It was two years ago, on a Monday in February 2015, that the Supreme Court held arguments in the case of Kerry v. Din. The case had come up from the Ninth Circuit Court of Appeals, the same Court now reviewing the appeal on the nationwide stay on President Trump’s Executive Order banning nationals from seven predominantly Muslim countries. Of course, neither the Justices nor the lawyers debating Kerry v. Din knew it then, but the arguments that day would be determinative two years later in one of the most riven politico-legal battles in modern American history. The issue of who can contest the denial or revocation of visas and what rights are available to non U.S citizens lies at the center of the fervid political morass in which Americans find themselves in these first weeks of the Trump Administration.
That morning the stakes seemed considerably lower; the question whittled to whether a U.S. citizen was owed an explanation when her non-citizen husband was denied a visa. The plaintiff was a woman named Fauzia Din, an American citizen who wanted her Afghan husband to join her in the United States. Din had petitioned an immigrant visa for her husband not long after they married in 2006. A long two years later, USCIS (United States Citizenship and Immigration Services) approved her petition and told her that Berashk would be invited to an in-person interview before an immigration officer. That interview happened in September 2008, in Islamabad, Pakistan, where visas for war-ravaged Afghan citizens were being processed. The interview was seemingly uneventful and Berashk was told that he would be receiving his visa within a couple of months.
This never happened. Instead, in June 2009, now a whole three years after the couple had married, Berashk received a letter saying that his immigrant visa had been denied. The statute cited in the letter was Section 212 (a) of the Immigration and Nationality Act, which lists everything from prostitution to polygamy to terrorist activities as the basis for visa denial. The letter did not say which of these categories was being applied in Berashk’s case. When Berashk asked the Consulate for a clarification, he was told that it was the “terrorist activities” portion of the law. The couple received no information at all as to how the officer had concluded that Berashk was a terrorist.
Kerry v. Din applies to the travel ban instituted by President Trump’s Executive Order because it raises the question of what sort of due process is owed visa-holders.
Kerry v. Din applies to the travel ban instituted by President Trump’s Executive Order because it directly imputes the question of what sort of due process is owed to visa-holders or, more precisely, their U.S. citizen relatives and employers. On a secondary basis, it underscores the issue of who can sue and where.
The question in Kerry v. Din, was whether Fauzia Din, a United States citizen, had a liberty interest in having her non-citizen spouse join her in the United States. The District Court where she originally filed her case dismissed it. She appealed, and the Ninth Circuit found partially in her favor, noting that courts did have authority to review consular decisions when the rights of a U.S. citizen (Ms. Din) were implicated. A U.S. citizen directly affected by the denial of a visa could sue in a U.S. court, even though the visa holder, who was directly affected, could not.
It is important to underscore just how little Fauzia Din was asking from the courts; she was not saying that she had a right to an actual visa for her husband, only that she had the right to know why it had been denied. Even this was too much, however, for a majority of Supreme Court Justices headed by Justice Antonin Scalia. In his opinion handed down on June 15, 2015 (he was joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kennedy, for a 5-4 decision), Scalia held that Din had no right to an explanation under the Due Process Clause of the Fourteenth Amendment and that there was no “free-floating and categorical liberty interest” in marriage such that constitutional protections were triggered if it was violated. He further added that the issue represented “policy questions entrusted exclusively to the political branches of our Government. ” Justices Kennedy and Alito voted with the majority but wrote their own decision which held that even while there may or may not be a liberty interest, Din had gotten all the due process that was her due. Justices Sotomayor, Ginsberg, Breyer, and Kagan dissented.
On June 25, 2015, ten days after the decision in Kerry v. Din was handed down, the Supreme Court issued its landmark decision in Obergefell v. Hodges on the issue of same-sex marriage. In Obergefell, the Court found a liberty interest in the right to marry whomever one wishes. Justice Kennedy, who had joined the majority in Kerry v. Din, now found that a “fundamental right to marry” could be derived from the Due Process Clause. There is no small irony here: The Court in Kerry v. Din found that denying a visa contravenes no liberty interest, even when doing so makes it impossible for a U.S. citizen to live with her spouse, but cited that very liberty interest as the basis of its decision in Obergefell v. Hodges. This discrepancy may well be something that U.S. citizens opposing the travel ban can pin their hopes to.
Obergefell’s finding of a liberty interest in the fundamental right to marry could provide just the law needed to force a reconsideration of consular non-reviewability.
The origins of the doctrine of consular non-reviewability, implicated in Kerry v. Din, lie in the Chinese Exclusion Act of 1882. If America has moved on from that racist moment over a hundred years ago, its law must reflect that progress.
Obergefell was not precedent when Kerry v. Din was argued; but if a citizen with a foreign spouse sued now, Obergefell’s finding of a liberty interest in the fundamental right to marry could provide just the law needed to force a reconsideration of consular non-reviewability, at least in some cases. The fact that Justice Scalia, its most vehement supporter, is no longer on the Court could pave the way to reconsideration (provided Judge Neil Gorsuch is not confirmed before it is heard). It would be a narrow victory, but one that could bridge the vast chasm between legality as it pertains to immigration issues and morality and justice as they pertain to human equality and dignity. Visa holders, whether they hold immigrant or nonimmigrant visas, are currently unable to challenge any directive affecting to their admission into the United States, permitting consular officers and, lately, presidents to treat them all as lesser legal beings, subject to discrimination and sentenced to silence.