576 U.S. __, 135 S. Ct. 2128 (2015)
Fauzia Din, a citizen and resident of the United States who came to the country as a refugee in 2000 and became a naturalized citizen in 2007, married Kanishka Berashk in 2006.1 Berashk is an Afghan citizen and former civil servant in the Taliban regime who resides in Afghanistan.2 Din filed a petition to have Berashk classified as her immediate relative under the Immigration and Nationality Act, and the petition was granted.3
Berashk subsequently filed a visa application. The U.S. Embassy in Islamabad, Pakistan, interviewed Berashk and denied his application.4 A consular officer informed Berashk that he was inadmissible under 8 U.S.C. §1182(a)(3)(B) but provided no further explanation.5 Din admits that Berashk worked for the Taliban government.6
Din then brought suit in Federal District Court seeking a writ of mandamus directing proper adjudication of Berashk’s visa application, a declaratory judgment that the exemption from notice under 8 U.S.C. §1182(b)(2)–(3) is unconstitutional as applied, and a declaratory judgment that the denial violated the Administrative Procedure Act.7 The District Court granted the Government’s motion to dismiss.8
The Ninth Circuit reversed the dismissal. It concluded that Din has a protected liberty interest in marriage that entitled her to review of the denial of her spouse’s visa and that the Government’s citation of §1182(a)(3)(B) did not provide sufficient explanation.9 The Supreme Court granted certiorari.10
Whether the denial of a visa to an alien spouse deprives a U.S. citizen of a protected liberty interest under the Due Process Clause?11
The Due Process Clause of the Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law.12
No. The denial of Berashk's visa application did not deprive Din of life, liberty, or property under the historical understanding of the Due Process Clause.13 The Government has not taken or imprisoned Din, nor has it confined her against her will in any manner recognized by Blackstone or the Magna Carta tradition.14 The denial affects Din only indirectly through her spouse and imposes no direct restraint on her personal liberty of locomotion or property interests.15
Even assuming implied fundamental rights, the long practice of regulating spousal immigration, including the Expatriation Act of 1907 and quota systems under the Immigration Acts of 1921 and 1924, demonstrates that Din's asserted interest in spousal admission is not deeply rooted in the Nation's history and tradition.16
The denial of the visa did not deprive Din of a protected liberty interest under the Due Process Clause.17
Related opinions on this issue
Joined by Justice Alito
Justice Kennedy, joined by Justice Alito, concurred in the judgment.18 He assumed without deciding that Din possesses a protected liberty interest in living with her spouse. Kennedy resolved the case on the ground that the consular officer's citation of §1182(a)(3)(B) satisfied due process under the facially legitimate and bona fide reason standard from Kleindienst v. Mandel.19
He emphasized that Congress's plenary power over immigration and the national security context supported limiting judicial inquiry to the facial legitimacy of the stated reason without looking behind it absent a plausible allegation of bad faith.20 This approach respects the political branches' broad authority in immigration matters while ensuring the Government provides at least a minimal explanation tied to statutory criteria.21
Joined by Justices Ginsburg, Sotomayor, And Kagan
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented on the ground that Din possesses a liberty interest in living together with her spouse in the United States.22 That interest is central to human life, surrounded by legal protections, and entitled to procedural due process.23 Breyer concluded that the Government failed to provide an adequate reason for the denial.24
He further concluded that national security concerns do not suspend the Constitution's procedural requirements without explanation of why additional process could not be afforded.25 The liberty interest flows implicitly from the design of the Due Process Clause and from statutory protections surrounding marriage, creating an expectation of fair procedure before separation occurs.26
Whether the consular officer's citation of 8 U.S.C. §1182(a)(3)(B) satisfies due process by providing a facially legitimate and bona fide reason for the visa denial?27
Under Kleindienst v. Mandel, when a visa denial burdens a citizen's constitutional rights, the Government's action is valid if based on a facially legitimate and bona fide reason.28
Yes. The consular officer informed Berashk that he was inadmissible under 8 U.S.C. §1182(a)(3)(B), the terrorism bar.29 This citation is facially legitimate because Congress possesses plenary power to supply the conditions of the privilege of entry into the United States.30 The Government's decision to exclude an alien who does not satisfy a statutory condition for admissibility rests on that authority.31
