therefore DENIED on plaintiffs' claim that the Secretary interfered with or usurped the consular officials' role in deciding whether to grant the visa requests of the excluded members.
Plaintiffs finally argue that the decision to deny visas to the excluded members was improper because it was not supported by a "facially legitimate and bona fide reason" as required by Kleindienst. Defendants argue that such a reason is present in this case. Before the court addresses the dispute whether such a reason is present in this case, however, it must first determine the extent of its jurisdiction to look behind the visa denials, a determination which is intimately connected with the determination discussed above whether a consular official made the decision to deny the visas or whether that decision was somehow "usurped" by the Secretary.
It is well established that the decision of a consular official to deny an alien's request for a visa, even if erroneous, is immune from judicial review. See, for example, Li Hing v Levin, 800 F.2d 970, 971 (9th Cir 1986); Ventura-Escamilla v INS, 647 F.2d 28 (9th Cir 1980); see also Kleindienst, 408 U.S. at 766 (recognizing Congress' plenary power to excludes aliens from the United States without, judicial intervention). Thus, if the decision to deny the visa requests of the excluded members was made by a consular officer, the court lacks jurisdiction to review or alter that decision in any way.
The harm which confers standing upon plaintiffs in this case is the denial of an opportunity to associate with the excluded members. If the court is prohibited from reviewing the exclusion decision, it will also lose its ability to redress plaintiff's harm. Since a cognizable harm gives plaintiffs standing to sue only when the relief sought will redress that harm, see generally Allen v Wright, 468 U.S. 737, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984), it follows that the court's inability to review the visa denials will terminate plaintiffs' standing to bring the instant action. See Allen, 468 U.S. at 760 (absent a showing of a specific, redressable injury, "a federal court * * * is not the proper forum to press general complaints about the way in which the government goes about its business"). In other words, if the court concludes that a consular official made the decision to deny the excluded members' visa requests, it will lose subject matter jurisdiction over all of the other challenges which plaintiffs have brought to the manner in which Cuban visa applications are allegedly processed by defendants, including the challenge to the Secretary's alleged requirement that consular officials seek security advisory opinions in every case. Accord Garcia v Baker, 765 F. Supp. 426, 427 (ND Ill 1990) (court lacked jurisdiction to issue a declaration that consular official misinterpreted law and violated regulations by not seeking a security advisory opinion before denying a visa application; the "suit began and ended with the consular official's denial of [the] immigrant visa application").
If the court concludes that the visas were denied by the Secretary, however, it will be faced with a much different case. As noted above, both parties assume that Kleindienst gives the court the power to review an exclusion decision by the Secretary to determine whether it is supported by a "facially legitimate and bona fide reason." The court is not so certain that the Kleindienst test applies to the instant case.
Kleindienst and the cases which have followed it, such as Adams v Baker, 909 F.2d 643 (1st Cir 1990), Allende v Shultz, 845 F.2d 1111 (1st Cir 1988) and Abourezk v Reagan, 251 U.S. App. D.C. 355, 785 F.2d 1043 (DC Cir 1986), aff'd, 484 U.S. 1, 98 L. Ed. 2d 1, 108 S. Ct. 252 (1987), have all been concerned with exclusion decisions made under 8 USC §§ 1182(a) and (d). Section 1182(a) lists several classes of aliens who are excludable and ineligible for admission into the United States. Section 1182(d), however, significantly limits these bases for exclusion by allowing most of them to be waived by the Attorney General upon recommendation of the Secretary or a consular officer. As a practical matter, then, § 1182(d) makes most exclusion decisions under § 1182(a) a matter of the Attorney General's discretion. Section 1182(a) thus represents a significant delegation by Congress to the Executive of Congress' power over immigration.
The plaintiffs in Kleindienst challenged the Attorney General's exercise of that power. In that case Ernest Mandel, a Belgian journalist and Marxist theoretician, was excluded under former § 1182(a)(28),
which among others excluded aliens who "advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship." 408 U.S. at 757. While the Secretary of State recommended to the Attorney General that this exclusion be waived, the Attorney General declined to do so after the INS reported to him that Mandel had in previous trips to the United States abused "the opportunities afforded him to express his views in this country." Id at 759.
