Allende v. Shultz

Decision Date18 September 1987
Docket NumberNo. 87-1469,87-1469
PartiesHortensia de ALLENDE, et al., Plaintiffs, Appellees, v. George P. SHULTZ, Secretary of State, et al., Defendants, Appellants. . Heard
CourtU.S. Court of Appeals — First Circuit

Joel W. Nomkin, Appellate Staff, Civil Div., Dept. of Justice, with whom Michael Jay Singer, Appellate Staff, Civil Div., Dept. of Justice, Richard K. Willard, Asst. Atty. Gen., Washington, D.C., and Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., were on brief, for defendants, appellants.

Leonard B. Boudin, with whom Edward Copeland, Terry Gross, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., Nat. Emergency Civil Liberties Committee, New York City, Allan R. Rosenberg, Putnam, Bell & Russell, Boston, Mass., Steven R. Shapiro, American Civil Liberties Union, Arthur Eisenberg, New York Civil Liberties Union, New York City, and Margaret Crosby, American Civil Liberties Union, San Francisco, Cal., were on brief, for plaintiffs, appellees.

Before BOWNES and BREYER, Circuit Judges, and LAGUEUX, * District Judge.

BOWNES, Circuit Judge.

This case involves the statutory interpretation of Section 212(a)(27) of the Immigration and Nationality Act of 1952, 8 U.S.C. Sec. 1182(a)(27) (1982). It addresses the power of the government under the Act to exclude aliens whose mere presence in the United States, in the judgment of the government, will pose potential foreign policy concerns. The instant dispute arises out of the exclusion from the United States of Hortensia de Allende under subsection 27, after Mrs. Allende applied for a nonimmigrant tourist visa in response to speaking invitations from various scholastic and community groups. The court below granted plaintiffs' motion for summary judgment, holding that the exclusion exceeded the statutory authority of the State Department. We agree that the government misapplied subsection 27 in its treatment of Mrs. Allende. We therefore affirm the judgment of the district court, although on the basis of somewhat different reasoning.

I. FACTUAL BACKGROUND

The underlying controversy dates to February 22, 1983, when Mrs. Allende applied for a nonimmigrant tourist visa to the United States. Mrs. Allende, the widow of Dr. Salvador Allende, the democratically elected president of Chile from 1970 to 1973, currently lives in exile in Mexico City. She applied to the United States Embassy in Mexico City for an entry visa in response to an invitation from the Northern California Ecumenical Council (NCEC) to speak during a planned celebration of International Women's Week in San Francisco. The invitation from NCEC was followed by numerous requests for speaking engagements from both religious and educational institutions in California. Mrs. Allende intended to address those groups on various issues raised by the contemporary political and social situation in Latin America, including the role of women in the struggle for human rights, the plight of women in exile, and the different options available to the United States in its policies toward the nations of Latin America.

The United States Embassy found Allende ineligible to receive a visa because of her affiliation with the World Peace Council (WPC) and the Women's International Democratic Federation (WIDF). The consular official responsible for Allende's application cited a provision of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(a)(28), which bars the admission of aliens who advocate communism or are affiliated with communist organizations. 1 The Department of State considers both the WPC and the WIDF to be international fronts for the Communist Party of the Soviet Union. Subsequent to its finding, the United States Embassy in Mexico City submitted Allende's application to the Department of State for an advisory opinion on whether a waiver of ineligibility should be sought pursuant to 8 U.S.C. Sec. 1182(d)(3). That section provides for the admission of aliens otherwise excludible upon recommendation by the Secretary of State, as approved by the Attorney General. 2

The waiver of subsection 28 ineligibility is controlled by the McGovern Amendment, 22 U.S.C. Sec. 2691. 3 Under the Amendment, the Secretary of State should recommend a waiver of ineligibility for any alien denied a visa due to subsection 28 organizational affiliation unless the Secretary certifies to Congress that such a waiver would implicate the security interests of the United States.

