Sandra Munoz v. Dos

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SANDRA MUNOZ; LUIS ERNESTO No. 21-55365
ASENCIO-CORDERO,
D.C. No. 2:17-cv-
Plaintiffs-Appellants, 00037-AS

v.
ORDER
UNITED STATES DEPARTMENT
OF STATE; ANTONY J. BLINKEN,
United States Secretary of State;
BRENDAN O'BRIEN, United States
Consul General, San Salvador, El
Salvador,

Defendants-Appellees.

Filed July 14, 2023

Before: Mary M. Schroeder, Kermit V. Lipez, * and
Kenneth K. Lee, Circuit Judges.

Order;
Dissent by Judge Bress;
Dissent by Judge Bumatay

*
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
2 MUÑOZ V. DEP’T OF STATE

SUMMARY **

Immigration

The panel denied a petition for rehearing en banc after a
request for a vote on whether to rehear the matter en banc,
and the matter failed to receive a majority of the votes of the
nonrecused active judges in favor of en banc consideration,
in a case in which the panel held that: (1) where the
adjudication of a non-citizen’s visa application implicates a
citizen’s constitutional rights, due process requires that the
government provide timely and adequate notice to the citizen
of a decision that will deprive the citizen of that interest; and
(2) because the government failed to provide timely notice
here, it was not entitled to summary judgment based on the
doctrine of consular nonreviewability.
Dissenting from the denial of rehearing en banc, Judge
Bress, joined by Judge Lee, wrote that the court seriously
overstepped its bounds in requiring the government, as a
matter of due process, to provide its reasons for denying a
visa within a “reasonable” time. When, as here, there is no
showing of bad faith and the government has provided a
facially legitimate and bona fide reason for denying a visa,
there is no requirement that it provide the valid reason within
a set time.
Dissenting from the denial of rehearing en banc, Judge
Bumatay, joined by Judges Callahan, Ikuta, Bennett, R.
Nelson, Bade, and VanDyke, and joined by Judges Collins,
Lee, and Bress in Part III-B, wrote that the panel’s opinion

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MUÑOZ V. DEP’T OF STATE 3

violated the separation of powers in three distinct ways: (1)
by recognizing that citizens have a “liberty interest” in their
spouse’s visa denial; (2) by holding that the government’s
citation of the “unlawful activity” bar to admission is not
enough to support a visa denial and that the government must
instead always disclose the facts underlying such a denial;
and (3) by creating a vague “timeliness” requirement for the
doctrine of consular nonreviewability. In Part III-B, Judge
Bumatay explained that due process does not require the
court’s new timeliness requirement.

ORDER

The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
The petition for rehearing en banc, Docket No. 39, is
DENIED.

BRESS, Circuit Judge, joined by LEE, Circuit Judge,
dissenting from the denial of rehearing en banc:
I respectfully dissent from the denial of rehearing en
banc because our court seriously overstepped its bounds in
requiring the government, as a matter of due process, to
provide its reasons for denying a visa within a “reasonable”
time. When, as here, there is no showing of bad faith and
the government has provided a facially legitimate and bona
4 MUÑOZ V. DEP’T OF STATE

fide reason for denying a visa, there is no further requirement
that it provide the valid reason within a set time. Our court’s
novel timeliness rule has no proper legal grounding. And it
is inconsistent with the traditional deference we give to the
Executive in this area, as embodied in the doctrine of
consular nonreviewability and the separation of powers
principles that are its foundation.
I therefore agree with Judge Lee’s dissent at the panel
level, see Muñoz v. U.S. Dep’t of State, 50 F.4th 906, 924–
27 (9th Cir. 2022) (Lee, J. dissenting), and concur in Part
III.B of Judge Bumatay’s dissent from the denial of
rehearing en banc. As Judge Bumatay lays out, there may
well be other reasons why the plaintiffs’ challenge in this
case should fail. See also Kerry v. Din, 576 U.S. 86, 97, 101
(2015) (plurality op.); Colindres v. U.S. Dep’t of State, ___
F.4th ___, 2023 WL 4140277, at *3–6 (D.C. Cir. June 23,
2023). But in this case, the clear legal infirmity in our
court’s new timing rule—and the confusion it will surely
cause—provides more than sufficient reason to conclude
both that the government should easily prevail and that en
banc review was warranted.

BUMATAY, Circuit Judge, joined by CALLAHAN, IKUTA,
BENNETT, R. NELSON, BADE, and VANDYKE, Circuit
Judges; COLLINS, LEE, and BRESS, Circuit Judges, in Part
III-B, dissenting from the denial of rehearing en banc:
Under the doctrine of consular nonreviewability, the
federal government generally doesn’t need to justify its visa
decisions in court. Grounded in the separation of powers,
the century-old doctrine provides that courts should not look
behind the Executive’s exercise of its discretion to exclude
 MUÑOZ V. DEP’T OF STATE 5

aliens from our nation. As Justice John Marshall Harlan
wrote long ago, Congress may entrust the “final
determination” of whether an alien may enter the United
States “to an executive officer,” and “if it did so, his order
was due process of law, and no other tribunal, unless
expressly authorized by law to do so, was at liberty to re-
examine the evidence on which he acted or to controvert its
sufficiency.” Lem Moon Sing v. United States, 158 U.S. 538,
545 (1895). That’s because visa denials are a “fundamental
sovereign attribute exercised by the Government’s political
departments,” Trump v. Hawaii, 138 S. Ct. 2392, 2418
(2018) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)),
and we largely defer to the decisions of those branches.
To be sure, consular nonreviewability yields to
constitutional error. See Khachatryan v. Blinken, 4 F.4th
841, 849 (9th Cir. 2021). If a visa denial burdens the
constitutional right of a U.S. citizen, we may engage in a
“circumscribed judicial inquiry” over the denial. Id.
(quoting Trump, 138 S. Ct. at 2419). But this doesn’t mean
that courts may second-guess a visa denial every time it’s
somehow connected to a citizen. Instead, we’ve cabined this
narrow exception to nonreviewability in two important
ways. First, U.S. citizens may mount a constitutional attack
on a visa denial in only a narrow category of circumstances.
See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 770 (1972)
(recognizing that a visa denial may implicate the First
Amendment right of U.S. citizens). Second, even when a
constitutional right is implicated, the government only needs
to give a “facially legitimate and bona fide reason” for the
visa denial. Id. And the Supreme Court has set a rather low
bar to meet this requirement: “respect for the political
branches’ broad power over the creation and administration
of the immigration system mean[s] that the Government
6 MUÑOZ V. DEP’T OF STATE

