the U.S. consulate in El Salvador in 2015.

Pet. App. 5a. The denial provided no reasoning other

than a simple citation to 8 U.S.C. § 1182(a)(3)(A)(ii),

which states that non-citizens are inadmissible if “a consular officer or the Attorney General knows, or has reasonable ground to believe” that the non-citizen “seeks to

enter the United States to engage solely, principally, or

incidentally in … any other unlawful activity.” Unlike

the surrounding statutory bases for inadmissibility, section 1182(a)(3)(A)(ii) does not specify what “unlawful activities” are encompassed. And Mr. Asencio-Cordero

had no criminal history or gang affiliations, see

Pet. App. 5a, leaving Respondents at a loss to determine

how they might “adduce[] further evidence tending to

overcome the ground of ineligibility” within the one-year

period they had to do so. See 22 C.F.R. § 42.81(e).

Like many others in their position, Respondents

turned to their congressional representative for help.

Representative Judy Chu wrote on Respondents’ behalf

to the consulate requesting more information about the

denial. See Pet. App. 6a. The Foreign Affairs Manual

required that the consulate provide Representative Chu

with a “complete and accurate” response to her request,

601.7-1(b)—meaning at least all information to which

Respondents themselves were entitled. Constitutional

Due Process principles, moreover, required the consulate to articulate a rationale sufficient to enable meaningful appeal of the adverse decision. Goldberg v. Kelly,

397 U.S. 254, 267 (1970). Rather than abide by these requirements, the consulate merely told Representative

Chu that Mr. Asencio-Cordero had been determined ineligible under section 1182(a)(3)(A)(ii), and that the Department of State (“the Department”) had reaffirmed

the consulate’s decision. J.A. 15-16. The consulate provided Representative Chu no reasoning for the denial,

4

rendering the Representative unable to assist her constituents in this case or more generally assess whether

there is need for more oversight of visa denials under

section 1182(a).

Respondents sued, and it came to light that the consular officer had “‘determined that Mr. Asencio-Cordero

was a member of a known criminal organization’” by relying on some combination of unspecified information

from the in-person interview, a “‘criminal review’” of Mr.

Asencio-Cordero, and a “‘review’” of Mr. AsencioCordero’s tattoos. Pet. App. 10a. The Department has

never publicly refuted Respondents’ argument that Mr.

Asencio-Cordero has no criminal record in any country.

And to this day, the Department still has not disclosed

the ultimate reason for the visa denial.2

The Department attempted to insulate its decision

from review by invoking the principle of consular nonreviewability. Pet. App. 11a. That principle traditionally

counseled limited judicial review of executive

2

With his visa petition still unresolved and the reasons for its

initial denial still unclear, Mr. Asencio-Cordero eventually applied

for humanitarian parole in December 2022. When that petition similarly stalled, Ms. Muñoz again sought the help of her Representative—Amicus Representative Linda Sánchez, who now represented

Ms. Muñoz after a move. A familiar story unfolded. Representative

Sánchez’s staff first submitted an inquiry through the United States

Citizenship and Immigration Services (USCIS) portal regarding

Mr. Asencio-Cordero’s parole application. When the agency responded with a form letter that provided no actionable information,

Representative Sánchez herself placed a call to the USCIS Associate Chief within the Office of Legislative Affairs on January 31,

2024. Again, as with the Department’s response to Representative

Chu, USCIS refused to provide any substantive information about

either Mr. Asencio-Cordero’s parole application or his consular visa

denial. Representative Sánchez was thus unable to assist her constituent or assess any need for oversight.

5

immigration denials unless Congress has specifically required otherwise. Fong Yue Ting v. United States, 149

U.S. 698, 714 (1893). Since the mid-twentieth century,

however, Congress has specifically required otherwise:

authorizing presumptive judicial review of agency decisions, like the one issued here, as embodied in the Administrative Procedure Act (APA), Pub. L. No. 79-404,

60 Stat. 237 (1946); see also Immigration and Nationality

Act (INA), Pub. L. No. 82-414, 66 Stat. 163 (1952).

