US Supreme Court Held Citizens Cannot Challenge Spousal Visa Denials


Ms. Munoz, an American citizen, petitioned for an immigrant visa for her Salvadoran husband to enter the United States so that they can live together. The American Consulate in San Salvador refused to issue a visa to her husband, based on his previous gang activities. As a California lawyer, Ms. Munoz challenged the visa denial in a federal district court. She argued that the consular officer's decision violated her constitutional rights, specifically her right to familial association under the Due Process Clause, as well as her rights under the Fourteenth Amendment Equal Protection Clause. 

Lower Court Refused to Review Visa Refusal

The District Court, however, ruled in favor of the Department of State, citing the doctrine of consular nonreviewability, which generally prohibits courts from reviewing consular visa decisions. Ms. Munoz filed an appeal with the Ninth Circuit Court of Appeals, which also agreed with the consular decision.   Undaunted, Ms. Munoz appealed the case to the U.S. Supreme Court.  

Surpreme Court Upheld the Consular Nonreviewability Doctrine

In Department of State v. Muñoz (06/21/2024), the U.S. Supreme Court ruled in favor of the Department of State, affirming the lower court's decision that upheld the consular officer's visa denial based on the doctrine of consular nonreviewability. This doctrine holds that consular decisions on visa applications are generally not subject to judicial review, reinforcing the government's broad discretion in immigration matters.

Ms. Muñoz argued that her right to marry and live with her spouse is a fundamental liberty interest protected by the Fifth Amendment's Due Process Clause, which provides that no person shall be "deprived of life, liberty, or property, without due process of law."  She also claimed that the refusal to grant her husband a visa treated her differently from other U.S. citizens whose spouses were allowed to enter the country, thereby violating her right to equal protection under the Fourteeth Amendment.

The Supreme Court acknowledged the hardship faced by U.S. citizens separated from their spouses due to visa denials but held that the constitutional protections invoked by the plaintiffs do not extend to override the consular nonreviewability doctrine. Under this doctrine, consular decisions are insulated from judicial review, reiterating the principle that such decisions fall within the executive branch's authority and are not subject to challenge in federal courts, except in very narrow circumstances, such as when there is a clear statutory or constitutional violation.  However, the facts of this case did not meet the requirements for such an exception.

The decision underscores the balance and conflicts between individual rights and the government's interest in controlling immigration, highlighting the Supreme Court's position of upholding the consular nonreviewability doctrine to avoid judicial overreach into executive functions.

Where to Apply is Critical

One takeaway from this decision is that, if an applicant has a choice, they should always apply for American visa status in the United States.  The reason is that the nonreviewability doctrine only applies in overseas visa applications. There are generally more legal and procedural safeguards for applications filed within the United States.  As we constantly advise clients, advance planning and evaluation of an immigration case is the key to success.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit to schedule a legal consultation.)  


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