Kerry v. Din/Concurrence Kennedy

Kennedy, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

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No. 13–1402

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JOHN F. KERRY, SECRETARY OF STATE, ET AL.,
PETITIONERS v. FAUZIA DIN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[June 15, 2015]

Justice Kennedy, with whom Justice Alito joins, concurring in the judgment.

The respondent, Fauzia Din, is a citizen and resident of the United States. She asserts that petitioner Government officials (collectively, Government) violated her own constitutional right to live in this country with her husband, an alien now residing in Afghanistan. She contends this violation occurred when the Government, through State Department consular officials, denied her spouse’s immigrant visa application with no explanation other than that the denial was based on 8 U. S. C. §1182(a)(3)(B), the statutory provision prohibiting the issuance of visas to persons who engage in terrorist activities.

The plurality is correct that the case must be vacated and remanded. But rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband’s visa denial satisfied due process.

Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse. The Court need not decide that issue, for this Court’s precedents instruct that, even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute’s terrorism bar, §1182(a)(3)(B). See ante, at 2.

I

The conclusion that Din received all the process to which she was entitled finds its most substantial instruction in the Court’s decision in Kleindienst v. Mandel, 408 U. S. 753 (1972). There, college professors—all of them citizens—had invited Dr. Ernest Mandel, a self-described "'revolutionary Marxist,'" to speak at a conference at Stanford University. Id., at 756. Yet when Mandel applied for a temporary nonimmigrant visa to enter the country, he was denied. At the time, the immigration laws deemed aliens “who advocate[d] the economic, international, and governmental doctrines of World communism" ineligible for visas. §1182(a)(28)(D) (1964 ed.). Aliens ineligible under this provision did have one opportunity for recourse: The Attorney General was given discretion to waive the prohibition and grant individual exceptions, allowing the alien to obtain a temporary visa. §1182(d)(3). For Mandel, however, the Attorney General, acting through the Immigration and Naturalization Service (INS), declined to grant a waiver. In a letter regarding this decision, the INS explained Mandel had exceeded the scope and terms of temporary visas on past trips to the United States, which the agency deemed a "'flagrant abuse of the opportunities afforded him to express his views in this country.'" 408 U. S., at 759.

The professors who had invited Mandel to speak challenged the INS' decision, asserting a First Amendment right to "'hear his views and engage him in a free and open academic exchange.'" Id., at 760. They claimed the Attorney General infringed this right when he refused to grant Mandel relief. See ibid. The Court declined to balance the First Amendment interest of the professors against "Congress' 'plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.'" Id., at 766, 768 (citation omitted). To do so would require "courts in each case . . . to weigh the strength of the audience’s interest against that of the Government in refusing a [visa] to the particular applicant," a nuanced and difficult decision Congress had "properly . . . placed in the hands of the Executive." Id.,at 769.

Instead, the Court limited its inquiry to the question whether the Government had provided a "facially legitimate and bona fide" reason for its action. Id., at 770. Finding the Government had proffered such a reason—Mandel’s abuse of past visas—the Court ended its inquiry and found the Attorney General’s action to be lawful. See ibid. The Court emphasized it did not address "[w]hat First Amendment or other grounds may be available for attacking an exercise of discretion for which no justification whatsoever is advanced." Ibid.

The reasoning and the holding in Mandel control here. That decision was based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field. Mandel held that an executive officer’s decision denying a visa that burdens a citizen’s own constitutional rights is valid when it is made "on the basis of a facially legitimate and bona fide reason." Id., at 770. Once this standard is met, "courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against” the constitutional interests of citizens the visa denial might implicate. Ibid.

This reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.

II

Like the professors who sought an audience with Dr. Mandel, Din claims her constitutional rights were burdened by the denial of a visa to a noncitizen, namely her husband. And as in Mandel, the Government provided a reason for the visa denial: It concluded Din’s husband was inadmissible under §1182(a)(3)(B)’s terrorism bar. Even assuming Din’s rights were burdened directly by the visa denial, the remaining question is whether the reasons given by the Government satisfy Mandel's "facially legitimate and bona fide" standard. I conclude that they do.

Here, the consular officer’s determination that Din’s husband was ineligible for a visa was controlled by specific statutory factors. The provisions of §1182(a)(3)(B) establish specific criteria for determining terrorism-related inadmissibility. The consular officer’s citation of that provision suffices to show that the denial rested on a determination that Din’s husband did not satisfy the statute’s requirements. 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 (1950), it follows that the Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.

The Government’s citation of §1182(a)(3)(B) also indicates it relied upon a bona fide factual basis for denying a visa to Berashk. Cf. United States v. Chemical Foundation, Inc., 272 U. S. 1, 14–15 (1926). Din claims due process requires she be provided with the facts underlying this determination, arguing Mandel required a similar factual basis. It is true the Attorney General there disclosed the facts motivating his decision to deny Dr. Mandel a waiver, and that the Court cited those facts as demonstrating “the Attorney General validly exercised the plenary power that Congress delegated to the Executive." 408 U. S., at 769. But unlike the waiver provision at issue in Mandel, which granted the Attorney General nearly unbridled discretion, §1182(a)(3)(B) specifies discrete factual predicates the consular officer must find to exist before denying a visa. Din, moreover, admits in her Complaint that Berashk worked for the Taliban government, App. 27–28, which, even if itself insufficient to support exclusion, provides at least a facial connection to terrorist activity. Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to "look behind" the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed. See 408 U. S., at 770.

The Government, furthermore, was not required, as Din claims, to point to a more specific provision within §1182(a)(3)(B). To be sure, the statutory provision the consular officer cited covers a broad range of conduct. And Din perhaps more easily could mount a challenge to her husband’s visa denial if she knew the specific subsection on which the consular officer relied. Congress understood this problem, however. The statute generally requires the Government to provide an alien denied a visa with the "specific provision or provisions of law under which the alien is inadmissible," §1182(b)(1); but this notice requirement does not apply when, as in this case, a visa application is denied due to terrorism or national security concerns. §1182(b)(3). Notably, the Government is not prohibited from offering more details when it sees fit, but the statute expressly refrains from requiring it to do so.

Congress evaluated the benefits and burdens of notice in this sensitive area and assigned discretion to the Executive to decide when more detailed disclosure is appropriate. This considered judgment gives additional support to the independent conclusion that the notice given was constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses. See Fiallo v. Bell, 430 U. S. 787, 795–796 (1977); see also INS v. Aguirre-Aguirre, 526 U. S. 415, 425 (1999). And even if Din is correct that sensitive facts could be reviewed by courts in camera, the dangers and difficulties of handling such delicate security material further counsel against requiring disclosure in a case such as this. Under Mandel, respect for the political branches’ broad power over the creation and administration of the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad.

For these reasons, my conclusion is that the Government satisfied any obligation it might have had to provide Din with a facially legitimate and bona fide reason for its action when it provided notice that her husband was denied admission to the country under §1182(a)(3)(B). By requiring the Government to provide more, the Court of Appeals erred in adjudicating Din’s constitutional claims.