Today, a splintered Supreme Court issued a ruling in Kerry v. Din. The case raised the question of the continuing vitality of the doctrine of consular non-reviewability and its prohibition of judicial review of visa denials by Department of State consular officers. The doctrine is a close cousin of immigration law’s extraordinary “plenary power doctrine,” which emerged in the late 1800s to uphold laws restricting immigration from China and, in its modern incarnation, immunizes the U.S. immigration laws from ordinary constitutional review.
Over the years, the courts have recognized exceptions to consular absolutism. The most well-known modern example is Kleindienst v. Mandel (1972). In that case, the Supreme Court reviewed a claim brought by U.S. citizens that the exclusion of a Marxist journalist from the United States violated their First Amendment right to hear him speak. In reviewing the visa decision, the Court found that the applicant’s violation of the terms of visas on previous trips to the United States was a “facially legitimate and bona fide reason” – and thus legally sufficient – justification for the U.S. government’s actions.
Kaniska Berashk is a citizen of Afghanistan and the spouse of Fauzia Din, a naturalized U.S. citizen. Based on his marriage to a U.S. citizen, he applied for a visa for which he was prima facie eligible under the Immigration and Nationality Act. A consular officer in the U.S. embassy in Islamabad, Pakistan, denied the visa application. One could guess that the denial was based on the fact that Berashk had worked as a payroll clerk for the Afghan Ministry of Social Welfare, part of the national government at one time controlled by the Taliban. The officer did not so state, however, instead relying on the immigration statute’s broad definition of “terrorist activities,” which Congress had greatly expanded in 1996 immigration reform legislation and later in the USA PATRIOT Act. The officer provided no explanation of what Berashk specifically had done to warrant the visa denial. Din sought judicial review of her husband’s visa denial and forced separation from her. Applying Kleindienst, the court of appeals found that the consular officer’s perfunctory citation to the statute was an insufficient ground for the denial.
Before the Supreme Court, the Obama administration took a firm position and relied heavily on two Cold-War-era decisions that immigration law professors love to hate: Knauff v. Shaughnessy (1950); in which the Court held that the non-citizen wife of a U.S. citizen could be denied admission based on secret evidence, and Shaughnessy v. United States ex rel. Mezei (1953), in which the Court refused, based on secret evidence, to allow a long-term U.S. resident to return to the United States after a trip abroad to visit a dying relative, even when the resident faced the prospect of indefinite detention because his native country would not accept his return. Seeking to limit Kleindienst to its facts, the U.S. government argued that it possessed absolute authority to exclude non-citizens from the country and that there therefore is no right to judicial review of visa denials by consular officers.
The opinions of the Justices reveal that the case appears to have been more a battlefield over the scope of constitutional due process rights to marriage – and thus perhaps to the same-sex marriage case (Obergefell v. Hodges) currently before the Court – than a case involving judicial review of visa decisions.
Justice Antonin Scalia announced the judgment of the Court and delivered an opinion, in which Chief Justice John Roberts and Justice Clarence Thomas joined. In the view of the plurality, Din did not have a constitutional right at stake that justified judicial review: “What Justice Breyer’s dissent strangely describes as a `deprivation of her freedom to live together with her spouse in America’ . . . is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse’s freedom to immigrate into America.”
Recounting the long history of regulation of the immigration of spouses of U.S. citizens to the United States (that includes the stripping of U.S. citizenship from women who married foreigners), Justice Scalia took pains to criticize Justice Stephen Breyer’s assertion (in his dissent) that Din had a constitutional right at stake. He concluded that “[t]o the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required.” Consequently, the Ninth Circuit ruling to the contrary was vacated and the case was remanded for further proceedings.
Justice Anthony Kennedy, joined by Justice Samuel Alito, concurred in the judgment. While agreeing with the plurality that the case must be vacated and remanded, Justice Kennedy stated that, “rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband’s visa denial satisfied due process.” Refusing to join Justice Scalia’s recounting of the case law on the scope of the right to marriage, Justice Kennedy would find that the reasoning offered by the consular officer for denying the visa satisfies Kleindienst, suggesting that national security justifies the minimal justification offered for the denial.
In dissent, Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, would conclude that Din “possesses the kind of ‘liberty’ interest to which the Due Process Clause grants procedural protection. And the Government has failed to provide her the procedure that is constitutionally `due.’” “[T]the liberty interest that Ms. Din seeks to protect consists of her freedom to live together with her husband in the United States. She seeks procedural, not substantive, protection for this freedom.”
Like the Ninth Circuit and unlike Justice Kennedy, Justice Breyer would require a more complete explanation for the visa denial than the one provided to Din and Berashk. To the four dissenters, the consular officer’s statement in this case (the citation to the statute’s “terrorist activity” provisions) was inadequate because (1) the terrorist activity provision literally lists dozens of activities that can lead to the denial of a visa; and (2) there was no factual basis for the specific denial of a visa to this applicant. The dissent also rejected the idea that national security concerns justify the cryptic denial in this case.
Because there was no majority opinion, today’s decision probably will not dramatically change the doctrine of consular non-reviewability. The debate between the Justices in this case was really about the scope of Din’s constitutional right, not judicial review of a consular officer’s decision. One would not be surprised if the Justices had the same-sex marriage case in the backs of their minds, with four Justices viewing the right more broadly than the plurality and Justices Kennedy and Alito refusing to join the narrow view of the right articulated by Justice Scalia.
However, the Court offers hints about the future of judicial review of immigration decisions. A majority of the Court is willing to allow some kind of review of consular officer visa decisions. Justice Kennedy’s concurring opinion would allow for more deferential judicial review than Justice Breyer’s dissent. However, both – representing six Justices in total — reviewed the consular officer visa denial in this case. Among the opinions, there was no ready defense of the doctrine of consular non-reviewability and no aggressive invocation of cases contrary to modern constitutional sensibilities such as Knauff and Mezei.
Today’s decision could reasonably be read as reaffirming Kleindienst v. Mandel and continuing to allow some modicum of judicial review of consular visa decisions that implicate the rights of U.S. citizens. The Supreme Court’s holding is consistent with its decisions for more than a decade vindicating some kind of judicial review in immigration cases.
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