Pena v. Kissinger

Citation409 F. Supp. 1182
Decision Date02 March 1976
Docket NumberNo. 75 Civ. 414(MP).,75 Civ. 414(MP).
PartiesMaria De Las Nieves Taveras De PENA, Plaintiff, v. Henry A. KISSINGER, Secretary of State of the United States, et al., Defendants.
CourtU.S. District Court — Southern District of New York

Antonio C. Martinez, New York City, for plaintiff.

Paul J. Curran, U. S. Atty. for the Southern District of New York, New York City by Mary P. Maguire, New York City, Sp. Asst. U. S. Atty., for defendants.


POLLACK, District Judge.

Plaintiff seeks review of the allegedly capricious decision of the American Consul in Santo Domingo denying an immigrant visa to her husband, Francisco A. Pena, a Dominican Republic, Western Hemisphere citizen who intends to work in the United States. Plaintiff is also a native and citizen of the Dominican Republic, but is a lawful permanent resident of the United States.

Mr. Pena applied for the visa as the spouse of a lawful permanent resident of the United States. The Consul, a defendant herein, denied his application on the ground that Pena's marriage to the plaintiff was a sham and undertaken to facilitate his immigration to the United States.

Plaintiff sues for a declaratory judgment that her marriage to Pena is a valid one, and for a direction to the Consul to process Pena's visa application on that basis. She also claims damages for alleged harm caused by the defendants' adverse determination.

The defendants, officials of the State Department and a consulate employee, have moved pursuant to Fed.R.Civ.P. 56 for summary judgment on the grounds that the plaintiff lacks standing to sue, that a consul's denial of a visa application is not subject to judicial review, and that mandamus jurisdiction may not be invoked against consular officials in regard to the processing of visas.

While the outcome might be different if this Court were "writing on a clean slate," Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 742, 98 L.Ed. 911, 921 (1954) (Frankfurter, J.), the defendants' motion for summary judgment must be granted partially and the complaint dismissed insofar as it seeks declaratory and injunctive relief. However, for the reasons which appear hereafter, summary judgment may not now be entered against plaintiff with respect to her claim for alleged damages.

A. Background

It is undisputed that the plaintiff married Mr. Pena in New York City on March 27, 1971. He thereafter returned to the Dominican Republic and formally applied for an immigrant visa at the United States Consulate in Santo Domingo. The Consul denied Mr. Pena's visa application on November 19, 1973 after interviewing him and conducting an investigation into his marital status. The Consul apparently refused Mrs. Pena's request to be interviewed.

The Consul acted pursuant to § 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14), which provides that an alien who intends to work in the United States is ineligible to receive a visa unless the Secretary of Labor has certified, in effect, that the alien's employment will not displace that of American workers or adversely affect their wages and working conditions. Plaintiff makes no contention that her husband is not subject to this statute, or that he is qualified for such a certification by the Secretary. However, she relies on the exemption from the labor certification requirement in favor of any "immigrant who was born in any independent foreign country of the Western Hemisphere" and who is the spouse of an American citizen or an alien lawfully admitted to the United States for permanent residence. Id.; 8 U.S.C. § 1101(a)(27)(A). Plaintiff contends that the Consul acted arbitrarily and capriciously in determining that her husband was not entitled to this exemption. While the bona fides of plaintiff's marriage to Mr. Pena present the central issue going to the merits of the case, there are no factual controversies which are material to the legal grounds on which the government relies on its summary judgment motion. Those legal contentions are therefore ripe for resolution at this time. See Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975).

B. Standing

The test for standing to obtain judicial review of agency action in the federal courts is clear: a plaintiff must assert that the challenged action has caused her "`injury in fact,'" and that the alleged injury was to an interest "`arguably within the zone of interests to be protected or regulated'" by the statute which was allegedly violated. Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636, 642 (1972). The injury need not involve economic harm, but must be "something more than an ingenious academic exercise in the conceivable." United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254, 270 (1973).

