Hortensia De Allende v. George P. Shultz, Secretary of State

BREYER, Before BOWNES LAGUEUX,* Judges, Circuit Judge. District BOWNES, Judge. Circuit statutory interpre- This case involves 212(a)(27) Immigra- tation of Section Act of 8 U.S.C. 1182(a)(27) pow- It addresses the § er of the under the Act to presence whose in the exclude aliens mere judgment government, pose potential foreign pol- icy dispute arises instant concerns. out of from the exclusion the United States Allende of Hortensia de under subsection nonim- applied after Mrs. Allende for a migrant speak- in response tourist visa ing from invitations various scholastic community groups. The court below granted plaintiffs’ summary motion for judgment, holding the exclusion ex- statutory authority ceeded the of the State Department. govern- misapplied ment 27 in its treat- ment Allende. af- of Mrs. We therefore court, judgment firm the district although on the basis somewhat differ- ent reasoning. I. FACTUAL BACKGROUND Nomkin, Appellate Staff,

Joel W. Civil Div., Justice, Dept, of with whom The underlying controversy Michael dates to Feb- Staff, Jay Singer, Div., Appellate ruary 22, 1983, applied Civil when Mrs. Allende Dept, Justice, Willard, Richard K. nonimmigrant Asst. for a tourist visa to the Unit- Gen., D.C., Atty. Washington, Allende, and Frank L. ed Dr. States. Mrs. widow McNamara, Jr., Acting Boston, Allende, Atty,, democratically Salvador elect- Mass., brief, defendants, were on appel- president ed of Chile 1970 to from lants. currently City. lives in exile in Mexico She * Island, sitting by desig- Of the District of Rhode nation.

1H3 application Depart- in mitted Allende’s Embassy States to the United applied advisory opinion for an ment State response to for an City Mexico ineligibility a waiver should be whether California the Northern from invitation 1182(d)(3). sought pursuant to 8 U.S.C. (NCEC) speak dur- Council Ecumenical provides for That section the admission of of International ing planned celebration otherwise excludible recom- Francisco. The invi- inWeek San Women’s State, Secretary mendation numer- followed from NCEC was tation Attorney approved General.2 engagements speaking for requests ous institu- educational religious and from both ineligibility 28 The waiver intended Mrs. Allende tions in California. Amendment, is controlled the McGovern issues groups on various those to address Amendment, 2691.3 Under the 22 U.S.C. § political and contemporary by the raised Secretary of State should recommend a America, including in Latin situation social ineligibility any for alien denied a waiver struggle for hu- in the of women the role organizational due to subsection visa exile, in plight of women rights, man Secretary unless the certifies to affiliation to the options available different Congress impli- and the that such a waiver would policies toward in its security States interests of the United United cate America. of Latin States. nations Embassy Al- Department found set aside the States of State

