Bruno v. Albright

• Decision Date: 03 December 1999
• Docket Number: No. 98-5495,98-5495
• Citation: 197 F.3d 1153
• Parties: (D.C. Cir. 1999) Roberto Saavedra Bruno, et al.,Appellants v. Madeleine K. Albright, Secretary of State, et al.,Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1153

197 F.3d 1153 (D.C. Cir. 1999)

Roberto Saavedra Bruno, et al.,Appellants v. Madeleine K. Albright, Secretary of State, et al.,Appellees

No. 98-5495

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 1999

Decided December 3, 1999

Appeal from the United States District Court for the District of Columbia(98cv00252)

Jonathan P. Graham argued the cause for appellants. With him on the briefs was Max Stier.

Meredith Manning, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Wilma A. Lewis, U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, David W. Ogden, Acting Assistant Attorney General, U.S Department of Justice, and Alison Marie Igoe, Attorney.

Before: Sentelle, Randolph, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

This is an appeal from the judgment of the district court dismissing an action for judicial review of the decision of the American Consulate in Panama refusing to issue a visa to Roberto Saavedra Bruno, and the decision of the American Consulate in La Paz, Bolivia, revoking another visa Saavedra held. Both consular decisions rested on information, not revealed to Saavedra, that he had engaged in illicit drug trafficking. Saavedra unequivocally denies the charge and complains that he has never had an opportunity to confront and counter the evidence relied upon by the consular officers. He insists that the Administrative Procedure Act, and the grant of jurisdiction over cases arising under federal law, entitles him to put the government to its proof.

I

Saavedra is a Bolivian national. He moved to Washington, D.C. with his family in 1993. At the time, he held an F-1 visa (student) and a B-1/B-2 visa (temporary visitor for business or pleasure) set to expire in May 2002. Shortly after settling in Washington, Saavedra and his family moved again, to Coral Gables, Florida. There he formed a corporation--Musicanga, Inc.--for the purpose of recording and promoting Latin American music. Saucedo Wichtendahl, a United States citizen, was hired as the company's artistic director and interim manager.

In May 1995, Saavedra's company filed a petition for a non immigrant worker with the INS, seeking to have Saavedra classified as a managerial employee qualified for an L-1 visa. The INS approved the classification for a one-year period, until May 17, 1996. A month before this was to expire, the company filed a petition to extend the classification for another year, which the INS granted. Saavedra then traveled abroad to seek the renewal of his visa, as is required, presenting himself to the American consul in Panama City on May 16, 1996. See 8 U.S.C. 1201(a).

Upon finding Saavedra listed in the State Department's computer "lookout" system, the American consul in Panama City denied his visa application. Saavedra's name had been entered by the U.S. Consul General in Bolivia, who had received classified reports from federal agencies that Saavedra had been involved in narcotics trafficking. Saavedra quickly returned to the United States. He was detained briefly at the border but allowed to enter after an immigration hearing had been scheduled. At the hearing the following week, the immigration officer told him to leave the country and to resolve the matter with the United States Embassy in Bolivia. He therefore departed on June 11, 1996.In the meantime, Saavedra's lawyer provided information to the Consul General in Bolivia, trying to persuade her of his client's eligibility for a visa. The Consul General reviewed this information along with the classified reports and made a formal determination that Saavedra was ineligible to be admitted to the United States under 212 of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1182(a)(2)(C), because there was reason to believe that he had been an illicit trafficker of controlled substances, or had knowingly assisted and abetted, or conspired and colluded with, others in the illicit trafficking of controlled substances. The Consul General sent a letter to Saavedra at his Florida address revoking his B-1/B-2 visa.

Thereafter, the State Department issued an advisory opinion supporting the Consul General's finding that Saavedra was ineligible for a visa under 212(a)(2)(C) of the INA. The State Department issued a Certificate of Revocation on August 1, 1996, providing that the revocation of the B-1/B-2 visa would be effective as of Saavedra's next departure from the United States. Saavedra wrote to the Consul General requesting her and the Department of State to recommend that the Attorney General grant him a waiver pursuant to 8 U.S.C. 1182(d)(3), which would allow Saavedra to return temporarily to the United States. No action was taken on the waiver request until April 1998 when the State Department notified Saavedra that it had been denied.

