(Slip Opinion) OCTOBER TERM, 2023 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

DEPARTMENT OF STATE ET AL. v. MUÑOZ ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT 

No. 23–334. Argued April 23, 2024—Decided June 21, 2024 

Respondent Sandra Muñoz is an American citizen. In 2010, she married 

Luis Asencio-Cordero, a citizen of El Salvador. 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. See 8 U. S. C. §§1151(b)(2)(A)(i), 

1154(a)(1)(A). USCIS granted Muñoz’s petition, and Asencio-Cordero 

traveled to the consulate in San Salvador to apply for a visa. See 

§§1154(b), 1202. After conducting several interviews with AsencioCordero, a consular officer denied his application, citing

§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.

So he 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 vacated the judgment, holding that 

Muñoz had a constitutionally protected liberty interest in her husband’s visa application. Because of that interest, the court said, the 
 

 

 

 

2 DEPARTMENT OF STATE v. MUÑOZ 

Syllabus 

Due Process Clause required the State Department to give Muñoz a 

reason for denying her husband’s visa. The court further held that by 

declining to give Muñoz more information earlier in the process, the

State Department had forfeited its entitlement to insulate its decision

from judicial review under the doctrine of consular nonreviewability. 

Held: A citizen does not have a fundamental liberty interest in her 

noncitizen spouse being admitted to the country. Pp. 5–18.

(a) Under the doctrine of consular nonreviewability, an executive officer’s decision “to admit or to exclude an alien” “is final and conclusive,” United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 547, 

and not subject to judicial review in federal court. This Court has assumed a narrow exception in cases “when the denial of a visa allegedly

burdens the constitutional rights of a U. S. citizen.” Trump v. Hawaii, 

585 U. S. 667, 703. In that event, the Court has considered whether 

the executive official gave a “facially legitimate and bona fide reason”

for denying the visa. Kerry v. Din, 576 U. S. 86, 103–104. 

Asencio-Cordero cannot invoke the exception himself, thus Muñoz 

must assert that the denial of her husband’s visa violated her constitutional rights, thereby enabling judicial review. She argues that the

State Department abridged her fundamental right to live with her 

spouse in her country of citizenship without affording her due process. 

Pp. 5–8.

(b) Among other things, the Due Process Clause “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 

U. S. 702, 720. When a fundamental right is at stake, the government

can act only by narrowly tailored means that serve a compelling state

interest. To identify an unenumerated right, the Court follows the 

two-step inquiry in Glucksberg. That inquiry first insists on a “careful

description of the asserted fundamental liberty interest.” Id., at 721 

(internal quotation marks omitted). Second, the inquiry stresses that

“the Due Process Clause specially protects” only “those fundamental

rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Id., at 720–721 (same). 

Here, Muñoz invokes the “fundamental right to marriage,” but she 

actually claims something more 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.

As Muñoz asserts it, she claims “a marital right . . . sufficiently important that it cannot be unduly burdened without procedural due process as to an inadmissibility finding that would block her from residing

with her spouse in her country of citizenship.” Brief for Respondent 

19, n. 10. So described, the asserted right is fundamental enough to 
 

 

 

Cite as: 602 U. S. ____ (2024) 3 

Syllabus 

be implicit in “liberty;” but, unlike other implied fundamental rights, 

its deprivation does not trigger strict scrutiny.

Because Muñoz cannot clear the second step of Glucksberg, the 

Court need not decide whether such a category of implied rights protected by the Due Process Clause exists. Glucksberg requires a demonstration that the asserted right be “deeply rooted in this Nation’s history and tradition.” 521 U. S., at 721. This Nation’s history and 

tradition recognizes the Government’s sovereign authority to set the 

terms governing the admission and exclusion of noncitizens, and 

Muñoz points to no subsidiary tradition that curbs this authority in 

the case of noncitizen spouses. 

From this Nation’s beginnings, the admission of noncitizens into the 

country was characterized as “of favor [and] not of right.” J. Madison, 

Report of 1800. And when Congress began to restrict immigration in

the late 19th century, the laws it enacted provided no exceptions for 

citizens’ spouses. See, e.g., Page Act of 1875, 18 Stat. 477–478; Immigration Act of 1882, 22 Stat. 214; Immigration Act of 1891, 26 Stat.

1084. And while Congress has, on occasion, extended special immigration treatment to marriage, see, e.g., War Brides Act of 1945, 59 Stat. 

659, it has never made spousal immigration a matter of right.

This Court has not interfered with such policy choices, despite their

interference with the spousal relationship. Thus in United States ex 

rel. Knauff v. Shaughnessy, 338 U. S. 537, the Court reaffirmed, in the 

case of a noncitizen spouse who was denied admission for confidential

security reasons, the longstanding principle “that the United States

can, as a matter of public policy . . . forbid aliens or classes of aliens 

from coming within [its] borders,” and “[n]o limits can be put by the 

courts upon” that power. Wong Wing v. United States, 163 U. S. 228, 

237. Pp. 8–15.

(c) Muñoz’s claim to a procedural due process right in someone else’s 

legal proceeding would have unsettling collateral consequences. Her 

position would usher in a new strain of constitutional law—one that 

prevents the government from taking actions that “indirectly or incidentally” burden a citizen’s legal rights. Castle Rock v. Gonzales, 545 

U. S. 748, 767. See, e.g., O’Bannon v. Town Court Nursing Center, 447 

U. S. 773, 788. To be sure, Muñoz has suffered harm from the denial 

of Asencio-Cordero’s visa application, but that harm does not give her 

a constitutional right to participate in his consular proceeding. 

Pp. 15–18. 

50 F. 4th 906, reversed and remanded. 

BARRETT, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. GORSUCH, J., 
 

4 DEPARTMENT OF STATE v. MUÑOZ 

Syllabus 

filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

_________________ 

_________________ 

Cite as: 602 U. S. ____ (2024) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

United States Reports. Readers are requested to notify the Reporter of 

Decisions, Supreme Court of the United States, Washington, D. C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 

SUPREME COURT OF THE UNITED STATES 

No. 23–334 

DEPARTMENT OF STATE, ET AL., PETITIONERS v. 

SANDRA MUÑOZ, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT 

[June 21, 2024] 

JUSTICE BARRETT delivered the opinion of the Court. 

Luis Asencio-Cordero seeks to enter the United States to 

live with Sandra Muñoz, his wife. To obtain the necessary 

visa, he submitted an application at the United States 

consulate in San Salvador. A consular officer denied his 

application, however, after finding that Asencio-Cordero is 

affiliated with MS–13, a transnational criminal gang. 

Because of national security concerns, the consular officer 

did not disclose the basis for his decision. And because 

Asencio-Cordero, as a noncitizen, has no constitutional 

right to enter the United States, he cannot elicit that 

information or challenge the denial of his visa. 

Muñoz, on the other hand, is a citizen, and she filed her 

own challenge to the consular officer’s decision. She 

reasons as follows: The right to live with her noncitizen 

spouse in the United States is implicit in the “liberty” 

protected by the Fifth Amendment; the denial of her 

husband’s visa deprived her of this interest, thereby 

triggering her right to due process; the consular officer 

violated her right to due process by declining to disclose the 

basis for finding Asencio-Cordero inadmissible; and this, in 

turn, enables judicial review, even though visa denials are 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2 DEPARTMENT OF STATE v. MUÑOZ 

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ordinarily unreviewable by courts. 

Muñoz’s argument fails at the threshold. Her argument 

is built on the premise that the right to bring her noncitizen 

spouse to the United States is an unenumerated 

constitutional right. To establish this premise, she must 

show that the asserted right is “‘deeply rooted in this 

Nation’s history and tradition.’” Washington v. Glucksberg, 

521 U. S. 702, 720–721 (1997). She cannot make that 

showing. In fact, Congress’s longstanding regulation of 

spousal 

admissibi

immigration—including 

lity—cuts the other way. 

through bars on 

I 

A 

To be admitted to the United States, a noncitizen 

typically needs a visa. 66 Stat. 181, 8 U. S. C. §1181(a). 

Visa decisions are made by the political branches. Trump 

v. Hawaii, 585 U. S. 667, 702–703 (2018); see also Oceanic 

Steam Nav. Co. v. Stranahan, 214 U. S. 320, 339 (1909) (explaining that “over no conceivable subject is the legislative 

power of Congress more complete”). As a general matter, 

Congress sets the terms for entry, and the Department of 

State implements those requirements at United States Embassies and consulates in foreign countries.1 

Congress has streamlined the visa process for noncitizens 

with immediate relatives in the United States. The citizenrelative must first file a petition with U. S. Citizenship and 

Immigration Services (USCIS), an agency housed within 

the Department of Homeland Security, to have the noncitizen classified as an immediate relative. See Scialabba v. 

—————— 1We describe the process for noncitizens who, like Asencio-Cordero, 

have not yet been lawfully admitted to the United States and must therefore apply from abroad. Compare 8 U. S. C. §1255(a) (adjustment of status to lawful permanent resident for noncitizens already admitted into 

the United States) with 22 CFR §§42.61, 42.62 (2023) (noncitizens applying for immigrant visa must appear in person before consular officer in 

consular district of residence). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 602 U. S. ____ (2024) 3 

Opinion of the Court 

Cuellar de Osorio, 573 U. S. 41, 46–47 (2014) (plurality 

opinion); §§1151(b)(2)(A)(i), 1154(a)(1)(A). If USCIS approves the petition, then the noncitizen may apply for a 

visa. §§1201(a), 1202(a). As part of this process, the noncitizen submits written materials and interviews with a consular officer abroad. §§1201(a)(1), 1202. 

Ordinarily, a consular officer who denies a visa application “because the officer determines the alien to be inadmissible” must “provide the alien with a timely written notice 

that . . . (A) states the determination, and (B) lists the specific provision or provisions of law under which the alien is 

inadmissible.” §1182(b)(1). The statute requires no explanation, however, “to any alien inadmissible” on certain 

grounds related to crime and national security. §1182(b)(3). 

This case involves a noncitizen to whom this statutory exception applies. 

