Presidential Power to Expel Diplomatic Personnel

from the United States

T h e President has inherent constitutional p ow er to declare foreign diplom atic personnel 

persona non grata and to expel them forcibly from the U nited States; the exercise o f this 

pow er is consistent w ith international law , including specifically the V ienna C o n v e n ­

tion on D iplom atic R elations.

Inherent in the P resident’s p o w er to recognize foreign countries and their m inisters is 

im plied p o w er o v er the physical prem ises o f diplom atic properties, including p o w er to 

take actions necessary to p ro tect em bassies from dam age, and to deny possession to or 

to eject those not recognized as diplom atic personnel o f the sending state.

A foreign diplom at w h o has been declared persona non grata and o rd ere d to leave the 

co u n try does not lose his diplom atic status, and thus should not be able to assert any 

legal entitlem ent to rem ain in the U nited States under the Im m igration and N ationality 

A ct; nor should such an individual be able to frustrate o r delay execution o f an 

expulsion o rd er by renouncing his diplom atic status. T h e S ecretary o f S tate may 

revoke the visas o f diplom ats d eclared persona non grata to forestall th eir invocation o f 

the IN A as a basis for challenging the P resident’s expulsion ord er.

Federal law enforcem ent officials, p articularly the Secret S ervice, have au th o rity to 

p ro tect Iranian diplom atic p ro p erty against th ird parties, including any persons not 

cu rre n tly recognized by the U nited States as accred ited diplom atic personnel. T he 

President is authorized to call on the full range o f his resources in the E xecutive 

B ranch, including the m ilitary, and also on the resources o f state o r local law en fo rc em ent agencies, to c a rry o u t an expulsion o rd e r in this situation.

T h e D ue P rocess C lause o f the F ifth A m endm ent at m ost requires only a determ ination 

that a diplom at about to be expelled from the U nited States pursuant to the P re sid en t’s 

o rd er is in fact the person o rd ere d to be expelled; an expulsion o rd e r is arguably 

subject to judicial review , on a w rit o f habeas corpus, but only on the lim ited g rounds 

o f m istaken identity.

April 4, 1980

MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY 

GENERAL AND TH E ASSOCIATE ATTORNEY GENERAL

This responds to your joint request for our views regarding the 

authority of the President to expel foreign diplomatic personnel from 

the United States, to maintain control over the premises of Iranian 

diplomatic property in connection with that expulsion, and the legal 

constraints placed on that authority by international and domestic law 

and by our Constitution. For the reasons stated hereafter, we believe 

that the President has the authority to declare a nonresident alien who 

is a member of the staff of a foreign diplomatic or consular post in the 

United States to be persona non grata, forcibly to expel such diplomatic

207
personnel from the United States within a reasonable period of time (as 

set by the President) after being declared persona non grata, and to take 

all steps reasonably designed to secure all Iranian diplomatic properties 

and limit their use to diplomatic activities conducted by a third nation 

acceptable to the President. We conclude that the exercise of this 

power over diplomatic personnel is not constrained by the Immigration 

and Nationality Act of 1952, and that the Constitution requires only 

that a procedure reasonably calculated to insure that personnel actually 

expelled are those previously declared persona non grata be utilized.

We also conclude that prior to their expulsion, diplomatic personnel 

are not entitled as a' matter of law to assert any federal statutory right 

to remain in this country as a means of avoiding their expulsion.1 

Finally, we believe that judicial review of any actions taken by the 

President related to expulsion would be limited to possible inquiry by 

habeas corpus into the question whether a particular person to be 

expelled was in fact previously declared persona non grata.2

I. Presidential Authority Over Diplomatic Personnel and Property

The President’s authority over foreign diplomatic personnel derives 

from his power, under Article II, § 3 of the Constitution, to “receive 

Ambassadors and other Public Ministers.” This provision is the basis of 

the President’s power to grant or withdraw recognition to foreign 

governments and their ministers, a power regarded as textually committed to the Executive alone. See Jones v. United States, 137 U.S. 202, 212 

(1890); Baker v. Carr, 369 U.S. 186, 212-13 (1962).3 The President’s 

power to accept or reject a particular envoy has been beyond serious 

question since President Washington demanded the recall of Citizen 

Genet, the French Minister. In 1855, the Attorney General took the 

position that this right of reception, and therefore rejection, extends to 

“all possible diplomatic agents which any foreign power may accredit

1A separate international legal question would be raised in the event o f a claim o f political asylum 

by one o f the individuals whose departure is ordered. T he United States is a party to the 1967 

Protocol Relating to the Status o f Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A .S. 6577. This 

Protocol obliges us not to expel or return a refugee to a territory w here his life or freedom would be 

threatened on account o f his race, religion, nationality, membership of a particular social group or 

political opinion. T he Protocol defines "refugee" as a person who, ow ing to well-founded fear o f such 

persecution, is outside the country o f his nationality and is unable or, ow ing to such fear, is unwilling 

to avail himself o f the protection of that country.

T here is no exception provided in the Protocol with respect to diplom atic and consular personnel 

and, in practice, such personnel have been accorded the benefits of the Convention.

