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April 22, 1996

WARREN CHRISTOPHER, Secretary of State, OFFICE OF CUBAN AFFAIRS, a division of the United States Department of State, MARC SUSSER, Desk Officer, Office of Cuban Affairs, DENNIS HAYS, Coordinator, Office of Cuban Affairs and KARL WAGNER, Vice Consul, U.S. Interests Section of the Department of State, Havana, Cuba, Defendants.

The opinion of the court was delivered by: WALKER

 In August 1993, members of the Cuban musical group Grupo Mezcla requested visas which would allow them to tour the United States. Only three of the eight band members were granted visas, and the group's tour was cancelled. Plaintiffs now challenge this decision.

 Plaintiffs Accion Latina, Pastors for Peace and Global Exchange are the non-profit organizations that sponsored Grupo Mezcla's United States tour. Plaintiff Encuentro Del Canto Popular is an annual festival held in San Francisco at which Grupo Mezcla was scheduled to perform. Named as defendants are Secretary of State Warren Christopher, the Office of Cuban Affairs, Marc Susser and Dennis Hays (employees of the Office of Cuban Affairs) and Karl Wagner, Vice Consul at the United States Interests Section of the State Department in Havana.


 On August 23, 1993, the Immigration and Naturalization Service approved a petition for a "P" nonimmigrant visa for Grupo Mezcla; this petition had been filed by plaintiffs Encuentro Del Canto Popular and Accion Latina. The approved visa petition was then sent to the United States Interests Section of the State Department in Havana, Cuba, for review. On September 30, 1993, members of Grupo Mezcla were interviewed in Havana by defendant Wagner, a Vice Consul in the U.S. Interests Section. At the time of the interview, Wagner allegedly told the Grupo Mezcla members that he did not anticipate any problem with their applications.

 On October 8, 1983, the U.S. Interests Section in Havana allegedly notified the State Department that the members of Grupo Mezcla were ineligible for admission under 8 USC § 1182(f) and Presidential Proclamation 5377. Title 8 USC § 1182(f) provides:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

 Presidential Proclamation 5377, which was signed by President Reagan on October 4, 1985, and which was based on the authority vested in him "as President by the Constitution and laws of the United States of America, including section 212(f) of the Immigration and Nationality Act of 1952, as amended [ 8 USC § 1182(f)]," provides in pertinent part:

entry of the following classes of Cuban nationals as nonimmigrants is hereby suspended: * * * (b) individuals who, notwithstanding the type of passport that they hold, are considered by the Secretary of State or his designee to be officers or employees of the Government of Cuba or the Communist Party of Cuba."

 See 50 Fed Reg 41329. Defendants now assert that consular officials at the U.S. Interests Section in Havana independently concluded that the members of Grupo Mezcla were ineligible for visas under Proclamation 5377 and requested a security advisory opinion from the State Department only after reaching their own conclusion on the applicability of that Proclamation.

 On November 2, 1993, the State Department sent a telegram to the U.S. Interests Section allegedly "concurring" in the Consular Officers determination that visa applications for five of the eight members should be denied under § 1182(f). This telegram also stated that the State Department had no objection to the issuance of visas to the remaining three members because, although they were considered by the Secretary to be employees of the Cuban government, the Secretary had also determined that their performance in the United States would not affect United States interests.

 Plaintiffs filed the instant action on November 30, 1993, claiming that defendants, by denying visas to the group's members, exceeded the authority granted to them by statute and impinged on plaintiffs' First Amendment rights to freedom of association, speech and religion. Defendants now move for summary judgment, arguing that they acted within the scope of their authority and that the exclusion of certain members of Grupo Mezcla was made in accordance with valid law. For the reasons stated below, defendants' motion is GRANTED IN PART and DENIED IN PART.


 Summary judgment is a method for the prompt disposition of an action in which there is no genuine issue of material fact. FRCP 56(c) provides for the granting of summary judgment where the moving party is entitled to judgment as a matter of law. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp v Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has met that burden by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, FRCP 56(e) shifts to the nonmoving party the burden of presenting specific facts showing that such contradiction is possible. British Airways Bd v Boeing Co, 585 F.2d 946, 950-52 (9th Cir 1978), cert denied, 440 U.S. 981, 60 L. Ed. 2d 241, 99 S. Ct. 1790 (1979).

 A party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings. Rather, responses, either by affidavits or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial. A mere "scintilla" of evidence supporting the nonmoving party's position will not suffice. There must be enough of a showing that the jury could reasonably find for the nonmoving party. Anderson v Liberty Lobby, Inc, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The question on summary judgment motions is whether reasonable minds could differ as to the import of the evidence. Eisenberg v Insurance Co of North America, 815 F.2d 1285, 1288 (9th Cir 1987). "If the evidence is merely colorable * * * or is not significantly probative, summary judgment may be granted." Id at 1288. The nonmoving party's evidence is to be taken as true and all inferences are to be drawn in the light most favorable to the nonmoving party. Eisenberg, 815 F.2d at 1289.