B 

Sandra Muñoz, an American citizen, married Luis 

Asencio-Cordero, a Salvadoran citizen, in 2010. Several 

years later, the couple began taking steps to obtain an 

immigrant visa for Asencio-Cordero. Muñoz filed a petition 

to classify her husband as an immediate relative, which 

USCIS granted. §§1151(b)(2)(A)(i), 1154(a)(1)(A). Because 

Asencio-Cordero had entered the United States unlawfully, 

he was required to return to El Salvador and submit his 

visa application at a consulate there. See §§1154(b), 1202; 

22 CFR §42. He met with a consular officer in San Salvador 

and underwent several interviews. 

In December 2015, the officer denied Asencio-Cordero’s 

application, citing 8 U. S. C. §1182(a)(3)(A)(ii). That 

provision 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.” Ibid. The officer provided no additional 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4 DEPARTMENT OF STATE v. MUÑOZ 

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details—but, given the reason for the visa denial, even the 

statutory citation was more information than AsencioCordero was entitled to receive. §1182(b)(3). 

Asencio-Cordero guessed (as it turns out, accurately) that 

he was denied a visa based on a finding that he was a 

member of MS–13, a transnational criminal gang. He also 

guessed (again, accurately) that this finding was based at 

least in part on the conclusion that his tattoos signified 

gang membership. Asencio-Cordero and Muñoz denied that 

Asencio-Cordero was affiliated with MS–13 or any other 

gang, and they pressed the consulate to reconsider the 

officer’s finding. When the consulate held firm, they 

appealed to the Department of State, submitting evidence 

that the tattoos were innocent. A Department official 

informed Asencio-Cordero and Muñoz that the Department 

agreed with the consulate’s determination. The next day, 

the consul in San Salvador notified them that AsencioCordero’s application had gone through multiple rounds of 

review—including by the consular officer, consular 

supervisors, the consul himself, the Bureau of Consular 

Affairs, and the State Department’s Immigration Visa 

Unit—and none of these reviews had “ ‘revealed any 

grounds to change the finding of inadmissibilty.’” App. 7. 

Asencio-Cordero and Muñoz sued the Department of 

State, the Secretary of State, and the United States consul 

in San Salvador. (For simplicity’s sake, we will refer to the 

defendants collectively as the State Department.) They 

alleged, among other things, that the State Department 

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 agreed and ordered discovery. In a 

sworn declaration, an attorney adviser from the State 

Department explained that Asencio-Cordero was deemed 

inadmissible because he belonged to MS–13. The finding 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 602 U. S. ____ (2024) 5 

Opinion of the Court 

was “based on the in-person interview, a criminal review of 

. . . Asencio[-]Cordero, and a review of [his] tattoos.” App. 

to Pet. for Cert. 124a. In addition to the affidavit, the State 

Department provided the District Court with confidential 

law enforcement information, which it reviewed in camera, 

identifying Ascencio-Cordero as a member of MS–13. 

Satisfied, the District Court granted summary judgment to 

the State Department. 

The Ninth Circuit vacated the judgment and remanded 

the case. Consistent with circuit precedent, it held that 

Muñoz, as a citizen, had a constitutionally protected liberty 

interest in her husband’s visa application. Because of that 

interest, the Ninth Circuit said, the Due Process Clause 

required the State Department to give Muñoz a “‘facially 

legitimate and bona fide reason’” for denying her husband’s 

visa. 50 F. 4th 906, 916 (2022) (quoting Kleindienst v. 

Mandel, 408 U. S. 753, 766–770 (1972)). The initial 

statutory citation did not qualify, 50 F. 4th, at 917–918, and 

the later affidavit was untimely, id., at 921–922. Delay 

carried a serious consequence for the State Department. 

Visa denials are insulated from judicial review by the 

doctrine of consular nonreviewability. But the Ninth 

Circuit held that by declining to give Muñoz more 

information earlier in the process, the State Department 

had forfeited its entitlement “to shield its visa decision from 

judicial review.” Id., at 924. The panel remanded for the 

District Court to consider the merits of Muñoz’s suit, which 

include a request for a declaration invalidating the finding 

that Asencio-Cordero is inadmissible and an order 

demanding that the State Department readjudicate 

Asencio-Cordero’s application.2 

—————— 2At oral argument in this Court, Muñoz suggested that she is asserting 

a constitutional entitlement only to information—a “facially legitimate 

and bona fide reason” why the consular officer deemed her husband inadmissible under the “unlawful activity” bar. Tr. of Oral Arg. 59–64. 

Elsewhere, though, she suggests that the Due Process Clause entitles 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6 DEPARTMENT OF STATE v. MUÑOZ 

Opinion of the Court 

The Ninth Circuit denied en banc review over the dissent 

of 10 judges, and we granted the State Department’s 

petition for certiorari. 601 U. S. ___ (2024).3 

II 

“For more than a century, this Court has recognized that 

the admission and exclusion of foreign nationals is a 

‘fundamental sovereign attribute exercised by the 

Government’s political departments largely immune from 

judicial control.’” Trump, 585 U. S., at 702 (quoting Fiallo 

v. Bell, 430 U. S. 787, 792 (1977)). Congress may delegate 

to executive officials the discretionary authority to admit 

noncitizens “immune from judicial inquiry or interference.” 

Harisiades v. Shaughnessy, 342 U. S. 580, 588–591 (1952). 

When it does so, the action of an executive officer “to admit 

or to exclude an alien” “is final and conclusive.” United 

States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 543 

(1950); see also Dept. of Homeland Security v. 

Thuraissigiam, 591 U. S. 103, 138–139 (2020); Mandel, 408 

U. S., at 765–766; Nishimura Ekiu v. United States, 142 

U. S. 651, 659–660 (1892). The Judicial Branch has no role 

—————— 

her to both the information and “a meaningful opportunity to respond.” 

Brief for Respondents 11. If appeal is no longer available under State 

Department regulations (and the Ninth Circuit said it was not), Muñoz 

presumably seeks what she sought below: judicial review of the inadmissibility finding and a court order requiring the State Department to reconsider Asencio-Cordero’s visa application. 50 F. 4th, at 912, n. 14. 

This level of judicial involvement in the visa process would be a significant extension of our precedent. The dissent, however, would remand to 

the Ninth Circuit for consideration of this relief. Post, at 10, n. 2 (opinion 

of SOTOMAYOR, J.). 3 Inexplicably, the dissent claims that the Court is reaching out improperly to settle this issue. Post, at 2. We granted certiorari on this 

very question to resolve a longstanding circuit split. 601 U. S. ___ (2024). 

And we did so at the request of the Solicitor General, who emphasized 

both the Government’s need for uniformity in the administration of immigration law and the importance of this issue to national security. Pet. 

for Cert. 27–28, 31–33. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 602 U. S. ____ (2024) 7 

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to play “unless expressly authorized by law.” Knauff, 338 

U. S., at 543. The Immigration and Nationality Act (INA) 

does not authorize judicial review of a consular officer’s 

denial of a visa; thus, as a rule, the federal courts cannot 

review those decisions.4 This principle is known as the 

doctrine of consular nonreviewability. 

We have assumed that a narrow exception to this bar 

exists “when the denial of a visa allegedly burdens the 

constitutional rights of a U. S. citizen.” Trump, 585 U. S., 

at 703. In that event, the Court has considered whether the 

Executive gave a “‘facially legitimate and bona fide reason’” 

for denying the visa. Kerry v. Din, 576 U. S. 86, 103–104 

(2015) (Kennedy, J., concurring in judgment) (quoting 

Mandel, 408 U. S., at 770). If so, the inquiry is at an end— 

the Court has disclaimed the authority to “‘look behind the 

exercise of that discretion,’” much less to balance the reason 

given against the asserted constitutional right. Din, 576 

U. S., at 104. 

Asencio-Cordero cannot invoke the exception himself, 

because he has no “constitutional right of entry to this 

country as a nonimmigrant or otherwise.” Mandel, 408 

U. S., at 762. Thus, so far as Asencio-Cordero is concerned, 

the doctrine of consular nonreviewability applies. Muñoz, 

however, is an American citizen, and she asserts that the 

denial of her husband’s visa violated her constitutional 

rights, thereby enabling judicial review. Specifically, she 

argues that the State Department abridged her 

fundamental right to live with her spouse in her country of 

citizenship—and that it did so without affording her the fair 

—————— 4 In Trump v. Hawaii, the plaintiffs argued that a proclamation excluding certain classes of noncitizens from entering the United States exceeded the President’s authority under the Immigration and Nationality 

Act. 585 U. S. 667, 681–682 (2018). The Court explained that the doctrine of consular nonreviewability is not jurisdictional and “assume[d] 

without deciding that [the] plaintiffs’ statutory claims [were] reviewable.” Id., at 682–683. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8 DEPARTMENT OF STATE v. MUÑOZ 

Opinion of the Court 

procedure guaranteed by the Fifth Amendment. 

The Ninth Circuit is the only Court of Appeals to have 

embraced this asserted right—every other Circuit to 

consider the issue has rejected it.5 See Colindres v. U. S. 

Dept. of State, 71 F. 4th 1018, 1021 (CADC 2023); Baaghil 

v. Miller, 1 F. 4th 427, 433 (CA6 2021); Bakran v. Secretary, 

U. S. Dept. of Homeland Security, 894 F. 3d 557, 564 (CA3 

2018); Bright v. Parra, 919 F. 2d 31, 34 (CA5 1990) 

(per curiam); Burrafato v. U. S. Dept. of State, 523 F. 2d 

554, 554–557 (CA2 1975); Silverman v. Rogers, 437 F. 2d 

102, 107 (CA1 1970). In Din, this Court considered but did 

not resolve the question. A plurality concluded that a 

citizen does not have a fundamental right to bring her 

noncitizen spouse to the United States. 576 U. S., at 96. 

Two Justices chose not to reach the issue, explaining that 

even if the right existed, the statutory citation provided by 

the Executive qualified as a facially legitimate and bona 

fide reason. Id., at 105 (opinion of Kennedy, J.). Since Din, 

the existence of the right has continued to divide the 

Circuits. 

Today, we resolve the open question. Like the Din 

plurality, we hold that a citizen does not have a 

fundamental liberty interest in her noncitizen spouse being 

admitted to the country. 

III 

The Due Process Clause of the Fifth Amendment requires 

the Government to provide due process of law before it 

deprives someone of “life, liberty, or property.” Under our 

precedent, the Clause promises more than fair process: It 

also “provides heightened protection against government 

interference with certain fundamental rights and liberty 

—————— 5The dissent characterizes our decision today as extreme, post, at 14, 

but it is the dissent who embraces the outlier position: Our opinion is in 

line with the vast majority of Circuits that have decided this question. 