The United a visa because of subsection 28 waiver. Under- ineligible question to receive lende Eagleburger secretary Peace Coun- of State Lawrence with the World her affiliation advisory opinion informing the (WPC) International issued an and the Women’s cil (WIDF). Embassy City that Mrs. Allende The con- at Mexico Federation Democratic ineligible for a visa under subsection ap- Allende’s was responsible for sular official entry to the Immigra- 27—a which bars provision of the cited a plication following of aliens: Act, class 8 U.S.C. 1182(a)(28), bars the admission of consular officer or the Aliens who the § af- communism or are has reason to Attorney aliens who advocate General knows or organizations.1 States filiated with communist seek to enter United believe incidentally en- principally, considers both or solely, of State preju- gage international in which would be the WPC and the WIDF activities interest, endanger or Party of the So- dicial to the fronts for the Communist welfare, security safety, or finding, Subsequent viet Union. City United States. Embassy in Mexico sub- United States should, Secretary within part, of State provides, pertinent [T]he in for 1. Subsection application days receiving for a nonim- of visas to aliens denial by any migrant who is excludible of or affiliated with ... who are members party any other totalitarian reason of member- Communist or any state, from the States, any foreign orga- proscribed State of the ship with a in or affiliation geographical any political or sub- or of admissible nization but who is otherwise section, any any foreign state [or] division of subsidiary, that the Attor- recommend the United branch, affiliate, or subdivision of necessary grant approval ney General any party.... or such association alien, unless the issuance of a visa to 1182(a)(28)(C). § 8 U.S.C. Secretary that the admission determines security 1182(d)(3) contrary permits ineligi- to the such alien would be 2. 8 U.S.C. waiver of § bility for aliens excludible under or more of States and so certifies one interests of the United 212(a) categories Representa- detailed in Section the 33 Speaker House of to the and Naturalization 8 U.S. of the Committee tives and the chairman 1182(a), exception C. with the aliens ex- § Nothing Foreign of the Senate. Relations cludible under subsections 29 or 33. authorizing be construed this section requiring to the United the admission Congress adopted the McGovern Amendment for rea- alien who is excludible States of promote in order to freedom of move- membership affiliation in or sons other than ment across international borders in accord- organization. proscribed with a goals ance with the of the Helsinki Accords. provides pertinent part: The Amendment Mandel, dienst 1182(a)(27). Eagleburger set 8 U.S.C. § L.Ed.2d 683 for the reasons forth two (1) membership her Allende: ineligibility of II. HISTORY PROCEDURAL at conferences in and attendance determination that WPC, his official court issued three memoran- The district States at into the United opinion Allende’s first considered da and orders. Its application “would have her government’s time of to dis and denied motion inter- alternative, prejudicial miss, summary been States_” Shultz, See Partial- F.Supp. Allende v. judgment. ests of Lawrence S. ly (D.Mass.1985). opinion Affidavit Declassified The second reprinted Appendix Joint of mootness. Al Eagleburger, question concerned Shultz, 168,171. ineligibility (D.Mass. F.Supp. lende Subsection 1182(d)(3). 1985). opinion, subject under 8 U.S.C. not be waived And third supra plaintiffs' appeal, granted mo See note current v. Allende summary judgment. tion for 1983, Allende received Mrs. August Shultz, No. 83-3984-C (D.Mass. 31, March from and civic scholastic further invitations WESTLAW, 1987) 1987 WL [Available in the United States —includ- organizations 9764], on Latin ing Area Council the Boston opinion (BACLA) mem- The initial of the court address their district America —to standing, addressed three distinct issues: concerning Latin American affairs. bers subject jurisdiction matter and the suffi- accepted those invitations. Mrs. Allende First, however, complaint. the court ciency application, her visa The denial of Al- held that the denial of a visa to Mrs. participation. and precluded her attendance plaintiffs’ implicated first lende amendment filed suit in the United States Plaintiffs rights receive ideas and information and for the District of Massachu- District Court thereby injury inflicted to meet sufficient setts December contest Second, standing requirement. plaintiffs The include visa denial. named court held that action Allende, only symbolic party,4 Mrs. a is not immune from area of affairs representative but also scholars and civic scrutiny. finally, judicial And speaking leaders extended who invitations that the had not met its found complaint, Allende.5 The seeks proof summary burden for dismissal or relief, declaratory injunctive charges and since it failed judgment had to advance that of subsection 27 facially legitimate for and bona fide reason Department State, its applica- Kleindienst required by as exclusion Allende, regard tion in to Mrs. exceed the Mandel, 753, 408 U.S. 92 S.Ct. 2576. scope authority granted by the Immigra- infringe tion Act and In its and or second memorandum der, plaintiffs first rights amendment mo the court considered defendants’ Klein- recognized receive information as for to dismiss mootness. Defendants’ Mandel, School; 4. Kleindienst v. Professor of Law at Harvard Law Jack (1972), 33 L.Ed.2d 683 established that an Spence, Professor at the of Political Science standing bring Massachusetts, has no a constitutional Boston; University of Brian visa, challenge to the denial in a that Smith, Mas- Professor of Political Science at the denial, contesting suit the inclusion of an Technology; Boston sachusetts Institute of party purely symbolic. alien as a stated: "It The Court America; Area Council on and the North- Latin applicant] personal- clear that [the ern California Ecumenical Council. alien, ly, as an unadmitted and nonresident had following complaint The names further right country no constitutional to this Shultz, persons George P. as defendants: Secre- nonimmigrant as a or otherwise.” Id. at State; Smith, Attorney tary of William French S.Ct. at 2581. States; C. Nel- General of and Alan 5. complaint following persons, names the son, Immigration and Nat- Commissioner of the Allende, plaintiffs: in addition to John Wom- uralization Service. Each is sued in his official ack, Jr., Chairperson of His- capacity. tory University; Kennedy, at Harvard Duncan

