Supreme Court Case on Immigration

The first case, Kerry v. Din, discusses the rights of Kanishka Berashk, the spouse of Fauzia Din, to be able to immigrate to the U.S. to join Din, who is a U.S. citizen.  After the U.S. State Department denied Berashk’s visa application, citing a broad terrorism-related statute because he used to work in the Taliban-controlled government, he sued Secretary of State John Kerry and tried to get the high court to review that denial.

The Supreme Court held that because Berashk is not a U.S. citizen, he did not have the right to get a court review, and his U.S. citizen wife also did not have a due-process right to get the visa denial challenged in a federal court.Steven Yale-Loehr, a law professor at Cornell University, said the Supreme Court’s decision on this case has a much broader impact on immigration to the U.S.  

“If a U.S. citizen marries a Chinese citizen in China and tries to petition through the green-card process to have the foreign spouse come over to the United States, and if the U.S. (consulate) in Guangzhou were to deny the visa because the foreign spouse is a former member of the Communist Party, or they allege maybe the Chinese citizen committed some crimes in the past even though it is unproven, that would not be reviewable in the U.S. court,” Yale-Loehr said.That means the couple would be either separated or the U.S. citizen spouse would have to move to China to live there with his or her spouse, he added.

Kerry William Bretz, a New York-based immigration attorney, said the court clearly separated the rights for people inside and outside the U.S.“Due process applies to people who are in the United States, whether you are a citizen, not a citizen and you cross the border without inspection,” Bretz said. “It does not apply to people abroad.

"Most of the folks that are looking for review of the denial of visas are abroad and they are asking for a nonimmigrant visa, and any nonimmigrant visa is at the discretion of the Department of State," he said.