RONALD W. REAGAN, ET AL., PETITIONERS V. JAMES ABOUREZK, ET AL. GEORGE P. SCHULTZ, ET AL., PETITIONERS V. CITY OF NEW YORK, ET AL. GEORGE P. SHULTZ, ET AL., PETITIONERS V. BRUCE CRONIN, ET AL. No. 86-656 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit The Solicitor General, on behalf of the Secretary of State and all other petitioners, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Cicuit in these consolidated cases. PARTIES TO THE PROCEEDING Petitioners in Reagan v. Abourezk are Ronald Wilson Reagan, George P. Shultz, William French Smith, and Alan C. Nelson; petitioners in Shultz v. City of New York and Cronin v. Shultz are George P. Shultz, William French Smith, and Alan C. Nelson. The respondents in Reagan v. Abourezk are James Abourezk, Douglas Cassel, Jr., John Coatsworth, Rev. Harvey Cox, Don Edwards (individually and as a Member of the House of Representatives), Sidney Lens, George Overton, Richard Parker, Charles E. Schumer (individually and as a Member of the House of Representatives), James M. Shannon (individually and as a Member of the House of Representatives), Paul Tsongas (individually and as a Member of the House of Representatives), Mortimer B. Zuckerman, the Chicago Lawyer, Ltd., The Chicago Religious Task Force on Central America, First Parish Church of Concord, Massachusetts, Institute for Policy Studies, Unitarian Universalist Service Committee, Washington Office on Latin America, Dr. Dana McLean Greeley, and Phillippe Villers; the respondents in City of New York v. Shultz are the City of New York, Edna Acosta-Belen, Chai Feldblum, Jill Gay, Thomas H. Holloway, Sally McConnell-Ginet, Barbara Corrado Pope, David S. Rudstein, Mary Kay Vaughan, Committee on Religion, Ethics and Social Policy, Committee on U.S.-Latin American Studies, Institute for Policy Studies, and the New College of California; respondents in Cronin v. Shultz are Bruce Cronin, Judith Freiwirth, Anthony Palomba, Mobilization for Survival, Boston Mobilization for Survival, and New England Campaign to Stop the Euromissiles. TABLE OF CONTENTS Parties to the proceeding Opinion below Jurisdiction Statutory provisions involved Questions presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-64a) is reported at 785 F.2d 1043. The opinion of the district court (App., infra. 65a-80a) is reported at 592 F. Supp. 880. JURISDICTION The judgment of the court of appeals (App., infra, 82a-83a) was entered on March 11, 1986. A petition for rehearing and a suggestion for rehearing en banc were denied on May 23, 1986 (App., infra, 84a, 85a). On August 13, 1986, Justice White extended the time for filing a petition for a writ of certiorari to September 20, 1986. On September 16, 1986, Chief Justice Burger further extended the time for filing to and including October 20, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED 8 U.S.C. 1182 provides in relevant part: (a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: * * * * * (27) Aliens who the consular officer or the Attorney General knows or has reason to believe seek 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; (28) Aliens who are, or at any time have been, members of any of the following classes: * * * * * (C) Aliens who are members of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the United States, (iii) the Communist Political Association, (iv) the Communist or any other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state, (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party, or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt * * *. * * * * * 22 U.S.C. 2691 provides: (a) For purposes of achieving greater United States compliance with the provisions of the Final Act of the Conference on Security and Cooperation in Europe (signed at Helsinki on August 1, 1975) and for purposes of encouraging other signatory countries to comply with those provisions, the Secretary of State should, within 30 days of receiving an application for a nonimmigrant visa by an 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, recommend that the Attorney General grant the approval necessary for the issuance of a visa to such alien, unless the Secretary determines that the admission of such alien would be contrary to the security interests of the United States and so certifies to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate. Nothing in this section may be construed as authorizing or requiring the admission to the United States of any alien who is excludible for reasons other than membership in or affiliation with a proscribed organization. (b) This section does not apply to representatives of purported labor organization in countries where such organizations are in fact instruments of a totalitarian state. (c) This section does not apply with respect to any alien who is a member, official, representative, or spokesman of the Palestine Liberation Organization. (d) The Secretary of State may refuse to recommend a waiver for aliens from signatory countries which are not in substantial compliance with the provisions of the Helsinki Final Act, particularly the human rights and humanitarian affairs provisions. QUESTIONS PRESENTED 1. Whether 8 U.S.C. 1182(a)(27) permits denial of a visa to an alien only if his activities-and not just his presence or entry-would be prejudicial to the public interest. 2. Whether 8 U.S.C. 1182(a)(27) permits denial of a visa to an alien based on foreign policy concerns only if those concerns are independent of-and not merely in addition to-the alien's affiliation with organizations listed in 8 U.S.C. 1182(a)(28). STATEMENT 1. a. The terms and conditions under which aliens may enter the United States, as visitors or as immigrants, are set forth in the Immigration and Nationality Act of 1952, 8 U.S.C. (& Supp. II) 1101 et seq. (Immigration Act or Act). The Act is administered jointly by the Attorney General, the Secretary of State, and United States consular officers abroad. 