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laws of the United States, an offender must be returned if the sentencing
country so requests within thirty days of receiving notice.90 Thus Rosado,
Caban and Velez subjected themselves to the very real danger of being
sent back to Mexico had their appeals established the invalidity of their
consent to transfer. Professor M. Cherif Bassiouni, in testimony on the
implementing legislation, expressed his concern that failure to return nonconsenting offenders would strain bilateral relations between the United
States and the transferring country.91 He noted that Mexican and Canadian officials anxious to see the Treaty ratified expressed little interest in
the return provisions. However, such officials might alter their current
stance in light of public reaction to and media exposure of the United
States' wholesale release of prisoners in derogation of the Treaty's provisions.92
An affirmance of Judge Daly's decision might have led to quite an ironic
outcome in the name of due process. Mexico could have recalled the petitioners under section 4114 and then elected to foreclose future affronts to
its judicial system by halting further transfers, as provided by the Treaty's
terms. Thus, justice for these three petitioners could have resulted in justice for none.
Steve Van Hooser
DEPORTATION-SECRETARY OF STATE'S REVOCATION OF AN ALIEN'S
VISA Is SUBJECT TO JUDICIAL REVIEW; THE SECRETARY NEED ONLY FOLLOW A REASONABLE LEGAL TEST TO MAKE A VALID VISA REVOCATION;
ABSENT VERY COMPELLING EVIDENCE THE SECRETARY'S REVOCATION OF
AN ALIEN'S VISA WILL NOT BE OVERTURNED ON A CHARGE OF IMPERMISSIBLE POLITICAL INTERFERENCE. Knoetze v. United States, 472 F.
Supp. 201 (S.D. Fla. 1979).
1.
INTRODUCTION
Petitioner Nikolaas "Kallie" Knoetze, a citizen of South Africa and the
second-ranked heavyweight boxing challenger in the world at the time,
sought a permanent injunction against the revocation of his visa by Secretary of State Cyrus Vanee, and judicial review of the refusal of the Immigration and Naturalization Service (INS) to change his nonimmigrant visa
status to an H-c1ass status to permit him to box in the United States. The
Secretary of State revoked Knoetze's visa under the Immigration and Na90. 18 U.S.C. § 4114(a) (Supp. II 1978).
91. See Penitentiary Subcomm. Hearings, supra note 5, at 132-33 (statement of Prof. M.
Cherif Bassiouni)..
92. Iff.
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tionality Action the ground that he had been convicted abroad of a crime
of moral turpitude, which fact justified Knoetze's deportation pursuant to
section 1182(a)(9) of the Act? The INS' refusal to grant petitioner a
change of his nonimmigrant status was based upon the same ground. The
district court denied Knoetze's request for an injunction and upheld the
Secretary of State's revocation of his visa.
Knoetze, formerly a South African police officer, had been charged with
various offenses during his law enforcement career. The first offense entailed the shooting of a black youth at Atteridgeville, South Africa, where
Knoetze was one of several police officers sent to stem a riot of blacks. The
officers fired warning shots into the air and ground but apparently a bullet
ricocheted and injured a black youth in the leg. All of the officers involved
were found not guilty because there was no proof that any particular officer had shot the youth. 3 Furthermore, in his report concerning the incident, the Police Commissioner of Johannesburg cited Knoetze's reputation
for helping blacks out of difficulties and having a special sympathy towards blacks. Petitioner was later charged with three counts of assault,
one of which involved hitting an off duty policeman who had become
"cheeky" when Knoetze stopped him for running a stop sign,4 to which
charge he pleaded guilty and was fined the equivalent of sixty-nine dollars.
These relatively simple assault offenses were misdemeanors not involving
moral turpitude, and as such would not have subjected petitioner to deportation once he had been admitted to the United States.5 Finally, Knoetze
had been convicted of attempting to obstruct justice during an investigation of an assault charge conducted against a fellow officer. Officer Bosch,
1. B u.s.c. § 1201(i) (1976) provides, in relevant part: "After the issuance of a visa
• . . to any alien. . . the Secretary of State may at any time, in his discretion, revoke such
visa . . . and such revocation shall invalidate the visa . . . from the date of issuance."
2. B U.S.C. § IIB2(a) (1976) designates aliens ineligible to receive visas. An alien who
has been convicted of a crime involving moral turpitude is generally excludable under
§ IIB2(a)(9) with certain exceptions, some of them being. that:
Any alien who would be excludable because of the conviction of a misdemeanor
classifiable as a petty offense under the provisions of section 1(3) of Title IB, by
reason ofthe punishment actually imposed, or who would be excludable as one who
admits the commission of an offense that is classifiable as a misdemeanor under the
provisions of section I (2) of Title IB, by reason ofthe punishment which might have
been imposed upon him, may be granted a visa and admitted to the United States if
otherwise admissible: Provided, That the alien has committed only one such offense, or admits the commission of acts which constitute the essential elements of
only one such offense. [Emphasis added with the exception of Provided.]
Id. § IIB2(a)(9). B U.S.C. § I (1976) provides:
(I) Any offense punishable by death or imprisonment for a term exceeding one
year is a felony.
(2) Any other offense is a misdemeanor.
(3) Any misdemeanor, the penalty for which does not exceed imprisonment for
a period of six months or a fine of not more than $500, or both, is a petty offense.
3. Knoetze v. United States, 472 F. Supp. 201, 209 (S.D. Fla. 1979).
4. Id.
5. Id.
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a sparring partner and friend of Knoetze, had arrested two white youths
and charged them with automobile theft. During the arrest, Bosch apparently hit one of the youths, which caused the youth's parents to initiate
assault charges against him. Knoetze, who knew the parents personally,
tried to dissuade them from pressing charges against Bosch. This attempt
at persuasion ultimately led to his being charged with obstruction of justice, a charge to which he pleaded guilty and was fined the equivalent of
$175.6 The United States Consul in Johannesburg determined that this
latter conviction was also a misdemeanor within the petty offense exception of section 1182(a)(9) of the Immigration and Nationality Act, and
consequently issued a nonimmigrant visa to Knoetze on December 14,
1968.7
The series of events which led to the revocation of petitioner's visa were
triggered by two messages on December 14, 1978, from the Southwest Africa People's Organization (SWAPO)8 to the United States Mission at the
United Nations. One of the messages erroneously claimed Knoetze had
killed a black youth, and it called upon the Secretary of State to intervene
and prevent him from boxing in the United States.9 On December 16, the
United States Mission forwarded these messages to the United States Embassy in Pretoria, South Africa, and to the Secretary of State in Washington. On December 19, the American Embassy in Pretoria sent the
Secretary of State a dispatch discussing two of the South African charges
that had been brought against Knoetze. One charge concerned the shooting of the black youth in Atteridgeville,IO of which petitioner had been
absolved of guilt. The other case concerned the obstruction of justice conviction, concerning which the dispatch incorrectly stated that the persons
petitioner had attempted to dissuade from pressing charges were black. 11
In addition, the Southern African Project of the Lawyer's Committee for
Civil Rights sent a letter to the Secretary of State, received on December
19, requesting the Secretary to deny Knoetze a visa. This letter also contained a number of inaccuracies.
