Supreme Court:U.S. Citizens Don't Have Right to Bring Noncitizen Spouses to U.S. | Hacker News Reader

Supreme Court:U.S. Citizens Don't Have Right to Bring Noncitizen Spouses to U.S.

wsj.com

55 pointschirau17 comments

It is funny to me how illegal immigration keeps getting the spotlight while legal immigration is left in the dust.

It is a long and arduous process to get a green card in the US if one is trying to do it by the book. Even a US-educated PhD who has been working and paying taxes in the US for a decade would still have problem getting recognized. Meanwhile, half of the US citizens can't do basic math.

Funny how things work.

Wealthy countries almost universally depend on immigrants in the low end of the job market. On the average, the people able and willing to migrate to another country are cheaper, better motivated, and more talented than the low end of the domestic labor pool. Without immigrants, the society would not work nearly as well and many things would be more expensive. While the US has not created sufficient legal pathways for immigration, everyone is willing to turn a blind eye to illegal immigration, as long as it doesn't get too disruptive.

Skilled and educated immigrants, on the other hand, are not essential. Their presence may be beneficial to the economy, but things won't fall apart without them. At worst, the economy will be a bit less competitive.

Japan and Korea are wealthy and they don't do that. Austria and Switzerland probably don't either.

Japan and Korea are the main exceptions. In Austria and Switzerland, over 26% and over 37% of the population are first or second generation immigrants. Switzerland also has plenty of foreign workers who live on the other side of the border.

I got curious about Switzerland, so I looked on Wikipedia, which says, "As of 2023, resident foreigners made up 26.3% of Switzerland's population. Most of these (83%) were from European countries. Italy provided the largest single group of foreigners, providing 14.7% of total foreign population, followed closely by Germany (14.0%) . . ."

https://en.wikipedia.org/wiki/Switzerland#Immigration

So, they have a lot of immigrants, but they're clearly giving preference to immigrants from cultural backgrounds very similar to them.

Italy and Germany (and France) are also neighboring countries with a common language (IT less so than DE and FR).

Looking at Canada, though, doesn't it get easier to immigrate the better skilled and educated you are?

Link to SCOTUS document, it’s quite short and readable: https://www.supremecourt.gov/opinions/23pdf/23-334_e18f.pdf

Here’s one of the key passages: “ Under the doctrine of consular nonreviewability, an executive officer's decision "to admit or to exclude an alien" "is final and conclu-sive," United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 547, and not subject to judicial review in federal court.”

Wow, I didn’t know the consuls executive officers had this power

> Wow, I didn’t know the consuls executive officers had this power

Without it, every single person turned down for a US visa would appeal (Why not? They have nothing to lose). The principle is based on two fundamental notions:

* Non-US citizens, not on US soil, do not have standing to use the US legal system.

* More generally, a country can reject entry by anyone for any reason.

The first is not strictly true. See eg the Alien Tort Statute.

Every consular officer who does interviews hold this power.

Their words are literal laws backed by the fulll authority of the US, irrevocable and undeniable. Millions of people applying for a visa in the country they work in is subjected to their judgement without any recourse. There is no questioning their authority or their decisions even if everything they said is based on a passing whim. No, I am not exaggerating. Their whims is reason official enough to deny a person coming to the US and potentially changing their entire life forever.

Imagine that amount of power vested in what amount to a politician in training.

https://archive.ph/RFuAE

I would have rephrased the title of the article:

"US Supreme Court: Immigration to US is still a privilege, not a right. A US citizen has a right to marry a GS-13 gang member, but the right does not extend to giving him a US immigrant visa."

So given the following:

The ruling comes just days after President Biden created a new program essentially easing a path to permanent residency for spouses of U.S. citizens who are in the country illegally.

...it appears that the undocumented spouse simply has to be in the U.S. illegally, for all his U.S. citizenship problems to disappear. So 'nonreviewability' has been defused, with a quick trip across the Rio Grande.

Like a joke I once heard: "I came here legally!... and I'll never make that mistake again"

President Biden created a new program

What new program?

EDIT: found it: https://www.cbsnews.com/amp/news/biden-immigration-program-u...

Key information: “An immigrant who marries a U.S. citizen is generally eligible for a green card. But current federal law requires immigrants who entered the U.S. illegally to leave the country and re-enter legally to be eligible for a green card. Leaving the U.S. after living illegally in the country for certain periods of time can trigger a 10-year ban, leading many mixed-status families to not pursue this process.”

Not really.

Immigrant visa issuance is discretionary and unreviewable, as this judgment has just confirmed.

Adjustment of status, which is the process to obtain permanent residency within the US, is also discretionary for family-based applicants. The USCIS policy manual[1] lays out what "discretionary" means; roughly, it's a balancing test where the positive factors need to outweigh the negatives, and in the absence of any factors in either direction, the fact that someone meets the minimum requirements for a benefit counts as a positive.

The person in this case thinks they're suspected of being a member of the MS–13 gang, and was denied the visa on the grounds the consular officer believed he sought to "enter the United States to engage [...] in certain specified offenses or any other unlawful activity"[3] (internal quotes removed).

Those facts wouldn't go away if this individual applied for adjustment within the country. USCIS would almost certainly decide this case warrants an unfavorable exercise of discretion and deny the I-485 application for adjustment.

As for the new policy[2]: there's a procedural bar to adjustment of status for people who entered without inspection. The new policy offers a route for some people to apply for parole-in-place--which has been available to undocumented spouses of military members for well over a decade--which removes the procedural bar to adjustment. The discretionary test above would still apply.

The new parole-in-place policy also has a discretionary test, and applicants must not "constitute a threat to national security or public safety".

So this person is ineligible for an immigrant visa on security grounds; would also be ineligible on procedural grounds if they crossed the Rio Grande; would still be ineligible on security grounds anyway; and doesn't qualify for the new relief to begin with!

The only benefit they would gain by crossing the Rio Grande would be the ability to spend a lot of money on further court appeals that would ultimately be denied; consular non-reviewability only applies abroad. But the new policy doesn't affect that one way or the other: anyone on US soil is protected by the Constitution and has recourse to the courts.

[1] https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-...

[2] https://www.uscis.gov/keepingfamiliestogether

[3] https://www.supremecourt.gov/opinions/23pdf/23-334_e18f.pdf

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