Kerry v. Din , 135 S. Ct. 2128 ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KERRY, SECRETARY OF STATE, ET AL. v. DIN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 13–1402. Argued February 23, 2015—Decided June 15, 2015
Respondent Fauzia Din petitioned to have her husband, Kanishka Be-
rashk, a resident citizen of Afghanistan and former civil servant in
the Taliban regime, classified as an “immediate relative” entitled to
priority immigration status. Din’s petition was approved, but Be-
rashk’s visa application was ultimately denied. A consular officer in-
formed Berashk that he was inadmissible under §1182(a)(3)(B),
which excludes aliens who have engaged in “[t]errorist activities,” but
the officer provided no further information. Unable to obtain a more
detailed explanation for Berashk’s visa denial, Din filed suit in Fed-
eral District Court, which dismissed her complaint. The Ninth Cir-
cuit reversed, holding that Din had a protected liberty interest in her
marriage that entitled her to review of the denial of Berashk’s visa.
It further held that the Government deprived her of that liberty in-
terest without due process when it denied Berashk’s visa application
without providing a more detailed explanation of its reasons.
Held: The judgment is vacated, and the case is remanded.
718 F.3d 856, vacated and remanded.
JUSTICE SCALIA, joined by THE CHIEF JUSTICE and JUSTICE THOMAS,
concluded that the Government did not deprive Din of any constitu-
tional right entitling her to due process of law. Pp. 3–15.
(a) Under a historical understanding of the Due Process Clause,
Din cannot possibly claim that the denial of Berashk’s visa applica-
tion deprived her of life, liberty, or property. Pp. 4–5.
(b) Even accepting the textually unsupportable doctrine of implied
fundamental rights, nothing in that line of cases establishes a free-
floating and categorical liberty interest sufficient to trigger constitu-
tional protection whenever a regulation touches upon any aspect of
2 KERRY v. DIN
Syllabus
the marital relationship. Even if those cases could be so broadly con-
strued, 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,”
Washington v. Glucksberg, 521 U.S. 702, 723–724. Here, the Gov-
ernment’s long practice of regulating immigration, which has includ-
ed erecting serious impediments to a person’s ability to bring a
spouse into the United States, precludes Din’s claim. And this Court
has consistently recognized its lack of “judicial authority to substitute
[its] political judgment for that of Congress” with regard to the vari-
ous distinctions in immigration policy. Fiallo v. Bell, 430 U.S. 787,
798. Pp. 5–11.
JUSTICE KENNEDY, joined by JUSTICE ALITO, concluded that there is
no need to decide whether Din has a protected liberty interest, be-
cause, even assuming she does, the notice she received satisfied due
process. Pp. 1–6.
(a) This conclusion is dictated by the reasoning of Kleindienst v.
Mandel, 408 U.S. 753. There the Court declined to balance the as-
serted First Amendment interest of college professors seeking a
nonimmigrant visa for a revolutionary Marxist speaker against
“Congress’ ‘plenary power to make rules for the admission of aliens,’ ”
id., at 766, and limited its inquiry to whether the Government had
provided a “facially legitimate and bona fide” reason for its action,
id., at 770. Mandel’s reasoning has particular force here, where na-
tional security is involved. Pp. 2–3.
(b) Assuming that Din’s rights were burdened directly by the visa
denial, the consular officer’s citation of §1182(a)(3)(B) satisfies Man-
del’s “facially legitimate and bona fide” standard. Given Congress’
plenary power to “suppl[y] the conditions of the privilege of entry into
the United States,” United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 543, the Government’s decision to exclude Berashk because
he did not satisfy a statutory condition for admissibility is facially le-
gitimate. Supporting this conclusion is the fact that, by Din’s own
admission, Berashk worked for the Taliban government. These con-
siderations lend to the conclusion that there was a bona fide factual
basis for exclusion, absent an affirmative showing of bad faith on the
consular officer’s part, which Din has not plausibly alleged. Pp. 4–6.
SCALIA, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KENNEDY, J.,
filed an opinion concurring in the judgment, in which ALITO, J., joined.
BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR,
and KAGAN, JJ., joined.
Cite as: 576 U. S. ____ (2015) 1
Opinion of SCALIA, J.
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, Wash­
ington, 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
_________________
No. 13–1402
_________________
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, Com­
plaint ¶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.
2 KERRY v. DIN
Opinion of SCALIA, J.
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), 66
Stat. 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 spe­
cial visa-application process for aliens sponsored by “im­
mediate 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 de­
structive acts the term immediately brings to mind, the
INA defines “terrorist activity” to include providing mate­
rial 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
Cite as: 576 U. S. ____ (2015) 3
Opinion of SCALIA, J.
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, interviewed
Berashk 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 Gov­
ernment’s motion to dismiss, but the Ninth Circuit re­
versed. 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 judi­
cial 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, 28–36 (1991) (SCALIA, J., concurring in judgment), it
remains the case that no process is due if one is not de­
prived of “life, liberty, or property,” Swarthout v. Cooke,
4 KERRY v. DIN
Opinion of SCALIA, J.
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 dis­
seised 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 Insti­
tutes 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 Amer­
ican 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 tene­
ments, 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
Cite as: 576 U. S. ____ (2015) 5
Opinion of SCALIA, J.
