MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The appellees have framed the issue here as follows:
Expressed in statutory terms, the question is whether §§ 212 (a) (28) (D) and (G) (v) and § 212 (d) (3) (A) of the Immigration and Nationality Act of 1952, 66 Stat. 182, 8 U. S. C. §§ 1182 (a) (28) (D) and (G) (v) and § 1182 (d) (3) (A), providing that certain aliens "shall be ineligible to receive visas and shall be excluded from admission into the United States" unless the Attorney General, in his discretion, upon recommendation by the Secretary of State or a consular officer, waives inadmissibility and approves temporary admission, are unconstitutional as applied here in that they deprive American citizens of freedom of speech guaranteed by the First Amendment.
Section 212 (d) (6) provides that the Attorney General "shall make a detailed report to the Congress in any
Ernest E. Mandel resides in Brussels, Belgium, and is a Belgian citizen. He is a professional journalist and is editor-in-chief of the Belgian Left Socialist weekly La Gauche. He is author of a two-volume work entitled Marxist Economic Theory published in 1969. He asserted in his visa applications that he is not a member of the Communist Party. He has described himself, however, as "a revolutionary Marxist."
Mandel was admitted to the United States temporarily in 1962 and again in 1968. On the first visit he came as a working journalist. On the second he accepted invitations to speak at a number of universities and colleges. On each occasion, although apparently he was not then aware of it, his admission followed a finding of ineligibility under § 212 (a) (28), and the Attorney General's exercise of discretion to admit him temporarily, on recommendation of the Secretary of State, as § 212 (d) (3) (A) permits.
On September 8, 1969, Mandel applied to the American Consul in Brussels for a nonimmigrant visa to enter the United States in October for a six-day period, during which he would participate in a conference on
On October 23 the Consul at Brussels informed Mandel orally that his application of September 8 had been refused. This was confirmed in writing on October 30. The Consul's letter advised him of the finding of inadmissibility under § 212 (a) (28) in 1962, the waivers in that year and in 1968, and the current denial of a waiver. It said, however, that another request for waiver was being forwarded to Washington in connection with Mandel's second application for a visa. The Department of State, by a letter dated November 6
The Department of State in fact had recommended to the Attorney General that Mandel's ineligibility be waived with respect to his October visa application. The Immigration and Naturalization Service, however, acting on behalf of the Attorney General, see 28 U. S. C. § 510, in a letter dated February 13, 1970, to New York counsel stated that it had determined that Mandel's 1968 activities while in the United States "went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country." The letter concluded that favorable exercise of discretion, provided for under the Act, was not warranted and that Mandel's temporary admission was not authorized.
Mandel's address to the New York meeting was then delivered by transatlantic telephone.
In March Mandel and six of the other appellees instituted the present action against the Attorney General and the Secretary of State. The two remaining appellees soon came into the lawsuit by an amendment to the complaint. All the appellees who joined Mandel in this action are United States citizens and are university professors in various fields of the social sciences. They are persons who invited Mandel to speak at universities and other forums in the United States or who expected to participate in colloquia with him so that,
Plaintiff-appellees claim that the statutes are unconstitutional on their face and as applied in that they deprive the American plaintiffs of their First and Fifth Amendment rights. Specifically, these plaintiffs claim that the statutes prevent them from hearing and meeting with Mandel in person for discussions, in contravention of the First Amendment; that § 212 (a) (28) denies them equal protection by permitting entry of "rightists" but not "leftists" and that the same section deprives them of procedural due process; that § 212 (d) (3) (A) is an unconstitutional delegation of congressional power to the Attorney General because of its broad terms, lack of standards, and lack of prescribed procedures; and that application of the statutes to Mandel was "arbitrary and capricious" because there was no basis in fact for concluding that he was ineligible, and no rational reason or basis in fact for denying him a waiver once he was determined ineligible. Declaratory and injunctive relief was sought.
A three-judge district court was duly convened. The case was tried on the pleadings and affidavits with exhibits. Two judges held that, although Mandel had no personal right to enter the United States, citizens of this country have a First Amendment right to have him enter and to hear him explain and seek to defend his views. The court then entered a declaratory judgment that § 212 (a) (28) and § 212 (d) (3) (A) were invalid and void insofar as they had been or might be invoked by the defendants to find Mandel ineligible for admission. The defendants were enjoined from implementing and enforcing those statutes so as to deny Mandel admission as a nonimmigrant visitor. 325 F.Supp. 620 (EDNY 1971). Judge Bartels dissented. Id., at 637. Probable jurisdiction was noted. 404 U.S. 1013 (1972).
