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

No. 23-334

IN THE

Supreme Court of the United States

DEPARTMENT OF STATE, ET AL.,

Petitioners,

v.

SANDRA MUÑOZ, ET AL.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF FOR THE UNITED STATES CONFERENCE

OF CATHOLIC BISHOPS AND THE CATHOLIC

LEGAL IMMIGRATION NETWORK, INC.

AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

SAMUEL ECKMAN

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue,

Los Angeles, CA 90071

(213) 229-7204

AMER S. AHMED

Counsel of Record

RICHARD W. MARK

VANESSA AJAGU

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

(212) 351-2427

aahmed@gibsondunn.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 4

I.

The Adjudication Of A Spousal Visa

Application Implicates A U.S. CitizenSpouse’s Protected Liberty Interest In

Marriage And Family Unity................................ 4

A. The Sanctity Of Marriage And Family Is

A Core Feature Of This Nation’s History

And Tradition, And Reiterated In

Catholic Teaching. ........................................ 4

B. The Right To Marry, Which Includes

Establishing A Home And Raising A

Family, Is Implicated When The

Government Denies A Visa To A U.S.

Citizen’s Spouse And That Right

Demands Adequate Procedural

Safeguards. .................................................... 7

II. The Catholic Church’s Respect For The Right

Of The Government To Decide Who Remains

In The Country Does Not Outweigh The

Importance Of Keeping Families Together. ..... 15

CONCLUSION ......................................................... 16

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Boddie v. Connecticut,

401 U.S. 371 (1971) .............................................. 11

Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632 (1974) .......................................... 5, 11

Din v. Kerry,

718 F.3d 856 (2013)................................................ 8

Fiallo v. Bell,

430 U.S. 787 (1977) .............................................. 14

Ginsberg v. New York,

390 U.S. 629 (1968) ................................................ 5

Jones v. Helms,

452 U.S. 412 (1981) .............................................. 12

Kleindienst v. Mandel,

408 U.S. 753 (1972) .......................................... 8, 11

Loving v. Virginia,

388 U.S. 1 (1967) ................................................ 7, 9

Meyer v. Nebraska,

262 U.S. 390 (1923) ...................................... 7, 8, 12

Moore v. East Cleveland,

431 U.S. 494 (1977) .................................. 5, 7, 9, 12

Ng Fung Ho v. White,

259 U.S. 276 (1922) ................................................ 8

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942) ............................................ 5, 7

iii

Stanley v. Illinois,

405 U.S. 645 (1972) ................................................ 5

Trop v. Dulles,

356 U.S. 86 (1958) ................................................ 12

Turner v. Safley,

482 U.S. 78 (1987) ................................................ 11

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................................ 5

Yamataya v. Fisher,

189 U.S. 86 (1903) ................................................ 13

Zablocki v. Redhail,

434 U.S. 374 (1978) ................................................ 8

Statutes

8 U.S.C. § 1151(a)(1) ................................................... 9

8 U.S.C. § 1153(a) ........................................................ 9

8 U.S.C. § 1183a(a)(1)(B)............................................. 9

8 U.S.C. § 1229a(b)(4)(B)........................................... 13

Act of March 3, 1903, Pub. L. No. 162,

32 Stat. 1213 .......................................................... 6

Other Authorities

136 Cong. Rec. 36838

(daily ed. Oct. 27, 1990) ......................................... 6

2022 Yearbook Of Immigration Statistics,

https://www.dhs.gov/sites/default/files/202

402/2023_0818_plcy_yearbook_immigrati

on_statistics_fy2022.pdf (last visited

March 15, 2024) ..................................................... 9

1 William Blackstone, Commentaries ........................ 4

iv

A Pastoral Letter of the United States

Conference of Catholic Bishops, Marriage:

Love and Life in the Divine Plan (Nov. 17,

2009), https://www.usccb.org/resources/pa

storal-letter-marriage-love-and-life-inthe-divine-plan.pdf ............................................... 10

