Ninth Circuit’s Flirtation with Justice Anthony Kennedy

On June 15, 2015— about six months before Justice Scalia’s death—he authored a 5-4 decision in a crucial immigration case, Kerry v. Din. 

It’s an easy case to understand. Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din's petition was approved, but Berashk's visa application was ultimately denied.

In other words, the wife was admitted to the U.S., but the State Department denied her husband entry.

She claimed to have a Due Process right to the reason for her husband’s rejection.

Justice Scalia, in a broadly-worded opinion, said that there is no such constitutional right.

Justice Kennedy was the key fifth vote—but he wrote a concurring opinion that effectively disagreed with Scalia’s broad reasoning.

He said that Ms. Din was told by consular officials that Berashk was inadmissible under Section 1182(a)(3)(B), which excludes aliens who have engaged in “terrorist activities.”

Bottom line: To paraphrase, Kennedy said, “Ms. Din, that’s the reason; now, you have been given due process, in effect if not by law.”

Today, the Ninth Circuit stayed President Trump’s ban. 

On p. 23, it is flirting for Justice Kennedy’s attention when the opinion says, “Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see …. Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment)."

In other words, Ms. Din was given an explanation: Her husband was determined to be a terrorist. Justice Kennedy agreed with that outcome, but he held open the question of what to do when someone is denied admission and not even the statute is cited. 

That’s the core of the Trump case: Why are 130 million people barred entry? Are there 130 million terrorists, such as Din’s husband? If not, do we have a Muslim ban?

Justice Kennedy will get to decide that question—the question he avoided in 2015-- very soon.