ImmigrationProf Blog

Wednesday, June 17, 2015

Symposium on Kerry v. Din: Lip Service to Due Process in Kerry v. Din by Geoffrey Heeren

Yesterday, the ImmigrationProf Blog began its on-line symposium on the Supreme Court's decision on Monday in Kerry v. Din. Liz Keyes started off the symposium yesterday. Today, Geoffrey Heeren (Valparaiso) contributes to the dialogue:

Lip Service to Due Process in Kerry v. Din

Fortunately, Justice Scalia could not line up five votes in favor of his belief that Fauzia Din was due no legal process before being permanently separated from her husband. Professor Elizabeth Keyes has already said almost everything there is to say about his antiquarian decision, which somehow cobbles the Magna Carta, Blackstone, and sexist early twentieth century laws into a holding that Din had no constitutionally protectable interest in being with her husband in the United States.

That leaves us to look to Justice Kennedy’s concurrence for the bottom line in Kerry v. Din. Justice Kennedy claimed to take no position on whether or not Fauzia Din has a liberty interest in associating with her husband that would entitle her to due process. He said that for the purpose of argument, he assumed she did. He then went on to find that the process that she and her husband received was sufficient.

Justice Breyer ably pointed out the intellectual disingenuousness of this position. The only process that Din’s husband, Berashk, originally received was a notice that his visa had been denied pursuant to INA § 212(a), the provision that contains every basis for denying somebody admission to the United States. When he sought clarification, he received an email citing to a somewhat more specific provision, INA § 212(a)(3)(B), and noting that no further rationale—legal or factual—would be forthcoming.

INA § 212(a)(3)(B) makes immigrants inadmissible for “terrorist activities.” Trying to understand this 1072-word subsection of the code is an exercise in logical gymnastics. The provision has separate definitions for “terrorist activity,” “engage in terrorist activity,” and “terrorist organization” that describe a very large number of activities and refer back upon each other like a Möbius strip. The definition of “terrorist organization” is so broad that its language seemingly encompasses organizations that essentially engage in violence of any sort, including freedom fighters, governments, religious organizations, and common criminals. It even includes organizations that are not organized—groups of “two or more individuals, whether organized or not.” This overbroad standard seems designed to swallow so much that it consumes its own meaning, like ouroboros, the snake that eats its own tail.

In light of this, the follow-up notice sent to Berashk cannot be considered particularly informative. Justice Kennedy notes that Berashk worked for the Taliban government, implying that perhaps this was the issue. Din’s federal district court complaint noted that from 1992 to 2003 Berashk worked as a payroll clerk for the Afghan Ministry of Social Welfare, which was controlled by the Taliban for part of this time. It is true that under the exceptionally broad language of INA § 212(a)(3)(B), this alone might be enough to make him inadmissible. However, up until now the Government has taken the position that governments cannot be terrorist organizations. So if the reason the State Department denied Berashk a visa was because of his work for the Taliban, he could have made a good argument that the government was treating him differently than it has treated other visa applicants. He might have succeeded in persuading the Government to reverse an unfair decision of this sort.

Alternatively, he might have sought an “exemption” from the terrorism grounds of inadmissibility pursuant to INA § 212(d)(3)(B)—a provision that is nearly as confusing as INA § 212(a)(3)(B), but that has been invoked in many cases to grant admission to immigrants who have been ensnared in the overbroad terrorism grounds of inadmissibility.

The problem is that in order to engage in this sort of advocacy, Berashk and Din had to at a minimum know what the factual basis was for the government’s inadmissibility finding. Unfortunately, Justice Kennedy’s concurrence approves of keeping those facts secret, as if we were not dealing here with the United States Department of State but the prosecutor in Kafka’s novel, The Trial.

Justice Kennedy’s assessment that this is “due process” would be surprising if it were not for the considerable precedent for this empty standard. For example, in Yamataya v. Fischer, the Court said the appellant was entitled to due process, but found that a hearing conducted without translation in a language she didn’t understand satisfied that process. Her failure to understand English, according to the 1903 Supreme Court, was her “misfortune.”

As Dean Kevin Johnson remarked in his post, this extraordinarily deferential standard of due process review stems from the plenary power doctrine, a theory that the Supreme Court first invented to uphold the United States’ racist experiment with Chinese exclusion. In a series of cases from the late nineteenth through part of the twentieth century, the Supreme Court reiterated that whatever the executive branch does with respect to immigrant admissions is due process, as far as it was concerned.

However, the Court has occasionally also seemed to endorse more robust due process rights for immigrants, such as in Landon v. Plasencia, and Zadvydas v. Davis, dealing with lawful permanent residents in exclusion proceedings and noncitizens with removal orders in long-term post-order custody, respectively. Even in Kleindienst v. Mandel, the Court required that the government give “a facially legitimate and bona fide” reason for denying admission to a Marxist theoretician. Although the Court pays lip service to that standard in Din, the fact is that we really have no idea why the government denied Berashk a visa.