Supreme Court of the United States

“ Here, 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. Although immigration was effectively unregu­lated prior to 1875, as soon as Congress began legislating in this area it enacted a complicated web of regulations that erected serious impediments to a person’s ability to bring a spouse into the United States. ”

“ 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. ”

“ Indeed, not even Berashk has suffered a deprivation of liberty so understood.
B Despite this historical evidence, this Court has seen fit on several occasions to expand the meaning of "liberty" under the Due Process Clause to include certain implied "fundamental rights." (The reasoning presumably goes like this: If you have a right to do something, you are free to do it, and deprivation of freedom is a deprivation of "liberty"—never mind the original meaning of that word in the Due Process Clause.) ”

“ The Government has not refused to recognize Din’s marriage to Berashk, and Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside. And the Government has not expelled Din from the country. It has simply determined that Kanishka Berashk engaged in terrorist activities within the meaning of the Immigration and Nationality Act, and has therefore denied him admission into the country. ”

“ Our cases make clear that the Due Process Clause entitles her to such procedural rights as long as (1) she seeks protection for a liberty interest sufficiently important for procedural protection to flow "implicit [ly] " from the design, object, and nature of the Due Process Clause, or (2) nonconstitutional law (a statute, for example) creates "an expectation" that a person will not be deprived of that kind of liberty without fair procedures. Wilkinson, supra, at 221.
The liberty for which Ms. Din seeks protection easily satisfies both standards. ”

“ See 1 W. Blackstone, Commentaries on the Laws of England 125 ("The right of personal security consists in a person’s . . . reputation") . But that case is of no help to the dissent anyway, since it found no liberty interest entitled to the Due Process Clause’s protection. ”

“ 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. ”

“ Din relies on the “associational interests in marriage that necessarily are protected by the right to marry," and that are "presuppose [d] " by later cases estab­lishing a right to marital privacy. Brief for Respondent 16, 18. The dissent supplements the fundamental right to marriage with a fundamental right to live in the United States in order to find an affected liberty interest. Post, at 2–3 (Breyer, J., dissenting) .
Attempting to abstract from these cases some liberty interest that might be implicated by Berashk’s visa denial, Din draws on even more inapposite cases. ”

“ Thus, a woman in Din’s position not only lacked a liberty interest that might be affected by the Government’s disposition of her husband’s visa applica­tion, she lost her own rights as a citizen upon marriage. When Congress began to impose quotas on immigration by country of origin less than 15 years later, with the Immi­gration Act of 1921, it omitted fiances and husbands from the family relations eligible for preferred status in the allocation of quota spots. ”

“ Neither Din’s right to live with her spouse nor her right to live within this country is implicated here. There is a "simple distinction between government action that di­rectly affects a citizen’s legal rights, or imposes a direct re­straint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or inci­dentally." ”

“ An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.
" (ii) Exception
"Subclause (IX) of clause (i) does not apply to a spouse or child—
" (I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or
" (II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section. ”

“ Blackstone’s description of the rights protected by Magna Carta is similar, al­ though he discusses them in terms much closer to the "life, liberty, or property" terminology used in the Fifth Amendment. He described first an interest in "personal security," "consist [ing] in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation." ”

“ The "private interest" is important, the risk of an "erroneous deprivation" is significant, and the Government’s interest in not providing a reason is normally small, at least administratively speaking. Indeed, Congress requires the State Department to provide a reason for a visa denial in most contexts. ”

“ The legal benefits afforded to marriages and the preferential treatment accorded to visa applicants with citizen relatives are insuf­ficient to confer on Din a right that can be deprived only pursuant to procedural due process. ”

“ Perhaps the Department denied the visa because Ms. Din’s husband at one point was a payroll clerk for the Afghan Government when that government was controlled by the Taliban. See ante, at 5 (opinion of Kennedy, J.) . But there is no way to know if that is so.
The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of "breaking the law"; telling a property owner only that he cannot build because environmental rules forbid it ”

“ These implied rights have been given more protection than "life, liberty, or property" properly understood. While one may be dispossessed of property, thrown in jail, or even executed so long as proper procedures are followed, the enjoyment of implied consti­tutional rights cannot be limited at all, except by provi­sions that are "narrowly tailored to serve a compelling state interest." ”

“ Taken together the subsections, directly or through crossreference, cover a vast waterfront of human activity potentially benefitting, sometimes in major ways, sometimes hardly at all, sometimes directly, sometimes indirectly, sometimes a few people, sometimes many, sometimes those with strong links, sometimes those with hardly a link, to a loosely or strongly connected group of individuals, which, through many different kinds of actions, might fall within the broad statutorily defined term "terrorist." ”

“ Din should prevail on this constitutional claim. She possesses the kind of "liberty" interest to which the Due Process Clause grants procedural protection. And the Government has failed to provide her with the procedure that is constitutionally "due." ”

“ 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. ”

“ Mandel’s reasoning has particular force here, where national security is involved. Pp. 2–3.
(b) Assuming that Din’s rights were burdened directly by the visa denial, the consular officer’s citation of §1182 (a) (3) (B) satisfies Mandel’s "facially legitimate and bona fide" standard. 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, the Government’s decision to exclude Berashk because he did not satisfy a statutory condition for admissibility is facially legitimate. ”

“ Collins v. Harker Heights, 503 U. S. 115, 125 (1992) , “ [t] he doctrine of judicial selfrestraint requires us to exercise the utmost care whenever we are asked to break new ground in this field," ibid. ”