New York Times
Justices
Weigh Denial of Visa to Husband of U.S. Citizen
By
Adam Liptak, 24 February
WASHINGTON
— The Supreme
Court on Monday did
not seem inclined to second-guess the denial of a visa on national security
grounds to the Afghan husband of an American woman.
The
State Department said in 2009 that it had turned down the husband, Kanishka Berashk, because he had
been involved in terrorist activities, but it would not elaborate.
There
was little question that Mr. Berashk was powerless to
pursue the matter in American courts under a longstanding legal doctrine called
“consular nonreviewability.” But his wife, Fauzia Din, a naturalized United States citizen, said the
visa denial interfered with her fundamental right to marriage. A federal
appeals court in California agreed, ruling that
she was entitled to “a facially legitimate reason” for the denial.
At
Monday’s argument, Justice Anthony M. Kennedy said he was uncomfortable with
requiring the government to provide even minimal information, saying it “might
give some indication as to our intelligence-gathering capability and the
information that we have.”
Edwin
S. Kneedler, a lawyer for the federal government,
took a hard line on both of the basic questions in the case. Visa denials are
never subject to court review, he said. He added that Ms. Din’s rights as a
spouse are in any event too remote to allow her to sue.
Justice
Sonia Sotomayor probed the first point, reminding Mr. Kneedler
that the watch lists compiled since the Sept. 11 terrorist attacks include
common names and errors.
“You’re
telling us that there’s no remedy whatsoever for the alien to come in and try
to show someone that he’s not the guy who’s the terrorist,” she said.
Mr.
Kneedler responded that the State Department was
careful and that the courts had no role to play.
Justice
Stephen G. Breyer pursued the point. What if, he said, an American wife had
“undeniable proof” that her husband’s visa had been denied “because the
consular official believes that husbands and wives should live separately, or
for racial reasons, or for First Amendment reasons?”
After
Mr. Kneedler gave the same answer, Justice Antonin
Scalia asked about what he called “an equally absurd hypothetical.” He listed the
same reasons but added that “the man is not married and there is no wife who
comes in and can make these points.”
That
caused the argument to pivot to the second question, of whether Ms. Din can
press claims her husband cannot.
Justice
Breyer, responding to Justice Scalia, said the right to be married must count
for something. “The result of this,” he said, “is that an American citizen
either must live separately from her spouse forever or must give up her right
as an American to live in her native land.”
But
Mr. Kneedler said allowing the American spouses of
foreigners to press their claims in court would be dangerous. “It would be a
license for circumvention” of the usual approach, he said.
Several
justices seemed inclined to agree, saying a wife cannot contest a husband’s
criminal conviction because it would interfere with her marriage, even if both
spouses are Americans.
Justice
Ruth Bader Ginsburg added that prisoners had the right to marry but not the
right to live with their spouses.
Chief
Justice John G. Roberts Jr. asked Ms. Din’s lawyer, Mark E. Haddad, which other
American family members could challenge visa denials of foreign relatives,
suggesting that a decision for his client would result in many lawsuits. Mr.
Haddad said parents, children who are minors and
siblings might be entitled to file such suits.
In
1972, the Supreme
Court did allow a
group of American professors to contest the denial of a visa to a Marxist
scholar they wanted to meet, citing the First Amendment. Justice Elena Kagan
said the decision had not opened litigation floodgates and suggested that a
ruling for Ms. Din in Monday’s case, Kerry v. Din, No.13-1402, might have a
similarly modest effect.
But
Justice Scalia said spouses were more tenacious than scholars. “Maybe there are
more incentivized spouses than there are incentivized law professors,” he said.
“Don’t you think that’s possible?”
Justice
Kagan, a former dean of Harvard Law School, said she was not sure. “Law
professors,” she said, “are very, very insistent.”