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U.S. Supreme Court Decides Final Two Immigration Cases For Its Term

Posted by Karen-Lee Pollak on Jun 17, 2015 9:00:00 AM

Expressions-16On June 15, 2015 the U.S. Supreme Court decided the final two immigration cases for its term – Mata v. Lynch and Kerry v. Din

 In Din, the U.S. Supreme Court held that an American Citizen cannot challenge the denial of a visa to her husband.  Justice Scalia delivering the majority opinion upheld the concept of consular nonreviewability by ruling that visa refusals cannot be subjected to court scrutiny and the denial of a visa to a U.S. citizen's spouse does not impact the citizen's own constitutionally protected interest.  The Supreme Court reasoned that the Federal Government is not forbidding the marriage—the parties are free to live anywhere in the world where they are legally permitted to reside.  The court further held that citation to the specific statute denying the visa was sufficient notice of the reason for denial.  Marriage in its essence has always been about two people building a life and a home together.  It is unfortunate that our Supreme Court does not view a US. Citizen’s right to live in this country with her spouse as a fundamental right worthy of protection by the due process clause.  In regard to the doctrine of consular nonreviewability, every year Consular officers worldwide deny hundreds of visa applications without adequate explanation.  The Supreme Court in this case had the opportunity to narrow the doctrine of consular non-reviewability.  It is unfortunate that the Court did not find that judicial review of visa denials – even if limited in scope – is justified.  Kerry v. Din could have had major practical significance. 

 In Mata v. Lynch the Supreme Court ruled that an appeals court can review the Board of Immigration Appeals' refusal to grant a motion to reopen removal proceedings where it was not filed timely due to ineffective assistance of counsel.  Mata argued that his previous counsel’s ineffective assistance was an exceptional circumstance entitling him to equitable tolling of the time limit.  The Court agreed and held that such a motion is not a request to the BIA to exercise its discretion to reopen the removal proceeding sua sponte thereby depriving the court of jurisdiction.  The Court’s decision resolves a split in authority as all other appeals courts have held that appeal courts do have jurisdiction in such situations. 

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