Supreme Court hears arguments in visa-denial case

24 Feb 15

UNITED STATES

A divided Supreme Court Monday heard arguments in a closely watched case involving a California woman who argues that she has a right to know why her husband was denied a visa to come to the United States.

Fauzia Din, a U.S. citizen, married an Afghan man in 2006 and had hoped to bring him to the U.S. to live with her. The State Department rejected his visa application, however, citing a federal law that bars entry to foreigners involved in “terrorist activities.” The government has not elaborated further and has maintained that it does not have to do so.

“All we’re saying is, there’s a liberty interest in not being arbitrarily denied the opportunity to live with your spouse through the erroneous application or interpretation of law by an executive decision,” Mark Haddad, Din’s attorney, told the court.

The government said Supreme Court precedent is on its side.

“This court has repeatedly held that the power to exclude aliens is inherent in sovereignty and necessary to defending the nation against encroachments and dangers,” said Edwin Kneedler, the government’s attorney. “It is a power exercised by the political branches of government.”

The justices are weighing both whether visa denials can be subject to judicial review and whether a person can bring a lawsuit on behalf of a spouse when the spouse’s visa is denied. The case reached the Supreme Court after the U.S. Court of Appeals for the 9th Circuit held that Din was entitled to a “facially legitimate reason” for her husband’s visa denial.

A number of justices expressed skepticism, but Din’s argument did seem to garner some sympathy from others. Justice Sonia Sotomayor pressed the government by asking whether a spouse should have judicial recourse in cases where “someone [is] caught up in an administrative nightmare” because of a mistake.

The court’s more conservative judges were less inclined to see things from Din’s point of view. When Justice Stephen Breyer suggested a visa could be rejected for merely offering the wrong people a place to stay, Justice Antonin Scalia jumped in and said, “Enough for me.”

Chief Justice John Roberts and Scalia both pushed Din’s attorney on whether courts could see a flood of claims from other relatives – or even fiancés – if the court sided with Din.

“In this case,” Haddad responded, “where … there’s no question at all about the validity of the marriage, we are in the heartland of what this court has recognized is an important constitutional right.”

The case, Kerry v. Din, has been widely followed. The American Immigration Lawyers Association and the National Immigrant Justice Center filed an amicus brief describing the importance of the case.

“Absent at least limited judicial review, manifest injustice inevitably will result,” the organizations wrote in their brief, “particularly in circumstances, like those in this case, where a consular official explains the denial of a visa application by offering only a bald citation to a broad and multi-faceted statutory provision.”

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