Court Opinions: US Supreme Court Holds Citizens Don’t Have Liberty Interest in Noncitizen Spouses Living in the US

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Department of State v. Munoz

Sandra Muñoz is an American citizen. In 2010, she married Luis Asencio-Cordero, a citizen of El Salvador. The couple eventually sought to obtain an immigrant visa for Asencio-Cordero so that they could live together in the U.S. Muñoz filed a petition with U. S. Citizenship and Immigration Services to have Asencio-Cordero classified as an immediate relative. USCIS granted Muñoz’s petition, and Asencio-Cordero traveled to the consulate in San Salvador to apply for a visa. 

After conducting several interviews with Asencio-Cordero, a consular officer denied his application, citing a provision that renders inadmissible a noncitizen whom the officer “knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in” certain specified offenses or “any other unlawful activity.”

Asencio-Cordero guessed that he was denied a visa based on a finding that he was a member of MS–13, a transnational criminal gang.

So he disavowed any gang membership, and he and Muñoz pressed the consulate to reconsider the officer’s finding. When the consulate refused, they appealed to the Department of State, which agreed with the consulate’s determination. Asencio-Cordero and Muñoz then sued the Department of State and others claiming that it had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the unlawful activity bar. The district court granted summary judgment to the department, but the 9th Circuit Court of Appeals vacated the judgment, holding that Muñoz had a constitutionally protected liberty interest in her husband’s visa application. Because of that interest, the court said, the due process clause required the department to give Muñoz a reason for denying her husband’s visa. The court further held that by declining to give Muñoz more information earlier in the process, the department had forfeited its entitlement to insulate its decision from judicial review under the doctrine of consular nonreviewability.

The U.S. Supreme Court held that a citizen doesn’t have a fundamental liberty interest in a noncitizen spouse being admitted to the country.  

The 9th Circuit’s judgment was reversed and the case was remanded.

Justice Amy Coney Barrett delivered the opinion of the court, in which Chief Justice John Roberts Jr. and Justices Clarence Thomas, Samuel Alito Jr. and Brett Kavanaugh joined. Justice Neil Gorsuch filed an opinion concurring in the judgment. Justice Sonia Sotomayor filed a dissenting opinion, in which Justices Elena Kagan and Ketanji Brown Jackson joined.

The dissenting justices asserted “The majority could have resolved this case on narrow grounds under longstanding precedent.” The justices went on to note that after protracted litigation, the government explained that it denied Asencio-Cordero a visa because of its belief that he had connections to MS–13. 

The dissent stated the court “holds that Muñoz’s right to marry, live with, and raise children alongside her husband entitles her to nothing when the Government excludes him from the country. Despite the majority’s assurance two Terms ago that its eradication of the right to abortion ‘does not undermine … in any way’ other entrenched substantive due process rights such as ‘the right to marry,’ ‘the right to reside with relatives,’ and ‘the right to make decisions about the education of one’s children,’ the Court fails at the first pass.”

United States v. Rahimi

Zackey Rahimi was indicted under a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm. A prosecution under Section 922(g)(8) may proceed only if the restraining order meets certain statutory criteria. In particular, the order must either contain a finding that the defendant “represents a credible threat to the physical safety” of his intimate partner or his or his partner’s child or explicitly prohibit the use, attempted use or threatened use of physical force against those individuals. 

Rahimi concedes here that the restraining order against him satisfies the statutory criteria, but argues that on its face Section 922(g)(8) violates the Second Amendment. The district court denied Rahimi’s motion to dismiss the indictment on Second Amendment grounds. 

While Rahimi’s case was on appeal, the U.S. Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen. In light of Bruen, the 5th Circuit Court of Appeals reversed, concluding that the government hadn’t shown that Section 922(g)(8) “fits within our Nation’s historical tradition of firearm regulation.” 

The U.S. Supreme Court held that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.

The high court reversed and remanded.

Chief Justice John Roberts Jr. delivered the opinion for the court, in which Justices Samuel Alito Jr., Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Kentanji Brown Jackson joined. Sotomayor filed a concurring opinion, in which Kagan joined. Gorsuch, Kavanaugh, Barrett and Jackson filed concurring opinions. Justice Clarence Thomas filed a dissenting opinion

In his dissenting opinion, Thomas wrote that after Bruen, the court’s directive on the constitutionality of the Second Amendment stipulated that “a firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation.”

