UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BRUNO, ROBERTO S.

v.

ALBRIGHT, MADELEINE


98-5495a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: This is an appeal from the  judgment of the
district court dismissing an action for judicial  review of the
decision of the American Consulate in Panama  refusing to issue a visa
to Roberto Saavedra Bruno, and the  decision of the American Consulate
in La Paz, Bolivia, revok- ing another visa Saavedra held. Both
consular decisions  rested on information, not revealed to Saavedra,
that he had  engaged in illicit drug trafficking. Saavedra
unequivocally  denies the charge and complains that he has never had
an  opportunity to confront and counter the evidence relied upon  by
the consular officers. He insists that the Administrative  Procedure
Act, and the grant of jurisdiction over cases aris- ing under federal
law, entitles him to put the government to  its proof.


I


Saavedra is a Bolivian national. He moved to Washington,  D.C. with his
family in 1993. At the time, he held an F-1 visa  (student) and a
B-1/B-2 visa (temporary visitor for business  or pleasure) set to
expire in May 2002. Shortly after settling  in Washington, Saavedra
and his family moved again, to Coral  Gables, Florida. There he formed
a corporation--Musicanga,  Inc.--for the purpose of recording and
promoting Latin  American music. Saucedo Wichtendahl, a United States
citi- zen, was hired as the company's artistic director and interim 


In May 1995, Saavedra's company filed a petition for a  nonimmigrant
worker with the INS, seeking to have Saave- dra classified as a
managerial employee qualified for an L-1  visa. The INS approved the
classification for a one-year  period, until May 17, 1996. A month
before this was to  expire, the company filed a petition to extend the
classifica- tion for another year, which the INS granted. Saavedra


traveled abroad to seek the renewal of his visa, as is required, 
presenting himself to the American consul in Panama City on  May 16,
1996. See 8 U.S.C. s 1201(a).


Upon finding Saavedra listed in the State Department's  computer
"lookout" system, the American consul in Panama  City denied his visa
application. Saavedra's name had been  entered by the U.S. Consul
General in Bolivia, who had  received classified reports from federal
agencies that Saave- dra had been involved in narcotics trafficking.
Saavedra  quickly returned to the United States. He was detained 
briefly at the border but allowed to enter after an immigra- tion
hearing had been scheduled. At the hearing the follow- ing week, the
immigration officer told him to leave the  country and to resolve the
matter with the United States  Embassy in Bolivia. He therefore
departed on June 11, 1996.  In the meantime, Saavedra's lawyer
provided information to  the Consul General in Bolivia, trying to
persuade her of his  client's eligibility for a visa. The Consul
General reviewed  this information along with the classified reports
and made a  formal determination that Saavedra was ineligible to be
ad- mitted to the United States under s 212 of the Immigration  and
Nationality Act ("INA"), 8 U.S.C. s 1182(a)(2)(C), be- cause there was
reason to believe that he had been an illicit  trafficker of
controlled substances, or had knowingly assisted  and abetted, or
conspired and colluded with, others in the  illicit trafficking of
controlled substances. The Consul Gener- al sent a letter to Saavedra


Thereafter, the State Department issued an advisory opin- ion
supporting the Consul General's finding that Saavedra  was ineligible
for a visa under s 212(a)(2)(C) of the INA.  The State Department
issued a Certificate of Revocation on  August 1, 1996, providing that
the revocation of the B-1/B-2  visa would be effective as of
Saavedra's next departure from  the United States. Saavedra wrote to
the Consul General  requesting her and the Department of State to
recommend  that the Attorney General grant him a waiver pursuant to 8 
U.S.C. s 1182(d)(3), which would allow Saavedra to return  temporarily
to the United States. No action was taken on 


the waiver request until April 1998 when the State Depart- ment
notified Saavedra that it had been denied.


In January 1998, Saavedra, his company, and its officer,  Wichtendahl,
filed suit in the district court seeking review  under the
Administrative Procedure Act ("APA"), 5 U.S.C.  s 701 et seq., of the
revocation of his B-1/B-2 visa and the  refusal to renew his L-1 visa.
The complaint also challenged  the State Department's failure to act
on the request for a  waiver of inadmissibility under s 212(d)(3) of
the INA, 8  U.S.C. s 1182(d)(3). The district court dismissed the com-
plaint, finding that the doctrine of consular nonreviewability  barred
the first two claims and that the third claim was moot.  Bruno v.
Albright, 20 F. Supp. 2d 51 (D.D.C. 1998).


II


The main question is whether, under the Administrative  Procedure Act,
an alien is entitled to judicial review of a  consul's denial of his
application for a visa, and of the  revocation of a visa he already
held. To put the question in  perspective, we must begin with some
history.


