This conclusion comports with the ancient principle of international
law that the "power to exclude aliens is `inherent in sovereignty,
necessary for maintaining normal international relations and defending
the country against foreign encroachments and dangers — a power to
be exercised exclusively by the political branches of government'"
Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 33 L.Ed.2d 683
(1972) (quoting The Chinese Exclusion Case, Ping v. U.S., 130 U.S. 581,
609, 9 S.Ct. 623, 32 L.Ed. 1068 (1889)). Thus "[t]he power of Congress to
exclude aliens altogether from the United States, or to prescribe the
terms and conditions upon which they may come into this country, and to
have its declared policy in that regard enforced exclusively through
executive officers, without judicial intervention, is settled . . . ." Lem
Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 39 L.Ed.
1082 (1895) (1895); see also Mandel, 408 U.S. at 766 n. 6, 92 S.Ct.
2576. It is "not within the province of any court, unless expressly
authorized by law, to review the determination of the political branch of
the Government to exclude a given alien." United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950); see
also Bruno, 197 F.3d at 1162 (". . . there may be no judicial review of
the decisions to exclude aliens unless Congress has `expressly
authorized' this"). This historical backdrop adds support to the
conclusion that the Secretary of State, if acting as Secretary, not as a
consular officer, in exercise of the Constitutional and inherit authority
of the sovereign in the field of foreign affairs, is immune from the
regulations governing consuls, and immune from judicial review by
Constitutional separation of powers principles, at least until Congress
Holding that there is no jurisdiction to review the Secretary's
revocation of plaintiff's visa does not leave plaintiff without
recourse. He may submit a new visa application to the Consular Officer
with responsibility for Aruba. This officer is authorized to make an
independent review concerning plaintiff's visa eligibility, in accordance
with the applicable regulations concerning visa applications. Plaintiff
may present evidence concerning his eligibility at that time and may be
granted a visa.
Plaintiff's final claim concerns his request that the 2C code in the
visa lookout system be removed. The parties agree that the 2C code was
removed months ago and that the P2C notation which replaced it in the
database does not violate the Foreign Relations Authorization Act.
Therefore, plaintiff's claim is moot.
An accompanying order grants defendants' motion to dismiss.
Pending is defendants' motion to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(1) and (6). Dkt. 32. For the reasons stated in the
accompanying memorandum, it is this 19th day of January 2001 hereby
ORDERED: that defendants' Motion to Dismiss is GRANTED, and it is
ORDERED: that plaintiff's complaint be and hereby is dismissed.