Ninth Circuit Court rules that transparency is required in visa process in the area of national security
In a decision taking aim at the lack of transparency in the area of national security, a three-judge panel of the Ninth Circuit Court of Appeals yesterday rejected the government's contention that it did not need to provide an explanation for the denial of a visa petition on national security grounds. Fauzia Din, a United States citizen, filed a visa petition on behalf of her husband, a citizen of Afghanistan and clerk at the Afghan Ministry of Social Welfare, to join her in the United States. The U.S. consulate in Afghanistan denied the visa, citing national security concerns without giving any explanation for those concerns. The Ninth Circuit rejected the government's claim that it was not required to provide any explanation for the visa denial, stating instead that the government must put forth a facially legitimate reason for denying a visa.
"We are thrilled with the Court's thoughtful decision that confirms it was not sufficient for the Government to deny our client's visa petition by simply citing to a statute without offering any factual basis at all for the denial," said Heidi Larson Howell with Sidley Austin LLP, lead counsel for the petitioner.
"The Court's decision is an important victory for our values of open government, transparency and due process," said Asian Law Caucus Immigrant Rights Staff Attorney Alison Pennington, co-counsel for the petitioner. "We hope that this significant decision will usher greater accountability into the consular visa process, particularly in the area of national security."
"In the national security realm, the government has asserted a particularly broad and unchecked understanding of secrecy," said Asian Law Caucus National Security and Civil Rights Staff Attorney Nasrina Bargzie. "This decision reinforces a judicial commitment to some transparency."
The decision remands Ms. Din's case to the district court and instructs the district court to proceed on her writ of mandamus for the Department of State to make a lawful determination on the visa petition, on her claim regarding the unconstitutionality of the statute which waives the visa denial notice provisions on national security grounds, and on her claim that the government is in violation of the Administrative Procedures Act.
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The Asian Law Caucus was founded in 1972 as the nation's first legal and civil rights Asian American organization. Recognizing that social, economic, political and racial inequalities continue to exist in the United States, ALC is committed to the pursuit of equality and justice for all sectors of our society, with a specific focus directed toward addressing the needs of low-income, immigrant and underserved Asian Americans and Pacific Islanders. The Asian Law Caucus is a member of the Asian American Center for Advancing Justice.
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