__ U.S. __ (2015), 13-1402, Kerry v. Din

Docket Nº:13-1402
Citation:__ U.S. __, 135 S.Ct. 2128, 192 L.Ed.2d 183, 83 U.S.L.W. 4417, 25 Fla.L.Weekly Fed. S 335
Opinion Judge:SCALIA, Judge
Party Name:JOHN F. KERRY, SECRETARY OF STATE, ET AL., PETITIONERS v. FAUZIA DIN
Attorney:Edwin S. Kneedler argued the cause for petitioner. Mark E. Haddad argued the cause for respondents.
Judge Panel:SCALIA, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., jo...
Case Date:June 15, 2015
Court:United States Supreme Court
SUMMARY

Din petitioned to have her husband, Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under 8 U.S.C. 1182(a)(3)(B), which excludes... (see full summary)

 
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__ U.S. __ (2015)

135 S.Ct. 2128, 192 L.Ed.2d 183, 83 U.S.L.W. 4417, 25 Fla.L.Weekly Fed. S 335

JOHN F. KERRY, SECRETARY OF STATE, ET AL., PETITIONERS

v.

FAUZIA DIN

No. 13-1402

United States Supreme Court

June 15, 2015

Argued February 23, 2015

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Vacated and remanded.

SYLLABUS

[135 S.Ct. 2129] [192 L.Ed.2d 184] Respondent Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an " immediate relative" entitled to priority immigration status. Din's petition was approved, but Berashk's visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under § 1182(a)(3)(B), which excludes aliens [192 L.Ed.2d 185] who have engaged in " [t]errorist activities," but the officer provided no further information. Unable to obtain a more detailed explanation for Berashk's visa denial, Din filed suit in Federal District Court, which dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk's visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk's visa application without providing a more detailed explanation of its reasons.

Held : The judgment is vacated, and the case is remanded.

718 F.3d 856, vacated and remanded.

JUSTICE SCALIA, joined by THE CHIEF JUSTICE and JUSTICE THOMAS, concluded that the Government did not deprive Din of any constitutional right entitling her to due process of law. Pp. 3-15.

(a) Under a historical understanding of the Due Process Clause, Din cannot possibly claim that the denial of Berashk's visa application deprived her of life, liberty, or property. Pp. 4-5.

(b) Even accepting the textually unsupportable doctrine of implied fundamental rights, nothing in that line of cases establishes a free-floating and categorical liberty interest sufficient to trigger constitutional protection whenever a regulation touches upon any aspect of the marital [135 S.Ct. 2130] relationship. Even if those cases could be so broadly construed, the relevant question is not whether the asserted interest " is consistent with this Court's substantive-due-process line of cases," but whether it is supported by " this Nation's history and practice," Washington v. Glucksberg, 521 U.S. 702, 723-724, 117 S.Ct. 2258, 138 L.Ed.2d 772. Here, the Government's long practice of regulating immigration, which has included erecting serious impediments to a person's ability to bring a spouse into the United States, precludes Din's claim. And this Court has consistently recognized its lack of " judicial authority to substitute [its] political judgment for that of Congress" with regard to the various distinctions in immigration policy. Fiallo v. Bell, 430 U.S. 787, 798, 97 S.Ct. 1473, 52 L.Ed.2d 50. Pp. 5-11.

JUSTICE KENNEDY, joined by JUSTICE ALITO, concluded that there is no need to decide whether Din has a protected liberty interest, because, even assuming she does, the notice she received satisfied due process. Pp. 1-6.

(a) This conclusion is dictated by the reasoning of Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683. There the Court declined to balance the asserted First Amendment interest of college professors seeking a nonimmigrant visa for a revolutionary Marxist speaker against " Congress' 'plenary power to make rules for the admission of aliens,'" id., at 766, 92 S.Ct. 2576, 33 L.Ed.2d 683, and limited its inquiry to whether the Government had provided a " facially legitimate and bona fide" reason for its action, id., at 770, 92 S.Ct. 2576, 33 L.Ed.2d 683. Mandel 's reasoning has particular force here, where national security is involved. Pp. 2-3.

