Romero v. Consulate of US, Barranquilla, Colombia

• Decision Date: 12 August 1994
• Docket Number: 94-186-A.,Civ.A. No. 94-185-A
• Citation: 860 F. Supp. 319
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Carlos ROMERO, Plaintiff, v. CONSULATE OF the UNITED STATES, BARRANQUILLA, COLOMBIA, et al., Defendants. Ines Elvira Navarro de CUELLO, Plaintiff, v. CONSULATE OF the UNITED STATES, BARRANQUILLA, COLOMBIA, et. al., Defendants.

860 F. Supp. 319

Carlos ROMERO, Plaintiff, v. CONSULATE OF the UNITED STATES, BARRANQUILLA, COLOMBIA, et al., Defendants.

Ines Elvira Navarro de CUELLO, Plaintiff, v. CONSULATE OF the UNITED STATES, BARRANQUILLA, COLOMBIA, et. al., Defendants.

Civ.A. Nos. 94-185-A, 94-186-A.

United States District Court, E.D. Virginia, Alexandria Division.

August 12, 1994.

Isidoro Rodriguez C., Law Office of Isidoro Rodriguez, Barranquilla, Colombia, for plaintiffs.

Helen Fahey, U.S. Atty., Rachel Celia Ballow, and Larry Lee Gregg, Asst. U.S. Attys., Alexandria, VA, for defendants.

ELLIS, District Judge.

These separate but essentially similar cases¹ raise the issue, seldom presented in this circuit, whether off-shore aliens² have the right of judicial review of a consular officer's decision denying their requests for non-immigrant visas to visit the United States. Plaintiffs Ines Elvira Navarro de Cuello ("Navarro") and Carlos Romero ("Romero") were denied non-immigrant visitor visas for entry to this country by consular officers in Barranquilla, Colombia, on the ground that plaintiffs were suspected of having participated in drug trafficking. Plaintiffs deny any involvement in drugs and sue the United States and various entities of the United States, seeking judicial review of the consular officers' decisions, as well as damages for emotional distress stemming from the government's allegedly "negligent investigation" that implicated plaintiffs in drug trafficking. Because the decision whether to grant or deny non-immigrant visitors visas is in the sole discretion of consular officers and is not subject to judicial review, and because the negligent investigation allegation does not state a claim upon which relief can be granted, plaintiffs' actions must be dismissed with prejudice.

I.

Romero, a native and citizen of the Republic of Colombia, applied for a non-immigrant visa in March 1992. A United States consular officer in Barranquilla denied Romero's request on the ground that there was reason to believe that Romero was engaged in drug trafficking.³ The letter informing Romero of the consular officer's decision stated that:

After a careful investigation, it has been concluded that you were found ineligible to receive a visa for the United States, in July 1989, under Section 212(a)(2)(C) of the Immigration and Nationality Act. This section prohibits the issuance of a visa to anyone:

"Who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker of controlled substances; who is or has been a known aider, conspirer, or assister with other in the illegal trafficking or any controlled substance."

The determination was based on information of a confidential nature, and for that reason it is not possible to divulge it, according to the laws of the United States that protect confidential information. Nevertheless, the Consulate would have the pleasure to consider and reexamine whatever information that you may wish to present on your case after one year from the date of this letter.

It is unfortunate that it was necessary to make this decision.

Letter of March 6, 1992 from Maria Otero, United States Consul, Barranquilla Colombia, to Carlos Horacio Romero Paez.

Navarro, also a Colombian citizen and resident, requested a non-immigrant visa to the United States in October 1992. As with Romero, a United States consular officer in Barranquilla, Colombia refused to issue the requested visa on the ground that Navarro was suspected of involvement in drug trafficking.⁴ The letter sent to Navarro was essentially similar to the Romero letter and stated, in part, as follows:

Permit us to inform you that in accordance with the information that we have in our records, you are permanently ineligible to receive a tourist visa under section 212()(2)(c) of the Immigration and Nationality Act of the United States.

Section 212(a)(2)(C) establishes that the consular section cannot approve a visa for any person who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker of controlled substances; who is or has been a knowing collaborator, instigator, conspirator or has been colluding with other persons for the illegal trafficking of said substances.

According to the information furnished by the Department of State and the information supplied in the interviews you are not eligible to receive a visa. We regret that our response could not be more favorable.

Letter of October 19, 1992, from Maria Otero, United States Consul, Barranquilla Colombia, to Ines Elvira Navarro.

