Abourezk v. Reagan

Decision Date11 March 1986
Docket NumberNos. 84-5673,84-5681 and 84-5708,s. 84-5673
Citation251 U.S.App.D.C. 355,785 F.2d 1043
Parties, 54 USLW 2481 James ABOUREZK, et al., Appellants, v. Ronald Wilson REAGAN, President of the United States, et al. CITY OF NEW YORK, et al., Appellants, v. George P. SHULTZ, Secretary of State, et al. Bruce CRONIN, et al., Appellants, v. George P. SHULTZ, Secretary of State, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Steven R. Shapiro, with whom Charles S. Sims, Frederick A.O. Schwarz, Jr. and Leonard Boudin were on brief for appellants in Nos. 84-5673, 84-5681 and 84-5708. Susan W. Shaffer also entered an appearance for appellants in Nos. 84-5673, 84-5681 and 84-5708.

Michael Jay Singer, Atty., for appellees. Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Paul Blankenstein, Atty., were on brief for appellees in Nos. 84-5673, 84-5681 and 84-5708. Thomas W. Hussey and Barbara Herwig, Attys., also entered appearances for appellees in Nos. 84-5673, 84-5681 and 84-5708.

Robert B. McKay was on brief for amicus curiae the Committee on Immigration and Nationality Law of the Ass'n of the Bar of the City of N.Y. urging reversal.

Steven P. Quarles was on brief for amici curiae the American Ass'n of University Professors, et al. urging reversal.

Before EDWARDS, GINSBURG, and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting Opinion filed by Circuit Judge BORK.

GINSBURG, Circuit Judge:

This case concerns the scope of the authority Congress accorded to the Secretary of State under the Immigration and Nationality Act of 1952, Sec. 182, 8 U.S.C. Sec. 1182(a)(27) (1982), to deny non-immigrant visas to aliens who wish to visit this country in response to invitations from United States citizens and residents to attend meetings or address audiences here. The district court, granting the government's motion for summary judgment, held that the specific visa denials at issue were within the State Department's statutory and constitutional authority. See Abourezk v. Reagan, 592 F.Supp. 880 (D.D.C.1984). We conclude that the district court incorrectly analyzed the statutory construction issue, and that questions of material fact remain. Accordingly, we vacate the judgment of the district court and remand the case for further proceedings consistent with this opinion.

I.

We describe first the statutory complex and, next, the essential facts of the cases presented for review.

The Immigration and Nationality Act of 1952, 8 U.S.C. Sec. 1101 et seq. (1982) (Immigration Act or Act), delegates responsibility for regulating the entry of aliens jointly to the Attorney General, the Secretary of State, and United States consular officials abroad. The Secretary of State has the authority to revoke visas, as well as the general responsibility to supervise the issuance of visas by consular officers. See id. at Sec. 1104; Brief for Appellees at 4. Section 1182(a) of the Act defines the categories of aliens that the government may exclude from this country. Some of these categories deal with the status of the alien, see, e.g., Sec. 1182(a)(28) (aliens who are members of Communist or anarchist organizations); others concern the alien's activities, see, e.g., Sec. 1182(a)(29) (aliens likely to engage in subversion or espionage); while still others involve the procedural requirements for entry, see, e.g., Sec. 1182(a)(20) (aliens without valid visas and passports).

Subsection (27) of section 1182(a), the provision centrally at issue in this case, directs the exclusion of an alien if the Attorney General has reason to believe that the alien "seek[s] to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest or endanger the welfare, safety, or security of the United States." Pursuant to State Department policy, when a consular officer abroad receives a visa request from an individual he believes may be ineligible under subsection (27), the officer forwards the request to the State Department where the appropriate officials consider it and render binding advice. See 22 C.F.R. Sec. 41.130(c) (1985); Brief for the Appellees at 6-9. 1 If the alien is found to be within the subsection (27) classification, his exclusion is mandatory.

Subsection (28) of section 1182(a) also bears importantly on this case and was inadequately evaluated by the district court. This subsection authorizes the exclusion, inter alia, of aliens who are, or at any time have been, "members of ... the Communist Party of the United States, ... the Communist ... party ... of any foreign state, or ... any ... affiliate ... of any such ... party." 8 U.S.C. Sec. 1182(a)(28)(C) (1982). Unlike subsection (27), subsection (28) does not require the Secretary of State to exclude any alien who meets the stated criteria. If the Secretary recommends a waiver of ineligibility, then, in the discretion of the Attorney General, the alien may be admitted. See 8 U.S.C. Sec. 1182(d)(3)(A) (1982).

