Department of State v. Munoz

P R E L I M I N A R Y P R I N T
Volume 602 U. S. Part 1
Pages 899–942
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 21, 2024
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2023
899
Syllabus
DEPARTMENT OF STATE et al. v. MUÑOZ et al.
certiorari
to the united states court of appeals for
the ninth circuit
No. 23–334. Argued April 23, 2024—Decided June 21, 2024
Respondent Sandra Muñoz is an American citizen. In 2010, she married
Luis Asencio-Cordero, a citizen of El Salvador. The couple eventually
sought to obtain an immigrant visa for Asencio-Cordero so that they
could live together in the United States. Muñoz fled a petition with
U. S. Citizenship and Immigration Services to have Asencio-Cordero
classifed as an immediate relative. See 8 U. S. C. §§ 1151(b)(2)(A)(i),
1154(a)(1)(A). USCIS granted Muñoz's petition, and Asencio-Cordero
traveled to the consulate in San Salvador to apply for a visa. See
§§ 1154(b), 1202. After conducting several interviews with Asencio-
Cordero, a consular offcer denied his application, citing § 1182(a)(3)
(A)(ii), a provision that renders inadmissible a noncitizen whom the off-
cer “knows, or has reasonable ground to believe, seeks to enter the
United States to engage solely, principally, or incidentally in” certain
specifed offenses or “any other unlawful activity.”
Asencio-Cordero guessed that he was denied a visa based on a fnding
that he was a member of MS–13, a transnational criminal gang. So he
disavowed any gang membership, and he and Muñoz pressed the consul-
ate to reconsider the offcer's fnding. When the consulate refused, they
appealed to the Department of State, which agreed with the consulate's
determination. Asencio-Cordero and Muñoz then sued the Department
of State and others (collectively, State Department), claiming that it had
abridged Muñoz's constitutional liberty interest in her husband's visa
application by failing to give a suffcient reason why Asencio-Cordero
is inadmissible under the “unlawful activity” bar. The District Court
granted summary judgment to the State Department, but the Ninth
Circuit vacated the judgment, holding that Muñoz had a constitutionally
protected liberty interest in her husband's visa application. Because of
that interest, the court said, the Due Process Clause required the State
Department to give Muñoz a reason for denying her husband's visa.
The court further held that by declining to give Muñoz more information
earlier in the process, the State Department had forfeited its entitle-
ment to insulate its decision from judicial review under the doctrine of
consular nonreviewability.
Held: A citizen does not have a fundamental liberty interest in her nonciti-
zen spouse being admitted to the country. Pp. 907–919.
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900 DEP
ARTMENT OF STATE v. MUÑOZ
Syllabus
(a) Under the doctrine of consular nonreviewability, an executive of-
fcer
's decision “to admit or to exclude an alien” “is fnal and conclusive,”
United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 543, and not
subject to judicial review in federal court. This Court has assumed a
narrow exception in cases “when the denial of a visa allegedly burdens
the constitutional rights of a U. S. citizen.” Trump v. Hawaii, 585 U. S.
667, 703. In that event, the Court has considered whether the execu-
tive offcial gave a “facially legitimate and bona fde reason” for denying
the visa. Kerry v. Din, 576 U. S. 86, 103–104.
Asencio-Cordero cannot invoke the exception himself, thus Muñoz
must assert that the denial of her husband's visa violated her constitu-
tional rights, thereby enabling judicial review. She argues that the
State Department abridged her fundamental right to live with her
spouse in her country of citizenship without affording her due process.
Pp. 907–908.
(b) Among other things, the Due Process Clause “provides height-
ened protection against government interference with certain funda-
mental rights and liberty interests.” Washington v. Glucksberg, 521
U. S. 702, 720. When a fundamental right is at stake, the government
can act only by narrowly tailored means that serve a compelling state
interest. To identify an unenumerated right, the Court follows the two-
step inquiry in Glucksberg. That inquiry frst insists on a “careful de-
scription of the asserted fundamental liberty interest.” Id., at 721 (in-
ternal quotation marks omitted). Second, the inquiry stresses that “the
Due Process Clause specially protects” only “those fundamental rights
and liberties which are, objectively, deeply rooted in this Nation's his-
tory and tradition.” Id., at 720–721 (same).
Here, Muñoz invokes the “fundamental right to marriage,” but she
actually claims something more distinct: the right to reside with her
noncitizen spouse in the United States. That involves more than mar-
riage and more than spousal cohabitation—it includes the right to have
her noncitizen husband enter (and remain in) the United States. As
Muñoz asserts it, she claims a “marital right . . . suffciently important
that it cannot be unduly burdened without procedural due process as to
an inadmissibility fnding that would block her from residing with her
spouse in her country of citizenship.” Brief for Respondents 19, n. 10.
So described, the asserted right is fundamental enough to be implicit in
“liberty;” but, unlike other implied fundamental rights, its deprivation
does not trigger strict scrutiny.
Because Muñoz cannot clear the second step of Glucksberg, the Court
need not decide whether such a category of implied rights protected by
the Due Process Clause exists. Glucksberg requires a demonstration
that the asserted right be “deeply rooted in this Nation's history and

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901
Syllabus
tradition.” 521 U. S., at 721. This Nation's history and tradition rec-
og
nizes the Government's sovereign authority to set the terms govern-
ing the admission and exclusion of noncitizens, and Muñoz points to no
subsidiary tradition that curbs this authority in the case of noncitizen
spouses.
From this Nation's beginnings, the admission of noncitizens into the
country was characterized as “of favor [and] not of right.” J. Madison,
Report of 1800. And when Congress began to restrict immigration in
the late 19th century, the laws it enacted provided no exceptions for
citizens' spouses. See, e. g., Page Act of 1875, 18 Stat. 477–478; Immi-
gration Act of 1882, 22 Stat. 214; Immigration Act of 1891, 26 Stat. 1084.
And while Congress has, on occasion, extended special immigration
treatment to marriage, see, e. g., War Brides Act of 1945, 59 Stat. 659,
it has never made spousal immigration a matter of right.
This Court has not interfered with such policy choices, despite their
interference with the spousal relationship. Thus in United States ex
rel. Knauff v. Shaughnessy, 338 U. S. 537, the Court reaffrmed, in the
case of a noncitizen spouse who was denied admission for confdential
security reasons, the longstanding principle “that the United States can,
as a matter of public policy . . . forbid aliens or classes of aliens from
coming within [its] borders,” and “[n]o limits can be put by the courts
upon” that power. Wong Wing v. United States, 163 U. S. 228, 237.
Pp. 909–916.
(c) Muñoz'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 in-
cidentally” burden a citizen's legal rights. Castle Rock v. Gonzales,
545 U. S. 748, 767. See, e. g., O'Bannon v. Town Court Nursing Center,
447 U. S. 773, 788. To be sure, Muñoz has suffered harm from the de-
nial of Asencio-Cordero's visa application, but that harm does not give
her a constitutional right to participate in his consular proceeding.
Pp. 916–919.
50 F. 4th 906, reversed and remanded.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, and Kavanaugh, JJ., joined. Gorsuch, J., fled
an opinion concurring in the judgment, post, p. 919. Sotomayor, J., fled
a dissenting opinion, in which Kagan and Jackson, JJ., joined, post, p. 920.
Deputy Solicitor General Gannon argued the cause for
petitioners. With him on the briefs were Solicitor General

902 DEP
ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
Prelogar, Pr incipal Deputy Assistant Attorney General
Bo
ynton, Caroline A. Flynn, William C. Silvis, Aaron S.
Goldsmith, and Joshua S. Press.
Eric Lee argued the cause for respondents. With him on
the brief were Alan Diamante, Charles Roth, Keren Zwick,
Mary Georgevich, and Erwin Chemerinsky.*
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 consul-
ate in San Salvador. A consular offcer denied his applica-
tion, however, after fnding that Asencio-Cordero is affliated
with MS–13, a transnational criminal gang. Because of na-
tional security concerns, the consular offcer 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 de-
nial of his visa.
*Christopher J. Hajec fled a brief for the Immigration Reform Law
Institute as amicus curiae urging reversal.
Briefs of amici curiae urging affrmance were fled for the American
Civil Liberties Union et al. by Daniel A. Galindo, Omar C. Jadwat, Judy
Rabinovitz, Lee Gelernt, Cecillia D. Wang, Cody Wofsy, and David D.
Cole; for the American Immigration Lawyers Association et al. by Charles
A. Rothfeld and Eugene R. Fidell; for Former Consular Offcers by Mat-
thew E. Price; for Former Department of Homeland Security Offcials by
Jeffrey S. Ginsberg; for the Fred T. Korematsu Center for Law and Equal-
ity et al. by Corey Stoughton, Robert S. Chang, Niyati Shah, and Noah
Baron; for HIAS Inc. by Benjamin G. Shatz; for the International Refugee
Assistance Project et al. by Melissa S. Keaney and Mariko Hirose; for
the Migrant Rights Initiative et al. by Ian M. Kysel; for Professors and
Scholars by Nadia Anguiano; for Public Citizen by Lauren E. Bateman
and Allison M. Zieve; for the United States Conference of Catholic Bish-
ops et al. by Amer S. Ahmed and Richard W. Mark; and for 35 Members
of Congress by Erin Marie Meyer.
Briefs of amici curiae were fled for the American Bar Association by
Mary Smith, Robert N. Hochman, and Kelly J. Huggins; for the HEAL
Refugee Health and Asylum Collaborative by David M. Zionts; and for
Immigration Law and History Scholars by Deanna M. Rice.
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Opinion of the Court
Muñoz, on the other hand, is a citizen, and she fled her
own
challenge to the consular offcer'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 proc-
ess; the consular offcer violated her right to due process by
declining to disclose the basis for fnding 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 constitu-
tional 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 (1997). She cannot make that showing. In fact,
Congress's longstanding regulation of spousal immigration—
including through bars on admissibility—cuts the other way.
I
A
To be admitted to the United States, a noncitizen typically
needs a visa. 66 Stat. 181, 8 U. S. C. § 1181(a). Visa deci-
sions are made by the political branches. Trump v. Hawaii,
585 U. S. 667, 702–703 (2018); see also Oceanic Steam Nav.
Co. v. Stranahan, 214 U. S. 320, 339 (1909) (explaining that
“over no conceivable subject is the legislative power of Con-
gress more complete”). As a general matter, Congress sets
the terms for entry, and the Department of State implements
those requirements at United States Embassies and consul-
ates in foreign countries.
