# Kerry v. Din/Dissent Breyer

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Kennedy
* Dissenting Opinion Breyer
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 separately 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 constitutional claim. She possesses the kind of "liberty" interest to which the Due Process Clause grants procedural protection. 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) concludes that Ms. Din lacks the kind of liberty interest to which the Due Process Clause provides procedural ​protections. Ante, at 3–15. Justice Kennedy’s opinion "assum[es]" that Ms. Din possesses that kind of liberty interest. Ante, at 1 (opinion concurring in judgment) (emphasis added). I agree with Justice Kennnedy’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 consists 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 government 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 purposes 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 important 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) creates "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 recognized, 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 ​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. Connecticut, 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 protection. 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 together 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 Sclaia’s response—that nonconstitutional law creates an "expectation" 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 ​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 psychotropic drugs; procedurally protected liberty interest arising under the Constitution); see generally Goldberg, supra, 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?

## II
### A

The more difficult question is the nature of the procedural protection required by the Constitution. After all, sometimes, as with the military draft, the law separates spouses with little individualized procedure. And sometimes, 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 Shaughnessy 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. BiMetallic 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 protections 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 ​law. It is that rule of law, stretching back at least 800 years to Magna Carta, which in major part the Due Process 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 statement 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, permitting 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. Sindermann, 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 Government’s action, Ms. Din can then take appropriate action—whether this amounts to an appeal, internal agency review, or (as is likely here) an opportunity to submit additional evidence and obtain reconsideration, 22 CFR 42.81(e) (2014).
I recognize that our due process cases often determine ​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 normally 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 adequate 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.
​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 Appendix, infra. Some parts cover criminal conduct that is particularly serious, such as hijacking aircraft and assassination. §§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 crossreferenced subsections, for example, brings within the section’s visa prohibition any individual who has "transfer[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 crossreference, cover a vast waterfront of human activity potentially 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 individuals, 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 ​sleep on a temple floor).
For another thing, the State Department’s reason did not set forth any factual basis for the Government’s decision. 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 determine 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 ​Solicitor 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 considerations 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 appropriate secrecy? I believe we need answers to these questions ​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 Constitution, 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.
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 reasonable 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 intention to cause death or serious bodily harm, incited terrorist 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 described in subclause (I) or (II) of clause (vi);
"(VI) is a member of a terrorist organization described in clause (vi)(III), unless the alien can demonstrate 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 persuades others to endorse or espouse terrorist activity or support a terrorist organization;
"(VIII) has received military-type training (as defined in section 2339D(c)(1) of title 18) from or on behalf 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 ​inadmssible 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 Liberation 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 inadmissible 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 unlawful 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 governmental 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 protected person (as defined in section 1116(b)(4) of title 18) or upon the liberty of such a person.
"(IV) An assassination.
​"(V) The use of any—
"(a) biological agent, chemical agent, or nuclear weapon or device, or
"(b) explosive, firearm, or other weapon or dangerous 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 substantial 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 terrorist activity’ means, in an individual capacity or as a member of an organization—
"(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious 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 organization 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 described in clause (vi)(I) or (vi)(II); or
"(cc) for membership in 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 organization was a terrorist organization; or
"(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (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 reasonably should know, has committed or plans to commit 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 convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.
"(v) 'Representative’ defined
"As used in this paragraph, the term 'representative' 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 organization’ 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 ​consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization 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)."
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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