At the Intersection of Immigration and Family Law
Given the increasing incidence in our practice of cases involving international couples, we took note yesterday when the United States Supreme Court appeared at the intersection of immigration and family law. At least in the case of Fauzia Din, announced yesterday by Justice Scalia, the Court gave the right of way at that intersection to the government, upholding the denial of a Visa to her husband, and told Ms. Din that her petition challenging the denial of an immigrant Visa for her foreign national husband had hit a dead end.
With another decision regarding gay marriage expected later this month, the court, in this 5-4 ruling, declined to declare that marriage is a fundamental right protected by the Constitution. Three justices agreed that, even if marriage itself were a fundamental right, the “right to marry cases cannot be expanded to include the right to live in the United States with an alien spouse.” Two more justices agreed that, at least in this case, they were not called-upon to decide if marriage is a right protected by the Constitution.
In the Din case, the alien spouse had worked as a clerk in the Afghan government during the time when that government was controlled by the Taliban. The State Department made no explanation for denying the Visa request, other than a general reference to the law giving the Department broad discretion to deny Visas based on terrorist activities.
There is a long history of legal precedent supporting the government’s right to deny Visas without explanation to the immigrant applicant. Then too, allowing foreign national spouses of US citizens to immigrate also has long and strong historical precedent. In this case, Fauzia Din asserted that her “constitution right to marry” was being infringed without just cause, but the majority of the Court saw it differently. The four justices in the minority did find that Ms. Din’s right to marry was “the kind of liberty interest” that deserved protection under the Constitution, and it will be interesting to see if and how the court returns to that issue later this month.
For now, as the congestion at the intersection of immigration law and family law increases, for those with issues and interests moving along both avenues, it is important to work with attorneys who can safeguard passage through their convergence.
To schedule an appointment with one of our attorneys or for further information, call us at LaMonaca Law, at (610) 892-3877