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Second Circuit Confirms That Consular Decisions Are Reviewable

by Rami D. Fakhoury

The Second Circuit Court of Appeals recently issued a milestone civil liberties and immigration decision in its ruling in Ramadan v Napolitano.¹ The case has potentially far-reaching consequences for immigration and consular matters in its reassertion that federal judges may review consular decisions - an area that has often been held out of bounds to the courts.

Facts

Tariq Said Ramadan is a Swiss academic and noted scholar of reformist Islam views. In February 2004 he accepted the tenured position of Henry R Luce professor of religion, conflict and peacebuilding at the University of Notre Dame. His petition for a H-1B visa to teach at Notre Dame was granted on May 5, but in late July the visa was revoked by the State Department before he attempted entry. A subsequent H-1B visa petition was not timely adjudicated and was withdrawn.

In August 2004 US Immigration and Customs Enforcement issued a statement citing the "ideological exclusion provision" of the USA PATRIOT Act as grounds for Ramadan's visa revocation.

On May 11 2005 the REAL ID Act was signed into law by President Bush. That law amended the PATRIOT ACT by expanding the category of aliens rendered inadmissible for terrorist activities to include those who "knowingly" but indirectly supported such activities by affording "material support," including funds, to a terrorist organization.²

In September 2005 Ramadan filed an application for a B-1 visa to allow him to participate at speaking engagements with various universities and scholarly organizations in the United States. The government failed to issue any decision on Ramadan's visa application, so the American Civil Liberties Union (ACLU) filed a lawsuit on January 25 2006 against the US government on behalf of the American Academy of Religion and two other academic groups.

The ACLU argued that the ideological exclusion violated Ramadan's First and Fifth Amendment rights, and that US Customs and Immigration Services and the State Department had additionally violated the Administrative Procedures Act by failing to adjudicate the visitor's visa application. Significantly, the complaint was later amended to include violation of the First Amendment right of US groups to meet and hear him inside the United States. On June 23 2006 the US District Court for the Southern District of New York ordered the government to issue its decision on Ramadan's pending B-1 visa application within 90 days.

On September 19 2006 the State Department formally denied Ramadan's visa application. A department press release said:

"A U.S. consular officer has denied Dr. Tariq Ramadan's visa application. The consular officer concluded that Dr. Ramadan was inadmissible based solely on his actions, which constituted providing material support to a terrorist organization."

Between December 1998 and July 2002, Ramadan had given several money donations to two European-based charity organizations assisting Palestinians. In August 2003 the US Treasury retroactively designated these groups terrorist funding organizations with alleged ties to Hamas.³

In denying the B-1 visa, the US Embassy alleged that Ramadan "reasonably should have known" that the charities were connected to Hamas. The Washington Post quoted Ramadan's response: "How should I reasonably have known of their activities before the U.S. government itself knew?"⁴

The district court ruled in December 2007 that the government's justification for denying Ramadan's visa was "facially legitimate and bona fide", and found that the court "has no authority to override the Government's consular decision".

On July 17 2009 the Second Circuit overturned that decision, ruling that the courts retain limited jurisdiction under the Supreme Court case Kleindienst v Mandel.⁵ The three-judge panel in New York agreed that the First Amendment rights of certain parties to the plaintiffs' suit had been violated and further held that government 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. . . [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).

Comment

Ramadan is an important constitutional decision for several reasons. As a First Amendment case, it reaffirms that US courts have oversight over the bounds of power wielded by executive agencies to proscribe association and communication, even where that involves an alien accused of being associated with listed terrorist groups. US citizens have a right to hear the views of others from around the world, even those the State Department has seen fit to ban from receiving visas, and those persons may not be arbitrarily denied visas.⁶

Both the district court and the Second Circuit found that consuls do not have unrestrained discretion to deny visas where this may block those coming from abroad to meet with and exchange views with US persons. While the appeals court allowed the retroactivity ruling stand,⁷ both decisions cite Mandel for the proposition that a State Department official may only "exercise [the power to exclude an alien] negatively on the basis of a facially legitimate and bona fide reason".

