Thursday, October 2, 2014

Supreme Court Grants Cert in Consular Nonreviewability Doctrine Case

At the behest of the Solicitor General, the U.S. Supreme Court today granted certiorari in Din v. Kerry to decide whether immigrant families separated by U.S. government officials have any right to know the basis for their forced separation. The government claims “complete discretion” over whether to allow “alien spouses (and other family members) of U.S. citizens … admission to the United States,” and sought Supreme Court review to avoid being required to provide an explanation for excluding the spouse of a U.S. citizen from entry to the United States.

The Ninth Circuit reversed the district court’s order granting the U.S. government’s motion to dismiss, on the basis of consular nonreviewability, U.S. citizen Fauzia Din’s claims for a writ of mandamus directing the government to adjudicate the visa application she filed on behalf of her husband Kanishka Berashk and for a declaratory judgment under the Administrative Procedure Act. Before their marriage, Berashk worked for the Afghan government and his work necessarily included work for the Taliban. The Embassy denied his visa under the Immigration and Nationality Act § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), which lists a wide variety of conduct that renders an alien inadmissible due to “terrorist activities.” The panel, in an opinion by Judge Murgia (and joined by District Judge Collisn, sitting by designation), concluded that the U.S. government’s citation to 8 U.S.C. § 1182(a)(3)(B), in the absence of any allegations of proscribed conduct, was not a facially legitimate reason to deny Berashk’s visa, and held that the U.S. government did not put forth a facially legitimate reason to deny it. The panel also concluded that Din had standing to seek a declaratory judgment that the visa denial notice provision under § 1182(b)(3) was unconstitutional as applied to her. Dissenting, Judge Clifton would find that the U.S. government is specifically not required to provide information about a visa denial based on concerns for national security or terrorism. He wrote that basing a denial of the application on the statute provided a lawful reason for denying it.“

Stay tuned for updates (briefs etc.) on Din v. Kerry on SCOTUSBlogReuters reports on the cert grant here.

UPDATE (10/6):  For analysis of Kerry v. Din by Gary Endelman and Cyrus D. Mehta, click here.  


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