American Academy of Religion v. Napolitano

Decision Date17 July 2009
Docket NumberDocket No. 08-0826-cv.
Citation573 F.3d 115
PartiesAMERICAN ACADEMY OF RELIGION, American Association of University Professors, Pen American Center, and Tariq Ramadan, Plaintiffs-Appellants, v. Janet NAPOLITANO, in her official capacity as Secretary of the Department of Homeland Security, and Hillary Rodham Clinton, in her official capacity as Secretary of State,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Jameel Jaffer, New York, N.Y. (Melissa Goodman, Nasrina Bargzie, Judy Rabinovitz, Lucas Guttentag, American Civil Liberties Union Foundation, New York, N.Y.; Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, N.Y.; Claudia Slovinsky, New York, N.Y.; Leon Friedman, New York, N.Y., on the brief), for Plaintiffs-Appellants.

Davis S. Jones, Asst. U.S. Atty., New York, N.Y. (Michael J. Garcia, U.S. Atty., Kristin L. Vassallo, Sarah S. Normand, Asst. U.S. Attys., New York, N.Y., on the brief), for Defendants-Appellees.

(Charles S. Sims, Proskauer Rose LLP, New York, N.Y., for amici curiae American Ass'n for the Advancement of Slavic Studies, American Booksellers Foundation for Free Expression, American Studies Ass'n, Ass'n of American Law Schools, Ass'n of American Publishers, Ass'n of American University Presses, College Art Ass'n., Latin American Studies Ass'n, Middle East Studies Ass'n, Nat'l Coalition Against Censorship, in support of Plaintiffs-Appellants.).

Before FEINBERG, NEWMAN, and RAGGI, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal concerns a First Amendment challenge to the denial of a visa. Three organizations, Plaintiffs-Appellants the American Academy of Religion ("AAR"), the American Association of University Professors ("AAUP"), and PEN American Center, appeal from the December 20, 2007, decision of the District Court for the Southern District of New York (Paul A. Crotty, District Judge), granting summary judgment to then-Defendants-Appellees Michael Chertoff, former Secretary of the Department of Homeland Security ("DHS"), and Condoleeza Rice, former Secretary of State, sued in their official capacities. The organizations alleged that the denial of a visa to Tariq Ramadan, an Islamic scholar, violated their First Amendment right to have Ramadan share his views with the organizations and with the public in this country. The Supreme Court has recognized a First Amendment right to "hear, speak, and debate with" a visa applicant. See Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Ramadan is also a Plaintiff-Appellant, but because he has no constitutional right to a visa, see id. at 762, 92 S.Ct. 2576, he is what the organizational plaintiffs in Mandel called a "symbolic" plaintiff. See id.

The Government contends that the visa was properly rejected on the ground that Ramadan's contributions to a charity, the Association de Secours Palestinien ("ASP"), which provided some financial support to Hamas, rendered him inadmissible under subsection 212(a)(3)(B)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(3)(B)(i)(I) (2006),1 for having "engaged in a terrorist activity" by providing "material support," § 1182(a)(3)(B)(iv)(VI)(dd), to a "terrorist organization," § 1182(a)(3)(B)(vi)(III), i.e., ASP.

We conclude that the District Court had jurisdiction to consider the claim, despite the doctrine of consular nonreviewability; 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; the knowledge requirement of the statute required the consular officer to find that Ramadan knew his contributions provided material support; and the consular officer was required to confront Ramadan with the allegation against him and afford 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. Finally, exercising the limited review permitted by Mandel, we conclude that the record does not establish that the consular officer who denied the visa confronted Ramadan with the allegation that he had knowingly rendered material support to a terrorist organization, thereby precluding an adequate opportunity for Ramadan to attempt to satisfy the provision that exempts a visa applicant from exclusion under the "material support" subsection if he "can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization." § 1182(a)(3)(B)(iv)(VI)(dd). We therefore remand for further proceedings.