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; with­
out imprisonment or restraint.” Id., at 130. And finally, a
person’s right to property included “the free use, enjoy­
ment, 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 Govern­
ment has not “taken or imprisoned” Din, nor has it “con­
fine[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
6 KERRY v. DIN
Opinion of SCALIA, J.
“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 consti­
tutional rights cannot be limited at all, except by provi­
sions that are “narrowly tailored to serve a compelling
state interest.” Reno v. Flores, 507 U.S. 292, 301–302
(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
Cite as: 576 U. S. ____ (2015) 7
Opinion of SCALIA, J.
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 mar­
riage,” 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] de­
notes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up chil­
dren, [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 Govern­
ment 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
8 KERRY v. DIN
Opinion of SCALIA, J.
marriage that necessarily are protected by the right to
marry,” and that are “presuppose[d]” by later cases estab­
lishing 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 teach­
ing 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, 534–535 (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 chil­
dren under their control.” Moore v. East Cleveland, 431
U.S. 494, 505–506 (1977), extended this interest in rais­
ing 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 contracep­
tives 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
Cite as: 576 U. S. ____ (2015) 9
Opinion of SCALIA, J.
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 for­
eigner shall take the nationality of her husband.” Ch.
2534, 34 Stat. 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 applica­
tion, 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 Immi­
gration Act of 1921, it omitted fiances and husbands from
the family relations eligible for preferred status in the
allocation of quota spots. §2(d), 42 Stat. 6. Such relations
10 KERRY v. DIN
Opinion of SCALIA, J.
were similarly excluded from the relations eligible for
nonquota status, when that status was expanded three
years later. Immigration Act of 1924, §4(a), 43 Stat. 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 fiancee or wife. The Immigra­
tion Act of 1921 granted nonquota status only to unmar­
ried, minor children of citizens, §2(a), while granting
fiancees 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
Cite as: 576 U. S. ____ (2015) 11
Opinion of SCALIA, J.
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 jurispru­
dence 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) “suffi­
ciently 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, 262, 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 to­
gether without strong reasons and (in individual cases)
12 KERRY v. DIN
Opinion of SCALIA, J.
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.* As sole
support for its conclusion that nonconstitutional law can
create constitutionally protected liberty interests, Wil-
kinson cited Wolff v. McDonnell, 418 U.S. 539, 556–558
(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 misbehav­
ior,” id., at 557 (emphasis added). The legal benefits
afforded to marriages and the preferential treatment
accorded to visa applicants with citizen relatives are insuf­
ficient 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 citi­
zen’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,
——————
* 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.
Cite as: 576 U. S. ____ (2015) 13
Opinion of SCALIA, J.
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, which
can 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
14 KERRY v. DIN
Opinion of SCALIA, J.
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 jurispru­
dence by setting it free from the requirement that the
liberty interest be “objectively, deeply rooted in this Na­
tion’s history and tradition, and implicit in the concept of
ordered liberty,” Glucksberg, 521 U.S., at 720–721 (inter­
nal quotation marks omitted). Even shallow-rooted liber­
ties 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 inci­
dentally.” 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
Cite as: 576 U. S. ____ (2015) 15
Opinion of SCALIA, J.
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 some­
thing “important,” post, at 2, but if that is the criterion for
JUSTICE BREYER’s new pairing of substantive and proce­
dural 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 re­
ceived 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.
Cite as: 576 U. S. ____ (2015) 1
KENNEDY, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1402
_________________
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 KENNEDY, with whom JUSTICE ALITO joins,
concurring in the judgment.
The respondent, Fauzia Din, is a citizen and resident of
the United States. She asserts that petitioner Govern-
ment officials (collectively, Government) violated her own
constitutional right to live in this country with her hus-
band, an alien now residing in Afghanistan. She contends
this violation occurred when the Government, through
State Department consular officials, denied her spouse’s
immigrant visa application with no explanation other than
that the denial was based on 8 U.S. C. §1182(a)(3)(B), the
statutory provision prohibiting the issuance of visas to
persons who engage in terrorist activities.
The plurality is correct that the case must be vacated
and remanded. But rather than deciding, as the plurality
does, whether Din has a protected liberty interest, my
view is that, even assuming she does, the notice she re-
ceived regarding her husband’s visa denial satisfied due
process.
Today’s disposition should not be interpreted as deciding
whether a citizen has a protected liberty interest in the
visa application of her alien spouse. The Court need not
decide that issue, for this Court’s precedents instruct that,
even assuming she has such an interest, the Government
satisfied due process when it notified Din’s husband that
2 KERRY v. DIN
KENNEDY, J., concurring in judgment
his visa was denied under the immigration statute’s ter-
rorism bar, §1182(a)(3)(B). See ante, at 2.
I
The conclusion that Din received all the process to
which she was entitled finds its most substantial instruc-
tion in the Court’s decision in Kleindienst v. Mandel, 408
U.S. 753 (1972). There, college professors—all of them
citizens—had invited Dr. Ernest Mandel, a self-described
“ ‘revolutionary Marxist,’ ” to speak at a conference at
Stanford University. Id., at 756. Yet when Mandel ap-
plied for a temporary nonimmigrant visa to enter the
country, he was denied. At the time, the immigration laws
deemed aliens “who advocate[d] the economic, interna-
tional, and governmental doctrines of World communism”
ineligible for visas. §1182(a)(28)(D) (1964 ed.). Aliens
ineligible under this provision did have one opportunity
for recourse: The Attorney General was given discretion to
waive the prohibition and grant individual exceptions,
allowing the alien to obtain a temporary visa. §1182(d)(3).
