The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 1999 Decided December 3, 1999
No. 98-5495
Roberto Saavedra Bruno, et al.,
Appellants
v.
Madeleine K. Albright, Secretary of State, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(98cv00252)
Jonathan P. Graham argued the cause for appellants. With
him on the briefs was Max Stier.
Meredith Manning, Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Wilma A.
Lewis, U.S. Attorney, R. Craig Lawrence, Assistant U.S.
Attorney, David W. Ogden, Acting Assistant Attorney Gener-
al, U.S. Department of Justice, and Alison Marie Igoe,
Attorney.
Before: Sentelle, Randolph, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: This is an appeal from the
judgment of the district court dismissing an action for judicial
review of the decision of the American Consulate in Panama
refusing to issue a visa to Roberto Saavedra Bruno, and the
decision of the American Consulate in La Paz, Bolivia, revok-
ing another visa Saavedra held. Both consular decisions
rested on information, not revealed to Saavedra, that he had
engaged in illicit drug trafficking. Saavedra unequivocally
denies the charge and complains that he has never had an
opportunity to confront and counter the evidence relied upon
by the consular officers. He insists that the Administrative
Procedure Act, and the grant of jurisdiction over cases aris-
ing under federal law, entitles him to put the government to
its proof.
I
Saavedra is a Bolivian national. He moved to Washington,
D.C. with his family in 1993. At the time, he held an F-1 visa
(student) and a B-1/B-2 visa (temporary visitor for business
or pleasure) set to expire in May 2002. Shortly after settling
in Washington, Saavedra and his family moved again, to Coral
Gables, Florida. There he formed a corporation--Musicanga,
Inc.--for the purpose of recording and promoting Latin
American music. Saucedo Wichtendahl, a United States citi-
zen, was hired as the company's artistic director and interim
manager.
In May 1995, Saavedra's company filed a petition for a
nonimmigrant worker with the INS, seeking to have Saave-
dra classified as a managerial employee qualified for an L-1
visa. The INS approved the classification for a one-year
period, until May 17, 1996. A month before this was to
expire, the company filed a petition to extend the classifica-
tion for another year, which the INS granted. Saavedra then
traveled abroad to seek the renewal of his visa, as is required,
presenting himself to the American consul in Panama City on
May 16, 1996. See 8 U.S.C. s 1201(a).
Upon finding Saavedra listed in the State Department's
computer "lookout" system, the American consul in Panama
City denied his visa application. Saavedra's name had been
entered by the U.S. Consul General in Bolivia, who had
received classified reports from federal agencies that Saave-
dra had been involved in narcotics trafficking. Saavedra
quickly returned to the United States. He was detained
briefly at the border but allowed to enter after an immigra-
tion hearing had been scheduled. At the hearing the follow-
ing week, the immigration officer told him to leave the
country and to resolve the matter with the United States
Embassy in Bolivia. He therefore departed on June 11, 1996.
In the meantime, Saavedra's lawyer provided information to
the Consul General in Bolivia, trying to persuade her of his
client's eligibility for a visa. The Consul General reviewed
this information along with the classified reports and made a
formal determination that Saavedra was ineligible to be ad-
mitted to the United States under s 212 of the Immigration
and Nationality Act ("INA"), 8 U.S.C. s 1182(a)(2)(C), be-
cause there was reason to believe that he had been an illicit
trafficker of controlled substances, or had knowingly assisted
and abetted, or conspired and colluded with, others in the
illicit trafficking of controlled substances. The Consul Gener-
al sent a letter to Saavedra at his Florida address revoking
his B-1/B-2 visa.
Thereafter, the State Department issued an advisory opin-
ion supporting the Consul General's finding that Saavedra
was ineligible for a visa under s 212(a)(2)(C) of the INA.
The State Department issued a Certificate of Revocation on
August 1, 1996, providing that the revocation of the B-1/B-2
visa would be effective as of Saavedra's next departure from
the United States. Saavedra wrote to the Consul General
requesting her and the Department of State to recommend
that the Attorney General grant him a waiver pursuant to 8
U.S.C. s 1182(d)(3), which would allow Saavedra to return
temporarily to the United States. No action was taken on
the waiver request until April 1998 when the State Depart-
ment notified Saavedra that it had been denied.
In January 1998, Saavedra, his company, and its officer,
Wichtendahl, filed suit in the district court seeking review
under the Administrative Procedure Act ("APA"), 5 U.S.C.
s 701 et seq., of the revocation of his B-1/B-2 visa and the
refusal to renew his L-1 visa. The complaint also challenged
the State Department's failure to act on the request for a
waiver of inadmissibility under s 212(d)(3) of the INA, 8
U.S.C. s 1182(d)(3). The district court dismissed the com-
plaint, finding that the doctrine of consular nonreviewability
barred the first two claims and that the third claim was moot.
