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Freedom to Share: The Tariq Ramadan Case
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Anyone who has ever invited a friend to come to the U.S. has bumped into the ruthless bureaucracy of the immigration system. The process often works something like this:
Consular officer: I regret that your visa application was denied, Mr. Jonathan.
Jonathan: Why?
Consular officer: Because I think you plan to stay in the U.S.
Jonathan But I have a wife and two kids here in Djibouti, and plenty of money.
Consular officer: The decision has been made. Next in line, please.
Jonathan: Can’t I appeal?
Consular officer: You can submit another visa application. Next, please.
Jonathan: And who will review it?
Consular officer: Little ol’ me.
Therein lies the central problem with the immigration system. Administered by Congress, consular officers enjoy almost unfettered discretion to deny applicants entry into the U.S. An officer could cite any number of reasons to deny an applicant, including broad ‘ideological exclusion’ provisions which can preclude applicants from entering the country because of their unfavorable political views. And the discretion became much broader with the enactment of the USA Patriot Act. Not only have such provisions been strengthened within the Immigration and Naturalization Act (INA), they now allow the denial of visas for applicants who have provided ‘material support’ to terrorist organizations. No one disputes that terrorists should be kept out of the country. This is good for national security. But what if the consular officer simply got it wrong? Shouldn’t there be a review of the decision? As it stands, no.
These issues were before the 2d Circuit Court of Appeals in American Academy of Religion v. Napolitano in Manhattan today. And the facts were much worse. Tariq Ramadan is a Swiss born Muslim scholar who had been offered a tenured professorship at the University of Notre Dame. Ramadan was known for his strong condemnation of terrorism, but also his criticism of U.S. foreign policy in the Middle East, offering an insightful, nuanced view of foreign relations. However, his visa application was denied several times. First, his application was denied on the basis of ideological exclusion provisions and later, after human rights activists cried foul, for his having allegedly provided material support to a terrorist organization. His cause is being championed by the PEN American Freedom to Write Project, the American Academy of Religion, and the ACLU, among others.
The government argued in court that things should remain as they are. The system works and should not be changed. Congress enjoys broad authority to control the immigration laws and procedures of this country, and this authority entails wide discretion on the part of consular officers. Immigration procedures allow for any denied applicant two remedies: (1) to reapply for a visa; and (2) to seek a waiver. However, no hearing is allowed nor should judicial review be required because the courts will be flooded with applicants. An applicant may petition the Attorney General of the U.S. for a waiver, which he can deny for ‘bona fide’ and ‘legitimate’ reasons. Don’t rock the boat. Keep ‘em out, and keep us dry.
Such arguments may have sufficed under the previous Presidential administration, which took broad steps to curtail basic freedoms in the cause of fighting terrorism. But this is a new administration. The hope is that there will be a reconsideration of these powers. And nowhere is this more important than in the movement of ideas across borders — ideas that will help us seek sustainable solutions to perceived ideological differences. Scholars must be able to move for this to happen. And so must writers. Pablo Naruda, Gabriel García Marquez, and others have famously been prevented from contributing to the cultural and intellectual life of the U.S. owing to ‘ideological exclusion’ provisions in the immigration branch. This should stop.
Oral argument for Ramadan was conducted by Jameel Jaffer, Director of the ACLU National Security Program. Jaffer argued several key points. The Supreme Court notoriously closed the door on absolute discretion by consular staff in the case Kleindienst v. Mandel, U.S. 408 U.S. 753 (1972). Some review must therefore be allowed. Also, Ramadan was initially excluded on an ideological basis. Only later, after two visa denials, did the government prevent his entry for ‘material support’ of a terrorist organization. This material support was fully disclosed by Ramadan in his application in a time when the terrorist organization was not yet listed as one. It would be retroactive, Jaffer argued, to consider his donation of $1400 to be ‘material support’ when the organization was legal at the time. Ramadan didn’t know that it was a terrorist organization at the time, and the government didn’t know either. Because he was not given an opportunity to challenge the donation, he had no opportunity to present clear and convincing evidence to refute the consular officer’s decision. The government had changed its tune from ‘ideological exclusion’ to ‘material support’ – and there was no means for Mr. Ramadan to address this. A final — and valid point — was that the denial of visas to scholars such as Ramadan has a ‘chilling effect’ upon other scholars from attempting to come to the U.S. Denying Mr. Ramadan will discourage other scholars from applying. This has already happened, with Nobel Prize winner J.M. Coetzee withdrawing an application for fear of a similar denial.
Importantly, Jaffer did not argue that all people should be allowed to enter the U.S. as scholars or writers. A clear line is drawn when such applicants have incited violence or hatred. This line is a firmly entrenched tenet of 1st Amendment law and, by extension, ‘hate crimes’ acts.
What should happen
It is impossible to predict the outcome of American Academy of Religion v. Napolitano. Judges often argue both sides in their inquiries, having already formed an opinion before they entered the courtroom. At other times they are genuinely receptive to the process. What clearly emerged is that no one in the room really understood the Immigration and Naturalization Act. It is that confusing. (I know — I wrote an article on drug laws and immigrants that left me sleepless for a week.) So how can a typical applicant be expected to understand it if our country’s top judges can’t? Former president George W. Bush at least got that part right: the INA needs to be reformed.
The point is that if, as the Obama administration intones, the world has changed, then our immigration procedures should too. We can no longer hide under the USA Patriot Act. We need to ‘unclench the fist’ of our consular offices around visa applications by writers and scholars looking to share their knowledge with America.
–Deji Olukotun
Would you like to know more?
Visit the ACLU site dedicated to American Academy of Religion v. Napolitano here.
Visit the PEN America Freedom to Write Project here.
Visit a profile of Tariq Ramadan by human rights Professor Ian Baruma here.
Read a statement by Tariq Ramadan about his views about Islam and anti-semitism, among other issues (in French): here.
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South Africa is suffering from widespread xenophobic violence. Read a letter to the editor of The New York Times here.
