Department of State v. Munoz, 602 U.S. ___ (2024) (2024)

NOTICE: This opinion is subject toformal revision before publication in the United States Reports.Readers are requested to notify the Reporter of Decisions, SupremeCourt of the United States, Washington, D.C. 20543,pio@supremecourt.gov, of any typographical or other formalerrors.SUPREME COURT OF THE UNITED STATES_________________No. 23–334_________________Department of State, etal., PETITIONERSv. Sandra MuÑoz, etal.on writ of certiorari to the united statescourt of appeals for the ninth circuit[June 21, 2024]Justice Barrett delivered the opinion of theCourt.Luis Asencio-Cordero seeks to enter the UnitedStates to live with Sandra Muñoz, his wife. To obtain the necessaryvisa, he submitted an application at the United States consulate inSan Salvador. A consular officer denied his application, however,after finding that Asencio-Cordero is affiliated with MS–13, atransnational criminal gang. Because of national security concerns,the consular officer did not disclose the basis for his decision.And because Asencio-Cordero, as a noncitizen, has no constitutionalright to enter the United States, he cannot elicit that informationor challenge the denial of his visa.Muñoz, on the other hand, is a citizen, and shefiled her own challenge to the consular officer’s decision. Shereasons as follows: The right to live with her noncitizen spouse inthe United States is implicit in the “liberty” protected by theFifth Amendment; the denial of her husband’s visa deprived her ofthis interest, thereby triggering her right to due process; theconsular officer violated her right to due process by declining todisclose the basis for finding Asencio-Cordero inadmissible; andthis, in turn, enables judicial review, even though visa denialsare ordinarily unreviewable by courts.Muñoz’s argument fails at the threshold. Herargument is built on the premise that the right to bring hernoncitizen spouse to the United States is an unenumeratedconstitutional right. To establish this premise, she must show thatthe asserted right is “‘deeply rooted in this Nation’shistory and tradition.’” Washington v.Glucksberg, 521 U.S.702, 720–721 (1997). She cannot make that showing. In fact,Congress’s longstanding regulation of spousal immigration—includingthrough bars on admissibility—cuts the other way.IATo be admitted to the United States, anoncitizen typically needs a visa. 66Stat. 181, 8U.S.C. §1181(a). Visa decisions are made by thepolitical branches. Trump v. Hawaii, 585 U.S. 667,702–703 (2018); see also Oceanic Steam Nav. Co. v.Stranahan, 214 U.S.320, 339 (1909) (explaining that “over no conceivable subjectis the legislative power of Congress more complete”). As a generalmatter, Congress sets the terms for entry, and the Department ofState implements those requirements at United States Embassies andconsulates in foreign countries.[1]Congress has streamlined the visa process fornoncitizens with immediate relatives in the United States. Thecitizen-relative must first file a petition with U.S.Citizenship and Immigration Services (USCIS), an agency housedwithin the Department of Homeland Security, to have the noncitizenclassified as an immediate relative. See Scialabba v.Cuellar de Osorio, 573 U.S.41, 46–47 (2014) (plurality opinion); §§1151(b)(2)(A)(i),1154(a)(1)(A). If USCIS approves the petition, then the noncitizenmay apply for a visa. §§1201(a), 1202(a). As part of this process,the noncitizen submits written materials and interviews with aconsular officer abroad. §§1201(a)(1), 1202.Ordinarily, a consular officer who denies a visaapplication “because the officer determines the alien to beinadmissible” must “provide the alien with a timely written noticethat ... (A) states the determination, and (B) liststhe specific provision or provisions of law under which the alienis inadmissible.” §1182(b)(1). The statute requires no explanation,however, “to any alien inadmissible” on certain grounds related tocrime and national security. §1182(b)(3). This case involves anoncitizen to whom this statutory exception applies.BSandra Muñoz, an American citizen, marriedLuis Asencio-Cordero, a Salvadoran citizen, in 2010. Several yearslater, the couple began taking steps to obtain an immigrant visafor Asencio-Cordero. Muñoz filed a petition to classify her husbandas an immediate relative, which USCIS granted. §§1151(b)(2)(A)(i),1154(a)(1)(A). Because Asencio-Cordero had entered the UnitedStates unlawfully, he was required to return to El Salvador andsubmit his visa application at a consulate there. See §§1154(b),1202; 22 CFR §42. He met with a consular officer in San Salvadorand underwent several interviews.In December 2015, the officer deniedAsencio-Cordero’s application, citing 8 U.S.C.§1182(a)(3)(A)(ii). That provision renders inadmissible anoncitizen whom the officer “knows, or has reasonable ground tobelieve, seeks to enter the United States to engage solely,principally, or incidentally in” certain specified offenses or “anyother unlawful activity.” Ibid. The officer provided noadditional details—but, given the reason for the visa denial, eventhe statutory citation was more information than Asencio-Corderowas entitled to receive. §1182(b)(3).Asencio-Cordero guessed (as it turns out,accurately) that he was denied a visa based on a finding that hewas a member of MS–13, a transnational criminal gang. He alsoguessed (again, accurately) that this finding was based at least inpart on the conclusion that his tattoos signified gang membership.Asencio-Cordero and Muñoz denied that Asencio-Cordero wasaffiliated with MS–13 or any other gang, and they pressed theconsulate to reconsider the officer’s finding. When the consulateheld firm, they appealed to the Department of State, submittingevidence that the tattoos were innocent. A Department officialinformed Asencio-Cordero and Muñoz that the Department agreed withthe consulate’s determination. The next day, the consul in SanSalvador notified them that Asencio-Cordero’s application had gonethrough multiple rounds of review—including by the consularofficer, consular supervisors, the consul himself, the Bureau ofConsular Affairs, and the State Department’s Immigration VisaUnit—and none of these reviews had “‘revealed any grounds tochange the finding of inadmissibilty.’” App. 7.Asencio-Cordero and Muñoz sued the Department ofState, the Secretary of State, and the United States consul in SanSalvador. (For simplicity’s sake, we will refer to the defendantscollectively as the State Department.) They alleged, among otherthings, that the State Department had abridged Muñoz’sconstitutional liberty interest in her husband’s visa applicationby failing to give a sufficient reason why Asencio-Cordero isinadmissible under the “unlawful activity” bar.The District Court agreed and ordered discovery.In a sworn declaration, an attorney adviser from the StateDepartment explained that Asencio-Cordero was deemed inadmissiblebecause he belonged to MS–13. The finding was “based on thein-person interview, a criminal review of ...Asencio[-]Cordero, and a review of [his] tattoos.” App. to Pet. forCert. 124a. In addition to the affidavit, the State Departmentprovided the District Court with confidential law enforcementinformation, which it reviewed in camera, identifyingAscencio-Cordero as a member of MS–13. Satisfied, the DistrictCourt granted summary judgment to the State Department.The Ninth Circuit vacated the judgment andremanded the case. Consistent with circuit precedent, it held thatMuñoz, as a citizen, had a constitutionally protected libertyinterest in her husband’s visa application. Because of thatinterest, the Ninth Circuit said, the Due Process Clause requiredthe State Department to give Muñoz a “‘facially legitimateand bona fide reason’” for denying her husband’s visa. 50F.4th 906, 916 (2022) (quoting Kleindienst v.Mandel, 408 U.S.753, 766–770 (1972)). The initial statutory citation did notqualify, 50 F. 4th, at 917–918, and the later affidavit wasuntimely, id., at 921–922. Delay carried a seriousconsequence for the State Department. Visa denials are insulatedfrom judicial review by the doctrine of consular nonreviewability.But the Ninth Circuit held that by declining to give Muñoz moreinformation earlier in the process, the State Department hadforfeited its entitlement “to shield its visa decision fromjudicial review.” Id., at 924. The panel remanded for theDistrict Court to consider the merits of Muñoz’s suit, whichinclude a request for a declaration invalidating the finding thatAsencio-Cordero is inadmissible and an order demanding that theState Department readjudicate Asencio-Cordero’sapplication.