Consular Nonreviewability

Consular Nonreviewability in 2013

United States views on international law [1] in relation to Consular Nonreviewability: On September 9, 2013, the United States filed a petition for rehearing en banc in the U.S. Court of Appeals for the Ninth Circuit in Din v. Kerry, No. 10-16772. Plaintiff, Fauzia Din, a U.S. citizen, brought suit in federal court after the denial of a visa application filed by her husband, an Afghan citizen. The district court dismissed plaintiff's complaint. A panel of the U.S. Court of Appeals for the Ninth Circuit reversed, applying the limited judicial review of visa decisions permitted under Mandel v. Kliendienst, 408 U.S. 753 (1972), as extended in the Ninth Circuit by Bustamonte v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) (extending standing to invoke Mandel to U.S. citizen spouses of visa applicants). The Ninth Circuit in Din held that the government's identification of a statutory ground for a visa refusal based on terrorism-related activity did not constitute a “facially legitimate” reason necessary to satisfy Mandel and remanded to the district court for further proceedings. Excerpts (with footnotes and citations to the record omitted) follow from the U.S. brief in support of rehearing en banc. The brief in its entirety is available at (Secretary of State website) state.gov/s/l/c8183.htm. On December 24, 2013, the petition for rehearing was denied.

Some Aspects of Consular Nonreviewability

2. Plaintiff Fauzia Din is a United States citizen who, in 2006, married Kanishka Berashk, an Afghan citizen who resides in Afghanistan. Berashk has worked for the Afghan Ministry of Social Welfare since 1992, including during the period when the Taliban controlled the country. Shortly after Din and Berashk were married, Din filed an immigrant visa petition for Berashk. The United States Citizenship and Immigration Services notified Din that it approved the petition. But after Berashk's interview at the United States Embassy in Islamabad, a consular officer denied Berashk's visa application, citing 8 U.S.C. § 1182(a)(3)(B), a provision making an alien inadmissible on terrorism-related grounds. Din brought suit, seeking review of the visa denial and alleging that the government's action impaired her constitutionally protected interest in her marriage to Berashk. The district court granted the government's motion to dismiss, holding that the government's identification of 8 U.S.C. § 1182(a)(3)(B) was a “facially legitimate” reason for the denial and that Din had not established that the reason was not “bona fide.” The panel majority reversed. Din v. Kerry, 718 F.3d 856 (9th Cir. 2013). The Court determined that it had authority to review the consular officer's visa denial because, in a prior decision, the Court “recognized that a citizen has a protected liberty interest in marriage that entitles the citizen to review of a spouse's visa.” Id. at 860; see Bustamante, 531 F.3d at 1062. The Court held that the government's identification of a “properly construed” statutory ground for exclusion combined with a consular officer's assurance that he or she had reason to believe that the ground applies to the visa applicant would be a facially legitimate reason for the denial. Din, 718 F.3d at 861. But the Court held that the government failed to satisfy that standard in this case because it cited only the general terrorism exclusion provision and failed to make any specific allegation that Berashk had engaged in behavior coming within a specific provision. Id. at 863.1

Developments

ARGUMENT 1. En banc review is merited because the panel majority's threshold decision to except this case from the doctrine of consular nonreviewability conflicts with precedent from within and without the Ninth Circuit and improperly encroaches on Congress's plenary authority over the admission of aliens.

Details

…[O]other courts of appeal have held that a United States citizen has no constitutional right to have an alien spouse reside with him or her in the United States. See, e.g., Bangura v. Hansen, 434 F.3d 487, 495-96 (6th Cir. 2006); Garcia v. Boldin, 691 F.2d 1172, 1183 (5th Cir. 1982); Burrafato v. U.S. Dep't of State, 523 F.2d 554, 555 (2d Cir. 1975); Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970); Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958); see also Flores, 507 U.S. at 303 (“The mere novelty of such a claim is reason enough to doubt that 'substantive due process' sustains it.”). …[T]he visa denial in this case in no way interfered with Din's decision to marry Berashk; that marriage occurred before Berashk had even applied for the visa. Nor does the visa decision nullify the marriage or deprive Din and Berashk the legal benefits of marriage, or prevent them from living together anywhere other than in the United States. Cf. Swartz, 254 F.2d at 339 (“Certainly deportation would put burdens upon the marriage. It would impose upon the wife the choice of living abroad with her husband or living in this country without him. But deportation would not in any way destroy the legal union which the marriage created.”). Thus, the panel majority erred in concluding that the visa denial implicated Din's liberty interest in the freedom of choice in marriage. More fundamentally, Din's general liberty interest in marriage cannot properly be the basis for judicial review of Berashk's visa denial when the more specific interest—a United States citizen's interest in having an alien spouse join her in the United States—is not. See Glucksberg, 521 U.S. at 721-22.

