Allende v. Shultz, Civ. A. No. 83-3984-C.

• Decision Date: 01 April 1985
• Docket Number: Civ. A. No. 83-3984-C.
• Citation: 605 F. Supp. 1220
• Parties: Hortensia Bossi De ALLENDE, et al., Plaintiffs, v. George P. SHULTZ, Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

605 F. Supp. 1220

Hortensia Bossi De ALLENDE, et al., Plaintiffs, v. George P. SHULTZ, Secretary of State, et al., Defendants.

Civ. A. No. 83-3984-C.

United States District Court, D. Massachusetts.

April 1, 1985.

Leonard B. Boudin, New York City, Allan R. Rosenberg, Putnam, Bell & Russell, Boston, Mass., for plaintiffs.

William P. Joyce, Asst. U.S. Atty., Boston, Mass., and Robert L. Bombaugh, Thomas W. Hussey, David V. Bernal, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM

CAFFREY, Chief Judge.

This is a civil case which presents the following question: Does the Department of State's refusal to grant a nonimmigrant visa to Hortensia Allende, widow of former Chilean President Salvador Allende, impermissibly impinge on the First Amendment rights of plaintiffs, American scholars, politicians and religious leaders who have invited Mrs. Allende to the United States to speak and exchange views with them on topics of common concern?

The case comes before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment.

Facts

In February, 1983, after receiving speaking invitations from several of the plaintiffs, Mrs. Allende applied to the United States Embassy in Mexico City for a nonimmigrant tourist visa. She wished to come to the United States for approximately 10 days. The consular officer in Mexico City determined that, under § 212(a)(28)(C) of the Immigration and Nationality Act (the Act), Mrs. Allende was ineligible to receive a visa. This statutory provision, hereinafter referred to as subsection (28), prohibits the issuance of visas to "aliens who are members of or affiliated with ... (iv) the Communist or any other totalitarian party ... of any foreign state ..., (v) any section, subsidiary, branch, affiliate or subdivision of any such association or party ...." 8 U.S.C. § 1182(a)(28)(C). Mrs. Allende is a member of both the World Peace Council (WPC) and the Women's International Democratic Federation (WIDF), organizations reputed to be international fronts for the Communist Party of the Soviet Union.

The Act also provides, however, that an alien who is found to be ineligible to receive a visa under subsection (28) may nevertheless be admitted to the United States if the Attorney General, in his discretion, approves a recommendation of waiver proffered to him by the Secretary of State. 8 U.S.C. § 1182(d)(3)(A). Thus, in accordance with standard procedure, the consular officer at Mexico City sought an advisory opinion from the Department of State (Department) as to whether the Department should recommend to the Attorney General that Mrs. Allende be allowed to enter the United States. After considering Mrs. Allende's application, the Department decided that she was ineligible to receive a visa not only under subsection (28), but also under section 212(a)(27) (hereinafter referred to as subsection (27)). This subsection excludes from the United States "aliens who the consular officer or the Attorney General 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." 8 U.S.C. § 1182(a)(27). Because there can be no waiver of ineligibility for aliens excluded under this subsection, the Embassy at Mexico City returned Mrs. Allende's passport to her and informed her that her application had been denied pursuant to 8 U.S.C. § 1182(a)(27). Thereafter, this action was instituted by American citizens who claim that the denial of Mrs. Allende's visa application violates their First Amendment rights of free speech and association.¹

Defendants' Motion to Dismiss

Defendants move to dismiss this case on the grounds that this Court lacks subject matter jurisdiction, plaintiffs lack standing to sue, and the complaint fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Because defendants base their 12(b)(6) claim primarily on their arguments relating to the first two issues, it is necessary to address only the questions of standing and jurisdiction.

