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Kerry v. Din

United States Supreme Court

June 15, 2015


Argued February 23, 2015

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.


Vacated and remanded.


[135 S.Ct. 2129] [192 L.Ed.2d 184] Respondent Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an " immediate relative" entitled to priority immigration status. Din's petition was approved, but Berashk's visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under § 1182(a)(3)(B), which excludes aliens [192 L.Ed.2d 185] who have engaged in " [t]errorist activities," but the officer provided no further information. Unable to obtain a more detailed explanation for Berashk's visa denial, Din filed suit in Federal District Court, which dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk's visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk's visa application without providing a more detailed explanation of its reasons.

Held : The judgment is vacated, and the case is remanded.

718 F.3d 856, vacated and remanded.

JUSTICE SCALIA, joined by THE CHIEF JUSTICE and JUSTICE THOMAS, concluded that the Government did not deprive Din of any constitutional right entitling her to due process of law. Pp. 3-15.

(a) Under a historical understanding of the Due Process Clause, Din cannot possibly claim that the denial of Berashk's visa application deprived her of life, liberty, or property. Pp. 4-5.

(b) Even accepting the textually unsupportable doctrine of implied fundamental rights, nothing in that line of cases establishes a free-floating and categorical liberty interest sufficient to trigger constitutional protection whenever a regulation touches upon any aspect of the marital [135 S.Ct. 2130] relationship. Even if those cases could be so broadly construed, the relevant question is not whether the asserted interest " is consistent with this Court's substantive-due-process line of cases," but whether it is supported by " this Nation's history and practice," Washington v. Glucksberg, 521 U.S. 702, 723-724, 117 S.Ct. 2258, 138 L.Ed.2d 772. Here, the Government's long practice of regulating immigration, which has included erecting serious impediments to a person's ability to bring a spouse into the United States, precludes Din's claim. And this Court has consistently recognized its lack of " judicial authority to substitute [its] political judgment for that of Congress" with regard to the various distinctions in immigration policy. Fiallo v. Bell, 430 U.S. 787, 798, 97 S.Ct. 1473, 52 L.Ed.2d 50. Pp. 5-11.

JUSTICE KENNEDY, joined by JUSTICE ALITO, concluded that there is no need to decide whether Din has a protected liberty interest, because, even assuming she does, the notice she received satisfied due process. Pp. 1-6.

(a) This conclusion is dictated by the reasoning of Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683. There the Court declined to balance the asserted First Amendment interest of college professors seeking a nonimmigrant visa for a revolutionary Marxist speaker against " Congress' 'plenary power to make rules for the admission of aliens,'" id., at 766, 92 S.Ct. 2576, 33 L.Ed.2d 683, and limited its inquiry to whether the Government had provided a " facially legitimate and bona fide" reason for its action, id., at 770, 92 S.Ct. 2576, 33 L.Ed.2d 683. Mandel 's reasoning has particular force here, where national security is involved. Pp. 2-3.

(b) Assuming that Din's rights were burdened directly by the visa denial, [192 L.Ed.2d 186] the consular officer's citation of § 1182(a)(3)(B) satisfies Mandel 's " facially legitimate and bona fide" standard. Given Congress' plenary power to " suppl[y] the conditions of the privilege of entry into the United States," United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317, the Government's decision to exclude Berashk because he did not satisfy a statutory condition for admissibility is facially legitimate. Supporting this conclusion is the fact that, by Din's own admission, Berashk worked for the Taliban government. These considerations lend to the conclusion that there was a bona fide factual basis for exclusion, absent an affirmative showing of bad faith on the consular officer's part, which Din has not plausibly alleged. Pp. 4-6.

Edwin S. Kneedler argued the cause for petitioner.

Mark E. Haddad argued the cause for respondents.

SCALIA, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.


[135 S.Ct. 2131] SCALIA, Judge

Fauzia Din is a citizen and resident of the United States. Her husband, Kanishka Berashk, is an Afghan citizen and former civil servant in the Taliban regime who resides in that country. When the Government declined to issue an immigrant visa to Berashk, Din sued.

The state action of which Din complains is the denial of Berashk's visa application. Naturally, one would expect him--not Din--to bring this suit. But because Berashk is an unadmitted and nonresident alien, he has no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission. See Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). So, Din attempts to bring suit on his behalf, alleging that the Government's denial of her husband's visa application violated her constitutional rights. See App. 36-37, Complaint ¶ 56. In particular, she claims that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse. There is no such constitutional right. What JUSTICE BREYER's dissent strangely describes as a " deprivation of her freedom to live together with her spouse in America," post, at 4-5, 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.

For the reasons given in this opinion and in the opinion concurring in the judgment, we vacate and remand.