8 U.S.C. 1103, 1104. With exceptions not relevant here, no alien may be admitted to the United States without first having applied for and obtained an immigrant or nonimmigrant visa. See 8 U.S.C. 1181(a), 1182(a)(26). Nonimmigrant visas are issued to aliens seeking entry into the United States for one or more of the purposes specified in 8 U.S.C. 1101(a)(15). The authority to grant or deny such visas is assigned to consular officers (8 U.S.C. 1201, 1202), and no visa may be issued if the consular officer "knows or has reason to believe" that the applicant is ineligible to receive a visa under the Act (8 U.S.C. 1201(g)). /1/ Section 1182(a) of the Act lists 33 separate categories of aliens who "shall be ineligible to receive visas and shall be excluded from admission into the United States." Two categories are at issue in this case, 8 U.S.C. 1182(a)(27) (Subsection 27) and 8 U.S.C. 1182(a)(28) (Subsection 28). Subsection 27 applies to "(a)liens who the consular officer or the Attorney General knows or has reason to believe seek 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." Subsection 28 applies, inter alia, to aliens who are, or at any time have been, "members of or affiliated with * * * the Communist or any other totalitarian party * * * of any foreign state, (or) * * * any * * * affiliate * * * of any such * * * party." Under 8 U.S.C. 1182(d)(3)(A), aliens falling into 30 of the 33 categories contained in Section 1182(a) may, in certain circumstances, still be granted a visa. A visa may issue to such aliens if, inter alia, the Secretary of State or consular officer recommends that a visa be granted, and the Attorney General, in his discretion, approves the recommendation. Subsection 28 is one of the categories subject to this waiver of ineligibility; Subsection 27 is one of the three categories that is not. Certain standards for the Secretary of State's determination whether to recommend a waiver to the Attorney General under Section 1182(d)(3)(A) for aliens otherwise excludible under Subsection 28 are prescribed by 22 U.S.C. 2691, commonly known as the McGovern Amendment. The Amendment provides that the Secretary "should" make such a waiver recommendation in the case of "any alien who is excludible from the United States by reason of membership in or affiliation with a proscribed organization," unless the Secretary certifies to Congress that "the admission of such alien would be contrary to the security interests of the United States." 22 U.S.C. 2691(a). The Amendment provides, however, that it does not authorize or require "the admission * * * of any alien who is excludible for reasons other than membership in or affiliation with a proscribed organization." Ibid. b. Applications for nonimmigrant visas do not typically raise foreign policy concerns. /2/ In certain cases, however, the decision whether to grant or deny a visa has significant diplomatic consequences. As explained in the affidavit of then-Under Secretary of State for Political Affairs Lawrence S. Eagleburger (C.A. App. A137): /3/ The overwhelming majority of NIV (nonimmigrant visa) applications involve only the ordinary circumstances of aliens seeking to visit the United States for reasons of business or pleasure. However, in some instances, the issuance, denial or revocation of a NIV to a particular alien can have significant diplomatic or foreign policy ramifications to the extent that the issuance or denial is construed as an act of the United States Government. Thus, for example, the issuance or denial of a visa to a foreign government official may be taken by the alien's government as a reflection of United States foreign policy vis-a-vis that government and may result in reciprocal action or retaliation by that government. Similarly, the denial of visas to foreign government officials is one of the tools available to a government to communicate its attitude about the policies of other states. For these reasons, the Department of State provides special guidance to its consular officers whenever visa applications raise national security or foreign policy concerns. In such cases, agency guidelines require consular officers to refer the case to the Department for an advisory opinion prior to the issuance or refusal of a visa. Advisory opinions are particularly required when a consular officer has reason to believe that an applicant may be ineligible under Subsection 27. See C.A. App. A137-A140; 9 Dep't of State, Foreign Affairs Manual, Pt. II, Section 41.91(a)(27) (1975). The Department renders an advisory opinion "only after a thorough review of the information available to the Department and the recommendations of those officers responsible for the geographic and policy areas affected" (C.A. App. A140). Only the Assistant Secretary of State for Consular Affairs or a superior officer may issue an opinion advising against issuance of a visa on foreign policy grounds (id. at A161). In sensitive cases, the Secretary of State or his immediate designee (such as the Under Secretary of State for Political Affairs) may make the determination (ibid). 2. Tomas Borge, Olga Finlay, Leonor Rodriguez Lezcano, and Nino Pasti applied for nonimmigrant visas to meet and talk with American citizens who had invited them to come to the United States. Based on advisory opinions from the Department of State, consular officers denied each application under Subsection 27. a. Tomas Borge was invited by the plaintiffs in Abourezk v. Reagan. /4/ Borge is the Interior Minister of Nicaragua, and one of the highest ranking and most influential members of the Sandinista Front for National Liberation, the ruling body of Nicaragua (App., infra, 86a; C.A. App. A162). In November 1983, the Nicaraguan government submitted a diplomatic note to the United States Embassy in Managua, Nicaragua, requesting that Borge be issued a nonimmigrant visa for a five-day visit to the United States (C.A. App. A162-A163). The request was accompanied by a diplomatic passport that the Nicaraguan government had issued to Borge (App., infra, 86a-87a). Under Secretary Eagleburger rendered an advisory opinion that Borge was ineligible for a visa under Subsection 27 because his admission would be "highly prejudicial to the foreign policy interests of the United States" (App., infra, 88a). See also C.A. App. A141, A163. In making this judgment, Eagleburger concluded, inter alia, that Borge "intended to travel to the United States in his official capacity," and that his admission at that particular time would send "a very wrong message to our allies and adversaries alike concerning United States policies in Central America, and could have had a severely adverse impact on ongoing multilateral efforts by the United States to resolve the current conflict in that region" (App., infra, 86a-87a (emphasis in original)). Eagleburger further noted that a visit in October 1983 by the Foreign Minister of Nicaragua had "undercut * * * multilateral negotiations" (id. at 87a). b. Olga Finlay and Leonor Rodriguez Lezcano were invited by the plaintiffs in City of New York v. Shultz. /5/ Both are