Kerry v. Din,
576 U.S. ___ (2015)

Annotate this Case

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 13–1402

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JOHN F. KERRY, SECRETARY OF STATE, et al., PETITIONERS v. FAUZIA DIN

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 15, 2015]

Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Thomas join.

Fauzia Din is a citizen and resident of the United States. Her husband, Kanishka Berashk, is an Afghan citizen and former civil servant in the Taliban regime who resides in that country. When the Government declined to issue an immigrant visa to Berashk, Din sued.

The state action of which Din complains is the denial of Berashk’s visa application. Naturally, one would expect him—not Din—to bring this suit. But because Berashk is an unadmitted and nonresident alien, he has no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission. See Kleindienst v. Mandel, 408 U. S. 753, 762 (1972) . So, Din attempts to bring suit on his behalf, alleging that the Government’s denial of her husband’s visa application violated her constitutional rights. See App. 36–37, Complaint ¶56. In particular, she claims that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse. There is no such constitutional right. What Justice Breyer’s dissent strangely describes as a “deprivation of her freedom to live together with her spouse in America,” post, at 4–5, is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse’s freedom to immigrate into America.

For the reasons given in this opinion and in the opinion concurring in the judgment, we vacate and remand.

I

A

Under the Immigration and Nationality Act (INA), 66Stat. 163, as amended, 8 U. S. C. §1101 et seq., an alien may not enter and permanently reside in the United States without a visa. §1181(a). The INA creates a special visa-application process for aliens sponsored by “immediate relatives” in the United States. §§1151(b), 1153(a). Under this process, the citizen-relative first files a petition on behalf of the alien living abroad, asking to have the alien classified as an immediate relative. See §§1153(f), 1154(a)(1). If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer. See §§1201(a)(1), 1202. Before issuing a visa, the consular officer must ensure the alien is not inadmissible under any provision of the INA. §1361.

One ground for inadmissibility, §1182(a)(3)(B), covers “[t]errorist activities.” In addition to the violent and destructive acts the term immediately brings to mind, the INA defines “terrorist activity” to include providing material support to a terrorist organization and serving as a terrorist organization’s representative. §1182(a)(3)(B)(i), (iii)–(vi).

B

Fauzia Din came to the United States as a refugee in 2000, and became a naturalized citizen in 2007. She filed a petition to have Kanishka Berashk, whom she married in 2006, classified as her immediate relative. The petition was granted, and Berashk filed a visa application. The U. S. Embassy in Islamabad, Pakistan, interviewedBerashk and denied his application. A consular officer informed Berashk that he was inadmissible under §1182(a)(3)(B) but provided no further explanation.

Din then brought suit in Federal District Court seeking a writ of mandamus directing the United States to prop-erly adjudicate Berashk’s visa application; a declaratory judgment that 8 U. S. C. §1182(b)(2)–(3), which exempts the Government from providing notice to an alien found inadmissible under the terrorism bar, is unconstitutional as applied; and a declaratory judgment that the denial violated the Administrative Procedure Act. App. 36–39, Complaint ¶¶55–68. The District Court granted the Government’s motion to dismiss, but the Ninth Circuit reversed. The Ninth Circuit concluded that Din “has a protected liberty interest in marriage that entitled [her] to review of the denial of [her] spouse’s visa,” 718 F. 3d 856, 860 (2013), and that the Government’s citation of §1182(a)(3)(B) did not provide Din with the “limited judicial review” to which she was entitled under the Due Process Clause, id., at 868. This Court granted certiorari. 573 U. S. ___ (2014).

II

The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” Although the amount and quality of process that our precedents have recognized as “due” under the Clause has changed considerably since the founding, see Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 –36 (1991) (Scalia, J., concurring in judgment), it remains the case that no process is due if one is not deprived of “life, liberty, or property,” Swarthout v. Cooke, 562 U. S. 216, 219 (2011) (per curiam). The first question that we must ask, then, is whether the denial of Berashk’s visa application deprived Din of any of these interests. Only if we answer in the affirmative must we proceed to consider whether the Government’s explanation afforded sufficient process.

A

The Due Process Clause has its origin in Magna Carta. As originally drafted, the Great Charter provided that “[n]o freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.” Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797) (emphasis added). The Court has recognized that at the time of the Fifth Amendment’s ratification, the words “due process of law” were understood “to convey the same meaning as the words ‘by the law of the land’ ” in Magna Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276 (1856). Although the terminology associated with the guarantee of due process changed dramatically between 1215 and 1791, the general scope of the underlying rights protected stayed roughly constant.