The State Department discussed the Knoetze matter with prominent
black leaders in the United States. On December 28 an assistant in Hamilton Jordan's office at the White House contacted Under-Secretary of State
Benjamin Read and informed him that he had directed the Reverend Jesse
6. Id at 208.
7. Id at 203. Knoetze's visa was issued under 8 U.S.C. § I 101 (a)(15)(B) (1976) which
applies to aliens visiting the country temporarily for pleasure or business other than performing skilled or unskilled labor or media business.
8. SWAPO is an African organization whose aim is to establish the independent nation
of Namibia out of a region of Southwest Africa, which is presently governed by South Africa. Id at 206 n.6.
9. Id at 206.
10. This charge was technically irrelevant because 8 U.S.C. § I I 82(a)(9) applies only to
convictions and Knoetze was not convicted of this offense.
II. Id at 206.
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Jackson to contact Read about the Knoetze matter. 12 Reverend Jackson
telephoned Read that evening and a meeting was set for January 3, 1979.
Read, prior to the telephone call from the White House, had known nothing about Knoetze's situation. In an effort to acquire information, the
State Department sent two cables on December 29 to the American Embassy in Pretoria requesting translated copies of the court record and the
South African statute under which petitioner had been convicted. The
Embassy sent a return cable two days later, inquiring whether State had
contacted the INS about petitioner's application for a change of visa status
to permit him to box professionally in the United States. 13 On January 2,
1979, Mr. Black of the INS advised Mr. Devlin of the State Department
that, as a bona fide boxer, Knoetze would experience no difficulty in obtaining H-l visa status, which would permit him to box in the United
States, unless the State Department informed the INS that his original visa
had been erroneously issued and that grounds of ineligibility for an H-l
visa existed. 14
The January 3, 1979, meeting was attended by the Reverend Jesse Jackson, black leader Carl Holman, President of the National Urban Coalition,
Under-Secretary of State Benjamin Read, Assistant Secretary of State Barbara Watson and Carl Shepherd, Chief of the Advisory Opinions Division
in the Visa Office of the Department of State. According to Read, Jackson
voiced his concern about the shooting of the black youth, his opposition to
apartheid, and his doubts on the effectiveness of the administration's
human rights policy if persons such as Knoetze were allowed entry to the
United States. There is no evidence the group discussed the State Department's ultimate reason for the revocation of petitioner's visa-his South
Mrican obstruction of justice conviction. Mter the meeting, Reverend
Jackson telephoned Under-Secretary Read several times about the
Knoetze case. 15
In the week following January 3, the State Department revoked
Knoetze's visa and the INS denied his application for an H-class visa. 16
The State Department based the revocation on the ground that petitioner's
South Mrican conviction was a felony, rather than a misdemeanor, which
rendered him an excludable alien by operation of section 1182(a)(9)Y
Notice of the revocation, as required by regulations promulgated pursuant
12. Id.
13. Knoetze attempted to change his status by acquiring an H-class visa to permit him
to box professionally in the United States pursuant to 8 U.S.C. § llOl(a)(15)(H)(i) (1976).
This section applies to an alien ''who is of distinguished merit and ability and who is coming
temporarily to the United States to perform services of an exceptional nature requiring such
merit and ability." Id.
14. 472 F. Supp. at 206-07.
15. Id. at 213.
16. Id. at 203.
17. Id.
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to the Immigration and Nationality Act,18 was not provided to petitioner.
Knoetze learned of the State Department's action from the press and filed
suit on January 10, 1979, to permanently enjoin the visa revocation.
The District Court for the Southern District of Florida issued a temporary restraining order, followed by a preliminary injunction, to allow
Knoetze to remain in the country while the litigation proceeded. 19 Petitioner contended that the Secretary of State's revocation of his visa was in
error on three grounds: 1) the South African offense under which he was
convicted constituted a misdemeanor rather than a felony; 2) impermissible political interference was exerted upon the State Department officials
making the revocation decision; and 3) he was denied equal protection of
the law. 20 However, the court addressed three issues in its determination
of Knoetze's deportability: 1) whether the Secretary of State's decision to
revoke the visa of an alien already admitted to the country is subject to
judicial review; 2) what test should be applied in determining whether an
offense for which an alien is convicted abroad is a misdemeanor or a felony; and 3) what degree of political interference is necessary to render a
decision by the Secretary of State revoking the visa of an alien already
admitted to the country an abuse of discretion.
II.
THE COURT'S HOLDING
A. Reviewability of Visa Revocation by the Secretary of State
The district court first addressed the Secretary of State's argument that
Congress, in promulgating section 1201(i), which provides the Secretary
with the authority to revoke an alien's visa "at any time, in his discretiOn,"21 intended to prohibit judicial review of any revocation decision
made by the Secretary pursuant to this provision. 22 In rejecting this argument, the court cited Graham v. Caston 23 as establishing the presumption
that an administrative act is subject to judicial review unless there is a
persuasive reason to believe Congress intended otherwise.24 The court
also found that the permissive phrasing of section 1201(i) did not, without
more, create an express bar to judicial review,25 Finally, the court relied
18. 22 C.F.R. 41.134(b) (1979) requires that a bearer of a nonimmigrant visa be notified,
"if practicable," that his visa is being considered for revocation, and be given an opportunity
to show why it should not be revoked.
19. 472 F. Supp. at 204.
20. The court did not address petitioner's equal protection claim. However, this claim
was addressed by the Fifth Circuit on appeal. See Author's Note infra.
21. See note I supra.
22. 472 F. Supp. at 204.
23. 568 F.2d 1092 (5th Cir. 1978).
24. 472 F. Supp. at 205.
25. Id. at 205. To support this proposition the court cited Barlow v. Collins, 397 U.S.
159 (1969).
