Supreme Court Considers Visa Case For Foreign Spouses

[Janelle2002 3,865]

Many American citizens who are married to foreigners find that their futures together depend on the judgment of a U.S. embassy official half way around the world.

These difficult and sometimes heartbreaking decisions are generally not reviewable by any court. But on Monday the U.S. Supreme Court heard arguments in a case testing whether an American citizen has the right to know why a foreign spouse has been denied an immigration visa.

Fauzia Din came to the United States as a refugee from Afghanistan in 2000 and subsequently became a U.S. citizen.

"I came because of the Taliban," she says. "There was no security for women in Afghanistan and I wanted to come here to get security — and just freedom."

In 2006 she returned to Afghanistan to marry an Afghan native whom she and her family long had known. Back in the states, she petitioned the immigration service for an immigrant visa for her husband.

The agency gave its approval and directed her husband to the American embassy in Pakistan for an interview. Afterwards, he was told he soon would receive a visa.

It never came. Three years later, after Fauzia Din's congressman made inquiries on her behalf, the State Department said her husband had been turned down for "terrorist activities" — even though he is now the secretary to the chief of staff for the minister of education in Afghanistan.

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Further inquiries proved unfruitful — Din and her husband could not find out what in particular he supposedly had done. So Din went to court, contending that the government's arbitrary separation of an American citizen from his or her spouse violates the due-process clause of the Constitution.

Din won in the lower court, and the government appealed to the Supreme Court, contending that because, by statute, an alien is not entitled to an explanation for a visa denial, that ends the question — and that the American spouse has no rights in the matter.

In the Supreme Court chamber Monday, Deputy Solicitor General Edwin Kneedler faced a raft of questions prompted, at least in part, by a friend-of-the-court brief filed by former consular officers.

They detailed the veto power that they say the Department of Homeland Security has regarding these visa decisions, based on entering the name of the visa applicant into a collection of databases.

Kneedler contended that all visa decisions are reviewed by a supervisor, and that more than simple data-entry is involved. But his assurances met with some skepticism.

"I have a real problem," Justice Sonia Sotomayor said. "We have evidence that people were kept for months and months and months" after September 11th after being "erroneously identified" because they had the same or similar name to a genuine terrorist.

Justice Anthony Kennedy followed up: "Suppose there are two Mr. Smiths, or whatever the foreign name is, and they just get the wrong one. It seems to me, said Kennedy, your position is that the alien has no right" to bring a court challenge. "Period."

Deputy Solicitor General Kneedler agreed that is true, repeating that "there is no right of judicial review" under the statue.

Justice Elena Kagan asked what level of specificity is required when a visa applicant is turned down. Can you just cite a lengthy section of the law, "like section 1182?" she asked.

Yes, replied Kneedler.

Justice Ruth Bader Ginsburg pressed further. "Assuming people make mistakes," and that some consular officers have a "bureaucratic mentality," you are still "sticking to the position that these visa determinations are not subject to review ... no exceptions?"

That's right, reaffirmed Kneedler.

Justice Stephen Breyer, whose own wife immigrated to the U.S. from England, was incredulous.

Are you saying, he asked, that even if there is undeniable proof that the consular official acted for racial reasons, or simply because they felt that husbands and wives should not live together, there is no review?

"Is that your position?" Breyer asked.

Yes, replied Kneedler once again.

Those skeptical questions from five justices would seem to add up to a majority of the court — but Justice Kennedy, after initially voicing significant skepticism about the government's position, appeared to switch sides, suggesting that providing a reason for the visa denial might risk revealing intelligence sources or methods.

The court's hardline conservatives chimed in.

Justices Antonin Scalia and Samuel Alito observed that a wife couldn't go to court to challenge her husband's criminal conviction, or his sentence to a maximum security prison. Kennedy called those observations "apt."

Fauzia Din's lawyer, Mark Haddad, replied that in such circumstances the defendant already has been accorded due process of law through a trial and appeal. But his answer didn't seem to be enough for Kennedy.

http://www.npr.org/2015/02/23/388520550/supreme-court-considers-visa-case-for-foreign-spouses

[Sousuke 1,214]

Interesting! I do think US citizen petitioners should have more rights in the matter especially when you consider there may be US Citizen children involved as well.

Edited February 24, 2015 by Sousuke

[Janelle2002 3,865]

Interesting! I do think US citizen petitioners should have more rights in the matter especially when you consider there may be US Citizen children involved as well.

I know!! This is super exciting! I may have to go this route one day.

This should be the case when the couple has known each other for a good amount of time as well. My husband and I lived in Japan together and in Sri Lanka. We also own a house together in Sri Lanka. My parents have also visited. And yet and still, I have no visa for my husband almost 3 years later. His family keeps pushing the issue of having children and I am sort of glad I didn't get pregnant. The child would be almost 3 years old or potentially 5 years old and would have lived separately from the father most of his/her life.

We should all get together and bombard the Supreme Court with emails of support!

[LibCampFireClub 635]

This happens not hundreds but thousands of times every single year to couples. K1 visas are the most difficult, but it also occurs for marriage visas. The USCIS first approves the petition, and passes it along to the NVC, where it is then moved to the consulate.

