The Biden administration cemented an important executive power using a recent Supreme Court case. Immigration lawyers say it was a huge mistake.
Eric Lee, an immigration lawyer, has spent years working on behalf of Sandra Muñoz, a U.S. citizen, and her husband, Luis Asencio-Cordero, a citizen of El Salvador. The couple has been separated since 2015 after his application for a visa was rejected because he had tattoos that consular staff identified as gang-related.
Lee, Muñoz and Asencio-Cordero have vehemently denied the allegations that he was ever part of a gang and that the tattoos are gang-related. The 9th U.S. Circuit Court of Appeals ruling came down in favor of the couple, but then the solicitor general filed to have the case brought to the Supreme Court.
Lee said he did everything in his power to stop that from happening. But now the administration is handing great power over to future, potentially conservative presidents — and hurting its message that its immigration policies are aimed at keeping families together. The ruling came soon after an executive action from the president that allows certain undocumented spouses of U.S. citizens protection to stay in the country, which the administration touted as pro-family.
“The idea that Biden is now trying to claim that he is supporting family unity with this executive action is a laughable lie because he’s responsible for this decision,” Lee said.
Lee said his team suggested that Asencio-Cordero could wear an ankle monitor or undergo weekly Immigration and Customs Enforcement check-ins. They also proposed the government offer Asencio-Cordero humanitarian parole, which Lee said could have ended the case entirely, and offer to void the previous 9th Circuit decision. But administration officials said no, he said.
“That would have given them a victory,” Lee said. “And they rejected that.”
The Supreme Court ultimately ruled against Muñoz and Asencio-Cordero and gave the State Department approval to deny such applications without an explanation or opportunity for appeal. Observers weren’t surprised at the conservative court’s ruling, but other immigration attorneys, like Lee, expressed everything from outrage to confusion over the Biden administration’s decision to bring the case so far. Some said it calls into question exactly what the Biden team is trying to do on immigration: Does it want to protect family unity, or does it want to protect its own power?
“All the talk from the Democratic Party and the Biden administration about having opposed Trump’s right-wing policies on immigration are just more lies for votes,” Lee said. “Because the reality is that they have handed Trump and Stephen Miller a gift on a silver platter with this decision, and it’s their fault that it came before this court.”
Lawyers who argue on behalf of immigrants or those looking to gain entry to the country said the process of getting visas or other permits approved is a black box. If a State Department denial comes through, there’s no process of appeal or explanation, and those who advocate on behalf of immigrants say they can be decided incorrectly or based on arbitrary reasoning.
The Department of State “can basically do whatever they want, and nobody can tell them otherwise,” said Sabrina Damast, an immigration lawyer. “That is an extraordinary measure of power and also an extraordinary lack of transparency.”
Other attorneys questioned why the Biden administration was willing to put the case before the Supreme Court.
“It was a huge mistake to move forward with this case,” said David Leopold, an immigration lawyer and counsel to America’s Voice. “It was a waste of time. That’s why I say this whole thing was gratuitous, didn’t have to happen, and it wasn’t necessary to the resolution of the case because the case was resolved by the time it got to the Supreme Court.”
Muñoz had sued the Department of State to try to get an explanation for why her husband’s application was denied. She eventually got an explanation, which meant the root of the case was resolved. That’s part of why Leopold said he was surprised the solicitor general moved forward.
The White House did not respond to a request for comment, and the Department of Justice declined to comment.
It’s difficult to say why the government brought the case to the Supreme Court, but the lawyers had their own theories.
“I think the Department of Justice doesn’t think through the overall policy,” Leopold said. “They’re thinking totally in terms of the law and totally in terms of what is going to embolden the government and strengthen the government’s hand in every case.”
“That said, that doesn’t take the Biden administration off the hook,” he added. “This was serious enough that somebody from the White House, they should have sat down and had a policy discussion. … So this was a colossal error.”
Two former DOJ lawyers who spoke with NOTUS disagreed. They both said the implications of the case were clear, and it came down to expanding the executive branch’s power and solidifying precedent.
“This case really is not, unfortunately, about Mrs. Muñoz and her husband. It’s really about executive power. And honestly, executive power to make bad decisions,” said Jesse Bless, who now works as an immigration lawyer at his own practice. “It’s really about executive power to make decisions without getting second-guessed.”
But Kate Melloy Goettel, a University of Iowa College of Law professor and immigration lawyer who formerly worked at the DOJ, said that the politics should have still been clear even if the White House wasn’t involved.
“On the one hand, they should have tried to stop this. On the other hand, there’s just such a high volume of cases that they’re dealing with that I don’t know how realistic that would be,” she said.
“The top people at the Department of Justice are political appointees, and so they’re supposed to be carrying out the policies of the White House,” she added.
The ruling hasn’t made much of a splash in Congress. Several lawmakers signed on to an amicus brief arguing in Muñoz’s favor, but only Reps. Linda Sánchez and Judy Chu released a statement about the final ruling (Muñoz resides or used to reside in their districts).
However, attorneys stressed that the decision shields the State Department from scrutiny, and the decisions its officials make could change based on who the president is.
“It’s as if a king is sitting on the throne and saying, ‘I’m going to do this. I’m going to do that,’” Bless said. “You’re picking winners and losers, and I think with an immigration system, that is a disastrous mindset.”
It’s still unclear exactly what the legacy of the case will be and how broadly it will be used in future cases, but Bless said that now that the Biden administration has cemented its power, it should at least use it for good.
Bless said Biden “could call up Antony Blinken at the State Department and say, ‘I know I want more power. That’s great. Thanks for that. I appreciate that. I wanted that power. But the decision’s wrong; she should be with her husband.’”
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Casey Murray is a NOTUS reporter and an Allbritton Journalism Institute fellow.