The United States Supreme Court has decided that consular officers will continue to have broad discretion, and little outside challenge, when denying a visa application. In the case titled Kerry v. Din, Fauzia Din, an American citizen via naturalization, had married Kaniska Berashk, a citizen of Afghanistan. Berashk submitted an application with the consular office at the U.S. embassy in Islamabad, Pakistan, based on being married to a U.S. citizen. The application was denied. The consulate officer handling Berashk’s application failed to enumerate the reasons for the denial, but cited “terrorist activities,” a term with a broad definition under the Patriot Act and the 1996 Congressional immigration reform legislation.
Din brought the matter to a local federal trial court for review, arguing that she was entitled to appeal the consular officer’s decision since she was being denied her right to live with her spouse. She argued that, if the decision was upheld, she was entitled to an explanation of what the applicant had done that made him ineligible for citizenship, and the law under which he was ineligible. A federal appeals court agreed with her, holding that the consular officer had based the denial on insufficient grounds.
The Obama administration appealed this decision, arguing that applications for citizenship can be denied based on evidence that the government is not required to disclose to the applicant, and that it has absolute authority to keep non-citizens out of the country for any reason.
The Supreme Court ruled that Din did not have a right to court review of the consulate’s decision denying the visa. While the decision was split, with enough Justices siding with the Obama administration to cause Din to lose, but not all agreeing with one another on the basis for doing so, the Court essentially held that the reason that the consular officer gave her was sufficient to meet any rights that Din may have had. The four Justices who dissented with the majority reasoned that Din had a right as a U.S. Citizen to live with her husband in the U.S., and, under the Due Process clause of the Fifth Amendment, was entitled to be heard in court if that right was denied. While it seemed as though the Court might permit court challenges to consular visa denials under different circumstances in the future, for the time being, consular decisions aren’t reviewable in a court of law.
Citizenship and visa application processes are complex and overwhelming. If you or a loved one are attempting to attain a long-term visa, permanent residency, or apply for citizenship, ensure that you are prepared for the process by retaining skilled legal help. The Lozano Law Firm has the experience and flexibility to best serve your immigration law needs, with offices located in both San Antonio and San Angelo. For a consultation concerning your immigration issues, from anywhere in Texas, or throughout the US, call 210-932-3600 to get the help you deserve.