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

d

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 AMICI CURIAE AMERICAN CIVIL LIBERTIES

UNION, ACLU OF SOUTHERN CALIFORNIA, ACLU OF

NORTHERN CALIFORNIA, AND ACLU OF SAN DIEGO AND

IMPERIAL COUNTIES IN SUPPORT OF RESPONDENT

Cecillia D. Wang

Cody Wofsy

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street,

7th Floor

San Francisco, CA 94104

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

Daniel A. Galindo

Counsel of Record

Omar C. Jadwat

Judy Rabinovitz

Lee Gelernt

Sidra Mahfooz

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(646) 905-8907

dgalindo@aclu.org

Counsel for Amici Curiae American Civil Liberties Union,

ACLU of Southern California, ACLU of Northern California,

and ACLU of San Diego and Imperial Counties

(Counsel continued on inside cover)

Efaon Cobb

ACLU FOUNDATION OF SAN

DIEGO & IMPERIAL COUNTIES

P.O. Box 87131

San Diego, CA 92138

Eva L. Bitrán

ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

1313 West 8th Street

Los Angeles, CA 90017

Sean Riordan

ACLU FOUNDATION OF

NORTHERN CALIFORNIA

39 Drumm Street

San Francisco, CA 94111

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

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

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

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

I.

DENYING A VISA TO MUÑOZ’S

NONCITIZEN SPOUSE BURDENS

MUÑOZ’S CONSTITUTIONAL

INTEREST IN HER MARRIAGE................. 8

A.

The Court and Congress have

long recognized that the right to

marry includes a right to live

with one’s spouse ................................... 8

B.

Muñoz does not assert a right to

“compel” entry, but only a right to

a fair process ........................................ 13

C.

Muñoz’s liberty interest in her

marriage is impeded if the

government conditions her

enjoyment of that right on the

abandonment of another

constitutional right.............................. 15

D.

Muñoz is directly affected by the

visa denial ............................................ 18

i

II.

JUDICIAL REVIEW OF VISA

DENIALS PROVIDES AN

IMPORTANT BACKSTOP FOR U.S.

CITIZENS’ RIGHTS .................................... 23

CONCLUSION.......................................................... 26

ii

TABLE OF AUTHORITIES

Page

CASES

Agosto v. INS,

436 U.S. 748 (1978) ......................................... 8, 16

Allende v. Shultz,

845 F.2d 1111 (1st Cir. 1988) .............................. 24

Allende v. Shultz,

No. 83–3984–C, 1987 WL 9764

(D. Mass. Mar. 31, 1987) ..................................... 24

American Academy of Religion v. Napolitano,

573 F.3d 115 (2d Cir. 2009) ................................. 24

Aptheker v. Secretary of State,

378 U.S. 500 (1964) ............................................. 16

Boddie v. Connecticut,

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

City of New York v. Baker,

878 F.2d 507 (D.C. Cir. 1989) ............................. 24

Cleveland Board of Education v. LaFleur,

414 U.S. 632 (1974) ......................................... 9, 11

Galvan v. Press,

347 U.S. 522 (1954) ............................................. 14

Griswold v. Connecticut,

381 U.S. 479 (1965) ......................................... 9, 11

iii

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) ............................................. 25

Hazama v. Tillerson,

851 F.3d 706 (7th Cir. 2017) ............................... 24

Kerry v. Din,

576 U.S. 86 (2015) ......................... 2, 11, 15, 17, 23

Kleindienst v. Mandel,

408 U.S. 753 (1972) ........2, 6, 13, 14, 15, 18, 19, 23

Loving v. Virginia,

388 U.S. 1 (1967) ....................................... 9, 10, 17

Mandoli v. Acheson,

344 U.S. 133 (1952) ............................................. 16

Martinez v. California,

444 U.S. 277 (1980) ............................................. 22

Mathews v. Eldridge,

424 U.S. 319 (1976) ............................................. 24

Meyer v. Nebraska,

262 U.S. 390 (1923) ....................................... 5, 6, 9

Moore v. City of East Cleveland, Ohio,

431 U.S. 494 (1977) ......................................... 9, 17

Ng Fung Ho v. White,

259 U.S. 276 (1922) ............................................. 16

O’Bannon v. Town Court Nursing Center,

447 U.S. 773 (1980) ....................................... 19, 22

Obergefell v. Hodges,

576 U.S. 644 (2015) ............................... 6, 9, 12, 13

iv

Simmons v. United States,

390 U.S. 377 (1968) ............................................. 16

Trump v. Hawai‘i,

585 U.S. 667 (2018) ............................... 2, 3, 13, 23

Turner v. Safley,

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

United States v. Robel,

389 U.S. 258 (1967) ............................................. 16

United States v. Windsor,

570 U.S. 744 (2013) ............................................. 12

Zablocki v. Redhail,

434 U.S. 374 (1978) ......................................... 9, 13

ZigZag, LLC v. Kerry,

No. 14–14118–DJC, 2015 WL 1061503

(D. Mass. Mar. 10, 2015) ..................................... 23

STATUTES & REGULATIONS

8 C.F.R. § 103.2(b)(6) ................................................ 21

8 U.S.C. § 1151(b) ..................................................... 10

8 U.S.C. § 1154(a)(1)(A)(i) ........................................ 21

8 U.S.C. § 1157(c)(2)(A) ............................................ 21

8 U.S.C. § 1158(b)(3)(A) ............................................ 21

8 U.S.C. § 1182(a) ......................................... 21, 22, 24

8 U.S.C. § 1182(d) ..................................................... 21

v

8 U.S.C. § 1183a(a)(1) ............................................... 21

8 U.S.C. § 1186a(1) ................................................... 22

8 U.S.C. § 1201(a)(1)(A) ............................................ 20

8 U.S.C. § 1430 .................................................... 11, 22

LEGISLATIVE MATERIALS

136 Cong. Rec. H12358-03 ........................................ 10

Act of Feb. 10, 1855,

§ 2, 10 Stat. 604 ................................................... 10

Act of July 11, 1932,

Pub. L. No. 277, § 1(a), 471 Stat. 656 ................. 10

Act of Mar. 3, 1903,

Pub. L. No. 162, §§ 2, 37, 32 Stat. 1213 .............. 10

Act of May 26, 1924,

Pub. L. No. 139, § 4(a), 43 Stat. 153 ................... 10

H.R. Rep. No. 101-723 (1990) ................................... 10

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

1952 U.S.C.C.A.N. 1653 ...................................... 10

OTHER AUTHORITIES

Adjudicator’s Field Manual, ch. 21, § 21.3............... 11

Travel Advisories, U.S. Department of State,

https://travel.state.gov/content/travel/en/

traveladvisories/traveladvisories.html/

(last visited Mar. 28, 2024) ................................. 18

vi

U.S. Brief,

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

(No. 71-46), 1972 WL 135747 .............................. 14

U.S. Reply Brief,

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

(No. 71-46), 1972 WL 135748. ............................. 14

vii

INTEREST OF AMICI 1

The American Civil Liberties Union (“ACLU”)

is a nationwide, nonprofit, nonpartisan organization

with nearly two million members and supporters

dedicated to the principles of liberty and equality

embodied in our nation’s Constitution and civil rights

laws. The ACLU, through its Immigrants’ Rights

Project and state affiliates, engages in a nationwide

program of litigation, advocacy, and public education

to enforce and protect the constitutional and civil

rights of noncitizens.

The ACLU of Southern

California, ACLU of Northern California, and ACLU

of San Diego and Imperial Counties are affiliates of

the ACLU.

Amici have extensive experience litigating

cases concerning both constitutional protections for

marriage and constitutional safeguards in the U.S.

immigration system. Our cases before this Court as

counsel include Obergefell v. Hodges, 576 U.S. 644

(2015) and Loving v. Virginia, 388 U.S. 1 (1967), and

as amici include Kerry v. Din, 576 U.S. 86 (2015) and

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

INTRODUCTION

Amici address the first question presented:

whether a U.S. citizen has a constitutional interest

that is infringed by the government denying her

noncitizen spouse a visa. The answer must be yes.

1 No party or counsel for a party authored this brief in whole or

in part, and no one other than amici, their members, and their

counsel have paid for the preparation or submission of this brief.

1

The Court has long recognized that marriage includes

a constitutionally protected liberty interest of spouses

to live together and raise a family. And in 1972, the

Court held that a citizen’s First Amendment interest

in meeting face-to-face with a foreign national at an

academic conference in the United States triggered

due process protections and required the government

to provide a facially legitimate and bona fide reason

for a visa denial that interfered with that interest.

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

interest in meeting a person at an academic

conference triggers that requirement, surely the

interest of a citizen who seeks to live together with the

person to whom they have committed to spend their

entire life deserves at least as much.

Contravening these precedents on due process,

the government asks the Court to eliminate all

judicial review here—even limited review under

Mandel—contending that a citizen has no liberty

interest in whether she can live with her spouse in her

home country, and that denial of a visa at most only

affects that right “incidentally.” The Court should

reject that request. Nine years ago, when this Court

considered substantially similar issues in Kerry v.

Din, only three Justices adopted the position the

government urges. Six undertook a due process

analysis, either under Mandel or a more exacting

standard. 576 U.S. 86, 102-105 (2015) (Kennedy, J.

and Alito, J., concurring); see id. at 112 (Breyer, J.,

dissenting, with Ginsburg, Kagan, and Sotomayor,

JJ.). Similarly, in Trump v. Hawai‘i, 585 U.S. 667,

703 (2018), the Court explained that some “judicial

2

inquiry” is appropriate “when the denial of a visa

allegedly burdens the constitutional rights of a U. S.

citizen” and went on to address the citizen plaintiffs’

Establishment Clause claim at length. See id. at 699703.

And lower courts have followed suit. See

Part II, infra.

The government’s position that U.S. citizens

have no constitutional interest whatsoever in a

decision to exclude their spouses from the country is

contrary to the constitutional protections afforded to

marriage, and unnecessary to safeguard the

government’s interests in the visa process. The Court

should start its analysis by recognizing that a U.S.

citizen who petitions for a visa for her noncitizen

spouse has a liberty interest that is implicated by the

government’s denial of the visa, and that due process

requires some form of judicial review.

SUMMARY OF ARGUMENT

Mandel has long guided federal courts’ review

of the government’s denial of visas, and that level of

protection should be the minimum afforded here.