H15 grant thereby could single visa of a issuance motion followed judicial Allende on October evade review. court refused to to Mrs. entry visa despite held that The lower court such a result.7 sanction request for grant Allende’s the decision opinion, third and final In its lower failed to admission, government had cross motions for summa- court considered by County carry as established its burden submitted a ry judgment. Davis, Angeles Los Eagle- declassified version of the partially (1979).6 The argued burger affidavit8 which it satisfied request de plaintiffs’ that court noted Mandel facially legit- of a standard merely on the rested not claratory relief fide reason for exclusion. imate and bona on the rather of a visa to Allende but denial affidavit, Undersecretary In his 27 to her policy applying subsection belonged that Allende State testified government had not and the application, WPC, in- acted as a covert that WPC Further, the court policy. that disavowed manipulate of Soviet strument controversy had if the actual held that even public opinion in the United presented an the case lapsed, nonetheless Reagan deny had decided to Administration evading yet re capable repetition issue members, pursuant entry to and that WPC plain policy burdened Defendants’ view: Eagleburger had determined precluding rights by amendment tiffs’ first to the United that the admission Allende engage speaking planning from contrary to the nation’s States would be Allende, plain yet any time ments found denial, foreign policy interests. The court challenged particular tiffs 631, Davis, (state concerning policy public assistance for Angeles U.S. at 99 City 440 6. Los upon of strike prerequisites for strikers not moot conclusion two S.Ct. at established activity challenged government ... where "the mootness: evaporated disap- contingent, has not is not (1) reason- be said that "there is no it can and, brooding by continuing peared, its alleged expectation_” viola- that able may presence, well be a substantial casts what tion will recur ... petitioning (2) completely effect on the interests of the adverse or events have interim relief parties.”) irrevocably the effects of the eradicated alleged violation. Contrary expressed in the concur- to the view (Citations omitted). rence, passage of do not think the recent we Foreign Authoriza- Relations section 901 appeal, government has not raised 7. On (1987), affects this Pub.L. No. 100-204 mootness, question of mootness. Since how- power analysis. limits the Section 901 ever, jurisdictional issue which is a threshold government to exclude an alien from may sponte, raise sua we have con- this court beliefs, upon asso- that individual’s States based question light develop- of recent sidered the speech-related new activities. The ciations or Although Mrs. Allende did receive a ments. entry versus ac- address the does not through August multiple entry visa valid by tivity at bar. Ab- raised the case distinction 1987, after the consideration of the motion to court, may government ruling by a this sent below, mootness the court dismiss for excluding policy aliens persist current in its informed the decision of the concerns which entry allegation upon alone will the mere that finding preclude district court continue adversely foreign policy. his concur- affect declaratory judg- Plaintiffs seek a mootness. rence, govern- Breyer Judge points out that the excluding policy ment that the current applications that future visa ment has stated allegation the mere under subsection approved.” “presumably would Mrs. Allende given prejudice time for- that at a not, however, its government revised has authority granted eign policy exceeds the under vol- interpretation 27. The mere of subsection Nationality Although Immigration and Act. activity challenged untary does cessation of its specific application policy against of that not, controversy. moot, opinion, See in our moot the validity Allende in March 1983 Co., U.S. v. W.T. Grant general that remains a live controver- 894, 897, 632-33, L.Ed. 1303 sy. S.Ct. And since the existence of the contin- ues to effect the actions of the who contained partially affidavit 8.The declassified reasonably expect government that the previously as a document the same information oppose plans speaking future extend invita- Allende, government for in camera submitted we find the Article III case or tions inspection, exception of one sentence controversy requirement Super satisfied. See McCorkle, public partially doc- Engineering excised in the which was Tire Co. v. U.S. 1694, 1698, 40 L.Ed.2d 1 ument. language contends that such testimony inadequate under Mandel judgment for the read to summary must be cover those situations in granted exclusion, the court Allende’s poses the mere act plaintiffs. itself reasoned, squarely on her member public rested govern- interest. The threat to organization. ship in a subsection statutory ment asserts both the frame- analysis States of the United Adopting legislative history and the of the Im- work Appeals for the District of Colum Court support migration and Act its 785 F.2d Reagan, in Abourezk v. bia It interpretation. notes that because sub- — -, mem., (D.C.Cir.1986), provides for the exclusion of aff'd section (1987), the court “relating aliens who in activities also membership could not that such found sabotage, disorder, espionage, or ... 27 exclusion.9 the basis for subsection form activity other subversive national security,”10 reading narrow subsection government has We that the it duplicative 27 would render of subsection for exclu to advance sound basis failed princi- in29 contravention of established Following subsection estab 27. sion statutory ples of construction. Moreover principles statutory analysis, we lished legisla- contends that presence mere of an find that the supports history “unquestionably” tive within alien does constitute reading of meaning govern broad See Brief of subsection 27. Defendants-Appellants Finally, Allende on the bare at 28. ment exclude presence that her in the United argues assertion that because the given may prejudice for States at a time Department of State is rea- eign policy sonable, interests. therefore affirm it should be accorded deference. judgment court below. analysis Plaintiffs contest that statutory They the basis of construction. III. SUBSECTION 27 EXCLUSION argue language of subsection 27 government argues that it acted well clearly only authorizes the denial of a visa scope statutory authority within the when the has reason to believe denying application Mrs. Allende’s visa engage in that an alien certain intends to plain under subsection entry. proscribed activities after language provides for the statute agree. exclusion of who “seek to enter the solely, Any analysis meaning of a principally, or inciden- the statu- “ tally tory provision begin ‘the engage to in which would must with lan- activities ” interest, prejudicial to the public guage or en- itself.’ statute United welfare, danger safety James, 597, security or v. of States 478 U.S. S.Ct. added), 3121, (emphasis 3116, (1986) (quoting United States” 92 L.Ed.2d 483 provides The district court stated: 10. Subsection 29 for the exclusion of: Where, here, alien-applicant an fits within respect Aliens with to whom consular 28, statutory limits of subsection in order Attorney officer or the General knows or has bypass to it and exclude sub- the alien under would, ground probably reasonable to believe 27, section establishing defendants bear the burden of (A) entry, engage after in activities which separate a reason that is and in- prohibited by would be the laws United dependent membership of the alien’s in the relating sabotage, public espionage, States to organization.... Defendants disorder, or in other subversive at, argue that Mrs. Allende’s attendance and security, (B) any activity engage national in to, delivery speeches international confer- to, purpose opposition of which or is the sponsored pro- ences the WPC and WIDF of, control or the Government overthrow facially vides such a reason and is therefore a States, force, violence, or United other legitimate excluding and bona reason for fide means, (C) join, unconstitutional with, or affiliate disagree. her subsection 27. I Such participate any activities of in the merely activities are Al- incidental Mrs. organization registered required which is membership organizations lende’s in those registered 786 of to be under section title separate and are not therefore a reason independent membership. of her 50.... [Citations omitted].

