FIALLO, A MINOR, BY RODRIGUEZ, ET AL. v. BELL, ATTORNEY GENERAL, ET AL.
No. 75-6297
Supreme Court of the United States
Argued December 7, 1976—Decided April 26, 1977
430 U.S. 787
Janet M. Calvo argued the cause for appellants pro hac vice. With her on the briefs were Kalman Finkel, John E. Kirklin, and Anita Fisher Barrett.
Harold R. Tyler, Jr., argued the cause for appellees. On the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, Kenneth S. Geller, and Sidney M. Glazer.
MR. JUSTICE POWELL delivered the opinion of the Court.
This case brings before us a constitutional challenge to
I
The Act grants special preference immigration status to aliens who qualify as the “children” or “parents” of United States citizens or lawful permanent residents. Under
The special preference immigration status provided for those who satisfy the statutory “parent-child” relationship depends on whether the immigrant‘s relative is a United States citizen or permanent resident alien. A United States citizen is allowed the entry of his “parent” or “child” without regard to either an applicable numerical quota or the labor certification requirement.
A three-judge District Court was convened to consider the constitutional issues. After noting that Congress’ power to fashion rules for the admission of aliens was “exceptionally broad,” the District Court held, with one judge dissenting, that the statutory provisions at issue were neither “wholly devoid of any conceivable rational purpose” nor “fundamentally aimed at achieving a goal unrelated to the regulation of immigration.” Fiallo v. Levi, 406 F. Supp. 162, 165, 166 (1975). The court therefore granted judgment for the Government and dismissed the action.
II
At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that “over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U. S. 320, 339 (1909); accord, Kleindienst v. Mandel, 408 U. S. 753, 766 (1972). Our cases “have long recognized the power to expel or 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); see, e. g., Harisiades v. Shaughnessy, 342 U. S. 580 (1952); Lem Moon Sing v. United States, 158 U. S. 538 (1895); Fong Yue Ting v. United States, 149 U. S. 698 (1893); The Chinese Exclusion Case, 130 U. S. 581 (1889). Our recent decisions have not departed from this long-established rule. Just last Term, for example, the Court had occasion to note that “the power over aliens is of a political character and therefore subject only to narrow judicial review.” Hampton v. Mow Sun Wong, 426 U. S. 88, 101 n. 21 (1976), citing Fong Yue Ting v. United States, supra, at 713; accord, Mathews v. Diaz, 426 U. S. 67, 81-82 (1976). And we observed recently that in the exercise of its broad power over immigration and naturalization, “Congress regularly makes rules that would be unacceptable if applied to citizens.” Id., at 80.4
Appellants suggest a second distinguishing factor. They argue that none of the prior immigration cases of this Court involved “double-barreled” discrimination based on sex and illegitimacy, infringed upon the due process rights of citizens and legal permanent residents, or implicated “the fundamental constitutional interests of United States citizens and permanent residents in a familial relationship.” Brief for Appellants 53-54; see id., at 16-18. But this Court has resolved similar challenges to immigration legislation based on other constitutional rights of citizens, and has rejected the suggestion that more searching judicial scrutiny is required. In Kleindienst v. Mandel, supra, for example, United States citizens challenged the power of the Attorney General to deny a visa to an alien who, as a proponent of “the economic, international, and governmental doctrines of World communism,” was ineligible to receive a visa under
“The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.” 342 U. S., at 596-597.
As originally enacted in 1952,
This distinction is just one of many drawn by Congress pursuant to its determination to provide some—but not all—families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country. In addition to the distinction at issue here, Con-
With respect to each of these legislative policy distinctions, it could be argued that the line should have been drawn at a different point and that the statutory definitions deny preferential status to parents and children who share strong family ties. Cf. Mathews v. Diaz, supra, at 83-84. But it is clear from our cases, see Part II, supra, that these are policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress.
Appellants suggest that the distinction drawn in
IV
We hold that
Affirmed.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
Until today I thought it clear that when Congress grants benefits to some citizens, but not to others, it is our duty to insure that the decision comports with
I
The Immigration and Nationality Act of 1952 (INA),
The unfortunate consequences of these omissions are graphically illustrated by the case of appellant Cleophus Warner.4
II
The Government contends that this legislation is not subject to judicial review. Pointing to the fact that aliens have no constitutional right to immigrate to the United States and to a long line of cases that recognize that policies pertaining to
The Court rightly rejects this expansive claim and recognizes that “[o]ur cases reflect acceptance of a limited judicial responsibility even with respect to the power of Congress to regulate the admission and exclusion of aliens.” Ante, at 793 n. 5. It points out, however, that the scrutiny is circumscribed. Congress has “broad power to determine which classes of aliens may lawfully enter the country” and its political judgments warrant deference. Ante, at 794-796.
