The U.S. Supreme Court, in an extremely divided opinion, ruled that the federal government did not violate a U.S. citizen’s constitutional rights by denying her husband an immigrant visa and refusing to tell her why. Kerry v. Din, 576 U.S. ___ (2015). Justice Scalia’s plurality opinion was only joined by two other Justices, Chief Justice Roberts and Justice Thomas. Justice Kennedy filed a concurring opinion with Justice Alito, and the remaining justices joined a dissenting opinion written by Justice Breyer. The court ruled that the plaintiff does not have a “constitutional right to live in the United States with her spouse,” Din, slip op. at 1, a conclusion the dissenting justices strongly disputed.
The plaintiff married her husband, an Afghan national, in 2006, and she filed a visa petition for him soon afterwards. U.S. Citizenship and Immigration Services (USCIS) approved the petition, but several months after her husband’s visa interview at the U.S. Embassy in Islamabad, Pakistan, she received notice that the State Department was denying the visa application. It merely cited “terrorist activities” as the reason, stating that it could not tell her anything further. 8 U.S.C. §§ 1182(a)(3)(B), (b)(2)-(3).
The husband worked as a payroll clerk for the government of Afghanistan from 1992 to 2003. The Taliban controlled most of Afghanistan from 1996 to 2001. This might have been the basis for the State Department’s “terrorism” conclusion, although the Taliban is not on the State Department’s list of Foreign Terrorist Organizations. The legal definition of “terrorism” is extremely vague, broad, and circular. Federal immigration law’s definition of “engaging in terrorist activity” includes acts that “afford material support” to terrorists. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). See also 18 U.S.C. §§ 2339A, 2339B.
The plaintiff filed suit against the State Department, seeking a declaratory judgment and a writ of mandamus. The district court dismissed the case on the grounds that the doctrine of “consular non-reviewability” precluded it from reviewing the State Department’s decision. Din v. Clinton, et al, No. 3:10-cv-00533, mem. order (N.D. Cal., Jun. 22, 2010). The Ninth Circuit, however, reversed this ruling, finding that the plaintiff had a “protected liberty interest in marriage.” Din v. Kerry, 718 F.3d 856, 860 (9th Cir. 2013).
The Supreme Court’s judgment, as written by Justice Scalia, is dismissive of the plaintiff’s interest in bringing a lawsuit at all. It suggests that the husband should be the one to bring suit, except that “as an unadmitted and nonresident alien, he has…no cause of action to press in furtherance of his claim for admission.” Din, slip op. at 1. The court held that the plaintiff’s separation from her husband did not deprive her of any “life, liberty, or property” interest in violation of the Fifth Amendment’s Due Process Clause. Id. at 3-4.
The concurring justices found that, regardless of whether the plaintiff has a protected liberty interest, “the notice she received regarding her husband’s visa denial satisfied due process.” Din, slip op. at 1 (Kennedy, J., concurring). The dissenting justices held that the right to live with one’s spouse is most certainly a protected liberty interest and also that U.S. visa law affords marriage enough importance that it “creates a strong expectation that government will not deprive married individuals of their freedom to live together without strong reasons and (in individual cases) without fair procedure.” Din, slip op. at 3 (Breyer, J., dissenting).
Family immigration attorney Samuel C. Berger represents individuals who want to immigrate to the United States, immigrants who have made their homes in the New York City and Northern New Jersey areas, and individuals and businesses who want to petition for an immigrant visa. Contact us online or at (212) 380-8117 today to schedule a confidential consultation with an experienced and skilled immigration advocate.
More Blog Posts:
How the Supreme Court’s Same-Sex Marriage Rulings Affect Immigration to the United States, New Jersey Immigration Lawyer Blog, July 23, 2015
Executive Actions on Immigration Part 1: The Context and the Benefits, New Jersey Immigration Lawyer Blog, December 10, 2014
Supreme Court Will Consider Whether A U.S. Citizen May Take the Government to Court Over the Denial of a Visa Petition for an Immigrant Spouse, New Jersey Immigration Lawyer Blog, November 12, 2014