American Academy v. Napolitano

• Court: Court of Appeals for the Second Circuit
• Decided: July 17, 2009
• Docket: 08-0826-cv
• Status: Published

Opinion

08-0826-cv American Academy v. Napolitano

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2008

Heard: March 24, 2009 Decided: July 17, 2009 Docket No. 08-0826-cv

- - - - - - - - - - - - - - - - - - - - - - - AMERICAN ACADEMY OF RELIGION, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, PEN AMERICAN CENTER, and TARIQ RAMADAN, Plaintiffs-Appellants,

v.

JANET NAPOLITANO, in her official capacity as Secretary of the Department of Homeland Security, and HILLARY RODHAM CLINTON, in her official capacity as Secretary of State,* Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - -

Before: FEINBERG, NEWMAN, and RAGGI, Circuit Judges.

Appeal from the December 20, 2007, judgment of the United States

District Court for the Southern District of New York (Paul A. Crotty,

District Judge), granting summary judgment to Defendants-Appellees on

Plaintiffs-Appellants’ claim that the denial of a visa for Tariq

Ramadan, an Islamic scholar, violated the First Amendment rights of

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Janet Napolitano is automatically substituted for former Secretary of the Department of Homeland Security, Michael Chertoff, and Hillary Rodham Clinton, for former Secretary of State, Condoleeza Rice, as Appellees in this case. the Plaintiffs-Appellants. The visa was denied on the ground that

Ramadan’s contributions to a charity that had supplied funds to Hamas

were “material support” to a terrorist organization (the charity).

The Court of Appeals concludes that the District Court had

jurisdiction to consider the claim, despite the doctrine of consular

nonreviewability; the statutory provision expanding visa ineligibility

to those who contributed funds to an undesignated terrorist

organization before the provision was enacted was validly applied to

Ramadan; the knowledge requirement of the statute required the

consular officer to find that Ramadan knew his contributions provided

material support; the consular officer was required to confront

Ramadan with the allegation against him and afford him the subsequent

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; and the record was

unclear whether the consular officer had done so.

Vacated and remanded.

Jameel Jaffer, New York, N.Y. (Melissa Goodman, Nasrina Bargzie, Judy Rabino- vitz, Lucas Guttentag, American Civil Liberties Union Foundation, New York, N.Y.; Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, N.Y.; Claudia Slovinsky, New York, N.Y.; Leon Friedman, New York, N.Y., on the brief), for Plaintiffs-Appellants.

Davis S. Jones, Asst. U.S. Atty., New

-2- York, N.Y. (Michael J. Garcia, U.S. Atty., Kristin L. Vassallo, Sarah S. Normand, Asst. U.S. Attys., New York, N.Y., on the brief), for Defendants- Appellees.

(Charles S. Sims, Proskauer Rose LLP, New York, N.Y., for amici curiae American Ass’n for the Advancement of Slavic Studies, American Booksellers Foundation for Free Expression, American Studies Ass’n, Ass’n of American Law Schools, Ass’n of American Publishers, Ass’n of American University Presses, College Art Ass’n., Latin American Studies Ass’n, Middle East Studies Ass’n, Nat’l Coalition Against Censorship, in support of Plaintiffs-Appellants.)

JON O. NEWMAN, Circuit Judge.

This appeal concerns a First Amendment challenge to the denial of

a visa. Three organizations, Plaintiffs-Appellants the American

Academy of Religion (“AAR”), the American Association of University

Professors (“AAUP”), and PEN American Center, appeal from the December

20, 2007, decision of the District Court for the Southern District of

New York (Paul A. Crotty, District Judge), granting summary judgment

to then-Defendants-Appellees Michael Chertoff, former Secretary of the

Department of Homeland Security (“DHS”), and Condoleeza Rice, former

Secretary of State, sued in their official capacities. The

organizations alleged that the denial of a visa to Tariq Ramadan, an

Islamic scholar, violated their First Amendment right to have Ramadan

share his views with the organizations and with the public in this

-3- country. The Supreme Court has recognized a First Amendment right to

“hear, speak, and debate with” a visa applicant. See Kleindienst v.

Mandel, 408 U.S. 753 (1972). Ramadan is also a Plaintiff-Appellant,

but because he has no constitutional right to a visa, see id. at 762,

he is what the organizational plaintiffs in Mandel called a “symbolic”

plaintiff. See id.

The Government contends that the visa was properly rejected on

the ground that Ramadan’s contributions to a charity, the Association

de Secours Palestinien (“ASP”), which provided some financial support

to Hamas, rendered him inadmissible under subsection

212(a)(3)(B)(i)(I) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1182(a)(3)(B)(i)(I) (2006),1 for having “engaged in a

terrorist activity” by providing “material support,”

§ 1182(a)(3)(B)(iv)(VI)(dd), to a “terrorist organization,”

§ 1182(a)(3)(B)(vi)(III), i.e., ASP.

We conclude that the District Court had jurisdiction to consider

the claim, despite the doctrine of consular nonreviewability; the

statutory provision expanding visa ineligibility to those who

contributed funds to an undesignated terrorist organization before the

provision was enacted was validly applied to Ramadan; the knowledge

1 All references to provisions of the INA will be to the relevant subsections of section 1182 of Title 8 of the 2006 edition of the United States Code, unless otherwise noted.

-4- requirement of the statute required the consular officer to find that

Ramadan knew his contributions provided material support; and the

consular officer was required to confront Ramadan with the allegation

against him and afford him the subsequent 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. Finally, exercising the limited review

permitted by Mandel, we conclude that the record does 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 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.” § 1182(a)(3)(B)(iv)(VI)(dd). We therefore

remand for further proceedings.

