Two weeks ago, the Ninth Circuit denied rehearing en banc of a divided panel decision in Muñoz v. Department of State. In that panel decision last October, the panel majority invented a rule that the government had to provide notice “within a reasonable time period” of its reason for denying a visa.
In dissent from the denial of rehearing en banc, ten Ninth Circuit judges object that this “novel ‘timeliness’ requirement has no basis in law.”
As Judge Bumatay explains in his dissent, under the doctrine of consular nonreviewability, the federal government generally doesn’t need to justify its decisions in court. While there is an exception when a visa denial burdens the constitutional right of a citizen, that narrow exception is “cabined”: “even when a constitutional right is implicated, the government only needs to give a ‘facially legitimate and bona fide reason’ for the visa denial.”
Bumatay argues, as Judge Kenneth Lee did in his dissent from the panel opinion, that a judicially imposed time limit on the government’s provision of a reason for a visa denial “has no basis in the text or history of the Constitution, Supreme Court precedent, or statute” and conflicts with separation-of-powers principles that accord Congress broad discretion in this realm. He also argues that “as a practical matter, this new speedy-notice requirement will be an administrative nightmare.”
Bumatay also complains of the “heightened notice” that the panel opinion requires of the factual basis for the denial: “aside from this case, no federal court has ever ruled that a statutory citation fails to provide sufficient factual predicates to satisfy the government’s notice obligations.” And he further objects to the panel’s holding that a U.S. citizen has a “liberty interest” in a spouse’s visa denial. (Two of the nine judges who agree with him on the unsoundness of the timeliness rule find it unnecessary to reach these issues, even as they observe that these “may well be other reasons why the plaintiffs’ challenge in this case should fail.”)
I assume that the Biden administration will file a petition for certiorari. Look for the Supreme Court to grant the petition and overturn the Ninth Circuit.