This case implicates many significant aspects of constitutional and statutory law. Amici (“the Members”)

file this brief to highlight three that bear on Congress’

engagement with and oversight of the consular review

system. First, the Members provide their perspective

on the day-to-day process of assisting constituents with

immigration issues and explain that consular refusals to

engage with congressmembers are typical and actively

hinder Congress’ ability to exercise a core function. Second, the Members explain why this Court need not address the Department’s invocation of the doctrine of consular nonreviewability, but to the extent the Court finds

review of that doctrine necessary, it should conclude that

it may review the determination here and should decline

to expand the doctrine as the Department requests. Finally, the Members explain that a case like this one undermines respect for the Constitution’s separation of

powers in two ways: (1) Congress cannot fully uphold its

constitutional obligations when the executive deprives it

of information to which it is entitled and that is required

to perform congressional functions; and (2) the executive

branch disregards Congress’ expressly stated mandate

of presumptive judicial review when it invokes consular

nonreviewability in situations where Congress has previously authorized review.

6

ARGUMENT

I.

CONGRESS CANNOT PERFORM ITS CONSTITUTIONALLY

PRESCRIBED FUNCTIONS WHEN AGENCIES REFUSE TO

PROVIDE CONGRESSIONAL OFFICES INFORMATION TO

WHICH THEY ARE ENTITLED

A. Advocating For Administrative Action On

Behalf Of Constituents Has Been A Core

Congressional Function Since The Founding

Advocacy for administrative action on behalf of constituents has been a core legislative function since the

very first Congress. Following the Revolutionary War,

individual congressmen were inundated with requests

for assistance with pensions, leading Congress to establish select committees and pass legislation to address

constituent claims. Eckman, Cong. Res. Serv., R44726,

Constituent Services: Overview and Resources 1 (Jan.

23, 2023). In his diary, then-Congressman James K. Polk

recorded the “constituent business” he conducted during

the 22nd Congress—ranging from assisting with pension

claims, writing letters for appointments to West Point,

and searching for a letter in a dead-letter office. Bassett,

James K. Polk and His Constituents, 1831-1832, 28 Am.

Hist. Rev. 68, 69-77 (1922). Today, congressional offices

are continuously providing these and other constituent

services—from nominations for appointment to service

academies, to petitions for clemency, to assistance with

benefit claims, to aid in navigating the immigration system. Often, as in Ms. Muñoz’s case, an appeal to Congress is the last resort for a desperate constituent who

has encountered a dead end in navigating a federal program.

As one former Speaker well articulated the responsibility the Members feel toward their constituents:

7

For many millions of private citizens, their

elected representative is the only person whom

they remotely know in the federal government.

He is their only intercessor when they encounter difficulties. This particular relationship between a congressman and the individual constituent, struggling for opportunity, is a very sacred one, not to be despised. It is, in fact, essential if we are to keep government accessible and

to keep government human.

Incumbency Advantage and Accountability, 23 Cumb.

L. Rev. 61, 67 (1993).

The Members view their roles as constituent advocates as integral to their congressional function, particularly when constituents face difficulties in navigating the

byzantine and stressful immigration system. The Members were motivated to seek office by a desire to use

their power to assist constituents through direct constituent service. The Members allocate significant portions

of their limited resources to ensure that their offices can

efficiently and effectively advocate for constituent

needs, particularly those involving the immigration system.

For example, Amicus Representative Jayapal, who

sits on the Judiciary committee, and serves a district including over 780,000 people, has just seventeen full-time

staffers serving in multiple offices across Washington

D.C. and her district. Of those seventeen staffers, two

or three are devoted solely to constituent services and

an additional one or two are devoted principally to immigration matters. And in general, “constituent communications account for twenty to thirty per cent of the

budget for every congressional office on Capitol Hill.”

Schulz, What Calling Congress Achieves, The New

8

Yorker (Feb. 26, 2017), https://www.newyorker.com/

magazine/2017/03/06/what-calling-congress-achieves.

One of the most common requests for congressional

assistance involves visa and immigration issues. The

Members estimate that their offices assist with over

1,000 requests for help with immigration difficulties

every year. Immigration-related requests, even more so

than other types of assistance, are typically born of desperation—wives, like Ms. Muñoz, facing the terrible

choice of either leaving their country or living separately

from their spouses, or war-zone interpreters caught in

bureaucratic limbo and physical danger for months after

applying for special immigrant visas. E.g., Herb et al.,

Inside the scramble to help Americans and Afghans escape Afghanistan, CNN (Aug. 20, 2021), https://www.

cnn.com/2021/08/20/politics/congressional-nongovernmen

tal-efforts-to-help-escape-afghanistan/index.html.

Common immigration-related constituent calls for

help range from requests to expedite visa petitions, to

requests for a status update, to clarification of agency

determinations and help correcting erroneous decisions.

When responding to an outreach request, congressional

staff first assess the constituent’s issue to determine

whether (1) the request requires intervention; and (2)

the constituent needs information or advocacy. Often,

such as in the case of complaints regarding delays in visa

processing, the staff simply listens and provides background information. But other times, such as in Ms.

