American Academy of Religion et al. v. Napolitano et al. (Challenging ideological exclusion under the Patriot Act)

This case involves the government’s use of certain provisions of the USA Patriot Act in order to deny individuals’ visa requests. The symbolic plaintiff in this lawsuit, Tariq Ramadan, is a Muslim scholar of Swiss national origin. In February 2004, Ramadan was offered a tenured teaching position at the University of Notre Dame. However, in July 2004, the government revoked Ramadan’s nonimmigrant visa, thus preventing him from (among other things) teaching at the university. According to a government official, his visa was revoked because of Section 411(a)(1)(A)(iii) of the PATRIOT Act, otherwise known as the “ideological exclusion provision.” The provision allows the government to reject any alien who uses his or her position to promote or endorse terrorist activity.

The plaintiffs challenged the provision on the grounds that it violates the Fifth Amendment and the Administrative Procedures Act. In addition, plaintiffs argued that the government’s use of the provision also violated the First Amendment rights of numerous U.S. citizens; the government’s actions prevented Ramadan from teaching, thus preventing U.S. citizens from hearing his views.

On Jan. 25, 2006, the NYCLU, in conjunction with the ACLU, filed a motion for a preliminary injunction seeking declaratory and injunctive relief. However, when Congress amended the Patriot Act, it chose to remove the ideological exclusion provision; therefore, the government could not use the ideological exclusion provision to deny Ramadan’s visa request. On June 23, 2006, the District Court ordered the government to decide on Ramadan’s visa status within ninety days of the decision. However, in September 2006, the government again denied Ramadan’s visa application. This time, the government denied the visa on the grounds that Ramadan’s actions constituted “material support” for a terrorist organization. In response to the government’s decision, the plaintiffs filed an amended complaint on Feb. 2, 2007. The plaintiffs, in addition to asking the Court to declare the ideological exclusion provision unconstitutional, asked the Court to declare the material support provision of the Patriot Act in violation of the First Amendment and Administrative Procedures Act.

On Feb. 23, 2007, the plaintiffs moved for summary judgment. U.S. District Judge Paul A. Crotty ruled on Dec. 20, 2007 that Ramadan could be denied entry into the U.S. based on small donations he made between 1998 and 2002 to a Swiss charity that provides aid to Palestinians. The organization operates lawfully in Europe to this day, but the Bush administration claims the organization has supported Hamas. The case was appealled before the U.S. Court of Appeals for the Second Circuit.

On July 17, 2009, the Second Circuit reversed the lower court, finding that the U.S. government had not adequately justified its denial of Ramadan’s visa application. The appeals court 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.”

The case has been sent back to the lower court for further proceedings. In January 2010, U.S. Secretary of State Hillary Clinton signed an order effectively ending Ramadan’s exclusion. For more information, see the ACLU’s web feature on this lawsuit.

S.D.N.Y, Index No. 06-588 (direct)