officials of the Communist Party of Cuba, and both are members of the Federation of Cuban Women, an organization which the Department of State has determined to be affiliated with and controlled by the Cuban Communist Party (App., infra, 89a; C.A. App. A164-A165). Finlay, in addition, is the Cuban representative to the United Nations Commission on the Status of Women (C.A. App. A164-A165). In September 1983, Finlay and Lezcano applied for 30-day, nonimmigrant visas to the United States. Their applications were accompanied by diplomatic passports, and were transmitted to the consular officer in Havana, Cuba, by diplomatic note. App., infra, 90a; C.A. App. A165. The Assistant Secretary for Consular Affairs, in an advisory opinion ratified by Under Secretary Eagleburger, concluded that Finlay and Lezcano were ineligible for visas under Subsection 27, since their entry would prejudice the foreign affairs of the United States (C.A. App. A142-A143, A165-A166). In Eagleburger's view, both applicants "intended to travel to the United States not as private Cuban citizens, but rather as official representatives of the Cuban Government" (App., infra, 90a; see C.A. App. A142), and "(t)he official, governmental nature of their proposed trip was clearly manifested both by the issuance to the two women of Cuban diplomatic passports and by the submission of their applications through diplomatic channels" (C.A. App. A142). He determined that their entry would be inconsistent with our foreign policy toward Cuba, a policy which seeks to curb Cuban influence in Central and South America by denying to it "the aura of legitimacy which normal diplomatic relations with the United States would undoubtedly confer" (App., infra, 90a). c. Nino Pasti was invited by the plaintiffs in Cronin v. Shultz. /6/ Formerly a general in the Italian military and a member of the Italian Senate, Pasti is an active participant in the World Peace Council, an organization which the State Department has determined is "controlled and financed" by, and is an "instrumentality" of, the Soviet Union (App., infra, 92a; C.A. App. A163). In September 1983, Pasti applied to the American Embassy in Rome for a nonimmigrant visa (C.A. App. A163). As in the other cases, Pasti's application was referred by the consular officer to the Department of State for an advisory opinion (C.A. App. A163-A164). The opinion, authored by the Assistant Secretary of State for Consular Affairs, concluded that Pasti was ineligible to receive a visa under Subsection 27, because his admission would prejudice the conduct of United States foreign policy (id. at A142, A164). In ratifying the opinion, Under Secretary Eagleburger noted that the World Peace Council is an instrument of Soviet efforts to disrupt American foreign policy; he emphasized that the timing of Pasti's proposed trip coincided with the "particularly delicate period" during the controversial "initial deployment of Cruise and Pershing II missiles in certain NATO countries" (App., infra, 92a-94a). 3. a. The individuals and groups who invited these four aliens each filed a complaint for declaratory and injunctive relief in the United States District Court for the District of Columbia. Plaintiffs alleged that the government acted without statutory authority in denying the visas because: Subsection 27 does not authorize exclusion on the basis of foreign policy (as opposed to national security) concerns; Subsection 27 does not authorize the exclusion of an applicant when it is his mere entry or presence (as opposed to the specific activities in which he intends to engage) that will be prejudicial to the public interest; and the government's interpretation of Subsection 27 is contrary to the McGovern Amendment, 22 U.S.C. 2691. Plaintiffs also complained that the visa denials in these cases violated their First Amendment rights to associate with their invitees and listen to them in this country. App., infra, 14a; C.A. App. A16-A58. The district court entered summary judgment for the government (App., infra, 81a). Judge Greene rejected each of plaintiff's statutory arguments, concluding that the government's actions were fully within the ambit of Subsection 27 (App., infra, 72a-75a). The court further held that under Kleindienst v. Mandel, 408 U.S. 753 (1972), the facially legitimate and bona fide reasons advanced by the government in support of its actions defeated plaintiff's First Amendment claims (App., infra, 75a-80a). b. On appeal, a divided panel vacated the district court's judgment and remanded for further proceedings (App., infra, 82a-83a). The court agreed with the government that Subsection 27 may properly be invoked to deny visas because of foreign policy concerns (id. at 14a-16a), but ruled against the government and remanded on two other statutory issues. /7/ It found, first, that the record was inadequate to decide whether Subsection 27 permits exclusion based only on concerns sparked by an alien's entry or presence in the United States (App., infra, 16a-22a). In reaching this conclusion, the court noted that the language of Subsection 27 refers only to an alien's expected "activities," not his presence or entry (id. at 16a). Nor, in the court's view, did the legislative history resolve the issue in the government's favor; instead, the court found that the history "is terse and tugs in more than one direction" (id. at 17a). Similarly, the court found that the evidence of administrative practice was too "meager" to give rise to a presumption of congressional acquiescence in the government's view that Subsection 27 applies to entry or presence (id. at 21a). /8/ Nevertheless, believing that "(i)nformation about such acquiescence, or the absence of it, would rank as a significant indicator of the legislature's will" (id. at 18a), the court remanded for "fuller proceedings" on the nature of administrative practice under Subsection 27 (id. at 22a). Second, the court ruled that the district court had improperly analyzed the relationship between Subsection 27 and Subsection 28 (App., infra, 22a-30a). The court held that the government may exclude aliens under Subsection 27 for foreign policy reasons only if those reasons are "independent of" and not merely "in addition to" the fact that the aliens are members of, or affiliated with, the communist and anarchist organizations listed in Subsection 28 (id. at 24a (emphasis in original)). Any other holding, the court reasoned, would "nullif(y)" the restrictions placed by the McGovern Amendment on the use