Respondents Brief — Department of State, et al., Petitioners v. Sandra Muñoz, et al.

Supreme Court briefMar 21, 2024

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No. 23-334

In the Supreme Court of the United States

DEPARTMENT OF STATE, ET AL.,

Petitioners,

SANDRA MUÑOZ, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR RESPONDENTS

CHARLES ROTH

KEREN ZWICK

MARY GEORGEVICH

RICHARD CALDARONE

COLLEEN COWGILL

NATIONAL IMMIGRANT

JUSTICE CENTER

111 W. Jackson Blvd.,

Suite 800

Chicago, Illinois 60604

croth@immigrantjustice.org

kzwick@immigrantjustice.org

ERWIN CHEMERINSKY

UNIVERSITY OF CALIFORNIA,

BERKELEY SCHOOL OF LAW

Law Building 215

Berkeley, California 94720

echemerinsky@berkeley.edu

ERIC LEE

Counsel of Record

DIAMANTE LAW GROUP

24225 W. 9 Mile Rd.,

Suite 140

Southfield, Michigan 48033

213-943-4555

elee@diamantelaw.com

ALAN DIAMANTE

DIAMANTE LAW GROUP

201 N. Brand Blvd., Suite M

Glendale, California 91203

adiamante@diamantelaw.com

Counsel for Respondents

TABLE OF CONTENTS

INTRODUCTION ........................................................1

STATEMENT OF THE CASE ....................................3

Legal Background .............................................3

II.

Factual and Procedural Background ...............6

SUMMARY OF THE ARGUMENT ..........................10

ARGUMENT ..............................................................12

II.

The

Government’s

Nonreviewability

Arguments Are Both Outside the Questions

Presented And Incorrect. ................................12

Consular nonreviewability is

outside the scope of the questions

presented and should not be

addressed. .............................................13

The Court should reject the

Government’s consular

nonreviewability arguments ................14

As A Citizen, Muñoz Has A Liberty Interest

In Marital Cohabitation In The United

States. ..............................................................19

History and tradition show that

cohabitation is essential to

marriage, especially in the

immigration context. ............................19

Statutes and regulations inform

Muñoz’s liberty interest. ......................24

The Government’s attempts to

refute Muñoz’s liberty interest

fail. ........................................................29

1. Muñoz was directly affected by

Asencio-Cordero’s visa denial. ........30

2. Muñoz’s interest in living in her

country of citizenship renders

relocation

impermissible

solution. ...........................................35

III.

Citing Section 1182(a)(3)(A)(ii) Does Not

Provide Sufficient Notice To Satisfy Due

Process. ............................................................37

The “facially legitimate and bona

fide” test should not apply here. ..........38

In the narrow situation presented

here, the Constitution requires a

factual basis for an

inadmissibility determination. ............42

A mere citation to Section

1182(a)(3)(A)(ii) cannot satisfy

the “facially legitimate and bona

fide” test. ...............................................47

The concurrence in Din does not

compel a contrary result. .....................49

CONCLUSION ..........................................................52

iii

APPENDIX

Code of Federal Regulations .....................................1a

8 C.F.R. § 103.2(b)(6) .............................................1a

8 C.F.R. § 212.7(e)(14) ...........................................1a

22 C.F.R. § 40.6 ......................................................3a

22 C.F.R. § 42.81 ....................................................3a

Foreign Affairs Manual .............................................7a

9 FAM 302.4-3(B)(3) ..............................................7a

9 FAM 302.5-4(A) ...................................................7a

9 FAM 504.2-2(B) ...................................................8a

9 FAM 504.2-8(A) ...................................................9a

9 FAM 504.2-8(A)(1) ............................................10a

9 FAM 504.2-8(A)(2) ............................................11a

9 FAM 504.7-2 ......................................................12a

9 FAM 504.11-3(A)(1) ..........................................13a

TABLE OF AUTHORITIES

Cases

Afroyim v. Rusk,

387 U.S. 253 (1967) ................................................ 35

Agency for Int’l Dev. v. Alliance for Open

Soc’y Int’l, Inc., 140 S. Ct. 2082 (2020).................. 29

Aptheker v. Sec’y of State,

378 U.S. 500 (1964) ................................................ 37

Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) ............................................ 18

Bank of Denver, N.A. v. First Interstate Bank of

Denver, N.A., 511 U.S. 164 (1994) ......................... 18

Barry v. Barchi,

443 U.S. 55 (1979) .................................................. 25

Bd. of Regents of State Colleges v. Roth,

408 U.S. 564 (1972) ................................................ 25

Bell v. Burson,

402 U.S. 535 (1971) .......................................... 26, 27

Blanchard v. Bergeron,

489 U.S. 87 (1989) .................................................. 18

Boumediene v. Bush,

553 U.S. 723 (2008) ................................................ 44

Bowen v. Michigan Academy of Family

Physicians, 476 U.S. 667 (1986) ............................ 17

Brownell v. Tom We Shung,

352 U.S. 180 (1956) ................................................ 15

Califano v. Sanders,

430 U.S. 99 (1977) .................................................. 15

Colindres v. U.S. Dep’t of State,

71 F.4th 1018 (D.C. Cir. 2023) .............................. 51

DHS v. Thuraissigiam,

140 S. Ct. 1959 (2020) ............................................ 16

Department of the Navy v. Egan,

484 U.S. 518 (1988) ................................................ 17

Douglas v. Buder,

412 U.S. 430 (1973) ................................................ 42

Fiallo v. Bell,

430 U.S. 787 (1977) .......................................... 39, 41

Flemming v. Nestor,

363 U.S. 603 (1960) ................................................ 28

Frost v. R.R. Comm’n of State of Cal.,

271 U.S. 583 (1926) ................................................ 36

Garrity v. New Jersey,

385 U.S. 493 (1967) ................................................ 37

Gegiow v. Uhl,

239 U.S. 3 (1915) .................................................... 41

Goldberg v. Kelly,

397 U.S. 254 (1970) ................................................ 26

Goss v. Lopez,

419 U.S. 565 (1975) ................................................ 26

Greenholtz v. Inmates of Neb. Penal &

Correctional Complex, 442 U.S. 1 (1979) ........ 26, 42

Hall v. Hall,

584 U.S. 59 (2018) .................................................. 28

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ................................................ 42

Harisiades v. Shaughnessy,

342 U.S. 580 (1952) ................................................ 16

Hughes v. United States,

584 U.S. 675 (2018) ................................................ 50

In re Chung Toy Ho,

42 F. 398 (D. Or. 1890)........................................... 22

In re The City of New York,

607 F.3d 923 (2d Cir. 2010) ................................... 46

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27 (1993) .......................... 14

Jay v. Boyd,

351 U.S. 345 (1956) ................................................ 41

Ky. Dep’t of Corrections v. Thompson,

490 U.S. 454 (1989) ................................................ 41

Kerry v. Din,

576 U.S. 86 (2015) ..... 9, 14, 22, 23, 29, 38, 46, 49-51

Kleindienst v. Mandel,

408 U.S. 753 (1972) ........ 14, 20, 37-42, 47-49, 51, 52

Kwong Hai Chew v. Colding,

344 U.S. 590 (1953) ................................................ 14

Landon v. Plasencia,

459 U.S. 21 (1982) ............................................ 14, 21

Lem Moon Sing v. United States,

158 U.S. 538 (1895) ................................................ 16

Logan v. Zimerman Brush Co.,

455 U.S. 422 (1982) ................................................ 25

Loving v. Commonwealth,

206 Va. 924 (Va. 1966) ........................................... 20

vii

Loving v. Virginia,

388 U.S. 1 (1967) .................................................... 20

Ludecke v. U.S. Marshal,

15 F.3d 496 (5th Cir. 1994) .................................... 40

Lutwak v. United States,

344 U.S. 604 (1953) ................................................ 31

Mackenzie v. Hare,

239 U.S. 299 (1915) ................................................ 23

Marcello v. Bonds,

349 U.S. 302 (1955) ................................................ 17

Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak,

567 U.S. 209 (2012) ................................................ 17

Mathews v. Eldridge,

424 U.S. 319 (1976) .......................................... 37, 43

Matter of Laureano,

19 I. & N. Dec. 1 (BIA 1983) .................................. 31

Matter of Ngai,

19 I. & N. Dec. 245 (BIA 1984) ................................ 4

Matter of P. Singh,

27 I. & N. Dec. 598 (BIA 2019) .............................. 31

Matter of Phillis,

15 I. & N. Dec. 385 (BIA 1975) .............................. 31

Memphis Light, Gas & Water Div. v. Craft,

436 U.S. 1 (1978) .............................................. 25, 26

Meyer v. Nebraska,

262 U.S. 390 (1923) ................................................ 20

Michigan v. EPA,

576 U.S. 743 (2015) ................................................ 17

viii

Miller v. Albright,

523 U.S. 420 (1998) .......................................... 13, 15

Moore v. City of East Cleveland,

431 U.S. 494 (1977) ................................................ 20

Morfin v. Tillerson,

851 F.3d 710 (7th Cir. 2017) .................................. 49

Morrissey v. Brewer,

408 U.S. 471 (1972) .......................................... 26, 28

Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306 (1950) ................................................ 42

Nishimura Ekiu v. United States,

142 U.S. 651 (1892) ................................................ 16

O’Bannon v. Town Court Nursing Ctr.,

447 U.S. 773 (1980) ........................................... 30-34

Obergefell v. Hodges,

576 U.S. 644 (2015) ................................................ 19

Oceanic Steam Navigation Co. v. Stranahan,

214 U.S. 320 (1909) ................................................ 16

Olim v. Wakinekona,

461 U.S. 238 (1983) ................................................ 42

Oyama v. California,

332 U.S. 633, 647 (1948) ........................................ 35

Paul v. Davis,

424 U.S. 693 (1976) ................................................ 26

Perry v. Sindermann,

408 U.S. 593 (1972) ................................................ 27

Procunier v. Martinez,

416 U.S. 396 (1974) .......................................... 34, 40

Prushinowski v. Samples,

734 F.2d 1016 (4th Cir. 1984) ................................ 40

Purkett v. Elem,

514 U.S. 765 (1995) ................................................ 39

Reno v. Catholic Social Services, Inc.,

509 U.S. 43 (1993) .................................................. 18

Ricci v. DeStefano,

557 U.S. 557 (2009) ................................................ 39

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ................................................ 20

Rocha v. INS,

450 F.2d 946 (1st Cir. 1971) .................................. 23

Rusk v. Cort,

369 U.S. 367 (1962) ................................................ 15

Saavedra Bruno v. Albright,

197 F.3d 1153 (D.C. Cir. 1999) .............................. 17

Saenz v. Roe,

526 U.S. 489 (1999) ................................................ 35

Sale v. Haitian Centers Council, Inc.,

509 U.S. 155 (1993) ................................................ 15

Schware v. Board of Bar Examiners,

353 U.S. 232 (1957) ................................................ 42

Shaughnessy v. U.S. ex rel. Mezei,

345 U.S. 206 (1953) ................................................ 16

Simmons v. United States,

390 U.S. 377 (1968) ................................................ 36

Smith v. Goguen,

415 U.S. 566 (1974) ................................................ 48

Smith v. Org. of Foster Families,

431 U.S. 816 (1977) .......................................... 19, 21

Superintendent, Mass. Correctional Institution v.