The McGovern Amendment, 22 U.S.C. Sec. 2691 (1982), addresses the Secretary's implementation of this waiver provision. The Amendment calls upon the Secretary to recommend "the approval necessary for the issuance of a visa" to "any alien who is excludible from the United States by reason of membership in or affiliation with a proscribed organization but who is otherwise admissible to the United States," unless the Secretary certifies to the Congress that "the admission of such alien would be contrary to the security interests of the United States." Id. at Sec. 2691(a).

This appeal involves three actions consolidated in the district court; the actions contest the denial under subsection (27) of four visa requests. In Abourezk v. Reagan, No. 84-5673, the plaintiffs are a diverse group of United States citizens--including members of Congress, university professors, journalists, and religious leaders--who had invited Tomas Borge, the Interior Minister of Nicaragua, to speak to them in this country. See Brief of Plaintiffs-Appellants at 9-11. The Nicaraguan government applied to the United States Embassy in Managua for a non-immigrant visa for Borge. After obtaining an advisory opinion from the State Department, the consular officer informed Borge, in late November 1983, that his visa request had been denied pursuant to section 1182(a)(27) of the Immigration Act. See Brief for the Appellees at 9-11.

The plaintiffs in Cronin v. Shultz, No. 84-5708, are principally groups interested in nuclear disarmament who had invited Nino Pasti to attend and speak at a rally in Boston. Pasti is a former member of the Italian Senate and former general in the Italian armed forces; he is now a peace activist. See Brief of Plaintiffs-Appellants at 8. Pasti is also a participant in the World Peace Council, an organization which the State Department believes to be controlled by the Soviet Communist Party. See World Peace Council: Instrument of Soviet Foreign Policy, FOREIGN AFFAIRS NOTE (Department of State, April 1982), reprinted in Joint Appendix at 144-48. The consular officer in Rome found Pasti ineligible to receive a visa under subsection (28). The officer therefore requested an advisory opinion from the State Department on the possibility of a waiver. In response, the Department informed the officer that Pasti was ineligible under subsection (27). The consular officer thereupon notified Pasti, in mid-October 1983, that his visa request had been denied. See Affidavit of Louis P. Goelz, reprinted in Joint Appendix at 163-64.

In City of New York v. Shultz, No. 84-5681, the plaintiffs, the New York City Commission on the Status of Women and several women's studies programs at various universities, had extended speaking invitations to two Cuban women, Olga Finlay and Leonor Rodriguez Lezcano; these individuals have special expertise regarding the status of women and family law in Cuba. See Brief of Plaintiffs-Appellants at 13-14. According to the State Department, both women are members of the Federation of Cuban Women, an organization affiliated with the Communist Party of Cuba. See Affidavit of Louis P. Goelz, reprinted in Joint Appendix at 164-65. Visa applications for the two women were conveyed by diplomatic note from the Government of Cuba. The consular officer in Havana forwarded the visa requests to the State Department and was advised that Finlay and Lezcano were ineligible under subsection (27). He notified them, in early October 1983, that their visa requests had been denied. See Brief for the Appellees at 12-13. 2

The plaintiffs filed suit in the district court requesting injunctive and declaratory relief. They argued that the State Department's exclusion of the aliens invited by plaintiffs to speak here exceeded the Department's statutory authority under subsection (27) and violated the plaintiffs' first amendment right to engage in dialogue with these foreign individuals. The district court granted the defendants' request for a stay of discovery pending their filing of a motion for summary judgment. See Abourezk v. Reagan, No. 83-3739 (D.D.C. Feb. 8, 1984) (order granting motion for extension of time and protective order staying discovery). After consideration of both the public documents and three classified affidavits submitted by the government for the court's in camera inspection, the district judge granted the defendants' motion for summary judgment. The court held that the government's action was within its statutory authority and survived the very limited constitutional scrutiny appropriate in a case concerning the admission or exclusion of aliens. See Abourezk v. Reagan, 592 F.Supp. 880 (D.D.C.1984).

II.

The government raises several preliminary objections to the adjudication of these claims. The State Department suggests that the district court lacked jurisdiction over the subject matter, that...

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