Religious Freedom Inadmissibility Ground Invoked For The First Time Against Narendra Modi
On March 18, 2005, the U.S. Department of State issued a decision to deny a visa to the democratically elected Chief
Minister of Gujarat, India, Narendra Modi. Mr. Modi, an important figure in the Hindu
nationalist Bharatiya Janata Party (BJP), is one of the most divisive politicians in India –
loved by Hindu nationalists and despised by others who uphold India’s secular ideals. The
decision to deny his visa was largely based on his alleged role in the riots that occurred in
Gujarat between February and May of 2002. The riots were spawned after an attack by Muslims on a
train in Godhra that resulted in the deaths of 58 Hindus.1 Hindu
mobs responded to this attack through violent riots, resulting in the deaths of some 2,000
Muslims and the displacement of some 100,000 Muslims.2
It has been alleged that the riots were supported and possibly encouraged by Mr. Modi, his
government and the police in Gujarat. Many have asserted that Mr. Modi personally instructed
police officers to allow “peaceful” reactions to the train attack.3
As a result of this instruction, police officials told victims of the riots that they had not
been instructed to help them.4 In spite of these allegations,
however, Mr. Modi has never been indicted or convicted for his involvement or encouragement in
the Gujarat riots. India’s National Human Rights Commission implicated Mr. Modi’s government,
but not him specifically, holding that there “there was a comprehensive failure on the part of
the State Government to control the persistent violation of the rights to life, liberty, equality
and dignity of the State.5 It further indicated that the
government’s response to the violence was “often abysmal or even non-existent, pointing to the
gross negligence in certain instances or, worse still, as was widely believed, a complicity that
was tacit if not explicit.” 6 The Indian Supreme Court has also
implicated Mr. Modi’s government by transferring criminal prosecutions of persons connected to
the riots out of counts in Gujarat.
Still, even with these findings, Mr. Modi has never been officially charged for his role in the
riots. The closest documents assigning him blame are the U.S. Department of State’s 2002
Report on Human Rights Practices and International Religious Freedom Report.7 Both reports specifically mention the allegations brought against Mr.
Modi in the Gujarat riots, and it was these reports that could have served as the basis for the
denial of Mr. Modi’s admission to the United States.
I. Analysis of Section 212(a)(2)(G) of the Immigration and Nationality Act (INA)
Mr. Modi sought admission to the United States after having received an invitation as the keynote speaker for an event organized by the Asian-American Hotel Owners Association (AAHOA) as well as other meetings organized by the Indian-American Community in the U.S. He hoped to enter the country on either a diplomatic visa or his already issued B1/B2 tourist/business visa. The diplomatic visa was denied because according to INA §101(a)(15)(A), such visas are granted to those coming to the U.S. for official government business. A speech for the AAHOA does not qualify as official government business. This decision has not been met with controversy. The decision to deny his B1/B2 visa is actually what has attracted so much publicity in recent days. This denial was based on §212(a)(2)(G) of the Immigration and Nationality Act (INA).
Section §212(a)(2)(G) of the INA, which was first enacted in 1998, has never been invoked against
a public official prior to the decision to revoke Mr. Modi’s visa. It maintains that an
individual is inadmissible to the United States if “while serving as a foreign government
official, was responsible for or directly carried out, at any time, particularly severe
violations of religious freedoms.” Violations of religious freedoms are defined by the
International Religious Freedom Act, as any of the following acts committed on account of an
individual’s religious belief or practice: “detention, interrogation, imposition of an onerous
financial penalty, forced labor, forced mass resettlement, imprisonment, forced religious
conversion, beating, torture, mutilation, rape, enslavement, murder and execution.”8
Prior to December 17, 2004, there was a two year statute of limitations attached to this ground
of inadmissibility. So, for example, had Narendra Modi sought admission to the U.S. in November
2004, he would not have been denied a visa under §212(a)(2)(G) because the alleged violations of
religious freedom were committed more than two years prior to admission. The Office of Senator
Patrick Leahy (D-Vermont), who introduced the amendment to remove the statute of limitation,
prepared a section-by-section analysis of law.9 The analysis
rationalized the removal of the statute of limitations because it was “not consistent with the
strong stance of the United States to promote religious freedom throughout the world.
