Is There a Facially Legitimate and Bona Fide Reason for Denying the Berashk Visa?

The administration's writ of certiorari complaint in the case of John F. Kerry, Secretary of State, et al., Petitioners, v. Fauzia Din, illustrates the government's unwarranted obsession with secrecy in visa determinations.

The trigger for the certiorari writ was the Ninth Circuit's ruling that American citizens are entitled to know why spousal visas are denied. The case under consideration concerns Fauzia Din, an American citizen and her husband Kanishka Berashk, an Afghan national.

Shortly after her marriage to Mr. Berashk in 2006 Ms Din filed an immigrant visa petition on behalf of her husband. The petition was approved by U.S. Citizenship and Immigration Services [USCIS].

Mr. Berashk then visited the U.S.Embassy in Islamabad to apply for his visa. Generally visa applications are granted or denied in a six-week period. Mr. Berashk was not notified by the U.S. Embassy until June 2009 that his visa request was denied due the belief that he had engaged in terrorist activities. The government notified Mr. Berashk that its decision was final and not subject to appeal. With all avenues closed Ms. Din decided to challenge the consulate's decision by asking for judicial review. The district court hearing Ms. Din's complaint elected to dismiss the case based on the doctrine of consular nonreviewability. This rule prohibits the judiciary from questioning visa decisions.

The next court assessing the Din complaint was the Ninth Circuit. They ruled that an American citizen has the right to know why her husband was denied a visa,  Being that the case involves national security the court suggested an in camera hearing so a judge could evaluate the worth of the government's allegation. This suggestion was rejected by the administration because in its opinion federal judges cannot be trusted with national security matters.

Because the government has refused to provide any documentation regarding Mr. Berashk's persona non grata status the Ninth Circuit said the government's terrorist claim is not valid. In other words without evidence there is no facially legitimate and bona fide reason for denying the Berashk visa.

If the administration wins its writ of certiorari petition pending before the Supreme Court neither Mr. Berashk, his wife nor the public will ever know if there is any merit to the terrorist claim. Several groups have filed amicus briefs on Ms. Din's behalf. Most notably is the one filed by Former Consular Officers. In their brief the group said present day visa evaluations are not based on consular input but rather on often faulty data drawn from suspect sources. In the officers' opinion:

Judicial review is a necessary safety valve for visa denials relying on databases and watchlists that are compiled with variable reliability by multiple agencies, several of which have no authority over visa decisions.

Executive and congressional decisions often violate constitutional boundaries. Judicial review keeps these parties on notice that there is another group reviewing their activities.