Case Update (21 June 2024): Dept of State v. Munoz; there is no constitutional liberty interest for a noncitizen spouse to legally immigrate to USA to reside with US citizen spouse

The U.S. Supreme Court issued an opinion on June 21, 2024 that implicates international family law, specifically the right of a noncitizen spouse to legally immigrate to the United States to reside with their U.S. citizen spouse (which the majority believes is an argument beyond the “fundamental right to marriage”). In this case, a Salvadoran citizen applied for a visa to enter the United States to live with his Wife, a U.S. citizen, but was denied because he was found by the U.S. to be affiliated with MS-13, a criminal gang. The Wife filed a challenge to the consular officer’s decision to deny the visa, arguing she has a constitutional “liberty” interest, protected by the 5th Amendment of the U.S. constitution, to live with her noncitizen spouse in the United States; that denying her husband’s visa deprived her of this interest, triggering her right to due process; that the consular officer denied her right to due process when it provided no information as to why his visa was denied; and, in turn, even though visa denials are unreviewable by courts, this due process violation triggers her right to seek judicial review.

The Supreme Court concluded that the U.S. citizen Wife could not even meet the threshold finding that she has a constitutional right to live with her noncitizen spouse in the United States. Justice Amy Coney Barrett opined that to establish this finding, the wife needed to demonstrate that the right she claimed is “deeply rooted in the Nation’s history and tradition.” Justice Coney Barrett concluded that Congress has a longstanding regulation of spousal immigration, including bars on admissibility, and therefore, the history and tradition actually “cuts the other way.” The court noted that there is a streamlined visa process for those who have immediate relatives in the United States. That is the case here. The process includes written materials and interviews with a consular officer abroad to obtain a visa. At trial, the district court reviewed certain information, in camera, that indicated that the Husband was a member of MS-13. It therefore granted summary judgment to the U.S. Department of State. The 9th Circuit, however, vacated and remanded, holding that the wife, as a U.S. citizen, had a constitutionally protected liberty interest in her husband’s visa application. “Visa denials are insulated from judicial review by the doctrine of consular nonreviewability.” The 9th Circuit held that “by declining to give [Wife] more information earlier in the process, the State Department had forfeited its entitlement ‘to shield its visa decision from judicial review’.” The Supreme Court granted the State Department’s petition for a writ of certiorari.

In reviewing the history of certain immigration statutes, the court concluded “while Congress has made it easier for spouses to immigrate, it has never made spousal immigration a matter of right.” Following from the State Department’s argument, the court also questioned a spouse’s claim to a “procedural due process right in someone else’s legal proceeding” and how that would “have unsettling collateral consequences.” Akin to a slippery slope argument, the court followed the Wife’s logic and asked whether a wife could “challenge her husband’s ‘assignment to a remote prison or to an overseas military deployment, even though prisoners and service members themselves cannot bring such challenges?’” or “Could a citizen assert procedural rights in the removal proceeding of her spouse?” While the Wife here suffered harm, that harm “does not give her a constitutional right to participate in his [her husband’s] consular process.”

The 9th Circuit is reversed and remanded.

Justice Gorsuch concurred, stating that “[o]ver the course of this litigation, the United States has given [Wife] what she requested”, i.e., the factual basis for its decision to deny her husband a visa. Further, “the government has assured [Wife] that she has a chance to use and respond to that information. She can again seek her husband’s admission to this country, the government says - and this time she will be armed with an understanding of why the government denied the last application.” Therefore, Gorsuch didn’t even get to the analysis of the majority, and did not need to determine whether there is a constitutional right.

Justices Sotomayor, joined by Kagan, and Jackson, dissented, stating “the majority today chooses a broad holding on marriage over a narrow one on procedure. It holds that [Wife’s] right to marry, live with, and raise children alongside her husband entitles her to nothing when the Government excludes him from the country.” “Because, to me, there is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision, I respectfully dissent.” The dissent elaborated on the facts in this case - that the Husband had been living in the USA with the Wife, but, because he “entered without ‘inspection’”, his immigration status could not be adjusted while he was sitting in the United States, and so he had to leave, and return to his country of origin, and then go through a different process, meeting with a consular officer. It compared the DHS process with the Dept of State process: “[e]ven though DHS officers and consular officers make admission determinations under the same substantive laws…, in reality, a noncitizen seeking admission via consular processing faces a far higher risk of arbitrary denial with far less opportunity for review than a noncitizen seeking admission from DHS.” Whereas DHS includes levels of review, including an immigration court, or a Board of Immigration Appeals, there is no such review when a consular officer denies a visa application, and amicus curiae in this case, a group of former consular officers, indicated that “decisions often ‘rely on stereotypes or tropes,’ even ‘bias or bad faith.’” “It was only after [Wife] and her husband sued the Government… that they finally received the factual basis for denial.” “Even though the Government provided a ‘facially legitimate and bona fide’ reason, that reason was not ‘timely’ enough to satisfy constitutional due process requirements.” The dissent was particularly concerned that the opinion goes well beyond the procedural issue pinpointed by Justice Gorsuch. The dissent is clearly concerned that this opinion starts the process of eroding a fundamental interest in the right to marry. It qualified the Wife’s argument here different than Justice Coney Barrett and says that the Wife “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.” “The majority’s failure to respect the right to marry in this country consigns U.S. citizens to rely on the fickle grace of other countries’ immigration laws to vindicate one of the ‘basic civil rights of man’ and live alongside their spouses.” The dissent made reference to same sex marriage, which remains illegal in some other countries.