Does the refusal of a U.S. citizen’s alien spouse’s visa application bestow upon the citizen an enforceable constitutionally protected interest?
The Supreme Court will decide whether refusing the visa application of a U.S. citizen’s alien-spouse triggers the citizen’s constitutionally protected interests, and whether the citizen may challenge this refusal. Secretary of State Kerry argues that a citizen’s liberty interests are not implicated because neither the Immigration and Nationality Act (“INA”) nor the Due Process Clause confer upon the citizen a legally cognizable interest in the consular officer’s determination, and consular officers’ determinations should not be challenged in court because judicial review would conflict with the consular nonreviewability doctrine and congressional intent in establishing the INA. In opposition, Din, a U.S. citizen, argues that the consular officer’s determination conflicts with the Court’s jurisprudence, which establishes a fundamental right to marry and to benefit from the associational interests in marriage, and that the consular officer’s determination should be subjected to judicial review in order to protect citizens’ liberty interests from arbitrary restrictions. The Court’s ruling in this case implicates the ability of the government to prevent disclosure of confidential information related to national security concerns and the ability of citizens to live with their alien spouse in the United States.
Questions as Framed for the Court by the Parties
- Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and
- Whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.
Fauzia Din, a U.S. citizen, married Kanishka Berashk, an Afghani national, in September 2006. See Din v. Kerry, 718 F.3d 856, 858 (9th Cir. 2013). Din shortly thereafter filed a visa petition in order for Berashk to be admitted into the United States. See id. On February 12, 2008, the United States Citizenship and Immigration Services (“USCIS”) informed Din that the visa petition had been approved. See id. Seven months later, Berashk appeared for his visa interview in Islamabad, Pakistan. See id. During the interview Berashk revealed that he worked as a payroll clerk for the Afghan Ministry of Social Welfare from 1992 to 2003. See id. Since the Taliban controlled Afghanistan from 1996 to 2001, Berashk thus technically worked for the Taliban government during this time. See id. At the culmination of the consular interview, the consular officer informed Berashk to expect his visa in two to six weeks. See id.
After waiting for about nine months and making several phone calls to the Embassy, Berashk received a letter from USCIS informing him that his visa had been denied under 8 U.S.C. § 1182(a), also known as section 212(a) of the Immigration and Nationality Act (“INA”). See Din, 718 F.3d at 859 (9th Cir. 2013). USCIS also told Berashk that there were no waivers available for his ineligibility. See id. After additional inquiry, Berashk learned that his visa had been specifically denied under § 1182(a)(3)(B). See id. Section 1182(a)(3)(B) lists various “terrorist activities” that, if committed, renders an alien inadmissible. See id. Further, it “makes inapplicable the requirement that the aliens receive notice of the reason for denials involving criminal or terrorist activity.” Id.
Looking for a detailed reason for Berashk’s visa denial, Din enlisted the help of pro bono counsel who made several inquiries about the visa denial to the Immigrant Visa Unit of the Islamabad Embassy, Office of Visa Services at the State Department, and different State Department officials. See Din, 718 F.3d at 859 (9th Cir. 2013). All departments were either unresponsive or cited § 1182(a) as the reason for the visa denial and the unobtainability of a detailed explanation. See id. Din also traveled to the Kabul Embassy and the Islamabad Embassy seeking an explanation for the denial, but she was unable to get any further information. See id.
Din then sought relief through the U.S. courts. See Din, 718 F.3d at 859 (9th Cir. 2013). Eventually, the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), held that a citation to § 1182(a)(3)(B) was not a facially legitimate reason to deny Berashk a visa. See id. at 868. The Ninth Circuit Court further held that Din had standing to challenge § 1182(b)(3) as it has been applied to her. See id. Secretary of State John F. Kerry (“Kerry”) filed a petition for writ of certiorari requesting the Supreme Court to review and reverse the Ninth Circuit’s opinion. See Petition for Writ of Certiorari, Kerry v. Din, 135 S.Ct. 44 (2014).