It w ould seem unlikely that any Iranian diplom atic o r consular personnel w ho remain officials of 

the present governm ent o f Iran, more than one year after its establishment, would have a reasonable 

fear o f persecution by that governm ent. N evertheless, such claims are possible, and the United States 

should have a procedure for assuring that expulsion will not violate our treaty obligations under the 

Refugee Protocol. A possible approach to this problem is described in Part III o f this memorandum.

2 W e note that the analytical basis for the conclusions set forth above and the reasoning set forth 

below is draw n to a great extent from a series of m em oranda from this Office to the A ttorney General 

dating from N ovem ber o f 1979. W e would also note that we use the terms diplom atic personnel and 

diplom atic property herein to include both diplom atic and consular personnel and property; for our 

purposes, legal distinctions am ong these classes are either irrelevant o r specifically noted.

3 See generally 2 B. Schw artz, T he Pow ers o f the President 104-09 (1963).

208
to the United States.” 7 Op. A tt’y Gen. 186, 209 (1855); 5 Moore, 

International Law Digest 15—19 (1906). It is recognized that the power 

to receive Ambassadors is a discretionary one which necessarily includes the right to refuse to receive them, to require their departure, 

and to determine their eligibility under our laws. 4 Moore, International 

Law Digest 473-548 (1906).

The President’s power to receive and expel foreign diplomatic personnel is a power recognized to inhere in all sovereign nations by the 

1961 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 

23 U.S.T. 3227, T.I.A.S. No. 7502. The President’s power over diplomatic property is a concomitant of his power over diplomatic personnel 

to the extent that its exercise relates to his recognition power and his 

power over the conduct of our foreign relations and is likewise recognized by the Vienna Convention. Under Article 22 of the Vienna 

Convention, this country has a duty to take “all appropriate steps to 

protect the premises of the mission against any intrusion or damage and 

to prevent any disturbance of the peace of the mission.” Article 45 of 

the Convention requires the receiving state to “respect and protect the 

premises of the mission, together with its property and archives,” and 

authorizes the sending state to entrust custody of the premises to a third 

state acceptable to the receiving state where the receiving state orders 

the recall of diplomatic personnel.

Because diplomats and consuls who have been ordered to leave the 

United States have always complied, the President’s authority to order 

their departure and to enforce such orders has never been subject to 

judicial challenge. However, individuals have from time to time 

claimed diplomatic status and have asserted a resulting entitlement to 

immunity from judicial process. In these cases the courts have consistently acknowledged that determinations as to whether an individual 

was recognized by the United States as a representative of a foreign 

government were properly within the province of the Executive. Accordingly, the courts have held that certifications by the Department of 

State are conclusive as to the status, privileges, and immunities of 

foreign diplomatic personnel. In re Baiz, 135 U.S. 403 (1890); Carrera v. 

Carrera, 174 F.2d 496, 497 (D.C. Cir. 1949). As discussed below, we 

believe an executive determination that an individual previously recognized as a diplomatic or consular representative had been declared 

persona non grata and was required to depart from the United States 

would be entitled to the same judicial deference under the rationale of 

these decisions. See Adam s v. Vance, 570 F.2d 950 (D.C. Cir. 1978).

II. Legal Constraints on the Exercise of the President’s Authority

We have identified three types of authority which inform and potentially constrain the President’s exercise of his authority to declare persona non grata and to expel foreign diplomatic personnel other than

209
personnel accredited to the United Nations and to regulate the use of 

diplomatic property.4 The first and most directly relevant authority is 

international law, specifically the Vienna Convention on Diplomatic 

Relations. The second is federal statutory law, including the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1101 et seq. The third is 

the Due Process Clause of the Fifth Amendment of the Constitution. 

We will discuss each of these in turn.

A. International Law

1. Diplomatic personnel

Under international law it has long been recognized that every sovereign nation has the right to determine whether it will receive a diplomatic envoy from another nation and whether it will continue to 

receive and conduct official business with an envoy who has been 

accepted.5 This right is reflected in Article 9 of the 1961 Vienna 

Convention on Diplomatic Relations, a codification in most material 

respects of prevailing customary international law on this subject. Article 9 provides that the receiving state may, at any time and without 

having to explain its decision, notify the sending state that any diplomatic officer is persona non grata or that a nondiplomatic staff member 

is no longer “acceptable.” Following this determination, the sending 

state must either recall the person concerned or, “as appropriate,” 

terminate that person’s functions at the mission.6

Once declared persona non grata, foreign diplomatic personnel do not 

automatically lose their diplomatic status or the diplomatic immunities 

to which they are entitled under international law. Under U 2 of Article

9 of the Convention, if the sending state “refuses or fails within a 

reasonable period to carry out its obligations” to recall or terminate the 

services of a diplomat declared persona non grata, “the receiving State 

may refuse to recognize the person concerned as a member of the 

mission.” (Emphasis added.) You have asked us whether this remedy 

spelled out in Article 9, permitting the United States to strip diplomatic 

personnel of their diplomatic status if they have not left this country

* As indicated below, the President’s pow er to com pel the departure o f diplomats accredited to the 

United N ations has been, subsequent to the ratification by the Senate of the Convention on the 

Privileges and Immunities o f the United Nations in 1970, essentially the same as his pow er to expel 

diplom atic personnel accredited to this country. This Office currently has under consideration at the 

request o f the Legal A dviser of the D epartm ent o f State the question w hether diplomats accredited to 

the United Nations enjoy the same immunity from application of paragraphs (27) and (29) of 8 U.S.C. 