I wholeheartedly agree with the Court‘s rejection of the Government‘s claim of unreviewable discretion. Indeed, as I observed in Kleindienst v. Mandel, 408 U. S. 753, 781 (1972) (dissenting opinion), the old immigration cases that reflect an absolute “hands-off” approach by this Court “are not the strongest precedents in the United States Reports.” I am pleased to see the Court reveal once again a “reluctance to rely on them completely.” Ibid. I also have no quarrel with the principle that the essentially political judgments by Congress as to which foreigners may enter and which may not deserve deference from the judiciary.
My disagreement with the Court arises from its application of the principle in this case. The review the majority purports to require turns out to be completely “toothless.” Cf. Trimble v. Gordon, ante, at 767. After observing the effects of the denial of preferential status to appellants, the majority concludes: “[B]ut the decision nonetheless remains one ‘solely for the responsibility of the Congress and wholly outside the power of this Court to control.‘” Ante, at 799. Such “review” reflects more than due deference; it is abdication.6
This case, unlike most immigration cases that come before the Court, directly involves the rights of citizens, not aliens. “[C]oncerned with the problem of keeping families of United States citizens and immigrants united,” H. R. Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957), Congress extended to American citizens the right to choose to be reunited in the United States with their immediate families. The focus was on citizens and their need for relief from the hardships occasioned by the immigration laws. The right to seek such relief was given only to the citizen, not the alien.
The majority responds that in Kleindienst v. Mandel, supra, the Court recognized that
Whatever the merits of the Court‘s fears in Mandel, cf. id., at 774 (MARSHALL, J., dissenting), the present case is clearly distinguishable in two essential respects. First, in Mandel, Congress had not focused on citizens and their need for relief. Rather, the governmental action was concerned with keeping out “undesirables.” The impact on the citizens’ right to hear was an incidental and unavoidable consequence of that political judgment. The present case presents a qualitatively different situation. Here, the purpose of the legislation is to accord rights, not to aliens, but to United States citizens. In so doing, Congress deliberately chose, for reasons unrelated to foreign policy concerns or threats to national security, to deny those rights to a class of citizens traditionally subject to discrimination.8 Second, in Mandel, unlike the present case, appellees conceded the ability of Congress to enact legislation broadly prohibiting the entry of all aliens with Mandel‘s beliefs.9 Their concern was directed instead to the exercise of the discretion granted the Attorney General to waive the prohibition. In the present case, by contrast, we are asked to engage in the traditional task of reviewing the valid-
III
A
Once it is established that this discrimination among citizens cannot escape traditional constitutional scrutiny simply because it occurs in the context of immigration legislation, the result is virtually foreordained. One can hardly imagine a more vulnerable statute.
The class of citizens denied the special privilege of reunification in this country is defined on the basis of two traditionally disfavored classifications—gender and legitimacy. Fathers cannot obtain preferred status for their illegitimate children; mothers can. Conversely, every child except the illegitimate—legitimate, legitimated, step-, adopted—can obtain preferred status for his or her alien father. The Court has little tolerance for either form of discrimination. We require that gender-based classifications “serve important governmental objectives and be substantially related to achievement of those objectives.” Califano v. Webster, ante, at 317; Califano v. Goldfarb, ante, at 210-211; Craig v. Boren, 429 U. S. 190, 197 (1976); see also Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Stanton v. Stanton, 421 U. S. 7 (1975); Taylor v. Louisiana, 419 U. S. 522 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973); Reed v. Reed, 404 U. S. 71 (1971). We are similarly hostile to legislation excluding illegitimates from governmental beneficence, finding it “illogical and unjust” to deprive a child “simply because its natural father has not married its mother.” Gomez v. Perez, 409 U. S. 535, 538 (1973). See also Trimble v. Gordon, ante, p. 762; Jimenez v. Weinberger, 417 U. S. 628 (1974); Beaty v. Weinberger, 478 F. 2d 300 (CA5 1973), summarily aff‘d, 418 U. S. 901 (1974);
But it is not simply the invidious classifications that make the statute so vulnerable to constitutional attack. In addition the statute interferes with the fundamental “freedom of personal choice in matters of marriage and family life.” Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974); see also Roe v. Wade, 410 U. S. 133, 152-153 (1973); Wisconsin v. Yoder, 406 U. S. 205, 231-233 (1972); Stanley v. Illinois, 405 U. S. 645, 651 (1972); Ginsberg v. New York, 390 U. S. 629, 639 (1968); Griswold v. Connecticut, 381 U. S. 479 (1965); id., at 495-496 (Goldberg, J., concurring); id., at 502-503 (WHITE, J., concurring); Poe v. Ullman, 367 U. S. 497, 542-544, 549-553 (Harlan, J., dissenting). The right to live together as a family belongs to both the child who seeks to bring in his or her father and the father who seeks the entrance of his child.
