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The Supreme Court recently ruled on Kerry v Din, 576 US ____ (2015). It was a much anticipated case as it was perceived as the case where the Doctrine of Consular Nonreviewability would be either upheld or struck down. In the end neither of those outcomes materialized. The Court had a three-way split in its opinions, with no one opinion signed by a majority of the Justices. This means the case created no new precedent case law.

Ms. Din is a US citizen petitioning for her Afghani husband who used to work as a low-level payroll clerk for the Afghani government while it was under the control of the Taliban. His immigrant visa was denied by the US consulate in Islamabad, Pakistan. The denial only listed the legal citation for the denial – INA §212(a)(3)(B) [aka US Code §1182(a)(3)(B)] – which is in regard to terrorist activities, but provided no factual analysis for why the finding was made. Ms. Din brought suit in federal court, arguing that if the US government was going to keep her apart from her husband for the rest of her life, she was entitled to a couple of sentences telling her why. Specifically, the questions for review that she (through her attorney) presented to the Supreme Court were:

“1. Whether 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.

2. Whether 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.”

One of the problems with using this case as the one to take to the Supreme Court to challenge the Doctrine of Consular Nonreviewability is that there is a section of law – INA §212(b)(3) [aka US Code §1183(b)(3)] – specifically excusing the US government from providing details for a denial where a foreign national is found inadmissible for criminal reasons (INA §212(a)(2)) or national security reasons (INA §212(a)(3)). INA §212(b) reads:

“Notices of Denials.-

(1) Subject to paragraphs (2) and (3) if an alien's application for a visa, for admission to the United States, or for adjustment of status is denied by an immigration or consular officer because the officer determines the alien to be inadmissible under subsection (a), the officer shall provide the alien with a timely written notice that-

(A) states the determination, and

(B) lists the specific provision or provisions of law under which the alien is inadmissible or adjustment of status.

(2) The Secretary of State may waive the requirements of paragraph (1) with respect to a particular alien or any class or classes of inadmissible aliens. (3) Paragraph (1) does not apply to any alien inadmissible under paragraph (2) or (3) of subsection (a).” [emphasis added; paragraph (2) of subsection (a) is criminal inadmissibility, and paragraph (3) of subsection (a) is national security grounds of inadmissibility.]

That section of law excusing the government from providing details for the denial do not apply to most grounds of inadmissibility, such as prior unlawful presence, misrepresentation, false claim of citizenship, or re-entry without inspection following more than a year of unlawful presence (INA §212(a)(9)(C)). Part of why the court was split three ways was because of that specific section of law excusing the government from elaborating.

Three Justices – Scalia, Thomas, and Roberts – opined that the refusal of a visa did not impinge on a constitutionally protected interest of the citizen spouse. Four Justices – Breyer, Sotomayor, Kagan, and Ginsburg – opined that the refusal of a visa did impinge on a constitutionally protected interest of the citizen spouse and that indeed that spouse is entitled to a better explanation than a broad legal citation. Two Justices – Kennedy and Alito – opined that whether there was a constitutionally protected interest of the citizen spouse in the case is irrelevant because even presuming there is one, the simple legal citation is enough explanation in light of the section of law specifically excusing the government from elaborating and in light of the fact that the ground of inadmissibility in question is one of terrorist activity and national security interests.

In Breyer’s opinion he states that there are two types of due process protections: substantive and procedural. A substantive due process protection limits the extent to which the government can substantively regulate certain fundamental rights no matter what process is provided. Procedural due process protection requires fair procedures for taking away certain rights and liberties. He states that procedural rights can come either from a liberty interest so important that the due process protection flows from that liberty interest, and/or from a statute that creates an expectation that a person will not be deprived of a liberty without fair procedures. Breyer states that Ms. Din was not making any substantive due process argument , but was only arguing procedural due process both because her liberty interest in living with her husband was so important that due process flowed from it and because immigration statutes imply that there are fair procedures in visa decisions. In his opinion, which was signed by more Justices than any other opinion, he agreed with Ms. Din’s arguments (as he describes them).