Bruno v. Albright, 20 F. Supp. 2d 51 (D.D.C. 1998).
II
The main question is whether, under the Administrative
Procedure Act, an alien is entitled to judicial review of a
consul's denial of his application for a visa, and of the
revocation of a visa he already held. To put the question in
perspective, we must begin with some history.
A
After a century of unimpeded alien migration to the United
States, Congress in 1875 established grounds upon which
aliens might be refused entry, and, seven years later, enacted
the first general immigration statute. See Act of Mar. 3,
1875, ch. 141, 18 Stat. 477 (barring prostitutes and convicts);
Act of Aug. 3, 1882, ch. 376, 22 Stat. 214. Further legislation
soon followed, including a general revision of the immigration
laws in 1903, enlarging the classes of aliens ineligible for
entry, and another general revision in 1917. See Act of Mar.
3, 1903, ch. 1012, 32 Stat. 1213; Act of Feb. 5, 1917, ch. 29, 39
Stat. 874. In the same year, 1917, the Departments of State
and Labor issued a Joint Order to Diplomatic, Consular and
Immigration Officers requiring for the first time that aliens
coming to the United States have visas issued by an Ameri-
can consulate. See generally 3 Green Haywood Hackworth,
Digest of International Law 741 (1942); Leon Wildes, Re-
view of Visa Denials: The American Consul as 20th Century
Absolute Monarch, 26 San Diego L. Rev. 887, 892 (1989). In
the next year, while the country was at war, the President
designated the Secretary of State as the official in charge of
granting permission to aliens to enter. See 3 Hackworth,
supra, at 741. In implementing this system, American con-
suls in foreign countries simply advised aliens of the various
exclusionary provisions of the immigration laws, leaving the
determination of excludability to immigration officers at the
port of entry. See Wildes, supra, at 892. This resulted in
large numbers of foreigners making the arduous trip to the
United States only to be detained at the border and then
excluded. See 3 Hackworth, supra, at 741-42. To cure this
problem, Congress passed the Act of 1924 (ch. 190, 43 Stat.
153), transferring the responsibility for determining the ad-
missibility of aliens from the Secretary of State to consular
officers. See 3 Hackworth, supra, at 742.
The Immigration and Nationality Act of 1952, 8 U.S.C.
s 1101 et seq., now governs visa processing. The INA con-
fers upon consular officers exclusive authority to review
applications for visas, precluding even the Secretary of State
from controlling their determinations. See 8 U.S.C.
ss 1104(a), 1201(a). The powers afforded to consular officers
include, in particular, the granting, denying and revoking of
immigrant and non-immigrant visas. See 8 U.S.C. s 1201(a),
(i). Consular officers exercise this authority subject to the
eligibility requirements in the statute and corresponding reg-
ulations. 22 C.F.R. ss 41.121-.122.
Obtaining a visa from an American consul has never guar-
anteed an alien's entry into the United States. A visa merely
gives the alien permission to arrive at a port of entry and
have an immigration officer independently examine the alien's
eligibility for admission. See 8 U.S.C. s 1201(h). See gener-
ally James A.R. Nafziger, Review of Visa Denials by Consu-
lar Officers, 66 Wash. L. Rev. 1, 14 (1991). It is the immigra-
tion officer's responsibility to make certain that the alien does
not fall within any of the statutory categories barring admis-
sion. Among the categories are past criminal behavior. See
8 U.S.C. s 1182. Since 1952, the law has specifically excluded
aliens engaged in the illicit drug trade. See 5 Charles
Gordon et al., Immigration Law and Procedure s 63.03[1][a]
(1997).
The following provision, barring drug traffickers, led the
consular officer to determine that Saavedra was ineligible for
a visa: "any alien who the consular or immigration officer
knows or has reason to believe is or has been an illicit
trafficker in any such controlled substance or is or has been a
knowing assister, abettor, conspirator, or colluder with oth-
ers" in the illicit trafficking in drugs is ineligible for entry. 8
U.S.C. s 1182 (a)(2)(C). In order to exclude an alien on this
basis, the consular officer "must have more than a mere
suspicion--there must exist a probability, supported by evi-
dence, that the alien is or has been engaged in trafficking." 9
U.S. Department of State, Foreign Affairs Manual s 40.23
(1999). Consular officers possessing such evidence enter the
alien's name in the worldwide visa lookout system as "P2C",
possible narcotics trafficker. When visa denials are based on
an applicant's listing in the lookout system, the consular
officer informs the applicant that the denial rested on a
finding of ineligibility, but the officer is not required to
disclose the existence or details of the INS lookout entry.