Edward Coke, whose Institutes “were read in the American Colonies by virtually every student of law,” Klopfer v. North Carolina, 386 U. S. 213, 225 (1967) , thoroughly described the scope of the interests that could be deprived only pursuant to “the law of the land.” Magna Carta, he wrote, ensured that, without due process, “no man [may] be taken or imprisoned”; “disseised of his lands, or tenements, or dispossessed of his goods, or chattels”; “put from his livelihood without answer”; “barred to have the benefit of the law”; denied “the franchises, and priviledges, which the subjects have of the gift of the king”; “exiled”; or “fore-judged of life, or limbe, disherited, or put to torture, or death.” 1 Coke, supra, at 46–48. 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.” 1 W. Blackstone, Commentaries on the Laws of England 125 (1769). Second, the “personal liberty of individuals” “consist[ed] in the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint.” Id., at 130. And finally, a person’s right to property included “the free use, enjoyment, and disposal of all his acquisitions.” Id., at 134.

Din, of course, could not conceivably claim that the denial of Berashk’s visa application deprived her—or for that matter even Berashk—of life or property; and under the above described historical understanding, a claim that it deprived her of liberty is equally absurd. The Government has not “taken or imprisoned” Din, nor has it “confine[d]” her, either by “keeping [her] against h[er] will in a private house, putting h[er] in the stocks, arresting or forcibly detaining h[er] in the street.” Id., at 132. 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.) 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.” Reno v. Flores, 507 U. S. 292 –302 (1993). Din does not explicitly argue that the Government has violated this absolute prohibition of the substantive component of the Due Process Clause, likely because it is obvious that a law barring aliens engaged in terrorist activities from entering this country is narrowly tailored to serve a compelling state interest. She nevertheless insists that, because enforcement of the law affects her enjoyment of an implied fundamental liberty, the Govern-ment must first provide her a full battery of procedural-due-process protections.

I think it worth explaining why, even if one accepts the textually unsupportable doctrine of implied fundamental rights, Din’s arguments would fail. Because “extending constitutional protection to an asserted right or liberty interest . . . place[s] the matter outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) , and because the “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended,” Collins v. Harker Heights, 503 U. S. 115, 125 (1992) , “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field,” ibid. Accordingly, before conferring constitutional status upon a previously unrecognized “liberty,” we have required “a careful description of the asserted fundamental liberty interest,” as well as a demonstration that the interest is “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” Glucksberg, supra, at 720–721 (citations and internal quotation marks omitted).

Din describes the denial of Berashk’s visa application as implicating, alternately, a “liberty interest in her marriage,” Brief for Respondent 28, a “right of association with one’s spouse,” id., at 18, “a liberty interest in being reunited with certain blood relatives,” id., at 22, and “the liberty interest of a U. S. citizen under the Due Process Clause to be free from arbitrary restrictions on his right to live with his spouse,” ibid. To be sure, this Court has at times indulged a propensity for grandiloquence when reviewing the sweep of implied rights, describing them so broadly that they would include not only the interests Din asserts but many others as well. For example: “Without doubt, [the liberty guaranteed by the Due Process Clause] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in anyof the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship God according to the dictates of his own conscience” Meyer v. Nebraska, 262 U. S. 390, 399 (1923) . But this Court is not bound by dicta, especially dicta that have been repudiated by the holdings of our subsequent cases. And the actual holdings of the cases Din relies upon hardly establish the capacious right she now asserts.

Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967) , Zablocki v. Redhail, 434 U. S. 374 (1978) , and Turner v. Safley, 482 U. S. 78 (1987) , the Federal Government here has not attempted to forbid a marriage. Al-though Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. 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. Meyer, for example, invalidated a state statute proscribing the teaching of foreign language to children who had not yet passed the eighth grade, reasoning that it violated the teacher’s “right thus to teach and the right of parents to engage him so to instruct their children.” 262 U. S., at 400. Pierce v. Society of Sisters, 268 U. S. 510 –535 (1925), extended Meyer, finding that a law requiring children to attend public schools “interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Moore v. East Cleveland, 431 U. S. 494 –506 (1977), extended this interest in raising children to caretakers in a child’s extended family, striking down an ordinance that limited occupancy of a single-family house to members of a nuclear family on the ground that “[d]ecisions concerning child rearing . . . long have been shared with grandparents or other relatives.” And Griswold v. Connecticut, 381 U. S. 479, 485 (1965) , concluded that a law criminalizing the use of contraceptives by married couples violated “penumbral rights of ‘privacy and repose’ ” protecting “the sacred precincts of the marital bedroom”—rights which do not plausibly extend into the offices of our consulates abroad.

