Kerry v. Din
The Supreme Court ruled against an American citizen who sued after the government denied her Afghan husband a visa without explaining why, beyond citing the law's terrorism-related exclusion.
No single opinion commanded five votes on the reasoning, but a majority agreed the case should be sent back without requiring the government to give her more information, reinforcing how little citizens can challenge in visa denials affecting their spouses.
“There is no such constitutional right.”
Scalia's blunt rejection of any constitutional right to live in the U.S. with one's spouse.
How it got here: A federal district court dismissed Din's suit; the Ninth Circuit reversed, finding a protected liberty interest requiring more explanation; the government sought Supreme Court review.
The Case in Depth
What happened
Fauzia Din, a U.S. citizen, petitioned for her husband Kanishka Berashk, an Afghan citizen and former civil servant under the Taliban government, to be classified as her immediate relative for immigration purposes. The petition was approved, but a consular officer later denied Berashk's visa application, citing only the statute's terrorism-related inadmissibility provision without further explanation, leaving Din unable to learn the specific reasons.
The question before the Court
Can a U.S. citizen challenge the government's denial of her husband's visa when officials give only a bare citation to the terrorism law as their reason?
The Court's answer
No — a plurality of the Court found Din has no constitutional liberty interest at stake at all, while a separate two-justice opinion assumed she does but concluded the government's brief citation to the terrorism-exclusion statute, plus her own admission that her husband worked for the Taliban government, was enough to satisfy due process. Together, five justices agreed the government did not need to explain further.
Because no single opinion drew five votes on the reasoning, lower courts have generally treated Justice Kennedy's narrower opinion — assuming a liberty interest but finding minimal notice sufficient — as controlling going forward. The Ninth Circuit's requirement that the government provide a more detailed explanation was rejected either way.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
American citizens married to noncitizens denied visas for security-related reasons will typically get only a bare statutory citation, not a detailed explanation, and will have very limited ability to challenge that decision in court. The ruling reinforces the government's broad, largely unreviewable power over visa decisions, especially those touching national security.
What changes now
The case is sent back to the lower courts, but with the practical effect that Din's suit fails: five justices agreed the government need not provide more explanation than a bare citation to the terrorism-exclusion statute. Because no single rationale commanded a majority, lower courts have had to determine which opinion controls, though Kennedy's narrower "facially legitimate and bona fide" standard is generally treated as the controlling one.
What this does not decide
The Court did not decide, as a majority, whether a citizen has any protected liberty interest in a spouse's visa application at all. Justice Kennedy's controlling opinion expressly assumed such an interest without deciding it, resolving the case solely on the ground that any required notice was already adequate.
Concurrences and dissents
Concurrence — Justice Kennedy
Justice Kennedy agreed the judgment must be vacated but declined to decide whether Din has a protected liberty interest at all. Assuming she does, he concluded the consular officer's citation of the terrorism-bar statute, combined with Din's admission that her husband worked for the Taliban government, satisfied the deferential 'facially legitimate and bona fide' standard from Kleindienst v. Mandel, so no further explanation was constitutionally required.
Dissent — Justice Breyer
“How could a Constitution that protects individuals against the arbitrary deprivation of so diverse a set of interests not also offer some form of procedural protection to a citizen threatened with governmental deprivation of her freedom to live together with her spouse in America?”Breyer's core objection that the majority undervalues the marital liberty interest at stake.
Justice Breyer argued Din has a procedurally protected liberty interest in living with her husband, rooted both in the importance of marriage and in the government's own statutory scheme favoring family reunification. He would have held that due process requires at least an adequate statement of reasons, and that citing a sprawling statutory provision covering dozens of different scenarios, with no factual basis, does not meet that minimum. He would affirm the Ninth Circuit.
How the Court got there
The legal reasoning, step by step
- Justice Scalia's opinion, for three justices, first asked whether the visa denial deprived Din herself of life, liberty, or property under a historical understanding of due process, concluding it did not because she was never confined, detained, or restrained in any traditional sense.
- Even accepting the Court's more modern doctrine recognizing implied fundamental rights not written into the Constitution's text, the opinion applied the test from Washington v. Glucksberg asking whether an asserted right is deeply rooted in the nation's history and tradition, not merely consistent with prior cases.
- Because the government has long imposed serious restrictions on spousal immigration throughout U.S. history, the opinion concluded no deeply rooted fundamental right to a spouse's admission existed, so Din's claim failed at the threshold.
- Justice Kennedy's separate opinion, joined by one other justice, avoided deciding whether Din had a liberty interest at all and instead applied the narrow test from Kleindienst v. Mandel, asking only whether the government gave a facially legitimate and bona fide reason for excluding the husband.
- Because the consular officer cited a specific statutory terrorism provision and Din admitted her husband had worked for the Taliban government, the Kennedy opinion found that minimal standard satisfied, without requiring further factual disclosure.
Doctrinal impact
Cases affected by this decision
Reaffirms Kleindienst v. Mandel (408 U. S. 753)
The Court relied on Mandel's deferential 'facially legitimate and bona fide' test to resolve the visa dispute.
Reaffirms Washington v. Glucksberg (521 U. S. 702)
The plurality used Glucksberg's history-and-tradition test to reject Din's claimed fundamental right.