Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Bureau of Consular Affairs

• Decision Date: 07 January 1997
• Docket Number: Nos. 94-5104,95-5425 and 96-5058,s. 94-5104
• Citation: 104 F.3d 1349
• Parties: LEGAL ASSISTANCE FOR VIETNAMESE ASYLUM SEEKERS, et al., Appellants, v. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1349

104 F.3d 1349

323 U.S.App.D.C. 1

LEGAL ASSISTANCE FOR VIETNAMESE ASYLUM SEEKERS, et al., Appellants, v. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS, et al., Appellees.

Nos. 94-5104, 95-5425 and 96-5058.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 26, 1996.

Decided Jan. 7, 1997.

Appeals from the United States District Court for the District of Columbia (Nos. 94cv00361, 95cv00989).

Daniel Wolf, argued the cause, for appellants, with whom William R. Stein, Washington, DC, M. Kathleen O'Connor, Dallas, TX, and Robert B. Jobe, San Francisco, CA, were on the briefs.

Edwin S. Kneedler, Deputy Solicitor General, argued the cause, for appellees pro hac vice, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, Michael J. Singer, Assistant Director, United States Department of Justice, and Robert M. Loeb, Attorney, were on the brief. Catherine W. Brown, Attorney, Washington, DC, United States Department of State, entered an appearance.

Before: EDWARDS, Chief Judge, and SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

These consolidated cases present challenges to the Department of State's consular venue policy. Plaintiffs assert that the policy discriminates on the basis of nationality in violation of Section 202 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1152(a)(1). Plaintiffs also claim that the policy is arbitrary and capricious within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(a), and that it violates the equal protection component of the Fifth Amendment's Due Process Clause. We conclude that under a recent amendment to the INA, plaintiffs' statutory and APA claims are unreviewable. We also hold that the constitutional claim has no merit.

I.

Because we discuss the background of the State Department policy at issue and this litigation in some detail in our opinion in Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Bureau of Consular Affairs, 45 F.3d 469 (D.C.Cir.1995), reh'g denied, 74 F.3d 1308 (D.C.Cir.), vacated, --- U.S. ----, 117 S.Ct. 378, --- L.Ed.2d ---- (1996) [hereinafter LAVAS ], we present an abbreviated version here. During the 1980s an overwhelming number of migrants from Vietnam and Laos fled their home countries seeking refuge in other countries in Southeast Asia. To deal with the migration crisis some 50 countries, including the United States, entered into an international agreement known as the Comprehensive Plan of Action ("CPA"). Under the CPA, Vietnamese and Laotian migrants who land in other countries are screened by local officials to determine refugee status. Those migrants who are "screened-out," that is determined not to be refugees, are repatriated. A repatriated migrant may then apply for an immigrant visa from his home country. Until 1993, the United States Consulate General in Hong Kong processed the visa applications of migrants before, and sometimes after, they were screened-out as nonrefugees. Other nations party to the CPA objected that this practice encouraged further migration, so the State Department adopted a policy against processing visa applications of "screened-out" Vietnamese or Laotian migrants in Hong Kong. Under current State Department policy, the migrant is repatriated and his visa application is processed in his home country.

In 1994, two Vietnamese migrants, the migrants' sponsors in the United States, and a nonprofit legal-rights organization challenged the State Department policy under Section 202 of the INA, 8 U.S.C. § 1152(a), which prohibits United States consular officials from discriminating on the basis of nationality in the issuance of immigrant visas. The plaintiffs also claimed that the policy was arbitrary and capricious within the meaning of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(a), and that it violated the equal protection component of the Fifth Amendment's Due Process Clause. The district court granted the State Department's motion for summary judgment. In LAVAS, a divided panel of this Court reversed, holding that the consular venue policy violated 8 U.S.C. § 1152(a)(1) because the State Department had drawn a distinction between Vietnamese and Laotian nationals and nationals of other countries. 45 F.3d at 473. We did not reach plaintiffs' remaining APA or constitutional claims. The government filed a petition for rehearing and suggestion of rehearing en banc. In the meantime, on remand, the district court held that the case had become moot. 909 F.Supp. 1 (D.D.C.1995). The panel reversed as to mootness and held that rehearing was unwarranted. 74 F.3d 1308 (D.C.Cir.1996).

