SCOTUS: No Constitutional Right to Bring Noncitizen Spouse Into Country

A reasonable ruling with horrible consequences.

WSJ (“Supreme Court Says U.S. Citizens Don’t Have Right to Bring Noncitizen Spouses to U.S.“):

The Supreme Court ruled Friday that U.S. citizens don’t have a fundamental right to have their noncitizen spouses admitted to the U.S.

The court, in a 6-3 decision along ideological lines, ruled against a California woman who sued the State Department and claimed her rights were violated because her Salvadoran husband’s green card application was denied without explanation.

The ruling deals a blow to Americans who want to marry foreigners. U.S. courts have already drastically limited Americans’ ability to challenge visa denials in court, but Friday’s decision further limits the grounds on which they can sue.

Writing for the majority, Justice Amy Coney Barrett said Congress is free to write immigration laws in a way that gives priority to family unification, but the Constitution doesn’t require such policies.

“This is an area in which more than family unity is at play: Other issues, including national security and foreign policy, matter too,” Barrett wrote.

On that description, the majority is clearly right. Congress has the authority to make immigration policy and has delegated enforcement to various Executive agencies, notably US Customs and Border Protection. And, while the ruling was along predictable lines, this is noteworthy:

The Biden administration had urged the court to rule against the couple—a move that angered some pro-immigration groups.

Biden has threaded the needle between trying to satisfy those wanting more aggressive enforcement of our borders while also making some humanitarian concessions for those already here illegally.

Generalities aside, though, the specific case in controversy is rather outrageous:

The case was brought by Sandra Muñoz, a U.S. citizen living in California who works as a workers’ rights attorney.

In 2008, she met Luis Asencio-Cordero, a Salvadoran citizen who was living without authorization in the Los Angeles area.

Muñoz and Asencio-Cordero married in 2010 and had a child together. She eventually sought a spousal visa for him, and during the final stage of that process in 2015 he was required to travel from Los Angeles to the U.S. consulate in El Salvador for an interview.

He has been stuck in El Salvador ever since. The State Department denied his application, citing a statute that allows the U.S. government to turn away applicants who could be engaged in illegal activity. The department didn’t provide an explanation for why it believed he might break the law.

Later, after years of litigation, the government disclosed that the consular officer found that Asencio-Cordero may be a gang member because of his tattoos. Asencio-Cordero submitted a declaration that he’s never been a gang member, and that his tattoos are “expressive of his intellectualism and deeply-held Catholic faith.”

So, basically, an American citizen wife and her American citizen child have been separated from their husband and father for nine years because of an arbitrary and wrong decision by a low-level official. And the Court ruled they have no rights in the matter.

Muñoz alleged the government had violated her fundamental right to live with her spouse in her country of citizenship without affording her due process. 

The U.S. Ninth Circuit Court of Appeals, in San Francisco, ruled for Muñoz in 2022, saying she “possessed a liberty interest in her husband’s visa application” and that the government therefore owed her at least an explanation for denying it.

The high court reversed that ruling. 

Barrett wrote that Muñoz has no legal interest in the visa application of a third party—that is, her husband. And as a noncitizen overseas, Asencio-Cordero has no right to federal court review of the U.S. consul’s visa decision. 

In dissent, the court’s three liberal justices said the government should be required to explain its reasoning and warned the decision could particularly harm people with limited legal and financial means, as well as same-sex couples.

Justice Sonia Sotomayor, writing for the dissenters, said some same-sex couples won’t be able to live together in the U.S. and may be forced to relocate to countries that don’t recognize same-sex marriage or criminalize homosexuality.

“Muñoz may be able to live in El Salvador alongside her husband or at least visit him there, but not everyone is so lucky,” Sotomayor wrote.

The homosexuality argument is just bizarre but, yes, it seems reasonable that spouses have a due process interest in the immigration status of their partner. But SCOTUS is likely right here that it’s up to Congress to create that policy via the legislative process rather than to have the judiciary find it hiding in the Constitution.