of Subsection 28 (id. at 23a); for this point the court (id. at 23a-24a n. 16) relied in part on a similar holding in Allende v. Shultz, 605 F.Supp. 1220 (D. Mass. 1985). In adopting this interpretation, the court recognized that affiliation with a hostile government may qualify as proper grounds for the denial of a visa under Subsection 27, but held that such affiliation may not be "presumed because of the applicant's membership or participation in a subsection (28) organization" (id. at 27a (emphasis in original)). The court therefore remanded for a determination as to whether governmental affiliation, independent of organizational affiliation, was "the reason" for the exclusions in these cases (id. at 27a-28a (emphasis in original)). In view of its rulings on the statutory issues, the court declined to consider plaintiffs' constitutional claims (App., infra, 30a n.24). c. Judge Bork dissented (App., infra, 34a-64a). He concluded that the majority's decision deprived the Executive "of much of the flexibility and nuance that are essential in the conduct of foreign relations" (id. at 60a), and began "a process of judicial incursion into the United States' conduct of its foreign affairs" (id. at 64a). Judge Bork criticized the majority's analysis of the "mere entry/presence" issue (App., infra, 38a-47a). In his view, the legislative history of Subsection 27 and its statutory predecessors unambiguously settles the question. That history, he found, includes at least six occasions in which Congress clearly interpreted the term "activities" to "encompass() entry and presence as well" (id. at 42a; see id. at 38a-42a). Furthermore, to the extent that the issue could be considered close, Judge Bork noted that under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the courts must defer to a reasonable administrative interpretation, especially in the foreign policy context (App., infra, 36a-38a, 43a). Applying the Chevron test, he found "it difficult to understand how an interpretation offered half a dozen times by Congress * * * can possibly be unreasonable when adopted by officials in the executive branch" (id. at 43a). Given the reasonableness of the Executive's view that Subsection 27 applies to mere presence or entry, Judge Bork found no need for evidence of congressional acquiescence, and thus no need for the majority's remand on this issue (id. at 44a-47a). Moreover, Judge Bork found that evidence supporting the government's position already existed in the record (id. at 44a-45a n.2). Judge Bork also disagreed with the majority's interpretation of the McGovern Amendment and its analysis of the relationship between Subsections 27 and 28 (App., infra, 47a-60a). He thought it clear, based on the statute's language and legislative history, that Congress intended the restrictions in the Amendment to apply only "when the sole ground for exclusion is membership in an organization of the sort described (in Subsection 28). When that membership raises additional concerns, as it does when it involves a connection to a government that implicates American foreign policy, subsection (27) comes into play," and the McGovern Amendment does not apply (id. at 53a). Since in the present cases the Executive has "consistently cited" the aliens' affiliations with particular foreign governments as the basis for exclusion, Judge Bork concluded that the McGovern Amendment was inapposite (id. at 54a). Judge Bork emphasized that his interpretation fully serves the intent of the McGovern Amendment, since it would not justify the wholesale exclusion of all communists, but only those whose organizations are connected to foreign governments (id. at 55a-56a). Judge Bork wrote, for example, that "(i)t would seem entirely rational for the State Department to conclude that a member of the Communist Party of the Soviet Union was affiliated with the government of that nation but that a member of the Communist Party of the United Kingdom was not affiliated with the government of his country" (id. at 55a). On the other hand, he pointed out that the majority's interpretation leads to the anomalous result of "confer(ring) upon communists a favored entry status": members of non-Subsection 28 organizations may be excluded under Subsection 27 because their organizations are tied to hostile regimes, but members of Subsection 28 groups may not (id. at 56a). Further, Judge Bork noted that the majority's construction, although adopted to prevent the Executive from "evading" the McGovern Amendment, is "toothless"-and thus fails on its own rationale-for two reasons (id. at 57a-59a). First, because the Amendment states only that the Secretary of State "should"-not "shall"-recommend the admission of a member of a proscribed organization, "it is at least an open question whether the terms of the * * * Amendment are in fact mandatory" (id. at 57a). Second, even if the Secretary were obligated to render a favorable recommendation, the Attorney General, under 8 U.S.C. 1182(d)(3), would have complete discretion not to accept it (App., infra, 58a-59a). Having concluded that Subsection 27 thus authorized the exclusions in these cases, Judge Bork also addressed plaintiffs' First Amendment argument. He found this argument "obviously" without force under Kleindienst v. Mandel, supra, and other "clear and consistent" Supreme Court precedent (App., infra, 60a, 63a). Judge Bork pointed out that the aliens here were not denied visas because of the content of their political beliefs, but because they "are members of or connected with particular foreign governments" (id. at 62a). Judge Bork also rejected plaintiffs' argument that the discretion delegated to the Executive under Subsection 27 is so broad that it violates separation of powers principles; he found the challenge insubstantial under the many rulings by this Court upholding the constitutionality of "broad and discretionary Executive power" (id. at 63a). d. The government petitioned the court of appeals to rehear these cases en banc. Of the court's eleven judges, five voted in favor of granting the petition, four voted against, and two did not participate in the vote. Accordingly, the petition was denied. App., infra, 85a. REASONS FOR GRANTING THE PETITION These cases raise important questions about the authority of the Executive to deny visas on foreign policy grounds and, more generally, about the proper scope of judicial review of Executive foreign policy judgments. In remanding for more evidence on the government's practice of excluding