The dissent aligns itself with the lone Circuit going the other way. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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interests.” Glucksberg, 521 U. S., at 720. When a 

fundamental right is at stake, the Government can act only 

by narrowly tailored means that serve a compelling state 

interest. Id., at 721. Identifying unenumerated rights 

carries a serious risk of judicial overreach, so this Court 

“exercise[s] the utmost care whenever we are asked to 

break new ground in this field.” Id., at 720 (internal 

quotation marks omitted). To that end, Glucksberg’s twostep inquiry disciplines the substantive due process 

analysis. First, it insists on a “careful description of the 

asserted fundamental liberty interest.” Id., at 721 (internal 

quotation marks omitted). Second, it stresses that “the Due 

Process Clause specially protects” only “those fundamental 

rights and liberties which are, objectively, deeply rooted in 

this Nation’s history and tradition.” Id., at 720–721 

(internal quotation marks omitted). 

We start with a “careful description of the asserted 

fundamental liberty interest.” Id., at 721 (internal 

quotation marks omitted). 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. 

It is difficult to pin down the nature of the right Muñoz 

claims. The logic of her position suggests an entitlement to 

bring Asencio-Cordero to the United States—how else could 

Muñoz enjoy the asserted right to live with her noncitizen 

husband in her country of citizenship? See also Brief for 

Petitioners 23, n. 8 (characterizing Muñoz’s claim as an 

“entitle[ment] to the visa itself ”). Yet Muñoz disclaims that 

characterization, insisting that “[she] does not advance a 

substantive right to immigrate one’s spouse.” Brief for 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10 DEPARTMENT OF STATE v. MUÑOZ 

Opinion of the Court 

Respondents 19, n. 10. This concession is wise, because 

such a claim would ordinarily trigger strict scrutiny—and 

it would be remarkable to put the Government to the most 

demanding test in constitutional law in the field of 

immigration, an area unsuited to rigorous judicial 

oversight. Fiallo, 430 U. S., at 792 (“Our cases ‘have long 

recognized the power to expel or exclude aliens as a 

fundamental sovereign attribute exercised by the 

Government’s political departments largely immune from 

judicial control’”). 

Though understandable, Muñoz’s concession makes characterizing the asserted right a conceptually harder task. 

Here is her formulation: a “marital right . . . sufficiently important that it cannot be unduly burdened without procedural due process as to an inadmissibility finding that 

would block her from residing with her spouse in her country of citizenship.” Brief for Respondents 19, n. 10. So described, the asserted right is neither fish nor fowl. It is fundamental enough to be implicit in “liberty;” but, unlike 

other implied fundamental rights, its deprivation does not 

trigger strict scrutiny. See Din, 576 U. S., at 99 (plurality 

opinion) (observing that this argument posits “two categories of implied rights protected by the Due Process Clause: 

really fundamental rights, which cannot be taken away at 

all absent a compelling state interest; and not-sofundamental rights, which can be taken away so long as 

procedural due process is observed”). This right would be 

in a category of one: a substantive due process right that 

gets only procedural due process protection. Ibid. 

We need not decide whether such a category exists, because Muñoz cannot clear the second step of Glucksberg’s 

test: demonstrating that the right to bring a noncitizen 

spouse to the United States is “‘deeply rooted in this 

Nation’s history and tradition.’” 521 U. S., at 721. On the 

contrary, the through line of history is recognition of the 

Government’s sovereign authority to set the terms 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 602 U. S. ____ (2024) 11 

Opinion of the Court 

governing the admission and exclusion of noncitizens. And 

Muñoz points to no subsidiary tradition that curbs this 

authority in the case of noncitizen spouses. 

From the beginning, the admission of noncitizens into the 

country was characterized as “of favor [and] not of right.” J. 

Madison, Report of 1800 (Jan. 7, 1800), in 17 Papers of 

James Madison 319 (D. Mattern, J. Stagg, J. Cross, & S. 

Perdue eds. 1991) (emphasis added); see also 2 Records of 

the Federal Convention of 1787, p. 238 (M. Farrand ed. 

1911) (recounting Gouverneur Morris’s observation that 

“every Society from a great nation down to a club ha[s] the 

right of declaring the conditions on which new members 

should be admitted”); Debate on Virginia Resolutions, in 

The Virginia Report of 1799–1800, p. 31 (1850) (“[B]y the 

law of nations, it is left in the power of all states to take 

such measures about the admission of strangers as they 

think convenient”). Consistent with this view, the 1798 Act 

Concerning Aliens gave the President complete discretion 

to remove “all such aliens as he shall judge dangerous to 

the peace and safety of the United States.” 1 Stat. 571 

(emphasis deleted). The Act made no exception for 

spouses—or, for that matter, other family members. 

The United States had relatively open borders until the 

late 19th century. But once Congress began to restrict 

immigration, “it enacted a complicated web of regulations 

that erected serious impediments to a person’s ability to 

bring a spouse into the United States.” Din, 576 U. S., at 

96 (plurality opinion). One of the first federal immigration 

statutes, the Immigration Act of 1882, required executive 

officials to “examine” noncitizens and deny “permi[ssion] to 

land” to “any convict, lunatic, idiot, or any person unable to 

take care of himself or herself without becoming a public 

charge.” 22 Stat. 214. The Act provided no exception for 

citizens’ spouses. And when Congress drafted a successor 

statute that expanded the grounds of inadmissibility, it 

again gave no special treatment to the marital relationship. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12 DEPARTMENT OF STATE v. MUÑOZ 

Opinion of the Court 

Immigration Act of 1891, ch. 551, 26 Stat. 1084. 

There are other examples. The Page Act of 1875, which 

functioned as a restriction on Chinese female immigration, 

contained no exception for wives. 18 Stat. 477–478; see 

Colindres, 71 F. 4th, at 1023. Or consider the Emergency 

Quota Act of 1921, which capped the number of immigrants 

permitted to enter the country each year. 42 Stat. 5–6. 

Although the Act gave preferential treatment to citizens’ 

wives, “once all the quota spots were filled for the year, the 

spouse was barred without exception.” Din, 576 U. S., at 97 

(plurality opinion).6 See also C. Bredbenner, A Nationality 

of Her Own: Women, Marriage, and the Law of Citizenship 

115 (1998) (“[C]itizens’ wives were still quota immigrants, 

and immigration officials could regulate their entry closely 

if economic or other circumstances prompted a general 

tightening of admission”). In 1924, Congress, showing favor 

to men rather than marriage, lifted the quotas for male 

citizens with noncitizen wives, but did not similarly clear 

the way for female citizens with noncitizen husbands. 

Abrams 12. This gender disparity did not change until 

1952. Id., at 13–14. 

That is not to say that Congress has not extended special 

treatment to marriage—it has. For instance, the War 

Brides Act of 1945 provided that the noncitizen spouses of 

World War II veterans would be exempt from certain 

admissibility bars and documentary requirements. Ch. 

591, 59 Stat. 659. Closer to home, Asencio-Cordero’s visa 

—————— 6Given the then-existing law of coverture, the Act was only relevant to 

noncitizen wives—a citizen wife with a noncitizen husband was forced to 

assume her husband’s nationality. K. Abrams, What Makes the Family 

Special? 80 U. Chi. L. Rev. 7, 11 (2013) (Abrams). (“Giving wives the 

opportunity to sponsor their husbands would have been nonsensical; under the Expatriation Act of 1907, a wife automatically lost her US citizenship upon marrying a foreigner, so there could be no such thing as a 

US citizen wife with an immigrant husband” (footnotes omitted)). This 

changed in 1922, when the Cable Act “largely undid derivative citizenship for married women.” Ibid. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 602 U. S. ____ (2024) 13 

Opinion of the Court 

application rested on his marriage to Muñoz, which made 

him eligible for immigrant status. §1154. But while 

Congress has made it easier for spouses to immigrate, it has 

never made spousal immigration a matter of right. On the 

contrary, qualifications and restrictions have long been the 

norm. See, e.g., Act of Aug. 9, 1946, ch. 945, 60 Stat. 975 

(granting nonquota status to Chinese wives of American 

citizens, but only for those with longstanding marriages). 

Of particular relevance to Muñoz, Congress has not 

exempted spouses from inadmissibility restrictions like the 

INA’s unlawful-activity bar. Precusors to that bar have 

existed since the early 20th century. For example, the 

Immigration Act of 1917 provided for the exclusion of 

“persons who have been convicted of or admit having 

committed a felony or other crime or misdemeanor 

involving moral turpitude.” Ch. 29, 39 Stat. 875. Consular 

officers applied this bar to spouses, and courts refused to 

review those visa denials, citing the doctrine of consular 

nonreviewability. See, e.g., United States ex rel. Ulrich v. 

Kellogg, 30 F. 2d 984, 985–986 (CADC 1929). 