Alexis de Tocqueville, Democracy in America

(Henry Reeve trans., The Lawbook

Exchange, Ltd. 2003) (1838) .................................. 5

Catechism of the Catholic Church

(2d ed. 2019) ............................................... 6, 10, 15

Catholic Bishops of Mex. & the U.S.,

Strangers No Longer: Together on the

Journey of Hope, USCCB (Jan. 22, 2003),

https://tinyurl.com/3ca3v3ta

........................................................ 3, 10, 12, 13, 16

El Salvador: Events of 2022, Human Rights

Watch, https://www.hrw.org/worldreport/2023/country-chapters/elsalvador#:~:text=Authorities%20committ

ed%20widespread%20human%20rights,so

me%20neighborhoods%20and%20extort%

20residents (last visited March 15, 2024) ........... 13

Ephesians 5:31 (New American Bible) ....................... 6

Fr. Thomas Betz, Catholic Social Teaching

on Immigration and the Movement of

Peoples, USCCB,

https://tinyurl.com/yxlerkxz ................................ 15

Genesis 2:24 (New American Bible) ............................ 6

v

Letter from President John Adams to Abigail

Adams (Mar. 28, 1783),

https://founders.archives.gov/documents/

Adams/04-05-02-0061 ............................................ 4

Letter from President Thomas Jefferson to

William Clarke (Sept. 10, 1809),

https://founders.archives.gov/documents/J

efferson/03-01-02-0407 ........................................... 4

Matthew 19:6 (New American Bible) .......................... 2

Modern Catholic Social Teaching on

Immigration: Notable Quotes, CLINIC

(June 18, 2015),

https://tinyurl.com/yc2bax3u ................................. 7

Nancy F. Cott, Public Vows: A History of

Marriage and the Nation (2002) ............................ 4

Pontifical Council for Justice and Peace,

Compendium of the Social Doctrine of the

Church (2005) ............................................... 2, 6, 10

Pope Benedict XVI, Message of His Holiness

Pope Benedict XVI for the World Day of

Migrants and Refugees, Vatican (Oct. 12,

2012), https://tinyurl.com/y6jgu8un .................... 15

Pope Francis, Fratelli Tutti, Vatican (Oct. 3,

2020), https://tinyurl.com/36zdptzj ................. 3, 10

Pope Saint John Paul II, Message of the Holy

Father John Paul II for the 90th World

Day of Migrants and Refugees, Vatican

(Dec. 15, 2003),

https://tinyurl.com/yy3nzphd............................... 14

vi

Pope Saint John Paul II, Encyclical Letter

Centesimus Annus § 13 (May 1, 1991),

https://www.vatican.va/content/john-paulii/en/encyclicals/documents/hf_jpii_enc_01051991_centesimus-annus.html ............ 6

S. Rep. No. 82-1137 (1952) .......................................... 7

U.S. Bishops’ Migration Chairman Responds

to New Family Reunification Programs,

USCCB Office of Public Affairs

(July 10, 2023),

https://www.usccb.org/news/2023/usbishops-migration-chairman-respondsnew-family-reunification-programs ...................... 7

1

INTEREST OF AMICI CURIAE1

Amici are motivated by the teaching of the

Catholic Church, which include a strong interest in

ensuring that federal immigration laws are

interpreted and implemented in a manner that

preserves and promotes marital and family unity, to

the benefit of American families, communities, and

society at large.

The United States Conference of Catholic

Bishops. The United States Conference of Catholic

Bishops (the “Conference” or “USCCB”) is a nonprofit

corporation whose members are the active Cardinals,

Archbishops, and Bishops of the United States and

the U.S. Virgin Islands. On behalf of the Christian

faithful, the USCCB advocates and promotes the

pastoral teaching of the Church in a broad range of

areas, from the free expression of ideas and the rights

of religious organizations and their adherents, to fair

employment and equal opportunity for the

underprivileged, protection of the rights of parents

and children, the value of human life from conception

to natural death, and care for immigrants and

refugees. When lawsuits touch upon important tenets

of Catholic teaching, the Conference has filed amicus

curiae briefs to assert its view, most often in this

Court. In so doing, the Conference seeks to further

the common good for the benefit of all.