Smith v. Arizona

The Sixth Amendment’s confrontation clause guarantees a criminal defendant the right to confront the witnesses against him. In operation, the clause protects a defendant’s right of cross-examination by limiting the prosecution’s ability to introduce statements made by people not in the courtroom. The clause bars the admission at trial of an absent witness’s statements unless the witness is unavailable and the defendant had a prior chance to subject her to cross-examination. This prohibition applies only to testimonial hearsay and in that two-word phrase are two limits. 

First, in speaking about witnesses — or those who bear testimony — the clause confines itself to testimonial statements, a category the U.S. Supreme Court has variously described. Second, the clause bars only the introduction of hearsay — meaning, out-of-court statements offered “to prove the truth of the matter asserted.” 

Relevant here, the confrontation clause applies in full to forensic evidence. For example, in Melendez-Diaz v. Massachusetts, prosecutors introduced “certificates of analysis” stating that lab tests had identified a substance seized from the defendant as cocaine. The court held that the defendant had a right to cross-examine the lab analysts who prepared the certificates. In Bullcoming v. New Mexico, the court relied on Melendez-Diaz to hold that a state couldn’t introduce one lab analyst’s written findings through the testimony of a substitute analyst. Finally, in Williams v. Illinois, the court considered a case where one lab analyst related an absent analyst’s findings on the way to stating her own conclusion. The state court held that the testimony didn’t implicate the confrontation clause because the absent analyst’s statements were introduced not for their truth, but to explain the basis for the testifying expert’s opinion. Five members of the high court rejected that reasoning. But because one of those five affirmed the state court on alternative grounds, Williams lost.

This case presents the same question on which the court fractured in Williams. 

Arizona law enforcement officers found petitioner Jason Smith with a large quantity of what appeared to be drugs and drug-related items. Smith was charged with various drug offenses, and the state sent the seized items to a crime lab for scientific analysis. Analyst Elizabeth Rast ran forensic tests on the items and concluded that they contained usable quantities of methamphetamine, marijuana and cannabis. Rast prepared a set of typed notes and a signed report about the testing. The state originally planned for Rast to testify about those matters at Smith’s trial, but Rast stopped working at the lab before trial. So the state substituted another analyst, Greggory Longoni, to “provide an independent opinion on the drug testing performed by Elizabeth Rast.” 

At trial, Longoni conveyed to the jury what Rast’s records revealed about her testing, before offering his independent opinion of each item’s identity. Smith was convicted. On appeal, he argued that the state’s use of a substitute expert to convey the substance of Rast’s materials violated his confrontation clause rights. The Arizona Court of Appeals rejected Smith’s challenge, holding that Longoni could constitutionally present his own expert opinions based on his review of Rast’s work because her statements were then used only to show the basis of his opinion and not to prove their truth.

The U.S. Supreme Court held that when an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. 

The court noted that all of Longoni’s opinions were predicated on the truth of Rast’s factual statements. And the jury could credit those opinions because it accepted the truth of what Rast reported about her lab work. The court found the state’s basis evidence — more precisely, the truth of the statements on which its expert relied — propped up the whole case; yet the maker of the statements was not in the courtroom, and Smith could not ask her any questions.

The lower court’s decision was vacated and the case was remanded.

Justice Elena Kagan delivered the opinion of the court, in which Justice Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson joined, and in which Justices Clarence Thomas and Neil Gorsuch joined as to Parts I, II and IV. Thomas and Gorsuch filed opinions concurring in part. Justice Samuel Alito Jr. filed an opinion concurring in the judgment, in which Chief Justice John Roberts Jr. joined.

Erlinger v. United States

Paul Erlinger pleaded guilty to being a felon in possession of a firearm. At sentencing, the judge found Erlinger eligible for an enhanced sentence under the Armed Career Criminal Act, which increases the penalty for a conviction from a maximum sentence of 10 years to a mandatory minimum sentence of 15 years when the defendant has three or more qualifying convictions for offenses committed on different occasions.

The 7th Circuit Court of Appeals held in unrelated decisions that two of the offenses on which the government relied for Erlinger’s sentence enhancement no longer qualified as ACCA predicate offenses.

