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Love And Marriage . . . Just Don’t Plan On Living In The United States

By Jeffrey S. Bell

The recent Supreme Court decision in Kerry v. Din places limits on immigrant families’ ability to live together in the United States.  In the Din case, a US citizen, petitioned to have her husband immigrate to the United States from his home in Afghanistan.  The husband’s visa application was denied by the US Consulate in Afghanistan on the basis that he had engaged in terrorist activities, but without providing the husband or Din any details.

The Din decision provides another significant hurdle when seeking review of visa decisions made by US Consular officials.  The Court found it legally sufficient that the Consulate denied the husband’s visa application by merely citing to the terrorism bar, but without providing any underlying facts.

Din filed an action in federal district court in California, claiming that she was denied due process when her husband’s visa application was rejected without a more detailed explanation regarding his alleged terror activities.  Ultimately, the Supreme Court determined the visa denial neither violated Din’s due process rights nor her implied fundamental liberty rights.

Writing for the plurality, Justice Scalia found that there is not a constitutional right for a US citizen to live in the US with his or her spouse.  Rather, Justice Scalia reasoned, the denial of the visa application was nothing more than a deprivation of her husband’s ability to immigrate to the US.  And, according to Justice Scalia, no process is due if one is not deprived of life, liberty, or property under the Fifth Amendment. Moreover, Justice Scalia did not find an implied fundamental right in the unity and happiness of the immigrant family that created a due process right for Din.  In short, the Court found that neither Din’s right to live with her husband nor her own right to live in the US was implicated, and as a result her constitutional claims of violation of due process failed.

The Din decision certainly makes it easier for US Consulates to exclude foreign nationals for claimed national security reasons.  Neither the foreign national nor his or her family has a viable mechanism to appeal a visa denial.  While national security is paramount, the potential exists for families to be kept apart based on faulty or incomplete information that is unchallengeable.  Without the protection of due process, it will take an act of Congress to provide for some form of review of this type of Consular decision making.

Perhaps not all is lost for Din and her husband.  Justice Scalia pointed out that the couple is free to live together anywhere in the world where both are permitted to reside.