Hill, 472 U.S. 445 (1985) ....................................... 42

Travers v. Reinhardt,

205 U.S. 423 (1907) ................................................ 21

Trump v. Hawaii,

585 U.S. 667 (2018) .............................. 13, 14, 39, 50

Tsoi Sim v. United States,

116 F. 920 (9th Cir. 1902) ...................................... 22

Turner v. Safley,

482 U.S. 78 (1987) .................................................. 34

U.S. ex rel. Accardi v. Shaughnessy,

347 U.S. 260 (1954) ................................................ 29

U.S. ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950) ................................................ 16

U.S. ex rel. Vajtauer v. Comm’r of Immigration,

273 U.S. 103 (1927) ................................................ 42

United States v. Gue Lim,

176 U.S. 459 (1900) ................................................ 22

United States v. Reynolds,

345 U.S. 1 (1953) .................................................... 46

United States v. Wong Kim Ark,

169 U.S. 649 (1898) ................................................ 35

Vitek v. Jones,

445 U.S. 480 (1980) ................................................ 27

Whitmore v. Arkansas,

495 U.S. 149 (1990) ................................................ 34

Wilkinson v. Austin,

545 U.S. 209 (2005) .......................................... 42, 44

Wolff v. McDonnell,

418 U.S. 539 (1974) .................................... 26, 27, 42

Wong Wing v. United States,

163 U.S. 228 (1896) ................................................ 16

Wood v. Allen,

558 U.S. 290 (2010) ................................................ 14

Yee v. Escondido,

503 U.S. 519 (1992) ................................................ 14

Zyapkov v. Lynch,

817 F.3d 556 (7th Cir. 2016) .................................. 31

Statutes

5 U.S.C. § 559 ............................................................ 17

5 U.S.C. § 702 ............................................................ 17

6 U.S.C. § 236(f) ......................................................... 16

8 U.S.C. § 1104 .......................................................... 17

8 U.S.C. § 1151(b)(2)(A)(i) ......................................... 25

8 U.S.C. § 1151(c) ...................................................... 25

8 U.S.C. § 1154(a)(1)(A)(i) ........................................... 3

8 U.S.C. § 1182(a)(2) ........................................ 6, 46, 47

8 U.S.C. § 1182(a)(2)(D)............................................. 48

8 U.S.C. § 1182(a)(2)(I)(i) .......................................... 48

8 U.S.C. § 1182(a)(3) .................................. 6, 46, 47, 48

8 U.S.C. § 1182(a)(3)(A) ......................................... 6, 26

xii

8 U.S.C. § 1182(a)(3)(A)(ii) .......... 1, 7-9, 11, 17, 37, 41,

43-49, 50-52

8 U.S.C. § 1182(a)(3)(B) ................................... 9, 50, 51

8 U.S.C. § 1182(a)(9)(B)(v) ........................ 4, 16, 27, 31

8 U.S.C. § 1182(b)(3) ...................................... 29, 38, 46

8 U.S.C. § 1183a(a)(1) ............................................ 5, 28

8 U.S.C. § 1183a(a)(1)(B) ................................. 5, 28, 31

8 U.S.C. § 1183a(a)(1)(C) ............................................. 5

8 U.S.C. § 1183a(d)(1).................................................. 5

8 U.S.C. § 1183a(d)(2).................................................. 5

8 U.S.C. § 1201(a)(1)(A) ............................................... 3

8 U.S.C. § 1201(g) ................................................ 26, 40

8 U.S.C. § 1229b(b)(1) .................................................. 4

8 U.S.C. § 1252 .......................................................... 16

8 U.S.C. § 1325(c) ...................................................... 31

8 U.S.C. § 1534(e)(3)(B) ............................................. 45

18 U.S.C. § 1546 ........................................................ 31

31 U.S.C. § 9701 ........................................................ 44

Act of March 26, 1804, 2 Stat. 292 ............................ 21

Act of February 10, 1855, 10 Stat. 604 ..................... 21

Act of Sept. 13, 1888, 25 Stat. 476 ............................ 22

Expatriation Act of 1907, 34 Stat. 1228 ................... 23

Immigration Act of 1917, Pub. L. 64-301,

39 Stat. 874 ............................................................ 22

xiii

Emergency Quota Act of 1921, Pub. L. 67-5,

42 Stat. 5 ................................................................ 23

Immigration Act of 1924, Pub. L. 68-139,

43 Stat. 153 ............................................................ 24

Act of June 25, 1936, Pub. L. 74-793,

49 Stat. 1917 .......................................................... 23

Act of July 2, 1940, 54 Stat. 715 ............................... 23

Pub. L. 67-346, 42 Stat. 1021 (1922)......................... 23

Pub. L. 82-414, 66 Stat. 163 (1952)........................... 24

Regulations

8 C.F.R. § 103.2(a) ..................................................... 30

8 C.F.R. § 103.2(b) ....................................................... 3

8 C.F.R. § 103.2(b)(6) ................................................. 30

8 C.F.R. § 103.2(b)(16) ......................................... 44, 46

8 C.F.R. § 205.1(a)(3)(D) ............................................ 32

8 C.F.R. § 212.7(e)(14)(i)........................................ 4, 27

22 C.F.R. § 40.6.................................................... 40, 41

22 C.F.R. § 42.43(a) ................................................... 31

22 C.F.R. § 42.81(b) ............................................. 29, 47

22 C.F.R. § 42.81(e) ....................... 6, 29, 38, 41, 43, 47

Provisional Unlawful Presence Waivers of

Inadmissibility

for

Certain

Immediate

Relatives, 78 Fed. Reg. 536 (Jan. 3, 2013) ........ 4, 27

Expansion of Provisional Unlawful Presence

Waivers of Inadmissibility, 81 Fed. Reg. 50244

(July 29, 2016). ..................................................... 4, 5

xiv

Schedule of Fees for Consular Services, 86 Fed.

Reg. 74018 (Dec. 29, 2021)..................................... 44

Other Authorities

1 Bishop, Commentaries on the Law of Marriage

and Divorce (4th ed. 1864) ..................................... 21

2 Kent, Commentaries on American Law (rev. ed.

1889) ....................................................................... 21

9 FAM 302.4-3(B)(3) .................................................. 40

9 FAM 302.5-4(A) ................................................ 45, 48

9 FAM 302.5-4(B)(2)(i)(9) ............................................ 8

9 FAM 302.9-4(B)(3) .................................................. 40

9 FAM 504.2-2(B) ...................................................... 31

9 FAM 504.2-8(A) ........................................................ 5

9 FAM 504.11-3(A)(1)(c) ........................................ 6, 47

Affidavit of Support, Form I-864 (2021),

https://bit.ly/3IGBLTq ........................................... 28

Candice Lewis Bredbenner, A Nationality of

Her Own (1998) ...................................................... 24

DHS, Form I-130 Instructions (2021),

https://bit.ly/3ICi5Qi ................................................ 3

DHS, Form I-601A Instructions (2021),

https://bit.ly/3vft27r ............................................... 27

Felix Frankfurter, Some Reflections on the

Reading of Statutes, 47 Colum. L. Rev. 527

(1947) ...................................................................... 28

Henry J. Friendly, Some Kind of Hearing, 123 U.

Pa. L. Rev. 1267 (1975) .......................................... 28

H.R. Rep. No. 82-1365 (Feb. 14, 1952)...................... 24

H.R. Rep. No. 89-745 (1965) ...................................... 25

H.R. Rep. No. 101-723(I) (1990) ................................ 25

Memorandum from Secretary White to the

commissioner of naturalization, Feb. 2, 1924 ....... 24

S. Rep. No. 89-748 (1965) .......................................... 25

U.S. Dep’t of State, Bureau of Consular Affairs,

Annual Reports, Table XIX, 2000-2022,

https://bit.ly/49RmMSv .......................................... 43

U.S. Dep’t of State, Bureau of Consular Affairs,

El Salvador Travel Advisory,

https://bit.ly/3TiUjOp ............................................. 36

U.S. Dep’t of State, Bureau of Consular Affairs,

Immigrant Visa for a Spouse of a U.S. Citizen,

https://bit.ly/49UWG11 .......................................... 32

U.S. Dep’t of State, Bureau of Consular Affairs,

Immigrant Visa Process: Step 10,

https://bit.ly/3IEjRR7 ......................................... 5, 32

INTRODUCTION

Sandra Muñoz, a U.S. citizen from California, met

Luis Asencio-Cordero in 2008 and married him two

years later. In 2013, to ensure that they could remain

together in the United States, Muñoz initiated the

immigrant visa process by petitioning for him to

receive lawful permanent resident status.

As the Immigration and Nationality Act (“INA”)

requires, the couple established that their marriage

was bona fide. The Department of Homeland Security

(“DHS”) then conducted a background check on

Asencio-Cordero, determined that Muñoz would suffer

extreme hardship if separated from him, and granted

a provisional waiver for his unauthorized presence in

the United States. The next step was a consular

interview in El Salvador.

Muñoz and Asencio-Cordero traveled from the

United States to El Salvador for the interview, but the

State Department denied the visa. The agency cited 8

U.S.C.

§ 1182(a)(3)(A)(ii),

which

imposes

inadmissibility where a consular official has “reason

to believe” that the noncitizen intends to engage in

“any . . . unlawful activity,” even “incidentally,” after

entry. 1 The consulate provided no further explanation.

1 Section 1182(a)(3)(A)(ii) says: “Any [noncitizen] who a consular

officer … 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.”

Guessing that Asencio-Cordero’s visa was denied

because of his tattoos, 2 Muñoz and Asencio-Cordero

submitted an affidavit from a gang expert who

reviewed the tattoos and determined they did not

indicate gang affiliation. The Government replied that

this expert affidavit contained “no new information or

reason to question” the inadmissibility finding and

that “there is no appeal.” J.A. 7, 39.

In the three years following the visa denial, the

Government repeatedly rebuffed efforts to learn the

basis for the visa denial. Faced with ongoing

separation, Muñoz and Asencio-Cordero sued. After

the district court denied a motion to dismiss, the

Government openly stated for the first time its belief

that Asencio-Cordero was a member of the gang MS13 but did not provide the basis for that conclusion.

(He is not and has never been a member of any gang

or criminal organization.) By the time the Government

informed Muñoz and Asencio-Cordero of that

conclusion, the deadline for submitting further

exculpatory evidence to overcome the denial had long

passed.

Muñoz and Asencio-Cordero have now lived apart

for more than eight years. They still do not know how

the Government reached its erroneous conclusion. The

Government says it is not demeaning Muñoz’s right to

be married and that she can move elsewhere to live

with her husband. It also says that Asencio-Cordero

has no legal rights, so it can exclude him without

2 The tattoos depict Our Lady of Guadalupe, Sigmund Freud, a

“tribal” pattern with a paw print, and theatrical masks with dice

and cards.

explanation, and that Muñoz has no ground for

complaint because she is just an indirectly affected

observer. These arguments fail.

Muñoz has a liberty interest in living in the United

States with her husband that is sufficient to implicate

procedural due process. Procedural due process

requires a reasonable opportunity to respond to the

inadmissibility finding and at least some minimum

degree of notice of the basis for that finding. A mere

citation to a provision as broad as the ground at issue

here is inadequate.

STATEMENT OF THE CASE

I. Legal Background

The INA establishes a multi-step process for a

married couple to seek permanent resident status for

the noncitizen spouse, which in some cases requires

consular approval abroad.

1. Visa Petition. First, the U.S. citizen files a

petition to classify the noncitizen spouse as an

“immediate relative.” 8 U.S.C. § 1201(a)(1)(A). The

citizen must provide evidence of a bona fide marriage.

8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 103.2(b). As

petitioner, the U.S. citizen grants DHS “the authority

to verify” the application through interviews and

“unannounced physical site inspections of residences

and locations of employment.” DHS, Form I-130

Instructions at 11 (2021), https://bit.ly/3ICi5Qi; 8

C.F.R. § 103.2(b). The U.S. citizen must also authorize

DHS to “share the information” in the application with

“other Federal, state, local and foreign government

agencies and authorized organizations.” Id.

2. Waiver. For a noncitizen inadmissible for

unlawful presence in the United States, a provisional

waiver of inadmissibility is available to, inter alia,

spouses of U.S. citizens. DHS may grant the waiver

only if it determines that the spouse would experience

“extreme hardship” in the event of a denial. 3 8 U.S.C.

§ 1182(a)(9)(B)(v). This standard requires more than

the commonplace hardship caused by separation.

Matter of Ngai, 19 I. & N. Dec. 245, 246-47 (BIA

1984). An approved provisional waiver is revocable on

only four grounds, including where the consulate finds

the noncitizen inadmissible on some other ground. 8

C.F.R. § 212.7(e)(14)(i).