The district court vacated Erlinger’s sentence and scheduled resentencing. At the resentencing hearing, prosecutors again pursued an ACCA sentence enhancement based on a new set of 26-year-old convictions for burglaries committed by Erlinger over several days. Erlinger protested that the burglaries were part of a single criminal episode and didn’t occur on separate occasions, as required by ACCA. Moreover, Erlinger argued that the question of whether he committed these prior burglaries during a single episode or on distinct occasions required an assessment of the facts surrounding those offenses and that the Fifth and Sixth Amendments required that a jury make that assessment. The district court rejected Erlinger’s request for a jury and issued a 15-year enhanced sentence.

On appeal, the government confessed an error. Pointing to the U.S. Supreme Court’s recent decision in Wooden v. United States, which acknowledged that an ACCA occasions inquiry can be intensely factual, the government admitted that given the factual nature of the inquiry and its impact on a defendant’s sentence, the Constitution requires a jury to decide unanimously and beyond a reasonable doubt whether Erlinger’s prior offenses were committed on different occasions. This high court granted certiorari and appointed counsel to defend the judgment.

The U.S. Supreme Court held that the Fifth and Sixth Amendments require a unanimous jury to determine beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for ACCA purposes. 

The ruling was vacated and the high court remanded the case.

Justice Neil Gorsuch delivered the opinion of the court, in which Chief Justice John Roberts Jr. and Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett joined. Roberts and Thomas filed concurring opinions. Justice Brett Kavanaugh filed a dissenting opinion, in which Justice Samuel Alito Jr. joined, and in which Justice Ketanji Brown Jackson joined except as to Part III. Jackson also filed a dissenting opinion.

In Kavanaugh’s dissenting opinion, he noted, “In my view, this Court’s precedents establish that a judge may make the different-occasions determination. Because the court today concludes that only a jury may make the different-occasions determination, I respectfully dissent.” 

In Part III of Kavanaugh’s dissent, the justices asserted that “Even accepting the Court’s interpretation of the Sixth Amendment as to the different-occasions issue, Erlinger’s sentence should be affirmed. As the Government says, any error was harmless.”

Jackson wrote, “Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority when it empowers judges to make factual determinations related to punishment and directs that a particular sentencing result follow from such findings.” She went on to state that she thought the court incorrectly decided Apprendi v. New Jersey, and wrote that, “Because the Court pushes the flawed Apprendi rule past where it needs to go, and, incidentally, establishes a procedural requirement that is likely impossible to implement in real life, I respectfully dissent.” 

Texas v. New Mexico

Approved by Congress in 1938, the Rio Grande Compact is an interstate agreement that apportions the waters of the Rio Grande River among Colorado, New Mexico and Texas. The compact relies on the U.S. Bureau of Reclamation’s operation of an irrigation system called the Rio Grande Project. 

Under the compact, New Mexico must deliver a certain amount of water to the Elephant Butte Reservoir, located in southern New Mexico. Then, in accordance with agreements called the Downstream Contracts, the bureau releases specified amounts of water from the reservoir for delivery to two water districts in New Mexico and Texas.

In 2013, Texas filed suit in the U.S. Supreme Court against the compact’s other two signatory states, alleging that excessive groundwater pumping in New Mexico was depleting supplies of Rio Grande water bound for Texas. The U.S. sought to intervene, alleging essentially the same claims as Texas. In 2018, the high court allowed the U.S. to intervene, holding that the U.S. “has an interest in seeing that water is deposited in the [Elephant Butte] Reservoir consistent with the Compact’s terms,” as that “is what allows the United States to meet its duties under the Downstream Contracts, which are themselves essential to the fulfillment of the Compact’s expressly stated purpose.” 

Texas and New Mexico sought approval of a proposed consent decree to resolve this case and codify a methodology for allocating each state’s share of the Rio Grande’s waters. A special master recommended that the Supreme Court approve the consent decree, but the U.S. objected and filed an exception to the report.

The U.S. Supreme Court held that because the proposed consent decree would dispose of the U.S.’s compact claims without its consent, the states’ motion to enter the consent decree is denied. 

The high court ruled the exception is sustained.

Justice Ketanji Brown Jackson delivered the opinion of the court, in which Chief Justice John Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan and Brett Kavanaugh joined. Justice Neil Gorsuch filed a dissenting opinion, in which Justices Clarence Thomas, Samuel Alito Jr. and Amy Coney Barrett joined.

In the dissent, the justices explained, “The Court’s decision is inconsistent with how original jurisdiction cases normally proceed. It defies 100 years of this Court’s water law jurisprudence.” The dissenting justices assert the court should have accepted the special master’s recommendation, which they noted placed the power with states to govern the water rights of users in their jurisdictions. 

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