Nothing in the cases Din cites establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship. Even if our cases could be construed so broadly, the relevant question is not whether the asserted interest “is consistent with this Court’s substantive-due-process line of cases,” but whether it is supported by “this Nation’s history and practice.” Glucksberg, 521 U. S., at 723–724 (emphasis deleted). Even if we might “imply” a liberty interest in marriage generally speaking, that must give way when there is a tradition denying the specific application of that general interest. Thus, Glucksberg rejected a claimed liberty interest in “self-sovereignty” and “personal autonomy” that extended to assisted suicide when there was a longstanding tradition of outlawing the practice of suicide. Id., at 724, 727–728 (internal quotation marks omitted).

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 unregu-lated 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. See Abrams, What Makes the Family Special? 80 U. Chi. L. Rev. 7, 10–16 (2013).

Most strikingly, perhaps, the Expatriation Act of 1907 provided that “any American woman who marries a foreigner shall take the nationality of her husband.” Ch. 2534, 34Stat. 1228. 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 fiancés and husbands from the family relations eligible for preferred status in the allocation of quota spots. §2(d), 42Stat. 6. Such relations were similarly excluded from the relations eligible for nonquota status, when that status was expanded three years later. Immigration Act of 1924, §4(a), 43Stat. 155.

To be sure, these early regulations were premised on the derivative citizenship of women, a legacy of the law of coverture that was already in decline at the time. C. Bredbenner, A Nationality of Her Own 5 (1998). Modern equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order. Never-theless, this all-too-recent practice repudiates any con-tention that Din’s asserted liberty interest is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” Glucksberg, supra, at 720 (citations and internal quotations marks omitted).

Indeed, the law showed little more solicitude for the marital relationship when it was a male resident or citizen seeking admission for his fiancée or wife. The Immigration Act of 1921 granted nonquota status only to unmarried, minor children of citizens, §2(a), while granting fiancées and wives preferred status within the allocation of quota spots, §2(d). In other words, a citizen could move his spouse forward in the line, but once all the quota spots were filled for the year, the spouse was barred without exception. This was not just a theoretical possibility: As one commentator has observed, “[f]or many immigrants, the family categories did little to help, because the quotas were so small that the number of family members seeking slots far outstripped the number available.” Abrams, supra, at 13.

Although Congress has tended to show “a continuing and kindly concern . . . for the unity and the happiness of the immigrant family,” E. Hutchinson, Legislative History of American Immigration Policy 1798–1965, p. 518 (1981), this has been a matter of legislative grace rather than fundamental right. Even where Congress has provided special privileges to promote family immigration, it has also “written in careful checks and qualifications.” Ibid. This Court has consistently recognized that these various distinctions are “policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress.” Fiallo v. Bell, 430 U. S. 787, 798 (1977) . Only by diluting the meaning of a fundamental liberty interest and jettisoning our established jurisprudence could we conclude that the denial of Berashk’s visa application implicates any of Din’s fundamental liberty interests.

C

Justice Breyer suggests that procedural due process rights attach to liberty interests that either are (1) created by nonconstitutional law, such as a statute, or (2) “sufficiently important” so as to “flow ‘implicit[ly]’ from the design, object, and nature of the Due Process Clause.” Post, at 2.

The first point is unobjectionable, at least given this Court’s case law. See, e.g., Goldberg v. Kelly, 397 U. S. 254 , and n. 8 (1970); Collins 503 U. S., at 129. But it is unhelpful to Din, who does not argue that a statute confers on her a liberty interest protected by the Due Process Clause. Justice Breyer attempts to make this argument for Din, latching onto language in Wilkinson v. Austin, 545 U. S. 209, 221 (2005) , saying that a liberty interest “may arise from an expectation or interest created by state laws or policies.” Such an “expectation” has been created here, he asserts, because “the law . . . surrounds marriage with a host of legal protections to the point that it creates a strong expectation that government will not deprive married individuals of their freedom to live together without strong reasons and (in individual cases) without fair procedure,” post, at 3. But what Wilkinson meant by an “expectation or interest” was not that sort of judicially unenforceable substantial hope, but a present and legally recognized substantive entitlement.[1]* As sole support for its conclusion that nonconstitutional law can create constitutionally protected liberty interests, Wilkinson cited Wolff v. McDonnell, 418 U. S. 539 –558 (1974), which held that a prisoner could not be deprived of statutory good-time credit without procedural due process. That was not because a prisoner might have “ ‘a strong expectation’ ” that the government would not deprive him of good-time credit “ ‘without strong reasons’ ” or “ ‘fair procedure,’ ” but because “the State itself has not only provided a statutory right to good time [credit] but also specifies that it is to be forfeited only for serious misbehavior,” id., at 557 (emphasis added). 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.