A


After a century of unimpeded alien migration to the United  States,
Congress in 1875 established grounds upon which  aliens might be
refused entry, and, seven years later, enacted  the first general
immigration statute. See Act of Mar. 3,  1875, ch. 141, 18 Stat. 477
(barring prostitutes and convicts);  Act of Aug. 3, 1882, ch. 376, 22
Stat. 214. Further legislation  soon followed, including a general
revision of the immigration  laws in 1903, enlarging the classes of
aliens ineligible for  entry, and another general revision in 1917.
See Act of Mar.  3, 1903, ch. 1012, 32 Stat. 1213; Act of Feb. 5,
1917, ch. 29, 39  Stat. 874. In the same year, 1917, the Departments
of State  and Labor issued a Joint Order to Diplomatic, Consular and 
Immigration Officers requiring for the first time that aliens  coming
to the United States have visas issued by an Ameri- can consulate. See
generally 3 Green Haywood Hackworth,  Digest of International Law 741
(1942); Leon Wildes, Re- view of Visa Denials: The American Consul as
20th Century  Absolute Monarch, 26 San Diego L. Rev. 887, 892 (1989).


the next year, while the country was at war, the President  designated
the Secretary of State as the official in charge of  granting
permission to aliens to enter. See 3 Hackworth,  supra, at 741. In
implementing this system, American con- suls in foreign countries
simply advised aliens of the various  exclusionary provisions of the
immigration laws, leaving the  determination of excludability to
immigration officers at the  port of entry. See Wildes, supra, at 892.
This resulted in  large numbers of foreigners making the arduous trip
to the  United States only to be detained at the border and then 
excluded. See 3 Hackworth, supra, at 741-42. To cure this  problem,
Congress passed the Act of 1924 (ch. 190, 43 Stat.  153), transferring
the responsibility for determining the ad- missibility of aliens from
the Secretary of State to consular  officers. See 3 Hackworth, supra,


The Immigration and Nationality Act of 1952, 8 U.S.C.  s 1101 et seq.,
now governs visa processing. The INA con- fers upon consular officers
exclusive authority to review  applications for visas, precluding even
the Secretary of State  from controlling their determinations. See 8
U.S.C.  ss 1104(a), 1201(a). The powers afforded to consular officers 
include, in particular, the granting, denying and revoking of 
immigrant and non-immigrant visas. See 8 U.S.C. s 1201(a),  (i).
Consular officers exercise this authority subject to the  eligibility
requirements in the statute and corresponding reg- ulations. 22 C.F.R.
ss 41.121-.122.


Obtaining a visa from an American consul has never guar- anteed an
alien's entry into the United States. A visa merely  gives the alien
permission to arrive at a port of entry and  have an immigration
officer independently examine the alien's  eligibility for admission.
See 8 U.S.C. s 1201(h). See gener- ally James A.R. Nafziger, Review of
Visa Denials by Consu- lar Officers, 66 Wash. L. Rev. 1, 14 (1991). It
is the immigra- tion officer's responsibility to make certain that the
alien does  not fall within any of the statutory categories barring
admis- sion. Among the categories are past criminal behavior. See  8
U.S.C. s 1182. Since 1952, the law has specifically excluded  aliens
engaged in the illicit drug trade. See 5 Charles 


Gordon et al., Immigration Law and Procedure s 63.03[1][a]  (1997).


The following provision, barring drug traffickers, led the  consular
officer to determine that Saavedra was ineligible for  a visa: "any
alien who the consular or immigration officer  knows or has reason to
believe is or has been an illicit  trafficker in any such controlled
substance or is or has been a  knowing assister, abettor, conspirator,
or colluder with oth- ers" in the illicit trafficking in drugs is
ineligible for entry. 8  U.S.C. s 1182 (a)(2)(C). In order to exclude
an alien on this  basis, the consular officer "must have more than a
mere  suspicion--there must exist a probability, supported by evi-
dence, that the alien is or has been engaged in trafficking." 9  U.S.
Department of State, Foreign Affairs Manual s 40.23  (1999). Consular
officers possessing such evidence enter the  alien's name in the
worldwide visa lookout system as "P2C",  possible narcotics
trafficker. When visa denials are based on  an applicant's listing in
the lookout system, the consular  officer informs the applicant that
the denial rested on a  finding of ineligibility, but the officer is
not required to  disclose the existence or details of the INS lookout


B


Saavedra's argument against the district court's dismissal  of his
action proceeds as follows: under the Administrative  Procedure Act,
judicial review of agency action is the norm,  preclusion of review
the exception; consular discretion in  determining whether to deny or
revoke a visa is not unbound- ed; Congress has not expressly barred
judicial review of visa  decisions; no statute strips the federal
courts of jurisdiction  over such cases; and this court's decision in
Abourezk v.  Reagan, 785 F.2d 1043, 1049-52 (D.C. Cir. 1986), stands
for  the proposition that consular visa determinations are subject  to
judicial scrutiny.


