Kerry v. Din: Due process doesn't trump plenary power

FACTS

Fauzia Din, a U.S. citizen, filed a visa petition for her husband Kanishka Berashk, a citizen and resident of Afghanistan. The State Department denied the petition nine months later citing a broad provision of the Immigration and Nationality Act that excludes aliens on terrorism-related grounds. When Berashk asked for clarification, he was told that the Embassy couldn't provide him with a detailed explanation of the denial.

After several other unsuccessful attempts to receive an explanation, Din sued, arguing that denying notice for aliens who are denied visas based on terrorism grounds is unconstitutional. The district court found that Din lacked standing to challenge the visa denial. The 9th U.S. Circuit Court of Appeals reversed and held that the government is required to give notice of reasons for visa denial based on terrorism grounds.

QUESTION

Is the government required to allege what it believes an alien did that would render him ineligible for a visa based on terrorism-related ground under the Immigration and Nationality Act?

The 2nd U.S. Circuit Court of Appeals observed in American Academy of Religion v. Napolitano (2009) that "these cases [challenging the doctrine of consular non-reviewability] raise a host of issues." Indeed.

Fauzia Din is a naturalized refugee, resettled here after years in Pakistan. She is appealing the denial of an immediate relative visa for her Afghani husband, Kanishka Berashk, who has never been to the United States. After adjusting from refugee to permanent resident status, but while still a citizen of the country that persecuted her family under the Taliban regime, Din returned to marry a "longtime" family friend - an arranged union under a family law that would be repugnant to the Constitution in this country, but one which we recognize nonetheless by comity.

Din's visa petition was routinely processed by U.S. Citizenship and Immigration Services and the State Department's National Visa Center. But 10 months after Berashk appeared for a visa interview in Islamabad, he received a form notice that he was inadmissible and no waiver was possible.

Further inquiry produced an embassy email stating that the application was denied on terrorism-related grounds. Section 1182 of Title 8 is the immigration statute barring "inadmissible" aliens. Section 1182(a)(3) lists 10 categories of terrorist activity as bars to admission. The email explained the denial was not possible, citing 8 U.S.C. Section 1182(b)(3), a subsection on "notice of denials" that exempts consular officers from the general requirement to provide specific reasons for a visa denial, if made on "security and related grounds." The exemption also applies to exclusions on criminal grounds that do not apply to this couple, but could be affected if the U.S. Supreme Court accepts her theory of due process rights.

No party or amicus before the Supreme Court claims that the overseas husband has standing to contest the denial. If Berashk erred by omission on his visa application, he is also inadmissible. But Din, now a naturalized citizen, followed up with her own queries to the State Department and then Congress. When rebuffed, she sued by bootstrapping a novel Fifth Amendment due process claim onto the Supreme Court's 1972 holding in Kleindienst v. Mandel that when a visa is denied for "a facially legitimate and bona fide reason," the judiciary cannot "look behind the exercise of that discretion" nor "test it by balancing that justification" against the interest of the citizen asserting a constitutional right to benefit from the alien's presence.

This case is not really about the relief she seeks, and only tangentially concerns U.S. counterterrorism operations. Din demands that the State Department provide her "some evidence" that her husband is inadmissible under one of the specific national security sub-grounds for inadmissibility. "Providing notice is important," Din argues, "because when a visa is refused, applicants can seek to overcome the ground for refusal."

Din has deployed a variant of the "good German" strategy, claiming that Berashk was just a government clerk under Taliban rule (a regime his wife's family had fled for their lives), whose lowly employment couldn't possibly constitute support for terrorism. But an obvious ground for denial would be employment in an official capacity by an iconic terrorist regime. U.S. inadmissibility laws don't exempt low-level Nazi or Khmer Rouge government clerks either.

