Visa Challenge Tied to Taliban Gutted in Ninth

WASHINGTON (CN) - Heeding a U.S. Supreme Court reversal, the Ninth Circuit blocked the wife of a former Taliban associate from suing over his visa denial.

Fauzia Din sought 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 Ninth Circuit 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 in June after parsing the protections of the Fifth Amendment.

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."

Scalia called it inconceivable for either Din or Berashk to claim that the denial of Berashk's visa application deprived them of life or property.

"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."

The Ninth Circuit affirmed dismissal of Din's claim without comment Wednesday.

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