Saavedra's general description of the APA is quite correct.  Numerous
opinions, of the Supreme Court and of the lower  federal courts, speak
in terms of the APA's "presumption" of 


judicial review of agency action. See, e.g., Lincoln v. Vigil,  508
U.S. 182, 190 (1993); Abbott Lab. v. Gardner, 387 U.S.  136, 140
(1967); Dixie Fuel Co. v. Commissioner of Social  Security, 171 F.3d
1052, 1057 (6th Cir. 1999); Ball, Ball &  Brosamer, Inc. v. Reich, 24
F.3d 1147, 1450 (D.C. Cir. 1994).  The presumption is said to derive
from APA s 702: a "person  suffering legal wrong because of agency
action, or adversely  affected or aggrieved by agency action ... is
entitled to  judicial review thereof," 5 U.S.C. s 702. There are two 
notable qualifications. The validity of agency action may not  be
tested in court if "statutes preclude judicial review" or if  "agency
action is committed to agency discretion by law." 5  U.S.C. s


Sometimes it is suggested that s 701(a)(1) and (2) are the  only
exceptions to review under s 702. See Bennett v. Spear,  520 U.S. 154,
175 (1997); Florida Power & Light Co. v. EPA,  145 F.3d 1414, 1420
(D.C. Cir. 1998); Comsat Corp. v. FCC,  114 F.3d 223, 226 (D.C. Cir.
1997). The suggestion is, we  think, not entirely accurate. As revised
in 1976, s 702 itself  contains another qualifying clause. It provides
that "Nothing  herein"--which includes the portion of s 702 from which
the  presumption of reviewability is derived--"affects other limita-
tions on judicial review or the power or duty of the court to  dismiss
any action or deny relief on any other appropriate  legal or equitable
ground," 5 U.S.C. s 702(1). The House  Report accompanying this
amendment described these "other  limitations" as including "express
or implied preclusion of  judicial review." H.R. Rep. No. 94-1656, at
12 (1976).1 The 




__________

n 1 For the most part, the Department of Justice supported the 
amendment of APA s 702, the main purpose of which was to  eliminate
the defense of sovereign immunity of the United States in  actions in
federal court seeking relief other than money damages.  Then-Assistant
Attorney General Antonin Scalia told the Senate  subcommittee that
"one of the very premises of the proposal" was  that actions seeking
judicial review could still be disposed of on  grounds such as "lack
of standing; lack of ripeness; availability of  an alternative remedy
in another court; express or implied statuto- ry preclusion of
judicial review; commission of the matter by law to  agency
discretion; privileged nature of the defendant's conduct; 


Administrative Conference of the United States, which had  proposed the
specific language enacted as s 702(1), explained  that the courts
would still refuse "to decide issues about  foreign affairs, military
policy and other subjects inappropri- ate for judicial action." 1
Recommendations and Reports of  the Administrative Conference 191,
225. On the same sub- ject, the Administrative Conference pointed out
that "much of  the law of unreviewability consists of marking out
areas in  which legislative action or traditional practice indicate
that  courts are unqualified or that issues are inappropriate for 
judicial determination." Id.


Whether analyzed in terms of s 702(1), or in terms of  s 701(a)(1), the
conclusion is the same--the district court  rightly held that it could
not entertain Saavedra's lawsuit.  The overriding consideration is the
nature of consular visa  decisions.2 To the history just discussed,
more must be  added.


In prescribing the conditions for allowing aliens to enter  the
country, Congress acted in accordance with the ancient  principle of
international law that a nation state has the  inherent right to
exclude or admit foreigners and to prescribe  applicable terms and
conditions.3 This firmly-established  


__________

n failure to exhaust administrative remedies; discretionary power to 
refuse equitable relief; and the 'political question' doctrine." H.R. 
Rep. No. 94-1656, supra, Exh. C, at 26-27.


2 Our discussion in this part applies both to the revocation of 
Saavedra's B-1/B-2 visa and the denial of his L-1 visa. Consular 
officers have complete discretion over issuance and revocation of 
visas. See 8 U.S.C. ss 1104(a), 1201(i). The INA provides, "After  the
issuance of a visa or other documentation to any alien, the  consular
officer or the Secretary of State may at any time, in his  discretion,
revoke such visa or documentation." 8 U.S.C. s 1201(i);  see also 22
C.F.R. s 41.122. The same eligibility criteria apply  whether the
consular officer refuses to renew a visa or decides to  revoke a
previously issued one. See 8 U.S.C. s 1182(a)(2)(C). In  Saavedra's
case, once the Consul General in La Paz received  information
rendering him ineligible for an L-1 visa, that same  information
resulted in the revocation of his B-1/B-2 visa.