For Mandel, however, the Attorney General, acting
through the Immigration and Naturalization Service
(INS), declined to grant a waiver. In a letter regarding
this decision, the INS explained Mandel had exceeded the
scope and terms of temporary visas on past trips to the
United States, which the agency deemed a “ ‘flagrant
abuse of the opportunities afforded him to express his
views in this country.’ ” 408 U.S., at 759.
The professors who had invited Mandel to speak chal-
lenged the INS’ decision, asserting a First Amendment
right to “ ‘hear his views and engage him in a free and
open academic exchange.’ ” Id., at 760. They claimed the
Attorney General infringed this right when he refused to
grant Mandel relief. See ibid.
The Court declined to balance the First Amendment
interest of the professors against “Congress’ ‘plenary
Cite as: 576 U. S. ____ (2015) 3
KENNEDY, J., concurring in judgment
power to make rules for the admission of aliens and to
exclude those who possess those characteristics which
Congress has forbidden.’ ” Id., at 766, 768 (citation omit-
ted). To do so would require “courts in each case . . . to
weigh the strength of the audience’s interest against that
of the Government in refusing a [visa] to the particular
applicant,” a nuanced and difficult decision Congress had
“properly . . . placed in the hands of the Executive.” Id.,
at 769.
Instead, the Court limited its inquiry to the question
whether the Government had provided a “facially legiti-
mate and bona fide” reason for its action. Id., at 770.
Finding the Government had proffered such a reason—
Mandel’s abuse of past visas—the Court ended its inquiry
and found the Attorney General’s action to be lawful. See
ibid. The Court emphasized it did not address “[w]hat
First Amendment or other grounds may be available for
attacking an exercise of discretion for which no justifica-
tion whatsoever is advanced.” Ibid.
The reasoning and the holding in Mandel control here.
That decision was based upon due consideration of the
congressional power to make rules for the exclusion of
aliens, and the ensuing power to delegate authority to the
Attorney General to exercise substantial discretion in that
field. Mandel held that an executive officer’s decision
denying a visa that burdens a citizen’s own constitutional
rights is valid when it is made “on the basis of a facially
legitimate and bona fide reason.” Id., at 770. Once this
standard is met, “courts will neither look behind the exer-
cise of that discretion, nor test it by balancing its justifica-
tion against” the constitutional interests of citizens the
visa denial might implicate. Ibid. This reasoning has
particular force in the area of national security, for which
Congress has provided specific statutory directions per-
taining to visa applications by noncitizens who seek entry
to this country.
4 KERRY v. DIN
KENNEDY, J., concurring in judgment
II
Like the professors who sought an audience with Dr.
Mandel, Din claims her constitutional rights were bur-
dened by the denial of a visa to a noncitizen, namely her
husband. And as in Mandel, the Government provided a
reason for the visa denial: It concluded Din’s husband was
inadmissible under §1182(a)(3)(B)’s terrorism bar. Even
assuming Din’s rights were burdened directly by the visa
denial, the remaining question is whether the reasons
given by the Government satisfy Mandel’s “facially legiti-
mate and bona fide” standard. I conclude that they do.
Here, the consular officer’s determination that Din’s
husband was ineligible for a visa was controlled by specific
statutory factors. The provisions of §1182(a)(3)(B) estab-
lish specific criteria for determining terrorism-related
inadmissibility. The consular officer’s citation of that
provision suffices to show that the denial rested on a
determination that Din’s husband did not satisfy the
statute’s requirements. Given Congress’ plenary power to
“suppl[y] the conditions of the privilege of entry into the
United States,” United States ex rel. Knauff v. Shaugh-
nessy, 338 U.S. 537, 543 (1950), it follows that the Gov-
ernment’s decision to exclude an alien it determines does
not satisfy one or more of those conditions is facially legit-
imate under Mandel.
The Government’s citation of §1182(a)(3)(B) also indi-
cates it relied upon a bona fide factual basis for denying a
visa to Berashk. Cf. United States v. Chemical Founda-
tion, Inc., 272 U.S. 1, 14–15 (1926). Din claims due pro-
cess requires she be provided with the facts underlying
this determination, arguing Mandel required a similar
factual basis. It is true the Attorney General there dis-
closed the facts motivating his decision to deny Dr. Man-
del a waiver, and that the Court cited those facts as
demonstrating “the Attorney General validly exercised the
plenary power that Congress delegated to the Executive.”
Cite as: 576 U. S. ____ (2015) 5
KENNEDY, J., concurring in judgment
408 U.S., at 769. But unlike the waiver provision at issue
in Mandel, which granted the Attorney General nearly
unbridled discretion, §1182(a)(3)(B) specifies discrete
factual predicates the consular officer must find to exist
before denying a visa. Din, moreover, admits in her Com-
plaint that Berashk worked for the Taliban government,
App. 27–28, which, even if itself insufficient to support
exclusion, provides at least a facial connection to terrorist
activity. Absent an affirmative showing of bad faith on
the part of the consular officer who denied Berashk a
visa—which Din has not plausibly alleged with sufficient
particularity—Mandel instructs us not to “look behind”
the Government’s exclusion of Berashk for additional
factual details beyond what its express reliance on
§1182(a)(3)(B) encompassed. See 408 U.S., at 770.