1
1
We describe the process for noncitizens who, like Asencio-Cordero,
have not yet been lawfully admitted to the United States and must there-
fore apply from abroad. Compare 8 U. S. C. § 1255(a) (adjustment of sta-
tus to lawful permanent resident for noncitizens already admitted into the
United States) with 22 CFR §§ 42.61, 42.62 (2023) (noncitizens applying for
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904 DEP
ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
Congress has streamlined the visa process for noncitizens
w
ith immediate relatives in the United States. The citizen-
relative must frst fle a petition with U. S. Citizenship and
Immigration Services (USCIS), an agency housed within the
Department of Homeland Security, to have the noncitizen
classifed as an immediate relative. See Scialabba v. Cuel-
lar de Osorio, 573 U. S. 41, 46–47 (2014) (plurality opinion);
§§ 1151(b)(2)(A)(i), 1154(a)(1)(A). If USCIS approves the
p e t i t i o n , t h e n t h e n o n c i t i z e n m a y a p p l y f o r a v i s a .
§§ 1201(a), 1202(a). As part of this process, the noncitizen
submits written materials and interviews with a consular of-
fcer abroad. §§ 1201(a)(1), 1202.
Ordinarily, a consular offcer who denies a visa application
“because the offcer determines the alien to be inadmissible”
must “provide the alien with a timely written notice that . . .
(A) states the determination, and (B) lists the specifc provi-
sion or provisions of law under which the alien is inadmissi-
ble.” § 1182(b)(1). The statute requires no explanation,
however, “to any alien inadmissible” on certain grounds re-
lated to crime and national security. § 1182(b)(3). This
case involves a noncitizen to whom this statutory exception
applies.
B
Sandra Muñoz, an American citizen, married Luis Asencio-
Cordero, a Salvadoran citizen, in 2010. Several years later,
the couple began taking steps to obtain an immigrant visa
for Asencio-Cordero. Muñoz fled a petition to classify her
husband as an immediate relative, which USCIS granted.
§§ 1151(b)(2)(A)(i), 1154(a)(1)(A). 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. See §§ 1154(b), 1202; 22 CFR § 42. He met
immigrant visa must appear in person before consular offcer in consular
district of residence).
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905
Opinion of the Court
with a consular offcer in San Salvador and underwent sev-
era
l interviews.
In December 2015, the offcer denied Asencio-Cordero's ap-
plication, citing 8 U. S. C. § 1182(a)(3)(A)(ii). That provision
renders inadmissible a noncitizen whom the offcer “knows,
or has reasonable ground to believe, seeks to enter the
United States to engage solely, principally, or incidentally in”
certain specifed offenses or “any other unlawful activity.”
Ibid. The offcer provided no additional details—but, given
the reason for the visa denial, even the statutory citation
was more information than Asencio-Cordero was entitled to
receive. § 1182(b)(3).
Asencio-Cordero guessed (as it turns out, accurately) that
he was denied a visa based on a fnding that he was a mem-
ber of MS–13, a transnati ona l cr i mi na l gang. He a lso
guessed (again, accurately) that this fnding was based at
least in part on the conclusion that his tattoos signifed gang
membersh ip. Asenci o-Cordero and Muñoz denied that
Asencio-Cordero was affliated with MS–13 or any other
gang, and they pressed the consulate to reconsider the off-
cer's fnding. When the consulate held frm, they appealed
to the Department of State, submitting evidence that the
tattoos were innocent. A Department offcial informed
Asencio-Cordero and Muñoz that the Department agreed
with the consulate's determination. The next day, the con-
sul in San Salvador notifed them that Asencio-Cordero's ap-
plication had gone through multiple rounds of review—in-
cluding by the consular offcer, consular supervisors, the
consul himself, the Bureau of Consular Affairs, and the State
Department's Immigration Visa Unit—and none of these re-
views had “ `revealed any grounds to change the fnding of
inadmissibilty.' ” App. 7.
Asenci o-Cordero and Muñoz sued the Depar tment of
State, the Secretary of State, and the United States consul
in San Salvador. (For simplicity's sake, we will refer to the
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906 DEP
ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
defendants collectively as the State Department.) They al-
leged,
among other things, that the State Department had
abridged Muñoz's constitutional liberty interest in her hus-
band's visa application by failing to give a suffcient reason
why Asencio-Cordero is inadmissible under the “unlawful ac-
tivity” bar.
The District Court agreed and ordered discovery. In a
sworn declaration, an attorney adviser from the State De-
partment explained that Asencio-Cordero was deemed inad-
missible because he belonged to MS–13. The fnding was
“based on the in-person interview, a criminal review of . . .
Asencio[-]Cordero, and a review of [his] tattoos.” App. to
Pet. for Cert. 124a. In addition to the affdavit, the State
Department provided the District Court with confdential
law enforcement information, which it reviewed in camera,
identifying Ascencio-Cordero as a member of MS–13. Satis-
fed, the District Court granted summary judgment to the
State Department.
The Ninth Circuit vacated the judgment and remanded the
case. Consistent with circuit precedent, it held that Muñoz,
as a citizen, had a constitutionally protected liberty interest
in her husband's visa application. Because of that interest,
the Ninth Circuit said, the Due Process Clause required the
State Department to give Muñoz a “ `facially legitimate and
bona fde reason' ” for denying her husband's visa. 50 F. 4th
906, 916 (2022) (quoting Kleindienst v. Mandel, 408 U. S. 753,
766–770 (1972)). The initial statutory citation did not qual-
ify, 50 F. 4th, at 917–918, and the later affdavit was untimely,
id., at 921–922. Delay carried a serious consequence for the
State Department. Visa denials are insulated from judicial
review by the doctrine of consular nonreviewability. But
the Ninth Circuit held that by declining to give Muñoz more
information earlier in the process, the State Department had
forfeited its entitlement “to shield its visa decision from judi-
cial review.” Id., at 924. The panel remanded for the Dis-
trict Court to consider the merits of Muñoz's suit, which in-
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907
Opinion of the Court
clude a request for a declaration invalidating the fnding that
Asenci
o-Cordero is inadmissible and an order demanding
that the State Department readjudicate Asencio-Cordero's
application.
2
The Ninth Circuit denied en banc review over the dissent
of 10 judges, and we granted the State Department's petition
for certiorari. 601 U. S. ––– (2024).
3
II
“For more than a century, this Court has recognized that
the admission and exclusion of foreign nationals is a `funda-
mental sovereign attribute exercised by the Government's
political departments largely immune from judicial control.' ”
Trump, 585 U. S., at 702 (quoting Fiallo v. Bell, 430 U. S.
787, 792 (1977)). Congress may delegate to executive off-
cials the discretionary authority to admit noncitizens “im-
mune from judicial inquiry or interference.” Harisiades v.
2
At oral argument in this Court, Muñoz suggested that she is asserting
a constitutional entitlement only to information—a “facially legitimate and
bona fde reason” why the consular offcer deemed her husband inadmissi-
ble under the “unlawful activity” bar. Tr. of Oral Arg. 59–64. Else-
where, though, she suggests that the Due Process Clause entitles her to
both the information and “a meaningful opportunity to respond.” Brief
for Respondents 11. If appeal is no longer available under State Depart-
ment regulations (and the Ninth Circuit said it was not), Muñoz presum-
ably seeks what she sought below: judicial review of the inadmissibility
fnding and a court order requiring the State Department to reconsider
Asencio-Cordero's visa application. 50 F. 4th, at 912, n. 14. This level
of judicial involvement in the visa process would be a signifcant exten-
sion of our precedent. The dissent, however, would remand to the Ninth
Circuit for consideration of this relief. Post, at 930, n. 3 (opi ni on of
Sotomayor, J.).
3
Inexplicably, the dissent claims that the Court is reaching out improp-
erly to settle this issue. Post, at 921. We granted certiorari on this very
question to resolve a longstanding circuit split. 601 U. S. ––– (2024).
And we did so at the request of the Solicitor General, who emphasized
both the Government's need for uniformity in the administration of immi-
gration law and the importance of this issue to national security. Pet. for
Cert. 27–28, 31–33.
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908 DEP
ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
Shaughnessy, 342 U. S. 580, 588–591 (1952). When it does
so
, the action of an executive offcer “to admit or to exclude
an alien” “is fnal and conclusive.” United States ex rel.
Knauff v. Shaughnessy, 338 U. S. 537, 543 (1950); see also
Dept. of Homeland Security v. Thuraissigiam, 591 U. S. 103,
138–139 (2020); Mandel, 408 U. S., at 765–766; Nishimura
Ekiu v. United States, 142 U. S. 651, 659–660 (1892). The
Judicial Branch has no role to play “unless expressly author-
ized by law.” Knauff, 338 U. S., at 543. The Immigration
and Nationality Act (INA) does not authorize judicial review
of a consular offcer's denial of a visa; thus, as a rule, the
federal courts cannot review those decisions.
4
This princi-
ple is known as the doctrine of consular nonreviewability.
We have assumed that a narrow exception to this bar ex-
ists “when the denial of a visa allegedly burdens the constitu-
tional rights of a U. S. citizen.” Trump, 585 U. S., at 703.
In that event, the Court has considered whether the Execu-
tive gave a “ `facially legitimate and bona fde reason' ” for
denying the visa. Kerry v. Din, 576 U. S. 86, 103–104 (2015)
(Kennedy, J., concurring in judgment) (quoting Mandel, 408
U. S., at 770). If so, the inquiry is at an end—the Court has
disclaimed the authority to “ `look behind the exercise of that
discretion,' ” much less to balance the reason given against
the asserted constitutional right. Din, 576 U. S., at 104.
Asencio-Cordero cannot invoke the exception himself, be-
cause he has no “constitutional right of entry to this country
as a nonimmigrant or otherwise.” Mandel, 408 U. S., at 762.
Thus, so far as Asencio-Cordero is concerned, the doctrine
of consular nonreviewability applies. Muñoz, however, is an
4
In Trump v. Hawaii, the plaintiffs argued that a proclamation exclud-
ing certain classes of noncitizens from entering the United States ex-
ceeded the President's authority under the Immigration and Nationality
Act. 585 U. S. 667, 681–682 (2018). The Court explained that the doc-
trine of consular nonreviewability is not jurisdictional and “assume[d]
without deciding that [the] plaintiffs' statutory claims [were] reviewable.”
Id., at 682–683.

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American citizen, and she asserts that the denial of her hus-
band'
s visa violated her constitutional rights, thereby en-
abling judicial review. Specifcally, she argues that the
State Department abridged her fundamental right to live
with her spouse in her country of citizenship—and that it did
so without affording her the fair procedure guaranteed by
the Fifth Amendment.
