Officials Must Explain ‘Terrorism’ Visa Denial

(CN) - The government cannot deny a visa on "terrorism grounds" without further explanation, the 9th Circuit ruled Thursday, reinstating the claims of an Afghan man's wife.

In a split ruling, the federal appeals court in San Francisco said the government lacked "a facially legitimate reason" for denying a visa to Afghan citizen Kanishka Berashk.

The decision overturns a federal judge's dismissal of the case, brought by Berashk's wife, U.S. citizen Fauzia Din.

The couple married in September 2006, and a month later Din filed a petition for a visa on her husband's behalf. Government officials told her the petition was approved and arranged to interview Berashk at the embassy in Islamabad, Pakistan.

Berashk answered the questions truthfully, according to the ruling, including inquiries about his work as a payroll clerk for the Afghan Ministry of Social Welfare during the Taliban regime.

Berashk was told to expect his visa in two to six weeks, but Din said they had to call the embassy several times before learning, almost nine months later, that the visa had been turned down.

The government cited only a broad provision of the Immigration and Nationality Act that excludes applicants for a variety of terrorism-related reasons. The denial letter stated that there was "no possibility of a waiver of this ineligibility," according to the ruling.

When Berashk emailed the embassy for clarification, he was told that "[i]t is not possible to provide a detailed explanation of the reasons for the denial."

Din and her pro bono attorney nevertheless tried to find out why the visa had been denied, but embassy officials declined to elaborate.

Din then sued, seeking an order that would force the government to process her husband's visa application in a legal manner. She claimed it was unconstitutional for the government to deny the visa without explaining what her husband allegedly did to be deemed inadmissible on terrorism grounds.

A federal judge granted the government motion to dismiss, and the 9th Circuit reversed.

"The first problem is that the government has offered no reason at all for denying Berashk's visa; it simply points to a statute," Judge Mary Murguia wrote.

She said the problem "is compounded by the sweeping nature of the cited section of the INA" - a section that exceeds 1,000 words and contains 10 different categories of those deemed inadmissible for terrorism reasons.

"The government's citation here is so broad that we are unable to determine whether the consular officer 'properly construed' the statute," Murguia wrote.

The panel acknowledged that the government is not required to prove that Berashk did something to render him inadmissible.

"We seek only to verify that the facts asserted by the government, however bare, constitute a ground for exclusion under the statute," Murguia wrote.

But dissenting Judge Richard Clifton said the government "was not required to provide more specific information" about why it denied Berashk's visa.

"The factual basis of the consular's decision is not within our highly limited review," Clifton wrote.

"[I]t is simply not enough to allege that the consular official's decision was wrong. That is not for us to decide.

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