See id.
B
Saavedra's argument against the district court's dismissal
of his action proceeds as follows: under the Administrative
Procedure Act, judicial review of agency action is the norm,
preclusion of review the exception; consular discretion in
determining whether to deny or revoke a visa is not unbound-
ed; Congress has not expressly barred judicial review of visa
decisions; no statute strips the federal courts of jurisdiction
over such cases; and this court's decision in Abourezk v.
Reagan, 785 F.2d 1043, 1049-52 (D.C. Cir. 1986), stands for
the proposition that consular visa determinations are subject
to judicial scrutiny.
Saavedra's general description of the APA is quite correct.
Numerous opinions, of the Supreme Court and of the lower
federal courts, speak in terms of the APA's "presumption" of
judicial review of agency action. See, e.g., Lincoln v. Vigil,
508 U.S. 182, 190 (1993); Abbott Lab. v. Gardner, 387 U.S.
136, 140 (1967); Dixie Fuel Co. v. Commissioner of Social
Security, 171 F.3d 1052, 1057 (6th Cir. 1999); Ball, Ball &
Brosamer, Inc. v. Reich, 24 F.3d 1147, 1450 (D.C. Cir. 1994).
The presumption is said to derive from APA s 702: a "person
suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action ... is entitled to
judicial review thereof," 5 U.S.C. s 702. There are two
notable qualifications. The validity of agency action may not
be tested in court if "statutes preclude judicial review" or if
"agency action is committed to agency discretion by law." 5
U.S.C. s 701(a)(1)-(2).
Sometimes it is suggested that s 701(a)(1) and (2) are the
only exceptions to review under s 702. See Bennett v. Spear,
520 U.S. 154, 175 (1997); Florida Power & Light Co. v. EPA,
145 F.3d 1414, 1420 (D.C. Cir. 1998); Comsat Corp. v. FCC,
114 F.3d 223, 226 (D.C. Cir. 1997). The suggestion is, we
think, not entirely accurate. As revised in 1976, s 702 itself
contains another qualifying clause. It provides that "Nothing
herein"--which includes the portion of s 702 from which the
presumption of reviewability is derived--"affects other limita-
tions on judicial review or the power or duty of the court to
dismiss any action or deny relief on any other appropriate
legal or equitable ground," 5 U.S.C. s 702(1). The House
Report accompanying this amendment described these "other
limitations" as including "express or implied preclusion of
judicial review." H.R. Rep. No. 94-1656, at 12 (1976).1 The
__________
1 For the most part, the Department of Justice supported the
amendment of APA s 702, the main purpose of which was to
eliminate the defense of sovereign immunity of the United States in
actions in federal court seeking relief other than money damages.
Then-Assistant Attorney General Antonin Scalia told the Senate
subcommittee that "one of the very premises of the proposal" was
that actions seeking judicial review could still be disposed of on
grounds such as "lack of standing; lack of ripeness; availability of
an alternative remedy in another court; express or implied statuto-
ry preclusion of judicial review; commission of the matter by law to
agency discretion; privileged nature of the defendant's conduct;
Administrative Conference of the United States, which had
proposed the specific language enacted as s 702(1), explained
that the courts would still refuse "to decide issues about
foreign affairs, military policy and other subjects inappropri-
ate for judicial action." 1 Recommendations and Reports of
the Administrative Conference 191, 225. On the same sub-
ject, the Administrative Conference pointed out that "much of
the law of unreviewability consists of marking out areas in
which legislative action or traditional practice indicate that
courts are unqualified or that issues are inappropriate for
judicial determination." Id.
Whether analyzed in terms of s 702(1), or in terms of
s 701(a)(1), the conclusion is the same--the district court
rightly held that it could not entertain Saavedra's lawsuit.
The overriding consideration is the nature of consular visa
decisions.2 To the history just discussed, more must be
added.
In prescribing the conditions for allowing aliens to enter
the country, Congress acted in accordance with the ancient
principle of international law that a nation state has the
inherent right to exclude or admit foreigners and to prescribe
applicable terms and conditions.3 This firmly-established
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failure to exhaust administrative remedies; discretionary power to
refuse equitable relief; and the 'political question' doctrine." H.R.
Rep. No. 94-1656, supra, Exh. C, at 26-27.
