The Supreme Court recently ruled, in Kerry v. Din there is no constitutional “due process right” for the spouse of a US citizen to immigrate to America. The US citizen wife claimed the government did not provide an adequate explanation why her husband’s immigrant visa was refused and violated her constitutional right “to live in the United States with her spouse.” The Supreme Court ruled there is “no such constitutional right” for a US citizen “to live in the United States with her spouse.” Instead, this was “nothing more than a deprivation of her spouse’s freedom to immigrate into the US,” for which there is no constitutional right or protection.
In that case, Din became a naturalized US citizen in 2007, and then petitioned her husband, whom she married in 2006. When he went for his immigrant visa interview, the consul refused the visa, finding he was inadmissible (not eligible for a visa) because of “terrorist activities,” but provided no further explanation. Din sued the government, seeking a more detailed explanation for the refusal, including the facts and details behind the claim her husband engaged in terrorist activities. The Ninth Circuit Court of Appeals concluded that Din had a protected liberty interest in marriage that entitled her to judicial review of the denial of her spouse’s visa. The Supreme Court reversed, finding there was no constitutionally protected liberty interest, nor was she entitled to a more detailed explanation.
The Court pointed out her husband was a former civil servant in the Taliban regime in Afghanistan, which had been designated as a terrorist organization. One ground of inadmissibility for “terrorist activities” certainly includes violent and destructive acts. However, terrorist activities also include providing “material support” to a terrorist organization, and being a terrorist organization’s representative. (Perhaps her husband’s having worked for the Taliban government, constituted a form of “terrorist activity”.)
Din believed she was entitled to a more detailed explanation for her husband’s visa refusal. And, in not issuing his visa, the government was depriving her of the constitutional right to live in the United States with her husband. The Supreme Court ruled Din was not deprived of “life, liberty, or property” (which are the actual right listed in the Due Process clause) when the government refused her husband’s immigrant visa, and that she had no constitutional right to have that visa issued.
The Supreme Court case highlights several issues, including that consular decisions on visa issuance or refusal are, mostly, immune from court review. That is part of the doctrine of consular non-reviewability. Once a consul makes a decision, courts will ordinarily not entertain any lawsuit to overturn the consul’s decision. In addition, in refusing a visa, the consuls are not necessarily required to provide a detailed explanation for the refusal.
If you believe you (or your relative) are entitled to an immigrant visa, you may want to seek the assistance of an attorney, who can identify potential issues and address them before the date of the interview, because you may have only one shot at the visa, and if you are refused, you cannot appeal the case to the courts.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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