Supreme Court Hears Oral Arguments in Kerry v. Din

Kerry V. Din Supreme Court to Decide Reviewability of Consular Visa Denials

SCOTUS Immigration Case Kerry v. Din

In this case SCOTUS looks at the doctrine of consular non-reviewability and its bar to the judicial review of visa decisions of Department of State consular officers.

A consular officer had denied the visa application of a citizen of Afghanistan married to a U.S. citizen. The consular officer’s denial cited a broad definition of terrorist activities from immigration regulations. Applicant's U.S. citizen spouse sought judicial review of her husband’s visa denial. The U.S. Court of Appeals for the Ninth Circuit granted review and found that the consular officer’s explanation of the visa denial was insufficient.

Issues:

(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.

SCOTUS Hears Oral Arguments

At the beginning of oral arguments Justice Sotomayor notes that the Government's position seems to be that the U.S. citizen wife has no interest in whether her husband can enter the U.S. and basically has no interest in her marriage. Justice Kennedy joins in this line of questioning.

Justice Kennedy rips the Government's argument to shreds. He points out the distinctions between this case and a waiver case the Government tries to use as the legal basis for their claim. Justice Kegan further explains the distinction between discretionary waivers and visas and its importance.

Justice Breyer asks the Government, just to be clear, are they arguing that if the United States Consulate decides a husband and wife cannot live together there is no judicial review available to them?

The Government's argument is weak and SCOTUS appear symathetic. A decision from SCOTUS that consulate visa denials are unreviewable under any circumstances would be outrageous and seems unlikely.

Full Transcript of Kerry v. Din Supreme Court Oral Arguments can be found at:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-1402_1a7d.pdf

Documents and information regarding this case can be found here:

http://www.scotusblog.com/case-files/cases/kerry-v-din/?wpmp_switcher=desktop

Analysis by Prof. Kevin Johnson can be found here:

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

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