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Kerry v. Din: Striving for A Country That Lives Up To Our Values

May 16, 2022 Perspective

This year, Advancing Justice - Asian Law Caucus turns 50. We’re taking a look back at inspiring cases and campaigns from our history, including those that continue to shape our legal services, advocacy, and community outreach today.

In 2015, attorneys at ALC represented our client Fauzia Din before the Supreme Court. For nine years, Ms. Din, a U.S. citizen living in Fremont, California, had fought to reunite with her husband. Her case and advocacy put a national spotlight on federal policies and programs enacted after 9/11 that deny Arab, Middle Eastern, and Muslim communities the basic freedoms and rights enshrined in our Constitution.

Ms. Din, her legal team, and people across the country were clear as the case reached the Supreme Court in February 2015: people who immigrate to the U.S. are part of our communities and should be safe from profiling and harm by the government.

Looking Back at Kerry v. Din

In spite of a web of secretive policies and programs that block Muslim American families, parents, spouses, and students from living their full lives in the U.S., community members continue to fight for a nation that lives up to our values of equality and inclusion.

In 2006, Ms. Din married Kanishka Berashk in Afghanistan. Soon after the wedding, she applied for her husband’s visa to the United States. As they waited, Ms. Din worked as an in-home caretaker for community members in Fremont. She and her husband made long-distance calls to each other daily, keeping in touch, planning their future together, and dreaming of what their life together in California would look like.

They waited for three years before the State Department came back with a response to Mr. Berashk’s visa application: the visa was denied and no reason was provided other than a vague reference to “consular non-reviewability.” With the help of attorneys at the Asian Law Caucus, Ms. Din and Mr. Berashk learned that the U.S. Embassy in Afghanistan had denied the visa under a part of the Immigration and Nationality Act (INA). Under this provision, a consulate can deny a visa application without having to explain its reasoning or provide an opportunity for appeal, unless the denial implicates the constitutional rights of U.S. citizens.

In February 2010, we filed a complaint in the Northern District of California on behalf of Ms. Din, arguing that the consular officer’s denial violated her constitutional right to due process. At the time their visa application was denied, Mr. Berashk was an administrative clerk in the Afghan Ministry of Education, where he had worked since 2003. Prior to that, he had been a payroll clerk in the Afghan Ministry of Social Welfare, including during the Taliban occupation of Afghanistan. Still, during this occupation, he never implemented any policy changes on the Taliban’s behalf. The government was making assumptions about Ms. Din and Mr. Berashk without any evidence or reasonable cause - and denying Ms. Din an equal opportunity to set the record straight.

We kept on the case with Ms. Din. In 2013, the Ninth Circuit Court of Appeals ruled that “a citizen has a protected liberty interest in marriage that entitles the citizen to review the denial of the spouse’s visa” and said that the consular officer should have explained exactly why the visa was denied. The State Department appealed the decision - and we headed to the Supreme Court.

Fauzia Din stands outside the Supreme Court in Washington, D.C., wearing a black coat and woolen scarf and cap.

Fauzia Din stands outside the Supreme Court which heard her case Kerry v. Din in February 2015 in Washington, D.C. (Ling Woo Liu)

Unfortunately, in a divided 5-4 vote, the Supreme Court ruled against Ms. Din’s constitutional right to due process. At the time, Ms. Din shared, “I am terribly disappointed to hear the Supreme Court’s decision. We got married and expected to live together in the United States, my home. I will continue to do everything I can to bring my husband here so we can finally start our life together.”

While the Supreme Court’s rule was distressing, Ms. Din and Mr. Berashk’s fight for justice taught countless people about their rights and brought them together in a growing movement for people’s freedom to be with their loved ones and fairness in our immigration system.

Through Community Advocacy Ms. Din's Fight Lives On

Today, advocates and community members continue to fight for justice, many inspired by Ms. Din and her resolve that her home country lives up to our ideals and values.

Last fall, around the 20 year anniversary of 9/11, the Asian Law Caucus, American-Arab Anti-Discrimination Committee, Center for Constitutional Rights, Creating Law Enforcement Accountability & Responsibility (CLEAR) and Partnership for the Advancement of New Americans (PANA) issued a memo to the Biden administration documenting the most egregious federal programs that unjustly surveil, profile, and criminalize Muslim, Black, Arab, Middle Eastern, and South Asian communities. With this documentation, community members in California and other states are reaching out to their elected representatives to share how biased federal policies have harmed people’s lives and undermined our values.

As we wrote in the recent memo, “the INA’s broad definition of ‘material support,’ ‘terrorist activity,’ and ‘terrorist organization’ gives the [Department of Homeland Security] and Immigration Judges dangerous discretion to target certain immigrants seeking admission and protection in the United States, especially Muslim immigrants and immigrants originating from countries with wars and conflicts.”

In one case, a widow from Iraq who supported her family by working as a florist was denied resettlement in the U.S. because members of a group that had been designated as a terrorist organization under the INA definition bought flowers from her shop. In another, a person from Burundi seeking refuge was incarcerated for over 20 months when DHS and a judge decided he had provided “material support” to a terrorist organization because people robbed him of four dollars and his lunch.

When it comes to this specific provision of the INA, community members and organizations like ours are calling on the Biden administration and Congress to end the use of “terrorism-related inadmissability grounds” that keeps families apart and creates a culture of fear throughout communities. Ms. Din’s case helped countless people understand the harmful effects of unjust policies created in the name of national security, Today, many of those same people are at the forefront of a movement that is calling on the Biden administration, Congress, and other elected representatives to learn from our history, pass legislation like the No BAN Act, and commit to a new day that fulfills the promise of our constitutional rights.

Community members march together at a No Muslim Ban Ever rally, holding loudspeakers and colorful signs that read "refugees welcome" "No Muslim Ban Ever" and more.

Community members march together at a No Muslim Ban Ever rally in 2018. (Les Talusan)