[2]The Ninth Circuit denied en banc review over thedissent of 10 judges, and we granted the State Department’spetition for certiorari. 601 U.S. ___ (2024).[3]II“For more than a century, this Court hasrecognized that the admission and exclusion of foreign nationals isa ‘fundamental sovereign attribute exercised by the Government’spolitical departments largely immune from judicial control.’”Trump, 585 U.S., at 702 (quoting Fiallo v.Bell, 430 U.S.787, 792 (1977)). Congress may delegate to executive officialsthe discretionary authority to admit noncitizens “immune fromjudicial inquiry or interference.” Harisiades v.Shaughnessy, 342 U.S.580, 588–591 (1952). When it does so, the action of anexecutive officer “to admit or to exclude an alien” “is final andconclusive.” United States exrel. Knauff v.Shaughnessy, 338 U.S.537, 543 (1950); see also Dept. of Homeland Security v.Thuraissigiam, 591 U.S. 103, 138–139 (2020); Mandel,408 U.S., at 765–766; Nishimura Ekiu v. UnitedStates, 142 U.S.651, 659–660 (1892). The Judicial Branch has no role to play“unless expressly authorized by law.” Knauff, 338U.S., at 543. The Immigration and Nationality Act (INA) doesnot authorize judicial review of a consular officer’s denial of avisa; thus, as a rule, the federal courts cannot review thosedecisions.[4] This principle isknown as the doctrine of consular nonreviewability.We have assumed that a narrow exception to thisbar exists “when the denial of a visa allegedly burdens theconstitutional rights of a U.S. citizen.” Trump, 585U.S., at 703. In that event, the Court has considered whetherthe Executive gave a “‘facially legitimate and bona fidereason’” for denying the visa. Kerry v. Din,576 U.S.86, 103–104 (2015) (Kennedy,J., concurring in judgment)(quoting Mandel, 408 U.S., at 770). If so, the inquiryis at an end—the Court has disclaimed the authority to “‘lookbehind the exercise of that discretion,’” much less tobalance the reason given against the asserted constitutional right.Din, 576 U.S., at 104.Asencio-Cordero cannot invoke the exceptionhimself, because he has no “constitutional right of entry to thiscountry as a nonimmigrant or otherwise.” Mandel, 408U.S., at 762. Thus, so far as Asencio-Cordero is concerned,the doctrine of consular nonreviewability applies. Muñoz, however,is an American citizen, and she asserts that the denial of herhusband’s visa violated her constitutional rights, therebyenabling judicial review. Specifically, she argues that the StateDepartment abridged her fundamental right to live with her spousein her country of citizenship—and that it did so without affordingher the fair procedure guaranteed by the Fifth Amendment.The Ninth Circuit is the only Court of Appealsto have embraced this asserted right—every other Circuit toconsider the issue has rejected it.[5] See Colindres v. U.S. Dept. ofState, 71 F.4th 1018, 1021 (CADC 2023); Baaghil v.Miller, 1 F.4th 427, 433 (CA6 2021); Bakran v.Secretary, U.S. Dept. of Homeland Security, 894 F.3d557, 564 (CA3 2018); Bright v. Parra, 919 F.2d 31, 34(CA5 1990) (percuriam); Burrafato v.U.S. Dept. of State, 523 F.2d 554, 554–557 (CA2 1975);Silverman v. Rogers, 437 F.2d 102, 107 (CA1 1970). InDin, this Court considered but did not resolve the question.A plurality concluded that a citizen does not have a fundamentalright to bring her noncitizen spouse to the United States. 576U.S., at 96. Two Justices chose not to reach the issue,explaining that even if the right existed, the statutory citationprovided by the Executive qualified as a facially legitimate andbona fide reason. Id., at 105 (opinion ofKennedy,J.). Since Din, the existence of the right hascontinued to divide the Circuits.Today, we resolve the open question. Like theDin plurality, we hold that a citizen does not have afundamental liberty interest in her noncitizen spouse beingadmitted to the country.IIIThe Due Process Clause of the Fifth Amendmentrequires the Government to provide due process of law before itdeprives someone of “life, liberty, or property.” Under ourprecedent, the Clause promises more than fair process: It also“provides heightened protection against government interferencewith certain fundamental rights and liberty interests.”Glucksberg, 521 U.S., at 720. When a fundamental rightis at stake, the Government can act only by narrowly tailored meansthat serve a compelling state interest. Id., at 721.Identifying unenumerated rights carries a serious risk of judicialoverreach, so this Court “exercise[s] the utmost care whenever weare asked to break new ground in this field.” Id., at 720(internal quotation marks omitted). To that end,Glucksberg’s two-step inquiry disciplines the substantivedue process analysis. First, it insists on a “careful descriptionof the asserted fundamental liberty interest.” Id., at 721(internal quotation marks omitted). Second, it stresses that “theDue Process Clause specially protects” only “those fundamentalrights and liberties which are, objectively, deeply rooted in thisNation’s history and tradition.” Id., at 720–721 (internalquotation marks omitted).We start with a “careful description of theasserted fundamental liberty interest.” Id., at 721(internal quotation marks omitted). Muñoz invokes the “fundamentalright of marriage,” but the State Department does not deny thatMuñoz (who is already married) has a fundamental right to marriage.Muñoz claims something distinct: the right to reside with hernoncitizen spouse in the United States. That involves more thanmarriage and more than spousal cohabitation—it includes the rightto have her noncitizen husband enter (and remain in) the UnitedStates.It is difficult to pin down the nature of theright Muñoz claims. The logic of her position suggests anentitlement to bring Asencio-Cordero to the United States—how elsecould Muñoz enjoy the asserted right to live with her noncitizenhusband in her country of citizenship? See also Brief forPetitioners 23, n.8 (characterizing Muñoz’s claim as an“entitle[ment] to the visa itself”). Yet Muñoz disclaims thatcharacterization, insisting that “[she] does not advance asubstantive right to immigrate one’s spouse.” Brief for Respondents19, n.10. This concession is wise, because such a claim wouldordinarily trigger strict scrutiny—and it would be remarkable toput the Government to the most demanding test in constitutional lawin the field of immigration, an area unsuited to rigorous judicialoversight. Fiallo, 430 U.S., at 792 (“Our cases ‘havelong recognized the power to expel or exclude aliens as afundamental sovereign attribute exercised by the Government’spolitical departments largely immune from judicialcontrol’”).Though understandable, Muñoz’s concession makescharacterizing the asserted right a conceptually harder task. Hereis her formulation: a “marital right ... sufficientlyimportant that it cannot be unduly burdened without procedural dueprocess as to an inadmissibility finding that would block her fromresiding with her spouse in her country of citizenship.” Brief forRespondents 19, n.10. So described, the asserted right isneither fish nor fowl. It is fundamental enough to be implicit in“liberty;” but, unlike other implied fundamental rights, itsdeprivation does not trigger strict scrutiny. See Din, 576U.S., at 99 (plurality opinion) (observing that this argumentposits “two categories of implied rights protected by the DueProcess Clause: really fundamental rights, which cannot be takenaway at all absent a compelling state interest; and not-so-fundamental rights, which can be taken away so long as proceduraldue process is observed”). This right would be in a category ofone: a substantive due process right that gets only procedural dueprocess protection. Ibid.We need not decide whether such a categoryexists, because Muñoz cannot clear the second step ofGlucksberg’s test: demonstrating that the right to bring anoncitizen spouse to the United States is “‘deeply rooted inthis Nation’s history and tradition.’” 