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 in summary judgment motions is whether reasonable minds could differ as to the import of the evidence. Eisenberg v Insurance Co of North Am, 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.
As the court noted in its April 22, 1996, order, the decision of a consular officer to deny an alien's request for a visa is immune from judicial review. See Li Hing of Hong Kong v Levin, 800 F.2d 970, 971 (9th Cir 1986); Ventura-Escamilla v INS, 647 F.2d 28, 30 (9th Cir 1980). Defendants argue that Karl Wagner, the consular officer in Cuba assigned to the visa applications of Grupo Mezcla, made the decision to deny those visas without any interference from the Secretary of State and that the court therefore lacks jurisdiction to review that decision. In support of this argument, defendants have submitted the declaration of Mr. Wagner, in which he declares as follows:
4. On October 1, 1993, eight Cuban musicians presented nonimmigrant visa applications. I reviewed their applications, and found them to be ineligible for entry into the United States pursuant to section 212(f) of the INA and Proclamation 5377. I indicated my finding of ineligibility on the eight nonimmigrant visa application forms, and designated them as "refusals."