The Court should reject the government’s

suggestion, contrary to Mandel, that U.S. citizens

have no constitutional liberty interest whatsoever in

the admission of their spouse and life partner. The

long-recognized liberty interest in marriage includes

an interest in choosing to live together as a family.

The government’s suggestion that Muñoz’s interests

are not implicated because she can leave her home

country and live overseas with her husband does not

3

comport with this Court’s due process precedents.

And Muñoz is not merely incidentally affected by the

decision. Congress has expressly provided that, as a

U.S. citizen married to a foreign national, she has the

right to file a petition for her noncitizen husband to

seek a visa to live with her. Numerous statutes and

regulations make clear that the U.S.-citizen spouse

plays a critical part throughout the application

process, and rightly so, as Congress recognized that

the resolution directly and substantially affects her

life.

The government’s contention that Muñoz’s

liberty interest is not implicated because its denial of

her husband’s visa only “incidentally” or “indirectly”

affects any interest in marriage is without merit. The

exact same argument could be made about the U.S.citizen scholars who petitioned for a visa for Mandel.

The government denied Mandel a visa waiver based

on his failure to conform to restrictions on a prior visa;

its reason had nothing to do with the scholar plaintiffs’

speech and association rights. Yet the Court held that

because the denial had the effect of interfering with

their First Amendment right to meet with Mandel face

to face, the scholars’ rights were implicated and they

were entitled to be heard. Just as the U.S. citizens who

invited Mandel to meet in the United States had a

constitutional interest that triggered due process and

judicial review, Muñoz has at least as strong a

constitutional interest triggering judicial review. In

both cases, the government’s reason for denying the

visa was not aimed at interfering with the

relationship between the U.S.-citizen petitioner and

4

the noncitizen seeking the visa; nonetheless, the

Court rejected the government’s effort to erase the

liberty interest from the analysis in Mandel, and it

should do so here.

Muñoz’s constitutional liberty interest does not

mean, of course, that she can compel the government

to issue her husband’s visa—no more than the

scholars in Mandel could compel the admission of the

economist they invited to their conference. Mandel

recognized the government’s substantial interest in

controlling its borders and the discretionary nature of

the waiver at issue, and therefore required only a

facially legitimate and bona fide reason in that case.

Certainly no less than that minimal requirement

should apply here.

The government proffers no sound reason to

depart from precedent and deny judicial review here.

The sort of inquiry undertaken by the courts below

imposes little burden on the government, whose

actions here deeply affect the constitutional rights of

a U.S. citizen. The government’s alternative—that

U.S. citizens’ lives and families can be upended by a

consular official for any reason or no reason at all, and

with no judicial review—does not comport with

due process.

ARGUMENT

The liberty interest in marriage has long been

understood to encompass the right to choose to live

with one’s family, and in doing so to “establish a

home.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923);

5

see also Obergefell v. Hodges, 576 U.S. 644, 668 (2015)

(quoting Meyer for this proposition). Congress itself

has long recognized this interest by permitting U.S.

citizens to petition for their spouses to be eligible for

immigrant visas, which would allow the citizen to live

with her spouse in her home country. To protect this

right, Sandra Muñoz petitioned for her noncitizen

spouse to be eligible to apply for an immigrant visa.

When his visa was denied notwithstanding her

approved petition, she asked for the reason. This

Court has long required the government to provide

such a reason to a U.S. citizen whose constitutional

interests are implicated by a visa denial. Because

Muñoz had at least as strong a constitutional interest

in the admission of her life partner as the academics

who sought to meet Mandel at a conference, she

should receive protections that are at least as strong

as those afforded to the professors in Mandel.

In Mandel, U.S. citizens who had invited a

Belgian Marxist economist to speak at academic

events in the U.S. challenged the denial of his visa,

arguing that the denial infringed their First

Amendment rights.

408 U.S. at 754-56.

The

government had denied Mandel a waiver of his ground

of inadmissibility, citing his alleged violations of the

terms of prior visas. Id. at 757-59. Then, as now, the

government claimed that no constitutional right was

implicated at all, in light of the government’s

sovereign power to control admission decisions, id. at

764-66; that any harm to U.S. citizens was merely

incidental to regulating the border; and that, in any

event, no constitutional rights were infringed because

6

the citizen plaintiffs had alternatives: they could read

Mandel’s writings or speak to him by phone. Id. Then,

as now, the government claimed that it could deny the

visa for “any reason or no reason.” Id. at 769.

The Court rejected each of the government’s

contentions, holding that the U.S citizens’ First

Amendment rights were implicated by the denial of

Mandel’s visa. See id. at 764-65; see also id. at 773

(Douglass, J., dissenting) (agreeing with majority on

this point), 776 (Marshall, J., dissenting) (same).

Rejecting the government’s argument that it owed the

U.S. citizens nothing, but acknowledging the

government’s interest in controlling admission, the

Court required some process—namely, that the

government must have and give a facially legitimate

and bona fide reason for the decision. Id. at 769.

Muñoz’s interest in the admission of her husband is at

least as strong, if not stronger, than the American

professors’ interests in Mandel’s in-person attendance

at a conference. If it was no answer to say to

academics that they could speak by phone, it is

certainly no answer to Muñoz to say that she can live

with her husband only if she leaves her home country.