521 U.S., at721. On the contrary, the through line of history is recognition ofthe Government’s sovereign authority to set the terms governing theadmission and exclusion of noncitizens. And Muñoz points to nosubsidiary tradition that curbs this authority in the case ofnoncitizen spouses.From the beginning, the admission of noncitizensinto the country was characterized as “of favor [and] not ofright.” J. Madison, Report of 1800 (Jan. 7, 1800), in 17 Papersof James Madison 319 (D. Mattern, J. Stagg, J. Cross, & S.Perdue eds. 1991) (emphasis added); see also 2 Records of theFederal Convention of 1787, p.238 (M. Farrand ed. 1911)(recounting Gouverneur Morris’s observation that “every Societyfrom a great nation down to a club ha[s] the right of declaring theconditions on which new members should be admitted”); Debate onVirginia Resolutions, in The Virginia Report of 1799–1800,p.31 (1850) (“[B]y the law of nations, it is left in thepower of all states to take such measures about the admission ofstrangers as they think convenient”). Consistent with this view,the 1798 Act Concerning Aliens gave the President completediscretion to remove “all such aliens as he shall judge dangerousto the peace and safety of the United States.” 1Stat. 571 (emphasisdeleted). The Act made no exception for spouses—or, for thatmatter, other family members.The United States had relatively open bordersuntil the late 19th century. But once Congress began to restrictimmigration, “it enacted a complicated web of regulations thaterected serious impediments to a person’s ability to bring a spouseinto the United States.” Din, 576 U.S., at 96(plurality opinion). One of the first federal immigration statutes,the Immigration Act of 1882, required executive officials to“examine” noncitizens and deny “permi[ssion] to land” to “anyconvict, lunatic, idiot, or any person unable to take care ofhimself or herself without becoming a public charge.” 22Stat. 214.The Act provided no exception for citizens’ spouses. And whenCongress drafted a successor statute that expanded the grounds ofinadmissibility, it again gave no special treatment to the maritalrelationship. Immigration Act of 1891, ch. 551, 26Stat. 1084.There are other examples. The Page Act of 1875,which functioned as a restriction on Chinese female immigration,contained no exception for wives. 18Stat. 477–478; seeColindres, 71 F.4th, at 1023. Or consider theEmergency Quota Act of 1921, which capped the number of immigrantspermitted to enter the country each year. 42Stat. 5–6. Although theAct gave preferential treatment to citizens’ wives, “once all thequota spots were filled for the year, the spouse was barred withoutexception.” Din, 576 U.S., at 97 (pluralityopinion).[6] See also C.Bredbenner, A Nationality of Her Own: Women, Marriage, and the Lawof Citizenship 115 (1998) (“[C]itizens’ wives were still quotaimmigrants, and immigration officials could regulate their entryclosely if economic or other circ*mstances prompted a generaltightening of admission”). In 1924, Congress, showing favor to menrather than marriage, lifted the quotas for male citizens withnoncitizen wives, but did not similarly clear the way for femalecitizens with noncitizen husbands. Abrams 12. This gender disparitydid not change until 1952. Id., at 13–14.That is not to say that Congress has notextended special treatment to marriage—it has. For instance, theWar Brides Act of 1945 provided that the noncitizen spouses ofWorld War II veterans would be exempt from certain admissibilitybars and documentary requirements. Ch. 591, 59Stat. 659. Closer tohome, Asencio-Cordero’s visa application rested on his marriage toMuñoz, which made him eligible for immigrant status. §1154. Butwhile Congress has made it easier for spouses to immigrate, it hasnever made spousal immigration a matter of right. On the contrary,qualifications and restrictions have long been the norm. See,e.g., Act of Aug. 9, 1946, ch. 945, 60Stat. 975 (grantingnonquota status to Chinese wives of American citizens, but only forthose with longstanding marriages).Of particular relevance to Muñoz, Congress hasnot exempted spouses from inadmissibility restrictions like theINA’s unlawful-activity bar. Precusors to that bar have existedsince the early 20th century. For example, the Immigration Act of1917 provided for the exclusion of “persons who have been convictedof or admit having committed a felony or other crime or misdemeanorinvolving moral turpitude.” Ch. 29, 39Stat. 875. Consular officersapplied this bar to spouses, and courts refused to review thosevisa denials, citing the doctrine of consular nonreviewability.See, e.g., United States ex rel. Ulrich v.Kellogg, 30 F.2d 984, 985–986 (CADC 1929).United States exrel. Knauff v.Shaughnessy is a striking example from this Court. InKnauff, a United States citizen (and World War II veteran)found himself similarly situated to Muñoz: His noncitizen wife wasdenied admission for security reasons, based on “information of aconfidential nature, the disclosure of which would be prejudicialto the public interest.” 338 U.S., at 541, 544. We held thatthe War Brides Act did not supersede the statute on which theAttorney General had relied. Id., at 546–547 (“There isnothing in the War Brides Act ... to indicate that itwas the purpose of Congress, by partially suspending compliancewith certain requirements and quota provisions of the immigrationlaws, to relax the security provisions of the immigration laws”).So, “[a]s all other aliens, petitioner had to stand the test ofsecurity.” Id., at 547. Nor was she entitled to a hearing,because “[w]hatever the procedure authorized by Congress is, it isdue process as far as an alien denied entry is concerned.”Id., at 544. The Attorney General’s decision was “final andconclusive,” and he did not have to divulge the reason for it.Id., at 543.[7]Knauff thus reaffirmed the longstandingprinciple “that the United States can, as a matter of public policy... forbid aliens or classes of aliens from comingwithin their borders,” and “[n]o limits can be put by the courtsupon” that power. Wong Wing v. United States,163 U.S.228, 237 (1896). Congress’s authority to “formulat[e]... policies” concerning the entry of noncitizens “hasbecome about as firmly imbedded in the legislative and judicialtissues of our body politic as any aspect of our government,”representing “not merely ‘a page of history,’ but a whole volume.”Galvan v. Press, 347 U.S.522, 531 (1954) (citation omitted). “[T]he Court’s generalreaffirmations of this principle have been legion.” Mandel,408 U.S., at 765–766; see also id., at 765 (“[T]hepower to exclude aliens is ‘inherent in sovereignty, necessary formaintaining normal international relations and defending thecountry against foreign encroachments and dangers—a power to beexercised exclusively by the political branches ofgovernment’”).[8] While“families of putative immigrants certainly have an interest intheir admission,” it is a “fallacy” to leap from that premise tothe conclusion that United States citizens have a“‘fundamental right’” that can limit how Congressexercises “the Nation’s sovereign power to admit or excludeforeigners.” Fiallo, 430 U.S., at 795, n. 6.To be sure, Congress can use its authority overimmigration to prioritize the unity of the immigrant family.Din, 576 U.S., at 97 (plurality opinion). See,e.g., §1151(b)(2)(A)(i) (exempting “immediate relatives”from certain numerical quotas). It has frequently done just that.But the Constitution does not require this result; moreover,Congress’s generosity with respect to spousal immigration hasalways been subject to restrictions, including bars onadmissibility. This is an area in which more than family unity isat play: Other issues, including national security and foreignpolicy, matter too. Thus, while Congress may show specialsolicitude to noncitizen spouses, such solicitude is “a matter oflegislative grace rather than fundamental right.” Din, 576U.S., at 97 (plurality opinion). Muñoz has pointed to noevidence suggesting otherwise.[9]IVAs the State Department observes, Muñoz’sclaim to a procedural due process right in someone else’slegal proceeding would have unsettling collateral consequences.Consider where her logic leads: Could a wife challenge herhusband’s “assignment to a remote prison or to an overseas militarydeployment, even though prisoners and service members themselvescannot bring such challenges”? Reply Brief 13. Could a citizenassert procedural rights in the removal proceeding of her spouse?Brief for Petitioners 30. Muñoz’s position would usher in a newstrain of constitutional law, for the Constitution does notordinarily prevent the government from taking actions that“indirectly or incidentally” burden a citizen’s legal rights.Castle Rock v. Gonzales, 545U.S. 748, 767 (2005) (quoting O’Bannon v. Town CourtNursing Center, 447 U.S.773, 788 (1980)).Our decision in O’Bannon is illustrative.There, a group of nursing-home residents alleged that thegovernment had violated their liberty interests when it decertifiedtheir nursing home without providing them a hearing. 