Muñoz’s case, advocacy is required. Staff then contact

the relevant agencies, through formal and informal channels. Staff may call the agency, question agency representatives during briefings and hearings, or write formal

oversight letters.

9

When they contact an agency, congressional staff

may have multiple goals. Ideally, the agency will resolve

the constituent’s problem by taking (or refraining from

taking) some action. For example, in 2021, Senators

Catherine Cortez Masto and Jacky Rosen helped expedite a stalled consular visa process in Pakistan to reunite

a wife who had been separated from her husband, who

held a special immigrant visa. Hynes, After escaping the

Taliban, would a young Afghan couple reunite in Las

Vegas?, Las Vegas Rev.-J. (Oct 8, 2022), https://www.reviewjournal.com/local/local-las-vegas/after-escapingthe-taliban-would-a-young-afghan-couple-reunite-inlas-vegas-2653981/; see also Herb et al., Inside the

scramble to help, supra p.8 (“Congressional offices

across the country” took on “thousands of cases” from

constituents with ties to Afghanistan, “including American citizens fearful of trying to escape, Afghan interpreters who worked with the U.S. military and Afghan

wom[e]n now at risk under Taliban rule.”). Many constituent problems may not be immediately redressable,

however. In those cases, staff seek information to provide the constituent so that the constituent can seek further relief or at the very least understand the agency’s

decisionmaking. Too often, the relevant agency sends a

boilerplate letter that provides no additional actionable

information—as both the Department and USCIS did in

response to Representatives Chu and Sánchez’s inquiries on behalf of Ms. Muñoz.

B. Advocating On Behalf Of Constituents

Furthers Congress’ Core Legislative And

Oversight Functions

Beyond its obvious importance to individual constituents, constituent service is a key tool that enables Congress effectively to perform its constitutionally assigned

legislative and oversight functions—functions that have

10

increased in importance as the federal government has

expanded through a comprehensive administrative

state. Indeed, congressmembers’ role as constituent advocates is inherent in the constitutional structure, which

contemplates that consistent communication and back

and forth between the branches advances the public

good. See e.g. Levin, Congressional Ethics and Constituent Advocacy in an Age of Mistrust, 95 Mich. L. Rev. 1,

8 (1996).3

First, information that congressmembers gain from

constituent work often serves as a warning signal for

problems that Congress might not otherwise discover

through other channels. Constituent complaints often

lead directly to formal oversight and, when necessary,

remedial legislation. See e.g. Levin, 95 Mich. L. Rev. at

20-21. Crucial legislation often emanates from constituent complaints. For example, in 2007, reports surfaced

regarding toys and other children’s products that contained dangerous levels of lead and other hazardous materials. Constituent complaints flooded into congressional offices, prompting extensive oversight hearings.

E.g., Protecting Our Children: Current Issues In Children’s Product Safety: Hearing Before the Subcomm. on

3

The Constitution specifically guarantees the people the right

to petition Congress for redress of grievances, U.S. Const. amend.

I, and provision of constituent services is core to the function of a

representative democracy. The system of single-member congressional districts reflects the judgment that representative democracy works best when voters can identify with a representative and

when a representative is responsive to their constituency. See

Gould, The Law of Legislative Representation, 107 Va. L. Rev. 765,

779 (2021); Chambers, Jr., Enclave Districting, 8 Wm. & Mary Bill

Rts. J. 135, 146 (1999); Vieth v. Jubelirer, 541 U.S. 267, 357 (2004)

(Breyer, J. dissenting) (single-member districts “make[] it easier for

voters to identify which party is responsible for government decisionmaking (and which rascals to throw out)”).

11

Commerce, Trade, and Consumer Protection of the H.

Comm. on Energy and Commerce, 100th Cong. 44

(2007). Those hearings ultimately led to the passage of

the bipartisan Consumer Product Safety Improvement

Act in 2008, which strengthened safety standards for

children’s products and enhanced the authority of the

Consumer Product Safety Commission.

