In Kerry v. Din, 576 U.S. (2015), the U.S. Supreme Court just decided that the U.S. consulate in Islamabad does not need to inform a U.S. citizen wife why her husband was denied an immigrant spouse visa. The grounds were based on National Security interests under 8 USC §1182(a)(3)(B).
Din’s husband admitted that at one point long ago he was a member of the Taliban in Afghanistan. Although he worked in the Taliban as a clerk, he claimed he was not a terrorist. Recall that the Taliban used to run the Afghan government. Din, who is also from Afghanistan, claims her husband was not a terrorist.
Din sued the U.S. State Department for an explanation concerning the consulate officer’s decision to deny based on terrorist grounds. Her claim was that she has a due process right in marriage under the US Constitution. The State Department should not deny her husband a visa without giving a meaningful explanation and allowing her to respond. A vague reference to a terrorist statute, without more, is not enough information to deny her rights and not give her a chance.
It seems the consulate officers do not conduct terrorist investigations. That function is handled by the Department of Homeland Security. Once the DHS raises a red flag, the consulate denies the visa without further review or investigation. Din believed more attention and follow up is required of the consulate before a final determination is made. The Supreme Court disagreed with Din. Notably also the Supreme Court judges disagreed with each other over whether any rights are conferred by a marital union.
Can a U.S. citizen spouse sue for the right to live with her husband in the U.S.? That ultimate question was not answered.
Instead, the decision was that due process concerns were satisfied because the State Department stated Din’s husband was denied a visa for suspicion of being a terrorist. No further explanation is required, other than reference to the terrorist statute.
The decision essentially means that so long as the U.S. consulate can give a facially valid reason for denial of the marriage visa based on terrorism where the foreigner admitted to being a member of a terrorist organization, the U.S. citizen does not have a reason to complain if the consulate officer does not want to say more. This is the most narrow holding of the case. In practice, Kerry v. Din sends a signal to the U.S. consulates that they don’t need to justify their actions to U.S. citizen petitioners. You don’t have a right to complain about the government’s lack of concern for your marriage or your family.
It is going to be difficult to fight for your rights to have your family members immigrate to the U.S., but there are still possibilities:
- Is there a basic Constitutional right to be in a marital union in the U.S.? Strictly speaking, that question is not yet settled.
- The government cannot act in bad faith in making a decision, which might include behavior that is abusive, or perhaps arbitrary or capricious.
- The U.S. citizen might still have good standing to object if the visa petition is denied. In Kerry v. Din, the visa application was denied, a different part of case processing.
In my view, this was not a good case to take to the U.S. Supreme Court because of the connection with the Taliban. It’s not a sympathetic case. There are so many other families with more sympathetic cases who are denied immigrant visa for seemingly little reason or sometimes the wrong reasons. Appeals will still go on, but the fight to bring families together has become more problematic.
It is important in immigration matters that you get things right the first time and look at all viable ways to bring family members together. Seeking attorney assistance early in your case is the best way to help increase your chances of success.
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