447U.S., at 777–781, 784. We acknowledged that the residentswould suffer harm from the government’s decision. Id., at784, and n.16. But we held that absent a “direct restraint on[their liberty],” the decision did not implicate their due processrights. Id., at 788. The decertification decision imposedonly an indirect harm. We explained that the residents wereakin to “members of a family who have been dependent on an errantfather.” Ibid. Although “they may suffer serious trauma ifhe is deprived of his liberty or property as a consequence ofcriminal proceedings,” such family members “surely ...have no constitutional right to participate in his trial orsentencing procedures.” Ibid. The same principle governshere. Muñoz has suffered harm from the denial of Asencio-Cordero’svisa application, but that harm does not give her a constitutionalright to participate in his consular process.Lest there be any doubt, Mandel doesnot hold that citizens have procedural due process rights inthe visa proceedings of others. The Ninth Circuit seems to haveread Mandel that way, but that is a misreading.In Mandel, the Attorney General refusedto waive inadmissibility and grant Ernest Mandel, a self-described“‘revolutionary Marxist,’” a temporary visa to attendacademic conferences in the United States. 408 U.S., at 756.A group of professors sued on the ground that the Executive’sdiscretion to grant a waiver was limited by their First Amendmentright to hear Mandel speak; they insisted that “the First Amendmentclaim should prevail, at least where no justification is advancedfor denial of a waiver.” Id., at 769. In response, theAttorney General asserted that “Congress has delegated the waiverdecision to the Executive in its sole and unfettered discretion,and any reason or no reason may be given.” Ibid.But because “the Attorney General didinform Mandel’s counsel of the reason for refusing him a waiver,”the Court chose not to resolve this statutory argument.Ibid. (emphasis added). Instead, it said that so long as theExecutive gives a “facially legitimate and bona fide reason” fordenying a waiver under §212(a)(28) of the INA—the statutoryprovision at issue—“the courts will neither look behind theexercise of that discretion, nor test it by balancing itsjustification against the First Amendment interests of those whoseek personal communication with the applicant.” Id., at770. The Court expressly declined to address whether aconstitutional challenge would “be available for attacking [an]exercise of discretion for which no justification whatsoever isadvanced.” Ibid.Thus, the “facially legitimate and bona fidereason” in Mandel was the justification for avoiding adifficult question of statutory interpretation; it had nothing todo with procedural due process. Indeed, a procedural due processclaim was not even before the Court. The professors argued that thedenial of Mandel’s visa directly deprived them of their FirstAmendment rights, not that their First Amendment rightsentitled them to procedural protections in Mandel’s visaapplication process. Id., at 754. To make an argumentlogically analogous to that of the professors, Muñoz would have toclaim that the denial of Asencio-Cordero’s visa violated hersubstantive due process right to bring her noncitizen spouse to theUnited States—thereby triggering the State Department’s obligationto demonstrate why denying him the visa is the least restrictivemeans of serving the Government’s interest in national security.But, as we have explained, Muñoz has disavowed that argument, whichcannot succeed in any event because the asserted right is not alongstanding and “‘deeply rooted’” tradition in thiscountry. Glucksberg, 521 U.S., at 721.The bottom line is that procedural due processis an odd vehicle for Muñoz’s argument, and Mandel does notsupport it. Whatever else it may stand for, Mandel does nothold that a citizen’s independent constitutional right (say, a freespeech claim) gives that citizen a procedural due process right toa “facially legitimate and bona fide reason” for why someone else’svisa was denied. And Muñoz is not constitutionally entitled to onehere.*  *  *The judgment of the Ninth Circuit is reversed,and the case is remanded for further proceedings consistent withthis opinion.It is so ordered.

SUPREME COURT OF THE UNITED STATES_________________No. 23–334_________________Department of State, etal., PETITIONERSv. Sandra MuÑoz, etal.on writ of certiorari to the united statescourt of appeals for the ninth circuit[June 21, 2024]Justice Sotomayor, with whom Justice Kagan andJustice Jackson join, dissenting.“The right to marry is fundamental as a matterof history and tradition.” Obergefell v. Hodges,576 U.S.644, 671 (2015). After U.S. citizen Sandra Muñoz and herSalvadoran husband spent five years of married life in the UnitedStates, the Government told her that he could no longer reenter thecountry. If she wanted to live together with him and their childagain, she would have to move to El Salvador. The reason? Aconsular officer’s bare assertion that her husband, who has nocriminal record in the United States or El Salvador, planned toengage in “unlawful activity.” 8 U.S.C.§1182(a)(3)(A)(ii). Muñoz argues that the Government, havingburdened her fundamental right to marriage, owes her one thing: thefactual basis for excluding her husband.The majority could have resolved this case onnarrow grounds under longstanding precedent. This Court has alreadyrecognized that excluding a noncitizen from the country can burdenthe constitutional rights of citizens who seek his presence. SeeKleindienst v. Mandel, 408 U.S.753, 765–770 (1972). Acknowledging the Government’s power overadmission and exclusion, the Mandel Court held that “afacially legitimate and bona fide reason” for the exclusionsufficed to justify that burden. Id., at 770. In this case,after protracted litigation, the Government finally explained thatit denied Muñoz’s husband a visa because of its belief that he hadconnections to the gang MS–13. Regardless of the validity of thatbelief, it is a “facially legitimate and bona fide reason.”Ibid.; see also ante, at 1 (Gorsuch, J., concurringin judgment). Under this Court’s precedent, that is enough.Instead, the majority today chooses a broadholding on marriage over a narrow one on procedure.[1] It holds that Muñoz’s right to marry, livewith, and raise children alongside her husband entitles her tonothing when the Government excludes him from the country. Despitethe majority’s assurance two Terms ago that its eradication of theright to abortion “does not undermine ... in any way”other entrenched substantive due process rights such as “the rightto marry,” “the right to reside with relatives,” and “the right tomake decisions about the education of one’s children,” the Courtfails at the first pass. Dobbs v. Jackson Women’s HealthOrganization, 597 U.S. 215, 256–257 (2022). Because, to me,there is no question that excluding a citizen’s spouse burdens herright to marriage, and that burden requires the Government toprovide at least a factual basis for its decision, I respectfullydissent.IAMarriage is not an automatic ticket to a greencard. A married citizen-noncitizen couple must jump through aseries of administrative hoops to apply for the lawful permanentresidency that marriage can confer. Noncitizen spouses coming fromabroad must apply for a visa to enter the United States. In certaincases, however, the law requires even couples who meet and marry inthe United States to send the noncitizen spouse back to his countryof origin to do the same thing. In doing so, the couple must takean enormous risk to pursue the stability of lawful immigrationstatus: the risk that when the noncitizen spouse tries to reenterthe United States, he will face unexpected exile.In technical immigration terms, a noncitizenspouse applying for a green card seeks to “[a]djus[t]” hisimmigration “status” from “nonimmigrant to that of [a] personadmitted for permanent residence.” 8 U.S.C. §1255. Todo so, the citizen spouse must petition the Government on thenoncitizen’s behalf. The citizen spouse first sends United StatesCitizenship and Immigration Services (USCIS) a petition to classifythe noncitizen spouse as an “immediate relative.”