Second, work in response to constituent requests for

assistance often gives a congressmember an opportunity

to determine whether executive agency programs are

functioning in accordance with congressional mandates

and, if not, take measures to fix the problem. For example, in 2014, constituent complaints about long wait

times, inadequate medical care, and mismanagement

within the Department of Veterans Affairs (VA)

healthcare system prompted congressional oversight

and legislative action. A Continued Assessment of Delays in VA Medical Care and Preventable Veterans

Deaths: Hearing Before the H. Comm. on Veterans’ Affairs, 113th Cong. (2014). The result was passage of the

Veterans Access, Choice, and Accountability Act of 2014,

aimed at improving access to care for veterans and holding VA officials accountable for misconduct. See also 142

Cong. Rec. 19,015, 19,016 (1996) (statement of Rep. Lee

Hamilton) (reporting from his experience as a Congressman that “[m]any programs, ranging from veterans benefits to regulatory policy, have been amended by Congress because of problems first brought to our attention

by constituents asking for help”).

Third, even if constituent complaints do not lead directly to formal oversight hearings or legislation, problems uncovered during constituent service work often

form bases for questions to agency administrators during congressional hearings. When agency leadership

learns of potential problems—and congressional

12

interest—the agency may conduct internal oversight

and adjust regulations or procedures in response,

thereby improving their functioning. Johannes, Casework as a Technique of U.S. Congressional Oversight of

the Executive, 4 Legis. Studies Q. 325, 332 (1979).

Fourth, work on behalf of constituents can give congressmembers information they need for direct outreach

to agencies to influence the agencies to improve their

internal procedures. As explained supra section I.A.,

congressional staff routinely request information from

agency personnel, ask them to take action on behalf of

their constituents, or direct criticism at agency personnel for actions the agency has (or has not) taken. An informal congressional inquiry can spur executive agencies to improve regulations or procedures. This process

is not always adversarial: Congressional staffers who

notice specific recurring problems may reach out directly to their agency contacts and provide them with

data and information in a collaborative effort to improve

agency function. A congressional inquiry tied to a specific case may, moreover, prompt agency personnel to

handle the next similar case with particular care. See

Johannes, 4 Legis. Studies Q. at 334-335.

Finally, constituent service may act as a direct corrective to agency delay, mistake, or abuse. When successful in resolving a case, correcting an error, or catching an abuse of power, constituent service work advances the core oversight goal of ensuring a functioning

and responsive executive branch.

13

C. Ms. Muñoz’s Case Is Typical—It Is Impossible

For Congress To Play Its Constitutional Role

When Executive Agencies Refuse To Provide

Information To Which Congress Is Entitled

Constituent service cannot effectively support Congress’ legislative and oversight functions when executive agencies fail to comply with their obligations to provide information to which Congress is entitled. These

obligations are well understood but often ignored, hampering constituent service, frustrating efforts to address

systemic problems—and, in the case of Ms. Muñoz, leading to significant individual hardship.

The Department’s Foreign Affairs Manual (FAM),

with which the Department must comply, recognizes

that “[c]lose relations with Congress are essential to

CAs’ [Consular Affairs’] success.” 9 FAM 602.2-4(A)(a).

The FAM instructs consular officers to anticipate “congressional requests on visa applicants,” id. 603.2-5(a),

and sets forth a baseline expectation that consular officials will provide congressmembers with enough information to adequately assess a constituent’s situation. As

stated in the FAM, replies to congressional inquiry

“should be complete and accurate,” id. 601.7-1(b), to

avoid “the embarrassing position of trying to explain a

refusal with very little background information on

hand,” id. 601.7-1(d). Consular officials are to “take[]

every opportunity to … inform Members of Congress

and Congressional staff about CA’s work.” Id. 602.24(A)(a).

In this case, when Representative Chu requested information about Mr. Asencio-Cordero’s visa status, the

consulate had a duty to provide, at minimum, all information that they were constitutionally and statutorily

obligated to provide Respondents. 9 FAM 601.7-1(b)

14

(responses to Congress must be “complete and accurate”); id. 603.2-10(a)(1)-(2) (responses to Congress must

include “information that may be shared directly with

the visa applicant themselves” (emphasis omitted)). The

INA required that the consulate provide timely written

notice of its determination, 8 U.S.C. § 1182(b), and the

Constitution required “notice of the factual basis” for the

denial in order to provide meaningful opportunity to appeal, Wilkinson v. Austin, 545 U.S. 209, 211 (2005); see

Resp. Br. 37-38.4

In the Members’ view, “[c]lose relations with Congress,” 9 FAM 602.2-4(A)(a), and proper deference to

Congress’ advocative (and by extension legislative) role

entails sharing information far beyond the one-sentence

explanation that the consulate gave Representative

Chu—the typical response to these kinds of inquiries in

the Members’ experience.

