                    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’s1 order dismissing their
complaint for lack of jurisdiction. We affirm.


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




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