The Supreme Court will first determine whether a consular officer violates a U.S. citizen’s constitutionally protected interest by denying a visa to the citizen’s alien spouse. See Brief for Petitioners at i. Din asserts that the government’s denial of her husband’s visa implicates her fundamental right to marry because the right to marry includes the associational right to live with one’s spouse without arbitrary governmental interference. See Brief for Respondent at 16. In opposition, Kerry argues that the Immigration and Nationality Act (“INA”) does not confer upon U.S. citizens a legal interest if a consular officer denies an alien-spouse’s visa application, and that there is no colorable claim under the Due Process Clause because no fundamental interest is implicated in this case. See id. at 17–21.
The Supreme Court will also determine whether a U.S. citizen may judicially challenge such a visa denial and require the government to explain under which statutory provision the spouse was deemed ineligible for admission. See Brief for Petitioners at i. Din argues that due process requires judicial review and notice of the basis for denial in order to protect citizens from arbitrary government constraints, and that courts should implement the Mandel standard of review. See Brief for Respondent at 39, 46. However, Kerry counters that requiring judicial review and notice requirements on consular officers’ visa determinations would violate the long-standing consular nonreviewability doctrine and nullify Congress’s intent to protect confidential information. See id. at 33–36.
DOES THE DENIAL OF A VISA TO AN ALIEN SPOUSE OF A U.S. CITIZEN IMPLICATE THE CITIZEN’S FUNDAMENTAL RIGHTS?
Din contends that the consular officer’s denial of her spouse’s visa application violated her fundamental right to marry and should be subject to judicial review. See Brief for Respondent at 15. Din argues that the government overlooks the associational interests of marriage, such as the ability for married couples to choose whether and when to conceive a child or to raise the child together in a home. See id. at 17–18. Din claims the Due Process Clause protects those associational interests from arbitrary governmental deprivation. See id. at 16. Din maintains that the Supreme Court’s holding in Griswold v. Connecticut, where the Court held that marriages were within the constitutionally protected “zone of privacy,” was grounded in this associational aspect of marriage. See id. at 17. Din contends that married couples are denied protected associational rights if they cannot choose to live together. See id. Din also claims that the Supreme Court’s holding in Fiallo v. Bell, where the Court held that citizens have an interest in the denial of visas to their family members, supports her argument that alien-admission regulations may be subjected to judicial review. See id. at 21–22. Din disagrees with Kerry and argues that her legal interests do not terminate upon the granting of a petition for classification of her spouse as an immediate relative because the purpose of the petition is to promote family unification through immigration. See id. at 28–29. Moreover, Din claims, the citizen-spouse continues to play an important role in the application process after the government grants her petition. See id. 29. Finally, Din argues that she is directly affected by the visa denial because the denial forces her to choose between living in the U.S. without her husband and leaving the country altogether. See id. at 24. Din claims that the Court should not permit the government to partially deprive her of a liberty interest even if such deprivation is not technically a total deprivation of said interest. See id. at 25.
Kerry argues that neither the INA nor the Due Process Clause, which protects citizens’ liberty interests against arbitrary governmental intervention under the Fifth Amendment, confers upon a U.S. citizen a legally identifiable interest if a consular officer denies the visa application filed by the citizen’s alien spouse. See Brief for Petitioners at 17. According to Kerry, Din had a legal interest under the INA to petition for classification of her spouse as an immediate relative, but the consular officer’s decision whether to grant her alien spouse’s visa application rested on the consular officer’s examination of the alien’s background. See id. at 17–19. Thus, Kerry claims, the INA creates a two-step process whereby the citizen’s legally identifiable interest ends once the petition for classification is granted and does not extend to the visa application itself. See id. at 20. Kerry further contends that there is no fundamental interest implicated in this case because the consular officer’s denial of the visa application did not invalidate Din’s marriage, deprive Din of legal benefits created by marriage, or prohibit Din from living with her spouse in another country. See id. at 22–23. Kerry claims that U.S. has never recognized a liberty interest in having a citizen’s alien spouse admitted to the U.S, and Congress has plenary power to deny admission. See id. at 25. Moreover, Kerry argues that the Supreme Court has long rejected the idea that the government may interfere with a citizen’s constitutionally protected interests through indirect action. See id. at 29–30. Kerry maintains that this principle defeats Din’s claim because she has only suffered incidental harm through the denial of her husband’s visa because the decision solely concerned her spouse. See id. at 30.
