Today the U.S. Supreme Court allowed a U.S. citizen to be permanently separated from her spouse on a bare, unexplained allegation that her Afghani husband had been involved in supporting terrorism. The Court’s decision in Kerry v. Din found that the U.S. Constitution does not require the government to provide any further reasoning for denying the spouse’s visa application.
Justice Scalia, writing for himself, Chief Justice Roberts, and Justice Thomas, found that U.S. citizens have no constitutional interest in being able to live in the United States with their spouses, and thus no right to know why they are being separated. Justice Kennedy, joined by Justice Alito, found that even if U.S. citizen spouses have a constitutional interest in residing with their spouses, it is sufficient to tell the U.S. citizen spouse the general section number of immigration law under which her husband was found inadmissible. Under Supreme Court rules, the concurrence from Justice Kennedy and Alito, as the narrowest opinion in the case, governs.
“Today’s decision is extremely disappointing. If the government is going to separate a U.S. citizen from her spouse, it should at least have to give a real reason,” said Chuck Roth, director of litigation at the National Immigrant Justice Center. “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.”
The National Immigrant Justice Center and American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild authored amicus briefs in the case.
"This is an unfortunate, but extremely narrow decision; the Court did not decide whether U.S. citizens have a procedural due process interest in the visa application process." said Trina Realmuto, litigation director at the National Immigration Project of the National Lawyers Guild.
Ms. Fauzia Din has been separated from her husband since 2006, when she married her husband, a clerk in the Afghan Ministry of Education, and applied for his visa so he could join her in California. After a three-year delay, the U.S. State Department denied the visa based only on a vague “national security” allegation. In 2013, the Ninth Circuit Court of Appeals ruled that the State Department must provide a facially legitimate and bona fide basis for the visa denial. Rather than embracing transparency and providing Ms. Fauzia the reasoning for the visa denial, the Obama administration instead appealed to the Supreme Court, which heard arguments for the case in February.
"Given the havoc that our broken immigration system plays in the lives of millions, it is unconscionable that the government would fight an effort to make the system more accountable and transparent to U.S. citizens seeking to keep their families together," said AILA Executive Director Crystal Williams. "I would remind the Administration that just because the Court says that the government can deny without explanation doesn’t mean that it must. The State Department can still decide to do the right thing."
According to the Department of Homeland Security (DHS) statistical yearbook, more than 200,000 noncitizens immigrate every year through a marriage to a U.S. citizen. The U.S. Census Bureau reports that over 1.5 million couples residing in the United States are native-born U.S. citizens married to noncitizens; another 4.4 million couples are naturalized citizens and noncitizens. U.S. citizens may file visa petitions for their spouses. However, the approval of a spouse’s visa petition does not automatically confer the right to enter the United States. A visa must still be issued.