Recap of Oral Arguments in Kerry v. Din: Review of consular visa decisions for the twenty-first century
Ed Kneedler arguing Kerry v. Din
Drawing Courtesy of SCOTSUSblog.com (Al Lien)
Here is my recap and analysis of the oral arguments yesterday in Kerry v. Din, which has been the subject of a considerable amount of commentary on ImmigrationProf blog.
Ed Kneedler of the Office of the Solicitor General took a “take-no-prisoners” approach to defending the doctrine of consular nonreviewability and repeatedly invoked the Cold Warrior cases of Knauff (1950) and Mezei (1953) (an approach that Chuck Roth thoughtfully commented upon here), which law professors love to hate. Mark Haddad for Fauzia Din took a more measured approach calling for the Court to apply its decision in Kleindienst v. Mandel (1972) and affirm the court of appeals decision allowing for narrow judicial review of visa denials by consular officers.
My bottom line: A 5-4 Court applies Mandel to the facts of this case. However, it is far from certain whether the Court will find that the visa denial in this case satisfied the facially legitimate and bona fide requirement of Mandel.
KJ