(b) Assuming that Din's rights were burdened directly by the visa denial, [192 L.Ed.2d 186] the consular officer's citation of § 1182(a)(3)(B) satisfies Mandel 's " facially legitimate and bona fide" standard. Given Congress' plenary power to " suppl[y] the conditions of the privilege of entry into the United States," United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317, the Government's decision to exclude Berashk because he did not satisfy a statutory condition for admissibility is facially legitimate. Supporting this conclusion is the fact that, by Din's own admission, Berashk worked for the Taliban government. These considerations lend to the conclusion that there was a bona fide factual basis for exclusion, absent an affirmative showing of bad faith on the consular officer's part, which Din has not plausibly alleged. Pp. 4-6.

Edwin S. Kneedler argued the cause for petitioner.

Mark E. Haddad argued the cause for respondents.

SCALIA, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

OPINION

[135 S.Ct. 2131] SCALIA, Judge

Fauzia Din is a citizen and resident of the United States. Her husband, Kanishka Berashk, is an Afghan citizen and former civil servant in the Taliban regime who resides in that country. When the Government declined to issue an immigrant visa to Berashk, Din sued.

The state action of which Din complains is the denial of Berashk's visa application. Naturally, one would expect him--not Din--to bring this suit. But because Berashk is an unadmitted and nonresident alien, he has no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission. See Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). So, Din attempts to bring suit on his behalf, alleging that the Government's denial of her husband's visa application violated her constitutional rights. See App. 36-37, Complaint ¶ 56. In particular, she claims that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse. There is no such constitutional right. What JUSTICE BREYER's dissent strangely describes as a " deprivation of her freedom to live together with her spouse in America," post, at 4-5, is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse's freedom to immigrate into America.

For the reasons given in this opinion and in the opinion concurring in the judgment, we vacate and remand.

I

A

Under the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., an alien may not enter and permanently reside in the United States without a visa. § 1181(a). The INA [192 L.Ed.2d 187] creates a special visa-application process for aliens sponsored by " immediate relatives" in the United States. § § 1151(b), 1153(a). Under this process, the citizen-relative first files a petition on behalf of the alien living abroad, asking to have the alien classified as an immediate relative. See § § 1153(f), 1154(a)(1). If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer. See § § 1201(a)(1), 1202. Before issuing a visa, the consular officer must ensure the alien is not inadmissible under any provision of the INA. § 1361.

One ground for inadmissibility, § 1182(a)(3)(B), covers " [t]errorist activities." In addition to the violent and destructive acts the term immediately brings to mind, the INA defines " terrorist activity" to include providing material support to a terrorist organization and serving as a [135 S.Ct. 2132] terrorist organization's representative. § 1182(a)(3)(B)(i) (iii)-(vi).

B

Fauzia Din came to the United States as a refugee in 2000, and became a naturalized citizen in 2007. She filed a petition to have Kanishka Berashk, whom she married in 2006, classified as her immediate relative. The petition was granted, and Berashk filed a visa application. The U.S. Embassy in Islamabad, Pakistan, interviewed Berashk and denied his application. A consular officer informed Berashk that he was inadmissible under § 1182(a)(3)(B) but provided no further explanation.

Din then brought suit in Federal District Court seeking a writ of mandamus directing the United States to properly adjudicate Berashk's visa application; a declaratory judgment that 8 U.S.C. § 1182(b)(2)-(3), 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. App. 36-39, Complaint ¶ ¶ 55-68. The District Court granted the Government's motion to dismiss, but the Ninth Circuit reversed. The Ninth Circuit concluded that Din " has a protected liberty interest in marriage that entitled [her] to review of the denial of [her] spouse's visa," 718 F.3d 856, 860 (2013), and that the Government's citation of § 1182(a)(3)(B) did not provide Din with the " limited judicial review" to which she was entitled under the Due Process Clause, id., at 868. This Court granted certiorari...

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