The sad irony is that, had Asencio-Cordero never filed for legal status and just remained here illegally, he’d be home free.

The ruling comes just days after President Biden created a new program essentially easing a path to permanent residency for spouses of U.S. citizens who are in the country illegally.

The circumstances from Friday’s case differ from the types of situations the Biden program would benefit. In Muñoz’s case, had her husband remained in the U.S. rather than leaving the country for a visa appointment, it is possible he could have benefited from Biden’s new policy.

I understand why the administration opposed the 9th Circuit’s ruling. It would be a nightmare if every consular decision was able to be litigated in court.

My knowledge of immigration law is broad, so I have no sense as to whether Biden could issue an executive order creating more due process rights in the case of aliens married to U.S. citizens. But this surely seems like a matter that Congress could agree to fix on a bipartisan basis.

FILED UNDER: Borders and Immigration, Law and the Courts, Supreme Court, US Politics, , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mister Bluster says:

    But this surely seems like a matter that Congress could agree to fix on a bipartisan basis.

    Dream on…

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  2. Jen says:

    The homosexuality argument is just bizarre but, yes, it seems reasonable that spouses have a due process interest in the immigration status of their partner.

    I don’t think it’s that bizarre. In the case of Muñoz, theoretically she and her son could stay with her partner/son’s father if she decided to immigrate to El Salvador. That would not be the case for same-sex couples in a wide number of countries, essentially leaving married same-sex partners with a strange choice: either live separately–permanently–or try and find a country for both to immigrate to that recognizes same-sex relationships. These are not restrictions that a hetro couple would face. So no, not bizarre to call this out IMHO.

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  3. Andy says:

    Yes, it would be ludicrous to find the Constitution requires giving the foreign spouses of US citizens a green card.

    But there should be more deference for approving spouses than random people. State (at the direction of the President) could issue rules and guidance to that effect and they could certainly change the rules on disclosure requirements for negative decisions. It outrageous to me whenever bureaucrats and bureaucracies have untransparent processes and refuse to provide reasons for a particular decision.

    State also has the authority to rationalize and provide oversight regarding the decisions of low-level staff in consulates to ensure their decisions aren’t arbitrary.

    Yes, Congress could and should mandate better rules, but State and the Executive have the needed authority to prevent what happened to this family already.

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  4. DrDaveT says:

    #snark
    Clearly there is an opportunity here for Democrats to introduce legislation. They could call it the “Defense of Marriage Act”…
    #/snark

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  5. Stormy Dragon says:

    The State Department denied his application, citing a statute that allows the U.S. government to turn away applicants who could be engaged in illegal activity.

    I’m not sure why a ruling that the government is free to sanction people who have not been charged with, much less convicted of, crimes is “reasonable”, beyond the suspiciously large overlap “reasonable” appears to enjoy with “does not directly impact me specifically” in Dr. Joyner’s mind.

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  6. Stormy Dragon says:

    Also want to point out the utter hypocrisy of Thomas here. It’s unjust to temporarily remove a white person’s firearms after a full court hearing, but any low level beuracrat can kick a minority person out of the country and cannot be questioned in any way

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  7. just nutha says:

    @Stormy Dragon: “Reasonable”==”does not directly impact me” is a feature of conservatism. Lots of ‘Murkans will agree. It’s reasonable to expect Dr. Joyner to be one of them.

    ETA: The Justice Thomas aspect is equally unremarkable. “Some animals are more equal than others” has never been a feature exclusive to only one faction of political players. George Orwell not withstanding.

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  8. Gustopher says:

    The homosexuality argument is just bizarre

    Let’s not pretend that immigration officials are without bias. We live in a country where a sizable minority believe that LGBTQ+ folks are groomers and pedophiles, and where basically everyone else hears these claims so frequently that it may affect them.

    Having to state a reason, and having some due process around that reason, helps avoid any official claiming something like suspected gang activity when he really means the immigrant is a filthy sodomite.

    I understand why the administration opposed the 9th Circuit’s ruling. It would be a nightmare if every consular decision was able to be litigated in court.

