Knoetze v. United States
| Decision Date | 16 March 1979 |
| Docket Number | No. 79-113-Civ.-NCR.,79-113-Civ.-NCR. |
| Citation | 472 F. Supp. 201 |
| Parties | Nikolaas "Kallie" KNOETZE, Plaintiff, v. The UNITED STATES of America, the Department of State, Cyrus Vance, Secretary of the Department of State, the Immigration and Naturalization Service of the United States, Mr. Gullage, Acting Director of Immigration and Naturalization Service, Miami, Florida, the United States Marshal, all Deputy Marshals for the Southern District of Florida, all other Enforcement Officers for the Above Agencies or their Agents, and the Attorney General of the United States, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
COPYRIGHT MATERIAL OMITTED
Ryan, Ryan & Fitzgerald, North Palm Beach, Fla., for plaintiff.
J. V. Eskenazi, U. S. Atty., Miami, Fla., for defendant.
THIS CAUSE is before the court on the petition of plaintiff Nikolaas "Kallie" Knoetze for a permanent injunction. Plaintiff, the number-two ranked heavyweight challenger in the world and a native of South Africa, seeks a permanent injunction against the revocation of his visa by the Secretary of State, Cyrus Vance. The Immigration and Naturalization Service also refused to grant his application for a change of nonimmigrant status to an H-class visa, which would have permitted him to work in this country, solely on the basis relied upon by the Secretary of State in revoking the visa under 8 U.S.C.A. § 1201(i) on January 8, 1979.
The Secretary of State bottomed his revocation upon an admitted conviction of plaintiff in South Africa. The South African charge against plaintiff was "attempting to obstruct or impede the process of justice" while a policeman. This had been felt by the U. S. Consul in Johannesburg to be a misdemeanor falling within the petty offense exception of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(9); consequently, the B-1/B-2 visa was issued December 14, 1968. On review the Secretary of State determined that the offense corresponded to a felony rather than a misdemeanor and revoked the visa. No notice, which 22 CFR § 41.134(b) requires "if practicable", of the proposed revocation was given plaintiff nor did the government make any attempt to claim that the giving of notice was impracticable.1
Plaintiff contends that the action of the Secretary of State in revoking the visa (1) was legally incorrect in that the South African offense in question merely corresponds to a misdemeanor rather than a felony; (2) that there was impermissible political interference exerted upon the Secretary and the Department of State officials in making the determination; and (3) he was denied equal protection of the law.
Suit was filed on January 10, 1979, before plaintiff had actually received notification of the revocation by the State Department. Plaintiff alleged that he had been advised by the news media that revocation was imminent. Notice was given to the United States Attorney's office in the Southern District of Florida on that day and an emergency hearing was scheduled for Orlando, Florida on the next afternoon, January 11th, 1979.2
At the hearing the court received certain documentary exhibits as to the revocation and heard argument of counsel. The court issued a restraining order on the authority of Estrada v. Ahrens, 296 F.2d 690 (5th Cir. 1961). In the Estrada case petitioner had a nonimmigrant visa but the District Director of the Immigration & Naturalization Service refused to admit the visa holder into the United States. The petitioner sought a mandatory injunction against the Director of the Immigration & Naturalization Service in Miami permitting their entry into the United States. The District Court dismissed the complaint for lack of jurisdiction and the Fifth Circuit Court of Appeals reversed and remanded for a hearing. In view of the fact that an alien who is inside the United States and holding a visa has greater rights than one who is holding a visa and is seeking admission to the United States, the rationale of Estrada, contained in footnote 2 at page 692, compelled the issuance of a temporary restraining order in order that plaintiff could present his arguments in the District Court. See also, Lennon v. Immigration & Naturalization Service, 527 F.2d 187, 195 (2d Cir. 1975).
At the hearing on January 22 the court concluded that plaintiff had been afforded no opportunity to develop the question on the issue of the impermissible political interference; consequently, the hearing was continued for those purposes only until Friday, January 26.3
At the January 26 hearing plaintiff presented his evidence consisting of depositions of various persons in the State Department because the intervening time of four days did not permit much discovery by the parties. The government then moved to reopen on the first issue and presented an expert on South African law who had been contacted by the government for the first time on the previous day. The court granted the motion but pointed out to counsel that fairness required that plaintiff be given an opportunity to locate an expert on South African law of his choosing. The government refused to stipulate to the continuation of the status quo under the restraining order4; consequently the court sua sponte announced that it would reach a decision on the issue of preliminary injunction first and granted it on January 31.5
A threshold question exists whether plaintiff is entitled to judicial review of the Secretary of State's decision to revoke his visa. The Immigration and Nationality Act vests the Secretary with authority to revoke an alien's visa and grants the Secretary leave to exercise his authority "at any time, in his discretion." 8 U.S.C. § 1201(i). Based upon this language, it is possible to argue that Congress intended either to prohibit judicial review of the Secretary's decision to revoke a visa or to commit such decision "to agency discretion by law," 5 U.S.C. § 701(a)(2), within the meaning of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., thereby rendering the decision non-reviewable.