The Ninth Circuit is the only Court of Appeals to have
embraced this asserted right—every other Circuit to con-
sider the issue has rejected it.
5
See Colindres v. U. S. Dept.
of State, 71 F. 4th 1018, 1021 (CADC 2023); Baaghil v. Miller,
1 F. 4th 427, 433 (CA6 2021); Bakran v. Secretary, U. S. Dept.
of Homeland Security, 894 F. 3d 557, 564 (CA3 2018); Bright
v. Parra, 919 F. 2d 31, 34 (CA5 1990) (per curiam); Burrafato
v. U. S. Dept. of State, 523 F. 2d 554, 554–557 (CA2 1975);
Silverman v. Rogers, 437 F. 2d 102, 107 (CA1 1970). In Din,
this Court considered but did not resolve the question. A
plurality concluded that a citizen does not have a fundamen-
tal right to bring her noncitizen spouse to the United States.
576 U. S., at 96. Two Justices chose not to reach the issue,
explaining that even if the right existed, the statutory cita-
tion provided by the Executive qualifed as a facially legiti-
mate and bona fde reason. Id., at 105 (opinion of Ken-
nedy, J.). Since Din, the existence of the right has continued
to divide the Circuits.
Today, we resolve the open question. Like the Din plu-
rality, we hold that a citizen does not have a fundamental
liberty interest in her noncitizen spouse being admitted to
the country.
III
The Due Process Clause of the Fifth Amendment requires
the Government to provide due process of law before it de-
5
The dissent characterizes our decision today as extreme, post, at 933–
934, but it is the dissent who embraces the outlier position: Our opinion is
in line with the vast majority of Circuits that have decided this question.
The dissent aligns itself with the lone Circuit going the other way.

910 DEP
ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
prives someone of “life, liberty, or property.” Under our
precedent,
the Clause promises more than fair process: It
also “provides heightened protection against government in-
terference with certain fundamental rights and liberty inter-
ests.” Glucksberg, 521 U. S., at 720. When a fundamental
right is at stake, the Government can act only by narrowly
tailored means that serve a compelling state interest. Id.,
at 721. Identifying unenumerated rights carries a serious
risk of judicial overreach, so this Court “exercise[s] the ut-
most care whenever we are asked to break new ground in
this feld.” Id., at 720 (internal quotation marks omitted).
To that end, Glucksberg's two-step inquiry disciplines the
substantive due process analysis. First, it insists on a “care-
ful description of the asserted fundamental liberty interest.”
Id., at 721 (internal quotation marks omitted). Second, it
stresses that “the Due Process Clause specially protects”
only “those fundamental rights and liberties which are, ob-
jectively, deeply rooted in this Nation's history and tradi-
tion.” Id., at 720–721 (internal quotation marks omitted).
We start with a “careful description of the asserted funda-
mental liberty interest.” Id., at 721 (internal quotation
marks omitted). Muñoz invokes the “fundamental right of
marriage,” but the State Department does not deny that
Muñoz (who is already married) has a fundamental right to
marriage. Muñoz claims something distinct: the right to re-
side with her noncitizen spouse in the United States. That
involves more than marriage and more than spousal cohabi-
tation—it includes the right to have her noncitizen husband
enter (and remain in) the United States.
It is diffcult to pin down the nature of the right Muñoz
claims. The logic of her position suggests an entitlement to
bring Asencio-Cordero to the United States—how else could
Muñoz enjoy the asserted right to live with her noncitizen
husband in her country of citizenship? See also Brief for
Petitioners 23, n. 8 (characterizing Muñoz's claim as an “en-
title[ment] to the visa itself ”). Yet Muñoz disclaims that
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characterization, insisting that “[she] does not advance a
subst
antive right to immigrate one's spouse.” Brief for Re-
spondents 19, n. 10. This concession is wise, because such a
claim would ordinarily trigger strict scrutiny—and it would
be remarkable to put the Government to the most demand-
ing test in constitutional law in the feld of immigration, an
area unsuited to rigorous judicial oversight. Fiallo, 430
U. S., at 792 (“Our cases `have long recognized the power to
expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government's political departments largely
immune from judicial control' ”).
Though understandable, Muñoz's concession makes charac-
terizing the asserted right a conceptually harder task. Here
is her formulation: a “marital right . . . suffciently important
that it cannot be unduly burdened without procedural due
process as to an inadmissibility fnding that would block her
from residing with her spouse in her country of citizenship.”
Brief for Respondents 19, n. 10. So described, the asserted
right is neither fsh nor fowl. It is fundamental enough to
be implicit in “liberty;” but, unlike other implied fundamen-
tal rights, its deprivation does not trigger strict scrutiny.
See Din, 576 U. S., at 99 (plurality opinion) (observing that
this argument posits “two categories of implied rights pro-
tected by the Due Process Clause: really fundamental rights,
which cannot be taken away at all absent a compelling state
interest; and not-so-fundamental rights, which can be taken
away so long as procedural due process is observed”). This
right would be in a category of one: a substantive due proc-
ess right that gets only procedural due process protection.
Ibid.
We need not decide whether such a category exists, be-
cause Muñoz cannot clear the second step of Glucksberg's
test: demonstrating that the right to bring a noncitizen
spouse to the United States is “ `deeply rooted in this Na-
tion's history and tradition.' ” 521 U. S., at 721. On the
contrary, the through line of history is recognition of the
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ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
Government's sovereign authority to set the terms govern-
i
ng the admission and exclusion of noncitizens. And Muñoz
points to no subsidiary tradition that curbs this authority in
the case of noncitizen spouses.
From the beginning, the admission of noncitizens into the
country was characterized as “of favor [and] not of right.”
J. Madison, Report of 1800 (Jan. 7, 1800), in 17 Papers of
James Madison 319 (D. Mattern, J. Stagg, J. Cross, & S. Per-
due eds. 1991) (emphasis added); see also 2 Records of the
Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (re-
counting Gouverneur Morris's observation that “every Soci-
ety from a great nation down to a club ha[s] the right of
declaring the conditions on which new members should be
admitted”); Debate on Virginia Resolutions, in The Virginia
Report of 1799–1800, p. 31 (1850) (reprint 2005) (“[B]y the
law of nations, it is left in the power of all states to take such
measures about the admission of strangers as they think con-
venient”). Consistent with this view, the 1798 Act Concern-
ing Aliens gave the President complete discretion to remove
“all such aliens as he shall judge dangerous to the peace and
safety of the United States.” 1 Stat. 571 (emphasis deleted).
The Act made no exception for spouses—or, for that matter,
other family members.
The United States had relatively open borders until the
late 19th century. But once Congress began to restrict im-
migration, “it enacted a complicated web of regulations that
erected serious impediments to a person's ability to bring a
spouse into the United States.” Din, 576 U. S., at 96 (plural-
ity opinion). One of the frst federal immigration statutes,
the Immigration Act of 1882, required executive offcials to
“examine” noncitizens and deny “permi[ssion] to land” to
“any convict, lunatic, idiot, or any person unable to take care
of himself or herself without becoming a public charge.” 22
Stat. 214. The Act provided no exception for citizens'
spouses. And when Congress drafted a successor statute
that expanded the grounds of inadmissibility, it again gave

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no special treatment to the marital relationship. Immigra-
ti
on Act of 1891, ch. 551, 26 Stat. 1084.
There are other examples. The Page Act of 1875, which
functioned as a restriction on Chinese female immigration,
contained no exception for wives. 18 Stat. 477–478; see Col-
indres, 71 F. 4th, at 1023. Or consider the Emergency Quota
Act of 1921, which capped the number of immigrants permit-
ted to enter the country each year. 42 Stat. 5–6. Although
the Act gave preferential treatment to citizens' wives, “once
all the quota spots were flled for the year, the spouse was
barred without exception.” Din, 576 U. S., at 97 (plurality
opinion).
6
See also C. Bredbenner, A Nationality of Her
Own: Women, Marriage, and the Law of Citizenship 115
(1998) (“[C]itizens' wives were still quota immigrants, and
immigration offcials could regulate their entry closely if eco-
nomic or other circumstances prompted a general tightening
of admissio[n]”). In 1924, Congress, showing favor to men
rather than marriage, lifted the quotas for male citizens with
noncitizen wives, but did not similarly clear the way for fe-
male citizens with noncitizen husbands. Abrams 12. This
gender disparity did not change until 1952. Id., at 13–14.
That is not to say that Congress has not extended spe-
cial treatment to marriage—it has. For instance, the War
Brides Act of 1945 provided that the noncitizen spouses of
World War II veterans would be exempt from certain admis-
sibility bars and documentary requirements. Ch. 591, 59
Stat. 659. Closer to home, Asencio-Cordero's visa applica-
6
Given the then-existing law of coverture, the Act was only relevant to
noncitizen wives—a citizen wife with a noncitizen husband was forced to
assume her husband's nationality. K. Abrams, What Makes the Family
Special? 80 U. Chi. L. Rev. 7, 11 (2013) (Abrams) (“Giving wives the op-
portunity to sponsor their husbands would have been nonsensical; under
the Expatriation Act of 1907, a wife automatically lost her US citizenship
upon marrying a foreigner, so there could be no such thing as a US citizen
wife with an immigrant husband” (footnotes omitted)). This changed in
1922, when the Cable Act “largely undid derivative citizenship for married
women.” Ibid.

914 DEP
ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
tion rested on his marriage to Muñoz, which made him eligi-
ble
for immigrant status. § 1154. But while Congress has
made it easier for spouses to immigrate, it has never made
spousal immigration a matter of right. On the contrary,
qualifcations and restrictions have long been the norm.
See, e. g., Act of Aug. 9, 1946, ch. 945, 60 Stat. 975 (granting
nonquota status to Chinese wives of American citizens, but
only for those with longstanding marriages).
Of particular relevance to Muñoz, Congress has not ex-
empted spouses from inadmissibility restrictions like the
INA's unlawful-activity bar. Precusors to that bar have ex-
isted since the early 20th century. For example, the Immi-
gration Act of 1917 provided for the exclusion of “persons
who have been convicted of or admit having committed a
felony or other crime or misdemeanor involving moral turpi-
tude.” Ch. 29, 39 Stat. 875. Consular offcers applied this
bar to spouses, and courts refused to review those visa deni-
als, citing the doctrine of consular nonreviewability. See,
e. g., United States ex rel. Ulrich v. Kellogg, 30 F. 2d 984,
985–986 (CADC 1929).