1 Amici state that this brief was not authored in whole or in

part by counsel for any party, and that no person or entity other

than amici, their members, or its counsel made a monetary

contribution intended to fund the preparation or submission of

this brief. Counsel of record for the parties received timely notice

of amici’s intent to file this brief.

2

The Catholic Legal Immigration Network,

Inc. The Catholic Legal Immigration Network, Inc.

(“CLINIC”), is the Nation’s largest network of

nonprofit immigration legal services providers, with

nearly 450 affiliates in 49 states. CLINIC conducts

systemic advocacy related to due process and family

unity based on information gathered from its network

and partners, and provides legal training and support

on issues related to immigration.

SUMMARY OF ARGUMENT

Since our Nation’s founding, the right to marry

and to form a family have been fundamental to

American society. These rights—which include the

right of individuals to cohabitate, procreate, raise

children, and decide their place of residence with their

immediate family—predate and are encompassed by

the Fifth and Fourteenth Amendments’ Due Process

Clauses.

These liberty interests are woven throughout

Catholic teaching. “[T]he marriage covenant . . . is

found throughout salvation history.”

Pontifical

Council for Justice and Peace, Compendium of the

Social Doctrine of the Church ¶ 219 (2005)

(“Compendium”). As the Bible teaches, “Therefore,

what God has joined together, no human being must

separate.” Matthew 19:6 (New American Bible). The

importance of marital and familial unity, as

emphasized by the Church, means that all people

have “the right to live in a united family,”

Compendium ¶ 155 (emphasis omitted), and “the

right to migrate to support themselves and their

3

families.”2

A U.S. citizen’s right to marital and familial unity

does not depend on whether that citizen has a

domestic family or an immigrant family. For a U.S.

citizen like Mrs. Muñoz—who has lived apart from

her spouse for over eight years of marriage—the

adjudication of a spousal visa implicates the

fundamental liberty interest in marriage and family,

and is sufficient to trigger procedural due process. In

particular, a visa denial compels couples to make

difficult decisions about their marital and familial

home—decisions that may fracture the most intimate

parts of their lives. For many, the enjoyment of a

fundamental right (marriage and raising a family)

relies on the sacrifice of another fundamental right

(residing in one’s country of citizenship). For these

reasons, Pope Francis beseeches nations “to respect

the right of all individuals to find a place that meets

their basic needs and those of their families, and

where they can find personal fulfillment.”3

Any meaningful protection of marriage must

therefore encompass a U.S. citizen’s right to seek to

establish a home with their noncitizen spouse and

raise children in the United States. To protect marital

and familial rights that are central to the Church’s

teaching and this Nation’s history and tradition,

ordered liberty requires that this Court recognize a

U.S. citizen’s liberty interest in the adjudication of a

2 Catholic Bishops of Mex. & the U.S., Strangers No Longer:

Together on the Journey of Hope, USCCB ¶ 35 (Jan. 22, 2003)

(“Strangers No Longer”), https://tinyurl.com/3ca3v3ta.

3 Pope Francis, Fratelli Tutti, Vatican ¶ 129 (Oct. 3, 2020),

https://tinyurl.com/36zdptzj.

4

spousal visa.

ARGUMENT

I.

THE ADJUDICATION OF A SPOUSAL VISA

APPLICATION IMPLICATES A U.S. CITIZENSPOUSE’S PROTECTED LIBERTY INTEREST IN

MARRIAGE AND FAMILY UNITY.

A U.S. citizen’s liberty interest in marriage and

family is grounded in America’s history and tradition.