§ 1182(a) to their entering this country as diplom atic personnel accredited to the United States possess 

by virtue o f 8 U .S .C §1102.

5E. Denza, D iplom atic Law 40 (1976) [hereafter Denza].

*The records o f the International Law Commission reflect that the termination of functions option 

is intended to apply primarily to persons w ho are nationals of or perm anently resident in the receiving 

state.

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after a reasonable period of time7 subsequent to their being declared 

persona non grata is, in effect, the exclusive remedy of the President to 

enforce Article 9. Stated another way, the question is whether, consistent with the Vienna Convention, the President through his agents may 

forcibly expel foreign diplomatic personnel from the United States 

subsequent to their being declared persona non grata. We believe that, 

consistent with the Vienna Convention, the President may do so.

It has long been customary for the sending states to withdraw diplomats voluntarily when those diplomats have been declared persona non

grata. Thus, as indicated above, in American practice it has apparently 

never been necessary forcibly to expel such a diplomat. Although the 

Vienna Convention is silent on the question of the right of the receiving 

state forcibly to expel a diplomat after declaring him persona non grata,

there is support in both customary practice and in the negotiating 

record of the Convention for the taking of this action by the receiving 

state following that determination. One authority cites the fact that the 

early cases reflecting this practice “are all described as cases of ‘expulsion.’ ” 8 This authority comments further that the practice of requesting recall replaced expulsions “in the more placid political climate of 

the nineteenth century.” 9

We believe that this history suggests why the Vienna Convention 

itself does not specifically spell out the right of a receiving state 

forcibly to expel a diplomat. We would add that H 2 of Article 9, read 

literally, does not purport either to require the receiving state to strip a 

foreign diplomat of his diplomatic status in this situation or suggest that 

remedy is the receiving state’s exclusive remedy to deal with a situation 

in which the sending state has not fulfilled its clear obligation under 

Article 9 to withdraw its diplomat or to itself terminate the person’s 

diplomatic status. Nothing in logic supports the proposition that we 

should assume the right to expel was abandoned as a matter of customary international law even though it was not specifically spelled out in 

the Vienna Convention.10 In this connection, we note that the preamble 

to the Convention affirms “that the rules of customary international law 

should continue to govern questions not expressly regulated by the 

provisions of the present Convention.” The Vienna Convention, by 

remaining silent on the question of expulsion, in no way precludes a 

receiving state from taking this action.

The position of the United States delegation to the United Nations 

Conference which drafted the Convention reflects the understanding of 

the U.S. government that a receiving state may require the departure of

7 The drafting history of A rticle 9 of the Convention indicates that the “reasonableness” o f the 

period following a persona non grata action is largely dependent on the attendant circumstances. These 

circumstances may be such as to w arrant the receiving state’s demand for immediate action.

8 Denza, at 40.

9 Id., at 41.

10 Id., at 135-36.

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a member of the diplomatic mission. In commenting on the question of 

allowing a “reasonable period” in which the sending state must act 

following a persona non grata determination, the delegation stated: “[I]n 

aggravating circumstances, or where national security is involved, 

the receiving State may demand his [the diplomat’s] immediate 

departure. ...” (Emphasis added.)

Further evidence of the United States’ interpretation of customary 

international law and the practice of the government with respect to 

the expulsion of diplomats is found in the testimony of Department of 

State Legal Adviser Leonard Meeker before the Senate Foreign Relations Committee which considered proposed ratification of the Vienna 

Convention in 1965. Referring to the provision of the Convention 

(Article 41) which requires persons enjoying diplomatic privileges and 

immunities to respect the law of the receiving state, the Legal Adviser 

stated: “[I]f the situation becomes serious enough, we would have to in 

certain cases perhaps require the departure of members of the diplomatic missions as we have a right to require and will have that right under

the Convention, ju st as we do now. ” 11 (Emphasis added.)

Since 1965, the government has publicly voiced its views concerning 

the right to expel diplomats. For example, in its report issued regarding 

the ratification of the Convention on the Privileges and Immunities of 

the United Nations, the Senate Committee on Foreign Relations paid 

special attention to several reservations to the proposed Convention, 

one of which stated that:

Persons who are entitled to diplomatic privileges and 

immunities under the Convention shall not be required to 

leave the United States otherwise than in accordance with 

the customary procedure applicable to members of diplomatic missions accredited or notified to the United States.

Ex. Rep. No. 17, 91st Cong., 2nd Sess. 5 (1970).

On its face, this reservation clearly assumes the existence of a 

nonstatutory, presidentially controlled and supervised procedure for the 

expulsion of foreign diplomatic personnel. More importantly for present 

purposes, the Senate Committee went on to state in its report:

As a final recourse, under the proposed reservation and

present law, the United States can compel the departure

from its territory of anyone declared persona non grata

12

" Exec. H. 88th Cong., 1st Sess. 9 (1965).

