ABA files amicus briefs in visa denial, death penalty cases

The American Bar Association has filed two amicus briefs with the U.S. Supreme Court, one supporting a U.S. citizen whose noncitizen spouse was denied entry into the U.S. based on a catch-all federal statute and the other on behalf of a Texas death row inmate convicted, in part, based on unreliable DNA evidence.

On March 28, the ABA asked the court to require the U.S. government to provide a factual basis beyond citation of a federal immigration statute to satisfy due process requirements when a consular officer denies a visa application of a U.S. citizen’s noncitizen spouse. The statute makes an applicant inadmissible based on a belief that the applicant will enter the U.S. to engage in unspecified “unlawful activity” and does not require disclosure of any specific or “secret evidence.”

“Merely notifying visa applicants that they were deemed inadmissible … because they might engage in some unspecified ‘other unlawful activity’ does not suffice to provide the process that is due,” the ABA brief explained. “Permitting the government to rely solely on this provision would authorize the government to rely on ‘secret evidence’ in making inadmissibility determinations — evidence unavailable to the applicant, their citizen-spouse and their attorney tasked with counseling them on the legal ramifications of their decisions.”

In the Texas death penalty brief, the ABA urged the court on March 27 to reconsider the case of defendant Areli Escobar, who was convicted on DNA evidence and testimony from a police laboratory that was later deemed unreliable by the state. In 2022, the Texas Court of Criminal Appeals denied relief to Escobar, even though a state habeas court had determined that reliability problems at the police laboratory that processed the DNA evidence called into question whether Escobar received a fair trial. The state agreed with Escobar’s request for relief and confessed error in the case.

When the U.S. Supreme Court initially reviewed the case two years ago, the ABA filed an amicus brief in support of Escobar, citing its Criminal Justice Standards on DNA Evidence. Then, the Supreme Court vacated the ruling by the Court of Criminal Appeals and remanded the case for further consideration noting the state’s confession of error. But on remand, the Texas court again denied Escobar relief.

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