3. Background Check. Under then-applicable

regulations, DHS conducted a full background check

“to assess whether an individual may be a threat to

national security or public safety” before granting a

provisional waiver. Provisional Unlawful Presence

Waivers of Inadmissibility for Certain Immediate

Relatives, 78 Fed. Reg. 536, 546-47 (Jan. 3, 2013). If

DHS found any reason to conclude that an applicant

would be inadmissible “based on another ground of

inadmissibility other than unlawful presence,” it

would deny the waiver. Id. at 547. 4

3 The focus on U.S.-citizen family members is not unique to this

provision. A noncitizen placed into removal proceedings after a

long time living in the United States may avoid removal by

showing, “exceptional and extremely unusual hardship” to a

U.S.-citizen spouse, parent, or child, among other elements. 8

U.S.C. § 1229b(b)(1).

4 DHS modified this standard in 2016 but continues to conduct

background checks. See Expansion of Provisional Unlawful

4. Affidavit of Support. The statute requires that

the U.S. citizen petitioner must file an Affidavit of

Support, which Congress refers to as a “contract” with

the government. 8 U.S.C. § 1183a(a)(1). The citizen

makes a binding promise to repay the government if

the noncitizen obtains certain welfare benefits. Id.

§ 1183a(a)(1)(B)-(C). Once the affidavit becomes a

contract, the citizen must notify the government of

any address change, on pain of civil penalty. Id.

§ 1183a(d)(1)-(2).

5. Visa Interview. After these steps, DHS forwards

relevant documentation to the consulate, which

schedules an interview with the noncitizen and

informs the noncitizen and the petitioner about the

date and time. U.S. Dep’t of State, Bureau of Consular

Affairs, Immigrant Visa Process: Step 10,

https://bit.ly/3IEjRR7 (National Visa Center “will send

you, your petitioner, and your agent/attorney (if

applicable) an email noting the appointment date and

time”). Though the consular interview is focused on

the noncitizen, the U.S. citizen’s petition can be

revisited: Officers are entitled to “review” whether the

marriage is bona fide and can request revocation

based on evidence relating to the citizen spouse. 9

Foreign Affairs Manual (“FAM”) 504.2-8(A).

The consular officer uses the interview to

determine the noncitizen’s admissibility into the

United States and, if appropriate, to issue entry

documents. The consulate must review all cases, and

its decisions are not discretionary. Pet. 25. Rather, an

Presence Waivers of Inadmissibility, 81 Fed. Reg. 50244, 5025354, 50257 (July 29, 2016).

inadmissibility finding must be tethered to an officer’s

“reasonable ground to believe” the individual is

inadmissible. 8 U.S.C. § 1182(a)(3)(A).

6. Notice of Denial and Regulatory Opportunity to

Correct Erroneous Decisions. If the consulate finds the

applicant inadmissible, regulations give the applicant

one year to submit rebuttal evidence “tending to

overcome” the finding. 22 C.F.R. § 42.81(e). If an

applicant does so, “the case shall be reconsidered.” Id.

(emphasis added). The FAM further requires written

notice, including for denials under Section 1182(a)(2)

or (3) absent contrary instructions from the

Department. See 9 FAM 504.11-3(A)(1)(c).

II. Factual and Procedural Background

1. DHS approved Muñoz’s petition and granted the

provisional waiver after concluding that she faced

“extreme hardship” from the prospect of permanent

separation from Asencio-Cordero or relocation to El

Salvador. Through the waiver grant and background

checks, DHS determined that Asencio-Cordero was

neither a threat to national security nor likely to be

inadmissible.

With the U.S.-based steps completed and no

concerns uncovered, Asencio-Cordero traveled with

Muñoz to El Salvador for his consular interview in

May 2015. J.A. 48. There, for the first time,

government officials asked him about association with

a gang, which he denied. J.A. 4, 22.

In December 2015, Muñoz and Asencio-Cordero

learned that the State Department had deemed

Asencio-Cordero inadmissible. J.A. 49. The notice

cited 8 U.S.C. § 1182(a)(3)(A)(ii) but provided no

additional information. See id.

2. Muñoz and Asencio-Cordero requested

reconsideration in January 2016. J.A. 18-26. That

same month, Muñoz’s congressional representative

contacted the consulate on their behalf; the consulate’s

response stated, “we cannot continue to process this

immigrant visa.” J.A. 16. In April, Muñoz and AsencioCordero provided evidence of Asencio-Cordero’s good

moral character and of accolades Muñoz had received

in her work as an attorney, and the consulate stated it

“took another look” but did not change its decision.

J.A. 32-33. Muñoz and Asencio-Cordero submitted

additional exculpatory evidence later that month,

including an affidavit from a gang expert, which said:

“In my opinion, none of the tattoos on Mr. Asencio[Cordero]’s body represent any gang or criminal

organization that I am aware of.” J.A. 44. The

Department of State replied that this evidence

contained “no new information or reason to question

the Department’s concurrence with the original

finding” and that “no further processing” was possible.

J.A. 39.

3. Muñoz and Asencio-Cordero sued, and the

district court denied the Government’s motion to

dismiss in December 2017. Pet. App. 73a-89a. In

November 2018, the State Department provided a

declaration from State Department employee Matt

McNeil, who said that a consular officer had

“determined that Mr. Asencio-Cordero was a member

of a known criminal organization … specifically MS13” and that this was “based on the in-person

interview, a criminal review of Mr. Asencio-Cordero,

and a review of the [sic] Mr. Asencio-Cordero’s

tattoos.” Pet. App. 124a. 5 In addition to never having

been charged with a crime, Asencio-Cordero

disclaimed gang involvement during the interview,

and he was told by the State Department that the

expert affidavit regarding his tattoos contained “no

new information.” J.A. 39, 55. Asencio-Cordero and

Muñoz thus remained unaware of the factual basis for

the denial. J.A. 55. In August 2020, the Government

stated in an interrogatory response that the denial

was based on information “obtained from law

enforcement operations,” but it provided no further

information. J.A. 75. The Government provided

undisclosed information to the district court in an in

camera submission. See J.A. 84-98.

In March 2021, the district court granted the

Government’s motion for summary judgment. Pet.

App. 42a-72a. It held that Muñoz’s due process right

to marriage was implicated by the visa denial but

concluded that the Government had provided

sufficient process. Though the district court had

previously ruled that the McNeil declaration was

insufficient to connect Asencio-Cordero to Section

1182(a)(3)(A)(ii), J.A. 63-65, it said in two footnotes

that it “reached a different conclusion” on summary

judgment than in previous orders based on statements

made by the government at a hearing affirming that

5 The FAM lists 10 “factors” to consider in applying this statute,

none of them apply here. For instance, one factor is “the

applicant’s criminal record,” particularly when that record

suggests affiliation with gangs or other criminal organizations. 9

FAM 302.5-4(B)(2)(i)(9). It is uncontested that Asencio-Cordero

has never been charged with any crime.

“the consular officer received information from law

enforcement that identified Mr. Asencio[-Cordero] as

a gang member.” J.A. 107; see Pet. App. 46a, n.7; 60a61a, n.13.

The Ninth Circuit vacated and remanded. Pet.

App. 1a-41a. It affirmed the district court’s ruling that

Muñoz’s due process rights were implicated, reasoning

that U.S. citizens have both “a fundamental liberty

interest in their marriage” and “a liberty interest in

residing in their country of citizenship” and that the

denial violated Muñoz’s due process rights because

“the cumulative effect of” the denial was “a direct

restraint on [her] liberty interests.” Pet. App. 17a.

The Ninth Circuit then distinguished the

inadmissibility provision at issue here from Section

1182(a)(3)(B), the terrorism-related statute at issue in

Kerry v. Din, 576 U.S. 86 (2015). The court noted that,

“[u]nlike

surrounding

provisions,

U.S.C.

§ 1182(a)(3)(A)(ii) does not specify the type of

lawbreaking that will trigger a visa denial.” Pet App.

19a. The Ninth Circuit therefore held that, in the

absence of factual predicates in the statute itself, the

Government was obligated to place in the record

“information ... that provides a facial connection to the

consular officer’s belief” about Asencio-Cordero’s

inadmissibility. Id. at 20a. The Ninth Circuit,

however, concluded that the McNeil declaration

contained statements sufficient to satisfy that test. Id.

at 22a-25a.

That was not the end. The Ninth Circuit concluded

that the years-long delay between the time the

Government denied Asencio-Cordero’s visa and the

time it provided the declaration violated Muñoz’s right

to due process because “timely and adequate notice of

the reasons underlying” the deprivation was

necessary for Muñoz “to vindicate her liberty interest.”

Pet. App. 29a. The Ninth Circuit emphasized that

because regulations give applicants one year to

present exculpatory evidence, that deadline informs

what is a “reasonable time.” Pet. App. 30a-31a. The

court of appeals ordered a remand for the district court

to consider the merits of the case, over a dissent. It

then denied the Government’s petition for rehearing

en banc over two dissents. Pet. App. 33a (remand);

90a-122a (rehearing denial and dissents).

SUMMARY OF THE ARGUMENT

The Due Process Clause prohibits consular officers

from upending the marital home of a U.S. citizen

without providing notice or a meaningful opportunity

to respond.

1. The Government argues that under the so-called

doctrine of consular nonreviewability, the Court

should engage in no judicial review of the agency’s

action. This extreme claim is outside the questions

presented, which the Government authored, and lacks

statutory support. It runs contrary to the presumption

of judicial review, which has both statutory and

judicial lineage. This Court has repeatedly reviewed

constitutional and legal claims by U.S. citizens,

despite any extraterritorial aspects. It should decline

the Government’s invitation to immunize agencies

from such claims.

2. The denial of Asencio-Cordero’s visa directly

implicates Muñoz’s right to marriage, which entails

the right to live with and enjoy the society of one’s

spouse. For over a century, federal immigration policy

has favored spousal unity over all other forms of

immigration, rooting the right to cohabitation in

natural rights. In addition, the INA gave Muñoz a

legitimate claim to entitlement in her husband’s visa

application by establishing that consular officers can

only deny admission for cause.

The Government’s suggestion that Muñoz is a mere

bystander to the visa process and thus does not possess

a protected liberty interest disregards the history of

marriage rights in this context and ignores the benefit

the citizen spouse seeks in ensuring their noncitizen

spouse’s presence in the country is lawful and

permanent. Muñoz is a central figure to the consular

process, from beginning to end. Besides her, there is no

other party who can challenge the constitutionality of

the agency action, and there is no alternative avenue

for relief. The Government also suggests that Muñoz

can leave the United States to live with her husband,

but because she also has a liberty interest in residing

in her country of citizenship, procedural due process is

still required before she can be forced to make this

choice.

3. As to what process is due, Muñoz was entitled, at

minimum, to a summary of the factual grounds for the

visa denial sufficient to allow a meaningful

opportunity to respond. A mere citation to 8 U.S.C.

§ 1182(a)(3)(A)(ii) was insufficient. Because the

statute requires consular officers have “reasonable

grounds to believe” Asencio-Cordero was inadmissible,

the “facially legitimate and bona fide test” that the

Government advances and that the Court applies to

discretionary visa decisions is insufficient to satisfy

due process.

But even under the “facially legitimate and bona

fide” test, a citation to the statute here is insufficient

because the subsection is unlike its neighboring

provisions in that its plain language does not refer to

a specific factual predicate sufficient to provide an idea

of the barred activity. Rather, the statute covers “any”

future unlawful activity and does not specify any

parameters for what kind of activity is covered. The

Government applies this subsection as a catch-all

barring conduct far beyond the national security

context. Both regulations and State Department policy

grant individuals an opportunity to overcome denials,

but agency processes are rendered meaningless by a

mere citation to this statutory provision. Instead, a

summary of the factual basis is necessary to give U.S.

citizens the sort of notice and meaningful opportunity

to present exculpatory evidence that is required to

prevent due process violations.

ARGUMENT

I. The

Government’s

Nonreviewability

Arguments Are Both Outside the Questions

Presented And Incorrect.