In Kennedy’s opinion, joined by Alito, he seems to agree with much of what Breyer says, though he falls short of saying so explicitly, but finds that INA §212(a)(3)(B) is a fair limitation to procedural due process rights in light of the potential national security issues involved. Unfortunately he seems unpersuaded by Breyer’s argument that the legal citation provided for denial (INA §212(b)(3)) is not specific enough. There is also no discussion of the fact that INA §212(a)(3)(B) also applies to criminal grounds of inadmissibility, which may have nothing to do with national security, such as possession of marijuana for personal use. And there is no discussion in Kennedy’s opinion of whether the US citizen spouse is entitled to a better explanation of denial for grounds of inadmissibility when INA §212(a)(3)(B) doesn’t apply at all.

About a week after the decision in this case was published, the “marriage equality” case, Obergefell v Hodges, 576 US ____ (2015), was published. In the marriage equality case, Kennedy sided with Breyer, Sotomayor, Ginsburg, and Kagan, while Alito sided with Scalia, Thomas and Roberts. Indeed, Kennedy wrote the majority opinion, stating, “[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment….” (no page number yet assigned). As marriage rights were critical to both cases, it appears that Kennedy was the so-called “swing vote” in the Kerry v Din and Obergefell v Hodges cases. For the marriage liberty interest in immigration cases, it is possible that in the future, Kennedy will join Breyer, Ginsburg, Sotomayor, and Kagan if there are no national security interests involved and/or if INA §212(a)(3)(B) doesn’t apply.

While Kerry v Din has not created any controlling case law, the Breyer dissent, which had more Justices joining than any other opinion for the case, makes persuasive arguments for why the government should recognize the liberty interest of marriage in immigration cases and why due process should be given in decisions. Here are some excerpts of the Breyer dissent (all citations omitted):

“As this Court has long recognized, the institution of marriage, which encompasses the right of spouses to live together and to raise a family, is central to human life, requires and enjoys community support, and plays a central role in most individuals’ ‘orderly pursuit of happiness,’”

“Similarly, the Court has long recognized that a citizen’s right to live within this country, being fundamental, enjoys basic procedural due process protection.”

“At the same time, the law, including visa law, surrounds marriage with a host of legal protections to the point that it creates a strong expectation that government will not deprive married individuals of their freedom to live together without strong reasons and (in individual cases) without fair procedure.”

“Rather, here, the Government makes individualized visa determinations through the application of a legal rule to particular facts. Individualized adjudication normally calls for the ordinary application of Due Process Clause procedures…. And those procedures normally include notice of an adverse action, an opportunity to present relevant proofs and arguments, before a neutral decisionmaker, and reasoned decisionmaking…. These procedural protections help to guarantee that government will not make a decision directly affecting an individual arbitrarily but will do so through the reasoned application of a rule of law.”

In Breyer’s opinion, he does not attempt to engage in a discussion of the specifics of what the due process protections might be as the question before the court was limited to whether Ms. Din was entitled to more than a legal citation for the denial of her husband’s visa.

Even though Kennedy found that national security concerns can trump due process expectations, Kennedy reminds the government that nothing in INA §212(a)(3)(B) nor in his decision prevents the government from providing due process when there is no need to protect national security interests. He wrote:

“The statute generally requires the Government to provide an alien denied a visa with the “specific provision or provisions of law under which the alien is inadmissible,” §1182(b)(1); but this notice requirement does not apply when, as in this case, a visa application is denied due to terrorism or national security concerns. §1182(b)(3). Notably, the Government is not prohibited from offering more details when it sees fit, but the statute expressly refrains from requiring it to do so. Congress evaluated the benefits and burdens of notice.” (emphasis added)

Government officials in USCIS, the consulate and other agencies are therefore free to adopt Breyer’s position whenever possible and make efforts to give a high level of due process regardless of whether it’s required. It’s the right thing to do even in the absence of a mandate from the Supreme Court.