Gerry ADAMS, et al., Plaintiffs, Appellants, v. James BAKER, Secretary of State; Richard Thornburgh, Attorney General; and Alan C. Nelson, Director of the Immigration and Naturalization Service, Defendants, Appellees.
No. 89-1903.
United States Court of Appeals, First Circuit.
Decided July 26, 1990.
Heard Feb. 6, 1990.
909 F.2d 643
Thomas W. Hussey, Deputy Director, Office of Immigration Litigation, with whom Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., and Wayne A. Budd, U.S. Atty., Boston, Mass., were on brief, for defendants, appellees.
Before CAMPBELL, BOWNES and TORRUELLA, Circuit Judges.
TORRUELLA, Circuit Judge.
At issue before this court is the propriety of the district court‘s decision granting summary judgment to the government and dismissing plaintiffs‘-appellants’ challenge to the denial of a nonimmigrant visa to an alien, Gerry Adams. After careful analysis and review, we affirm the decision of the district court.
I. BACKGROUND
In March, 1988, Gerry Adams, a citizen and resident of the Republic of Ireland, sought entry into the United States for the purpose of conducting a speaking tour. He proposed to address a variety of groups on subjects including the state of civil and human rights in the six counties referred to as Northern Ireland, as well as other related issues. At that time, Adams was the president of Sinn Fein, an organization which the United States Department of State believed to be the political arm of the Provisional Irish Republican Army (“IRA“), an organization engaged in terrorist activities in Northern Ireland and elsewhere. He was also an elected member of the British Parliament.
On the basis of the exclusionary provisions of Section 212(a)(28)(F) of the
The district court entered summary judgment for the State Department, holding that the government had provided a “facially legitimate and bona fide reason” for the alien‘s exclusion in accordance with the principles of Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). In so doing, the court implicitly rejected appellants’ statutory and constitutional claims as insufficient to warrant Adams’ entrance into the United States. For the reasons enumerated below, we affirm the decision of the district court.
II. STATUTORY BACKGROUND
Contained within the
Nonimmigrant visas, such as the one sought by Adams, may be granted to aliens seeking temporary admission into the United States for a variety of reasons. See
(F) Aliens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches ... (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his official character; or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage[.]
The amendment provides standards for the Secretary of State‘s determination of whether to recommend a waiver of subsection 28. It essentially requires the granting of a waiver, because such a waiver can only be avoided if the Secretary can certify to the Speaker of the House of Representatives that admission of the alien would be contrary to the security interests of the United States.
DeAllende v. Baker, 891 F.2d 7, 9-10 (1st Cir.1989). The Amendment, however, is applicable only to those aliens whose sole basis for exclusion is membership in or affiliation with a proscribed organization. “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.”
But the McGovern Amendment is not the only source wherein exceptions to
III. DENIAL OF ADAMS’ VISA APPLICATION
A. Standard of Review
Nowhere is the scope of judicial inquiry more limited than in the area of immigration legislation. E.g., Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). Indeed, the Supreme Court has “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, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). See also Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1478; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 reh‘g denied, 343 U.S. 936, 72 S.Ct. 767, 96 L.Ed. 1344 (1952); The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). The political character of this intrinsically executive function renders it “subject only to narrow judicial review.” Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21, 96 S.Ct. 1895, 1904 n. 21, 48 L.Ed.2d 495 (1976) (citing Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905 (1893) (quoted in Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1478)).
when the Executive exercises this power [to admit an alien] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
Id. at 770, 92 S.Ct. at 2585. Thus, if the Department of State‘s determination that Adams was ineligible to receive a visa under
In reviewing the findings of the district court with regard to the factual circumstances surrounding the government‘s decision to exclude Adams from admittance into the United States, we look only for clear error. See, e.g., Langhammer v. Hamilton, 295 F.2d 642, 647 (1st Cir.1961). While conclusions of law are, conversely, reviewable de novo, see, e.g., North American Industries, Inc. v. Feldman, 722 F.2d 893, 898-99 (1st Cir.1983), the district court‘s application of the Kleindienst “facially legitimate” standard is a mixed question of law and fact, see Amanullah v. Nelson, 811 F.2d 1, 9-10 (1st Cir.1987). Therefore, our review in this case must be conducted using this dual standard of review.
B. Rationale for Exclusion
The Department of State determined that Adams was ineligible for a visa under the provisions of
Appellants take exception. On appeal, they essentially argue that Section 901 entitles Adams to a waiver of the exclusionary provisions of
Contained within Section 901 is an express exception for those aliens who “a consular official ... knows or has reasonable ground to believe has engaged, in an individual capacity or as a member of an organization, in a terrorist activity....”
The consular judgment regarding Adams’ relationship to terrorist violence and the reliability of the information used by the consular officer in reaching that judgment is subject only to very narrow review. We note, first, that in the absence of statutory authorization or mandate from Congress, factual determinations made by consular officers in the visa issuance process are not subject to review by the Secretary of State,
Appellants essentially argue that the government‘s information was entirely based on several statements he made as President of Sinn Fein, as well as reports made in various printed forms, including books and newspapers. They argue that it was impermissible to exclude Adams on the basis of this information because the articles, books and other materials relied upon by the government would be inadmissible at trial both because they contain hearsay, and because the information relating to Adams’ involvement in terrorist activities may be less than fully complete or reliable. Thus, they contend, this information could not properly form the basis of a “reasonable ground to believe” that Adams engaged in terrorist activities. We disagree.
The decision to prohibit an alien from entering the United States under Section 901 does require that the government “know[ ] or ha[ve] reasonable ground to believe” that the alien has “engaged in a terrorist activity.” But the Rules of Civil Procedure and Evidence are not applicable to the consular processing of visa applications. Instead, consular officers are permitted to consider all available information in making their determinations. See 22 C.F.R. 41.102(b), 41.103(b) and 41.105(a). The evidence so used need not have qualified for admission in a court of law. Thus, “reasonable belief” may be formed if the evidence linking the alien to terrorist violence is sufficient to justify a reasonable person in the belief that the alien falls within the proscribed category. 22 C.F.R. 40.6; see also Hamid v. I.N.S., 538 F.2d 1389, 1391 (9th Cir.1976); Kasravi v. I.N.S., 400 F.2d 675, 677 (9th Cir.1968) (superseded by statute on other grounds as stated in McMullen v. I.N.S., 658 F.2d 1312 (9th Cir.1981)).
The question of whether the evidence is sufficient, however, to support a finding of “reasonable belief” is a question of law which courts must resolve. Upon review, we think that there is sufficient evidence to support such a finding, and hence that there was a “legitimate and bona fide reason” underlying the government‘s decision to exclude Adams from the United States. The fact that the information relied upon by the government came from printed sources does not render that belief intrinsically suspect, and the district court did not err in so concluding. The evidence of Adams’ involvement in the violent activities of the IRA, both as a policy maker and as a field commander, provides a “facially legitimate and bona fide reason” for his exclusion. In making this determination, it is important to note that there need only have been a reasonable belief that Adams was involved in terrorist activity: it is not necessary to have proven his involvement in the activity beyond a reasonable doubt.
Affirmed. Costs to be borne by appellants.