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upon Alameda County v. Weinberger 26 as authority for finding that the
Secretary bore the burden of proof in rebutting the presumption of judicial
reviewability. Since the Secretary failed to offer evidence of congressional
intent to support his argument against judicial reviewability, the court con~
eluded he had not satisfied his burden of proof.
The Secretary of ,State also contended that his decision to revoke an
alien's visa under section 1201(i) was nonreviewable since it constituted a
determination "committed to agency discretion" under section 701 of the
Admjnjstrative Procedure Act (APA),27 within the meaning of the applica~
ble sections28 of that ACt.29 The court, however, construed the APA exception to judicial review narrowly, utilizing the analysis of the United States
Supreme Court in Citizens To Preserve Overton Park v. Volpe. 30 The
plaintiffs in Citizens To Preserve Overton Park contended the Secretary of
Transportation had violated provisions of the Federal~Aid Highway Act of
1968 by authorizing construction of a highway through a public park. The
Supreme Court held that section 70 I allowed judicial review of the Secretary of Transportation's action because the Secretary's decision did not fall
within the narrow exception for action "committed to agency discretion.'>3l
In examining the legislative history of the APA, the Supreme Court found
the exception to judicial review is applicable only in "rare instances where
'statutes are drawn in such broad terms that in a given case there is no law
26. 520 F.2d 344 (9th Cir. 1975). To provide further support for the proposition that the
Secretary of State bore the burden of proof in overcoming the presumption of judicial reviewability, the Knoelze court cited Fekete v. United States Steel Corp., 424 F.2d 331 (3rd
Cir. 1970) and Guerrero v. Garza, 418 F. Supp. 182 (W.D. Wis. 1976). 472 F. Supp. at 205.
27. 5 U.S.C. § 70l(a)(2) (1976) precludes judicial review of agency action committed to
agency discretion by law. If an action is not found to be committed to agency discretion, or
otherwise precluded from judicial review by law, it is reviewable under 5 U.S.C. § 702
(1976), which provides the right of judicial review to persons adversely affected by such
action:
A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof. An action in a court of the United States seeking relief
other than money damages and stating a claim that an agency or an officer or
employee thereof acted or failed to act in an official capacity or under color oflegal
authority shall not be dismissed nor relief therein be denied on the ground that it is
against the United States or that the United States is an indispensable party. The
United States may be named as a defendant in any such action, and a judgment or
decree may be entered against the United States: Provided, That any mandatory or
injunctive decree shall specifY the Federal officer or officers (by name or by title),
and their successors in office, personally responsible for compliance. Nothing
herein (I) affects other limitations 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; or (2) confers authority to grant relief if any other statute that granis
consent to suit expressly or impliedly forbids the relief which is sought.
28. 5 U.S.C. § 551 el seq. (1976).
29. 472 F. Supp. at 204, 205.
30. 401 U.S. 402 (1971).
31. Id. at 410.
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to apply.' "32
The Knoetze court held that the Secretary of State was bound by the
principle set forth by the Supreme Court in Citizens To Preserve Overton
Park. The court found that the Immigration and Nationality Act, considered as a whole, provided an applicable body of law which the Secretary
could not ignore with regard to aliens already admitted to the United
States.33 Therefore, the Secretary's revocation of Knoetze's visa was subject to judicial review.
Additionally, the court outlined several other reasons justifying judicial
review of Knoetze's visa revocation. First, the Secretary had failed to provide Knoetze with notice of the visa revocation, as required by regulations
adopted by the State Department.34 However, the Secretary argued that
the Department's regulations were only binding on consular officers and
were not intended to apply to the actions of the Secretary or his assistant
secretaries. The court held that the Secretary was subject to the Department's regulations. The court, in dictum, citing Accardi v. Shaughnessy,3S
held that even if the Secretary's determination under section 1201(i) was
nonreviewable, his failure to follow the State Department's regulations as
to notice subjected his decision to judicial review. 36 Furthermore, the
court found that since Knoetze had colorably raised the issue of impermissible political interference, review was mandatory under the holding of
Lennon v. Immigration & Naturalization Service. 37 Although the court recognized it could stay the proceeding and require petitioner to exhaust his
administrative remedies before the Board ofImmigration Appeals, thereby
providing direct judicial review of that decision, it ruled this procedure
would be inappropriate for two reasons: I) the appeal might exhaust the
remaining nine months of petitioner's visa; and 2) an appeal to the Board
of Immigration Appeals would not solve the issue of impermissible political interference. 38
32. Id.
33. 472 F. Supp. at 205. Also, see Estrada v. Ahrens, 296 F.2d 690 (5th Cir. 1961) for
the proposition that an alien already inside the country and holding a visa has greater rights
than an alien holding a visa but not yet admitted to the country.
34. See note 21 supra.
35. 349 U.S. 746 (1955). In Accardi, an alien plaintiff in the country without a visa
brought a habeas corpus action attacking the validity of the Board of Immigration Appeals'
denial of his application for suspension of deportation. Plaintiff charged that the Board had
failed to exercise its own discretion, as provided for by the applicable regulations, but had
relied upon a determination of the Attorney General that plaintiff should be deported. The
Supreme Court, in remanding the case to the district court, held that if plaintiff could show
that the Board had not exercised its own discretion pursuant to the applicable regulations,
plaintiff would be entitled to a new hearing before the Board.
36. 472 F. Supp. at 205.
37. See note 60 i1!fra.
38. 472 F. Supp. at 205.
,
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The Applicable Test to J)etermine Whether an Offense for Which an
Alien Has Been Convicted Abroad Is a Misdemeanor or Felony
The court noted that the Fifth Circuit had never addressed the question
of the proper test for determining, for purposes of section 1182(a)(9),39
whether an alien declared guilty of an offense abroad was convicted of a
misdemeanor or a felony.40 The court also observed that there is a split of
authority among the circuits that have decided the issue. Two alternative
tests have been applied by the different circuits to determine whether the
foreign conviction constituted a felony: 1) by determining the maximum
penalty that could be imposed under the federal statute that is equivalent
to the foreign law under which the alien has been convicted; or 2) by looking to the severity of the penalty actually imposed by the foreign state.
The Third Circuit in Giammario v. H urney 41 held that United States law
provides the applicable standard to determine whether an alien convicted
abroad for a crime has been convicted of a felony, or crime of moral turpitude, as distinguished from a misdemeanor. Plaintiff, an alien convicted of
larceny in Australia, challenged a decision by the Board of Immigration
Appeals ordering him deported pursuant to section 1182(a)(9) on the basis
that his conviction constituted a crime of moral turpitude. Plaintiff alleged
he did not commit the offense, and that the offense should not have been
classified as one involving moral turpitude since he had only been fined
twenty-five pounds.