§§1151(b)(2)(A)(i), 1154(a)(1)(A). Once USCIS approves thepetition, a noncitizen spouse who is already in the United Statescan then apply to adjust his status to lawful permanent residentwithout leaving the country. See §1255(a). For a noncitizen spouseliving outside of the United States, however, USCIS first approvesthe immediate-relative petition, but then sends it to the consulateof the country where the noncitizen spouse lives for processing.See §1154(b); 22 CFR §§42.42, 42.61 (2023). A consular officerinterviews the noncitizen spouse and makes the final admissiondecision. See 8 U.S.C. §§1201, 1202(f).Because of idiosyncrasies in our immigrationsystem, not all noncitizen spouses living in the United States canadjust their status with USCIS. Even when a couple meets, marries,and lives in the United States, the noncitizen spouse may insteadhave to travel back to his country of origin for consularprocessing if he was never formally “inspected and admitted orparoled” at the Border. §1255(a). A noncitizen who entered without“inspect[ion]” in this way typically cannot adjust his status fromwithin the United States based on an immediate-relative petition.See ibid. Once the citizen spouse submits the petition toUSCIS, the noncitizen spouse must return to his country of originand meet with a consular officer, who will then adjudicate hisapplication. See 22 CFR §§42.42, 42.61, 42.62.Living in the United States after initiallyhaving entered without inspection is not unusual. In fact, theGovernment endorses the presence of many of these members of ournational community. Recipients under the Deferred Action forChildhood Arrivals (DACA) program, for instance, may have beenbrought across the border by their parents without inspection. Eventhough DACA status entitles them to work and live in the countrywithout the immediate threat of removal, see 8 CFR §236.21(c), itdoes not change their initial entry designation. As of the end of2023, there were roughly 530,000 active DACA recipients in theUnited States. See Dept. of Homeland Security (DHS), USCIS, Countof Active DACA Recipients by Month of Current DACA Expiration (asof Dec. 31, 2023). The same is true of the approximately 680,000holders of Temporary Protected Status (TPS), who have beendesignated temporarily unable to return to their home countriesbecause of war, natural disasters, or other extraordinarycirc*mstances. See DHS, Citizenship and Immigration ServicesOmbudsman, Ann. Rep. 45 (June 30, 2023); Sanchez v.Mayorkas, 593 U.S. 409, 419 (2021) (holding that TPS statusdid not change an entry without inspection into a lawful admissionthat would allow adjustment to lawful permanent residency fromwithin the United States). Even when married to a U.S.citizen, DACA recipients and TPS holders are barred from adjustingstatus within the United States if they entered without inspection.See 8 U.S.C. §1255(a).Ironically, the longer the noncitizen spouse haslived in the United States, the more difficult and uncertain theprocess to adjust to lawful status can become. A noncitizen whoinitially entered without inspection will accrue “unlawfulpresence,” which can bar him from reentering the country if heleaves. §1182(a)(9)(B). If a noncitizen who has lived in the UnitedStates between six months and one year leaves and tries to reenter,he will be subject to a 3-year reentry bar. §1182(a)(9)(B)(i)(I).If he has lived in the United States for more than a year and triesto reenter, he faces a 10-year ban. §1182(a)(9)(B)(i)(II).This scheme places couples who meet and marry inthe United States in a difficult position if the noncitizen spouseentered without inspection. The couple can continue to live withone spouse in a precarious immigration status; or, they can seekthe stability of permanent residency for the noncitizen spouse butface a potential multiyear exile when he leaves and applies forreentry.Recognizing this difficult choice, USCIS allowsa noncitizen spouse to apply for a waiver of inadmissibility forany accrued unlawful presence before departing the United Statesfor his consular interview. To obtain such a waiver, the noncitizenspouse must show that the citizen spouse will suffer “extremehardship” if her noncitizen spouse is not admitted.§1182(a)(9)(B)(v). Then, once the noncitizen spouse returns to hiscountry of origin, if a consular officer approves his visaapplication, he can reenter free from the inadmissibility bar.Consular officers fall under the StateDepartment, see §1104(a), not DHS, which oversees USCIS, see 6U.S.C. §271(a). Even though DHS officers and consularofficers make admission determinations under the same substantivelaws, see §1182, in reality, a noncitizen seeking admission viaconsular processing faces a far higher risk of arbitrary denialwith far less opportunity for review than a noncitizen seekingadmission from DHS.DHS officers are constrained by a framework ofrequired process that does not apply to consular processing. Anoncitizen denied adjustment of status in the United States mustreceive notice and the reasons for a denial. See 8 CFR§245.2(a)(5)(i); DHS, USCIS, Policy Manual, vol. 7, pt. A, ch.11—Decision Procedures (June 14, 2024) (requiring that a denialnotice either “[e]xplain what eligibility requirements are not metand why they are not met” or “[e]xplain the positive and negativefactors considered, the relative weight given to each factorindividually and collectively, and why the negative factorsoutweigh the positive factors”). He can renew his application inremoval proceedings before an immigration court, see 8U.S.C. §1229b(b)(1), where DHS must present anyevidence against him in adversarial proceedings, see §§1229(a),1229a(b)(4)(B), 1229a(c)(3). From those removal proceedings, anoncitizen can petition for review to the Board of ImmigrationAppeals (BIA), see 8 CFR §1003.1(b), and, ultimately, a federalcourt of appeals, see 8 U.S.C. §1252(a).In contrast, a noncitizen denied admission viaconsular processing is entitled to nothing more than a cite to thestatute under which the consular officer decided to exclude him.§1182(b)(1).[2] He has noopportunity for administrative or judicial review, and can onlysubmit more evidence and request reconsideration. 22 CFR §42.81(e).Former consular officers tell this Court that this lack ofaccountability, coupled with deficient information and inconsistenttraining, means decisions often “rely on stereotypes or tropes,”even “bias or bad faith.” Brief for Former Consular Officers asAmici Curiae 8. Visa applicants may “experience disparateoutcomes based on nothing more than the luck or misfortune of whichdiplomatic post and consular officer ... they happen tobe assigned.” Id., at 8–9. The State Department’s Office ofthe Inspector General has documented numerous deficiencies inconsular processing across several continents. See,e.g., ISP–I–19–14, Inspection of Embassy Bogota,Colombia, p.16 (Apr. 2019) (finding consular managers inBogota required visa adjudicators to maintain an average of 30in-person interviews per hour). Supervisors are required by theState Department to review a certain percentage of visa denials butoften fail to do so. See, e.g., Office of InspectorGeneral, ISP–I–19–17, Inspection of Embassy Santo Domingo,Dominican Republic, p.12 (July 2019) (finding “managers didnot review 284 (23 percent) of the refusals that should have beenreviewed between April 1 and June 30, 2018”); Office of InspectorGeneral, ISP–I–16–24A, Inspection of Embassy Ankara, Turkey,p.20 (Sept. 2016) (finding visa adjudicator failed to reviewthe required 10% of visa issuances and 20% of visa denials).When the Government requires one spouse to leavethe country to apply for immigration status based on his marriage,it therefore asks him to give up the process he would receive inthe United States and subject himself to the black box of consularprocessing.BMuñoz, a celebrated workers’ rights lawyerfrom Los Angeles, California, met Luis Asencio-Cordero in 2008,three years after he had arrived in the United States. They havebeen married since 2010 and have a child together. In 2013, Muñozfiled an immediate-relative petition for her husband, which USCISapproved. Because Asencio-Cordero had originally entered the UnitedStates without inspection, the Government required him to return toEl Salvador, his country of origin, for consular processing toobtain his immigrant visa. Yet he also faced a bar to reentry if heleft the country. DHS granted him a waiver of this bar upon hisanticipated return to the United States because of the “extremehardship” Muñoz would suffer if he were excluded. 