The government’s view—that it may provide “any

reason or no reason” at all—was properly rejected in

Mandel and should be rejected here as well. Id.

7

I. DENYING

A

VISA

TO

MUÑOZ’S

NONCITIZEN

SPOUSE

BURDENS

MUÑOZ’S CONSTITUTIONAL INTEREST

IN HER MARRIAGE.

This Court has long recognized that the

Constitution protects the liberty interest in marriage.

See Part I.A, infra. That interest encompasses, among

other things, the right to make certain personal

decisions about one’s family, including whom to

marry, whether to have children, how to raise them,

and whether to live together. The Constitution also

protects the right of U.S. citizens to live in the United

States. Agosto v. INS, 436 U.S. 748, 753 (1978)

(recognizing liberty interest in residing in country of

citizenship). When the government denies a visa to a

citizen’s spouse, the denial forces the citizen to choose

between two constitutionally protected interests:

living in her home country or living with her spouse.

Like virtually all constitutional interests, these

interests are not absolute. They can be overridden in

appropriate circumstances. But the interest in living

with one’s lawfully wedded spouse should at a bare

minimum give rise to the same basic protection that

Mandel conferred on the right of an academic to meet

face-to-face with a foreign national.

A. The Court and Congress have long

recognized that the right to marry

includes a right to live with one’s

spouse.

Few decisions are more consequential and

personal than whether and whom to marry. For

8

many, marriage is “fundamental to our very existence

and survival.” Loving v. Virginia, 388 U.S. 1, 12

(1967) (internal citation omitted). The right to marry,

and to live with one’s spouse and family, has long been

recognized as protected by the Constitution. Cleveland

Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974)

(“[F]reedom of personal choice in matters of marriage

and family life is one of the liberties protected by the

Due Process Clause”). The denial of a visa to a U.S.

citizen’s spouse implicates a core element of the “right

to marry”: the right to choose to live with family, and

in doing so to “establish a home.” Meyer, 262 U.S. at

399; see also Obergefell, 576 U.S. at 668 (same);

Loving, 388 U.S. at 4, 12 (law prohibiting interracial

“cohabitating as man and wife” infringes “one of the

‘basic civil rights of man,’ fundamental to our very

existence and survival”) (quotations and citations

omitted); Zablocki v. Redhail, 434 U.S. 374, 384-86

(1978) (“reaffirming the fundamental character of the

right to marry”); Moore v. City of E. Cleveland, Ohio,

431 U.S. 494, 501 (1977) (plurality) (“But unless we

close our eyes to the basic reasons why certain rights

associated with the family have been accorded shelter

under . . . the Due Process Clause, we cannot avoid

applying the force and rationale of these precedents to

the family choice [to live together]”); Griswold v.

Connecticut, 381 U.S. 479, 486 (1965) (marriage is “a

right of privacy older than the Bill of Rights”).

Thus, the decision to marry and the decision to

live together, while distinct, are nonetheless

traditionally intertwined. Just as this Court has

recognized in its precedents that living together with

9

one’s spouse is a “basic civil right[],” Loving, 388 U.S.

at 12, Congress and the executive branch recognize

this in the immigration laws. Congress has long made

marriage to a U.S. citizen a prioritized basis for

eligibility to immigrate or gain legal status, so that

citizens can live together in their home country with

their chosen spouse. See Act of Feb. 10, 1855, § 2, 10

Stat. 604, 604 (naturalization without the usual

residency requirement for noncitizen wives); Act of

May 26, 1924, Pub. L. No. 139, § 4(a), 43 Stat. 153, 155

(citizens’ wives and unmarried children exempt from

immigration quotas); Act of July 11, 1932, Pub. L. No.

277, § 1(a), 471 Stat. 656, 656 (similar for noncitizen

husbands). This has included carving out exceptions

to laws that would otherwise have kept spouses apart.

For example, when Congress enacted an early

immigration exclusion for “persons afflicted with . . . a

dangerous contagious disease,” it excepted the wife or

minor children of a U.S. citizen or legal permanent

resident. Act of Mar. 3, 1903, Pub. L. No. 162, §§ 2,

37, 32 Stat. 1213, 1214, 1221. And when making

major revisions to immigration law, Congress has

made clear that “family unification [is] the

cornerstone of American immigration law and policy.”

136 Cong. Rec. H12358-03; H.R. Rep. No. 101-723

(1990); see also H.R. Rep. No. 82-1365, at 39 (1952),

reprinted in 1952 U.S.C.C.A.N. 1653, 1691 (noting

“the well-established policy of maintaining the family

unit wherever possible”). Today, spouses of U.S.

citizens are not subject to quotas. See, e.g., 8 U.S.C.

§§ 1151(b), 1151(b)(2)(A)(i).

10

To the same end, when examining whether a

marriage between a U.S. citizen and a foreign national

is bona fide for purposes of extending this privilege,

immigration officials often inquire as to whether the

couple lives together or plans to do so. See 8 U.S.C.

