Monday, June 15, 2015
This is a big day for immigration in the U.S. Supreme Court. Besides Mata v. Holder, the Court issued a ruling in the much-awaited Kerry v. Din case today. Here is my analysis of the oral argument in the case.
Justice Scalia announced the judgment of the Court and delivered an opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kennedy filed an opinion concurring in the judgment, in which Justice Alito joined. The plurality concluded that the U.S. government did not deprive Din, the U.S. citizen wife of a visa applicant from Afghanistan, of any constitutional right entitling her to due process of law.
Justice Kennedy, joined by Justice Alito, concurred in the judgment, concluding that there is no need to decide whether Din has a protected liberty interest, because, even assuming she does, the notice she received satisfied due process as stated in Kleindienst v. Mandel (1972).
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented and would have found that the U.S. citizen spouse of a visa applicant had a procedural due process right to a meaningful (factually and legally) explanation of a visa denial and that the government failed to provide such an explanation in this case.
Ruth Robson on the Constitutional Law Prof blog sees the debate over the scope of the right to marriage between Justice Scalia for the plurality and Justice Breyer in dissent as possibly foreshadowing the result in the same sex marriage case of Obergefell v. Hodges. Note that Justice Kennedy does not sign on to the plurality's limited view of the right to marriage (at least with respect to immigration).
Stay tuned for an on-line symposium on Kerry v. Din, which will start tomorrow.