need provide only a statutory citation to explain a visa
denial.” Trump, 138 S. Ct. at 2419 (simplified). In other
words, citing a statutory bar to admission under 8 U.S.C.
§ 1182(a) (“Classes of Aliens Ineligible for Visas or
Admission”) usually satisfies constitutional concerns.
In this case, Luis Ernesto Asencio-Cordero, a native and
citizen of El Salvador, was denied an immigrant visa. The
government told him and his U.S. citizen wife, Sandra
Muñoz, that the visa was denied because the Department of
State believes that Ascencio-Cordero will enter the United
States to commit “unlawful activity”—a statutory bar to
admission. See 8 U.S.C. § 1182(a)(3)(A)(ii). Asencio-
Cordero and Muñoz sued, alleging a violation of their
constitutional rights and demanding that the visa denial be
overturned. Under the doctrine of consular
nonreviewability, this should have been an easy case. Even
assuming a constitutional right was implicated, we should
have dismissed the case because citing the “unlawful
activity” statutory bar was enough to justify the
government’s decision.
Instead, we violated the separation of powers by granting
ourselves greater authority to interfere with the Executive’s
visa processing decisions. Under our newly arrogated
powers, we may now peek over the government’s shoulder
every time it denies a visa on security grounds if the
government’s explanation does not come quickly enough.
Muñoz v. U.S. Dep’t of State, 50 F.4th 906, 917, 920–24 (9th
Cir. 2022). We got there by first recognizing that an
American citizen has a “liberty interest” in her husband’s
visa application—a view of substantive due process not
shared by any other circuit court. Id. at 916. Then, we held
that citing the “unlawful activity” bar is not enough, and that
the government must always disclose the facts underlying a
 MUÑOZ V. DEP’T OF STATE 7

visa denial under § 1182(a)(3)(A)(ii). Id. at 917. We ended
by creating a “timeliness” requirement for the doctrine of
consular nonreviewability. Id. at 920–24. Under this new
rule, if we think the government’s justification for a visa
denial comes too late, we can strip the government of its
nonreviewability protection and order courts to “look
behind” the visa denial. Id. at 924.
Each one of these steps should have been reversed on en
banc review.
*
First, we should have ruled that citing the “unlawful
activity” bar satisfied any notice requirement. Under our
precedent, we only require the government to explain a visa
denial by citing a statutory provision that “specifies discrete
factual predicates the consular officer must find to exist
before denying a visa.” Khachatryan, 4 F.4th at 851
(simplified). Here, the government did exactly that. It told
Asencio-Cordero and Muñoz that Ascencio-Cordero’s visa
was denied because it believes he will enter the country to
engage in “unlawful activity.” See 8 U.S.C.
§ 1182(a)(3)(A)(ii). The Supreme Court has already ruled
that the adjacent “terrorist activities” bar under
§ 1182(a)(3)(B)—which, in part, similarly bars those “likely
to engage after entry in any terrorist activity”—provides
sufficient factual predicates and thus citing that bar satisfies
any judicial inquiry. Kerry v. Din, 576 U.S. 86, 105 (2015)
(Kennedy, J., concurring). If factual predicates are indeed
necessary here, we should have treated these similar
statutory bars similarly and held that citing the “unlawful
activity” bar was enough.
By requiring more for the “unlawful activity” bar, we
start down a road not traveled by our sister courts. The D.C.
8 MUÑOZ V. DEP’T OF STATE

Circuit recently ruled that citing the “unlawful activity” bar
alone satisfies the government’s notice obligation.
Colindres v. U.S. Dep’t of State, No. 22-5009, 2023 WL
4140277, at *6 (D.C. Cir. June 23, 2023). Other circuits,
including our own, have deferred to the government’s
citation of valid statutory bars to meet its notice
requirements. See Khachatryan, 4 F.4th at 852 (citing the
“visa fraud” bar under § 1182(a)(6)(C)(i) was enough); Yafai
v. Pompeo, 924 F.3d 969, 970 (7th Cir. 2019) (Barrett, J.,
concurring with denial of rehearing) (citing the “alien-
smuggling” bar under § 1182(a)(6)(E) was enough); Del
Valle v. Sec’y of State, 16 F.4th 832, 841–42 (11th Cir. 2021)
(citing the “false representation of citizenship” bar under
§ 1182(a)(6)(C)(ii) or the “unlawful presence” bar under
§ 1182(a)(9)(B)(i)(II) was enough). Two other circuits have
gone so far as to hold that citing any valid statute of
inadmissibility—regardless of its reference to factual
predicates—is enough. Baaghil v. Miller, 1 F.4th 427, 432–
34 (6th Cir. 2021) (“Even a ‘statutory citation’ to the
pertinent restriction, without more, suffices.”); Sesay v.
United States, 984 F.3d 312, 316 (4th Cir. 2021) (“The
Supreme Court has unambiguously instructed that absent
some clear directive from Congress or an affirmative
showing of bad faith, the government must simply provide a
valid ineligibility provision as the basis for the visa denial.”).
Indeed, aside from this case, no federal appellate court
has ever ruled that a statutory citation fails to provide
sufficient factual predicates to satisfy the government’s
notice obligations. So, at a minimum, we’ve strayed far
from the center of judicial gravity on this issue. And we
should have taken this case en banc to recenter our court.
 MUÑOZ V. DEP’T OF STATE 9

**
Second, our novel “timeliness” requirement has no basis
in the law. In the hundred-year history of consular
nonreviewability, no court has invented the rule that the
government must act within a certain timeframe to gain its
protection. Our reformulation of the doctrine not only bucks
history but flouts the will of Congress—Congress has
explicitly said that the government has no duty to give timely
notice to an alien excluded on security-related grounds, as
here. See 8 U.S.C. § 1182(b)(3). And, as a practical matter,
this new speedy-notice requirement will be an administrative
nightmare. Now consular officers will have to sift through
countless visa applications to determine who is entitled to
the heightened notice by relation to some citizen. And
besides, the officer will not know how quickly to act to avoid
defying the Ninth Circuit. That’s because our court failed to
even set clear parameters for the time limits, opting instead
to opaquely provide that timing must be “reasonable.”
Muñoz, 50 F.4th at 922–23. Respect for a co-equal branch
of government means that we should have at least explained
how the Executive can comply with our dictates.
***
Third, our court stands alone as the only circuit to hold
that a U.S. citizen has a “liberty interest” in his or her
spouse’s visa denial. The Supreme Court has repeatedly
warned that we should be circumspect in divining
unenumerated substantive rights from the Constitution’s
guarantee of “due process.” See Dobbs v. Jackson Women’s
Health Org., 142 S. Ct. 2228, 2247–48 (2022) (“We must . .
. exercise the utmost care whenever we are asked to break
new ground in this field, lest the liberty protected by the Due
Process Clause be subtly transformed into the policy
10 MUÑOZ V. DEP’T OF STATE