aliens because of harm that might result from their mere entry or presence, the court of appeals has erroneously failed to defer to the Executive's reasonable interpretation of the governing statute, and has set the stage for further proceedings that would improperly intrude into sensitive matters of foreign policy. Moreover, in extending the McGovern Amendement to narrow the government's ability to exclude aliens affiliated with hostile regimes, the court of appeals has contravened congressional intent and again overturned the reasoned view of the Executive. In both instances, the panel has established a precedent that greatly weakens an important tool of foreign policy. Further, by demanding additional fact-finding regarding the exclusion orders in these-and future-cases, the court of appeals has opened the door to inquiry into an area which this Court has carefully safeguarded from judicial interference. Ever since The Chinese Exclusion Case, 130 U.S. 581, 609 (1889), the "(c)ourts have * * * recognized the power to * * * exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control" (Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)). If the court of appeals' intrusion into this area is allowed to stand, it will not only enmesh the courts in questions outside the bounds of judicial competence, it will cast a chill over Executive decisionmaking and impair the conduct of foreign policy. These results cannot be excused by a desire to avoid the constitutional issues in these cases. "(A)lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it." Heckler v. Mathews, 465 U.S. 728, 741-742 (1984) (quotation marks omitted). This principle applies with special force here, where the constitutional challenge is clearly foreclosed by Kleindienst v. Mandel, supra. As both Judge Greene and Judge Bork recognized, there can be no doubt that the foreign policy concerns raised by the visa applicants' affiliations with hostile foreign governments constitute "facially legitimate and bona fide reason(s)" (Kleindienst, 408 U.S. at 770) for their exclusions. 1.a. In refusing to resolve the "mere entry/presence" issue on the record before it, the court of appeals failed to "give effect to the unambiguously expressed intent of Congress" (Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 843 (footnote omitted)), as evidenced by the statutory language, structure, and history. The concern of Subsection 27 is whether an alien's "activities" cause prejudice to the "public interest" or "endanger the welfare, safety or security of the United States." Since any alien admitted to this country must engage in some activity, "the distinction between an alien's activities and his presence" is, as the district court noted, "one without a difference" (App., infra, 72a-73a). Furthermore, as a matter of common sense, "it would be surprising if Congress meant to bar aliens who would engage in prejudicial activities, but admit those whose very entry would be prejudicial to the public interest" (id. at 40a (Bork, J.). /9/ In sharp contrast, Subsection 29, 8 U.S.C. 1182(a)(29), requires denial of visas to aliens who "after entry" would engage in certain proscribed conduct, including "espionage, sabotage, public disorder, or * * * other activity subversive to the national security" (emphasis added). An interpretation that would also limit Subsection 27 to such activities would render it duplicative of Subsection 29-a result that would "offend() the well-settled rule of statutory construction that all parts of a statute, if at all possible, are to be given effect" (Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633 (1973) (citations omitted)). Moreover, as exhaustively set forth in Judge Bork's dissent (App., infra, 38a-42a), the legislative history on this issue is decisive. Subsection 27 was taken almost verbatim from Section 22 of the Internal Security Act of 1950, ch. 1024, 64 Stat. 1006. /10/ The Senate Report accompanying the 1950 Act stated that existing law in this area-which Section 22 was intended to "broaden()"-already excluded aliens "whose entry would be prejudicial to the public interest or would endanger the safety of the United States" (S. Rep. 2230, 81st Cong., 2d Sess. 5 (1950) (emphasis added)). Section 22, in turn, was itself derived from a bill enacted in 1941 (55 Stat. 252) and described in its accompanying Senate Report as having the purpose "of keeping out of this country certain aliens, otherwise admissible, whose presence in the United States would be dangerous to the public safety" (S. Rep. 386, 77th Cong., 1st Sess. 1 (1941) (emphasis added)). The chief sponsor of this bill explained that it "merely permits the consuls to refuse visas to aliens whom they know or have reason to believe are persons whose presence in the United States will be inimical to the public interest" (87 Cong. Rec. 4757 (1941) (emphasis added; remarks of Senator Russell)). /11/ Against this legislative backdrop, the court of appeals nevertheless concluded that the legislative history "tugs in more than one direction" (App., infra, 17a). Yet, the only opposing pull cited by the court is a reference to prejudicial "activities" in the Conference Report accompanying the 1950 Act. See App., infra, 17a n.10, quoting H.R. Conf. Rep. 3112, 81st Cong., 2d Sess. 54 (1950). And, as explained by Judge Bork (App., infra, 42a), that discussion merely repeats verbatim the words of Section 22 and does not purport to explain what those words mean. Finally, even if a common sense reading of the statute and its legislative history are not deemed to resolve the "mere entry/presence" issue, the court of appeals cited no evidence-and there is none-that suggests that the State Department's resolution of the issue is impermissible or unreasonable. As the agency charged with issuing visas under the Immigration Act, therefore, the State Department's resolution warrants judicial deference. Chevron, 467 U.S. at 842-845. Indeed, the demand for deference is heightened here because the question at issue implicates "the conduct of foreign relations" which is "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, 589 (1952) (footnote omitted)). See Regan v. Wald, 468 U.S. 222, 242 (1984) (discussing the "classical deference to the political branches in matters of foreign policy"). The authority to exclude aliens is "inherent in sovereignty" (Kleindienst v. Mandel, 408 U.S. at 765 (quotation marks omitted)) and "intricately interwoven" with the conduct of foreign policy (Harisiades v. Shaughnessy, 