The Government, furthermore, was not required, as Din
claims, to point to a more specific provision within
§1182(a)(3)(B). To be sure, the statutory provision the
consular officer cited covers a broad range of conduct. And
Din perhaps more easily could mount a challenge to her
husband’s visa denial if she knew the specific subsection
on which the consular officer relied. Congress understood
this problem, however. The statute generally requires the
Government to provide an alien denied a visa with the
“specific provision or provisions of law under which the
alien is inadmissible,” §1182(b)(1); but this notice re-
quirement does not apply when, as in this case, a visa
application is denied due to terrorism or national security
concerns. §1182(b)(3). Notably, the Government is not
prohibited from offering more details when it sees fit, but
the statute expressly refrains from requiring it to do so.
Congress evaluated the benefits and burdens of notice in
this sensitive area and assigned discretion to the Execu-
tive to decide when more detailed disclosure is appropri-
ate. This considered judgment gives additional support to
the independent conclusion that the notice given was
6 KERRY v. DIN
KENNEDY, J., concurring in judgment
constitutionally adequate, particularly in light of the
national security concerns the terrorism bar addresses.
See Fiallo v. Bell, 430 U.S. 787, 795–796 (1977); see also
INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). And
even if Din is correct that sensitive facts could be reviewed
by courts in camera, the dangers and difficulties of han-
dling such delicate security material further counsel
against requiring disclosure in a case such as this. Under
Mandel, respect for the political branches’ broad power
over the creation and administration of the immigration
system extends to determinations of how much infor-
mation the Government is obliged to disclose about a
consular officer’s denial of a visa to an alien abroad.
For these reasons, my conclusion is that the Govern-
ment satisfied any obligation it might have had to provide
Din with a facially legitimate and bona fide reason for its
action when it provided notice that her husband was
denied admission to the country under §1182(a)(3)(B). By
requiring the Government to provide more, the Court of
Appeals erred in adjudicating Din’s constitutional claims.
Cite as: 576 U. S. ____ (2015) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1402
_________________
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 BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Fauzia Din, an American citizen, wants to know why
the State Department denied a visa to her husband, a
noncitizen. She points out that, without a visa, she and
her husband will have to spend their married lives sepa-
rately or abroad. And she argues that the Department, in
refusing to provide an adequate reason for the denial, has
violated the constitutional requirement that “[n]o person
. . . be deprived of life, liberty, or property, without due
process of law.” U. S. Const., Amdt. 5.
In my view, Ms. Din should prevail on this constitu-
tional claim. She possesses the kind of “liberty” interest
to which the Due Process Clause grants procedural pro-
tection. And the Government has failed to provide her
with the procedure that is constitutionally “due.” See
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam)
(setting forth the Court’s two-step inquiry for procedural
due process claims). Accordingly, I would affirm the
judgment of the Ninth Circuit.
I
The plurality opinion (which is not controlling) con-
cludes that Ms. Din lacks the kind of liberty interest to
which the Due Process Clause provides procedural protec-
2 KERRY v. DIN
BREYER, J., dissenting
tions. Ante, at 3–15. JUSTICE KENNEDY’s opinion “as-
sum[es]” that Ms. Din possesses that kind of liberty inter-
est. Ante, at 1 (opinion concurring in judgment) (emphasis
added). I agree with JUSTICE KENNEDY’s assumption. More
than that, I believe that Ms. Din possesses that kind of
constitutional interest.
The liberty interest that Ms. Din seeks to protect con-
sists of her freedom to live together with her husband in
the United States. She seeks procedural, not substantive,
protection for this freedom. Compare Wilkinson v. Austin,
545 U.S. 209, 221 (2005) (Due Process Clause requires
compliance with fair procedures when the government
deprives an individual of certain “liberty” or “property”
interests), with Reno v. Flores, 507 U.S. 292, 302 (1993)
(Due Process Clause limits the extent to which govern-
ment can substantively regulate certain “fundamental”
rights, “no matter what process is provided”). Cf. Smith v.
Organization of Foster Families For Equality & Reform,
431 U.S. 816, 842, n. 48 (1977) (liberty interests arising
under the Constitution for procedural due process pur-
poses are not the same as fundamental rights requiring
substantive due process protection).
Our cases make clear that the Due Process Clause
entitles her to such procedural rights as long as (1) she
seeks protection for a liberty interest sufficiently im-
portant for procedural protection to flow “implicit[ly]” from
the design, object, and nature of the Due Process Clause,
or (2) nonconstitutional law (a statute, for example) cre-
ates “an expectation” that a person will not be deprived of
that kind of liberty without fair procedures. Wilkinson,
supra, at 221.
The liberty for which Ms. Din seeks protection easily
satisfies both standards. As this Court has long recog-
nized, the institution of marriage, which encompasses the
right of spouses to live together and to raise a family, is
central to human life, requires and enjoys community
Cite as: 576 U. S. ____ (2015) 3
BREYER, J., dissenting
support, and plays a central role in most individuals’
“orderly pursuit of happiness,” Meyer v. Nebraska, 262
U.S. 390, 399 (1923). See also, e.g., Griswold v. Connecti-
cut, 381 U.S. 479, 485–486 (1965); Zablocki v. Redhail,
434 U.S. 374, 386 (1978); Moore v. East Cleveland, 431
U.S. 494, 500–503 (1977) (plurality opinion); Smith,
supra, at 843. Similarly, the Court has long recognized
that a citizen’s right to live within this country, being
fundamental, enjoys basic procedural due process protec-
tion. See Ng Fung Ho v. White, 259 U.S. 276, 284–285
(1922); Baumgartner v. United States, 322 U.S. 665, 670
(1944).
