The Supreme Court decision that came down today in the Kerry v Din case denies justice for American families seeking accountability for overseas visa denials. The ruling allowed a U.S. citizen to be permanently separated from her spouse on a bare, unexplained allegation that her Afghani husband had been involved in supporting terrorism. The Court’s decision in Kerry v. Din found that the U.S. Constitution does not require the government to provide any further reasoning for denying the spouse’s visa application. Essentially it ruled that regulating immigration overrides
Justice Scalia, writing for himself, Chief Justice Roberts, and Justice Thomas, found that U.S. citizens have no constitutional interest in being able to live in the United States with their spouses, and thus no right to know why they are being separated. Justice Kennedy, joined by Justice Alito, found that even if U.S. citizen spouses have a constitutional interest in residing with their spouses, it is sufficient to tell the U.S. citizen spouse the general section number of immigration law under which her husband was found inadmissible. Under Supreme Court rules, the concurrence from Justice Kennedy and Alito, as the narrowest opinion in the case, governs. The ruling is a big disappointment for thousands of Americans who are waiting on visa approvals to reunite with their loved one, as it sends a message that their families do not matter and the government can force separations without giving any real reason.
Ms. Fauzia Din has been separated from her husband since 2006, when she married her husband, a clerk in the Afghan Ministry of Education, and applied for his visa so he could join her in California. After a three-year delay, the U.S. State Department denied the visa based only on a vague “national security” allegation. In 2013, the Ninth Circuit Court of Appeals ruled that the State Department must provide a facially legitimate and bona fide basis for the visa denial. Rather than embracing transparency and providing Ms. Fauzia the reasoning for the visa denial, the Obama administration instead appealed to the Supreme Court, which heard arguments for the case in February.
At Monday’s argument, Justice Anthony M. Kennedy said he was uncomfortable with requiring the government to provide even minimal information, saying it “might give some indication as to our intelligence-gathering capability and the information that we have.”
Edwin S. Kneedler, a lawyer for the federal government, took a hard line on both of the basic questions in the case. Visa denials are never subject to court review, he said. He added that Ms. Din’s rights as a spouse are in any event too remote to allow her to sue.
The National Immigrant Justice Center and American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild authored amicus briefs in the case. The only positive result of the case is that the Court did not decide whether U.S. citizens have a procedural due process interest in the visa application process. This opens the door to potential future litigation.
Our firm handles a large number of immigrant visa applications at the U.S. Consulates and Embassies abroad and have taken on very complex matters that also involve denials that are not all-telling or even justifiable. Currently we have one case pending where we are determined to challenge the due process interest of a U.S. Citizen whose spouse was denied a visa because of a tattoo. We are hopeful that our due process argument combined with the fact that it does not involve any allegations of terrorism will prevail despite today’s ruling as we will be able to distinguish between the two cases.
According to the Department of Homeland Security (DHS) statistical yearbook, more than 200,000 noncitizens immigrate every year through a marriage to a U.S. citizen. The U.S. Census Bureau reports that over 1.5 million couples residing in the United States are native-born U.S. citizens married to noncitizens; another 4.4 million couples are naturalized citizens and noncitizens. U.S. citizens may file visa petitions for their spouses. However, the approval of a spouse’s visa petition does not automatically confer the right to enter the United States. And today’s ruling just made it much harder for U.S. Citizens to bring their non-citizen spouses to the United States without any ability to appeal decisions.