1H7 Stores, Tribe, Drug olina v. Catawba Indian Chip Stamps Manor Blue v. U.S. 1935, 1917, 723, 756, 498, 2039, 22, 421 U.S. 106 S.Ct. 2046 n. 90 L.Ed.2d J., concurring)). (1975) (Powell, L.Ed.2d ordinary given words their must be Viewing subsection 27 in the context of Tobacco id. American meaning, (quoting statutory other classifications further Patterson, 63, 68, 102 S.Ct. Co. meaning. clarifies its The 33 categories of 1537, (1982)), 1534, 71 L.Ed.2d 748 which 212(a) aliens detailed in Section of the Im- leg express underlying are assumed to migration and Nationality distinguish Act Id.; v. Car accord I.N.S. purpose. islative between status-based in- conduct-based — Fonseca, -, doza U.S. 107 S.Ct. eligibility. Subsection provides (the 1207, 1213, (1987) “ordi denial of belonging visas to aliens meaning is nary and obvious the [words] organizations, or affiliated certain (citations discounted”) lightly to be person ineligible renders a based on status. omitted). Conversely, both subsections 27 29 fo- clearly language of subsection 27 anticipated on the cus activities of aliens provision. Sec- scope articulates upon entry to the United States and hence 212(a) and Nation- labeled may be conduct-based classifica- classes excludible ality Act defines 33 tions. inclusion of lan- conduct-based encompass- aliens. subsection guage provisions in certain and its exclu- many range than the other es a broader lightly disregard- sion others not to be it provisions, establishes clear criteria ed: must responsible official exclusion: Congress particular “Where includes lan- know or have reason believe guage in one of a section statute but seeks to the United States init section of same omits another in- engage in activities. In the harmful generally presumed it that Con- case, alleged stant has intentionally gress purposely acts engage Allende activi- ties; disparate or exclusion.” argues merely presence inclusion that her Russello v. United stan- trigger alone will the subsection 27 [464 “prejudicial interest.” dard 104 S.Ct. L.Ed.2d superflu- Wong That would render States v. (quoting ] unambiguous language ous contained Bo, (CA5 1972)). Kim 472 F.2d 27; the statute clear the makes Fonseca, I.N.S. Cardoza anticipation post-entry activity pre- as a case, Congress clearly 1213. In the instant simply requisite exclusion. We fail on distinguished exclusion based between how an alien can enter see identity exclusion based an alien’s entry. Reading disputed act of lan- disregard that dis- activity.11 alien’s To guage out of the violate meaning the clear would undercut tinction principles statutory of con- established the statute. Ramsdell, struction. See Montclair 107 212(a) of Immi Reading Section (17 147, 152, (1883) Otto) 27 L.Ed. 431 U.S. entirety gration Nationality Act and effect, (“It give duty is the of the court to distinction between only clarifies the not possible, every clause of a if to and word conduct, it also reveals and but statute, be, status avoiding, may any con- if it interplay between the various subsections. legislature implies that the struction which States, 409 U.S. Erlenbaugh v. the lan- See United ignorant meaning was 34 446 Car- L.Ed.2d Accord South guage employed.”). it 93 S.Ct. action); brief, Reynolds v. United As note in their American ment to (1878) recognizes Otto) 145, (8 a dis- constitutional law fundamental L.Ed. 244 See, actions, activity. e.g., and tinction between belief ("Laws government of are made for the 444, 448-49, Ohio, Brandenburg v. 395 U.S. they mere reli- interfere with and while cannot 1827, 1830, (1969) (over- 23 L.Ed.2d 430 they prac- gious opinions, with belief and turning trial to conviction where court failed tices."). distinguish advocacy mere incite- between and Libyan sion of a national under subsection principle that individual (noting “the (1972) sought entry to single statute should be con- 27 the alien a where sections (footnote omitted). together.”) study in order to aeronautics. strued a and different creates accepted government’s argu- subsection Each court to exclusion. Were we ground for study preju- distinct a ment that constituted interpretation of government’s accept the activity meaning of dicial within the sub- duplicative render it would subsection knowledge gained 27 since the section 28. Member- of subsection provisions might alien enable the to assist civilian organization would in subsection ship a military Libya to the and aircraft of detri- only for waivable exclusion grounds be interests ment of the United States. also for nonwaiv- provision, but under that ground study present Such subsection 27 exclusion under able 29; under subsection it neither exclusion public allegation prejudice proscribed activity nor it constitutes does construction, therefore, of- “This interest. security the internal United threaten statutory con- rule of the well-settled fends provisions Hence the States. two cover statute, if at all parts all struction that complementary, different scenarios in a given effect.” possible, are be Wein duplicative, rather than a fashion.12 Dunning, & Hynson, berger v. Westcott Reading against the broad- 2469, 2485, 609, 633, statutory er of the entire scheme context omitted). (1973)(citations Re L.Ed.2d dispels any also concern raised defend- to its terms stricting subsection 27 own reading argument ants’ that a literal Contrary to the conten that result. avoids government in a powerless render the situ- defendants, reading of sub a literal tion of ation in of an alien which mere duplicative does not render section 27 might public interest. prejudice Other deals with Subsection subsection provisions grant exist which the President range of activities harmful broad power any vast to exclude individual alien interest; more subsection deals might of aliens harm class whose proscribed narrowly specifically activi with spectre the national interest.13 The raised sabotage— primarily espionage ties— defendants, therefore, of a security. the national Thus threaten stymied Smith, by a F.Supp. restrictive El-Werfalli (S.D.N.Y.1982), upheld exclu- 27 has merit.14 Accord no argues degree any deem that the restrictions he 12. The equals the instant case appropriate. involved in Reply present De- See Brief of And Section 215 Nation- El-Werfalli. fendants-Appellants at 9. We find reason- 1185(a)(ll), provides: ality 8 U.S.C. ing unpersuasive. The alien President, El-Werfalli Unless otherwise ordered sought engage study active in an course of it shall be unlawful— directly targeted acquiring might skills which depart from or enter Con- harm interests of States. depart attempt enter the from or versely, has identified no activi- rules, except under such reasonable States regulations, ty which Mrs. Allende will in other than orders, subject to such government's entry.” "the act of attempt We find the exceptions as the President limitations equate "passive conduct” may prescribe.... studying defy logic. the act of Here, post-entry involved conduct. El-Werfalli that the issuance 14. The contends government’s allege pleadings post-entry no proclamation may presidential send a conduct. stronger diplomatic signal intended. than See Reply Defendants-Appellants at 8 for n. 7. Brief 212(f) Immigration 13. Section of the and Na- argument legislative history distorts This the 1182(f), tionality provides: 8 U.S.C. § pas Act. the entry Whenever the President finds that the sage significantly of the McGovern Amendment any any aliens class of or aliens into Department reduced the discretion within United States be would detrimental to the ineligi concerning States, State waiver of may by proc- interests lamation, he language bility. of the statute period and for such he shall as mandatory, clearly purpose was to re suspend necessary, deem of all flexibility so that immigrant decision aliens or nonimmigrants, class aliens as or duce waiver impose belonging to subsec- on the of an alien admission

