Dep’t of State v. Munoz:  Constitution doesn’t require noncitizen spouses be admitted to U.S

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

           There is no constitutional right for a spouse to have their noncitizen-spouse admitted into the country, the U.S. Supreme Court held June 21 in Department of State v. Munoz. 

           Sandra Munoz is a U.S. citizen who married Luis Asencio-Cordero, a citizen of El Salvador.

           Asencio-Cordero applied for admission into the county, but was denied. 

           The Government refused to give a reason for the denial, other than to cite 8 U.S.C. Sec. 1182(b), which makes noncitizens inadmissible on grounds related to crime and national security.  The statute does not require the Government to provide further explanation for the denial.

           Munoz filed suit to challenge the Government’s refusal to provide a reason for the denial and the denial itself.  She claimed she had a Fifth Amendment liberty interest in being able to live with her spouse in the U.S..

           Asencio-Cordero could not bring suit himself because, as a noncitizen, he had no right to enter the country.

           The District Court ordered discovery, from which Munoz learned that her husband was deemed inadmissible because he allegedly belonged to a criminal gang, MS-13.  Munoz and Asencio-Cordero denied he was a gang member.

           The District Court ultimately ruled for the Government.

           The Ninth Circuit vacated that judgment and held that Munoz had a constitutionally protected liberty interest in her husband’s visa application.

Holding

           The Supreme Court, in an opinion joined by five justices, held Munoz could not bring suit because she had no constitutionally protected interest in having her husband admitted to the country.

           Munoz’s argument “is built on the premise that the right to bring her noncitizen spouse to the United States is an unenumerated constitutional right”, Justice Barrett wrote for the Court.

           “To establish this premise, she must show that the asserted right is deeply rooted in the Nation’s history and tradition”, the Court said. 

           “She cannot make that showing”, the Court said.  “In fact, Congress’s longstanding regulation of spousal immigration – including through bars on admissibility – cuts the other way.”

           “[W]hile Congress has made it easier for spouses to immigrate, it has never made spousal immigration a matter of right”, the Court said.  “Of particular relevance to Munoz, Congress has not exempted spouses from inadmissibility restrictions” like the one here.

           “Munoz’s claim to a procedural due process right in someone else’s legal proceeding would have unsettling collateral consequences”, the Court said.  “Consider where her logic leads:  Could a wife challenge her husband’s assignment to a remote prison or to an oversees military deployment, even though prisoners and service members themselves cannot bring such challenges?”

Concurring and Dissenting Opinions

           Justice Gorsuch concurred in judgment, but would not have reached the constitutional issue.

           Gorsuch noted Munoz began the litigation to discover the specific reason her husband was denied admission.  She was given that reason during discovery, and Munoz can use and respond to that information in seeking to have her husband admitted again.

           “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”, Gorsuch said. 

           “Whether or not Ms. Munoz had a constitutional right to the information she wanted, the government gave it to her”, Gorsuch said.  “I therefore would reverse the Ninth Circuit’s decision without reaching the government’s constitutional arguments.”

           Justice Sotomayor, joined by Justices Kagan and Jackson, dissented.

           The Court could have resolved the case based existing precedent which allows exclusion from the country if the Government provides a “facially legitimate and bona fide reason” for the exclusion, Sotomayor said. 

           Asencio-Cordero’s alleged membership in a criminal gang would satisfy that test, Sotomayor said.  “Under this Court’s precedent, that is enough.”

           “Instead, the majority today chooses a broad holding on marriage over a narrow one on precedent”, Sotomayor said.

           The opinion diminishes the “fundamental” right of marriage, she said.

           Sotomayor noted in 2022, in the Court’s abortion decision in Dobbs, the Court had stated that its opinion there “does not undermine … in any way” other 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”.

           But, here, “the Court fails at the first pass”, Sotomayor said.  “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”.