Friday, February 20, 2015

Dugdale Has It Wrong About Kerry v. Din

In his post on our blog this week, Timothy Dugdale advises Justice Kennedy to rule against Fauzia Din, a U.S. citizen, whose case is before the Supreme Court next week. In my view, Dugdale has it wrong and his blog post also is misleading.

Din’s husband has been denied an immigrant visa. No one knows why. The only information provided by consular officials is that the visa had been denied under 8 U.S.C. § 1182(a)(3)(B), a provision that lists a wide variety of conduct that renders an alien inadmissible due to “terrorist activities.” Officials refused to “provide a detailed explanation of the reasons for the denial.” Yet, Dugdale concludes from these facts that a consular official “thought the husband might be caught up with terrorists.” Actually, we don’t know that. That has not been alleged by the government, whose position is that no explanation is due. So in fact, the issue is whether the lack of factual explanation for the Embassy’s decision violates due process. For me, the answer is a clear yes. That’s the least that due process requires as a protection against arbitrary government action. A government that is allowed to act without explanation would be free to act arbitrarily, ignoring the constraints that the legislature has imposed or that the facts may dictate.

Dugdale says that the question before the Supreme Court is “should the consular official be compelled to detail why he refused the visa.” In fact, that is not the question before the Supreme Court. Neither the Ninth Circuit nor Din are asking for a detailed explanation. They acknowledge a deferential standard of reviewing consular decisions. However, at least some evidence or factual basis must be required. Instead, no evidence nor facts to deny the visa were presented or alleged in this case.

Dugdale’s advice to Kennedy is largely based on the conclusion that Din’s husband is seeking “initial admittance to the U.S. [and judicial review should be limited to] petitioners who have been previously admitted to the U.S. and can prove either substantial connections to the U.S.” Dugdale forgets who the parties are in the case. Din is a U.S. citizen. Her marital rights are being arbitrarily violated. And besides, I’d say that her husband does have “substantial connections to the U.S.” – his wife.

Reasonable people may differ over how the Supreme Court should rule in Kerry v. Din, but let’s keep the facts straight.


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I wish this woman success and the Ninth's ruling is affirmed. I was thinking out loud (and perhaps through my hat) about what should be the standard for review and who should have standing to seek review. Not all visa denials are created equal. Nor are all petitioners. Family-based immigration is important. Reliable sources of credible information are important. I hope the court addresses them fairly and fully. But I also hope that the court revisits Knauff vis-a-vis Plasencia. Indeed, how much due process is due whom?

Posted by: Timothy Dugdale | Feb 20, 2015 3:51:56 PM

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