There seems to be little debate among the circuits that under the "facially legitimate" standard, the consulate could have sustained the visa denial with as minimal a response as the newspaper articles cited to bar IRA terrorist supporter Gerry Adams in Adams v. Baker (1st Cir. 1990), the U.S. consulate in Switzerland's claim that local Islamist Tareq Ramadan was a Hamas donor in American Academy, or the U.S. consulate in a Mexican border town's claim in Bustamante v. Mukasey (9th Cir. 2008) that the DEA believed that the U.S. citizen's Mexican husband was involved in drug trafficking. Lacking independent evidence of bad faith on the part of the consulate, which Din was urged but did not provide to the district court, the most relief she could expect would be a slightly more detailed denial letter from the consulate.

Nonetheless, the Supreme Court has agreed to consider whether the liberty interest of marriage includes the due process right of a citizen to bring a spouse contracted in a foreign marriage to the U.S. for cohabitation, or expands the scope of judicial review to the factual basis for the denial. This expansion, however, would aggrandize federal judiciary power vis-Ã -vis Congress, by undermining a key obstacle to asserting long-arm jurisdiction over visa applications by overseas aliens.

That obstacle is the consular non-reviewability doctrine, a leading edge of the doctrine of congressional plenary power in immigration law. Consular non-reviewability dates only to the Progressive Era of immigration restrictions, culminating in the 1924 reforms, which moved the venue for legal screening of immigrants from Ellis Island to U.S. consulates overseas. But plenary power over immigration is imbedded in the constitutional DNA of the nation-state, as the expression of the sovereignty of the political branches of government. It has been asserted by authorities on international law from Grotius, Blackstone, Vatel and the framers of 1787, to the unbroken past century of Supreme Court cases stretching from Fong Yue Ting v. U.S. in 1893 to Demore v. Kim in 2003.

Din's amici correctly surmise that if contracting an overseas marriage - in this case, under the Islamist constitution of Afghanistan - can create a constitutionally protected immigration preference for the citizen spouse, Congress will lose power to regulate immigration as a political function. For all the happiness and marginal utility that marriage to a foreigner can bring, in constitutional terms, Din's claim elevates nepotistic rights over majority rule. Din's prominent amici from the open borders lobby and the immigration bar want to elevate her asserted liberty interest in conjugal immigration into the expanding penumbra of paramount due process rights of "freedom of personal choice in matters of marriage and family life." But if Congress is compelled by the Fifth Amendment to permit inadmissible aliens to immigrate as derivative beneficiaries of liberty interests like the one asserted here, the political rights of the democratic majority of Americans and their legislators are diminished.

The party whose position is most ambiguous is, unsurprisingly, the petitioner, the Obama administration. The administration is engaged in its own titanic struggle with Congress, between executive discretion and legislative plenary power over immigration removals. The president's commitment to chain migration as the future of the Democratic Party should jive nicely with Din's theory that spousal chain migration constitutionally trumps plenary legislative restrictions.

But the last thing Homeland Security wants is mandated judicial review of executive discretion over admissions, which it argues will "work a sea change in the law, creating obstacles" to presidential "plenary power over the Nation's borders and burdening the courts." The administration thus claims that Mandel was decided on a technicality, abuse of prior visa waivers by the communist applicant, not an infringement of the U.S. sponsor's First Amendment rights. The administration already supports judicial review of visa denials for spouses of gay citizens on due process unity grounds, but it tries to distinguish spousal denials on national security grounds as exempt from due process review. It advocates expanding the liberty interests in personal choice, but denies its relevance for immigration as a threat to executive prerogatives.

This is a bad case, and a constitutionally perilous one. In American Academy, the 2nd Circuit called Ramadan a "symbolic plaintiff." So is Din, but with much more at stake. No party represents the national interest of the citizenry, the collective majority with virtually no recourse to the courts on immigration controversies, who are left to pursue their interests through the plenary power under attack from different angles by Din and the president.

If the court expands due process to review of visa denials, both the political branches will be weakened. If it goes further to hold that judicial review of visa denials derives from a nepotistic due process right to family unity, it will degrade the status of the citizenry within their own republic.