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03/11/86 James Abourezk, Et Al., v. Ronald Wilson Reagan

March 11, 1986

JAMES ABOUREZK, ET AL., APPELLANTS

v.

RONALD WILSON REAGAN, PRESIDENT OF THE UNITED STATES, ET AL.; CITY OF NEW YORK, ET AL., APPELLANTS

v.

GEORGE

CRONIN, ET AL., APPELLANTS

v.

GEORGE P. SHULTZ, SECRETARY OF STATE, ET AL.



Before: EDWARDS, GINSBURG, and BORK, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1986.CDC.63

P. SHULTZ, SECRETARY OF STATE, et al.; BRUCE

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 83-03739, 83-03741 and 83-03895)

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GINSBURG

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting Opinion filed by Circuit Judge BORK.

GINSBURG, Circuit Judge: This case concerns the scope of the authority Congress accorded to the Secretary of State under the Immigration and Nationality Act of 1952, § 182, 8 U.S.C. § 1182(a)(27) (1982), to deny non-immigrant visas to aliens who wish to visit this country in response to invitations from United States citizens and residents to attend meetings or address audiences here. The district court, granting the government's motion for summary judgment, held that the specific visa denials at issue were within the State Department's statutory and constitutional authority. See Abourezk v. Reagan, 592 F. Supp. 880 (D.D.C. 1984). We conclude that the district court incorrectly analyzed the statutory construction issue, and that questions of material fact remain. Accordingly, we vacate the judgment of the district court and remand the case for further proceedings consistent with this opinion. I.

We describe first the statutory complex and, next, the essential facts of the cases presented for review.

The Immigration and Nationality Act of 1952, 8 U.S.C. § 1101 et seq. (1982) (Immigration Act or Act), delegates responsibility for regulating the entry of aliens jointly to the Attorney General, the Secretary of State, and United States consular officials abroad. The Secretary of State has the authority to revoke visas, as well as the general responsibility to supervise the issuance of visas by consular officers. See id. at § 1104; Brief for Appellees at 4. Section 1182(a) of the Act defines the categories of aliens that the government may exclude from this country. Some of these categories deal with the status of the alien, see, e.g., § 1182(a)(28) (aliens who are members of Communist or anarchist organizations); others concern the alien's activities, see, e.g., § 1182(a)(29) (aliens likely to engage in subversion or espionage); while still others involve the procedural requirements for entry, see, e.g., § 1182(a)(20) (aliens without valid visas and passports).

Subsection (27) of section 1182(a), the provision centrally at issue in this case, directs the exclusion of an alien if the Attorney General has reason to believe that the alien "seek[s] to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest or endanger the welfare, safety, or security of the United States." Pursuant to State Department policy, when a consular officer abroad receives a visa request from an individual he believes may be ineligible under subsection (27), the officer forwards the request to the State Department where the appropriate officials consider it and render binding advice. See 22 C.F.R. § 41.130(c) (1985); Brief for the Appellees at 6-9. *fn1 If the alien is found to be within the subsection (27) classification, his exclusion is mandatory.

Subsection (28) of section 1182(a) also bears importantly on this case and was inadequately evaluated by the district court. This subsection authorized the exclusion, inter alia, of aliens who are, or at any time have been, "members of . . . the Communist Party of the United States, . . . the Communist . . . party . . . of any foreign state, or . . . any . . . affiliate . . . of any such . . . party." 8 U.S.C. § 1182(a)(28)(1982). Unlike subsection (27), subsection (28) does not require the Secretary of State to exclude any alien who meets the stated criteria. If the Secretary recommends a waiver of ineligibility, then, in the discretion of the Attorney General, the alien may be admitted. See 8 U.S.C. § 1182(d)(3)(1982).

The McGovern Amendment, 22 U.S.C. § 2691 (1982), addresses the Secretary's implementation of this waiver provision. The Amendment calls upon the Secretary to recommend "the approval necessary for the issuance of a visa" to "any alien who is excludible from the United States by reason of membership in or affiliation with a proscribed organization but who is otherwise admissible to the United States," unless the Secretary certifies to the Congress that "the admission of such alien would be contrary to the security interests of the United States." Id. at § 2691(a).