More directly, the ruling goes to essential fairness and due process, and reasserts the right of persons accused to know and respond to accusations, even in alleged terrorism cases. The Second Circuit follows the Supreme Court's Hamdan and Padilla decisions, reasserting judicial independence to rule on issues of essential fairness and due process to be accorded to persons accused in terrorism-related matters. The Ramadan decision states:

the knowledge requirement of the statute required the consular officer to find that Ramadan knew his contributions provided material support; 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; and the record was unclear whether the consular officer had done so.⁸

The decision further departs for the extreme deference that the federal courts have shown in issues arising from visa decisions, a subject matter the courts had all but abdicated to State Department discretion. The decision stated: "The Court of Appeals concludes that the District Court had jurisdiction to consider the claim, despite the doctrine of consular nonreviewability."

Finally, and perhaps most importantly from a standpoint of re-establishing the United States' reputation for justice, it signals to the world that even stigmatized non-US persons can get a fair hearing in US courts and may even eventually prevail.

(3) "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 [*9] 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)." Ramadan, ibid.

(4) Tariq Ramadan, "Why I'm Banned in the USA", Washington Post, October 1 2006; page B01.

(5) 408 US 753, 92 S Ct 2576, 33 L Ed 2d 683 (1972).

(6) "Mandel, which recognized that United States citizens could invoke federal court jurisdiction to challenge a visa denial on the ground that the denial may have violated their First Amendment right to receive information, a right articulated in Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969). See American Academy II, 2007 U.S. Dist. LEXIS 93424, 2007 WL 4527504, at *7-*10." Id at 15.

"To support retroactive application of the REAL ID Act, the Government relies on the effective date provision of the Act, section 103(d), which provides that its amendments 'shall apply to--(1) removal proceedings instituted before, on, or after the date of the enactment of this division' Id. at 32."

(7) "The Government acknowledges that, prior to enactment of the REAL ID Act in 2005, the 'material support' provision of the INA did not apply to aliens who provided funds to what the Government calls 'undesignated terrorist organizations' that in turn provided funds to terrorist organizations. See Brief for Defendants-Appellees at 33-34 n.*. It is undisputed that Ramadan's contribution of $1,336 to ASP, which in turn gave money to Hamas, occurred prior to 2005."

About The Author

Rami D. Fakhoury is the founding and managing member of the “AV” rated boutique Corporate and Business Immigration Law firm of the Fakhoury Law Group, P.C. His practice focuses on business-based employment immigration, particularly in the Information Technology, Engineering industry, Health care workers, investors, Academics and individuals of exceptional ability. Mr. Fakhoury has extensive experience in the areas of Corporate Immigration, and has worked as In-House Counsel for Syntel Corporation, a Fortune 1000 company in the Information Technology industry. In particular, his practice focuses on H, L, E, and O visas, Labor Certifications, Advance Degree Professionals, Multinational Executives and Outstanding Researchers and Professors. Mr. Fakhoury has represented clients at U.S. Consulates abroad and is an international lecturer and fellow for the Center for International Legal Studies (CILS) Mr. Fakhoury has served as a Speaker at the American Bar Association – International Law Section, International Bar Association (IBA), London, UK and Immigration Law teleconferences, ILW. Mr. Fakhoury is the Managing Editor of The Consular Processing Guide, ILW.COM (2009) and is also the Editor in Chief for US Immigration matters for the International Law Office (an International Bar Association and Ameri can Corporate Counsel partner) Mr. Fakhoury is a Member of the State Bar of Michigan; International Law Section; American Immigration Lawyers Association (AILA); International Bar Association; Immigration Law Committee; and Fellow, Center of International Legal Studies, Salzburg Austria; American Bar Association- International Section; TechAmerica-Immigration Policy Committee and Tech Serve, and TiE-Immigration Policy Forum- Michigan.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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