Business Immigration Insights

For the second time in the past ten years, the Supreme Court has upheld the doctrine of consular non-reviewability of visa decisions and denied relief to the U.S. citizen spouse seeking to challenge the denial of a visa to a spouse. 

In 2015, the Supreme Court, in a 5-4 decision in the case of Kerry v. Din[1], denied relief to the U.S. citizen wife of a Pakistani citizen seeking to challenge the denial of an immigrant visa to her husband.  Ms. Din was arguing that she should be able to review the basis of her husband’s denial by the Department of State and that her inability to do so was a violation of due process.  The narrow victory for the Department of State in that decision gave hope that a future court might find sufficient justification for narrowing the scope of consular non-reviewability in a different fact pattern where, it could be argued, the denial overburdened the citizen’s constitutional rights and merited additional review. 

That hope was diminished further last week when the Supreme Court, in a 6-3 decision, ruled that a U.S. citizen spouse had “no fundamental liberty interest” in her non-citizen husband being able to be admitted to the United States.[2]  Sandra Munoz married her Salvadoran husband in 2010 and filed an immigration visa petition on his behalf.  His visa was denied by a consular officer in San Salvador and he was found inadmissible under a provision of the Immigration and Nationality Act that did not offer waiver relief.  Ms. Munoz sued the Department and argued that she had a constitutional liberty interest in her husband being able to live with her in the United States, and the Department’s failure to provide sufficient justification for his visa denial made it impossible for her to challenge that visa denial, to the detriment of her constitutional right to live with her husband in the United States. 

After her case was denied by the District Court with a summary judgment, Ms. Munoz appealed to the 9^th Circuit, which reversed the District Court and held that she did in fact have a constitutional protected liberty interest in her husband’s visa application that required the Department of State to give her a “facially legitimate and bona fide reason” for her husband’s visa denial. 

In reversing the 9^th circuit decision, the Supreme Court acknowledged a very narrow exception to the doctrine of non-reviewability of consular visa decisions when the denial “allegedly burdens the constitutional rights of a U .S. citizen”, but went on to conclude that there is no constitutional right available to a U.S. citizen to reside in his or her country of citizenship with a non-citizen spouse.  The practical consequence of the decision is the reinforcement of the long-held doctrine of consular non-reviewability of visa denials in all but the most  egregious instances.  Given the current make-up of the Supreme Court it is unlikely that any serious challenge to consular non-reviewability will survive to appear on the Supreme Court’s docket for the foreseeable future.

Although Munoz involved a spousal relationship and did not address the broader issue of consular non-reviewability as it applies to other kinds of visas beyond the immigrant visa, which she requested for her husband, the impact of Munoz will likely extend far beyond the fact pattern in her case to reinforce the authority consular officers have to deny both immigrant and nonimmigrant visas under the Immigration and Nationality Act without fear of having those decisions subject to review outside the administrative purview of the Department of State. This is a significant and often underappreciated authority that is ignored at one’s peril. As a practical matter, it is more important than ever that individuals and businesses alike seeking to sponsor relatives or employees to enter the United States be aware of potential obstacles to visa issuance to those individuals before the actual visa interview takes place—obstacles that may make it impossible for them to enter the United States.

[1] Kerry v. Din, 576 U.S. 86 (2015)

[2] Department of State et al v.. Munoz, 602 U.S. _____2024 (6/21/2024)