Kerry v. Din (13-1402)

argument 13-1402

Kerry v. Din

Supreme Court of the United States 59 min 5 speakers 5 chapters transcribed 4 days ago official recording ↗

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What constitutional authority does the Court cite for excluding aliens under the terrorism provisions?

John G. Roberts 0:01

We'll hear argument first this morning in case 13-1402, Kerry, Secretary of State versus

Unknown 0:07

Fazil Din. Mr. Needler. Mr. Chief Justice, and may it please the Court, this Court has repeatedly held that the power to exclude aliens is inherent in sovereignty and necessary to defending the nation against encroachments and dangers. It is a power exercised by the political branches of government. Respondent's husband was denied a visa by a consular officer because he was found to be inadmissible under the terrorism provisions of the Immigration and Nationality Act. It is firmly established that as an alien outside the United States, he had no right under the INA or the Constitution to seek judicial review of that determination or for a greater explanation of the grounds given.

Elena Kagan 0:52

Could I ask you a question? Assume the following hypotheticals. You had an erroneous name, meaning, or there's a duplicate name, a terrorist and a non-terrorist alien. What you're telling us is that there's no remedy whatsoever for the alien to come in and try to show someone that he's not the guy who's the terrorist.

Unknown 1:21

At least two responses to that point. First of all, no one is excluded under the terrorism provisions of the Act because their name appears in a database. The databases are assembled as basically raising flags that might warrant further inquiry. I'm informed by the State Department, and as we say on page 49 of our brief, that In any case in which an alien is going to be denied entry under the terrorism provisions, there is a request to the State Department in Washington for a security advisory opinion which entails sending out notice to interested agencies who may have intelligence about the individual and report it back to the State Department for an advisory opinion. And so

Elena Kagan 2:12

it will not — But I have a real problem, which is that's what we were told after September 11th. And we have evidence that people were kept for months and months and months, and some were released — after there was further probing by the courts and it was determined that people had been erroneously identified. So I'm not challenging good faith, but I'm just questioning how someone caught up in an administrative nightmare. You're suggesting that the wife has absolutely no interest in her marriage and not having the government arbitrarily Keep her spouse out.

Unknown 2:57

She obviously has an interest, but she is affected only indirectly by the denial of the visa to her husband. It seems to me that you're fighting the hypothetical. You basically said, well, that's not going to happen. Suppose that it happened. There are two Mr. Smiths or whatever the foreign name is, and they just get the wrong one. It seems to me your position is that the alien has no standing, period. I think it's clear under the doctrine of consular non-reviewability, which is one subset of the recognition of Congress's broad power over the exclusion of aliens, which includes conferring the power on executive officers. And then we get to the question of whether or not the wife, in this case, has at least a minimum right to make sure that the identification is correct.

Unknown 3:48

And you say as to that? There is no right of judicial review because the doctrine of consular non-reviewability applies equally to her. In fact, it would be a license for circumvention of that doctrine to allow judicial review. Is there no exception to the consular non-reviewability? non-reviewability doctrine. That is, occasionally people make mistakes, as Justice Sotomayor pointed out. Some councils have been known to have a bureaucratic mentality. and some may act for improper reasons, but you are sticking to the position that consular determinations are not subject to judicial review under any and all circumstances, no exceptions. That is our position with respect to a consular officer having a bureaucratic point of view.

Unknown 4:44

I should point out that a visa is not denied on a way that can't be corrected by additional evidence without it being approved by a supervisor to the consular officers. So

Elena Kagan 4:55

it's not — Now, it's your position that the government could basically say to a wife in the United States, you have no rights whatsoever to challenge the arbitrary statement by the government, we believe your husband's a terrorist, you can't stay with him.