1H9 ted); accord id. at 1066 (Bork, J., F.2d n. 2 Reagan, v. at 1049 dissent- Abourezk (“The sweeping proclamation (“Had ing) nothing President’s us we before but the safeguard against the power provides a ... language might I the statute ... be danger any particular case posed by adopt proposed inclined to the construction by not covered one class of cases that is plaintiffs.”). plain Despite the lan- 1182(a).”) (citation categories in section guage statute, the Abourezk of the omitted).15 legislative went on to consider both 27, language as plain of subsection history agency practice. After a thor- statutory by the and clarified confirmed review, ough legislative the court found the context, inquiry unneces- renders further (“The inconclusive. Id. at 1054 history leg- Safety Product Com- Consumer sary. In history islative on this issue ... terse 102, Sylvania, v. GTE U.S. mission tugs direction.”). one more than 2051, (1980), S.Ct. (Bork, J., dissenting) But see id. at 1066 starting point in- for Court stated: “[T]he (finding support government position language terpreting is the a statute legislative history). Similarly, the majority clearly expressed Absent statute itself. practice found the administrative undevel- contrary, that legislative to the intention Id. at 1055-56. oped and inconclusive. ordinarily regarded as language must The court therefore remanded the case for 108, conclusive.” Id. at at 2056 findings agency further on the nature of (overturning agency interpretation of Con- practice. Act). Safety sumer Product 1043, Reagan, Abourezk F.2d inquiry into the find such ad Appeals for the United States Court unnecessary. Con practice ministrative Circuit considered a District of Columbia Safety sumer Commission estab Product meaning scope of sub- challenge to the presumptive lishes the conclusiveness of the case section 27 similar to at bar. language Here of the statute. that government denied visas unambiguous, language is clear and both 27, claiming Abourezk subsection standing read in the context of alone and entry into the their Hospital St. Luke’s the entire Act. Cf. foreign policy. would The court prejudice Services, Secretary and Human Health considered whether subsection 27 autho- Cir.1987) (“[W]e (1st 810 F.2d sim grounds. rized First it exclusion says; mean what it ply read the statute to language of the stat- determined literally, interpret language and we we position: plaintiffs’ “A supported ute itself ambiguity.”). Because the find no initial statutory familiar canon of construction not establish a legislative history does interpreting court to avoid cautions the see contrary, clearly expressed intent to way part in such a as make of it statute Abourezk, must en at we 785 F.2d guide meaningless.... This basic and the meaning of the statute. force literal language plain thrust subsection requires a plainly reasonable Subsection 27 heavily against govern- weigh ... (citation specific Id. at reading.” that an alien will omit- belief ment’s very necessarily discretion which the organization would would not re- we reinsert Department sought "soft" on flect State communism: to diminish and McGovern Amendment provision open "One effect of the would be to 27 exclusions hence imbue subsection way to visits Eurocommunist leaders message diplomatic very which with the kind of leaders execu- Communist labor without the defendants fear. having politically tive to make diffi- branch might imply cult change individual decisions Furthermore, recognized the court be- toward Commu- in overall low, F.Supp. State Cong., S.Rep. No. 95th 1st Sess. nism." using against 27 as itself has warned Cong. reprinted in U.S.Code & Admin. refusing visas a catch-all By reading subsection 27 to News permit clearly of the other 32 into one who do fall exclusions status-based where the State categories. Department determines that would harm interests of the United government’s opposi- the public makes clear that the interest.16 to harmful activities not suffice. Absent tion to admission of Allende stems from does the Mere alone activities, the requisite allegation pursuant of the past speech-related the activities her alien un- may not exclude an government membership: to her WPC 27.17 der subsection Administration determined in [T]he of, persons who are 1982 that members EXCLUSION IV. IDEOLOGICAL with, seek or affiliated the WPC and who mean 27 to Interpreting subsection the United States further to enter of a visa must the denial says, that what objectives, policy should be denied Soviet appli that the belief reflect reasonable States, except in the lim- prejudicial in engage cant will here. In circumstances not relevant ited in interest, not end our does public Mrs. Allende addressed the WPC- question remains whether quiry. The Assembly of Builders sponsored World activity require met government has Conference Warsaw and as- in Peace argue they seek ment. Defendants speech. in her sailed the U.S. In 1978 her not because of of Allende the exclusion WPC-sponsored World she attended be speechmaking, but activity, proposed Solidarity Chile in with Conference foreign general harm cause of Congress Madrid and in the World That concern presence. her created sponsored by the WIDF. At of Women however, integrally foreign policy, about spoke she on women’s is- meeting this trip. purpose proposed to the related and the need nuclear dis- sues for had Allende concedes that armament. A careful evaluation of relative, a sick for applied for a visa to visit February Mrs. Allende’s application example, outcome of her infor- application, light of the available Reply See different. have been well mation, her led me to conclude that Defendants-Appellants at Brief at that into the United States time to the irrefutable con admission leads That poli- foreign to the prejudicial have been Al excluded clusion that of the United States and that cy interests purpose on of her lende the basis denied. her visa should be delivery trip. purpose And that was interchange speeches of ideas. Partially Affidavit of Law- See Declassified reprinted Eagleburger, Joint rence S. partially affidavit of declassified added). (emphasis Undersecretary Eagleburger Appendix at of State analysis parties fully ques- at with 16. The have not addressed the 785 F.2d. 27 reaches activities court and find that subsection tion whether subsection the Abourezk foreign policy, question harmful to nor is that of visas to aliens whose activi- allows the denial controversy. prejudicial central However, resolution ties in the United States would plaintiffs foreign policy. since contend the term the nation’s “prejudicial interest” does not en- brief, great concerns, 17. In its attacks at compass see Brief for length independence Plaintiffs-Appellees coined at note the so-called rule of 18 n. we our dis- Abourezk, agreement. Colum- the court dismissed a court. Both the District of lower by plaintiffs: similar claim advanced court below held that the bia Circuit deny a visa to an alien under Only patently view inconsistent isolationist pub- only the threat to the where reality century of our late twentieth independent posed by entry lic interest "pub- account a belief that world could organiza- membership in fact of a subsection lic the "national welfare" were interest" and merely affil- in addition such tion and dependent, part, effective execu- 1058; Allende, Abourezk, F.2d at iation. See foreign policy. surely our 83-3984-C, Appendix reprinted in Joint No. 244, adopt on own should not initiative hold that subsection 255-56. Because we expansive counterintuitive statutory language, ineligibility requires belief that a reasonable have activities, applicant in harmful nothing legislative history identified debate. The this semantic practice suggest we need not enter that Con- administrative requirement prejudicial necessitates gress foreign policy activities intended to exclude con- apart from showing concern of conduct-based cerns from consideration under subsection ground for exclusion. status-based

