Thursday, February 19, 2015

Timothy Dugdale: Kerry v. Din, Part II

Next week, the Supreme Court will hear oral arguments in Kerry v. Din, a case involving the doctrine of consular nonreviewability.  Below is Timothy Dugdale's second guest post on the case.  Here is the first:


Imagine you're Justice Anthony Kennedy. You're the guy who pours good California plonk into the glass of Ruth Ginsburg, enough that the poor woman grabs a snooze while Obama is holding forth on the state of the nation.

You're Anthony Kennedy. You're the guy who wrote Boumediene and expanded upon the functionalism approach to alien rights that you initiated in your concurrence in Verdugo.  So now you're sitting there listening to the oral argument in Kerry v. Din. A good lady, a naturalized American, wants to bring her gent over from Afghanistan where he toiled as a functionary in a series of Afghan governments including the Taliban's ignoble regime. Some consular official in Pakistan spoiled the party because he thought the husband might be caught up with terrorists.

The question is: should the consular official be compelled to detail why he refused the visa and does the court have jurisdiction to compel him to do so because a US citizen wants to know?

If I were Kennedy, I'd be less than enthusiastic about answering in the affirmative. The beneficiary of Din's petition is an Afghani seeking initial admittance to the US. He is clearly in the roundhouse of Knauff, Frankfurter's and Jackson's eloquent and humane dissent notwithstanding. The case I'd want to hear about instead is a relative antique - Bruno v. Albright (DC Circuit 1999). Savaaedra Bruno had been in the US on a legitimate L-1 visa. A month before it was due for renewal, he left the country to renew it at the US Consulate in Panama. He was told the visa would be denied based on classified information about drug trafficking from the US Consulate in Bolivia. Bruno hustled back to the US and was admitted after a brief detention. Subsequently, his B1/B2 visa, the only legitimate visa he had left, was revoked and he was deported.

Bruno filed for a waiver of inadmissibility under INA 212 (d)(3) (see Matter of Hranka) which was eventually denied by the INS. Then he filed a petition in district court trying to find out why he was denied a renewed L-1, why his B1/B2 was pulled and why the waiver of inadmissibility denied. The district court refused to take subject matter jurisdiction over the denial of the L-1 and the revocation of B-1/B-2. Consular non-reviewability, you see.

If I were Kennedy, I would be thinking that if the court is going to grant any kind of judicial review of consular decisions, it would be to petitioners who have been previously admitted to the US and can prove either substantial connections to the US or that the US has some sort extraterrestrial control over them. In other words, judicial review of consular decisions should be rooted in the precedent of Plasencia not Knauff. A petitioner, the actual beneficiary of the visa,  should have Article III "case or controversy" standing. If you've been lawfully admitted, even as a long-time non-resident, you should be able to know why you can't get back into the United States. Moreover, why the devil should you have to leave the US to renew a perfectly good visa and why aren't you properly protected when you're compelled to do so? Judicial review of consular decisions in such cases should be guaranteed.

The State Department is now using consulates like the one in Toronto near treaty trader border cities - Detroit and Buffalo for example - to process those visas. Imagine you have an approved immigrant  I-130 from the USCIS that is ripening while you're on an E-1. You go to Toronto to renew your E-1 and the consular official denies the renewal because he accuses you of "dual intent" even though INA 214 says you can enter and live in the US on a non-resident visa until the I-130 ripens. Conversely, imagine your visa is approved at the consulate in Toronto and you return to the border to re-enter. You've been in the US for over a decade on your E-1 but the border guards treat you like an arriving alien and accuse you of "dual intent." They issue an expedited removal. 

But wait there's more. If I were Kennedy, I'd be taking a very close look at Kabenga v. Holder (SD New York 2015). The judge in that case wisely decided that 1252(e)(5) does not bar judicial inquiry into whether the petitioner was actually admissible, despite the border agent's decision on the matter. She made of pointing out the guy had been living legally in the US for thirty years, twenty of which was as a permanent resident. As I've said before, the expedited removal judicial bar and consular non-reviewability are kissing inbred cousins of the same nativist kin. Judicial review of admissibility should be rooted in a functional approach, guided by Boumediene and Verdugo (including, I believe, by Brennan's dissent).

Kennedy may be wanting to nip into his cellar and pour himself a glass of plonk after oral arguments in Din v Kerry.
It's a tough case that demands a narrow but just decision. And not necessarily the decision that all the amici advocate.

Timothy Dugdale, Ph.D.
Atomic Quill Media

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Posted by: Immigration Prof | Feb 20, 2015 11:21:40 AM

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