That liberty interest, which is emphasized in the

Church’s teaching, is implicated when the

Government denies a spousal visa application.

A. The Sanctity Of Marriage And Family Is

A Core Feature Of This Nation’s History

And Tradition, And Reiterated In

Catholic Teaching.

Anglo-American law has long considered

marriage as a union of identities, whereby married

couples become “one person in law.” 1 William

Blackstone, Commentaries 430. For “Revolutionaryera Americans,” marital “unity” was the “most

important” aspect of marriage, and cohabitation sat at

its core. Nancy F. Cott, Public Vows: A History of

Marriage and the Nation 10 (2002). Our Founding

Fathers recognized marital and familial unity as

integral to the Nation’s social welfare. See Letter from

President Thomas Jefferson to William Clarke (Sept.

10, 1809), https://founders.archives.gov/documents/

Jefferson/03-01-02-0407 (“[B]y a law of our nature we

cannot be happy without the endearing connections of

a family[.]”); Letter from President John Adams to

Abigail

Adams

(Mar.

28,

1783),

https://founders.archives.gov/documents/Adams/04-

5

05-02-0061 (“I cannot bear the Thought of living

longer Separate [sic] from [my family].”). Because

“the American derives from his own home that love of

order which he afterwards carries with him into

public affairs,” Alexis de Tocqueville, Democracy in

America 285 (Henry Reeve trans., The Lawbook

Exchange, Ltd. 2003) (1838), the family has long been

recognized as the backbone of American society.

The centrality of marriage and family to American

society has long been recognized by this Court.

“Marriage and procreation are [so] fundamental to the

very existence and survival of the [human] race,”

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535,

541 (1942), that the institution of family is

“established beyond debate as an enduring American

tradition,” Wisconsin v. Yoder, 406 U.S. 205, 232

(1972); see also Ginsberg v. New York, 390 U.S. 629,

639 (1968) (family is “basic in the structure of our

society”). “The integrity of the family unit has found

protection in” our founding document, the

Constitution itself. Stanley v. Illinois, 405 U.S. 645,

651 (1972). The “Constitution protects the sanctity of

the family precisely because the institution of the

family is deeply rooted in this Nation’s history and

tradition.” Moore v. East Cleveland, 431 U.S. 494, 503

(1977). For these reasons, the Court has long

recognized that the Fifth and Fourteenth

Amendments’ Due Process Clauses protect, as a

liberty interest, “freedom of personal choice in matters

of marriage and family life.” Cleveland Bd. of Educ.

v. LaFleur, 414 U.S. 632, 639–40 (1974).

Across millennia, the Catholic Church has

reiterated the importance of marriage and family.

Dating back to Biblical times, married couples have

6

left their childhood homes to “be joined” joyfully with

one another as “one flesh.” Ephesians 5:31 (New

American Bible); see also Genesis 2:24 (New American

Bible) (“That is why a man leaves his father and

mother and clings to his wife, and the two of them

become one body.”). “[T]he marriage covenant . . . is

found throughout salvation history.” Compendium

¶ 219. “Notwithstanding the numerous changes that

have taken place in the course of the centuries in the

various cultures and in different social structures and

spiritual attitudes, in every culture there exists a

certain sense of the dignity of the marriage

union . . . .” Id. ¶ 216. For good reason. “The family

is the original cell of social life,” Catechism of the

Catholic Church § 2207, at 533 (2d ed. 2019)

(emphasis omitted) (“Catechism”), and “family has its

foundation in the free choice of . . . spouses to unite

themselves in marriage,” Compendium ¶ 215; see also

Pope Saint John Paul II, Encyclical Letter

Centesimus

Annus

§ 13

(May

1,

1991)

https://www.vatican.va/content/john-paulii/en/encyclicals/documents/hf_jp-ii_enc_

01051991_centesimus-annus.html (noting that the

“the family . . . stem[s] from human nature itself and

[has its] own autonomy”).

