The U.S. Supreme Court today ruled 6 – 3 in Department of State v. Muñoz that “a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”

The case involved Sandra Muñoz, a U.S. citizen, who sued the federal government after her husband, Luis Asencio Cordero, a citizen of El Salvador, was denied a visa after a U.S. consular officer in San Salvador found he was inadmissible under federal law. His visa refusal letter referred to the applicable section of law, INA 212(a)(3)(A)(ii) (“other unlawful activity”), but did not provide a detailed reason for the denial. As part of the litigation record, the State Department later clarified that the basis for the refusal was that the consular officer had reason to believe Asencio Cordero was a member of the gang MS-13, based in part on his tattoos.

In 2022, the 9th U.S. Circuit Court of Appeals ruled in favor of the couple. The Biden administration asked the Supreme Court to reverse the ruling. Today, in addressing the primary issues, the court held that the consular officer’s decision for a basis of refusal was final and conclusive and it would not interfere with such policy choices despite the harm Muñoz endured because, ultimately, she does not have a constitutional right to participate in her spouse’s consular proceeding.

Additional Information: The dissent, written by Justice Sonia Sotomayor and joined by Justices Elena Kagan and Katanji Brown Jackson, found the ruling broad on marriage and narrow on procedure, citing supporting briefs from former consular officers that demonstrated consular decisions “often rely on stereotypes or tropes…even bias or bad faith.”

A transcript of the oral arguments presented before the court in April this year can be found here. Audio of the oral arguments can be heard here.

This alert has been provided by the BAL U.S. Practice Group.

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