This appeal involves three actions consolidated in the district court; the actions contest the denial under subsection (27) of four visa requests. In Abourezk v. Reagan, 785 F.2d 1043, the plaintiffs are a diverse group of United States citizens -- including members of Congress, university professors, journalists, and religious leaders -- who had invited Tomas Borge, the Interior Minister of Nicaragua, to speak to them in this country. See Brief of Plaintiffs-Appellants at 9-11. The Nicaraguan government applied to the United States Embassy in Managua for a non-immigrant visa for Borge. After obtaining an advisory opinion from the State Department, the consular officer informed Borge, in late November 1983, that his visa request had been denied pursuant to section 1182 (a)(27) of the Immigration Act. See Brief for the Appellees at 9-11.

The plaintiffs in Cronin v. Schultz, No. 84-5708, are principally groups interested in nuclear disarmament who had invited Nino Pasti to attend and speak at a rally in Boston. Pasti is a former member of the Italian Senate and former general in the Italian armed forces; he is now a peace activist. See Brief of Plaintiffs-Appellants at 8. Pasti is also a participant in the World Peace Council, an organization which the State Department believes to be controlled by the Soviet Communist Party. See World Peace Council: Instrument of Soviet Foreign Policy, FOREIGN AFFAIRS NOTE (Department of State, April 1982), reprinted in Joint Appendix at 144-48. The consular officer in Rome found Pasti ineligible to receive a visa under subsection (28). The officer therefore requested an advisory opinion from the State Department on the possibility of a waiver. In response, the Department informed the officer that Pasti was ineligible under subsection (27). The consular officer thereupon notified Pasti, in mid-October 1983, that his visa request had been denied. See Affidavit of Louis P. Goelz, reprinted in Joint Appendix at 163-64.

In City of New York v. Shultz, No. 84-5681, the plaintiffs, the New York City Commission on the Status of Women and several women's studies programs at various universities, had extended speaking invitations to two Cuban women, Olga Finlay and Leonor Rodriguez Lezcano; these individuals have special expertise regarding the status of women and family law in Cuba. See Brief of Plaintiffs-Appellants at 13-14. According to the State Department, both women are members of the Federation of Cuban Women, an organization affiliated with the Communist Party of Cuba. See Affidavit of Louis P. Goelz, reprinted in Joint Appendix at 164-65. Visa applications for the two women were conveyed by diplomatic note from the Government of Cuba. The consular officer in Havana forwarded the visa requests to the State Department and was advised that Finlay and Lezcano were ineligible under subsection (27). He notified them, in early October 1983, that their visa requests had been denied. See Brief for the Appellees at 12-13. *fn2

The plaintiffs filed suit in the district court requesting injunctive and declaratory relief. They argued that the State Department's exclusion of the aliens invited by plaintiffs to speak here exceeded the Department's statutory authority under subsection (27) and violated the plaintiffs' first amendment right to engage in dialogue with these foreign individuals. The district court granted the defendants' request for a stay of discovery pending their filing of a motion for summary judgment. See Abourezk v. Reagan, No. 83-3739 (D.D.C. Feb. 8, 1984) (order granting motion for extension of time and protective order staying discovery). After consideration of both the public documents and three classified affidavits submitted by the government for the court's in camera inspection, the district judge granted the defendants' motion for summary judgment. The court held that the government's action was within its statutory authority and survived the very limited constitutional scrutiny appropriate in a case concerning the admission or exclusion of aliens. See Abourezk v. Reagan, 592 F. Supp. 880 (D.D.C. 1984). II.

The government raises several preliminary objections to the adjudication of these claims. The State Department suggests that the district court lacked jurisdiction over the subject matter, that the plaintiffs have no right to contest the visa denials on statutory grounds, and that the case is moot. We find these contentions insubstantial.