MAY COURTS REQUIRE JUDICIAL REVIEW AND NOTICE REQUIREMENTS FOR CONSULAR OFFICERS’ VISA DETERMINATIONS?
Din contends that, in order to protect citizens’ liberty interests against arbitrary restrictions, due process requires some sort of judicial review of government restrictions to ensure the government has a legitimate reason for the deprivation. See Brief for Respondent at 31–32. Furthermore, Din believes that the standard of review set forth in Mandel, which stated that a U.S. citizen could obtain limited judicial review of the Attorney General’s denial of a waiver if the citizen’s First Amendment rights were violated, should be the applicable standard. See id. Din asserts that, in order to satisfy these due process requirements, the government must have a legitimate reason for restricting a citizen’s liberty interest that is supported by “some evidence.” See id. at 34. Din claims that the Court should apply Mandel review, whereby the courts look to see whether there is a facially legitimate and bona fide explanation for the government official’s decision, because such review satisfies the minimum due process required to protect against arbitrary restrictions. See id. at 39–41. Din further argues that Kerry’s consular nonreviewability doctrine and plenary power arguments do not preclude judicial review. See id. at 35. According to Din, the Court has held that Congress must clearly express an intention to prohibit judicial review of constitutional claims arising under a federal statute if Congress intends to foreclose such review, and no provision within the INA bars constitutional claims. See id. Din also notes that the consular nonreviewability doctrine is not implicated here because Din is a U.S. citizen and the doctrine is founded on the premise that aliens outside the U.S. do not have constitutional rights. See id. at 36–39. Finally, Din argues that a mere citation to § 1182(b)(3) does not satisfy the “facial legitimacy” test because the consular officer could have erred in construing the statute. See id. at 43.
Kerry argues that judicial review and notice requirements for consular officers’ visa determinations conflict with Supreme Court jurisprudence and congressional intent in passing § 1182(b)(3) of the INA. See Brief for Petitioners at 33. Kerry contends that courts have long recognized the consular nonreviewability doctrine, which holds that aliens denied visas have no right to challenge the judgment of consular officers. See id. at 33–34. According to Kerry, consular nonreviewability is significant because it protects the plenary power of political branches to create their own alien-admission rules; Congress, by refusing to include any procedures for judicial review under the INA, did not intend to confer the right to judicial review to aliens living abroad. See id. at 34–37. Kerry further argues that the Court’s holding in Mandel does not stand for the proposition that a consular officer’s denial of a visa may be subjected to judicial review. See id. at 38. Kerry claims that the Court’s holding in Mandel does not apply to visa denials because the consular officer’s decision is tied to legal provisions set forth in the INA. See id. at 38–39. Kerry claims that applying Mandel’s “facial legitimacy” test to INA provisions would be illogical because the reasons for denying a visa were specifically created by Congress, which makes the reasons inherently “legitimate on their face.” See id. at 39. For this reason, Kerry claims, the Court would in effect be second-guessing Congress’s choices in creating a law if it applied Mandel’s “facial legitimacy” test to the INA provisions. See id. Finally, Kerry argues that the government satisfied the “facial legitimacy” test by citing § 1182(b)(3). See id. at 40–42.
The Supreme Court will decide whether refusing the visa application of a U.S. citizen’s alien-spouse triggers the citizen’s constitutionally protected interests, and whether the citizen may challenge this refusal. See Brief for Petitioners at i. Din argues that her husband’s visa denial implicates her fundamental right to marry. See Brief for Respondent at 16. In opposition, Kerry argues that the Immigration and Nationality Act (“INA”) does not confer upon U.S. citizens a legal interest. See Brief for Petitioners at 17–21. A finding for Din may present a threat to national security by forcing the State Department to disclose secure information. See id. at 44. On the other hand, a finding for Kerry may erode the deep-rooted value of marital and family unity. See Brief amici curiae of National Justice for Our Neighbors, et al. ("National Justice") in Support of Respondent at 4.