12 W e note that in the report to the President from the Secretary o f State of N ovem ber 6, 1969, 

recom m ending transm ittal o f the Convention to the Senate for advice and consent to ratification, the 

terms “com pel” and ’‘departure,” '‘expulsion” and “expelled” are used interchangeably. Furtherm ore, 

that report contains no reference w hatsoever to the Imm igration and Nationality Act, w hich was 

apparently assumed not to apply to this issue at all.

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Thus, it is unquestioned that the United States has traditionally maintained, and continues to maintain, the legal position consistent with 

prevailing rules of international law and practice and the Vienna Convention on Diplomatic Relations, that the receiving state has the right 

to require the departure, following persona non grata action, of alien 

nonresident members of the staff of a diplomatic mission.13

An argument that a diplomat may not be forcibly expelled by a 

receiving state could be made based on the principle articulated in 

Article 29 of the Vienna Convention that the “person of a diplomatic 

agent shall be inviolable” and that such a person “shall not be liable to 

any form of arrest or detention.” We are not persuaded by that argument for several reasons. First, these provisions of Article 29 cannot 

and have not been read to mean that a diplomat’s movement is not 

subject to any control, see Article 26 of the Vienna Convention, or that 

he cannot be prevented from taking action which violates the domestic 

law of the receiving state. [1957] 2 Y.B. Int’l L. Comm’n. 138.14 For 

example, the Department of State has taken the position that foreign 

diplomats may be escorted off the New Jersey Turnpike when found to 

be speeding, even though they were clearly not subject to arrest for 

that offense.15 We assume there would be no doubt that a foreign 

diplomat could be physically restrained from committing an assault on 

the streets of Washington, D.C., even though once again not subject to 

arrest for that assault, and that action could be taken without raising 

any substantial question under the Vienna Convention. In our view, an 

order of the President declaring foreign diplomats persona non grata

with an accompanying order to depart the United States constitutes a 

legal determination under United States law that may be enforced in 

similar fashion so long as the foreign diplomat affected is treated “with 

due respect” as provided in Article 29.16

Under the analysis above, we believe the President has the constitutional power forcibly to eject diplomatic personnel declared by him to

13 International law with respect to the treatment o f consular officers and consular staff parallels 

that with respect to diplomats; Article 23 of the Vienna Convention on Consular Relations contains 

language nearly identical to that o f paragraphs 1 and 2 o f A rticle 9 o f the Vienna Convention on 

Diplomatic Relations. Under this Article the receiving state may declare a consular officer persona non

grata or a staff member unacceptable and may w ithdraw recognition or cease to consider the person as 

a member o f the consulate if the sending state refuses to recall the person or terminate his functions 

“within a reasonable time.” The official records o f the UN Conference which adopted this article 

clearly reflect the intention to prescribe rules relating to the determ ination that a m ember of a 

consulate is persona non grata or no longer acceptable w hich are virtually the same as those relating to 

members of a diplomatic mission. The conferees specifically rejected proposals which would place 

consular personnel in a more advantaged position vis-a-vis diplomatic personnel. Thus, we conclude 

that consular personnel may similarly be required to depart the receiving state following persona non

grata action. I Official R ecords UN Conference on Consular Relations 209-217.

u Id. at 136.

15 Hearings on Exec. H. Before a Subcommittee o f the Senate Committee on Foreign Relations 20 (1965) 

(drunk diplomat could be “haul[edj off by the scruff o f his neck”).

16 W e believe the phrase “due respect” must be read to authorize the use o f the minimum level of 

force necessary to deal with any resistance by diplomatic personnel to their expulsion. Likewise, that 

phrase in no way precludes personnel enforcing a presidential order from using reasonable force to 

defend themselves from violent acts against their persons.

213
be persona non grata from the United States and that the exercise of that 

power would be consistent with international law.

2. Diplomatic property

The President has sole power to recognize foreign countries and to 

determine the acceptability of their ministers; inherent in this authority 

is the implied power to control physical access to embassy premises in 

the United States. This includes the power to take necessary action to 

protect embassies from damage, and the power to deny possession to or 

eject those not recognized as diplomatic personnel of the sending state.

As with the expulsion of diplomatic personnel, an argument can be 

made that the President’s power over the physical premises of diplomatic properties is limited by the principle set forth in Article 22 of the 

Convention that the premises of an embassy are “inviolable.” This 

principle of inviolability is generally taken to mean that agents of the 

United States may not enter without consent of the head of the mission. 

At the same time, Article 22 imposes a duty on the receiving state to 

take “all appropriate steps to protect the premises of the mission against 

any intrusion or damage and to prevent any disturbance of the peace of 

the mission.”

Article 45 of the Convention, however, modifies these commands 

somewhat in cases where, as here, the diplomatic personnel are temporarily recalled. It requires the receiving state to “respect and protect 

the premises of the mission, together with its property and archives,” 

and authorizes the sending state to trust custody of the premises to a 

third state acceptable to the receiving state.

