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Supreme Court will hear woman's case on visa denial for Afghan husband

A Fremont woman's Afghan husband was denied a visa, but the government won't tell her why

Home-care worker Fauzia Din married an Afghan man in 2006 and wanted him to join her in Fremont, Calif. But the State Department turned down his visa application — and it won't say exactly why.

The U.S. Supreme Court will hear Din's case Monday to decide whether a U.S. citizen has a right to know why her spouse has been barred from entering the country.

"I want to know the reason why my husband is not able to live with me," Din, 44, said in a phone interview. "My husband is a gentle man. He is the opposite of a terrorist."

She said she only has one clue to explain what happened. When her husband, Kanishka, was interviewed in 2009 by a consular officer at the U.S. Embassy in Pakistan, he was told to expect a quick approval.

But several months later, the man, who has a government job in Kabul, received a letter saying his visa was denied, citing a provision of the law that referred to "terrorist activities." He was told he would get no further explanation and could not respond or supply further information.

Din is a native of Afghanistan but fled the Taliban occupation with her mother and sister and entered the United States as a refugee in 2000. She became a naturalized citizen and returned to Kabul to marry Kanishka, whom she had known in the past. (She asked that only his first name be used because he is still in Afghanistan.)

After his visa was denied, she traveled to Afghanistan and Pakistan but was told by U.S. embassies that she would receive no more information. She then filed a lawsuit in federal court in Northern California, contending that, as a U.S. citizen, she had a right to some explanation regarding her husband.

The fact that her husband was a low-level clerk in the Afghan Ministry of Social Welfare during the Taliban occupation should not trigger a visa denial based on a link to terrorism, she argued.

Under U.S. immigration law, foreigners have no right to enter the U.S. or receive an explanation if they are denied a visa. Decisions made by consular officials generally cannot be reviewed in court. But some judges have said a U.S. citizen has a limited right to be told why a close relative was turned down.

Last year, the 9th Circuit Court of Appeals ruled for Din, saying marriage is a fundamental right protected by the Constitution. As a matter of due process of law, a wife has a right to go to court and seek from the government a "legitimate reason" for denying a visa to her husband, the court said in a 2-1 decision.

The majority, however, agreed the government need not make a "dangerous disclosure" that could threaten national security. In such an instance, a judge could be told in confidence why U.S. officials refused to admit a foreigner seeking a visa.

In their appeal to the Supreme Court, government lawyers called the 9th Circuit's ruling "deeply flawed." They argued that giving any explanation to Din would open the door to others going to court to contest denials of visas.

The court will hear arguments Monday morning in the case of John Kerry vs. Fauzia Din.

Her case got a boost last month when former U.S. consular officers submitted a "friend of the court" brief on her behalf. They told the justices that many visas are denied based on "watch lists" and "databases," not on a decision made by a consular officer.

These "bear little resemblance to the traditional exercise of consular discretion" from previous decades, they said. "Real decision-making has in effect been ceded to the database and watch-listing process."

david.savage@latimes.com

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