period for which he has received temporary visitor status in accordance with the valid visa or other document by authorization, be entitled to the consular protection provided in Article 33 of this Convention as a United States national, as well as the right to leave the People's Republic of Bulgaria without further documentation regardless of whether such person also possesses Bulgarian nationality."

The inference apparently intended in the ... argument that the latter text supersedes the former is that the United States, having acknowledged in the Exchange of Letters the existence of dual nationals in 1974, cannot rely on the earlier Treaty which contains an inconsistent or incompatible provision for the automatic loss of the original nationality of a Bulgarian national once he becomes a naturalized American.

The 1923 Naturalization Treaty as reaffirmed in 1948 remains in effect and automatically removes Bulgarian nationality from Bulgarians who go through the naturalization process of becoming American citizens. Naturalized American citizens constitute but one category within the total composition of dual nationals. The U.S.Bulgarian Naturalization Treaty simply removes from the category of dual nationals those Bulgarians who have become naturalized American citizens. There still remains the possibility of dual nationals of Bulgaria and the United States. Children born in the United States of a Bulgarian parent, or children born in Bulgaria of American parents are dual nationals. The 1974 Exchange of Letters simply assures that such dual nationals will be accorded the consular protection provided for in the Consular Convention and that they remain free to leave Bulgaria. Former Bulgarian citizens who have become naturalized Americans are Americans, not dual nationals; and the 1974 Exchange of Letters does not apply to them. In view of these distinctions, the provisions of the Naturalization Treaty and the Exchange of Letters are neither incompatible nor inconsistent. Whether read together or apart, full consular protection is assured to those American nationals who by birth may also be nationals of Bulgaria. Without the Exchange of Letters, full consular protection would be accorded to former Bulgarians who re-enter Bulgaria after becoming naturalized Americans because they are American citizens only, not dual nationals.

The... argument that the subsequent Exchange of Letters supersedes the earlier Treaty is legally unsound on still another ground.

Article 59 of the Vienna Convention on the Law of Treaties provides that "a treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter . . . . ." The criteria for arguing the invalidity of an earlier treaty because of supersession is at the minimum that both treaties relate to the same subject-matter.

The 1923 Naturalization Treaty relates to the status of persons who, as former nationals of both countries, have become naturalized citizens of one of the countries. The 1974 Exchange of Letters relates to the extension of consular protection to dual nationals. Since the

subject-matter of these two treaties is distinct and separate, no question of supersession, and thus of the consequent invalidity of the former treaty, can arise.

Dept. of State File No. P77 0047-205.

The Vienna Convention on the Law of Treaties may be found at S. Ex. 6, 92d Cong., 1st Sess., Nov. 22, 1971. For further information concerning the U.S.Bulgarian Consular Convention, see the 1975 Digest, Ch. 4, § 2, pp. 255–256.

§ 2 Passports and Other Travel Documents; Travel Passports and Visas

Nonimmigrant Visas

The Foreign Relations Authorization Act, Fiscal Year 1978 (Public Law 95-105), approved by President Carter on August 17, 1977, includes a provision requiring the Secretary of State, in specified circumstances, to recommend that the Attorney General grant an approval to any alien applicant for a nonimmigrant visa who is excludable from the United States by reason of membership in or affiliation with a proscribed organization. The full text of the provision, known as the McGovern amendment for its sponsor, Senator George McGovern, reads as follows:

Section 112. The Act entitled "An Act to provide certain basic authority for the Department of State." approved August 1, 1956, is amended by adding at the end thereof the following new section:

Sec. 21. For purposes of achieving greater United States compliance with the provisions of the Final Act of the Conference on Security and Cooperation in Europe (signed at Helsinki on August 1, 1975) and for purposes of encouraging other signatory countries to comply with those provisions the Secretary of State should, within 30 days of receiving an application for a nonimmigrant visa by 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 to the United States, recommend that the Attorney General grant the approval necessary for the issuance of a visa to such alien, unless the Secretary determined that the admission of such alien would be contrary to the security interests of the United States and so certifies to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate.

Sec. 1182 of title 8 of the United States Code provides in part that aliens who are members of certain organizations are ineligible to receive visas. Set forth below are portions of sec. 1182:

(a)

Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

(28) Aliens who are, or at any time have been, members of any of the following classes:

(A) Aliens who are anarchists;

(B) Aliens who advocate or teach, or who are members of or affiliated with any organization that advocates or teaches, opposition to all organized government;

(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the United States, (iii) the Communist Political Association, (iv) the Communist or any other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state, (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party, or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt:

For further information concerning the provisions of the Helsinki Final Act on travel for personal or professional reasons, see the 1975 Digest, Ch. 3, § 6, p. 192.

Denial of Visitor's Visa

On January 24, 1977, Sabri Jiryis, an official of the Palestine Liberation Organization (PLO), applied for a visitor's nonimmigrant visa to the United States at the Consular Section in the U.S. Embassy in Paris. He sought to attend an American Friends Service Committee meeting in Bethesda, Maryland, scheduled from February 11 through 14, and entitled "The New Imperative for IsraeliPalestinian Peace." When applying for a visa on a previous occasion, Mr. Jiryis had stated that he was born in the Sudan, which subsequently had been determined not to be true.