 Plaintiffs' complaint attacks both the substance of defendants' decision to exclude certain members of Grupo Mezcla and the process through which that decision was reached. Plaintiffs first argue that defendants' exclusion decision was erroneous as a matter of substantive immigration law because it rested on Proclamation 5337, which plaintiffs claim has been invalidated or superseded by two pieces of subsequent legislation: (1) § 901 of the Foreign Relations Authorization Act for Fiscal Years 1988 and 1989 (the 1988 Act) and (2) 8 USC § 1182(a)(3)(C), which was added to the INA in 1990. Plaintiffs at times refer to 8 USC § 1182(f) as being invalid as well, although they provide no authority or argument for this rather startling assertion. The court therefore construes all of plaintiffs' assertions that § 1182(f) is invalid as an alternative phrasing of their argument that Proclamation 5377 is invalid.

 Plaintiffs also claim that Proclamation 5377 is invalid on its face because it contains no expiration date. Because Proclamation 5377 is allegedly invalid, plaintiffs argue that the exclusions which were based on it are necessarily invalid as well.

 Plaintiffs argue, as well, that even if Proclamation 5377 remains valid authority for defendants' exclusion decision, the procedure through which defendants reached that decision was defective. First, plaintiffs claim that defendants did not provide a facially legitimate reason for their exclusion decision. Second, plaintiffs claim that defendants violated 8 USC §§ 1103(a), 1104(a), 1201(a) and 1202 by allowing the Secretary of State to "usurp" the authority of the consular officials in Cuba by requiring those officials to adopt a presumption that all professional entertainers are employees of the Cuban Government and by requiring those officials to seek a "security advisory opinion" from the Secretary before making their exclusion decisions. Finally, plaintiffs claim that defendants purposely waited until the last minute to deny the visas, thus preventing any "meaningful appeal" or correction of application and thereby chilling plaintiff's first amendment rights.

 Although defendants have moved for summary judgment on the entire complaint, they have largely limited the arguments to asserting (1) Proclamation 5377 remains valid law and (2) defendants had a facially legitimate and bona fide reason for their decision to deny the visa requests of the excluded members of Grupo Mezcla. Defendants first argue that 8 USC § 1182(a)(3)(C) by its terms does not apply to this case. Defendants next argue that § 901 of the 1988 Act in no way invalidated or superseded proclamation 5377. Defendants finally argue that they have provided a facially valid and bona fide reason for excluding members of Grupo Mezcla under Proclamation 5377. Because they have provided such a reason, and because they acted pursuant to valid law, defendants claim that their exclusion decision was neither "arbitrary and capricious" nor in excess of their statutory authority, thus entitling them to summary judgment. Defendants have not explicitly addressed plaintiffs' claim that the Secretary has illegally "usurped" the authority of consular officials by requiring them to seek security advisory opinions in all cases implicating Proclamation 5377, nor have they explicitly addressed plaintiffs' claim that the Secretary "chilled" plaintiff's first amendment rights by unduly delaying the visa decision in this case.



 The first of plaintiffs' two broad arguments is that Proclamation 5377 has been superseded both by amended § 1182(a)(3)(C) and by the 1988 Act. Defendants are correct in their assertion that this argument is meritless to the extent it relies on 8 USC § 1182(a)(3)(C).

 Congress added § 1182(a)(3)(C) to the INA in 1990. Clause (i) of § 1182(a)(3)(C) added a ground for the exclusion of certain aliens by the Secretary, specifying that "an alien whose entry or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is excludable." This additional ground for exclusion was qualified in clause (iii) of § 1182(a)(3)(C), which provides "an alien * * * shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States" (emphasis added). Plaintiffs now argue that clause (iii) of § 1182(a)(3)(C) prevented defendants from excluding the excluded members due solely to their association with the Cuban government.

 Plaintiffs' argument is meritless. As noted above, the excluded members of Grupo Mezcla were excluded under Proclamation 5377, which President Reagan issued based both on his constitutionally-granted authority over foreign affairs and on his authority over immigration granted by Congress in 8 USC § 1182(f). The excluded members, in other words, were denied visas based on the President's authority under the constitution and 8 USC § 1182(f), not based on the Secretary's authority under § 1182(a)(3)(C)(i). Since § 1182(a)(3)(C)(iii) merely limits exclusions entered pursuant to the Secretary's authority under § 1182(a)(3)(C)(i), it has no bearing on this case.

 Plaintiffs' arguments otherwise are unavailing, as is their contention that § 1182(a)(3)(C)(iii) embodies a Congressional policy which extends the limitations of that clause to the rest of the INA and to the President's constitutional powers. The plain language of § 1182(a)(3)(C)(iii) explicitly limits its application to § 1182(a)(3)(C). The court must look to the plain language of a statute before attempting to divine the Congressional "intent" behind that statute. See United States v Ron Pair Enterprises, Inc, 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) (quoting Caminetti v United States, 242 U.S. 470, 485, 61 L. Ed. 442, 37 S. Ct. 192 (1917)) ("where * * * the statute's language is plain, 'the sole function of the courts is to enforce it according to its terms'"). Because the plain language of § 1182(a)(3)(C)(iii) explicitly limits its applicability to exclusions ...

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