The Third Circuit held that plaintiff's conviction barred him from arguing that he had not committed the offense. According to the court, to hold
otherwise would entail the court's retrying the foreign conviction-a procedure the court refused to perform. In addition, the court ruled that the
sentence or fine actually imposed abroad was immaterial. The court disagreed with the Board of Immigration Appeals' holding that the law of the
country where the alien was convicted determined the classification of the
offense.42 To look to diverse systems of foreign law to resolve the question
would, in the court's opinion, result in divergent and anomalous determinations. Therefore, the court held that an alien's crime must be classified
according to the maximum penalty which he could have received under
39. The court noted that South African common law makes no distinction between misdemeanors and felonies. Id at 207. According to the opinion of various South African
jurists, however, Knoetze's crime was not of a serious nature in light of the light fine imposed, since traffic fines were often larger. The jurists stated that Knoetze's conviction
should have been equated to a misdemeanor under United States law. Id at 208. The
applicable classifYing statute, 8 U.S.C. § 1 (1976), simply classifies crimes by the severity of
possible punishment; it does not purport to provide a standard for classifYing crimes under
foreign law. For the text of 8 U.S.C. § I, see note 2 supra.
40. Id at 211. It should be noted that the court incorrectly assumes that all felonies
constitute crimes of moral turpitude and all misdemeanors do not. For further discussion of
this error by the court, see notes 81-87 infra and accompanying text.
41. 311 F.2d 285 (3rd Cir. 1962).
42. Id at 286.
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the equivalent federal statute rather than by the penalty he had actually
received pursuant to his foreign conviction.43 Since under United States
law larceny is punishable by one to ten years imprisonment,44 plaintiff had
been convicted of a felony according to the United States statute that classifies crimes.45 The court therefore affirmed plaintUfs deportation.
In Soetarto v. Immigration and Naturalization Service ,46 the Seventh Circuit Court of Appeals expressly adopted the Giammario test. Plaintiff, a
citizen of Indonesia whose nonimmigrant visa had expired, was ordered
deported by the INS on the ground that she had been convicted of theft in
the Netherlands. The INS contended plaintiff was deportable since theft
constituted a crime of moral turpitude under section 1182(a)(9). The
Board of Immigration Appeals affirmed the deportation order.
In challenging the decision, plaintiff argued the Board erred in failing to
consider the circumstances surrounding the theft and the lenient punishment imposed. Plaintiff also contended she was exempt from section
1182(a:)(9) because she had been convicted of a petty offense. The court
found the Board had no statutory duty to consider the circumstances surrounding plaintUfs conviction. Furthermore, the court cited Giammario
for the proposition that its review of the Board's decision did not encompass a de novo retrial of the foreign conviction. Explicitly adopting the
Giammario test, the court affirmed the deportation order since under the
applicable federal statute theft was punishable by a prison term exceeding
one year,47 and therefore constituted a felony or crime of moral turpitude.
Judge Rives, in a concurring opinion,48 agreed that the plaintUfs foreign
conviction undoubtedly involved some degree of moral turpitude. The leniency of the sentence actually imposed by the foreign court, however,
troubled Judge Rives from an equitable standpoint. To deport plaintiff
without any inquiry into the circumstances of the conviction or the rehabilitation plaintiff might have undergone created some question as to the
fairness of the decision to convict. Judge Rives concurred with the majority, however, because he did not consider it the proper role of the court to
conduct such an inquiry; the ultimate responsibility for providing this procedure belonged to Congress.
43. The court in Giammario cited Barde v. United States, 224 F.2d 959 (6th Cir. 1955),
as establishing the rule that whether the offense is a misdemeanor or felony is determined by
the maximum punishment provided by the applicable federal statute. 311 F.2d at 287.
44. Since larceny constitutes a common law offense and is not therefore incorporated
into Title 18 of the United States Code, the court looked to the District of Columbia Code to
determine congressional intent with regard to the maximum penalty for a conviction under
this offense. Id at 287.
45. For the text of 18 U.S.C. § I (1976), see note 2 supra. Section I provides that any
offense punishable by imprisonment exceeding one year is a felony.
46. 516 F.2d 778 (7th Cir. 1975).
47. Id at 780-81.
48. Id at 781.
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The Ninth Circuit, in Patel v. Immigration and Naturalization Service ,49
implicitly rejected the Giammario test. The court held that even though
the standard for classifying a crime must be United States federal law
rather than foreign law, the offense should be classified according to the
sentence actually received abroad instead of the maximum penalty receivable under the equivalent federal statute. Plaintiff Patel, an Indian national who had overstayed his student visa, was denied the privilege of
voluntary departure by the INS on the ground that he had been convicted
in California50 of receiving stolen property, a crime of moral turpitude.
Although the California state court sentenced plaintiff to ten years imprisonment, it suspended execution of the sentence and placed him on probation for three years in return for his consent to confinement for six months.
In appealing the deportation order, Patel argued that his offense was a
petty offense or misdemeanor under section 1182(a)(9) because his actual
punishment was only imprisonment for six months.
The Patel court followed Giammario to the extent it held that United
States law, rather than foreign law, provides the appropriate standard for
classifying a crime, since such a rule avoids anomalous determinations.
The court, however, strictly construed the language of section I I 82(a) (9)"by reason ofthe punishment actually imposed"51-to disapprove that part
of the Giammario test requiring the crime to be classified as a misdemeanor or felony according to the maximum possible punishment receivable under the corresponding United States law. Instead, the court held
that the sentence actually received must provide the basis for classification.
Accordingly, the court rejected Patel's argument that his "actual punishment" was only six months and looked to his actual sentence of ten years
confinement. The court considered the sentence received52 as the critical
determinant, not confinement in fact or probation, which the court acknowledged as merely an act of leniency. It therefore affirmed plaintiffs
deportation.
The Knoetze court declined to adopt either the Giammario or Patel test
in determining Knoetze's deportability.53 In dicta, however, the court observed that !I it were to decide which test to apply it would not accept the
rule in Giammario, which looks to the maximum possible penalty that
49. 542 F.2d 796 (9th Cir. 1976).
50. For the purposes of § 1182(a)(9) the court considered state law as analogous to the
law of a foreign state. This approach is justifiable as the states, similar to foreign nations,
diverge considerably in their classification of crimes and therefore the danger, as discussed
by the Giammario court, of anomalous determinations is likewise present. See id at 798.
