Appeals from the United States District Court for the District of Columbia (No. 94cv00361), (No. 95cv00989)
Before: Edwards, Chief Judge, Sentelle and Randolph, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with Nos. 95-5425 & 96-5058
Opinion for the court filed by Circuit Judge Sentelle.
These consolidated cases present challenges to the Department of State's consular venue policy. Plaintiffs assert that the policy discriminates on the basis of nationality in violation of Section 202 of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1152(a)(1). Plaintiffs also claim that the policy is arbitrary and capricious within the meaning of the Administrative Procedure Act, 5 U.S.C. Section(s) 706(2)(a), and that it violates the equal protection component of the Fifth Amendment's Due Process Clause. We conclude that under a recent amendment to the INA, plaintiffs' statutory and APA claims are unreviewable. We also hold that the constitutional claim has no merit.
Because we discuss the background of the State Department policy at issue and this litigation in some detail in our opinion in Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Bureau of Consular Affairs, 45 F.3d 469 (D.C. Cir. 1995), reh'g denied, 74 F.3d 1308 (D.C. Cir.), vacated, 117 S. Ct. 378 (1996) [hereinafter LAVAS], we present an abbreviated version here. During the 1980s an overwhelming number of migrants from Vietnam and Laos fled their home countries seeking refuge in other countries in Southeast Asia. To deal with the migration crisis some 50 countries, including the United States, entered into an international agreement known as the Comprehensive Plan of Action ("CPA"). Under the CPA, Vietnamese and Laotian migrants who land in other countries are screened by local officials to determine refugee status. Those migrants who are "screened-out," that is determined not to be refugees, are repatriated. A repatriated migrant may then apply for an immigrant visa from his home country. Until 1993, the United States Consulate General in Hong Kong processed the visa applications of migrants before, and sometimes after, they were screened-out as nonrefugees. Other nations party to the CPA objected that this practice encouraged further migration, so the State Department adopted a policy against processing visa applications of "screened-out" Vietnamese or Laotian migrants in Hong Kong. Under current State Department policy, the migrant is repatriated and his visa application is processed in his home country.
In 1994, two Vietnamese migrants, the migrants' sponsors in the United States, and a non-profit legal-rights organization challenged the State Department policy under Section 202 of the INA, 8 U.S.C. Section(s) 1152(a), which prohibits United States consular officials from discriminating on the basis of nationality in the issuance of immigrant visas. The plaintiffs also claimed that the policy was arbitrary and capricious within the meaning of the Administrative Procedure Act ("APA"), 5 U.S.C. Section(s) 706(2)(a), and that it violated the equal protection component of the Fifth Amendment's Due Process Clause. The district court granted the State Department's motion for summary judgment. In LAVAS, a divided panel of this court reversed, holding that the consular venue policy violated 8 U.S.C. Section(s) 1152(a)(1) because the State Department had drawn a distinction between Vietnamese and Laotian nationals and nationals of other countries. 45 F.3d at 473. We did not reach plaintiffs' remaining APA or constitutional claims. The government filed a petition for rehearing and suggestion for rehearing en banc. In the meantime, on remand, the district court held that the case had become moot. 909 F. Supp. 1 (D.D.C. 1995). The panel reversed as to mootness and held that rehearing was unwarranted. 74 F.3d 1308 (D.C. Cir. 1996).
While the government's rehearing petition in LAVAS was pending, a separate action, Le v. United States Dept. of State, was filed in United States District Court. The district court, relying on this court's opinion in LAVAS, granted summary judgment for plaintiffs and enjoined the government from implementing its policy of declining to process the applications of screened-out migrants in Hong Kong. 919 F. Supp. 27 (D.D.C. 1996). The government appealed the injunction, and this court granted initial hearing en banc. In the meantime, the Supreme Court granted certiorari in LAVAS. 116 S. Ct. 2521 (1996). We then suspended en banc proceedings in Le pending the Supreme Court's decision. On September 30, 1996, shortly before the Supreme Court was to hear oral argument in LAVAS, the President signed into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRA") (enacted as Division C of the Department of Defense Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996)). Section 633 of the IIRA amends the INA by adding the following to 8 U.S.C. Section(s) 1152(a)(1): "(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed." After requesting supplemental briefing on the effects of section 633, the Supreme Court vacated our judgment in LAVAS and remanded the case to us for "further consideration in light of Section 633." 117 S. Ct. 378 (1996) (per curiam). We then consolidated LAVAS and Le.
The State Department argues that section 633 applies to plaintiffs' claims. Although section 633 was not in effect at the time the State Department enacted the new policy, the State Department asserts that Congress intended section 633 to be retroactive from its enactment. The State Department further argues that section 633 applies because the plaintiffs are seeking only prospective relief. We need not determine whether Congress intended section 633 to apply retroactively because we hold that application of the amendment does not raise retroactivity concerns. Plaintiffs' claim raises a procedural right and is governed by the INA as amended by section 633. We also hold that this case concerns prospective relief and so does not raise problems of retroactivity. Applying section 633, we hold that the ...