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Department of State v. Munoz,2024 U.S. LEXIS 2716 (S. Ct. June 21, 2024) (Barrett, J.)

Department of State v. Munoz, Supreme Court of The United States, decided 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 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, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). She cannot make that showing. In fact, Congress’s longstanding regulation of spousal immigration—including through bars on admissibility—cuts the other way.