2 Our discussion in this part applies both to the revocation of
Saavedra's B-1/B-2 visa and the denial of his L-1 visa. Consular
officers have complete discretion over issuance and revocation of
visas. See 8 U.S.C. ss 1104(a), 1201(i). The INA provides, "After
the issuance of a visa or other documentation to any alien, the
consular officer or the Secretary of State may at any time, in his
discretion, revoke such visa or documentation." 8 U.S.C. s 1201(i);
see also 22 C.F.R. s 41.122. The same eligibility criteria apply
whether the consular officer refuses to renew a visa or decides to
revoke a previously issued one. See 8 U.S.C. s 1182(a)(2)(C). In
Saavedra's case, once the Consul General in La Paz received
information rendering him ineligible for an L-1 visa, that same
information resulted in the revocation of his B-1/B-2 visa.
3 See, e.g., Ekiu v. United States, 142 U.S. 651, 659 (1892);
Harisiades v. Shaughnessy, 342 U.S. 580, 596 (1952) (Justice
principle, dating from Roman times,4 received recognition
during the Constitutional Convention5 and has continued to
be an important postulate in the foreign relations of this
country and other members of the international community.6
For more than a century, the Supreme Court has thus
recognized the power to exclude aliens as " 'inherent in
sovereignty, necessary for maintaining normal international
relations and defending the country against foreign encroach-
ments and dangers--a power to be exercised exclusively by
the political branches of government' "7 and not "granted
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Frankfurter, concurring); C. BouvE, Exclusion and Expulsion of
Aliens, 4 & n.3 (1912), and authorities there cited; II Emerlich de
Vattel, Le Droit Des Gens ss 94, 100 (1758).
4 E. Borchard, Diplomatic Protection of Citizens Abroad 33, 44-
48 (1915).
5 See 3 Papers of James Madison 1277 (1840), in which Madison
reports Gouverneur Morris' observation during the debates that
"every society, from a great nation down to a club, ha[s] the right of
declaring the conditions on which new members should be admit-
ted." Article I, Section 9, Clause 1, of the Constitution is an
implicit recognition of Congress's authority to regulate immigration.
In addition, Article III of the Jay Treaty of 1794, 8 Stat. 116, 117,
provided that British and American subjects could freely cross the
Canadian border. See Karnuth v. United States, 279 U.S. 231
(1929). As to the Colonial understanding of the sovereign's power
to control the admission of aliens, see Thomas Jefferson, Notes on
the State of Virginia 83-85 (Peden ed. 1955).
6 See, e.g., Convention Between the United States of America and
other American Republics Regarding the Status of Aliens, art. I,
46 Stat. 2753, 2754 (1928); Constitution of the Intergovernmental
Committee for European Migration, 6 U.S.T 603, 604 (1955); Hines
v. Davidowitz, 312 U.S. 52 (1941); 3 Hackworth, supra, at 725-29;
W. Hall, International Law 211-12 (6th ed. 1909); 4 John Bassett
Moore, International Law Digest 151-74 (1906); Borchard, supra
note 5, at 44-48.
7 Kleindienst v. Mandel, 408 U.S. 753, 765 (1972), quoting the
Solicitor General's brief; see Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)).
away or restrained on behalf of anyone." The Chinese Exclu-
sion Case, 130 U.S. 581, 609 (1889).
These considerations underlie the Court's long-standing
recognition that "any policy toward aliens is vitally and
intricately interwoven with contemporaneous policies in re-
gard to the conduct of foreign relations, the war power, and
the maintenance of a republican form of government. Such
matters are so exclusively entrusted to the political branches
of government as to be largely immune from judicial inquiry
or interference." Harisiades v. Shaughnessy, 342 U.S. 580,
588-89 (1952); see also Reno v. American-Arab Comm., 119
S. Ct. 936, 947 (1999). Though it may be "error to suppose
that every case or controversy which touches foreign relations
lies beyond judicial cognizance," Baker v. Carr, 369 U.S. 186,
211 (1962), it is nevertheless "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." United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950).8
In view of the political nature of visa determinations and of
the lack of any statute expressly authorizing judicial review of
consular officers' actions, courts have applied what has be-
come known as the doctrine of consular nonreviewability.
The doctrine holds that a consular official's decision to issue
or withhold a visa is not subject to judicial review, at least
unless Congress says otherwise.9 For the greater part of this
__________
8 Justice Harlan put it this way in Lem Moon Sing v. United
States, 158 U.S. 538, 547 (1895): "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."
9 Historically, disputes arising from the denial of a visa applica-
tion have been handled through diplomatic channels, not by courts.
In United States ex rel. London v. Phelps, 22 F.2d 288 (2d Cir.