United States ex rel. Knauff v. Shaughnessy is a striking
example from this Court. In Knauff, a United States citi-
zen (and World War II veteran) found himself similarly situ-
ated to Muñoz: His noncitizen wife was denied admission for
security reasons, based on “information of a confdential na-
ture, the disclosure of which would be prejudicial to the pub-
lic interest.” 338 U. S., at 541, 544. We held that the War
Brides Act did not supersede the statute on which the Attor-
ney General had relied. Id., at 546–547 (“There is nothing in
the War Brides Act . . . to indicate that it was the purpose of
Congress, by partially suspending compliance with certain re-
quirements and the quota provisions of the immigration laws,
to relax the security provisions of the immigration laws”).
So, “[a]s all other aliens, petitioner had to stand the test of
security.” Id., at 547. Nor was she entitled to a hearing,
because “[w]hatever the procedure authorized by Congress
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is, it is due process as far as an alien denied entry is con-
cer
ned.” Id., at 544. The Attorney General's decision was
“fnal and conclusive,” and he did not have to divulge the
reason for it. Id., at 543.
7
Knauff thus reaffrmed the longstanding principle “that
the United States can, as a matter of public policy . . . forbid
aliens or classes of aliens from coming within their borders,”
and “[n]o limits can be put by the courts upon” that power.
Wong Wing v. United States, 163 U. S. 228, 237 (1896). Con-
gress's authority to “formulat[e] . . . policies” concerning the
entry of noncitizens “has become about as frmly imbedded
in the legislative and judicial tissues of our body politic as
any aspect of our government,” representing “not merely
`a page of history,' but a whole volume.” Galvan v. Press,
347 U. S. 522, 531 (1954) (citation omitted). “[T]he Court's
general reaffrmations of this principle have been legion.”
Mandel, 408 U. S., at 765–766; see also id., at 765 (“[T]he
power to exclude aliens is `inherent in sovereignty, necessary
for maintaining normal international relations and defending
the country against foreign encroachments and dangers—a
power to be exercised exclusively by the political branches
of government' ”).
8
While “families of putative immigrants
7
The dissent criticizes Knauff because the Attorney General, under
pressure from Congress, ultimately revisited his decision and admitted
Knauff as a lawful permanent resident. Post, at 940. But the history of
the case does not establish that the Court was wrong to decline to review
the Attorney General's decision. It refects a decision that was made by
the political branches and reversed through the political process. More-
over, Knauff remains good law that we have repeatedly reaffrmed.
Dept. of Homeland Security v. Thuraissigiam, 591 U. S. 103, 138–139
(2020).
8
The dissent barely acknowledges that any of this precedent exists. In
fact, rather than recognizing the prerogatives of the political branches in
this area, the dissent criticizes the United States' immigration policy, post,
at 923–925, as well as the competence of the Executive Branch offcials who
make diffcult, high-stakes decisions about which noncitizens seeking entry
to the United States pose a threat to national security, post, at 925–927.
Perhaps our dissenting colleagues are well-equipped to set immigration pol-
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ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
certainly have an interest in their admission,” it is a “fallacy”
to
leap from that premise to the conclusion that United
States citizens have a “ `fundamental right' ” that can limit
how Congress exercises “the Nation's sovereign power to
admit or exclude foreigners.” Fiallo, 430 U. S., at 795, n. 6.
To be sure, Congress can use its authority over immigra-
tion to prioritize the unity of the immigrant family. Din,
576 U. S., at 97 (plurality opinion). See, e. g., § 1151(b)(2)
(A)(i) (exempting “immediate relatives” from certain numeri-
cal quotas). It has frequently done just that. But the Con-
stitution does not require this result; moreover, Congress's
generosity with respect to spousal immigration has always
been subject to restrictions, including bars on admissibility.
This is an area in which more than family unity is at play:
Other issues, including national security and foreign policy,
matter too. Thus, while Congress may show special solici-
tude to noncitizen spouses, such solicitude is “a matter of
legislative grace rather than fundamental right.” Din, 576
U. S., at 97 (plurality opinion). Muñoz has pointed to no evi-
dence suggesting otherwise.
9
IV
As the State Department observes, Muñoz's claim to a pro-
cedural due process right in someone else's legal proceeding
would have unsettling collateral consequences. Consider
icy and manage border security, but the Constitution entrusts those tasks
to the political branches.
9
The dissent never addresses the actual issue in this case, which is
whether the Judiciary has any authority to review visa determinations
made by the State Department. Instead, the dissent chooses the rhetori-
cally easier path of charging the Court with endangering the fundamental
right to marriage. See post, at 931–934. To be clear: Today's decision
does not remotely call into question any precedent of this Court, including
those protecting marriage as a fundamental right. By contrast, the dis-
sent would upend more than a century's worth of this Court's precedent
regarding the doctrine of consular nonreviewability, not to mention
equally longstanding congressional and Executive Branch practice. Ibid.
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Opinion of the Court
where her logic leads: Could a wife challenge her husband's
“assig
nment to a remote prison or to an overseas military
deployment, even though prisoners and service members
themselves cannot bring such challenges”? Reply Brief 13.
Could a citizen assert procedural rights in the removal pro-
ceeding of her spouse? Brief for Petitioners 30. Muñoz's
position would usher in a new strain of constitutional law, for
the Constitution does not ordinarily prevent the government
from taking actions that “ `indirectly or incidentally' ” burden
a citizen's legal rights. Castle Rock v. Gonzales, 545 U. S.
748, 767 (2005) (quoting O'Bannon v. Town Court Nursing
Center, 447 U. S. 773, 788 (1980)).
Our decision in O'Bannon is illustrative. There, a group
of nursing-home residents alleged that the government had
violated their liberty interests when it decertifed their nurs-
ing home without providing them a hearing. 447 U. S., at
777–781, 784. We acknowledged that the residents would
suffer harm from the government's decision. Id., at 784, and
n. 16. But we held that absent a “direct restraint on [their
liberty],” the decision did not implicate their due process
rights. Id., at 788. The decertifcation decision imposed
only an indirect harm. We explained that the residents
were akin to “members of a family who have been dependent
on an errant father.” Ibid. Although “they may suffer se-
rious trauma if he is deprived of his liberty or property as a
consequence of criminal proceedings,” such family members
“surely . . . have no constitutional right to participate in his
trial or sentencing procedures.” Ibid. The same principle
governs here. Muñoz has suffered harm from the denial of
Asencio-Cordero's visa application, but that harm does not
give her a constitutional right to participate in his consular
process.
Lest there be any doubt, Mandel does not hold that citi-
zens have procedural due process rights in the visa pro-
ceedings of others. The Ninth Circuit seems to have read
Mandel that way, but that is a misreading.

918 DEP
ARTMENT OF STATE v. MUÑOZ
Opinion of the Court
In Mandel, the Attorney General refused to waive inad-
missibi
lity and grant Ernest Mandel, a self-described “ `revo-
lutionary Marxist,' ” a temporary visa to attend academic
conferences in the United States. 408 U. S., at 756. A
group of professors sued on the ground that the Executive's
discretion to grant a waiver was limited by their First
Amendment right to hear Mandel speak; they insisted that
“the First Amendment claim should prevail, at least where
no justifcation is advanced for denial of a waiver.” Id., at
769. In response, the Attorney General asserted that “Con-
gress has delegated the waiver decision to the Executive in
its sole and unfettered discretion, and any reason or no rea-
son may be given.” Ibid.
But because “the Attorney General did inform Mandel's
counsel of the reason for refusing him a waiver,” the Court
chose not to resolve this statutory argument. Ibid. (empha-
sis added). Instead, it said that so long as the Executive
gives a “facially legitimate and bona fde reason” for denying
a waiver under § 212(a)(28) of the INA—the statutory provi-
sion at issue—“the courts will neither look behind the exer-
cise of that discretion, nor test it by balancing its justifcation
against the First Amendment interests of those who seek
personal communication with the applicant.” Id., at 770.
The Court expressly declined to address whether a constitu-
tional challenge would “be available for attacking [an] ex-
ercise of discretion for which no justifcation whatsoever is
advanced.” Ibid.
Thus, the “facially legitimate and bona fde reason” in
Mandel was the justifcation for avoiding a diffcult question
of statutory interpretation; it had nothing to do with proce-
dural due process. Indeed, a procedural due process claim
was not even before the Court. The professors argued that
the denial of Mandel's visa directly deprived them of their
First Amendment rights, not that their First Amendment
rights entitled them to procedural protections in Mandel's
visa application process. Id., at 754. To make an argument
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Gorsuch, J., concurring in judgment
logically analogous to that of the professors, Muñoz would
have
to claim that the denial of Asencio-Cordero's visa vio-
lated her substantive due process right to bring her nonciti-
zen spouse to the United States—thereby triggering the
State Department's obligation to demonstrate why denying
him the visa is the least restrictive means of serving the
Government's interest in national security. But, as we have
explained, Muñoz has disavowed that argument, which can-
not succeed in any event because the asserted right is not a
longstanding and “ `deeply rooted' ” tradition in this country.
Glucksberg, 521 U. S., at 721.
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 fde reason” for why
someone else's visa was denied. And Muñoz is not constitu-
tionally entitled to one here.
***
The judgment of the Ninth Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Gorsuch, concurring in the judgment.
A consular offcer denied Sandra Muñoz's husband a visa
to come to and live lawfully in the United States. 526
F. Supp. 3d 709, 713–714 (CD Cal. 2021). In doing so, the
offcer simply cited 8 U. S. C. § 1182(a)(3)(A)(ii), a provision
of the Immigration and Nationality Act that makes inadmis-
sible any person a consular offcer “has reasonable ground to
believe . . . seeks to enter the United States to engage . . .
in . . . any other unlawful activity.” Eventually, Ms. Muñoz
sued for further explanation of that decision. See App. 2,
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ARTMENT OF STATE v. MUÑOZ
Sotomayor, J., dissenting
8–9. The government, she claimed, needed to identify for
her
not just the statute on which it based its decision, but
also the “ `discrete factual predicates' ” on which it relied.
Id., at 8, ¶36.
Over the course of this litigation, the United States has
given Ms. Muñoz what she requested. As the Ninth Circuit
recognized, the United States has now revealed the factual
basis for its decision to deny her husband a visa. 50 F. 4th
906, 919–920 (2022); see App. to Pet. for Cert. 124a; App. 76.
In this Court, too, the government has assured Ms. Muñoz
that she has a chance to use and respond to that information.
She can again seek her husband's admission to this country,
the government says—and this time she will be armed with
an understanding of why the government denied the last ap-
plication. Tr. of Oral Arg. 45, 104.
