However, the Foreign Affairs Manual states that as many refusals as practical, but not fewer than 10%, should be reviewed, as soon as possible, but deferrable by up to 120 days if the applicant wishes to submit additional evidence.
Since the vessel would generally be harbored in the United States prior to departure, the alien could file a writ of habeas corpus and have his or her refusal challenged in court, at least in principle.
A few such cases shortly after the passage of the Chinese Exclusion Act helped delineate the scope of judicial review for decisions on whether to admit an alien.
Other cases that occurred in subsequent years further strengthened the plenary power doctrine, though they related to the authority to deny entry and deport people and did not address consular decisions.
In 1924, Congress enacted a provision requiring consular officers to make a determination of admissibility and issue the visa only if they were satisfied.
The Administrative Procedure Act of 1946 changed this; Section 10 of the APA permitted judicial review for any person "adversely affected or aggrieved" by the actions of a government agency.
[5] Also, Section 279 of the Immigration and Nationality Act of 1952 explicitly gave the courts jurisdiction over "all causes" arising under Title II of the statute.
This action was brought to compel Attorney General Kleindienst to grant a temporary nonimmigrant visa to a Belgian journalist and Marxian theoretician whom the American plaintiff-appellees, Ernest Mandel et al., had invited to participate in academic conferences and discussions in the US.
The alien had been found ineligible for admission under 212 (a) (28) (D) and (G) (v) of the Immigration and Nationality Act of 1952, barring those who advocate or publish "the economic, international, and governmental doctrines of world communism."
Kleindienst had declined to waive ineligibility as he has the power to do under 212 (d) of the Act, basing his decision on unscheduled activities engaged in by the alien on a previous visit to the United States, when a waiver was granted.
Din then submitted a Form I-130 petition to the United States Citizenship and Immigration Services, sponsoring Berashk under the Immediate Relative category.
Scalia's opinion rejected (1), i.e., he argued that the denial of a visa did not implicate a fundamental liberty interest, and that it differed from Loving v. Virginia in that the right to marriage was not being questioned.
Kennedy's opinion differed from Scalia's in that he did not come to a definite conclusion regarding (1), but instead he rejected (2), arguing that even if Din's liberty was infringed upon, the reason explanation offered by the consulate for the denial (i.e., that Berashk had provided material support to a terrorist organization) fulfilled the government's obligations, and that further details were not required in cases where the application was denied due to terrorism or national security concerns.
Stephen Breyer wrote a dissenting opinion answering both (1) and (2) in the affirmative, in which he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.
Breyer's dissent argued that forbidding people from living together did effectively impede the right to marry, and that the level of explanation offered for the denial was inadequate, similar to "telling a criminal defendant that he is accused of breaking the law."
Although Kerry v. Din upheld the doctrine of consular nonreviewability, legal commentators viewed it as not carrying much additional weight as a precedent since the decision was a plurality opinion.