United States ex rel. Knauff v. Shaughnessy is a striking 

example from this Court. In Knauff, a United States citizen 

(and World War II veteran) found himself similarly situated 

to Muñoz: His noncitizen wife was denied admission for 

security reasons, based on “information of a confidential 

nature, the disclosure of which would be prejudicial to the 

public interest.” 338 U. S., at 541, 544. We held that the 

War Brides Act did not supersede the statute on which the 

Attorney General had relied. Id., at 546–547 (“There is 

nothing in the War Brides Act . . . to indicate that it was the 

purpose of Congress, by partially suspending compliance 

with certain requirements and quota provisions of the 

immigration laws, to relax the security provisions of the 

immigration laws”). So, “[a]s all other aliens, petitioner had 

to stand the test of security.” Id., at 547. Nor was she 

entitled to a hearing, because “[w]hatever the procedure 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

14 DEPARTMENT OF STATE v. MUÑOZ 

Opinion of the Court 

authorized by Congress is, it is due process as far as an 

alien denied entry is concerned.” Id., at 544. The Attorney 

General’s decision was “final and conclusive,” and he did 

not have to divulge the reason for it. Id., at 543.7 

Knauff thus reaffirmed the longstanding principle “that 

the United States can, as a matter of public policy . . . forbid 

aliens or classes of aliens from coming within their 

borders,” and “[n]o limits can be put by the courts upon” 

that power. Wong Wing v. United States, 163 U. S. 228, 237 

(1896). Congress’s authority to “formulat[e] . . . policies” 

concerning the entry of noncitizens “has become about as 

firmly imbedded in the legislative and judicial tissues of our 

body politic as any aspect of our government,” representing 

“not merely ‘a page of history,’ but a whole volume.” Galvan 

v. Press, 347 U. S. 522, 531 (1954) (citation omitted). “[T]he 

Court’s general reaffirmations of this principle have been 

legion.” Mandel, 408 U. S., at 765–766; see also id., at 765 

(“[T]he power to exclude aliens is ‘inherent in sovereignty, 

necessary for maintaining normal international relations 

and defending the country against foreign encroachments 

and dangers—a power to be exercised exclusively by the 

political branches of government’ ”).8 While “families of 

—————— 7The dissent criticizes Knauff because the Attorney General, under 

pressure from Congress, ultimately revisited his decision and admitted 

Knauff as a lawful permanent resident. Post, at 19. But the history of 

the case does not establish that the Court was wrong to decline to review 

the Attorney General’s decision. It reflects a decision that was made by 

the political branches and reversed through the political process. Moreover, Knauff remains good law that we have repeatedly reaffirmed. Dept. 

of Homeland Security v. Thuraissigiam, 591 U. S. 103, 138–139 (2020). 8The dissent barely acknowledges that any of this precedent exists. In 

fact, rather than recognizing the prerogatives of the political branches in 

this area, the dissent criticizes the United States’ immigration policy, 

post, at 4–5, as well as the competence of the Executive Branch officials 

who make difficult, high-stakes decisions about which noncitizens seeking entry to the United States pose a threat to national security, post, at 

6–7. Perhaps our dissenting colleagues are well-equipped to set immigration policy and manage border security, but the Constitution entrusts 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 602 U. S. ____ (2024) 15 

Opinion of the Court 

putative immigrants certainly have an interest in their 

admission,” it is a “fallacy” to leap from that premise to the 

conclusion that United States citizens have a 

“‘fundamental right’ ” that can limit how Congress exercises 

“the Nation’s sovereign power to admit or exclude 

foreigners.” Fiallo, 430 U. S., at 795, n. 6. 

To be sure, Congress can use its authority over 

immigration to prioritize the unity of the immigrant family. 

Din, 576 U. S., at 97 (plurality opinion). See, e.g., 

§1151(b)(2)(A)(i) (exempting “immediate relatives” from 

certain numerical quotas). It has frequently done just that. 

But the Constitution does not require this result; moreover, 

Congress’s generosity with respect to spousal immigration 

has always been subject to restrictions, including bars on 

admissibility. This is an area in which more than family 

unity is at play: Other issues, including national security 

and foreign policy, matter too. Thus, while Congress may 

show special solicitude to noncitizen spouses, such 

solicitude is “a matter of legislative grace rather than 

fundamental right.” Din, 576 U. S., at 97 (plurality 

opinion). Muñoz has pointed to no evidence suggesting 

otherwise.9 

IV 

As the State Department observes, Muñoz’s claim to a 

procedural due process right in someone else’s legal 

—————— 

those tasks to the political branches. 9The dissent never addresses the actual issue in this case, which is 

whether the Judiciary has any authority to review visa determinations 

made by the State Department. Instead, the dissent chooses the rhetorically easier path of charging the Court with endangering the fundamental right to marriage. See post, at 11–14. To be clear: Today’s decision 

does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right. By contrast, the 

dissent would upend more than a century’s worth of this Court’s precedent regarding the doctrine of consular nonreviewability, not to mention 

equally longstanding congressional and Executive Branch practice. Ibid. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

16 DEPARTMENT OF STATE v. MUÑOZ 

Opinion of the Court 

proceeding would have unsettling collateral consequences. 

Consider where her logic leads: Could a wife 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”? Reply 

Brief 13. Could a citizen assert procedural rights in the 

removal proceeding of her spouse? Brief for Petitioners 30. 

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. Castle 

Rock v. Gonzales, 545 U. S. 748, 767 (2005) (quoting 

O’Bannon v. Town Court Nursing Center, 447 U. S. 773, 788 

(1980)). 

Our decision in O’Bannon is illustrative. There, a group 

of nursing-home residents alleged that the government had 

violated their liberty interests when it decertified their 

nursing home without providing them a hearing. 447 U. S., 

at 777–781, 784. We acknowledged that the residents 

would suffer harm from the government’s decision. Id., at 

784, and n. 16. But we held that absent a “direct restraint 

on [their liberty],” the decision did not implicate their due 

process rights. Id., at 788. The decertification decision 

imposed only an indirect harm. We explained that the 

residents were akin to “members of a family who have been 

dependent on an errant father.” Ibid. Although “they may 

suffer serious trauma if he is deprived of his liberty or 

property as a consequence of criminal proceedings,” such 

family members “surely . . . have no constitutional right to 

participate in his trial or sentencing procedures.” Ibid. The 

same principle governs here. Muñoz has suffered harm 

from the denial of Asencio-Cordero’s visa application, but 

that harm does not give her a constitutional right to 

participate in his consular process. 

Lest there be any doubt, Mandel does not hold that 

citizens have procedural due process rights in the visa 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 602 U. S. ____ (2024) 17 

Opinion of the Court 

proceedings of others. The Ninth Circuit seems to have 

read Mandel that way, but that is a misreading. 

In Mandel, the Attorney General refused to waive 

inadmissibility and grant Ernest Mandel, a self-described 

“‘revolutionary Marxist,’” a temporary visa to attend 

academic conferences in the United States. 408 U. S., at 

756. A group of professors sued on the ground that the 

Executive’s discretion to grant a waiver was limited by their 

First Amendment right to hear Mandel speak; they insisted 

that “the First Amendment claim should prevail, at least 

where no justification is advanced for denial of a waiver.” 

Id., at 769. In response, the Attorney General asserted that 

“Congress has delegated the waiver decision to the 

Executive in its sole and unfettered discretion, and any 

reason or no reason may be given.” Ibid. 

But because “the Attorney General did inform Mandel’s 

counsel of the reason for refusing him a waiver,” the Court 

chose not to resolve this statutory argument. Ibid. 

(emphasis added). Instead, it said that so long as the 

Executive gives a “facially legitimate and bona fide reason” 

for denying a waiver under §212(a)(28) of the INA—the 

statutory provision at issue—“the courts will neither look 

behind the exercise of that discretion, nor test it by 

balancing its justification against the First Amendment 

interests of those who seek personal communication with 

the applicant.” Id., at 770. The Court expressly declined to 

address whether a constitutional challenge would “be 

available for attacking [an] exercise of discretion for which 

no justification whatsoever is advanced.” Ibid. 

Thus, the “facially legitimate and bona fide reason” in 

Mandel was the justification for avoiding a difficult 

question of statutory interpretation; it had nothing to do 

with procedural due process. Indeed, a procedural due 

process claim was not even before the Court. The professors 

argued that the denial of Mandel’s visa directly deprived 

them of their First Amendment rights, not that their First 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

18 DEPARTMENT OF STATE v. MUÑOZ 

Opinion of the Court 

Amendment rights entitled them to procedural protections 

in Mandel’s visa application process. Id., at 754. To make 

an argument logically analogous to that of the professors, 

Muñoz would have to claim that the denial of AsencioCordero’s visa violated her substantive due process right to 

bring her noncitizen spouse to the United States—thereby 

triggering the State Department’s obligation to 

demonstrate why denying him the visa is the least 

restrictive means of serving the Government’s interest in 

national security. But, as we have explained, Muñoz has 

disavowed that argument, which cannot succeed in any 

event because the asserted right is not a longstanding and 

“‘deeply rooted’” tradition in this country. Glucksberg, 521 

U. S., at 721. 

The bottom line is that procedural due process is an odd 

vehicle for Muñoz’s argument, and Mandel does not support 

it. Whatever else it may stand for, Mandel does not hold 

that a citizen’s independent constitutional right (say, a free 

speech claim) gives that citizen a procedural due process 

right to a “facially legitimate and bona fide reason” for why 

someone else’s visa was denied. And Muñoz is not 

constitutionally entitled to one here. 

* * * 

The judgment of the Ninth Circuit is reversed, and the 

case is remanded for further proceedings consistent with 

this opinion. 

It is so ordered. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

_________________ 

_________________ 

Cite as: 602 U. S. ____ (2024) 1 

GORSUCH, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 23–334 

DEPARTMENT OF STATE, ET AL., PETITIONERS v. 

SANDRA MUÑOZ, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT 

[June 21, 2024] 

JUSTICE GORSUCH, concurring in the judgment. 

A consular officer denied Sandra Muñoz’s husband a visa 

to come to and live lawfully in the United States. 526 

F. Supp. 3d 709, 713–714 (CD Cal. 2021). In doing so, the 

officer simply cited 8 U. S. C. §1182(a)(3)(A)(ii), a provision 

of the Immigration and Nationality Act that makes inadmissible any person a consular officer “has reasonable 

ground to believe . . . seeks to enter the United States to 

engage . . . in . . . any other unlawful activity.” Eventually, 

Ms. Muñoz sued for further explanation of that decision. 

See App. 2, 8–9. The government, she claimed, needed to 

identify for her not just the statute on which it based its 

decision, but also the “‘discrete factual predicates’” on 

which it relied. Id., at 8, ¶36. 

Over the course of this litigation, the United States has 

given Ms. Muñoz what she requested. As the Ninth Circuit 

recognized, the United States has now revealed the factual 

basis for its decision to deny her husband a visa. 50 F. 4th 

906, 919–920 (2022); see App. to Pet. for Cert. 124a; App. 

76. In this Court, too, the government has assured Ms. 

Muñoz 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. Tr. of Oral Arg. 45, 104. 
 

 

 

 

 

 

 

 

 

2 DEPARTMENT OF STATE v. MUÑOZ 

GORSUCH, J., concurring in judgment 

Those developments should end this case. With no more 

information to uncover and no bar to trying for admission 

again, nothing is left for a court to address through this litigation. In particular, the constitutional questions presented by the government no longer have any practical relevance here. Whether or not Ms. Muñoz had a 

constitutional right to the information she wanted, the government gave it to her. I therefore would reverse the Ninth 

Circuit’s decision without reaching the government’s constitutional arguments. See City of Mesquite v. Aladdin’s 

Castle, Inc., 455 U. S. 283, 294–295 (1982). At the same 

time, I do not cast aspersions on the motives of my colleagues who do reach the government’s arguments. They 

may see the case differently than I do, but their decision 

and rationales are essentially those the Solicitor General 

and the Department of State urged this Court to adopt. 
_________________ 

_________________ 

Cite as: 602 U. S. ____ (2024) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 23–334 

DEPARTMENT OF STATE, ET AL., PETITIONERS v. 

