City of New York v. Baker

Decision Date11 July 1989
Docket Number88-5237,Nos. 88-5236,s. 88-5236
Citation878 F.2d 507
PartiesCITY OF NEW YORK, et al. Bruce Cronin, et al. v. James A. BAKER III, Secretary of State, et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of columbia.

Gregory C. Sisk, Attorney, U.S. Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen. at the time the brief was filed, Jay B. Stephens, U.S. Atty. and Michael Jay Singer, Atty., U.S. Dept. of Justice, were on the brief, for appellants.

Steven R. Shapiro, with whom Leonard Boudin and Peter L. Zimroth were on the brief, for appellees.

Before MIKVA, BUCKLEY, and WILLIAMS, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

The United States appeals from a judgment and order of the district court in three consolidated cases requiring that nonimmigrant visas issue to four aliens invited to speak in the United States whose visa applications had been denied because of considerations of foreign policy. On appeal, we find that only one of the cases presents a live controversy and hold that in that case the court exceeded its authority by ordering that a visa issue. Accordingly, we vacate that portion of the district court's order and remand for further proceedings.

A. Statutory and Procedural Background

Section 212(a) of the Immigration and Nationality Act of 1952 lists thirty-three separate categories of aliens who "shall be ineligible to receive visas and shall be excluded from admission into the United States." 8 U.S.C. Sec. 1182(a) (1982). The twenty-seventh, at issue here, bars

[a]liens 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.

Id. Sec. 1182(a)(27) ("subsection 27").

This controversy initially involved the following three actions contesting the State Department's denial, under subsection 27, of nonimmigrant visas to four aliens whose names and affiliations appear in parentheses: Abourezk v. Bush, No. 88-5235 (Tomas Borge, Nicaragua's Minister of the Interior); City of New York v. Baker, No. 88-5236 (Olga Finlay and Leonor Rodriguez Lezcano, members of the Federation of Cuban Women); and Cronin v. Baker, No. 88-5237 (Nino Pasti, former member of the Italian Senate and participant in activities of the World Peace Council).

Each of these individuals had been invited by American citizens and organizations to come to this country at various times in 1983 to engage in speaking tours or, in the case of Senator Pasti, to address a rally. In each instance, their applications were denied because of a State Department determination that their entry "for the purposes and during the period specified in the application would have been prejudicial to the conduct of the foreign affairs of the United States." Affidavit of Lawrence S. Eagleburger, Under Secretary of State for Political Affairs, paras. 12-14 (Feb. 28, 1984) ("Unclassified Eagleburger Affidavit"). Their American sponsors filed complaints in the district court seeking declaratory and injunctive relief. The court initially entered summary judgment for the government. Abourezk v. Reagan, 592 F.Supp. 880 (D.D.C.1984).

A divided panel of this court vacated the district court's judgment and remanded for further proceedings on two statutory issues. Abourezk v. Reagan, 785 F.2d 1043 (D.C.Cir.1986). We need only address the first, namely, whether subsection 27 permits exclusion of aliens based solely on a State Department determination that their mere entry or presence in the United States, rather than their anticipated activities after entry, would prejudice American interests.

While we acknowledged that considerations of foreign policy could justify the exclusion of an alien under subsection 27, we concluded that neither its statutory language nor legislative history was dispositive of the "activity/mere entry" question. Id. at 1053-54. Although the government argued that Congress had acquiesced in the government's administrative interpretation permitting exclusion on the basis of entry alone, we found that it had not presented enough evidence of such acquiescence to the trial court.

Accordingly, we remanded the case to afford the government the opportunity to present additional evidence on this issue. Id. at 1053-56. The Supreme Court affirmed our decision without opinion by an equally divided (3-3) vote. Reagan v. Abourezk, 484 U.S. 1, 108 S.Ct. 252, 98 L.Ed.2d 1 (1987).