It is plain from the background of the Convention that the duty in 

Article 45 to “respect and protect the premises” does not mean full 

inviolability. Denza, supra, at 281. Although it is not clear when inviolability ends, analogy to our discussion above of Article 29 regarding 

termination of personal immunity suggests that inviolability should continue for a reasonable time after the premises cease to be used for 

diplomatic purposes. In turn, this suggests that if the premises are used 

for purposes incompatible with a diplomatic mission, such as an armed 

occupation, inviolability should cease at that point. In view of this, the 

Convention’s provisions in Articles 22 and 45 protecting the integrity of 

the embassy premises suggest ample authority to control access to 

diplomatic property in these circumstances.

B. Federal Statutory Law

1. Diplomatic personnel

The President’s exclusive power over foreign diplomatic personnel as 

a matter of domestic law is explicitly and implicitly recognized in the

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statute most directly relevant to the issues at hand, the Immigration and 

Nationality Act of 1952. Under § 102 of that Act, 8 U.S.C. § 1102, 

diplomatic personnel are generally exempt from the provisions of the 

Act “relating to ineligibility to receive visas and the exclusion or 

deportation of aliens.” The legislative history of § 102 indicates clearly 

that the Congress, in leaving these matters to the President, was simply 

recognizing the constitutional limitations on its ability to control or 

regulate the President’s constitutional power to receive (and expel) the 

foreign representatives of countries with whom we have diplomatic 

relations. See H.R. Rep. No. 1365, 82nd Cong., 2nd Sess. 34 (1952).

We believe this congressional recognition of the President’s exclusive 

power to deal with foreign diplomatic personnel is relevant to a determination of the extent to which foreign diplomatic personnel, between 

the time they are declared persona non grata and the time they depart 

the United States or are forcibly expelled from the United States, may 

assert some legal entitlement to remain in the United States under the 

Immigration and Nationality Act. We do not believe they have any 

such entitlement during that period.

Both immigrant and nonimmigrant aliens, whether in this country 

legally or illegally, are generally entitled to claim various rights to 

remain in this country should it otherwise be determined that they are 

deportable. Indeed, § 241(e) of the Immigration and Nationality Act, 8 

U.S.C. § 1251(e), recognizes that diplomatic personnel who fail to maintain their status as diplomatic personnel may not, when they lose their 

status, be required by the Attorney General to depart the United States 

without the approval of the Secretary of State except under certain 

limited circumstances. Thus, the Immigration and Nationality Act recognized that diplomatic personnel may lose their status and, in doing 

so, become legally entitled to assert other rights to remain in the United 

States. The question, however, is whether diplomatic personnel, so long 

as they are deemed by the President to retain that status, may claim 

statutory entitlements to remain in this country after they have been 

declared persona non grata and ordered to depart the United States.

In addressing this issue, we would first note that a construction of the 

Immigration and Nationality Act which would permit foreign diplomatic personnel having been declared persona non grata and ordered to 

leave the country to assert other legal rights to remain in this country 

and therefore, by virtue of the process to which they would be entitled, 

at the very least substantially delay their departure, would directly 

impinge on the President’s power under the Constitution to deal with 

diplomats and to conduct our foreign relations. Particularly where the 

order for foreign diplomatic personnel to depart is directly related to 

the conduct of important foreign relations, which it clearly would be 

with regard to Iranian diplomatic personnel, we believe there would be 

a strong presumption against implying that Congress, by statute, gave

215
such diplomatic personnel the means to frustrate a decision by the 

President. Cf. Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) cert,

denied, 446 U.S. 957 (1980). Generally, statutes should not be read to 

conflict with the Constitution, Crowell v. Benson, 285 U.S. 22, 62 (1932), 

treaties, United States v. Lee Yen Tai, 185 U.S. 213, 221-22 (1902), or 

the law of nations, Lauritzen v. Larsen, 345 U.S. 571, 578 (1953).

As indicated above, § 102 of the Act, 8 U.S.C. § 1102, generally sets 

foreign diplomatic personnel apart from other classes of nonimmigrants 

for purposes of the Act. There would appear to be no judicial precedent regarding what rights foreign diplomatic personnel might have to 

interpose legal objections based on federal substantive law to their 

being expelled from the country on order of the President. One line of 

authority, however, dealing with persons paroled into this country 

pursuant to § 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5), supports our 

conclusion that foreign diplomatic personnel should be viewed as 

having no such rights.

Under § 212(d)(5), the Attorney General is authorized to parole aliens 

into the United States under certain circumstances. Notwithstanding the 

fact that such parolees are physically within the United States, the 

Supreme Court has held that they are not entitled to assert any legal 

entitlement to remain in the country beyond the terms upon which they 

were paroled into the country even though, as a factual matter, they 

might otherwise qualify under the Immigration and Nationality Act to 

remain in the United States or at least to receive the Attorney General’s consideration of their claim to legal entitlement to remain in the 

United States. See Leng M ay Ma v. Barber, 357 U.S. 185 (1958).

Although parolees, unlike foreign diplomatic personnel, do not technically have “nonimmigrant” status, both classes of persons are physically present in this country. In the case of parolees, the courts have 

determined that they have no entitlement to assert any legal right to 

remain in the country because they have not “entered” the country 

even though, as indicated above, they may be physically present not 

only at the border but indeed within the interior of the United States. A 

district court has summed up this concept of entry by stating that entry 

“means freedom from governmental restraint . . . Klapholz v. 