SANDRA MUÑOZ, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT 

[June 21, 2024]

 JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and 

JUSTICE JACKSON join, dissenting. 

“The right to marry is fundamental as a matter of history

and tradition.” Obergefell v. Hodges, 576 U. S. 644, 671 

(2015). After U. S. citizen Sandra Muñoz and her Salvadoran husband spent five years of married life in the United 

States, the Government told her that he could no longer 

reenter the country. If she wanted to live together with him

and their child again, she would have to move to El Salvador. The reason? A consular officer’s bare assertion that 

her husband, who has no criminal record in the United 

States or El Salvador, planned to engage in “unlawful activity.” 8 U. S. C. §1182(a)(3)(A)(ii). Muñoz argues that the

Government, having burdened her fundamental right to

marriage, owes her one thing: the factual basis for excluding her husband.

The majority could have resolved this case on narrow 

grounds under longstanding precedent. This Court has already recognized that excluding a noncitizen from the country can burden the constitutional rights of citizens who seek 

his presence. See Kleindienst v. Mandel, 408 U. S. 753, 

765–770 (1972). Acknowledging the Government’s power 

over admission and exclusion, the Mandel Court held that 

“a facially legitimate and bona fide reason” for the exclusion 

sufficed to justify that burden. Id., at 770. In this case, 
 

 

 

 

2 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

after protracted litigation, the Government finally explained that it denied Muñoz’s husband a visa because of 

its belief that he had connections to the gang MS–13. Regardless of the validity of that belief, it is a “facially legitimate and bona fide reason.” Ibid.; see also ante, at 1 

(GORSUCH, J., concurring in judgment). Under this Court’s 

precedent, that is enough. 

Instead, the majority today chooses a broad holding on 

marriage over a narrow one on procedure.1 It holds that 

Muñoz’s right to marry, live with, and raise children alongside her husband entitles her to nothing when the Government excludes him from the country. Despite the majority’s

assurance two Terms ago that its eradication of the right to 

abortion “does not undermine . . . in any way” other entrenched substantive due process rights such as “the right

to marry,” “the right to reside with relatives,” and “the right

to make decisions about the education of one’s children,” the 

Court fails at the first pass. Dobbs v. Jackson Women’s 

—————— 1The Government asked this Court to review three questions: 

“1. Whether a consular officer’s refusal of a visa to a U. S. citizen’s noncitizen spouse impinges upon a constitutionally protected

interest of the citizen. 

“2. Whether, assuming that such a constitutional interest exists,

notifying a visa applicant that he was deemed inadmissible under 

8 U. S. C. 1182(a)(3)(A)(ii) suffices to provide any process that is

due. 

“3. Whether, assuming that such a constitutional interest exists

and that citing Section 1182(a)(3)(A)(ii) is insufficient standing 

alone, due process requires the government to provide a further factual basis for the visa denial ‘within a reasonable time,’ or else forfeit the ability to invoke consular nonreviewability in court.” Pet. 

for Cert. I. 

This Court granted certiorari limited to the first and second questions. 

601 U. S. ___ (2024). The majority chooses to decide this case on the first

question presented rather than “assuming that such a constitutional interest exists” and determining what “process . . . is due” (the second question presented). Pet. for Cert. I. 
 

 

 

Cite as: 602 U. S. ____ (2024) 3 

SOTOMAYOR, J., dissenting 

Health Organization, 597 U. S. 215, 256–257 (2022). 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. 

I 

A 

Marriage is not an automatic ticket to a green card. A 

married citizen-noncitizen couple must jump through a series of administrative hoops to apply for the lawful permanent residency that marriage can confer. Noncitizen 

spouses coming from abroad must apply for a visa to enter 

the United States. In certain cases, however, the law requires even couples who meet and marry in the United

States to send the noncitizen spouse back to his country of 

origin to do the same thing. In doing so, the couple must

take an enormous risk to pursue the stability of lawful immigration status: the risk that when the noncitizen spouse

tries to reenter the United States, he will face unexpected 

exile. 

In technical immigration terms, a noncitizen spouse applying for a green card seeks to “[a]djus[t]” his immigration

“status” from “nonimmigrant to that of [a] person admitted

for permanent residence.” 8 U. S. C. §1255. To do so, the 

citizen spouse must petition the Government on the noncitizen’s behalf. The citizen spouse first sends United States 

Citizenship and Immigration Services (USCIS) a petition to 

classify the noncitizen spouse as an “immediate relative.”

§§1151(b)(2)(A)(i), 1154(a)(1)(A). Once USCIS approves the

petition, a noncitizen spouse who is already in the United 

States can then apply to adjust his status to lawful permanent resident without leaving the country. See §1255(a).

For a noncitizen spouse living outside of the United States,

however, USCIS first approves the immediate-relative petition, but then sends it to the consulate of the country where 
 

4 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

the noncitizen spouse lives for processing. See §1154(b); 22 

CFR §§42.42, 42.61 (2023). A consular officer interviews 

the noncitizen spouse and makes the final admission decision. See 8 U. S. C. §§1201, 1202(f ). 

Because of idiosyncrasies in our immigration system, not 

all noncitizen spouses living in the United States can adjust 

their status with USCIS. Even when a couple meets, marries, and lives in the United States, the noncitizen spouse 

may instead have to travel back to his country of origin for 

consular processing if he was never formally “inspected and 

admitted or paroled” at the Border. §1255(a). A noncitizen 

who entered without “inspect[ion]” in this way typically

cannot adjust his status from within the United States

based on an immediate-relative petition. See ibid. Once 

the citizen spouse submits the petition to USCIS, the 

noncitizen spouse must return to his country of origin and 

meet with a consular officer, who will then adjudicate his

application. See 22 CFR §§42.42, 42.61, 42.62. 

Living in the United States after initially having entered 

without inspection is not unusual. In fact, the Government 

endorses the presence of many of these members of our national community. Recipients under the Deferred Action for 

Childhood Arrivals (DACA) program, for instance, may 

have been brought across the border by their parents without inspection. Even though DACA status entitles them to

work and live in the country without the immediate threat

of removal, see 8 CFR §236.21(c), it does not change their 

initial entry designation. As of the end of 2023, there were 

roughly 530,000 active DACA recipients in the United

States. See Dept. of Homeland Security (DHS), USCIS, 

Count of Active DACA Recipients by Month of Current

DACA Expiration (as of Dec. 31, 2023). The same is true of 

the approximately 680,000 holders of Temporary Protected 

Status (TPS), who have been designated temporarily unable to return to their home countries because of war, natural disasters, or other extraordinary circumstances. See 
Cite as: 602 U. S. ____ (2024) 5 

SOTOMAYOR, J., dissenting 

DHS, Citizenship and Immigration Services Ombudsman,

Ann. Rep. 45 (June 30, 2023); Sanchez v. Mayorkas, 593 

U. S. 409, 419 (2021) (holding that TPS status did not

change an entry without inspection into a lawful admission 

that would allow adjustment to lawful permanent residency 

from within the United States). Even when married to a 

U. S. citizen, DACA recipients and TPS holders are barred

from adjusting status within the United States if they entered without inspection. See 8 U. S. C. §1255(a).

Ironically, the longer the noncitizen spouse has lived in 

the United States, the more difficult and uncertain the process to adjust to lawful status can become. A noncitizen 

who initially entered without inspection will accrue “unlawful presence,” which can bar him from reentering the country if he leaves. §1182(a)(9)(B). If a noncitizen who has 

lived in the United States between six months and one year

leaves and tries to reenter, he will be subject to a 3-year 

reentry bar. §1182(a)(9)(B)(i)(I). If he has lived in the 

United States for more than a year and tries to reenter, he

faces a 10-year ban. §1182(a)(9)(B)(i)(II).

This scheme places couples who meet and marry in the

United States in a difficult position if the noncitizen spouse

entered without inspection. The couple can continue to live 

with one spouse in a precarious immigration status; or, they 

can seek the stability of permanent residency for the noncitizen spouse but face a potential multiyear exile when he

leaves and applies for reentry. 

Recognizing this difficult choice, USCIS allows a noncitizen spouse to apply for a waiver of inadmissibility for any 

accrued unlawful presence before departing the United 

States for his consular interview. To obtain such a waiver, 

the noncitizen spouse must show that the citizen spouse 

will suffer “extreme hardship” if her noncitizen spouse is 

not admitted. §1182(a)(9)(B)(v). Then, once the noncitizen 

spouse returns to his country of origin, if a consular officer

approves his visa application, he can reenter free from the 
 

 

6 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

inadmissibility bar.

Consular officers fall under the State Department, see 

§1104(a), not DHS, which oversees USCIS, see 6 U. S. C.

§271(a). Even though DHS officers and consular officers

make admission determinations under the same substantive laws, see §1182, 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. 

DHS officers are constrained by a framework of required 

process that does not apply to consular processing. A 

noncitizen denied adjustment of status in the United States

must receive notice and the reasons for a denial. See 8 CFR 

§245.2(a)(5)(i); DHS, USCIS, Policy Manual, vol. 7, pt. A,

ch. 11—Decision Procedures (June 14, 2024) (requiring that 

a denial notice either “[e]xplain what eligibility requirements are not met and why they are not met” or “[e]xplain

the positive and negative factors considered, the relative 

weight given to each factor individually and collectively, 

and why the negative factors outweigh the positive factors”). He can renew his application in removal proceedings 

before an immigration court, see 8 U. S. C. §1229b(b)(1),

where DHS must present any evidence against him in adversarial proceedings, see §§1229(a), 1229a(b)(4)(B),

1229a(c)(3). From those removal proceedings, a noncitizen

can petition for review to the Board of Immigration Appeals 

(BIA), see 8 CFR §1003.1(b), and, ultimately, a federal court

of appeals, see 8 U. S. C. §1252(a). 