Background

The statutory framework. The INA renders inadmissible, and

therefore ineligible for a visa, see § 1182(a), an alien who has

“engaged in a terrorist activity.” § 1182(a)(3)(B)(i)(I). To “engage

in terrorist activity” is defined to include:

(VI) to commit an act that the actor knows, or

-5- reasonably should know, affords material support, including . . . funds . . .-- (aa) for the commission of a terrorist activity; (bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity; (cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or (dd) to a terrorist organization described in clause (vi)(III), or to any member of such an 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.

§ 1182(a)(3)(B)(iv)(VI) (emphasis added).2 Prior to 2005, when the

REAL ID Act of 2005 (“REAL ID Act”), Pub. L. No. 109-13, Div. B, 119

2 This version of the relevant portion of the definition of “engage in terrorist activity” was added to the INA by the USA PATRIOT Act of 2001, Pub. L. 107-56, § 411, 115 Stat. 272, 346-47 (2001), 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (Supp. I 2001). Previously the relevant portion of the INA defining “engage in terrorist activity” provided:

As used in this chapter, the term “engage in terrorist activity” means to commit . . . an act of terrorist activity or an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time, including any of the following acts:

. . .

(III) The providing of any type of material support, including . . . funds . . . to any individual the actor knows or has reason to believe has committed or plans to commit a terrorist activity.

. . . .

8 U.S.C. § 1182(a)(3)(B)(iii) (2000).

-6- Stat. 231 (2005), was enacted, clause (vi)(III) defined “terrorist

organizations” to mean, in addition to organizations formally

designated as a terrorist organization,3 an organization “that is a

group of two or more individuals, whether organized or not, which

engages in the activities described in subclause (I), (II), or (III)

of clause (iv).” 8 U.S.C. § 1182(a)(3)(B)(vi)(III) (Supp. I 2001).

Then and now, these three subclauses defined to “engage in terrorist

activity” to mean “(I) to commit or to incite to commit, under

circumstances indicating an intention to cause death or serious bodily

injury, a terrorist activity,” “(II) to prepare or plan a terrorist

activity,” and “(III) to gather information on potential targets for

terrorist activity.” 8 U.S.C. § 1182(a)(3)(B)(iv)(I), (II), (III)

(Supp. I 2001); 8 U.S.C. § 1182(a)(3)(B)(iv)(I), (II), (III) (2006).

Thus, prior to 2005, an organization qualified as a so-called

undesignated terrorist organization only if it committed, planned, or

gathered information for terrorist activities.

In 2005, the REAL ID Act amended clause (vi)(III) to broaden the

definition of an undesignated terrorist organization to include an

organization “which engages in . . . the activities described in

3 The formal designation can be made either by the Secretary of State pursuant to section 1189 or by the Secretary of State in consultation with the Attorney General or the Secretary of Homeland Security, after making an appropriate finding. See § 1182(a)(3)(B)(vi)(I), (II).

-7- subclauses (I) through (VI) of clause (iv). See REAL ID Act § 103(c)

(emphasis added). By including subclause (VI) within the subclauses

cross-referenced by clause (vi)(III), the amendment defined

undesignated terrorist organizations to include those organizations

that not only directly committed, planned, or gathered information for

terrorist activities, but also indirectly supported such activities by

affording “material support,” including funds, to a terrorist

organization. See § 1182(a)(3)(B)(iv)(VI).

Facts of Ramadan’s visa applications. Ramadan is a well-known

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 United States, giving

lectures at institutions such as Harvard and Princeton and to the

State Department, and attending meetings and conferences. As a Swiss

citizen, Ramadan was eligible to participate in the Visa Waiver

Program, see § 1187, which permits citizens of certain countries to

visit the United States for limited periods without obtaining a visa.

Thus, Ramadan did not need to apply for a visa to enter the United

States 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 on

Ramadan’s behalf, which was approved in May 2004. Ramadan made

arrangements for the move, scheduled for early August 2004, but on

-8- July 28, 2004, the United States Embassy in Bern revoked his visa

without providing him an explanation. In response to press inquiries,

a DHS spokesperson stated that the basis for the revocation was a

provision of the INA that then permitted exclusion of prominent

individuals who endorse or espouse terrorist activity.4 See 8 U.S.C.

§ 1182(a)(3)(B)(i)(VII) (2000). 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, 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, DHS revoked the renewed H-1B petition. After this

revocation, Ramadan could no longer take advantage of the visa waiver

program that had authorized his previous temporary entries. See 8

U.S.C. § 1187(a)(9) (2006).

On September 16, 2005, Ramadan applied for a B visa to enter the

United States for a short period of time to attend conferences,

including events sponsored by Plaintiffs-Appellants AAR and AAUP. See

Affidavit of Tariq Ramadan ¶ 28 (Mar. 10, 2006) (“Ramadan Aff. I”). [A

4 See “Muslim Scheduled to Teach at Notre Dame Has Visa Revoked,” Los Angeles Times, Aug. 25, 2004, at A23.

-9- 51] According to Ramadan, he was interviewed by consular and DHS

officials at the United States embassy in Bern, Switzerland, on

December 20, 2005. See id. ¶ 30. Defendants have submitted an

affidavit from the official then serving as Consul in Bern stating

that Ramadan was also interviewed in September 2005. See Declaration

of John O. Kinder, ¶ 10 (May 22, 2007) (“Kinder Decl.”). [A808-09] He

was questioned about his political views and associations. See

Ramadan Aff. I ¶ 30. Ramadan informed officials that, between 1998

and 2002, he had donated approximately $1,336 to ASP.5 See Affidavit

of Tariq Ramadan ¶¶ 10, 14 (Feb. 13, 2007) (“Ramadan Aff. II”). In

August 2003, the Treasury Department had designated ASP as a terrorist

organization due to its funding of Hamas, a designation that the

Government acknowledges does not render an organization a “terrorist

organization” under the INA. See Brief for Defendants-Appellees at 7

n*.

