The decision to bar Muslim scholar Tariq Ramadan from the United States because he contributed to a charity that supports Hamas is heading back to a lower court following a decision Friday by the 2nd U.S. Circuit Court of Appeals.
The circuit vacated a ruling by Southern District of New York Judge Paul A. Crotty dismissing a First Amendment challenge to the government’s denial of a visa to Ramadan, 46, a Switzerland-based academic, because he allegedly provided material support to a terrorist organization.
The appeal in American Academy of Religion v. Napolitano (pdf), 08-0826-cv, required Judges Wilfred Feinberg, Jon O. Newman and Reena Raggi to clarify a “host of issues” before they ultimately remanded the case to Crotty to determine whether a U.S. consular official in Switzerland gave Ramadan a chance to show, by clear and convincing evidence, that he did not know, and reasonably should not have known, that the charity to which he contributed was a terrorist organization.
Ramadan accepted a tenured teaching position at the University of Notre Dame in January 2004 and was approved for an H-1B visa in May 2004. But the U.S. embassy in Bern revoked his visa with no explanation on July 28, 2004.
The Department of Homeland Security told inquiring reporters that the visa had been revoked under an Immigration and Nationality Act provision barring people who endorse or espouse terrorist activity, 8 U.S.C. §1182(a)(3)(i)(VII) (2000).
Ramadan reapplied for a visa but ultimately decided to resign from Notre Dame.
On Sept. 16, 2005, he applied for a B visa to enter the United States to attend conferences, including those sponsored by the name plaintiffs, the American Academy of Religion and the American Association of University Professors.
At a meeting with a consular official that Sept. 25, at which Ramadan was asked about his political views and associations, he told the official that between 1998 and 2002 he had donated $1,336 to the Association de Secours Palestinien.
The group had been designated a terrorist organization by the U.S. Treasury Department in 2003 because of its funding of Hamas, although that does not automatically mean, the government conceded, that it is a “terrorist organization” within the meaning of the Immigration and Nationality Act.
The American Civil Liberties Union filed suit in 2006. Crotty granted its motion to compel the government to act on Ramadan’s petition. In September 2006, Ramadan received a call, followed by a letter, telling him the consulate had denied his visa.
Crotty dismissed the lawsuit on Dec. 20, 2007. Arguments before the 2nd Circuit in the closely watched case were heard on March 24, 2009.
Newman wrote Friday’s 52-page opinion for the panel, with the first issue being whether a court can review a consular official’s visa decision.
Newman said the U.S. Supreme Court in Kleindienst v. Mandel, 408 U.S. 753 (1972), “recognized a First Amendment right to ‘hear, speak, and debate with’ a visa applicant.”
The question for the circuit was whether Mandel and its progeny would apply given the doctrine of non-reviewability of consular decisions.
“We conclude that, where a plaintiff, with standing to do so, asserts a First Amendment claim to have a visa applicant present views in this country, we should apply Mandel to a consular official’s denial of a visa,” Newman said. “Since the First Amendment requires at least some judicial review of the discretionary decision of the Attorney General to waive admissibility, we see no sound reason to deny a similar review to the decision of a consular officer to deny a visa.”
After deciding that Crotty had the jurisdiction to consider the claim, the court resolved several other issues:
• Finding that “the statutory provision expanding visa ineligibility to those who contributed funds to an undesignated terrorist organization before the provision was enacted was validly applied to Ramadan.”
• Interpreting the statute as requiring “the consular officer to find that Ramadan knew his contributions provided material support.”
• Finding that the consular officer was “required to confront Ramadan with the allegation against him and affording him the subsequent opportunity to demonstrate by clear and convincing evidence that he did not know, and reasonably should not have known, that the recipient of his contributions was a terrorist organization.”
Saying the record was unclear as to whether the consular officer had done so, the court remanded the case.
Jameel Jaffer argued for the ACLU. He said the decision was just about everything he could have hoped for, save a direction from the 2nd Circuit that Ramadan’s exclusion should end immediately.
“The court found it has jurisdiction to consider this kind of challenge, that the exclusion of foreign scholars implicates the rights of U.S. citizens and residents and the court has a role in policing the exclusion of foreign scholars from the United States,” Jaffer said. “The bottom line is they found the government has not offered a facially legitimate and bona fide reason for Ramadan’s exclusion.”
Jaffer said he hoped a hearing before Crotty would be rendered unnecessary by a decision from the government allowing a visa for Ramadan.
Assistant U.S. Attorney David S. Jones argued for the government.
