Monday, May 27, 2013

Review of Consular Visa Denial is Permitted

From Bob Egelko of the SF Chronicle:

A federal appeals court revived a challenge by a Bay Area woman Thursday to the denial of a U.S. visa to her Afghan husband, who was told he was being excluded under a terrorism law but wasn't told what he had allegedly done to promote terrorism.

While courts have limited power to review consular decisions like the denial of a visa, the government must provide some facts to support its decision and can't merely recite the law it relied on, said the Ninth U.S. Circuit Court of Appeals in San Francisco in a 2-1 ruling.

The ruling allows Fauzia Din of Fremont to renew her effort to gain admission for her husband, Kanishka Berashk, described by the court as a low-level clerk for the Afghan government.

Berashk has been a government clerk since 1992, including the period from 1996 to 2001 when the Taliban controlled the government. Din, who has known him since childhood, fled Afghanistan during that time but returned in 2006 to marry Berashk, said her lawyer, Heidi Larson Howell. She is now a U.S. citizen.

After Din applied for a visa for her husband, a U.S. consular official interviewed him in Pakistan in September 2008 and told him he should expect to receive the visa in two to six weeks, her suit said. Instead, he was notified by mail in June 2009 that his visa had been denied under a law that bars entry because of "terrorist activities."

Din said she visited the U.S. embassies in Afghanistan and Pakistan but got no explanation of the denial. Her suit, which denied that Berashk was involved in terrorism, was dismissed by a federal judge, who said courts have no power to review such decisions.

But the appeals court said the law requires the government to give a "facially legitimate and bona fide reason" for denying a visa, a standard that is modest but not entirely toothless. Read more.

The case is Din v. Kerry.


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