Communists Can’t Be Barred From U.S. : Affiliation Not Enough to Deny Visas to Invited Speakers--Court

The State Department cannot deny visas to foreigners invited to make speeches in the United States merely because they are Communists or belong to anti-American groups, a federal appeals court ruled today.

The U.S. Circuit Court of Appeals for the District of Columbia, acting in the cases of four aliens denied temporary visas, said Congress intended the government to justify the exclusion of aliens by citing more than their political membership.

The judges by a 2-1 vote, ordered a district court and the State Department to review the denial of visas to Nicaraguan Interior Minister Tomas Borge, Italian peace activist Nino Pasti and two Cuban women’s studies experts, Olga Finlay and Leonor Rodriguez.

The four were invited by various organizations to speak and attend meetings in this country.

Writing for the panel, Judge Ruth Bader Ginsburg said, “The executive has broad discretion over the admission and exclusion of aliens, but that discretion is not boundless.”

The Immigration and Nationality Act of 1952 orders that any alien be kept out of this country if the attorney general believes he or she “seeks to enter the United States solely . . . to engage in activities which would be prejudicial” to U.S. interests.

McGovern Amendment

The law also allows the exclusion of aliens who are or have been members of the Communist Party at the discretion of the secretary of state and attorney general.

To prevent abuse of the law, Congress passed the McGovern Amendment in 1982, which requires the secretary of state to recommend waivers for any alien “who is excludable from the United States by reason of membership in or affiliation with a proscribed organization but who is otherwise admissible.”

In the case of the four aliens, the State Department did not prove that it had complied with the McGovern Amendment, the court said.

“The amendment was intended to implement the United States’ promise under the Helsinki Accords to promote the free flow of people and ideas across national borders,” the court said. “The amendment fulfills that commitment by assuring that a would-be speaker is not condemned by association” with a certain political group.

Judge Robert H. Bork dissented from the majority opinion, which he called a “judicial incursion into the United States’ conduct of its foreign affairs.”