The Government begins by advancing a broad,

atextual argument for what it calls the doctrine of

consular nonreviewability. That argument is beyond

the scope of the questions presented, and the Court

should decline to address it. But if it does entertain the

argument, the Court should reject the Government’s

arguments.

A. Consular nonreviewability is outside the

scope of the questions presented and

should not be addressed.

The Government’s lead argument that consular

nonreviewablity “forecloses judicial review,” Br. 16, is

beyond the scope of this case. When the Government

sought certiorari, it did not either suggest that the

Court needed to clarify consular nonreviewability or

call on the Court to modify or overrule its relevant

precedents, discussed below. Rather, the petition

assumed that constitutional claims advanced by U.S.

citizens were reviewable. Pet. 4-5.

Nor has the Government suggested that this issue

is jurisdictional or that it requires the Court’s

attention—for good reason. Arguments about the

applicability of the supposed doctrine of consular

nonreviewablity are not jurisdictional, so the Court

has no independent duty to address them. See Trump

v. Hawaii, 585 U.S. 667, 682-83 (2018); Miller v.

Albright, 523 U.S. 420, 433 n.10 (1998) (declining to

address claim that noncitizens outside the United

States lack substantive rights before proceeding to the

merits of the case). Further, the supposed doctrine

cannot apply here, because even on the Government’s

reading, it bars only challenges brought by “a

noncitizen.” Br. 4-5.

This Court routinely refuses to consider issues that

lay beyond the scope of the questions presented. 6 See

Muñoz and Asencio-Cordero made additional claims below,

including that Asencio-Cordero’s long-term residency and ties in

the United States provide him with due process rights not

e.g., Wood v. Allen, 558 U.S. 290, 304 (2010) (“‘[T]he

fact that [petitioner] discussed this issue in the text of

[his] petition for certiorari does not bring it before us.

Rule 14.1(a) requires that a subsidiary question be

fairly included in the question presented for our

review.’”) (quoting Izumi Seimitsu Kogyo Kabushiki

Kaisha v. U.S. Philips Corp., 510 U.S. 27, 31 n.5

(1993)) (alterations in Wood); Yee v. Escondido, 503

U.S. 519, 535 (1992). It should do so again here.

B. The Court should reject the Government’s

consular nonreviewability arguments.

Whatever might be said of a putative tradition of

“nonreviewability,” the Court has repeatedly

considered legal and constitutional claims pertaining

to visa and admission decisions abroad. It did so in

Kleindienst v. Mandel, 408 U.S. 753 (1972)—which the

Government calls the “paradigm” case, Br. 19—when

it considered the claim of a group of American

academics who sought a waiver of inadmissibility for a

noncitizen whom they had invited to speak in the

United States. And in Hawaii, the Court recognized

that it “has engaged in a circumscribed judicial inquiry

when the denial of a visa allegedly burdens the

constitutional rights of a U.S. citizen.” 585 U.S. at 703.

Other cases follow this practice. Din addressed the

same constitutional questions presented here,

vitiated by his departure from the country. Plaintiffs-Appellants’

Ninth Cir. Opening Br. 51-56; Reply 14; see, e.g., Landon v.

Plasencia, 459 U.S. 21, 32 (1982); Kwong Hai Chew v. Colding,

344 U.S. 590, 600 (1953). Because those issues also lay beyond

the questions presented, Muñoz and Asencio-Cordero do not

advance them.

nonreviewability notwithstanding. 576 U.S. 86; see

also Miller, 523 U.S. 420 (addressing the

constitutionality of differences between unwed

mothers and fathers for passing on citizenship even

though the child claiming citizenship was abroad);

Sale v. Haitian Centers Council, Inc., 509 U.S. 155

(1993) (considering the merits of statutory claim that

INA provision applies to people in international

waters); Rusk v. Cort, 369 U.S. 367 (1962) (recognizing

authority to review statutory claim advanced by U.S.

citizen at an embassy, even though the claim arose and

the person resided outside the United States),

abrogated in part, Califano v. Sanders, 430 U.S. 99

(1977). 7

Whatever the merits of its nonreviewability

arguments in other contexts, the Government

recognizes that this Court has reviewed claims

involving the constitutional interests of a U.S. citizen.

Br. 19-20. Because this exception applies here, that

should be the end of the matter.

Precedent notwithstanding, the Government

asserts that the consular nonreviewability doctrine “is

a corollary” of the plenary power doctrine. Br. 17. But

the cases upon which it relies demonstrate that the

doctrines are distinct. In five of those cases, the Court

reached legal or constitutional claims brought by

noncitizens notwithstanding the plenary power

7 The Government cites dicta in Brownell v. Tom We Shung, 352

U.S. 180, 184 n.3, 185 n.6 (1956). Br. 16-17. If that citation is

meant to suggest that consular decisions cannot support review

when a citizen is involved, that position is inconsistent with

Rusk, 369 U.S. at 367, which permitted a declaratory judgment

action after a passport application at an embassy was denied.

doctrine. See Shaughnessy v. U.S. ex rel. Mezei, 345

U.S. 206, 210 (1953); Harisiades v. Shaughnessy, 342

U.S. 580, 591 (1952); U.S. ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 541 (1950); Wong Wing v.

United States, 163 U.S. 228, 238 (1896); Nishimura

Ekiu v. United States, 142 U.S. 651, 660, 664 (1892).

And the remaining cases cited by the Government

involved statutes that explicitly stripped judicial

review. See DHS v. Thuraissigiam, 140 S. Ct. 1959,

1978-79 (2020); Oceanic Steam Navigation Co. v.

Stranahan, 214 U.S. 320, 339 (1909); Lem Moon Sing

v. United States, 158 U.S. 538, 540 (1895). None of

these holdings comes close to equating the plenary

power doctrine with a doctrine that consular decisions

can never be reviewed.

Further, no statute strips jurisdiction in this case.

The closest the Government can muster is 6 U.S.C.

§ 236(f), Br. 5, which provides that nothing in “this

section shall be construed to create or authorize a

private right of action to challenge” the grant or denial

of a visa. That provision, not in the INA, does not strip

jurisdiction or preclude litigation based on a right of

action founded elsewhere. 8

Congress plainly knows how to draft jurisdictionstripping provisions; there are dozens in the INA. See,

e.g., 8 U.S.C. § 1252. Section 1182 itself contains

several provisions that limit judicial oversight

expressly. See, e.g., 8 U.S.C. § 1182(a)(9)(B)(v). But no

statute

strips

jurisdiction

over

Section

8 The Government also cites 8 U.S.C. § 1104, which excludes visa

decisions from review by the Secretary of State but says nothing

about judicial review.

1182(a)(3)(A)(ii),

generally.

nor of consular determinations

The absence of a statutory hook is telling. Congress

provided that any post-1946 statute “may not be held

to supersede or modify” the general rule permitting

judicial review of agency action “except to the extent

that it does so expressly.” 5 U.S.C. § 559; see also id.

§ 702 (providing for judicial review of agency actions);

Marcello v. Bonds, 349 U.S. 302, 306 (1955) (noting

that Congress exempted immigration from some

portions of the Administrative Procedure Act but not

the provision authorizing judicial review). That

Congressional mandate has translated into “the strong

presumption that Congress intends judicial review of

administrative action.” Bowen v. Michigan Academy of

Family Physicians, 476 U.S. 667, 670 (1986); accord,

e.g., Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209, 225 (2012); see also

Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas,

J., concurring) (noting that the Constitution generally

“vests the judicial power exclusively in Article III

courts, not administrative agencies”). 9

9 Saavedra Bruno v. Albright adopted a contrary presumption,

reasoning that in “matters touching on national security or

foreign affairs—and visa determinations are such matters—the

presumption of review ‘runs aground.’” 197 F.3d 1153, 1162 (D.C.

Cir. 1999) (quoting Department of the Navy v. Egan, 484 U.S. 518,

527 (1988) (“The presumption … is the opposite of what the APA

normally supposes.”)). The Court should reject the suggestion

that all visa cases so implicate national security as to overshadow

other considerations and preclude review. Innumerable matters

“touch on” national security and foreign affairs; finding any

related claims precluded would immunize large swaths of agency

action from review.

The Government also invokes legislative history,

leaning on congressional failure to enact law in

response to “suggestions to authorize judicial review

of visa denials.” Br. 18-19. The failure of Congress to

enact explicit judicial review proposals cannot bear

such weight. See Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 187

(1994). The Government quotes committee reports on

this subject. Br. 18-19. “But legislative history is not

the law.” Azar v. Allina Health Servs., 139 S. Ct. 1804,

1814 (2019) (quotation omitted); see Blanchard v.

Bergeron, 489 U.S. 87, 98 (1989) (Scalia, J.,

concurring). Congress primarily speaks through the

statutes it enacts, and the Government’s concession

that there was disagreement within Congress on these

points, Br. 18-19, reinforces the primacy of statutory

text.

All told, none of the Government’s authorities offer

“clear and convincing evidence” sufficient to overcome

the longstanding presumption in favor of judicial

review that applies to administrative agencies. Reno

v. Catholic Social Services, Inc., 509 U.S. 43, 64 (1993)

(quotation omitted). And whatever limits might be

appropriate to that presumption in cases originating

abroad, those limits do not extend to cases involving

claims that the agency has undermined the rights of a

U.S. citizen.

II. As A Citizen, Muñoz Has A Liberty Interest In

Marital Cohabitation In The United States.

Muñoz possesses a liberty interest in her marriage,

which historically and traditionally includes

cohabitation. This liberty interest arises under the

Constitution, and both statutory and regulatory

provisions inform the contours of that interest. The

Government’s efforts to obscure Muñoz’s liberty

interest by suggesting that she is a mere bystander to

the visa adjudication process and that she can relocate

to El Salvador fail.

A. History

and

tradition

show

that

cohabitation is essential to marriage,

especially in the immigration context.

The Government does not dispute that “[t]he basic

foundation of the family in our society” is “the

marriage relationship.” Smith v. Org. of Foster

Families, 431 U.S. 816, 843 (1977). Nor does it seem

to dispute that the liberty interest in a marriage

generally includes cohabitation. 10 Br. 27. And for good

10 Both Muñoz and the Government accept and agree with this

Court’s conclusion that there is a “fundamental right to marry.”

Obergefell v. Hodges, 576 U.S. 644, 675 (2015); see also id. at 688

(Roberts, C.J., dissenting) (finding “no serious dispute that … the

Constitution protects a right to marry”); Br. 27. Obergefell and

preceding cases framed marriage as a substantive due process

right. Contrary to the Government’s implication, however,

Muñoz does not advance a substantive right to immigrate one’s

spouse. The argument that Muñoz advances is procedural. She

maintains that her marital right is sufficiently important that it

cannot be unduly burdened without procedural due process as to

an inadmissibility finding that would block her from residing

with her spouse in her country of citizenship.

reason. The Court has said that marriage includes the

right to “establish a home and bring up children,”

Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and to

“live together as a family,” Moore v. City of East

Cleveland, 431 U.S. 494, 500-06 (1977). The Court has

likewise recognized that marriage involves “deep

attachments and commitments” between people who

share “not only a special community of thoughts,

experiences, and beliefs but also distinctively personal

aspects of one’s life.” Roberts v. U.S. Jaycees, 468 U.S.

609, 619-20 (1984).

Any suggestion that the marital interests are not

implicated by laws that require a couple to reside

elsewhere would run afoul of Loving v. Virginia, 388

U.S. 1 (1967). No law prevented the Lovings from

marrying and living together someplace other than

Virginia. The “gravamen” of their offense “was their

cohabitation as man and wife” within the state. Loving

v. Commonwealth, 206 Va. 924, 930 (Va. 1966). The

Court held that the Virginia law “deprive[d] the

Lovings of liberty without due process of law” because

“[t]he freedom to marry has long been recognized as

one of the vital personal rights essential to the orderly

pursuit of happiness” that “cannot be infringed by the

State.” Loving, 388 U.S. at 12.

The companionship aspect of marriage is

particularly salient when the alternative is living

thousands of miles apart. The Mandel Court

recognized that alternatives to face-to-face interaction

are a poor substitute in the First Amendment context.