Esperdy, 201 F. Supp. 294, 297 (S.D. N.Y. 1961). These cases clearly 

establish the proposition that the Constitution does not itself affect the 

power of the Congress or the President to effect the removal of some 

classes of persons within our physical borders summarily.

In short, we do not believe that foreign diplomatic personnel have 

any statutory right to assert any legal entitlement to remain in the 

United States once they have been declared persona non grata and have 

been ordered to leave the country. This reading of the Immigration and 

Nationality Act is consistent with and supported by the doctrine, discussed supra, that statutes should be construed to avoid raising doubts

216
as to their constitutionality, Crowell v. Benson, supra; Broadrick v. 

Oklahoma, 413 U.S. 601 (1973). It is also consistent with the most 

recent expression by the Senate touching on this issue.

In its report regarding the ratification of the Convention on the 

Privileges and Immunities of the United Nations, the Senate Committee 

on Foreign Relations paid special attention to several reservations to 

the proposed Convention, one of which stated:

Persons who are entitled to diplomatic privileges and 

immunities under the Convention shall not be required to 

leave the United States otherwise than in accordance with 

the customary procedure applicable to members of diplomatic missions accredited or notified to the United States.

Ex. Rep. No. 17, 91st Cong., 2nd Sess. 5 (1970). On its face, this 

reservation clearly assumes the existence of a nonstatutory, presidentially controlled and supervised procedure for the expulsion of foreign 

diplomatic personnel. More importantly, for present purposes, the 

Senate Committee went on to state in its report (id.):

As a final recourse, under the proposed reservation and 

present law, the United States can compel the departure 

from its territory of anyone declared persona non

grata. . . .

A separate question arises whether a foreign diplomat having been 

declared persona non grata and ordered to leave the United States could 

frustrate or delay the execution of that order either by himself renouncing his status as a foreign diplomat or having his diplomatic credentials 

revoked by his government. Although the issue is not free from doubt, 

we believe that neither the individual act of a foreign diplomat nor an 

act of the sending state which would substantially undermine the foreign policy objective of the President should be permitted to do so. 

Thus, were the President to determine that the quick and sure expulsion 

of an identified group of foreign diplomats would significantly advance 

the foreign policy interests of the United States, we would not read 

either international law, i.e., the Vienna Convention, or domestic law,

i.e., the Immigration and Nationality Act of 1952, as permitting the 

frustration of that foreign policy objective and the President’s constitutional authority to carry it out. Under Article 9 of the Convention, 

failure of the sending state to withdraw its diplomatic personnel in such 

situations specifically entitles the receiving state to strip the foreign 

diplomatic personnel involved of their status as diplomats. We see no 

logical reason to suggest that Article 9 does not implicitly recognize 

the power of receiving states to take action short of totally withdrawing that status and the immunities that accompany that status. As 

indicated in Part I of this memorandum, we believe the President 

constitutionally may do so. In this situation, the status of the diplomatic

217
personnel does not necessarily revert to one of being merely “illegal 

aliens” in the United States.

This analysis also would apply, we believe, to a situation in which a 

foreign diplomat, rather than complying with a directive to depart the 

United States, went into hiding and was later found after the scheduled 

date for his departure had passed. In such a situation, we see no reason 

to recognize that act as bringing him within the protection of the 

Immigration and Nationality Act any more than a similar act committed by a parolee. Whether Congress could constitutionally provide such 

protections for “ex-diplomats” is a question we need not address; we 

simply conclude that Congress has expressed no intent in the Immigration and Nationality Act for such foreign diplomats to receive the 

benefits of the United States domestic law as a result of their defiance 

of an order issued by the President. Rather, Congress by its silence has 

left to the President the determination of when, for domestic law 

purposes, a foreign diplomat may lose that status and secure the benefits 

of our domestic law.

Notwithstanding the clear constitutional power of the President to 

receive ambassadors and public ministers, their status as nonimmigrant 

aliens under the Immigration and Nationality Act may make it prudent 

for the Executive to take certain actions that might make it more 

difficult for a recalcitrant Iranian diplomat to challenge successfully the 

President’s decision in a federal court. Certain sections of the Act, 

particularly §§245 and 248, U.S.C. §§ 1255 and 1258 might be invoked 

as allowing a nonimmigrant to apply, as any other nonimmigrant may 

apply, to adjust his status or to change his classification. Since those 

sections entitle an alien “who is continuing to maintain” his nonimmigrant status to make such applications, it would seem prudent for the 

Executive to use powers conferred by the Immigration and Nationality 

Act which might forestall this eventuality. Section 22 l(i) of the Immigration and Nationality Act, 8 U.S.C. § 1201(i), provides that after the 

issuance of a visa “the Secretary of State may at any time, in his 

discretion, revoke such visa or other documentation. Notice of such 

revocation shall be communicated to the Attorney General and such 

revocation shall invalidate the visa or other documentation from the 

date of issuance.” Thus, if the Secretary revoked the visas of diplomats 

who were declared persona non grata, the effect would be to cancel the 

diplomat’s nonimmigrant status, with the result that his arguable entitlement to adjustment would disappear.