The conoffs as the consulates are like god. Actually, they are GOD when it comes to whether of not a visa is approved denied and held in limbo. They can and will deny anything they want for any reason whatsoever. It doesn't matter. They will NEVER be held to account and there is virtually nothing anyone, including your god who can do anything?n

However, if your partner is from the PI or one of the southern latin countries you have the advantage over anyone else.

Edited February 24, 2015 by ExExpat

[Janelle2002 3,865]

This is why I say we need to bombard the court with emails of support in this matter.

[TBoneTX 43,048]

This happens not hundreds but thousands of times every single year to couples. K1 visas are the most difficult, but it also occurs for marriage visas. The USCIS first approves the petition, and passes it along to the NVC, where it is then moved to the consulate.

The conoffs as the consulates are like god. Actually, they are GOD when it comes to whether of not a visa is approved denied and held in limbo. They can and will deny anything they want for any reason whatsoever. It doesn't matter. They will NEVER be held to account and there is virtually nothing anyone, including your god who can do anything?n

However, if your partner is from the PI or one of the southern latin countries you have the advantage over anyone else.

Agreed until the bolded part. The "doctrine of consular nonreviewability" sucks, and there needs to be a way for the U.S. citizen to petition his government for redress of grievances.

Edited February 24, 2015 by TBoneTX

[LibCampFireClub 635]

This is why I say we need to bombard the court with emails of support in this matter.

Every single American politician will avoid this topic like Edison avoided AC. It's a lightning rod to them and they fear the repercussion from the angry latinos if they even mention immigration without providing for preferential treatment of the slimy criminals and their families who stream into our country every single day.

We're dead to them.

Edited February 24, 2015 by ExExpat

[spookyturtle 9,465]

Every single American politician will avoid this topic like Edison avoided AC. It's a lightning rod to them and they fear the repercussion from the angry latinos if they even mention immigration without providing for preferential treatment of the slimy criminals and their families who stream into our country every single day.

We're dead to them.

Nice way to slander a large demographic.

[Janelle2002 3,865]

Agreed until the bolded part. The "doctrine of consular nonreviewability" sucks, and there needs to be a way for the U.S. citizen to petition his government for redress of grievances.

You are soooo on point!!!!! Where is the kiss button?

And to petition our government for redress of grievance is part of our constitutional right. Even if it is for our foreign spouse, as the U.S. citizen we are still have a grievance. We are suffering when we cannot get our spouse to the U.S., we are paying over $2000 in plane tickets every 6 months, or we have children who are sick and the spouse can't help, etc.

[LibCampFireClub 635]

I said nothing untrue. Anyone who enters the borders illegally, or overstays in these borders is a criminal. That is not slander. That is the truth!

slander

[ ˈslandər ]

NOUN

the action or crime of making a false spoken statement damaging to a person's reputation

[Janelle2002 3,865]

I said nothing untrue. Anyone who enters the borders illegally, or overstays in these borders is a criminal. That is not slander. That is the truth!

slander

[ ˈslandər ]

NOUN

the action or crime of making a false spoken statement damaging to a person's reputation

Your comment was a little mean, however, it was not without merit.

It is unfortunate some individuals crossing the border illegally are given fairer treatment than our spouses attempting to come to the U.S. legally.

[LibCampFireClub 635]

Of course I hope for the court to burn the doctrine of consular non-reviewability. I wish for it. It's very unlikely to happen in our lifetime though:

quoted from the OP:

Those skeptical questions from five justices would seem to add up to a majority of the court — but Justice Kennedy, after initially voicing significant skepticism about the government's position, appeared to switch sides, suggesting that providing a reason for the visa denial might risk revealing intelligence sources or methods.

[LibCampFireClub 635]

Your comment was a little mean, however, it was not without merit.

It is unfortunate some individuals crossing the border illegally are given fairer treatment than our spouses attempting to come to the U.S. legally.

Someone once described the difference between between assertive and aggressive as:

To ASSERT oneself is the ability of saying what you mean, without being mean.

Yes. On this account I failed miserably. I'm angry at them not for being here illegally, I'm angry at the thousands of them who fight American immigration and do it right in our faces. They don't care how anyone feels.

[Janelle2002 3,865]

Of course I hope for the court to burn the doctrine of consular non-reviewability. I wish for it. It's very unlikely to happen in our lifetime though:

quoted from the OP:

But they can reveal the nature of the problem without revealing the source of the information.

We do this all the time. Ow, Al-Qaida is killing people. We show pictures. We don't reveal the nature of the source do we?

We need to be vocal in this decision. This is a great opportunity to put our voices out here to be heard.

[LibCampFireClub 635]

But they can reveal the nature of the problem without revealing the source of the information.

We do this all the time. Ow, Al-Qaida is killing people. We show pictures. We don't reveal the nature of the source do we?

We need to be vocal in this decision. This is a great opportunity to put our voices out here to be heard.

If anyone will be out there, it's me and you. It's torture every moment of every day to endure it never knowing if, when, or what you will hear. For all practical purposes, our spouses may as well be on death row.

Edited February 24, 2015 by ExExpat