Defendants' assert that plaintiffs lack standing to challenge the denial of Mrs. Allende's visa application, because the denial affects neither plaintiffs' right to cross the nation's borders nor their ability to communicate with Mrs. Allende by mail or telephone or to meet with her in Mexico City. These arguments, however, were soundly rejected by the Supreme Court in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). After reaffirming the well-established principle that the Constitution protects not only the right to convey information and ideas, but also the right to receive them, 408 U.S. at 762-63, 92 S.Ct. at 2581-82, the Court in Mandel explicitly recognized that "First Amendment rights are implicated" in the Government's refusal to grant a visa to an alien with whom American citizens wish to speak. Id. at 765, 92 S.Ct. at 2582. With respect to the Government's contention in that case that telephones and other technological developments adequately replace personal contact, the Court also noted:

This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning .... We are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access.

408 U.S. at 765, 92 S.Ct. at 2582.

In light of these declarations by the Supreme Court, I rule that plaintiffs have standing to challenge defendants' decision to exclude Mrs. Allende from the United States. See also Abourezk v. Reagan, 592 F.Supp. 880, 883-84 n. 10 (D.D.C.1984) and cases cited therein.

Defendants further contend, however, that this Court lacks jurisdiction to hear plaintiffs' claims. They maintain that both the Constitution and historical principles of sovereignty bestow "the responsibility for regulating the relationship between the United States and our alien visitors ... on the political branches of the Federal Government." Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). Although the United States Supreme Court has consistently recognized that the sensitive and fluctuating nature of international relations dictates "a narrow standard of review of decisions made by Congress or the President in the area of immigration and naturalization," id. at 82, 96 S.Ct. at 1892, the Court has nevertheless emphasized that the government's power in this area is not entirely immune from judicial scrutiny. Fiallo v. Bell, 430 U.S. 787, 793 n. 5, 795-96 n. 6, 97 S.Ct. 1473, 1478 n. 5, 1479-80 n. 6, 52 L.Ed.2d 50 (1977). The exercise of judicial review, though necessarily limited in scope, is particularly appropriate in cases like the one at bar which involve fundamental rights of United States citizens. Id., Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Abourezk v. Reagan, 592 F.Supp. at 883-84 n. 10. I therefore rule that this Court has jurisdiction over the action presently before it.

Because plaintiffs have standing to bring suit and this Court has jurisdiction to hear their claims, I further rule that defendants' motion to dismiss should be denied.

Defendants' Motion for Summary Judgment

Defendants maintain that they are entitled to summary judgment because they have presented legally adequate reasons for their refusal to grant Mrs. Allende a visa. The validity of their contention must be analyzed within the framework of the Supreme Court's landmark decision, Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). In that case, plaintiffs, who were American students and scholars, challenged the Government's refusal to issue a visa to Ernest E. Mandel, a Belgian journalist and self-proclaimed "revolutionary Marxist." Mr. Mandel's visa application was rejected because the Department of State determined, pursuant to subsection (28), that he was ineligible to receive a visa, and the Attorney General thereafter declined to exercise his discretion to waive the Department's finding of ineligibility. In upholding the Attorney General's decision to exclude Mandel, the Court stated:

In the case of an alien excludable under § 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power 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. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.

408 U.S. at 770, 92 S.Ct. at 2585 (emphasis added).

The lower federal courts have interpreted Mandel to require the Government to provide a justification for an alien's exclusion when that exclusion is challenged by United States citizens asserting constitutional claims. E.g., Burrafato v. United States, 523 F.2d 554, 556 (2nd Cir.1975), cert. denied 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976); Abourezk v. Reagan, 592 F.Supp. 880, 881 (D.D.C.1984). The line of precedents from the lower courts further reveals that the explanation given must be "facially legitimate and bona fide" not only in a general sense, but also within the context of the specific statutory provision on which the exclusion is based. See Abourezk, 592 F.Supp. 880; El-Werfalli v. Smith, 547 F.Supp. 152 (S.D.N.Y.1982); NGO Committee on Disarmament v. Haig, No. 82 Civ. 3636, slip op. (S.D.N.Y. June 10, 1982), aff'd, 697 F.2d 294 (2d Cir. 1982).

In this case, the Department bases...