The Constitution and federal law envision a better

approach. Had the consulate replied to Representative

Chu’s letter with a simple additional clause explaining

why specifically Mr. Asencio-Cordero was found permanently ineligible under section 1182(a)(3)(A)(ii), that information would have been enough for Representative

Chu to successfully perform her constituent and oversight duties. With the simple addition of an explanatory

4

The Department argues (Br. 38-39) that it was not statutorily

required to provide Respondents (and by extension Representative

Chu) a timely written decision under 8 U.S.C. § 1182(b)(3), which

exempts consular officers from the notice requirements when it denies a visa pursuant to sections 1182(a)(2) or (a)(3). To the extent

that provision applies here, but see Resp. Br. 41-42, it does not speak

to the Department’s obligation under the Constitution to render its

administrative reconsideration process meaningful by providing

sufficient information to appeal. See id.; 22 C.F.R. § 42.81(e).

15

clause—i.e. “complete” information as contemplated by

9 FAM 601.7-1(b) and Due Process—Representative

Chu would have known what was preventing her constituents from obtaining visas. In response, she could

have taken the following actions: First, she could have

notified Respondents of the reason for their denial,

providing them the information necessary to mount a

case for reconsideration under 22 C.F.R. § 42.81(e). Respondents are currently uncertain which factors—misinterpretation of Mr. Asencio-Cordero’s tattoos, erroneous

information in his criminal review, or others—caused the

denial. Representative Chu could have also learned that

she should inform constituents in similar situations that

they should prepare to provide explanations for any

prominent tattoos or other potentially detrimental ambiguities in their applications. Second, now aware of at

least one potential issue—a possible erroneous evaluation of tattoos—Representative Chu could have taken

any one of the actions discussed in section I.A., supra:

from placing a friendly phone call to the Salvadoran consulate to take special care when evaluating an applicant’s

tattoos to proposing legislation requiring certain foreign

service officers to receive training on what constitutes a

gang tattoo.

Because the Department failed to provide information consistent with the expectations set out in the

Constitution and the FAM, Representative Chu was

prevented from effectively performing one of her core

congressional duties—resulting in great hardship for

her constituents. As a similar result of agency stonewalling, Representative Sánchez was also prevented

from providing meaningful help to her constituents and

was deprived of an opportunity to assess the need for

additional oversight. See supra section I.A.

16

II. THIS COURT NEED NOT ADDRESS CONSULAR NONREVIEWABILITY, BUT IF IT DOES, IT SHOULD DECLINE THE

DEPARTMENT’S INVITATION TO EXPAND THE DOCTRINE

The Department (Br. 16, 32 n.10) asks this Court to

hold generally that “[t]he doctrine of consular nonreviewability forecloses judicial review of visa denials” and

suggests that, to the extent consular visa denials are reviewable at all, the Department may proffer “any reason

or no reason” in support of them. The Court should reject both arguments.

First, the Court need not reach the doctrine of consular nonreviewability. That is because this Court already confirmed that courts may review consular visa

denials, like the one in this case, “when the denial of a

visa allegedly burdens the constitutional rights of a U.S.

citizen.” Trump v. Hawaii, 585 U.S. 667, 703 (2018);

Kleindienst v. Mandel, 408 U.S. 753, 769-770 (1972).

Second, should the Court find the question of nonreviewability properly before it, but see Resp. Br. 11-12, it

should reject the Department’s arguments—which rely

on incorrect readings of congressional intent—and instead honor the APA’s and INA’s authorization of presumptive judicial review in cases like this one.5

A. Congress Has Authorized Presumptive Judicial Review Of Consular Visa Denials Under

Section 1182(a)

Consular nonreviewability stems from the proposition that courts require “express[] authoriz[ation] … to

review the determination of the political branch” to

5

This brief addresses neither the doctrine of consular nonreviewability generally, nor its application to exclusionary determinations under other statutes not at issue in this case.

17

exclude non-citizens. United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 543 (1950) (citing Nishimura

Ekiu v. United States, 142 U.S. 651, 659-660 (1892)).

Congress has expressly authorized presumptive judicial

review of consular visa denials issued pursuant to 8

U.S.C. § 1182(a)(3)(A). The Administrative Procedure

Act of 1946 provides for broad judicial review of agency

actions unless either “statutes preclude judicial review”

or “agency action is committed to agency discretion by

law.” 5 U.S.C. § 701(a). On its face, the APA applies to

the Department’s consular visa denials issued under section 1182(a)(3)(A) of the INA: The Department is an

“agency” within the meaning of the APA, 5 U.S.C.

§ 551(1), consular visa denials are not “discretionary” decisions, Dep’t Br. 37, and no statute “preclude[s]” judicial

review of those denials. 5 U.S.C. § 701(a)(1).