Background

The statutory framework. The INA renders inadmissible, and therefore ineligible for a visa, see § 1182(a), an alien who has "engaged in a terrorist activity." § 1182(a)(3)(B)(i)(I). To "engage in terrorist activity" is defined to include:

(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including ... funds ... —

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or

(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

§ 1182(a)(3)(B)(iv)(VI) (emphasis added).2 Prior to 2005, when the REAL ID Act of 2005 ("REAL ID Act"), Pub.L. No. 109-13, Div. B, 119 Stat. 231 (2005), was enacted, clause (vi)(III) defined "terrorist organizations" to mean, in addition to organizations formally designated as a terrorist organization,3 an organization "that is a group of two or more individuals, whether organized or not, which engages in the activities described in subclause (I), (II), or (III) of clause (iv)." 8 U.S.C. § 1182(a)(3)(B)(vi)(III) (Supp. I 2001). Then and now, these three subclauses defined to "engage in terrorist activity" to mean "(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity," "(II) to prepare or plan a terrorist activity," and "(III) to gather information on potential targets for terrorist activity." 8 U.S.C. § 1182(a)(3)(B)(iv)(I), (II), (III) (Supp. I 2001); 8 U.S.C. § 1182(a)(3)(B)(iv)(I), (II), (III) (2006). Thus, prior to 2005, an organization qualified as a so-called undesignated terrorist organization only if it committed, planned, or gathered information for terrorist activities.

In 2005, the REAL ID Act amended clause (vi)(III) to broaden the definition of an undesignated terrorist organization to include an organization "which engages in ... the activities described in subclauses (I) through (VI) of clause (iv)." See REAL ID Act § 103(c) (emphasis added). By including subclause (VI) within the subclauses cross-referenced by clause (vi)(III), the amendment defined undesignated terrorist organizations to include those organizations that not only directly committed, planned, or gathered information for terrorist activities, but also indirectly supported such activities by affording "material support," including funds, to a terrorist organization. See § 1182(a)(3)(B)(iv)(VI).

Facts of Ramadan's visa applications. Ramadan is a well-known Swiss-born Islamic scholar whose work focuses on the integration of Muslim beliefs with Western European culture and society. Before August 2004, he traveled regularly to the United States, giving lectures at institutions such as Harvard and Princeton and to the State Department, and attending meetings and conferences. As a Swiss citizen, Ramadan was eligible to participate in the Visa Waiver Program, see § 1187, which permits citizens of certain countries to visit the United States for limited periods without obtaining a visa. Thus, Ramadan did not need to apply for a visa to enter the United States for these short engagements.

In January 2004, Ramadan accepted a tenured teaching position at the University of Notre Dame. Notre Dame submitted an H-1B visa on Ramadan's behalf, which was approved in May 2004. Ramadan made arrangements for the move, scheduled for early August 2004, but on July 28, 2004, the United States Embassy in Bern revoked his visa without providing him an explanation. In response to press inquiries, a DHS spokesperson stated that the basis for the revocation was a provision of the INA that then permitted exclusion of prominent individuals who endorse or espouse terrorist activity.4 See 8 U.S.C. § 1182(a)(3)(B)(i)(VII) (2000). The Government later denied that this "endorse or espouse" provision provided the grounds for the revocation.

The consulate advised Ramadan that he could re-apply for a visa. Notre Dame accordingly filed a second H-1B visa petition on October 4, 2004. By December 13, 2004, DHS had not yet acted on the second petition, and on that date Ramadan resigned from the position at Notre Dame. On December 21, 2004, having been informed about the resignation, DHS revoked the renewed H-1B petition. After this revocation, Ramadan could no longer take advantage of the visa waiver program that had authorized his previous temporary entries. See 8 U.S.C. § 1187(a)(9) (2006).

On September 16, 2005, Ramadan applied for a B visa to enter the United States for a short period of time to attend conferences, including events sponsored by Plaintiffs-Appellants AAR and AAUP. See Affidavit of Tariq Ramadan ¶ 28 (Mar. 10, 2006) ("Ramadan Aff. I"). [A 51] According to Ramadan, he was interviewed by consular and DHS officials...

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