Argument analysis: Review of consular visa decisions for the twenty-first century

[Janelle2002 3,865]

Kerry v. Din

Issue: (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

Office of the Solicitor General veteran Ed Kneedler argued the case for the United States. Relying heavily on much-criticized Cold War cases of Knauff v. Shaughnessy and Shaughnessy v. United States ex rel. Mezei and frequently invoking the need to protect the national security, Kneedler argued that the U.S. government has the undisputed power to exclude aliens from the United States and that “[o]ur position is that there is no judicial review” in the case of the denials of immigrant visas by consular officers. Kneedler later elaborated: “This Court has said on a number of cases that when it comes to the exclusion of aliens, whatever process Congress provides is the process is due.” At one point in the argument, Justice Ruth Bader Ginsburg pressed Kneedler into conceding that the U.S. government’s position was that there is no exception to the consular non-reviewability doctrine. Jarred by the government’s absolutist approach, Justice Stephen Breyer asked whether a consular official could, for example, deny a visa for racially discriminatory reasons or because he thought husbands and wives should not live together. The answer apparently was “yes.”

Justices Sonia Sotomayor, Elena Kagan, Breyer and Ginsburg seemed sympathetic to Din’s case. Among other things, these Justices feared possible erroneous denials of visas with no opportunity for correction through judicial review. Justice Sotomayor characterized the administrative process after the denial of a visa to a spouse as an “administrative nightmare.”

Justices Sotomayor and Breyer (and to a certain extent Justices Anthony Kennedy and Justice Samuel Alito) were also troubled by the possibility of uncorrected mistakes by the government. When Kneedler assured the Court that the decisions were double-checked before denying a visa, Justice Sotomayor countered that “that’s what we were told after September 11^th,” noting that the government had claimed that it had good reason for arresting and detaining foreigners, only to later admit that some alleged terrorists had been “erroneously identified.”

http://www.scotusblog.com/2015/02/argument-analysis-review-of-consular-visa-decisions-for-the-twenty-first-century/

http://www.scotusblog.com/case-files/cases/kerry-v-din/

http://www.scotusblog.com/2015/02/argument-preview-the-doctrine-of-consular-non-reviewability-historical-relic-or-good-law/

I am seeing some very good points being made. I believe the Supreme Court Judges are no fools and they see right through the State Department's lies and the Consulars abroad. This is truly an exciting moment for those of us who may have no other recourse other than petitioning the courts for help with our cases. Go DIN!

Edited March 18, 2015 by Janelle2002

[LibCampFireClub 635]

Justice Stephen Breyer asked whether a consular official could, for example, deny a visa for racially discriminatory reasons or because he thought husbands and wives should not live together. The answer apparently was “yes.”

Justices Sonia Sotomayor, Elena Kagan, Breyer and Ginsburg seemed sympathetic to Din’s case. Among other things, these Justices feared possible erroneous denials of visas with no opportunity for correction through judicial review.

Justice Sotomayor characterized the administrative process after the denial of a visa to a spouse as an “administrative nightmare.”

Justices Sotomayor and Breyer (and to a certain extent Justices Anthony Kennedy and Justice Samuel Alito) were also troubled by the possibility of uncorrected mistakes by the government. When Kneedler assured the Court that the decisions were double-checked before denying a visa, Justice Sotomayor countered that.....

“that’s what we were told after September 11^th,” noting that the government had claimed that it had good reason for arresting and detaining foreigners, only to later admit that some alleged terrorists had been “erroneously identified.”

Very good information. I wish it was possible to watch it. Fingers crossed!!

However, this assessment at the end may be a problem:

Although always hazardous to predict a decision in a case based on the oral argument, it seems to me that the Justices are closely divided on this case. As frequently is the case with the Roberts Court, Justice Kennedy will perhaps determine the precise outcome.

Based on the argument, my prediction is that the Court will embrace the deferential Kleindienst v. Mandel framework. However, it is far from certain whether the Court will find that the denial in this case satisfied the facially legitimate and bona fide requirement.

Edited March 18, 2015 by xxClosedxx

[Janelle2002 3,865]

Very good information. I wish it was possible to watch it. Fingers crossed!!

However, this assessment at the end may be a problem:

"Kleindienst v. Mandel

In that case, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered – that the applicant had violated the terms of visas on previous visits to the United States – was a “facially legitimate and bona fide reason” for the executive action. Justice Kennedy, the possible swing vote in the case, seemed to agree with Justices Ginsburg, Breyer, Sotomayor, and Kagan that, under Mandel, Din has the right to demand an explanation for the visa denial."

This case was actually a win for people trying to immigrant to the U.S. Legally. This was one of the reasons Embassies abroad had to give "facially legitimate and bona fide reasons" for denying an applicant. If they do decide to take this approach, the courts can start verifying if the denials are facially legitimate and bona fide. In Kleindienst v. Mandel the denial was bona fide because the applicant had come to the U.S. on more than one occasion and had engaged in activities he was not allowed to engage in on each occasion.

[TagTeam 61]

I find this case very interesting. Thanks for posting. Hopefully the outcome will be positive and impact immgration law. Especially considering there has been little attention paid to the plight of those of us who make a conscience effort to abide by immigration laws only to be penalized for doing so. Thanks for posting this.