Individuals who have commit particularly severe violations of religious freedom should be held
accountable for their actions and should not be admissible to the United States regardless of
when the conduct occurred.”10
Under this new broader statute, Mr. Modi was found inadmissible for being a government official
responsible for violations of religious freedom. It is likely that the violations referred to
are the murders, beatings and mass relocations of Muslims in Gujarat during the riots. The
decision has been met with a tremendous amount backlash. Critics claim that the decision is
baseless because Mr. Modi was never officially charged for violations of religious freedom.
While it is true that Mr. Modi has never been officially charged for these acts; in the view of
the authors, it was reasonable for the State Department to deny the visa because it was based on
ample evidence against Mr. Modi. U.S. law allows the State Department to make a finding of
inadmissibility based on a reasonable belief and without there being an actual conviction on the
individual’s record. For example, a person can be found inadmissible if the consular officer
knows or has reason to believe that the individual was a trafficker of controlled
substances.11 The consulate has no duty to provide due process for
a visa applicant who desires entry to the U.S. It also is not required to conduct a “pseudo”
hearing to determine if the act was actually committed. U.S. consulates all over the world deny
thousands of visas every day, without giving the applicants due process rights or opportunities
to contest the denials.
II. Factual Basis for Inadmissibility Finding
Critics of the decision should note that any finding of inadmissibility under this ground cannot
be made in haste. According to the Foreign Affairs Manual, consular officers must seek an
advisory opinion if they “reasonably believe” the applicant was responsible for severe violations
of religious freedom.12 The advisory opinion will be drafted by the
country desk and any relevant offices at the State Department, assessing whether the individual
in question was responsible for the violations. In other words, a visa denial on this basis
involves a great deal of research and takes into account multiple factors. It is not based upon
an actual conviction or admission, but rather an in depth assessment of the situation, resulting
in a reasonable belief that the action was committed.
In this case, such a reasonable belief existed. According to Len Scensy, Deputy Director, Office
of Public Diplomacy, State Department Bureau of South Asian Affairs, the decision was made after
looking at the law, the findings of the Indian Human Rights Commission, and the U.S. State
Department Reports. Mr. Scensy in an interview with News India Times, indicated that
these reports “say the same thing.” They are consistent with each other and take into
consideration the overwhelming number of allegations against Modi. Therefore, it is safe to
assume that it was reasonable to believe that Mr. Modi was responsible for the violations of
religious freedom against Muslims in Gujarat. Mr. Modi was explicitly implicated in U.S. reports
on the riots and while the Indian Human Rights Commission never explicitly named him, it did
indicate that his government had tacit complicity if not explicit involvement in the
III. Consequences of the Decision
The decision to deny Mr. Modi a visa is not without its consequences. This was the first time
§212(a)(2)(G) has been invoked by the State Department, and it is likely that it will use it
again against other government officials, former and present, who seek entry to the U.S. So, for
example, in the case of India, former Congress party officials implicated in the
killings of Sikhs after Indira Gandhi’s assassination in 1984 may find themselves inadmissible to the
United States on this ground.
A decision under §212(a)(2)(G) is final and there is no room for appeal in a U.S. Court.
Government officials found subject to this ground may find themselves permanently inadmissible to
the U.S. The only possibility they have for admission is a discretionary waiver, granted by the
Secretary of the Department of Homeland Security, under §212(d)(3). Such a waiver, however, may
cause these officials further difficulties as the Secretary can prescribe conditions to the
admission. For example, he/she may require an admission to the crimes committed. Such an
admission is clearly deadly as it would open the floodgates to both criminal and civil liability
under domestic and international law.
1 U.S. DEPT. OF STATE, INTERNATIONAL RELIGIOUS FREEDOM REPORT: INDIA
(2002); U.S. DEPT. OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: INDIA (2002).
5 National Human Rights Commission, Order on Gujarat, *64 (31 May
6 Id. at 24.
7 Supra note 1.
8 22 USC §6402.
9 Office of Sen. Patrick Leahy, Anti-Atrocity Alien Deportation Act of 2003: Section-By-Section Analysis, available at http://leahy.senate.gov/press/200303/032603b.html.
10 The December 17, 2004 amendment also removed a provision which made the spouse and children of a government official inadmissible under this ground.
11 INA §212(a)(2)(C)(ii).
12 9 FAM 40.26 N2.1.
13 Supra note 5, at 24.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices primarily in the area of immigration law. She is a graduate of the College of the Holy
Cross and Case Western Reserve School of Law, where she was the Editor-in-Chief of the Journal of International Law. Ms. Reichard is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth. The views expressed in this article do not necessarily represent the views of International Partners in Mission. She is admitted to the practice of law in the state of New York.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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