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SCOTUS Says Visa Denials Not Open To Judicial Review
Posted on: January 31, 2017 at 23:34:59 CT
Spanky KU
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https://www.law360.com/articles/651007/high-court-says-visa-denials-not-open-to-judicial-review
The U.S. Supreme Court on Monday upheld the long-standing concept that visa refusals by a U.S. consulate cannot be subjected to court scrutiny, siding against a U.S. citizen who challenged a visa denial for her husband.
In a closely watched 5-4 ruling, the high court vacated the Ninth Circuit’s finding that a U.S. citizen whose spouse’s visa application was refused for security reasons has due process rights that allow her to seek judicial review, along with a broader explanation for the decision.
Justice Antonin Scalia, writing in an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, said that because the U.S. citizen was not deprived of "life, liberty, or property" when the government denied the spouse admission to the U.S., there is no process due 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," Scalia wrote.
Justice Anthony Kennedy wrote his own concurring opinion, to which Justice Samuel Alito joined.
Kennedy wrote that there is no need to decide whether the U.S. citizen has a protected liberty interest, because even if she does, the notice of refusal she received satisfied due process.
The decision falls in line with the concept of consular nonreviewability, which holds that aliens outside the U.S. cannot have a consular officer's denial of a visa reviewed by a court.
The case itself stems from an attempt by U.S. citizen Fauzia Din to secure a visa for her husband, Kanishka Berashk, a clerk for the Afghan Ministry of Education.
Din filed Berashk’s visa petition in 2006, and U.S. Citizenship and Immigration Services eventually told her that the visa petition was approved and her husband was scheduled for a visa interview at the embassy in Islamabad, Pakistan.
However, although the consular officer who interviewed Berashk said he should expect to receive his visa in two to six weeks, Berashk was instead informed nine months later that his visa had been denied.
The embassy later said the visa was rejected under a provision of the Immigration and Nationality Act that deems a noncitizen ineligible for a visa due to terrorist activities, without providing a detailed explanation of the reasons for its decision. Din then filed suit in district court, but the case was dismissed on grounds of consular nonreviewability.
But the Ninth Circuit reversed the decision in May 2013, finding that without allegations of proscribed conduct, the government’s citation of the INA anti-terrorist provision wasn’t enough to deny the visa. The government subsequently filed a petition with the high court.
While Din argued that she has a constitutionally protected liberty interest in being able to choose where to live with her husband, the government contended that nothing in the INA gives Din a right to judicial review of a visa denial.
Specifically, the government argued that Din has no liberty interest, under the INA or the Due Process Clause, that is implicated by a visa denial to her foreign-born spouse. Further, an examination of the consular officer’s visa denial can’t be squared with consular nonreviewability, the government said.
On Monday, Justice Scalia wrote in his opinion that nothing in a string of high court decisions establishes a categorical liberty interest “whenever a regulation in any way touches upon an aspect of the marital relationship.”
Even if those cases could be so broadly construed, Scalia said, the relevant question is not whether the asserted interest “is consistent with this court’s substantive-due-process line of cases,” but whether it is supported by “this nation’s history and practice.”
“Here, the government’s long practice of regulating immigration, which has included erecting serious impediments to a person’s ability to bring a spouse into the United States, precludes Din’s claim,” Scalia wrote.
Additionally, he said, the high court has consistently recognized its lack of judicial authority to substitute its political judgment for that of Congress with regard to the various distinctions in immigration policy.
In his dissent, Justice Stephen Breyer — joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — wrote that the Due Process Clause requires the government to provide Din the reason for Berashk’s denial.
Scalia had accused Breyer’s dissent of creating a new category of constitutional rights, but Breyer shot back, saying his decision that Din possesses the kind of “liberty” interest to which the Due Process Clause grants procedural protection doesn’t break new ground.
Breyer said that the court has already recognized that the Due Process Clause guarantees that the government will not, without fair procedure, deprive individuals of a handful of rights, freedoms and liberties that are “no more important, and for which the state has created no greater expectation of continued benefit, than the liberty interest at issue here.”
The case was remanded for further consideration.
An attorney for the federal government was not immediately available on Monday to comment.
Mark Haddad of Sidley Austin LLP, which represents Din, said in a Monday statement that he was disappointed that the court did not impose a higher standard of accountability for the government when denying a visa to the spouse of an American citizen.
“The court has recognized, however, that working as a payroll clerk in the Afghan government during the Taliban occupation does not appear to satisfy the factual prerequisites for denying a visa," Haddad said. "We are hopeful that the State Department now will reconsider and grant the renewed visa application in light of all the facts we have now presented.”
The government is represented by Edwin S. Kneedler, deputy solicitor general at the U.S. Department of Justice.
Din is represented by Mark Haddad and Heidi Larson Howell of Sidley Austin LLP.