    Like speeding tickets, burglaries and countless other things?

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  9. CSK says:

    I wonder if Munoz had chosen to marry someone of pure northern European ancestry if she and her husband would be having these difficulties.

    On the other hand, my cousin married a Swede, and they found out that if they left the U.S. for a brief vacation, he wouldn’t be allowed back into it.

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  10. wr says:

    @CSK: “I wonder if Munoz had chosen to marry someone of pure northern European ancestry if she and her husband would be having these difficulties.”

    Probably only if quit her job as a workers’ rights attorney and went to work for a union-busting firm. I suspect at least five of the six would have found it outrageous that the spouse of such an upstanding citizen be kept out of the country.

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  11. Bill Jempty says:

    Thousands of United States military members have married women they met while stationed overseas. How will this affect them?

    I’m one of those people. In 1988 I met Leonita while I was stationed at Subic Bay Philippines. We married in May 1989 and I immediately began the immigrant spouse petition process. It took just under seven months and she legally immigrated here on Dec 17, 1989. Before that, I left the Navy. For a little over two months I was in the US and DW was in the Philippines. Maintaining two households is expensive. Going to the US embassy and getting my wife a tourist or any other visa was out.

    Today I hear the petition process takes much longer. Are military wives still treated the same way? There is some evidence they are. Meet Hotaru Ferschke who I wrote lots about back in my blogging days. Hotaru’s ordeal had a happy ending but it took an act of Congress for her to immigrate here. One member of Congress could have stopped it, and one almost did. Don’t get me started* on what I think of former Wisconsin Congressman James Sensenbrenner.

    After WWII/the Pacific theater and the Korean wars, the United States military deliberately put obstacles in the path of soldiers who married local women. Some of these couples persevered but many didn’t.

    *- I blogged about the bill at ROK Drop but those posts aren’t archived. In one or two of them I let Sensenbrenner have it. Reportedly the scumbag was very unhappy about what was written on the internet about his asinine stupidity.

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  12. James Joyner says:

    @Stormy Dragon: @just nutha: The key facts here are that the individual is not a US Citizen and is in another country. Of course low-level officials are going to have substantial discretion. But, as noted in the OP, I find the application here horrendous since he’s married to a US Citizen and has a US Citizen child. As @Andy notes, the rules should be different in such cases.

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  13. Bill Jempty says:

    @James Joyner: James,

    The rules should be different but they aren’t. Read the saga (which I posted links to in another post not two far above this one) of Hotaru Ferschke, the wife of a marine killed in action and mother of his child. It took over years after Michael Ferschke’s death for this country to see fit that his wife and son to immigrate here and only after a special bill was passed by Congress.

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  14. al Ameda says:

    @Stormy Dragon:

    Also want to point out the utter hypocrisy of Thomas here. It’s unjust to temporarily remove a white person’s firearms after a full court hearing, but any low level beuracrat can kick a minority person out of the country and cannot be questioned in any way

    Not sure that this is entirely relevant, but when the ‘bumpstock ruling’ came down a few days ago, a good friend referred to Justice Thomas as ‘Machine Gun Clarence.’

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  15. Gustopher says:

    @James Joyner:

    The key facts here are that the individual is not a US Citizen and is in another country.

    He’s in another country? You don’t say…

    during the final stage of that process in 2015 he was required to travel from Los Angeles to the U.S. consulate in El Salvador for an interview.

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  16. Modulo Myself says:

    From the description, the majority’s logic seems insane:

    Barrett wrote that Muñoz has no legal interest in the visa application of a third party—that is, her husband. And as a noncitizen overseas, Asencio-Cordero has no right to federal court review of the U.S. consul’s visa decision.

    Fairly certain that one thing about marriage is you do have a legal interest in your spouse. Granted, she grew up in a cult and was told who to marry, so maybe I’m coming to the matter in a way unfamiliar to the real Americans who grew up with a cult leader, but it strikes me as if they are trying to defend the indefensible here.

