Supreme Court could hear case of man who was denied a green card because of tattoos

Prominent Los Angeles civil rights attorney Sandra Muñoz spent her eighth Christmas overseas separated from her husband, Luis Acensio Cordero, after the federal government denied her a visa, in part, because of her tattoos.

Black ink images of Our Lady of Guadalupe, theater masks, a pair of dice and Ace playing cards were souvenirs from his high school days. But to government officials conducting a body search, the tattoos showed she was a member of the MS-13 gang.

Sandra Muñoz holds a photograph of her husband Luis Acensio Cordero.

(Francine Orr / Los Angeles Times)

The couple sued, scoring a victory in California’s Ninth Circuit Court of Appeals, only to have the Biden administration challenge that decision. The case now heads to the Supreme Court.

On Friday, the judges will review the case and decide whether to accept it. If they refuse, the appeals court decision would stand and Acensio’s lawyers believe he would likely be allowed to return to live in the United States for the first time in nine years.

The outcome of the case could have a ripple effect for immigrants like Acensio because it is so rare to win challenges to government visa denials. But his lawyers fear that if the Supreme Court sides with the Biden administration, former President Trump, if re-elected, would use the decision, and the underlying authority, to justify blanket bans on people from certain countries, as he did during his first mandate.

Acensio, now 47, was undocumented when he met Muñoz in 2008 at a wedding. They married two years later and in 2013 he applied for a green card.

In 2015, Acensio returned to El Salvador for what the couple believed was the final security check and an interview at the United States consulate. He expected to be in El Salvador for only a few weeks, so Muñoz met him there and they booked their flights back to Los Angeles together.

He vividly remembers the day of the interview, when they asked him to take off his clothes, took pictures of his tattoos, and asked him why he got them. On her chest, one features comedy and tragedy theater masks with a set of dice and three Ace cards. The others are of The Virgin of Guadalupe, a profile of Sigmund Freud and a tribal design with a paw print.

A consular official asked him about his criminal record, and Acensio said he described the only time he was arrested, when he and a friend got into a fight. They spent three days in prison and were released without charge.

After the interview, Muñoz spent the rest of the week frantically checking his email. “That email never came and I had to go back alone,” she said. “The first of many trips back alone.”

The government’s denial came six months later, he said Acensio would likely engage in illegal activities if he were allowed to return to the US.

A State Department spokesperson declined to comment to the Times due to pending litigation.

In court proceedings, consular officials argued that they did not owe the family an explanation and that there was no way to appeal due to the doctrine of consular non-reviewability, which prevents judicial reviews of visa determinations made by consular officials as long as the decision is “facially legitimate and in good faith.”

Portrait of Sandra Muñoz is a celebrated civil rights lawyer in Los Angeles.

Sandra Muñoz is a civil rights attorney in Los Angeles.

(Francine Orr / Los Angeles Times)

In certain cases, a U.S. citizen who demonstrates that he or she was harmed by the denial may challenge the doctrine. Immigration attorney Alan Diamante, a friend of Muñoz from law school, took on the case.

They filed a lawsuit in 2017 in the U.S. District Court for the Central District of California challenging the constitutionality of Acensio’s denial. Humberto Guizar, an attorney and court-approved gang expert who has testified in 50 cases, filed a statement claiming that he is intimately familiar with gang tattoos and that Acensio did not have any.

The couple learned in 2018 that the federal government believed Acensio was a member of MS-13, the Salvadoran criminal gang that started in Los Angeles in the 1980s, according to court documents. That determination, the lawyers wrote, was based on the in-person interview, a criminal review and a review of his tattoos. Reviews of the visa denial by the consulate and the State Department did not “reveal any reason to change the inadmissibility decision.”

Eric Lee, his lead attorney, said tattoos are a common reason for visa denials. In Acensio’s case, Lee said he is not sure whether the consular official acted based solely on the tattoos or whether foreign databases had provided erroneous information about his background.

As the case progressed through the courts, Acensio and Muñoz led separate lives. He started a business in El Salvador offering tours on four-wheeled electric bicycles. The Daily Journal named her California Lawyer of the Year after helping secure a $23 million settlement against Walmart and other companies on behalf of warehouse workers.