Our Nation’s immigration laws recognize that

marriage has always been about two people building

a life and a family home together. Since Congress

began regulating immigration more than a century

ago, “family unification [has been] the cornerstone of

American immigration law and policy.” 136 Cong.

Rec. 36838 (daily ed. Oct. 27, 1990); see, e.g., Act of

March 3, 1903, Pub. L. No. 162, §§ 2, 37, 32 Stat. 1213,

1214, 1221 (excluding from entry certain “classes of

7

aliens,” but creating a limited exception for the wife or

minor children of a U.S. citizen or permanent

resident); S. Rep. No. 82-1137, at 16 (1952) (noting

“the well-established policy of maintaining the family

unit wherever possible” in the immigration context).

As Bishop Mark J. Seitz recently explained, “family

unity and reunification . . . are foundational to the

U.S. immigration system and central tenets of

Catholic social teaching.”4

B. The Right To Marry, Which Includes

Establishing A Home And Raising A

Family, Is Implicated When The

Government Denies A Visa To A U.S.

Citizen’s Spouse And That Right

Demands

Adequate

Procedural

Safeguards.

A U.S. citizen has a fundamental liberty interest

in marital unity and familial rights that is implicated

by a decision under immigration law to deny a spousal

visa. As this Court has made clear, the constitutional

right to marry encompasses the rights to cohabitate,

Loving v. Virginia, 388 U.S. 1, 4, 11–12 (1967),

procreate, Skinner, 316 U.S. at 541, “establish a home

and bring up children,” Meyer v. Nebraska, 262 U.S.

390, 399 (1923), and decide one’s place of residence

with their immediate family, Moore, 431 U.S. at 504–

4 U.S. Bishops’ Migration Chairman Responds to New Family

Reunification Programs, USCCB Office of Public Affairs (July 10,

2023) (cleaned up), https://www.usccb.org/news/2023/us-bishopsmigration-chairman-responds-new-family-reunificationprograms; see generally Modern Catholic Social Teaching on

Immigration: Notable Quotes, CLINIC (June 18, 2015),

https://tinyurl.com/yc2bax3u (highlighting teaching from as

early as 1891).

8

06. The U.S. citizen’s liberty interest in marriage and

family is not diminished because that citizen has an

immigrant family. See Zablocki v. Redhail, 434 U.S.

374, 384 (1978) (“[T]he right to marry is of

fundamental importance for all individuals.”

(emphasis added)); cf. Kleindienst v. Mandel, 408 U.S.

753, 764–65 (1972) (holding that the First

Amendment protects the right to receive information

from a noncitizen speaker). Neither does a U.S.

citizen’s right to reside in his or her country of

citizenship dissipate because he or she is married to a

noncitizen. Cf. Ng Fung Ho v. White, 259 U.S. 276,

284–85 (1922) (noting that a citizen is deprived of

liberty and “all that makes life worth living” when

forced to leave the country). Meaningful protection of

such a core liberty interest can only be ensured

through adequate procedural safeguards.

1.

The Adjudication Of A Spousal Visa

For The Noncitizen Spouse Of A

U.S.

Citizen

Implicates

A

Fundamental Liberty Interest.

Any meaningful protection of marriage must

therefore encompass a U.S. citizen’s right to seek to

“establish a home [with a noncitizen spouse] and bring

up children” in this country. Meyer, 262 U.S. at 399.

This necessarily means that a U.S. citizen has a

liberty interest in a nonarbitrary spousal visa

adjudication,5 a governmental decision that impacts

marital unity and “choices concerning family living

5 This Court did not hold otherwise in Din v. Kerry, 718 F.3d

856, 863 (2013). There, the Court rejected a U.S. citizen’s

constitutional challenge regarding a spousal visa, but no

rationale commanded the support of a majority of the Court.

9

arrangements.” Moore, 431 U.S. at 499; see also

Loving, 388 U.S. at 4 (striking law prohibiting “any

white person and colored person” from “cohabiting”).