On February 8, 1977, the Department of State's Director of the Office of Press Relations, Frederick Z. Brown, stated during a Department of State press conference that Mr. Jiryis' application for a visa had been refused:

We have decided not to seek the waivers that would allow Mr. Jiryis to come to the United States for the purpose of attending the Quaker conference this weekend.

There would have been two waivers required; one for the fact that he is a member of an organization proscribed under the provisions of paragraph 212(1) 28f of the Immigration and Nationality Act... of 1953. That is the Justice Department's determination. . . . He would also need a waiver with regard to the falsification of information on a previous visa application.

When questioned, Mr. Brown outlined Departmental policy when considering such an application for a visa:

Under some limited circumstances. . . . we do grant waivers of this sort-mainly for family or compassionate reasons-and we have occasionally allowed a PLO representative, or people affiliated with the PLO, to come to the United States, but not for political activity.

Now in the case of Mr. Jiryis, if he were to give a speech at this Quaker meeting, that would be reasonably construed, I would say, as political activity. And for that reason our recommendation was not in favor of the waivers.

Mr. Brown distinguished Mr. Jiryis' application for a visitor's visa from the law applicable to officials who work at the PLO observer Mission at the United Nations in New York:

The people assigned to the PLO Observer Mission at the U.N. have a diplomatic status that permits them to [travel in the United States pursuant to a C-2 visa], but if they travel outside the... 25-mile limit of New York City, then they come into the general policy consideration of granting travel waivers by the State Department . . . .

In response to a question, Mr. Brown indicated that the forthcoming trip of Secretary Vance to the Middle East beginning on February 14 "was one of the factors taken into account" when denying Mr. Jiryis' application for a travel visa.

Dept. of State News Briefing, DPC 22, Feb. 7, 1977.

Recapture of Visa Numbers

On June 27, 1977, Philip Wilens, Chief of the Government Regulations and Labor Section of the Criminal Division in the Department of Justice, wrote a letter to Robert Dalton, Assistant Legal Adviser for Consular Affairs in the Department of State, concerning the case of Zambrano v. Levi [76 C 1456 (N.D. Ill.)], in which the U.S. District Court for the Northern District of Illinois issued an order requiring the Department of State to make visa numbers available to the alien plaintiffs without charging those numbers against the current Western Hemisphere quota or the single foreign state limitation. Mr. Wilens enclosed with his June 27, 1977, letter the Order of District Judge Grady, which was based on the following findings:

(1) Between July 1, 1968, and October 1, 1976, the Immigration and Naturalization Service and the Department of State charged against the Western Hemisphere quota a number of Cuban refugees who received adjustment of status in the United States under the [Cuban Adjustment] Act of November 2, 1966 (80 Stat. 1161).

(2) The charging of these adjusted Cuban refugees against the Western Hemisphere quota was contrary to law, and improperly

contributed to the backlog of immigrant visa applicants from the Western Hemisphere; and

(3) Immigrant visa numbers would have, in the past, been available or would today be immediately available to plaintiffs Juan and Margarita Zambrano, if adjusted Cuban refugees had not been improperly charged against the Western Hemisphere quota.

Dept. of State File No. P78 0013-1307.

Mr. Wilens gave the following advice concerning the precedential effect of Zambrano for other Western Hemisphere applicants for U.S. visas:

The recapture of at least two visa numbers has now been judicially ordered in Zambrano, which stands as a precedent for the proposition that the numbers wrongly assigned. to Cubans in past years can be currently used to benefit adversely affected aliens.

The Zambrano order establishes that the annual 120,000 numerical Western Hemisphere limitation, and the annual single foreign state limitation, may be exceeded to redress the injury done to persons in the position of the aliens in Zambrano, on or before December 31, 1976. Accordingly, it is our legal opinion that the Department of State may recapture and currently use for the benefit of [such Western Hemisphere visa applicants] those visa numbers wrongly charged to the Cuban refugees, without charging such visa numbers against the current Western Hemisphere quota or single foreign state limitation. There is, of course, no legal basis for recapturing visa numbers in excess of those wrongly charged to the Cubans, or for assigning any recaptured visa numbers to aliens not having a qualifying Western Hemisphere priority date.

Id.

Pursuant to Mr. Wilens' advice, the Department of State subsequently began recapturing and reallocating visa numbers from previous years to permit the issuance of visas in the the near future to Western Hemisphere immigrants equal in number to those whom Congress had expected to be admitted beginning in 1968 but who were erroneously required to wait.

Removal of Restrictions

Travel

During his March 9, 1977, news conference, President Carter announced the removal of travel restrictions on American citizens traveling abroad:

I have long been concerned about our own Nation's stance in prohibiting American citizens to travel to foreign countries. We also are quite eagerly assessing our own Nation's policies that violate human rights as defined by the Helsinki agreement.