Court Remands Case Denying Visa to Muslim Scholar
Tariq Ramadan is a 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 U.S., giving lectures at institutions such as Harvard and Princeton and to the Department of State, and attending meetings and conferences. As a Swiss citizen, Ramadan was eligible to participate in the Visa Waiver Program (VWP). Thus, Ramadan did not need to apply for a visa to enter the U.S. 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 petition on Ramadan’s behalf, which was approved in May 2004. Ramadan made arrangements for the move, scheduled for early August 2004. On July 28, 2004, however, the U.S. Embassy in Bern revoked his visa approval without an explanation. In response to press inquiries, a Department of Homeland Security (DHS) spokesperson stated that the basis for the revocation was a provision of the Immigration and Nationality Act (INA) that then permitted exclusion of prominent individuals who endorse or espouse terrorist activity. 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, the 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, the DHS revoked the renewed H-1B petition. After this revocation, Ramadan could no longer take advantage of the VWP that had authorized his previous temporary entries.
On September 16, 2005, Ramadan applied for a B visa to enter the U.S. for a short period of time to attend conferences. According to Ramadan, he was interviewed by consular and DHS officials at the U.S. Embassy in Bern, Switzerland, in 2005. He was questioned about his political views and associations. Ramadan informed officials that, between 1998 and 2002, he had donated approximately $1,336 to the Association de Secours Palestinien (ASP), which was designated by the U.S. Treasury Department as a terrorist organization due to its funding of Hamas. Ramadan received a telephone call on September 19, 2006, and a letter shortly thereafter, informing him that the consulate had denied his petition because he had provided material support to a terrorist organization. Consular officials based this decision on a security advisory opinion, Ramadan’s interviews, and “additional information provided by Washington.”
On January 25, 2006, plaintiffs filed suit in the District Court challenging Ramadan’s ongoing exclusion from the U.S. The three plaintiff organizations (the American Academy of Religion, the American Association of University Professors, and the PEN American Center) appealed the denial of a visa to Ramadan on the grounds that it violated their First Amendment right to have Ramadan share his views with the organizations and with the public. The U.S. government contended that the visa was properly rejected on the ground that Mr. Ramadan’s contributions to the ASP, which provided some financial support to Hamas, rendered him inadmissible. The government prevailed, and the plaintiffs filed an appeal with the U.S. Court of Appeals for the Second Circuit.
On July 17, 2009, the court of appeals remanded the case to the district court for further proceedings. Among other things, the Second Circuit concluded that the record did 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 statutory 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.”
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