    As far as gay marriage, there’s a definitely a degree of ‘let’s scrap marriage now that the gays have the same rights’ in the rather barren interior lives of people like Amy Barrett.

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  17. Just nutha ignint cracker says:

    Fairly certain that one thing about marriage is you do have a legal interest in your spouse.

    I was going to mention the same thing. Instead, I simply made reference to giving a pseudo-legal veneer to “because I said so” in the gun post. Same phenomenon here.

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  18. Jack says:

    The legal justification denying this chap with coming to the US is for another venue, not the Supreme Court. Sotomayers reaction is an example of everything wrong with the Court over the years.

    The SCourt’s issue was whether cohabitation is allowed no matter other legal issues. Its just plain stupid to argue that. The “wise Latina” bullshit aside. Imagine that principle applying to a felon. “Well, you have the right to cohabitate with your wife, even if you are a convicted and jailed murderer. Out of jail you go.”

    At the risk of repeating, the decision on this guy is for one venue, the issue for the Court, separate.

    Sotomayer has no business as a Supreme Court justice. She’s a hack.

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  19. Moosebreath says:

    @Jack:

    “The SCourt’s issue was whether cohabitation is allowed no matter other legal issues.”

    From the article quoted in the original post: “Muñoz and Asencio-Cordero married in 2010”.

    Reading really is fundamental…

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  20. Alex K says:

    If you read the text of the Constitution literally, Congress has no power to prevent anyone from coming into the U.S. or to deport them…

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  21. James Joyner says:

    @Alex K:

    Article I, Section 8, Clause 18:

    [The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Long-standing Supreme Court precedent recognizes Congress as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals (aliens, under governing statutes and case law) may enter or remain in the United States.1 But while Congress’s power over immigration is well established, defining its constitutional underpinnings is more difficult. The Constitution does not mention immigration, but parts of the Constitution address related subjects. The Supreme Court has sometimes relied upon Congress’s powers over naturalization (the term and conditions in which an alien becomes a U.S. citizen),2 foreign commerce,3 and, to a lesser extent, upon the Executive Branch’s implied Article II foreign affairs power,4 as sources of federal immigration power.5 While these powers continue to be cited as supporting the immigration power, since the late nineteenth century, the Supreme Court has described the power as flowing from the Constitution’s establishment of a federal government.6 The United States government possesses all the powers incident to a sovereign, including unqualified authority over the Nation’s borders and the ability to determine whether foreign nationals may come within its territory.7 The Supreme Court has generally assigned the constitutional power to regulate immigration to Congress, with executive authority mainly derived from congressional delegations of authority.8
    In exercising its power over immigration, Congress can make laws concerning aliens that would be unconstitutional if applied to citizens.9 The Supreme Court has interpreted that power to apply with most force to the admission and exclusion of nonresident aliens abroad seeking to enter the United States.10 The Court has further upheld laws excluding aliens from entry on the basis of ethnicity,11 gender and legitimacy,12 and political belief.13 It has also upheld an Executive Branch exclusion policy, premised on a broad statutory delegation of authority, that some evidence suggested was motivated by religious animus.14 But the immigration power has proven less than absolute when directed at aliens already physically present within the United States.15 Even so, the Supreme Court’s jurisprudence reflects that Congress retains broad power to regulate immigration and that the Court will accord substantial deference to the government’s immigration policies, particularly those that implicate matters of national security.

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  22. Lounsbury says:

    Leaving aside the realism of policy prescriptions* the reaction focused on Supreme Court rather than Congress where such law is properly made as per your constitution is a fundamental political error of Activists, a sugar rush using courts instead of the harder political work of political process. Obviously the lessons of abortion should have taught is necessary for sustained resolutions, rather than courts and Adminstrative action reversed when the next political cycle changes the party.

    Virtue-flattery for the quick sugar rush that will fade and fail.

    * the practicality seems utterly absent, the broad international reaction in both upper-income and middle and even lower-middle income countries to migration rather indicate that the comfortable professional class rooted Lefty maximalism on migration and immigration does not have political foundation to be survivable policy.

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