A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, July 10, 2015

U.S. Citizen Has No Constitutional Right to Know the Specific Reasons for Husband's Visa Denial

When the husband of United States citizen Fauzia Din applied for an immigrant visa from the US, he was denied. Din’s husband, Kanishka Berashk, is a citizen of Afghanistan and a former civil servant of the Taliban regime. His visa application was denied under the statutory provision INA §1182(a)(3)(B), which excludes aliens who had participated in “[t]errorist activities”. The provision is somewhat broad, detailing various reasons for exclusion. No further explanation was given. 

When this happened, Fauzia Din sued in the Federal District Court, claiming that the State Department had violated the Constitutional requirement that “[n]o person … be deprived of life, liberty, or property, without due process of law.” U.S. Const., Amdt. 5. She argued that she had been denied due process when the Department had failed to provide any detailed explanation regarding the denial of her husband’s visa, barring her from her constitutional right to live in the country with her spouse. 

The Federal District Court dismissed Din’s claim, but this decision was reversed by the Ninth Circuit Court. The case made its way to the Supreme Court, which upheld the Federal District decision. Please see my previous discussion about this case.

The Ninth Circuit Court based its reversal on the reasoning that the Government had violated Din’s liberty interest in her marriage by preventing her from reviewing her husband’s visa denial. It further asserted that, as her right to liberty had been deprived, Din was Constitutionally entitled to “due process of the law,” which she did not receive. The provision cited in her husband’s visa application denial did not provide a sufficiently detailed explanation.

In a 5-4 decision, the divided U.S. Supreme Court disagreed with the Ninth Circuit ruling in Kerry v. Din. According to the Supreme Court, Din was not deprived of life, liberty, or property when her husband was refused a visa. In particular, her liberty interests do not extend so far as to overturn existing immigration policy. She remains free to live with her spouse in any place where both are allowed to reside. Furthermore, the Court held that even if Din’s liberty interest had been violated, due process was indeed served with the State Department’s citation of provision  §1182(a)(3)(B). It had provided a “facially legitimate and bona fide” reason for its refusal of the visa.

Despite this Supreme Court decision, applicants may continue to request for specific reasons from consulate offices regarding the denial of visa applications.  Individual consulate office or officer will decide whether or not to provide the specific reasons for their decisions.  

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