342 U.S. at 588). This authority "stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation" (Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (citations omitted)). The courts should, therefore, "hesitate long before limiting or embarrassing such powers" (MacKenzie v. Hare, 239 U.S. 299, 311 (1915)). /12/ b. The court of appeals' approach to the McGovern Amendment is equally flawed. In order to prevent "evasion" of the Amendment, the court would require the government to process visa applicants under Subsection 28, rather than Subsection 27, unless the reason for exclusion is not only in addition to, but independent of, the fact of membership in a Subsection 28 organization. Yet the court cites nothing in the text or legislative history of the Amendment to justify this severe limitation on use of Subsection 27. The evidence, in fact, is just the opposite. The McGovern Amendment, enacted in 1977, simply provides that "the Secretary of State should * * * recommend that the Attorney General grant" a waiver of Subsection 28 excludibility in order to allow temporary admission of an alien who would otherwise be denied a visa "by reason of" membership in a Subsection 28 organization. As explained by Judge Bork, the purpose of the Amendment was to put an end to "the statutorily-required blanket exclusion of virtually all people who were or had been affiliated in some way with (a Subsection 28) organization" (App., infra, 48a-49a). The Amendment, however, is narrowly circumscribed. It applies only to applicants who are "otherwise admissible," and was amended in 1978 to make clear that it does not apply to "any alien who is excludible for reasons other than membership in or affiliation with a proscribed organization." As emphasized in the Conference Report discussing the Amendment, its provisions affect only those who are excludible "solely because of membership in or affiliation with a proscribed organization" (H.R. Conf. Rep. 95-537, 95th Cong., 1st Sess. 31 (1977) (emphasis added)). The visa denials challenged in these cases clearly do not come within this narrow ambit. As noted by Judge Bork, the denials were based not on the aliens' memberships in proscribed organizations, but on their affiliations with foreign governments-governments whose relationships with the United States have been "marked with tension" (App., infra, 52a). Thus, as Under Secretary Eagleburger attested, Tomas Borge was excluded because he "intended to travel * * * in his official capacity" as one of the highest-ranking leaders of the Nicaraguan government (id. at 86a (emphasis in original)); Olga Finlay and Leonor Rodriguez Lezcano were excluded because they "intended to travel * * * not as private Cuban citizens, but rather as official representatives of the Cuban Government" (id. at 90a); and Nino Pasti was excluded because of his active membership in the World Peace Council, an organization "controlled and financed by the USSR" (id. at 92a). And in each case the particularized foreign policy problems raised by their proposed visits were noted as well. /13/ The inapplicability of the McGovern Amendment to these cases is confirmed by the legislative history. In 1979, a provision was added to the Amendment to clarify that it does not apply to "representatives of purported labor organizations in countries where such organizations are in fact instrumental of a totalitarian state" (see 22 U.S.C. 2691(b)). A sponsor of this provision explained that it was designed to insure the exclusion of so-called leaders of purported labor unions in the Soviet Union and in other Communist countries of Eastern Europe who, whatever else they may be, cannot be considered genuine representatives of workers but are, rather, representatives of the State. 125 Cong. Rec. 8345 (1979) (remarks of Representative Solarz). As noted by Judge Bork (App., infra, 54a), while this provision specifically concerns only labor leaders, it reflects a broader understanding regarding the limits of the McGovern Amendment-namely, that representives of foreign governments may be excluded notwithstanding their affiliation with Subsection 28 organizations. /14/ The court of appeals' holding would create anomalous results. As noted by Judge Bork (App., infra, 56a), the panel's decision confers a favored entry status on those who are members of Subsection 28 organizations, and requires the Executive to ignore an established affiliation between a given Subsection 28 organization and a particular foreign government. In the Cronin v. Shultz case, for example, the court has refused to permit the government to conclude that Nino Pasti is an undisclosed agent of the Soviet Union based on his membership in the World Peace Council. Yet, as already noted, the State Department has determined that the World Peace Council is an instrumentality of the Soviet Union. See page 10, supra. As one Department document concluded, the World Peace Council has a "preponderance of Soviet and pro-Soviet personnel in (its) key * * * leadership and decisionmaking positions"; "the bulk of its expenses are met by the Soviet Union"; and it "operate(s) however Soviet foreign policy interests dictate" (Dep's of State, World Peace Council: Instrument of Soviet Foreign Policy, Foreign Affairs Note (April 1982), reprinted in C.A. App. A145, A147, A148). There is simply no basis for the court of appeals' assumption that Congress intended in the McGovern Amendment to have the Executive close its eyes to such an alter ego relationship. /15/ In any event, the Executive's view that the McGovern Amendment permits it to take this relationship into account, for purposes of Subsection 27, is plainly not unreasonable, and is entitled to deference under Chevron and the other authorities discussed above (pages 20-21). Indeed, the government's construction of the Amendment is rooted in established administrative practice under the Immigration Act. It is not infrequent that, as here, the facts of a case overlap two (or more) statutory grounds for exclusion or deportation, one of which contains a waiver provision such as the McGovern Amendment. This Court has held that the Executive's decision in such circumstances to proceed on the grounds without the waiver is not-as the court of appeals suggests-an "evasion," but rather is fully consistent with statutory authority. See Reid v. INS, 420 U.S. 619 (1975); see also Castro-Guerrero v. INS, 515 F.2d 615 (5th Cir. 1975); In re Diaz, 15 I. & N. Dec. 488 (B.I.A. 1975). 