This entry summarizes the ruling of the Supreme Court in Kerry v. Din, which was decided by the Supreme Court on June 15, 2015.
In this case Fauzia Din, who is a citizen and resident of the United States, contends that under the Due Process Clause she has the right to a more detailed explanation of the government’s decision refusing to issue an immigrant’s visa to her husband, Kanishka Berashk.
Din’s husband Berashk is a citizen of Afghanistan who formerly worked for the Taliban government. A consular officer at the U.S. embassy in Islamabad rejected Berashk’s immigrant visa application, citing 8 U.S.C. § 1182(a)(3)(B), which provides that persons who have engaged in “terrorist activity” are inadmissible to the United States.
It is clear that Berashk himself, as an unadmitted citizen of a foreign country, has no “personal right of entry” into the United States, and therefore no right to judicial review of the government’s decision to exclude him. The issue in this case is whether Din, his American wife, under the doctrine of procedural due process, has an independent right to a more detailed explanation for the State Department’s decision to bar her husband.
The Ninth Circuit Court of Appeals ruled in favor of Din on the ground that Din “has a protected liberty interest in marriage that entitled [her] to review of the denial of [her] spouse’s visa.”
The United States Supreme Court reversed the decision of the Ninth Circuit by a vote of 5-4. There was no majority opinion. Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, wrote a plurality opinion that essentially attacked the concept of substantive due process. Justice Scalia reasoned that Din must lose because she did not have a constitutional right to live with her husband in the United States. Justice Kennedy, joined by Justice Alito, wrote an opinion concurring in the judgment that relied principally upon the case of Kleindienst v. Mandel, a 1972 decision that vested great discretion in the government to deny entry to foreign nationals. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.
Under the doctrine of procedural due process, a person is entitled to due process only if the government is seeking to deprive that person of “life, liberty, or property.” Writing for the plurality, Justice Scalia found that the government’s denial of her husband’s visa did not deprive Din of “liberty.”
In reaching this conclusion Justice Scalia’s plurality opinion trod familiar ground. As he has many times in the past he once again cast doubt on the legitimacy of the doctrine of substantive due process, which is the source of our unenumerated fundamental rights – principally, the Right to Privacy – which includes the right to enter into intimate relationships, the right to marry, the right to have children and to direct their education, the right to live with members of one’s extended family, the right to use contraception, the right to terminate a pregnancy, and the right to refuse even lifesaving medical treatment. At most, in accordance with the language in the Supreme Court’s opinion in Washington v. Glucksberg, Justice Scalia would recognize as fundamental only those unenumerated rights that are “deeply rooted in this nation’s history and tradition.”
Utilizing this “tradition” standard Justice Scalia rejected any possibility that Din had a constitutional right to live with her husband in the United States. Justice Scalia pointed out that traditionally American women who married foreign nationals were considered to have assumed the nationality of their husbands and were stripped of their American citizenship. While Justice Scalia admits that such discriminatory laws would be unconstitutional today, he nevertheless asserts that this history proves that Din does not have a constitutional right to live with her husband in the United States. Here is Justice Scalia’s analysis that is predicated on the concept of “coverture”:
Most strikingly, perhaps, the Expatriation Act of 1907 provided that “any American woman who marries a foreigner shall take the nationality of her husband.” Thus, a woman in Din’s position not only lacked a liberty interest that might be affected by the Government’s disposition of her husband’s visa application, she lost her own rights as a citizen upon marriage. When Congress began to impose quotas on immigration by country of origin less than 15 years later, with the Immigration Act of 1921, it omitted fiances [that is, a woman’s fiancé] and husbands from the family relations eligible for preferred status in the allocation of quota spots. Such relations were similarly excluded from the relations eligible for nonquota status, when that status was expanded three years later. Immigration Act of 1924.
To be sure [Justice Scalia stated], these early regulations were premised on the derivative citizenship of women, a legacy of the law of coverture that was already in decline at the time. [citing] C. Bredbenner, A Nationality of Her Own 5 (1998). Modern equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order. Nevertheless, this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” [citing] Glucksberg.
Justice Scalia’s continuing reliance on the historical test of Glucksberg is questionable. Two of the justices who joined that opinion – Justice Kennedy and Justice O’Connor – later rejected the strictly historical approach to defining our fundamental rights in both Planned Parenthood of Southeastern Pennsylvania and Lawrence v. Texas, and Justice Kennedy rejected it again two years ago in United States v. Windsor. The Supreme Court’s upcoming decision in Obergefell v. Hodges – the same-sex marriage case – will present yet another opportunity for the Supreme Court to decide whether our fundamental rights consist only of those rights that were historically recognized in law, or whether the Constitution requires the Court to constantly reevaluate how the fundamental constitutional principles of liberty and equality must be applied.
Justice Scalia concluded:
Neither Din’s right to live with her spouse nor her right to live within this country is implicated here. There is a “simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.” The Government has not refused to recognize Din’s marriage to Berashk, and Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside. And the Government has not expelled Din from the country. It has simply determined that Kanishka Berashk engaged in terrorist activities within the meaning of the Immigration and Nationality Act, and has therefore denied him admission into the country. …
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. To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required.
Justice Kennedy concurred in the result in Kerry v. Din but he did not join Justice Scalia’s plurality opinion which confined our fundamental rights to those that have been traditionally recognized. Instead, Justice Kennedy took the position that it was unnecessary for the plurality to have ruled that Din did not have a protected liberty interest in her husband’s visa application, because even if she does have such a right, she already received all of the process that was “due.” Kennedy stated:
The plurality is correct that the case must be vacated and remanded. But rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband’s visa denial satisfied due process.
Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse. The Court need not decide that issue, for this Court’s precedents instruct that, even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute’s terrorism bar, [contained in] § 1182(a)(3)(B).
In reaching this conclusion Justice Kennedy relied on the 1972 case of Kleindienst v. Mandel in which the Supreme Court upheld the refusal of the Attorney General to grant a nonimmigrant visa to Ernest Mandel. Mandel was a newspaper editor and scholar who had authored a book entitled Marxist Economic Theory. The Attorney General based his decision barring Mandel on a law that prohibited entry to those persons who advocate or publish “the economic, international, and governmental doctrines of world communism.” The Attorney General’s denial of the visa was challenged by Stanford University and other American institutions that had invited Mandel to speak. These institutions contended that the government’s denial of Mandel’s visa violated their constitutional rights under the First Amendment. The Supreme Court ruled that so long as Congress adopted and the Executive enforced a “facially legitimate and bona fide reason” for the exclusion, the courts would not question it. Here is the final paragraph of the Court’s ruling in Kleindienst:
In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.
Justice Kennedy found that, just as in Kleindienst v. Mandel, the government in this case gave a “facially legitimate and bona fide reason” to exclude Berashk from entry in the United States. Under Kleindienst, that is all the process that Din was due. Justice Kennedy added that because Berashk was excluded for “terrorist activity” it was particularly inappropriate for the courts to review the exercise of discretion by the executive branch. Kennedy stated:
Congress evaluated the benefits and burdens of notice in this sensitive area and assigned discretion to the Executive to decide when more detailed disclosure is appropriate. This considered judgment gives additional support to the independent conclusion that the notice given was constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses. And even if Din is correct that sensitive facts could be reviewed by courts in camera, the dangers and difficulties of handling such delicate security material further counsel against requiring disclosure in a case such as this. Under Mandel, respect for the political branches’ broad power over the creation and administration of 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.
For these reasons, my conclusion is that the Government satisfied any obligation it might have had to provide Din with a facially legitimate and bona fide reason for its action when it provided notice that her husband was denied admission to the country under § 1182(a)(3)(B). By requiring the Government to provide more, the Court of Appeals erred in adjudicating Din’s constitutional claims.
Justice Breyer, joined by three other justices, dissented. In contrast to Justice Scalia, he would have found that Din has a protected “liberty” interest in living in the United States with her husband. According to Justice Breyer, this right stems both from the Constitution (the implied right to live with one’s spouse) and from statutory law (the right of one’s spouse to seek an immigration visa). Justice Breyer does not take the position that either of these rights is absolute or that Berashk is entitled to immigrate to the United States; he merely contends that Din has a legal right that was infringed by the government. Justice Breyer outlined the constitutional and statutory basis for this right in the following passage of his opinion:
As this Court has long recognized, the institution of marriage, which encompasses the right of spouses to live together and to raise a family, is central to human life, requires and enjoys community support, and plays a central role in most individuals’ “orderly pursuit of happiness,” [citing] Meyer v. Nebraska (1923), Griswold v. Connecticut (1965), Zablocki v. Redhail (1978), and Moore v. East Cleveland (1977). Similarly, the Court has long recognized that a citizen’s right to live within this country, being fundamental, enjoys basic procedural due process protection.
At the same time, the law, including visa law, surrounds marriage with a host of legal protections to the point 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.
And in contrast to Justice Kennedy, who found that even if Din has a protected liberty interest in living with her husband in the United States that she has received all of the process that is due to her, Justice Breyer would have ruled that Din is entitled to a more specific explanation of the reason why her husband was excluded. Breyer stated:
Here, we need not consider all possible procedural due process elements. Rather we consider only the minimum procedure that Ms. Din has requested—namely, a statement of reasons, some kind of explanation, as to why the State Department denied her husband a visa.
Justice Breyer criticized the generality and ambiguity of the State Department’s explanation for denying a visa to Din’s husband:
According to the complaint … the State Department’s denial letter stated only that the visa “had been denied under ... 8 U.S.C. § 1182(a).” In response to requests for further explanation, the State Department sent an e-mail stating that the visa “had been denied under ... 8 U.S.C. § 1182(a)(3)(B)—the terrorism and national security bars to admissibility.” I do not see how either statement could count as adequate.
For one thing, the statutory provision to which it refers, § 1182(a)(3)(B), sets forth, not one reason, but dozens. It is a complex provision with 10 different subsections, many of which cross-reference other provisions of law. Some parts cover criminal conduct that is particularly serious, such as hijacking aircraft and assassination. Other parts cover activity that, depending on the factual circumstances, cannot easily be labeled “terrorist.” …
For another thing, the State Department’s reason did not set forth any factual basis for the Government’s decision. Perhaps the Department denied the visa because Ms. Din’s husband at one point was a payroll clerk for the Afghan Government when that government was controlled by the Taliban. But there is no way to know if that is so.
The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.
Justice Breyer concluded:
In my view, the Due Process Clause requires the Department to provide an adequate reason. And, I believe it has failed to do so.
In summary, in the case of Kerry v. Din, a majority of the Court, but without a majority opinion, ruled that the Due Process Clause of the Constitution does not entitle Din to a more detailed explanation for the denial of her husband’s visa application.
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