Abourezk v. Reagan

• Decision Date: 27 July 1984
• Docket Number: 83-3741 and 83-3895.,Civ. A. No. 83-3739
• Citation: 592 F. Supp. 880
• Parties: James ABOUREZK, et al., Plaintiffs, v. Ronald W. REAGAN, et al., Defendants. CITY OF NEW YORK, et al., Plaintiffs, v. George P. SHULTZ, et al., Defendants. Bruce CRONIN, et al., Plaintiffs, v. George P. SHULTZ, et al., Defendants.
• Court: U.S. District Court — District of Columbia

592 F. Supp. 880

James ABOUREZK, et al., Plaintiffs, v. Ronald W. REAGAN, et al., Defendants.

CITY OF NEW YORK, et al., Plaintiffs, v. George P. SHULTZ, et al., Defendants.

Bruce CRONIN, et al., Plaintiffs, v. George P. SHULTZ, et al., Defendants.

Civ. A. Nos. 83-3739, 83-3741 and 83-3895.

United States District Court, District of Columbia.

July 27, 1984.

Leonard B. Boudin, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, Steven R. Shapiro, Arthur Eisenberg, New York Civil Liberties Union, New York City, Margaret Crosby, American Civil Liberties Union of Northern California, San Francisco, Cal., Burt Neuborne, Charles S. Sims, American Civil Liberties Union, New York City, Amit Pandya, Susan W. Shaffer, American Civil Liberties Union, Washington, D.C., Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, for plaintiffs.

Robert L. Bombaugh, Thomas W. Hussey, David V. Bernal, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

OPINION

HAROLD H. GREENE, District Judge.

These cases present the question whether the Secretary of State¹ is required to issue visas to aliens whom plaintiffs — citizens and residents of the United States — have invited to come to the United States for the purpose of associating with them and hearing them speak on issues of public concern.

While there are a number of subsidiary questions in these cases, the legal issue which ultimately governs is relatively straightforward. In Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), the Supreme Court decided that, in view of the broad authority vested by the Constitution in the Congress and the Executive over the admission of aliens and the conduct of foreign affairs, the Judiciary may do no more, in circumstances such as these, than to inquire whether the government has provided a "facially legitimate" explanation for its refusal to permit an alien to enter. If such an explanation is given, a court is not free to question the underlying policy or the wisdom of the decision, but it must defer to the political branches. As discussed below, facially legitimate reasons have been provided here, and the decision of the Secretary will therefore be upheld.

I

Abourezk (C.A. No. 83-3739) involves an invitation extended by several of the plaintiffs to Tomas Borge, Interior Minister of Nicaragua, to come to the United States for various purposes. Some of the plaintiffs state that they wish Mr. Borge to engage in a five-day speaking tour; others, who are members of Congress, assert that they want to meet with Mr. Borge privately to gain his perspective on Central American affairs; still others, who are journalists, claim that they intend to interview Mr. Borge; and several university professors allege that they wish to have Mr. Borge speak at a university or before religious groups.

Cronin (C.A. No. 83-3895) involves an invitation extended to Nino Pasti, a former member of the Italian Senate and of the Italian armed forces, and the present president of an organization named Lotte per la Pace (Struggle for Peace). According to the Department of State, Mr. Pasti is also an active participant in the activities of World Peace Council, an instrumentality of the Soviet government. Mr. Pasti was invited to speak at one or more rallies sponsored by two organizations — the Mobilization for Survival and the New England Campaign to Stop the Euromissiles — which are seeking to change United States nuclear policies through public demonstrations and other means.

City of New York (C.A. No. 83-3741) involves an invitation extended by the Commission on the Status of Women, a New York City agency, to Olga Finlay and Leonor Rodriguez Lezcano, two Cuban women, who are said by plaintiffs to have special expertise on the status of women in Cuba. According to the government, both are members of the Federation of Cuban Women, an instrumentality of the Cuban Communist Party. Ms. Finlay and Ms. Lezcano were invited to come to the United States to speak in New York City, at several universities across the country, and at such organizations as the Third World Women's Project, and the Committee on Religion, Ethics, and Social policy.

Each of the invited aliens applied for a visa² at the appropriate American consulate or embassy.³ Because the applications involved possible denials for foreign policy reasons, they were forwarded for review to the Assistant Secretary of State for Consular Affairs in Washington, in accordance with standing instructions,⁴ and at least some of them were also reviewed by the then Under Secretary of State Lawrence Eagleburger. Eventually, the consular officers were instructed by the Department of State that the entry and the proposed activities of the aliens would prejudice the conduct of United States foreign affairs, and that the visas were to be denied pursuant to section 212(a)(27) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1182(a)(27) (hereinafter referred to as subsection (27)). The alien applicants were informed accordingly.

These actions followed. Presently pending before the Court is the government's motion for summary judgment.

II

Plaintiffs do not contend that either the Constitution or any law grants to the invited aliens⁵ the right to enter the United States. As indicated infra, such an argument would lack validity in any event. Rather, the claim is that the American plaintiffs were deprived of their rights under the First Amendment and under the Immigration and Nationality Act when they were denied the opportunity to associate with their invitees and to hear their speech in this country. Before examining these claims in detail, it is helpful to consider first the Kleindienst case supra, which resolves many of the issues underlying plaintiffs' claims.

In Kleindienst, Ernest E. Mandel, a Belgian journalist and editor, was invited by a graduate student association at Stanford University⁶ to participate in a conference on Technology and the Third World and thereafter to lecture at other major universities and conferences. Section 212(a)(28) of the Act excludes from the United States, among others, aliens who advocate communism or the establishment in the United States of a totalitarian dictatorship, and Mr. Mandel apparently was excludable as being in that category. Unlike the ban in subsection (27), that in subsection (28) may be waived by the Attorney General upon the recommendation of the Department of State.⁷ No waiver was granted, and Mr. Mandel's application for a visa was rejected.

In the Kleindienst suit, the alien's sponsors made many of the same arguments that are advanced by the plaintiffs in this action. The Supreme Court sustained some of these contentions, and it rejected others. Thus, the Court held that an alien invitee has no personal constitutional right to enter this country; that insofar as his sponsors are concerned, they have a right under the Constitution not only to dissiminate information and ideas but also to receive them; and that the possible availability of alternative means of receiving information and ideas (e.g., telephone hook-ups, tapes, visits to a foreign country) does not extinguish or displace altogether this constitutional right.

Having said that, the Court, after reiterating the familiar rule that Congress has plenary power over the admission of aliens, went on to hold that the First Amendment rights of individuals who wish to meet and speak with an alien do not necessarily override the power of the Executive, delegated by Congress, to deny waivers of the subsection (28) prohibition. Finally, the Court stated that:

Appellees seek to soften the impact of this analysis by arguing ... that the First Amendment claim should prevail, at least where no justification is advanced for denial of a waiver.... The Government would have us reach this question, urging a broad decision that Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given.... This record, however, does not require that we do so, for the Attorney General did inform Mandel's counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide.⁸

408 U.S. at 769, 92 S.Ct. at 2585.

The instant cases do not permit a decision based on the precise Kleindienst factors,⁹ and the Court must therefore decide whether the Department of State has given a "facially legitimate and bona fide" reason for denying visas to the aliens who sought entry here.

III

All three cases present two basic questions¹⁰ — the meaning of subsection (27) and the constitutionality of the government's actions.¹¹ These will now be examined in turn.

Subsection (27) provides that members of the following class of aliens are ineligible to receive visas:

Aliens who the consular officer ... knows or has reason to believe seek 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.

Plaintiffs raise two statutory construction points apart from their First Amendment claims.

First. Plaintiffs contend that subsection (27) speaks only of an alien's activities which might jeopardize the public interest or security, in contradistinction to aliens whose entry or presence in this country might have such an effect. In that view, the government may not, under that subsection, exclude an alien unless there is some reason to believe that he will engage in offensive conduct. To put it another way, plaintiffs argue that the statute does not permit the Department of State to exclude an alien whose conduct is presumed to be benign but whose presence alone in this country is regarded as prejudicial to the public interest, welfare, or security of the United States.

On a strictly textual basis, that contention is not unpersuasive, for the statutory...