The district court had subject matter competence in this case under both its general federal question jurisdiction, see 28 U.S.C. § 1331 (1982), and its specific jurisdiction over claims arising under the Immigration and Nationality Act, see 8 U.S.C. § 1329 (1982). Section 1329 states that "[t]he district courts . . . shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this subchapter [of the Immigration Act]." Section 1182(a)(27) is part of the relevant subchapter. The courts have reasonably inferred from this broad grant of jurisdiction that "clear and convincing evidence" of a congressional intent to preclude judicial review is lacking. See Abbott Laboratories v. Gardner, 387 U.S. 136, 141 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967) (stating, as the general rule, presumption in favor of judicial review of final agency action, absent "clear and convincing evidence" of congressional intent to the contrary); see, e.g., Karmali v. Immigration and Naturalization Service, 707 F.2d 408, 409-10 (9th Cir. 1983) (interpreting § 1329 as grant of jurisdiction over Immigration Act claims); Acosta v. Gaffney, 558 F.2d 1153, 1156 (3d Cir. 1977) (same).

We further note, as did the district court, see Abourezk, 592 F. Supp. at 883 n.10, the Supreme Court's disposition on the merits in Kleindienst v. Mandel, 408 U.S. 753, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972). In that case, United States sponsors of a Belgian journalist objected to his exclusion under section 1182(a) (28). Presumably, had the Court harbored doubts concerning federal court subject matter jurisdiction in Mandel, it would have raised the issue on its own motion. See, e.g., Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 53 L. Ed. 126, 29 S. Ct. 42 (1908).

The government also argues that the plaintiffs' statutory pleas may not be entertained; this argument blends objections to plaintiffs' standing and to their ability to state a claim for relief (cause of action). The Immigration Act, we agree does not itself endow plaintiffs with a right of action. *fn3 But the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (1982) , which complements statutes controlling agency behavior, does. Section 702 of that Act, as explained by the Supreme Court in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152-53, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970), authorizes suit by persons who suffer "injury in fact" by reason of the challenged agency action and are "arguably within the zone of interests to be protected or regulated" under a relevant statute. *fn4

Persons who are not materially affected by an agency's interpretation of the governing law may not successfully invoke the APA to achieve court review. See, e.g., Capital Legal Foundation v. Commodity Credit Corporation, 228 U.S. App. D.C. 467, 711 F.2d 253, 259-260 (D.C. Cir. 1983). But the plaintiffs in this case are hardly strangers to the matter at issue. Unquestionably, they are "aggrieved" by the State Department's resort to section 1182(a)(27) to keep out people they have invited to engage in open discourse with them within the United States. See Brief for the Appellees at 20 ("Refusing visas to their alien invitees undoubtedly inhibits plaintiffs' rights to communicate with these individuals in face-to-face discussions on American soil."). The plaintiffs are substantively interested in, and adversely affected by, the Department's interpretation of subsection (27) as it coexists with subsection (28). They are, as the district court observed, at least arguably within the zone regulated by the statute. See Abourezk, 592 F. Supp. at 884 n.10. *fn5 They therefore have a cognizable stake in the construction of subsections (27) and (28), a practical interest adequate under section 702 of the APA to secure judicial review of their pleas regarding those provisions. Cf. Capital Legal Foundation, 711 F.2d at 259-60 & n.17.

Section 701 of the APA states that "[t]his chapter applies, according to the provisions thereof, except to the extent that -- (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701 (1982). As discussed above, the Immigration Act, far from precluding review, affirmatively provides for it. See supra at 8-9. *fn6 Furthermore, the statute does not commit to unguided agency discretion the decision to exclude an alien. The Supreme Court has recently interpreted the "committed to unfettered agency discretion" provision as applicable only "if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 1655, 84 L. Ed. 2d 714 (1985). Under this interpretation, the Immigration Act emphatically did not commit the decision to exclude an alien to standardless agency discretion; the statute lists thirty-three distinctly delineated categories that conspicuously provide standards to guide the Executive in its exercise of the exclusion power. See 8 U.S.C. § 1182(a) (1982). The statutory language thus channels the Secretary of State's discretion and, under Heckler v. Chaney, the constraints Congress imposed are judicially enforceable.