408 U.S. at 765. The same is true in spades for the

marital relationship: “[T]he importance of the familial

relationship, to the individuals involved and to the

society, stems from the emotional attachments that

derive from the intimacy of daily association.” Smith,

431 U.S. at 844. This understanding of marriage

generally includes cohabitation.

In fact, cohabitation is so essential to marriage

that it has been found a sufficient basis for inferring

the marital relationship. See Travers v. Reinhardt,

205 U.S. 423, 436-42 (1907); 1 Bishop, Commentaries

on the Law of Marriage and Divorce, §§ 434, 438-439,

485 (4th ed. 1864); 2 Kent, Commentaries on American

Law, *87 (rev. ed. 1889).

In the immigration context, the historical

connection between marriage and cohabitation has

been paramount, and the Court has held that “the

right to rejoin [one’s] immediate family” is “a right

that ranks high among the interests of the individual.”

Plasencia, 459 U.S. at 34. Though immigration was

largely unregulated in the early years of the republic,

Congress favored noncitizen wives of U.S. citizens by

permitting naturalization without the normal

residency requirement. Act of February 10, 1855, § 2,

10 Stat. 604, 604. For instance, Congress made a

special provision for wives whose husbands died

before they were able to naturalize. See Act of March

26, 1804, § 2, 2 Stat. 292, 293. This statute and others

like it favored male citizens over female citizens, in

keeping with the coverture laws of the time, but they

always respected the couple’s joint interest in living

together.

There have, of course, been periods when Congress

restricted immigration, but it has always given special

consideration to marriage. In 1888, Congress

generally forbade the entry or return of “any Chinese

person” but made an exception for a laborer with “a

lawful wife, child, or parent in the United States,” so

long as the marriage occurred “at least a year prior to

the

application”

and

involved

“continuous

cohabitation.” Act of Sept. 13, 1888, §§ 4, 6, 25 Stat.

476, 476-77.

In United States v. Gue Lim, 176 U.S. 459 (1900),

this Court construed a statute to permit a Chinese

merchant’s wife to come into the country with him,

despite

laws

generally

forbidding

Chinese

immigration without a labor certificate. Id. at 464. The

Court adopted the reasoning of In re Chung Toy Ho,

42 F. 398 (D. Or. 1890), where the district court upheld

the immigration rights of the wife and children of a

Chinese merchant, reasoning that “the company of one

and the care and custody of the other, are by his

natural right; and he ought not to be deprived of

either.” Id. at 400 (cited at Gue Lim, 176 U.S. at 464);

see also Immigration Act of 1917, Pub. L. 64-301, § 3,

39 Stat. 874, 877 (exempting wives of U.S. citizens

from restrictions otherwise imposed on immigrants

from Asia); Tsoi Sim v. United States, 116 F. 920, 925

(9th Cir. 1902).

The plurality opinion in Din, 576 U.S. at 96,

suggested that U.S.-citizens have no liberty interest in

decisions denying visas to their spouses, relying in

part on the provision of the Expatriation Act of 1907

requiring U.S.-citizen women to adopt the nationality

of their husbands. To the plurality, that Act was

perhaps the “[m]ost striking[]” evidence against a

liberty interest of the sort that Muñoz advocates. Id.

That overstates the matter. Though the statute

condoned “asymmetric treatment of women” that

would be impermissible today, id., the Expatriation

Act also underscored the centrality of cohabitation to

the institution of marriage by assigning a single

nationality to spouses. See Expatriation Act of 1907

§ 3, 34 Stat. 1228, 1228; Mackenzie v. Hare, 239 U.S.

299, 311 (1915) (“The identity of husband and wife is

an ancient principle of our jurisprudence.”),

abrogation recognized by Rocha v. INS, 450 F.2d 946,

947 (1st Cir. 1971). Moreover, the brief duration of this

atypical application of the marital-unity principle

supports Muñoz’s argument as to tradition. The repeal

of the expatriation statute led to a series of laws

allowing affected women to regain citizenship. See,

e.g., Pub. L. 67-346, §§ 2(b), 3, 42 Stat. 1021, 1022

(1922); Act of June 25, 1936, Pub. L. 74-793, 49 Stat.

1917; Act of July 2, 1940, 54 Stat. 715. Just as the

Court would not read statutes affording fewer rights

to disfavored racial groups as illuminating due process

principles, the Court should also not read the law’s

sexist treatment of women in the early twentieth

century as an accurate illustration of traditions

informing family immigration law.

Further, when Congress imposed quotas on

immigration in 1921, it gave “fiancées and wives

preferred status” but did not exempt them from the

quota. Din, 576 U.S. at 96 (plurality op.) (citing

Emergency Quota Act of 1921, Pub. L. 67-5, § 2(d), 42

Stat. 5, 6). The Din plurality believed that the

inclusion of spouses within the quota system

undermined the centrality of marriage to the

immigration system. See id. at 97. But three years

after that statute’s passage, in the face of “shock[]

beyond expression at the thought that the wife of an

American citizen should be denied admission,”

Congress exempted noncitizen wives from quotas.

Candice Lewis Bredbenner, A Nationality of Her Own

119 (1998) (quoting Memorandum from Secretary

White to the commissioner of naturalization, Feb. 2,

1924); see Immigration Act of 1924, Pub. L. 68-139,

§ 4(a), 43 Stat. 153, 155.

To be sure, this tradition of favoring marriagebased immigration has never been a blank check.

Citizens and their spouses must undergo background

checks, pay filing fees, and the noncitizen must be

“admissible” or able to waive inadmissibility. Muñoz

and Asencio-Cordero do not argue that the

government may not impose these or other

requirements on marriage-based immigration, or that

there is a substantive due process right to reside with

one’s spouse in the United States. Rather, history and

tradition confirm that citizens have an interest in

living with their spouse in the United States, and that

this interest is sufficiently established and important

to qualify for procedural due process protections

before the government prohibits a citizen from

residing with her spouse in the United States.

B. Statutes and regulations inform Muñoz’s

liberty interest.

The history discussed above informed and is

illustrated by Congress’s decision to afford marriage

between citizens and noncitizens additional legal

protections in the INA, enacted in 1952. See Pub. L.

82-414, § 101(a)(27)(A), 66 Stat. 163, 169 (1952). The

INA’s legislative history noted the “underlying

intention of our immigration laws regarding the

preservation of the family unit.” H.R. Rep. No. 821365, at 29 (Feb. 14, 1952).

Then, when Congress abolished the national

origins system in 1965, it repeated its intent to ensure

“that the family unit may be preserved as much as

possible.” S. Rep. No. 89-748, at 13 (1965); accord H.R.

Rep. No. 89-745, at 12 (1965); see H.R. Rep. No. 101723(I), at 38 (1990) (“[F]amily unification should

remain the cornerstone of U.S. immigration policy.”)

To this day, spouses of U.S. citizens are exempt from

quotas, which means they do not have to wait in lines

that can take a decade or more for other types of

immigration. 8 U.S.C. § 1151(b)(2)(A)(i); id. § 1151(c).

In addition to these overarching principles that

have informed the family-based immigration system,

the INA contains specific protections for citizenspouses that create an expectation that the

government may only prevent a citizen from living

with a noncitizen spouse in the United States when

the noncitizen is inadmissible. These statutory

provisions,

along

with

their

implementing

regulations, substantiate Muñoz’s expectation that

marriage-based immigration will proceed under

applicable legal principles.

Such an expectation exists where the person has

“more than an abstract need or desire” and instead

possesses a “legitimate claim of entitlement” to the

underlying benefit. Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972). Under this standard,

many “varied” and “intangible” interests “relating to

the whole domain of social and economic fact” have

given rise to protected interests. Logan v. Zimerman

Brush Co., 455 U.S. 422, 430 (1982) (quotation

omitted); see, e.g., Barry v. Barchi, 443 U.S. 55 (1979)

(horse training licenses); Memphis Light, Gas & Water

Div. v. Craft, 436 U.S. 1, 11-12 (1978) (utility services);

Goss v. Lopez, 419 U.S. 565, 573-574 (1975) (freedom

from arbitrary school suspension); Bell v. Burson, 402

U.S. 535, 539 (1971) (drivers’ licenses); Goldberg v.

Kelly, 397 U.S. 254, 262 (1970) (welfare benefits).

Though these cases relate to interests in property, this

Court has recognized that legislation and regulation

alike can inform “a variety of interests which are

difficult of definition but are nevertheless

comprehended within the meaning of either ‘liberty’ or

‘property’ as meant in the Due Process Clause.” Paul

v. Davis, 424 U.S. 693, 710 (1976); see, e.g., Greenholtz

v. Inmates of Neb. Penal & Correctional Complex, 442

U.S. 1, 12 (1979); Morrissey v. Brewer, 408 U.S. 471,

481-82 (1972); Wolff v. McDonnell, 418 U.S. 539, 55657 (1974).

Several statutory and regulatory provisions inform

the expectation in question here. First, the INA

requires that a visa be denied only for cause. Section

1182(a)(3)(A) requires the consular official have

“reasonable ground to believe” that the intending

immigrant “seeks to enter the United States to

engage” in “unlawful activity.” Section 1201(g)

similarly instructs consular officers to deny visas if the

officer “knows or has reason to believe” that the

applicant for admission is inadmissible. Neither of

these provisions, nor any other, permits consular

officers to deny visas at will.

These provisions gave Muñoz “a legitimate claim to

entitlement” that her husband would only be

permanently barred from living with her if he was

inadmissible. The fact that Asencio-Cordero was not

guaranteed admission is irrelevant; the due process

interest flows from the right to be free of a deprivation

without an opportunity to mount a challenge. Because

Muñoz has “a right or expectation that adverse action

will not be taken against [her] except upon the

occurrence of specified behavior, ‘the determination of

whether such behavior has occurred becomes critical,

and the minimum requirements of procedural due

process appropriate for the circumstances must be

observed.’” Vitek v. Jones, 445 U.S. 480, 491 (1980)

(quoting Wolff, 418 U.S at 558); see also Perry v.

Sindermann, 408 U.S. 593, 602-03 (1972). Muñoz had

a legitimate expectation that the consulate would

refuse a visa, if at all, only “for cause.”

Next, the statute and regulations that governed

the application for a waiver of unlawful presence

demonstrate that Muñoz herself had a personal

interest in the outcome of Asencio-Cordero’s visa

application. The waiver application required a

showing of extreme hardship to Muñoz, not AsencioCordero, 8 U.S.C. § 1182(a)(9)(B)(v), and AsencioCordero obtained a provisional waiver while in the

United States before attending the consular interview

abroad. That provisional waiver could only be granted

on a finding from DHS that it identified no potential

grounds of inadmissibility other than unlawful

presence, 78 Fed. Reg. 536, 546-47 (2013), and it could

be revoked only on limited grounds, one of which was

a finding of inadmissibility, exactly what DHS had

concluded likely did not exist. 8 C.F.R.

§ 212.7(e)(14)(i); DHS, Form I-601A Instructions at 34 (2021), https://bit.ly/3vft27r. Once that waiver was

granted based on extreme hardship, it further

supported Muñoz’s expectation in her husband’s visa

application. See Bell, 402 U.S. at 539; see also

Morrissey, 408 U.S. at 482; Flemming v. Nestor, 363

U.S. 603, 611 (1960); Henry J. Friendly, Some Kind of

Hearing, 123 U. Pa. L. Rev. 1267, 1296 (1975)

(“[T]here is a human difference between losing what

one has and not getting what one wants.”).

Muñoz’s expectation is also supported by visa rules

that affected her financial interests. She was required

to sign an affidavit of support that functions “as a

contract” if the noncitizen is admitted, becoming

“legally enforceable against the sponsor.” 8 U.S.C.

§ 1183a(a)(1), (a)(1)(B). While the affidavit has not

(yet) turned into a contract here, it is evidence that

Congress understands spouses to have valid interests

regarding the immigration of their spouses. Congress

called this affidavit of support a contract, and when

Congress transplants a legal term from common law,

“‘it brings the old soil with it.’” Hall v. Hall, 584 U.S.

