US Supreme Court Fails to Help Bi-National Couple

BREAKING: High Court Says Visa Denials Not Open To Judicial Review

Share us on:   By Allissa Wickham


Law360, New York (June 15, 2015, 10:25 AM ET) — The U.S. Supreme Court on Monday upheld the long-standing concept of consular nonreviewability by ruling that visa refusals cannot be subjected to court scrutiny, while also holding that the denial of a visa to a U.S. citizen’s spouse does not impact the citizen’s own constitutionally protected interest.

In a closely watched 5-4 ruling, the high court reversed 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 Anton 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 Consitution.

“To the extent that she received any explanation for the government’s decision, this was more than the Due Process Clause required,” Scalia wrote.

Justices Anthony Kennedy and Samuel Alito wrote their own concurring opinion.

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.

After Din filed Berashk’s visa petition in 2006, and U.S. Citizenship and Immigration Serviceseventually 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 INA 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, and 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, the 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.

“No such congressional authorization for review of visa denials exists,” the government argued. “Congress has not provided even for administrative review of a consular officer’s refusal of a visa.”

Several outside parties had weighed in on the case, with the National Immigrant Justice Center, the American Immigration Lawyers Association and Muslim rights organization the Council on American-Islamic Relations have all asking the high court to affirm the Ninth Circuit’s decision.

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.

–Additional reporting by Kelly Knaub and Aaron Vehling.