On January 25, 2006, the Plaintiffs-Appellants filed a suit in

the District Court challenging Ramadan’s ongoing exclusion from the

United States. On March 15, 2006, they filed a motion for a

preliminary injunction compelling the Defendants-Appellees either to

5 Ramadan also reported in his December 2005 interview that he had donated money to the Comité de Bienfaisance de Secours aux Palestiniens (“CBSP”) but later retracted the statement. The Government has acknowledged that these additional donations were not relevant to the decision to deny Ramadan’s visa, and the District Court did not include them in its analysis.

-10- grant Ramadan admission to the United States or at least make a

decision on his visa application. On June 23, 2006, the Court ordered

the Defendants-Appellees to issue a formal decision on the application

within ninety days. See American Academy of Religion v. Chertoff, 463

F. Supp. 2d 400, 423 (S.D.N.Y. 2006).

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 containing information from other United States

agencies, Ramadan’s interviews, and “additional information provided

by Washington.” Declaration of consular officer Aaron I. Martz

(“Martz Decl.”) ¶ 3 (July 13, 2007). With respect to the knowledge

requirement of § 1182(a)(3)(B)(iv)(VI), Martz stated that “Mr. Ramadan

knew, or reasonably should have known, that providing funds to a group

would afford ‘material support’ to that group,” and “in light of all

the information available to me at the time I adjudicated the visa

application, I concluded that Mr. Ramadan did not, and could not,

demonstrate by clear and convincing evidence that he did not know, and

should not reasonably have known, that ASP . . . raised money for

Hamas.” Id.

District Court’s decision on the merits. On December 20, 2007,

the District Court, considering the parties’ cross-motions for summary

-11- judgment, granted the Defendants’ motion and dismissed the amended

complaint in a comprehensive and thoughtful opinion. See American

Academy of Religion v. Chertoff, No. 06 Civ. 588, 2007 WL 4527504

(S.D.N.Y. Dec. 20, 2007) (“American Academy II”). Preliminarily, the

Court noted that the “endorse and espouse” provision,

§ 1182(a)(3)(B)(i)(VII), originally cited by a DHS spokesperson as a

basis for denial of Ramadan’s visa, had been disavowed by the

Government as a ground for the denial. See id. at *4. The Court then

noted that “the doctrine of consular nonreviewability” precludes

federal courts from exercising jurisdiction to consider an alien’s

challenge to a denial of a visa application. See id. at *5-*7 (citing,

e.g., Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978);

Rivera de Gomez v. Kissinger, 534 F.2d 518, 519 (2d Cir. 1976);

Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 556 (2d Cir. 1975)).

The Court then discussed the Supreme Court’s decision in Mandel,

which recognized that United States citizens could invoke federal

court jurisdiction to challenge a visa denial on the ground that the

denial may have violated their First Amendment right to receive

information, a right articulated in Stanley v. Georgia, 394 U.S. 557,

564 (1969). See American Academy II, 2007 WL 4527504, at *7-*10. The

District Court pointed out that, although a First Amendment right

could be asserted, that right is not violated as long as the consular

official “‘exercises [the power to exclude an alien] negatively on the

-12- basis of a facially legitimate and bona fide reason.’” Id. at *9

(quoting Mandel, 408 U.S. at 770) (emphasis in District Court

opinion).

Applying Mandel, the District Court made a three-part inquiry.

The Court first asked whether the Government had provided a reason for

the visa denial, and concluded that Ramadan’s donations to

organizations supporting known terrorist organizations was the

Government’s reason. See id. at *11. Second, the Court asked whether

the Government had a statutory basis for its reason, and concluded

that § 1182(a)(3)(B) was the statutory basis. See id. Third, the

Court asked whether the cited provision had been properly applied to

Ramadan, an inquiry that presented two further questions. See id. The

first was whether the “material support” provision,

§ 1182(a)(3)(B)(iv)(VI), as expanded in 2005 by the REAL ID Act to

include material support to an undesignated organization that funds a

terrorist organization, see § 1182(a)(3)(B)(vi)(III) (incorporating

activities described in clause (VI) of clause (iv) in the definition

of “terrorist organization”), could be applied retroactively to

Ramadan’s contributions to ASP, made in 1998-2002. See American

Academy II, 2007 WL 4527504, at *11. The second was whether Ramadan

satisfied the knowledge requirement of the material support provision.

See id.

With respect to retroactivity, the Court made the legal

-13- conclusion that the “material support” provision applied to support

given before the enactment of the amendment expanding the definition

of an undesignated terrorist organization to include an organization

that funded a terrorist organization. See id. at *11-*12. With

respect to Ramadan’s knowledge, the Court interpreted the material

support provision to require the Government to show only that Ramadan

knew he was giving money to ASP, and then placed on Ramadan the burden

of satisfying the “unless” clause of the provision. See id. at *12-

*14. The “unless” clause states that a visa applicant is ineligible

under the material support provision “unless [he] can show by clear

and convincing evidence that [he] did not know, and reasonably should

not have known, that the organization [to which he provided funds] was

a terrorist organization.” § 1182(a)(3)(B)(iv)(VI)(dd).

With this understanding of the statutory knowledge requirement,

the Court then appeared to make its own factual findings as to

Ramadan’s knowledge, rather than confine its inquiry to the adequacy

of the findings reflected in the affidavit of the consular officer who

informed Ramadan of the visa denial. The Court readily found that

Ramadan knew he was giving money to ASP from his admission of this

fact. American Academy II, 2007 WL 4527504, at *13. With respect to

the “unless” clause, the Court considered three items of evidence

tendered by Ramadan to the Court through affidavits. First was

Ramadan’s own statement that he did not know that ASP was supporting

-14- Hamas and that his intent was only to provide humanitarian aid to

Palestinian refugees. Although acknowledging that the statement “may

well be true,” the Court deemed it “self-serving,” and “not ris[ing]

to the level of clear and convincing evidence.” Id. Second was the

fact that, at the time of Ramadan’s donations, ASP was “a verified and

legitimate charity according to the Swiss Government.” Id.