Accordingly, marital and familial rights permeate

our immigration laws, which have long promoted U.S.

citizens’ strong interests in residing in this country

with their noncitizen spouses. See supra Arg. 1.A.

Family unity is frequently the reason that U.S.

citizens like Mrs. Muñoz—who has had to live away

from her husband for eight of the fourteen years of her

marriage—file an immediate-family petition for their

spouse. See 8 U.S.C. § 1183a(a)(1)(B) (applying only

to alien-spouse visa applications).

Congress

recognized as much when it established special

procedures for obtaining immediate-family visas, see,

e.g., 8 U.S.C. §§ 1151(a)(1), 1153(a) (providing

preferences for family sponsored immigrants), and

exempted those visas from numeric caps and

restrictions common to other forms of visas, see id.

§ 1151(b)(2)(A)(i) (exempting “immediate relatives,”

including children and spouses, of U.S. citizens from

numerical quotas). Every year, well over 100,000

noncitizens immigrate to the United States through

marriage to a U.S. citizen.6

The Church teaches that marital and familial

unity is a unified concept. As Pope Saint John Paul II

explained, all people have “the right to live in a united

family and in a moral environment conducive to the

growth of [their] child’s personality” and “the right

6 See

2022

Yearbook

Of

Immigration

Statistics,

https://www.dhs.gov/sites/default/files/202402/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pd

f (last visited March 15, 2024).

10

freely to establish a family, to have and to rear

children.” Compendium ¶ 155 (emphasis omitted).

“The procreative meaning of marriage involves not

only the conception of children, but also their

upbringing and education, including spiritual

formation in the life of love.”7 The “innate and

permanent characteristics” of marriage “must be

safeguarded against any attempt to undermine” its

covenant. Id. ¶ 216 (emphasis omitted).

As a result, the Church teaches that all people

“have the right to migrate to support themselves and

their families,” and instructs that nations “provide

ways to accommodate this right.” Strangers No

Longer ¶ 35.8 Pope Francis beseeches nations “to

respect the right of all individuals to find a place that

meets their basic needs and those of their families,

and where they can find personal fulfillment.”9 In

enacting immigration policies, the Church “call[s]

upon . . . lay leaders to ensure support for migrant and

immigrant families,” id. ¶ 42, and implores that

“[s]pecial encouragement should be given to migrants

to be faithful to their spouses and families and to

thereby live out the sacrament of marriage,” id. ¶ 46.

Recognizing a U.S. citizen’s liberty interest in a

spousal visa adjudication thus safeguards the

marriage covenant.

7 A Pastoral Letter of the United States Conference of Catholic

Bishops, Marriage: Love and Life in the Divine Plan (Nov. 17,

2009),

https://www.usccb.org/resources/pastoral-lettermarriage-love-and-life-in-the-divine-plan.pdf.

8 See also Catechism ¶ 2241.

9 Pope Francis, Fratelli Tutti, Vatican (Oct. 3, 2020),

https://tinyurl.com/36zdptzj.

11

The denial of a visa to a U.S. citizen’s noncitizen

spouse impacts the citizen’s liberty interest in

marriage because it conditions enjoyment of one

fundamental right (marriage) on the sacrifice of

another (residing in one’s country of citizenship). U.S.

citizens like Mrs. Muñoz have a due process interest

in not being arbitrarily forced to sacrifice one right as

a condition for exercising another. That a visa denial

does not nullify a marriage is of no import. This Court

has repeatedly struck down, as a direct burden on the

right to marriage, state action that intrudes far into

the sacred confines of a marital relationship. See, e.g.,

Cleveland Bd. of Educ., 414 U.S. at 639–40

(“restrictive maternity leave regulations” posed too

“heavy [a] burden on the exercise” of “freedom of

personal choice in matters of marriage and family

life”); Turner v. Safley, 482 U.S. 78, 99 (1987) (holding

that state regulation prohibiting prisoners from

marrying without the prison superintendent’s

permission

impermissibly

burdened

the

constitutional right to marry); Boddie v. Connecticut,

401 U.S. 371, 374, 383 (1971) (“prohibit[ing] a State

from denying, solely because of inability to pay, access

to its courts to individuals who seek judicial

dissolution of their marriages” because it violated

their Due Process right to adjust “fundamental

human relationship”).

