The U.S. Supreme Court on October 2, 2014, agreed to review the decision of the U.S. Court of Appeals for the Ninth Circuit in Din v. Kerry, 718 F.3d 856 (9th Cir. 2013), which (1) reversed a federal district court order, 2010 WL 2560492, dismissing a petition for a writ of mandamus filed against the U.S. Secretary of State and several federal officials challenging the refusal of an immigrant visa application predicated upon a determination by a consular officer that the visa applicant was inadmissible and (2) held that the government’s mere citation to INA § 212(a)(3)(B) [8 USCA § 1182(a)(3)(B)] (broad provision excluding aliens on a variety of terrorism-related grounds) was not a facially legitimate reason to deny the visa and that the alien’s U.S. citizen wife had standing to seek a declaratory judgment that the visa denial notice, under INA § 212(b)(3) [8 USCA § 1182(b)(3)], was unconstitutional as applied to her husband’s case. Kerry v. Din, No. 13-1402, 2014 WL 2195948 (U.S. Oct. 2, 2014).
The U.S. Solicitor General, in his petition for writ of certiorari, 2014 WL 2201051, asked the court to address:
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; and
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.
The plaintiff, Ms. Din, filed a visa petition on behalf of her husband, Kanishka Berashk, a citizen of Afghanistan, whom she married in 2006. After U.S. Citizenship and Immigration Services (USCIS) approved the petition, Mr. Berashk appeared for his interview at the U.S. Embassy in Islamabad, Pakistan. According to the federal court complaint, Berashk answered all questions truthfully, including inquiries about his work for the Afghan Ministry of Social Welfare during the period of Taliban control. Nine months later, in June 2009, following several phone calls to the Embassy by Din and her husband, Berashk received a Form I-94 letter informing him that his visa had been denied under INA § 212(a) [8 USCA § 1182(a)], and also stating that there was no possibility of a waiver of this ineligibility. In response to Berashk’s email, seeking clarification of this reason, the Embassy replied that he had been denied under INA § 212(a)(3)(B), and added that “it is not possible to provide a detailed explanation of the reasons for the denial,” with a citation to INA § 212(b)(3), which makes inapplicable the requirement that aliens be apprised of reasons for visa denials involving criminal or terrorist activity. Ms. Din proceeded to obtain pro bono counsel and made several inquires to various levels of the State Department, including the Office of Visa Services, but was unable to obtain a more detailed explanation for the visa refusal. She then initiated her federal court action, seeking mandamus and declaratory relief. The district court ruled that Din did not have standing to challenge the constitutionality of INA § 212(b), and also held that the doctrine of consular nonreviewability precluded her other claims for relief, including a directive for lawful adjudication of her husband’s visa application.
The Ninth Circuit appreciated the reality that an alien has no constitutional right of entry to the U.S., and that federal courts are generally without power to review the actions of consular officials, citing to Kleindienst v. Mandel, 408 U.S. 753 (1972), and Rivas v. Napolitano, 677 F.3d 849 (9th Cir. 2012). However, the court keyed in on the limited exception to the doctrine of consular nonreviewability when the denial of a visa implicates the constitutional rights of a U.S. citizen, citing again to Mandel and to Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008), which held that in this situation courts exercise a “highly constrained review solely to determine whether the consular officer acted on the basis of a facially legitimate and bona fide reason.” The court noted that in Bustamante the Ninth Circuit recognized that a U.S. citizen has a protected liberty interest in marriage that entitles the citizen to judicial review of the denial of a spouse’s visa. Thus, the court engaged in the “extremely narrow” inquiry of whether the reason provided by the consular officials for the denial of Mr. Berashk’s visa was “facially legitimate and bona fide,” a standard for which the court opined that “there is little guidance.”
The court considered that the government offered no reason at all for denying the visa, given that it merely pointed to a statute which embraces several subsections, and that the denial did not recite any factual allegations to identify which subsection was deemed applicable. It distinguished this from the situation in Bustamante, in which the court held that a visa denial was facially legitimate because the applicant was informed that the consul had reason to believe he was an illegal drug trafficker and thus inadmissible. The court emphasized that 8 USCA § 1182(a)(3)(B) exceeds 1,000 words, and contains 10 subsections identifying different categories of aliens who may be inadmissible for terrorism reasons, ranging from direct participation in violent activities to indirect support of those who participate in terrorist activities. It contrasted a citation to § 1182(a)(3)(B) with the much narrower ground of inadmissibility at issue in Bustamante–8 USCA § 1182(a)(2)(C)(i). The court suggested that, at a minimum, the government must cite to a ground narrow enough to allow the judiciary to determinate that it has been properly construed. In addition, the court found it significant that some subsections in § 1182(a)(3)(B) confer upon an alien the right to present evidence to rebut the cited reasons for inadmissibility. The court remarked that, limited as its review may be, it cannot be said that Din’s constitutional right to review is a right only to rubber-stamp the government’s vague and conclusory assertion of inadmissibility. The Ninth Circuit majority noted that the State Department regulation at 22 CFR § 42.80(b) requires consular officers to “inform the applicant of the provision of law and implementing regulation on which refusal is based” and of any statutory or regulatory provision for administrative relief, with no exception specified based on denials under 8 USCA §§ 1182(a)(2) or (3). I n response to the dissent’s suggestion that § 1182(b)(3) means that the “government was not required to provide more specific information regarding the denial of Berashk’s visa,” the majority retorted that this lack of an alien’s statutory right to information is not helpful in resolving the question faced by the court, namely whether Berashk’s visa was denied for a facially legitimate and bona fide reason. The two-judge majority exclaimed: “To make such a determination, a court needs some information.” In addition, the court observed that, if necessary, the government could, as it does in other contexts, disclose the reason for Berashk’s visa denial in camera. The two-judge majority suggested that these existing procedures were adequate to address the national security concerns it shared with the dissent.
