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Supreme Court to Decide: Must Consulate Tell U.S. Citizen Why Her Husband’s Visa Was Denied? (Kerry v. Din)

supreme_courtTo the excitement of immigration nerds everywhere, the Supreme Court granted certiorari in Kerry v. Din on Oct. 2. In agreeing to hear this case, the Court will be faced with the issue of whether a U.S. citizen’s constitutional rights are violated where a consular officer refuses to issue a visa to her husband without explaining the reason why. U.S. citizen Fauzia Din filed a Form I-130, Petition for Alien Relative, on behalf of her husband, Kanishka Berashk. The U.S. Citizenship and Immigration Services (USCIS) approved that petition. But the husband’s subsequent immigrant visa application on the basis of the approved petition the visa was denied.

Before their marriage, Berashk worked for the Afghan government as a payroll clerk in the ministry of social welfare. At the time, the government was controlled by the Taliban, an Islamist militant organization. Taliban rule ended with the U.S. invasion in 2001. Since that time, Berashk has worked as a clerk in the ministry of education.

The Embassy’s notice of denial cited to section 212(a)(3)(B) of the Immigration and Nationality Act, which covers a wide range of “terrorist activities.” The Embassy gave no explanation of the facts which support the denial.

The wife sued. In the district court, the judge granted the Government’s motion to dismiss, on the basis of “consular nonreviewability.” That doctrine holds that federal courts are generally without power to review actions of consular officials because of the foreign policy and sovereignty implications of immigration.

On appeal to the Ninth Circuit, two judges on the three-judge panel voted to reverse the district court’s order. The decision focused on an an exception to consular nonreviewability first hinted at by the Supreme Court in the 1972 case of Kleindienst v. Mandel. There, U.S. citizen professors asserted a constitutional right under the First Amendment to “receive information and ideas” from a foreigner seeking to lecture in the U.S. The Supreme Court hinted that where a U.S. citizen’s constitutional rights are implicated a consular officer may be required to state a “facially legitimate and bona fide” reason for a visa denial. Based on that reading of the precedent, the Ninth Circuit held that the Government must “at least allege what it believes Berashk did” that made him ineligible for the visa. The U.S. citizen wife’s constitutional rights, the court ruled, trump section 212(b)(3) of the Immigration and Nationality Act, which  states that consular officer need not explain when a visa is denied for criminal or security grounds.

Dissenting, Judge Clifton would find that the Government is specifically not required to provide information about a visa denial based on concerns for national security or terrorism. Judge Clifton wrote that basing a denial of the application on the statute provided a lawful reason for denying it.

The Solicitor General has asked the Supreme Court to review the Ninth Circuit’s decision.

In my opinion, the doctrine of “consular nonreviewability” is far too broad. There are times that federal courts should have the power to review actions of consular officials, where the officer has made a mistake of law, a clear mistake regarding the facts, or is motivated by prejudice.

But especially in a system where consular nonreviewability is the general rule it’s crucial that applicants be told the legal and factual reasons their visas are denied. In fact, the State Department’s Customer Service Statement to Visa Applicants states, “We promise to you, the visa applicant, that … we will explain the reason for any visa denial to you.” Former Secretary of State Colin Powell wrote a memo to remind consular officers that the “spirit of American justice and fairness” requires that the applicant be told the “factual basis for the refusal” so that “he understands the decision and has a reasonable opportunity to rebut it.”

Berashk’s case is  not unique: consular officers routinely deny visa applications without stating the reason why. U.S. citizens may be  separated from their noncitizen families for years as a result. Sometimes the denials are erroneous. I’ve represented cases many families where wrongful denials based on supposed security reasons, criminal grounds, etc., are eventually overturned. But justice is much too slow and too hard to achieve where consular officers’ reasons are secret.

Kerry v. Din is a close case because the consular officer’s denial cites to the statutory section covering “terrorist activities.” The consular officer obviously shouldn’t be required to release information that could make known the identity of an undercover informant or compromise an ongoing law enforcement investigation. But that level of detail isn’t required. So I would urge the Supreme Court to issue a narrow ruling, as it hinted in Kleindienst v. Mandel, that where a visa denial implicates the constitutional rights of a U.S. citizen the consular officer must state a “facially legitimate and bona fide” legal and factual basis for the denial.

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