59, 73 (2018) (quoting Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L.

Rev. 527, 537 (1947)). Muñoz’s undertaking to pay

potentially large sums of money in the future is the

consideration she offers. The only thing she stood to

gain in exchange was permission for her spouse to

immigrate unless he was inadmissible. See Affidavit

Support,

Form

I-864

(2021),

https://bit.ly/3IGBLTq (noncitizen “becoming a lawful

permanent resident is the consideration”). Muñoz’s

interest in the immigration of her spouse was

understood by Congress and the agency as having

value to her.

Finally, the Government argues that 8 U.S.C.

§ 1182(b)(3) does not require notice for someone found

inadmissible, but as discussed in detail below, infra

Part III.B, that provision did not preclude more robust

notice. Din, 576 U.S. at 106 (Kennedy, J., concurring);

id. at 116 (Breyer, J. dissenting). Current regulations

require more in two ways. First, the regulations

require that the consulate inform the applicant of the

basis for any visa denial, no matter the ground for the

denial. See 22 C.F.R. § 42.81(b). Second, the

regulations permit an opportunity to rebut any

inadmissibility findings for one year. Id. § 42.81(e). As

long as those regulations are in effect, the agency is

bound by them. See U.S. ex rel. Accardi v.

Shaughnessy, 347 U.S. 260, 266-67 (1954). But the

rebuttal opportunity was not provided here because

the denial, which included a statutory citation alone,

provided no information for Muñoz and AsencioCordero to rebut until well after the one-year term had

expired. 11

C. The Government’s attempts to refute

Muñoz’s liberty interest fail.

The Government’s two primary efforts to

undermine Muñoz’s liberty interest described above

are to assert that she is a mere bystander to Asencio11 The Government cites Agency for Int’l Dev. v. Alliance for Open

Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086-87, 2089 (2020), suggesting

that spouses are like independent corporations. Br. 25. That

vastly overstates the holding that foreign affiliates of U.S.

organizations do not have First Amendment rights. Agency for

Int’l Dev., 140 S. Ct. at 2087. That case primarily turned on the

reasoning that American organizations are not directly involved

when federal grants to their foreign affiliates contain provisions

conditioning receipt of funds. Id. at 2087. Spouses maintain

separate legal identities, but longstanding legal rules and

tradition confirm that spouses are not “separate” in the way that

corporations may be.

Cordero’s immigration process, Br. 27-28, and that she

could eliminate any harm she faces by relocating

abroad, Br. 27. Both fail.

1. Muñoz was directly affected

Asencio-Cordero’s visa denial.

The Government, relying on O’Bannon v. Town

Court Nursing Ctr., 447 U.S. 773 (1980), claims that

Muñoz is only indirectly impacted by the visa denial

and asserts that recognizing Muñoz’s interests would

create a slew of new spousal rights in broader

circumstances. Br. 28-30. Three major distinctions

separate the Medicare-recipient patients of the

decertified nursing home at issue in O’Bannon from

spouses in the consular process and belie the

Government’s arguments.

First, as discussed above, the consular process

demands that citizen spouses play an active role from

start to finish. The nursing home patients in

O’Bannon did not “petition” for nursing homes to be

certified; they did not sign affidavits of support for

their nursing homes; nor could they force

decertification by withdrawing a certification request.

447 U.S. at 787-88.

The spousal visa process, in contrast, starts with

the filing of a visa petition by a U.S.-citizen spouse,

who is the “petitioner.” 8 C.F.R. § 103.2(a). The

petitioner’s role continues well beyond the initial

filing. She may withdraw the visa petition at any time,

even after its approval, until the noncitizen’s

admission into the country. Id. § 103.2(b)(6).

The decertification process in O’Bannon did not

turn on individual nursing home patients or require

them to testify or otherwise be involved. By contrast,

a U.S. citizen who files a visa petition opens the door

to intrusive government investigation. A couple must

prove a bona fide relationship, inviting inquiry into

their “living arrangements.” Matter of Phillis, 15 I. &

N. Dec. 385, 387 (BIA 1975); Lutwak v. United States,

344 U.S. 604, 608-09 (1953) (marriage not valid for

immigration purposes where couples did not “live[]

together as husband and wife”). The central question

is whether the couple intended to “establish a life

together.” Matter of Laureano, 19 I. & N. Dec. 1, 2-3

(BIA 1983). Immigration agents may enter the

couple’s home without warning to assess the

legitimacy of the relationship. See Matter of P. Singh,

27 I. & N. Dec. 598, 600 (BIA 2019); Zyapkov v. Lynch,

817 F.3d 556, 558 (7th Cir. 2016). A finding that the

marriage is not bona fide exposes both parties to

criminal liability. 8 U.S.C. § 1325(c); 18 U.S.C. § 1546.

Even after a case reaches the consulate, officers look

for indicia of marriage fraud and may initiate a

process to reopen the initial visa petition. 22 C.F.R.

§ 42.43(a); 9 FAM 504.2-2(B).

Similarly, the certification process in O’Bannon did

not turn on hardship to the nursing home patients. By

contrast, Asencio-Cordero’s prior unlawful presence in

the United States meant that his visa process could

not proceed without a waiver under 8 U.S.C.

§ 1182(a)(9)(B)(v), which centered on “extreme

hardship” to Muñoz. And Muñoz (not her husband)

had to sign an Affidavit of Support, which would

become a binding promise to repay welfare payments

that Asencio-Cordero might receive after immigrating.

8 U.S.C. § 1183a(a)(1)(B).

The Government asks the Court to focus on the

visa interview alone, rather than this entire process.

But the State Department’s own instructions are to

the contrary; they describe the ongoing role of the U.S.

citizen and refer to that person as the “petitioner”

throughout. See U.S. Dep’t of State, Bureau of

Consular Affairs, Immigrant Visa for a Spouse of a

U.S. Citizen, https://bit.ly/49UWG11. And “interview

preparation” instructions explain that the National

Visa Center “will send you, your petitioner, and your

agent/attorney” an email noting “the appointment

date and time,” which belies the Government’s

elliptical suggestion that Muñoz was not entitled to

notice of the interview, Br. 22. See U.S. Dep’t of State,

Bureau of Consular Affairs, Immigrant Visa Process:

Step 10, https://bit.ly/3IEjRR7 (emphasis added).

Ignoring the context of the visa interview obscures the

centrality of the U.S. citizen. The process is begun by

the citizen spouse, designed to advance the interests

of that spouse, focused on the needs of the spouse, and

proceeds only with the spouse’s active and continued

support. Indeed, if Muñoz divorced Asencio-Cordero

prior to the adjudication of the visa, the application

would no longer have been viable, and AsencioCordero would no longer have been eligible for the visa

he sought. 8 C.F.R. § 205.1(a)(3)(D).

The second distinction from O’Bannon is that the

Court determined that nursing home patients lacked

a due process interest in the decertification of their

nursing home because they retained “the right to

choose among a range of qualified providers, without

government interference.” 447 U.S. at 785. In

contrast, the visa denial left Muñoz without any choice

by depriving her of the ability to live with her husband

in their marital home. The only alternative would

require her to forfeit her right as a citizen to live in the

United States, and, as discussed below, Part II.C.2, it

is impermissible for the Government to force citizens

to make exercising one right dependent upon

sacrificing another without due process.

Finally, the Court found it relevant in O’Bannon

that some party could advance the patients’ interests.

The Court noted that the nursing home had both the

right to a hearing before its own decertification and “a

strong financial incentive to contest its enforcement

decision.” O’Bannon, 447 U.S. at 789 n.22. The

nursing home “had the opportunity and incentive to

make the very arguments that patients might make”

before decertification. Id. at 797 (Blackmun, J.,

concurring). And the patients themselves had a

potential “claim against the nursing home.” Id. at 787,

789 n.22, 790. Here, in contrast, the Government

argues that no one may raise due process arguments

and that Muñoz has no alternative legal path for

asserting her rights. See id. at 797-98 (Blackmun, J.,

concurring) (recognizing that nursing home had “the

opportunity and incentive to make the very arguments

the patients might make,” rendering the patients’

interest “in accurate and informed decisionmaking”

largely “satisfied”).

These distinctions from O’Bannon show why

finding a liberty interest for Muñoz in the consular

process would not create “tremendous disruption,” as

the Government suggests. Br. 30. Unlike the statutes

and regulations here, criminal cases, upon which the

Government relies, Br. 30, afford spouses no role in

preventing another’s incarceration. And as in

O’Bannon, a spouse’s interests are protected in the

criminal context by the defendant’s own due process

rights. Perhaps in a case where a defendant was not

permitted to advance those interests due to “lack of

access to court,” a different rule would apply. Indeed,

there is an “ancient tradition” in common law allowing

family members to intervene as “next friends” where

a prisoner is incapacitated or unable to defend their

interests. Whitmore v. Arkansas, 495 U.S. 149, 164-65

(1990).

The Government also implies that because

Asencio-Cordero is the subject of the inadmissibility

determination, his wife is an indirect bystander. Br.

28-29. That implication does not follow. The fact that

a legal provision targets one individual does not render

the impact on their spouse indirect. In the First

Amendment context, the Court has recognized that an

incarcerated person’s spouse may be directly affected

by provisions that are primarily directed against the

incarcerated. “[T]he interests of both parties are

inextricably meshed. The wife of a prison inmate who

is not permitted to read all that her husband wanted

to say to her has suffered an abridgment of her interest

in communicating with him as plain as that which

results from censorship of her letter to him.” Procunier

v. Martinez, 416 U.S. 396, 409 (1974). In Turner v.

Safley, the Court likewise acknowledged preventing

marriage between incarcerated and non-incarcerated

people may implicate “the interests of nonprisoners,”

though the Court deemed it unnecessary to reach that

question. 482 U.S. 78, 97 (1987).

2. Muñoz’s interest in living in her

country

citizenship

renders

relocation an impermissible solution.

Muñoz’s separate liberty interest in her ability to

live in the United States means the Government

cannot avoid a due process problem by instructing her

to move abroad.

Article One of the Fourteenth Amendment states

that “[a]ll persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside.” This provision, “the Citizenship Clause,”

thus “expressly equates citizenship with residence.”

Saenz v. Roe, 526 U.S. 489, 506 (1999). Further, unless

“voluntarily relinquishe[d],” the right of citizenship

cannot “be shifted, canceled, or diluted at the will of

the Federal Government, the States, or any other

governmental unit.” Afroyim v. Rusk, 387 U.S. 253,

262 (1967). “The Fourteenth Amendment, while it

leaves the power, where it was before, in Congress, to

regulate naturalization, has conferred no authority

upon Congress to restrict the effect of birth, declared

by the Constitution to constitute a sufficient and

complete right to citizenship.” United States v. Wong

Kim Ark, 169 U.S. 649, 703 (1898). A citizen’s rights

may not be diluted due to family relations with a

noncitizen. Oyama v. California, 332 U.S. 633, 647

(1948) (holding that “the rights of a citizen may not be

subordinated merely because of his father’s country of

origin”).

A citizen’s ability to exercise the rights attendant

to citizenship is largely meaningless if one is forced to

reside outside the United States, where the

Constitution does not apply. This possibility is more

than an abstract concern to Muñoz. By the

Government’s own admission, she would be directly

placed in harm’s way and forced to endure “extreme

hardship” in El Salvador, a country that the State

Department itself describes as being plagued with

widespread violence. See U.S. Dep’t of State, Bureau

of Consular Affairs, El Salvador Travel Advisory,

https://bit.ly/3TiUjOp. She would also be forced to

relinquish her legal practice.

Muñoz does not argue that the Government may

never require citizens to decide between living in the

United States or cohabitating with their spouses

abroad, only that it may not do so without providing

sufficient process before imposing such a burden.

Because Muñoz possesses a liberty interest in

remaining in her country of citizenship as well as in

cohabitating with her husband, the Government’s

suggestion that she leave the United States does not

absolve the Government of its obligation to provide

adequate process before denying the visa.

