The U.S. Supreme court has just ruled, in Kerry v. Din, that a U.S. citizen wasn’t entitled to judicial review of her husband’s visa denial on terrorism grounds. The decision leaves intact the consular nonreviewability doctrine but stops short of definitively barring future challenges by U.S. citizens to relatives’ visa denials.
Facts and Procedural History
Din, a U.S. citizen, filed a Form I-130, Petition for Alien Relative, on behalf of her husband, Berashk, in 2006. The husband, an Afghan citizen, had worked as a civil servant during the Taliban regime.
U.S. Citizenship and Immigration Services (USCIS) approved the petition and the husband was scheduled for a visa interview at the embassy in Islamabad, Pakistan.
Although the consular officer who interviewed Berashk said he should expect to receive his visa in two to six weeks, Berashk was instead informed nine months later that his visa had been denied.
The embassy later said the visa was rejected under section 212(a)(3)(B), a provision of the Immigration and Nationality Act that deems a noncitizen ineligible for a visa due to terrorist activities, without providing a detailed explanation of the reasons for its decision.
Din’s lawsuit followed. The District Court granted the government’s motion to dismiss. But the Ninth Circuit Court of Appeals held that the embassy’s failure to explain in more detail the grounds of denial violated her rights under the Fifth Amendment’s Due Process clause, which provides that “[n]o person shall be … deprived of life, liberty, or property, without due process of law.” The Ninth Circuit reasoned that Din “has a protected liberty interest in marriage that entitled [her] to review of the denial of [her] spouse’s visa” and that the Government’s mere citation to section 212(a)(3)(B) did not provide Din with the explanation of the denial to which she was entitled under the Due Process Clause.
Scalia’s Plurality Opinion
Justice Antonin Scalia wrote the plurality opinion, joined by Chief Justice John Roberts and Justice Clarence Thomas.
The opinion gives a nod to Fiallo v. Bell (1977), in which the Court reaffirmed the doctrines of plenary power and consular nonreviewability. The first holds that “over no conceivable subject is the legislative power of Congress more complete than it is over” the admisison of aliens, and the second holds that plenary power leaves only a very limited scope of judicial review” of consular officer’s decisions. Under the latter doctrine, Berashk has no due process rights in relation to his visa application. In a similar case, dating from the Cold War, the Court held that Ellen Knauff, the wife of a U.S. army veteran, had no right to judicial review when she was barred from entering the U.S. based on secret evidence. Knauff v. Shaughnessy (1950).
According to Scalia’s opinion, despite being a U.S. citizen, Din also has no due process rights because the Due Process Clause is inapplicable: Din wasn’t deprived of “life, liberty, or property.” In particular, she wasn’t deprived of “liberty” in the constitutional sense because she wasn’t detained or imprisoned. Scalia finds “absurd” the dissent’s assertion that Din has a liberty interest in “liv[ing] with her husband in America.” She “remains free to live with her husband anywhere in the world that both individuals are permitted to reside.”
Kennedy’s Concurring Opinion
Justice Anthony Kennedy wrote in a concurring opinion, joined by Justice Samuel Alito. Kennedy “assum[es]” that Din has a protected liberty interest. But he would find that the notice issued by the government about the visa denial was enough to satisfy due process requirements.
To determine how much process Din was due, Kennedy turned to precedent, namely, the Court’s 1972 decision in Kleindienst v. Mandel. The majority in that case, too, addressed how much process was due while assuming that a protected interest of U.S. citizens had been violated:
There, college professors—all of them citizens—had invited Dr. Ernest Mandel, a self-described “revolutionary Marxist,” to speak at a conference at Stanford University. Yet when Mandel applied for a temporary nonimmigrant visa to enter the country, he was denied. At the time, the immigration laws deemed aliens “who advocate[d] the economic, international, and governmental doctrines of World communism” ineligible for visas. Aliens ineligible under this provision did have one opportunity for recourse: The Attorney General was given discretion to waive the prohibition and grant individual exceptions, allowing the alien to obtain a temporary visa. For Mandel, however, the Attorney General, acting through the Immigration and Naturalization Service (INS), declined to grant a waiver. In a letter regarding this decision, the INS explained Mandel had exceeded the scope and terms of temporary visas on past trips to the United States, which the agency deemed a “flagrant abuse of the opportunities afforded him to express hisviews in this country.” The professors who had invited Mandel to speak challenged the INS’ decision, asserting a First Amendment right to “hear his views and engage him in a free and open academic exchange.” They claimed the Attorney General infringed this right when he refused to grant Mandel relief…. [T]he Court limited its inquiry to the question whether the Government had provided a “facially legitimate and bona fide” reason for its action. Finding the Government had proffered such a reason—Mandel’s abuse of past visas—the Court ended its inquiry and found the Attorney General’s action to be lawful.
Kennedy finds that Din, like Mandel, received a “facially legitimate and bona fide” reason for the visa denial: the citation to section 212(a)(3)(B) was sufficient. No factual basis had to be given by the Embassy for reaching that determination because of the national security concerns the terrorism bar addresses, even though the embassy’s vague decision may prejudice Din:
To be sure, the statutory provision the consular officer cited covers a broad range of conduct. And Din perhaps more easily could mount a challenge to her husband’s visa denial if she knew the specific subsection on which the consular officer relied.
Breyer’s Dissenting Opinion
Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.
Breyer would find that Din “possesses the kind of ‘liberty’ interest to which the Due Process Clause grants procedural protection. And the government has failed to provide her with the procedure that is ‘constitutionally ‘due.’”
The embassy’s citation to section 212(a)(3)(B) is insufficient because no factual basis is stated and the specific provision of the 212(a)(3)(B) isn’t specified. This
is a complex provision with 10 different subsections, many of which cross-reference other provisions of law…. At the same time, some subsections provide the visa applicant with a defense; others do not. See, e.g., §1182(a)(3)(B)(iv)(VI)(dd) (permitting applicant to show “by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization”).
Without that information, Din has now way to assess the correctness of the denial or determine how to respond to the denial.
What The Decision Means for Family-Sponsored Immigrants
The doctrine of consular nonreviewability is largely left intact by Kerry v. Din. The 1972 Mandel decision assumes (but doesn’t hold) that there is an exception in cases where a U.S. citizen’s fundamental rights require that the State Department provide a “facially legitimate and bona fide” explanation for denial of a visa. Kerry v. Din musters 6 votes for that assumption. As a result, until the Supreme Court takes up the issue again, the federal appeals courts will continue to be the battle ground for deciding whether U.S. citizens’ due process rights may be implicated by visa denials.