Kerry v. Din

PETITIONER:John Kerry, Secretary of State
LOCATION: Northern District of California

DOCKET NO.: 13-1402
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 576 US (2015)
GRANTED: Oct 02, 2014
ARGUED: Feb 23, 2015
DECIDED: Jun 15, 2015

Edwin S. Kneedler – Deputy Solicitor General, Department of Justice, for the petitioner
Mark E. Haddad – on behalf of the respondent

Facts of the case

Fauzia Din, who is a United States citizen, filed a visa petition for her husband Kanishka Berashk, a citizen and resident of Afghanistan. Nine months later, the State Department denied the petition based on a broad provision of the Immigration and Nationality Act that excludes aliens on terrorism-related grounds. Berashk asked for clarification of the visa denial and was told that it is not possible for the Embassy to provide him with a detailed explanation of the reasons for denial.

After several other unsuccessful attempts to receive explanation of the visa denial, Din sued and argued that denying notice for aliens who were not granted a visa based on terrorism grounds is unconstitutional. The district court held that Din did not have standing to challenge the visa denial notice. The U.S. Court of Appeals for the Ninth Circuit reversed and held that the government is required to give notice of reasons for visa denial based on terrorism grounds.


Is the government required to give a detailed explanation for denying an alien’s visa based on terrorism-related ground under the Immigration and Nationality Act?

Media for Kerry v. Din

Audio Transcription for Oral Argument – February 23, 2015 in Kerry v. Din

Audio Transcription for Opinion Announcement – June 15, 2015 in Kerry v. Din

John G. Roberts, Jr.:

Justice Scalia has the announcement this morning in Case 13-1402, Kerry v. Din.

Antonin Scalia:

This case is here on writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

Petitioner Fauzia Din is a naturalized citizen and resident of the United States.

Her husband Kanishka Berashk is a citizen and resident of Afghanistan.

He was also a civil servant in that country’s government while it was under the control of the Taliban.

After Din was naturalized, she petitioned to have Berashk classified as an immediate relative entitled to priority immigration status.

The petition was granted, but Berashk’s visa application was ultimately denied.

A consular officer informed him that he was deemed inadmissible under 8 U.S.C. §1182(a)(3)(B), which excludes aliens who have engaged in terrorist activities.

But they declined to provide any further information.

Din sued in Federal District Court. The District Court dismissed her complaint, but the Ninth Circuit reversed.

It held that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa and that the government deprived her of that liberty interest without due process of law when it denied Berashk’s visa application without a more detailed explanation of its reasons.

The Fifth Amendment provides that no person shall be “deprived of life, liberty or property without due process of law.”

Thus, when one claims that his right to due process has been violated, a Court must first determine whether he has been deprived of life, liberty or property, and only then can it ask whether the process afforded was adequate.

Din does not claim that the government’s denial of her husband’s visa application deprived her of life or property for obvious reasons.

At the time of the founding, however, liberty was understood to encompass only the power of, quoting from Blackstone, “removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint.”

So understood, Din has not been deprived of liberty either, and that is enough to resolve this case.

This Court has attempted to broaden the meaning of liberty in the Due Process Clause to include certain implied fundamental rights.

Even if one accepts this textually insupportable doctrine, Din’s claim still fails.

Although some of our case law speaks of an implied fundamental right to marry, Din has not been forbidden to enter a marriage, and those right to marry cases cannot be expanded to include the right that Din argues for, namely the right to live in the United States with one’s alien spouse, because we identify implied rights, not by looking to our case law, but by looking to this country’s history and traditions.

Since Congress first began regulating immigration, it has placed serious constraints on the ability of immigrants to bring their relatives, including their spouses, into this country with them.

Even when it showed preferences for immigrants with citizen relatives; for example, exempting them from immigration quotas or allocating quota spots in a manner that favored them, these were far from categorical rights.

This history belies any suggestion that Din has been deprived of an interest so fundamental that it is as our cases say it must be “implicit in the concept of ordered liberty.”

The judgment of the Ninth Circuit is vacated, and the case remanded for further proceedings.

The Chief Justice and Justice Thomas join in this plurality opinion.

Justice Kennedy has filed an opinion concurring in the judgment, which Justice Alito has joined.

Justice Breyer has filed a dissenting opinion, which Justices Goldberg, Sotomayor, and Kagan have joined.