At the same time, the law, including visa 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 to-
gether without strong reasons and (in individual cases)
without fair procedure. Cf. Turner v. Safley, 482 U.S. 78,
95–96 (1987) (noting various legal benefits of marriage);
8 U.S. C. §1151(b)(2)(A)(i) (special visa preference for
spouse of an American citizen). JUSTICE SCALIA’s re-
sponse—that nonconstitutional law creates an “expecta-
tion” that merits procedural protection under the Due
Process Clause only if there is an unequivocal statutory
right, ante, at 11–12—is sorely mistaken. His argument
rests on the rights/privilege distinction that this Court
rejected almost five decades ago, in the seminal case of
Goldberg v. Kelly, 397 U.S. 254, 262 (1970). See generally
Board of Regents of State Colleges v. Roth, 408 U.S. 564,
571 (1972) (“[T]he Court has fully and finally rejected the
wooden distinction between ‘rights’ and ‘privileges’ that
once seemed to govern the applicability of procedural due
process rights”); id., at 572 (“In a Constitution for a free
people, there can be no doubt that the meaning of ‘liberty’
must be broad indeed”).
JUSTICE SCALIA’s more general response—claiming that
4 KERRY v. DIN
BREYER, J., dissenting
I have created a new category of constitutional rights,
ante, at 12–15—misses the mark. I break no new ground
here. Rather, this Court has already recognized that the
Due Process Clause guarantees that the government will
not, without fair procedure, deprive individuals of a host of
rights, freedoms, and liberties that are no more important,
and for which the state has created no greater expectation
of continued benefit, than the liberty interest at issue
here. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556–557
(1974) (prisoner’s right to maintain “goodtime” credits
shortening term of imprisonment; procedurally protected
liberty interest based on nonconstitutional law); Paul v.
Davis, 424 U.S. 693, 701 (1976) (right to certain aspects of
reputation; procedurally protected liberty interest arising
under the Constitution); Goss v. Lopez, 419 U.S. 565, 574–
575 (1975) (student’s right not to be suspended from school
class; procedurally protected liberty interest arising under
the Constitution); Vitek v. Jones, 445 U.S. 480, 491–495
(1980) (prisoner’s right against involuntary commitment;
procedurally protected liberty interest arising under the
Constitution); Washington v. Harper, 494 U.S. 210, 221–
222 (1990) (mentally ill prisoner’s right not to take psycho-
tropic drugs; procedurally protected liberty interest aris-
ing under the Constitution); see generally Goldberg, su-
pra, at 262–263 (right to welfare benefits; procedurally
protected property interest based on nonconstitutional
law). But cf. ante, at 12–14 (plurality opinion) (making
what I believe are unsuccessful efforts to distinguish these
cases). How could a Constitution that protects individuals
against the arbitrary deprivation of so diverse a set of
interests not also offer some form of procedural protection
to a citizen threatened with governmental deprivation of
her freedom to live together with her spouse in America?
As compared to reputational harm, for example, how is
Ms. Din’s liberty interest any less worthy of due process
protections?
Cite as: 576 U. S. ____ (2015) 5
BREYER, J., dissenting
II
A
The more difficult question is the nature of the proce-
dural protection required by the Constitution. After all,
sometimes, as with the military draft, the law separates
spouses with little individualized procedure. And some-
times, as with criminal convictions, the law provides
procedure to one spouse but not to the other. Unlike
criminal convictions, however, neither spouse here has
received any procedural protection. Cf. Ingraham v.
Wright, 430 U.S. 651 (1977) (availability of alternative
procedures can satisfy due process). Compare Shaugh-
nessy v. United States ex rel. Mezei, 345 U.S. 206,
213 (1953) (no due process protections for aliens outside
United States), with Zadvydas v. Davis, 533 U.S. 678, 693
(2001) (such protections are available for aliens inside
United States). And, unlike the draft (justified by a classic
military threat), the deprivation does not apply similarly
to hundreds of thousands of American families. Cf. Bi-
Metallic Investment Co. v. State Bd. of Equalization of
Colo., 239 U.S. 441, 445 (1915).
Rather, here, the Government makes individualized visa
determinations through the application of a legal rule to
particular facts. Individualized adjudication normally
calls for the ordinary application of Due Process Clause
procedures. Londoner v. City and County of Denver, 210
U.S. 373, 385–386 (1908). And those procedures normally
include notice of an adverse action, an opportunity to
present relevant proofs and arguments, before a neutral
decisionmaker, and reasoned decisionmaking. See Hamdi
v. Rumsfeld, 542 U.S. 507, 533 (2004) (plurality opinion);
see also Friendly, Some Kind of a Hearing, 123 U. Pa.
L. Rev. 1267, 1278–1281 (1975). These procedural protec-
tions help to guarantee that government will not make a
decision directly affecting an individual arbitrarily but
will do so through the reasoned application of a rule of
6 KERRY v. DIN
BREYER, J., dissenting
law. It is that rule of law, stretching back at least 800
years to Magna Carta, which in major part the Due Pro-
cess Clause seeks to protect. Hurtado v. California, 110
U.S. 516, 527 (1884).
