Kerry v. Din

The Supreme Court will first determine whether a consular officer violates a U.S. citizen’s constitutionally protected interest by denying a visa to the citizen’s alien spouse. Din asserts that the government’s denial of her husband’s visa implicates her fundamental right to marry because the right to marry includes the associational right to live with one’s spouse without arbitrary governmental interference. In opposition, Kerry argues that the Immigration and Nationality Act (“INA”) does not confer upon U.S. citizens a legal interest if a consular officer denies an alien-spouse’s visa application, and that there is no colorable claim under the Due Process Clause because no fundamental interest is implicated in this case.

The Supreme Court will also determine whether a U.S. citizen may judicially challenge such a visa denial and require the government to explain under which statutory provision the spouse was deemed ineligible for admission. Din argues that due process requires judicial review and notice of the basis for denial in order to protect citizens from arbitrary government constraints, and that courts should implement the Mandel standard of review. However, Kerry counters that requiring judicial review and notice requirements on consular officers’ visa determinations would violate the long-standing consular nonreviewability doctrine and nullify Congress’s intent to protect confidential information.

DOES THE DENIAL OF A VISA TO AN ALIEN SPOUSE OF A U.S. CITIZEN IMPLICATE THE CITIZEN’S FUNDAMENTAL RIGHTS?

Din contends that the consular officer’s denial of her spouse’s visa application violated her fundamental right to marry and should be subject to judicial review. Din argues that the government overlooks the associational interests of marriage, such as the ability for married couples to choose whether and when to conceive a child or to raise the child together in a home. Din claims the Due Process Clause protects those associational interests from arbitrary governmental deprivation. Din maintains that the Supreme Court’s holding in Griswold v. Connecticut, where the Court held that marriages were within the constitutionally protected “zone of privacy,” was grounded in this associational aspect of marriage. Din contends that married couples are denied protected associational rights if they cannot choose to live together. Din also claims that the Supreme Court’s holding in Fiallo v. Bell, where the Court held that citizens have an interest in the denial of visas to their family members, supports her argument that alien-admission regulations may be subjected to judicial review. Din disagrees with Kerry and argues that her legal interests do not terminate upon the granting of a petition for classification of her spouse as an immediate relative because the purpose of the petition is to promote family unification through immigration. Moreover, Din claims, the citizen-spouse continues to play an important role in the application process after the government grants her petition. Finally, Din argues that she is directly affected by the visa denial because the denial forces her to choose between living in the U.S. without her husband and leaving the country altogether. Din claims that the Court should not permit the government to partially deprive her of a liberty interest even if such deprivation is not technically a total deprivation of said interest.

Kerry argues that neither the INA nor the Due Process Clause, which protects citizens’ liberty interests against arbitrary governmental intervention under the Fifth Amendment, confers upon a U.S. citizen a legally identifiable interest if a consular officer denies the visa application filed by the citizen’s alien spouse. According to Kerry, Din had a legal interest under the INA to petition for classification of her spouse as an immediate relative, but the consular officer’s decision whether to grant her alien spouse’s visa application rested on the consular officer’s examination of the alien’s background. Thus, Kerry claims, the INA creates a two-step process whereby the citizen’s legally identifiable interest ends once the petition for classification is granted and does not extend to the visa application itself. Kerry further contends that there is no fundamental interest implicated in this case because the consular officer’s denial of the visa application did not invalidate Din’s marriage, deprive Din of legal benefits created by marriage, or prohibit Din from living with her spouse in another country. Kerry claims that U.S. has never recognized a liberty interest in having a citizen’s alien spouse admitted to the U.S, and Congress has plenary power to deny admission. Moreover, Kerry argues that the Supreme Court has long rejected the idea that the government may interfere with a citizen’s constitutionally protected interests through indirect action. Kerry maintains that this principle defeats Din’s claim because she has only suffered incidental harm through the denial of her husband’s visa because the decision solely concerned her spouse.

MAY COURTS REQUIRE JUDICIAL REVIEW AND NOTICE REQUIREMENTS FOR CONSULAR OFFICERS’ VISA DETERMINATIONS?

Din contends that, in order to protect citizens’ liberty interests against arbitrary restrictions, due process requires some sort of judicial review of government restrictions to ensure the government has a legitimate reason for the deprivation. Furthermore, Din believes that the standard of review set forth in Mandel, which stated that a U.S. citizen could obtain limited judicial review of the Attorney General’s denial of a waiver if the citizen’s First Amendment rights were violated, should be the applicable standard. Din asserts that, in order to satisfy these due process requirements, the government must have a legitimate reason for restricting a citizen’s liberty interest that is supported by “some evidence.” Din claims that the Court should apply Mandel review, whereby the courts look to see whether there is a facially legitimate and bona fide explanation for the government official’s decision, because such review satisfies the minimum due process required to protect against arbitrary restrictions. Din further argues that Kerry’s consular nonreviewability doctrine and plenary power arguments do not preclude judicial review. According to Din, the Court has held that Congress must clearly express an intention to prohibit judicial review of constitutional claims arising under a federal statute if Congress intends to foreclose such review, and no provision within the INA bars constitutional claims. Din also notes that the consular nonreviewability doctrine is not implicated here because Din is a U.S. citizen and the doctrine is founded on the premise that aliens outside the U.S. do not have constitutional rights. Finally, Din argues that a mere citation to § 1182(b)(3) does not satisfy the “facial legitimacy” test because the consular officer could have erred in construing the statute.

Kerry argues that judicial review and notice requirements for consular officers’ visa determinations conflict with Supreme Court jurisprudence and congressional intent in passing § 1182(b)(3) of the INA. Kerry contends that courts have long recognized the consular nonreviewability doctrine, which holds that aliens denied visas have no right to challenge the judgment of consular officers. According to Kerry, consular nonreviewability is significant because it protects the plenary power of political branches to create their own alien-admission rules; Congress, by refusing to include any procedures for judicial review under the INA, did not intend to confer the right to judicial review to aliens living abroad. Kerry further argues that the Court’s holding in Mandel does not stand for the proposition that a consular officer’s denial of a visa may be subjected to judicial review. Kerry claims that the Court’s holding in Mandel does not apply to visa denials because the consular officer’s decision is tied to legal provisions set forth in the INA. Kerry claims that applying Mandel’s “facial legitimacy” test to INA provisions would be illogical because the reasons for denying a visa were specifically created by Congress, which makes the reasons inherently “legitimate on their face.” For this reason, Kerry claims, the Court would in effect be second-guessing Congress’s choices in creating a law if it applied Mandel’s “facial legitimacy” test to the INA provisions. Finally, Kerry argues that the government satisfied the “facial legitimacy” test by citing § 1182(b)(3).