preferences of the Members of this Court.” (quoting
Washington v. Glucksberg, 521 U.S. 702, 720 (1997)))
(simplified). Here, contrary to the text, history, and structure
of the Constitution, we reaffirm our recognition of a U.S.
citizen’s due process right over an alien spouse’s visa denial.
We should not have doubled down on our position, which
reinforces a split with every other circuit to address this
issue. See Colindres, 2023 WL 4140277, *5 (“[C]itizens
have no fundamental right to live in America with their
spouses.”); Baaghil, 1 F.4th at 433 (“American residents—
whether citizens or legal residents—do not have a
constitutional right to require the National Government to
admit noncitizen family members into the country.”);
Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970)
(similar); Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 555
(2d Cir. 1975) (similar); Fasano v. United States, 230 F.
App’x 239, 239–40 (3d Cir. 2007) (“The Constitution does
not recognize the right of a citizen spouse to have his or her
alien spouse remain in the country.” (simplified))
(unpublished); Garcia v. Boldin, 691 F.2d 1172, 1183–84
(5th Cir. 1982) (similar).
And we didn’t need to reach this issue. If we had
properly ruled that citing the “unlawful activity” bar was
sufficient or that there’s no such thing as a timeliness
requirement for consular nonreviewability, we could have
avoided this weighty constitutional issue entirely. We could
have instead assumed that Muñoz possessed a constitutional
interest over her husband’s visa denial, but the government
had still satisfied its due process obligations. See Din 576
U.S. 86 at 101–06 (Kennedy, J., concurring) (assuming—
without deciding—that a constitutional interest over a visa
denial exists); see also Khachatryan, 4 F.4th at 850 (similar).
 MUÑOZ V. DEP’T OF STATE 11

*
Because our decision conflicts with the constitutional
design on multiple fronts, we should have reheard this case
en banc.
I thus respectfully dissent from the denial of rehearing en
banc.
I.
A.
Let’s start with an immigration backgrounder. Under the
Immigration and Nationality Act (“INA”), an alien must
obtain a visa before entering and permanently residing in the
United States. 8 U.S.C. § 1181(a). The INA creates a special
visa-application process for aliens sponsored by “immediate
relatives” in the United States. Id. §§ 1151(b)(2)(A)(i),
1153(a). Under this process, the citizen-relative first
petitions on behalf of the alien, asking to have the alien
classified as an immediate relative. Id. §§ 1151(f),
1154(a)(1). If a petition is approved, the alien may apply for
a visa by submitting the required documents and appearing
at a United States embassy or consulate for an interview with
a consular officer. Id. §§ 1201(a)(1), 1202. Before issuing
a visa, the consular officer must ensure the alien is not
inadmissible under any provision of immigration law. Id.
§ 1361.
B.
Now the facts. Sandra Muñoz is a citizen and lifelong
resident of the United States. In July 2010, Muñoz married
Luis Ernesto Asencio-Cordero, a native and citizen of El
Salvador, who arrived in the United States in March 2005.
In April 2015, after their “immediate relative” petition was
12 MUÑOZ V. DEP’T OF STATE

approved, Asencio-Cordero left the United States to obtain
his immigrant visa from the U.S. Consulate in El Salvador.
In May 2015, Asencio-Cordero had his initial consular
interview. During that interview, Asencio-Cordero denied
any association with criminal gangs.
In December 2015, the U.S. Consulate denied Asencio-
Cordero’s visa application on the grounds that he was
inadmissible under § 1182(a)(3)(A)(ii). Recall this
provision bars “[a]ny alien who a consular officer or the
Attorney General knows, or has reasonable ground to
believe, seeks to enter the United States to engage solely,
principally, or incidentally in any other unlawful activity.” 8
U.S.C. § 1182(a)(3)(A)(ii). Aside from citing the “unlawful
activity” bar, the U.S. Consulate did not provide any further
explanation for Asencio-Cordero’s visa denial.
After multiple attempts to overturn the visa denial,
Muñoz and Asencio-Cordero sued the State Department in
federal court in January 2017, alleging that the visa denial
was not facially legitimate and bona fide and was decided in
bad faith. The government moved to dismiss the case under
the doctrine of consular nonreviewability. The district court
ruled that Asencio-Cordero, as an unadmitted, non-resident
alien, lacked a right of judicial review and dismissed him
from the suit. On the other hand, because Muñoz was a U.S.
citizen, the district court refused to dismiss her claim.
In September 2018, the government provided a joint
discovery report that explained that the government denied
Asencio-Cordero’s visa application “after determining that
[he] was a member of a known criminal organization.” In
November 2018, a State Department declaration further
explained: based on interviews, a criminal review, and a
review of Asencio-Cordero’s tattoos, the government
 MUÑOZ V. DEP’T OF STATE 13

believed that he was a member of MS-13, a singularly brutal
gang. The State Department considers MS-13 to be a
national security threat. See U.S. Dep’t of State, 9 Foreign
Affairs Manual 302.5-4(B)(2)(a)(5). 1 The government later
warned that this gang information was gathered from law
enforcement sources and that it was “extremely dangerous”
to force the government to reveal its sources.
Muñoz and the government cross-moved for summary
judgment. In March 2021, the district court ruled for the
government. First, the district court found that Muñoz, as a
U.S. citizen married to Asencio-Cordero, had a protected
liberty interest in the visa denial. Second, the district court
reasoned that the government could invoke the doctrine of
consular nonreviewability because the government offered a
bona fide reason for the visa denial. The district court
rejected the government’s initial argument that citing the
“unlawful activity” statutory bar itself satisfied due process.
But based on the State Department’s declaration and other
government information, the district court found that the
government adequately explained the visa denial—the
government’s belief that Asencio-Cordero was a member of
MS-13. Finally, the district court found that Muñoz had not
shown that the government denied the visa in bad faith.
C.
On appeal, a divided panel of this court reversed.
The majority first reaffirmed Muñoz’s ability to sue,
holding that “U.S. citizens possess a liberty interest in a non-
citizen spouse’s visa application,” and that the government’s

