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ineligible to receive a visa under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(a). A complaint was filed in U.S. District Court in Puerto Rico by Hermina Sague in her own name and on behalf of her husband, seeking both injunctive and declaratory relief. It specifically asked the Court to find that there were no valid legal grounds to deny Berger a visa. The Court granted the Government's motion to dismiss for lack of subject matter jurisdiction.

The following are excerpts from the opinion of the Court:

The exclusion of aliens from within the territory of a nation is a fundamental act of sovereignty concomitant with the executive power to control the foreign affairs thereof. This exercise of executive power is promulgated exclusively through the represen; tatives of said branch of Government, without judicial intervention

Congress has conferred upon consular officers the authority to issue visas to eligible immigrants under the provisions of the law,8 U.S.C. 1101(a) (9), (16); 1201. It has been consistently held that the consular officer's decision to issue or withhold a visa is not subject, either to administrative or judicial review ..


there is no constitutional right of a citizen spouse, who voluntarily chooses to marry an alien outside the jurisdiction of the United States, to have her alien spouse enter the United States. ..

In Pena v. Kissinger, 409 F. Supp. 1182 (1976), in the U. S. District Court for the Southern District of New York, a permanent resident of the United States sought review of a decision of the American consul in Santo Domingo denying an immigrant visa to her husband. On defendant's motion for summary judgment, the District Court held, on March 2, 1976, that the plaintiff was not entitled to judicial review of the American consul's determination that plaintiff's marriage to a citizen of the Dominican Republic was a sham and undertaken to facilitate her husband's immigration to the United States. It granted · partial summary judgment for the defendant, but on plaintiff's claim for compensatory and punitive damages for emotional pain and humiliation it held that triable issues of fact precluded summary judgment without affording plaintiff an opportunity to properly assert a damage claim.

The Court agreed with the contention of defendants, officials of the State Department and a consulate employee, who maintained that the decision of an American consul to deny a visa to an alien is not subject to review in the courts. The Court stated, in part:

.. there is substantial support in the cases for the government's position that consular decisions in regard to the issuance of visas are unreviewable. In United States ex rel. London v. Phelps, 22 F.2d 288 (2d Cir. 1927), cert. denied, 276 U.S. 630,48 S. Ct. 324, 72 L. Ed. 741 (1928), the Second Circuit declared:

Whether the consul has acted reasonably or unreasonably is not for us to determine. Unjustifiable refusal to vise'a passport may be ground for diplomatic complaint by the nation whose subject has been discriminated against. . . . It is beyond the

jurisdiction of the court. 22 F.2d at 290. A similar view was expressed in United States ex rel. Ulrich v. Kellogg, 58 App. D.C.360,30 F.2d 984, cert. denied, 279 U.S. 868,49 S. Ct. 482, 73 L. Ed. 1005 (1929). These cases have been cited as authority in more recent decisions which find such consular decisionmaking immune from judicial scrutiny. See Loza-Bedoya v. INS, 410 F.2d 343 (9th Cir. 1969); Licea-Gomez v. Pilliod, 193F. Supp. 577 (N.D. III. 1960).

As a consequence, American consuls appear free to act arbitrarily or even maliciously in their conduct toward foreign nationals seeking entrance into the United States. This result has been labelled “brutal,” and a “trivializ[ation][of] the great guarantees of due process,

.. as well as “an astonishing anomaly in American jurisprudence"

The opinion went on to discuss the considerable change undergone in the law since the decisions cited were rendered, whereby the rights of aliens had been expanded, whether in the United States lawfully, see Graham v. Richardson, 403 U.S. 365(1971); unlawfully, see Holley v. Lavine, 529 F.2d 1294 (1976); or interacting with American officials outside the United States, see United States v. Toscanino, 500 F.2d 267 (1974). It theorized that it might have been expected that the "astonishing anomaly” of consular nonreviewability would also undergo change; but it concluded that the Supreme Court's decision in Kleindienst v. Mandel, 408 U.S. 753 (1972), which had reaffirmed the older authorities restricting the reviewability of decisions by immigration officials, precluded judicial review of the consul's decision. In Mandel, stated the District Court, the Supreme Court concluded that it was unnecessary to balance the plaintiff's First Amendment rights against the government's interest in excluding Mandel, a Belgian journalist who had been called a "revolutionary

a Marxist."

The same issue came before the U.S. Court of Appeals for the Second Circuit in Rivera de Gomez v. Kissinger, 534 F.2d 518. In its decision of April 14, 1976, the Court said it agreed with the reasoning and result in Pena v. Kissinger, supra. It specifically rejected the argument that section 279 of the Immigration and Nationality Act (8 U.S.C. 1329), on jurisdiction of district courts, authorizes the sort of judicial interference in the visa-issuing process sought by the plaintiff.

Extended Validity of Passports

The Department of State filed a notice on December 22, 1975, that Algeria was added to the list of countries which have entered into agreements with the Government of the United States whereby their passports are recognized as valid for the return of the bearer to the country of the foreign-issuing authority for a period of at least six months beyond the expiration date specified in the passport.

In addition, the Department announced that the Bahamas was being listed as an independent country whose Government had also entered into an agreement with the Government of the United States to permit the bearer of its passport to return to the Bahamas for a sixmonth period beyond the expiration date specified in the passport.