3 See, e.g., Ekiu v. United States, 142 U.S. 651, 659 (1892); 
Harisiades v. Shaughnessy, 342 U.S. 580, 596 (1952) (Justice 


principle, dating from Roman times,4 received recognition  during the
Constitutional Convention5 and has continued to  be an important
postulate in the foreign relations of this  country and other members
of the international community.6  For more than a century, the Supreme
Court has thus  recognized the power to exclude aliens as " 'inherent
in  sovereignty, necessary for maintaining normal international 
relations and defending the country against foreign encroach- ments
and dangers--a power to be exercised exclusively by  the political
branches of government' "7 and not "granted 




__________

n Frankfurter, concurring); C. BouvE, Exclusion and Expulsion of 
Aliens, 4 & n.3 (1912), and authorities there cited; II Emerlich de 
Vattel, Le Droit Des Gens ss 94, 100 (1758).


4 E. Borchard, Diplomatic Protection of Citizens Abroad 33, 44- 48
(1915).


5 See 3 Papers of James Madison 1277 (1840), in which Madison  reports
Gouverneur Morris' observation during the debates that  "every
society, from a great nation down to a club, ha[s] the right of 
declaring the conditions on which new members should be admit- ted."
Article I, Section 9, Clause 1, of the Constitution is an  implicit
recognition of Congress's authority to regulate immigration.  In
addition, Article III of the Jay Treaty of 1794, 8 Stat. 116, 117, 
provided that British and American subjects could freely cross the 
Canadian border. See Karnuth v. United States, 279 U.S. 231  (1929).
As to the Colonial understanding of the sovereign's power  to control
the admission of aliens, see Thomas Jefferson, Notes on  the State of
Virginia 83-85 (Peden ed. 1955).


6 See, e.g., Convention Between the United States of America and  other
American Republics Regarding the Status of Aliens, art. I,  46 Stat.
2753, 2754 (1928); Constitution of the Intergovernmental  Committee
for European Migration, 6 U.S.T 603, 604 (1955); Hines  v. Davidowitz,
312 U.S. 52 (1941); 3 Hackworth, supra, at 725-29;  W. Hall,
International Law 211-12 (6th ed. 1909); 4 John Bassett  Moore,
International Law Digest 151-74 (1906); Borchard, supra  note 5, at


7 Kleindienst v. Mandel, 408 U.S. 753, 765 (1972), quoting the 
Solicitor General's brief; see Fiallo v. Bell, 430 U.S. 787, 792
(1977)  (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)).


away or restrained on behalf of anyone." The Chinese Exclu- sion Case,
130 U.S. 581, 609 (1889).


These considerations underlie the Court's long-standing  recognition
that "any policy toward aliens is vitally and  intricately interwoven
with contemporaneous policies in re- gard to the conduct of foreign
relations, the war power, and  the maintenance of a republican form of
government. Such  matters are so exclusively entrusted to the
political branches  of government as to be largely immune from
judicial inquiry  or interference." Harisiades v. Shaughnessy, 342
U.S. 580,  588-89 (1952); see also Reno v. American-Arab Comm., 119 
S. Ct. 936, 947 (1999). Though it may be "error to suppose  that every
case or controversy which touches foreign relations  lies beyond
judicial cognizance," Baker v. Carr, 369 U.S. 186,  211 (1962), it is
nevertheless "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 (1950).8


In view of the political nature of visa determinations and of  the lack
of any statute expressly authorizing judicial review of  consular
officers' actions, courts have applied what has be- come known as the
doctrine of consular nonreviewability.  The doctrine holds that a
consular official's decision to issue  or withhold a visa is not
subject to judicial review, at least  unless Congress says otherwise.9
For the greater part of this 




__________

n 8 Justice Harlan put it this way in Lem Moon Sing v. United  States,
158 U.S. 538, 547 (1895): "The power of Congress to exclude  aliens
altogether from the United States, or to prescribe the terms  and
conditions upon which they may come to this country, and to  have its
declared policy in that regard enforced exclusively through  executive
officers, without judicial intervention, is settled by our  previous
adjudications."


