Din, a US citizen (USC) petitioned to have her husband Berashk, an
Afghanistan citizen and a former civil servant in the Taliban regime, to be
classified as an “immediate relative” under the Immigration and Nationality Act
(INA). Din’s petition was approved. However, after interviewing Berashk, his
visa application was denied by a U.S. consular officer in Pakistan on the
ground that he was inadmissible under INA § 212(a)(3)(B) which excludes aliens
who have engaged in “terroristic activities.” The consul provided no further
information. Din filed in the U.S. District Court an action for mandamus to
direct the U.S. government to properly adjudicate Bershak’s visa application;
declaratory judgment that § 212(a)(3)(B), which exempts the government from
providing notice to an alien found inadmissible under the terrorism bar is
unconstitutional as applied; and a declaratory judgment that the denial
violated the Administrative Procedure Act. The Court dismissed her complaint.
She
appealed to the Court of Appeals, Ninth Circuit, which reversed holding that
Din had a “protected liberty interest in marriage that entitled [her] to review
of the denial of [her] spouse’s visa” and that Din was entitled to a “limited
judicial review” under the due process clause.
The
U.S. Supreme Court vacated the judgment and remanded the case. Three Justices
(Scalia, Roberts, and Thomas) pointed out that although the Fifth Amendment
provides that “no person shall be . . . deprived of life, liberty, or property,
without due process of law,” “no process is due if one is not deprived of
‘life, liberty, or property.” The court concluded that Din could not
conceivably claim that the denial of her husband’s visa deprived her or her
husband of life or property, and a claim that it deprived her of liberty was
equally absurd. There is nothing in the cases to establish a “free-floating and
categorical liberty interest in marriage sufficient to trigger constitutional
protection whenever a regulation in any way touches upon an aspect of the
marital relationship.”
Congress
has enacted a complicated web of regulations that erected serious impediments
to a person’s ability to bring a spouse into the United States. The law showed
little more solicitude for the marital relationship when it was a male resident
or citizen seeking admission for his fiancée or wife. The legal benefits
afforded to marriages and the preferential treatment accorded to visa
applicants with citizen relatives are insufficient to confer on Din a right
that can be deprived only pursuant to procedural due process. Neither Din’s
right to live with her spouse nor her right to live within this country is
implicated here. There is a “simple distinction between government action that
directly affects a citizen’s legal rights, or imposes a direct restraint on his
liberty, and action that is directed against a third party and affects the
citizen only indirectly or incidentally.” The government has not refused to
recognize Din’s marriage to Berashk, and Din remains free to live with her
husband anywhere in the world that both individuals are permitted to reside.
The government has not expelled Din from the country. It has simply determined
that her husband engaged in terrorist activities within the meaning of INA and
has therefore denied him admission into the country. Because Din was not
deprived of “life, liberty, or property” when the government denied her husband
admission to the US, there is no process due to her under the Constitution. To
the extent that she received any explanation for the government’s decision,
this was more than the Due Process Clause required.”
Two
justices (Kennedy and Alito) said that even assuming that Din has a protected
liberty interest, the notice she received regarding her husband’s visa denial
satisfied due process.
Four
Justices (Breyer, Ginsburg, Sotomayor and Kagan) dissented, saying 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 with the
procedure that is constitutionally “due”. They claimed that the plurality
opinion which concluded that Din lacked the liberty interest to which the Due
Process Clause provides procedural protection is not controlling. The Due
Process Clause requires the Government to provide an adequate reason for the
visa denial and failed to do so. Kerry v
Din, USSC, No. 13-1402, 06 15 15.
COMMENT: We had a case where the USCIS
approved a visa petition classifying the beneficiary as the “husband” of the
petitioner. The Consulate denied the beneficiary’s visa application on the
ground that it had received “derogatory” information about him. The Consulate
returned the visa file to the USCIS which issued a Notice of Intent to Revoke
the visa classification. We asked USCIS to provide the complete file including
the record of the visa interview and the alleged “derogatory” information in
order that we could properly respond. The USCIS refused and revoked the visa
classification. We appealed to the Board of Immigration Appeals which reversed
the USCIS, holding that the petitioner had a right to see the derogatory
information so that she could properly respond. In the case of Din, did her
counsel appeal to the Board before filing a mandamus action to compel the
disclosure of the derogatory information? If not, why not?
(Atty. Tipon has a Master of
Laws degree from Yale Law School and a Bachelor of Laws degree from the
University of the Philippines. He specializes in immigration law and criminal
defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808)
225-2645. E-Mail: filamlaw@yahoo.com. Websites:
www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal,
Ilocos Sur. He served as an Immigration Officer. He is co-author of
“Immigration Law Service, 1st ed.,” an 8-volume practice guide for
immigration officers and lawyers. This article is a general overview of the
subject matter discussed and is not intended as legal advice. No warranty is
made by the writer or publisher as to its completeness or correctness at the
time of publication. )
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