BREAKING: SCOTUS rules US citizens do not have right for non-citizen spouses to get legal status if visa is denied

"Munoz’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," a syllabus of the court’s opinion states.

Justice Amy Coney Barrett wrote in the decision for the majority that Luis Asencio-Cordero sought to enter the US to live with his wife, Sandra Munoz, but his visa was denied by a consular officer who found that Asencio-Cordero was affiliated with the violent gang MS-13.

"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," Barrett wrote, adding that Munoz, as a US citizen, filed a 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."

Barrett wrote that "Munoz’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.'"

She said that Munoz "cannot make that showing," adding that Congress’ "longstanding regulation of spousal immigration—including through bars on admissibility—cuts the other way."

Munoz and Asencio-Cordero married in 2010, with Munoz filing a few years later to list Asencio-Cordero as her immediate relative, which was granted. "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." Asencio-Cordero’s visa application was denied in December 2015.

The consular officer cited 8 USC Section 1182(a)(3)(A)(ii), which states that a noncitizen is inadmissible if the officer "knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in" certain offenses or "any other unlawful activity." Asencio-Cordero was a member of MS-13 and had gang tattoos indicating such. He and Munoz denied that he was affiliated with the gang.

The court noted that the Ninth Circuit was the "only Court of Appeals to have embraced" Munoz’s assertion "that the denial of her husband’s visa violated her constitutional rights, thereby enabling judicial review." Barrett noted, "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.’"

"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," Barrett concluded. The Ninth Circuit’s decision was reversed, and the case remanded for further proceedings consistent with the high court’s opinion.

Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch concurred. Justice Sonia Sotomayor filed the dissenting opinion, in which Justices Elena Kagan and Ketanji Brown Jackson concurred.

The decision comes as Biden has announced a plan that would open a path to legally remain in the country long-term for illegal immigrant spouses of US citizens. To be eligible, the White House stated that noncitizens must have resided in the US for more than 10 years, be legally married to a US citizen, and satisfy all legal requirements. Those approved will be given a three-year period to apply for permanent residency. Around 500,000 illegal immigrant spouses will be affected under this policy.