Justice Breyer’s second point—that procedural due process rights attach even to some nonfundamental liberty interests that have not been created by statute—is much more troubling. He relies on the implied-fundamental-rights cases discussed above to divine a “right of spouses to live together and to raise a family,” along with “a citizen’s right to live within this country.” Post, at 2–3. But perhaps recognizing that our established methodology for identifying fundamental rights cuts against his conclusion, see Part II–B, supra, he argues that the term “liberty” in the Due Process Clause includes implied rights that, although not so fundamental as to deserve substantive-due-process protection, are important enough to deserve procedural-due-process protection. Post, at 2. In other words, there are two categories of implied rights protected by the Due Process Clause: really fundamental rights, which cannot be taken away at all absent a compelling state interest; and not-so-fundamental rights, whichcan be taken away so long as procedural due process is observed.

The dissent fails to cite a single case supporting its novel theory of implied nonfundamental rights. It is certainly true that Vitek v. Jones, 445 U. S. 480 (1980) , and Washington v. Harper, 494 U. S. 210 (1990) , do not entail implied fundamental rights, but this is because they do not entail implied rights at all. Vitek concerned the involuntary commitment of a prisoner, deprivation of the expressly protected right of liberty under the original understanding of the term, see Part II–A, supra. “ ‘Among the historic liberties’ protected by the Due Process Clause is the ‘right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.’ ” Vitek, supra, at 492. The same is true of Harper, which concerned forced administration of psychotropic drugs to an inmate. 494 U. S., at 214. Arguably, Paul v. Davis, 424 U. S. 693 (1976) , also addressed an interest expressly contemplated within the meaning of “liberty.” 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. Paul, supra, at 713–714. Finally, the dissent points to Goss v. Lopez, 419 U. S. 565, 574 (1975) , a case that “recognize[d] . . . as a property interest” a student’s right to a public education conferred by Ohio’s express statutory creation of a public school system; and further concluded that the student’s 10-day suspension implicated the constitutionally grounded liberty interest in “ ‘a person’s good name, reputation, honor, or integrity.’ ”

Ultimately, the dissent identifies no case holding that there is an implied nonfundamental right protected by procedural due process, and only one case even suggesting that there is. That suggestion, in Smith v. Organization of Foster Families For Equality & Reform, 431 U. S. 816 (1977) , is contained in dictum in a footnote, id., at 842, n. 48. The holding of the case was that “the procedures provided by New York State . . . and by New York Cit[y] . . . are adequate to protect whatever liberty interests appellees may have.” Id., at 856 (emphasis added).

The footnoted dictum that Justice Breyer proposes to elevate to constitutional law is a dangerous doctrine. It vastly expands the scope of our implied-rights jurisprudence by setting it free from the requirement that the liberty interest be “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty,” Glucksberg, 521 U. S., at 720–721 (internal quotation marks omitted). Even shallow-rooted liberties would, thanks to this new procedural-rights-only notion of quasi-fundamental rights, qualify for judicially imposed procedural requirements. Moreover, Justice Breyer gives no basis for distinguishing the fundamental rights recognized in the cases he depends on from the nonfundamental right he believes they give rise to in the present case.

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 di-rectly affects a citizen’s legal rights, or imposes a direct re-straint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.” O’Bannon v. Town Court Nursing Center, 447 U. S. 773, 788 (1980) . 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. This might, indeed, deprive Din of something “important,” post, at 2, but if that is the criterion for Justice Breyer’s new pairing of substantive and procedural due process, we are in for quite a ride.

*  *  *

Because Fauzia Din was not deprived of “life, liberty, or property” when the Government denied Kanishka Berashk admission to the United States, there is no process due to her under the Constitution. To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required. The judgment of the Ninth Circuit is vacated, and the case is remanded for further proceedings.

It is so ordered.

Notes

1 * Justice Breyer characterizes this as a reintroduction of “the rights/privilege distinction that this Court rejected almost five decades ago.” Post, at 3. Not so. All I insist upon (and all that our cases over the past five decades require) is that the privilege be one to which the claimant has been given an entitlement.
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