1
https://perma.cc/QV6Y-EG3Q
14 MUÑOZ V. DEP’T OF STATE

denial of Asencio-Cordero’s visa application infringed on
that interest. Muñoz, 50 F.4th at 916.
Second, the majority said that citing the “unlawful
activity” bar, § 1182(a)(3)(A)(ii), could not provide a
legitimate and bona fide reason for the visa denial. Id. at
917. But like the district court, the majority concluded that
the State Department’s declaration explaining the
connection to MS-13 provided enough information to meet
the government’s due process obligations. Id. at 918.
Even so, the majority ruled that this information was
provided too late. The majority held that “where the
adjudication of a non-citizen’s visa application implicates
the constitutional rights of a citizen, due process requires that
the government provide the citizen with timely and adequate
notice of a decision that will deprive the citizen of that
interest.” Id. at 921. Because the government didn’t provide
the facts justifying the visa denial for nearly three years, the
majority held that the government did not meet this
“timeliness” requirement and thus the government could not
claim the protection of consular nonreviewability. Id. at
923–24. The majority then vacated and remanded for the
district court to “look behind” the government’s decision and
decide the merits of Muñoz’s claim. Id. at 924.
Judge Lee dissented. Because the State Department
advised Muñoz that it believed her husband to be connected
to MS-13 and, in Judge Lee’s view, Muñoz could not show
bad faith, “[t]hat should be the end of the story.” Id. at 925
(Lee, J., dissenting). He found no reason to “craft[] an
exception to the longstanding consular non-reviewability
doctrine” by creating a timeliness requirement. Id. Finally,
Judge Lee expressed concern that the timeliness requirement
 MUÑOZ V. DEP’T OF STATE 15

was unclear and unworkable and would lead to confusion in
the lower courts and at government agencies. Id. at 926–27.
II.
Before getting into the many ways that our court gets this
case wrong, it’s worth providing some background on the
doctrine of consular nonreviewability. So here goes:
A. Plenary Authority of the Political Branches
Our deference to the political branches on immigration
matters dates back over a century to at least the time of the
Chinese Exclusion Act. In 1889, the Supreme Court held
that the “power of exclusion of foreigners” was “an incident
of sovereignty belonging to the government of the United
States as a part of those sovereign powers delegated by the
constitution.” Ping v. United States, 130 U.S. 581, 609
(1889). The Court made clear that the admissibility of aliens
is not “for judicial determination.” Id. Instead, the issue was
reserved “to the political department of our government,
which is alone competent to act upon the subject.” Id. Ping
was the first of several late nineteenth-century cases granting
the political branches significant deference when enacting
and enforcing immigration laws. See also Fong Yue Ting v.
United States, 149 U.S. 698 (1893); Lem Moon Sing, 158
U.S. 538; United States v. Ju Toy, 198 U.S. 253 (1905).
After the modernization of our country’s immigration
system, the political branches’ plenary power in immigration
was wielded by consular officers. Starting in 1917, consular
officers became responsible for granting and denying visas.
See Russell Wolff, The Nonreviewability of Consular Visa
Decisions: An Unjustified Aberration from American
Justice, 5 N.Y.L. Sch. J. Int’l & Compar. L. 341, 342 (1984).
A pair of circuit court cases has often been credited as the
16 MUÑOZ V. DEP’T OF STATE

beginning of our refusal to review a consular officer’s visa
denial. See, e.g., Gabriela Baca, Visa Denied: Why Courts
Should Review a Consular Officer’s Denial of a U.S.-Citizen
Family Member’s Visa, 64 Am. U. L. Rev. 591, 603 (2015).
In United States ex rel. London v. Phelps, 22 F.2d 288, 290
(2d Cir. 1927), the Second Circuit stated it was “beyond the
jurisdiction of the court” to review a visa denial because the
“[u]njustifiable refusal” of a visa was a matter of “diplomatic
complaint.” Similarly, in United States ex rel. Ulrich v.
Kellogg, 30 F.2d 984, 986 (D.C. Cir. 1929), the D.C. Circuit
noted Congress did not authorize “official review of the
action of the consular officers,” which made those decisions
unreviewable.
The Supreme Court inaugurated the doctrine of consular
nonreviewability in United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537 (1950). There, the German wife
of a naturalized U.S. citizen and World War II veteran
challenged her exclusion from the country based on the
Attorney General’s determination that she posed a security
concern under a 1941 immigration provision. Id. at 539–40.
The Court ruled for the government, holding that the Court
has “no authority to retry the determination of the Attorney
General.” Id. at 546.
To begin, the Court emphasized that “[t]he exclusion of
aliens is a fundamental act of sovereignty.” Id. at 542. And
so when a government official acts to exclude an alien based
on immigration law, “[t]he right to do so stems not alone
from legislative power but is inherent in the executive power
to control the foreign affairs of the nation.” Id. The
Executive may then delegate that authority to “a responsible
executive officer of the sovereign,” whose authority is “final
and conclusive.” Id. at 543. The Court disclaimed any
authority to review consular decisions: “it is not within the
 MUÑOZ V. DEP’T OF STATE 17

province of any court, unless expressly authorized by law, to
review the determination of the political branch of the
Government to exclude a given alien.” Id. In other words,
“[w]hatever the procedure authorized by Congress is,” the
Court said, “it is due process as far as an alien denied entry
is concerned.” Id. at 544.
B. The Mandel Exception
While Shaughnessy’s sweeping expression of the
nonreviewability of consular decisions still governs, courts
have recognized a “limited exception” to the doctrine when
the denial of a visa implicates the constitutional rights of
American citizens. Andrade-Garcia v. Lynch, 828 F.3d 829,
834 (9th Cir. 2016) (simplified).
The first articulation of the limited exception to
nonreviewability came in Kleindienst v. Mandel, 408 U.S.
753, 756 (1972). There, Ernest Mandel, a nonresident alien
and “revolutionary Marxist,” sought to enter the United
States as a journalist and public speaker. Id. He was found
ineligible for admission as an advocate of communism, but
the Attorney General gave him a discretionary waiver to
enter the United States in 1962 and 1968. Id. at 756–57.
Mandel attempted to enter again in 1969. Id. at 756. This
time, the Attorney General declined to give him a third
waiver because Mandel’s 1968 trip “went far beyond the
stated purposes of his trip” and “represented a flagrant abuse
of the opportunities afforded him to express his views in this
country.” Id. at 759. Mandel sued alongside American
professors who had invited him to, or expected to hear him,
speak. Id. at 759–60. While the Court held that Mandel “had
no constitutional right of entry,” it noted that the denial of
Mandel’s visa implicated the professors’ First Amendment
rights. Id. at 762.
18 MUÑOZ V. DEP’T OF STATE

The Court first re-affirmed the “ancient principles of the
international law of nation-states” that “the power to exclude
aliens is inherent in sovereignty,” and “a power to be
exercised exclusively by the political branches of
government.” Id. at 765 (simplified). The Court then
reiterated Justice Harlan’s words:

The power of congress to exclude aliens
altogether from the United States, or to
prescribe the terms and conditions upon
which they may come to this country, and to
have its declared policy in that regard
enforced exclusively through executive
officers, without judicial intervention, is
settled by our previous adjudications.