The reason is bona fide because Din admits that Berashk worked for the Taliban government, providing at least a facial connection to terrorist activity under the statute.32 Din has not plausibly alleged bad faith on the part of the consular officer with sufficient particularity.33 The statute's exemption from more detailed notice requirements for terrorism-related denials further supports the conclusion that the citation satisfied any due process obligation the Government might have had.34
The citation of 8 U.S.C. §1182(a)(3)(B) satisfies due process by providing a facially legitimate and bona fide reason for the visa denial.35
Related opinions on this issue
Joined by Justice Alito
Justice Kennedy, joined by Justice Alito, concurred in the judgment on the ground that the consular officer's citation of §1182(a)(3)(B) satisfied the Mandel standard.36 He noted that the provision specifies discrete factual predicates for determining terrorism-related inadmissibility.37 Berashk's employment with the Taliban government supplied a bona fide factual basis for the exclusion.38
Congress's considered judgment in exempting terrorism bars from detailed notice requirements reinforced the constitutional adequacy of the explanation given.39 This approach avoids judicial second-guessing of consular decisions in sensitive national security areas while still requiring a statutory anchor for the denial.40
Joined by Justices Ginsburg, Sotomayor, And Kagan
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented on the ground that the citation of §1182(a)(3)(B) was not adequate.41 The provision encompasses dozens of subsections covering a vast range of conduct without specifying any factual basis.42 The generality of the notice prevented Din from assessing the decision, submitting responsive evidence, or understanding available defenses.43
National security concerns do not justify dispensing with a reasoned explanation without demonstrating why less restrictive alternatives are unavailable.44 A statement of reasons is essential to allow the affected citizen to respond effectively or seek reconsideration.45
Whether historical practice and tradition support recognition of a fundamental liberty interest in spousal immigration that would require additional procedural protections?46
Before conferring constitutional status on a previously unrecognized liberty interest, the Court requires a careful description of the asserted interest and a demonstration that it is objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty.47
No. Although Congress has shown concern for family unity in immigration law, this has been a matter of legislative grace rather than fundamental right.48 The Expatriation Act of 1907 provided that any American woman who marries a foreigner shall take the nationality of her husband.49 Early quota laws omitted fiances and husbands from preferred status.50 These regulations erected serious impediments to bringing a spouse into the United States from the outset of federal immigration legislation.51
This all-too-recent practice repudiates any contention that Din's asserted liberty interest in spousal admission is deeply rooted in the Nation's history and tradition.52 The Court has consistently recognized that distinctions in immigration policy are policy questions entrusted exclusively to the political branches, with no judicial authority to substitute political judgment for that of Congress.53
Historical practice and tradition do not support recognition of a fundamental liberty interest in spousal immigration that would require additional procedural protections.54
Related opinions on this issue
Joined by Justice Alito
Justice Kennedy, joined by Justice Alito, concurred in the judgment without addressing the existence of the liberty interest.55 He instead resolved the case on the adequacy of the process provided under Mandel.56 Kennedy stressed that respect for the political branches' broad power over immigration extends to determinations of how much information the Government must disclose about a consular officer's denial.57
This respects congressional judgments about notice in terrorism-related cases and avoids requiring courts to balance citizen interests against executive discretion in national security matters.58
Joined by Justices Ginsburg, Sotomayor, And Kagan
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented on the ground that the liberty interest in spouses living together is sufficiently important to flow implicitly from the design of the Due Process Clause.59 The interest is surrounded by legal protections creating an expectation of fair procedure.60 Breyer rejected the view that only unequivocal statutory entitlements trigger procedural protection.61
He concluded that the Constitution requires at least a statement of reasons for the visa denial to prevent arbitrary governmental separation of married couples.62