The case is John F. Kerry, Secretary of State, et al. v. Fauzia Din, case number 13-1402, in the Supreme Court of the United States.
The U.S. Supreme Court on Monday upheld the long-standing concept that visa refusals by a U.S. consulate cannot be subjected to court scrutiny, siding against a U.S. citizen who challenged a visa denial for her husband.
In a closely watched 5-4 ruling, the high court vacated the Ninth Circuit’s finding that a U.S. citizen whose spouse’s visa application was refused for security reasons has due process rights that allow her to seek judicial review, along with a broader explanation for the decision.
Justice Antonin Scalia, writing in an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, said that because the U.S. citizen was not deprived of "life, liberty, or property" when the government denied the spouse admission to the U.S., there is no process due 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," Scalia wrote.
Justice Anthony Kennedy wrote his own concurring opinion, to which Justice Samuel Alito joined.
Kennedy wrote that there is no need to decide whether the U.S. citizen has a protected liberty interest, because even if she does, the notice of refusal she received satisfied due process.
The decision falls in line with the concept of consular nonreviewability, which holds that aliens outside the U.S. cannot have a consular officer's denial of a visa reviewed by a court.
The case itself stems from an attempt by U.S. citizen Fauzia Din to secure a visa for her husband, Kanishka Berashk, a clerk for the Afghan Ministry of Education.
Din filed Berashk’s visa petition in 2006, and U.S. Citizenship and Immigration Services eventually told her that the visa petition was approved and her husband was scheduled for a visa interview at the embassy in Islamabad, Pakistan.
However, although the consular officer who interviewed Berashk said he should expect to receive his visa in two to six weeks, Berashk was instead informed nine months later that his visa had been denied.
The embassy later said the visa was rejected under a provision of the Immigration and Nationality Act that deems a noncitizen ineligible for a visa due to terrorist activities, without providing a detailed explanation of the reasons for its decision. Din then filed suit in district court, but the case was dismissed on grounds of consular nonreviewability.
But the Ninth Circuit reversed the decision in May 2013, finding that without allegations of proscribed conduct, the government’s citation of the INA anti-terrorist provision wasn’t enough to deny the visa. The government subsequently filed a petition with the high court.
While Din argued that she has a constitutionally protected liberty interest in being able to choose where to live with her husband, the government contended that nothing in the INA gives Din a right to judicial review of a visa denial.
Specifically, the government argued that Din has no liberty interest, under the INA or the Due Process Clause, that is implicated by a visa denial to her foreign-born spouse. Further, an examination of the consular officer’s visa denial can’t be squared with consular nonreviewability, the government said.
On Monday, Justice Scalia wrote in his opinion that nothing in a string of high court decisions establishes a categorical liberty interest “whenever a regulation in any way touches upon an aspect of the marital relationship.”
Even if those cases could be so broadly construed, Scalia said, the relevant question is not whether the asserted interest “is consistent with this court’s substantive-due-process line of cases,” but whether it is supported by “this nation’s history and practice.”
“Here, the government’s long practice of regulating immigration, which has included erecting serious impediments to a person’s ability to bring a spouse into the United States, precludes Din’s claim,” Scalia wrote.
Additionally, he said, the high court has consistently recognized its lack of judicial authority to substitute its political judgment for that of Congress with regard to the various distinctions in immigration policy.
In his dissent, Justice Stephen Breyer — joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — wrote that the Due Process Clause requires the government to provide Din the reason for Berashk’s denial.
Scalia had accused Breyer’s dissent of creating a new category of constitutional rights, but Breyer shot back, saying his decision that Din possesses the kind of “liberty” interest to which the Due Process Clause grants procedural protection doesn’t break new ground.
Breyer said that the court has already recognized that the Due Process Clause guarantees that the government will not, without fair procedure, deprive individuals of a handful of rights, freedoms and liberties that are “no more important, and for which the state has created no greater expectation of continued benefit, than the liberty interest at issue here.”
The case was remanded for further consideration.
An attorney for the federal government was not immediately available on Monday to comment.
Mark Haddad of Sidley Austin LLP, which represents Din, said in a Monday statement that he was disappointed that the court did not impose a higher standard of accountability for the government when denying a visa to the spouse of an American citizen.
“The court has recognized, however, that working as a payroll clerk in the Afghan government during the Taliban occupation does not appear to satisfy the factual prerequisites for denying a visa," Haddad said. "We are hopeful that the State Department now will reconsider and grant the renewed visa application in light of all the facts we have now presented.”
The government is represented by Edwin S. Kneedler, deputy solicitor general at the U.S. Department of Justice.
Din is represented by Mark Haddad and Heidi Larson Howell of Sidley Austin LLP.
The case is John F. Kerry, Secretary of State, et al. v. Fauzia Din, case number 13-1402, in the Supreme Court of the United States.
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SCOTUS Says Visa Denials Not Open To Judicial Review - Spanky KU - 1/31 23:34:59
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