A couple’s option to live together outside the

United States does not extinguish a U.S. citizen’s

liberty interest in establishing her marital home in

the United States. See Mandel, 408 U.S. at 765

(declining to hold that the “existence of other

alternatives

extinguishes

altogether

any

constitutional interest . . . in this particular form of

12

access”); see also Jones v. Helms, 452 U.S. 412, 417–

18 (1981) (“It is, of course, well settled that the right

of a United States citizen to . . . take up residence in

the State of his choice is protected by the Federal

Constitution.”); Trop v. Dulles, 356 U.S. 86, 101 (1958)

(explaining that stripping a citizen of his fundamental

right of citizenship at home, and forcing him to face

the uncertainty of finding it abroad, was “a form of

punishment more primitive than torture”). As the

Church has emphasized, “persons should have the

opportunity to remain in their homeland to support

and to find full lives for themselves and their

families.” Strangers No Longer ¶ 59.

2.

The Ninth Circuit’s Framework

Appropriately

Safeguards

The

Fundamental Liberty Interest In

Marital And Familial Unity That Is

Burdened

By

Unreviewable

Spousal Visa Denials.

Insulating spousal visa denials from judicial

review impermissibly burdens the core liberty interest

in marital and familial unity and has severe practical

harms. U.S. citizens ordinarily have strong personal

and family ties to the United States, making

relocation to another country daunting. For a U.S.

citizen, like Mrs. Muñoz, whose spouse hails from a

developing nation, relocation would mean having to

forgo an American education and community for their

U.S. citizen children in order to live with their spouse,

or being forced to preserve these opportunities for

their children on the condition of giving up the right

to “establish a home” and “bring up children” with

their spouse. Meyer, 262 U.S. at 399; see also Moore,

431 U.S. at 511 (Brennan, J., concurring) (“[T]he role

13

of the family in raising and training successive

generations of the species makes it more important

. . . than any other social or legal institution.”).

This conundrum is particularly challenging for

Mrs. Muñoz, whose husband is a citizen of El

Salvador, where widespread citizen insecurity and

human rights concerns are prevalent.10 For others,

relocation is impractical or even impossible. Many

U.S. citizens married to noncitizens have children,

parents, or other family members residing in this

country for whom they are primary caregivers and

whom they cannot abandon in order to move overseas.

In fact, at the time of the visa denial, Mrs. Muñoz was

the caregiver for her mother. The Church recognizes

that the U.S. citizen’s dilemma may yield an

“unacceptable choice” and “difficult decision: either

honor their moral commitment to family and [have

the noncitizen spouse] migrate to the United States

without proper documentation, or . . . face indefinite

separation from loved ones.”11 Strangers No Longer

¶ 65. Neither option safeguards the fundamental

right to marriage or family. As this Court recognized,

a parent’s “fundamental constitutional interest[] . . .

10 El Salvador: Events of 2022, Human Rights Watch, available

at https://www.hrw.org/world-report/2023/country-chapters/elsalvador#:~:text=Authorities%20committed%20widespread%20

human%20rights,some%20neighborhoods%20and%20extort%20

residents (last visited March 15, 2024).

11 Indeed, had Mrs. Muñoz and her noncitizen spouse simply

remained in the United States, her noncitizen spouse could not

have been removed without removal proceedings, where the

couple would have had an opportunity to confront any proffered

evidence of inadmissibility. See 8 U.S.C. § 1229a(b)(4)(B);

Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903).

