Federal Appeals Court Rules In Favor Of U.S. Organizations That Challenged Exclusion Of Prominent Muslim Scholar

Affiliate: ACLU of New York
July 17, 2009 12:00 am

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NEW YORK – A federal appeals court today found that the U.S. government had not adequately justified its denial of a visa to a Swiss professor and leading scholar of the Muslim world. The decision, which reverses a ruling of a lower federal court, comes in a case in which the American Civil Liberties Union contended that the government’s exclusion from the U.S. of Professor Tariq Ramadan violated the First Amendment rights of organizations inside the United States that had invited Ramadan to meet with and speak to their members.

In today’s ruling, the U.S. Court of Appeals for the Second Circuit found the First Amendment rights of U.S. organizations are at stake when foreign scholars, artists, politicians and others are excluded, quoting from a 1972 Supreme Court ruling in Kleindienst v. Mandel that the organizations have a First Amendment right to “‘hear, speak, and debate with’ a visa applicant.” The appeals court also found that the government cannot exclude an individual from the U.S. on the basis of “material support” for terrorism without affording him the “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.”

“We’re very pleased with the appeals court’s decision. The court properly found that the exclusion of foreign scholars like Ramadan implicates the First Amendment rights of Americans, that the judiciary has a role in policing the government’s exclusion of foreign scholars, and that in this case the government simply has not offered a constitutionally adequate justification for its actions,” said Jameel Jaffer, Director of the ACLU National Security Project, who argued the case before the appeals court. “As we’ve been emphasizing from the outset of this case, the exclusion of foreign scholars on ideological grounds skews and impoverishes academic and political debate inside the United States. The government should not be using the immigration laws as instruments of censorship.”

Ramadan was invited to teach at the University of Notre Dame in 2004 but the U.S. government revoked his visa, citing a statute that applies to those who have “endorsed or espoused” terrorism. In January 2006, the ACLU and the New York Civil Liberties Union filed a lawsuit challenging Professor Ramadan’s exclusion on behalf of the American Academy of Religion, the American Association of University Professors and the PEN American Center. After the ACLU filed suit, the government abandoned its claim that Ramadan had endorsed terrorism, but it continued to defend his exclusion on the grounds that he had made small donations to a Swiss charity that the government alleged had given money to Hamas.

“I am very gratified with the court’s decision,” said Ramadan. “I am eager to engage once again with Americans in the kinds of face-to-face discussions that are central to academic exchange and crucial to bridging cultural divides.”

The case will now be sent back to the lower court for further proceedings, but the ACLU expressed hope that the Obama administration would end Professor Ramadan’s exclusion without further litigation.

“Given today’s decision, we hope that the Obama administration will immediately end Professor Ramadan’s exclusion,” said Melissa Goodman, staff attorney with the ACLU National Security Project. “We also encourage the new administration to reconsider the exclusion of other foreign scholars, writers and artists who were barred from the country by the Bush administration on ideological grounds.”

Attorneys on the case, now called Academy of Religion v. Napolitano, are Jaffer, Goodman, Lucas Guttentag and Judy Rabinovitz of the ACLU, Arthur Eisenberg of the NYCLU, and New York immigration lawyer Claudia Slovinsky. The lawsuit was originally brought against then-Department of Homeland Security Secretary Michael Chertoff and then-Secretary of State Condoleezza Rice.

More information about the Ramadan case and the ACLU’s separate lawsuit concerning the exclusion of South African scholar Adam Habib is available online at: www.aclu.org/exclusion

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