Those developments should end this case. With no more
information to uncover and no bar to trying for admission
again, nothing is left for a court to address through this liti-
gation. In particular, the constitutional questions presented
by the government no longer have any practical relevance
here. Whether or not Ms. Muñoz had a constitutional right
to the information she wanted, the government gave it to
her. I therefore would reverse the Ninth Circuit's decision
without reaching the government's constitutional arguments.
See City of Mesquite v. Aladdin's Castle, Inc., 455 U. S. 283,
294–295 (1982). At the same time, I do not cast aspersions
on the motives of my colleagues who do reach the govern-
ment's arguments. They may see the case differently than
I do, but their decision and rationales are essentially those
the Solicitor General and the Department of State urged this
Court to adopt.
Justice Sotomayor, with whom Justice Kagan and
Justice Jackson join, dissenting.
“The right to marry is fundamental as a matter of history
and tradition.” Obergefell v. Hodges, 576 U. S. 644, 671
(2015). After U. S. citizen Sandra Muñoz and her Salvado-
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Sotomayor, J., dissenting
ran husband spent fve years of married life in the United
St
ates, the Government told her that he could no longer re-
enter the country. If she wanted to live together with him
and their child again, she would have to move to El Salvador.
The reason? A consular offcer's bare assertion that her hus-
band, who has no criminal record in the United States or El
Salvador, planned to engage in “unlawful activity.” 8 U. S. C.
§ 1182(a)(3)(A)(ii). Muñoz argues that the Government, hav-
ing burdened her fundamental right to marriage, owes her
one thing: the factual basis for excluding her husband.
The majority could have resolved this case on narrow
grounds under longstanding precedent. This Court has al-
ready recognized that excluding a noncitizen from the coun-
try can burden the constitutional rights of citizens who seek
his presence. See Kleindienst v. Mandel, 408 U. S. 753,
765–770 (1972). Acknowledging the Government's power
over admission and exclusion, the Mandel Court held that “a
facially legitimate and bona fde reason” for the exclusion suf-
fced to justify that burden. Id., at 770. In this case, after
protracted litigation, the Government fnally explained that it
denied Muñoz's husband a visa because of its belief that he had
connections to the gang MS–13. Regardless of the validity of
that belief, it is a “facially legitimate and bona fde reason.”
Ibid.; see also ante, at 919–920 (Gorsuch, J., concurring in
judgment). Under this Court's precedent, that is enough.
Instead, the majority today chooses a broad holding on
marriage over a narrow one on procedure.
1
It holds that
1
The Government asked this Court to review three questions:
“1. Whether a consular offcer's refusal of a visa to a U. S. citizen's
noncitizen spouse impinges upon a constitutionally protected interest
of the citizen.
“2. Whether, assuming that such a constitutional interest exists,
notifying a visa applicant that he was deemed inadmissible under 8
U. S. C. 1182(a)(3)(A)(ii) suffces to provide any process that is due.
“3. Whether, assuming that such a constitutional interest exists
and that citing Section 1182(a)(3)(A)(ii) is insuffcient standing alone,
due process requires the government to provide a further factual
basis for the visa denial `within a reasonable time,' or else forfeit

922 DEP
ARTMENT OF STATE v. MUÑOZ
Sotomayor, J., dissenting
Muñoz's right to marry, live with, and raise children along-
side
her husband entitles her to nothing when the Govern-
ment excludes him from the country. Despite the majority's
assurance two Terms ago that its eradication of the right to
abortion “does not undermine . . . in any way” other en-
trenched 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,” the
Court fails at the frst pass. Dobbs v. Jackson Women's
Health Organization, 597 U. S. 215, 256–257 (2022). Be-
cause, to me, there is no question that excluding a citizen's
spouse burdens her right to marriage, and that burden re-
quires the Government to provide at least a factual basis for
its decision, I respectfully dissent.
I
A
Marriage is not an automatic ticket to a green card. A
married citizen-noncitizen couple must jump through a series
of administrative hoops to apply for the lawful permanent
residency that marriage can confer. Noncitizen spouses
coming from abroad must apply for a visa to enter the United
States. In certain cases, however, the law requires even
couples who meet and marry in the United States to send
the noncitizen spouse back to his country of origin to do the
same thing. In doing so, the couple must take an enormous
risk to pursue the stability of lawful immigration status: the
risk that when the noncitizen spouse tries to reenter the
United States, he will face unexpected exile.
the ability to invoke consular nonreviewability in court.” Pet. for
Cert. I.
This Court granted certiorari limited to the frst and second questions.
601 U. S. ––– (2024). The majority chooses to decide this case on the frst
question presented rather than “assuming that such a constitutional inter-
est exists” and determining what “process . . . is due” (the second question
presented). Pet. for Cert. I.
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Sotomayor, J., dissenting
In technical immigration terms, a noncitizen spouse apply-
i
ng for a green card seeks to “[a]djus[t]” his immigration
“status” from “nonimmigrant to that of [a] person admitted
for permanent residence.” 8 U. S. C. § 1255. To do so, the
citizen spouse must petition the Government on the nonciti-
zen's behalf. The citizen spouse frst sends United States
Citizenship and Immigration Services (USCIS) a petition to
classify the noncitizen spouse as an “immediate relative.”
§§ 1151(b)(2)(A)(i), 1154(a)(1)(A). Once USCIS approves the
petition, a noncitizen spouse who is already in the United
States can then apply to adjust his status to lawful perma-
nent resident without leaving the country. See § 1255(a).
For a noncitizen spouse living outside of the United States,
however, USCIS frst approves the immediate-relative peti-
tion, but then sends it to the consulate of the country where
the noncitizen spouse lives for processing. See § 1154(b); 22
CFR §§ 42.42, 42.61 (2023). A consular offcer interviews
the noncitizen spouse and makes the fnal admission decision.
See 8 U. S. C. §§ 1201, 1202(f ).
Because of idiosyncrasies in our immigration system, not
all noncitizen spouses living in the United States can adjust
their status with USCIS. Even when a couple meets, mar-
ries, and lives in the United States, the noncitizen spouse
may instead have to travel back to his country of origin for
consular processing if he was never formally “inspected and
admitted or paroled” at the Border. § 1255(a). A nonciti-
zen who entered without “inspect[ion]” in this way typically
cannot adjust his status from within the United States based
on an immediate-relative petition. See ibid. Once the citi-
zen spouse submits the petition to USCIS, the noncitizen
spouse must return to his country of origin and meet with a
consular offcer, who will then adjudicate his application.
See 22 CFR §§ 42.42, 42.61, 42.62.
Living in the United States after initially having entered
without inspection is not unusual. In fact, the Government
endorses the presence of many of these members of our na-
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ARTMENT OF STATE v. MUÑOZ
Sotomayor, J., dissenting
tional community. Recipients under the Deferred Action for
Ch
ildhood Arrivals (DACA) program, for instance, may have
been brought across the border by their parents without in-
spection. Even though DACA status entitles them to work
and live in the country without the immediate threat of re-
moval, see 8 CFR § 236.21(c) (2023), it does not change their
initial entry designation. As of the end of 2023, there were
roughly 530,000 active DACA recipients in the United
States. See Dept. of Homeland Security (DHS), USCIS,
Count of Active DACA Recipients by Month of Current
DACA Expiration (as of Dec. 31, 2023). The same is true of
the approximately 680,000 holders of Temporary Protected
Status (TPS), who have been designated temporarily unable
to return to their home countries because of war, natural
disasters, or other extraordinary circumstances. See DHS,
Citizenship and Immigration Services Ombudsman, Ann.
Rep. 45 (June 30, 2023); Sanchez v. Mayorkas, 593 U. S. 409,
419 (2021) (holding that TPS status did not change an entry
without inspection into a lawful admission that would allow
adjustment to lawful permanent residency from within the
United States). Even when married to a U. S. citizen,
DACA recipients and TPS holders are barred from adjusting
status within the United States if they entered without in-
spection. See 8 U. S. C. § 1255(a).
Ironically, the longer the noncitizen spouse has lived in the
United States, the more diffcult and uncertain the process
to adjust to lawful status can become. A noncitizen who ini-
tially entered without inspection will accrue “unlawful pres-
ence,” which can bar him from reentering the country if he
leaves. § 1182(a)(9)(B). If a noncitizen who has lived in the
United States between six months and one year leaves and
tries to reenter, he will be subject to a 3-year reentry bar.
§ 1182(a)(9)(B)(i)(I). If he has lived in the United States for
more than a year and tries to reenter, he faces a 10-year
ban. § 1182(a)(9)(B)(i)(II).

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925
Sotomayor, J., dissenting
This scheme places couples who meet and marry in the
U
nited States in a diffcult position if the noncitizen spouse
entered without inspection. The couple can continue to live
with one spouse in a precarious immigration status; or, they
can seek the stability of permanent residency for the nonciti-
zen spouse but face a potential multiyear exile when he
leaves and applies for reentry.
Recognizing this diffcult choice, USCIS allows a nonciti-
zen spouse to apply for a waiver of inadmissibility for any
accrued unlawful presence before departing the United
States for his consular interview. To obtain such a waiver,
the noncitizen spouse must show that the citizen spouse will
suffer “extreme hardship” if her noncitizen spouse is not
admitted. § 1182(a)(9)(B)(v). Then, once the noncitizen
spouse returns to his country of origin, if a consular offcer
approves his visa application, he can reenter free from the
inadmissibility bar.
Consular offcers fall under the State Department, see
§ 1104(a), not DHS, which oversees USCIS, see 6 U. S. C.
§ 271(a). Even though DHS offcers and consular offcers
make admission determinations under the same substantive
laws, see § 1182, in reality, a noncitizen seeking admission via
consular processing faces a far higher risk of arbitrary denial
with far less opportunity for review than a noncitizen seek-
ing admission from DHS.
DHS offcers are constrained by a framework of required
process that does not apply to consular processing. A non-
citizen denied adjustment of status in the United States must
receive notice and the reasons for a denial. See 8 CFR
§ 245.2(a)(5)(i); DHS, USCIS, Policy Manual, vol. 7, pt. A, ch.
11—Decision Procedures (June 14, 2024) (requiring that a de-
nial notice either “[e]xplain what eligibility requirements are
not met and why they are not met” or “[e]xplain the positive
and negative factors considered, the relative weight given to
each factor individually and collectively, and why the nega-
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Sotomayor, J., dissenting
tive factors outweigh the positive factors”). He can renew
h
is application in removal proceedings before an immigration
court, see 8 U. S. C. § 1229b(b)(1), where DHS must present
any evidence against him in adversarial proceedings, see
§§ 1229(a), 1229a(b)(4)(B), 1229a(c)(3). From those removal
proceedings, a noncitizen can petition for review to the Board
of Immigration Appeals (BIA), see 8 CFR § 1003.1(b), and,
ultimately, a federal court of appeals, see 8 U. S. C. § 1252(a).