14

in a familial relationship” is implicated by

immigration laws that “make[ ] it more difficult for . . .

children and their natural [parents] to be reunited in

this country.” Fiallo v. Bell, 430 U.S. 787, 794, 795

n.6, 798 (1977).

Whereas the Government’s position erodes the

commitment to marital and family unity enshrined in

the Constitution, the Ninth Circuit’s framework—

which recognizes a U.S. citizen’s liberty interest in a

spousal visa adjudication—provides families with the

opportunity to seek to remain with their loved ones in

the United States. Pope Saint John Paul II explained

that governments must “regulate the migratory flows

with full respect for the dignity of the persons and for

their families’ needs.”12 This is all the more reason

why a U.S. citizen should be provided with an

adequate explanation when a spousal visa is denied.

Before the Government forces married couples to live

apart, the U.S. citizen is entitled to procedural due

process to ensure the visa application was not

arbitrarily denied. Otherwise, families may be left

guessing, unable to vindicate a liberty interest,

whether through the presentation of additional

evidence or initiation of a new petition. The liberty

interest in marriage and family is implicated when a

U.S. citizen seeks to cohabitate, live, and build a home

with his or her noncitizen spouse and children in this

country. To protect these crucial marital and familial

rights, ordered liberty requires that this Court affirm

the U.S. citizen’s liberty interest in a nonarbitrary

12 Pope Saint John Paul II, Message of the Holy Father John

Paul II for the 90th World Day of Migrants and Refugees,

Vatican (Dec. 15, 2003), https://tinyurl.com/yy3nzphd.

15

spousal visa adjudication.

II. THE CATHOLIC CHURCH’S RESPECT FOR THE

RIGHT OF THE GOVERNMENT TO DECIDE WHO

REMAINS IN THE COUNTRY DOES NOT

OUTWEIGH THE IMPORTANCE OF KEEPING

FAMILIES TOGETHER.

The Church recognizes the right of sovereign

nations to regulate their borders, “make the exercise

of the right to immigrate subject to various juridical

conditions,” and control immigration in furtherance of

the common good.

Catechism ¶ 2241. But the

Catholic Church’s respect for the right of the

Government to decide who remains in the country is

carefully balanced with the importance of keeping

families together.

“A country’s regulation of borders and control of

immigration must be governed by concern for all

people and by mercy and justice.” Fr. Thomas Betz,

Catholic Social Teaching on Immigration and the

Movement

of

Peoples,

USCCB,

https://tinyurl.com/yxlerkxz; see also Pope Benedict

XVI, Message of His Holiness Pope Benedict XVI for

the World Day of Migrants and Refugees, Vatican (Oct.

12, 2012), https://tinyurl.com/y6jgu8un (explaining

that although “every state has the right to regulate

migration and to enact policies dictated by the general

requirements of the common good,” states must

always “safeguard[] respect for the dignity of each

human person”). “A merciful immigration policy will

not force married couples or children to live separated

from their families for long periods.” Catholic Social

Teaching on Immigration. Rather, Catholic principles

dictate that “the right to family reunification” remain

16

at the forefront of immigration policies and

regulations. Strangers No Longer ¶ 77 n.20. The

Church’s commitment to protecting family unity and

dignity, along with the Church’s “long and rich

tradition in defending the right to migrate,” demands

that it take a strong position in favor of a U.S. citizen’s

liberty interest in the adjudication of a spousal visa.

Id. ¶¶ 28, 66 n.17 (“The bishops in the United States

have consistently supported reform of the family

reunification visa system.”).

CONCLUSION

For the reasons stated above and in Respondent’s

brief, the Court should affirm the Ninth Circuit’s

judgment.

Respectfully submitted,

SAMUEL ECKMAN

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue,

Los Angeles, CA 90071

(213) 229-7204

AMER S. AHMED

Counsel of Record

RICHARD W. MARK

VANESSA AJAGU

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

(212) 351-2427

aahmed@gibsondunn.com

Counsel for Amici Curiae

March 28, 2024