9 Historically, disputes arising from the denial of a visa applica-
tion have been handled through diplomatic channels, not by courts.  In
United States ex rel. London v. Phelps, 22 F.2d 288 (2d Cir.  1927), a
British subject challenged the denial of a visa, which  prevented her
from traveling from Montreal to visit her children in 


century, our court has therefore refused to review visa deci- sions of
consular officials. United States ex rel. Ulrich v.  Kellogg, 30 F.2d
984, 986 (D.C. Cir. 1929), held that the then- current immigration law
did not provide for an official review  of a consular officer's denial
of a visa. Under succeeding  incarnations of federal immigration law
through to the pres- ent, this court and other federal courts have
adhered to the  view that consular visa determinations are not subject
to  judicial review. See, e.g., Castaneda-Gonzalez v. INS, 564  F.2d
417, 428 n.25 (D.C. Cir. 1977); Chi Doan v. INS, 160  F.3d 508, 509
(8th Cir. 1998); Centeno v. Shultz, 817 F.2d  1212, 1213 (5th Cir.
1987) (per curiam); Li Hing of Hong  Kong, Inc. v. Levin, 800 F.2d 970
(9th Cir. 1986); Rivera de  Gomez v. Kissinger, 534 F.2d 518, 518 (2d
Cir. 1976) (per  curiam); Romero v. Consulate of the United States,
Barran- quilla, Colombia, 860 F. Supp. 319, 322-24 (E.D. Va. 1994); 
Kummer v. Schultz, 578 F. Supp. 341, 342 (N.D. Tex. 1984); 
Licea-Gomez v. Pilliod, 193 F. Supp. 577, 582 (N.D. Ill. 1960).  In
Castaneda-Gonzalez, we dealt with the subject tersely, in a  footnote,
because the law was so settled: a consular officer,  we wrote, could
refuse to issue a visa to an alien "without fear  of reversal since
visa decisions are nonreviewable." 564 F.2d  at 428 n.25.


In terms of APA s 702(1), the doctrine of consular nonre-
viewability--the origin of which predates passage of the  APA--thus
represents one of the "limitations on judicial  review" unaffected by
s 702's opening clause granting a right  of review to persons
suffering "legal wrong" from agency  action.10 As the report of the
Administrative Conference on 




__________

n New York. The Second Circuit, holding the denial nonreviewable, 
noted that the "[u]njustifiable refusal to vise a passport may be 
ground for diplomatic complaint by the nation whose subject has  been
discriminated against [but is] beyond the jurisdiction of the  court."
See id. at 290 (citing 3 John Bassett Moore, A Digest of 
International Law 995-97 (1906)).


10 The same result would follow if "legal wrong" in s 702 were 
interpreted, as the Attorney General's Manual suggested in 1947, to 
mean "such wrong as ... the courts have recognized as constituting 


s 702(1) put it, this is an area "in which legislative action  [and]
traditional practice indicate that courts are unqualified  or that
issues are inappropriate for judicial determination."11


Or from the principles just discussed we may infer that, in  the words
of APA s 701(a)(1), the immigration laws "preclude  judicial review"
of the consular visa decisions. The inference  is, we believe,
unmistakable in light of the severe limitation of  remedies afforded
aliens who--unlike Saavedra--are physi- cally present at the United
States border when they are  denied entry. Again, some history needs
to be recounted.


Until the Supreme Court's decision in Brownell v. We  Shung, 352 U.S.
180 (1956), aliens detained by immigration  officials at ports of
entry had but one legal recourse--habeas  corpus. See Heikkila v.
Barber, 345 U.S. 229 (1953); Ekiu v.  United States, 142 U.S. 651, 660
(1892). The right to seek 




__________

n ground for judicial review." United States Department of Justice, 
Attorney General's Manual on the Administrative Procedure Act  96
(1947). Hence, in certain areas--and visa determinations are  one of
them--judicial non-intervention is the norm and the pre- sumption of
review "runs aground." Department of the Navy v.  Egan, 484 U.S. 518,
527 (1988); Peoples v. United States Dep't of  Agric., 427 F.2d 561,
567 (D.C. Cir. 1969).


11 As to s 701(a)(2)--"agency action committed to agency discre- tion
by law"--the Supreme Court has not as yet adopted Justice  Scalia's
view, expressed in his dissenting opinion in Webster v. Doe,  486 U.S.
592, 608-10 (1988), that s 701(a)(2) was meant to incorpo- rate the
common law of judicial review "--a body of jurisprudence  that had
marked out, with more or less precision, certain issues and  certain
areas that were beyond the range of judicial review." Id. at  608.
Rather, in Webster v. Doe, id. at 599-600, as in Heckler v.  Chaney,
470 U.S. 820 (1985), the Court interpreted s 701(a)(1) to  preclude
judicial review when statutes are written so broadly that  "there is
no law to apply" (Citizens to Preserve Overton Park, Inc.  v. Volpe,
401 U.S. 402, 410 (1971)). In Abourezk v. Reagan, 785  F.2d 1043, 1051
(D.C. Cir. 1986), aff'd by an equally divided Court,  484 U.S. 1
(1987), this court held that "the Immigration Act  emphatically did
not commit the decision to exclude an alien to  standardless agency