To the contrary, the INA contains many, explicit jurisdiction-stripping provisions, but has not prohibited

review of the consular visa denials at issue here. When

passing the original 1952 Act, Congress went so far as to

carefully explain whether it was exempting certain determinations from judicial review alone, e.g., 8 U.S.C.

§ 1182(a)(9)(B)(v), (d)(12)(B), (n)(2)(G)(vii), whether it

was exempting determinations from both “administrative [and] judicial review,” e.g., id. § 1182(a)(5)(C)(iii);

see also id. § 1182(n)(5)(D)(i), (a)(10)(C)(ii)(III),

(a)(10(C)(iii)(II); whether it was limiting judicial or administrative review to only certain subjects, e.g., id.

§ 1182(n)(5)(D)(iii), (d)(1)(3)(B)(i), (n)(1)(G), (t)(2)(C);

whether it was permitting review only under certain

conditions, e.g., id. § 1182(n)(5)(D)(ii), or whether it was

affirmatively proscribing processes for further review,

e.g., id. § 1182(n)(5)(B). Pub. L. 82-414, 66 Stat. 163

(1952). And when Congress amended the INA in 1996,

it clarified that the statute no longer affirmatively

18

“provid[ed] jurisdiction for suits against the United

States,” but did not preclude that jurisdiction—as did

that same 1996 amendment with other provisions of the

INA. See Omnibus Consolidated Appropriations Act,

Pub. L. No. 104-208, 110 Stat. 3009, 3009-577, 3009-650

(1996) (clarifying that “[n]o court shall have jurisdiction

to review” certain immigration-waiver determinations,

removal orders, voluntary-departure requests, denials

of discretionary relief, criminal removal orders, requests

for injunctive relief, and various exclusionary decisions

issued by the Attorney General); see also REAL ID Act,

Pub. L. No. 109-13, 119 Stat. 302, 310 (2005) (further limiting jurisdiction under unrelated provisions of the

INA). It is a cardinal principle of “the business of interpreting statutes” that “differences in language convey

differences in meaning.” Henson v. Santander Consumer USA Inc., 582 U.S. 79, 86 (2017). Congress knows

how to strip jurisdiction of consular denials under section 1182(a)(3)(A), and it has not done so.

Read together, the APA and INA paint a clear picture of congressional intent. The APA presumptively

requires review of administrative action. 5 U.S.C.

§ 701(a). And although Congress has specifically clarified in the INA where certain exclusionary immigration

decisions are subject to limited review or no review at

all, consular visa denials under 1182(a)(3)(A) are not on

that considered list. This Court has thus recently assumed without deciding that it could review a challenge

under the INA “notwithstanding consular nonreviewability or any other statutory nonreviewability issue” in

part because the Government did not “point to any provision of the INA that expressly strips the Court of

19

jurisdiction”—which is also the case here. Trump, 585

U.S. at 682.6

Finally, this Court should separately decline nonreview here because this case implicates the rights of Mr.

Asencio-Cordero’s U.S.-citizen spouse, Ms. Muñoz.

Mandel, on which the Department primarily relies (e.g.,

Br. 4-5), specifically authorized review—consular nonreviewability notwithstanding—where a U.S. citizen’s

rights were directly impacted. 408 U.S. at 770; Trump,

585 U.S. at 703. Mandel additionally declined to adopt

the Department’s proposed sweeping position here, that

it may provide, in its “sole and unfettered discretion, …

any reason or no reason” for a visa denial. 408 U.S. at

769. Further, in the plurality case Kerry v. Din, this

Court considered an American citizen’s constitutional interest in the consular denial of her husband’s visa under

6

Separately, this Court has held time and time again that the

APA applies to the INA. In Shaughnessy v. Pedreiro, the Court

reviewed a challenge to a deportation order issued under the newly

passed 1952 INA. 349 U.S. 48 (1955). The Court acknowledged that

the previous “Immigration Act of 1917 … had long been interpretated as precluding any type of judicial review except by habeas

corpus.” Id. at 50. The purpose of the APA, however, “was to remove obstacles to judicial review of agency action under subsequently enacted statutes like the 1952 Immigration Act.” Id. at 51.