Acknowledging that this statement might also be true, the Court stated

that it also did not provide clear and convincing evidence that

Ramadan was unaware of ASP’s illegitimate activities. See id. Third

was an expert’s declaration that someone in Ramadan’s situation would

not have known that ASP was providing funding to Hamas. “This

evidence,” the Court stated, “while objectively illuminating, provides

little comfort to the Court that Ramadan, subjectively, lacked the

requisite knowledge.” Id.

Ultimately, the Court was somewhat ambiguous as to whether it was

finding the “unless” clause not satisfied by Ramadan’s evidence or

accepting the consular officer’s findings. The Court stated that

“Professor Ramadan has not demonstrated by clear and convincing

evidence that he lacked knowledge of ASP’s illicit activities,” and

also stated that “the consular official is . . . charged with the duty

of determining whether the alien has met his or her burden. Once the

consular official has made this decision, it is not the Court’s role

. . . to second guess the result.” Id. at *14. The Court concluded

-15- that the Government had provided a facially legitimate and bona fide

reason for denying Ramadan’s visa. See id.

Turning to the Plaintiffs’-Appellants’ challenge to the

constitutionality of the “endorse and espouse” provision,

§ 1182(a)(3)(B)(i)(VII), based on their apprehension that the

existence of the provision would chill their First Amendment right to

invite scholars to this country, the District Court stated that the

claim raised only hypothetical possibilities of future exclusions, and

denied the claim for lack of standing. See id. at *15.

Discussion

The appeal presents a host of issues.

I. Authority to review

The initial obstacle to the Appellants’ First Amendment challenge

to the visa denial is the Government’s invocation of the doctrine of

consular nonreviewability, the principle that a consular officer’s

decision to deny a visa is immune from judicial review. The

Government considers this doctrine to mean that courts facing this

type of challenge lack “jurisdiction,” see Brief for Defendants-

Appellees at 13, and this Court has also spoken of “jurisdiction” in

rejecting review of a visa denial. See Wan Shih Hsieh, 569 F.2d at

1181 (“The district court correctly held that no jurisdictional basis

exi[s]ts for review of the action of the American Consul in Taiwan

suspending or denying the issuance of immigration visas to appellant’s

-16- children there.”).

The Supreme Court has cautioned that the term “jurisdiction” is

often used imprecisely, see Kontrick v. Ryan, 540 U.S. 443, 454-55

(2004). We do not believe that traditional subject matter

jurisdiction is lacking in this case. The Plaintiffs allege that the

denial of Ramadan’s visa violated their First Amendment rights, and

subject matter jurisdiction to adjudicate that claim is clearly

supplied by 28 U.S.C. § 1331. See Abourezk v. Reagan, 785 F.2d 1043,

1050 (D.C. Cir. 1986) (“Abourezk II”) (“The district court had subject

matter competence in this case [involving visa denials] under both its

general federal question jurisdiction, see 28 U.S.C. § 1331 (1982),

and its specific jurisdiction over claims arising under the

Immigration and Nationality Act, see 8 U.S.C. § 1329 (1982)

[repealed].”), aff’d by an equally divided court, 484 U.S. 1 (1987);

Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 557 (2d Cir. 1975)

(noting that Mandel considered “an alleged violation of First

Amendment rights of American citizens over which the federal courts

clearly had jurisdiction”) (emphasis added). Perhaps the doctrine of

consular nonreviewability, where applicable, means that the generally

available federal question jurisdiction provided by section 1331 to

adjudicate First Amendment claims is withdrawn where the claim is

based on a consular officer’s denial of a visa, or that prudential

considerations, perhaps arising from separation of powers concerns,

-17- counsel against exercising normally available jurisdiction.

In this case, the Plaintiffs seek to overcome the doctrine of

consular nonreviewability by relying on Mandel, in which the Supreme

Court adjudicated on the merits, albeit to a limited extent, a First

Amendment challenge to a visa denial. The Government contends that

Mandel does not apply to this case because Mandel reviewed the

Attorney General’s discretionary decision not to waive an alien’s

inadmissibility, see Immigration and Nationality Act of 1952

§ 212(d)(3)(A), 8 U.S.C. § 1182(d)(3)(A) (1970), rather than the

consular officer’s threshold decision that the alien was inadmissible.6

The latter type of decision, the Government contends, is totally

immune from judicial review.

Mandel does not provide a definitive answer to the Government’s

contention, since the Supreme Court understood the Mandel plaintiffs

to have conceded that, in the absence of a discretionary waiver

provision, there would be no First Amendment issue. The Court noted:

In seeking to sustain the decision below, [the plaintiffs] concede that Congress could enact a blanket prohibition against entry of all aliens falling into the [excluded] class[es] . . ., and that First Amendment rights could not override that decision.

408 U.S. at 767. This statement lends some support to the

6 The current version of the United States Code includes the substance of this provision with minor changes. See 28 U.S.C. § 1182(d)(3)(A) (2006).