habeas relief arose as a consequence of the alien's being in  custody;
it did not rest on any right to entry. In We Shung,  the Court
considered whether, in addition to habeas corpus,  an alien could
challenge an exclusion order under the APA.  The Court held that the
1952 INA, unlike the prior Immigra- tion Act of 1917, did not limit
detained aliens to habeas  corpus. See We Shung, 352 U.S. at 184-86.
Citing the  legislative history of the 1952 Act, the Court concluded
that  Congress had intended the APA to apply both to exclusion  and to
deportation proceedings. See id. at 186; see also H.R.  Rep. No.
82-2096, at 127 (1952). The Court limited its ruling  to aliens
present in the United States, stating: "We do not  suggest, of course,
that an alien who has never presented  himself at the borders of this
country may avail himself of the  declaratory judgment action by
bringing the action from  abroad." 352 U.S. at 184 n.3.


In 1961, Congress overruled We Shung, amending the INA  to make clear
that habeas corpus was the only method for  judicial review of
exclusion orders. The House Report ex- plained:


For three-quarters of a century, prior to the decision in  the Shung
case, habeas corpus was the sole and exclusive  method for testing in
court an administrative determina- tion that an alien was not entitled
to enter the United  States.... 


* * *


... Such a restriction to habeas corpus does not deprive  the alien of
any constitutional rights. It is well settled  that aliens seeking
admission to the United States cannot  demand that their applications
for entry be determined  in a particular manner or by use of a
particular type of  proceedings. For those aliens, the procedure fixed
by  Congress is deemed to be due process of law. (Knauff v. 
Shaughnessy, 338 U.S. 537 (1950)).


H.R. Rep. No. 87-1086, at 31-32 (1961). Under the INA  amendments, "any
alien against whom a final order of exclu-


sion has been made heretofore or hereafter under the provi- sions of
[this Act] may obtain judicial review of such order by  habeas corpus
proceedings and not otherwise." Pub. L. No.  87-301, s 5(b), 75 Stat.
651 (1961); 8 U.S.C. s 1105a(b).


By restoring habeas corpus as the sole remedy, Congress  ensured that
only aliens in custody could challenge exclusion  orders, a
legislative decision implicitly precluding review to  aliens located
abroad, such as Saavedra. See H.R. Rep. No.  87-1086, supra, at 33.
The House Report pointed out that  "habeas corpus actions are
necessarily determined in the  locality where the alien is, where he
has been excluded, and  where he is 'knocking at the door.' " Id. The
amendments  reflect Congress's sense that habeas provided "a full,
com- plete, and adequate method for judicial review of an exclusion 
order." Id. at 32-33. To allow APA review would "give  recognition to
a fallacious doctrine that an alien has a 'right'  to enter this
country which he may litigate in the courts of  the United States
against the United States as a defendant."  Id. at 33. Moreover, the
amended statute provided that "an  order of deportation or of
exclusion shall not be reviewed by a  court if the alien has not
exhausted [his] administrative  remedies ... or if he has departed
from the United States."  Id. at 3, 28 (emphasis added).


It is not plausible then, that in restricting review of exclu- sion
orders to habeas corpus, Congress intended to allow  aliens residing
abroad to have greater remedies than those  detained by immigration
officials at United States ports of  entry. To put the matter in terms
of APA s 701(a)(1), we  may infer that the immigration laws preclude
judicial review  of consular visa decisions. There was no reason for
Congress  to say as much expressly. Given the historical background 
against which it has legislated over the years, including even  the
congressionally-overruled We Shung decision, 352 U.S. at  184 n.3,
Congress could safely assume that aliens residing  abroad were barred
from challenging consular visa decisions  in federal court unless
legislation specifically permitted such  actions. The presumption, in
other words, is the opposite of  what the APA normally supposes. In
this respect the case is  similar to Department of the Navy v. Egan,


(1988). See Peoples v. United States Dep't of Agric., 427 F.2d  561,
567 (D.C. Cir. 1969). When it comes to matters touching  on national
security or foreign affairs--and visa determina- tions are such
matters--the presumption of review "runs  aground." 484 U.S. at 527.
This much follows from the  Court's instruction that APA review may be
foreclosed by  virtue of "the collective import of legislative and
judicial  history behind a particular statute ... [or] by inferences
of  intent drawn from the statutory scheme as a whole." Block v. 
Community Nutrition Inst., 467 U.S. 340, 349 (1984), relied  upon in
Egan (484 U.S. at 530). It follows as well from the  Court's recurring
statements, of which United States ex rel.  Knauff v. Shaughnessy, 338
U.S. at 543, is an example, that  there may be no judicial review of
the decisions to exclude  aliens unless Congress has "expressly