The plaintiff in this case has little difficulty passing this test. It takes no academic ingenuity to conclude that agency action which separates wife from husband gives rise to perceptible injury, and the plaintiff has so asserted in her complaint. It is no answer to say that the defendants have not prevented Mrs. Pena from travelling to Santo Domingo to join her husband, for to do so she would be forced to sacrifice the opportunities and advantages offered by her adopted country, which has admitted her to lawful permanent residence.

It also appears that plaintiff's injury — her inability to live in the United States with her husband — is to an interest arguably protected by § 212(a)(14) of the Immigration and Nationality Act. In exempting the alien spouses of resident Americans from the rigorous labor certification requirement imposed by that section, the statute at least arguably seeks to prevent the breakup of the nuclear family and to preclude the emotional and financial hardship which would otherwise befall both marital partners.

The conclusion that Mrs. Pena has standing to bring this action finds support in the recent and analogous cases involving judicial review of labor certification decisions by the Secretary of Labor. In Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974), an American employer was deemed to have standing to challenge the Secretary's denial of a labor certification for an alien whom the plaintiff sought to employ; the Court held that an employer's ability to obtain qualified employees was arguably within the zone of interests protected by § 212(a)(14). Accord, Secretary of Labor v. Farino, 490 F.2d 885 (7th Cir. 1973); Digilab, Inc. v. Secretary of Labor, 495 F.2d 323 (1st Cir. 1974). These cases suggest that permanent American residents who are aggrieved by decisions made under § 212(a)(14) have standing to seek review. If would-be employers of aliens may do so, it does not seem improper to confer a similar right of standing on an aggrieved spouse.

The government's reliance on such cases as Noel v. Chapman, 508 F.2d 1023 (2d Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975), and Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149 (1971), to support a contrary conclusion misses the mark. These decisions are authority for the proposition that an American citizen has no constitutional right to live with an alien spouse in the United States, and that the government does not infringe the citizen's constitutional rights if it deports the alien. Noel v. Chapman, 508 F.2d at 1027-28. These cases are irrelevant to the analysis of Mrs. Pena's standing to bring this suit, since a plaintiff need not allege the infringement of a constitutional right in order to have standing to challenge agency action. Mrs. Pena alleges merely that she has been harmed because a statute has been violated, not the Constitution, and that is all she need allege to seek review.

Finally, it should be noted that this case involves a plaintiff who is a lawfully admitted alien resident in the United States, not a non-resident alien seeking to bring suit from abroad. Whether the latter category of alien would have standing presents an issue which this Court need not decide. Compare Brownell v. Tom We Shung, 352 U.S. 180, 184 n. 3, 77 S.Ct. 252, 255, 1 L.Ed.2d 225, 229 (1956) (non-resident alien may not sue from abroad) and Chinese American Civic Council v. Attorney General, 396 F.Supp. 1250 (D.D.C.1975) with Estrada v. Ahrens, 296 F.2d 690, 693-95 (5th Cir. 1961).

C. Judicial Review

Notwithstanding plaintiff's standing to bring suit, the government maintains that the decision of an American consul to deny a visa to an alien is not subject to review in the courts. The precedents do appear to distinguish between a decision to deport an alien who is already in the United States and a decision to exclude or deny admission to an alien who remains outside; review is permitted of the former even where the alien initially gained admission illegally, but denied of the latter. See, e. g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 312, 94 L.Ed. 317, 324 (1950); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953).

Thus, there is substantial support in the cases for the government's position that consular decisions in regard to the issuance of visas are unreviewable. In United States ex rel. London v. Phelps, 22 F.2d 288 (2d Cir. 1927), cert. denied, 276 U.S. 630, 48 S.Ct. 324, 72 L.Ed. 741 (1928), the Second Circuit declared:

Whether the consul has acted reasonably or unreasonably is not for us to determine. Unjustifiable refusal to visé a passport may be ground for diplomatic complaint by the nation whose subject has been discriminated against. . . . It is beyond the jurisdiction of the court. 22 F.2d at 290.

A similar view was expressed in United States ex rel. Ulrich v. Kellogg, 58 App. D.C. 360, 30 F.2d 984, cert....

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