-18- Government’s argument that the limited review required by the First

Amendment applies only to the Attorney General’s denial of a waiver.7

On the other hand, the Mandel plaintiffs’ concession, if that is what

it was,8 cannot have made any law, and can be viewed as merely

relieving the Court of the need to decide whether a First Amendment

claim requires at least some judicial review of a consular officer’s

visa denial.9

The case law in the aftermath of Mandel favors such review. The

Ninth Circuit has explicitly rejected the Government’s distinction,

for purposes of permitting some judicial review of a constitutional

7 Justice Douglas, in dissent, focused only on the Attorney General’s waiver decision, contending that once the State Department had recommended a waiver, the statute giving discretion to the Attorney General should be construed to limit that discretion to “matters commonly within the competence of the Department of Justice–national security, importation of drugs, and the like.” Mandel, 408 U.S. at 774 (Douglas, J., dissenting). 8 Justice Marshall, in dissent, disputed such a concession. He understood the Mandel plaintiffs to “have simply noted . . . that even if this Court rejects the broad decision below, there would nevertheless be a separate and narrower basis for affirmance.” Mandel, 408 U.S. at 780 n.4 (Marshall, J., with whom Brennan, J. joins, dissenting) (citations omitted). 9 Since the grounds for denial of Mandel’s visa were “advocat[ing] and “writ[ing] or publish[ing]” “the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship,” 8 U.S.C. § 1182(a)(28)(D), (G)(v) (1964), and the three-judge court decision that the Supreme Court reviewed in Mandel had declared these grounds unconstitutional under the First Amendment, see Mandel v. Mitchell, 325 F. Supp. 620, 634 (S.D.N.Y. 1971), it was at least arguable that the visa denial, if reviewable, would have faced a more serious First Amendment challenge than the denial of a waiver.

-19- claim, between a consular officer’s denial of a visa and the Attorney

General’s denial of a waiver of inadmissibility. See Bustamante v.

Mukasey, 531 F.3d 1059, 1062 n.1 (9th Cir. 2008). The First Circuit

has done so implicitly, relying on Mandel to undertake the limited

judicial review of a First Amendment challenge to a visa denial that

the Court understood Mandel to permit. See Adams v. Baker, 909 F.2d

643, 647-50 (1st Cir. 1990); Allende v. Shultz, 845 F.2d 1111 (1st

Cir. 1988). The D.C. Circuit has also implicitly rejected the

Government’s distinction between a visa denial and the Attorney

General’s decision not to waive inadmissibility. See Abourezk II, 785

F.2d 1043. Abourezk II accepted jurisdiction over First Amendment and

statutory challenges to decisions of consular officers and the

Secretary of State.10 See id. at 1050.

Our Court has not had occasion to consider whether Mandel’s

10 Although dissenting from the majority’s construction of the relevant statutes and concluding that the plaintiffs’ constitutional claim lacked merit, Judge Bork accorded the plaintiffs “the limited judicial scrutiny defined by the [Mandel] standard.” Abourezk II, 785 F.2d at 1075 (Bork, J., dissenting).

The Government endeavors to diminish the significance of Abourezk II by citing the D.C. Circuit’s subsequent decision in Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999). Although Saavedra Bruno pointed out that Mandel concerned the Attorney General’s decision not to waive inadmissibility, whereas Abourezk II had concerned a consular officer’s visa denial, the D.C. Circuit adhered to Abourezk II, see 197 F.3d at 1163; the challenge to the visa denial was not rejected for lack of jurisdiction, but because the plaintiffs had made no constitutional claims, see id.

-20- allowance of limited judicial review of First Amendment claims is

available on a challenge to a consular officer’s visa denial, as

distinguished from the Attorney General’s denial of a waiver of

admissibility. In Burrafato, we noted that district courts within

this Circuit had “interpreted Mandel to require justification for an

alien’s exclusion.” Burrafato, 523 F.2d at 556. We referred to

decisions involving the Secretary of State’s refusal to waive

inadmissibility. See id. (citing MacDonald v. Kleindienst, 72 Civ.

1228 (S.D.N.Y. Oct. 10, 1972), and MacDonald v. Kleindienst, 72 Civ.

1228 (S.D.N.Y. May 6, 1974)). However, Burrafato did not need to

resolve the issue because the plaintiff’s challenge to the denial of

her alien husband’s visa application, in the absence of any

constitutional claim, was dismissed for lack of jurisdiction. See id.

at 557.

We conclude that, where a plaintiff, with standing to do so,

asserts a First Amendment claim to have a visa applicant present views

in this country, we should apply Mandel to a consular officer’s denial

of a visa. Since the First Amendment requires at least some judicial

review of the discretionary decision of the Attorney General to waive

admissibility, we see no sound reason to deny similar review to the

decision of a consular officer to deny a visa. It seems

counterintuitive to review a cabinet officer’s discretionary decision,

but not a consular officer’s decision as to statutory ineligibility.

-21- We agree with the explicit view of the Ninth Circuit and the implicit

views of the First and D.C. Circuits supporting at least limited

review where a visa denial is challenged on First Amendment grounds.

II. Scope of review.

We next consider the scope of the limited review permitted by

Mandel. The Supreme Court there concluded:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under § 212(a)(28) [of the INA], Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Mandel, 408 U.S. at 769-70.

This formulation presents two questions: (a) what will render the

Government’s reason “facially legitimate and bona fide”? and (b) does

the prohibition on “look[ing] behind” the decision mean that a

reviewing court may not determine, after considering evidence, whether

the facts support the Government’s reason?

(a) The facial legitimacy of the reason. In Mandel, the Supreme

Court provided no elaboration of “facially legitimate” or “bona fide.”

The reason given for denial of a waiver was that Mandel had exceeded

the bounds of his visa on a previous visit to the United States. See

id. at 759. The Court said only that with this statement of a reason,

-22- “the Attorney General validly exercised the plenary power that

Congress delegated to the Executive.” Id. at 769. It should be noted

that, unlike a visa denial, where statutory provisions specify grounds

for inadmissibility, no statute specifies any grounds for the

discretionary decision to decline to waive inadmissibility. The

“reason” relied on in Mandel was what the alien had done, i.e.,

exceeded the bounds of a prior visa.