Finding that the government did not offer a facially legitimate reason for the visa denial, the court found it unnecessary to address whether the citation to § 1182(a)(3)(B) was bona fide. It also determined that Ms. Din had the requisite standing to challenge her husband’s visa denial.
Circuit Judge Richard R. Clifton dissented. He accused the majority of not accepting the consular nonreviewability doctrine or acting within its constraint. He faulted his colleagues for imposing upon the government an obligation to provide information about a visa denial that, by statute, the government is specifically not required to provide when it denies a visa based on concerns for national security or terrorism.
In its petition for certiorari, the government asserted that the Ninth Circuit “erred in ruling that Din has a liberty interest in her marriage, protected under the Due Process Clause, that is implicated by denial of a visa to her alien spouse abroad,” arguing that that ruling directly conflicts with the decisions of “numerous other courts of appeals, and could have broad consequences across various areas of immigration law,” citing to Bangura v Hanson, 434 F.3d 487 (6th Cir. 2006) [FN6] (a denial of an immediate relative visa does not infringe on the right to marry); Burrafato v. Dep’t of State, 523 F.2d 554 (2d Cir. 1975), cert. denied, 424 U.S. 910 (1976) (dismissing for lack of subject matter jurisdiction a complaint which sought declaratory and injunctive relief based on claims that denial of a visa to an alien husband violated constitutional rights of his citizen wife and that failure of Department of State to specify reasons for denial of visa deprived husband of procedural due process); Garcia v. Boldin, 691 F.2d 1172 (5th Cir. 1982); Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970), cert. denied, 402 U.S. 983 (1971) (refusal to waive two-year foreign residence requirement would not deprive alien and her U.S. citizen husband of any constitutional rights); and Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958), cert. denied, 357 U.S. 928 (1958) (wife lacked due process right to prevent husband’s deportation). The government further contended that the Ninth Circuit erred in concluding that Din, as the U.S. citizen spouse of an alien whose visa is denied, has a right to judicial review of the consular officer’s decision and to procedural due process in connection with the denial of a visa to the alien and that the court compounded that error by concluding that the government can defend the decision as “facially legitimate” only by providing the specific statutory subsection on which the denial was based and the factual basis for believing that the alien falls within the scope of that subsection. The government asserted that the Constitution confers no such rights, and neither Congress nor the Supreme Court has ever authorized such review. Further, the government said, when a visa denial is (as in this case) based on security-related grounds, the review required by the Ninth Circuit conflicts with decisions of the Supreme Court and overrides a federal statute intended to protect the confidentiality of intelligence and other sensitive information on which a consular officer may rely in denying a visa to protect the national security.
In her reply brief, Din argued that the Ninth Circuit correctly recognized that the denial of a visa to the spouse of a U.S. citizen implicates that citizen’s liberty interests in her marriage and entitles her to the same minimal procedural due process the Supreme Court in Kleindienst v. Mandel, 408 U.S. 753 (1972) accorded a college professor arranging a conference–a right no appellate court has ever denied a U.S. citizen. Din argued that Bangura and Burrafato are not “directly contrary” to the Ninth Circuit’s holding as the government argued, but rather argued that there is no conflict because in those cases, unlike the case at hand, the citizens already knew why their spouses were being excluded or deported, and thus those courts adjudicated and rejected far broader claims. In Bangura, the government told Mr. Bangura that his wife had previously abused the immigration system by fraudulently marrying another man in an effort to obtain a visa. Bangura, 434 F.3d at 492, and in Burrafato, the government filed an affidavit in the district court stating the reason it denied Mr. Burrafato his visa and the specific subsection of the INA under which he was excludable.
Moreover, Din asserted, none of the other cases the government cited is on point as they involved the deportation of alien residents, but Congress has already provided for deportation hearings and other procedural protections that go beyond the minimal due process right to a facially legitimate and bona fide reason that Mandel and other cases provide in the case of a visa denial. The issue in these other cases typically has been whether a citizen’s liberty interest in her marriage trumps the government’s right to exclude or deport an alien spouse; it has not been whether the liberty interest is sufficient merely to require the government to provide a legitimate and bona fide explanation for the government’s conceded right to deny a spouse a visa when the circumstances Congress has specified for such denial exist.
Consular Nonreviewability Doctrine