8U.S.C. §1182(a)(9)(B)(v). In April 2015,Asencio-Cordero traveled from California to El Salvador. That wasthe last time he stood on American soil.Asencio-Cordero attended the initial consularinterview in San Salvador on May 28, 2015. In December 2015, aconsular officer denied his visa application. As justification, thedenial cited only to §1182(a)(3)(A)(ii). That statute provides thatany noncitizen “who a consular officer ... knows, orhas reasonable ground to believe, seeks to enter the United Statesto engage solely, principally, or incidentally in ...any other unlawful activity ... is inadmissible.” Inother words, the consular officer excluded Asencio-Cordero based ona belief that he planned to engage in some unspecified unlawfulconduct upon return to the United States. “[U]nlawful activity”could mean anything from jaywalking to murder.Asencio-Cordero has no criminal history in theUnited States or El Salvador. See 50 F. 4th 906, 911 (CA9 2022);Brief for Respondents 8, n.5 (“It is uncontested thatAsencio-Cordero has never been charged with any crime”). With noobvious justification for the consular officer’s belief, Muñoz andAsencio-Cordero asked for reconsideration. Muñoz sought the help ofCongresswoman Judy Chu, who sent a letter to the State Departmenton Muñoz’s behalf. The following day, the consulate responded tothe letter again with only a citation to §1182(a)(3)(A)(ii). InJanuary and April 2016, Muñoz asked the State Department for thefactual basis for her husband’s inadmissibility. She and herhusband provided evidence of her accolades at work and attestationsof Asencio-Cordero’s good moral character. A few days later, theconsulate notified Muñoz that the State Department had reviewed thedenial and concurred with the consular officer’s decision. Itdenied reconsideration.After the consulate denied reconsideration,Muñoz and her husband wrote to the State Department againrequesting a factual basis for the inadmissibility decision.Asencio-Cordero has no criminal record, but he does have severaltattoos from his teenage years. App. 22. They depict a range ofsubjects, including “Our Lady of Guadalupe, Sigmund Freud, a‘tribal’ pattern with a paw print, and theatrical masks with diceand cards.” Brief for Respondents 2, n.2. Some of theseimages have deep significance in Latin American culture. See,e.g., Brief for Professors and Scholars as AmiciCuriae 8–10 (“Many Latin Americans view La Virgen de Guadalupeas a special protector, and as a symbol of pan-Latinx identity thattranscends attachment to any one geography”). Some also happen toappear on gang members. See ibid. (noting that “lawenforcement agencies and officials often use tattoos of commonCatholic imagery ... as indicia of gang membership”).Speculating about potential bases for a visa denial, Muñoz and herhusband included additional evidence from a court-approved gangexpert in their letter to the State Department. The expert reviewedAsencio-Cordero’s tattoos and concluded that none were“‘related to any gang or criminal organization in the UnitedStates or elsewhere.’” 50 F. 4th, at 911. The StateDepartment responded that it lacked authority to overturn consulardecisions and “‘concurred in the finding ofineligibility.’” Ibid. The consulate followed up inMay 2016, a year after Asencio-Cordero’s initial interview, bylisting all the entities that had reviewed the visa application andnoting that “‘there is no appeal.’” Ibid.It was only after Muñoz and her husband sued theGovernment in Federal District Court that they finally received thefactual basis for the denial. After almost two years of litigation,the Government submitted a declaration from a State Departmentattorney-adviser. Id., at 912. That declaration stated thatthe consular officer denied Asencio-Cordero’s visa applicationunder §1182(a)(3)(A)(ii) because “‘based on the in-personinterview, a criminal review of Mr. Asencio Cordero and a review of... Mr. Asencio Cordero’s tattoos, the consular officerdetermined that Mr. Asencio Cordero was a member of a knowncriminal organization ... specifically MS-13.’”Ibid. (alterations omitted).The Court of Appeals ruled in Muñoz’s favor. Itheld that the Government’s reason was too little, too late. Thedenial of her husband’s visa burdened Muñoz’s right to marriage,and the Government had provided inadequate process. Even though theGovernment provided a “facially legitimate and bona fide” reason,that reason was not “timely” enough to satisfy constitutional dueprocess requirements. Id., at 919–921. This Court grantedthe Government’s petition for a writ of certiorari. 601 U.S.___ (2024).IIThere was a simple way to resolve this case. Iagree with Justice Gorsuch that “the United States has now revealedthe factual basis for its decision to deny [Muñoz’s] husband avisa,” and she has thus received whatever process she was due.Ante, at 1 (opinion concurring in judgment).[3] That could and should have been the end ofit. Instead, the majority swings for the fences. It seizes on theGovernment’s invitation to abrogate the right to marriage in theimmigration context and sharply limit this Court’s longstandingprecedent.Muñoz has a constitutionally protected interestin her husband’s visa application because its denial burdened herright to marriage. She petitioned USCIS to recognize their marriageso that her husband could remain lawfully beside her and theirchild in the United States. It was the extreme hardship Muñoz facedfrom her husband’s exclusion that formed the basis for USCIS’swaiver of his inadmissibility. For the majority, however, onceMuñoz’s husband left the country in reliance on those approvals,their marriage ceased to matter. Suddenly, the Government owed herno explanation at all.The constitutional right to marriage is not soflimsy. The Government cannot banish a U.S. citizen’s spouseand give only a bare statutory citation as an excuse. By denyingMuñoz the right to a factual basis for her husband’s exclusion, themajority departs from longstanding precedent and gravelyundervalues the right to marriage in the immigration context.AThe constitutional right to marriage has deeproots. “[M]arriage,” this Court said over a century ago, “issomething more than a mere contract.” Maynard v.Hill, 125 U.S.190, 210–211 (1888). It is “the most important relation inlife,” id., at 205, and “the foundation of the family,”id., at 211. This Court has described it in one breath asthe right “to marry, establish a home and bring up children,” aright “long recognized at common law as essential to the orderlypursuit of happiness by free men.” Meyer v. Nebraska,262 U.S.390, 399 (1923). In upholding the right of Mildred and RichardLoving to have their marriage license from the District of Columbiarecognized by Virginia, this Court emphasized that “[m]arriage isone of the ‘basic civil rights of man,’ fundamental to our veryexistence and survival.” Loving v. Virginia,388 U.S.1, 12 (1967) (quoting Skinner v. Oklahoma ex rel.Williamson, 316 U.S.535, 541 (1942)). Indeed, the right to marriage was one of thefirst building blocks of substantive due process. The right was so“‘fundamental’” and “‘implicit in the concept ofordered liberty’” that the Roe Court invoked it aspart of the foundation underlying the right to abortion. Roev. Wade, 410 U.S.113, 152–153 (1973) (cataloguing existing substantive dueprocess rights as extending to “marriage, procreation,contraception, family relationships, and child rearing andeducation” (citations omitted)), overruled, Dobbs, 597 U.S.215.Almost 10 years ago, this Court vindicated theexpansiveness of the right to marriage. It upheld the right ofJames Obergefell and his terminally ill husband, John Arthur, tohave their marriage from Maryland recognized in Ohio. Rejecting theidea that “Ohio can erase [Obergefell’s] marriage to John Arthurfor all time” by declining to place Obergefell as the survivingspouse on Arthur’s death certificate, this Court reasoned that“marriage is a right ‘older than the Bill of Rights.’”Obergefell, 576 U.S., at 666, 678. Marriage“‘fulfils yearnings for security, safe haven, and connectionthat express our common humanity.’” Id., at 666.