“It is no less important for a child to be cared for by its . . . parent when that parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the ‘companionship, care, custody, and management’ of ‘the children he has sired and raised . . . .’ Stanley v. Illinois, 405 U. S. 645, 651 (1972).” Weinberger v. Wiesenfeld, supra, at 652.
In view of the legislation‘s denial of this right to these classes, it is clear that, whatever the verbal formula, the Government bears a substantial burden to justify the statute.
There is no dispute that the purpose of these special preference provisions is to reunify families separated by the immigration laws. As Congress itself declared “[t]he legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended [in these provisions] to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united.” H. R. Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957). It is also clear that when Congress extended the privilege to cover the illegitimate-child-mother relationship in 1957, it did so to alleviate hardships it found in several cases denying preferential status to illegitimate children and their mothers. Id., at 7-8. Accord, S. Rep. No. 1057, 85th Cong., 1st Sess., 4 (1957).
The legislative history, however, gives no indication of why these privileges were absolutely denied illegitimate children and their fathers.10 The Government suggests that Congress may have believed that “such persons are unlikely to have maintained a close personal relationship with their offspring.” Brief for Appellees 17. If so, Congress’ chosen shorthand for “closeness” is obviously overinclusive. No one can dispute that there are legitimate, legitimated, step-, and adoptive parent-child relationships and mother-illegitimate child relationships that are not close and yet are accorded the preferential status. Indeed, the most dramatic illustration of the overinclusiveness is the fact that while Mr. Warner can never be deemed a “parent” of Serge, nevertheless, if he should marry, his wife could qualify as a stepparent, entitled to obtain for Serge the preferential status that Mr. Warner cannot
That the statute is underinclusive is also undisputed. Brief for Appellees 17; Tr. of Oral Arg. 21. Indeed, the Government could not dispute it in view of the close relationships exhibited in appellants’ cases, recognized in our previous cases, see, e. g., Trimble v. Gordon, ante, p. 762; Weber v. Aetna Casualty & Surety Co., supra, at 169; Stanley v. Illinois, supra, and established in numerous studies.12
The Government suggests that Congress may have decided to accept the inaccurate classifications of this statute because they considered a case-by-case assessment of closeness and
“Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.” 405 U. S., at 656-657.
See also Glona v. American Guarantee & Liability Ins. Co., supra.
This Court has been equally intolerant of the rationale when it is used to deny rights to the illegitimate child. While we are sensitive to “‘the lurking problems with respect to proof of paternity,‘” Trimble v. Gordon, ante, at 771, quoting Gomez v. Perez, 409 U. S. 535, 538 (1973), we are careful not to allow them to be “‘made into an impenetrable barrier that works to shield otherwise invidious discrimination.‘” Trimble, ante, at 771. We require, at a minimum, that the “‘statute [be] carefully tuned to alternative considerations,‘” ante, at 772, quoting Mathews v. Lucas, 427 U. S., at 513, and not exclude all illegitimates simply because some situations involve difficulties of proof. Ibid.