Under the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., an alien may not enter and permanently reside in the United States without a visa. § 1181(a). The INA [192 L.Ed.2d 187] creates a special visa-application process for aliens sponsored by " immediate relatives" in the United States. § § 1151(b), 1153(a). Under this process, the citizen-relative first files a petition on behalf of the alien living abroad, asking to have the alien classified as an immediate relative. See § § 1153(f), 1154(a)(1). If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer. See § § 1201(a)(1), 1202. Before issuing a visa, the consular officer must ensure the alien is not inadmissible under any provision of the INA. § 1361.

One ground for inadmissibility, § 1182(a)(3)(B), covers " [t]errorist activities." In addition to the violent and destructive acts the term immediately brings to mind, the INA defines " terrorist activity" to include providing material support to a terrorist organization and serving as a [135 S.Ct. 2132] terrorist organization's representative. § 1182(a)(3)(B)(i) (iii)-(vi).


Fauzia Din came to the United States as a refugee in 2000, and became a naturalized citizen in 2007. She filed a petition to have Kanishka Berashk, whom she married in 2006, classified as her immediate relative. The petition was granted, and Berashk filed a visa application. The U.S. Embassy in Islamabad, Pakistan, interviewed Berashk and denied his application. A consular officer informed Berashk that he was inadmissible under § 1182(a)(3)(B) but provided no further explanation.

Din then brought suit in Federal District Court seeking a writ of mandamus directing the United States to properly adjudicate Berashk's visa application; a declaratory judgment that 8 U.S.C. § 1182(b)(2)-(3), which exempts the Government from providing notice to an alien found inadmissible under the terrorism bar, is unconstitutional as applied; and a declaratory judgment that the denial violated the Administrative Procedure Act. App. 36-39, Complaint ¶ ¶ 55-68. The District Court granted the Government's motion to dismiss, but the Ninth Circuit reversed. The Ninth Circuit concluded that Din " has a protected liberty interest in marriage that entitled [her] to review of the denial of [her] spouse's visa," 718 F.3d 856, 860 (2013), and that the Government's citation of § 1182(a)(3)(B) did not provide Din with the " limited judicial review" to which she was entitled under the Due Process Clause, id., at 868. This Court granted certiorari. 573 U.S. __, 135 S.Ct. 44, 189 L.Ed.2d 896 (2014).


The Fifth Amendment provides that " [n]o person shall be . . . deprived of life, liberty, or property, without due process of law." Although the amount and quality of process that our precedents have recognized as " due" under the Clause has changed considerably since the founding, see Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 28-36, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (SCALIA, J., concurring in judgment), it remains the case that no process is due if one is not deprived of " life, liberty, or property," Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) ( per curiam ). The first question that we must ask, then, is whether the denial of Berashk's visa application deprived Din of any of these interests. Only if we answer in the affirmative [192 L.Ed.2d 188] must we proceed to consider whether the Government's explanation afforded sufficient process.


The Due Process Clause has its origin in Magna Carta. As originally drafted, the Great Charter provided that " [n]o freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land." Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797) (emphasis added). The Court has recognized that at the time of the Fifth Amendment's ratification, the words " due process of law" were understood " to convey the same meaning as the words 'by the law of the land'" in Magna Carta. Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 18 How. 272, 276, 15 L.Ed. 372 (1856). Although the terminology associated with the guarantee of due process changed dramatically between 1215 and 1791, the general scope of the underlying rights protected stayed roughly constant.

[135 S.Ct. 2133] Edward Coke, whose Institutes " were read in the American Colonies by virtually every student of law," Klopfer v. North Carolina, 386 U.S. 213, 225, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), thoroughly described the scope of the interests that could be deprived only pursuant to " the law of the land." Magna Carta, he wrote, ensured that, without due process, " no man [may] be taken or imprisoned" ; " disseised of his lands, or tenements, or dispossessed of his goods, or chattels" ; " put from his livelihood without answer" ; " barred to have the benefit of the law" ; denied " the franchises, and priviledges, which the subjects have of the gift of the king" ; " exiled" ; or " forejudged of life, or limbe, disherited, or put to torture, or death." 1 Coke, supra, at 46-48. Blackstone's description of the rights protected by Magna Carta is similar, although he discusses them in terms much closer to the " life, liberty, or property" terminology used in the Fifth Amendment. He described first an interest in " personal security," " consist[ing] in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation." 1 W. Blackstone, Commentaries on the Laws of England 125 (1769). Second, the " personal liberty of individuals" " consist[ed] in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint." Id., at 130. And finally, a person's right to property included " the free use, enjoyment, and disposal of all his acquisitions." Id., at 134.