In January 1998, Saavedra, his company, and its officer, Wichtendahl, filed suit in the district court seeking review under the Administrative Procedure Act ("APA"), 5 U.S.C. 701 et seq., of the revocation of his B-1/B-2 visa and the refusal to renew his L-1 visa. The complaint also challenged the State Department's failure to act on the request for a waiver of inadmissibility under 212(d)(3) of the INA, 8 U.S.C. 1182(d)(3). The district court dismissed the complaint, finding that the doctrine of consular nonreviewability barred the first two claims and that the third claim was moot. Bruno v. Albright, 20 F. Supp. 2d 51 (D.D.C. 1998).

II

The main question is whether, under the Administrative Procedure Act, an alien is entitled to judicial review of a consul's denial of his application for a visa, and of the revocation of a visa he already held. To put the question in perspective, we must begin with some history.

A

After a century of unimpeded alien migration to the United States, Congress in 1875 established grounds upon which aliens might be refused entry, and, seven years later, enacted the first general immigration statute. See Act of Mar. 3, 1875, ch. 141, 18 Stat. 477 (barring prostitutes and convicts);Act of Aug. 3, 1882, ch. 376, 22 Stat. 214. Further legislation soon followed, including a general revision of the immigration laws in 1903, enlarging the classes of aliens ineligible for entry, and another general revision in 1917. See Act of Mar. 3, 1903, ch. 1012, 32 Stat. 1213; Act of Feb. 5, 1917, ch. 29, 39 Stat. 874. In the same year, 1917, the Departments of State and Labor issued a Joint Order to Diplomatic, Consular and Immigration Officers requiring for the first time that aliens coming to the United States have visas issued by an American consulate. See generally 3 Green Haywood Hackworth, Digest of International Law 741 (1942); Leon Wildes, Review of Visa Denials: The American Consul as 20th Century Absolute Monarch, 26 San Diego L. Rev. 887, 892 (1989). In the next year, while the country was at war, the President designated the Secretary of State as the official in charge of granting permission to aliens to enter. See 3 Hackworth, supra, at 741. In implementing this system, American consuls in foreign countries simply advised aliens of the various exclusionary provisions of the immigration laws, leaving the determination of exclud ability to immigration officers at the port of entry. See Wildes, supra, at 892. This resulted in large numbers of foreigners making the arduous trip to the United States only to be detained at the border and then excluded. See 3 Hackworth, supra, at 741-42. To cure this problem, Congress passed the Act of 1924 (ch. 190, 43 Stat. 153), transferring the responsibility for determining the admissibility of aliens from the Secretary of State to consular officers. See 3 Hackworth, supra, at 742.

The Immigration and Nationality Act of 1952, 8 U.S.C. 1101 et seq., now governs visa processing. The INA confers upon consular officers exclusive authority to review applications for visas, precluding even the Secretary of State from controlling their determinations. See 8 U.S.C. 1104(a), 1201(a). The powers afforded to consular officers include, in particular, the granting, denying and revoking of immigrant and non-immigrant visas. See 8 U.S.C. 1201(a), (i). Consular officers exercise this authority subject to the eligibility requirements in the statute and corresponding regulations. 22 C.F.R. 41.121-.122.

Obtaining a visa from an American consul has never guaranteed an alien's entry into the United States. A visa merely gives the alien permission to arrive at a port of entry and have an immigration officer independently examine the alien's eligibility for admission. See 8 U.S.C. 1201(h). See generally James A.R. Nafziger, Review of Visa Denials by Consular Officers, 66 Wash. L. Rev. 1, 14 (1991). It is the immigration officer's responsibility to make certain that the alien does not fall within any of the statutory categories barring admission. Among the categories are past criminal behavior. See 8 U.S.C. 1182. Since 1952, the law has specifically excluded aliens engaged in the illicit drug trade. See 5 Charles Gordon et al., Immigration Law and Procedure 63.03[1][a] (1997).

The following provision, barring drug traffickers, led the consular officer to determine that Saavedra was ineligible for a visa: "any alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others" in the illicit trafficking in drugs is ineligible for entry. 8 U.S.C. 1182 (a)(2)(C). In order to exclude an alien on this basis, the consular officer "must have more than a mere suspicion--there must exist a probability, supported by evidence, that the alien is or has been engaged in trafficking." 9 U.S. Department of State, Foreign Affairs Manual 40.23 (1999). Consular officers possessing such...