Imagine being a U.S. citizen and being told your husband’s visa request to join you in America has been denied for no specific reason other than a vague legal provision that lists ten grounds of exclusion, including terrorism.
In U.S. immigration law, there is a well-established doctrine known as “consular non-reviewability” where State Department officials and consulate officers may reject a visa and not provide details nor allow for any judicial appeal of the decision.
Fauzia Din, 44, is now stuck in this cycle, and last month went before the U.S. Supreme Court to help her husband, Kanishka Berashk, who waits in Afghanistan for the chance to reunite with his wife in California.
They have been caught in what Justice Sonia Sotomayor called an “administrative nightmare,” and now hope the high court will help them find out why Berashk was rejected. They feel if it was done in error, they could get the visa that would allow them to live their married lives together.
Din’s lawyers have also asserted that there is a constitutional right to marry and raise a family with one’s spouse in the United States.
“I have been separated from my husband for nine years, and the government won’t even tell me the reason"
Except for periodic visits back to Afghanistan to see her husband, Din has been unable to live with him in her California home for the lifespan of their marriage.
She holds his picture and makes long-distance calls to Afghanistan daily.
“I have been separated from my husband for nine years, and the government won’t even tell me the reason,” Din, speaking in her native Dari, told NBC News through a translator.
“I cannot get the last nine years of my life back, but I still feel hopeful that the Court will make the right decision, and that my husband will get his visa,” Din said. “My legal team has confidence in my case, so I do too. I think the truth will finally come out about my husband.”
Din fled the Taliban regime in her native Afghanistan with her mother and sister in 2000. In 2006, she traveled back to marry Berashk, 43, an Afghanistan citizen, and longtime family friend.
By the time they were married, Din had become a naturalized U.S. citizen. The visa process for her new husband, she thought, would be a formality. But their 2006 application was denied.
Instead of a marriage, Din became engaged in what has become an exhausting legal battle over the visa’s rejection. She first challenged the denial in federal district court and lost.
The Ninth Circuit in San Francisco reversed that ruling saying “a citizen has a protected liberty interest in marriage that entitles the citizen to review the denial of the spouse’s visa.” That court also held that the consular officer who rejected the visa application should have explained what exactly Berashk had done to justify denial.
That set up the legal fight before the Supreme Court last month.
“The government says I could just live in Afghanistan or another country with my husband. If I felt safe in Afghanistan, I never would have fled. The U.S. is my home. I have been here 15 years.”
The government brief contends Din has no constitutionally protected interest and that the Ninth Circuit was wrong.
The U.S. further believes that the principal of not subjecting decisions to review by a court is sound reasoning based on national security grounds, as review would have “the steep cost of weakening the protection that keep terrorists from our shores.”
The concept of consular non-reviewability dominated the Supreme Court hearing, and seemed to preclude the marriage right argument.
Justice Sotomayor expressed her concern about how often national security had been invoked 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.”
But Deputy Solicitor General Edwin Kneedler, arguing for the government, asserted that Din’s husband was found inadmissible under the terrorism provision of the Immigration and Nationality Act, and that “he had no right…to seek judicial review of that determination or for a greater explanation of the grounds given.”
Lawyers for Din say they have talked extensively with her husband. Berashk had been working with the chief of staff of the minister of education of Afghanistan since 2003, helping to establish the educational system in the country post-Taliban, according to Anoop Prasad of the Asian Law Caucus, Din’s attorneys. “He’s a non-political person,” said Prasad in an interview with NBC News. “He hasn’t engaged in any political activity or anything close to resembling terrorism.”
But it’s hard to refute what the government knows when they are not forced to reveal anything on national security grounds.
After the hearing, Din left the court trying to remain optimistic.
“I will do everything it takes to be together with my husband,” Din said. “The government says I could just live in Afghanistan or another country with my husband. If I felt safe in Afghanistan, I never would have fled. The U.S. is my home. I have been here 15 years.”
"I just want to be with the people I love and care about. I shouldn’t have to choose between them."
While she waits for the Supreme Court case, her legal team has also filed another visa application with the American Embassy in Kabul, hoping for a better result.
In the meantime, life is far from easy in California, especially without her husband.
It was a quick turnaround from D.C after the Monday hearing as Din continues to be a full-time caregiver along with her sister for their elderly mother. They rarely leave her side.
“The past nine years have been so difficult,” Din said. “We thought we would move to the U.S. together right after we got married. We dreamed of having children. When I go to Afghanistan to visit my husband, I have to leave my mother. She has suffered so much because of my situation. She is depressed and has heart problems. When I am home, I have to be away from my husband. He is anxious and depressed, too. I just want to be with the people I love and care about. I shouldn’t have to choose between them, especially for no reason.”
Din stays hopeful. The daily calls to Berashk in Afghanistan help. She tries to envision her life when her legal ordeal is over.
“I just want my husband by my side,” Din said. “So we can finally start building the life that we had dreamed of together.”