A divided Supreme Court on Monday said that naturalized U.S. citizen couldn’t challenge a federal government decision to deny her non-citizen husband’s entrance visa based on his past employment in Afghanistan’s Taliban government.
Link: Read The Opinion
In a 5-4 decision in Kerry v. Din, Justice Antonin Scalia said in a plurality opinion that the government didn’t deprive Fauzia Din of her constitutional right to due process of law when it barred Kanishka Berashk, her husband, entry to the United States from Pakistan.
“Because Fauzia Din was not deprived of ‘life, liberty, or property’ when the Government denied Kanishka Berashk admission to the United States, there is no process due to her under the Constitution,” said Scalia.
The court's five conservative justices didn’t totally concur in their reasoning. Scalia, Chief Justice John Roberts and Justice Clarence Thomas argued that Din didn’t have a constitutional right to challenge the visa decision, while Justices Anthony Kennedy and Samuel Alito said Din's due process rights had been already met by the government notification that denied Berashk's visa application.
Justice Stephen Breyer wrote the dissenting opinion.
“Ms. Din should prevail on this constitutional claim. She 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,’” Breyer said. “In my view, the Due Process Clause requires the Department to provide an adequate reason. And, I believe it has failed to do so.”
Din was born in Afghanistan and entered the United States as a refugee in 2000. She became a naturalized citizen in 2007. Din returned to Afghanistan in September 2006 to marry Berashk.
Later in 2006, Din filed a visa petition on behalf of her husband, a citizen and resident of Afghanistan. In February 2008, United States Citizenship and Immigration Services informed Din that the petition had been approved and a few months later her husband had his visa interview in Pakistan.
During the interview Berashk said that he worked as a payroll clerk for the Afghan Ministry of Social Welfare from 1992 to 2003, a time during which the Taliban government maintained control of Afghanistan.
After waiting nine months for the visa, Berashk finally received a letter from the United States Citizenship and Immigration Services informing him that his visa was denied under the Immigration and Nationality Act. Following further inquiry, Berashk learned that the denial was based on Section 1182(a)(3)(B) for various “terrorist activities” that prevent an alien from obtaining a visa.
The district court ruled that Din didn’t have standing to challenge the visa denial notice. The U.S. Court of Appeals for the Ninth Circuit disagreed, saying that a U.S. citizen has a fundamental liberty interest that is implicated by a consular officer’s denial of her alien spouse’s visa application. According to the Ninth Circuit, Din has a protected liberty interest in marriage under the Due Process clause that entitled her to a judicial review of the visa denial.
