The Supreme Court ruled Monday that the federal government does not owe a naturalized citizen a detailed explanation when it refuses to give her foreign husband an immigration visa.
A majority of the court said it is enough for the government to declare the immigrant has been denied entry because of terrorism concerns and not list specific allegations that the spouse or applicant can then contest.
The decision splintered the court. The five most-consistent conservatives said Fauzia Din cannot prevail in her suit, although they disagreed on the reason. The four liberals said Din’s fundamental right to marry required the government to give her more of an explanation for why her Afghan husband cannot join her in the United States.
Justice Antonin Scalia said neither Din nor her husband, Kanishka Berashk, has a constitutional right to an explanation.
“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,” Scalia wrote. “And the government has not expelled Din from the country. It has simply determined that Kanishka Berashk engaged in terrorist activities within the meaning of the Immigration and Nationality Act, and has therefore denied him admission into the country.”
Scalia was joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas.
Justice Anthony M. Kennedy agreed with the outcome of the case but said the court did not need to go so far as determining that Din lacked a constitutional right to due process. Even assuming Din had such a right, Kennedy said, “the government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute’s terrorism bar.” Kennedy’s reasoning was joined by Justice Samuel A. Alito Jr.
Justice Stephen G. Breyer disagreed. The Constitution provides “some form of procedural protection to a citizen threatened with government deprivation of her freedom to live together with her spouse in America,” he wrote.
He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The case comes from California, where Din settled with her family after fleeing Afghanistan in 1998. She entered the United States in 2000 and became a naturalized citizen in 2007.
She returned to Afghanistan in 2006 to marry Berashk, whom she had known for years. He worked as a low-level clerk in the Afghan government, both during the time the Taliban was in control and after. They began the process to get him a visa to join Din in the United States, and he had an interview at the U.S. Embassy in Islamabad, Pakistan.
In June 2009, Berashk’s application was rejected. When he sought to find out why, the embassy said he was denied under a section of the law that made an alien ineligible because of “terrorist activities” and that it would not be possible to be more specific. The decision was not reviewable, it said.
Din filed suit, and the U.S. Court of Appeals for the 9th Circuit ruled that the fundamental rights that come with marriage meant that the government owed her at least a “facially legitimate reason” for denying her husband’s visa request.
Breyer agreed. With something as fundamental as marriage at stake, he said, “the Constitution requires the government to provide an adequate reason why it refused to grant Ms. Din’s husband a visa.”
Breyer added that the generality with which Berashk’s visa was denied did not allow Din or her husband an opportunity to challenge it. He said it was analogous to “telling a criminal defendant only that he is accused of ‘breaking the law.’ ”
But Kennedy said that Congress left such decisions up to the executive branch and that it was not up to the courts to “look behind” the exercise of that discretion. “This reasoning has particular force in the area of national security,” he wrote.
Scalia wrote extensively about the issue that Kennedy said need not be decided: whether Din’s marriage gave her constitutional standing to demand more of an explanation.
Rather than what Breyer described as a “freedom to live together with her spouse in America,” Scalia wrote, the rejection of Berashk’s application was “nothing more than a deprivation of her spouse’s freedom to immigrate to America.”
There was a moment of awkward levity in Scalia’s announcement of the ruling. Although he meant “Ginsburg,” he listed “Goldberg” as among the dissenters in the case — perhaps because Justice Arthur Goldberg served on the court in the 1960s, perhaps because a case called Golberg v. Kelly was mentioned four times in the opinion.
At any rate, the statement caused a buzz in the chamber. “What did I say?” Scalia asked. “Goldberg’s gone. Sorry about that, Ruth.”
The case is Kerry v. Din.