Here, we need not consider all possible procedural due
process elements. Rather we consider only the minimum
procedure that Ms. Din has requested—namely, a state-
ment of reasons, some kind of explanation, as to why the
State Department denied her husband a visa.
We have often held that this kind of statement, permit-
ting an individual to understand why the government
acted as it did, is a fundamental element of due process.
See, e.g., Goldberg, 397 U.S., at 267–268; Perry v. Sin-
dermann, 408 U.S. 593, 603 (1972); Morrissey v. Brewer,
408 U.S. 471, 485, 489 (1972); Wolff, supra, at 563–564;
Goss, supra, at 581; Mathews v. Eldridge, 424 U.S. 319,
345–346 (1976); Cleveland Bd. of Ed. v. Loudermill, 470
U.S. 532, 546 (1985); Wilkinson, 545 U.S., at 224; Hamdi,
supra, at 533 (plurality opinion).
That is so in part because a statement of reasons, even
one provided after a visa denial, serves much the same
function as a “notice” of a proposed action. It allows Ms.
Din, who suffered a “serious loss,” a fair “opportunity to
meet” “the case” that has produced separation from her
husband. See Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 171–172 (1951) (Frankfurter, J.,
concurring); see also Hamdi, supra, at 533 (plurality
opinion); Wolff, supra, at 563; Friendly, supra, at 1280
(“notice” must provide “the grounds for” the relevant
action). Properly apprised of the grounds for the Govern-
ment’s action, Ms. Din can then take appropriate action—
whether this amounts to an appeal, internal agency re-
view, or (as is likely here) an opportunity to submit addi-
tional evidence and obtain reconsideration, 22 CFR
42.81(e) (2014).
I recognize that our due process cases often determine
Cite as: 576 U. S. ____ (2015) 7
BREYER, J., dissenting
the constitutional insistence upon a particular procedure
by balancing, with respect to that procedure, the “private
interest” at stake, “the risk of an erroneous deprivation”
absent the sought-after protection, and the Government’s
interest in not providing additional procedure. Eldridge,
supra, at 335; but cf. Hamdi, supra, at 533 (plurality
opinion) (suggesting minimal due process requirements
cannot be balanced away). Here “balancing” would not
change the result. The “private interest” is important, the
risk of an “erroneous deprivation” is significant, and the
Government’s interest in not providing a reason is nor-
mally small, at least administratively speaking. Indeed,
Congress requires the State Department to provide a
reason for a visa denial in most contexts. 8 U.S. C.
§1182(b)(1). Accordingly, in the absence of some highly
unusual circumstance (not shown to be present here, see
infra, at 9), the Constitution requires the Government to
provide an adequate reason why it refused to grant Ms.
Din’s husband a visa. That reason, in my view, could be
either the factual basis for the Government’s decision or a
sufficiently specific statutory subsection that conveys
effectively the same information.
B
1
JUSTICE KENNEDY, without denying that Ms. Din was
entitled to a reason, believes that she received an ade-
quate reason here. According to the complaint, however,
the State Department’s denial letter stated only that the
visa “had been denied under . . . 8 U.S. C. §1182(a).” App.
30. In response to requests for further explanation, the
State Department sent an e-mail stating that the visa
“had been denied under . . . 8 U.S. C. §1182 (a)(3)(B)—the
terrorism and national security bars to admissibility.” Id.,
at 31. I do not see how either statement could count as
adequate.
8 KERRY v. DIN
BREYER, J., dissenting
For one thing, the statutory provision to which it refers,
§1182(a)(3)(B), sets forth, not one reason, but dozens. It is
a complex provision with 10 different subsections, many of
which cross-reference other provisions of law. See Appen-
dix, infra. Some parts cover criminal conduct that is
particularly serious, such as hijacking aircraft and assas-
sination. §§1182(a)(3)(B)(iii)(I), (IV). Other parts cover
activity that, depending on the factual circumstances,
cannot easily be labeled “terrorist.” One set of cross-
referenced subsections, for example, brings within the
section’s visa prohibition any individual who has “trans-
fer[red] . . . [any] material financial benefit” to “a group of
two or more individuals, whether organized or not, which
. . . has a subgroup which engages” in “afford[ing] material
support . . . for . . . any individual who . . . plans” “[t]he use
of any . . . weapon . . . with intent . . . to cause substantial
damage to property.” §§1182(a)(3)(B)(iv)(VI), (vi)(III),
(iv)(VI)(bb), (iii)(V). At the same time, some subsections
provide the visa applicant with a defense; others do not.
See, e.g., §1182(a)(3)(B)(iv)(VI)(dd) (permitting applicant
to show “by clear and convincing evidence that the actor
did not know, and should not reasonably have known, that
the organization was a terrorist organization”). Taken
together the subsections, directly or through cross-
reference, cover a vast waterfront of human activity poten-
tially benefitting, sometimes in major ways, sometimes
hardly at all, sometimes directly, sometimes indirectly,
sometimes a few people, sometimes many, sometimes
those with strong links, sometimes those with hardly a
link, to a loosely or strongly connected group of individu-
als, which, through many different kinds of actions, might
fall within the broad statutorily defined term “terrorist.”
See, e.g., Daneshvar v. Ashcroft, 355 F.3d 615, 628 (CA6
2004) (alleging material support for selling newspapers);
Singh v. Wiles, 747 F. Supp. 2d 1223, 1227 (WD Wash.
