Second Circuit Confirms That Consular Decisions Are Reviewable
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Notre Dame was granted on May 5, but in late July the visa was revoked by the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not timely adjudicated and was withdrawn.
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.
"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
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).
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."
End Notes(1) Ramadan v Napolitano, previously cited as Am Acad of Religion v Napolitano, Docket 08-0826-cv, US Court of Appeals for the Second Circuit, 2009 US App LEXIS 15786, March 24 2009, heard, July 17 2009, decided; see Am Acad of Religion v Chertoff, 463 F Supp 2d 400, p 58 (SDNY 2006), reversed.
(2) 212(a)(3)(B)(i)(I) of the Immigration and Nationality Act, 8 USC § 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).
(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.
(5) 408 US 753, 92 S Ct
2576, 33 L Ed 2d 683 (1972).
"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."
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.
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