Until 1875 alien migration to the United States was unrestricted. The Act of March 3, 1875, 18 Stat. 477, barred convicts and prostitutes. Seven years later Congress passed the first general immigration statute. Act of Aug. 3, 1882, 22 Stat. 214. Other legislation followed. A general revision of the immigration laws was effected by the Act of Mar. 3, 1903, 32 Stat. 1213. Section 2 of that Act made ineligible for admission "anarchists, or persons who believe in or advocate the overthrow by force or violence of the Government of the United States or of all government or of all forms of law." By the Act of Oct. 16, 1918, 40 Stat. 1012. Congress expanded the provisions for the exclusion of subversive aliens. Title II of the Alien Registration Act of 1940, 54 Stat. 671, amended the 1918 Act to bar aliens who, at any time, had advocated or were members of or affiliated with organizations that advocated violent overthrow of the United States Government.
In the years that followed, after extensive investigation and numerous reports by congressional committees, see Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 94 n. 37 (1961), Congress passed the Internal Security Act of 1950, 64 Stat. 987. This Act dispensed with the requirement of the 1940 Act of a finding in each case, with respect to members of the Communist Party, that the party did in fact advocate violent overthrow of the Government. These provisions were carried forward into the Immigration and Nationality Act of 1952.
We thus have almost continuous attention on the part of Congress since 1875 to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing
It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); Galvan v. Press, 347 U.S. 522, 530-532 (1954); see Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952).
The appellees concede this. Brief for Appellees 33; Tr. of Oral Arg. 28. Indeed, the American appellees assert that "they sue to enforce their rights, individually and as members of the American public, and assert none on the part of the invited alien." Brief for Appellees 14. "Dr. Mandel is in a sense made a plaintiff because he is symbolic of the problem." Tr. of Oral Arg. 22.
The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country or, in other words, to compel the Attorney General to allow Mandel's admission.
In a variety of contexts this Court has referred to a First Amendment right to "receive information and ideas":
This was one basis for the decision in Thomas v. Collins, 323 U.S. 516 (1945). The Court there held that a labor organizer's right to speak and the rights of workers "to hear what he had to say," id., at 534, were both abridged by a state law requiring organizers to register before soliciting union membership. In a very different situation, MR. JUSTICE WHITE, speaking for a unanimous Court upholding the FCC's "fairness doctrine" in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-390 (1969), said:
And in Lamont v. Postmaster General, 381 U.S. 301 (1965), the Court held that a statute permitting the Government to hold "communist political propaganda" arriving in the mails from abroad unless the addressee affirmatively requested in writing that it be delivered to him placed an unjustifiable burden on the addressee's First Amendment right. This Court has recognized that this right is "nowhere more vital" than in our schools and universities. Shelton v. Tucker, 364 U.S. 479, 487 (1960); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). See Epperson v. Arkansas, 393 U.S. 97 (1968).
The Government disputes this conclusion on two grounds. First, it argues that exclusion of Mandel involves no restriction on First Amendment rights at all since what is restricted is "only action—the action of the alien in coming into this country." Brief for Appellants 29. Principal reliance is placed on Zemel v. Rusk, 381 U.S. 1 (1965), where the Government's refusal to validate an American passport for travel to Cuba was upheld. The rights asserted there were those of the passport applicant himself. The Court held that his right to travel and his asserted ancillary right to inform himself about Cuba did not outweigh substantial "foreign policy considerations affecting all citizens" that, with the backdrop of the Cuban missile crisis, were characterized as the "weightiest considerations of national security." Id., at 13, 16. The rights asserted here, in some contrast, are those of American academics who have invited Mandel to participate with them in colloquia, debates, and discussion in the United States. In light of the Court's previous decisions concerning the "right to receive information," we cannot realistically say that the problem facing us disappears entirely or is nonexistent because the mode of regulation bears directly on physical movement. In Thomas the registration requirement on its
The Government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel's ideas through his books and speeches, and because "technological developments," such as tapes or telephone hook-ups, readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. While alternative means of access to Mandel's ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests—a balance we find unnecessary here in light of the discussion that follows in Part V—we are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access.
Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U.S. 581, 609 (1889), and in Fong Yue Ting v. United States, 149 U.S. 698 (1893), held broadly, as the Government describes it, Brief for Appellants 20, that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government . . . ." Since that time, the Court's general reaffirmations of this principle have
Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U.S. 522 (1954), a deportation case, and we can do no better. After suggesting, at 530, that "much could be said for the view" that due process places some limitations on congressional power in this area "were we writing on a clean slate," he continued:
We are not inclined in the present context to reconsider this line of cases. Indeed, the appellees, in contrast to the amicus, do not ask that we do so. The appellees recognize the force of these many precedents. In seeking to sustain the decision below, they concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212 (a) (28) (D) and (G) (v), and that First Amendment rights could not override that decision. Brief for Appellees 16. But they contend that by providing a waiver procedure, Congress clearly intended that persons ineligible under the broad provision of the section would be temporarily admitted when appropriate "for humane reasons and for reasons of public interest." S. Rep. No. 1137, 82d Cong., 2d Sess., 12 (1952). They argue that the Executive's implementation of this congressional mandate through decision whether to grant a waiver in each individual case must be limited by the First Amendment rights of persons like appellees. Specifically, their position is that the First Amendment rights must prevail, at least where the Government
Appellees' First Amendment argument would prove too much. In almost every instance of an alien excludable under § 212 (a) (28), there are probably those who would wish to meet and speak with him. The ideas of most such aliens might not be so influential as those of Mandel, nor his American audience so numerous, nor the planned discussion forums so impressive. But the First Amendment does not protect only the articulate, the well known, and the popular. Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under § 212 (a) (28), one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or
Appellees seek to soften the impact of this analysis by arguing, as has been noted, that the First Amendment claim should prevail, at least where no justification is advanced for denial of a waiver. Brief for Appellees 26. The Government would have us reach this question, urging a broad decision that Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given. See Jay v. Boyd, 351 U.S. 345, 357-358 (1956); Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 (1957); Kimm v. Rosenberg, 363 U.S. 405, 408 (1960). This record, however, does not require that we do so, for the Attorney General did inform Mandel's counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide.
The Government has chosen not to rely on the letter to counsel either in the District Court or here. The fact remains, however, that the official empowered to make the decision stated that he denied a waiver because he concluded that previous abuses by Mandel made it inappropriate to grant a waiver again. With this, we think the Attorney General validly exercised the plenary power that Congress delegated to the Executive by §§ 212 (a) (28) and (d) (3).
In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been
MR. JUSTICE DOUGLAS, dissenting.
Under The Chinese Exclusion Case, 130 U.S. 581, rendered in 1889, there could be no doubt but that Congress would have the power to exclude any class of aliens from these shores. The accent at the time was on race. Mr. Justice Field, writing for the Court, said: "If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects." Id., at 606.
An ideological test, not a racial one, is used here. But neither, in my view, is permissible, as I have indicated on other occasions.
Dr. Ernest Mandel, who is described as "an orthodox Marxist of the Trotskyist school," has been admitted to this country twice before—once as a working journalist in 1962 and once as a lecturer in 1968. The present case involves his third application, made in 1969, to attend a conference at Stanford University on Technology and the Third World. He was also invited to attend other conferences, one at MIT, and to address several universities, Princeton, Amherst, the New School, Columbia, and Vassar. This time the Department of Justice refused to grant a waiver recommended by the State Department; and it claims that it need not state its reasons, that the power of the Attorney General is unfettered.
Dr. Mandel is not the sole complainant. Joining him are the other appellees who represent the various audiences which Dr. Mandel would be meeting were a visa to issue. While Dr. Mandel, an alien who seeks admission, has no First Amendment rights while outside the Nation, the other appellees are on a different footing. The First Amendment involves not only the right to speak and publish but also the right to hear, to learn, to know. Martin v. City of Struthers, 319 U.S. 141, 143; Stanley v. Georgia, 394 U.S. 557, 564.
Can the Attorney General under the broad discretion entrusted in him decide
that no one who believes in the Darwinian theory shall be admitted?
that those who promote a Rule of Law to settle international differences rather than a Rule of Force may be barred?
that a genetic biologist who lectures on the way to create life by one sex alone is beyond the pale?
that an exponent of plate tectonics can be barred?
that one should be excluded who taught that Jesus when he arose from the Sepulcher, went east (not up) and became a teacher at Hemis Monastery in the Himalayas?
I put the issue that bluntly because national security is not involved. Nor is the infiltration of saboteurs. The Attorney General stands astride our international terminals that bring people here to bar those whose ideas are not acceptable to him. Even assuming, arguendo, that those on the outside seeking admission have no standing to complain, those who hope to benefit from the traveler's lectures do.
