# Kerry v. Din
## Concurring Opinion

    Kennedy

## Dissenting Opinion

    Breyer
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 Berashk, 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 Berashk’s visa application was ultimately denied. A consular officer informed 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 Federal District Court, which dismissed her complaint. The Ninth Circuit 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 interest 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 Salia, joined by The Chief Justice and Justice Thomas, concluded that the Government did not deprive Din of any constitutional 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 application 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 constitutional protection whenever a regulation touches upon any aspect of ​the marital relationship. Even if those cases could be so broadly construed, 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 Government’s long practice of regulating immigration, which has included 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 various distinctions in immigration policy. Fiallo v. Bell, 430 U. S. 787,798. Pp. 5–11.
Justice Kennedy, joined by Justice Altio, concluded that there is no need to decide whether Din has a protected liberty interest, because, 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 asserted 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 national 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 Mandel’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 legitimate. Supporting this conclusion is the fact that, by Din’s own admission, Berashk worked for the Taliban government. These considerations 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 Altio, J., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.
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