H21 But, in entry subsequently, 1983. her to the visa The determination that application government granted multiple her entry time United States visa, through the “prejudicial And, valid end of 1987. in question says now that it is foreign interests United anticipa- reflects concern over that, States” by advised the State if speeches her on proposed ted content applica- Mrs. Allende were to file a visa speeches. Shapi- prior Accord basis during application presum- ro, Ideological Closing Exclusions: ably approved, just would be as all of her Dissidents, 100 HAR- Political Border to applications ap- numerous have been (1987) (“The 930, 941 VARD L.REV. proved prior subsequent both her attempt justi- this government’s to describe 1983 denial. terms not does fication Moreover, must concede government’s fact that the for- alter the not, legally cannot, deny it will directly eign from the policy concern flows person other whom Mrs. Allende speech anticipated content of alien’s] [the reasonably represent could claim to this anticipated the United States litigation. The law of the United States it_”). reaction of American audiences changed has since district court wrote Having decided some harmful activi- opinion. prohibits denying its The law now ty exclu- prerequisite is a to subsection any past, applicant a visa to an “because sion, at issue in the and that beliefs, expected or current or statements speech, go is need no exclusion we Allende protected associations which ... would be The enactment Section 901 further. Foreign under the Constitution.” Rela- Act, Foreign Relations Authorization No. 100- tions Authorization Pub.L. govern- 100-204, prohibits Pub.L. No. It such a denial—the § excluding alien from the ment from finding prej- Mrs. was Allende’s upon that individual’s based past her or udicial because of associations beliefs, speech-related activ- associations or speeches subject mat- constitutes the —that Therefore, ities.18 since present controversy. ter of the deny a Allende may not visa to Mrs. under course, Of the law the United States upon Act fail may change again. Congress could allegation of either harmful mere branch renew 901. Executive speech, or need not reach the harmful we may to earlier 1989 or thereafter revert of a visa for issue of whether the denial But, this court practices. I do see how speech-related prior pas- activities genu- (constitutionally speaking) a can find sage unlawful.19 of Section 901 was the fact that “controversy” premised ine on The decision of the district award- change. present We do know law ing summary judgment year from now. happen af- will or so what change, predict that the law will

