Court: Spouse can't protest husband's visa denial

AP News
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Posted: Jun 15, 2015 1:54 PM

WASHINGTON (AP) — A California woman can't challenge the government's decision to deny a visa to her spouse from Afghanistan, the Supreme Court ruled Monday.

Split along ideological lines, the justices ruled 5-4 that Fauzia Din, a naturalized U.S. citizen, had no basis to protest after the visa petition she filed for her husband was rejected in 2009 due to concerns about terrorism.

Din's husband, Kanishka Berashk, had worked as a clerk in the Afghan government when it was controlled by the Taliban. But the U.S. Embassy in Pakistan offered no factual explanation for refusing his visa request, other than to cite a law giving officials broad discretion to deny visas based on "terrorist activities."

Din argued that the rejection triggered her spousal rights under the Constitution and that she deserved to know the specific reason for the denial.

But Justice Antonin Scalia, writing for three justices, said even assuming that marriage is a fundamental right, Din has not been forbidden from getting married.

"Those right-to-marry cases cannot be expanded to include the right Din argues for — the right to live in the United States with one's alien spouse," Scalia said.

Justices Anthony Kennedy and Samuel Alito agreed with the outcome, but wrote separately to say that it was not necessary to decide whether marriage is a right protected by the Constitution. He said the government satisfied due process when it notified Din's husband he was denied under the law's anti-terrorism ban.

A dissent from the court's four liberal justices said Din should have prevailed on her constitutional claims. Justice Stephen Breyer said Din had "the kind of liberty interest" that deserves protection under the Constitution.

A decades-old legal doctrine gives the government broad power to deny visas and courts have long held that noncitizens have no constitutional right to seek an explanation. Din was trying to get around that legal barrier by asserting that her marriage was affected by the decision.

A federal judge threw out Din's case, but the 9th U.S. Circuit Court of Appeals reversed, finding that Din had a right to get a fuller explanation for the visa denial based on her marital rights.

The government said visa rejections are confirmed with an advisory opinion from the State Department and all denials are reported to Congress, which provides additional oversight.

Chuck Roth, director of litigation at the National Immigrant Justice Center, called the ruling a disappointment.

"To the thousands of Americans who are waiting on visa approvals to reunite with their loved ones, this ruling sends a message that their families do not matter." Roth said.

At the end of his opinion announcement, Scalia mistakenly referred to his longtime colleague and friend, Justice Ruth Bader Ginsburg, as Justice Goldberg. After colleagues alerted Scalia to his mistake, he apologized to Ginsburg. "Sorry about that, Ruth," Scalia said.