The Honorable Jean C. Hamilton, Chi ef Judge, United States District Court for 1 the Eastern District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1731EM

_____________ Hung Chi Doan; Lanh Thi Nguyen; * Huy Duc Doan; Hoang Minh * Doan; Nhi Yen Doan, * * Appellants, * * On Appeal from the United States v. * District Court for the * Eastern District of Missouri. Immigration and Naturalization * Service, * * Appellee. *

___________ Submitted: October 16, 1998 Filed: November 24, 1998

___________ Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ RICHARD S. ARNOLD, Circuit Judge. Lanh Thi Nguyen (Nguyen), Hung Chi Doan (Doan), Huy Duc Doan, Hoan g Minh Doan, and Nhi Yen Doan appeal from the District Court ’s order dismissing their 1 complaint for lack of jurisdiction. We affirm.-2-

Nguye n is a citizen and resident of the Republic of Vietnam. Her husband , Doan, is a naturalized citizen of the United States, and their children--the other three plaintiffs--are permanent residents of the United States. Doan entered the United States
as a refugee in 1989, but in 1993 the Immigration and Naturalization Service (INS ) denied refugee status to Nguyen under 8 U.S.C. § 1182(a)(6)(C)(i) and (a)(6)(E)(i) on the basis of a “finding of misrepresentation and alien smuggling. ” Specifically, the INS found t hat in 1992 she had submitted false documents, “attempted to gain a n immigra tionbenefit as the adoptive mother of an Amerasian,” and attempted t o smuggle her brother by claiming he was her son.

In 1994, Do an became a naturalized United States citizen. In 1995, h e petitioned the INS on behalf of his wife and children to acco rd them immediate-relative status for i ssuance of immigrant visas. In 1996, Nguyen filed with the INS Distric t Director an “Application By Refugee For Waiver of Grounds Of Excludability” under 8 U.S.C . § 1157(c)(3) (Attorney General may waive earlier misconduct “fo r humanitarian purposes, to assure family unity, or when it is otherwise in the publi c inte rest”). While the refugee-waiver application was pending, the children wer e granted immigrant v isas, but Nguyen was denied a visa based upon the earlier finding of m isrepresentation and attempted alien smuggling of her brother. In 1997, IN S Di strict Director Olen Martin, located in Bangkok, Thailand, refused Nguyen’ s refuge e-waiver

application, citing the provision of 8 C.F.R. § 207.1(d) that a n “a pplicant

for refugee status who qualifies as an immediate relative . . . shall not b e processed a s a refugee unless it is in the public interest,” and stating that, becaus e Nguyen qualified as an immediate relative, she could not be considered for refuge e classification.
Plaintiffs then filed the instant action with the District Court, seeking review of Director Martin’s decision. The INS filed a motion to dismiss. Noting that courts do not have jurisdiction to review consular officials’ determinations, the District Court concluded it lacked jurisdiction to review Director Martin’s decision, and dismissed-3-

plaintiffs’ claims with prejudice. Plaintiffs now appeal, assert ing that the District Court erroneously found Dire ctor Martin’s decision was a nonreviewable consular official’s decision, and that Director Martin failed “to consider whether [Nguyen] is eligible for refugee classification.”

Because the position of INS District Director is distinct from that of a Stat e Department consular official, we believe that the District Court may hav e mis characterizedDirector Martin’s decision under Section 207.1(d) as a consular official’s decision. We conclude, however, that Director Martin is the functiona l equivalent of a consular official, because he is an Executive Branch official, locate d outside t he United States, deciding questions of admissibility brought before him b y aliens who are also located outside the United States. Administrative decision s excluding aliens are not subject to judicial review unless there is a clear grant o f authority by statute. As there is no such statutory authority here, we conclude tha t Director Martin’s decision is not subject to judicial review. See K leindienst v. Mandel , 408 U.S. 753, 762 (1972) (“unadmitted and nonresident alien” has no constitutiona l right of entry into United States as nonimmigrant or otherwise); Brownell v. Tom We Shung , 352 U.S. 180, 184 & n.3 (1956); Haitian Refugee Ctr., Inc. v. Baker , 953 F.2d 1498, 1505-07 (11th Cir.) (per curiam) (§ 1157 makes no provision for judicial review, demonstrating Congress’s intent not to extend judicial review to aliens abroad; n o judici al review under Administrative Procedure Act), cert. denied , 502 U.S. 112 2 (1 992); cf. Patel v. Reno , 134 F.3d 929, 931-32 (9th Cir. 1998) (consular official’ s discretionary decision to grant or deny visa petition is generally not subject to judicial review). Accordingly, we affirm.-4-

A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.