2010) (alleging material support for letting individuals
Cite as: 576 U. S. ____ (2015) 9
BREYER, J., dissenting
sleep on a temple floor).
For another thing, the State Department’s reason did
not set forth any factual basis for the Government’s deci-
sion. Cf., e.g., Wilkinson, 545 U.S., at 225–226 (prison
administrators must inform prisoners of “factual basis” for
extreme solitary confinement). Perhaps the Department
denied the visa because Ms. Din’s husband at one point
was a payroll clerk for the Afghan Government when that
government was controlled by the Taliban. See ante, at 5
(opinion of KENNEDY, J.). But there is no way to know if
that is so.
The generality of the statutory provision cited and the
lack of factual support mean that here, the reason given is
analogous to telling a criminal defendant only that he is
accused of “breaking the law”; telling a property owner
only that he cannot build because environmental rules
forbid it; or telling a driver only that police pulled him
over because he violated traffic laws. As such, the reason
given cannot serve its procedural purpose. It does not
permit Ms. Din to assess the correctness of the State
Department’s conclusion; it does not permit her to deter-
mine what kinds of facts she might provide in response;
and it does not permit her to learn whether, or what kind
of, defenses might be available. In short, any “reason”
that Ms. Din received is not constitutionally adequate.
2
Seemingly aware that he cannot deny these basic legal
principles, JUSTICE KENNEDY rests his conclusions upon
two considerations that, in his view, provide sufficient
grounds for an exception. Ante, at 5–6. Most importantly,
he says that ordinary rules of due process must give way
here to national security concerns. But just what are
those concerns? And how do they apply here? Ms. Din’s
counsel stated at oral argument that there were no such
concerns in this case. Tr. of Oral Arg. 35. And the Solici-
10 KERRY v. DIN
BREYER, J., dissenting
tor General did not deny that statement.
In other cases, such concerns may exist. But, when
faced with the need to provide public information without
compromising security interests, the Government has
found ways to do so, for example, by excising sensitive
portions of documents requested by the press, members of
the public, or other public officials. See, e.g., 5 U.S. C.
§552(b)(1). Moreover, agencies and courts have found
ways to conduct proceedings in private, through internal
review or in camera proceedings, and thereby protect
sensitive information. See Webster v. Doe, 486 U.S. 592,
604 (1988); Brief for Respondent 48–52, and n. 20; Brief
for American Civil Liberties Union as Amicus Curiae 23–
28. Would these (or other) methods prove adequate in
other cases where a citizen’s freedom to live in America
with her spouse is at issue? Are they even necessary here?
The Government has not explained.
I do not deny the importance of national security, the
need to keep certain related information private, or the
need to respect the determinations of the other branches
of Government in such matters. But protecting ordinary
citizens from arbitrary government action is fundamental.
Thus, the presence of security considerations does not
suspend the Constitution. Hamdi, 542 U.S., at 527–537
(plurality opinion). Rather, it requires us to take security
needs into account when determining, for example, what
“process” is “due.” Ibid.
Yet how can we take proper account of security consid-
erations without knowing what they are, without knowing
how and why they require modification of traditional due
process requirements, and without knowing whether
other, less restrictive alternatives are available? How
exactly would it harm important security interests to give
Ms. Din a better explanation? Is there no way to give Ms.
Din such an explanation while also maintaining appropri-
ate secrecy? I believe we need answers to these questions
Cite as: 576 U. S. ____ (2015) 11
BREYER, J., dissenting
before we can accept as constitutional a major departure
from the procedural requirements that the Due Process
Clause ordinarily demands.
JUSTICE KENNEDY also looks for support to the fact that
Congress specifically exempted the section here at issue,
§1182(a)(3)(B), from the statutory provision requiring the
State Department to provide a reason for visa denials.
§1182(b)(3). An exception from a statutory demand for a
reason, however, is not a command to do the opposite;
rather, at most, it leaves open the question whether other
law requires a reason. Here that other law is the Consti-
tution, not a statute. In my view, the Due Process Clause
requires the Department to provide an adequate reason.
And, I believe it has failed to do so.
* * *
For these reasons, with respect, I dissent.
12 KERRY v. DIN
BREYER
Appendix , J., dissenting
to opinion of BREYER, J.
APPENDIX
Title 8 U.S. C. § 1182(a)(3) provides:
“(B) Terrorist activities
“(i) In general
“Any alien who—
“(I) has engaged in a terrorist activity;
“(II) a consular officer, the Attorney General, or the
Secretary of Homeland Security knows, or has rea-
sonable ground to believe, is engaged in or is likely to
engage after entry in any terrorist activity (as defined
in clause (iv));
“(III) has, under circumstances indicating an inten-
tion to cause death or serious bodily harm, incited ter-
rorist activity;
“(IV) is a representative (as defined in clause (v)) of—
“(aa) a terrorist organization (as defined in clause
(vi)); or
“(bb) a political, social, or other group that endorses
or espouses terrorist activity;
“(V) is a member of a terrorist organization de-
scribed in subclause (I) or (II) of clause (vi);
“(VI) is a member of a terrorist organization de-
scribed in clause (vi)(III), unless the alien can demon-
strate by clear and convincing evidence that the alien
did not know, and should not reasonably have known,
that the organization was a terrorist organization;
“(VII) endorses or espouses terrorist activity or per-
suades others to endorse or espouse terrorist activity
or support a terrorist organization;
“(VIII) has received military-type training (as de-
fined in section 2339D(c)(1) of title 18) from or on be-
half of any organization that, at the time the training
was received, was a terrorist organization (as defined
in clause (vi)); or
“(IX) is the spouse or child of an alien who is in-
Cite as: 576 U. S. ____ (2015) 13
BREYER
Appendix , J., dissenting
to opinion of BREYER, J.
admissible under this subparagraph, if the activity
causing the alien to be found inadmissible occurred
within the last 5 years,
“is inadmissible. An alien who is an officer, official,
representative, or spokesman of the Palestine Libera-
tion Organization is considered, for purposes of this
chapter, to be engaged in a terrorist activity.