The decisions entertaining First Amendment challenges to visa

denials after Mandel have concerned statutory grounds of

inadmissibility. In Bustamante, the visa was denied pursuant to

§ 1182(a)(2)(C), which renders inadmissible an alien whom the consular

officer has reason to believe has trafficked in a controlled

substance. See Bustamante, 531 F.3d at 1060-61. The Ninth Circuit

ruled that this was a facially legitimate reason because it was a

statutory basis for inadmissibility. See id. at 1062 (citing

§ 1182(a)(2)(C)). The Court also ruled that the requirement of a

“bona fide” reason was satisfied by the absence of an allegation that

the consular officer “did not in good faith believe the information he

had.” Id.

In Adams, the visa was denied pursuant to 8 U.S.C.

§ 1182(a)(28)(F) (1988) (repealed), which rendered inadmissible aliens

“who advocate or teach” various forms of terrorism. See Adams, 909

F.2d at 646. The consular officer determined that Adams fit within

-23- that category `because of his advocacy of, and personal involvement

with, IRA terrorist violence, including participation in bombings. See

id. The First Circuit ruled that the statutory ground and the alien’s

conduct together provided the “facially legitimate and bona fide”

reason for the visa denial.

In Abourezk II, the visas were denied pursuant to 8 U.S.C.

§ 1182(a)(27) (1982) (repealed), which rendered inadmissible aliens

who “seek to enter the United States . . . to engage in activities

which would be prejudicial to the public interest, or endanger the

welfare, safety or security of the United States.” The State

Department determined that the aliens fit within that category

“because of their personal status as officials of governments or

organizations which are hostile to the United States.” Abourezk v.

Reagan, 592 F. Supp. 880, 888 (D.D.C. 1984) (“Abourezk I”). The D.C.

Circuit appeared to assume that a statutory ground of inadmissibility

and conduct by the visa applicant fitting within the statute would

satisfy the Mandel standard, but remanded for reconsideration of

whether the statutory ground had been properly construed. See Abourezk

II, 785 F.2d at 1053-60.

We think the identification of both a properly construed statute

that provides a ground of exclusion and the consular officer’s

assurance that he or she “knows or has reason to believe” that the

visa applicant has done something fitting within the proscribed

-24- category constitutes a facially legitimate reason. See § 1201(g); 22

C.F.R. § 40.6. We also conclude, in agreement with the Ninth Circuit,

that the absence of an allegation that the consular officer acted in

bad faith satisfies the requirement that the reason is bona fide.

(i) Construction of the relevant statutory provisions. The

asserted statutory basis for the denial of Ramadan’s visa was

section 1182(a)(3)(B)(i)(I), which renders ineligible an applicant who

“has engaged in a terrorist activity.”

Subsection 1182(a)(3)(B)(iv)(VI)(dd) defines “engage in terrorist

activity” to include “to commit an act that the actor knows, or

reasonably should know, affords material support, including . . .

funds . . . to a terrorist organization . . . described in clause

(vi)(III) . . . 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.” Clause (vi)(III) defines “terrorist organization” to

mean “a group . . . which engages in . . . the activities described in

subclauses (I) through (VI) of clause (iv),” which include funding a

terrorist organization. Three issues arise as to whether the consular

officer properly construed and applied these statutory provisions to

Ramadan. These issues concern (A) retroactivity, (B) the knowledge

requirement, and (C) the “unless” clause.

(A) Retroactivity. The first issue concerns retroactivity. The

-25- Government acknowledges that, prior to enactment of the REAL ID Act in

2005, the “material support” provision of the INA did not apply to

aliens who provided funds to what the Government calls “undesignated

terrorist organizations” that in turn provided funds to terrorist

organizations. See Brief for Defendants-Appellees at 33-34 n.*. It is

undisputed that Ramadan’s contribution of $1,336 to ASP, which in turn

gave money to Hamas, occurred prior to 2005.

To support retroactive application of the REAL ID Act, the

Government relies on the effective date provision of the Act, section

103(d), which provides that its amendments “shall apply to–(1) removal

proceedings instituted before, on, or after the date of the enactment

of this division; and (2) acts and conditions constituting a ground

for inadmissibility, excludability, deportation, or removal occurring

or existing before, on, or after such date.” REAL ID Act § 103(d), 119

Stat. 272, 348 (emphases added). In the Government’s view, the

amendment clearly applies to Ramadan because his “act” (donating to

ASP) is a ground of inadmissibility and occurred “before” the date of

enactment.

The Appellants advance several arguments against this

straightforward reading of the statute. First, they argue that the

language of the Act’s effective date provision, notably the caption of

the provision, which reads simply “EFFECTIVE DATE,” is not as clear as

the comparable provision of the USA PATRIOT Act, Pub. L. No. 107-56,

-26- § 411(c), 115 Stat. 272, 348, which is captioned “RETROACTIVE

APPLICATION OF AMENDMENTS.” Brief for Plaintiffs-Appellants at 23-25.

That argument is unavailing. If retroactive application of a statute

is clear, such application is not defeated simply because in another

statute Congress used language that is even clearer.

Second, the Appellants argue that the effective date provision of

the REAL ID Act should be interpreted to mean that, although an act

warranting exclusion might be covered even though it occurred before

the effective date of the Act, the act must have constituted a ground

of inadmissibility at the time it occurred. See id. at 25. However,

that is not what the provision says. Moreover, it is highly unlikely

that Congress intended to cover acts occurring before the effective

date only if such acts were grounds of inadmissibility when they

occurred. If the act had to be a ground of inadmissibility at the

time it occurred, the language applying the statute to acts occurring

before the effective date would have added nothing because the alien

could not have been excluded on the basis of grounds that were added

for the first time by the REAL ID Act.

Third, the Appellants argue that the Government’s reading of

section 103(d) renders subsection 103(d)(1) redundant. See id. at 26.