51. See note 2 supra.
52. Apparently the Patel court would have decided the case differently if the state court
had left plaintiff unsentenced and then placed him on probation rather than sentencing him
first and thereafter placing him on probation. See 542 F.2d at 798-99.
53. The court decided to confine its holding solely to the issue of whether impermissible
political interference had rendered the Secretary of State's decision an abuse of discretion.
See 472 F. Supp. at 211-12.
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could have been imposed under an equivalent United States federal statute. 54 In particular, the court cited the concurring opinion of Judge Rives
in Soetarto to suggest that the Giammario test has the potential for exacting the unjust hardship on aliens of deportation without any inquiry into
the circumstances surrounding the crime or any subsequent rehabilitation.
In effect, the court did not construe section 1182(a)(9) as evidencing any
congressional purpose to require the courts to ignore the equities in a given
case and rigidly apply a harsh rule favoring deportation. 55 Therefore, the
court found the Patel test the better of the two approaches.
The court stated two further reasons for favoring the Patel test. First,
Patel was a more recent case than Giammario. Second, unlike Giammario
and Soetarto, in which the crime of larceny had an equivalent under a
United States statute, South African law on obstruction of justice was not
easily correlated with an equivalent federal statute.56 Although the court
recognized that Patel was arguably inapposite because the standard of "actual punishment" was not expressly incorporated in the Immigration Act's
petty offense section, with regard to visa revocation the court found this
argument unconvincing.57
Though the court found the Giammario test inferior to the Patel approach, it declined to adopt either test to judge the legal sufficiency of the
Secretary of State's revocation of Knoetze's visa. According to the court,
to have done so would have provided Knoetze with "two appellate bites at
the same apple.,,58 The court held that the Secretary is simply required to
follow a "re~sonable legal test" in making visa revocation decisions, and
either the Giammario or the Patel approach would be reasonable. How54. Id. at 211.
55. See id. at 210. Furthermore the court cited Lennon v. Immigration & Naturalization Service, 527 F.2d 187 (2d Cir. 1975), as support for the observation that Congress is
presumed to expect the courts to provide for equitable considerations "rather than reflexively apply rigid tests." Id. at 211.
56. The court stated that Knoetze's South African conviction was not easily translatable
into United States law because Title 18 of the United States Code has 11 sections pertaining
to obstruction of justice-five of which correspond to misdemeanors and six to felonies.
Notwithstanding the court's ambivalance on this point, 18 U.S.C. § 1503 (1976) appears to
provide the closest equivalent to Knoetze's South African conviction. It reads, in pertinent
part:
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness ... or corruptly or by threats or force, or by any threatening letter or communication,
influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede,
the due administration ofjustice, shall be fined not more than $5,000 or imprisoned
not more than five years, or both.
Under the Giammario test, since the maximum possible sentence pursuant to § 1503
would constitute a felony under 18 U.S.C. § 1, Knoetze would clearly be deportable as an
alien convicted of a crime of moral turpitude. A different result could be reached under
Patel, however, as Knoetze's "actual punishment" was only a $175 fine.
57. 472 F. Supp. at 211.
58. Id. at 212.
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ever, the court found that whether the Secretary used a reasonable Tegal
test was not determinative of the outcome of the case; rather, that question
merely constituted one factor to be considered in determining the broader
question of whether Knoetze's visa revocation involved impermissible political interference. 59
.
C.
The Applicable Test to .Determine Impermissible Political Inteiference
Knoetze charged that the Secretary of State, in making the determination to revoke his visa, had been subjected to impermissible political interference. Noting the sparsity of law dealing with this precise question, the
court relied upon dictum in Lennon v. Immigration & Naturalization Service .60
In Lennon, plaintiff John Lennon, a British citizen known internationally as a rock musician, contested an INS deportation order issued upon
the expiration of his visa. Plaintiff had earlier filed for an immigrant visa,
on the basis of his artistic standing, which would allow him to apply for
permanent residence in the United States. The INS did not contest Lennon's artistic standing but based its deportation order on the ground that
he was an excludable alien under section 212(a)(23) of the Immigration
and Nationality Act61 because of a drug possession conviction in Great
Britain. Plaintiff sought to enjoin his deportation by contending the INS
had decided to deport him because of his association with political radicals
and the fear that his participation in demonstrations would prove embarrassing to the United States administration.62
The Lennon court reversed the INS deportation order on the ground
that the British law under which Lennon was convicted did not constitute
a law prohibiting "illicit possession" of marijuana within the meaning of
the Immigration and Nationality Act,63 a holding based on a narrow issue
of statutory construction. The court found that the British law created a
type of absolute liability because it required no scienter, or guilty knowledge, on the part of the person charged with the offense. However, the
term "illicit," as used in the Immigration Act, was interpreted by the court
to incorporate the traditional common law requirement of mens rea or
guilty knowledge. According to the court's rationale, since the British law
lacked this essential element, Lennon's possession could not have been
considered illicit under the Immigration Act. The court concluded that
this result was supportable because Congress could not be presumed to
have intended that the harsh consequences of deportation be imposed
59. Id.
60. 527 F.2d 187 (2d Cir. 1975). See also Note, Immigration Law and Procedure, 11
TEx. INT'L L.J. 345 (1976).
61. 8 U.S.C. § 1182(a)(23) (1970) provided for the exclusion of any alien convicted of
any law relating to the illicit possession of marijuana.
62. 527 F.2d at 190.
63. Id. at 188.
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upon an alien convicted under a foreign law which considered guilty
knowledge immaterial.64 In dictum, the court addressed Lennon's charge
that he had been singled out by the INS for selective deportation solely
because of his political activities. The court stated that "[t]he courts will
not condone selective deportation based upon secret political grounds.,,65
The court, however, declined to examine the merits of Lennon's selective
deportation charge because the point had been rendered moot by the
court's reversal on the statutory construction ground and because, in the
court's opinion, the facts had not been sufficiently developed for appellate
review.