While the government's rehearing petition in LAVAS was pending, a separate action, Le v. United States Dept. of State, was filed in United States District Court. The district court, relying on this Court's opinion in LAVAS, granted summary judgment for plaintiffs and enjoined the Government from implementing its policy of declining to process the applications of screened-out migrants in Hong Kong. 919 F.Supp. 27 (D.D.C.1996). The Government appealed the injunction, and this Court granted initial hearing en banc. In the meantime, the Supreme Court granted certiorari in LAVAS. ---- U.S. ----, 116 S.Ct. 2521, 135 L.Ed.2d 1046 (1996). We then suspended en banc proceedings in Le pending the Supreme Court's decision.

On September 30, 1996, shortly before the Supreme Court was to hear oral argument in LAVAS, the President signed into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRA") (enacted as Division C of the Department of Defense Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009 (1996)). Section 633 of the IIRA amends the Immigration and Nationality Act (INA) by adding the following to 8 U.S.C. § 1152(a)(1): "(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed." After requesting supplemental briefing on the effects of section 633, the Supreme Court vacated our judgment in LAVAS and remanded the case to us for "further consideration in light of Section 633." --- U.S. ----, 117 S.Ct. 378 --- L.Ed.2d ---- (1996) (per curiam). We then consolidated LAVAS and Le.

The State Department argues that section 633 applies to plaintiffs' claim. Although section 633 was not in effect at the time the State Department enacted the new policy, the State Department asserts that Congress intended section 633 to be retroactive from its enactment. The State Department further argues that section 633 applies because the plaintiffs are seeking only prospective relief.

We need not determine whether Congress intended section 633 to apply retroactively because we hold that application of the amendment does not raise retroactivity concerns. Plaintiffs' claim raises a procedural right and is governed by the INA as amended by section 633. We also hold that this case concerns prospective relief and so does not raise problems of retroactivity. Applying section 633, we hold that the Secretary's actions are unreviewable because there is "no law to apply." We therefore reject plaintiffs' claims under the statute and the APA. Finally, we hold that plaintiffs' constitutional claim is without merit.

II.

Plaintiffs' statutory claim raises the question of whether the case is governed by the law in effect at the time the Secretary enacted the new consular venue policy or the law as amended by section 633. The Supreme Court set out the principles for determining whether a newly enacted provision is applicable to a pending case in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In Landgraf, the Court considered whether provisions of the 1991 Civil Rights Act permitting compensatory and punitive damages in a Title VII case would apply to a case that was pending on appeal when the statute was enacted. Id. at 247, 114 S.Ct. at 1488. In concluding that the provisions would not govern retroactively, the Court noted that application of a statute is not retroactive "merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law." Id. at 269, 114 S.Ct. at 1499 (citation omitted). Rather, the statute has a retroactive effect if it "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at 280, 114 S.Ct. at 1505. It is therefore necessary for the Court to examine the temporal relationship between the statute and the activity the statute is meant to govern.

In Landgraf, the Supreme Court observed that changes in procedural rules will often not raise problems of retroactivity. Id. at 275, 114 S.Ct. at 1502. The Court stated that "[b]ecause rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule ... retroactive." Id. The Court also noted that an intervening statute conferring or ousting jurisdiction may apply without operating retroactively. Id. at 274, 114 S.Ct. at 1502. The Court stated that "[a]pplication of a new jurisdictional rule usually 'takes away no substantive right but simply changes the tribunal that is to hear the case.' " Id. (quoting Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 203, 60 L.Ed. 409 (1916)). Finally, the Court stated that, because " 'relief by injunction operates in futuro,' " a case seeking only prospective relief is governed by the law in effect at the time of decision. Id. at 273-74, 114 S.Ct. at 1501 (quoting American Steel Foundries v....