On October 2, 2014, the Supreme Court of the United States granted certiorari in the case of Kerry v. Din. The case involved a U.S. citizen who claimed that her liberty interest in marriage has been violated by the denial of a visa to her husband, a national of Afghanistan, by a consular officer at the U.S. Consulate in Islamabad. The federal government argues that the denial should not be subject to review by the courts, under the doctrine of consular non-reviewability and that no specific explanation or justification is required, other than a general reference to inadmissibility under the Immigration and Nationality Act (INA) section 212(a)(3)(B), “Terrorist Activities.” However, the Ninth Circuit Court of Appeals found that Din, as a U.S. citizen, did have her fundamental rights implicated by the denial of her husband’s visa, and has a right to limited review of the consular officer’s decision. The Ninth Circuit remanded the case, requiring that the government provide a reason specific enough to allow a court to determine whether the decision was “facially legitimate and bona fide,” pursuant to Kleindienst v. Mandel, 408 U.S. 753 (1972).
In this case, the Supreme Court will revisit the long-standing doctrine of consular non-reviewability, also known as “consular absolutism,” a court-created doctrine based on the broad congressional power over immigration and the limited due process rights of foreign nationals applying for entry into the United States. About 60 years ago, the Supreme Court in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), established the doctrine, explicitly stating that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” This has immunized consular decisions from judicial review and accountability, even when the denial is clearly erroneous or issued with no explanation. However, in certain cases, U.S. citizens have been able to claim that their constitutional rights have been implicated by consular visa denials in order to challenge this doctrine.
Fauzia Din is a naturalized U.S. citizen who fled the Taliban occupation in Afghanistan in 1996. In 2004, she became engaged to Kanishka Berashk, an Afghan native that she had known for many years. Berashk had worked as a low-level clerk in the Taliban government. In 2006, Din returned to Afghanistan and married Berashk, and filed an immigrant visa petition on his behalf based on their marriage. The petition was approved and Berashk went to a visa interview in September 2008 at the U.S. Consulate in Islamabad. The interview seemed to go well and it appeared that the visa would be approved. However, in July 2009, Din and her husband were informed that the visa had been denied under INA section 212(a)(3)(B). They were told no waiver or further explanation was available. In February 2010, Din filed a complaint in district court alleging that there was no “facial legitimate and bona fide reason for the denial,” and therefore her liberty interest in her marriage had been violated.
The district court upheld the denial, stating that a simple reference to the section of law on which the denial was based was sufficient to establish the legitimacy of the decision. However, the Ninth Circuit Court of Appeals reversed the district court, finding that the decision implicated a U.S. citizen’s constitutional rights to marriage and family life. Din was therefore entitled to limited judicial review to determine whether the decision was based on a facially legitimate and bona fide reason, and that simply referencing the statute did not meet this standard. The court added that if national security issues were involved the proceedings could be held in camera to avoid disclosing sensitive information.
The Supreme Court has granted certiorari to decide whether Din is entitled to this limited review of the denial of her husband’s visa, and whether she will ever be allowed to share married life and establish a family with him in the United States. The justices will also have the opportunity to review the doctrine of consular absolutism, which has meant that foreign nationals seeking entry into the United States, and their employers and family members who request their presence, have had no recourse when visas are inexplicably or erroneously denied. When a visa is denied, an applicant can request administrative review by the Department of State, but there is no right to this review, and meaningful court review is generally barred even when the decision is “erroneous, arbitrary, or contrary to agency regulations.” Ngassam v. Chertoff, 590 F. Supp. 2d 461, 466–67 (S.D.N.Y. 2008).
In this case, the Supreme Court has an opportunity to revise its strict doctrine of consular absolutism, which has its origins in the Chinese Exclusion Case of 1889. The Chinese Exclusion Case, 130 U.S. 581, 609 (1889). The Court could expand on the exception provided by the case of Kleindienst v. Mandel, which provides a small opening in this doctrine when the rights of U.S. citizens are implicated, requiring that at least a superficially legitimate reason for denial be provided. Allowing judicial review of consular decisions would make consular officials more accountable and make the visa application process more transparent, consistent, and reliable for visa sponsors, including the U.S. employers and family members of foreign nationals.