Although the Knoetze court relied upon the above-mentioned dictum in
Lennon as precedent for considering the issue of impermissible political
interference, Lennon provided the Knoetze court little guidance in determining what facts a plaintiff must establish to support such a charge.66
The court noted that the first amendment clearly protects the right of citizens to have access to the executive branch of government to voice their
displeasure with governmental actions.67 In addition, State Department
witnesses adamantly denied the White House had placed any political
pressure on the Department. Nevertheless, the court observed that political pressure need not be overt to be effective. That the State Department
had received a telephone call from Hamilton Jordan's office-the office of
the man known to be closest to the President-was considered by the court
to be "hardly innocuOUS.,,68 Furthermore, in light of the crucial role
played by the black vote in the President's election in 1976, the court stated
that the State Department's meeting with and reception of telephone calls
from two of the nation's most prominent black leaders raised "at least an
inference of political interference.,,69
To determine the extent of the alleged political interference, the court
examined a number of factors. The court considered it significant that in
February of 1978, when Knoetze first received a temporary visa, the State
Department was aware of the visa issuance but had no objection at that
time. The court made a number of other observations: the State Department took action on the SWAPO messages with uncharacteristic speed; the
White House arranged the meeting between prominent black leaders and
State Department officials on short notice; the matters discussed at the
meeting were not those ultimately relied on by the Secretary as the basis
for revoking Knoetze's visa; the revocation ensued less than a week after
the visa was issued; evidence in the possession of the State Department
favorable to Knoetze was ignored by the Department; and the State De64. Id at 194.
65. Id at 195.
66. See 472 F. Supp. at 212.
67. Id.
68. Id at 213.
69. Id
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partment ignored its own regulations by failing to provide notice of the
visa revocation to Knoetze. From these facts, the court found the claim of
a State Department official that "Knoetze's case was handled exactly the
same as if he were from any nation other than South Africa," not only
lacked credibility but was "laughable."70
To determine whether the showing of impermissible political interference necessary to invalidate the Secretary of State's decision had been
made, the court examined Center on Corporate Responsibility Inc. v.
Shultz.71 In Center on Corporate Responsibility, plaintiff alleged the IRS
had singled it out for selective treatment for political reasons and as a result of improper White House influence. The White House refused to
comply with the court's discovery orders. The court found that a statement
by special counsel to the President that the White House was claiming
executive privilege was alone inadequate to initiate a formal claim of the
privilege. In considering the charges raised by the plaintiff, the court was
concerned not only with the possible occurrence of direct political intervention, but with the "creation of a political atmosphere" produced by the
White House and the IRS which may have influenced the objectivity of
those ruling on plaintiffs case.72 The court stated that political influence
should be outside the law and that a "showing of political influence renders the Service's ruling null and void."73 Considering the evidence available, the discovery problems, and the improper claim of executive
privilege, the court held that the plaintiff had established its claim of political interference.
The Knoetze court did not interpret either Lennon or Center on Corporate Responsibility as establishing the proposition that any showing of political interference would render the Secretary's revocation of Knoetze's
visa invalid?4 Indeed, the court recognized it would be naive not to presume that some degree of political interference is inherent, and may even
be necessary, in a partisan political system. Accordingly, the court found
that the appropriate inquiry in deciding whether the political interference
is impermissible, is to determine whether the pressure exerted upon the
Secretary, if any, resulted in the abuse of his discretion and authority
granted under section 1201(i). Restating the inquiry, the court declared
the crucial question to be: "Did the Department of State give in to the
pressure and make an untenable decision?,,75
The court found it could not conclude that the Secretary's decision to
revoke Knoetze's visa was untenable. Rather the court seemed to find that
the Secretary applied a reasonable legal test to the facts before him. Two
70.
71.
72.
73.
74.
75.
Id
368 F. Supp. 863 (D.D.C. 1973).
Id at 871.
Id
472 F. Supp. at 214.
Id
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rationales were presented by the court to support its conclusion: I) the
Secretary could have relied upon the Giammario test, even though the
court considered it less preferable than the Patel test, to equate Knoetze's
South African conviction to a felony under the United States statute on
obstruction of justice,76 thereby finding that he was an excludable alien
under section 1182;77 and 2) a court should be reluctant to intrude into the
political sphere of the executive branch "absent very compelling evidence
of impermissible political interference.'>78 Accordingly, the court upheld
the Secretary's revocation of Knoetze's visa and denied Knoetze's petition
for a permanent injunction.
III.
CONCLUSION
The Knoetze court clearly stipulated that even though the Secretary of
State has statutory power to revoke an alien's visa "at any time, in his
discretion," his decision is subject to judicial review under the APA. The
district court relied on Citizens To Preserve Overton Park as the basis for
the proposition that an exception to judicial review under the APA is applicable only when there is no law to apply. The court found that since the
Immigration and Nationality Act provided an applicable body of law,
which the Secretary could not ignore, judicial review was therefore appropriate. In addition, the court held that the Secretary's failure to follow his
own departmental regulations, requiring that notice be given to Knoetze of
his decision, strengthened the case for judicial review. 79 Finally, the court
held that where the plaintiff raises a cognizable claim of impermissible
political interference, judicial review is required.
The mere granting of judicial review, however, does not suffice to protect the rights of aliens subject to deportation. The standard of review to
be applied to determine the validity of the deportation is of paramount
importance. The Knoetze court failed to delineate clearly the appropriate
standard of judicial review to be applied in the case of an alien subject to
76. See note 56 supra.
77. See 472 F. Supp. at 214-15.
78. Id. at 215.
79. There is a sparsity of cases indicating the effect of the Secretary's violation of Department of State regulations by failing to give notice of visa revocation to a nonimmigrant
temporary visitor. The Board of Immigration Appeals has held that the regulations "merely
provide that notice and opportunity to be heard shall be given only if practicable." Matter
of P_ N...... 8 IN 456, 459 (BIA 1959). Therefore, in the Board's opinion, the failure of the
Secretary to notify a nonimmigrant alien visa holder ofhis decision to revoke the alien's visa
does not necessarily invalidate the visa revocation. Id. One might contrast similar cases in
which the Supreme Court has held that regulations adopted by the Attorney General to
govern suspension of deportation proceedings have the force and effect of law and may not
be ignored by the Attorney General. United States ex rel Accardi v. Shaughnessy, 347 U.S.
260 (1954). See Shaughnessy v. United States ex rel Accardi, 349 U.S. 280 (1955); Shaughnessy v. Pedreiro, 349 U.S. 48 (1955). The Knoelze court recognized that notice need only be
given to the alien if practicable, but at least appeared to place the burden of proof of showing impracticability on the Secretary.
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deportation because of an alleged conviction of a crime involving moral
turpitude.
First, the court refused to adopt either the Giammario or the Patel test
for determining whether Knoetze's conviction constituted a felony or a
misdemeanor, using instead the vague guideline that the Secretary need
only use a "reasonable legal test" in making visa revocation decisions.