§ 1430; Adjudicator’s Field Manual, ch. 21, § 21.3 (“No

cohabitation” is an indicator of an invalid marriage). 2

Government actions that impede marital

unity—like the visa denial at issue here—burden the

marital right and therefore trigger due process

protections. A visa denial burdens this interest even

if the government action does not “forbid,” or “refuse[]

to recognize” a marriage. See Pet. Br. 27 (arguing to

the contrary, relying on Din plurality, 576 U.S. at 94,

101). For example, mandatory maternity leave rules

for school employees place too “heavy [a] burden on

the exercise” of “personal choice in matters of

marriage and family life,” even though the challenged

rules do not forbid the family relationships or deny

legal recognition. See Cleveland Bd. Of Educ., 414

U.S. at 639-40. Likewise, a law that prohibits the

provision of information and medical advice on

contraception has a “destructive impact” on “the

marriage relationship” even though it does not

directly regulate or prohibit marriage. Griswold, 381

U.S. at 480, 485-86. See also Turner v. Safley, 482 U.S.

78, 99 (1987) (requiring prison superintendent’s

permission for prisoners to marry is an impermissible

burden); Boddie v. Connecticut, 401 U.S. 371, 374, 383

2 https://www.uscis.gov/sites/default/files/document/policy-manual-

afm/afm21-external.pdf, at 87.

11

(1971) (fees to file for divorce violate due process right

to alter the “fundamental human relationship” of

marriage); United States v. Windsor, 570 U.S. 744, 774

(2013) (“demean[ing] those persons who are in a

lawful same-sex marriage” infringes “the liberty of the

person” to marry).

The government’s argument that laws that only

“incidentally” affect marriage do not implicate the

liberty interest in marriage, Pet. Br. 27-28, cannot be

squared with this long and consistent line of

authority. In those precedents, this Court has held

repeatedly that the interest in marriage is implicated

even when the government is not regulating marriage

as such, but nonetheless impeded the basic rights of

married couples to live together and make basic

decisions about their families.

The government notes that Obergefell did not

directly resolve the question here. Pet. Br. 27. But

central to the Court’s rationale in Obergefell was a

rejection of government defendants’ efforts to

narrowly define the right to marry:

Loving did not ask about a “right to

interracial marriage”; Turner did not ask

about a “right of inmates to marry”; and

Zablocki did not ask about a “right of

fathers with unpaid child support duties

to marry.” Rather, each case inquired

about the right to marry in its

comprehensive sense, asking if there was

a sufficient justification for excluding the

relevant class from the right.

12

576 U.S. at 671. Muñoz’s liberty interests in her

marriage exist, regardless of the government’s

rationale for impinging on them. The interests in

marriage may support different rules in different

contexts, depending on the strength of the government

interests in whatever rule or regulation impinges on

the right. But the existence of the right cannot be

gainsaid. See also id. at 665-66 (Loving held “the right

to marry is of fundamental importance for all

individuals”) (emphasis added) (quoting Zablocki,

434 U.S. at 384).

As in all of these cases, “acknowledg[ing] that

[Muñoz’s] constitutional ‘right[]’” is ‘implicated,’”

Hawai‘i, 585 U.S. at 703 (quoting Mandel, 408 U.S. at

764-65), does not end the inquiry; it begins it. In

particular, that Muñoz has a constitutional interest

does not mean that the government must issue her

husband a visa. But under this Court’s precedents, it

does mean that Muñoz is owed some process.

B. Muñoz does not assert a right to

“compel” entry, but only a right to a fair

process.

The government argues that “Muñoz’s

fundamental right to marry does not entail the very

different right to compel the United States to admit

her noncitizen spouse.” Pet. Br. 27. But neither

Muñoz nor amici argue that the existence of a liberty

interest means that her husband must be admitted—

only that the government must provide a minimally

fair process.

13

In Mandel, the Court rejected a parallel

argument. There, the government argued that the

U.S. scholars did not have a right to compel Mandel’s

entrance to the country. See Mandel U.S. Reply Br. at

*9, 1972 WL 135748 (arguing that the U.S. citizens

who wanted to hear Mandel speak had “no First

Amendment rights to compel an alien’s admission”);

Mandel U.S. Br. at *31-*32, 1972 WL 135747

(“appellees’ desire to inform themselves further about

Mandel’s Marxist philosophy gives them no First

Amendment right to compel his admission into the

United States.”). This Court rejected that framing

and held that the U.S. citizens’ “right to receive

information and ideas” did not compel Mandel’s entry,

but did require the government to provide a facially

legitimate and bona fide reason for Mandel’s

exclusion, reviewable in court. Mandel, 408 U.S. at

762, 770. The Court noted that even in the context of

visa issuance, where the government’s powers are at

their height, “the Executive Branch of the

Government must respect the procedural safeguards

of due process.” Id. at 767 (quoting Galvan v. Press,

347 U.S. 522, 531-32 (1954)) (emphasis added). That

is precisely what Muñoz seeks: the procedural

safeguards of due process.

14

C. Muñoz’s liberty interest in her

marriage is impeded if the government

conditions her enjoyment of that right

on the abandonment of another

constitutional right.