NATIONAL SECURITY REPERCUSSIONS
The American Civil Liberties Union (“ACLU”), in support of Din, argues that the American judicial system is competent to adjudicate visa denials, even when they require the disclosure of secure information. See Brief of Amicus Curiae of The American Civil Liberties Union ("ACLU") in Support of Respondent at 23. The ACLU argues that, outside of the visa-denial context, the judiciary has proven competent in adjudicating cases involving national security and foreign affairs. See id. at 25. The ACLU explains that in camera review is a standard procedure for dealing with cases involving secure information. See id. 25, 27. Further, the ACLU explains that judges have the tools, expertise, and competence to deal with any new conflicts that may arise. See id.
Kerry counters that security-related visa denials should not undergo judicial review because the government has been reluctant to intrude on Congress’s authority regarding national security. See Brief for Petitioners at 44. Kerry further argues that the possibility of disclosing secure information due to a visa denial can have a “chilling effect” on the various agencies and governments that currently share terrorism-related intelligence with the State Department. See id. at 48. Kerry contends that even if secure information was only submitted ex parte and in camera, the “[w]idening of access to sensitive information, even in controlled settings, increases the risk of unauthorized or inadvertent disclosure.” See id. at 51. Kerry thus argues that questions implicating access to sensitive information would naturally arise. See id. at 51-52.
EFFECTS ON IMMIGRATION LAW
Amici in support of Din contend that federal immigration law generally seeks to “keep families together” and that the appellate court’s decision upholds the deeply rooted American value of family unity. See Brief of National Justice at 4, 9; see also Brief amici curiae of California Women’s Law Center ("CWLC") in Support of Petitioner. In particular, the National Justice for Our Neighbors (“National Justice”) argues that Din’s fundamental right to marry implicates a U.S. citizen’s right to have their alien spouse live with them in the United States. See Brief of National Justice at 11, see also Brief of CWLC. National Justice explains that certain married couples cannot live outside of the United States because the citizen may be denied a visa in foreign countries for various reasons. See Brief of National Justice at 11. For example, the foreign country might be deemed unsafe for U.S. citizens to travel, and the foreign country might not allow U.S. citizens to travel or live permanently in its borders. See Brief of National Justice at 11. National Justice concludes that Din’s constitutional claim must be recognized in order to protect and uphold the sanctity of the family unit, which the federal immigration law promotes. See Brief of National Justice at 4, see also Brief of CWLC.
In response, Kerry argues that Berashk’s visa denial does not impinge on Din’s fundamental right to marry. See Brief for Petitioners at 31. Kerry further contends that a finding for Din would permit U.S. citizens to assert constitutional claims based on the inadmissibility of their alien spouses. See id. Kerry explains that U.S. citizens will be able to make this same constitutional claim in a variety of circumstances. See id. For example, the claim could be made when an alien spouse is placed in a removal proceeding due to a violation of immigration laws or when an alien spouse commits serious crimes, such as terrorist attacks. See id. Kerry further argues that U.S. citizens, whose alien family members have been deemed inadmissible to or removed from the United States, will also have standing to make constitutional claims based on their familial relationships. See id. Kerry thus concludes that recognizing Din’s constitutional claim will “flood the courts with suits by plaintiffs who claim a species of constitutional injury that has never previously been cognizable.” See id. at 32.
The Supreme Court will determine whether refusing the visa application of a U.S. citizen’s alien-spouse triggers the citizen’s constitutionally protected interests, and whether the citizen may challenge this refusal. Kerry argues that the INA does not bestow a U.S. citizen a legal interest based on the alien spouse visa application denial and that there is no colorable claim under the Due Process Clause. On the other hand, Din argues that the government’s denial of her husband’s visa implicates her fundamental right to marry and therefore the consular officer’s visa denial should be subjected to judicial review. If the Court upholds Din’s claim based on her fundamental right to marry, there may be repercussions for national security and the landscape of immigration law.
- Lawrence Hurley: Supreme Court to Weigh Spouse Rights Over Denied Visa, Reuters (Oct. 2, 2014).
- Ian R. Macdonald: SCOTUS Grants Certiorari to Two Immigration-Based Cases for 2015 Term: Will the Government Have to Explain its Exercise of “Discretion”?, The National Law Review (Oct. 15, 2014).