Adams v. Baker

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation909 F.2d 643
Docket NumberNo. 89-1903,89-1903
PartiesGerry ADAMS, et al., Plaintiffs, Appellants, v. James BAKER, Secretary of State; Richard Thornburgh, Attorney General; and Alan C. Nelson, Director of the Immigration and Naturalization Service, Defendants, Appellees. . Heard
Decision Date06 February 1990

Edward Copeland, with whom Leonard B. Boudin, Linda Bosniak and Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, were on brief, for plaintiffs, appellants.

Thomas W. Hussey, Deputy Director, Office of Immigration Litigation, with whom Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., and Wayne A. Budd, U.S. Atty., Boston, Mass., were on brief, for defendants, appellees.

Before CAMPBELL, BOWNES and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

At issue before this court is the propriety of the district court's decision granting summary judgment to the government and dismissing plaintiffs'-appellants' challenge to the denial of a nonimmigrant visa to an alien, Gerry Adams. After careful analysis and review, we affirm the decision of the district court.

I. BACKGROUND

In March, 1988, Gerry Adams, a citizen and resident of the Republic of Ireland, sought entry into the United States for the purpose of conducting a speaking tour. He proposed to address a variety of groups on subjects including the state of civil and human rights in the six counties referred to as Northern Ireland, as well as other related issues. At that time, Adams was the president of Sinn Fein, an organization which the United States Department of State believed to be the political arm of the Provisional Irish Republican Army ("IRA"), an organization engaged in terrorist activities in Northern Ireland and elsewhere. He was also an elected member of the British Parliament.

On the basis of the exclusionary provisions of Section 212(a)(28)(F) of the Immigration and Nationality Act of 1952, 8 U.S.C. Sec. 1182(a)(28)(F), United States consular officers in Belfast, Ireland, in consultation with the Deputy Secretary of State, determined that Adams was ineligible for admission into the United States because of alleged advocacy of and personal involvement with terrorist violence. His visa application was consequently denied. Following this denial, a United States citizen and several United States organizations and associations brought suit seeking to have the visa denial set aside, as well as an order compelling the State Department to admit Adams into the United States. 1

The district court entered summary judgment for the State Department, holding that the government had provided a "facially legitimate and bona fide reason" for the alien's exclusion in accordance with the principles of Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). In so doing, the court implicitly rejected appellants' statutory and constitutional claims as insufficient to warrant Adams' entrance into the United States. For the reasons enumerated below, we affirm the decision of the district court.

II. STATUTORY BACKGROUND

Contained within the Immigration and Nationality Act of 1952 ("Act"), 8 U.S.C. Sec. 1101 et seq., are the terms and conditions under which aliens are permitted to enter the United States--either as visitors or immigrants. While there are some exceptions, it is generally true that an alien must apply for and obtain an immigrant or nonimmigrant visa prior to entering the United States. 8 U.S.C. Secs. 1181(a) and 1182(a)(26). None of these exceptions are presently at issue.

Nonimmigrant visas, such as the one sought by Adams, may be granted to aliens seeking temporary admission into the United States for a variety of reasons. See 8 U.S.C. Sec. 1101(a)(15). It is the alien, however, who bears the burden of establishing "that he is eligible to receive such a visa ... or is not subject to exclusion under any provision of [the Act]...." 8 U.S.C. Sec. 1361. These exclusionary provisions are contained within the thirty-three separate categories of Section 1182(a), Subsection 28 being the one at issue in the present litigation. 8 U.S.C. Sec. 1182(a)(28).

8 U.S.C. Sec. 1182(a)(28) applies to eight different classes of aliens. It was under Subsection 28(F) that Adams' visa application was denied. That section provides for the exclusion of:

(F) Aliens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches ... (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his official character; or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage[.]

8 U.S.C. Sec. 1182(a)(28)(F). 2 But the mere fact of an alien's inclusion under that subsection is not necessarily dispositive. Under 8 U.S.C. Sec. 1182(d)(3)(A), the provisions of Subsection 28 may be waived if the conditions enumerated by the McGovern Amendment ("Amendment"), 22 U.S.C. Sec. 2691, are satisfied. 8 U.S.C. Sec. 1182(d)(3)(A).

The amendment provides standards for the Secretary of State's determination of whether to recommend a waiver of subsection 28. It essentially requires the granting of a waiver, because such a waiver can only be avoided if the Secretary can certify to the Speaker of the House of Representatives that admission of the alien would be contrary to the security interests of the United States.

DeAllende v. Baker, 891 F.2d 7, 9-10 (1st Cir.1989). The Amendment, however, is applicable only to those aliens whose sole basis for exclusion is membership in or affiliation with a proscribed organization. "Nothing in this section may be construed as authorizing or requiring the admission to the United States of any alien who is excludible for reasons other than membership in or affiliation with a proscribed organization." 22 U.S.C. Sec. 2691(a). Since Adams was excluded because of his alleged involvement with terrorist violence, rather than because of affiliation with a particular group, the McGovern Amendment does not provide independent authorization for his admittance into this country.

But the McGovern Amendment is not the only source wherein exceptions to 8 U.S.C. Sec. 1182 may be found. Additional exceptions are delineated within the provisions of Section 901 of Public Law 100-204, which mandate that aliens not be denied visas or admission into the United States "because of any past, current, or expected beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States." Temporary Prohibition on Exclusion or Deportation of Aliens For Certain Beliefs, Statements, or Associations, 101 Stat. 1399, Sec. 901(a) (1988), reprinted in 8 U.S.C.A. Sec. 1182 note, at 143 (West Supp.1990). That section does not apply, however, to aliens who "a consular official ... knows or has reasonable ground to believe has engaged, in an individual capacity or as a member of an organization, in a terrorist activity...." 101 Stat. 1399, Sec. 901(b)(2). Terrorist activity is defined by that section as "the organizing, abetting, or participating in a wanton or indiscriminate act of violence with extreme indifference to the risk of causing death or serious bodily harm to individuals not taking part in armed hostilities." Id. It is this provision which we address today.

III. DENIAL OF ADAMS' VISA APPLICATION
A. Standard of Review

Nowhere is the scope of judicial inquiry more limited than in the area of immigration legislation. E.g., Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). Indeed, the Supreme Court has "long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). See also Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1478; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 reh'g denied, 343 U.S. 936, 72 S.Ct. 767, 96 L.Ed. 1344 (1952); The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). The political character of this intrinsically executive function renders it "subject only to narrow judicial review." Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21, 96 S.Ct. 1895, 1904 n. 21, 48 L.Ed.2d 495 (1976) (citing Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905 (1893) (quoted in Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1478)).

Even where, as here, challenges to immigration legislation and decisions are made based upon constitutional rights and interests of United States citizens, the Supreme Court has "rejected the suggestion that more searching judicial scrutiny is required." Fiallo v. Bell, 430 U.S. at 794, 97 S.Ct. at 1479. In Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, for example, the Supreme Court confronted the same issue as that now faced by this court. The issue in that case was whether certain provisions of the Immigration and Nationality Act relating to denial of visas to particular classes of aliens were unconstitutional because they deprived American citizens of various First Amendment rights. 3 Id. The Court held that:

when the Executive exercises this power [to admit an alien] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Id. at 770, 92 S.Ct. at 2585. Thus, if the Department of State's...

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