“Marriage responds to the universal fear that a lonely person mightcall out only to find no one there. It offers the hope ofcompanionship and understanding and assurance that while both stilllive there will be someone to care for the other.” Id., at667.The majority, ignoring these precedents, makesthe same fatal error it made in Dobbs: requiring too“‘careful [a] description of the asserted fundamental libertyinterest.’” Ante, at 9 (quoting Washington v.Glucksberg, 521 U.S.702, 721 (1997)); cf. Dobbs, 597 U.S., at 374–375(Breyer, Sotomayor, and Kagan, JJ., dissenting). The majorityfaults Muñoz’s invocation of the “‘fundamental right tomarriage’” as “difficult to pin down.” Ante, at 9.Instead, it tries to characterize her asserted right as “anentitlement to bring [her husband] to the United States,” eventhough it acknowledges that Muñoz “disclaims thatcharacterization.” Ibid.Obergefell rejected what the majoritydoes today as “inconsistent with the approach this Court has usedin discussing [the] fundamental rights” of “marriage and intimacy.”576 U.S., at 671. Cataloguing a half century of precedent onthe right to marriage, the Court stressed that “Loving didnot ask about a ‘right to interracial marriage’; Turner didnot ask about a ‘right of inmates to marry’; and Zablockidid not ask about a ‘right of fathers with unpaid child supportduties to marry.’” Ibid. Instead, “each case inquiredabout the right to marry in its comprehensive sense” of “marriageand intimacy.” Ibid. Similarly, Muñoz does not argue thather marriage gives her the right to immigrate her husband. Sheinstead advances the reasonable position that blocking her fromliving with her husband in the United States burdens her right “tomarry, establish a home and bring up children” with him.Meyer, 262 U.S., at 399.This Court has never required that plaintiffs befully prevented from exercising their right to marriage beforeinvoking it. Instead, the question is whether a challengedgovernment action burdens the right. For example, the Court inZablocki v. Redhail, 434 U.S.374 (1978), examined the “burde[n]” placed on fathers by astatute that required a hearing to “counsel” them “as to thenecessity of fulfilling” any outstanding child support obligationsbefore being granted permission to marry. Id., at 387–388.The Court in Turner v. Safley, 482 U.S.78 (1987), applied Zablocki to incarcerated people tohold that the particular prison marriage restriction at issue“impermissibly burden[ed] the right to marry.” 482 U.S., at97. There can be no real question that excluding a citizen’s spousefrom the country “burdens” the citizen’s right to marriage as thisCourt has repeatedly defined it. This Court has never held that amarried couple’s ability to move their home elsewhere removes theburden on their constitutional rights. It did not tell Richard andMildred Loving to stay in the District of Columbia or JamesObergefell and John Arthur to stay in Maryland. It upheld theirability to exercise their right to marriage wherever they sought tomake their home.Muñoz may be able to live in El Salvadoralongside her husband or at least visit him there, but not everyoneis so lucky. The majority’s holding will also extend to thosecouples who, like the Lovings and the Obergefells, depend onAmerican law for their marriages’ validity. Same-sex couples may beforced to relocate to countries that do not recognize same-sexmarriage, or even those that criminalize hom*osexuality. Americanhusbands may be unable to follow their wives abroad if their wives’countries of origin do not recognize derivative immigration statusfrom women (as was the case in this country for many years, seeante, at 12 (noting visa “quotas ... for femalecitizens with noncitizen husbands” until 1952)). The majority’sfailure to respect the right to marriage in this country consignsU.S. citizens to rely on the fickle grace of other countries’immigration laws to vindicate one of the “‘basic civil rightsof man’” and live alongside their spouses. Loving, 388U.S., at 12.BGiven that the Government has burdened Muñoz’sright to marriage by excluding her husband from the country, thequestion is the remedy for that burden. Muñoz argues that thisburden triggers procedural due process protections in her husband’svisa denial. Emphasizing that substantive due process rights likethe right to marriage usually trigger strict scrutiny, the majorityfaults Muñoz for creating a right “in a category of one: asubstantive due process right that gets only procedural due processprotection.” Ante, at 10. Muñoz, however, did not createthat category of rights. This Court did. See Mandel, 408U.S., at 768–770. This Court already set the ground rules forwhen the Government’s exercise of its extensive power over theexclusion of noncitizens burdens a U.S. citizen’sconstitutional rights. See id., at 770. In short, afundamental right may trigger procedural due process protectionsover a noncitizen’s exclusion, but such protections are limited.See ibid.Noncitizens who apply for visas from outside theUnited States have no constitutional entitlement to enter thecountry, and therefore typically have no constitutional processprotections in the visa application themselves. See Landonv. Plasencia, 459 U.S.21, 32 (1982). In contrast, noncitizens who already live in theUnited States whom the Government seeks to remove have proceduraldue process protections during that removal. See Yick Wo v.Hopkins, 118 U.S.356, 369 (1886); Zadvydas v. Davis, 533 U.S.678, 693 (2001). Had the Government sought to remove Muñoz’shusband when they were living together in the United States, hewould have had his own constitutional protections in thoseproceedings. Instead, because the Government forced him to leavethe country and reenter in order to adjust his immigration status,he lost them.Not only do noncitizens seeking to enter theUnited States lack constitutional process rights in their visaapplications. This Court has further insulated the Government’svisa determinations from review by declining to evaluate them atall. See ante, at 6–7. This judge-made “doctrine of consularnonreviewability” reflects the Judicial Branch’s recognition thatthe “‘admission and exclusion of foreign nationals’” isan area of unusually heightened congressional and executive power.Ante, at 6–7.[4] Whenthe de- nial of a noncitizen’s visa burdens a U.S. citizen’sconstitutional rights, however, this Court has had to reconcile theimportance of those rights with its recognition of Governmentauthority over visa determinations. In Mandel, it set theremedy. The Mandel Court held that when a visa denial“implicate[s]” a citizen’s rights, a court will not look behind a“facially legitimate and bona fide” reason for the denial. 408U.S., at 765, 769.In Mandel, a group of U.S.professors sued the Government over the visa denial of Dr. ErnestE. Mandel, a famous Belgian Marxist. See id., at 756,759–760. The professors argued that excluding Mandel burdened theirFirst Amendment right to hear and meet with him in person. Seeid., at 760. The Court agreed that the professors had aFirst Amendment “‘right to receive information’” fromMandel. Id., at 762, 764. It also emphasized, as themajority does today, Congress’s power over the admission andexclusion of noncitizens. See id., at 766–767; ante,at 6–7. To avoid the need to balance “the strength of theaudience’s interest against that of the Government in refusing awaiver to the particular [noncitizen] applicant, according to someas yet undetermined standard,” Mandel, 408 U.S., at768–769, the Court instead noted that “the Attorney General didinform Mandel’s counsel of the reason for refusing him a waiver.And that reason was facially legitimate and bona fide.”Id., at 769 (emphasis added). Therefore, “when the Executiveexercises [conditional power to exclude] negatively on the basis ofa facially legitimate and bona fide reason, the courts will neitherlook behind the exercise of that discretion, nor test it bybalancing its justification against the First Amendment interestsof those who seek personal communication with the applicant.”Id., at 770. In other words, when a visa denial burdens anoncitizen’s constitutional rights, rather than attempt to balancethe competing interests under strict scrutiny, a court shouldaccept the Government’s “facially legitimate and bona fide reason.”Ibid. That minimal requirement ensures that courts do notunduly intrude on “the Government’s sovereign authority to set theterms governing the admission and exclusion of noncitizens,”ante, at 11, while also ensuring that the Government doesnot arbitrarily burden citizens’ constitutional rights.This Court has repeatedly relied onMandel’s test in the immigration context. See,e.g., Trump v. Hawaii, 585 U.S. 667,703 (2018) (noting that “this Court has engaged in a circ*mscribedjudicial inquiry when the denial of a visa allegedly burdens theconstitutional rights of a U.S. citizen”); Fiallo v.Bell, 430 U.S.787, 794, 799 (1977) (relying on Mandel in declining to“probe and test the justifications for [a] legislative” distinctionbetween mothers and fathers because this Court has applied limitedscrutiny to “resolv[e] similar challenges to immigrationlegislation based on other constitutional rights ofcitizens”).