Supreme Court Rules Spousal Immigration Is Not a Right

In Department of State v. Muñoz, 602 U.S. ____ (2024), the U.S. Supreme Court held that a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country. Critics of the immigration decision, including the Court’s three liberal justices, maintain that the decision chips away at the same-sex marriage rights guaranteed under Obergefell v. Hodges, 576 U.S. 644 (2015).

Facts of the Case

Sandra Muñoz, an American citizen, married Luis Asencio-Cordero, a citizen of El Salvador, in 2010. The couple eventually sought to obtain an immigrant visa for Asencio-Cordero so that they could live together in the United States. Muñoz filed a petition with U.S. Citizenship and Immigration Services to have Asencio-Cordero classified as an immediate relative. USCIS granted Muñoz’s petition, and Asencio-Cordero traveled to the consulate in San Salvador to apply for a visa.

After conducting several interviews with Asencio-Cordero, a consular officer denied his application, citing 8 USC §1182(a)(3)(A)(ii), a provision that renders inadmissible a noncitizen whom the officer “knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in” certain specified offenses or “any other unlawful activity.” Asencio-Cordero guessed that he was denied a visa based on a finding that he was a member of MS–13, a transnational criminal gang. He subsequently disavowed any gang membership, and he and Muñoz pressed the consulate to reconsider the officer’s finding. When the consulate refused, they appealed to the Department of State, which agreed with the consulate’s determination.

Asencio-Cordero and Muñoz then sued the Department of State and others (collectively, State Department), claiming that it had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the “unlawful activity” bar. The District Court granted summary judgment to the State Department, but the Ninth Circuit Court of Appeals vacated the judgment. It held that Muñoz had a constitutionally protected liberty interest in her husband’s visa application. Because of that interest, the court said, the Due Process Clause required the State Department to give Muñoz a reason for denying her husband’s visa.

Supreme Court’s Decision

By a vote of 6-3, the Supreme Court reversed. It held that “a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”Justice Amy Comey Barrett wrote on behalf of the majority.

As Justice Barrett explained, under the doctrine of consular nonreviewability, an executive officer’s decision “to admit or to exclude an alien” “is final and conclusive,” and not subject to judicial review in federal court. The Supreme Court has recognized a narrow exception in cases “when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen.” In such cases, the question is whether the executive official gave a “facially legitimate and bona fide reason” for denying the visa.

In this case, the majority found that while Muñoz invokes the “fundamental right to marriage,” she actually claims something different. As Justice Barrett wrote:

Muñoz invokes the “fundamental right of marriage,” but the State Department does not deny that Muñoz (who is already married) has a fundamental right to marriage. Muñoz claims something distinct: the right to reside with her noncitizen spouse in the United States. That involves more than marriage and more than spousal cohabitation—it includes the right to have her noncitizen husband enter (and remain in) the United States.

The majority went on to emphasize that Congress has “never made spousal immigration a matter of right.”Moreover, Muñoz’s claim to a procedural due process right in someone else’s legal proceeding would have unsettling collateral consequences. “Muñoz’s position would usher in a new strain of constitutional law, for the Constitution does not ordinarily

prevent the government from taking actions that “indirectly or incidentally” burden a citizen’s legal rights,” Justice Barrett wrote.

Justice Sonia Sotomayor authored a dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. Justice Sotomayor argued that the majority’s decision was unnecessarily broad. She further maintained that decisions impacting the right to marriage must be “facially legitimate and bona fide.”

“Muñoz does not argue that her marriage gives her the right to immigrate her husband,” Justice Sotomayor wrote. “She instead advances the reasonable position that blocking her from living with her husband in the United States burdens her right ‘to marry, establish a home and bring up children’ with him.”