The plaintiffs, United States citizens who had invited Mandel to this country, challenged the exclusion on the grounds that it violated their associational rights under the First Amendment. After concluding that plaintiffs had standing to challenge Mandel's exclusion, the Court turned to the question whether an exclusion decision was amenable to judicial review. Noting that "over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens," id at 766, the court observed that Congress could have enacted a blanket prohibition against entry of all aliens described in § 1182(a)(28) and that plaintiffs' First Amendment rights to associate with such aliens could not have overridden that prohibition. Id at 767.
Because Congress had not issued such a blanket prohibition in § 1182(a), however, but rather had provided for waiver under § 1182(d), the court concluded that a limited degree of judicial review was appropriate. The court held that "plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [§ 1182(a)(28)], Congress has delegated conditional exercise of this power to the Executive. * * * when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion * * *." Id at 769-70.
Kleindienst thus based its "facially legitimate and bona fide reason" test on the conclusion that the Attorney General's decision to waive or not waive a ground for exclusion set forth in the INA was the exercise of a delegated Congressional power. Cases directly applying the Kleindienst test in the context of challenged waiver decisions, or citing it as authority for judicial review of exclusion decisions in other contexts, have accordingly conducted their review by comparing the reasons for exclusion put forth by the government--and the evidence supporting those reasons--to the language of the INA. These cases, in other words, have sought to determine whether the Executive, in exercising its Congressionally delegated authority to exclude aliens, has exceeded the scope of that authority.
In Adams, for example, the plaintiffs argued that Gerry Adams, the leader of Sinn Fein, had been deemed excludable and denied a waiver under § 1182(a) merely because of his membership in Sinn Fein, in violation of the 1988 Act and the McGovern Amendment. 909 F.2d at 648. The court rejected this argument and upheld the Attorney General's decision to deny a waiver after it found that the Attorney General's decision was based on evidence that Adams was involved in terrorist violence and not merely on the fact that Adams was a member of Sinn Fein. Id at 648-49.
Similarly, in Abourezk the plaintiffs argued that several foreign officials and teachers had been improperly deemed excludable under § 1182(a)(27).
785 F.2d at 1048-49. The court conducted its review of the Attorney General's decision by analyzing the Secretary's construction of subsection (27) under the test put forth in Chevron v Natural Resources Defense Council, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), and concluded that more evidence was required before the statutory interpretation issue could be fully addressed. Id at 1053-56.
The Adams and Abourezk courts thus reviewed exclusion decisions made under § 1182(a), which the Kleindienst court characterized as a delegation of power to the executive. Because this delegation of power was conditioned by the plain language of the INA, the Adams and Abourezk courts were able to judge the exercise of delegated power by the Executive against limits which Congress itself had placed on that exercise, such as those found in the 1988 Act or the McGovern Amendment. The text of the INA itself, in other words, provided the Adams and Abourezk courts with the standard against which to judge the challenged Executive action for legality. See also Etuk v Slattery, 936 F.2d 1433, 1443 (2d Cir 1991) (noting that "while in general the Executive Branch is permitted to exercise broad discretion on immigration matters, Congress can impose limits on the exercise of that discretion" and citing Kleindienst as authority for existence of jurisdiction to review INS policies alleged to be contrary to provisions of the INA).
The current exclusion, which was made under § 1182(f), presents a much different case. The delegation of power to the President in § 1182(f) is much broader than is the delegation of power to the Attorney General in § 1182(a). Moreover, as noted above, Congress in subsequent amendments to the INA has taken pains not to limit the discretion of the President to exclude aliens by proclamation under § 1182(f). Given both the extremely broad grant of discretion to the President in § 1182(f) and the President's own inherent powers in this area, the court finds it likely that this case is distinguishable from Kleindienst, Adams, Abourezk and other cases which have applied Kleindienst's "facially legitimate and bona fide reason" test to decisions by the Executive concerning immigration.
The court further concludes that review of the Secretary's decision to deny the visa requests of the excluded members--if indeed the Secretary made that decision--is likely precluded by the political question doctrine.
Courts have long recognized that many, but not all, questions concerning foreign relations are nonjusticiable "political questions." Thus, the Court in Baker v Carr observed that when faced with a question arising in the field of foreign relations courts should conduct "a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action" in order to determine whether that question is justiciable. 369 U.S. 186, 211-12, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). In Baker, the Court set out a six-factor test designed to expose the fundamental attributes of the political question doctrine, concluding as follows:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable or manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.