Their point is that if the Act applies to all acts taken before, on,

or after the effective date (the reading the Government gives to

subsection 103(d)(2)), it necessarily applies to aliens who are in

-27- removal proceedings instituted before, on, or after that date (as

specified by subsection 103(d)(1)). They read the entirety of section

103(d) to apply only to aliens in removal proceedings (by virtue of

subsection 103(d)(1)), but as to those, it applies to acts occurring

before the effective date (by virtue of subsection 103(d)(2)). Again,

that is not what section 103(d) says. Moreover, as the Government

points out, see Brief for Defendants-Appellees at 38-39, the

Appellants’ reading would create the anomaly that the statute would

apply to removal proceedings commenced as far back as April 1997 (when

what used to be called deportation proceedings became removal

proceedings, see Zhang v. INS, 274 F.3d 103, 106 (2d Cir. 2001)), but

would not apply to acts committed before the effective date.

The Government’s reply does not really meet the Appellants’ point

that the Government’s reading of subsection 103(d)(2) renders

subsection 103(d)(1) redundant. The Government acknowledges that

“there may be some overlap between subsections (1) and (2),” Brief for

Defendants-Appellees at 38, but never provides an example of any

situation covered by subsection (1) that is not already covered by

subsection (2). Nevertheless, even if the subsections are redundant

(and we need not determine whether they are), redundancy is not

necessarily a fatal flaw and not a basis to disregard plain meaning.

Even though subsection (2), fairly read, would render excludable any

alien who had committed at any time an act covered by the REAL ID

-28- amendments, including those already in removal proceedings on the

effective date, Congress might well have wanted explicitly to bar any

conceivable argument against applying the amendments to those in

ongoing removal proceedings.

Finally, the Appellants argue that rendering Ramadan inadmissible

for acts committed before the effective date of the REAL ID Act would

create a substantial constitutional issue with respect to lawful

permanent residents. They point out that the terrorism grounds for

removal are identical to the terrorism grounds for exclusion, see

§ 1227(a)(4)(B) (incorporating exclusion grounds), and that the

effective date provisions for the removal and exclusion amendments are

identical, see REAL ID Act §§ 103(d), 105(b), 119 Stat. at 308-09.

From the identity of these pairs of provisions, they argue that

resident aliens, who have some due process rights (unlike Ramadan),

would have a due process argument against removal for acts committed

before their conduct was a ground for removal, and that the

substantiality of that argument is a reason not to read the effective

date provisions of either the exclusion or the removal provisions to

apply to acts occurring before the effective date. The Government

replies that the Plaintiffs have no standing to make that argument,

see Brief for Defendants-Appellees at 44, and that the constitutional

argument that could be raised by resident aliens is unavailing because

the rational purpose test, applicable to civil statutes challenged on

-29- retroactivity grounds, see Pension Benefit Guaranty Corp. v. R.A. Gray

& Co., 467 U.S. 717, 730 (1984), would be easily satisfied, see Brief

for Defendants-Appellees at 44-45.

We think this argument need not be considered. Even if the

Appellants are entitled to argue that the Government’s reading would

raise a constitutional issue as applied to others, it does not follow

that a parallel provision that might be unconstitutional as applied to

those who have due process rights must be read to avoid such an issue

when applied to someone who lacks such rights.

In the end, the plain meaning of the “before, on, or after”

phrase in subsection 103(d)(2) renders the REAL ID amendments

applicable to Ramadan’s acts occurring before 2005.

(B) Requirement of knowledge. The second statutory issue

concerns what subsection 1182(a)(3)(B)(iv)(VI) requires with respect

to an alien’s knowledge. Clause (VI) has two knowledge components.

First, it defines “engage in terrorist activity” to mean “to commit an

act that the actor knows, or reasonably should know, affords material

support . . . to a terrorist organization described in clause

(vi)(III).”11 Second, clause (VI) bars an alien with such knowledge

“unless [he] can demonstrate by clear and convincing evidence that

11 As we have already explained, see [page 7], supra, clause (vi)(III) includes an organization, not formally designated as a terrorist organization, that provides funds to a terrorist organization.

-30- [he] did not know, and should not reasonably have known, that the

organization was a terrorist organization.”

§ 1182(a)(3)(B)(iv)(VI)(dd).

The District Court recognized that the combination of clause (VI)

and its subclause (dd) identifies two aspects of an alien’s knowledge:

what knowledge the alien must have had in order to be ineligible for

a visa and what knowledge the alien must show by clear and convincing

evidence that he lacked in order to be eligible for a visa. The

District Court construed clause (VI) to mean that the first reference

to knowledge meant only that Ramadan knew that he had given money to

ASP, a requirement easily satisfied by Ramadan’s admission that he had

done so. American Academy II, 2007 WL 4527504, at *13. The District

Judge then moved immediately to the second reference to knowledge (the

“unless” clause) and considered whether Ramadan had satisfied his

burden to demonstrate by clear and convincing evidence that he did not

know, and should not reasonably have known, that the organization to

which he had given money was a terrorist organization. See id. There

is no dispute in this case that ASP provides material support to Hamas

or that Hamas is a terrorist organization. The issue is whether the

first knowledge component is satisfied if, at the time of his

donations, Ramadan knew only that he was giving funds to ASP or

requires that he also knew that ASP was a terrorist organization.

The Appellants contend that the District Court misinterpreted the

-31- statute by excluding from the first inquiry whether Ramadan knew that

ASP was a terrorist organization, i.e., knew that ASP was providing

material support to Hamas. The Government resists this

interpretation, contending that it would eliminate the “unless”

clause:

If the Government were required to establish that an alien knew his actions would provide material support to a group he knew was a terrorist organization, as plaintiffs contend, then by definition, the alien could never establish by clear and convincing evidence that he did not know the group was a terrorist organization.

Brief for Defendants-Appellees at 31.