Din, of course, could not conceivably claim that the denial of Berashk's visa application deprived her--or for that matter even Berashk--of life or property; and under the above described historical understanding, a claim that it deprived her of liberty is equally absurd. 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." Id., at 132. Indeed, not even Berashk has suffered a deprivation of liberty so understood.


Despite this historical evidence, [192 L.Ed.2d 189] this Court has seen fit on several occasions to expand the meaning of " liberty" under the Due Process Clause to include certain implied " fundamental rights." (The reasoning presumably goes like this: If you have a right to do something, you are free to do it, and deprivation of freedom is a deprivation of " liberty" --never mind the original meaning of that word in the Due Process Clause.) These implied rights have been given more protection than " life, liberty, or property" properly understood. While one may be dispossessed of property, thrown in jail, or even executed so long as proper procedures are followed, the enjoyment of implied constitutional rights cannot be limited at all, except by provisions that are " narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Din does not explicitly argue that the Government has violated this absolute prohibition of the substantive component of the Due Process Clause, likely because it is obvious that a law barring aliens engaged in terrorist activities from entering this country is narrowly tailored to serve a compelling state interest. She nevertheless insists that, because enforcement of the law affects her enjoyment of an implied fundamental liberty, the Government must first provide her a full battery of procedural-due-process protections.

I think it worth explaining why, even if one accepts the textually unsupportable doctrine of implied fundamental rights, Din's arguments would fail. Because " extending [135 S.Ct. 2134] constitutional protection to an asserted right or liberty interest . . . place[s] the matter outside the arena of public debate and legislative action," Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and because the " guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended," Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), " [t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field," ibid. Accordingly, before conferring constitutional status upon a previously unrecognized " liberty," we have required " a careful description of the asserted fundamental liberty interest," as well as a demonstration that the interest is " objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed." Glucksberg, supra, at 720-721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (citations and internal quotation marks omitted).

Din describes the denial of Berashk's visa application as implicating, alternately, a " liberty interest in her marriage," Brief for Respondent 28, a " right of association with one's spouse," id., at 18, " a liberty interest in being reunited with certain blood relatives," id., at 22, and " the liberty interest of a U.S. citizen under the Due Process Clause to be free from arbitrary restrictions on his right to live with his spouse," ibid. To be sure, this Court has at times indulged a propensity for grandiloquence when reviewing the sweep of implied rights, describing them so broadly that they would include not only the interests Din asserts but many others as well. For example: " Without doubt, [the liberty guaranteed by the Due Process Clause] denotes not merely freedom from bodily restraint but also the [192 L.Ed.2d 190] right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship God according to the dictates of his own conscience" Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). But this Court is not bound by dicta, especially dicta that have been repudiated by the holdings of our subsequent cases. And the actual holdings of the cases Din relies upon hardly establish the capacious right she now asserts.

Unlike the States in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), and Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Federal Government here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the " associational interests in marriage that necessarily are protected by the right to marry," and that are " presuppose[d]" by later cases establishing a right to marital privacy. Brief for Respondent 16, 18. The dissent supplements the fundamental right to marriage with a fundamental right to live in the United States in order to find an affected liberty interest. Post, at 2-3 (BREYER, J., dissenting).

Attempting to abstract from these cases some liberty interest that might be implicated by Berashk's visa denial, Din draws on even more inapposite cases. Meyer, for example, invalidated a state statute proscribing the teaching of foreign language to children who had not yet passed the eighth grade, reasoning that it violated the teacher's " right thus to teach and the right of parents to engage him so to instruct [135 S.Ct. 2135] their children." 262 U.S. at 400, 43 S.Ct. 625, 67 L.Ed. 1042. Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), extended Meyer, finding that a law requiring children to attend public schools " interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." Moore v. East Cleveland, 431 U.S. 494, 505-506, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), extended this interest in raising children to caretakers in a child's extended family, striking down an ordinance that limited occupancy of a single-family house to members of a nuclear family on the ground that " [d]ecisions concerning child rearing . . . long have been shared with grandparents or other relatives." And Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), concluded that a law criminalizing the use of contraceptives by married couples violated " penumbral rights of 'privacy and repose'" protecting " the sacred precincts of the marital bedroom" --rights which do not plausibly extend into the offices of our consulates abroad.

Nothing in the cases Din cites establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship. Even if our cases could be construed so broadly, the relevant question is not whether the asserted interest " is consistent with this Court's substantive-due- [192 L.Ed.2d 191] process line of cases," but whether it is supported by " this Nation's history and practice." Glucksberg, 521 U.S. at 723-724, 117 S.Ct. 2258, 138 L.Ed.2d 772 (emphasis deleted). Even if we might " imply" a liberty interest in marriage generally speaking, that must give way when there is a tradition denying the specific application of that general interest. Thus, Glucksberg rejected a claimed liberty interest in " self-sovereignty" and " personal autonomy" that extended to assisted suicide when there was a longstanding tradition of outlawing the practice of suicide. Id., at 724, 727-728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (internal quotation marks omitted).