Id. at 766 (quoting Lem Moon Sing, 158 U.S. at 547).
Yet the Court’s analysis laid the groundwork for a future
limitation to the doctrine of consular nonreviewability. The
professors argued that the government must give a
justification for the denial of Mandel’s waiver. Id. at 769. In
response, the government argued that the waiver decision
was in the Executive’s “sole and unfettered discretion, and
any reason or no reason may be given.” Id. The Court said
it didn’t need to reach this question because the Attorney
General did inform Mandel of the reason for the waiver
denial and “that reason was facially legitimate and bona
fide.” Id.
In concluding, the Court re-affirmed the “firmly
established” rule that Congress has “plenary . . . power to
make policies and rules for exclusion of aliens.” Id. at 769–
70. And “when the Executive exercises this power
negatively on the basis of a facially legitimate and bona fide
 MUÑOZ V. DEP’T OF STATE 19

reason, the courts will neither look behind the exercise of
that discretion, nor test it by balancing its justification
against the First Amendment interests of those who seek
personal communication with the applicant.” Id. at 770.
From this, courts have required that the government give
a “facially legitimate and bona fide reason” for a visa denial
whenever the constitutional rights of a U.S. citizen are
implicated. See Cardenas, 826 F.3d at 1167. In Bustamante
v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008), our circuit
became the first to recognize that visa denial may burden
more than a citizen’s First Amendment right. There, we held
that a U.S. citizen had a “protected liberty interest in her
marriage that gives rise to a right to constitutionally adequate
procedures in the adjudication of her husband’s visa
application.” Id. at 1062. We claimed this was a
“straightforward” application of the Due Process Clause’s
“substantive right[]” to “life, liberty, and property.” Id.
C. Kerry v. Din and the Limits of the Mandel
Exception
The Supreme Court recently limited the scope of the
Mandel exception in Kerry v. Din, 576 U.S. 86, 105 (2015),
and Trump v. Hawaii, 138 S. Ct. 2392 (2018). In both cases,
even assuming a visa denial implicated the constitutional
interest of a U.S. citizen, the Court showed that the
government can satisfy its constitutional obligations to
provide a “facially legitimate and bona fide reason” for the
denial by citing a valid statutory bar to admission.
In Din, a United States citizen sought to have her
Afghani husband classified as an immediate relative and
granted an immigrant visa. 576 U.S. at 86. But the Afghani
citizen was formerly a civil servant in the Taliban regime,
and his application was denied under 8 U.S.C.
20 MUÑOZ V. DEP’T OF STATE

§ 1182(a)(3)(B)—the exclusion for aliens who have
participated in “[t]errorist activities.” Id. at 88–90. In the
Ninth Circuit, we concluded that the U.S. citizen “ha[d] a
protected liberty interest in marriage that entitle[d] [her] to
review of the denial of [her] spouse’s visa,” and that merely
citing § 1182(a)(3)(B) could not satisfy due process. Din v.
Kerry, 718 F.3d 856, 860, 868 (9th Cir. 2013).
The Supreme Court reversed, but the Justices did not
agree on the grounds for doing so. The plurality opinion,
authored by Justice Scalia and joined by Chief Justice
Roberts and Justice Thomas, rejected the threshold premise
that an American citizen could be injured under the Due
Process Clause based on the denial of a spouse’s visa. Din,
576 U.S. at 88–101 (plurality). The concurrence, written by
Justice Kennedy and joined by Justice Alito, assumed that a
U.S. citizen could assert a constitutional injury from a
spouse’s visa denial, but concluded that citing the “terrorist
activities” bar was a “facially legitimate and bona fide
reason” under Mandel. Id. at 101–06 (Kennedy, J.,
concurring). And the dissent, penned by Justice Breyer and
joined by Justices Ginsburg, Sotomayor, and Kagan, would
have held that the government’s refusal to provide a clear
reason for denying a visa violated a citizen spouse’s due
process right. Id. at 107–16 (Breyer, J., dissenting).
In our court, Justice Kennedy’s concurrence turned out
to be the most important. See Cardenas, 826 F.3d at 1171
(finding that “Justice Kennedy’s concurrence controls”).
Relying on Mandel, the Din concurrence reiterated that “an
executive officer’s decision denying a visa that burdens a
citizen’s own constitutional rights is valid when it is made
on the basis of a facially legitimate and bona fide reason.”
576 U.S. at 104 (Kennedy, J., concurring) (simplified). So
the key constitutional question is whether the government
 MUÑOZ V. DEP’T OF STATE 21

supplied a “facially legitimate and bona fide reason” for the
visa denial. And on that question, the concurrence
concluded that citing § 1182(a)(3)(B)’s “terrorist activities”
statutory bar satisfies the government’s burden. Id. Justice
Kennedy’s concurrence first reasoned that the statutory bar
“establish[ed] specific criteria for determining terrorism-
related inadmissibility” and thus exclusion under that
provision showed a “facially legitimate” reason. Id. at 104–
05. The concurrence also held that merely citing the
“terrorist activities” bar established a “bona fide reason”
because Ҥ 1182(a)(3)(B) specifies discrete factual
predicates the consular officer must find to exist before
denying a visa.” Id. at 105.
In Trump v. Hawaii, the Court further limited the Mandel
exception and adopted Justice Kennedy’s view that statutory
citation is enough to satisfy our review. In that case, the
Court reviewed President Trump’s order temporarily
suspending entry of foreign nationals from seven countries
based on risks of terrorism. Trump, 138 S. Ct. at 2403. The
Court applied the Mandel framework to the case but
emphasized its “narrow” and “deferential” standard of
review. Id. at 2419. Most importantly, the Court seemingly
coalesced around Justice Kennedy’s view that citing a
statutory provision is enough to satisfy due process: “In Din,
Justice Kennedy reiterated that ‘respect for the political
branches’ broad power over the creation and administration
of the immigration system’ meant that the Government need
provide only a statutory citation to explain a visa denial.”
Id. (simplified) (emphasis added). Thus, the Court embraced
the view that only limited notice—such as a statutory
citation—is needed to justify a visa denial when a citizen’s
due process rights are implicated.
22 MUÑOZ V. DEP’T OF STATE