Plaintiffs filed their respective actions in February 1994, naming as defendants the United States, the United States Consulate in Barranquilla, the Attorney General, and the Drug Enforcement Administration. Specifically, plaintiffs assert that consular officers in Barranquilla failed adequately to specify the factual bases for denying plaintiffs' visa applications. Based on this contention, plaintiffs seek discovery of the records and specific facts upon which the denials were purportedly based. Next, plaintiffs assert that the government failed to provide them with an opportunity for administrative review of consular officers' denial of their visa applications. Accordingly, plaintiffs now seek review under both the Immigration and Nationality Act of 1952 (hereafter "INA"), 8 U.S.C. § 1181 et seq., and the Administrative Procedure Act (hereafter "APA"), 5 U.S.C. §§ 701-706 (1946). Finally, plaintiffs seek damages against the Drug Enforcement Administration for infliction of emotional distress stemming from a "negligent investigation." Citing the principle that consular officers' visa determinations are "beyond the province of the Court," the government contends that plaintiffs lack standing to pursue their claims.

II.

Though no constitutional provision explicitly vests Congress with the power to determine the admission of aliens into the United States, there is no doubt that this power exists.⁵ And courts have broadly construed this Congressional power, finding that it extends not only to which classes of aliens may enter the United States, but also to the terms and conditions of their entry. Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972); see Anetekhai v. INS, 876 F.2d 1218, 1221 (5th Cir. 1989); Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). Exercising this power, Congress, in the INA, has given United States consular officers exclusive authority over the issuance of non-immigrant visas for visits to the United States. 8 U.S.C. § 1201 (1987 and Supp.1994), see 8 U.S.C. § 1101(a)(9). And both prior to and since the INA's enactment, courts have consistently held that a consular officer's decision to grant or deny a visa is not subject to judicial or administrative review.⁶

Importantly, the doctrine of nonreviewability of consular officers' visa determinations is essentially without exception. Thus, even where a consular judgment rests on allegedly erroneous information, courts generally will not intervene. See Loza-Bedoya v. Immigration & Naturalization Service, 410 F.2d 343, 346-47 (9th Cir.1969); see also Garcia v. Baker, 765 F.Supp. 426, 428 (N.D.Ill.1990). Likewise, the fact that a consular officer may have erroneously interpreted and applied the INA, see Grullon v. Kissinger, 417 F.Supp. 337, 339-340 (E.D.N.Y.1976), aff'd 559 F.2d 1203 (2d Cir.1977), or indeed the fact that a consular officer's decision was not authorized by the INA, see Centeno v. Shultz, 817 F.2d 1212, 1213 (5th Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 696, 98 L.Ed.2d 648 (1988), does not entitle visa applicants to relief. Finally, visa applicants like plaintiffs cannot assert cognizable claims based on the contention that the State Department and Attorney General, in denying an applicant's visa request, failed to follow their own regulations. See Burrafato v. United States Dep't of State, 523 F.2d 554, 557 (2d Cir. 1975), cert. denied, 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976). In sum:

whether the consul acted reasonably or unreasonably, is not for the courts to determine. Unjustifiable refusal to vise a passport may be ground for diplomatic complaint by the nation whose subject has been discriminated against.... It is beyond the jurisdiction of this court.

Id. at 556 (quoting United States ex rel. London v. Phelps, 22 F.2d 288, 290 (2d Cir. 1927), cert. denied, 276 U.S. 630, 48 S.Ct. 324, 72 L.Ed. 741 (1928)).

Faced with this daunting array of authority, plaintiffs attempt to carve out an exception to the principle of non-reviewability by arguing that while federal courts may not have jurisdiction to review a consular officer's substantive decision, courts may nonetheless review an officer's decision for alleged procedural irregularities. Thus, plaintiffs contend that consular officers must specify the factual predicates for their visa determinations, and assert that consular officers in Barranquilla failed to do so. Plaintiffs' argument is meritless; no such exception to the doctrine of consular nonreviewability exists. It is true that a visa may be refused "only upon a ground specifically set out in the law or regulations thereunder," and that the factual predicate for such a denial must be based on "a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in the INA and as implemented by the regulations." 22 C.F.R. § 40.6 (1993). But offshore aliens have no right to judicial enforcement of these provisions, or to judicial review of administrative compliance with them. Further, neither the INA, relevant regulations, nor applicable case law⁷ require a consular officer to disclose the particular facts relied on in denying a visa request. Rather, consular officers are merely required to inform the unsuccessful applicant...