This Court has repeatedly refused to condone state

action that forces citizens to sacrifice one right to

exercise another. “If the state may compel the

surrender of one constitutional right as a condition of

its favor, it may, in like manner, compel a surrender

of all. It is inconceivable that guarantees embedded in

the Constitution of the United States may thus be

manipulated out of existence.” Frost v. R.R. Comm’n

of State of Cal., 271 U.S. 583, 593-94 (1926); see, e.g.,

Simmons v. United States, 390 U.S. 377, 394 (1968)

(deeming it “intolerable that one constitutional right

should have to be surrendered in order to assert

another”); accord Garrity v. New Jersey, 385 U.S. 493,

497 (1967); Aptheker v. Sec’y of State, 378 U.S. 500,

507 (1964).

***

History and tradition make clear that a U.S. citizen

has a liberty interest in marriage, which entails living

with her spouse in the United States. This interest is

further supported by the INA and regulations, which

gave Muñoz an expectation in her husband’s visa

application by requiring that she play a direct and

indispensable role in a visa application that could only

be denied for cause. Because Muñoz also has a right to

live in her country of citizenship, she was entitled to

procedural due process before the Government denied

Asencio-Cordero’s visa.

III. Citing Section 1182(a)(3)(A)(ii) Does Not

Provide Sufficient Notice To Satisfy Due

Process.

The Government argues that citing 8 U.S.C.

§ 1182(a)(3)(A)(ii) satisfies due process because the

citation provided a “facially legitimate and bona fide”

reason for the denial. Br. 31 (citing Mandel, 408 U.S.

at 770). But this Court has typically not applied the

“facially legitimate and bona fide” test, which predates

the general due process test in Mathews v. Eldridge,

424 U.S. 319 (1976), to a situation involving a claim

that an agency has violated Congress’s chosen

immigration policies. Further, that test has no place

where, as here, a U.S. citizen argues that the

consulate has misapplied an exceptionally broad

inadmissibility statute. State Department regulations

also provide an opportunity for Muñoz and her

husband to challenge the decision by providing

exculpatory evidence—an opportunity they cannot

pursue without understanding the reason for the

denial. 22 C.F.R. § 42.81(e). Thus, in the narrow

circumstances presented here, due process requires a

summary statement of the factual basis underlying

the decision—a statement of what the applicant did to

cause the consular official to make an inadmissibility

determination.

The constitutional minimum of a factual statement

is not preempted by statutory language in 8 U.S.C.

§ 1182(b)(3) granting consular officers authority to

avoid even stating the pertinent ground of

inadmissibility. And the concurrence in Din, which

spoke to a different, more-specific statutory ground of

inadmissibility and involved a factual record tying the

denial to the statutory ground, does not support—

much less compel—a contrary conclusion. 576 U.S. at

104-06.

A. The “facially legitimate and bona fide” test

should not apply here.

The Ninth Circuit applied the “facially legitimate

and bona fide” test to determine what process is due

to Muñoz. Br. 31. But that test is inapposite where a

visa denial is based on a statute that permits denials

only where there is reason to believe the individual is

inadmissible, and where such a denial compromises

the interests of a U.S.-citizen spouse.

The “facially legitimate and bona fide” test traces

to Mandel, where American professors challenged the

denial of a waiver of inadmissibility to a foreign

professor on First Amendment grounds. Emphasizing

that Congress had committed the waiver decision to

the discretion of the executive branch, Mandel held

that “when the Executive exercises this power

negatively on the basis of a facially legitimate and

bona fide reason, the courts will neither look behind

the exercise of that discretion, nor test it by balancing

its justification against the First Amendment

interests of those who seek personal communication

with the applicant.” Mandel, 408 U.S. at 770.

The “facially legitimate” standard permits

circumscribed review where the political branches

speak with one voice. It applies where a challenged

executive-branch decision is one that Congress has

made discretionary. See Hawaii, 585 U.S. at 683, 703

(applying rational basis review but suggesting the

facially legitimate standard in situations where

Congress conferred “broad discretion” to the executive

on immigration issues). 12 It also applies where a

challenge is brought to “broad congressional policy

judgments” regarding the availability of a preferential

immigration status. Fiallo v. Bell, 430 U.S. 787, 795

(1977). The “facially legitimate” test thus

circumscribes judicial review where Congress has

delegated discretion to the executive or where a

plaintiff challenges the legality of congressional visa

policies.

12 See also Purkett v. Elem, 514

U.S. 765, 769 (1995) (facially

legitimate reasons sufficient for peremptory juror challenge);

Ricci v. DeStefano, 557 U.S. 557, 596 (2009) (Alito, J., concurring)

(in disparate treatment claim, where employer gives “facially

legitimate reason,” not liable unless it is “just a pretext for

discrimination”).

This case differs critically from Mandel in two

ways. First, it involves the marital relationship. In the

First Amendment context, this Court has treated as

“plain” the interest of spouses to communicate, and it

juxtaposed that interest against the “difficult

questions” produced in Mandel as a “so-called ‘right to

hear’” case. Procunier, 416 U.S. at 409 (discussing

Mandel).

Second, this case does not fit within either of the

categories to which the Court has applied Mandel.

Congress has the authority to exclude noncitizen

spouses who would commit criminal acts in the United

States. Congress, however, chose not to give consular

officers the free rein it gave the Attorney General to

issue waivers in Mandel. Rather, it enacted an

objective test requiring the officer to have a

“reasonable ground to believe” the applicant is

inadmissible. 8 U.S.C. § 1182(a)(3)(A); accord id.

§ 1201(g) (“reason to believe”). That standard, which

is akin to probable cause in the criminal context, see,

e.g., Ludecke v. U.S. Marshal, 15 F.3d 496, 497 (5th

Cir. 1994); Prushinowski v. Samples, 734 F.2d 1016,

1018 (4th Cir. 1984), “require[s] a determination

based upon facts or circumstances which would lead a

reasonable person to conclude that the applicant is

ineligible to receive a visa,” 22 C.F.R. § 40.6. As the

FAM explains, “[t]he essence of the [reason to believe]

standard is that you must have more than a mere

suspicion; there must exist a probability, supported by

evidence” that the inadmissibility ground applies to

the applicant. 9 FAM 302.4-3(B)(3) (defining standard

as applied to drug trafficking); see also id. 302.94(B)(3) (misrepresentations).

“A visa can be refused only upon a ground

specifically set out in the law or implementing

regulations.” 22 C.F.R. § 40.6. And regulations

provide applicants with an opportunity to show that

no such probability exists by presenting exculpatory

evidence. Id. § 42.81(e). Ultimately, then, either

inadmissibility bars admission, or the issuance of a

visa is mandatory. Gegiow v. Uhl, 239 U.S. 3, 9 (1915)

(Holmes, J.) (“The statute, by enumerating the

conditions upon which the allowance to land may be

denied, prohibits the denial in other cases.”).

Here, Muñoz’s due process claim differs from Fiallo

in that it is not a facial challenge to a statute, and it

differs from Mandel and cases like it in that the

underlying visa denial was not discretionary. Her

underlying case, by contrast, is about the proper

application of Section 1182(a)(3)(A)(ii) to AsencioCordero. The claim is that the agency violated its

statutory duties, not that the agency erred in the

exercise of discretion. Muñoz is therefore not asking

the Court to overrule fundamental policy choices made

by the political branches. Rather, she asks the Court

to provide her with a basis for determining whether

the agency erred in its application of the statute

setting forth congressional policy. And this Court has

long held that greater judicial scrutiny is required

when Congress has “provide[d] statutory standards”

for determining eligibility for a benefit than when it

has granted discretionary power as “a matter of

grace.” Jay v. Boyd, 351 U.S. 345, 353-54 (1956); see

also Ky. Dep’t of Corrections v. Thompson, 490 U.S.

454, 462 (1989) (“‘[A] State creates a protected liberty

interest by placing substantive limitations on official

discretion.’”) (quoting Olim v. Wakinekona, 461 U.S.

238, 249 (1983)).

B. In the narrow situation presented here,

the Constitution requires a factual basis

for an inadmissibility determination.

Given these differences, Muñoz is entitled to more

process than the academics in Mandel. To satisfy due

process, notice must be “reasonably calculated . . . to

apprise interested parties of the pendency of the

action and afford them an opportunity to present their

objections.” Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 314 (1950). Typically, this test

requires “notice of the factual basis” justifying a

deprivation. Wilkinson v. Austin, 545 U.S. 209, 225-26

(2005). This Court has accordingly required disclosure

of the factual basis for agency determinations in a

wide range of settings, including settings that directly

implicate public safety and national security. See, e.g.,

id. (placement at supermax facility); Greenholtz, 442

U.S. at 15-16 (adverse parole decisions); Hamdi v.

Rumsfeld, 542 U.S. 507, 533 (2004) (classification as

enemy combatant); Wolff, 418 U.S. at 563 (prison

disciplinary

proceedings);

see

also,

e.g.,

Superintendent, Mass. Correctional Institution v. Hill,

472 U.S. 445, 454 (1985) (requiring “some evidence” to

support denial of good time credits); Douglas v. Buder,

412 U.S. 430, 432 (1973) (evidence necessary to

support parole revocation); U.S. ex rel. Vajtauer v.

Comm’r of Immigration, 273 U.S. 103, 106 (1927)

(“Deportation without a fair hearing or on charges

unsupported by any evidence is a denial of due

process.”); Schware v. Board of Bar Examiners, 353

U.S. 232, 246-47 (1957) (holding that state had

provided insufficient evidence to deny bar license to

former Communist party member on grounds of bad

moral character).

At a minimum, Muñoz is entitled to a statement

providing the factual basis for applying the ground of

inadmissibility. State Department regulations provide

a procedure under which Muñoz and her husband

could challenge the decision excluding him from the

United States. See 22 C.F.R. § 42.81(e). A statement of

facts is necessary to make that challenge meaningful

in the context of a denial under a statute as wideranging and generic as Section 1182(a)(3)(A)(ii). Here,

for instance, the Government was obligated to state

what Asencio-Cordero said or did to make them think

he is inadmissible as a gang member. Otherwise, a

U.S. citizen like Muñoz seeking to vindicate her

interests would face the impossible task of proving the

negative that her husband would never commit any

kind of future illegal act. 13

The traditional balancing test in Mathews, 424

U.S. at 335, which considers the private interest at

issue, the risk of erroneous deprivation, and the

Government’s interest, confirms that the agency must

at minimum provide some factual predicate for the

inadmissibility finding. The private interests affected

here are, as shown above, the significant rights of

living with one’s spouse in one’s country of citizenship

13 The impossibility of this task is borne out in the results: Of the

1,764 immigrant visas denied under this statutory provision from

2000 to 2022, not a single person was able to overcome the

presumption of ineligibility. See Bureau of Consular Affairs,

Annual Reports, Table XIX, 2000-2022, https://bit.ly/49RmMSv.

and an interest in being free from having to choose

between these rights.

The risk of erroneous deprivation is high both

because of the significant risk that attends closed

proceedings like the visa application process at issue

here, Boumediene v. Bush, 553 U.S. 723, 785 (2008),

and

because

the

application

Section

1182(a)(3)(A)(ii) turns on the assessment of whether

someone is likely to commit unspecified illegality in

the future, rather than any past bad act. And

adequate notice, such as “a brief summary of the

factual basis” for a decision is among “the most

important procedural mechanisms for purposes of

avoiding erroneous deprivations.” Wilkinson, 545 U.S.

at 226.

As to the final factor, the Government asserts that

it must preserve secrecy across the board because

“[e]very visa decision is a national security decision”

and because, in the Government’s telling, providing

any reason for a determination “could compromise

sensitive and even classified information.” Br. 41-42. 14

The Government’s own practices belie that

assertion:

Section

1182(a)(3)(A)(ii)

applies

domestically and abroad, and whenever the

Government finds a person in the country

inadmissible under that provision, it explains its

reasoning and provides an opportunity for a response.