Thought control is not within the competence of any branch of government. Those who live here may need exposure to the ideas of people of many faiths and many creeds to further their education. We should construe the Act generously by that First Amendment standard, saying that once the State Department has concluded that our foreign relations permit or require the admission of a foreign traveler, the Attorney General is left only problems of national security, importation of heroin, or other like matters within his competence.
We should assume that where propagation of ideas is permissible as being within our constitutional frame-work, the Congress did not undertake to make the Attorney General a censor. For as stated by Justice
In Brandenburg v. Ohio, 395 U.S. 444 (which overruled Whitney v. California, 274 U.S. 357), we held that the First Amendment does not permit a State "to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id., at 447. That case involved propagation of the views of the Ku Klux Klan. The present case involves teaching the communist creed.
As a matter of statutory construction, I conclude that Congress never undertook to entrust the Attorney General with the discretion to pick and choose among the ideological offerings which alien lecturers tender from our platforms, allowing those palatable to him and disallowing others.
I would affirm the judgment of the three-judge District Court.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
Dr. Ernest Mandel, a citizen of Belgium, is an internationally famous Marxist scholar and journalist. He was invited to our country by a group of American scholars who wished to meet him for discussion and debate. With firm plans for conferences, colloquia and lectures, the American hosts were stunned to learn that Mandel had been refused permission to enter our country. American consular officials had found Mandel "ineligible"
I, too, am stunned to learn that a country with our proud heritage has refused Dr. Mandel temporary admission. I am convinced that Americans cannot be denied the opportunity to hear Dr. Mandel's views in person because their Government disapproves of his ideas. Therefore, I dissent from today's decision and would affirm the judgment of the court below.
As the majority correctly demonstrates, in a variety of contexts this Court has held that the First Amendment protects the right to receive information and ideas, the freedom to hear as well as the freedom to speak. The reason for this is that the First Amendment protects a process, in Justice Brandeis' words, "reason as applied through public discussion," Whitney v. California, 274 U.S. 357, 375 (1927) (concurring opinion); and the right to speak and hear—including the right to inform others and to be informed about public issues—are inextricably part of that process. The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion. The activity of speakers becoming listeners and listeners becoming speakers in the vital interchange of thought is the "means indispensable to the discovery and spread of political truth." Ibid.; see Terminiello v. Chicago, 337 U.S. 1, 4 (1949). Its
There can be no doubt that by denying the American appellees access to Dr. Mandel, the Government has directly prevented the free interchange of ideas guaranteed by the First Amendment.
What is the justification for this extraordinary governmental interference with the liberty of American citizens? And by what reasoning does the Court uphold Mandel's exclusion? It is established constitutional doctrine, after all, that government may restrict First Amendment rights only if the restriction is necessary to further a compelling governmental interest. E. g., Lamont v. Postmaster General, supra, at 308; NAACP v. Button, 371 U.S. 415, 438 (1963); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546 (1963); Shelton v. Tucker, 364 U.S. 479 (1960).
A. Today's majority apparently holds that Mandel may be excluded and Americans' First Amendment rights restricted because the Attorney General has given a "facially legitimate and bona fide reason" for refusing to waive Mandel's visa ineligibility. I do not understand the source of this unusual standard. Merely "legitimate" governmental interests cannot override constitutional rights. Moreover, the majority demands only "facial" legitimacy and good faith, by which it means that this Court will never "look behind" any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive,
Even the briefest peek behind the Attorney General's reason for refusing a waiver in this case would reveal that it is a sham. The Attorney General informed appellees' counsel that the waiver was refused because Mandel's activities on a previous American visit "went far beyond the stated purposes of his trip . . . and represented a flagrant abuse of the opportunities afforded him to express his views in this country." App. 68. But, as the Department of State had already conceded to appellees' counsel, Dr. Mandel "was apparently not informed that [his previous] visa was issued only after obtaining a waiver of ineligibility and therefore [Mandel] may not have been aware of the conditions and limitations attached to the [previous] visa issuance." App. 22. There is no basis in the present record for concluding that Mandel's behavior on his previous visit was a "flagrant abuse"—or even willful or knowing departure —from visa restrictions. For good reason, the Government in this litigation has never relied on the Attorney General's reason to justify Mandel's exclusion. In these circumstances, the Attorney General's reason cannot possibly support a decision for the Government in this case. But without even remanding for a factual hearing to see if there is any support for the Attorney General's determination, the majority declares that his reason is sufficient to override appellees' First Amendment interests.
