The Doctrine of Consular Nonreviewability Lives-On

On June 15, 2015, the US Supreme Court published a plurality opinion in Kerry v. Din which reviewed the doctrine of consular nonreviewability. Kerry v. Din, No. 13-1402, slip op. (June 15, 2015). In particular, the respondent, Fauzia Din, argued that she, a US citizen, was owed a more detailed explanation as to why her husband’s Immigrant Visa application was denied other than a summary reference to the relevant statute under which the consulate refused his Immigrant Visa. The plurality opinions essentially upheld the doctrine on different grounds and denied that Ms. Din had any right to a more detailed explanation of the denial.

As a plurality opinion, Din holds no more weight in the matter of consular nonreviewability than the authoritative opinions of each group of justices. It leaves the question of consular nonreviewability open to further interpretation. However, the majority of the opinions in Din preserve the Court’s decision in Kleindienst v. Mandel, a majority decision published in 1972. Kleindienst v. Mandel, 92 S.Ct. 2576 (1972). Justice Kennedy noted in his “view . . . that, even assuming [the petitioner had a protected liberty interest], the notice [the petitioner] received regarding her husband’s visa denial satisfied due process.” Justice Scalia’s opinion echoed the same conclusion as well as that Ms. Din had not been “deprived of ‘life, liberty, or property’” in the government’s denial of her husband’s visa application and “there is no process due to her under the Constitution.”

Justice Kennedy’s opinion preserved the Court’s decision in Kleindienst v Mandel that the Executive has “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden,” and “enforced exclusively through executive officers, without judicial intervention, [which] is settled by [the Court’s] previous adjudications.” In Kleindienst, the respondents, all US Citizens, argued that the summary denial of a nonimmigrant visa for a lecturer’s visit to the United States was a violation of the First Amendment right to free speech and association. In particular, the respondents demanded a reason upon which a discretionary waiver of a ground of inadmissibility had been denied. The Court’s decision in Kleindienst held that “when the Executive exercises [it’s plenary] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing” constitutional interests. Justice Kennedy added in his opinion that “[a]bscent an affirmative showing of bad faith on the part of the consular officer,” an applicant is not due an explanation of the “facts underlying [the] determination.”

In his opinion, Justice Scalia focused more on whether Ms. Din had a fundamental procedural right to due process of the law in the matter of her the government’s denial of her husband’s Immigrant Visa application. He summarizes that “There is no such constitutional right.” Ms. Din has not been prohibited from marrying her husband nor has the government inhibited her freedom to live with her husband “anywhere in the world that both individuals are permitted to reside.” On this point the justices appear to agree. In contrast, according to Justice Scalia, the “dissent [Justice Breyer et al] supplements the fundamental right to marriage with a fundamental right to live in the United States in order to find an affected liberty interest.” In his conclusion, Justice Scalia simply states that the government has denied the applicant’s visa application because the applicant “engaged in terrorist activities within the meaning of the Immigration and Nationality Act,” and the government has no further obligation to Ms. Din in the matter: “To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required.”

The dissenting opinion, written by Justice Breyer, holds that Ms. Din not only had an “implicit” due process right, but also “an expectation” based on nonconstitutional law to not be deprived of her “liberty without fair procedures.” The institution of marriage and the right to live with ones spouse are implicit and central to “most individuals ‘orderly pursuit of happiness,’” and therefore warrants due process. In individual adjudications, “a fundamental element of due process” is “notice” or a “kind of statement” to “understand why the government acted as it did” and provides the applicant, “who suffered a ‘serious loss,’ a fair ‘opportunity to meet’ ‘the case’ that has produced separation from her husband” such as “an appeal, internal agency review, or . . . an opportunity to submit additional evidence and obtain reconsideration.”