The government concedes that there is a liberty

interest in the right to marry. Pet. Br. 26. It does not

dispute that that interest includes the right to choose

to live with one’s spouse, or that a visa denial impedes

a U.S. citizen’s interest in living with her noncitizen

spouse. The government nonetheless contends that

“neither [Muñoz’s] right to live with her spouse nor

her right to live within this country is implicated

here.” Pet. Br. 28 (quoting Din, 576 U.S. at 101)

(plurality). Its view appears to be that Muñoz’s

marriage right is not “implicated” because she

“remains free to live with her husband anywhere in

the world that both individuals are permitted to

reside.” Din, 576 U.S. at 101 (plurality). But the

Hobson’s choice of abandoning her country or

abandoning her spouse does not extinguish these

rights. One might just as well have said that the

scholars who challenged Mandel’s exclusion could

meet with him “anywhere in the world” they were

permitted to gather. But this Court rejected that

argument—even though it was possible for the U.S.

citizens to vindicate their constitutional interest by

leaving the United States, the fact remained that

denying Mandel’s entry implicated their First

Amendment interest in meeting with him in the

United States. Mandel, 408 U.S. at 770. Muñoz’s

situation is no different.

15

The right of a U.S. citizen to live in this country

is fundamental, and its loss can be catastrophic. See

Mandoli v. Acheson, 344 U.S. 133, 139 (1952)

(fundamental attribute of United States citizenship is

a “right to . . . remain in this country”); Agosto, 436

U.S. at 753 (recognizing liberty interest in residing in

country of citizenship); Ng Fung Ho v. White, 259 U.S.

276, 284-85 (1922) (same).

This Court has deemed it “intolerable that one

constitutional right should have to be surrendered in

order to assert another.” Simmons v. United States,

390 U.S. 377, 394 (1968). In Simmons, this Court held

that a defendant who chose to assert his Fourth

Amendment rights could not be held to surrender his

Fifth Amendment right by doing so. Id. To the same

effect, the Court rejected the proposition that a U.S.

citizen could be required to forfeit his right to

associate with the Communist Party as a condition of

obtaining a passport; the government was not

permitted to force a choice between the right to travel

and the right of association. Aptheker v. Sec’y of State,

378 U.S. 500, 505 (1964) (“[t]he restrictive effect . . .

cannot be gainsaid by emphasizing, as the

Government seems to do, that a member of a

registering organization could recapture his freedom

to travel by simply in good faith abandoning his

membership in the organization”); see also United

States v. Robel, 389 U.S. 258, 264-65 (1967)

(government cannot condition right to a job on

abandoning association with Communist Party).

16

The government’s contention thus goes against

this Court’s precedents on marriage, too. Mildred and

Richard Loving presumably could have moved out of

Virginia to escape the commonwealth’s law

prohibiting interracial marriage; indeed, they were

married in the District of Columbia and could have

returned there. Loving, 388 U.S. at 2. But this Court

did not use that fact to hold that the Lovings’

fundamental interests in marriage were not infringed

by the Virginia law. If a state or municipality refused

to allow a married couple to cohabitate, but otherwise

recognized the marriage, it would not be a sufficient

answer to the couple’s due process challenge to say

that they are “free to live . . . anywhere . . . that both

individuals are permitted to reside.” Din, 576 U.S. at

101 (plurality); see also Moore, 431 U.S. at 499, 550

(East Cleveland ordinance restricting a family’s right

to live together harmed that liberty interest despite

the fact the family was “free” to live together “in other

parts of the Cleveland metropolitan area”). But that

is the faulty reasoning the government presses here to

say that Muñoz has no liberty interest at stake.

There may also be practical obstacles to moving

elsewhere. The Department of State currently has

formal guidance that cautions Americans against

travel in (much less relocation to) more than 40

countries—including El Salvador, where Muñoz’s

17

spouse has citizenship—because of the danger to life

and safety merely from visiting there. 3

Thus, in law and fact, it is no answer to Muñoz’s

complaint to say that she can leave the United States

and move to El Salvador to be with her husband. Like

the scholars in Mandel, she has a constitutionally

protected interest here, and while that interest does

not override the government’s sovereign authority to

determine admission, it does require, at a minimum,

that the government comply with the requirements of

the Due Process Clause.

D. Muñoz is directly affected by the visa

denial.

The government argues that where its actions

only “incidentally” or “indirectly” affect a citizen’s

rights, those rights are not implicated at all. Pet.

Br. 14. But that is plainly wrong, as Mandel itself

illustrates. In that case, the government sought to

deny Mandel a visa based on his prior failure to

adhere to the conditions of his visa. 408 U.S. at 75859. That ground did not directly target Mandel’s

speech or association, much less the speech or

association of the U.S.-citizen plaintiffs who sought to

meet with him. It infringed on the citizens’ speech and

association only indirectly and incidentally. Yet the

Court held that the denial implicated the U.S.-citizen

3 See, e.g., https://travel.state.gov/content/travel/en/traveladvisories

/traveladvisories.html/ (U.S. Department of State currently has

advisories warning Americans not to travel to 19 countries and

urging them to “reconsider” travel to an additional 24 countries).

18

scholars’ First Amendment rights and evaluated

whether the government had given a “facially

legitimate and bona fide reason.” Id. at 770.

Here, the denial of a visa to Muñoz’s spouse is

not directly aimed at interfering with her marriage,

just as the denial of a waiver to Mr. Mandel was not

aimed at preventing him from speaking with his hosts

in the U.S. But the denial will indisputably impinge

on Muñoz’s right to live with her husband in her home

country, just as the denial of Mandel’s visa impinged

on the right of the scholars to meet Mandel face-toface in the United States. Accordingly, if denying

Mandel a visa implicated the scholars’ First

Amendment rights, so too the denial of a visa to

Muñoz’s husband implicates her right to marry.