Given such hostility to the administrative-convenience argument when invidious classifications and fundamental rights are involved, it is apparent that the rationale is inadequate in the present case. As I observed earlier, since Congress gave no indication that administrative costs were its concern we should scrutinize the hypothesis closely. The likelihood of such a rationale is diminished considerably by the comprehensive and elaborate administrative procedures
Nor is a fear of involvement with foreign laws and records a persuasive explanation of the omission. In administering the Act with respect to legitimated children, for example, the critical issue is whether the steps undertaken are adequate under local law to render the child legitimate, and the INS has become expert in such matters.14 I note, in this connec-
Given the existence of these procedures and expertise, it is difficult indeed to give much weight to the hypothesized administrative-convenience rationale. Moreover, as noted previously, this Court will not allow concerns with proof to justify “an impenetrable barrier that works to shield otherwise invidious discrimination.” Gomez, supra, at 538. As the facts of this case conclusively demonstrate, Congress has “failed to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity.” Trimble, ante, at 770-771. Mr. Warner is a classic example of someone who can readily prove both paternity and closeness. Appellees concede this. Tr. of Oral Arg. 21-22. The fact that he is denied the opportunity demonstrates beyond peradventure that Congress has failed to “‘carefully tun[e] [the statute] to alternative considerations.‘” Trimble, ante, at 772, quoting Mathews v. Lucas, 427 U. S., at 513. That failure is fatal to the statute. Trimble, ante, at 772-773.16
When Congress grants a fundamental right to all but an invidiously selected class of citizens, and it is abundantly clear that such discrimination would be intolerable in any context but immigration, it is our duty to strike the legislation down. Because the Court condones the invidious discrimination in this case simply because it is embedded in the immigration laws, I must dissent.
MR. JUSTICE WHITE also dissents, substantially for the reasons stated by MR. JUSTICE MARSHALL in his dissenting opinion.
Notes
“(1) The term ‘child’ means an unmarried person under twenty-one years of age who is—
“(A) a legitimate child; or
“(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; or
“(C) a child legitimated under the law of the child‘s residence or domicile, or under the law of the father‘s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
“(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;
“(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.
“(F) a child, under the age of fourteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151 (b) of this title [§ 201 (b)], who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care which will be provided the child if admitted to the United States and who has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and his spouse who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse who have complied with the preadoption requirements, if any, of the child‘s proposed residence: Provided, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.” Title 8 U. S. C. §§ 1151 (a) and (b) provide:
Ҥ 1151. Numerical limitations on total lawful admissions.
“(a) Quarterly and yearly limitations.
“Exclusive of special immigrants defined in section 1101 (a) (27) of this title, and of the immediate relatives of United States citizens specified in subsection (b) of this section, the number of aliens who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence, or who may, pursuant to section 1153 (a) (7) of this title enter conditionally, (i) shall not in any of the first three quarters of any fiscal year exceed a total of 45,000 and (ii) shall not in any fiscal year exceed a total of 170,000.
“(b) Immediate relatives defined.
“The ‘immediate relatives’ referred to in subsection (a) of this section shall mean the children, spouses, and parents of a citizen of the United States: Provided, That in the case of parents, such citizen must be at least twenty-one years of age. The immediate relatives specified in this subsection who are otherwise qualified for admission as immigrants shall be admitted as such, without regard to the numerical limitations in this chapter.” (Emphasis added.)
The changes made by the 1976 Amendments were not material to this case.
Title 8 U. S. C. § 1182 (a) (14) provides:
Ҥ 1182. Excludable aliens.
“(a) General classes.
“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:
. . . . .
“(14) Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. The exclusion of aliens under this paragraph shall apply to special immigrants defined in section 1101 (a) (27) (A) of this title (other than the parents, spouses, or children of United States citizens or of aliens lawfully admitted to the United States for permanent residence), to preference immigrant aliens described in sections 1153 (a) (3) and 1153 (a) (6) of this title, and to nonpreference immigrant aliens described in section 1153 (a) (8) of this title.” (Emphasis added.)
For the significance of the 1976 Amendments on this section, see n. 4, infra.
“shall not operate to affect the entitlement to immigrant status or the order of consideration for issuance of an immigrant visa of an alien entitled to a preference status, under section 203 (a) of the Immigration and Nationality Act, as in effect on the day before the effective date of this Act, on the basis of a petition filed with the Attorney General prior to such effective date.” Title 8 U. S. C. § 1101 (b) (1) provides:
“(1) The term ‘child’ means an unmarried person under twenty-one years of age who is—
“(A) a legitimate child; or
“(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; or
“(C) a child legitimated under the law of the child‘s residence or domicile, or under the law of the father‘s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
“(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;
“(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.
“(F) a child, under the age of fourteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151 (b) of this title, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care which will be provided the child if admitted to the United States and who has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and his spouse who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse who have complied with the preadoption requirements, if any, of the child‘s proposed residence: Provided, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.”