While termination of the status of a diplomat is rare in our practice, 

this is precisely what was done in 1961 in the case of Miroslav 

Nacvalac, a member of the Permanent Mission of the Czechoslovak 

Socialist Republic to the United States. The record indicates that prior 

to the revocation of Mr. Nacvalac’s status under § 101(a)(15)(G) of the 

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(G), he had

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indicated an interest in discussing the possibility of remaining in the 

United States. In Press Release 421 dated June 21, the Department of 

State indicated that the effect of the revocation of Mr. Nacvalac’s 

status “is to place [him] in the category of an alien illegally in the 

United States of America.” The press release continued: “Under the 

laws and regulations of the United States of America, Nacvalac may 

elect to depart voluntarily or in lieu of such voluntary departure, be 

removed.” A footnote to the press release, which was reprinted in the 

Department of State Bulletin Vol. XLV, page 67, indicated that Mr. 

Nacvalac left the United States the next day.

There have been only two decided cases in which a judge has 

confronted the question of visa revocation by the Secretary of State. In 

the first case there was no opinion. The second case, which was 

decided last year, is Knoetze v. United States, A ll. F. Supp. 201 (S.D. 

Fla. 1979), a ffd 634 F.2d 207 (5th Cir.), cert, denied 454 U.S. 823 

(1981). In that case Judge Rottger of the United States District Court 

for the Southern District of Florida sustained the Secretary’s power to 

revoke visas. However, in his opinion he expressed concern that, when 

an alien whose visa was being revoked was in the United States, he did 

not have an administrative mechanism to insure that a revocation had 

not been erroneous. To meet this point, we believe that if it is decided 

for reasons of prudence to revoke visas of certain Iranian diplomats, the 

Department of State should establish an informal board of review to 

consider claims that revocation had been based on a mistake of fact.

In summary, we believe that the President has the authority to 

require the removal from the United States of diplomats declared persona non grata. However, we believe that prudence dictates that in 

certain cases we should revoke the visas of such diplomats in order to 

forestall invocation of sections of the Immigration and Nationality Act 

as a basis for challenging the President’s decision. We believe that by 

using the revocation power, the government could demonstrate to a 

court that an objecting diplomat or consul had no colorable claim for 

relief under the terms of the Act.

2. Diplomatic property

Protection of embassy premises and diplomatic personnel is generally 

performed by the Secret Service’s Uniformed Division under 3 U.S.C. 

§ 202, which provides that, subject to the supervision of the Secretary 

of the Treasury, the Division shall perform “such duties as the Director, United States Secret Service, may prescribe in connection with the 

protection of the following . . . (4) foreign diplomatic missions located 

in the metropolitan area of the District of Columbia; . . . and (8) 

foreign diplomatic missions located in such areas in the United States, 

its territories and possessions, as the President, on a case-by-case basis,

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may direct. The members of such force shall possess privileges and 

powers similar to those of the members of the Metropolitan Police of 

the District of Columbia.”

This statute first extended protection to diplomatic missions in 1970, 

in response to concern that the Metropolitan Police were providing 

inadequate protection against ordinary crime. Pub. L. No. 91-217, 84 

Stat. 74. See generally S. Rep. No. 659, 91st Cong., 2d Sess. (1970). The 

extent of the “protection” that may be afforded is otherwise undefined 

in the legislative history. The ordinary meaning of the term suggests 

safeguarding the premises against damage or theft, and the personnel 

against assaults. The duty imposed on the United States by the Vienna 

Convention to protect mission premises even after the recall of the 

personnel strongly suggests that the Secret Service’s duties do not end 

with the sealing of a mission. Where recall is temporary, as here, there 

presumably must be a mission to which the personnel may return when 

relations improve. Thus, the Service has present duties to protect Iranian diplomatic property against third parties. These duties will extend 

to the consulates, however, only if the President so directs the Service.

More difficult questions surround the power of the Service regarding 

nondiplomatic persons who assert the permission of the sending state to 

enter. Here, because the President has sole power to determine what 

governments and ministers are to be recognized, we believe there is 

implied power for the President to direct the Service to forbid access 

to* those not currently recognized as accredited diplomatic personnel to 

ensure that only those having diplomatic business with the embassy 

have access to it.

Under 18 U.S.C. §970, damage or unauthorized occupancy of a 

diplomatic mission is a crime.17 This provision, passed in response to 

terrorism at the Munich Olympics and elsewhere, is part of the “Act 

for the Prevention and Punishment of Crimes Against Internationally 

Protected Persons,” Pub. L. No. 94—467, 90 Stat. 1997. This statute

17 (a) W hoever willfully injures, damages, or destroys, or attem pts to injure, damage, or 

destroy, any property, real or personal, located within the United States and belonging to 

or utilized or occupied by any foreign government or international organization, by a 

foreign official or official guest, shall be fined not m ore than $10,000, or imprisoned not 

m ore than five years, or both.

