The Honorable Jean C. Hamilton, Chief 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, Hoang

Minh Doan, and Nhi Yen Doan appeal from the District Court’s order dismissing their 1

complaint for lack of jurisdiction. We affirm.
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Nguyen 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 that in 1992 she had submitted false documents, “attempted to gain an

immigration benefit as the adoptive mother of an Amerasian,” and attempted to

smuggle her brother by claiming he was her son.

In 1994, Doan became a naturalized United States citizen. In 1995, he

petitioned the INS on behalf of his wife and children to accord them immediate-relative

status for issuance of immigrant visas. In 1996, Nguyen filed with the INS District

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 “for

humanitarian purposes, to assure family unity, or when it is otherwise in the public

interest”). While the refugee-waiver application was pending, the children were

granted immigrant visas, but Nguyen was denied a visa based upon the earlier finding

of misrepresentation and attempted alien smuggling of her brother. In 1997, INS

District Director Olen Martin, located in Bangkok, Thailand, refused Nguyen’s

refugee-waiver application, citing the provision of 8 C.F.R. § 207.1(d) that an

“applicant for refugee status who qualifies as an immediate relative . . . shall not be

processed as a refugee unless it is in the public interest,” and stating that, because

Nguyen qualified as an immediate relative, she could not be considered for refugee

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
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plaintiffs’ claims with prejudice. Plaintiffs now appeal, asserting that the District Court

erroneously found Director 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 State

Department consular official, we believe that the District Court may have

mischaracterized Director Martin’s decision under Section 207.1(d) as a consular

official’s decision. We conclude, however, that Director Martin is the functional

equivalent of a consular official, because he is an Executive Branch official, located

outside the United States, deciding questions of admissibility brought before him by

aliens who are also located outside the United States. Administrative decisions

excluding aliens are not subject to judicial review unless there is a clear grant of

authority by statute. As there is no such statutory authority here, we conclude that

Director Martin’s decision is not subject to judicial review. See Kleindienst v. Mandel,

408 U.S. 753, 762 (1972) (“unadmitted and nonresident alien” has no constitutional

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; no

judicial review under Administrative Procedure Act), cert. denied, 502 U.S. 1122

(1992); 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.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.