SANDRA MUNOZ, ET AL V. DOS, ET AL, No. 21-55365 (9th Cir. 2023)
Annotate this CaseThe Ninth Circuit denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration, in a case in which the panel held that: (1) where the adjudication of a non-citizen’s visa application implicates a citizen’s constitutional rights, due process requires that the government provide timely and adequate notice to the citizen of a decision that will deprive the citizen of that interest; and (2) because the government failed to provide timely notice here, it was not entitled to summary judgment based on the doctrine of consular nonreviewability.
Court Description: Immigration The panel denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration, in a case in which the panel held that: (1) where the adjudication of a non-citizen’s visa application implicates a citizen’s constitutional rights, due process requires that the government provide timely and adequate notice to the citizen of a decision that will deprive the citizen of that interest; and (2) because the government failed to provide timely notice here, it was not entitled to summary judgment based on the doctrine of consular nonreviewability.
Dissenting from the denial of rehearing en banc, Judge Bress, joined by Judge Lee, wrote that the court seriously overstepped its bounds in requiring the government, as a matter of due process, to provide its reasons for denying a visa within a “reasonable” time. When, as here, there is no showing of bad faith and the government has provided a facially legitimate and bona fide reason for denying a visa, there is no requirement that it provide the valid reason within a set time.
Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, Ikuta, Bennett, R.
Nelson, Bade, and VanDyke, and joined by Judges Collins, Lee, and Bress in Part III-B, wrote that the panel’s opinion violated the separation of powers in three distinct ways: (1) by recognizing that citizens have a “liberty interest” in their spouse’s visa denial; (2) by holding that the government’s citation of the “unlawful activity” bar to admission is not enough to support a visa denial and that the government must instead always disclose the facts underlying such a denial; and (3) by creating a vague “timeliness” requirement for the doctrine of consular nonreviewability. In Part III-B, Judge Bumatay explained that due process does not require the court’s new timeliness requirement.
This opinion or order relates to an opinion or order originally issued on October 5, 2022.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.