Here, a long practice of regulating spousal immigration precludes Din's claim that the denial of Berashk's visa application has deprived her of a fundamental liberty interest. Although immigration was effectively unregulated prior to 1875, as soon as Congress began legislating in this area it enacted a complicated web of regulations that erected serious impediments to a person's ability to bring a spouse into the United States. See Abrams, What Makes the Family Special? 80 U. Chi. L.Rev. 7, 10-16 (2013).

Most strikingly, perhaps, the Expatriation Act of 1907 provided that " any American woman who marries a foreigner shall take the nationality of her husband." Ch. 2534, 34 Stat. 1228. Thus, a woman in Din's position not only lacked a liberty interest that might be affected by the Government's disposition of her husband's visa application, she lost her own rights as a citizen upon marriage. When Congress began to impose quotas on immigration by country of origin less than 15 years later, with the Immigration Act of 1921, it omitted fiances and husbands from the family relations eligible for preferred status in the allocation of quota spots. § 2(d), 42 Stat. 6. Such relations were similarly excluded from the relations eligible for nonquota status, when that status was expanded three years later. Immigration Act of 1924, § 4(a), 43 Stat. 155.

To be sure, these early regulations were premised on the derivative citizenship of women, a legacy of the law of coverture that was already in decline at the time. C. Bredbenner, A Nationality of Her Own 5 [135 S.Ct. 2136] (1998). Modern equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order. Nevertheless, this all-too-recent practice repudiates any contention that Din's asserted liberty interest is " deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty." Glucksberg, supra, at 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (citations and internal quotations marks omitted).

Indeed, the law showed little more solicitude for the marital relationship when it was a male resident or citizen seeking admission for his fiancee or wife. The Immigration Act of 1921 granted nonquota status only to unmarried, minor children of citizens, § 2(a), while granting fiancees and wives preferred status within the allocation of quota spots, § 2(d). In other words, a citizen could move his spouse forward in the line, but once all the quota spots were filled for the year, the spouse was barred without exception. This was not just a theoretical possibility: As one commentator has observed, " [f]or many immigrants, the [192 L.Ed.2d 192] family categories did little to help, because the quotas were so small that the number of family members seeking slots far outstripped the number available." Abrams, supra, at 13.

Although Congress has tended to show " a continuing and kindly concern . . . for the unity and the happiness of the immigrant family," E. Hutchinson, Legislative History of American Immigration Policy 1798-1965, p. 518 (1981), this has been a matter of legislative grace rather than fundamental right. Even where Congress has provided special privileges to promote family immigration, it has also " written in careful checks and qualifications." Ibid. This Court has consistently recognized that these various distinctions are " policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress." Fiallo v. Bell, 430 U.S. 787, 798, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). Only by diluting the meaning of a fundamental liberty interest and jettisoning our established jurisprudence could we conclude that the denial of Berashk's visa application implicates any of Din's fundamental liberty interests.


JUSTICE BREYER suggests that procedural due process rights attach to liberty interests that either are (1) created by nonconstitutional law, such as a statute, or (2) " sufficiently important" so as to " flow 'implicit[ly]' from the design, object, and nature of the Due Process Clause." Post, at 2.

The first point is unobjectionable, at least given this Court's case law. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287, and n. 8 (1970); Collins 503 U.S., at 129, 112 S.Ct. 1061, 117 L.Ed.2d 261. But it is unhelpful to Din, who does not argue that a statute confers on her a liberty interest protected by the Due Process Clause. JUSTICE BREYER attempts to make this argument for Din, latching onto language in Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), saying that a liberty interest " may arise from an expectation or interest created by state laws or policies." Such an " expectation" has been created here, he asserts, because " the law . . . surrounds marriage with a host of legal protections to the point that it creates a strong expectation that government will not deprive married individuals of their freedom to live together without strong reasons and (in individual cases) without fair procedure," post, at 3. But what Wilkinson meant [135 S.Ct. 2137] by an " expectation or interest" was not that sort of judicially unenforceable substantial hope, but a present and legally recognized substantive entitlement. [*] As sole support for its conclusion that nonconstitutional law can create constitutionally protected liberty interests, Wilkinson cited Wolff v. McDonnell, 418 U.S. 539, 556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), which held that a prisoner could not be deprived of statutory good-time credit without procedural due process. That was not because a prisoner might have " 'a strong expectation'" that the government [192 L.Ed.2d 193] would not deprive him of good-time credit " 'without strong reasons'" or " 'fair procedure,'" but because " the State itself has not only provided a statutory right to good ...

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