After Din and Trump, our court adopted a three-step
inquiry to determine whether a visa denial violates the due
process rights of a U.S. citizen based on Justice Kennedy’s
concurrence. Khachatryan, 4 F.4th at 851. “First, we
examine whether the consular officer denied the visa under
a valid statute of inadmissibility.” Id. (simplified). If so, that
satisfies the “facial legitimacy” step. Second, we consider
whether the consular officer (1) cited a statutory bar to
admissibility that “specifies discrete factual predicates the
consular officer must find to exist before denying a visa,” or
(2) provided a “fact in the record that provides at least a
facial connection to the statutory ground of inadmissibility.”
Id. (simplified). If the consular officer complies with either
alternative, the government meets its burden on this step. Id.
At the third step, we ask whether the plaintiff carried her
burden of proving that the government’s stated reason “was
not bona fide by making an affirmative showing of bad faith
on the part of the consular officer who denied the visa.” Id.
(simplified).
III.
With this legal background in mind, it is easy to see how
we erred in piercing the doctrine of consular
nonreviewability here. Although the Supreme Court has
recognized a limited exception to the doctrine, we greatly
expanded judicial interference with visa denials—jettisoning
the respect we must afford to the political branches in their
protection of our borders. By aggrandizing our role, we
diminish the separation of powers.
We made three significant errors in ruling for Muñoz.
First, we improperly ruled that citing the “unlawful activity”
bar is not enough to satisfy the government’s notice
obligations. Second, we invented a new dimension to the
 MUÑOZ V. DEP’T OF STATE 23

consular nonreviewability doctrine: a time window that bars
the application of the doctrine. These two errors lead to the
third—having to resolve whether an American citizen has a
“liberty interest” in the visa application of his or her spouse
under the Fifth Amendment’s Due Process Clause. If we
resolved the first two questions properly, we didn’t need to
reach this difficult question.
I turn to each error in this order.
A. Citing the “Unlawful Activity” Statutory Bar
Satisfies Due Process
Even assuming Muñoz has a “liberty interest” in her
husband’s visa denial, the government satisfied its
constitutional notice obligations here by citing the “unlawful
activity” statutory bar and our court erred by holding
otherwise.
To begin, we wrongly claimed that the government had
“abandoned” the argument that the “unlawful activity” bar
contains discrete factual predicates. Muñoz, 50 F.4th at 917.
This is incorrect. In both the district court and the answering
brief in our court, the government repeatedly argued that
citing § 1182(a)(3)(A)(ii) was sufficient because that
provision contained adequate factual predicates.
But, more importantly, we were mistaken in finding that
§ 1182(a)(3)(A)(ii) does not “specif[y] discrete factual
predicates the consular officer must find to exist before
denying a visa.” Id. We reasoned that “[u]nlike surrounding
provisions, § 1182(a)(3)(A)(ii) does not specify the type of
lawbreaking that will trigger a visa denial.” Id. To reach this
conclusion, we ruled, without authority, that “a consular
officer’s belief that an applicant seeks to enter the United
States for general (including incidental) lawbreaking is not a
24 MUÑOZ V. DEP’T OF STATE

‘discrete’ factual predicate.” Id. Thus, we held that the
government could only satisfy its burden to prove a “bona
fide reason” by showing “a fact in the record” that provides
“a facial connection to the consular officer’s belief” that
Asencio-Cordero sought to enter the United States to engage
in unlawful activity. Id.
There are at least three problems with our ruling.
First, the “unlawful activity” bar under §
1182(a)(3)(A)(ii) provides sufficient “discrete factual
predicates,” and thus citing it provides a “bona fide” reason
for denial. We have never precisely described what level of
“factual predicates” a statute must have to provide adequate
reason for a visa denial. But Justice Kennedy’s analysis of
the visa waiver provision at issue in Mandel provides us a
point of reference. In that case, the Supreme Court examined
the Attorney General’s authority to waive inadmissibility “in
[his] discretion.” 408 U.S. at 754. Because the provision
conferred the Attorney General with “unfettered
discretion”—meaning he could deny waiver for “any reason
or no reason”—the Supreme Court had to consider whether
some underlying facts showed that the waiver denial in that
particular case was “legitimate and bona fide.” Id. at 769–
70. Otherwise, the Court would have no basis to understand
why Mandel had been denied admission. But compared to
the “nearly unbridled discretion” in the Mandel provision,
Justice Kennedy’s concurrence observed that the “terrorist
activities” bar “specifies discrete factual predicates the
consular officer must find to exist before denying a visa.”
Din, 576 U.S. at 105 (Kennedy, J., concurring). So, by the
term “discrete factual predicates,” Justice Kennedy meant to
distinguish between a statutory waiver provision lacking any
factual predicates from one, like the terrorism bar,
“controlled by specific statutory factors.” Id. at 104.
 MUÑOZ V. DEP’T OF STATE 25

Like the “terrorist activities” bar, the “unlawful activity”
bar is controlled by specific statutory factors—that the alien
“seeks to enter the United States to engage . . . in any . . .
unlawful activity.” 8 U.S.C. § 1182(a)(3)(A)(ii).
Surrounding provisions exclude from this “unlawful
activity” bar any conduct that constitutes espionage,
sabotage, export violations, or activity to overthrow the
government of the United States. Id. § 1182(a)(3)(A)(i),
(iii). While a range of lawbreaking may fit these “statutory
factors,” it is more limited than the “unbridled discretion”
found in Mandel and nearly as broad as the “terrorist
activities” bar approved by the Din concurrence. See
Colindres, 2023 WL 4140277, at *6 (holding that the
“terrorist activities” bar is “written in the same general
terms” as the “unlawful activity” provision here). Indeed,
given Justice Kennedy’s focus on any kind of factual
predicate, perhaps citing any statutory bar satisfies our
inquiry here. See Trump, 138 S. Ct. at 2419; Baaghil, 1 F.4th
at 432–34; Sesay, 984 F.3d at 316.
Second, our belief that the “unlawful activity” bar is too
broad to establish a “bona fide” reason echoes the argument
made by the Din dissenters and rejected by the Din
concurrence. In dissent, Justice Breyer asserted that the
terrorism bar is so capacious that it provides no notice of the
factual predicates for inadmissibility:

[Section] 1182(a)(3)(B)[] sets forth, not one
reason, but dozens. It is a complex provision
with 10 different subsections, many of which
cross-reference other provisions of law. . . .
Some parts cover criminal conduct that is
particularly serious, such as hijacking aircraft
and assassination. . . . Other parts cover
26 MUÑOZ V. DEP’T OF STATE

activity that, depending on the factual
circumstances, cannot easily be labeled
“terrorist.” . . . At the same time, some
subsections provide the visa applicant with a
defense; others do not. . . . Taken together
the subsections, directly or through cross-
reference, cover a vast waterfront of human
activity potentially benefitting, sometimes in
major ways, sometimes hardly at all,
sometimes directly, sometimes indirectly,
sometimes a few people, sometimes many,
sometimes those with strong links,
sometimes those with hardly a link, to a
loosely or strongly connected group of
individuals, which, through many different
kinds of actions, might fall within the broad
statutorily defined term “terrorist.”