1927), a British subject challenged the denial of a visa, which
prevented her from traveling from Montreal to visit her children in
century, our court has therefore refused to review visa deci-
sions of consular officials. United States ex rel. Ulrich v.
Kellogg, 30 F.2d 984, 986 (D.C. Cir. 1929), held that the then-
current immigration law did not provide for an official review
of a consular officer's denial of a visa. Under succeeding
incarnations of federal immigration law through to the pres-
ent, this court and other federal courts have adhered to the
view that consular visa determinations are not subject to
judicial review. See, e.g., Castaneda-Gonzalez v. INS, 564
F.2d 417, 428 n.25 (D.C. Cir. 1977); Chi Doan v. INS, 160
F.3d 508, 509 (8th Cir. 1998); Centeno v. Shultz, 817 F.2d
1212, 1213 (5th Cir. 1987) (per curiam); Li Hing of Hong
Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986); Rivera de
Gomez v. Kissinger, 534 F.2d 518, 518 (2d Cir. 1976) (per
curiam); Romero v. Consulate of the United States, Barran-
quilla, Colombia, 860 F. Supp. 319, 322-24 (E.D. Va. 1994);
Kummer v. Schultz, 578 F. Supp. 341, 342 (N.D. Tex. 1984);
Licea-Gomez v. Pilliod, 193 F. Supp. 577, 582 (N.D. Ill. 1960).
In Castaneda-Gonzalez, we dealt with the subject tersely, in a
footnote, because the law was so settled: a consular officer,
we wrote, could refuse to issue a visa to an alien "without fear
of reversal since visa decisions are nonreviewable." 564 F.2d
at 428 n.25.
In terms of APA s 702(1), the doctrine of consular nonre-
viewability--the origin of which predates passage of the
APA--thus represents one of the "limitations on judicial
review" unaffected by s 702's opening clause granting a right
of review to persons suffering "legal wrong" from agency
action.10 As the report of the Administrative Conference on
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New York. The Second Circuit, holding the denial nonreviewable,
noted that the "[u]njustifiable refusal to vise a passport may be
ground for diplomatic complaint by the nation whose subject has
been discriminated against [but is] beyond the jurisdiction of the
court." See id. at 290 (citing 3 John Bassett Moore, A Digest of
International Law 995-97 (1906)).
10 The same result would follow if "legal wrong" in s 702 were
interpreted, as the Attorney General's Manual suggested in 1947, to
mean "such wrong as ... the courts have recognized as constituting
s 702(1) put it, this is an area "in which legislative action
[and] traditional practice indicate that courts are unqualified
or that issues are inappropriate for judicial determination."11
Or from the principles just discussed we may infer that, in
the words of APA s 701(a)(1), the immigration laws "preclude
judicial review" of the consular visa decisions. The inference
is, we believe, unmistakable in light of the severe limitation of
remedies afforded aliens who--unlike Saavedra--are physi-
cally present at the United States border when they are
denied entry. Again, some history needs to be recounted.
Until the Supreme Court's decision in Brownell v. We
Shung, 352 U.S. 180 (1956), aliens detained by immigration
officials at ports of entry had but one legal recourse--habeas
corpus. See Heikkila v. Barber, 345 U.S. 229 (1953); Ekiu v.
United States, 142 U.S. 651, 660 (1892). The right to seek
__________
ground for judicial review." United States Department of Justice,
Attorney General's Manual on the Administrative Procedure Act
96 (1947). Hence, in certain areas--and visa determinations are
one of them--judicial non-intervention is the norm and the pre-
sumption of review "runs aground." Department of the Navy v.
Egan, 484 U.S. 518, 527 (1988); Peoples v. United States Dep't of
Agric., 427 F.2d 561, 567 (D.C. Cir. 1969).
11 As to s 701(a)(2)--"agency action committed to agency discre-
tion by law"--the Supreme Court has not as yet adopted Justice
Scalia's view, expressed in his dissenting opinion in Webster v. Doe,
486 U.S. 592, 608-10 (1988), that s 701(a)(2) was meant to incorpo-
rate the common law of judicial review "--a body of jurisprudence
that had marked out, with more or less precision, certain issues and
certain areas that were beyond the range of judicial review." Id. at
608. Rather, in Webster v. Doe, id. at 599-600, as in Heckler v.
Chaney, 470 U.S. 820 (1985), the Court interpreted s 701(a)(1) to
preclude judicial review when statutes are written so broadly that
"there is no law to apply" (Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 410 (1971)). In Abourezk v. Reagan, 785
F.2d 1043, 1051 (D.C. Cir. 1986), aff'd by an equally divided Court,
484 U.S. 1 (1987), this court held that "the Immigration Act
emphatically did not commit the decision to exclude an alien to
standardless agency discretion...."
habeas relief arose as a consequence of the alien's being in
custody; it did not rest on any right to entry. In We Shung,
the Court considered whether, in addition to habeas corpus,
an alien could challenge an exclusion order under the APA.
