Narenji v. Civiletti, s. 79-2460

Citation617 F.2d 745,199 U.S.App.D.C. 166
Decision Date31 January 1980
Docket NumberNos. 79-2460,79-2461,s. 79-2460
PartiesGholamreza NARENJI, Behzad Vahedi, Cyrus Vahidnia v. Benjamin CIVILETTI, Attorney General, et al., Appellants. CONFEDERATION OF IRANIAN STUDENTS v. Benjamin R. CIVILETTI, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (D.C. Civil Nos. 79-3189 & 79-3210).

Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., with whom Carl S. Rauh, * U. S. Atty., Ronald R. Glancz, Anthony J. Steinmeyer, Michael Jay Singer, Elizabeth Gere Whitaker, Brook Hedge, John F. Cordes, Attys., Dept. of Justice, Washington, D. C., were on the brief, for appellants.

Eric M. Lieberman, New York City, with whom Alan Dranitzke, Washington, D. C., was on the brief, for appellees, Narenji et al.

Charles Gordon, Washington, D. C., for appellee, Confederation of Iranian Students.

Dale F. Swartz, Washington, D. C., was on the brief for amicus curiae, Lawyers Committee for International Human Rights, urging affirmance.

Jordan J. Paust, Houston, Tex., was on the brief for amicus curiae, Human Rights Advocates (U.S.A.), urging affirmance.

Before TAMM, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

Concurring opinion filed by Circuit Judge MacKINNON.

ROBB, Circuit Judge:

This is an appeal from a judgment of the District Court declaring unconstitutional a regulation promulgated by the Attorney General at the direction of the President. In the circumstances of this case the court has concluded that the challenged regulation, 8 C.F.R. § 214.5, issued November 13, 1979, must be sustained.

Regulation 214.5 requires all nonimmigrant alien post-secondary school students who are natives or citizens of Iran to report to a local INS office or campus representative to "provide information as to residence and maintenance of nonimmigrant status." At the time of reporting each student must present his passport and evidence of his school enrollment, of payment of fees, of the number of course hours in which he is enrolled, of his good standing, and his current address in the United States. The regulation provides that failure to comply with the reporting requirement will be considered a violation of the conditions of the nonimmigrant's stay in the United States and will subject him to deportation proceedings under section 241(a)(9) of the Act.

The regulation is within the authority delegated by Congress to the Attorney General under the Immigration and Nationality Act. That statute charges the Attorney General with "the administration and enforcement" of the Act, 8 U.S.C. § 1103(a), and directs him to "establish such regulations . . . and perform such other acts as he deems necessary for carrying out his authority under the provisions of" the Act. Id. He is directed to prescribe by regulation the time for which any nonimmigrant alien is admitted to the United States, and the conditions of such an admission. 8 U.S.C. § 1184(a). Finally, the Act authorizes the Attorney General to order the deportation of any nonimmigrant alien who fails to maintain his nonimmigrant status or to comply with the conditions of such status. 8 U.S.C. § 1251(a)(9). These statutory provisions plainly encompass authority to promulgate regulation 214.5.

Recognizing the broad authority conferred upon the Attorney General by the Immigration and Nationality Act the District Court nevertheless thought that the Act does not empower him to draw distinctions among nonimmigrant alien students on the basis of nationality. We do not accept this conclusion. The statute need not specifically authorize each and every action taken by the Attorney General, so long as his action is reasonably related to the duties imposed upon him. See Ahmed v. United States, 480 F.2d 531 (2d Cir. 1973); Pilapil v. INS, 424 F.2d 6, 11 (10th Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 752, 27 L.Ed.2d 147 (1970); Unification Church v. Attorney General, 189 U.S.App.D.C. 92, 99-100, 581 F.2d 870, 877-78, cert. denied, 439 U.S. 828, 99 S.Ct. 102, 58 L.Ed.2d 122 (1978); Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970). Furthermore, we note that the Act, 8 U.S.C. § 1303(a), does specifically authorize the Attorney General "to prescribe special regulations and forms for the registration and fingerprinting of . . . (5) aliens of any other class not lawfully admitted to the United States for permanent residence." Finally, failure to maintain nonimmigrant status or to comply with the conditions of such status is specified as a ground for deportation. 8 U.S.C. § 1251(a)(9). We conclude that promulgation of regulation 214.5 is directly and reasonably related to the Attorney General's duties and authority under the Act.

The District Court concluded that even if authorized by statute regulation 214.5 is unconstitutional because it violates the Iranian students' right to equal protection of the laws. The court found no basis for the "discriminatory classification" of the students established by the regulation. Here again we must differ. Distinctions on the basis of nationality may be drawn in the immigration field by the Congress or the Executive. See Saxbe v. Bustos, 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974); Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1970); Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); L. Henkin, Foreign Affairs and the Constitution, 258 (1972); Maltz, Alienage Classifications, 31 Okla.L.Rev. 671, 684-91 (1978). So long as such distinctions are not wholly irrational they must be sustained.

By way of an affidavit from the Attorney General we are informed that his regulation was issued "as an element of the language of diplomacy by which international courtesies are granted or withdrawn in response to actions by foreign countries. The action implemented by these regulations is therefore a fundamental element of the President's efforts to resolve the Iranian crisis and to maintain the safety of the American hostages in Tehran." The Attorney General refers of course to the lawless seizure of the United States Embassy in Tehran and the imprisonment of the embassy personnel as hostages. Those actions denied to our embassy and citizens the protection to which they are entitled under the Amity Treaty in force between the United States and Iran (284 United Nations Treaty Series 93), and under international law. The lawlessness of this conduct of the Iranian government was recognized by the decision of the World Court on December 15, 1979. United States v. Iran, General List No. 64 (Int'l Ct. Justice, Dec. 15, 1979). Thus the present controversy involving Iranian students in the United States lies in the field of our country's foreign affairs and implicates matters over which the President has direct constitutional authority. Mathews v. Diaz, supra.

The District Court perceived no "overriding national interest" justifying the Attorney General's regulation: it found that "although defendants' regulation is an understandable effort designed to somehow reply to the Iranian attack upon this nation's sovereignty and the seizure of its citizens, it is one that does not support a legitimate national interest". In this we think the District Court erred.

As we have said, classifications among aliens based upon nationality are consistent with due process and equal protection if supported by a rational basis. Mathews v. Diaz, supra ; Fiallo v. Bell, supra. The Attorney General's regulation 214.5 meets that test; it has a rational basis. To reach a contrary conclusion the District Court undertook to evaluate the policy reasons upon which the regulation is based. In doing this the court went beyond an acceptable judicial role. Certainly in a case such as the one presented here it is not the business of courts to pass judgment on the decisions of the President in the field of foreign policy. Judges are not expert in that field and they lack the information necessary for the formation of an opinion. The President on the other hand has the opportunity of knowing the conditions which prevail in foreign countries, he has his confidential sources of information and his agents in the form of diplomatic, consular and other officials. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255 (1936). As the Supreme Court said in Mathews v. Diaz, supra, 426 U.S. at 81, 82, 96 S.Ct. at 1892:

For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government. Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. This very case illustrates the need for flexibility in policy choices rather than the rigidity often characteristic of constitutional adjudication. . . . Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization. (Footnotes omitted)

And in Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952), Mr. Justice Jackson wrote for the Court:

It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with...

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