[powerbroker]

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.

[jalapenos]

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

[p1esk]

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.”

[sveiss]

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