This Court held that the APA presumptively applies to the INA because “the subsequent 1952 Immigration and Nationality Act [contains] no language which ‘expressly’ supersedes or modifies the expanded right of review granted by” the APA. Id. This Court reaffirmed that decision in Brownell v. We Shung, 352 U.S. 180, 185

(1956), superseded on unrelated grounds, 8 U.S.C. § 1105a(b). Recently, this Court reaffirmed that the APA applies to the INA unless “targeted [statutory] language” says otherwise. See Department of Homeland Sec. v. Regents of Univ. of Cal., 140 S.Ct. 1891,

1907 (2020); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020)

(“We have ‘consistently applied’ the presumption of reviewability to

immigration statutes.”).

20

section 1182(a). Although no single opinion garnered a

majority, all justices save two would have reached directly for the merits of the U.S. citizen’s claim. 576 U.S.

86, 90-91 (2015) (Scalia, J., Roberts, C.J., and Thomas, J.),

see also id. at 107-108 (Breyer, Ginsburg, Sotomayor, and

Kagan, JJ., dissenting), but see id. at 102-103 (Kennedy

and Alito, JJ., concurring in judgment). The Members

strongly believe that this case, which affects the rights

of a U.S. citizen, is not the proper vehicle to determine

whether consular nonreviewability—a doctrine stemming from cases impacting only non-citizens, see Mandel, 408 U.S. at 781-782 (Marshall and Brennan, JJ., dissenting)—should be expanded to severely cabin judicial

review despite congressional authorization to the contrary.

B. The Department’s Arguments Suggesting Congressional Support For An Expanded Consular Nonreviewability Doctrine Are Wrong7

First, the Department (Br. 18-19) makes much of

Congress’ alleged failure to affirmatively authorize judicial or “semijudicial” review of visa denials specifically,

either in the INA itself or in the decades since the INA’s

passing. But such “‘inaction’” “‘lacks persuasive significance’” when determining congressional intent “‘because several equally tenable inferences may be drawn

from such inaction, including the inference that the existing legislation already incorporated the offered

change.’” Central Bank of Denver, NA, v. First Interstate Bank of Denver, NA, 511 U.S. 164, 187 (1994) (emphasis added) (quoting Pension Benefit Guar. Corp. v.

7

The Members limit their responses to certain of the Department’s arguments that specifically impact congressional intent. The

Members should not be understood to endorse any arguments to

which they do not respond.

21

LTV Corp., 496 U.S. 633, 650 (1990)); Star Athletica, LLC

v. Varsity Brands, Inc., 580 U.S. 405, 423-424 (2017).

That the APA already permitted broad judicial review of agency decisions was one of Congress’ rationales

for declining to add separate affirmative jurisdictional

grants. As this Court explained nearly seventy years

ago, the 1952 Congress determined that additional

amendments to the INA “provid[ing] for liberal judicial

review” were unnecessary “[because] the Administrative Procedure Act is made applicable to the bill.”

Shaughnessy v. Pedreiro, 349 U.S. 48, 51-52 (1955) (quoting 98 Cong. Rec. 4416 (1952) and 98 Cong. Rec. 5578

(1952)); see also Brownell v. We Shung, 352 U.S. 180, 186

(1956) (“The House managers reported that after careful

consideration of ‘the problem of judicial review’ they

were satisfied that the procedures provided in the [INA]

remain within the framework and the pattern of the Administrative Procedure Act.”). Further, it is particularly

“inappropriate to give weight to ‘Congress’ unenacted

opinion’ when construing judge-made doctrines”—such

as consular nonreviewability—“because doing so allows

the Court to create law and then ‘effectively codify’ it

‘based only on Congress’ failure to address it.’” Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 299

(2014) (Thomas, J., concurring in judgment).

Second, The Department conflates (Br. 5) Congress’

“express[] deni[al]” of a “private right of action to challenge a decision of a consular officer to grant or deny a

visa,” 6 U.S.C. § 236(f), with evidence that “Congress has

not provided for any form of judicial review over visa denials.” But this is no evidence at all: that the INA does

not specifically provide a cause of action for review of

visa denials has nothing to do with whether Congress intended visa denials to be presumptively reviewable;

Congress expressly did. 5 U.S.C. § 701(a); 8 U.S.C.

22

§§ 1101 et seq. Regardless, “statutory rights and obligations are often embedded in complex regulatory

schemes, so that if they are not enforced through private

causes of action, they may nevertheless be enforced

through alternative mechanisms,” such as “other public

causes of action[].” Davis v. Passman, 442 U.S. 228, 241

(1979). The APA is its own cause of action. 5 U.S.C.

§ 704. As is, of course, the Constitution. Passman, 442

U.S. at 244.