2. It is vitally important that there be unambiguous recognition of the authority of the Department of State to exclude aliens whose presence or entry will impede its conduct of foreign affairs. As Under Secretary Eagleburger indicated (see pages 6-7, supra), Subsection 27 is used sparingly and, when it is used, it is because there are "significant diplomatic or foreign policy ramifications" at stake (C.A. App. A137). The Department of State should not be required to disregard the fact that the entry of a particular alien can have diplomatic repercussions, or the reality that some organizations are controlled by foreign governments. Moreover, review by this Court is needed at the present stage of these cases because the court of appeals' decision manifests a troubling "process of judicial incursion into the United States' conduct of its foreign affairs" (App., infra, 64a (Bork, J., dissenting)). The ill effects of the decision will be felt both immediately and recurrently. The immediate effect, of course, will be an inappropriate and seriously intrusive remand, where the district court is to inquire into the circumstances of prior instances of Subsection 27's use, and into whether the United States has adequately demonstrated in this case that its exclusion of the aliens at issue was for reasons independent of, and not merely in addition to, their membership in organizations affiliated with foreign governments. /16/ On the "mere entry/activity" issue, the panel demands that the government "come forward with further examples of the exercise or assertion of power to exclude under subsection (27) on the basis of presence alone," and requires that plaintiffs be given "sufficient discovery to contest those examples and provide counter-examples" (id. at 21a-22a (footnote omitted)). On the McGovern Amendment issue, the court requires further analysis of whether the visa applicants "have governmental affiliations independent of their membership in subsection (28) organizations" (see, e.g., id. at 29a n.23). Plaintiffs have, indeed, already taken the court's remand on the administrative practice issue as an invitation to discover the rationale underlying prior Subsection 27 exclusions. For example, in one discovery request, plaintiffs ask the Department of State to "describe the facts which formed the basis" for "every instance from January 1, 1970 to the present in which a visa was denied pursuant to" Subsection 27. Plaintiffs' First Set of Interrogatories and Document Requests, para. 12(a). /17/ See also, e.g., C.A. App. A180 (para. 4 of Declaration of Charles S. Sims (plaintiffs' co-counsel), discussing the wide discovery needed). Presumably, because the court of appeals' order allows plaintiffs to "contest" the examples produced by the government, plaintiffs will claim that they are entitled to cross-examine government officials regarding the reasons behind each example offered a result fundamentally inconsistent with the Executive's exclusive discretion in this area. Cf. App., infra, 54a-55a n.5 (Bork, J.) ("requiring the Executive to justify a pattern of visa grants and denials would force the Department of State either to discuss highly sensitive matters in a public forum or to forego its authority to deny many visas"). On the McGovern Amendment issue, plaintiffs are likely to seize upon the court of appeals' remand order as authority to dispute any government determination that the visa applicants (independent of their organizational ties) are affiliated with foreign states. Indeed, the court of appeals posed just such a dispute in the case of Leonor Rodriguez Lezcano. The court stated that it did "not now comprehend any basis for claiming that (Lezcano has) governmental affiliations independent of (her) membership in subsection (28) organizations" (App., infra, 29a n.23). The court's conclusion, however, cannot be reconciled with Under Secretary Eagleburger's finding that "(t)he official, governmental nature of (both Lezcano's and olga Finlay's) proposed trip was clearly manifested both by the issuance to the two women of Cuban diplomatic passports and by the submission of their applications through diplomatic channels" (C.A. App. A142). By reviewing - and indeed rejecting - the Under Secretary's finding, the court of appeals engaged in an exercise which could not be "further outside the bounds of judicial competence, or more intrusive with respect to the conduct of foreign affairs" (App., infra, 52a n.4 (Bork, J.)). /18/ In short, the court of appeals' decision was quite wrong, it will create substantial problems for the government's conduct of foreign policy, and will necessitate unseemly inquiry into its decisionmaking in this area. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROGER CLEGG Assistant to the Solicitor General MICHAEL JAY SINGER JOEL W. NOMKIN Attorneys ABRAHAM D. SOFAER Legal Adviser Department of State OCTOBER 1986 /1/ The alien has "the burden of proof * * * to establish that he is eligible to receive such visa * * * or is not subject to exclusion under any provision of (the Act)." 8 U.S.C. 1361. Any alien may apply or reapply for a visa at any time, and each visa application is given independent consideration by the consular officer on the basis of the facts and circumstances known at the time of the particular application. See 22 C.F.R. 41.90. /2/ According to an affidavit filed in the district court in March 1984, for the preceding 20-year period in which the State Department had kept such statistics (1963-1983), consular officers issued nearly 70 million nonimmigrant visas, and denied (on foreign policy or internal security grounds) only 519 applications for such visas under Subsection 27 (C.A. App. A161). During the most recent period, from 1981 through 1983, six to seven million nonimmigrant visas had been granted annually, and an average of less than 30 were denied under Subsection 27 (ibid). These figures are also found in the Statement of Joan Clark, Assistant Secretary of State for Consular Affairs, Department of State, Exclusion and Deportation Amendments: Hearings on H.R. 4509 and H.R. 5227 Before the Subcomm. on Immigration, Refugees and International Law of the House Comm. on the Judiciary, 98th Cong., 2d Sess. 90 (1984); and Dep't of State, Bureau of Consular Affairs, Reports of the Visa Office (FY - 1980, 1981, 1982). /3/ In the district court, in support of its motion to dismiss or, in the alternative, for summary judgment, the government submitted one public affidavit of Under Secretary Eagleburger (C.A. App. A135-A152) and two