In sum, the APA applies to the plaintiffs' challenges; that Act gives them a right of review extending to the statutory as well as the constitutional propriety of the State Department's application of section 1182(a)(27) to exclude the aliens invited by plaintiffs to the United States as speakers and meeting participants. We add, finally, that in the special circumstances of this case, the court has an independent obligation to consider questions of statutory construction. We should so proceed in order to avoid a constitutional confrontation, if it is possible for us to stop short of that point. See Ashwander v. TVA, 297 U.S. 288, 347, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring). This consideration strongly supports our attention to the plaintiffs' non-constitutional arguments. We should not reach "[the] constitutional question although properly presented by the record, if there is also present [a statutory construction] ground upon which the case may be disposed of." Id. In rejecting the government's demand that we confine review to the consistency of the State Department's actions with the Constitution, we thus observe the "cardinal principle" directing a court first to inquire "whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided." Id. at 348 (quoting Crowell v. Benson, 285 U.S. 22, 62, 76 L. Ed. 598, 52 S. Ct. 285 (1932)).

Turning to the last of the government's threshold objections, we hold that the case is not moot. The government asserts that the State Department considers each visa application independently and that the present denials in no way bear on the results of any future application that the excluded aliens might make. See Brief for the Appellees at 26 n.23; Affidavit of Louis P. Goelz, reprinted in Joint Appendix at 158. However, the reasons for the visa denials offered by the State Department and accepted by the district court indicate that the prospect of future denials of applications by these aliens is a genuine, and not merely a "theoreticalpossibility." Murphy v. Hunt, 455 U.S. 478, 482, 71 L. Ed. 2d 353, 102 S. Ct. 1181 (1982).

The State Department's dominant reasons for the denials that sparked this litigation do not refer to a particular event in the world whose cessation might induce the government to grant visa requests from the aliens whom plaintiffs invited to speak. Instead, the Department cites the continuing status of these aliens as members of organizations or governments hostile to the United States. *fn7 The aliens, whose affiliations apparently have not changed, assert that their interest in entering the United States continues, and the plaintiffs have represented that they still wish to invite these aliens to speak in this country. See Brief of Plaintiffs-Appellants at 9 (Pasti), 13 (Borge), 17 (Finlay and Lezcano). In light of the reasons for the visa denials tendered by the government and relied upon by the district court, these allegations of continuing interest suffice to establish a genuine prospect that the plaintiffs will suffer the same injury in the future. See Nebraska Press Association v. Stuart, 427 U.S. 539, 546-47, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976). *fn8 We therefore reach the merits of the plaintiffs' claims. III.

The plaintiffs raise three issues of statutory interpretation. They argue, first, that subsection (27) does not authorize exclusion on the basis of foreign policy concerns, as opposed to issues of "public interest or . . . [national] welfare, safety, or security . . . ." 8 U.S.C. § 1182(a)(27) (1982). Second, the plaintiffs contend that subsection (27) allows exclusion only if it appears that the alien's activities in the United States would endanger the public welfare and not if his or her mere presence or entry might do so. And, third, the plaintiffs suggest that the government's interpretation of subsection (27) violates the statute because it renders subsection (28) superfluous and undermines the restrictions Congress has placed on the Executive's use of subsection (28). See McGovern Amendment, 22 U.S.C. § 2691 (1982).

Our approach to statutory interpretation is informed by the guidelines the Supreme Court announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). According to Chevron, a court must first examine the statutory provision in question to determine whether Congress had a specific intent with respect to the issue at hand. See id. at 2781. This examination should begin with the language of the statute, see Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980), but the court may also inspect legislative history and past administrative practice for any light these sources may shed on congressional intent. See, e.g., Chevron, 104 S. Ct. at 2791-92; Rettig v. Pension Benefit Guaranty Corporation, 240 U.S. App. D.C. 118, 744 F.2d 133, 144-50 (D.C. Cir. 1984). If the court finds that Congress had a specific intent with respect to the issue, the court stops there and enforces that intent regardless of the agency's interpretation. See Chevron, 104 S. Ct. at 2781-82 & n.9. If, however, the court finds that Congress had no specific intent, the agency's interpretation should be accorded great deference and invalidated only if it is not a "reasonable accommodation of conflicting policies that were committed to the agency's care by the statute. . . ." Chevron, 104 S. Ct. at 2783 (quoting United States v. Shimer 367 U.S. 374, 382-83, 6 L. Ed. 2d 908, 81 S. Ct. 1554 (1961)).