(b) W noever, willfully w ith intent to intimidate, coerce, threaten, o r harass—

(1) forcibly thrusts any part o f himself o r any object w ithin or uport that portion o f any 

building or premises located w ithin the United States, w hich portion is used or 

occupied for official business or for diplom atic, consular, o r residential purposes by—

(A) a foreign governm ent, including such use as a mission to an international 

organization . . . ;

(2) refuses to depart from such portion o f such building or premises after a request— 

(A) by an em ployee o f a foreign governm ent or o f an international organization, if 

such employee is authorized to m ake such request by the senior official o f the unit 

o f such governm ent or organization w hich occupies such portion o f such building or 

premises; . . .

(D ) by anv person present having law enforcem ent powers; 

shall b e fined not more than $500 o r imprisoned not m ore than six months, or both.

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surely provides authority for measures designed to protect the embassy 

against entry by anyone who has no permission from the government of 

Iran. Whether this ban can include those purportedly authorized access 

by the Iranian government but not recognized as accredited personnel 

by the United States may be less clear. Section 970 refers to 18 U.S.C. 

§ 1116(b) for its definition of the foreign government whose premises 

are protected, and includes countries “irrespective of recognition by the 

United States.” The foreign officials entitled to demand that unauthorized persons depart the premises are defined, however, as those “duly 

notified to the United States as an officer or employee of a foreign 

government.” 18 U.S.C. § 1116(b)(3)(B). Thus, the statute appears not 

to authorize unaccredited foreign persons to demand the exit of others 

from diplomatic premises. When the accredited personnel have been 

expelled, this definition implies added scope to the authority under 

§ 970(b)(2)(D) of “any person present having law enforcement powers” 

to order departure from the mission as necessary.

This federal statute was not meant to “relieve any person of any 

obligation imposed by any law of any state, . . . or the District of 

Columbia.” H.R. Rep. No. 1614, 94th Cong., 2d Sess. 8 (1976). Because 

this statute was explicit in its refusal to preempt local criminal law, the 

Secret Service and the Metropolitan Police should have powers so 

conferred available to them. See Fatemi v. United States, 192 A.2d 525 

(D.C. Ct. App. 1963) (holding that Iranian students occupying the 

embassy against the wishes of the Minister could be convicted of 

“unlawful entry” under the D.C. Code).

Finally, we believe that the Federal Bureau of Investigation (FBI) 

may participate in controlling access to diplomatic property under its 

general enabling authority, 28 U.S.C. § 533:

The Attorney General may appoint officials—

(1) to detect and prosecute crimes against the United 

States;

(2) to assist in the protection of the person of the 

President; and

(3) to conduct such other investigations regarding 

official matters under the control of the Department of Justice and the Department of State as 

may be directed by the Attorney General. . . .

The presence of 18 U.S.C. §970, making unauthorized entries into 

diplomatic property a federal crime, is sufficient to invoke FBI jurisdiction under § 533(1).

We would add that because actions taken to carry out the President’s 

order for diplomats to leave this country are incident to an exercise of 

his constitutional power, they neither rely on statutory authority for 

direct support nor are subject to the restrictions of the Posse Comitatus

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Act, 18 U.S.C. § 1385, which generally restricts the use of Army or Air 

Force personnel to enforce civilian criminal law. In addition, 18 U.S.C. 

§ 1116(d) specifically permits the use of military personnel from all the 

Armed Forces to enforce 18 U.S.C. §970. Thus, we believe that the 

President is entitled to call on the full range of his resources in the 

Executive Branch to achieve the objectives discussed herein. In addition, § 1116(d) permits the President to draw on the resources of state 

or local law enforcement agencies in this situation.

III. The Due Process Clause of the Fifth Amendment

The final question presented by the expulsion of foreign diplomatic 

personnel from the country is whether the Due Process Clause of the 

Fifth Amendment requires that any kind of process be observed prior 

to their expulsion. This Office has previously taken the position that 

foreign diplomatic personnel derive their legal rights from their status 

as diplomats under international law. We believe the Due Process 

Clause is implicated, if at all, only with regard to the determination 

whether a person about to be forcibly expelled from the United States 

pursuant to an order of the President is in fact the person the President 

ordered to be expelled. Pursuant to our meeting of March 28, 1980, 

with representatives of the Department of State, we understand that a 

procedure reasonably calculated to ensure expulsion only of those persons previously ordered to be expelled by the President will be utilized. 

In these circumstances, we believe that the Due Process Clause, if 

applicable at all, would be fully satisfied and therefore we pretermit 

further discussion of that issue.18

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

18 A n issue related to th e question o f the applicability o f the C onstitution to the forcible ejection o f 

a foreign diplom at from the U nited States is the extent to w hich the o rd er o f the President w ould be 

subject to judicial review . Because a foreign diplom at being forcibly ejected w ould arguably be in the 

“custo dy ” o f the P resident’s agents w ho w ere carry in g out the P resident’s o rd er to d epart, there might 

be a colorable claim th at a w rit o f habeas corpus pursuant to 28 U.S.C. § 2241(c)(4) w ould be 

available. U nder o u r analysis above, w e believe that the only claim upon w hich a w rit o f habeas 

corpus could even arguably be g ranted in this situation w ould be a claim that the person bringing the 

action is not in fact the sam e person as the foreign diplom at o rdered to leave th e country by the 

President. A s indicated above, a procedure designed reasonably to ensure that such a mistake is not 

m ade should reduce litigation risks to the minimum.

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