The United States Supreme Court handed down two important decisions this week, striking down substantive due-process rights for immigrants, but offering procedural protections for immigrants who miss deadlines in deportation proceedings.
The first case, Kerry v. Din, discusses the rights of Kanishka Berashk, the spouse of Fauzia Din, to be able to immigrate to the U.S. to join Din, who is a U.S. citizen.
After the U.S. State Department denied Berashk’s visa application, citing a broad terrorism-related statute because he used to work in the Taliban-controlled government, he sued Secretary of State John Kerry and tried to get the high court to review that denial.
The Supreme Court held that because Berashk is not a U.S. citizen, he did not have the right to get a court review, and his U.S. citizen wife also did not have a due-process right to get the visa denial challenged in a federal court.
Steven Yale-Loehr, a law professor at Cornell University, said the Supreme Court’s decision on this case has a much broader impact on immigration to the U.S.
“If a U.S. citizen marries a Chinese citizen in China and tries to petition through the green-card process to have the foreign spouse come over to the United States, and if the U.S. (consulate) in Guangzhou were to deny the visa because the foreign spouse is a former member of the Communist Party, or they allege maybe the Chinese citizen committed some crimes in the past even though it is unproven, that would not be reviewable in the U.S. court,” Yale-Loehr said.
That means the couple would be either separated or the U.S. citizen spouse would have to move to China to live there with his or her spouse, he added.
Kerry William Bretz, a New York-based immigration attorney, said the court clearly separated the rights for people inside and outside the U.S.
“Due process applies to people who are in the United States, whether you are a citizen, not a citizen and you cross the border without inspection,” Bretz said. “It does not apply to people abroad.
"Most of the folks that are looking for review of the denial of visas are abroad and they are asking for a nonimmigrant visa, and any nonimmigrant visa is at the discretion of the Department of State," he said.
In the second case the Supreme Court decided recently, Mata v. Lynch, Noel Reyes Mata, an undocumented immigrant from Mexico, was put in deportation proceedings after he was convicted of assault.
Mata's appeal was ultimately denied by the Immigration Board of Appeals after his attorneys failed to submit the appeals brief and later missed the deadline in filing motions to reopen the case.
After the lower court dismissed Mata’s case, the U.S. Supreme Court held that the federal appeals court has the authority to hear his case and decide whether people facing deportation should be able to extend the deadlines in immigration proceedings.
Yale-Loehr, of Cornell University, said the Supreme Court emphasized procedural protections in immigration deportation proceedings.
“The Supreme Court said, 'Look, we are not going to decide whether the Mexican citizen case should be overturned, but at least the federal court has jurisdiction to hear the case.' ”
Day in court
Bretz, the New York-based immigration attorney, said the due-process clause of the U.S. Constitution essentially means giving people a day in court, and there are rules on that.
“If you intentionally break those rules, you are not going to have your day in court. But if your lawyer makes mistakes, because we are all human, you should be able to still seek redress,” he said.
Bretz said that is basically what the decision says. “The lawyer clearly missed a deadline so the person did not have adjudication on the merits,” he said.
Yale-Loehr noted these two decisions underscore the Supreme Court’s dichotomy on immigration issues: unlike citizens, immigrants have few substantive constitutional rights, but they can receive some procedural rights.
He said immigrants “can at least get in the door to the courthouse in some cases, but it doesn’t necessarily mean that they will win once they get in the courthouse door.”
According to Bretz, the U.S. Supreme Court has issued several other decisions since 2010 dealing with criminal grounds of deportation, and almost all of them narrowing the government’s ability to deport people for minor controlled substance offenses.