Guest Blog: Angela Morrison, Kerry v. Din and the Discriminatory Legacy of U.S. Immigration & Naturalization Law

In a plurality opinion, the Court vacated the Ninth Circuit’s decision, which found that United States citizen Fauzia Din had a liberty interest in her marriage to Afghan citizen Kanishka Berashk and that the government deprived her of that liberty interest without due process when it denied Mr. Berashk’s visa application without sufficient explanation. At issue in the case was the doctrine of consular non-reviewability, but as Professor Kevin Johnson noted, because the decision was a plurality it is unlikely to change the doctrine. Justice Scalia’s reliance in the plurality opinion on a statute that stripped women of their citizenship and found its justification in the law of coverture does, however, further demonstrate the sexist history of the United States’ immigration and nationality laws and how it continues to negatively impact women today.

The Case

Ms. Din, who initially entered the United States as a refugee fleeing persecution, has been married to Mr. Berashk since 2006. She filed a visa petition for her husband, which the United States granted, but the embassy, after interviewing Mr. Berashk, denied his visa application. The basis of the denial, according to a consular officer, was that Mr. Din was inadmissible under 8 U.S.C. § 1182(a)(3)(B). That particular provision of the Immigration and Nationality Act lists nine reasons for inadmissibility, all related to terrorist activity. Further, various terms within the nine reasons have up to six different definitions. Nonetheless, the government provided no further explanation of what facts it based its decision on nor even which particular listed reason it relied on. Ms. Din argued that she had a protected liberty interest in her marriage and the government’s failure to provide her with the specific legal reason or the factual basis for the denial deprived her of that interest without sufficient process.

The Justices differed on whether Ms. Din had a liberty interest to justify review; and if Ms. Din did have a liberty interest what level of process she was due. The plurality opinion, authored by Justice Scalia and joined by Justices Roberts and Thomas, concluded that Ms. Din had no protected liberty interest entitling her to due process because there is “no constitutional right to live in the United States with [one’s] spouse.” In the concurrence, Justice Kennedy, joined by Justice Alito, argued that the Court did not need to reach the question of whether Ms. Din had a liberty interest because the government’s citation to the statute as the reason for the denial satisfied due process. Justice Breyer’s dissent recognized that the “freedom to live together with her spouse in America” is a protected liberty interest. The dissent further found that due process requires that the government give notice regarding the basis of its decision because the proceeding that determined the result of Mr. Berashk’s visa application involved the application of the “legal rule to particular facts”. As a result, Justice Breyer argued, the government did not provide adequate notice to Ms. Din by merely citing the statutory provision.

The Good Old Days?

As Professor Elizabeth Keyes pointed out in her recent analysis of the decision, “[t]here is an almost nostalgic wistfulness in [Justice Scalia’s] use of history in this case . . .” And, what is striking (and apparently “most striking[]” to Justice Scalia) about his nostalgia is his reliance on the Expatriation Act of 1907 to support, in part, his assertion that Ms. Din had no protected liberty interest in her marriage. The Expatriation Act of 1907 mandated “any American woman who marries a foreigner shall take the nationality of her husband.” As a result, historian Candice Bredbenner asserts that after 1907, the citizenship of married women in the United States relied solely on the citizenship of their spouse—married women no longer could claim citizenship on the basis of their birth in the United States, the citizenship of their parents, or through their own naturalizations. Candice Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 16 (1989).

Moreover, as Justice Scalia reminds us, the Act and similar regulations that limited women’s ability to sponsor their fiancés and husbands for visas were based on the law of coverture. Under the law of coverture, husbands had the legal right to control their wives’ bodies and property. It justified among other things, “husbands’ rights in their wives’ property and earnings, and prohibit[ing] wives from contracting, filing suit, drafting wills, or holding property in their own names”, corporal punishment doled out to disobedient wives by their husbands, and marital rape. Given the ugliness of this history, Justice Scalia’s reliance on it is misplaced at best.

Despite this history and the impact it had on women, Justice Scalia concedes only that:

Modern equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order. Nevertheless, this all-too-recent practice repudiates any contention that Din’s asserted interest is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.”

Justice Ginsburg dissenting, in another case, Miller v. Albright, called out this sort of reliance on the sexist history of immigration and nationality laws as a basis for policy decisions for what it is—drawing impermissible distinctions based on gender.

The Impact

While the decision, as Justice Kennedy wrote, “should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse,” it has real consequences for all United States citizens, not just citizens with noncitizen family members. As Professor Fatma Marouf explained in her analysis of the oral argument, without any right to review, “thousands of people will remain vulnerable to erroneous visa denials based on inaccurate information in national security databases,” undermining not only family unity but also national security by “detracting attention from real terrorist threats.” Moreover, for Ms. Din it means she will be unable to live with her spouse. That these consequences result, in part, from a decision based on a sexist statute no longer in effect that relied on a legal doctrine that entirely subjugated women to their husbands, is disturbing.

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