Following these guidelines, we conclude, in agreement with the government and the district court, see Abourezk, 592 F. Supp. at 885-86, that Congress intended foreign policy concerns to rank among the national interests whose protection would justify exclusion of an alien under subsection (27). The broad language of (27) evinces no intent to restrict the kinds of governmental concerns that would qualify; the subsection speaks of "public interest. . . welfare, safety, or security" and places no limitation on these encompassing terms. Only an isolationist view patently inconsistent with the reality of our late twentieth century world could account for a belief that the "public interest" and the "national welfare" were not dependent, in part, on the effective execution of our foreign policy. The court surely should not adopt on its own initiative such a counter-intuitive interpretation of expansive statutory language, and the plaintiffs have identified nothing in the legislative history or administrative practice to suggest that Congress intended to exclude foreign policy concerns from consideration under subsection (27). Because the State Department's interpretation appears fully consistent with congressional intent, we need take this inquiry no further.

The plaintiffs also contend that subsection (27) explicitly authorizes exclusion based only on "activities" in which the alien may be expected to "engage" and not on mere entry or presence. The district court decided this issue for the government. See Abourezk, 592 F. Supp. at 884-85. We conclude that it did so on an inadequate record. We therefore remand for a fuller airing of the activity/mere entry question.

The language of the statute, as the Dissent acknowledges, supports the plaintiffs' interpretation on this issue. Dissent at 9. The provision does not say "persons whose presence in this country would be prejudicial to the interests of the United States are barred from entry." Rather, subsection (27) makes ineligible for a visa those aliens who "seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial" to United States interests. The specific reference to activities would be superfluous, indeed, misleading, if entry or presence alone could justify exclusion. A familiar canon of statutory construction cautions the court to avoid interpreting a statute in such a way as to make part of it meaningless. See 2A N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION 46.06 (4th ed. 1984). This basic guide and the plain thrust of the language of subsection (27), we emphasize, weigh heavily against the government's reading.

The terms Congress employed in other subsections on exclusion are also consistent with plaintiffs' interpretation. Section 1182(a) sets out thirty-three separate categories of excludable aliens; this enumeration demonstrates that Congress could and did clearly distinguish status-based categories from conduct-based categories. See supra at 3. Congress' undoubted ability to draft categories based only on status, when that is the legislature's intention, strengthens the inference that the words "to engage in activities" contained in subsection (27) were not put there inadvertently.

The legislative history on this issue, however, is not a prop upon which plaintiffs can rely. It is terse and tugs in more than one direction. The language of section 1182(a)(27) of the 1952 Immigration Act was taken almost verbatim from section 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006 (repealed 1952). The Senate Reports on section 22 seem to assume that both existing law and the proposed section allowed exclusion when the very entry of the alien would be prejudicial to the public interest. *fn9 The Conference Committee Report, on the other hand, implies that existing law and section 22 authorize exclusion only on the basis of activities. *fn10

Given the inconclusive state of the legislative history, *fn11 evidence of congressional acquiescence (or the lack thereof) in an administrative construction of the statutory language during the thirty-four years since the current act was passed could be telling. Information about such acquiescence, or the absence of it, would rank as a significant indicator of the legislature's will. See Zemel v. Rusk, 381 U.S. 1, 8-12, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965). *fn12 Unfortunately, evidence on this point was thin when the district court determined to accept the State Department's interpretation, for that court had stayed discovery pending the government's motion to dismiss. See Abourezk v. Reagan, No. 83-3739 (D.D.C. Feb. 8, 1984). The only evidence of administrative practice now in the record consists of conflicting assertions in the affidavits of past and present State Department officials and a sparse collection of illustrations. Compare Affidavit of Louis P. Goelz, reprinted in Joint Appendix at 159-60 (present Deputy Assistant Secretary of State), with Affidavit of Leonard C. Meeker, reprinted in Joint Appendix at 252 (former Legal Adviser to the Department of State).

The illustrations -- advanced by the State Department as indicative of an administrative practice of excluding aliens under subsection (27) based on entry or presence alone -- include descriptions of three actual visa denials and four examples listed in the State Department Manual. While these illustrations provide some support for the government's position, they are inadequate to enable a court to determine reliably the nature of the general administrative practice under subsection (27).