The government’s reliance on O’Bannon v.

Town Court Nursing Center, is unpersuasive. Pet. Br.

28 (citing 447 U.S. 773 (1980)).

O’Bannon is

distinguishable both on its facts and with respect to

the governing statutory regime. Most important, here

Congress has recognized the central role of marriage

in the family-based visa system and conferred rights

on U.S.-citizen spouses that were simply inapplicable

in O’Bannon.

In O’Bannon, the Court held that residents of a

nursing home receiving government assistance for

nursing care had no procedural due process rights

with respect to a decision by state and federal agencies

to revoke the home’s certification to provide care at

government expense, resulting in the home’s closure.

447 U.S. at 775. The Court explained that the

19

residents had little to no role in any aspect of

certification or decertification, and thus were

completely “incidental” to that process. See id. at 78586. In addition, the Court emphasized that the

assistance residents received for such housing was not

“reduce[d] or terminate[d]” and they were free to use

another provider. Id. at 786. Nor was any of the

hardship the residents might face from having to

move based on a specific “decision to transfer a

particular patient or to deny him . . . benefits, based

on his individual needs or financial situation.” Id.

at 786-87. As the Court noted, every person at the

nursing home—about 180 residents—was affected in

roughly the same way, including residents who did not

depend on government benefits at all. Id. at 787.

Unlike the nursing home residents in

O’Bannon, who played no role in the certification

process at issue, Congress has provided that a U.S.citizen spouse such as Muñoz plays a central and

indeed necessary role in the visa process. Her

husband could not even begin to apply for an

immigrant visa without her. Under federal statutes

and regulations, Muñoz has an inextricable role in her

husband’s eligibility and throughout the process. See

generally Resp. Br. 3-5 (Sections I.1-5).

 First, Congress has provided that the U.S.citizen spouse must initiate the visa process

by filing a petition to classify her husband as

an immediate relative. 8 U.S.C. § 1201(a)(1)

(A).

20

 Second, Congress has provided that the U.S.citizen spouse must demonstrate that her

marriage

is

bona

fide,

8

U.S.C.

§ 1154(a)(1)(A)(i), and then the noncitizen

spouse must apply for a waiver of unlawful

presence in the United States. To obtain that

waiver, the U.S.-citizen spouse must show

that she would suffer “extreme hardship” if

the waiver were denied.

8 U.S.C.

§ 1182(a)(9)(B)(v).

 Third, Congress requires the U.S.-citizen

spouse to provide continued support in order

for her husband to receive a visa. See 8

U.S.C. § 1183a(a)(1).

Under federal

regulations, a U.S.-citizen spouse may

withdraw the initial petition and terminate

the noncitizen spouse’s visa application at

any time prior to admission. 8 C.F.R.

§ 103.2(b)(6). 4

4 Outside the specific context of family-based immigrant visas,

the Immigration and Nationality Act is replete with sections

recognizing the importance of the marital relationship and

conferring rights on spouses. For example, even before beginning

the immigrant visa application process, Congress has provided

that noncitizens who are married to U.S. citizens may be

temporarily admitted to the country as “nonimmigrant” visitors

while they undergo that process, in the interest of “assur[ing]

family unity.” See 8 U.S.C. § 1182(d)(1), (11), (12). When an

individual is granted refugee or asylum status, their spouse is

also admitted, even if that spouse does not qualify independently.

See 8 U.S.C. § 1157(c)(2)(A); 8 U.S.C. § 1158(b)(3)(A). For certain

21

In short, Congress and the implementing

federal agencies have placed U.S.-citizen spouses at

the center of the visa process. This alone categorically

distinguishes this case from O’Bannon, as “the

contours” of the rights at issue are markedly different.

O’Bannon, 447 U.S. at 786.

But O’Bannon is also distinguishable because

the harm to Muñoz’s liberty interests is neither

indirect nor speculative. O’Bannon compared the risk

of harm the nursing home residents proffered to a

“random” possibility of harm that “may” occur at the

end of a “chain of events.” Id. at 789 (quoting Martinez

v. California, 444 U.S. 277, 281 (1980)). Here the

burden on Muñoz’s marriage is direct and immediate

because the denial of the visa prevents her from living

with her husband as a family in her country of

nationality. See Part I.A, C, supra. Once again, the

government’s bald assertion that the visa denial here

was “not directed at Muñoz or her marriage

relationship,” Pet. Br. 29, is irrelevant under the

numerous due process precedents above, including

Mandel, where the Court rejected a similar effort by

the government to define away Mandel’s U.S.-citizen

grounds of exclusion (such as membership in the Communist

Party) there are exceptions for spouses of family members who

are citizens or legal permanent residents.

See 8 U.S.C.

§ 1182(a)(3)(D)(i)-(iv); 8 U.S.C. § 1182(a)(6)(E)(i)-(ii). Conditional

permanent resident status is available for spouses in order to

maintain family unity. See 8 U.S.C. § 1186a(1). And it is simpler

for spouses of U.S. citizens to naturalize than for people who are

not married to U.S. citizens. See, e.g., 8 U.S.C. § 1430.

