Kerry v. Din

• Citation: 192 L.Ed.2d 183,135 S.Ct. 2128,576 U.S. 86
• Decision Date: 15 June 2015
• Docket Number: No. 13–1402.,13–1402.
• Parties: John F. KERRY, Secretary of State, et al., Petitioners v. Fauzia DIN.
• Court: United States Supreme Court

576 U.S. 86

135 S.Ct. 2128

192 L.Ed.2d 183

John F. KERRY, Secretary of State, et al., Petitioners

v.Fauzia DIN.

No. 13–1402.

Supreme Court of the United States

Argued Feb. 23, 2015.

Decided June 15, 2015.

Edwin S. Kneedler, Washington, DC, for petitioners.

Mark E. Haddad, for respondent.

Anoop Prasad, Jenny Zhao, Nasrina Bargzie, Yaman Salahi, Winifred Kao, Asian Americans Advancing Justice—Asian Law Caucus, San Francisco, CA, Mark E. Haddad, Counsel of Record, Geoffrey D. DeBoskey, David R. Carpenter, Heidi Larson Howell, Amanda Farfel, Sidley Austin LLP, Los Angeles, CA, Kathleen M. Mueller, Sidley Austin LLP, Washington, DC, for Respondent Fauzia Din.

Mary E. McLeod, Acting Legal Adviser, Department of State, Washington, DC, Stevan E. Bunnell, General Counsel, Department

of Homeland Security, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Joyce R. Branda, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Elaine J. Goldenberg, Assistant to the Solicitor General, Colin A. Kisor, Stacey I. Young, Attorneys, Department of Justice, Washington, DC, for Petitioners.

Justice SCALIA announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Justice THOMAS join.

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 2142, 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 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 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. 573 U.S. ––––, 135 S.Ct. 44, 189 L.Ed.2d 896 (2014).

II

The Fifth Amendment provides that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." Although the amount and quality of process that our precedents have recognized as "due" under the Clause has changed considerably since the founding, see Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 28–36, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (SCALIA, J., concurring in judgment), it remains the case that no process is due if one is not deprived of "life, liberty, or property," Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per curiam ). The first question that we must ask, then, is whether the denial of Berashk's visa application deprived Din of any of these interests. Only if we answer in the affirmative must we proceed to consider whether the Government's explanation afforded sufficient process.

A

The Due Process Clause has its origin in Magna Carta. As originally drafted, the Great Charter provided that "[n]o freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land ." Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797) (emphasis added). The Court has recognized that at the time of the Fifth Amendment's ratification, the words "due process of law" were understood "to convey the same meaning as the words ‘by the law of the land’ " in Magna Carta. Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276, 15 L.Ed. 372 (1856). Although the terminology associated with the guarantee of due process changed dramatically between 1215 and 1791, the general scope of the underlying rights protected stayed roughly constant.

Edward Coke, whose Institutes "were read in the American Colonies by virtually every student of law," Klopfer v. North Carolina, 386 U.S. 213, 225, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), thoroughly described the scope of the interests that could be deprived only pursuant to "the law of the land." Magna Carta, he wrote, ensured that, without due process, "no man [may] be taken or imprisoned"; "disseised of his lands, or tenements, or dispossessed of his goods, or chattels"; "put from his livelihood without answer"; "barred to have the benefit of the law"; denied "the franchises, and priviledges, which the subjects have of the gift of the king"; "exiled"; or "forejudged of life, or limbe, disherited, or put to torture, or death." 1 Coke, supra, at 46–48. Blackstone's description of the rights protected by Magna Carta is similar, although he discusses them in terms much closer to the "life, liberty, or property" terminology used in the Fifth Amendment. He described first an interest in "personal security," "consist[ing] in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation." 1 W. Blackstone, Commentaries on the Laws of England 125 (1769). Second, the "personal liberty of individuals" "consist[ed] in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint." Id., at 130. And finally, a person's right to property included "the free use, enjoyment, and disposal of all his acquisitions." Id., at 134.

Din, of course, could not conceivably claim that the denial of Berashk's visa application deprived her—or for that matter even Berashk—of life or property; and under the above described historical understanding, a claim that it deprived her of liberty is equally absurd. The Government has not "taken or imprisoned" Din, nor has it "confine[d]" her, either by "keeping [her] against h[er] will in a private house, putting h[er] in the stocks, arresting or forcibly detaining h[er] in the street." Id., at 132. Indeed, not even Berashk has suffered a deprivation of liberty so understood.

B

Despite this historical evidence, this Court has seen fit on several occasions to expand the meaning of "liberty" under the Due Process Clause to include certain implied "fundamental rights." (The reasoning presumably goes like this: If you have a right to do something, you are free to do it, and deprivation of freedom is a deprivation of "liberty"—never mind the original meaning of that word in the Due...