In contrast, a noncitizen denied admission via consular
processing is entitled to nothing more than a cite to the stat-
ute under which the consular offcer decided to exclude him.
§ 1182(b)(1).
2
He has no opportunity for administrative or
judicial review, and can only submit more evidence and re-
quest reconsideration. 22 CFR § 42.81(e). Former consular
offcers tell this Court that this lack of accountability, coupled
with defcient information and inconsistent training, means
decisions often “rely on stereotypes or tropes,” even “bias
or bad faith.” Brief for Former Consular Offcers as Amici
Curiae 8. Visa applicants may “experience disparate out-
comes based on nothing more than the luck or misfortune of
which diplomatic post and consular offcer . . . they happen to
be assigned.” Id., at 8–9. The State Department's Offce
of the Inspector General has documented numerous def-
ciencies in consular processing across several continents.
See, e. g., ISP–I–19–14, Inspection of Embassy Bogota, Co-
lombia, p. 16 (Apr. 2019) (fnding consular managers in Bo-
gota required visa adjudicators to maintain an average of 30
in-person interviews per hour). Supervisors are required
by the State Department to review a certain percentage of
visa denials but often fail to do so. See, e. g., Offce of Inspec-
tor General, ISP–I–19–17, Inspection of Embassy Santo Do-
mingo, Dominican Republic, p. 12 (July 2019) (fnding “man-
2
As the majority notes, if the consular offcer denies admission based
on “certain grounds related to crime and national security,” a noncitizen
is entitled to “no explanation” at all. Ante, at 904 (citing 8 U. S. C.
§ 1182(b)(3)).
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927
Sotomayor, J., dissenting
agers did not review 284 (23 percent) of the refusals that
shou
ld have been reviewed between April 1 and June 30,
2018”); Offce of Inspector General, ISP–I–16–24A, Inspec-
tion of Embassy Ankara, Turkey, p. 20 (Sept. 2016) (fnding
visa adjudicator failed to review the required 10% of visa
issuances and 20% of visa denials).
When the Government requires one spouse to leave the
country to apply for immigration status based on his mar-
riage, it therefore asks him to give up the process he would
receive in the United States and subject himself to the black
box of consular processing.
B
Muñoz, a celebrated workers' rights lawyer from Los
Angeles, California, met Luis Asencio-Cordero in 2008, three
years after he had arrived in the United States. They have
been married since 2010 and have a child together. In 2013,
Muñoz fled an immediate-relative petition for her husband,
which USCIS approved. Because Asencio-Cordero had
originally entered the United States without inspection, the
Government required him to return to El Salvador, his coun-
try of origin, for consular processing to obtain his immigrant
visa. Yet he also faced a bar to reentry if he left the coun-
try. DHS granted him a waiver of this bar upon his an-
ticipated return to the United States because of the “ex-
treme hardship” Muñoz would suffer if he were excluded.
8 U. S. C. § 1182(a)(9)(B)(v). In April 2015, Asencio-Cordero
traveled from California to El Salvador. That was the last
time he stood on American soil.
Asencio-Cordero attended the initial consular interview in
San Salvador on May 28, 2015. In December 2015, a con-
sular offcer denied his visa application. As justifcation, the
denial cited only to § 1182(a)(3)(A)(ii). That statute provides
that any noncitizen “who a consular offcer . . . knows, or has
reasonable ground to believe, seeks to enter the United
States to engage solely, principally, or incidentally in . . . any
other unlawful activity . . . is inadmissible.” In other words,
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the consular offcer excluded Asencio-Cordero based on a be-
l
ief that he planned to engage in some unspecifed unlawful
conduct upon return to the United States. “[U]nlawful ac-
tivity” could mean anything from jaywalking to murder.
Asencio-Cordero has no criminal history in the United
States or El Salvador. See 50 F. 4th 906, 911 (CA9 2022);
Br ief for Respondents 8, n. 5 (“It is uncontested that
Asencio-Cordero has never been charged with any crime”).
With no obvious justifcation for the consular offcer's be-
lief, Muñoz and Asencio-Cordero asked for reconsideration.
Muñoz sought the help of Congresswoman Judy Chu, who
sent a letter to the State Department on Muñoz's behalf.
The following day, the consulate responded to the letter
again with only a citation to § 1182(a)(3)(A)(ii). In January
and April 2016, Muñoz asked the State Department for
the factual basis for her husband's inadmissibility. She
and her husband provided evidence of her accolades at
work and attestati ons of Asenci o-Cordero's good moral
character. A few days later, the consulate notifed Muñoz
that the State Department had reviewed the denial and
concurred with the consular offcer's decision. It denied
reconsideration.
After the consulate denied reconsideration, Muñoz and her
husband wrote to the State Department again requesting a
factual basis for the inadmissibility decision. Asenci o-
Cordero has no criminal record, but he does have several
tattoos from his teenage years. App. 22. They depict a
range of subjects, including “Our Lady of Guadalupe, Sig-
mund Freud, a `tribal' pattern with a paw print, and theatri-
cal masks with dice and cards.” Brief for Respondents 2,
n. 2. Some of these images have deep signifcance in Latin
American culture. See, e. g., Brief for Professors and Schol-
ars as Amici Curiae 8–10 (“Many Latin Americans view La
Virgen de Guadalupe as a special protector, and as a symbol
of pan-Latinx identity that transcends attachment to any one
geography”). Some also happen to appear on gang members.
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929
Sotomayor, J., dissenting
See ibid. (noting that “law enforcement agencies and offcials
of
ten use tattoos of common Catholic imagery . . . as indicia
of gang membership”). Speculating about potential bases
for a visa denial, Muñoz and her husband included additional
evidence from a court-approved gang expert in their letter
to the State Department. The expert reviewed Asencio-
Cordero's tattoos and concluded that none were “ `related to
any gang or criminal organization in the United States or
elsewhere.' ” 50 F. 4th, at 911. The State Department re-
sponded that it lacked authority to overturn consular deci-
sions and “ `concurred in the fnding of ineligibility.' ” Ibid.
The consulate followed up in May 2016, a year after Asencio-
Cordero's initial interview, by listing all the entities that had
reviewed the visa application and noting that “ `there is no
appeal.' ” Ibid.
It was only after Muñoz and her husband sued the Govern-
ment in Federal District Court that they fnally received the
factual basis for the denial. After almost two years of litiga-
tion, the Government submitted a declaration from a State
Department attorney-adviser. Id., at 912. That declara-
tion stated that the consular offcer denied Asencio-Cordero's
visa application under § 1182(a)(3)(A)(ii) because “ `based on
the in-person interview, a criminal review of Mr. Asencio
Cordero and a review of . . . Mr. Asencio Cordero's tattoos,
the consular offcer determined that Mr. Asencio Cordero
was a member of a known criminal organization . . . specif-
cally MS-13.' ” Ibid. (alterations omitted).
The Court of Appeals ruled in Muñoz's favor. It held that
the Government's reason was too little, too late. The denial
of her husband's visa burdened Muñoz's right to marriage,
and the Gover nment had prov ided inadequate process.
Even though the Government provided a “facially legitimate
and bona fde” reason, that reason was not “timely” enough
to satisfy constitutional due process requirements. Id., at
919–921. This Court granted the Government's petition for
a writ of certiorari. 601 U. S. ––– (2024).

930 DEP
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Sotomayor, J., dissenting
II
There
was a simple way to resolve this case. I agree with
Justice Gorsuch that “the United States has now revealed
the factual basis for its decision to deny [Muñoz's] husband a
visa,” and she has thus received whatever process she was
due. Ante, at 920 (opinion concurring in judgment).
3
That
could and should have been the end of it. Instead, the ma-
jority swings for the fences. It seizes on the Government's
invitation to abrogate the right to marriage in the immigra-
tion context and sharply limit this Court's longstanding
precedent.
Muñoz has a constitutionally protected interest in her hus-
band's visa application because its denial burdened her right
to marriage. She petitioned USCIS to recognize their mar-
riage so that her husband could remain lawfully beside her
and their child in the United States. It was the extreme
hardship Muñoz faced from her husband's exclusion that
formed the basis for USCIS's waiver of his inadmissibility.
For the majority, however, once Muñoz's husband left the
country in reliance on those approvals, their marriage ceased
to matter. Suddenly, the Government owed her no explana-
tion at all.
The constitutional right to marriage is not so fimsy. The
Government cannot banish a U. S. citizen's spouse and give
3
Unlike Justice Gorsuch, I would vacate and remand the opinion
below. The Court of Appeals and District Court correctly resolved the
two questions on which this Court granted certiorari. The Ninth Circuit
nevertheless vacated the District Court's judgment and remanded based
on the answer to a third question, which is not before this Court. See
n. 1, supra; 50 F. 4th 906, 923–924 (2022) (“Because no `fact in the record'
justifying the denial of Asencio-Cordero's visa was made available to
[Muñoz and her husband] until nearly three years had elapsed after the
denial, and until after litigation had begun, we conclude that the govern-
ment did not meet the notice requirements of due process when it denied
Asencio-Cordero's visa”). I would let the Ninth Circuit decide in the frst
instance the effect of a Court holding that Muñoz received all the process
she was constitutionally due.
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931
Sotomayor, J., dissenting
only a bare statutory citation as an excuse. By denying
Muñoz
the right to a factual basis for her husband's exclu-
sion, the majority departs from longstanding precedent and
gravely undervalues the right to marriage in the immigra-
tion context.
A
The constituti ona l r ight to marr iage has deep roots.
“[M]arriage,” this Court said over a century ago, “is some-
thing more than a mere contract.” Maynard v. Hill, 125
U. S. 190, 210–211 (1888). It is “the most important relation
in life,” id., at 205, and “the foundation of the family,” id., at
211. This Court has described it in one breath as the right
“to marry, establish a home and bring up children,” a right
“long recognized at common law as essential to the orderly
pursuit of happiness by free men.” Meyer v. Nebraska, 262
U. S. 390, 399 (1923). In upholding the right of Mildred and
Richard Loving to have their marriage license from the Dis-
trict of Columbia recognized by Virginia, this Court empha-
sized that “[m]arriage is one of the `basic civil rights of man,'
fundamental to our very existence and survival.” Loving v.