She bought a house in Montebello and decorated it with photographs of her and Acensio, promising that one day it would be her home, too.

Acensio was separated not only from his wife, but also from his young daughter, who lives in Las Vegas and whom he visited frequently. She is now 17 years old and he misses watching her grow up.

Muñoz, 54, has also faced difficulties. He contracted COVID-19 and suffered brain fog and fatigue for several months. Her sister and her best friend died in 2021. She fell and tore a quadriceps tendon in 2022, was hospitalized for weeks, and still uses a cane to walk. Then her mother’s health began to deteriorate; She died a week before Christmas.

“It was very sad because I had built my life there with her,” Acensio said. “And I have never been there as her husband to help her through the most difficult times. I feel helpless.”

Still, the couple found ways to stay connected. They text throughout the day and frequently video call. They traveled together to Barcelona and their visits to El Salvador deepened their relationship with their family.

Muñoz visited Acensio at least three times a year until the pandemic began. In 2022 she received a Mexican visitor visa and they were able to meet in Tijuana. His last trip was in May.

El Salvador’s President Nayib Bukele launched a sweeping crackdown on the country’s powerful street gangs, making more than 70,000 arrests since 2022. Muñoz feared her husband would be caught in the net.

Acensio said police stopped him last year at a checkpoint, examined his body and let him go. If they believed he was involved with gangs, he said, they would have jailed him.

In October 2022, the Ninth Circuit Court of Appeals agreed that the federal government had violated Muñoz’s fundamental right to marriage and due process as a U.S. citizen by denying her husband a visa without explanation for three years. That decision marked the first time a federal judge rejected the government’s initial effort to dismiss a lawsuit citing non-consular review, Lee said.

Lee said he has since advised on similar cases, including four that resulted in family reunification. Earlier this year, an Arkansas judge cited Muñoz’s case in a ruling ordering the federal government to provide a better explanation for denying a visa to the foreign husband of a U.S. citizen.

Following the appeals court ruling, Acensio requested humanitarian parole, a form of temporary legal entry, to reunite with his wife. The State Department informed Muñoz’s lawyers that they would not oppose the request. Even so, it was denied last month.

In their petition to the Supreme Court, Biden administration lawyers echoed previous circuit court decisions in arguing that Muñoz’s right to marriage has not been violated because the government “has done nothing more than say that the residence of one of the spouses cannot be in the United States.”

Government lawyers argued that the Ninth Circuit’s ruling “represents a serious usurpation of the separation of powers. If allowed to remain in place, it will cause considerable disruption to American consulates.”

Heidi Altman, policy director at the National Immigrant Justice Center, who is co-counsel on the Supreme Court case, said the Acensio and Muñoz case is an example of the Biden administration moving away from its commitment to immigrants. It also shows how central family separation is to the U.S. immigration system, she said.

“Fighting this case means really investigating a particular way that family separation is regularly carried out by immigration officials,” who say that “there is no way to correct those mistakes so that family separation becomes permanent,” Altman said.

A similar case reached the Supreme Court in 2015. A man who had worked in Afghanistan’s social welfare department when the Taliban ruled the country was denied a green card after marrying a U.S. citizen, because the government reasoned that was involved in terrorist activities. .

In that case, the Ninth Circuit also ruled that the government did not offer a sufficiently legitimate reason for the denial. But the Supreme Court ultimately ruled against the couple.

The idea that Acensio is a gang member is offensive, Muñoz said. As a lawyer, she said, she is naturally skeptical. And as an officer of the court, she has sworn to uphold the Constitution.

“It breaks my heart that this country, my country, has taken so much from my husband and me,” she said.

Muñoz recalls a discrimination case he litigated in which he represented a Latino Deputy Sheriff of Los Angeles whom supervisors referred to as the “Mexican mafia.” The county responded by claiming he was in a gang of deputies based solely on his tattoo, she recalled.

“A tattoo in and of itself doesn’t mean someone is a bad cop, a bad person,” he said. “You can’t simplify it that much. We went to trial for that case. We won.”

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