Second, whether Knoetze's crime constituted a felony or a misdemeanor is
not even the correct inquiry. The court incorrectly assumed that a felony
equates to a "crime involving moral turpitude" subjecting an alien to visa
revocation under section 1182(a)(9) of the Immigration and Nationality
Act. 80 Prior cases interpreting the meaning of "crime involving moral turpitude" for purposes of the Act have held that not all felonies are crimes
involving moral turpitude. 81 In addition, crimes involving moral turpitude
need not be feloniesP
The phrase "moral turpitude" has never been conclusively defined and
appears to be a broad generalization conducive to flexibility of interpretation. 83 Immigration law authorities have stated that in some areas "the
boundaries are sharp and clear; in others the line of demarcation is indistinct and must be fixed on a case by case exploration.,,84 The courts most
often define a crime of moral turpitude using terms such as the following:
80. For the text of 8 U.S.C. § 1182(a)(9) (1976), see note 2 supra.
81. In United States ex rel Mongiovi v. Karnuth, 30 F.2d 825 (W.D.N.Y. 1929), the
court held that a felony conviction of second degree manslaughter, for which the alien had
received a sentence of not less than six years and six months and not more than 15 years, did
not constitute a crime of moral turpitude since the offense was merely the result of natural
passion "unaccompanied by a vicious motive or corrupt mind." Id. at 826.
82. In Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), affd, 347 U.S. 637 (1953), the
court found that the "gravity of the punishment imposed upon the alien is not determinative
of the question of whether the crime is one involving moral turpitude." Id. at 400. In Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929), the court held the alien was subject to deportation because of a conviction of a crime involving moral turpitude although the crime was
defined as a misdemeanor. The court stated "that an act that was at common law intrinsically and morally wrong, malum in se, does not become any more or any less so by reason of
the fact that the Legislature may see fit to call it a felony, if the thing stolen is of a value
exceeding a given amount, or to call it a misdemeanor, if the thing stolen is of less value."
Id. at 83. See Legomsky, The Alien Criminal Defendant: Sentencing Considerations, 15 SAN
DIEGO L. REV. 105 (1977). This article recognizes that not all felonies are crimes involving
moral turpitude, and not all crimes of moral turpitude are felonies for purposes of the immigration laws. Id. at Ill.
83. In Jordan v. De George, 341 U.S. 223 (1951), the Supreme Court indicated that the
phrase moral turpitude, as used in the Immigration Act, derives from other sources and has
"deep roots in the law." Id. at 227. In determining that fraud involved moral turpitude
within the meaning of the Immigration Act, the Court considered state and federal judicial
opinions. Id. The Court found that even though doubt may exist as to the application of the
standard to certain cases, the phrase moral turpitude does convey a sufficiently definite
warning "as to the proscribed conduct when measured by common understanding and practices," and is therefore not unconstitutionally vague. Id. at 230-32. See Chu v. Cornell, 247
F.2d 929 (9th Cir. 1957), cert. denied, 355 U.S. 892 (1957).
84. C. GORDON & H. ROSENFIELD, IMMIGRATION LAW AND PROCEDURE § 4.13 (1959).
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"an act of baseness, vileness or depravity in the private and social duties
which a man owes to his fellow men, or to society in general, contrary to
the accepted and customary rules of right and duty between man and
man.,,85 The question is whether obstruction of justice falls into a category
where the "line of demarcation" is unclear. If obstruction of justice does
not clearly constitute a crime of moral turpitude,86 the correct analysis of
the problem would require a determination not of whether Knoetze's conviction was a felony or a misdemeanor but whether his attempt to dissuade
the parents of the youth assaulted by his fellow police officer from pressing
charges constituted an "act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man. . . ."87 It is
85. Wing v. United States, 46 F.2d 755, 756 (7th Cir. 1931); see United States ex rel
Mongiovi v. Kamuth, 30 F.2d 825, 825 (W.D.N.Y. 1929); Tillinghast v. Edmead, 31 F.2d 81,
84 (1st Cir. 1929); Tutrone v. Shaughnessy, 160 F. Supp. 433 (S.D.N.Y. 1958); Forbes v.
Brownell, 149 F. Supp. 848 (D.D.C. 1957). For a general discussion of the term moral turpitude, see Note, Crimes Involving Moral Turpitude, 43 HARV. L. REV. 117 (1929). For an
exemplary listing of some crimes which have been held to constitute moral turpitude, see
Hom & Waterman, Aliens Charged with or Convicted of a Crime: The Recommendation
Against Deportation, 8-9 COLUM. HUMAN RIGHTS L. REV. 125 (1976). The following crimes
have been held to involve moral turpitude: "murder, voluntary manslaughter, kidnapping,
mayhem, assault with intent to kill or rob, rape (including statutory rape), indecent assault,
bigamy, prostitution, sodomy, fraud, arson, blackmail, forgery, robbery, embezzlement, larceny, burglary, extortion, and obtaining property by false pretenses." Id. at 126 n.2. The
following crimes have been held not to involve moral turpitude: "involuntary manslaughter,
simple assault, attempted suicide, carrying a concealed weapon, breaking and entering, unlawful entry, possessing stolen goods (without knowledge), possessing burglar tools, libel,
mailing obscene letters, riot, bastardy, and vagrancy." Id. Another compilation appears at
C. GORDON & H. ROSENFIELD, supra note 84, § 4.14 (Supp. 1975).
86. There is no case authority finding that obstruction of justice constitutes a crime of
moral turpitude.
87. This does not suggest that whether the conviction would correspond to a felony or
misdemeanor is not relevant to whether the offense involves moral turpitude, but merely
that this fact is not determinative of the issue. If the court had used the proper inquiry it
might have even been easier for it to find that the Secretary had used a "reasonable legal
test" in his revocation decision: rather than finding that the Secretary might have used the
less preferred Giammario test in his decision, the court could simply find that the Secretary
concluded that Knoetze's crime, whatever its classification, involved moral turpitude. Of
course, in addition to reasonability, the court should determine whether the Secretary's conclusion is correct based on case authority.
To determine whether a crime involved moral turpitude the court need not retry the foreign conviction de novo-a requirement which would be impractical in most circumstances.
For instance, the Knoetze court might have relied on the testimony of several South African
legal experts that was available to the State Department before the Secretary made his decision to revoke Knoetze's visa. All the experts agreed that although there was no distinction
between felonies and misdemeanors in South African law, Knoetze's conviction, as distinguished from more serious offenses such as attempting to influence a judge or tampering
with a witness, came in at the "lower end" of seriousness. 472 F. Supp. at 207. The experts
based their opinion on the fact that the judge could have imposed a five year sentence on
Knoetze but found extenuating circumstances and only imposed a nominal fine of an
amount less than could have been charged for certain traffic fines. Id. at 208.