The Court held that the 1952 INA, unlike the prior Immigra-
tion Act of 1917, did not limit detained aliens to habeas
corpus. See We Shung, 352 U.S. at 184-86. Citing the
legislative history of the 1952 Act, the Court concluded that
Congress had intended the APA to apply both to exclusion
and to deportation proceedings. See id. at 186; see also H.R.
Rep. No. 82-2096, at 127 (1952). The Court limited its ruling
to aliens present in the United States, stating: "We do not
suggest, of course, that an alien who has never presented
himself at the borders of this country may avail himself of the
declaratory judgment action by bringing the action from
abroad." 352 U.S. at 184 n.3.
In 1961, Congress overruled We Shung, amending the INA
to make clear that habeas corpus was the only method for
judicial review of exclusion orders. The House Report ex-
plained:
For three-quarters of a century, prior to the decision in
the Shung case, habeas corpus was the sole and exclusive
method for testing in court an administrative determina-
tion that an alien was not entitled to enter the United
States....
* * *
... Such a restriction to habeas corpus does not deprive
the alien of any constitutional rights. It is well settled
that aliens seeking admission to the United States cannot
demand that their applications for entry be determined
in a particular manner or by use of a particular type of
proceedings. For those aliens, the procedure fixed by
Congress is deemed to be due process of law. (Knauff v.
Shaughnessy, 338 U.S. 537 (1950)).
H.R. Rep. No. 87-1086, at 31-32 (1961). Under the INA
amendments, "any alien against whom a final order of exclu-
sion has been made heretofore or hereafter under the provi-
sions of [this Act] may obtain judicial review of such order by
habeas corpus proceedings and not otherwise." Pub. L. No.
87-301, s 5(b), 75 Stat. 651 (1961); 8 U.S.C. s 1105a(b).
By restoring habeas corpus as the sole remedy, Congress
ensured that only aliens in custody could challenge exclusion
orders, a legislative decision implicitly precluding review to
aliens located abroad, such as Saavedra. See H.R. Rep. No.
87-1086, supra, at 33. The House Report pointed out that
"habeas corpus actions are necessarily determined in the
locality where the alien is, where he has been excluded, and
where he is 'knocking at the door.' " Id. The amendments
reflect Congress's sense that habeas provided "a full, com-
plete, and adequate method for judicial review of an exclusion
order." Id. at 32-33. To allow APA review would "give
recognition to a fallacious doctrine that an alien has a 'right'
to enter this country which he may litigate in the courts of
the United States against the United States as a defendant."
Id. at 33. Moreover, the amended statute provided that "an
order of deportation or of exclusion shall not be reviewed by a
court if the alien has not exhausted [his] administrative
remedies ... or if he has departed from the United States."
Id. at 3, 28 (emphasis added).
It is not plausible then, that in restricting review of exclu-
sion orders to habeas corpus, Congress intended to allow
aliens residing abroad to have greater remedies than those
detained by immigration officials at United States ports of
entry. To put the matter in terms of APA s 701(a)(1), we
may infer that the immigration laws preclude judicial review
of consular visa decisions. There was no reason for Congress
to say as much expressly. Given the historical background
against which it has legislated over the years, including even
the congressionally-overruled We Shung decision, 352 U.S. at
184 n.3, Congress could safely assume that aliens residing
abroad were barred from challenging consular visa decisions
in federal court unless legislation specifically permitted such
actions. The presumption, in other words, is the opposite of
what the APA normally supposes. In this respect the case is
similar to Department of the Navy v. Egan, 484 U.S. 518, 527
(1988). See Peoples v. United States Dep't of Agric., 427 F.2d
561, 567 (D.C. Cir. 1969). When it comes to matters touching
on national security or foreign affairs--and visa determina-
tions are such matters--the presumption of review "runs
aground." 484 U.S. at 527. This much follows from the
Court's instruction that APA review may be foreclosed by
virtue of "the collective import of legislative and judicial
history behind a particular statute ... [or] by inferences of
intent drawn from the statutory scheme as a whole." Block v.
Community Nutrition Inst., 467 U.S. 340, 349 (1984), relied
upon in Egan (484 U.S. at 530). It follows as well from the
Court's recurring statements, of which United States ex rel.
