Taking Visas to the Supreme Court
On February 23, the Supreme Court heard oral arguments in Kerry v. Din. The U.S. government is seeking a writ of certiorari agreement by the Justices to review a lower court decision granting Ms. Din and her Afghan husband judicial review of his immigrant visa—green card—application. The state department permanently denied permission for the husband to live in the U.S. because he is supposedly a “terrorist,” based on secret information that will not be shared with Ms. Din or her spouse to allow rebuttal. Under present law, the state department’s decision to refuse the green card is subject to no outside review.
Consular officers working overseas for the department of state process visas. In nearly every non-drug-related denial, the foreign spouse can get a waiver and go on to live in the U.S. Throughout the process, the American and her spouse speak directly with the primary decision-maker and be able to rebut the information used against them.
Things change significantly in security cases. The information used to refuse a visa to a “terrorist” comes from the CIA, FBI, or NSA (information is also by intelligence agencies in Canada and Australia) and is highly classified.
Secret Lists and Secret Decisions
How all this works is almost a mini-history of post-Constitutional America.
The State Department’s consular officers issued legal visas to all of the 9/11 terrorists, in part because the CIA failed to pass information on via the computerized Consular Lookout and Support System (CLASS). The number of records have grown 400 percent since 2001 in response, and CLASS is now one of the largest known databases in the world.
A problem with all those records is that many contain only a subject’s name, nationality, and limited identifying information. State department officers regularly wallow through screen after screen of “Muhammad, No Last Name, No Date of Birth, Born in Egypt.” The potential for misidentifying a subject is significant, but the post-9/11 mantra of better safe than sorry leans heavily toward refusal.
Mistakes Were Made
Mistakes entering people in secret databases, and mistakes of identity, are so common that online forms for making airline reservations all include a field for a redress number, a link to a Department of Homeland Security (DHS) file that shows a subject has proven he is not the targeted person. One infamous case involving a database mistake is that of Malaysian doctoral candidate Rahinah Ibrahim, who was placed on the secret No-Fly list and denied the chance to finish her degree at Stanford University. The reason? An FBI agent accidentally checked the wrong box on a paper form.
As in the Ibrahim case, the actual consular officer/decision-maker overseas in the embassy never sees the underlying reporting that led to the data entry. She simply gets an electronic indication that the info exists, and then denies the visa. State Department policies state that she should not “look behind” the computer notice. The denial is based on the assumption that someone at CIA validated the information, that the person applying for the visa is indeed the person in the secret record, and that the information represents a violation of visa law. Once fiercely independent consular officers have become deferential subordinates to anonymous intelligence agency officials.
Such blind use of secret databases is at the heart of Kerry v. Din. Ms. Din seeks judicial review of her husband’s visa denial because, without explanation, he was deemed a “terrorist.” The U.S. Court of Appeals for the Ninth Circuit said she should be entitled to that review; the government’s admonition that everyone should simply trust them to have done the right thing was rejected.
Non-Reviewability of Government Decisions
The government now wants that court decision squashed. It steadfastly ‘defends’ what is known as the doctrine of consular nonreviewability. This early-20th century doctrine maintains no one has a right to a visa, and that Americans do not enjoy a right to live with their spouses. It maintains that any review necessary of a decision should be done internally by the state department itself, under criteria it establishes for itself, becoming a government decision not subject to judicial oversight.
The issue of consular nonreviewability acquired new meaning after 9/11. Key in Kerry v. Din is that the consular officer herself is not actually making any decision per se. She cannot see any of the underlying information on the watch list, and simply defers to the CIA and refuses the visa. CIA claims it did not deny any visa, and points to state.
At issue in Kerry v. Din is the narrow question of whether or not an American citizen can know, and contest, the reason why her spouse cannot live in the United States.
The broader question is more significant: in post-Constitutional America, when more and more of our lives are controlled by secret lists built of secret information of often suspect quality, such as with No-Fly, is the courtroom door open to citizens to challenge our government?
Disclosure: I am a retired consular officer, with 24 years of visa experience, and an amici to the above case.