For many of the reasons just given and for another about  to be
discussed, the government maintains that federal courts  have no
jurisdiction over actions such as Saavedra's. We  agree, of course,
that in light of Califano v. Sanders, 430 U.S.  99, 105, 107 (1977),
APA s 702 cannot be considered a juris- dictional grant and that
Saavedra must therefore rest on the  general federal question statute,
28 U.S.C. s 1331. But this  general jurisdictional provision, the
government tells us, is  subject to preclusion-of-review legislation
and the Illegal Im- migration Reform and Immigrant Responsibility Act
of 1996  ("IIRIRA"), Pub. L. No. 104-208, s 306(a)(2), 110 Stat. 3009,
 546, is such legislation. There Congress further restricted  judicial
review of exclusion orders, now called removal orders,  in actions
brought by aliens present in the United States. As  matters now stand,
federal courts have no jurisdiction "to  review any final order of
removal against an alien who is  removable by reason of having
committed [certain] criminal  offense[s]"--including trafficking in
controlled substances. 8  U.S.C. s 1252(a)(2)(c); cf. Yang v. INS, 109
F.3d 1185, 1192  (7th Cir. 1997). The IIRIRA also amended the
immigration  law provision giving general jurisdiction to the district
courts.  The amended provision now reads: the "district courts of the 
United States shall have jurisdiction of all causes, civil and 
criminal, brought by the United States that arise under the 


provisions of this subchapter," 8 U.S.C. s 1329, thus making  clear
that district court jurisdiction founded on the immigra- tion statute
is confined to actions brought by the government.  See Reno v.
American-Arab Comm., 119 S. Ct. at 940 n.4.  The "provisions of this
subchapter," to which s 1329 refers,  include the provisions dealing
with consular visa decisions.  Read in light of the long history of
judicial noninterference  with the judgments of consular officers
regarding visas, one  might characterize IIRIRA s 1329 as a
restriction on district  court jurisdiction to review claims such as
those set forth in  Saavedra's complaint, a restriction superseding
general feder- al question jurisdiction. Or one might view this recent
legis- lative history as reinforcing the judgment, to which we sub-
scribe, that the immigration laws preclude judicial review of 
consular visa decisions and that the doctrine of consular 
nonreviewability remains intact, until Congress provides oth- erwise.
Both views amount to the same thing and lead to the  same


C


All that remains of this aspect of the case is Saavedra's  argument
that our decision in Abourezk v. Reagan, 785 F.2d  1043 (D.C. Cir.
1986), aff'd by an equally divided Court, 484  U.S. 1 (1987),
forecloses any contention that consular visa  decisions are immune
from judicial review. We think Saave- dra reads more into the Abourezk
opinion than the court  intended.


Each plaintiff in the three consolidated actions on appeal in  Abourezk
was an American citizen. On constitutional and  statutory grounds,
they contested the denial of visas to  foreigners they had invited to
come to the United States and  give speeches. 785 F.2d at 1048-49. In
that respect the case  was akin to, but different from, Kleindienst v.
Mandel, 408  U.S. 753 (1972). Different because in Mandel, professors
in  this country, claiming a First Amendment right to hear a  Belgian
journalist talk in the United States, challenged not  the consular
officer's denial of the journalist's request for a 


visa, but the Attorney General's refusal to waive his ineligibil- ity
for a visa (he was a Marxist).12 See id. at 756-59. The  Supreme Court
held in Mandel that so long as the Attorney  General gave a "facially
legitimate and bona fide reason," as  he did, the courts will not test
the decision by balancing the  justification against the supposed
First Amendment interests  of those who wished to converse with the
alien face-to-face.  Id. at 770.


Citing Mandel, the court in Abourezk rejected the State  Department's
contention that the district court lacked subject  matter
jurisdiction. Judicial review was proper, the court  held, when United
States sponsors of a foreign individual  claim that the State
Department's denial of a visa to an alien  violated their
constitutional rights. See id. at 1050. As a  decision of a panel,
Abourezk cannot be treated as an overrul- ing of Castaneda-Gonzalez,
564 F.2d at 428 n.25,13 and it  cannot be read as expressing
disagreement with other deci- sions recognizing the doctrine of
consular nonreviewability.  The Abourezk court went out of its way to
distinguish those  decisions, and it did so on grounds that are
against Saavedra.  Thus, the Abourezk court did not take issue with
the "long- standing judicial practice of refusing to review [visa
denial]  claims like those raised here" at the behest of a
disappointed  alien. 785 F.2d at 1051 n.6 (citations omitted).
Instead, the  court found this judicial practice inapplicable to the
cases  before it, because they involved "claims by United States 
citizens rather than by aliens ... and statutory claims that  are




__________

n 12 The INA authorizes the Attorney General to grant a waiver of 
ineligibility upon recommendation of the Secretary of State or of  the
consular officer that the alien be admitted temporarily despite  his
inadmissibility. See 8 U.S.C. s 1182(d)(3).