Din, 576 U.S. at 113–14 (Breyer, J., dissenting) (simplified).
Justice Kennedy understood that § 1182(a)(3)(B) “covers a
broad range of conduct,” but still maintained that citing the
provision was sufficient. Id. at 105 (Kennedy, J.,
concurring). Thus, contrary to our view here, the breadth of
the “unlawful activity” bar is no basis to find that it lacks
factual predicates sufficient to satisfy the “bona fide reason”
prong. See Colindres, 2023 WL 4140277, at *6 (“[T]hat
level of specificity is not required.”).
Third, we ignore that Congress has already determined
that aliens subject to the “unlawful activity” bar are not
entitled to any form of notice. See 8 U.S.C. § 1182(b)(3). In
Din, Justice Kennedy looked to the scope of the INA’s notice
provision, § 1182(b)(3), to inform the scope of a citizen’s
due process rights. Id. at 105–06. Recall that § 1182(b)(1)
 MUÑOZ V. DEP’T OF STATE 27

generally requires the government to provide “timely written
notice” to aliens found inadmissible, but notice is not
required when aliens are barred on grounds related to
terrorism or security. 8 U.S.C. § 1182(b)(3). Because
§ 1182(b)(3) expressly excluded the “terrorist activities” bar
from any notice requirement, Justice Kennedy deferred to
Congress’s “considered judgment” “in this sensitive area” to
determine that merely citing the terrorism provision was
“constitutionally adequate.” Id. at 106.
We disregard this analysis and skip the fact that §
1182(b)(3) also eliminates any notice requirement for aliens
found inadmissible under the “unlawful activity” bar. See 8
U.S.C. § 1182(b)(3). If we are truly following Justice
Kennedy’s analysis, then citing the “unlawful activity” bar
should also be constitutionally adequate. After all, as the
Court said long ago, when the Executive branch excludes an
alien under a grant from the Legislative branch, the “order
was due process of law,” and “no other tribunal . . . [may]
re-examine the evidence” underlying the order. Lem Moon
Sing, 158 U.S. at 545 (simplified) (emphasis added).
So like the terrorism bar, we should have found that
citing the “unlawful activity” bar alone complies with due
process. This would have ended our inquiry because the
government told Asencio-Cordero that he was denied
admission under § 1182(a)(3)(A)(ii). And because Muñoz
hasn’t shown that this justification was made in bad faith,
her due process claim must fail.
As problematic as this analysis proves, our court’s next
error may be even more significant.
28 MUÑOZ V. DEP’T OF STATE

B. Due Process Does Not Place a Time Limit on the
Consular Nonreviewability Doctrine
For the first time in any circuit, our court holds that the
doctrine of consular nonreviewability applies only if the
government provides notice of the reason for a visa denial
“within a reasonable time.” Muñoz, 50 F.4th at 923. We base
this new requirement on the view that due process requires
that the “government provide any required notice in a timely
manner.” Id. at 921 (citing Goldberg v. Kelly, 397 U.S. 254,
267 (1970)) (emphasis added). We then suggest that a
“reasonable time” might range between 30 days to one year.
Id. at 923 (“Our understanding of reasonable timeliness is
informed by the 30-day period in which visa denials must be
submitted for internal review and the 1-year period in which
reconsideration is available upon the submission of
additional evidence.”). Outside that window, we declare, the
government is “not entitled to invoke consular
nonreviewability to shield its visa decision from judicial
review” and a court “may ‘look behind’ the government’s
decision.” Id. at 924 (simplified). This is a serious error.
Given that the doctrine of consular nonreviewability is
rooted in the separation of powers, we should reject efforts
to create—out of whole cloth—novel burdens on the
Executive branch. As explained by Judge Lee, our court’s
decree “conflicts with the separation-of-powers principle
that Congress may prescribe the terms and conditions upon
which aliens may come to this country, and to have its
declared policy in that regard enforced exclusively through
executive officers, without judicial intervention.” Id. at 925
(Lee, J., dissenting) (simplified). To impose a categorical
time limit for consular nonreviewability has no basis in the
text or history of the Constitution, Supreme Court precedent,
or statute.
 MUÑOZ V. DEP’T OF STATE 29

First, our court’s timeliness requirement ignores that due
process is context specific. When it comes to the exclusion
of aliens, courts have “largely defer[red] to the political
branches” on what process is due. Rodriguez Diaz v.
Garland, 53 F.4th 1189, 1215 (9th Cir. 2022) (Bumatay, J.,
concurring). That’s because we must recognize that “the
admission and exclusion of foreign nationals is a
fundamental sovereign attribute exercised by the
Government’s political departments largely immune from
judicial control.” Trump, 138 S. Ct. at 2418 (simplified).
Thus, it’s firmly established that “Congress may make rules
as to aliens that would be unacceptable if applied to
citizens.” Demore v. Kim, 538 U.S. 510, 522 (2003)
(simplified).
Here, our court imports due process protections from a
case about the termination of public assistance payments to
the denial of visas. See Goldberg, 397 U.S. at 267–68
(holding that a welfare recipient must receive “timely and
adequate notice” of the reasons for the proposed termination
of welfare benefits). But there’s no reason to tie the
procedural protections required to end a citizen’s public
benefits to the process to deny an alien entry into the country.
Even assuming that American spouses of aliens have a
liberty interest in their spouse’s admission protected by due
process, that doesn’t mean they are entitled to the full
panoply of rights afforded to citizens in the domestic setting.
Indeed, the Goldberg court talked about how those due
process protections were necessary in the “present context”
of welfare terminations. Id. Though the exclusion of an
alien is serious, the rights involved are not the same as in
domestic proceedings. After all, unlike in the welfare
termination setting, a citizen cannot obtain judicial review of
a visa denial unless the government acted in “bad faith.”
30 MUÑOZ V. DEP’T OF STATE

And so there’s no basis to transfer procedural protections
one-for-one here.
Second, our court’s decision ignores the will of
Congress. Remember, Congress has established that
consular officers must give an alien “timely written notice”
of the grounds for a visa denial. See 8 U.S.C. §
1182(b)(1)(B). But Congress has expressly exempted aliens
found inadmissible under the “unlawful activity” bar from
this timely notice requirement. Id. § 1182(b)(3); see also
Din, 576 U.S. at 106 (Kennedy, J., concurring) (“[T]his
notice requirement does not apply, when . . . a visa
application is denied due to terrorism or national security
concerns.”) (simplified). As Justice Kennedy viewed it,
§ 1182(b)’s statutory notice provision was highly probative
of the bounds of constitutional notice owed to citizen
spouses in the visa context:

Congress evaluated the benefits and burdens
of notice in this sensitive area and assigned
discretion to the Executive to decide when
more detailed disclosure is appropriate. This
considered judgment gives additional support
to the independent conclusion that the notice
given was constitutionally adequate,
particularly in light of the national security
concerns the terrorism bar addresses. . . .
Under Mandel, respect for the political
branches’ broad power over the creation and
administration of the immigration system
extends to determinations of how much
information the Government is obliged to
 MUÑOZ V. DEP’T OF STATE 31

disclose about a consular officer’s denial of a
visa to an alien abroad.

