Monday, February 9, 2015

Timothy Dugdale: Why the Supreme Court Should Revisit the Doctrine of Consular Nonreviewability


Two weeks from today, the Supreme Court will be hearing oral argument in Kerry v. Din, a case involving application of the doctrine of consular nonreviewability.  ImmigrationProf has posted a number of items about the case.  See here, here, here, here.   Timothy Dugdale in this exclusive guest post considers the issues raised by the case:

Shortly after the fall of the Berlin Wall, books began appearing with titles like, "The Short Century 1914-1989" and "The End of History." After 9/11, it became clear that it would be wise to mothball the kind of dreaming larded through "The End of History" and instead crack the spine of Benjamin Barber's very prescient and gimlet-eyed work, "Jihad vs. McWorld."

In two weeks, the Supreme Court is going to hear oral arguments in Kerry v. Din. It is a case that strikes at the heart of America's millennial heartbreak. America was a country that thought it had won the gold medal as history crossed a profound finish line in 1989, only to know by noon on September 11, 2001, the medal was made of tin. The technocratic neo-liberalism of McWorld may have vanquished the commies but other discontents were ready with projects of mayhem and menace.  America would have to go out into the world - specifically Afghanistan and Iraq - and root out the irritants. And keep the irritants from infiltrating America.

In 2006, Ms. Din, a naturalized American, filed a petition for her betrothed who lived in Kabul. USCIS approved the petition and Din went with her gent to the US Embassy in Islamabad, Pakistan to secure the visa. During the interview, the husband discussed how he had been a low-level functionary in the Taliban government. In 2009, a consular official at the embassy denied the visa petition, citing 8 USC 1182(a)(3)(B) for terrorist activities. Din was having none of it. She filed in federal district court asserting three claims: a claim for a writ of mandamus directing government officials “to adjudicate properly [the] visa application not on the basis of any bad faith or illegitimate reasons”; a claim for a declaratory judgment that 8 U.S.C. 1182(b) is unconstitutional vis-à-vis a U.S. citizen as a violation of procedural due process; and a claim that petitioners had violated the Administrative Procedure Act by arbitrarily misconstruing and misapplying 8 U.S.C. 1182(a)(3)(B).

Eventually the case reached the Ninth Circuit, a circuit that has repeatedly championed the INA as an ur-text of family unity. The judges ruled in favor of Din saying she had a protected liberty interest in her marriage. The consular official was obligated, even though the denial may have been based on one of the security-based exemptions located in a subset of the statute, to tell her why the husband was deemed inadmissible and denied a visa. The judges played it cagey and focused on did the consular official read the statute properly rather than getting to the root of the inadmissibility.

Amongst the amici briefs filed in this case is a very interesting one from a group of retired consular officers. [For discussion and analysis of the brief, see Professor Amanda Frost's post here.].  They freely admit that consular officers make mistakes all the time. Why? Because the officers either don't have access to reliable information about a petitioner or they receive erroneous information about the petitioner through a vast network of interconnected databases, many of them put in place during the War on Terror and have questionable maintenance.

The government has already lost big in Ibrahim v. DNS (ND California 2014), a case concerning a Muslim university student who erroneously ended up on a terrorist watch list because a US  immigration functionary filled out the wrong form. She flew home to attend a conference in Malaysia and was not allowed to return to the United States to complete her doctorate at Stanford. How many other thousands of bogus no-fly and watch list listings are out there? Latif v. Holder (D Oregon 2014) is pretty damning.

It's not just consular decisions that need working on. One of the key expedited removal cases, Li v. Eddy (Ninth Circuit 2001, 2003), involved a Chinese businesswoman arriving in the US with a valid L-1 visa. The local INS charged her with fraud, based on a previous denial that loomed in their database. 1252(e)(5) prevented the Ninth from even considering if she was admissible. Lack of reliable data netted this poor woman a five year ban from the United States, a ban that is really a permanent ban under INA 212(a)(6)© (i).

The Supreme Court should treat Kerry v. Din not as an individual case of a US citizen securing a visa for her alien spouse but rather as a historic reassessment of judicial review of consular decisions. Has America's war on terror created an inadvertent war on free trade, including the free movement of valuable human capital? If the country wants to attract and keep the best and brightest of the world, it has to make sure those people can get into the country, stay in the country and keep coming back to the country that will be their home.

In its Din brief, the government relies on its usual Cold War warhorses of plenary power, Knauff, Mezei and Mandel, to argue that Congress has final say in who can come into the United States. Din could enjoy marital bliss with her alien hubby anywhere but the United States because Congress determines who is an alien and aliens have no due process rights. In light of Kennedy's reasoning in Boumediene and his concurrence in Verdugo, this kind of old school natavism is unacceptable. Family based immigration is one thing; business is another. America now has many trading partners whose citizens enter the US on treaty trader visas and establish meaningful connections to the US. They may be aliens but they are resident aliens. They should not have to leave the US to renew their trading visas. If they must, they should have the safeguard of judicial review of consular decisions, just as they should have the safeguard of full review of border agent decisions. Overhaul of consular reviewability and the expedited removal system should go hand-in-hand.

Timothy Dugdale, Ph.D.
Atomic Quill Media

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