In contrast, a noncitizen denied admission via consular 

processing is entitled to nothing more than a cite to the statute under which the consular officer decided to exclude him. 

§1182(b)(1).2 He has no opportunity for administrative or 

—————— 2As the majority notes, if the consular officer denies admission based 

on “certain grounds related to crime and national security,” a noncitizen 

is entitled to “no explanation” at all. Ante, at 3 (citing 8 U. S. C. 

§1182(b)(3)). 
Cite as: 602 U. S. ____ (2024) 7 

SOTOMAYOR, J., dissenting 

judicial review, and can only submit more evidence and request reconsideration. 22 CFR §42.81(e). Former consular 

officers tell this Court that this lack of accountability, coupled with deficient information and inconsistent training,

means decisions often “rely on stereotypes or tropes,” even 

“bias or bad faith.” Brief for Former Consular Officers as 

Amici Curiae 8. Visa applicants may “experience disparate

outcomes based on nothing more than the luck or misfortune of which diplomatic post and consular officer . . . they

happen to be assigned.” Id., at 8–9. The State Department’s Office of the Inspector General has documented numerous deficiencies in consular processing across several

continents. See, e.g., ISP–I–19–14, Inspection of Embassy 

Bogota, Colombia, p. 16 (Apr. 2019) (finding consular managers in Bogota required visa adjudicators to maintain an 

average of 30 in-person interviews per hour). Supervisors

are required by the State Department to review a certain 

percentage of visa denials but often fail to do so. See, e.g., 

Office of Inspector General, ISP–I–19–17, Inspection of Embassy Santo Domingo, Dominican Republic, p. 12 (July 

2019) (finding “managers did not review 284 (23 percent) of 

the refusals that should have been reviewed between April 

1 and June 30, 2018”); Office of Inspector General, ISP–I–

16–24A, Inspection of Embassy Ankara, Turkey, p. 20

(Sept. 2016) (finding visa adjudicator failed to review the 

required 10% of visa issuances and 20% of visa denials).

When the Government requires one spouse to leave the 

country to apply for immigration status based on his marriage, it therefore asks him to give up the process he would 

receive in the United States and subject himself to the black 

box of consular processing. 

B 

Muñoz, a celebrated workers’ rights lawyer from Los Angeles, California, met Luis Asencio-Cordero in 2008, three 

years after he had arrived in the United States. They have 
 

 

 

 

8 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

been married since 2010 and have a child together. In 2013, 

Muñoz filed an immediate-relative petition for her husband, which USCIS approved. Because Asencio-Cordero 

had originally entered the United States without inspection, the Government required him to return to El Salvador, 

his country of origin, for consular processing to obtain his

immigrant visa. Yet he also faced a bar to reentry if he left 

the country. DHS granted him a waiver of this bar upon

his anticipated return to the United States because of the

“extreme hardship” Muñoz would suffer if he were excluded. 8 U. S. C. §1182(a)(9)(B)(v). In April 2015, AsencioCordero traveled from California to El Salvador. That was 

the last time he stood on American soil. 

Asencio-Cordero attended the initial consular interview 

in San Salvador on May 28, 2015. In December 2015, a consular officer denied his visa application. As justification, 

the denial cited only to §1182(a)(3)(A)(ii). That statute provides that any noncitizen “who a consular officer . . . knows, 

or has reasonable ground to believe, seeks to enter the

United States to engage solely, principally, or incidentally 

in . . . any other unlawful activity . . . is inadmissible.” In 

other words, the consular officer excluded Asencio-Cordero 

based on a belief that he planned to engage in some unspecified unlawful conduct upon return to the United States.

“[U]nlawful activity” could mean anything from jaywalking 

to murder. 

Asencio-Cordero has no criminal history in the United

States or El Salvador. See 50 F. 4th 906, 911 (CA9 2022); 

Brief for Respondents 8, n. 5 (“It is uncontested that 

Asencio-Cordero has never been charged with any crime”).

With no obvious justification for the consular officer’s belief,

Muñoz and Asencio-Cordero asked for reconsideration. 

Muñoz sought the help of Congresswoman Judy Chu, who 

sent a letter to the State Department on Muñoz’s behalf. 

The following day, the consulate responded to the letter

again with only a citation to §1182(a)(3)(A)(ii). In January 
Cite as: 602 U. S. ____ (2024) 9 

SOTOMAYOR, J., dissenting 

and April 2016, Muñoz asked the State Department for the 

factual basis for her husband’s inadmissibility. She and her 

husband provided evidence of her accolades at work and attestations of Asencio-Cordero’s good moral character. A few 

days later, the consulate notified Muñoz that the State Department had reviewed the denial and concurred with the

consular officer’s decision. It denied reconsideration. 

After the consulate denied reconsideration, Muñoz and 

her husband wrote to the State Department again requesting a factual basis for the inadmissibility decision. AsencioCordero has no criminal record, but he does have several 

tattoos from his teenage years. App. 22. They depict a

range of subjects, including “Our Lady of Guadalupe, Sigmund Freud, a ‘tribal’ pattern with a paw print, and theatrical masks with dice and cards.” Brief for Respondents 2, 

n. 2. Some of these images have deep significance in Latin 

American culture. See, e.g., Brief for Professors and Scholars as Amici Curiae 8–10 (“Many Latin Americans view La 

Virgen de Guadalupe as a special protector, and as a symbol 

of pan-Latinx identity that transcends attachment to any 

one geography”). Some also happen to appear on gang 

members. See ibid. (noting that “law enforcement agencies

and officials often use tattoos of common Catholic imagery 

. . . as indicia of gang membership”). Speculating about potential bases for a visa denial, Muñoz and her husband included additional evidence from a court-approved gang expert in their letter to the State Department. The expert

reviewed Asencio-Cordero’s tattoos and concluded that 

none were “‘related to any gang or criminal organization in 

the United States or elsewhere.’” 50 F. 4th, at 911. The 

State Department responded that it lacked authority to 

overturn consular decisions and “‘concurred in the finding

of ineligibility.’” Ibid. The consulate followed up in May 

2016, a year after Asencio-Cordero’s initial interview, by

listing all the entities that had reviewed the visa application and noting that “‘there is no appeal.’” Ibid. 
 

10 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

It was only after Muñoz and her husband sued the Government in Federal District Court that they finally received 

the factual basis for the denial. After almost two years of 

litigation, the Government submitted a declaration from a

State Department attorney-adviser. Id., at 912. That declaration stated that the consular officer denied AsencioCordero’s visa application under §1182(a)(3)(A)(ii) because

“‘based on the in-person interview, a criminal review of Mr. 

Asencio Cordero and a review of . . . Mr. Asencio Cordero’s 

tattoos, the consular officer determined that Mr. Asencio 

Cordero was a member of a known criminal organization 

. . . specifically MS-13.’” Ibid. (alterations omitted). 

The Court of Appeals ruled in Muñoz’s favor. It held that 

the Government’s reason was too little, too late. The denial 

of her husband’s visa burdened Muñoz’s right to marriage, 

and the Government had provided inadequate process. 

Even though the Government provided a “facially legitimate and bona fide” reason, that reason was not “timely” 

enough to satisfy constitutional due process requirements. 

Id., at 919–921. This Court granted the Government’s petition for a writ of certiorari. 601 U. S. ___ (2024). 

II 

There was a simple way to resolve this case. I agree with

JUSTICE GORSUCH that “the United States has now revealed the factual basis for its decision to deny [Muñoz’s] 

husband a visa,” and she has thus received whatever process she was due. Ante, at 1 (opinion concurring in judgment).3 That could and should have been the end of it. Instead, the majority swings for the fences. It seizes on the 

—————— 3Unlike JUSTICE GORSUCH, I would vacate and remand the opinion below. The Court of Appeals and District Court correctly resolved the two 

questions on which this Court granted certiorari. The Ninth Circuit nevertheless vacated the District Court’s judgment and remanded based on

the answer to a third question, which is not before this Court. See supra, 

at 2, n. 1; 50 F. 4th 906, 923–924 (2022) (“Because no ‘fact in the record’ 

justifying the denial of Asencio-Cordero’s visa was made available to 
 

Cite as: 602 U. S. ____ (2024) 11 

SOTOMAYOR, J., dissenting 

Government’s invitation to abrogate the right to marriage 

in the immigration context and sharply limit this Court’s

longstanding precedent.

Muñoz has a constitutionally protected interest in her

husband’s visa application because its denial burdened her 

right to marriage. She petitioned USCIS to recognize their

marriage so that her husband could remain lawfully beside

her and their child in the United States. It was the extreme 

hardship Muñoz faced from her husband’s exclusion that 

formed the basis for USCIS’s waiver of his inadmissibility.

For the majority, however, once Muñoz’s husband left the

country in reliance on those approvals, their marriage

ceased to matter. Suddenly, the Government owed her no 

explanation at all.

The constitutional right to marriage is not so flimsy. The 

Government cannot banish a U. S. citizen’s spouse and give 

only a bare statutory citation as an excuse. By denying

Muñoz the right to a factual basis for her husband’s exclusion, the majority departs from longstanding precedent and 

gravely undervalues the right to marriage in the immigration context. 

A 

The constitutional right to marriage has deep roots.

“[M]arriage,” this Court said over a century ago, “is something more than a mere contract.” Maynard v. Hill, 125 

U. S. 190, 210–211 (1888). It is “the most important relation in life,” id., at 205, and “the foundation of the family,” 

id., at 211. This Court has described it in one breath as the 

right “to marry, establish a home and bring up children,” a 

—————— 

[Muñoz and her husband] until nearly three years had elapsed after the 

denial, and until after litigation had begun, we conclude that the government did not meet the notice requirements of due process when it denied 

Asencio-Cordero’s visa”). I would let the Ninth Circuit decide in the first 

instance the effect of a Court holding that Muñoz received all the process

she was constitutionally due. 
 

12 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

right “long recognized at common law as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 

262 U. S. 390, 399 (1923). In upholding the right of Mildred

and Richard Loving to have their marriage license from the 

District of Columbia recognized by Virginia, this Court emphasized that “[m]arriage is one of the ‘basic civil rights of 

man,’ fundamental to our very existence and survival.” Loving v. Virginia, 388 U. S. 1, 12 (1967) (quoting Skinner v. 

Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942)). 