Id. While the Din concurrence addressed the substance of the
notice needed under due process, the analysis applies with
equal force to the timing of the notice.
Third, as a practical matter, our brand-new timeliness
requirement is both burdensome and vague. Because the
timeliness requirement applies only when certain “U.S.
citizens’ rights are burdened,” Muñoz, 50 F.4th at 926 (Lee,
J., dissenting), consular officers may not know which visas
will be implicated. Will consular officers need to process
every visa under the new timeliness regime to avoid a court
later saying that it was handled too late thanks to the alien’s
connection to some American citizen? And we do not
establish what constitutes timely notice. The only thing we
know for sure is that three years is too late. Id. at 923
(majority opinion). But we merely suggest that notice is safe
if given between 30 days to one year. Id. Expect an
explosion of litigation to determine the true deadline to meet
due process. That we have placed new burdens on the
Executive’s discretion without explaining how it can comply
with those burdens makes matters worse. At a minimum, we
should have taken this case en banc to clarify the
government’s obligations under our new regime.
Our court’s creation of new hurdles for the Executive in
the security context is troubling. Respect for the
government’s interest in protecting our security should give
us more pause before inventing new due process regimes.
As Judge Lee pointed out, government delays in providing
notice may come into play when deciding whether it acted
in bad faith, id. at 925 (Lee, J., dissenting), but no reason
exists to categorically strip the government of consular
32 MUÑOZ V. DEP’T OF STATE

nonreviewability when dealing with security threats based
on our arbitrary (and vague) deadlines.
C. A Visa Denial Does Not Implicate the Due Process
Rights of the Alien’s U.S. Citizen Spouse
Thanks to the other rulings in the case, our court needed
to make a weighty substantive due process decision—
whether Muñoz has a protected liberty interest in her
husband’s visa application. Pre-Din, we recognized that a
citizen possesses a protected liberty interest in
“constitutionally adequate procedures in the adjudication of
[a non-citizen spouse’s] visa application.” Bustamante, 531
F.3d at 1062. But we acknowledged in Muñoz that a plurality
of the Supreme Court has rejected such a protected liberty
interest. Muñoz, 50 F.4th at 915 (citing Din, 576 U.S. at 101
(plurality)). Despite this, relying on the fundamental right
of marriage and the liberty interest of U.S. citizens to reside
in their country of citizenship, we said that “the cumulative
effect” of the denial of a citizen’s spouse’s visa was “a direct
restraint on the citizen’s liberty interests protected under the
Due Process Clause.” Id.
Repeatedly, the Supreme Court has cautioned lower
courts from casually finding substantive rights under either
the Fifth or Fourteenth Amendments’ Due Process Clauses.
Indeed, “we must guard against the natural human tendency
to confuse what [due process] protects with our own ardent
views about the liberty that Americans should enjoy.”
Dobbs, 142 S. Ct. at 2247. To avoid these concerns, we must
be “guided by the history and tradition that map the essential
components of our Nation’s concept of ordered liberty.” Id.
at 2248. In other words, we ask “whether the right is ‘deeply
rooted in [our] history and tradition’ and whether it is
 MUÑOZ V. DEP’T OF STATE 33

essential to our Nation’s ‘scheme of ordered liberty.’” Id.
(quoting Timbs v. Indiana, 139 S.Ct. 682, 686 (2019)).
Unfortunately, we did not heed these concerns in
recognizing Muñoz’s liberty interest here. While no one
seriously questions the fundamental nature of the right of
marriage, it is quite a stretch to extrapolate from that right a
concomitant right over the adjudication of a spouse’s visa.
Indeed, our court failed to recognize the strong constitutional
crosswinds here—that a “liberty interest” for a U.S. citizen
over a visa denial directly conflicts with the political
branches’ plenary authority over the exclusion of aliens.
Given the separation of powers concerns at play, we should
have been more exacting before finding a new substantive
right.
And as a historical matter, the view that an American
citizen has a liberty interest in the visa application of her
alien spouse is highly suspect. The Din plurality explained
that such a proposed liberty interest is not a right
“objectively, deeply rooted in this Nation’s history and
tradition.” Id. at 92–93 (plurality). As Justice Scalia
recounted, “as soon as Congress began legislating in [the
immigration] area[,] it enacted a complicated web of
regulations that erected serious impediments to a person’s
ability to bring a spouse into the United States.” Id. at 96
(citing Kerry Abrams, What Makes the Family Special?, 80
U. Chi. L. Rev. 7, 10–16 (2013)). The Din plurality relied
on a “long practice of regulating spousal immigration,”
including the Expatriation Act of 1907, which provided that
“any American woman who marries a foreigner shall take
the nationality of her husband,” and the Immigration Act of
1921, which subjected fiancées and wives of citizens to strict
quota requirements when minor children were granted non-
quota status. Id. at 95–97. See also Colindres, 2023 WL
34 MUÑOZ V. DEP’T OF STATE

4140277, at *4–5 (surveying the immigration statutes passed
at the turn of the 20th century that “limited spousal
immigration”).
To be sure, some contest this history. See, e.g., Kerry
Abrams, The Rights of Marriage: Obergefell, Din, and the
Future of Constitutional Family Law, 103 Cornell L. Rev.
501, 540, 542 (2018) (suggesting that the Din plurality “uses
history selectively to paint a picture of the past that, while
technically accurate, misses the larger picture” and showing
evidence that some immigration laws support a “strong
preference for spousal immigration”).
But this misunderstands the requirement that
unenumerated rights be deeply rooted. Even if history shows
that Congress has promoted family reunification at times, it
has also sought to achieve different policy ends at other
times. This contradictory legislation demonstrates, at a
minimum, that any liberty interest in a spouse’s visa
application has shallow roots. And given the deep
foundation of the political branches’ plenary authority here,
we shouldn’t let such sparse evidence define a new
substantive right.
IV.
We violated the separation of powers in three distinct
ways here. First, by recognizing that citizens have a “liberty
interest” in their spouse’s visa denial. Second, by declaring
that the government must divulge evidence supporting why
an alien should be barred for “unlawful activity.” And third,
by demanding that the government act under our vague new
timeline. Any one of these errors deserved en banc review.
For these reasons, I dissent from the denial of rehearing
en banc.