B. Even if the Attorney General had given a compelling
C. Accordingly, I turn to consider the constitutionality of the sole justification given by the Government here and below for excluding Mandel—that he "advocates and "publish[es] . . . printed matter . . . advocating . . . doctrines of world communism" within the terms of § 212 (a) (28).
Still adhering to standard First Amendment doctrine, I do not see how (a) (28) can possibly represent a compelling governmental interest that overrides appellees' interests in hearing Mandel.
D. The heart of appellants' position in this case, and the basis for their distinguishing Lamont, is that the Government's power is distinctively broad and unreviewable because "[t]he regulation in question is directed at the admission of aliens." Brief for Appellants 33. Thus, in the appellants' view, this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the "political" branches of Government, Congress, and the Executive.
These cases are not the strongest precedents in the United States Reports, and the majority's baroque approach reveals its reluctance to rely on them completely.
But none of these old cases must be "reconsidered" or overruled to strike down Dr. Mandel's exclusion, for none of them was concerned with the rights of American citizens. All of them involved only rights of the excluded aliens themselves. At least when the rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute. "When Congress' exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our `delicate and difficult task' to determine whether the resulting restriction on freedom can be tolerated." United States v. Robel, 389 U.S. 258, 264 (1967). As Robel and many other cases
The majority recognizes that the right of American citizens to hear Mandel is "implicated" in our case. There were no rights of Americans involved in any of the old alien exclusion cases, and therefore their broad counsel about deference to the political branches is inapplicable. Surely a Court that can distinguish between pre-indictment and post-indictment lineups, Kirby v. Illinois, 406 U.S. 682 (1972), can distinguish between our case and cases which involve only the rights of aliens.
I do not mean to suggest that simply because some Americans wish to hear an alien speak, they can automatically compel even his temporary admission to our country. Government may prohibit aliens from even temporary admission if exclusion is necessary to protect a compelling governmental interest.
Dr. Mandel has written about his exclusion, concluding that "[i]t demonstrates a lack of confidence" on the part of our Government "in the capacity of its supporters to combat Marxism on the battleground of ideas." He observes that he "would not be carrying any high explosives, if I had come, but only, as I did before, my revolutionary views which are well known to the public." And he wryly notes that "[i]n the nineteenth century the British ruling class, which was sure of itself, permitted Karl Marx to live as an exile in England for almost forty years." App. 54.
It is undisputed that Dr. Mandel's brief trip would involve nothing but a series of scholarly conferences and lectures. The progress of knowledge is an international
Counsel's affidavit in support of appellees' motion for the convening of a three-judge court and for the issuance of a preliminary injunction stated:
"Mr. Mandel further assured the Consul by letter on November 10, 1969 that he would not appear at any assembly in the United States at which money was solicited for any political cause. This was apparently in response to a charge that he had been present at such a solicitation during his 1968 tour. (See also Exhibit L.)
"Of course, just as Mr. Mandel had no prior notice that he was required to adhere to a stated itinerary in 1968, so Mr. Mandel was not aware that he was forbidden from appearing where contributions [were] solicited for political causes. I have been advised by Mr. George Novack, an American citizen, who coordinated Mr. Mandel's 1968 tour, that in fact the event in question was a cocktail reception held at the Gotham Art Theatre in New York City on October 19, 1968. Mr. Mandel addressed the gathering on the events in France during May and June. Later that evening posters by French students were auctioned. The money was sent to aid the legal defense of students who had taken part in the spring demonstrations. Mr. Mandel did not participate in the fund raising. (See Ex. L, Oct. 30, 1969 letter.)"
The asserted noncompliance by Mandel is therefore broader than mere acceptance of more speaking engagements than his visa application indicated.
"The Immigration and Naturalization Service reports the following with respect to applications to the Attorney General for waiver of an alien's ineligibility for admission under Section 212 (a) (28):
Total Number of Number Number Applications for of of Waiver of Waivers Waivers "Year Section 212 (a) (28) Granted Denied 1971 6210 6196 14 1970 6193 6189 4 1969 4993 4984 9 1968 4184 4176 8 1967 3860 3852 8"
Brief for Appellants 18 n. 24. These cases, however, are only those that, as § 212 (d) (3) (A) provides, come to the Attorney General with a positive recommendation from the Secretary of State or the consular officer. The figures do not include those cases where these officials had refrained from making a positive recommendation.