The court begins with "the presumption that an administrative act is subject to judicial review unless there is a persuasive reason to believe Congress decided to deny review." Graham v. Caston, 568 F.2d 1092, 1096-97 (5th Cir. 1978). The permissive phrasing of the provision granting the Secretary authority to revoke visas hardly constitutes an express prohibition of review. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1969). Defendants thus bear the heavy burden of overcoming the presumption of reviewability by presenting convincing evidence that it was the intent of Congress to preclude review. Alameda County v. Weinberger, 520 F.2d 344 (9th Cir. 1975); Fekete v. U. S. Steel Corporation, 424 F.2d 331 (3rd Cir. 1970); Guerrero v. Garza, 418 F.Supp. 182 (W.D. Wis.1976). Defendants have offered no evidence of congressional intent and have not met their burden of proof.
The exception to reviewability in cases of acts "committed to agency discretion by law," 5 U.S.C. § 701(a)(2), is narrow in nature. It is "applicable in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply'". Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). In the instant case the court finds that the Immigration and Nationality Act read as a whole presents a body of applicable law which cannot be ignored by the Secretary in regard to aliens already admitted to this country. It thus subjects the Secretary's decision to revoke the visa of such aliens to judicial review.
The court's holding that the Secretary's decision in this case should be and is subject to review is strengthened by the fact that the Secretary chose not to follow the procedures established in regulations adopted by the Department of State for the revocation of visas. Those regulations require that notice of a proposed revocation and opportunity to oppose said revocation be given "if practicable." 22 CFR 41.134(b). There has been no evidence that the giving of notice and an opportunity to be heard was impracticable in the instant case. The Secretary's contention that consular officers, but not himself or assistant secretaries, are obliged to follow the Department's regulations is rejected by the court. In these circumstances even if the Secretary's authority in the case was nonreviewable his failure to comply with his department's regulations would subject his decision to review. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Graham, supra, at 1097.
Finally, even if any debate existed as to the foregoing principles, where plaintiff has colorably raised the issue of impermissible political interference, reviewability of an agency decision is apparently required under Lennon v. Immig. & Naturalization Service, 527 F.2d 187, 195 (2d Cir. 1975), also, Center on Corporate Responsibility, Inc. v. Shultz, 368 F.Supp. 863 (D.D.C.1973). Although Lennon's requirement of review is only dictum and from another circuit, the court feels the procedure it suggests is persuasive. True, the court could stay this proceeding while plaintiff followed the traditional review pattern of appealing to the Board of Immigration Appeals, with direct review in the Fifth Circuit, but the issue raised of impermissible political interference would remain unless Knoetze prevailed. And Lennon suggested expeditious handling in the District Court of such claims. The fact that the traditional review process might exhaust the nine months left on plaintiff's visa dictated, in this court's judgment, that the issue be resolved. The court is unaware whether plaintiff has pursued an appeal to the Board of Immigration Appeals.
The State Department's file was introduced by...
To continue reading
Request your trial
-
Church of Scientology of California v. Comm'r of Internal Revenue
...26 (1979); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 270-271 n. 21 (1977); Knoetze v. United States, 472 F. Supp. 201, 214-215 (S.D. Fla. 2979), affd. 634 f. 2d 207 (5th Cir.), cert. denied 454 U.S. 823 (1981). Here, a healthy preponderance of the......
-
Soroa-Gonzales v. Civiletti, Civ. A. No. C80-1356A.
...decisions. In re Castellon-Pichs, supra, at 5; Conceiro v. Marks, 360 F.Supp. 454, 456-57 (S.D.N.Y.1973). 5 See Knoetze v. United States, 472 F.Supp. 201, 205 (S.D.Fla.1979). 6 The legal fiction that an excludable alien is "waiting at the border" wears quite thin after a year at the Atlanta......
-
Knoetze v. U.S., Dept. of State
...We therefore affirm. FACTS The trial court has extensively described the facts and procedural history of this case. Knoetze v. United States, 472 F.Supp. 201 (S.D.Fla.1979). We summarize them as Knoetze, a world-class boxer and former policeman from South Africa, came to the United States o......
-
McElvy v. Civiletti, 81-8007-Civ-NCR.
...caprice — allowing the trial to be held in the Supreme Court — permitted the harsh penalty. See also Knoetze v. United States, 472 F.Supp. 201, 207 et seq. (S.D.Fla.1979). Therefore, petitioners have asserted that the third requirement of Article III of the treaty, that the offense "constit......