The panel majority's threshold decision to engage in judicial review of a consular officer's visa determination is thus premised on an incorrect determination that the decision implicated Din's constitutionally protected-interest, whether that interest is in the freedom of choice in marriage or in the presence of an alien spouse in the United States. In overriding the doctrine of consular nonreviewability, the panel majority improperly encroached on Congress's plenary authority to determine the conditions for the admission of aliens into the United States. That error constitutes a significant violation of the separation of powers and is serious enough to merit en banc reconsideration. 2. The panel majority's application of limited judicial review was equally flawed. The panel majority held that, to provide a “facially legitimate” reason for a visa denial, the government must identify a statutory “ground narrow enough to allow [the court] to determine that it has been 'properly construed.' ” Din, 718 F.3d at 862. The government also must allege facts sufficient for the court to determine whether they “constitute a ground for exclusion under the statute.” Id. at 863. In so holding, the panel majority overstepped the role assigned to the courts in immigration and national security matters. See Mezei, 345 U.S. at 212 (“[B]ecause the action of the executive officer under such authority is final and conclusive, the [Executive Branch] cannot be compelled to disclose the evidence underlying [its] determinations in an exclusion case.”).

The Supreme Court has recognized that the Constitution assigns to the political branches the authority for protecting the national security, thus requiring judicial deference to Congress and the Executive's national security judgments. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (noting the “heightened deference to the judgments of the political branches with respect to matters of national security”); Department of Navy v. Egan, 484 U.S. 518, 530 (1988) (“[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”). The Supreme Court also has recognized a direct connection between Congress's plenary authority over the admission of aliens and its authority over national security. See Galvan v. Press, 374 U.S. 522, 530 (1954) (“The power of Congress over the admission of aliens and their right to remain is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly our foreign relations and the national security.”). Typically, when a consular officer denies a visa application because the officer has determined that the alien is inadmissible on a statutory ground, Congress requires the officer to provide the alien with written notice that “states the determination” and that “lists the specific provision or provisions of law under which the alien is inadmissible.” 8 U.S.C. § 1182(b)(1). Congress has, however, made the notice requirement inapplicable to visa denials made on terrorism-related grounds. 8 U.S.C. § 1182(b)(3). Although neither the statute nor the legislative history explain why Congress enacted that notice exception, that exception unambiguously furthers the ability of the Executive Branch to protect the national security and to conduct terrorism-related investigations by avoiding the disclosure of potentially sensitive information when denying a visa to an alien who a consular officer has determined is inadmissible, based on terrorism-related grounds.

Consular Nonreviewability in 2013 (Continuation)

United States views on international law [1] in relation to Consular Nonreviewability: In addition, information supporting a visa denial pursuant to 8 U.S.C. § 1182(a)(3)(B) often is classified, would jeopardize public safety if revealed, is permitted for only limited use by another agency, or is related to an ongoing investigation. Providing such information to an individual visa applicant, even if possible to do so in an unclassified form, may reveal details about national security investigations and operations. For that reason, if courts were to require the Department of State to identify factual allegations supporting a consular officer's visa denial on national security grounds, other agencies would be less willing to share intelligence or other sensitive information with consular officers, making it more difficult for such officers to exclude aliens who could be threats to the national security. It is for such reasons that Congress has given consular officers discretion whether to even notify an alien the statutory ground for a decision that is based on terrorism-related grounds. 8 U.S.C. §1182(b)(3).2.

Resources

Notes

Consular Nonreviewability in the Digest of United States Practice in International Law

Resources

Notes

Consular Nonreviewability in Digest of United States Practice in International Law