[5] Indeed, lessthan a decade ago, six Justices ruling on the exact legal questionthe Court confronts today would have held that Mandelcontrolled or extended its protections even further in the marriagecontext. See Kerry v. Din, 576 U.S.86, 103–104 (2015) (Kennedy, J., concurring in judgment) (“Thereasoning and the holding in Mandel controlhere... . Like the professors who sought an audiencewith Dr. Mandel, [respondent] claims her constitutional rights wereburdened by the denial of a visa to a noncitizen, namely herhusband”); id., at 107 (Breyer, J., dissenting) (reasoningthat respondent’s “liberty interest [in] her freedom to livetogether with her husband in the United States” is the kind “towhich the Due Process Clause grants procedural protection”).Outside the immigration context, this Court hasendorsed similar tests in circ*mstances where there is a heightenedunderlying governmental power. For instance, in Turner, theCourt evaluated the right to marriage in the prison context. Eventhough an incarcerated person “‘retains those[constitutional] rights that are not inconsistent with his statusas a prisoner or with the legitimate penological objectives of thecorrections system,’” the Court emphasized that “[t]he rightto marry, like many other rights, is subject to substantialrestrictions as a result of incarceration.” 482 U.S., at 95(quoting Pell v. Procunier, 417U.S. 817, 822 (1974)). Only because the challenged prisonregulation there was not “reasonably related” to the government’sarticulated penological interests, or “legitimate security andrehabilitation concerns,” did this Court hold it unconstitutional.Turner, 482 U.S., at 95; see id., at 99.Just as Turner looked at burdens on theright to marriage through the narrow lens of “penologicalinterests” to defer to the government’s control over prisons,Mandel used a “facially legitimate and bona fide reason” todefer to the Government’s power over the exclusion of noncitizens.Neither case erased the constitutional right at issue. The Courtsimply recognized that the right can be substantially limited inareas where the government exercises unusually heightenedcontrol.Applying Mandel and Turner here,the remedy is clear. The Government’s exclusion of Muñoz’s husbandentitles her at least to the remedy required in Mandel: a“facially legitimate and bona fide reason” for the exclusion. 408U.S., at 770.CThe majority resists this conclusion byworrying about its “unsettling collateral consequences.”Ante, at 16. The majority poses a series of hypotheticalsthat it fears will result from recognizing the limited right Muñozproposes. These fears are groundless.First, the majority’s concern that applyingMandel to Muñoz’s right to marriage in this case will resultin a slippery slope of constitutional challenges is unfounded.Muñoz’s right triggers limited process protections in part becauseher husband lost his own procedural protections when the Governmentrequired him to leave the country. Muñoz’s right to marriage raisesthat floor from zero process to some by requiring the Government toprovide a “facially legitimate and bona fide reason” when herhusband receives no process. In contrast, a citizen’s libertyinterest “in the removal proceeding of her spouse” in the UnitedStates, ante, at 16, would presumably be limited by thenoncitizen’s own due process rights in that same proceeding.Similarly, any challenge from a wife to her husband’s“‘assignment to a remote prison,’” ibid., wouldpresumably be limited by the criminal procedural protections herhusband already received.Second, the majority’s reliance onO’Bannon v. Town Court Nursing Center, 447 U.S.773 (1980), is misplaced and highlights the speculative natureof its concerns. O’Bannon rejected a freestandingconstitutional interest in avoiding “serious trauma.” Id.,at 788. The residents of a government-funded nursing home soughtrelief from transfer to alternative housing because of theemotional harm they would suffer from the move. Id., at777–781, 784. Muñoz, however, does not rely on a free-floatingemotional harm that separation from her husband will cause. Sheinvokes her fundamental right to marry, live, and raise a familywith her husband, the right recognized by this Court for centuries.See supra, at 11–14. Denying her husband entry to thecountry directly burdens that right.In sum, the majority’s concerns are unwarranted.There are few circ*mstances where the limited relief sought byMuñoz would be available.IIIA “facially legitimate and bona fide” reasonmay seem like a meager remedy for burdening a fundamental right.Yet even the barest explanation requirement can be powerful. Themajority relies heavily on United States ex rel. Knauff v.Shaughnessy, 338 U.S.537 (1950). See ante, at 6–7, 13–14. A closer look atthe story of Ellen Knauff, however, illustrates the importance ofputting the Government to a minimal evidence requirement when avisa denial burdens a constitutional right.Knauff’s U.S. citizen husband soughtto bring her to the United States after they married during hisdeployment to Germany. After this Court upheld her exclusion onundisclosed national security grounds, there was a public outcry.See C. Weisselberg, The Exclusion and Detention of Aliens: LessonsFrom the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa.L.Rev. 933, 958–964 (1995). Both Houses of Congressintroduced private bills for her relief and, after the AttorneyGeneral rushed to remove Knauff from Ellis Island before Congresscould act, Justice Jackson (who had vigorously dissented in thecase) issued a stay from this Court. See id., at 958,n.127. After extensive advocacy, the Attorney General orderedimmigration officials to reopen the case. See id., at961–962. Eventually, Knauff won her case before the BIA when theGovernment failed to prove up its national security concerns.Id., at 963–964. She was finally admitted as a lawfulpermanent resident. Id., at 964.The majority relies heavily on “[t]he rule ofKnauff”: that “the Attorney General has theunchallengeable power to exclude” a noncitizen. Ibid.;ante, at 14 (emphasizing that “‘[n]o limits can be putby the courts upon’” the exercise of the Government’s powerto “‘forbid aliens or classes of aliens from coming withintheir borders’”). Yet, “the full story of Ellen Knauff showsa populace and a Congress unwilling to accept the exercise of thissort of raw power.” Weisselberg, 143 U.Pa. L.Rev., at964. “Once the government was required to justify its exclusiondecision with substantial and reliable evidence, in an openproceeding, Knauff gained admission into the United States.”Ibid.Knauff brought her own habeas petition tochallenge her exclusion. Knauff, 338 U.S., at 539–540.Her husband did not argue that her exclusion burdened his right tomarriage. Twenty-two years after Knauff, however, when facedwith such a challenge, this Court limited the justification thatthe Government must provide in these circ*mstances to a “faciallylegitimate and bona fide reason.” Mandel, 408 U.S., at770. The majority, not content to resolve this case on even thosenarrow grounds, instead relieves the Government of any need tojustify itself at all. Knauff’s story illustrates why theright to marriage deserves more. By leaving U.S. citizenswithout even a factual basis for their spouses’ exclusion, themajority paves the way for arbitrary denials of a right this Courthas repeatedly held among the most important to our Nation.*  *  *A traveler to the United States two centuriesago reported that “‘[t]here is certainly no country in theworld where the tie of marriage is so much respected as inAmerica.’” Obergefell, 576 U.S., at 669 (quoting1 A. de Tocqueville, Democracy in America 309 (H. Reeve transl.,rev. ed. 1900)). Today, the majority fails to live up to thatcenturies-old promise. Muñoz may be able to live with her husbandin El Salvador, but it will mean raising her U.S.-citizenchild outside the United States. Others will be less fortunate. Theburden will fall most heavily on same-sex couples and others wholack the ability, for legal or financial reasons, to make a home inthe noncitizen spouse’s country of origin. For those couples, thisCourt’s vision of marriage as the “assurance that while both stilllive there will be someone to care for the other” rings hollow.Obergefell, 576 U.S., at 667. I respectfullydissent.