Tattoogate

Not all due process is the same due process

It’s hard for anyone who has not sat through law school civil procedure to understand the centrality of procedure over substance is in the administration of law.

Due process is the right to notice and be heard. Notice requirements can vary from an ad in the legal notices section of the classifieds, an eviction notice on the door (while you are out of town) or an indictment (whether summary or a “talking indictment,” laying out the case in detail). Where to be heard can vary from a trial court all the way down to a consular officer abroad. The right to appeal might be to a court of appeals or an administrative appeals board. Or the decision may be final and unappealable. Depends.

In a criminal trial, to present evidence to a jury that a defendant had a tattoo on her chest and expert testimony to establish that such a tattoo was a distinguishing mark of some organization and association with it is possible, given relevancy objections. Of course, if the tattoo is on the face even if it is not relevant to the case, there is nothing to prevent the jury from being influenced by it.

This brings us to the sad case of Mr. and Mrs. Munóz. He was present in the United States without authorization when they were married in 2010. She is a US citizen. Time passes and they decide it would be a good idea to regularize his status and they embarked upon the required process using her expertise as an immigration lawyer. Eventually, they were told that he would have to return to El Salvador and make application there, which he did.

The consular official reviewing the application rejected Mr. Munóz on the basis that he posed the risk of engaging in criminal activity if admitted. The basis was tattoos that, in the judgement of the consular officer, indicated gang membership. No other evidence in the record indicated that Mr. Munóz had ever been engaged in criminal activity in the United States or elsewhere.

In the United States due process for such a determination would have included a right of appeal where, at the very least, the government would have to explain its reasoning. Because the State Department made its determination abroad, however, it was unappealable. Mrs. Munóz unsuccessfully appealed on the basis of deprivation of her liberty interest in marriage and lost 6-3 in SCOTUS. I recommend reading the dissent first, starting at page 25 of the opinion. Then read the syllabus at the beginning before the majority opinion following.

The essence of the opinion is that although Muñoz has a liberty right to marriage and the operation of the immigration law burdened that right, she had no due process right that had been violated. The Court is traditionally very deferential to the political branches in questions involving the border and any different result would require legislation or possible administrative adjustment.

What does this mean for the victims of the dragnet? A best a Pyrrhic victory. Secretary Rubio will sent consular officials to the El Salvador prison to inspect tattoos and then deny re-admission.

Now, I’m a Boomer and I don’t get tattoos, I don’t know how to read them. So, I’m never going to get one. But if I were, I’d avoid even the most innocuous.

Yes, it’s AI. So block me, already.