SCOTUS to Decide Whether Dept of State Doctrine of Non-Reviewability Applies to Spouses of US citizens

The Supreme Court of the United States will hear arguments in October in the case of Kerry v. Din, which pits the Department of State and its ability to unilaterally deny an alien spouse visa against Fauzia Din and her constitutionally protected marriage and family life rights.

Din is a United States citizen who was born in Afghanistan and entered the United States in 2000 as a refugee from the Taliban occupation. She returned to Afghanistan in September 2006 to marry Afghan native and citizen, Kanishka Berashk.

Din filed a Form I-130 Petition for Alien Relative on behalf of Berashk in October 2006. It was denied nine months later, with consular officials informing the couple only that the denial was under the Immigration and Nationality Act § 212(a)(3)(B) [8 U.S.C. § 1182(a)(3)(B)], which permits alien exclusion on terrorism-related grounds. Prior to the couple’s marriage, Berashk worked for the Afghan government during the Taliban occupation. There is no waiver for a determination under this section of the law. There is no appeal at a US consulate.

According to court filings, when Berashk sought clarity on the reason for his visa denial, he was told via email that, “it is not possible to provide a detailed explanation of the reasons for the refusal.”

Din subsequently filed a complaint in the United District Court for the Northern District of California alleging that there is no “facially legitimate and bona fide reason for the denial of Mr. Berashk’s visa application under 8 U.S.C. § 1182(a)(3)(B).”

Lacking a facially legitimate and bona fide reason, alleged the complaint, Berashk’s visa denial violated Din’s liberty interest in her marriage. The complaint also alleged that Din has the constitutional right to find out why the visa was denied.

The government filed—and was granted—a motion to dismiss on the basis of the doctrine of consular non-reviewability, but a 9th Circuit panel reversed the decision. The government appealed the Ninth Circuit’s decision to the Supreme Court (Kerry v. Din, Docket No. 13-1402).

According to the SCOTUS blog, at issue in Kerry v. Din is whether:

  1. A consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and
  2. Respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

The government claims that Berashk’s visa denial does not impinge upon a liberty interest of Din’s because it fails to nullify the marriage or deprive her of its legal benefits. It says that Din may live with Berashk in Afghanistan, a view that Chuck Roth of the Heartland Alliance’s National Immigrant Justice Center (NIJC) says is a resurrection of an argument once used by states to deny the right of interracial couples to marry.

“Saying that Mrs. Din can move to another country to be with her husband harkens back to the shameful time in U.S. history when the government said that even if a state bars interracial marriage, a mixed-race couple can go get married in another state,” said Roth in a National Immigrant Justice Center press release. “If the government is going to separate a U.S. citizen from her husband, it should at least have to give a reason.”

If a US embassy or consular visa denial is keeping you and your family apart, please contact the Law Office of Catherine Brown, LLC, to find out what your legal options are.

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