Tuesday, July 7, 2015

USC can marry anyone but cannot bring anyone to US

Din, a US citizen (USC) petitioned to have her husband Berashk, an Afghanistan citizen and a former civil servant in the Taliban regime, to be classified as an “immediate relative” under the Immigration and Nationality Act (INA). Din’s petition was approved. However, after interviewing Berashk, his visa application was denied by a U.S. consular officer in Pakistan on the ground that he was inadmissible under INA § 212(a)(3)(B) which excludes aliens who have engaged in “terroristic activities.” The consul provided no further information. Din filed in the U.S. District Court an action for mandamus to direct the U.S. government to properly adjudicate Bershak’s visa application; declaratory judgment that § 212(a)(3)(B), which exempts the government from providing notice to an alien found inadmissible under the terrorism bar is unconstitutional as applied; and a declaratory judgment that the denial violated the Administrative Procedure Act. The Court dismissed her complaint.

She appealed to the Court of Appeals, Ninth Circuit, which reversed holding that Din had a “protected liberty interest in marriage that entitled [her] to review of the denial of [her] spouse’s visa” and that Din was entitled to a “limited judicial review” under the due process clause.

The U.S. Supreme Court vacated the judgment and remanded the case. Three Justices (Scalia, Roberts, and Thomas) pointed out that although the Fifth Amendment provides that “no person shall be . . . deprived of life, liberty, or property, without due process of law,” “no process is due if one is not deprived of ‘life, liberty, or property.” The court concluded that Din could not conceivably claim that the denial of her husband’s visa deprived her or her husband of life or property, and a claim that it deprived her of liberty was equally absurd. There is nothing in the cases to establish a “free-floating and categorical liberty interest in marriage sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship.”

Congress has enacted a complicated web of regulations that erected serious impediments to a person’s ability to bring a spouse into the United States. The law showed little more solicitude for the marital relationship when it was a male resident or citizen seeking admission for his fiancĂ©e or wife. The legal benefits afforded to marriages and the preferential treatment accorded to visa applicants with citizen relatives are insufficient to confer on Din a right that can be deprived only pursuant to procedural due process. Neither Din’s right to live with her spouse nor her right to live within this country is implicated here. There is a “simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.” 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. The government has not expelled Din from the country. It has simply determined that her husband engaged in terrorist activities within the meaning of INA and has therefore denied him admission into the country. Because Din was not deprived of “life, liberty, or property” when the government denied her husband admission to the US, there is no process due to her under the Constitution. To the extent that she received any explanation for the government’s decision, this was more than the Due Process Clause required.”

Two justices (Kennedy and Alito) said that even assuming that Din has a protected liberty interest, the notice she received regarding her husband’s visa denial satisfied due process.

Four Justices (Breyer, Ginsburg, Sotomayor and Kagan) dissented, saying that Din possesses the kind of “liberty” interest to which the Due Process Clause grants procedural protection and the government has failed to provide her with the procedure that is constitutionally “due”. They claimed that the plurality opinion which concluded that Din lacked the liberty interest to which the Due Process Clause provides procedural protection is not controlling. The Due Process Clause requires the Government to provide an adequate reason for the visa denial and failed to do so.  Kerry v Din, USSC, No. 13-1402, 06 15 15.

COMMENT: We had a case where the USCIS approved a visa petition classifying the beneficiary as the “husband” of the petitioner. The Consulate denied the beneficiary’s visa application on the ground that it had received “derogatory” information about him. The Consulate returned the visa file to the USCIS which issued a Notice of Intent to Revoke the visa classification. We asked USCIS to provide the complete file including the record of the visa interview and the alleged “derogatory” information in order that we could properly respond. The USCIS refused and revoked the visa classification. We appealed to the Board of Immigration Appeals which reversed the USCIS, holding that the petitioner had a right to see the derogatory information so that she could properly respond. In the case of Din, did her counsel appeal to the Board before filing a mandamus action to compel the disclosure of the derogatory information? If not, why not?


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. )

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