firmed. We cannot enforce a that the next administration will BREYER, Judge (concurring). Circuit previous policy, and according law to a new view, declaratory judgment is moot. we cannot issue a my this case Mrs. meaning of the law complains having now what the Allende been denied about part: a declar- pertinent the concurrence that Section states in ideological atory judgment exclu- on the issue of Notwithstanding any other passage of sion rendered moot has been law, a visa or exclud- no be denied (d) of section 901. States, ed from admission into period to one statute of effectiveness limits subject conditions to restriction or question year, open the and thus leaves States, subject deporta- United into the past current, resume whether the will any past, expected because tion beliefs, excluding statement, practice their which, aliens based or associations if lapses, speech-related statute activities when the engaged in a United States Citizen in the prudentially moot for the protected we issue find the would be Judge Breyer. specified of the United States. Constitution reasons change. happen be, if should STATES, activity” in re- Appellee, “challenged government UNITED speech-related spect to associational v. “contingent;” prior policy highly is denials MOSQUERA, Helmer brooding pres- “continuing not a is Defendant, Appellant. Engineering Co. Super v. Tire ence.” 115, 122-25, McCorkle, No. 87-1729. (em- 1698-1700, 40 L.Ed.2d prece- added) (noting Supreme Court phasis Appeals, Court applica- that found cases moot when dents First Circuit. required occur- statute tion of controversial Feb. 1988. Submitted including act of of events rence series discretion); see Executive May 3, Decided not in terms of this case moot Even were controversy” require- Ill’s “case or

