Government Must Cite Specific Violations to Issue Visa Denial

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DIN V. KERRY, requires the Government to allege a specific violation of law and must also allege specific illegal actions by the alien before denying a visa application and excluding the alien.

The case of Din v. Kerry from the Ninth Circuit (2013), recently accepted for review by the Supreme Court, provides relief for United States citizens who have received a denial of a petition for an alien relative due to alleged involvement with terrorism alleged under Section 212(a) of the Immigration and Nationality Act (“INA”), a section of the INA that lists a wide variety of conduct that renders an alien inadmissible due to “terrorist activities.”

The Appeals Court acknowledged that most visa decisions are not judicially reviewable. However, the Court “recognized a limited exception to the doctrine of consular nonreviewability.” Specifically, “when the denial of a visa implicates the constitutional rights of an American citizen, we exercise “a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason,” citing Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir.2008).

In Bustamante, the Court recognized that a citizen has a protected liberty interest in marriage that entitles the citizen to Appeals Court review of the denial of a spouse’s visa.

Specific Violation of Law if Required
The Court found that the Government offered no reason at all for denying the visa. The government simply pointed to a statute. At a minimum, the Government must cite to a specific portion of the law within INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) to allow the Court to determine that the law has been “properly construed.”

The court went on to explain that “the sweeping nature of the cited section of the INA, Section 1182(a)(3)(B) exceeds 1,000 words. It contains ten subsections identifying different categories of aliens who may be inadmissible for terrorism reasons.3 The section defines “terrorist activities” with reference to six different subsections, containing different kinds of conduct. It defines “engage in terrorist activity” in seven subsections, some of which are divided into further subsections. The conduct described in § 1182(a)(3)(B) ranges from direct participation in violent terrorist activities to indirect support of those who participate in terrorist activities.” Such a broad reference to prohibited activity did not give the complainant enough specificity to respond to the government’s reason for denying the visa.

This is necessary because “some of the subsections in § 1182(a)(3)(B) confer upon an alien the right to present evidence to rebut the cited reason for inadmissibility. For activity in support of organizations that have not been designated by the Secretary of State as terrorist organizations, an alien may offer “clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization.” Without knowing the specific subsection applicable to this case, the Court could not determine whether the consular officer should provide the alien an opportunity for rebuttal.

The Court will not “look behind” a consular decision to exclude an alien, but the Court must at least look at the decision, meaning that the Court must know what a decision means before it can review it. The Court sought to verify that the facts asserted by the Government in the visa denial constitute a permissible basis for denying the visa under the statute.

Specific Allegation of Illegal Activity Committed by Alien is Required
In addition, the Court held that the fact that the government cited INA § 212(a)(3)(B) is an insufficient basis for denying the visa, when combined with a complete failure by the government to allege any facts about the alien’s actions in violation of this law.
The Court stated that it did “not think that even the most limited judicial review is so restrained as to ask only if the Government has successfully provided a citation to the U.S.Code.” The Court further stated that “State Department regulations require consular officers to ‘inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provision of law or implementing regulation under which administrative relief is available,’ and make no exception for denials” based on alleged terrorist activity.

Additionally, the Court held that the fact that Congress created a limited disclosure obligation in the context of visa denials does not mean that Congress otherwise prohibited the disclosure of all other information. The statute does not compel nor prohibit disclosure in this case.

Because the Government did not offer a legitimate reason for the visa denial, the Court can review this denial. The United States citizen, Din, has a constitutionally protected due process right to limited judicial review of the visa denial, stemming from her “freedom of personal choice in matters of marriage and family life.” See Bustamante
Din alleged that the Government deprived her of due process by refusing to provide her (or her alien husband) with a legitimate and bona fide reason for denying her visa.

Finally, the Court concluded that Government citation to a law that prohibits terrorist activity without alleging any illegal conduct on the part of the alien seeking a visa is not a sufficient basis to deny the visa and exclude the alien. The Appeals Court remanded the case back to the District Court for further proceedings consistent with the decision.