Respondent Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed suit in Federal District Court, which dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.
Held: The judgment is vacated, and the case is remanded.
Under the Immigration and Nationality Act (INA), as amended, 8 U.S.C.S. § 1101 et seq., an alien may not enter and permanently reside in the United States without a visa. 8 U.S.C.S. § 1181(a). The INA creates a special visa-application process for aliens sponsored by “immediate relatives” in the United States. 8 U.S.C.S. §§ 1151(b), 1153(a). Under this process, the citizen-relative first files a petition on behalf of the alien living abroad, asking to have the alien classified as an immediate relative. 8 U.S.C.S. §§ 1153(f), 1154(a)(1). If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer. 8 U.S.C.S. §§ 1201(a)(1), 1202. Before issuing a visa, the consular officer must ensure the alien is not inadmissible under any provision of the INA. 8 U.S.C.S. § 1361. One ground for inadmissibility, 8 U.S.C.S. § 1182(a)(3)(B), covers “terrorist activities.” In addition to the violent and destructive acts the term immediately brings to mind, the INA defines “terrorist activity” to include providing material support to a terrorist organization and serving as a terrorist organization’s representative. 8 U.S.C.S. § 1182(a)(3)(B)(i), (iii)-(vi).
The Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law. Although the amount and quality of process that United States Supreme Court precedents have recognized as “due” under the Due Process Clause has changed considerably since the founding, it remains the case that no process is due if one is not deprived of “life, liberty, or property.”
Is the government required to give a detailed explanation for denying an alien’s visa based on terrorism-related ground under the Immigration and Nationality Act? No.
Issue: (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.
In 1972, the Supreme Court in Kleindienst v. Mandel first established the doctrine of consular nonreviewability. Aliens, it held, have no constitutional right of entry to the United States. On the contrary, Congress holds undisputed ”plenary power” to create rules for the admission of aliens to the country and may exclude whomever it sees fit. As a result of this clear delegation of power to Congress, federal courts as a rule may review the visa adjudications of consular officials only in sharply limited circumstances.
The Mandel Court, however, carved out one exception to this rule. When the denial of a visa implicates the constitutional rights of a U.S. citizen, courts will exercise a ”highly constrained” review solely to determine whether the consular official acted on the basis of a ”facially legitimate” and ”bona fide” reason. While these terms are vague, one circuit court has stated that visa decisions may be facially legitimate if the consulate identifies a properly construed statute and knows or has reason to believe that the visa applicant did something fitting within a forbidden category. The U.S. citizen’s implicated constitutional rights are not limited to strict categories and may include both First Amendment speech rights and a ”liberty interest” in marriage and family formation, among others.
Mandel considered a challenge to a U.S. consulate’s decision to deny a visa to Ernest Mandel, a Belgian academic, because he espoused communist ideologies. In its ruling, the Court underscored the First Amendment rights of the various U.S. professors who had invited him to the United States and would benefit from hearing and debating his views. Identifying this threatened right, the Mandel Court made the decision to review the consulate’s denial. This review, however, remained highly limited, to the dismay of the court’s three dissenters. So long as the visa denial was facially legitimate and bona fide, the Court refused to look behind the exercise of consular discretion or test it by balancing its justification against the First Amendment interests of the U.S. citizens involved. For Mr. Mandel, this was not good news; the Court upheld his visa denial, concluding that it was denied for the facially legitimate and bona fide reason that he openly ”advocated” the doctrines of ”world communism,” a ground for exclusion under then § 212(a)(28) of the Immigration and Nationality Act (”INA”).
Courts have largely adopted the Mandel Court’s hands-off approach to judicial review. Courts have opted to review the legitimacy of visa denials only in a small handful of cases implicating the constitutional rights of U.S. citizens. These rare exercises have deferentially applied the ”facially legitimate and bona fide” standard, resulting in virtually no reversals on visa decisions that allegedly violated a U.S. citizen’s rights.
- Analysis: Review of consular visa decisions for the twenty-first century.
- Preview: The doctrine of consular non-reviewability – historical relic or good law?
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SCALIA, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
Held: Under a historical understanding of the Due Process Clause, USC cannot possibly claim that the denial of Berashk’s visa application deprived her of life, liberty, or property. Even assuming she does, the notice she received satisfied due process. Given Congress’plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, the Government’s decision to exclude Berashk because he did not satisfy a statutory condition for admissibility is facially legitimate. Supporting this conclusion is the fact that, by Din’s own admission, Berashk worked for the Taliban government. These considerations lend to the conclusion that there was a bona fide factual basis for exclusion, absent an affirmative showing of bad faith on the consular officer’s part, which Din has not plausibly alleged.