Appellant Cleophus Warner, a naturalized United States citizen, is the unwed father of appellant Serge Warner, who was born in 1960 in the French West Indies. In 1972 Cleophus Warner petitioned the Immigration and Naturalization Service to classify Serge as Warner‘s “child” for purposes of obtaining an immigrant visa, but the petition was denied on the ground that there was no evidence that Serge was Warner‘s legitimate or legitimated offspring.
Appellants Trevor Wilson and Earl Wilson, permanent resident aliens, are the illegitimate children of appellant Arthur Wilson, a citizen of Jamaica. Following the death of their mother in 1974, Trevor and Earl sought to obtain an immigrant visa for their father. We are informed by the appellees that although the application has not yet been rejected, denial is certain since the children are neither legitimate nor legitimated offspring of Arthur Wilson. Title 8 U. S. C. § 1101 (b) (2) provides:
“The terms ‘parent,’ ‘father,’ or ‘mother’ mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in subdivision (1) of this subsection.”
“But the slate is not clean. As to the extent of the power of Congress under review, there is not merely ‘a page of history’ . . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . .
“We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens. . . .” Id., at 530-532.
We are no more inclined to reconsider this line of cases today than we were five years ago when we decided Kleindienst v. Mandel, 408 U. S. 753, 767 (1972). Instituting this suit with Warner were Ramon Fiallo, and Trevor and Earl Wilson. Both Fiallo, a five-year-old American citizen, and the Wilsons, teen-aged permanent resident aliens, sought the waiver of the labor certification requirements for their respective fathers. Although the 1976 Amendments removed the exemptions from the labor certification requirement for the parent-child relationship, nevertheless their cases are not moot. There is a saving clause providing: “The amendments made by this Act shall not operate to affect the entitlement to immigrant status or the order of consideration for issuance of an immigrant visa of an alien entitled to a preference status, under section 203 (a) of the Immigration and Nationality Act, as in effect on the day before the effective date of this Act, on the basis of a petition filed with the Attorney General prior to such effective date.” 1976 Amendments § 9.
Since these situations cannot recur, however, I will focus on Mr. Warner, whose plight, unfortunately, can be repeated.
We are dealing here with an exercise of the Nation‘s sovereign power to admit or exclude foreigners in accordance with perceived national interests. Although few, if any, countries have been as generous as the United States in extending the privilege to immigrate, or in providing sanctuary to the oppressed, limits and classifications as to who shall be admitted are traditional and necessary elements of legislation in this area. It is true that the legislative history of the provision at issue here establishes that congressional concern was directed at “the problem of keeping families of United States citizens and immigrants united.” H. R. Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957). See also H. R. Rep. No. 1365, 82d Cong., 2d Sess., 29 (1952) (statute implements “the underlying intention of our immigration laws regarding the preservation of the family unit“). To accommodate this goal, Congress has accorded a special “preference status” to certain aliens who share relationships with citizens or permanent resident aliens. But there are widely varying relationships and degrees of kinship, and it is appropriate for Congress to consider not only the nature of these relationships but also problems of identification, administration, and the potential for fraud. In the inevitable process of “line drawing,” Congress has determined that certain classes of aliens are more likely than others to satisfy national objectives without undue cost, and it has granted preferential status only to those classes.
As Mr. Justice Frankfurter wrote years ago, the formulation of these “[p]olicies pertaining to the entry of aliens . . . is entrusted exclusively to Congress.” Galvan v. Press, 347 U. S., at 531. This is not to say, as we make clear in n. 5, supra, that the Government‘s power in this area is never subject to judicial review. But our cases do make clear that despite the impact of these classifications on the interests of those already within our borders, congressional determinations such as this one are subject only to limited judicial review. The majority does not even engage in the modest degree of scrutiny required by Kleindienst v. Mandel, 408 U. S. 753 (1972). See discussion infra, at 807-808. That failure, I submit, is due to the fact that the statute could not even pass that standard of review. See Part III, infra.
“(b) Investigation; consultation; approval; authorization to grant preference status
“After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 1153 (a) (3) or 1153 (a) (6) of this title, the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151 (b) of this title, or is eligible for a preference status under section 1153 (a) of this title, approve the petition and forward one copy thereof to the Department of State. The Secretary of State shall then authorize the consular officer concerned to grant the preference status.”
Title 8 U. S. C. § 1153 (d) precludes a consular officer from granting preferential status as an “immediate relative” “until he has been authorized to do so as provided by section 1154.”