Wong v. Department of State

• Decision Date: 19 May 1986
• Docket Number: No. 84-6567,84-6567
• Citation: 789 F.2d 1380
• Parties: Tak-Ming WONG and King-Fong Wong, Yat Sum International Corporation, Plaintiffs-Appellants, v. DEPARTMENT OF STATE and Immigration and Naturalization Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1380

789 F.2d 1380

Tak-Ming WONG and King-Fong Wong, Yat Sum International Corporation, Plaintiffs-Appellants, v. DEPARTMENT OF STATE and Immigration and Naturalization Service, Defendants-Appellees.

No. 84-6567.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 10, 1985.

Decided May 19, 1986.

Howard Hom, Fleming & Hom, Los Angeles, Cal., for plaintiffs-appellants.

Carolyn M. Reynolds, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, and KENNEDY and HUG, Circuit Judges.

HUG, Circuit Judge:

This action concerns the validity of the revocation of nonimmigrant visas by a consular officer. Appellants Tak-Ming Wong, his wife, King-Fong Wong, and his employer, Yat Sum International Corporation, appeal from the district court's summary judgment affirming the revocation of the nonimmigrant visas of Mrs. Wong and the Wongs' minor children. The issues before us on this appeal are: (1) whether the Wongs failed to exhaust their administrative remedies, and (2) whether the applicable statutes and regulations authorized the consular officer to revoke the visas on the grounds asserted.

FACTS

Appellant Yat Sum International Corporation ("Yat Sum"), a subsidiary of Yat Sum Land Investment Company based in Hong Kong, employed Mr. Wong as manager of its California operations. In order to work in the United States, Mr. Wong sought to obtain for himself an intracompany transferee visa, known as an L-1 visa, ¹ and visas known as L-2 visas for his spouse and minor children. After the initial processing, Mr. Wong, accompanied by his attorney, flew to Pago Pago, American Samoa, to secure the visas for himself and his family. Mrs. Wong and the children did not personally appear for an interview at the American Consulate in Pago Pago. The visa-issuing officer approved the applications and the appropriate endorsement stamps were affixed to all passports.

On May 20, 1983, Mr. Wong and his family arrived at the Los Angeles International Airport from Hong Kong and presented the nonimmigrant visas issued in Pago Pago. In accordance with instructions received by wire on January 24, 1983 from the State Department, the Immigration and Naturalization Service ("INS") inspector questioned them concerning whether they obtained the visas without being personally present in Pago Pago. ² Mr. Wong stated under oath that while he personally appeared at the American Consulate, his wife and children did not. The INS inspector notified the State Department by telephone of the apparent deficiency, and a State Department official revoked the visas of Mrs. Wong and the children because they had not personally appeared at the American Consulate in Pago Pago. Mrs. Wong and her children were advised that they had not established that they were admissible into the country and were instructed to appear for deferred inspection at the local INS office on May 23, 1983 for a final determination on their admissibility. Mr. Wong, who personally appeared in Pago Pago, was admitted into the country under his L-1 visa.

Mrs. Wong and her children, accompanied by their attorney, appeared for deferred inspection. The INS inspector opined that they did not appear to be admissible and could either withdraw their request for admission or elect to have an exclusion hearing before an immigration judge. They opted for a hearing and were served with notices to appear for an exclusion hearing, scheduled to commence on June 2, 1983.

On May 24, 1983, the INS received a teletype from Mr. Goelz, Deputy Assistant Secretary for Visa Services, Bureau of Consular Affairs, Department of State. Mr. Goelz's teletype states in relevant part as follows:

This is to certify that I, the undersigned consular officer, acting in pursuance of the authority conferred by section 221(i) of the Immigration and Naturalization Act and 22 C.F.R. Sec. 41.134, hereby revoke the nonimmigrant visas, L-2, issued at the office of the Governor of American Samoa, Pago Pago, American Samoa, on November 22, 1982.....

Mrs. Wong and the children were paroled into the United States and have remained since that time.

On July 18, 1983, Mr. Wong, Mrs. Wong, and Yat Sum brought a class action for declaratory and injunctive relief against the Department of State and the INS, alleging violations of the Immigration and Nationality Act, 8 U.S.C. Sec. 1104(a) (1982), 22 C.F.R. Secs. 41.130 and 41.134 (1983); the Administrative Procedure Act, 5 U.S.C. Secs. 553(b)-(d) and 706 (1982), and the due process clause of the fifth amendment. The district court granted summary judgment to appellees on October 11, 1984. ³ Mr. Wong's visa was not revoked, and Yat Sum still has the benefit of his services. The district court correctly ruled that there is no case or controversy as to Yat Sum or Mr. Wong. Mr. Wong does not allege standing as representative of the children to challenge the revocation of their visas. Neither Yat Sum nor Mr. Wong has standing to contest the revocation of Mrs. Wong's visa. We are, thus, here concerned only with the appeal of Mrs. Wong for herself and as representative of her children.

STANDARD OF REVIEW

We review de novo a grant of summary judgment by the district court, Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). In reviewing agency action, both the district court and this court apply the same deferential standard. The Administrative Procedure Act, 5 U.S.C. Sec. 701 et seq. (1982), provides that "the reviewing court shall ... hold unlawful and set aside agency action findings and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). Under this deferential standard, we can reverse the district court's decision to revoke Mrs. Wong's visa only if the Secretary of State violated the law or committed a clear error in judgment. See Knoetze v. United States, 634 F.2d 207, 209 (5th Cir.), cert. denied, 454 U.S. 823, 102 S.Ct. 109, 70 L.Ed.2d 95 (1981); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284-86, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974). Traditionally, an agency's interpretation of its own regulations is entitled to a high degree of deference. Sierra Club v. Clark, 756 F.2d 686, 690 (9th Cir.1985); Hawaiian Electric Co. v. EPA, 723 F.2d 1440, 1447 (9th Cir.1984).

STATUTORY AND REGULATORY BACKGROUND

Under the conditions and limitations prescribed by the Immigration and Nationality Act ("Act") and the regulations promulgated thereunder, a consular officer may issue a nonimmigrant visa to a nonimmigrant who has made a proper application. 8 U.S.C. Sec. 1201(a)(2) (1982). "Consular officer" is defined by 8 U.S.C. Sec. 1101(a)(9) (1982) as "any consular, diplomatic, or other officer of the United States designated under regulations prescribed under authority contained in this chapter, for the purpose of issuing immigrant or nonimmigrant visas." The regulations designate "commissioned consular officers, the District Administrators of the Trust Territory of the Pacific Islands, the Director of the Visa Office of the Department [of State] and such other officers of the Department as he shall designate for the purpose of issuing nonimmigrant visas" as consular officer. 22 C.F.R. Sec. 41.1 (1981).

The provisions of 8 U.S.C. Sec. 1201(g) specify that a nonimmigrant visa shall not be issued by the consular officer if (1) it appears to the consular officer that the alien is ineligible to receive a nonimmigrant visa under 8 U.S.C. Sec. 1182, or any other provision of law, (2) the application fails to comply with the Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa under 8 U.S.C. Sec. 1182, or any other provision of law. 8 U.S.C. Sec. 1201(g) (1982). The statute requires that an alien's application for a nonimmigrant visa shall be made in such form and manner as prescribed by the regulations. 8 U.S.C. Sec. 1202(c) (1982). 22 C.F.R. Sec. 41.110(a) (1983) sets forth the manner for making visa applications.

[E]very alien applying for a regular or official visa shall make application to the consular officer in the consular district in which he has as his residence, except that a consular officer shall at the direction of the Department, or may in his discretion, accept an application for a nonimmigrant visa from an alien having no residence in the consular district if the alien is physically present therein.

[Emphasis added.] ⁴

Congress has conferred upon the consular officer and the Secretary of State plenary power to revoke a visa in the following language.

After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa.... [S]uch revocation shall invalidate the visa or other documentation from the date of issuance....

8 U.S.C. Sec. 1201(i) (1982).

Under the Foreign Service Act of 1980, 22 U.S.C. Sec. 3921 (1982), the Secretary of State is charged with administering and directing the Foreign Service, which includes consular officers. In implementing his statutory authority to revoke nonimmigrant visas, the Secretary of State has adopted regulations delegating to all consular officers the power to revoke nonimmigrant visas and specifying the grounds and procedures for doing so.

The provisions of 22 C.F.R. Sec. 41.134(a) (1983), authorize a consular officer to revoke a nonimmigrant visa subsequent to its issuance on two specific grounds: ineligibility to receive the visa under section 212(a) of the Act, 8 U.S.C. Sec. 1182(a), and non-entitlement to the nonimmigrant classification under section 101(a)(15) of the Act, 8 U.S.C. Sec. 1101(a)(15). Section 41.134(a) states as follows:

Grounds for revocation. A consular...