FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SANDRA MUNOZ; LUIS ERNESTO No. 21-55365 ASENCIO-CORDERO, D.C. No. 2:17-cv- Plaintiffs-Appellants, 00037-AS v. ORDER UNITED STATES DEPARTMENT OF STATE; ANTONY J. BLINKEN, United States Secretary of State; BRENDAN O'BRIEN, United States Consul General, San Salvador, El Salvador, Defendants-Appellees. Filed July 14, 2023 Before: Mary M. Schroeder, Kermit V. Lipez, * and Kenneth K. Lee, Circuit Judges. Order; Dissent by Judge Bress; Dissent by Judge Bumatay * The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. 2 MUÑOZ V. DEP’T OF STATE SUMMARY ** 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 ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MUÑOZ V. DEP’T OF STATE 3 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. ORDER The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the …
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