These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
consular processing
The Ninth Circuit has reversed the injunction of the Healthcare Proclamation, which requires immigrant visa applicants to demonstrate they can acquire health insurance within 30 days of entry or have the ability to pay for their foreseeable healthcare costs. The court found the proclamation was within the president’s executive authority.
The full text of Doe #1 v. Trump can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/31/19-36020.pdf
The Ninth Circuit has issued a published decision interpreting the Supreme Court's recent decision in Kerry v. Din. The court adopted Justice Kennedy's concurrence, and determined that when a consular officer denies a visa to the spouse of a US citizen, the officer need only deny the visa under a valid statute of inadmissibility and cite a statute that specifies discrete factual predicates the consular officer must find to exist before denying a visa, or there must be a fact in the record that provides at least a facial connection to the statutory ground of inadmissibility. Once the government has made that showing, the plaintiff has the burden of proving that the reason was not bona fide by making an affirmative showing of bad faith on the part of the consular officer who denied a visa.
The full text of Cardenas v. United States is available here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/21/13-35957.pdf
It is always a pleasure for me to work with members of our military. In a recent case, I was able to expedite the immigration process for the Canadian spouse of an active duty Marine. Today, his wife is residing with him as a lawful permanent resident, giving them valuable months together before he is deployed abroad later this year.
A success story that I'm happy to share!
Attorney advertising and stories of past success do not guarantee future results.
Din is a U.S. citizen, married to an Afghani national. Din filed an immigrant petition on her husband's behalf, which was approved. However, when Berashk (Din's husband) went to the U.S. consulate, his request for an immigrant visa was denied on account of the State Department's determination that Berashk had engaged in terrorist activities. The consular officer did not provide any further details as to how that determination had been reached. Din sued in federal court, alleging that the consular official's decision (and failure to adequately explain that decision) impinged on her constitutional right to live with her husband in the United States. The Supreme Court determined, unfortunately for Din, that there is no such constitutional right.
The Court first addressed whether the denial of Berashk’s visa application deprived Din of any life, liberty, or property interests. "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 [] historical understanding [of the Fifth Amendment right to due process], 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. Indeed, not even Berashk has suffered a deprivation of liberty so understood."
Din had specifically alleged that her liberty interest in her marriage, her right of association with her spouse, her liberty interest in being reunited with certain blood relatives, and her liberty interest as a U. S. citizen under the Due Process Clause to be free from arbitrary restrictions on her right to live with her spouse had been violated by the consular official's determination. Turning to the question of whether any of Din's fundamental rights had been violated, the Court acknowledged that "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."
The Court determined that nothing in its jurisprudent "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." Moreover, "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."
Finally, the Court concluded Because Fauzia Din was not deprived of “life, liberty, or property” when the Government denied Kanishka Berashk admission to the United States, there is no process due to her under the Constitution. To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required.
Justice Kennedy, concurring with plurality opinion, would not address whether Din has a fundamental right that is implicated in the immigration process of her husband, but would instead decide that any due process rights she has were satisfied by the process provided by the consular official (i.e. the denial notice stating that he had participated in terrorist activities).
The full text of Kerry v. Din can be found here: http://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf
