Once the Agent stamped their passports showing that they had been admitted, I knew that we suddenly had been vested with rights that we didn’t have thirty seconds earlier. Not many people know how fragile the reed is that one must cling to when coming through the dark part of the visa process. Some people are aware of this and complain about it, because their visas were denied or they were denied entry into America, but they have a difficult time believing it is true. I also have a hard time believing it is true. This is because we have an inherent expectation of fairness in America, and deep down I think we want to believe something could not be this unfair in America.
Well what about the courts, we legitimately wonder? We are accustomed to being able to take anything to court in America. Surely we can straighten out the wrong thinking and unfair consular officer in court, we think. But the courts are not there for us on this issue; they have taken themselves out of the fight by holding that they have no subject matter jurisdiction to review the denial of a visa by a consular officer.
To help make my point, here is an excerpt from a decision in 1976 out of the federal district court in the Southern District of New York. Henry Kissinger was Secretary of State at the time. He was sued along with the Department of State and the U.S. Consul who made the decision to deny an immigrant visa to the husband of the Plaintiff, who was a permanent resident of the United States . The judge who wrote this opinion is a well respected Federal district court judge. What you are reading here is the opinion of the court until *** appears in the text.
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 vise 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. denied, 279 U.S. 868, 49 S. Ct. 482, 73 L. Ed. 1005 (1929). These cases have been cited as authority in more recent decisions which find such consular decision-making immune from judicial scrutiny. See LozaBedoya v. INS, 410 F.2d 343 (9th Cir. 1969); Licea-Gomez v. Pilliod, 193 F. Supp. 577 (N.D.Ill.1960).
As a consequence, American Consuls appear free to act arbitrarily or even maliciously in their conduct toward foreign nationals seeking entrance into the United States . This result has been labeled "brutal," and a "trivialization [of] the great guarantees of due process," Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1395 (1953), as well as "an astonishing anomaly in American jurisprudence," Rosenfield, Consular Non-Reviewability: A Case Study in Administrative Absolutism, 41 Amer. Bar Assoc. J. 1109, 1110 (1955).
The law has undergone considerable change since the decisions were rendered in London , Ulrich, Knauff and Mezei. The rights afforded to aliens have been expanded, whether they are in the United States lawfully, see Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971), unlawfully, see generally Holley v. Lavine, 529 F.2d 1294 (2d Cir. 1976), or interacting with American officials outside the United States, see United States v. Toscanino, 500 F.2d 267, 280 (2d Cir. 1974). Similarly, the Courts have adopted a more favorable attitude to the reviewability of administrative action under the Administrative Procedure Act, see Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). Since that Act applies to action by the State Department involving immigration matters, see Rusk v. Cort, 369 U.S. 367, 82 S. Ct. 787, 7 L. Ed. 2d 809 (1962), it might have been expected that the "astonishing anomaly" of consular non-reviewability would also undergo change. See Rodriguez v. Rogers , Civ. No.72-5233 (S.D.N.Y., Oct. 30, 1973) (Frankel, J.).
Indeed, while the Supreme Court asserted in Knauff that "it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien," 338 U.S. at 543, 70 S. Ct. at 312 (emphasis added), it subsequently declared in Rusk v. Cort, supra, that exceptions to the APA's presumption of reviewability of decisions made under the Immigration and Nationality Act would not be made "in the absence of clear and convincing evidence that Congress so intended." 369 U.S. at 380, 82 S. Ct. at 794. Thus, it appears true that "the courts have liberalized the standard governing reviewability" of administrative action in the immigration area. See Rumahorbo v. Secretary of Labor, 390 F. Supp. 208, 209 (D.D.C.1975).
Nonetheless, the Supreme Court in Kleindienst v. Mandel, 408 U.S. 753, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972), has recently reaffirmed the older authorities which restrict the reviewability of decisions by immigration officials. It appears that if plaintiff's claim to review here is controlled by Mandel, the defendants are entitled to summary judgment on the issue discussed.
In Mandel, the Attorney General had denied permission to enter the United States to Dr. Ernest Mandel, a Belgian journalist and "'revolutionary Marxist'" who had been invited for a brief visit by a number of American universities. Dr. Mandel was ineligible for a visa under § 212(a)(28)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(28)(D), as an advocate of "world communism;" however, the Attorney General had the authority "in [his] discretion," to direct that Mandel be issued a visa despite his inadmissibility. § 212(d)(3)(A), 11 U.S.C. § 1182(d)(3)(A). The Attorney General refused to grant such a waiver, and review was sought in the courts. Plaintiffs, who included several university professors who had invited Mandel to their campuses, asserted that the Attorney General had infringed their First Amendment rights by preventing them from engaging Mandel in academic debate.
The Supreme Court recognized that "First Amendment rights are implicated," 408 U.S. at 765, 92 S. Ct. 2576, 33 L. Ed. 2d 683, but held that judicial review was unavailable where the government had acted on "the basis of a facially legitimate and bona fide reason." 408 U.S. at 770, 92 S. Ct. at 2585. In reaching that conclusion the Court relied upon -- and explicitly declined to reconsider -- an 1895 opinion in which the Court had declared:
The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications. 408 U.S. at 766, 92 S. Ct. at 2583 (emphasis added), citing Lem Moon Sing v. United States , 158 U.S. 538, 547, 15 S. Ct. 967, 970, 39 L. Ed. 1082, 1085.
Consequently, the Court concluded that it was unnecessary to balance the plaintiffs' First Amendment rights against the government's interest in excluding Mandel. 408 U.S. at 765.
In holding that the Courts may not "look behind the exercise" of an official's discretionary authority to deny admission to an alien, the Mandel Court has seemingly precluded Mrs. Pena's ability to invoke judicial scrutiny of the Consul's denial of a visa to her husband. That result might be different were it possible to characterize the review sought here as involving only the Consul's decision concerning the bona fides of plaintiff's marriage, and not the visa denial. Such a characterization would be disingenuous, however, since the status of the marriage is merely an element in Mr. Pena's eligibility for a visa. The Consul's determination regarding the marriage is the "facially legitimate and bona fide reason" which is the basis for the discretionary decision on the visa application; as such, Mandel interdicts Court examination of the Consul's determination.
This result may seem anomalous, since the Courts are not reluctant to review the validity of marriages, even in the immigration context, where the challenged decision has been made by an official of the Immigration and Naturalization Service as distinguished from a Consul in the employ of the State Department. See, e.g., Kokkinis v. District Director, INS, 429 F.2d 938 (2d Cir. 1970); Bark v. INS, 511 F.2d 1200 (9th Cir. 1975); Ferrante v. INS, 399 F.2d 98 (6th Cir. 1968). Moreover, judicial review is common of agency determinations -- involving the denial of a labor certification -- made pursuant to 8 U.S.C. § 1182(a)(14), the very statute under which the defendants here acted when they determined that Mr. Pena was subject to the labor requirement because his marriage was spurious. See, e.g., Pesikoff v. Secretary of Labor, supra; Secretary of Labor v. Farino, supra; Ozbirman v. Regional Manpower Administrator, 335 F. Supp. 467 (S.D.N.Y.1971).
It is thus arguable that the plaintiff should nonetheless be entitled to judicial review here to assure, at a minimum, that her constitutional right to procedural due process has been satisfied by the Consul's decision-making procedures. As a resident legal alien, plaintiff is entitled to the full panoply of constitutional protection. See Graham v. Richardson , supra. Consequently, while "[whatever] the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned," United States ex rel. Knauff v. Shaughnessy, supra, 338 U.S. at 544, 70 S. Ct. at 313, 94 L. Ed. at 325, it may not be due process as far as it affects an American citizen or permanent resident alien who has standing, as does the plaintiff here, to challenge it. Furthermore, it is settled that agency action which is committed to the agency's discretion and thus otherwise foreclosed from judicial review is nevertheless reviewable if it allegedly exceeds constitutional bounds. See Ness Investment Corp. v. United States Department of Agriculture, 512 F.2d 706, 715 (9th Cir. 1975); Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966) (non-reviewable, discretionary agency conduct may be reviewed where decision "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group"). Cf. McRedmond v. Wilson, 533 F.2d 757 (2d Cir. 1976) ("'. . . wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication . . .'"). Accordingly, this analysis suggests that Mrs. Pena is entitled to a review of the Consul's assessment of the status of her marriage to determine if his decision was reached so arbitrarily and capriciously as to violate her right to procedural due process.
However appealing this argument may be, it appears to run afoul of Mandel. In that case, the plaintiffs were Americans who sought to interpose the Constitution between themselves and a discretionary exercise of power by the Attorney General which affected them while acting directly upon an alien abroad; the Supreme Court decided that the constitutional interests recognized there were not susceptible of judicial protection in the face of the "plenary congressional power to make policies and rules for exclusion of aliens . . . ." 408 U.S. at 769, 92 S. Ct. at 2585, 33 L. Ed. 2d at 696. Since it would be outside the province of a District Court to disregard this lesson from the High Court, but see Hart, supra, 66 Harv. L. Rev. at 1396 ("when justices . . . write opinions in behalf of the Court which ignore the painful forward steps of a whole half century of adjudication, making no effort to relate what then is being done to what the Court has done before, they write without authority for the future"), plaintiff is not entitled to judicial review of the Consul's decision.
***
The judge who wrote the foregoing opinion, and some other federal judges at the trial court level, have been uncomfortable with the precedent that they believe ties their hands. They have nevertheless followed it. If they did not, the appellate courts would presumably hold them to the established rule of law.
Moreover, at the risk of stirring up a hornet's nest, here is a further excerpt from the same case. I know that this portion of the case is likely to be of much greater interest to some who have suffered because of what they believe was an arbitrary and capricious denial of their visa. It will also serve as a warning to those who are still going through the visa process.
D. Damages
Although plaintiff's claims for declaratory and injunctive relief must be denied in light of the foregoing, her claim for compensatory and punitive damages for emotional pain and humiliation caused by the conduct of the defendants remains.
The government has neglected to address that aspect of the complaint in its summary judgment motion, perhaps because it would seem anomalous for government conduct which is invulnerable to judicial review to state a claim on which monetary relief might be granted. While that may well be the case, it is also true that anomalies are not foreign to the law of immigration as it has been developed by the Congress and the Courts. Thus, it should not be entirely surprising that there is explicit statutory authorization for a private right of action against consular officers in which civil liability may be imposed. 22 U.S.C.A. § 1199 (Supp.1976) provides that:
Whenever any consular officer . . is guilty of any willful malfeasance or abuse of power, or of any corrupt conduct in his office, he shall be liable to all persons injured by any such . . malfeasance, abuse, or corrupt conduct, for all damages occasioned thereby; and for all such damages, he shall be responsible thereon to the full amount thereof to be sued in the name of the United States for the use of the person injured. . . .
Although this statute has been in force since 1856, 11 Stat. 64, it has seen little use. See United States to Use of Parravicino v. Brunswick, 63 App. D. C. 65, 69 F.2d 383 (1934); American Surety Co. v. Sullivan, 7 F.2d 605 (2d Cir. 1925). Cf. American South African Line v. United States , 57 F.2d 208 (S.D.N.Y.1932). It clearly imposes a severe burden of proof on the plaintiff, which may account for Mrs. Pena's failure to explicitly invoke it here.
Nevertheless, the Court is administering the summary judgment rule as interpreted in this Circuit, see Heyman v. Commerce & Industry Insurance Co., supra, and conceivably triable issues of fact concerning the defendant's liability under § 1199 may be lurking in the interstices of the plaintiff's claim. Hence, it would be inappropriate to grant the defendants' motion for summary judgment in regard to plaintiff's claim for damages at this time. Since a claim under the statute must be brought "in the name of the United States for the use of" the plaintiff, however, plaintiff's claims will be dismissed in their entirety 20 days from the entry of this order if she has not moved to amend her complaint within that time to properly assert a damage claim and has by such failure indicated that she lacks a factual basis on which to assert such a claim.
***
There are some attorneys I know who believe that the way to attack an arbitrary and capricious decision to deny a visa to come to America is to immediately threaten the consular officers involved, including the Consul General, with a lawsuit seeking damages against them individually for abuse of power. I am not advocating this as a remedy or a strategy, nor am I writing this as legal advice. As the court said, it would be a difficult case to prove. Not only that, but it could clearly backfire. It might, however, be a possible ray of hope to someone who feels there is no other way to deal with a visa denial.
I also agree in a general sense that it would not be a good use of dollars to pursue a lawsuit against the Consul General and others for denying a visa, but I believe that someone will pursue one someday, and with the right case, I believe they will win.
The grounds for inadmissibility are listed in the statute, and they cannot be expanded or ignored. They are exclusive. The pendulum of justice swings, albeit excruciatingly slowly, but it swings. It sometimes swings when public opinion forces action by congress. It sometimes swings when there are changes in the executive branch. It sometimes swings when there are changes on the bench.
And sometimes, very rarely, it swings when someone with the money and the determination to challenge the established view of the law sees it through in court.
Recently in the news there was a story about a CPA who challenged the IRS in court and actually prevailed against years of established precedent. The pendulum swung back in favor of the taxpayer in a case where no one would have predicted it would swing.
That is good news in the IRS arena, but another obstacle when a visa is denied is that a reason for denial need not be given at all if the ground is within the criminal or the national security categories. The bottom line is that if your visa is denied, it will never be easy for you to try to overcome the denial ... .
The environment and the mood in America are not right today, in my estimation, for a challenge in a U.S. Court. My point is that I believe it will change, as it always does, with the passage of time. My wife is Chinese. She was allowed to move to America with her daughter to be with me. It has not been that many years since persons from China were not allowed to immigrate to America at all, but those days are long gone.
I am troubled, as I know many other people are, by the way this visa process has been treated in the courts. Only recently, however, have I begun to look behind the curtains, so to speak. I know what the courts have done in the past, but I don't believe that is the end of the story.
As I have researched and read many cases, I have developed a much better understanding about the basis for the statements by the courts that they must abstain from second guessing decisions of the consular officers abroad. I have also learned that there are some great minds who have sat on our Supreme Court who have also been troubled by this precedent. They have been troubled enough, in fact, to leave the door on this issue ajar just a bit rather than closing it.
In a seminal case decided by the United States Supreme Court in 1972, the majority made broad sweeping statements of the law such as:
“The power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers -- a power to be exercised exclusively by the political branches of government.”
“The Court without exception has sustained Congress' plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.”
The Supreme Court even quoted Mr. Justice Frankfurter from a 1954 case in which he said: “Much could be said for the view that due process places some limitations on congressional power in this area were we writing on a clean slate. But the slate is not clean. There is not merely a page of history, but a whole volume. That the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.
We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors and must therefore under our constitutional system recognize congressional power in dealing with aliens.”
***
But then the court refused to adopt the rule espoused by the Attorney General of the United States on behalf of the government, which would be a rule that Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given. [This was in the context of the denial of a visa to a scholar in Belgium who had been invited to speak at numerous colleges in America about his Communist beliefs, so First Amendment rights of American citizens were also at stake.]
Instead, the court adopted a narrower standard, holding that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
***
Then this is the door they left ajar when they said this:
“What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.”
***
Two dissents were filed in the foregoing case from the United States Supreme Court.
In his dissent, Mr. Justice Douglas stated that he would not allow the Executive branch to exercise discretion without review by the courts except in matters of national security, importing of drugs, or other matters within its competence.
Mr. Justice Marshall, joined by Mr. Justice Brennan, were stunned to learn of the denial of the visa, saying that even the briefest peek behind the Attorney General's reason for refusing a waiver [of the Communist Party issue] in this case would reveal that it is a sham.
They proceeded to almost ridicule the precedent upon which the majority relied, saying that they were not the strongest precedents in the United States Reports, and that the majority's baroque approach revealed its reluctance to rely on them completely.
They concluded on the same note as Mr. Justice Douglas, saying that: Principles of judicial restraint designed to allow the political branches to protect national security have no place in this case.
***
Sorry about all the law, but I think it is important. Here is where I come down on the issue:
I think we are correct to state that as a pragmatic matter, it is unlikely that a court would intervene in a case in which a visa is denied.
I think we are wrong, however, to state or even assume that this rule is set in concrete and will never change.
The seeds of change have been sown already. The nine justices who sat on the Supreme Court in the case I just talked about are some of the most respected Justices who have ever sat on that court. Five of the twelve jurists involved in the case would have allowed court intervention. In fact, the three judge panel in the court below did exactly that. They intervened, concluded that the visa had been improperly denied, and ordered that it be issued.
Who is to say that a new Executive Branch wouldn't start making changes. After all, Congress has delegated the authority to the Executive Branch to make and enforce the rules regarding the issuance of visas.
Are there people in this country, even people who have conservative views, who think it has been wrong to deny fundamental due process rights even to accused terrorists who have been held in Guantanamo Bay for years without even a court hearing?
Are there people in this country, even people who have conservative views, who feel the country has gone too far down the wrong road with respect to human rights as well as other important issues and that a significant adjustment in our direction is necessary?
This is a Presidential election year, and we may have an idea about the answers to these questions in just a few months. The answers won't help anyone who is currently in the queue where visas are concerned, but it may help future applicants at some point.
