Minnesota Law

Spring 2024
For the Record

Federal Immigration Litigation Clinic Files a U.S. Supreme Court Amicus Curiae Brief about Citizens’ Spousal Rights in Visa Matters

A team from Minnesota Law’s Federal Immigration Litigation Clinic file a U.S. Supreme Court amicus curiae brief about citizens’ spousal rights in visa matters

Seiko Shastri '21, Alex Lloyd '25, Sean Asselin '25, Nadia Anguiano '17. (Not pictured Meg Keiser '25).
Photo: Tony Nelson

Appearing at the U.S. Embassy in El Salvador in 2015, American citizen Sandra Muñoz and her husband, Luis Ernesto Asencio-Cordero, applied for a visa that would allow him to immigrate to the United States and become a lawful permanent resident. In short order and without explanation, they learned that the consular official denied Asencio-Cordero’s visa. Asencio-Cordero was forced to remain in El Salvador while Muñoz returned home. 

Three years later during litigation in federal court, the couple’s suspicions were confirmed: The U.S. Department of State believed that Asencio-Cordero was a gang member based in part on his four tattoos. His visa was denied even though he had no criminal record in the United States or El Salvador and never belonged to a gang. The denial has left Asencio-Cordero separated from his wife and minor U.S. citizen daughter since 2015—without a path to join them in the United States and become a legal resident.

Muñoz has been pursuing litigation since 2017 that the federal government violated her due process rights and constitutional rights to marriage. The U.S. Supreme Court heard Department of State v. Muñoz on April 23, after an appeal by the Biden administration. Fighting by her side are members of Congress, former consular, Department of State, and Department of Homeland Security officials, and a team from Minnesota Law’s Federal Immigration Litigation Clinic (FILC), part of the James H. Binger Center for New Americans.

The clinic played a central role in writing an amicus curiae brief that coalesces the expertise of eight professors and scholars from across the country. They bring deep knowledge in a range of subjects, including criminology, sociology, gangs and tattoos, and the intersection of criminal law and immigration law. In the brief, the FILC team gives a master class on the cultural significance of common tattoos in the Latinx community and why tattoos alone are an unreliable indicator of gang membership. They argue that the incorrect designation of gang membership disproportionately impacts Black and Latinx people, causing severe and long-lasting hardships—in many cases on U.S. citizens like Muñoz. 

“At a high level, the amicus brief seeks to educate the court about the racialized ways that culturally significant or widely used tattoos in the Latinx community are employed to erroneously implicate gang membership and criminality,” says FILC Director Nadia Anguiano ’17, associate clinical professor of law. “Erroneous decisions mislabeling individuals as gang members based on culturally significant tattoos separate families and impact U.S. citizens’ rights with potentially biased determinations.”

The Ninth Circuit Court of Appeals ruled that the government violated Muñoz’s constitutional rights to due process by failing to provide notice in a timely fashion and is infringing on her constitutional right to marriage. The Supreme Court will decide whether U.S. citizens nationwide have a constitutionally protected interest in the outcomes of spouses’ visas. It also will rule on what type of notice, if any, U.S. citizens should receive when their noncitizen spouse is denied a visa. 

The potential import of Asencio-Cordero’s tattoos—and the stakes associated with using them to designate him as a gang member—were at the forefront of the Justices’ minds at the oral arguments on Tuesday. Justice Amy Coney Barrett, for instance, questioned the government’s attorney whether there was “some process in the State Department for letting [the couple] make their case that [Asencio-Cordero’s] tattoos, for example, didn't show an affiliation with MS-13.” Justice Neil Gorsuch similarly focused on how Asencio-Cordero’s tattoos had formed the basis of the couple’s suspicions that Asencio-Cordero had been erroneously designated as a gang member. He then pressed counsel for Muñoz and Asencio-Cordero on whether any deprivation of notice had been harmless because it “appear[ed] your client understood, before [the litigation], that that was indeed the basis of the government's denial.”  

Seiko Shastri ’21, visiting assistant clinical professor of law and immigration litigation fellow for FILC, worked with Anguiano and clinic students on the amicus brief. It joined a chorus of 14 other briefs that illuminate many aspects of the case. They include challenges to the doctrine of consular nonreviewability, that a noncitizen may not pursue judicial review of a visa decision, and an argument that the government is obstructing members of Congress from performing constituent service by refusing to share information about visa denials. 

FILC’s brief is unique because it gives a forum for the team to weave in persuasive scholarly insights across an intersection of academic fields. “This brief was somewhat unusual in that it was not primarily legal analysis of case law and statutes,” Shastri says. “Instead, it highlights several different kinds of scholarly expertise that are absolutely relevant to how the law is interpreted but are maybe not at the forefront of justices’ minds,” such as the cultural significance of common tattoos among Latinx people.

For Shastri, writing the brief hit home how powerful federal immigration litigation cases can be. “In this kind of advocacy work, you are being challenged to think about the broader impacts of the cases you’re working on. It’s not just about the person,” says Shastri, who is a FILC alumna.

 A trio of 2L FILC students—Sean Asselin ’25, Meg Keiser ’25, and Alex Lloyd ’25—contributed by researching other legal opinions and academic perspectives to support the expertise shared by the brief’s co-signers. The team had just six weeks, spanning spring break, to research and write the brief, making it a whirlwind of learning about how to develop amicus briefs.

“Knowing that our brief is before the Supreme Court is very exciting,” says Lloyd, who will continue her FILC work this summer. “Operating in that context is really humbling, and I hope our work contributes to a favorable decision that can help prevent people from being in the same or similar situations where their rights are violated.”