Wednesday, July 29, 2009

Islamic scholar gets another chance to challenge visa denial

An Islamic scholar was denied a visa to teach in the United States because he donated money to an organization that had supplied funds to Hamas. The government thought the scholar gave "material support" to a terrorist organization. Not so fast.

The case is American Academy of Religion v. Napolitano, decided on July 17. The government can deny your visa application if you give "material support" to a terrorist organization. Think it's a simple inquiry? It's not. If things were that simple, we wouldn't need courts, judges or lawyers.

The scholar is Tariq Ramdan, "a well-known Swiss-born Islamic scholar whose work focuses on on the integration of Muslim beliefs with Western European culture and society. Before 2004, he traveled regularly to the United States, giving lectures at institutions such as Harvard and Princeton and to the State Department." Notre Dame hired him as a tenured teacher in January 2004, but his visa was held up, according to the Los Angeles Times, because he "endorse[d] or espouse[d] terrorist activity." He resigned the teaching position in December 2004 after the Department of Homeland Security dilly-dallied on his renewed visa petition. The government then denied Ramadan a visa to temporarily visit the United States to attend conferences. Hence the lawsuit, which has First Amendment implications.

So what was the problem? Ramadan had admitted that he gave about $1,300 to Association de Secours Palestinien (ASP). In August 2003, the Treasury Department designated ASP as a terrorist organization because it gave money to Hamas. Under the law, an applicant can be denied entry into the United States if he "commit[s] an act that the actor knows, or reasonably should know, affords material support, including ... funds ... to a terrorist 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." In order to figure out exactly what this law means, the Court of Appeals has to engage in extensive statutory analysis.

The Court of Appeals rules in Ramadan's favor. While the Second Circuit (Newman, Feinberg and Raggi) notes that there is no dispute that ASP gave Hamas money and that Hamas is a terrorist organization, the Court of Appeals interprets the statute to require that Ramadan knew or had reason to know "that his donations to ASP constituted material support to a terrorist organization because it had funded Hamas." So it is not enough to show that Ramadan gave money to ASP. He had to knowingly support a terrorist organization (or have reason to believe that he was doing so). Since Ramadan made his contributions between 1998 and 2002, before the government designated ASP as a "Specially Designated Global Terrorist," he could prevail on this point.

Under this framework, the government has to confront Ramadan with the claim that he was in violation of the law, and then Ramadan has a chance to defend himself. This does not require a "mini trial." "It will suffice for the consular officer to state the knowledge alleged to render the visa applicant ineligible and then afford the applicant a reasonable opportunity to present evidence endeavoring to meet the 'clear and convincing' negation of knowledge." The government now has the opportunity to assure the trial court that it satisfied this legal standard.

But there is one final point. Under Kleindienst v. Mandel, 408 U.S. 753 (1972), a Supreme Court ruling from the Burger Court era, courts may not "look behind" exclusion decisions unless there is a well supported allegation of bad faith on the government's part. This gives the government much discretion in this kind of decision-making.

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