Guest Blog: Fatma Marouf, Wives, Consulates, and Dangerous Things: The Supreme Court Hears Arguments in Kerry v. Din

When Fauzia Din, a naturalized U.S. citizen, filed a routine visa petition to bring her husband, Kanishka Berashk, to the United States, she could not have imagined the nightmare ahead of her. All went well at Mr. Berashk’s visa interview in Islamabad, Pakistan, where he was told to expect his visa in two to six weeks. But then he received a denial with no explanation other than a general cite to the Immigration and Nationality Act’s terrorism ground of inadmissibility. See 8 U.S.C. § 1182(a)(3)(B).

The Unknown Ground of Inadmissibility

That ground of inadmissibility can be triggered in nine different ways, including if a consular officer “has reasonable ground to believe” that the individual “is engaged or is likely to engage in any terrorist activity.” 8 U.S.C. § 1182(a)(3)(B)(i)(II). In addition, there are six different definitions of terrorist activity, some of which are sweeping, such as the use of any “dangerous device . . . with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(bb).

If this were not complicated enough, there are also six different definitions of what it means to “engage in a terrorist activity,” several of which have multiple subparts, and three different definitions of a “terrorist organization.” See 8 U.S.C. §§ 1182(a)(3)(B)(iii)(V)(bb), (a)(3)(B)(vi). Naturally, Ms. Din wanted to know which of these numerous provisions was being alleged as the basis for denying her husband a visa, but she received no such explanation.

When her case was argued before the Supreme Court on February 23, 2015, the government took the position Ms. Din is not entitled to an explanation beyond a general cite to the statute, maintaining that consular decisions are always, without exception, immune from judicial review. Although the legal basis for the doctrine of consular non-reviewability is itself shaky, as explained in the amicus brief submitted by a group of immigration law professors, what is even more disturbing is that the decision to deny Mr. Berashk’s visa was not really made by a consular officer at all. Rather, the negative information that led to the denial of his visa appears to have come from a national security database, which consular officers are not allowed to question.

The National Security Database

As explained in the amicus brief submitted by former consular officers, when the Consular Lookout and Support System (CLASS), which compiles intelligence information from multiple agencies, flags a ground of inadmissibility, consular officers must assume the finding to be correct and cannot look behind it, even if they don’t know its content and can’t assess its reliability. One of the reasons this is scary is the sheer size of the CLASS database: it contains over 42 million records, over half of which pertain to people found ineligible for visas or against whom there is potentially derogatory information.

Another cause for concern is that one of the databases that supplies watchlists to CLASS is the Terrorist Screening Database (TSDB), which includes people based on very rudimentary information: a partial name, one additional piece of identifying information, and some evidence of a nexus to terrorism. Audits have concluded that the TSDB is poorly maintained, creating a high risk of error, especially due to the FBI’s failure to remove subjects of closed investigations from the database. Although the exact number of names currently included in the TSDB is unknown, it is estimated to be over one million.

Justices Skeptical about the Right to Marry

Judicial review would be the only way to prevent visa denials based on such erroneous information. Whether or not the Court will permit such review, however, remains uncertain after the oral arguments. Ms. Din’s position, argued by Mr. Haddad, emphasized a constitutional due process right to some form of judicial review based on the fundamental right to marry, but several of the Justices expressed skepticism that there is a right to live together with one’s spouse. Even the Justices who showed support for some level of judicial review wanted to steer clear of the constitutional argument. Justice Ginsburg suggested that the statutory right to petition for a spouse could require an explanation of the reason for a visa denial, while Justice Kagan indicated that it would be better to decide the case under the Administrative Procedure Act. Justice Kennedy pointed out that it was odd for Mr. Haddad to be arguing the existence of a fundamental right but requesting only a highly deferential form of review.

Some members of the Court, particularly Justice Scalia, seemed concerned that recognizing a constitutional right in this case would lead to what Justice Sotomayor called a “slew of lawsuits from wives.” Mr. Haddad’s response was that a deferential standard of review would likely discourage lawsuits except in cases where the plaintiffs are convinced there has been an error.

Thousands Remain Vulnerable

If the Court denies Ms. Din any right to judicial review, thousands of people will remain vulnerable to erroneous visa denials based on inaccurate information in national security databases. Foreclosing any challenges to the information in these databases would also allow the errors to continue reverberating through various interconnected security systems. These errors compromise not only family unity, but also national security, by detracting attention from real terrorist threats. Thus, judicial review would play a dual role, providing people access to some form of justice and creating a way to confront flaws in a system designed to protect us from dangerous things.

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