The Department of State set aside the question of subsection 28 waiver. Undersecretary of State Lawrence Eagleburger issued an advisory opinion informing the Embassy at Mexico City that Mrs. Allende was ineligible for a visa under subsection 27--a provision which bars entry to the following class of aliens:

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. Sec. 1182(a)(27). Eagleburger set forth two reasons for the subsection 27 ineligibility of Allende: (1) her membership in and attendance at conferences of the WPC, and (2) his official determination that Allende's entry into the United States at the time of her application "would have been prejudicial to the foreign policy interests of the United States...." See Partially Declassified Affidavit of Lawrence S. Eagleburger, reprinted in Joint Appendix at 168, 171. Subsection 27 ineligibility may not be waived under 8 U.S.C. Sec. 1182(d)(3). See supra note 2.

In August 1983, Mrs. Allende received further invitations from scholastic and civic organizations in the United States--including the Boston Area Council on Latin America (BACLA)--to address their members concerning Latin American affairs. Mrs. Allende accepted those invitations. The denial of her visa application, however, precluded her attendance and participation.

Plaintiffs filed suit in the United States District Court for the District of Massachusetts in December of 1983 to contest the visa denial. The named plaintiffs include not only Mrs. Allende, a symbolic party, 4 but also representative scholars and civic leaders who extended speaking invitations to Allende. 5 The complaint, which seeks declaratory and injunctive relief, charges that the interpretation of subsection 27 by the Department of State, and its application in regard to Mrs. Allende, exceed the scope of authority granted by the Immigration and Nationality Act and infringe upon the first amendment rights of plaintiffs to receive information as recognized in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972).

II. PROCEDURAL HISTORY

The district court issued three memoranda and orders. Its first opinion considered and denied the government's motion to dismiss, or in the alternative, for summary judgment. Allende v. Shultz, 605 F.Supp. 1220 (D.Mass.1985). The second opinion concerned the question of mootness. Allende v. Shultz, 624 F.Supp. 1063 (D.Mass.1985). And the third opinion, the subject of the current appeal, granted plaintiffs' motion for summary judgment. Allende v. Shultz, No. 83-3984-C (D.Mass. March 31, 1987) .

The initial opinion of the district court addressed three distinct issues: standing, subject matter jurisdiction and the sufficiency of the complaint. First, the court held that the denial of a visa to Mrs. Allende implicated plaintiffs' first amendment rights to receive information and ideas and thereby inflicted sufficient injury to meet the standing requirement. Second, the court held that government action in the area of foreign affairs is not immune from judicial scrutiny. And finally, the court found that the government had not met its burden of proof for dismissal or summary judgment since it had failed to advance a facially legitimate and bona fide reason for exclusion as required by Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576.

In its second memorandum and order, the court considered defendants' motion to dismiss for mootness. Defendants' motion followed the issuance of a single entry visa to Mrs. Allende on October 4, 1985. The lower court held that despite the decision to grant Allende's request for admission, the government had failed to carry its burden as established by County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). 6 The court noted that plaintiffs' request for declaratory relief rested not merely on the denial of a visa to Allende but rather on the policy of applying subsection 27 to her application, and the government had not disavowed that policy. Further, the court held that even if the actual controversy had lapsed, nonetheless the case presented an issue capable of repetition yet evading review: Defendants' policy burdened plaintiffs' first amendment rights by precluding plaintiffs from planning speaking engagements for Allende, and yet any time plaintiffs challenged a particular visa denial, the government could grant a visa and thereby evade judicial review. The court refused to sanction such a result. 7

In its third and final opinion, the lower court considered cross motions for summary judgment. The government submitted a partially declassified version of the Eagleburger affidavit 8 which it argued satisfied the Mandel standard of a facially legitimate and bona fide reason for exclusion. In his affidavit, the Undersecretary of State testified that Allende belonged to the WPC, that the WPC acted as a covert instrument of Soviet policy to manipulate public opinion in the United States, that the Reagan Administration had decided to deny entry to WPC members, and that pursuant to that policy Eagleburger had determined that the admission of Allende to the United States would be contrary to the nation's foreign policy interests. The court found the...

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