Knauff v. Shaughnessy, 338 U.S. at 543, is an example, that
there may be no judicial review of the decisions to exclude
aliens unless Congress has "expressly authorized" this.
For many of the reasons just given and for another about
to be discussed, the government maintains that federal courts
have no jurisdiction over actions such as Saavedra's. We
agree, of course, that in light of Califano v. Sanders, 430 U.S.
99, 105, 107 (1977), APA s 702 cannot be considered a juris-
dictional grant and that Saavedra must therefore rest on the
general federal question statute, 28 U.S.C. s 1331. But this
general jurisdictional provision, the government tells us, is
subject to preclusion-of-review legislation and the Illegal Im-
migration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub. L. No. 104-208, s 306(a)(2), 110 Stat. 3009,
546, is such legislation. There Congress further restricted
judicial review of exclusion orders, now called removal orders,
in actions brought by aliens present in the United States. As
matters now stand, federal courts have no jurisdiction "to
review any final order of removal against an alien who is
removable by reason of having committed [certain] criminal
offense[s]"--including trafficking in controlled substances. 8
U.S.C. s 1252(a)(2)(c); cf. Yang v. INS, 109 F.3d 1185, 1192
(7th Cir. 1997). The IIRIRA also amended the immigration
law provision giving general jurisdiction to the district courts.
The amended provision now reads: the "district courts of the
United States shall have jurisdiction of all causes, civil and
criminal, brought by the United States that arise under the
provisions of this subchapter," 8 U.S.C. s 1329, thus making
clear that district court jurisdiction founded on the immigra-
tion statute is confined to actions brought by the government.
See Reno v. American-Arab Comm., 119 S. Ct. at 940 n.4.
The "provisions of this subchapter," to which s 1329 refers,
include the provisions dealing with consular visa decisions.
Read in light of the long history of judicial noninterference
with the judgments of consular officers regarding visas, one
might characterize IIRIRA s 1329 as a restriction on district
court jurisdiction to review claims such as those set forth in
Saavedra's complaint, a restriction superseding general feder-
al question jurisdiction. Or one might view this recent legis-
lative history as reinforcing the judgment, to which we sub-
scribe, that the immigration laws preclude judicial review of
consular visa decisions and that the doctrine of consular
nonreviewability remains intact, until Congress provides oth-
erwise. Both views amount to the same thing and lead to the
same conclusion--namely, that Saavedra's claims cannot be
heard.
C
All that remains of this aspect of the case is Saavedra's
argument that our decision in Abourezk v. Reagan, 785 F.2d
1043 (D.C. Cir. 1986), aff'd by an equally divided Court, 484
U.S. 1 (1987), forecloses any contention that consular visa
decisions are immune from judicial review. We think Saave-
dra reads more into the Abourezk opinion than the court
intended.
Each plaintiff in the three consolidated actions on appeal in
Abourezk was an American citizen. On constitutional and
statutory grounds, they contested the denial of visas to
foreigners they had invited to come to the United States and
give speeches. 785 F.2d at 1048-49. In that respect the case
was akin to, but different from, Kleindienst v. Mandel, 408
U.S. 753 (1972). Different because in Mandel, professors in
this country, claiming a First Amendment right to hear a
Belgian journalist talk in the United States, challenged not
the consular officer's denial of the journalist's request for a
visa, but the Attorney General's refusal to waive his ineligibil-
ity for a visa (he was a Marxist).12 See id. at 756-59. The
Supreme Court held in Mandel that so long as the Attorney
General gave a "facially legitimate and bona fide reason," as
he did, the courts will not test the decision by balancing the
justification against the supposed First Amendment interests
of those who wished to converse with the alien face-to-face.
Id. at 770.
Citing Mandel, the court in Abourezk rejected the State
Department's contention that the district court lacked subject
matter jurisdiction. Judicial review was proper, the court
held, when United States sponsors of a foreign individual
claim that the State Department's denial of a visa to an alien
violated their constitutional rights. See id. at 1050. As a
decision of a panel, Abourezk cannot be treated as an overrul-
ing of Castaneda-Gonzalez, 564 F.2d at 428 n.25,13 and it
cannot be read as expressing disagreement with other deci-
sions recognizing the doctrine of consular nonreviewability.
The Abourezk court went out of its way to distinguish those
decisions, and it did so on grounds that are against Saavedra.