13 One panel cannot overrule another panel. See LaShawn v.  Barry, 87
F.3d 1389 (D.C. Cir. 1996).


14 We take note of Judge Bork's point that plaintiffs' statutory 
claims had to be reviewed in order for the court to reach their 
constitutional claims. See id. at 1062 n.1 (Bork, J., dissenting).


Whatever one might think of these distinctions, they serve  to
undermine Saavedra's position. Unlike Abourezk, Saave- dra's American
sponsors--Musicanga, Inc. and Wichten- dahl--asserted no
constitutional claims. Furthermore, in our  view, neither Musicanga,
Inc., nor its officer Wichtendahl,  have standing to challenge the
denial or the revocation of  Saavedra's visa. With respect to purely
statutory claims,  courts have made no distinction between aliens
seeking re- view of adverse consular decisions and the United States 
citizens sponsoring their admission; neither is entitled to  judicial
review. See Li Hing of Hong Kong, Inc., 800 F.2d at  970. Saavedra's
American sponsors are attempting to assert  rights not afforded to
them by the INA. The INA permitted  them to file a petition with the
Attorney General to have  Saavedra classified as a managerial employee
so that he  might qualify for an L-1 visa. See 8 U.S.C. s
1154(a)(1)(D).  When their petition was granted and Saavedra received
that  classification, their cognizable interest terminated. Because 
their interest has already been satisfied, the citizen sponsors  have
not been aggrieved "within the meaning of the relevant  statute" and
have no right of review under the APA even if  APA review were
available. National Credit Union Admin.  v. First Nat'l Bank & Trust


Thus, Saavedra cannot by any stretch bring himself within  the narrow
holding of Abourezk. Any doubts on this score  are laid to rest by
City of New York v. Baker, 878 F.2d 507  (D.C. Cir. 1989), an appeal
from the judgment of the district  court rendered on remand from
Abourezk. Citing  Castaneda-Gonzalez, the court held that neither it
nor the  district court has the "power to serve as a proxy consular 
officer": "This circuit has recognized, as has every circuit to 
consider the issue, that the courts are without authority to  displace
the consular function in the issuance of visas." 878  F.2d at 512.15




__________

n 15 Given the fact that Abourezk was the "law of the case," the  court
in Baker engaged in no discussion regarding preclusion of  judicial
review. The statement we quote dealt with the question of  remedy, but
is important nonetheless in light of the court's citation, 


In addition, Abourezk rested in large measure on the  provision of the
INA-8 U.S.C. s 1329 (1982)--then giving  federal district courts
jurisdiction over "all causes, civil and  criminal, arising under any
of the provisions" of the immigra- tion statutes. See 785 F.2d at
1049-50. In light of s 1329,  the Abourezk court determined that APA s
701(a)(1) did not  apply: "the Immigration Act, far from precluding
review,  affirmatively provides for it." 785 F.2d at 1051. No such 
statement can be made today. As we have discussed (pp. 15- 16 supra),
the amendment to s 1329 now makes clear that  district courts do not
have general jurisdiction over claims  arising under the immigration
laws and that their jurisdiction  extends only to actions brought by
the government.


III


The remaining portion of Saavedra's complaint sought an  injunction
compelling the State Department to act on Saave- dra's request for a
waiver of inadmissibility pursuant to 8  U.S.C. s 1182(d)(3). Though
the State Department has since  denied the waiver request, Saavedra
maintains that the claim  is not moot because "voluntary cessation of
challenged con- duct" does not render the controversy ended. Brief for
 Appellants at 42, citing United States v. W.T. Grant Co., 345  U.S.
629, 632 (1953). Saavedra now seeks a declaration that  the government
must respond in a timely fashion to waiver  requests that he is likely
to file in the future. The State  Department's one-time delay in
acting on Saavedra's request  does not satisfy this court that such
relief is necessary.  Because Saavedra has not shown a "cognizable
danger of  recurrent violation," we decline to issue the declaration
he  requests. Madsen v. Women's Health Center, Inc., 512 U.S.  753,
765 n.3 (1994) (citing United States v. W.T. Grant Co.,  345 U.S. at


Affirmed.




__________

n with approval, to this court's opinion in Castaneda-Gonzalez and  the
opinions of other courts sustaining the doctrine of consular 
nonreviewability.