On remand, the district court granted summary judgment to the plaintiffs. Abourezk v. Reagan, No. 83-3739, 1988 WL 59640 (D.D.C. June 7, 1988) ("Mem Op."). The court found that while the government had presented some new evidence of an administrative practice, acquiesced in by Congress, to support its interpretation of subsection 27, that evidence was "only imperceptibly more weighty than it was when these cases were before the Court in 1984." Id. at 14-15. Because it believed, on the basis of our previous opinion, that substantial additional evidence was necessary to justify a ruling for the government, the district court concluded that subsection 27 only permitted exclusion on the basis of anticipated prejudicial activity after entry. Id. at 7-9 & n. 11. The district court ordered the government to grant entry visas to the aliens, id. at 21-22, but stayed the issuance of its order pending appeal.

B. Events Following the District Court's Decision on Remand
1. The Moynihan-Frank Amendment

The government took an appeal on the merits in Abourezk, but appealed only the scope of the district court's order in City of New York and Cronin. The government did not pursue a full appeal in the latter cases because it believed that the "Moynihan-Frank Amendment," which was enacted subsequent to the denial of the aliens' visa applications, prohibited exclusion of these aliens on the bases initially asserted. The Amendment establishes a general prohibition against the exclusion of aliens because of

beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States.

Pub.L. No. 100-204, Sec. 901(a), 101 Stat. 1399-1400 (as extended by Pub.L. No. 100-461, Sec. 555, 102 Stat. 2268-36 to -37 (1988)).

2. Presidential Proclamation 5887

On October 22, 1988, President Reagan issued Presidential Proclamation 5887, 53 Fed.Reg. 43,185 (Oct. 26, 1988), which prohibits "officers and employees of the Government of Nicaragua" from entering this country as nonimmigrants. The parties agreed that the Proclamation constituted an independent intervening cause for future exclusions of Tomas Borge, the Interior Minister of Nicaragua, and that therefore his case was moot. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (case becomes moot if neither party has legally cognizable interest in final determination of factual and legal questions). Accordingly, in our March 1, 1989 order, we dismissed the appeal in Abourezk and instructed the district court to vacate its judgment and dismiss that case. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950).


The government's surviving appeals, in City of New York and Cronin, are limited to objections to the scope of the district court's order. The government urges that both cases are at least "prudentially moot" and therefore should be dismissed. The government favors this resolution because when a case becomes moot pending appeal, the Supreme Court has instructed us to vacate the judgment of the trial court. See Munsingwear, 340 U.S. at 39, 71 S.Ct. at 106. Thus, the government would be free of the district court's holding that subsection 27 does not permit the exclusion of an alien on the basis of entry or presence alone. Alternatively, the United States argues that the district court exceeded its authority by ordering that the government issue the aliens "appropriate entry visas."

A. Mootness

As we have previously recognized, the doctrine of mootness has "two distinct branches." Chamber of Commerce v. Department of Energy, 627 F.2d 289, 291 (D.C.Cir.1980). The first is grounded in the jurisdictional limitations dictated by the Constitution: under Article III, a federal court is without power to act unless it is presented with a live "case or controversy." Id., citing DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705, 40 L.Ed.2d 164 (1974). The second branch, which might be termed "prudential mootness," does not concern a court's power to grant relief, but rather its exercise of discretion in the use of that power. Thus, "[i]n some circumstances, a controversy, not actually moot, is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant." Id. (citation omitted); see also Community for Creative Non-Violence v. Hess, 745 F.2d 697, 700-02 (D.C.Cir.1984).

The Supreme Court has recognized this second aspect of the mootness doctrine in cases involving requests for injunctive and declaratory relief. See United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (while court's power to grant injunctive relief survives discontinuance of illegal conduct, the moving party must satisfy the court that relief is needed); A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 331, 82 S.Ct. 337, 341, 7 L.Ed.2d 317 (1961) (declaratory judgment is discretionary remedy that may be withheld where challenged practice is undergoing significant change...

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