22

would-be hosts’ interests as only indirectly harmed by

the visa denial. See Mandel, 408 U.S. at 764-65.

II. JUDICIAL REVIEW OF VISA DENIALS

PROVIDES AN IMPORTANT BACKSTOP

FOR U.S. CITIZENS’ RIGHTS.

The government seeks to eliminate any

oversight over a consulate denying a visa for a U.S.

citizen’s noncitizen spouse. Pet. Br. 17. This Court

has never endorsed this extreme view, and certainly

not where a U.S. citizen’s fundamental constitutional

right is implicated. It should not do so now.

There is nothing to back the government’s

claims that its interests will be harmed by even an iota

of judicial review. To the contrary, lower courts have

reviewed visa denials under Mandel without

undermining in any way the government’s national

security or law enforcement interests. See Hawai‘i,

585 U.S. at 704 (“Mandel’s narrow standard of review

‘has particular force’ in admission and immigration

cases that overlap with the ‘area of national security.”)

(quoting Din, 576 U.S. at 104) (Kennedy, J.,

concurring). Indeed, it is telling that the government

cites no instance whatsoever in which such review led

to the harms it warns against.

Federal courts across the country have

evaluated challenges to visa denials under Mandel.

Courts have denied challenges where they found no

constitutional interest implicated. See, e.g., ZigZag,

LLC v. Kerry, No. 14–14118–DJC, 2015 WL 1061503,

at *6 (D. Mass. Mar. 10, 2015). And courts have often

23

rejected challenges where reasonable minds could

differ about whether an inadmissibility statute should

be applied on the relevant facts. See, e.g., Hazama v.

Tillerson, 851 F.3d 706, 709 (7th Cir. 2017).

But, crucially, U.S. citizens have sometimes

prevailed.

See, e.g., Am. Acad. of Religion v.

Napolitano, 573 F.3d 115, 133 (2d Cir. 2009)

(government did not comply with requirements of the

statute of inadmissibility); Allende v. Shultz, No. 83–

3984–C, 1987 WL 9764, at *6 (D. Mass. Mar. 31,

1987), aff’d, 845 F.2d 1111 (1st Cir. 1988) (same); see

also City of New York v. Baker, 878 F.2d 507, 512 (D.C.

Cir. 1989) (clarifying and affirming that district court

had the power to issue a declaratory judgment that

visa could not be denied on grounds found to be

unlawful, but that it lacked the power to order

issuance of the visa).

Muñoz advocates for application of the

Mathews v. Eldridge, 424 U.S. 319 (1976) balancing

standard to determine the process she is owed. Resp.

Br. 43-44. If the Court adopts that approach the

agency’s failure here is stark. But even under

Mandel’s facially legitimate and bona fide standard,

the

government’s

actions—only

asserting a

“reasonable ground to believe” that Muñoz’s husband

intended to engage at least “incidentally” in “any . . .

unlawful activity,” Pet. Br. 32 (quoting 8 U.S.C.

§ 1182(a)(3)(A)(ii))—cannot satisfy that test, as the

court of appeals correctly held, Pet. App. 33a.

Without at least some minimum process,

American citizens could be arbitrarily denied the

24

opportunity to start or continue their married lives

with their spouses on the unreviewable say-so of a

consular official. The government’s argument rests on

the notion that foreign nationals outside our borders

have no rights vis-à-vis entry. But when a U.S.

citizen’s rights are infringed upon—whether the First

Amendment right to meet face-to-face or the due

process right to marry—the calculus changes. The

government’s interests may be accorded due and even

heavy weight, but due process requires it to provide at

least a sufficient rationale for its action. If this Court

eliminates even the minimal protection of judicial

review, consular officials could deny visas to the

spouses of U.S. citizens based on race, religion, sex, or

wholly arbitrary decision making. And even mere

errors or oversights are far more likely to go

uncorrected with no possibility of court review,

“irrespective of how mistaken [those decisions] might

be.” Guerrero-Lasprilla v. Barr, 589 U.S. 221, 236

(2020). The Court has long recognized this—since at

least Mandel—and the right to live with one’s spouse

in one’s country merits at least the same protection as

the right to have a foreign colleague attend an

academic conference. Accordingly, the Court should

reject the government’s contention that Muñoz has no

constitutional interest and no right to court review of

a decision that so deeply affects her.

25

CONCLUSION

The Court should reject the government’s

proposal to jettison the longstanding requirement of

judicial review and should affirm the decision of the

court of appeals.

March 28, 2024

Respectfully submitted,

Cecillia D. Wang

Cody Wofsy

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street,

7th Floor

San Francisco, CA 94104

Daniel A. Galindo

Counsel of Record

Omar C. Jadwat

Judy Rabinovitz

Lee Gelernt

Sidra Mahfooz

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(646) 905-8907

dgalindo@aclu.org

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

Eva L. Bitrán

ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

1313 W. 8th St.

Los Angeles, CA 90017

Efaon Cobb

ACLU FOUNDATION OF

SAN DIEGO & IMPERIAL

COUNTIES

P.O. Box 87131

San Diego, CA 92138

Sean Riordan

ACLU FOUNDATION OF

NORTHERN CALIFORNIA

39 Drumm Street

San Francisco, CA 94111

26