Sunday, February 22, 2015
The Supreme Court will hear arguments Monday in Kerry v. Din, in which the wife of a man denied a visa seeks to challenge that visa denial. The government says that it is excluding Ms. Din’s husband (Mr. Berashk) under the terrorism-related inadmissibility grounds, for something he did, or said, or supported, at some point during his life. The government refuses any further explanation (though many speculate that it may be related to his low-level work in the Afghan Ministry of Education, employment he did not renounce during the years in which the Taliban held sway in Kabul).
In the face of a legal regime which has refused to hear appeals from excluded noncitizens, some courts have adopted the commonsensical position that U.S. citizens like Ms. Din have an interest in the issuance of a visa to their spouses, and on that basis have reviewed consular decisions. The spousal standing issue is the issue most prominently presented by Din. The government argues that Ms. Din has no particular rights with regard to her husband’s visa, and thus no standing to claim anything. It says that it isn’t interfering in her marriage, that she is free to live in marital union with her husband anywhere in the world – except this, her country. The Court could decline to opine on broad consular reviewability issues entirely if it finds that Ms. Din lacks standing in the case.
But it seems likely that the Court will address consular nonreviewability, and the government is seeking a sweeping vindication of its authority to exclude whoever it wants without owing an explanation to anyone. Two prominent authorities it cites are the Supreme Court decisions in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) and Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). Those two decisions, issued at the height of the Cold War, limited the power of federal courts over noncitizens seeking entry into the United States, invoking the plenary power doctrine. In each case, the government declined to give any reasons for the exclusion of noncitizens, and in each case the Supreme Court narrowly affirmed that authority. The Solicitor General’s briefs in Din naturally rely heavily on those two cases, citing them more than a dozen times.
In light of that reliance, it’s interesting to note that the factual gaps left open by the government legal case in Mezei and Knauff were filled in by history, thanks to unusual post-decision developments. Sustained media and public attention to Mrs. Knauff and Mr. Mezei resulted in Congressional proposals and hearings, and in both cases, the Attorney General ultimately authorized actual hearings to decide whether these individuals were excludable. That act of executive grace in turn allowed a glimpse into the world of secret governmental fiat. It is a history well-told in Professor Weisselberg’s provocative piece, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei.
I hate to boil down such a fascinating piece into bullets (read for yourself and see if I’m wrong), but I took three lessons from that history, all of which have direct relevance in Din.
1. The truth is usually prosaic. The majority in Mezei alluded darkly to Mezei’s time abroad trying to get to Romania to visit his dying mother, describing his odyssey as “remain[ing] behind the Iron Curtain for 19 months.” When the government actually made its case against him, it relied chiefly on a conviction for receiving a stolen bag of flour and his implausible denial of knowledge about the “still” his wife was convicted of possessing during Prohibition. The closest the government came to communism was Mezei’s involvement with the Hungarian lodge of the International Workers Order. The IWO was regarded by some as a communist-front organization, and Mezei had been Secretary and President of the Buffalo Hungarian lodge. The Board ultimately found credible evidence that Mezei had been a communist, but made a subsidiary finding that he played only a minor role by attending meetings and distributing literature. The Attorney General paroled Mezei from immigration detention, and he resided without incident in Buffalo through his old age.
The terrorism bars sound at least as ominous as Mezei’s 19 months behind the Iron Curtain, but they usually involve prosaic (if not praiseworthy) conduct. Those bars are primarily invoked against people found to have “supported” groups that are labeled as “terrorist groups” because our laws define any use of arms against any governmental authority (no matter how awful) as terrorism. Even allies against Saddam Hussein are considered terrorist groups; the Founding Fathers would have qualified under our definition. Human Rights First wrote a powerful report explaining the terrorism bars and their (mis)application.
Whatever Mr. Berashk did in Afghanistan is unlikely to have been serious, much less a threat to this country. When the substance is eventually revealed (as it will be, some day) it may be too late for immigration law, but it will be embarrassing to our government all the same.
2. Misunderstandings persist when decisions are made in secret. Ellen Knauff was alleged to have passed secret information, including information about a decoding machine, to Czechoslovak agents when she had been working for the U.S. Army in Europe in 1948. Once she understood the charges against her, she was able to rebut them, providing evidence that her unit didn’t have access to confidential information, and that their decoding machines were not classified or secret (and had been given away for free to the Germans). Indeed, Ellen Knauff prevailed in her case: the BIA found the allegations against her unsupported and ordered her admitted to the United States for permanent residence—a finding approved by the Attorney General.
The government gets nervous discussing terrorism-bar allegations, like spying. But even the most basic explanation of the allegation is often enough to allow the noncitizen to give a convincing explanation. The amicus brief filed by NIJC and AILA in Din compared noncitizens facing terrorism allegations while within the U.S. – where our hearing process gives noncitizens some explanation of the allegations and a chance to respond – and those people at consulates abroad. It’s not that the government shared classified information with noncitizens inside the U.S.; it’s that the government said enough to allow the person a chance to respond. The “terrorism bar” problem can be as simple as a mistranslated document, or a misunderstanding about the political history of a far-off land. It seems obvious to say it, but Knauff’s case is a reminder that one of the glories of our legal process is its ability to ferret out truth and to give two sides the opportunity to engage with each other. Of course, this can’t happen when even the most basic explanations of the issue are kept secret.
3. Secret processes invite unfairness and abuse. Mezei’s affiliation with the IWO triggered his problems, but it turned out that there were also secret allegations made against him by a former-communist-turned-government-witness. A man named Manning Johnson (who testified against him) was one of his accusers. It eventually came out that he had accused numerous people of being communists based on lies. Perjury investigations were eventually initiated against Manning because his testimony in other cases was provably false; by then Mezei had been detained for over four years.
It’s not likely that many consular cases involve outright perjury; but Manning Johnson is unique primarily in that his means were outright criminal and he got caught. His underlying motivations – wishing to perpetuate the government’s need for his services, and perhaps a desire to achieve prominence and distinction – are not particularly rare. Secret processes invite this sort of behavior precisely because there is no check upon it. In any bureaucratic system, it may sometimes be easier not to correct a mistake than to let it persist. A decision to countenance secret process is a decision to countenance occasional (or more-than-occasional) cases of abuse or unfairness and to leave noncitizens and their families without remedy.
Some supporters of plenary power view the post-decisional history of Knauff and Mezei as vindicating the courts’ decision to permit exclusion without judicial review. It seems closer to the truth to say that Congress and the Executive salvaged justice for these individuals when the Supreme Court’s unfortunate decisions failed to do so. It remains to be seen whether the Court in Din will do justice to Ms. Din and her family. If it again fails to do so, I wish I had more optimism that the American public and our legal profession will again rally to achieve justice without the Court’s help. One would hope that the passage of 50 years would leave us a better and more just country, one which is too good to leave a couple separated forever on the anonymous say-so of a government official.