On June 15, 2015,
the US Supreme Court published a plurality opinion in Kerry v. Din which reviewed the doctrine of consular
nonreviewability. Kerry v. Din, No.
13-1402, slip op. (June 15, 2015). In particular, the respondent, Fauzia Din,
argued that she, a US citizen, was owed a more detailed explanation as to why
her husband’s Immigrant Visa application was denied other than a summary
reference to the relevant statute under which the consulate refused his
Immigrant Visa. The plurality opinions essentially upheld the doctrine on
different grounds and denied that Ms. Din had any right to a more detailed
explanation of the denial.
As a plurality opinion,
Din holds no more weight in the
matter of consular nonreviewability than the authoritative opinions of each
group of justices. It leaves the question of consular nonreviewability open to
further interpretation. However, the majority of the opinions in Din preserve the Court’s decision in Kleindienst v. Mandel, a majority
decision published in 1972. Kleindienst
v. Mandel, 92 S.Ct. 2576 (1972). Justice
Kennedy noted in his "view . . . that, even assuming [the petitioner had a
protected liberty interest], the notice [the petitioner] received regarding her
husband's visa denial satisfied due process." Justice Scalia’s opinion
echoed the same conclusion as well as that Ms. Din had not been “deprived of
‘life, liberty, or property’” in the government’s denial of her husband’s visa
application and “there is no process due to her under the Constitution.”
Justice Kennedy’s
opinion preserved the Court’s decision in Kleindienst
v Mandel that the Executive has “plenary power to make rules for the
admission of aliens and to exclude those who possess those characteristics
which Congress has forbidden,” and “enforced exclusively through executive
officers, without judicial intervention, [which] is settled by [the Court’s]
previous adjudications.” In Kleindienst,
the respondents, all US Citizens, argued that the summary denial of a
nonimmigrant visa for a lecturer’s visit to the United States was a violation
of the First Amendment right to free speech and association. In particular, the
respondents demanded a reason upon which a discretionary waiver of a ground of
inadmissibility had been denied. The Court’s decision in Kleindienst held that “when the Executive exercises [it’s plenary]
power negatively on the basis of a facially legitimate and bona fide reason,
the courts will neither look behind the exercise of that discretion, nor test
it by balancing” constitutional interests. Justice Kennedy added in his opinion
that “[a]bscent an affirmative showing of bad faith on the part of the consular
officer,” an applicant is not due an explanation of the “facts underlying [the]
determination.”
In his opinion,
Justice Scalia focused more on whether Ms. Din had a fundamental procedural
right to due process of the law in the matter of her the government’s denial of
her husband’s Immigrant Visa application. He summarizes that “There is no such
constitutional right.” Ms. Din has not been prohibited from marrying her
husband nor has the government inhibited her freedom to live with her husband
“anywhere in the world that both individuals are permitted to reside.” On this
point the justices appear to agree. In contrast, according to Justice Scalia,
the “dissent [Justice Breyer et al] supplements the fundamental right to
marriage with a fundamental right to live in the United States in order to find
an affected liberty interest.” In his conclusion, Justice Scalia simply states
that the government has denied the applicant’s visa application because the
applicant “engaged in terrorist activities within the meaning of the
Immigration and Nationality Act,” and the government has no further obligation
to Ms. Din in the matter: “To the extent that she received any explanation for
the Government’s decision, this was more than the Due Process Clause required.”
The dissenting
opinion, written by Justice Breyer, holds that Ms. Din not only had an
“implicit” due process right, but also “an expectation” based on
nonconstitutional law to not be deprived of her “liberty without fair
procedures.” The institution of marriage and the right to live with ones spouse
are implicit and central to “most individuals ‘orderly pursuit of happiness,’”
and therefore warrants due process. In individual adjudications, “a fundamental
element of due process” is “notice” or a “kind of statement” to “understand why the government acted as it did” and
provides the applicant, “who suffered a ‘serious loss,’ a fair ‘opportunity to
meet’ ‘the case’ that has produced separation from her husband” such as “an
appeal, internal agency review, or . . . an opportunity to submit additional
evidence and obtain reconsideration.”
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