The Manual offers the following examples of aliens whose visa applications might properly be denied under (27): an alien who might engage in conspiratorial activity against the United States while in the country; an alien who is known to be a member of a terrorist organization; an alien who is associated with a criminal organization; and an alien official who engaged in physical brutality while in power or was associated with a regime that did so. See Brief of Plaintiffs-Appellants at 37 (citing FOREIGN AFFAIRS MANUAL, Pt. II, 41.91(a) (27), reprinted in 6 C. GORDON & H. ROSENFELD, IMMIGRATION LAW AND PROCEDURE 32-214.18 (1985)). Although the first three examples may be explained in terms of the aliens' probable activity in the United States, the last example, the government argues, embodies the State Department's longstanding view that exclusion under subsection (27) is appropriate when the mere entry of the alien would prejudice foreign policy objectives. In that example, the government is concerned, not about the possibility that the official might engage in physical brutality while in the United States, but about the impact of the very admission of such a person on our foreign policy interests. See Brief for the Appellees at 56 n.42. This fourth example in the Manual may represent an open assertion of the power to exclude under subsection (27) on the basis of entry along; such an assertion of authority may warrant the implication of an executive policy, even if the policy is only infrequently applied, and may contribute to a showing of congressional acquiescence in that policy. See Haig v. Agee, 453 U.S. 280, 303, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981).

The State Department also offers three instances of actual visa denials that were allegedly based on entry rather than activity and were reported to various members of Congress and committees. In two of the cases the reasons for denial included references to the alien's anticipated activities in the United States. See Second Affidavit of Louis P. Goelz, reprinted in Joint Appendix at 306, 308. *fn13 In the third case, however, the State Department appears to have applied the fourth example in the Manual: in that case, former Nazi SS officer Otto Skorzeny was denied a visa under subsection (27) for foreign policy reasons. See id. at 306. Thus, there seems to be at least one instance, of which Congress was apprised, in which the State Department actually applied the interpretation of subsection (27) that the government presses in this litigation.

This meager evidence does not demonstrate the kind of consistent administrative interpretation necessary to give rise to a presumption of congressional acquiescence. See Kent v. Dulles, 357 U.S. 116, 128, 2 L. Ed. 2d 1204, 78 S. Ct. 1113 (1958) (holding that "scattered rulings . . . not consistently of one pattern" are an insufficient basis on which to impute congressional intent). The examples cited by the State Department, in conjunction with the inconclusive legislative history, however, do cast some doubt on the plaintiffs' interpretation, an interpretation that otherwise seems indicated by the language of the statute. In order to weigh the relative persuasiveness of the two interpretations, the district court needed more information. *fn14 It should have asked the government to come forward with further examples of the exercise or assertion of power to exclude under subsection (27) on the basis of presence alone; and, in fairness, it should have allowed the plaintiffs sufficient discovery to contest those examples and provide counter-examples. *fn15

Without thus developing a more substantial record, the district court could not make a secure finding concerning the nature of the administrative practice under subsection (27). And without such a finding, given the inconclusive state of the legislative history and the strength of the plaintiffs' textual argument, the district court's decision in favor of the government's interpretation was premature. We therefore set aside the district court's holding on this issue and remand for the fuller proceedings appropriate prior to resolution of this question of statutory interpretation.

The plaintiffs also contend that the government's interpretation of subsection (27) violates the statute because it effectively swallows up subsection (28) and thereby nullifies the restrictions placed by the McGovern Amendment on the use of the latter subsection. We find this argument persuasive. The Executive may not use subsection (27) to evade the limitations Congress appended to subsection (28).

The McGovern Amendment calls upon the Secretary of State to recommend a waiver of ineligibility, and thereby open the way for admission of an alien who belongs to a subsection (28) organization, unless the Secretary certifies to the Congress that admission of the alien would "be contrary to the security interests of the United States . . . ." 22 U.S.C. § 2691(a) (1982). The district judge in this case found that prejudice to foreign policy did not qualify as a "security interest" within the meaning of the McGovern Amendment. See Abourezk, 592 F. Supp. at 855; accord Allende v. Shultz, 605 F. Supp. 1220 (D. Mass. 1985). The State Department itself appears to have reached the same conclusion. See Brief of Plaintiffs-Appellants, app. B at 2 (letter from Alvin Paul Drischler, Acting Assistant Secretary of State, to George Bush, President of the United States ...


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