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Feb 23, 1:28 PM EST

Court seems split over spouse's right to protest visa denial


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WASHINGTON (AP) -- The Supreme Court seemed divided Monday over whether a California woman can challenge the government's refusal to issue a visa to her husband from Afghanistan.

The justices heard arguments in the case of Fauzia Din, a naturalized U.S. citizen who sued the government after the visa petition she filed for her spouse was rejected in 2009.

Her husband, Kanishka Berashk, had worked as a low-level clerk for the Afghan government when it was controlled by the Taliban and continued working for the government after Taliban rule ended in 2001.

But the U.S. embassy in Pakistan offered no specific explanation for its decision other than to cite to a law allowing exclusion based on "terrorist activities."

His wife argues that she deserves to know the specific reason for the denial based on her marital rights under the Constitution.

Deputy Solicitor General Edwin Kneedler told the justices that a decades-old legal doctrine gives the government broad power to deny visas and that non-citizens have no constitutional right to seek an explanation. He said Din can't get around the law just because her marriage is "indirectly" affected by the decision.

That troubled several justices who seemed frustrated that there was no recourse if the consular officer simply made a careless mistake or used improper reasons. Justice Anthony Kennedy wondered if there were "two Mr. Smiths, or whatever the foreign name is, and they just get the wrong one."

What if the consular officer was racist, Justice Stephen Breyer asked.

Justice Sonia Sotomayor, who wore a cast on her right arm after having surgery to treat compressed nerves, noted that dozens of people were held for months after 9/11 then released when authorities realized they posed no risk.

Kneedler said Congress created a system that allows the government to withhold the specific grounds for denial "if that would adversely impact national security." He said the decisions are confirmed with an advisory opinion from the State Department and all denials are reported to Congress, which provides oversight.

Breyer asked why a judge couldn't review the reason under seal to protect national security. That prompted a tart response from Justice Antonin Scalia.

"Courts are very good at this stuff, aren't they, at assessing the level of danger to operatives," Scalia said.

A federal judge threw out Din's case, but the 9th U.S. Circuit Court of Appeals reversed, finding that Din had a right to get a fuller explanation for the visa denial based on her marital rights.

"There's a liberty interest in not being arbitrarily denied the opportunity to live with your spouse through the erroneous application or interpretation of law," Din's attorney, Mark Haddad, told the justices.

Chief Justice John Roberts wondered if finding a right for Din to challenge the decision would open the door for constitutional challenges from other relatives of people denied visas, such as parents, children or even brothers and sisters.

A ruling is expected by June.

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