Indeed, the right to marriage was one of the first building

blocks of substantive due process. The right was so “‘fundamental’” and “‘implicit in the concept of ordered liberty’” 

that the Roe Court invoked it as part of the foundation underlying the right to abortion. Roe v. Wade, 410 U. S. 113, 

152–153 (1973) (cataloguing existing substantive due process rights as extending to “marriage, procreation, contraception, family relationships, and child rearing and education” (citations omitted)), overruled, Dobbs, 597 U. S. 215. 

Almost 10 years ago, this Court vindicated the expansiveness of the right to marriage. It upheld the right of James

Obergefell and his terminally ill husband, John Arthur, to

have their marriage from Maryland recognized in Ohio. Rejecting the idea that “Ohio can erase [Obergefell’s] marriage 

to John Arthur for all time” by declining to place Obergefell 

as the surviving spouse on Arthur’s death certificate, this

Court reasoned that “marriage is a right ‘older than the Bill 

of Rights.’” Obergefell, 576 U. S., at 666, 678. Marriage

“‘fulfils yearnings for security, safe haven, and connection

that express our common humanity.’” Id., at 666. “Marriage responds to the universal fear that a lonely person

might call out only to find no one there. It offers the hope

of companionship and understanding and assurance that 

while both still live there will be someone to care for the 

other.” Id., at 667. 

The majority, ignoring these precedents, makes the same 
 

 

Cite as: 602 U. S. ____ (2024) 13 

SOTOMAYOR, J., dissenting 

fatal error it made in Dobbs: requiring too “‘careful [a] description of the asserted fundamental liberty interest.’” 

Ante, at 9 (quoting Washington v. Glucksberg, 521 U. S. 

702, 721 (1997)); cf. Dobbs, 597 U. S., at 374–375 (Breyer,

SOTOMAYOR, and KAGAN, JJ., dissenting). The majority

faults Muñoz’s invocation of the “‘fundamental right to 

marriage’” as “difficult to pin down.” Ante, at 9. Instead, it 

tries to characterize her asserted right as “an entitlement

to bring [her husband] to the United States,” even though

it acknowledges that Muñoz “disclaims that characterization.” Ibid.

 Obergefell rejected what the majority does today as “inconsistent with the approach this Court has used in discussing [the] fundamental rights” of “marriage and intimacy.”

576 U. S., at 671. Cataloguing a half century of precedent 

on the right to marriage, the Court stressed that “Loving

did not ask about a ‘right to interracial marriage’; Turner 

did not ask about a ‘right of inmates to marry’; and Zablocki 

did not ask about a ‘right of fathers with unpaid child support duties to marry.’” Ibid. Instead, “each case inquired

about the right to marry in its comprehensive sense” of

“marriage and intimacy.” Ibid. Similarly, Muñoz does not 

argue that her marriage gives her the right to immigrate

her husband. 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. Meyer, 262 U. S., at 

399. 

This Court has never required that plaintiffs be fully prevented from exercising their right to marriage before invoking it. Instead, the question is whether a challenged government action burdens the right. For example, the Court 

in Zablocki v. Redhail, 434 U. S. 374 (1978), examined the 

“burde[n]” placed on fathers by a statute that required a 

hearing to “counsel” them “as to the necessity of fulfilling” 

any outstanding child support obligations before being 
 

14 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

granted permission to marry. Id., at 387–388. The Court 

in Turner v. Safley, 482 U. S. 78 (1987), applied Zablocki to 

incarcerated people to hold that the particular prison marriage restriction at issue “impermissibly burden[ed] the

right to marry.” 482 U. S., at 97. There can be no real question that excluding a citizen’s spouse from the country “burdens” the citizen’s right to marriage as this Court has repeatedly defined it. This Court has never held that a 

married couple’s ability to move their home elsewhere removes the burden on their constitutional rights. It did not 

tell Richard and Mildred Loving to stay in the District of 

Columbia or James Obergefell and John Arthur to stay in 

Maryland. It upheld their ability to exercise their right to

marriage wherever they sought to make their home.

Muñoz may be able to live in El Salvador alongside her

husband or at least visit him there, but not everyone is so

lucky. The majority’s holding will also extend to those couples who, like the Lovings and the Obergefells, depend on 

American law for their marriages’ validity. Same-sex couples may be forced to relocate to countries that do not recognize same-sex marriage, or even those that criminalize 

homosexuality. American husbands may be unable to follow their wives abroad if their wives’ countries of origin do

not recognize derivative immigration status from women

(as was the case in this country for many years, see ante, at 

12 (noting visa “quotas . . . for female citizens with noncitizen husbands” until 1952)). The majority’s failure to respect the right to marriage 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. Loving, 388 U. S., 

at 12. 

B 

Given that the Government has burdened Muñoz’s right 

to marriage by excluding her husband from the country, the 
 

 

Cite as: 602 U. S. ____ (2024) 15 

SOTOMAYOR, J., dissenting 

question is the remedy for that burden. Muñoz argues that 

this burden triggers procedural due process protections in

her husband’s visa denial. Emphasizing that substantive

due process rights like the right to marriage usually trigger

strict scrutiny, the majority faults Muñoz for creating a 

right “in a category of one: a substantive due process right 

that gets only procedural due process protection.” Ante, at 

10. Muñoz, however, did not create that category of rights.

This Court did. See Mandel, 408 U. S., at 768–770. This 

Court already set the ground rules for when the Government’s exercise of its extensive power over the exclusion of

noncitizens burdens a U. S. citizen’s constitutional rights.

See id., at 770. In short, a fundamental right may trigger 

procedural due process protections over a noncitizen’s exclusion, but such protections are limited. See ibid. 

Noncitizens who apply for visas from outside the United 

States have no constitutional entitlement to enter the country, and therefore typically have no constitutional process

protections in the visa application themselves. See Landon 

v. Plasencia, 459 U. S. 21, 32 (1982). In contrast, noncitizens who already live in the United States whom the Government seeks to remove have procedural due process protections during that removal. See Yick Wo v. Hopkins, 118 

U. S. 356, 369 (1886); Zadvydas v. Davis, 533 U. S. 678, 693 

(2001). Had the Government sought to remove Muñoz’s

husband when they were living together in the United

States, he would have had his own constitutional protections in those proceedings. Instead, because the Government forced him to leave the country and reenter in order

to adjust his immigration status, he lost them.

Not only do noncitizens seeking to enter the United 

States lack constitutional process rights in their visa applications. This Court has further insulated the Government’s 

visa determinations from review by declining to evaluate 

them at all. See ante, at 6–7. This judge-made “doctrine of 

consular nonreviewability” reflects the Judicial Branch’s 
 

16 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

recognition that the “‘admission and exclusion of foreign

nationals’” is an area of unusually heightened congressional and executive power. Ante, at 6–7.4 When the denial of a noncitizen’s visa burdens a U. S. citizen’s constitutional rights, however, this Court has had to reconcile the 

importance of those rights with its recognition of Government authority over visa determinations. In Mandel, it set 

the remedy. The Mandel Court held that when a visa denial “implicate[s]” a citizen’s rights, a court will not look behind a “facially legitimate and bona fide” reason for the denial. 408 U. S., at 765, 769. 

In Mandel, a group of U. S. professors sued the Government over the visa denial of Dr. Ernest E. Mandel, a famous 

Belgian Marxist. See id., at 756, 759–760. The professors

argued that excluding Mandel burdened their First Amendment right to hear and meet with him in person. See id., at 

760. The Court agreed that the professors had a First 

Amendment “‘right to receive information’” from Mandel. 

—————— 4 Judges created this doctrine because of the otherwise “strong presumption that Congress intends judicial review of administrative action.” Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 

670 (1986). The majority emphasizes that the Government asked the 

Court for the holding it reaches today. See ante, at 6, n. 3. It is hardly 

unusual for the Government to ask this Court for less judicial review 

over its immigration decisions. See, e.g., Wilkinson v. Garland, 601 U. S. 

209 (2024) (arguing that eligibility for cancellation of removal is unreviewable); Santos-Zacaria v. Garland, 598 U. S. 411 (2023) (arguing that 

noncitizens must request discretionary forms of administrative review 

before challenging a final order of removal in federal court); Patel v. Garland, 596 U. S. 328 (2022) (arguing that federal courts lack jurisdiction

to review facts found as part of eligibility determination for discretionary 

relief ); Garland v. Aleman Gonzalez, 596 U. S. 543 (2022) (arguing that 

district courts lack jurisdiction to entertain noncitizens’ requests for 

class-wide injunctive relief ). Unusually, in this case, the Government’s 

argument against review is not based on any statutes passed by Congress but on a doctrine that this Court created itself. Rather than exercise the restraint counseled by Mandel, the majority instead chooses to

exclude a fundamental right from Mandel’s prudent exception. See infra, at 16–19. 
 

Cite as: 602 U. S. ____ (2024) 17 

SOTOMAYOR, J., dissenting 

Id., at 762, 764. It also emphasized, as the majority does 

today, Congress’s power over the admission and exclusion 

of noncitizens. See id., at 766–767; ante, at 6–7. To avoid 

the need to balance “the strength of the audience’s interest

against that of the Government in refusing a waiver to the 

particular [noncitizen] applicant, according to some as yet 

undetermined standard,” Mandel, 408 U. S., at 768–769, 

the Court instead noted that “the Attorney General did inform Mandel’s counsel of the reason for refusing him a

waiver. And that reason was facially legitimate and bona 

fide.” Id., at 769 (emphasis added). Therefore, “when the 

Executive exercises [conditional power to exclude] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that 

discretion, nor test it by balancing its justification against 

the First Amendment interests of those who seek personal

communication with the applicant.” Id., at 770. In other 

words, when a visa denial burdens a noncitizen’s constitutional rights, rather than attempt to balance the competing

interests under strict scrutiny, a court should accept the 

Government’s “facially legitimate and bona fide reason.” 

Ibid. That minimal requirement ensures that courts do not 

unduly intrude on “the Government’s sovereign authority 

to set the terms governing the admission and exclusion of 

noncitizens,” ante, at 11, while also ensuring that the Government does not arbitrarily burden citizens’ constitutional

rights.

This Court has repeatedly relied on Mandel’s test in the 

immigration context. See, e.g., Trump v. Hawaii, 585 U. S. 