8 C.F.R. § 103.2(b)(16). Indeed, even in cases involving

14 The Government cannot rely on the financial costs of additional

procedures because applicants bear those costs. Schedule of Fees

for Consular Services, 86 Fed. Reg. 74018, 74019 (Dec. 29, 2021);

see 31 U.S.C. § 9701.

classified information and potential terrorism, when

those case are adjudicated within the United States,

the Government must provide an unclassified

summary of any secret evidence. See 8 U.S.C.

§ 1534(e)(3)(B).

If the Government can provide summaries in those

situations without compromising national security—

and it can—it follows that it can likewise do so with

respect to denials under Section 1182(a)(3)(A)(ii) that

happen to involve people outside the United States.

After all, much of the potential future conduct covered

by the statute has no connection to national security.

The FAM, for instance, describes one “of the more

common situations involving ‘other unlawful activity’”

as including “travel to a state where the applicant’s

marriage to a first cousin … violates that state’s

criminal law.” 9 FAM 302.5-4(A).

The Government trots out a parade of horribles,

asserting that disclosure of any factual basis for

denials under Section 1182(a)(3)(A)(ii) would reveal

confidential information to transnational gangs and

chill

both

inter-agency

and

international

communications. Br. 42-44. If those issues existed in

any meaningful number of cases involving people

outside the United States found inadmissible under

Section 1182(a)(3)(A)(ii), they surely would already

have arisen in cases involving people inside the United

States whose visas were denied on the same ground.

Yet the Government cites not a single situation in

which it was unable to provide a required factual basis

to such an applicant—or even an applicant charged

with inadmissibility on terrorism-related grounds—

without compromising national security. That absence

is glaring.

It is also unsurprising, given that the minimal

requirement to disclose a summary factual basis

leaves ample room for the Government to withhold

information under the state secrets privilege, United

States v. Reynolds, 345 U.S. 1, 6-7 (1953), the law

enforcement privilege, In re The City of New York, 607

F.3d 923, 948-49 (2d Cir. 2010), and related doctrines.

There is no reason that the State Department could

not create administrative mechanisms similar to those

that DHS uses for visa applicants inside the country.

See 8 C.F.R. § 103.2(b)(16)(iv) (When agency can

provide notice of adverse evidence “consistently with

safeguarding both the information and its source …

the applicant or petitioner [should] be given notice of

the general nature of the information and an

opportunity to offer opposing evidence.”).

The Government also relies on 8 U.S.C.

§ 1182(b)(3), which exempts Sections 1182(a)(2) and

(a)(3) from the general rule that the agency must

identify the inadmissibility ground when denying a

visa, as authority for its position that it need provide

no notice or effective opportunity to be heard. Br. 3741. The Government’s reliance on this provision is

curious, given that the consular official in this case

declined to invoke Section 1182(b)(3), voluntarily

citing Section 1182(a)(3)(A)(ii), though Section

1182(b)(3) gave it authority not to do so. As that choice

illustrates, Section 1182(b)(3) sets a floor rather than

a ceiling. See Din, 576 U.S. at 106 (Kennedy, J.,

concurring); id. at 116 (Breyer, J., dissenting).

Moreover, the State Department has bound itself

to do more. Regulations require the consulate to

inform the applicant of the basis for any visa denial

and do not exempt denials under Sections 1182(a)(2)

and (a)(3). 22 C.F.R. § 42.81(b). The FAM states that

“although [1182](b) also exempts findings of

ineligibility under [1182](a)(2) and (3) from the written

notice requirement, it is expected that such notices

will be provided to the applicant in all [1182](a)(2) and

[1182](a)(3) cases unless” the officer receives express

instruction from the Department. 9 FAM 504.113(A)(1)(c). And crucially, the State Department has

also provided an administrative reconsideration

process that can be meaningful only if the applicant

understands the factual basis for a denial. 22 C.F.R.

§ 42.81(e). The Department itself therefore proceeds

as if denials under Section 1182(a)(3)(A)(ii) have little

connection to national security. 15

In the circumstances of the exclusion of a U.S.citizen’s spouse under Section 1182(a)(2)(A)(ii), the

citizen has a constitutional right to a written

determination and factual summary. Otherwise, the

regulatory right to rebuttal is meaningless.

C. A mere citation to Section 1182(a)(3)(A)(ii)

cannot satisfy the “facially legitimate and

bona fide” test.

Even if the Court were to accept the Government’s

invitation to apply the “facially legitimate and bona

fide” test from Mandel, a mere citation to Section

15 If some factual summary were disclosed below, it would foster

a sense of fairness, permit an effective response, and forestall the

need for in camera review. See Br. 45-46.

1182(a)(3)(A)(ii) would be insufficient to satisfy due

process. While this Court has not given a precise

definition to the meaning of “facially legitimate and

bona fide,” it has offered various indications of

circumstances when such a standard is not met. For

example, in Mandel, the Government posited that

“any reason or no reason may be given” for a

discretionary visa denial, but the Court did not adopt

that lenient standard. 408 U.S. at 769.

A citation to Section 1182(a)(3)(A)(ii), standing

alone, is so broad as to be effectively equivalent to “any

reason.” Given its placement within 1182(a)(3)

(“Security and related grounds”), as highlighted by the

Government, Br. 3-4, Section 1182(a)(3)(A)(ii) might

be understood under ejusdem generis principles to

relate only to security-related illegality. The plain text

of the provision, however, sweeps much more broadly.

The agency reads the statute expansively as applying

to any kind of illegal future activity, illustrated by

detailed FAM application to those intending to

unlawfully marry a cousin. 9 FAM 302.5-4(A). A

statute of such breadth invites arbitrary enforcement,

particularly if consular officers need not explain

themselves. 16 See Smith v. Goguen, 415 U.S. 566, 576

(1974).

Section 1182(a)(3)(A)(ii) thus sweeps in an

unimaginably broad range of future-looking potential

16 The broad view of Section 1182(a)(3)(A)(ii) also seems to render

other inadmissibility grounds surplusage. Section 1182 covers a

wide range of conduct, including future offenses, and none of

those provisions would be necessary if “any” activity covered the

entire spectrum of unlawful conduct. See, e.g., 8 U.S.C.

§ 1182(a)(2)(D); id. § 1182(a)(2)(I)(i).

conduct by reaching anything that gives a “reasonable

ground to believe” that a person will engage in “any …

unlawful activity” that might even “incidentally” be

committed during their time in the United States. A

citation to the statute thus provides no factual

predicate that could possibly put a person on notice of

the reason for their exclusion from the United States

or give them an opportunity to rebut the application of

that provision. That is not enough even under the

lenient standard in Mandel. 17 The Ninth Circuit

correctly found it insufficient and that belated

additions in litigation did not give Muñoz a fair

opportunity to respond. Pet. App. 33a.

D. The concurrence in Din does not compel a

contrary result.

The Government relies on the concurring opinion

in Din, arguing that it held due process is satisfied

whenever the consulate has cited any statutory

provision. 18 Br. 32. This overreads the concurrence.

Muñoz and Asencio-Cordero argued before both the district

court and the court of appeals that Section 1182(a)(3)(A)(ii) is

unconstitutionally vague. See Plaintiff-Appellants’ Ninth Cir.

Opening Br. 41-51. The Ninth Circuit did not address that issue,

and it is not before the Court. No matter its ruling on the

questions presented, the Court should remand the case for

further proceedings on that issue, which does not turn on

whether Muñoz has a cognizable liberty interest at stake or how

much process she is due.

The Din concurrence is not controlling because its analysis

concerning what process is sufficient cannot be seen as a “logical

subset” of the plurality opinion’s conclusion that no liberty

interest exists. Morfin v. Tillerson, 851 F.3d 710, 713 (7th Cir.

2017). Moreover, as the Government all but concedes, Br. 34-35

The concurrence gave several reasons for its

conclusion that due process was satisfied in that case:

(a) the determination was based on “specific statutory

factors,” which contained “discrete factual predicates,”

Din, 576 U.S. at 104-05; (b) the government has

particularly sensitive needs in the terrorism context,

id. at 106; (c) Din admitted facts that provided a “facial

connection” to terrorist activity, id. at 105, and

(d) while Din sought to know the specific subpart of

the terrorism ground at issue, the statute says the

agency need not provide such specificity. Id. at 10506. 19

Those considerations are absent here. First,

Section 1182(a)(3)(A)(ii) has no specific factual

predicates. The contrast with Section 1182(a)(3)(B)

could not be more stark. The terrorist ground

enumerates granular types of activity, listing

hijacking, sabotage, kidnapping, assassination,

violent attacks, use of biological or chemical weapons,

as well as soliciting funds for terrorist organizations.

Moreover,

avoid

overapplication,

Section

1182(a)(3)(B) provides detailed definitions of terms

such as “material support,” “terrorist activity,”

n.11, the concurrence in Din would not bind this Court under

stare decisis principles. See, e.g., Hughes v. United States, 584

U.S. 675, 679-80 (2018).

19 The Government argues that the first reason was the “real”

reason, citing to shorthand in this Court’s decision in Hawaii,

such that any statutory citation is sufficient reason. Br. 37 (citing

585 U.S. at 703). But Justice Kennedy concluded that due process

had been satisfied “[f]or these reasons,” Din, 576 U.S. at 106

(emphasis added), not for just the first reason. The Government

provides no reason to believe that the shorthand reference in

Hawaii was intended to alter Din.

“engage in terrorist activity,” “terrorist organization”

and “representative” thereof. It cross-references other

statutes to define terms such as “military-type

training.” Section 1182(a)(3)(A)(ii) is neither “specific”

nor “discrete.” These significant statutory differences

between Sections 1182(a)(3)(B) and (a)(3)(A)(ii) call for

different treatment. 20

Second, as discussed above, the tie between the

ground of inadmissibility and national security is

much weaker for Section 1182(a)(3)(A)(ii) than for the

terrorism-based grounds in Section 1182(a)(3)(B).

Third, unlike in both Mandel and Din, the

Government has pointed to no “fact on the record” that

would provide a “facial connection” between AsencioCordero and the inadmissibility ground. Finally,

unlike Din, Muñoz does not seek further specificity as

to the portion of the inadmissibility statute at issue,

which makes the fourth factor from the concurrence

materially different here.

The concurrence in Din thus has little bearing on

the outcome of this case.

20 The Government cites Colindres v. U.S. Dep’t of State, 71 F.4th

1018, 1024-25 (D.C. Cir. 2023), for the proposition that the

terrorism ground is, in some places, as broad as the provision at

issue here. Br. 35. The point, however, is not that Section

1182(a)(3)(A)(ii) covers much ground but that it does so in a

sweeping manner rather than enumerating discrete actions that

trigger inadmissibility. To the extent Colindres disagrees with

the Din concurrence’s understanding of the terrorism ground as

“discrete” and “specific,” the concurrence has the better of the

argument.

***

Due process requires the agency to provide the

factual basis for a visa denial. Indeed, without such

notice, the State Department’s own administrative

reconsideration process would be meaningless. Even if

the Constitution required nothing more than

application of the “facially legitimate and bona fide”

standard from Mandel, a citation to Section

1182(a)(3)(A)(ii) fails to offer either a factual predicate

for a visa denial or an opportunity to respond to it.

CONCLUSION

For the foregoing reasons, the decision of the court

of appeals should be affirmed.

Respectfully Submitted,

Charles Roth

Keren Zwick

Mary Georgevich

Richard Caldarone

Colleen Cowgill

NATIONAL IMMIGRANT

JUSTICE CENTER

111 W. Jackson Blvd.

Suite 800

Chicago, IL 60604

Eric Lee

Counsel of Record

DIAMANTE LAW GROUP

24225 W. 9 Mile Rd.

Suite 140

Southfield, MI 48033

213-943-4555

elee@diamantelaw.com

Erwin Chemerinsky

UNIVERSITY OF

CALIFORNIA, BERKELEY,

SCHOOL OF LAW

Law Building 215

Berkeley, CA 94720

Alan Diamante

DIAMANTE LAW GROUP

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Suite M

Glendale, CA 91203

March 2024

APPENDIX

Code of Federal Regulations .....................................1a

8 C.F.R. § 103.2(b)(6) .............................................1a

8 C.F.R. § 212.7(e)(14)............................................1a