My hus­band, the ‘ter­ror­ist’

Los Angeles Times - - OPINION - He Supreme Court

Truled this week that the Con­sti­tu­tion didn’t re­quire the State Depart­ment to pro­vide a de­tailed ex­pla­na­tion to a Fre­mont woman about why it had re­fused to grant her Afghan hus­band a visa. The court’s de­ci­sion was the cor­rect one, but even if such no­tice isn’t con­sti­tu­tion­ally re­quired, the depart­ment and, if nec­es­sary, Congress should re­quire more trans­parency in the visa process.

In 2006, Fauzia Din, a U.S. citizen, pe­ti­tioned to have her hus­band, Kan­ishka Berashk, de­clared an im­me­di­ate rel­a­tive, a first step to ob­tain­ing a visa for him to live in this coun­try. Berashk was in­ter­viewed by an of­fi­cial at the U.S. Em­bassy in Pak­istan, but his ap­pli­ca­tion was de­nied in 2009 un­der a pro­vi­sion of the law that ex­cludes ap­pli­cants linked to “ter­ror­ist ac­tiv­i­ties.” No more de­tailed ex­pla­na­tion was pro­vided, though it’s known that he worked as a clerk in Afghanistan’s Min­istry of So­cial Wel­fare un­der the Tal­iban.

Din filed suit, and the U.S. 9th Cir­cuit Court of Ap­peals ruled that the gov­ern­ment had failed to pro­vide a “fa­cially le­git­i­mate and bona fide rea­son” for the de­nial of her hus­band’s ap­pli­ca­tion. Din was owed such an ex­pla­na­tion, it said, be­cause the de­nial in­ter­fered with her “pro­tected lib­erty in­ter­est in mar­riage.”

On Mon­day, the Supreme Court set aside that de­ci­sion on a 5-4 vote. Writ­ing for him­self, Chief Jus­tice John G. Roberts Jr. and Jus­tices Clarence Thomas and An­tonin Scalia re­jected in mock­ing terms the no­tion that the Con­sti­tu­tion pro­tects Din’s right to live with her hus­band in the U.S. Two other jus­tices, An­thony M. Kennedy and Sa­muel A. Al­ito Jr., said there was no need to de­cide whether there was such a right. Even if there were, Kennedy said, the gov­ern­ment sat­is­fied due process by ex­plain­ing that Berashk was be­ing ex­cluded be­cause of “ter­ror­ist ac­tiv­i­ties.”

We agree that it’s a stretch to con­clude that the con­sti­tu­tional right to marry in­cludes a right to live with one’s spouse in the U.S. even if that spouse has been de­ported or judged in­ad­mis­si­ble (or, to imag­ine another sce­nario, im­pris­oned). But as a pol­icy ques­tion, it’s trou­bling that the gov­ern­ment can refuse to is­sue a visa for the rel­a­tive of a U.S. citizen sim­ply by as­sert­ing a vague con­nec­tion to ter­ror­ism. Given the er­rors that have in­fested the ter­ror­ist screen­ing data­base and no-fly lists, it’s easy to be­lieve that con­sular of­fi­cials might be wrongly la­bel­ing ap­pli­cants as ter­ror­ists.

The law lists sev­eral spe­cific ac­tions that might trig­ger a “ter­ror­ist” ex­clu­sion, in­clud­ing mem­ber­ship or mil­i­tary train­ing in a ter­ror­ist or­ga­ni­za­tion. And while the gov­ern­ment isn’t re­quired to pro­vide such specifics when it de­nies a visa ap­pli­ca­tion, there’s noth­ing that pre­vents it from do­ing so (in Kennedy’s words) “when it sees fit.” The State Depart­ment should make such dis­clo­sure the rule, not the ex­cep­tion.

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