Thus, the Abourezk court did not take issue with the "long-
standing judicial practice of refusing to review [visa denial]
claims like those raised here" at the behest of a disappointed
alien. 785 F.2d at 1051 n.6 (citations omitted). Instead, the
court found this judicial practice inapplicable to the cases
before it, because they involved "claims by United States
citizens rather than by aliens ... and statutory claims that
are accompanied by constitutional ones." Id.14
__________
12 The INA authorizes the Attorney General to grant a waiver of
ineligibility upon recommendation of the Secretary of State or of
the consular officer that the alien be admitted temporarily despite
his inadmissibility. See 8 U.S.C. s 1182(d)(3).
13 One panel cannot overrule another panel. See LaShawn v.
Barry, 87 F.3d 1389 (D.C. Cir. 1996).
14 We take note of Judge Bork's point that plaintiffs' statutory
claims had to be reviewed in order for the court to reach their
constitutional claims. See id. at 1062 n.1 (Bork, J., dissenting).
Whatever one might think of these distinctions, they serve
to undermine Saavedra's position. Unlike Abourezk, Saave-
dra's American sponsors--Musicanga, Inc. and Wichten-
dahl--asserted no constitutional claims. Furthermore, in our
view, neither Musicanga, Inc., nor its officer Wichtendahl,
have standing to challenge the denial or the revocation of
Saavedra's visa. With respect to purely statutory claims,
courts have made no distinction between aliens seeking re-
view of adverse consular decisions and the United States
citizens sponsoring their admission; neither is entitled to
judicial review. See Li Hing of Hong Kong, Inc., 800 F.2d at
970. Saavedra's American sponsors are attempting to assert
rights not afforded to them by the INA. The INA permitted
them to file a petition with the Attorney General to have
Saavedra classified as a managerial employee so that he
might qualify for an L-1 visa. See 8 U.S.C. s 1154(a)(1)(D).
When their petition was granted and Saavedra received that
classification, their cognizable interest terminated. Because
their interest has already been satisfied, the citizen sponsors
have not been aggrieved "within the meaning of the relevant
statute" and have no right of review under the APA even if
APA review were available. National Credit Union Admin.
v. First Nat'l Bank & Trust Co., 118 S. Ct. 927, 933 (1998); 5
U.S.C. s 702.
Thus, Saavedra cannot by any stretch bring himself within
the narrow holding of Abourezk. Any doubts on this score
are laid to rest by City of New York v. Baker, 878 F.2d 507
(D.C. Cir. 1989), an appeal from the judgment of the district
court rendered on remand from Abourezk. Citing
Castaneda-Gonzalez, the court held that neither it nor the
district court has the "power to serve as a proxy consular
officer": "This circuit has recognized, as has every circuit to
consider the issue, that the courts are without authority to
displace the consular function in the issuance of visas." 878
F.2d at 512.15
__________
15 Given the fact that Abourezk was the "law of the case," the
court in Baker engaged in no discussion regarding preclusion of
judicial review. The statement we quote dealt with the question of
remedy, but is important nonetheless in light of the court's citation,
In addition, Abourezk rested in large measure on the
provision of the INA-8 U.S.C. s 1329 (1982)--then giving
federal district courts jurisdiction over "all causes, civil and
criminal, arising under any of the provisions" of the immigra-
tion statutes. See 785 F.2d at 1049-50. In light of s 1329,
the Abourezk court determined that APA s 701(a)(1) did not
apply: "the Immigration Act, far from precluding review,
affirmatively provides for it." 785 F.2d at 1051. No such
statement can be made today. As we have discussed (pp. 15-
16 supra), the amendment to s 1329 now makes clear that
district courts do not have general jurisdiction over claims
arising under the immigration laws and that their jurisdiction
extends only to actions brought by the government.
III
The remaining portion of Saavedra's complaint sought an
injunction compelling the State Department to act on Saave-
dra's request for a waiver of inadmissibility pursuant to 8
U.S.C. s 1182(d)(3). Though the State Department has since
denied the waiver request, Saavedra maintains that the claim
is not moot because "voluntary cessation of challenged con-
duct" does not render the controversy ended. Brief for
Appellants at 42, citing United States v. W.T. Grant Co., 345
U.S. 629, 632 (1953). Saavedra now seeks a declaration that
the government must respond in a timely fashion to waiver
requests that he is likely to file in the future. The State
Department's one-time delay in acting on Saavedra's request
does not satisfy this court that such relief is necessary.
Because Saavedra has not shown a "cognizable danger of
recurrent violation," we decline to issue the declaration he
requests. Madsen v. Women's Health Center, Inc., 512 U.S.
753, 765 n.3 (1994) (citing United States v. W.T. Grant Co.,
345 U.S. at 633).
Affirmed.
__________
with approval, to this court's opinion in Castaneda-Gonzalez and
the opinions of other courts sustaining the doctrine of consular
nonreviewability.