667, 703 (2018) (noting that “this Court has engaged in a 

circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen”); 

Fiallo v. Bell, 430 U. S. 787, 794, 799 (1977) (relying on 

Mandel in declining to “probe and test the justifications for

[a] legislative” distinction between mothers and fathers because this Court has applied limited scrutiny to “resolv[e] 
 

18 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

similar challenges to immigration legislation based on

other constitutional rights of citizens”).5 Indeed, less than 

a decade ago, six Justices ruling on the exact legal question

the Court confronts today would have held that Mandel controlled or extended its protections even further in the marriage context. See Kerry v. Din, 576 U. S. 86, 103–104 

(2015) (Kennedy, J., concurring in judgment) (“The reasoning and the holding in Mandel control here. . . . Like the 

professors who sought an audience with Dr. Mandel, [respondent] claims her constitutional rights were burdened 

by the denial of a visa to a noncitizen, namely her husband”); id., at 107 (Breyer, J., dissenting) (reasoning that 

—————— 5Despite the majority’s claim that its decision is the majority rule in 

the Courts of Appeals, ante, at 8, and n. 5, lower courts have rarely 

reached the question the majority reaches today. That is because they

have relied on Mandel to hold that the Government has in any case provided a “ ‘facially legitimate and bona fide’ ” reason. See, e.g., Sesay v. 

United States, 984 F. 3d 312, 315–316, and n. 2 (CA4 2021); Del Valle v. 

U. S. Dept. of State, 16 F. 4th 832, 838–842 (CA11 2021); Yafai v. Pompeo, 912 F. 3d 1018, 1020–1021 (CA7 2019). One of the cases the majority cites pre-dates Mandel, Silverman v. Rogers, 437 F. 2d 102 (CA1 

1970), and two others reached the majority’s holding based only on conclusory assertions, see Burrafato v. U. S. Dept. of State, 523 F. 2d 554, 

555–557 (CA2 1975); Bright v. Parra, 919 F. 2d 31, 34 (CA5 1990) (per curiam). Only two Circuits have used the majority’s reasoning to hold that 

a U. S. citizen’s right to marriage does not trigger the Mandel remedy. 

In one, the court had an alternative holding that “even if we take [the

right to marriage] as a given, the argument fails because the consulate 

provided a facially legitimate reason for the visa denials.” Baaghil v. 

Miller, 1 F. 4th 427, 434 (CA6 2021). In the other, a concurring judge 

urged his colleagues to resolve this challenge on the same narrow holding

that the majority could have followed today. See, e.g., Colindres v. 

United States Dept. of State, 71 F. 4th 1018, 1027 (CADC 2023) (opinion

of Srinivasan, J.) (“There is no need for us to take up the merits of [the]

constitutional question . . . and I would refrain from doing so. Rather, 

we can rest our decision solely on the ground . . . that even assuming

[appellant’s] fundamental right to marriage includes a protected interest 

in living in the country with her husband, such that at least some form 

of due process scrutiny applies, the government’s denial of a visa to him 

afforded her adequate process”). 
 

Cite as: 602 U. S. ____ (2024) 19 

SOTOMAYOR, J., dissenting 

respondent’s “liberty interest [in] her freedom to live together with her husband in the United States” is the kind 

“to which the Due Process Clause grants procedural protection”).

Outside the immigration context, this Court has endorsed similar tests in circumstances where there is a 

heightened underlying governmental power. For instance, 

in Turner, the Court evaluated the right to marriage in the 

prison context. Even though an incarcerated person “‘retains those [constitutional] rights that are not inconsistent

with his status as a prisoner or with the legitimate penological objectives of the corrections system,’” the Court emphasized that “[t]he right to marry, like many other rights, is

subject to substantial restrictions as a result of incarceration.” 482 U. S., at 95 (quoting Pell v. Procunier, 417 U. S. 

817, 822 (1974)). Only because the challenged prison regulation there was not “reasonably related” to the government’s articulated penological interests, or “legitimate security and rehabilitation concerns,” did this Court hold it 

unconstitutional. Turner, 482 U. S., at 95; see id., at 99. 

 Just as Turner looked at burdens on the right to marriage 

through the narrow lens of “penological interests” to defer

to the government’s control over prisons, Mandel used a “facially legitimate and bona fide reason” to defer to the Government’s power over the exclusion of noncitizens. Neither 

case erased the constitutional right at issue. The Court 

simply recognized that the right can be substantially limited in areas where the government exercises unusually 

heightened control.

Applying Mandel and Turner here, the remedy is clear.

The Government’s exclusion of Muñoz’s husband entitles 

her at least to the remedy required in Mandel: a “facially

legitimate and bona fide reason” for the exclusion. 408 

U. S., at 770. 
 

 

20 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

C 

The majority resists this conclusion by worrying about its 

“unsettling collateral consequences.” Ante, at 16. The majority poses a series of hypotheticals that it fears will result 

from recognizing the limited right Muñoz proposes. These 

fears are groundless.

First, the majority’s concern that applying Mandel to 

Muñoz’s right to marriage in this case will result in a slippery slope of constitutional challenges is unfounded. 

Muñoz’s right triggers limited process protections in part

because her husband lost his own procedural protections

when the Government required him to leave the country. 

Muñoz’s right to marriage raises that floor from zero process to some by requiring the Government to provide a “facially legitimate and bona fide reason” when her husband 

receives no process. In contrast, a citizen’s liberty interest

“in the removal proceeding of her spouse” in the United 

States, ante, at 16, would presumably be limited by the

noncitizen’s own due process rights in that same proceeding. Similarly, any challenge from a wife to her husband’s

“‘assignment to a remote prison,’” ibid., would presumably

be limited by the criminal procedural protections her husband already received.

Second, the majority’s reliance on O’Bannon v. Town 

Court Nursing Center, 447 U. S. 773 (1980), is misplaced 

and highlights the speculative nature of its concerns. 

O’Bannon rejected a freestanding constitutional interest in 

avoiding “serious trauma.” Id., at 788. The residents of a 

government-funded nursing home sought relief from transfer to alternative housing because of the emotional harm

they would suffer from the move. Id., at 777–781, 784. 

Muñoz, however, does not rely on a free-floating emotional 

harm that separation from her husband will cause. She invokes her fundamental right to marry, live, and raise a family with her husband, the right recognized by this Court for 

centuries. See supra, at 11–14. Denying her husband entry 
Cite as: 602 U. S. ____ (2024) 21 

SOTOMAYOR, J., dissenting 

to the country directly burdens that right.

In sum, the majority’s concerns are unwarranted. There 

are few circumstances where the limited relief sought by 

Muñoz would be available. 

III 

A “facially legitimate and bona fide” reason may seem

like a meager remedy for burdening a fundamental right. 

Yet even the barest explanation requirement can be powerful. The majority relies heavily on United States ex rel. 

Knauff v. Shaughnessy, 338 U. S. 537 (1950). See ante, at 

6–7, 13–14. A closer look at the story of Ellen Knauff, however, illustrates the importance of putting the Government 

to a minimal evidence requirement when a visa denial burdens a constitutional right.

 Knauff ’s U. S. citizen husband sought to bring her to the 

United States after they married during his deployment to

Germany. After this Court upheld her exclusion on undisclosed national security grounds, there was a public outcry. 

See C. Weisselberg, The Exclusion and Detention of Aliens: 

Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 

143 U. Pa. L. Rev. 933, 958–964 (1995). Both Houses of 

Congress introduced private bills for her relief and, after 

the Attorney General rushed to remove Knauff from Ellis

Island before Congress could act, Justice Jackson (who had 

vigorously dissented in the case) issued a stay from this

Court. See id., at 958, n. 127. After extensive advocacy, the 

Attorney General ordered immigration officials to reopen 

the case. See id., at 961–962. Eventually, Knauff won her 

case before the BIA when the Government failed to prove 

up its national security concerns. Id., at 963–964. She was 

finally admitted as a lawful permanent resident. Id., at 

964. 

The majority relies heavily on “[t]he rule of Knauff ”: that 

“the Attorney General has the unchallengeable power to exclude” a noncitizen. Ibid.; ante, at 14 (emphasizing that 
 

22 DEPARTMENT OF STATE v. MUÑOZ 

SOTOMAYOR, J., dissenting 

“‘[n]o limits can be put by the courts upon’” the exercise of

the Government’s power to “‘forbid aliens or classes of aliens from coming within their borders’”). Yet, “the full story

of Ellen Knauff shows a populace and a Congress unwilling 

to accept the exercise of this sort of raw power.” Weisselberg, 143 U. Pa. L. Rev., at 964. “Once the government was

required to justify its exclusion decision with substantial

and reliable evidence, in an open proceeding, Knauff gained 

admission into the United States.” Ibid. 

Knauff brought her own habeas petition to challenge her 

exclusion. Knauff, 338 U. S., at 539–540. Her husband did 

not argue that her exclusion burdened his right to marriage. Twenty-two years after Knauff, however, when faced 

with such a challenge, this Court limited the justification 

that the Government must provide in these circumstances 

to a “facially legitimate and bona fide reason.” Mandel, 408 

U. S., at 770. The majority, not content to resolve this case 

on even those narrow grounds, instead relieves the Government of any need to justify itself at all. Knauff ’s story illustrates why the right to marriage deserves more. By leaving U. S. citizens without even a factual basis for their 

spouses’ exclusion, the majority paves the way for arbitrary

denials of a right this Court has repeatedly held among the 

most important to our Nation. 

* * * 

A traveler to the United States two centuries ago reported that “‘[t]here is certainly no country in the world

where the tie of marriage is so much respected as in America.’” Obergefell, 576 U. S., at 669 (quoting 1 A. de Tocqueville, Democracy in America 309 (H. Reeve transl., rev. ed. 

1900)). Today, the majority fails to live up to that centuriesold promise. Muñoz may be able to live with her husband 

in El Salvador, but it will mean raising her U. S.-citizen

child outside the United States. Others will be less fortunate. The burden will fall most heavily on same-sex couples 
Cite as: 602 U. S. ____ (2024) 23 

SOTOMAYOR, J., dissenting 

and others who lack the ability, for legal or financial reasons, to make a home in the noncitizen spouse’s country of 

origin. For those couples, this Court’s vision of marriage as

the “assurance that while both still live there will be someone to care for the other” rings hollow. Obergefell, 576 U. S., 

at 667. I respectfully dissent.