Supreme Court Scoffs at Visa Challenge|by Wife of Man With Taliban Ties

     WASHINGTON (CN) – Party lines split the U.S. Supreme Court in finding Monday that a U.S. citizen married to a former Taliban associate cannot sue over his visa denial.
     The plurality seemed baffled that anyone would credit the wife’s claim that the visa denial “deprived her of her constitutional right to live in the United States with her spouse.”
     “There is no such constitutional right,” according to the lead opinion by Justice Antonin Scalia. “What Justice Breyer’s dissent strangely describes as a ‘deprivation of her freedom to live together with her spouse in America,’ is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse’s freedom to immigrate into America.”
     Fauzia Din had petitioned for a visa for Afghan citizen Kanishka Berashk just a month after they married in 2006.
     In his interview at the U.S. embassy in Islamabad, Pakistan, Berashk truthfully answered questions regarding matters such as 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 this ineligibility could not be waived, and the Embassy later declined 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.
     Though a federal judge dismissed Din’s case, the 9th Circuit became broke from other circuits in finding that the government lacked “a facially legitimate reason” for denying a visa to Berashk.
     The U.S. Supreme Court vacated that finding 5-4 on Monday after parsing the protections of the Fifth Amendment.
     “Din, of course, could not conceivably claim that the denial of Berashk’s visa application deprived her – or for that matter even Berashk – of life or property; and under the above described historical understanding, a claim that it deprived her of liberty is equally absurd,” Scalia wrote. “The government has not ‘taken or imprisoned’ Din, nor has it ‘confine[d]’ her, either by ‘keeping [her] against h[er] will in a private house, putting h[er] in the stocks, arresting or forcibly detaining h[er] in the street.’ Indeed, not even Berashk has suffered a deprivation of liberty so understood.”
     Scalia burned through the various decisions Din tried to cite as precedent for her position.
     “Nothing in the cases Din cites establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship,” he wrote (parentheses in original).
     “Only by diluting the meaning of a fundamental liberty interest and jettisoning our established jurisprudence could we conclude that the denial of Berashk’s visa application implicates any of Din’s fundamental liberty interests,” Scalia added.
     While Chief Justice John Roberts and Justice Clarence Thomas joined Scalia’s opinion, Justices Anthony Kennedy and Samuel Alito concurred only in the judgment.
     Kennedy’s opinion, which Alito joined, says there was no need for the plurality to decide whether Din has a protected liberty interest.
     “My view is that, even assuming she does, the notice she received regarding her husband’s visa denial satisfied due process,” Kennedy wrote.
     Justice Stephen Breyer wrote the dissent, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, which says the government failed to provide Din with the procedure that her “liberty” interest is due.
     “Justice Scalia’s more general response – claiming that I have created a new category of constitutional rights – misses the mark. I break no new ground here. Rather, this court has already recognized that the due process clause guarantees that the government will not, without fair procedure, deprive individuals of a host of rights, freedoms, and liberties that are no more important, and for which the state has created no greater expectation of continued benefit, than the liberty interest at issue here. How could a Constitution that protects individuals against the arbitrary deprivation of so diverse a set of interests not also offer some form of procedural protection to a citizen threatened with governmental deprivation of her freedom to live together with her spouse in America? As compared to reputational harm, for example, how is Ms. Din’s liberty interest any less worthy of due process protections?”
     As to Kennedy’s assertion that Din received adequate reason for her husband’s visa denial, Breyer noted that the denial referred to a “complex” statutory provision “with 10 different subsections, many of which cross-reference other provisions of law.”
     “Taken together the subsections, directly or through cross-reference, cover a vast waterfront of human activity potentially benefitting, sometimes in major ways, sometimes hardly at all, sometimes directly, sometimes indirectly, sometimes a few people, sometimes many, sometimes those with strong links, sometimes those with hardly a link, to a loosely or strongly connected group of individuals, which, through many different kinds of actions, might fall within the broad statutorily defined term ‘terrorist,'” he wrote.
     If the State Department denied the visa because of the Taliban affiliation, “there is no way” to know for sure from the government’s explanation, according to the dissent.

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