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The 'terrorist' who didn't get a U.S. visa

The State Dept. and Congress should require more transparency in the visa process

The Supreme Court ruled this week that the Constitution didn't require the State Department to provide a detailed explanation to a Fremont woman about why it had refused to grant her Afghan husband a visa. The court's decision was the correct one, but even if such notice isn't constitutionally required, the department and, if necessary, Congress should require more transparency in the visa process.

In 2006, Fauzia Din, a U.S. citizen, petitioned to have her husband, Kanishka Berashk, declared an immediate relative, a first step to obtaining a visa for him to live in this country. Berashk was interviewed by an official at the U.S. Embassy in Pakistan, but his application was denied in 2009 under a provision of the law that excludes applicants linked to "terrorist activities." No more detailed explanation was provided, though it's known that he worked as a clerk in Afghanistan's Ministry of Social Welfare under the Taliban.

Din filed suit, and the U.S. 9th Circuit Court of Appeals ruled that the government had failed to provide a "facially legitimate and bona fide reason" for the denial of her husband's application. Din was owed such an explanation, it said, because the denial interfered with her "protected liberty interest in marriage."

On Monday, the Supreme Court set aside that decision on a 5-4 vote. Writing for himself, Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Antonin Scalia rejected in mocking terms the notion that the Constitution protects Din's right to live with her husband in the U.S. Two other justices, Anthony M. Kennedy and Samuel A. Alito Jr., said there was no need to decide whether there was such a right. Even if there were, Kennedy said, the government satisfied due process by explaining that Berashk was being excluded because of "terrorist activities."

We agree that it's a stretch to conclude that the constitutional right to marry includes a right to live with one's spouse in the U.S. even if that spouse has been deported or judged inadmissible (or, to imagine another scenario, imprisoned). But as a policy question, it's troubling that the government can refuse to issue a visa for the relative of a U.S. citizen simply by asserting a vague connection to terrorism. Given the errors that have infested the terrorist screening database and no-fly lists, it's easy to believe that consular officials might be wrongly labeling applicants as terrorists.

The law lists several specific actions that might trigger a "terrorist" exclusion, including membership or military training in a terrorist organization. And while the government isn't required to provide such specifics when it denies a visa application, there's nothing that prevents it from doing so (in Kennedy's words) "when it sees fit." The State Department should make such disclosure the rule, not the exception.

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