Virginia, 388 U. S. 1, 12 (1967) (quoting Skinner v. Okla-
homa ex rel. Williamson, 316 U. S. 535, 541 (1942)). Indeed,
the right to marriage was one of the frst building blocks of
substantive due process. The right was so “ `fundamental' ”
and “ `implicit in the concept of ordered liberty' ” that the
Roe Court invoked it as part of the foundation underlying
the right to abortion. Roe v. Wade, 410 U. S. 113, 152–153
(1973) (cataloguing existing substantive due process rights
as extending to “marriage, procreation, contraception, family
relationships, and child rearing and education” (citations
omitted)), overruled, Dobbs, 597 U. S. 215.
Almost 10 years ago, this Court vindicated the expansive-
ness of the right to marriage. It upheld the right of James
Obergefell and his terminally ill husband, John Arthur, to
have their marriage from Maryland recognized in Ohio. Re-
jecting the idea that “Ohio can erase [Obergefell's] marriage
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Sotomayor, J., dissenting
to John Arthur for all time” by declining to place Obergefell
as
the surviving spouse on Arthur's death certifcate, this
Court reasoned that “marriage is a right `older than the Bill
of Rights.' ” Obergefell, 576 U. S., at 666, 678. Marriage
“ `fulfls yearnings for security, safe haven, and connection
that express our common humanity.' ” Id., at 666. “Mar-
riage responds to the universal fear that a lonely person
might call out only to fnd no one there. It offers the hope
of companionship and understanding and assurance that
while both still live there will be someone to care for the
other.” Id., at 667.
The majority, ignoring these precedents, makes the same
fatal error it made in Dobbs: requiring too “ `careful [a] descrip-
tion of the asserted fundamental liberty interest.' ” Ante, at
910 (quoting Washington v. Glucksberg, 521 U. S. 702, 721
(1997)); cf. Dobbs, 597 U. S., at 374–375 (Breyer, Sotomayor,
and Kagan, JJ., dissenting). The majority faults Muñoz's in-
vocation of the “ `fundamental right to marriage' ” as “diffcult
to pin down.” Ante, at 910. Instead, it tries to characterize
her asserted right as “an entitlement to bring [her husband]
to the United States,” even though it acknowledges that
Muñoz “disclaims that characterization.” Ante, at 910–911.
Obergefell rejected what the majority does today as “in-
consistent with the approach this Court has used in discuss-
ing [the] fundamental rights” of “marriage and intimacy.”
576 U. S., at 671. Cataloguing a half century of precedent
on the right to marriage, the Court stressed that “Loving
did not ask about a `right to interracial marriage'; Turner
did not ask about a `right of inmates to marry'; and Zablocki
did not ask about a `right of fathers with unpaid child support
duties to marry.' ” Ibid. Instead, “each case inquired
about the right to marry in its comprehensive sense” of
“marriage and intimacy.” Ibid. Similarly, Muñoz does not
argue that her marriage gives her the right to immigrate
her husband. She instead advances the reasonable position
that blocking her from living with her husband in the United
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933
Sotomayor, J., dissenting
States burdens her right “to marry, establish a home and
br
ing up children” with him. Meyer, 262 U. S., at 399.
This Court has never required that plaintiffs be fully pre-
vented from exercising their right to marriage before invok-
ing it. Instead, the question is whether a challenged gov-
ernment action burdens the right. For example, the Court
in Zablocki v. Redhail, 434 U. S. 374 (1978), examined the
“burde[n]” placed on fathers by a statute that required a
hearing to “counsel” them “as to the necessity of fulflling ”
any outstanding child support obligations before being
granted permission to marry. Id., at 387–388. The Court
in Turner v. Safey, 482 U. S. 78 (1987), applied Zablocki to
incarcerated people to hold that the particular prison mar-
riage restriction at issue “impermissibly burden[ed] the right
to marry.” 482 U. S., at 97. There can be no real question
that excluding a citizen's spouse from the country “burdens”
the citizen's right to marriage as this Court has repeatedly
defned it. This Court has never held that a married cou-
ple's ability to move their home elsewhere removes the bur-
den on their constitutional rights. It did not tell Richard
and Mildred Loving to stay in the District of Columbia or
James Obergefell and John Arthur to stay in Maryland. It
upheld their ability to exercise their right to marriage wher-
ever they sought to make their home.
Muñoz may be able to live in El Salvador alongside her
husband or at least visit him there, but not everyone is so
lucky. The majority's holding will also extend to those cou-
ples who, like the Lovings and the Obergefells, depend on
American law for their marriages' validity. Same-sex cou-
ples may be forced to relocate to countries that do not recog-
nize same-sex marriage, or even those that criminalize homo-
sexuality. American husbands may be unable to follow their
wives abroad if their wives' countries of origin do not recog-
nize derivative immigration status from women (as was the
case in this country for many years, see ante, at 913 (noting
visa “quotas . . . for female citizens with noncitizen husbands”

934 DEP
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Sotomayor, J., dissenting
until 1952)). The majority's failure to respect the right to
marr
iage in this country consigns U. S. citizens to rely on the
fckle grace of other countries' immigration laws to vindicate
one of the “ `basic civil rights of man' ” and live alongside
their spouses. Loving, 388 U. S., at 12.
B
Given that the Government has burdened Muñoz's right to
marriage by excluding her husband from the country, the
question is the remedy for that burden. Muñoz argues that
this burden triggers procedural due process protections in
her husband's visa denial. Emphasizing that substantive
due process rights like the right to marriage usually trigger
strict scrutiny, the majority faults Muñoz for creating a right
“in a category of one: a substantive due process right that
gets only procedural due process protection.” Ante, at 911.
Muñoz, however, did not create that category of rights.
This Court did. See Mandel, 408 U. S., at 768–770. This
Court already set the ground rules for when the Govern-
ment's exercise of its extensive power over the exclusion of
noncitizens burdens a U. S. citizen's constitutional rights.
See id., at 770. In short, a fundamental right may trigger
procedural due process protections over a noncitizen's exclu-
sion, but such protections are limited. See ibid.
Noncitizens who apply for visas from outside the United
States have no constitutional entitlement to enter the coun-
try, and therefore typically have no constitutional process
protections in the visa application themselves. See Landon
v. Plasencia, 459 U. S. 21, 32 (1982). In contrast, noncitizens
who already live in the United States whom the Government
seeks to remove have procedural due process protections
during that removal. See Yick Wo v. Hopkins, 118 U. S.
356, 369 (1886); Zadvydas v. Davis, 533 U. S. 678, 693 (2001).
Had the Government sought to remove Muñoz's husband
when they were living together in the United States, he
would have had his own constitutional protections in those
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935
Sotomayor, J., dissenting
proceedings. Instead, because the Government forced him
to
leave the country and reenter in order to adjust his immi-
gration status, he lost them.
Not only do noncitizens seeking to enter the United States
lack constitutional process rights in their visa applications.
This Court has further insulated the Government's visa de-
terminations from review by declining to evaluate them at
all. See ante, at 907–908. This judge-made “doctrine of
consular nonreviewability” refects the Judicial Branch's rec-
ognition that the “ `admission and exclusion of foreign nation-
a ls' ” is an area of unusua l ly heightened congressi ona l
and executive power. Ibid.
4
When the denial of a nonciti-
zen's visa burdens a U. S. citizen's constitutional rights, how-
ever, this Court has had to reconcile the importance of those
rights with its recognition of Government authority over
visa determinations. In Mandel, it set the remedy. The
Mandel Court held that when a visa denial “implicate[s]” a
citizen's rights, a court will not look behind a “facially legiti-
4
Judges created this doctrine because of the otherwise “strong pre-
sumption that Congress intends judicial review of administrative action.”
Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670
(1986). The majority emphasizes that the Government asked the Court
for the holding it reaches today. See ante, at 907, n. 3. It is hardly un-
usual for the Government to ask this Court for less judicial review over
its immigration decisions. See, e. g., Wilkinson v. Garland, 601 U. S. 209
(2024) (arguing that eligibility for cancellation of removal is unreviewable);
Santos-Zacaria v. Garland, 598 U. S. 411 (2023) (arguing that noncitizens
must request discretionary forms of administrative review before chal-
lenging a fnal order of removal in federal court); Patel v. Garland, 596
U. S. 328 (2022) (arguing that federal courts lack jurisdiction to review
facts found as part of eligibility determination for discretionary relief );
Garland v. Aleman Gonzalez, 596 U. S. 543 (2022) (arguing that district
courts lack jurisdiction to entertain noncitizens' requests for class-wide
injunctive relief ). Unusually, in this case, the Government's argument
against review is not based on any statutes passed by Congress but on a
doctrine that this Court created itself. Rather than exercise the restraint
counseled by Mandel, the majority instead chooses to exclude a fundamen-
tal right from Mandel's prudent exception. See in fra, at 936–939.
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Sotomayor, J., dissenting
mate and bona fde” reason for the denial. 408 U. S., at
765,
769.
In Mandel, a group of U. S. professors sued the Govern-
ment over the visa denial of Dr. Ernest E. Mandel, a famous
Belgian Marxist. See id., at 756, 759–760. The professors
argued that excluding Mandel burdened their First Amend-
ment right to hear and meet with him in person. See id.,
at 760. The Court agreed that the professors had a First
Amendment “ `right to receive information' ” from Mandel.
Id., at 762, 764. It also emphasized, as the majority does
today, Congress's power over the admission and exclusion of
noncitizens. See id., at 766–767; ante, at 907–908. To avoid
the need to balance “the strength of the audience's interest
against that of the Government in refusing a waiver to the
particular [noncitizen] applicant, according to some as yet un-
determined standard,” Mandel, 408 U. S., at 768–769, the
Court instead noted that “the Attorney General did inform
Mandel's counsel of the reason for refusing him a waiver.
And that reason was facially legitimate and bona fde.”
Id., at 769 (emphasis added). Therefore, “when the Execu-
tive exercises [conditional power to exclude] negatively on
the basis of a facially legitimate and bona fde reason, the
courts will neither look behind the exercise of that discre-
tion, nor test it by balancing its justifcation against the First
Amendment interests of those who seek personal communi-
cation with the applicant.” Id., at 770. In other words,
when a visa denial burdens a noncitizen's constitutional
rights, rather than attempt to balance the competing inter-
ests under strict scrutiny, a court should accept the Govern-
ment's “facially legitimate and bona fde reason.” Ibid.
That minimal requirement ensures that courts do not unduly
intrude on “the Government's sovereign authority to set the
terms governing the admission and exclusion of noncitizens,”
ante, at 911–912, while also ensuring that the Government
does not arbitrarily burden citizens' constitutional rights.
This Court has repeatedly relied on Mandel's test in the
immigration context. See, e. g., Trump v. Hawaii, 585 U. S.

