June 15, 2015

Supreme Court Decides Kerry v. Din

On June 15, 2015, the U.S. Supreme Court decided Kerry v. Din, concluding that when the government denies a visa to enter the United States to the alien spouse of a U.S. citizen based on the alien’s terrorist activities, the citizen is not constitutionally entitled to any procedures relating to the denial beyond (possibly) an identification of the statute that provides the basis for the denial.

Fauzia Din, a U.S. citizen, is married to a citizen and resident of Afghanistan who is “a former civil servant in the Taliban regime.” Din’s husband sought a visa to enter the United States from the U.S. Embassy in Islamabad. After an interview, a consular official denied the visa, citing 8 U.S.C. § 1182(a)(3)(B), which makes inadmissible any alien involved in “terrorist activity,” including “providing material support to a terrorist organization [or] serving as a terrorist organization’s representative.” Beyond citing the statute, the official “provided no further explanation” for the visa denial. Din filed suit, claiming that the Constitution’s Due Process Clause required further procedures before the government could prevent her from living with her husband in the United States. The Court of Appeals for the Ninth Circuit ruled in her favor, holding that additional process was required.

The Supreme Court reversed in a 5-4 vote, with the five-member majority represented by two separate opinions. In the controlling opinion, Justice Kennedy, joined by Justice Alito, assumed without deciding that U.S. citizens have a due-process liberty interest in the admission of their alien spouses to the country. Nevertheless, he concluded that when an immigration statute “specifies discrete factual predicates the consular officer must find to exist before denying a visa,” identifying the statute as the basis for denying the spouse’s visa usually is all the process necessary to deprive a citizen of any such liberty interest she may possess. “Absent an affirmative showing of bad faith on the part of the consular officer who denied [the] visa,” the courts will not ‘look behind’ the Government’s exclusion of [the spouse] for additional factual details.” And at least when the statutory bar involved is related to terrorism, any due-process right the citizen spouse has is satisfied even where “the statutory provision the consular officer cited covers a broad range of conduct,” because “respect for the political branches’ broad power over … the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad.”

Justice Scalia also voted to reverse in a separate opinion joined by Chief Justice Roberts and Justice Thomas. Justice Scalia stated that he would have held that citizens have no due-process liberty interest in the admission to the country of their alien spouses. Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.

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