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Spouse's Visa Application is Denied and So Are Due Process Claims

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By Casey C. Sullivan, Esq. on June 15, 2015 12:55 PM

The Supreme Court released three new opinions this morning, slowly chipping away at the now 17 remaining cases it has to decide before the term's end two weeks from today. Chief among those three was Kerry v. Din, in which the Justices ruled that an American woman could not challenge the denial of a visa to her foreign-born husband on due process grounds.

Fauzia Din, an American citizen, had requested a visa for her husband, Kanishka Berashk, but her request was denied. The State Department refused to elaborate beyond stating that Berashk, an Afghani citizen who had been a government worker under the Taliban, had been involved in terrorist activities. Din argued that her husband's denial violated her due process rights and liberty interest in being together with her husband. The case is one of the first times the Court has taken up substantive due process in some time.

Can Another's Denial Violate Your Rights?

Scalia, joined by Roberts and Thomas, wrote the opinion for the Court and began by pointing out the curious posture of the case. Din's husband, as a non-resident, non-citizen had no right to entry into the U.S. and could not challenge his denial of admission, leaving Din to claim that the denial of his visa violated her constitutional due process rights.

The Ninth Circuit had ruled that Din was entitled to at least a "facially legitimate reason" for the denial. The appeals court had found that Din had a "protected liberty interest in marriage" that entitled her to a review of her husband's denied Visa. In his dissent, Breyer, joined by Ginsburg, Kagan and Sotomayor, agreed that freedom to live with one's spouse was protected by due process. Scalia was not convinced.

Due process, he noted, goes back to the Magna Carta (happy birthday, Magna Carta!) and was an exclusively personal right. Even under substantive due process, which Scalia reminds us he finds ridiculous, Din does not have a protected fundamental right that was violated. Her marriage was not prohibited, nor is there a history of explaining immigration denials for spouses. Indeed, the longstanding use of immigration quotas, without regard to marital status, show that marriage was not given special treatment in past immigration practice.

Justices Kennedy and Alito, concurring in the judgment, would avoid the due process question altogether. Assuming, arguendo, that due process applies, it has been met, as the State Department had provided a legitimate, if brief, explanation for the denial, they reasoned.

A Broader View of Liberty

In his dissent Breyer argued for a more expansive view of due process. The Court must provide protections for liberty interests which are "sufficiently important" that they would be implicit in due process. A liberty interest can be created simply by the legislative scheme. Here, marriage is given "a host of legal protections" that create an expectation that, when the government denies a married couple "their freedom to live together," it must at least provide "strong reasons" and "fair procedure." Unfortunately for Din and her husband, Breyer was a vote short.

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