III. INFORMATION-SHARING WITH CONGRESS AND REVIEWING CONSULAR DECISIONS AS PRESUMPTIVELY

REQUIRED BY LAW RESPECTS CONGRESSIONAL INTENT

AND HONORS THE SEPARATION OF POWERS

If adopted, the Department’s position would leave

Congress twice wronged. Strict nonreviewability contravenes Congress’ mandate that administrative decisions presumptively require review. See supra section

II. And insulating the Department from the requirement that visa denials be accompanied by enough information to adequately assess a petitioner’s situation impedes Congress’ ability to fulfill its legislative mandate.

See supra section I. Without the prospect of judicial intervention, and free to stonewall congressional and petitioner inquiry, consular officials can violate constitutional and statutory mandates without consequence or

opportunity for the wronged parties to seek external relief. Such unaccountability, in which the executive functionally “operate[s] with absolute independence,”

United States v. Nixon, 418 U.S. 683, 707 (1974), is inconsistent with “the carefully defined limits on the power of

each Branch.” See INS v. Chadha, 462 U.S. 919, 957-958

(1983).

First, all three branches of government have an important role to play in determining how to define,

23

enforce, and review the power to exclude non-citizens.

This Court articulated the contours of that partnership

in 1893:

The power to exclude or to expel aliens, being a

power affecting international relations, is

vested in the political departments of the government, and is to be regulated by treaty or by

act of [C]ongress, and to be executed by the executive authority according to the regulations so

established, except so far [as] the judicial department has been authorized by treaty or by

statute, or is required by the paramount law of

the constitution, to intervene.

Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893).

The APA and INA provide clear congressional “authoriz[ation]” for judicial review in this case, and this

Court has already held that it will review consular visa

denials that impact the rights of U.S. citizens. See supra

section II. As such, this Court need not address consular

nonreviewability. But to the extent it does, at minimum,

this Court should decline the Department’s invitation

(Br. 16, 32 n.10) to completely deny review or to expand

the doctrine to encompass consular denials for “any reason or no reason.”

Second, Congress cannot fully uphold its constitutional obligations when the executive deprives it of information to which it is entitled. The Department states

(Br. 13) that decisions about whether to admit or exclude

foreigners are best left to the political branches. But

Congress, as a co-equal “political branch,” has explicitly

authorized judicial review for cases like Ms. Muñoz’s.

See supra section II. Thus, at base, the Department’s

position is that this decision should have been left to one

political branch—the executive. When one political

24

branch fails to provide information to the other, and then

disclaims review from the apolitical judiciary, the result

is a total concentration of power in the executive. This

concentration violates the separation of powers, see

Chadha, 462 U.S. at 957-958; Nixon, 418 U.S. at 707, and

fails to honor the historic immigration partnership

among all three branches of government. See Fong Yue

Ting, 149 U.S. at 713.

CONCLUSION

The court of appeals should be affirmed.

Respectfully submitted.

LEON B. GREENFIELD

JULIE AUST WELLY

JUSTIN R. METZ

COURTNEY BIBBS

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

MARCH 2024

ERIN MARIE MEYER

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8800

erin.meyer@wilmerhale.com

APPENDIX

1a

APPENDIX

List of Amici Curiae

Pramila Jayapal, Sponsor, Member of Congress

Linda T. Sánchez, Sponsor, Member of Congress

Nanette Diaz Barragán, Member of Congress

Jamaal Bowman, Ed.D., Member of Congress

Cori Bush, Member of Congress

Salud Carbajal, Member of Congress

Greg Casar, Member of Congress

Joaquin Castro, Member of Congress

Judy Chu, Member of Congress

Danny K. Davis, Member of Congress

Veronica Escobar, Member of Congress

Adriano Espaillat, Member of Congress

Bill Foster, Member of Congress

Robert Garcia, Member of Congress

Sylvia R. Garcia, Member of Congress

Raúl M. Grijalva, Member of Congress

Glenn Ivey, Member of Congress

Jonathan L. Jackson, Member of Congress

Sheila Jackson Lee, Member of Congress

Barbara Lee, Member of Congress

Summer Lee, Member of Congress

Zoe Lofgren, Member of Congress

James P. McGovern, Member of Congress

Grace Meng, Member of Congress

2a

Jerrold Nadler, Member of Congress

Eleanor Holmes Norton, Member of Congress

Katie Porter, Member of Congress

Delia C. Ramirez, Member of Congress

Jan Schakowsky, Member of Congress

Eric Swalwell, Member of Congress

Shri Thanedar, Member of Congress

Rashida Tlaib, Member of Congress

David J. Trone, Member of Congress

Nydia M. Velázquez, Member of Congress

Nikema Williams, Member of Congress