Article

ment, is moot. See C. “prudentially” it Miller,

Wright Federal Practice and & A. (1969 Supp.1987). &

Procedure § remedy sought, a declar- say, is to

That remedy, discretionary

atory judgment, is precedent controlling Supreme Court here, remedy us

requires to withhold that challenged appears that a ‘con

“where is, adjudi

tinuing practice’ at the moment significant sought, undergoing is

cation its form

modification so that ultimate can confidently predicted.” A.L.

not be Mechl Lines, Barge

ing Inc. United 337, 342, 331, 82 S.Ct. The District of Columbia Cir

cuit, following Mechling, specifically has declaratory judgment that a

held

appropriately “allegedly rendered when an practice departmental

unlawful is cur- ...

rently review and never recur.” Chamber Commerce United States Energy, F.2d (D.C.Cir.1980). uncertainty surround-

ing present recurrence chal- smaller,

lenged practice greater, than uncertainty Mechling at issue in Chamber Commerce. Should challenged practice, renew situated,

plaintiff, or similarly others can speedy

obtain court review at that time. appropriate I do not believe it declaratory judgment

to issue this

case, panel majority believes the

contrary. I therefore add that I respect panel’s opinion to the merits.

Case Details

Case Name: Hortensia De Allende v. George P. Shultz, Secretary of State

Court Name: Court of Appeals for the First Circuit

Date Published: Apr 13, 1988

Citation: 845 F.2d 1111

Docket Number: 87-1469

Court Abbreviation: 1st Cir.