Bloomberg Law
June 21, 2024, 2:11 PM UTCUpdated: June 21, 2024, 4:35 PM UTC

Spouses of US Citizens Lose Supreme Court Visa Denial Case (1)

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson
Senior Reporter

Federal courts can’t second-guess visa denials for spouses of American citizens even if it means the couple can’t live together in the US, the Supreme Court said.

The 6-3 ruling by Justice Amy Coney Barrett on Friday said such denials don’t implicate the rights of US citizens.

The ruling is a loss for Sandra Muñoz, who sued the State Department after her husband, Luis Asencio-Cordero, a citizen of El Salvador, was denied a visa.

Ultimately the State Department said it rejected Asencio-Cordero because it believed he was affiliated with the international gang MS-13. He denied being a member of the group.

Writing in dissent, Justice Sonia Sotomayor chided her conservative colleagues for failing to resolve the dispute on narrow grounds and instead deciding it in a way that she said undermined the right to same-sex marriage.

“There was a simple way to resolve this case,” Sotomayor said. “Instead, the majority swings for the fences.”

Fundamental Right

All justices agreed that Asencio-Cordero couldn’t challenge his visa denial. Such decisions are for the political branches, not the judiciary. But Barrett raised a “narrow exception” to that rule allowing for judicial review when denial affects the rights of a US citizen.

That’s where agreement among the justices ended.

Writing for the high court’s conservatives save Justice Neil Gorsuch, Barrett said the exception didn’t apply in this case because Muñoz didn’t have a “fundamental right” in her spouse being admitted to the country.

The specific nature of the asserted right was “difficult to pin down,” Barrett said. But she said it was akin to a right to reside with a noncitizen spouse in the US.

History shows that’s not true, Barrett said. In particular, the “Government’s sovereign authority to set the terms governing the admission and exclusion of noncitizens” cuts the other way.

Gorsuch’s separate concurring opinion agreed with the outcome but not its reasoning.

Muñoz received everything she was entitled to through litigation, namely, an explanation of why her spouse’s visa was denied, Gorsuch said.

“Those developments should end this case,” Gorsuch said in declining to explain whether Muñoz’s own rights were affected.

Same-Sex Marriage

Sotomayor and her liberal colleagues appeared to agree with Gorsuch. But their dissenting opinion took the majority to task for going further.

They said defining Muñoz’s rights so narrowly to include only the right to reside with a spouse undercut the court’s broad definition of marriage in previous cases, including the right to same-sex marriage.

Previous cases testing the right to marriage didn’t ask whether there was a right to interracial marriage or for inmates to marry, Sotomayor wrote. “Instead, ‘each case inquired about the right to marry in its comprehensive sense’ of ‘marriage and intimacy.’”

Sotomayor said the court’s error in the Munoz case was the same “fatal error it made in Dobbs,” the 2022 decision overturning the constitutional right to abortion. That, she said, was requiring too specific a description of an asserted fundamental right.

The case is Department of State v. Munoz, U.S., No. 23-334.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: John Crawley at

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