public affidavits of Deputy Assistant Secretary of State Louis P. Goelz (id. at A153-A167, A304-A308). The government also filed three classified affidavits from Under Secretary Eagleburger, which were submitted for the district court's in camera inspection (App., infra, 86a-94a). These classified affidavits were also submitted in camera to the court of appeals. Following the remand of these cases from the court of appeals, the government determined that the passage of time would permit declassification of nearly all of the in camera affidavits. Only one paragraph and part of one sentence in one of the affidavits (see App., infra, 92a, 94a) remain classified. The affidavits, as declassified, have been provided to respondents. /4/ The plaintiffs in Abourezk - members of Congress, university professors, journalists, and religious leaders - invited Borge to the United States to discuss issues regarding Central America and Nicaragua. See App., infra, 5a, 66a; C.A. App. A18. /5/ The plaintiffs in City of New York - the New York City Commission on the Status of Women and several women's studies programs at various universities - invited Finlay and Lezcano to the United States to discuss issues concerning women. See App., infra, 6a, 67a; C.A. App. A33-A34. /6/ The plaintiffs in Cronin are principally groups advocating nuclear disarmament. They invited Pasti to attend and speak at a rally in Boston. App., infra, 5a, 66a-67a; C.A. App. A47. /7/ The court also rejected the government's threshold objections to judicial review: that the cases were moot, that plaintiffs lacked standing, and that the district court lacked subject matter jurisdiction (App., infra, 8a-13a). /8/ The court nevertheless found in the record "at least one instance, of which Congress was apprised," in which the State Department actually excluded an alien because of concerns about his mere presence in the United States (App., infra, 21a). The court also recognized that 9 Dep't of State, Foreign Affairs Manual, Pt. II, Section 41.91 (a)(27)(1.4) (1975) gave as an example of an alien excludible under Subsection 27 one who engaged in physical brutality while in political power (App., infra, 19a-20a); the court acknowledged that this "example in the Manual may represent an open assertion of the power to exclude under Subsection (27) on the basis of entry alone" (id. at 20a). /9/ Indeed, recent history amply demonstrates that the distinction between entry and activity is basically irrelevant to the statutory purpose. As the district court observed, "(t)he mere entry of the Shah (of Iran) into the United States and his presence in this country had the most serious consequences for the United States, including the seizure of American hostages in Teheran and all that flowed from that episode" (App., infra, 73a). /10/ Both the House and Senate reports stated that Subsection 27 merely "incorporate(s)" Section 22 of the Internal Security Act of 1950. S. Rep. 1137, 82d Cong., 2d Sess. 10 (1952); H.R. Rep. 1365, 82d Cong., 2d Sess. 30, 49 (1952). /11/ Judge Bork's dissent cites three other examples from the legislative history which also demonstrate that Congress was concerned with an alien's presence, not just his likely activities after entry. App., infra, 40a-42a. /12/ Even if evidence of administrative practice were needed to decide the "mere entry/presence" issue, such evidence may be found without any remand. As discussed earlier (page 14), Judge Bork noted evidence already in the record supporting the government's position. Although the court of appeals relied on Kent v. Dulles, 357 U.S. 116 (1958), to find these examples inadequate (App., infra, 21a-22a) "(i)t would turn Kent on its head to say that simply because we have had only a few situations involving conduct such as that in the record, the Executive lacks the authority to deal with the problem when it is encountered." Haig v. Agee, 453 U.S. 280, 303 (1981) (footnote omitted). Finally, the Office of Legal Counsel of the Department of Justice (OLC) has noted that in 1968 the State Department excluded certain Rhodesians because of concerns not with "any specific activities in which they would engage here, but (with) the serious adverse foreign policy consequences of allowing them to be present in violation of Security Council Resolution 253" (1 Op. Off. Legal Counsel 64, 70 (1977)). Relying, inter alia, on a discussion of legislative history that parallelled Judge Bork's (id. at 71-72), OLC concluded there that the exclusion had been "based on a reasonable administrative interpretation of (Subsection 27)" (id. at 71), and accordingly endorsed a similar exclusion in 1977. See also 8 U.S.C. 1103(a) (vesting authoritative executive interpretation of the Act in the Attorney General). The Rhodesian incidents illustrate the consistency - and utility - from Administration to Administration of the interpretation of Subsection 27. /13/ That the particular circumstances were considered and the exclusions not reflexively made is further demonstrated by the fact that, in earlier circumstances, three of the four aliens involved here had been granted admission (see App., infra, 28a). /14/ Significantly, the legislative history apparently offers only two examples of the kind of persons to whom the McGovern Amendment would apply: Eurocommunist leaders and communist labor leaders. See S. Rep. 95-194, 95th Cong., 1st Sess. 13 (1977). Neither are government representatives. /15/ The court of appeals apparently held that even its interpretation of the statutes was satisfied in the case of Tomas Borge (App., infra, 29a n.23). /16/ It deserves emphasis that these intrusive proceedings on remand are required here under the panel's decision even though the district court had ruled to the contrary and five out of nine participating appellate judges voted to grant rehearing en banc. /17/ This discovery request was originally served on December 30, 1983, and was revived following the court of appeals' remand order. See C.A. App. A66. /18/ In Kleindienst v. Mandel, 408 U.S. at 770, this Court specifically instructed the courts not to "look behind" the "facially legitimate and bona fide reason(s)" offered by the Executive for exclusion of aliens. Such an inquiry would bring the judiciary into an area committed "exclusively (to) the political branches of government" (id. at 765 (quotation marks omitted)). Accord, e.g., Mathews v. Diaz, 426 U.S. 67, 81 (1976); Shaughnessy v. Mezei, 345 U.S. at 210; Harisiades v. Shaughnessy, 342 U.S. at 589. Appendix