The Knoetze court did not even go so far as the Lennon court and inquire whether
the South African law under which Knoetze was convicted required guilty knowledge or
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submitted that the court's analysis will only confuse future efforts by the
State Department to apply a "reasonable legal test" to visa revocation proceedings under section 1182(a)(9).
Furthermore, the court's standard for determining whether impermissible political interference influenced the Secretary's revocation decision was
extremely narrow. The court stipulated that it would not intrude into "political territory that is the domain of the Executive Branch, absent very
compelling evidence of impermissible political interference.,,88 Using this
standard, the court failed to find impermissible political influence on the
facts of the Knoetze case, even though there was evidence that the State
Department's arguments in court supporting its revocation decision were
not made at the time of the decision. The court conveniently refused to
consider the question of whether tardily obtained supporting information
would redeem a decision that otherwise resulted from impermissible political interference. 89 In light of the breadth of the court's political influence
test and its application to the case at hand, the inquiry might be restated:
scienter on the part of Knoetze so as to constitute moral turpitude. The Lennon court found
such an inquiry to be necessary under the rationale that Congress could not be presumed to
intend that the harsh consequences of deportation be imposed upon an alien convicted
under a foreign law which considered guilty knowledge immaterial. 527 F.2d at 190. Although Knoetze, as distinguished from Lennon, was a policeman and therefore may have
been presumed to know the law, the court nevertheless arguably should have inquired into
this aspect of the case before visiting the harsh sanction of deportation upon Knoetze.
88. 472 F. Supp. at 215.
89. Id.
A UTHOR'S NOTE: By the time of publication, the district court's decision had been
affirmed by the Fifth Circuit Court of Appeals in Knoetze v. United States, 634 F.2d 207
(5th Cir. 1981). The court of appeals first held, as a matter offirst impression, that the broad
language of 8 U.S.C. § 1201(i) (1976) allows the Secretary of State to revoke an alien's visa
at any time, including after the alien has entered the country. Knoetze had argued that
Congress intended that only the Attorney General would have responsibility over the removal of aliens after their arrival in the United States through his deportation authority.
634 F.2d at 209-210.
Next, the court of appeals held that, under the limited standard of review provided by
§ 706(2) of the APA, 5 U.S.C. § 706(2) (1976), a court can enjoin the Secretary of State's
revocation of Knoetze's visa only if the Secretary had ''violated the law or committed a clear
error of judgment." ld. at 209. The court found that the Secretary had lawfully acted
within his discretion since he revoked Knoetze's visa because he "reasonably believed"
Knoetze's foreign conviction corresponded to a felony involving moral turpitude under
United States law and not because he had been subjected to impermissible political interference. ld. at 210-11. The court noted that the method used by the Secretary to determine
the degree of culpability of foreign criminal acts under United States law had received judicial approval under both Soetarto and Giammario and, therefore, did not appear to be arbitrary or capricious. ld. at 211. The court concluded: "Even if experts differ as to whether
Knoetze's foreign conviction corresponds to a felony involving moral turpitude, and even if
hindsight shows that the Secretary has erred, his methods and conclusions appear entirely
reasonable." ld.
Unlike the district court, the court of appeals recognized that an alien's crime must involve moral turpitude to render him excludable under 8 U.S.C. § 1182(a) (1976). The court
of appeals found that the Secretary compared Knoetze's obstruction of justice crime to 18
U.S.C. § 1503 (1976), a crime involving fraud, which element has consistently been regarded
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Are there any grounds whatsoever on which the Secretary of State might
have made a tenable decision, even if such grounds were not the actual
basis for his decision?
Joe Tucker
EXPATRIATION-AN EXPATRIATING ACT AND INTENT TO RELINQUISH
CITIZENSHIP MUST BE PROVED BY A PREPONDERANCE OF THE EVIDENCE
FOR AN INDIVIDUAL TO LOSE HIS CITIZENSHIP. Vance v. Terrazas, 444
U.S. 252 (1980).
Laurence J. Terrazas, the son of a Mexican citizen, was born in the
United States in 1947. Under the fourteenth amendment l and the laws of
Mexico he acquired, at birth, both United States and Mexican citizenship.
In 1970 Terrazas, while a student in Monterrey, Mexico, was told by a
college official that a Certificate of Mexican Nationality, as evidence of his
by American Courts as transforming any crime into one involving moral turpitude. 634
F.2d at 211, quoting Jordan v. DeGeorge, 341 U.S. 223, 229 (1951).
The court of appeals' decision also differed from the district court's opinion in that the
former considered Knoetze's arguments under the fifth amendment. The court found that
fifth amendment protection extends to all persons, including aliens, within United States
borders, but it attaches only when the government seeks to deny a liberty or property interest. Id. Knoetze argued that he had such a protected interest in the retention of his visa.
The court rejected this argument holding that, since the Secretary's revocation of an alien's
entry visa does not automatically lead to the alien's deportation, no constitutionally protected liberty or property interest of the alien is jeopardized. Id. at 212. In support of its
conclusion, the court proffered the rationale that Congress has entrusted deportation to the
Attorney General, and should the Attorney General seek to deport the alien, then extensive
procedural safeguards are available to the alien at such time. Id.
The court also held that the manner in which the Secretary revoked Knoetze's visa violated no statutory procedural requirements because 8 U.S.C. § 1201(i) mandated no procedural requirements to be followed by the Secretary in visa revocation. Id. at 210. The effect
of the Secretary's failure to give Knoetze notice of the visa revocation "if practicable," as
provided pursuant to 22. C.F.R. 41.l34(b), was not considered by the court.
The court of appeals' decision fails to recognize that the Attorney General has no authority to order the Secretary of State to reinstate a visa even should such visa revocation be
found improper. Accordingly, if at the deportation proceeding the alien is subsequently
found not to have committed a crime of moral turpitude, it is difficult to see how the alien
has not suffered because of the visa revocation. Furthermore, deportation will probably be
commenced by the government against the alien as the natural consequence of the Secretary's revocation of the alien's visa. It is therefore strongly suggested that the only practical
protection for an alien whose visa has been wrongfully revoked by the Secretary of State
would be the enactment of more stringent procedural requirements governing the Secretary's visa revocation power.
1. "All persons born. . . in the United States, and subject to the jurisdiction thereof,
are citizens of the United States. . . ." U.S. CONST. amend. XIV, § 1.
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