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937
Sotomayor, J., dissenting
667, 703 (2018) (noting that “this Court has engaged in a
circumscr
ibed judicial inquiry when the denial of a visa alleg-
edly burdens the constitutional rights of a U. S. citizen”); Fi-
allo v. Bell, 430 U. S. 787, 794, 799 (1977) (relying on Mandel
in declining to “probe and test the justifcations for [a] legis-
lative” distinction between mothers and fathers because this
Court has applied limited scrutiny to “resolv[e] similar chal-
lenges to immigration legislation based on other constitu-
tional rights of citizens”).
5
Indeed, less than a decade ago,
six Justices ruling on the exact legal question the Court con-
fronts today would have held that Mandel controlled or ex-
tended its protections even further in the marriage context.
See Kerry v. Din, 576 U. S. 86, 103–104 (2015) (Kennedy, J.,
5
Despite the majority's claim that its decision is the majority rule in the
Courts of Appeals, ante, at 909, and n. 5, lower courts have rarely reached
the question the majority reaches today. That is because they have relied
on Mandel to hold that the Government has in any case provided a “ `fa-
cially legitimate and bona fde' ” reason. See, e. g., Sesay v. United States,
984 F. 3d 312, 315–316, and n. 2 (CA4 2021); Del Valle v. U. S. Dept. of
State, 16 F. 4th 832, 838–842 (CA11 2021); Yafai v. Pompeo, 912 F. 3d
1018, 1020–1021 (CA7 2019). One of the cases the majority cites pre-dates
Mandel, Silverman v. Rogers, 437 F. 2d 102 (CA1 1970), and two others
reached the majority's holding based only on conclusory assertions, see
Burrafato v. U. S. Dept. of State, 523 F. 2d 554, 555–557 (CA2 1975); Bright
v. Parra, 919 F. 2d 31, 34 (CA5 1990) (per curiam). Only two Circuits
have used the majority's reasoning to hold that a U. S. citizen's right to
marriage does not trigger the Mandel remedy. In one, the court had an
alternative holding that “even if we take [the right to marriage] as a given,
the argument fails because the consulate provided a facially legitimate
reason for the visa denials.” Baaghil v. Miller, 1 F. 4th 427, 434 (CA6
2021). In the other, a concurring judge urged his colleagues to resolve
this challenge on the same narrow holding that the majority could have
followed today. See, e. g., Colindres v. U. S. Dept. of State, 71 F. 4th 1018,
1027 (CADC 2023) (opinion of Srinivasan, J.) (“There is no need for us to
take up the merits of [the] constitutional question . . . and I would refrain
from doing so. Rather, we can rest our decision solely on the ground . . .
that even assuming [appellant's] fundamental right to marriage includes a
protected interest in living in the country with her husband, such that at
least some form of due process scrutiny applies, the government's denial
of a visa to him afforded her adequate process”).

938 DEP
ARTMENT OF STATE v. MUÑOZ
Sotomayor, J., dissenting
concurring in judgment) (“The reasoning and the holding in
Mandel
control here. . . . Like the professors who sought an
audience with Dr. Mandel, [respondent] claims her constitu-
tional rights were burdened by the denial of a visa to a non-
citizen, namely, her husband”); id., at 107 (Breyer, J., dissent-
ing) (reasoning that respondent's “liberty interest [in] her
freedom to live together with her husband in the United
States” is the kind “to which the Due Process Clause grants
procedural protection”).
Outside the immigration context, this Court has endorsed
similar tests in circumstances where there is a heightened
underlying governmental power. For instance, in Turner,
the Court evaluated the right to marriage in the prison con-
text. Even though an incarcerated person “ `retains those
[constitutional] rights that are not inconsistent with his sta-
tus as a prisoner or with the legitimate penological objec-
tives of the corrections system,' ” the Court emphasized that
“[t]he right to marry, like many other rights, is subject to
substantial restrictions as a result of incarceration.” 482
U. S., at 95 (quoting Pell v. Procunier, 417 U. S. 817, 822
(1974)). Only because the challenged prison regulation
there was not “reasonably related” to the government's ar-
ticulated penological interests, or “legitimate security and
rehabilitation concerns,” did this Court hold it unconstitu-
tional. Turner, 482 U. S., at 95; see id., at 99.
Just as Turner looked at burdens on the right to marriage
through the narrow lens of “penological interests” to defer
to the government's control over prisons, Mandel used a “fa-
cially legitimate and bona fde reason” to defer to the Gov-
ernment's power over the exclusion of noncitizens. Neither
case erased the constitutional right at issue. The Court
simply recognized that the right can be substantially limited
in areas where the government exercises unusually height-
ened control.
Applying Mandel and Turner here, the remedy is clear.
The Government's exclusion of Muñoz's husband entitles her
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939
Sotomayor, J., dissenting
at least to the remedy required in Mandel: a “facially legiti-
mate
and bona fde reason” for the exclusion. 408 U. S., at
770.
C
The majority resists this conclusion by worrying about its
“unsettling collateral consequences.” Ante, at 916. The
majority poses a series of hypotheticals that it fears will re-
sult from recognizing the limited right Muñoz proposes.
These fears are groundless.
First, the majority's concern that applying Mandel to
Muñoz's right to marriage in this case will result in a
slippery slope of constitutional challenges is unfounded.
Muñoz's right triggers limited process protections in part be-
cause her husband lost his own procedural protections when
the Government required him to leave the country. Muñoz's
right to marriage raises that foor from zero process to some
by requiring the Government to provide a “facially legiti-
mate and bona fde reason” when her husband receives no
process. In contrast, a citizen's liberty interest “in the re-
moval proceeding of her spouse” in the United States, ante,
at 917, would presumably be limited by the noncitizen's own
due process rights in that same proceeding. Similarly, any
challenge from a wife to her husband's “ `assignment to a
remote prison,' ” ibid., would presumably be limited by
the criminal procedural protections her husband already
received.
Second, the majority's reliance on O'Bannon v. Town
Court Nursing Center, 447 U. S. 773 (1980), is misplaced and
highlights the speculative nature of its concerns. O'Ban-
non rejected a freestanding constitutional interest in avoid-
i ng “ser i ous trauma. ” Id., at 788. The residents of a
government-funded nursing home sought relief from transfer
to alternative housing because of the emotional harm they
would suffer from the move. Id., at 777–781, 784. Muñoz,
however, does not rely on a free-foating emotional harm that
separation from her husband will cause. She invokes her
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940 DEP
ARTMENT OF STATE v. MUÑOZ
Sotomayor, J., dissenting
fundamental right to marry, live, and raise a family with her
husband,
the right recognized by this Court for centuries.
See supra, at 931–934. Denying her husband entry to the
country directly burdens that right.
In sum, the majority's concerns are unwarranted. There
are few circumstances where the limited relief sought by
Muñoz would be available.
III
A “facially legitimate and bona fde” reason may seem like
a meager remedy for burdening a fundamental right. Yet
even the barest explanation requirement can be powerful.
The majority relies heavily on United States ex rel. Knauff
v. Shaughnessy, 338 U. S. 537 (1950). See ante, at 908,
914–915. A closer look at the story of Ellen Knauff, however,
illustrates the importance of putting the Government to a
minimal evidence requirement when a visa denial burdens a
constitutional right.
Knauff's U. S. citizen husband sought to bring her to the
United States after they married during his deployment to
Germany. After this Court upheld her exclusion on undis-
closed national security grounds, there was a public outcry.
See C. Weisselberg, The Exclusion and Detention of Aliens:
Lessons From the Lives of Ellen Knauff and Ignatz Mezei,
143 U. Pa. L. Rev. 933, 958–964 (1995). Both Houses of Con-
gress introduced private bills for her relief and, after the
Attorney General rushed to remove Knauff from Ellis Island
before Congress could act, Justice Jackson (who had vigor-
ously dissented in the case) issued a stay from this Court.
See id., at 958, n. 127. After extensive advocacy, the Attor-
ney General ordered immigration offcials to reopen the case.
See id., at 961–962. Eventually, Knauff won her case before
the BIA when the Government failed to prove up its national
security concerns. Id., at 963–964. She was fnally ad-
mitted as a lawful permanent resident. Id., at 964.
The majority relies heavily on “[t]he rule of Knauff ”: that
“the Attorney General has the unchallengeable power to
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941
Sotomayor, J., dissenting
exclude” a noncitizen. Ibid.; ante, at 915 (emphasizing that
“
`[n]o limits can be put by the courts upon' ” the exercise of
the Government's power to “ `forbid aliens or classes of aliens
from coming within their borders' ”). Yet, “the full story of
Ellen Knauff shows a populace and a Congress unwilling to
accept the exercise of this sort of raw power.” Weisselberg,
143 U. Pa. L. Rev., at 964. “Once the government was re-
quired to justify its exclusion decision with substantial and
reliable evidence, in an open proceeding, Knauff gained ad-
mission into the United States.” Ibid.
Knauff brought her own petition to challenge her exclu-
sion. Knauff, 338 U. S., at 539–540. Her husband did not
argue that her exclusion burdened his right to marriage.
Twenty-two years after Knauff, however, when faced with
such a challenge, this Court limited the justifcation that the
Government must provide in these circumstances to a “fa-
cially legitimate and bona fde reason.” Mandel, 408 U. S.,
at 770. The majority, not content to resolve this case on
even those narrow grounds, instead relieves the Government
of any need to justify itself at all. Knauff's story illustrates
why the right to marriage deserves more. By leaving U. S.
citizens without even a factual basis for their spouses' exclu-
sion, the majority paves the way for arbitrary denials of a
right this Court has repeatedly held among the most impor-
tant to our Nation.
***
A traveler to the United States two centuries ago reported
that “ `[t]here is certainly no country in the world where the
tie of marriage is so much respected as in America.' ” Ober-
gefell, 576 U. S., at 669 (quoting 1 A. de Tocqueville, Democ-
racy in America 309 (H. Reeve transl., rev. ed. 1900)).
Today, the majority fails to live up to that centuries-old
promise. Muñoz may be able to live with her husband in El
Salvador, but it will mean raising her U. S.-citizen child out-
side the United States. Others will be less fortunate. The
burden will fall most heavily on same-sex couples and others
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942 DEP
ARTMENT OF STATE v. MUÑOZ
Sotomayor, J., dissenting
who lack the ability, for legal or fnancial reasons, to make a
home
in the noncitizen spouse's country of origin. For those
couples, this Court's vision of marriage as the “assurance
that while both still live there will be someone to care for
the other” rings hollow. Obergefell, 576 U. S., at 667. I re-
spectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 941, line 11: “habeas” is deleted