Fed. Reg., Vol. 41, No. 12, Jan. 19, 1976, p. 2651. The notice amended Public Notice 375 of Jan. 19, 1973 (38 FR 1224).


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The United States waived its passport and nonimmigrant visitor visa requirements for participants in the 1976 Summer Olympic Games held at Montreal who wished to visit the United States in connection with the Bicentennial Year. By order of the Acting Administrator, Bureau of Security and Consular Affairs, Department of State, dated May 19, 1976, concurred in by the Acting Commissioner, Immigration and Naturalization Service, 22 Code of Federal Regulations (CFR) 41.6 and 8 CFR 212.1 were amended for that purpose, with effect from June 17, 1976, through August 31, 1976. The waiver did not extend to nonimmigrant participants whose admission into the United States was not waivable under 8 CFR 212.1(e), or to those nonimmigrant participants who were holders of official Olympic identity cards but were nevertheless excluded from visa and passport waivers by the Government of Canada.

Fed. Reg., Vol. 41, No. 109, June 4, 1976, p. 22556.

Identification of Birthplace

Ambassador Robert J. McCloskey, Assistant Secretary of State for Congressional Relations, wrote a letter dated August 3, 1976, to Congressman Edward I. Koch, who had inquired regarding the reason that country of birth is placed on every passport and the feasibility of having it removed. Ambassador McCloskey's letter stated, in pertinent part:

Section 101(a) (30) of the Immigration and Nationality Act defines a passport as " . any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country.

The policy of the Passport Office to include the bearer's place of birth in a passport follows international custom and conforms with the recommendations of the United Nations Committee to Facilitate International Travel and the International Civil Aviation Organization. This recommendation was adopted by the United Nations.

The place of birth is not intended to indicate the former nationality of the bearer,or to distinguish between native-born and naturalized citizens. It serves as identification widely accepted in international circles. It is applicable to all passport bearers, whether they acquired citizenship by birth, by naturalization or by birth abroad of an American parent or parents. There are thousands of children born abroad each year who, although they are American citizens at birth, still have a foreign country shown

a as their place of birth in the passport.

The Passport Office is aware that the statement of birthplace may be a source of inconvenience and occasional serious difficulties to foreign born citizens traveling to certain areas. The problem, however, cannot be solved by unilateral action on the part of the Department. A passport, to be useful as a travel document, must have universal acceptability and a passport issued by this Government which omitted the place of birth would not be accepted by other governments who insist that the place of birth be shown.

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For the exchange of correspondence between Ambassador McCloskey and Congressman Koch, see Cong. Rec., Vol. 122, No. 122, Aug. 9, 1976, p. 8553 (daily ed.).



Effective March 19, 1976, the Department of State extended for six months its prior restrictions on the use of U.S. passports for travel into or through Cambodia, Cuba, North Korea, and North and South Viet-Nam. For the extended period, U.S. passports were declared not valid for such travel unless specifically validated for that purpose under the authority of the Secretary of State.

With respect to travel into or through Viet-Nam (North or South), the Department noted:


Conditions continue to be unsettled in the Indochina area following the North Vietnamese conquest of South Viet-Nam on April 30, 1975. The development of a new relationship between Viet-Nam and the United States continues to be in its early stages, and the authorities in Viet-Nam continue to exhibit hostility towards the United States, including preventing American citizens from freely departing that country. In these circumstances, the Department of State believes that unrestricted travel by American citizens to Viet-Nam (North and South) would seriously impair the conduct of U.S. foreign affairs.

Fed. Reg., Vol. 41, No. 56, Mar. 22, 1976, p. 11911.

Restrictions on the use of U.S. passports for travel into or through Cambodia, Cuba, North Korea, and Viet-Nam (North and South) were further extended by the Department of State, effective September 20, 1976, for a six-month period.

Fed. Reg., Vol. 41, No. 184, Sept. 21, 1976, pp. 41105-41106.

Stephen M. Schwebel, Deputy Legal Adviser of the Department of State, wrote a letter dated September 17, 1976, to Professor Ralph E. Purcell of George Washington University, describing the Department's policies with respect to travel by representatives of the Palestine Liberation Organization (PLO) in the United States. Mr. Schwebel's letter stated:

while the PLO is not recognized by the United States Government, PLO representatives are present in the United States pursuant to the invitation of the U.N. General Assembly in 1974 to the PLO to send observers to U.N. activities in New York. The United Nations Headquarters Agreement of 1947 (61 Stat. 3416, 22 U.S.C. 287 note) requires that the United States allow persons invited to New York by the United Nations on official business to travel to and from the U.N. Headquarters District for that purpose. Under the terms of that agreement, however, the United States retains full control and authority over the entry of such persons into U.S. territory as well as the conditions under which they may remain or reside here.

The United States has accordingly issued visas to PLO representatives and restricted their movement to the U.N. Headquarters District and its immediate vicinity (a 25-mile radius from Columbus Circle in New York), as the United States is entitled to do and, over the years, has done in a number of other cases, including those of representatives of governments not recognized by the Government of the United States.

From time to time, the Department of State has granted PLO representatives special permission, on a case-by-case basis, to travel outside of New York for recreational trips, visits to relatives, and other personal purposes. The terms of this permission have

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