“(ii) Exception
“Subclause (IX) of clause (i) does not apply to a
spouse or child—
“(I) who did not know or should not reasonably have
known of the activity causing the alien to be found in-
admissible under this section; or
“(II) whom the consular officer or Attorney General
has reasonable grounds to believe has renounced the
activity causing the alien to be found inadmissible
under this section.
“(iii) ‘Terrorist activity’ defined
“As used in this chapter, the term ‘terrorist activity’
means any activity which is unlawful under the laws
of the place where it is committed (or which, if it had
been committed in the United States, would be unlaw-
ful under the laws of the United States or any State)
and which involves any of the following:
“(I) The highjacking or sabotage of any conveyance
(including an aircraft, vessel, or vehicle).
“(II) The seizing or detaining, and threatening to
kill, injure, or continue to detain, another individual
in order to compel a third person (including a govern-
mental organization) to do or abstain from doing any
act as an explicit or implicit condition for the release
of the individual seized or detained.
“(III) A violent attack upon an internationally pro-
tected person (as defined in section 1116(b)(4) of title
18) or upon the liberty of such a person.
“(IV) An assassination.
14 KERRY v. DIN
BREYER
Appendix , J., dissenting
to opinion of BREYER, J.
“(V) The use of any—
“(a) biological agent, chemical agent, or nuclear
weapon or device, or
“(b) explosive, firearm, or other weapon or danger-
ous device (other than for mere personal monetary
gain),
“with intent to endanger, directly or indirectly, the
safety of one or more individuals or to cause substan-
tial damage to property.
“(VI) A threat, attempt, or conspiracy to do any of
the foregoing.
“(iv) ‘Engage in terrorist activity’ defined
“As used in this chapter, the term ‘engage in terror-
ist activity’ means, in an individual capacity or as a
member of an organization—
“(I) to commit or to incite to commit, under circum-
stances indicating an intention to cause death or seri-
ous bodily injury, a terrorist activity;
“(II) to prepare or plan a terrorist activity;
“(III) to gather information on potential targets for
terrorist activity;
“(IV) to solicit funds or other things of value for—
“(aa) a terrorist activity;
“(bb) a terrorist organization described in clause
(vi)(I) or (vi)(II); or
“(cc) a terrorist organization described in clause
(vi)(III), unless the solicitor can demonstrate by clear
and convincing evidence that he did not know, and
should not reasonably have known, that the organiza-
tion was a terrorist organization;
“(V) to solicit any individual—
“(aa) to engage in conduct otherwise described in
this subsection;
“(bb) for membership in a terrorist organization de-
scribed in clause (vi)(I) or (vi)(II); or
“(cc) for membership in a terrorist organization
Cite as: 576 U. S. ____ (2015) 15
BREYER
Appendix , J., dissenting
to opinion of BREYER, J.
described in clause (vi)(III) unless the solicitor can
demonstrate by clear and convincing evidence that he
did not know, and should not reasonably have known,
that the organization was a terrorist organization; or
“(VI) to commit an act that the actor knows, or rea-
sonably should know, affords material support, in-
cluding a safe house, transportation, communications,
funds, transfer of funds or other material financial
benefit, false documentation or identification, weap-
ons (including chemical, biological, or radiological
weapons), explosives, or training—
“(aa) for the commission of a terrorist activity;
“(bb) to any individual who the actor knows, or rea-
sonably should know, has committed or plans to com-
mit a terrorist activity;
“(cc) to a terrorist organization described in subclause
(I) or (II) of clause (vi) or to any member of such an
organization; or
“(dd) to a terrorist organization described in clause
(vi)(III), or to any member of such an organization,
unless the actor can demonstrate by clear and con-
vincing evidence that the actor did not know, and
should not reasonably have known, that the organiza-
tion was a terrorist organization.
“(v) ‘Representative’ defined
“As used in this paragraph, the term ‘representa-
tive’ includes an officer, official, or spokesman of an
organization, and any person who directs, counsels,
commands, or induces an organization or its members
to engage in terrorist activity.
“(vi) ‘Terrorist organization’ defined
“As used in this section, the term ‘terrorist organi-
zation’ means an organization—
“(I) designated under section 1189 of this title;
“(II) otherwise designated, upon publication in the
Federal Register, by the Secretary of State in con-
16 KERRY v. DIN
BREYER
Appendix , J., dissenting
to opinion of BREYER, J.
sultation with or upon the request of the Attorney
General or the Secretary of Homeland Security, as a
terrorist organization, after finding that the organiza-
tion engages in the activities described in subclauses
(I) through (VI) of clause (iv); or
“(III) that is a group of two or more individuals,
whether organized or not, which engages in, or has a
subgroup which engages in, the activities described in
subclauses (I) through (VI) of clause (iv).”