It is not immediately apparent how the two statutory references

to knowledge in clause (VI) should be interpreted. There is a surface

plausibility to the Government’s argument: the “unless” clause would

have little meaning if it were available only after the consular

officer found, after considering evidence from the alien and the

Government, that the alien knew that the recipient of his donations

was a terrorist organization (because it had funded a terrorist

organization).12 On the other hand, under the Government’s reading of

the statute, the first knowledge component could similarly be said to

12 It should be noted, however, that the “unless” clause would have significant meaning if the first knowledge component of clause (VI) was read to require knowledge that the recipient of funds was a terrorist organization and also meant that the consular officer should first determine, before hearing from the alien, only whether there existed a prima facie case that the alien knew that the organization he had funded was a terrorist organization.

-32- have little meaning in a case like Ramadan’s. If Congress was

requiring only the visa applicant’s knowledge that he had given money

to an organization, even if he did not know that the recipient was a

terrorist organization, the first knowledge requirement would mean

very little. Although it is possible to imagine a situation where a

person who has given money to an organization does not know that he

has done so, it is unlikely that Congress created the first knowledge

requirement for such a limited purpose.

When the first knowledge requirement is considered in most of its

applications, however, it retains considerable meaning, under the

Government’s construction, in the many instances where the material

support is non-monetary, such as communications. See

§ 1182(a)(3)(B)(iv)(VI); Singh-Kaur v. Ashcroft, 385 F.3d 293, 298

(7th Cir. 2004) (considering, under pre-2005 version of INA, “whether

[alien’s] conduct in providing food and setting up tents constituted

‘material support’” under the statute); see also In re S-K-, 23 I. &

N. Dec. 936, 943-44 (B.I.A. 2006) (discussing what constitutes

material support under INA), reaffirmed by 24 I. & N. Dec. 475 (B.I.A.

2008). Congress could well have wanted to require that a person

rendering non-monetary support know only that his actions “afford

material support,” even if he does not know that the recipient is a

terrorist organization.

The Government’s construction of the first knowledge component

-33- becomes more plausible when clause (VI) is compared to clauses (IV)

and (V), which also include an “unless” clause. Unlike clause (VI),

clauses (IV) and (V) do not contain any initial knowledge component.

Clause (IV) renders ineligible an alien who solicits funds for a

terrorist organization, and clause (V) renders ineligible an alien who

solicits membership in such an organization. Congress did not require

the alien’s knowledge that the organization for which he solicited

funds or members was a terrorist organization. In these clauses,

Congress rendered the alien ineligible simply for the act of

soliciting funds or members for a terrorist organization, but, with

respect to an undesignated terrorist organization, provided the alien

with the opportunity to show by clear and convincing evidence that he

did not know that the undesignated organization he was helping was a

terrorist organization. See § 1182(a)(3)(B)(iv)(IV)(cc), (V)(cc).

This comparison strongly suggests that in clause (VI) Congress

similarly did not require knowledge that the recipient of an alien’s

material support was a terrorist organization, but provided the alien

only the defense of subclause (VI)(dd).

The Government’s construction of the first knowledge component

becomes even more plausible when subclause (VI)(dd), applicable to

Ramadan, is compared to subclause (VI)(bb). Subclause (VI)(bb)

renders ineligible an alien who affords material support “to any

individual who [he] knows, or reasonably should know, has committed or

-34- plans to commit a terrorist activity.” § 1182(a)(3)(B)(iv)(VI)(bb).

Thus, subclause (bb) explicitly requires knowledge that the individual

whom the alien has aided is engaged in terrorist activity.

Interpreting the first knowledge component of clause (VI) to require

knowledge of the terrorist nature of the recipient of material support

would lead to the odd reading of subclause (VI)(bb) whereby there

would be first a requirement that the alien knew he was rendering

material support and then two requirements that the alien knew that

the individual recipient was engaged in terrorist activity.

We are mindful of the Supreme Court’s recent decision in Flores-

Figueroa v. United States, 129 S. Ct. 1886 (2009), which interpreted

the knowledge requirement of 18 U.S.C. § 1028A(a)(1). That provision

requires a mandatory consecutive two-year sentence if, during the

commission of other crimes, the defendant “knowingly transfers,

possesses, or uses, without lawful authority, a means of

identification of another person.” The Court ruled that the knowledge

requirement applied to all elements of the provision, that is, that

the defendant must know not only that what he possessed was a means of

identification, but must also know that the means of identification

belonged to another person (as distinguished from a fake means of

identification). See id. at 1894. As the Court explained, “As a

matter of ordinary English grammar, it seems natural to read the

statute’s word ‘knowingly’ as applying to all the subsequently listed

-35- elements of the crime.” Id. at 1890. See also Model Penal Code

§ 2.02, explanatory note (“The requirement of culpability applies to

each ‘material element’ of the crime.”). But the Court recognized

that “the inquiry into a sentence’s meaning is a contextual one,” id.

at 1891, a point emphasized in the concurring opinion of Justice

Alito. See id. at 1895-96 (Alito, J., concurring). He cited with

apparent approval courts of appeals’ decisions ruling that 18 U.S.C.

§ 2423(a), which makes it unlawful to “knowingly transpor[t] an

individual under the age of 18 years in interstate or foreign commerce

. . . with intent that the individual engage in prostitution” does not

require knowledge that the victim was not 18. See id. at 1895-96

(citing, e.g., United States v. Griffith, 284 F.3d 338, 350-51 (2d

Cir. 2002); United States v. Taylor, 239 F.3d 994, 997 (9th Cir.

2001)). Justice Alito also cited with apparent approval decisions

ruling that 8 U.S.C. § 1327, which prescribes punishment for any

person who “knowingly aids or assists any alien inadmissible under

section 1182(a)(2) (insofar as an alien inadmissible under such

section has been convicted of an aggravated felony) . . . to enter the

United States,” does not require knowledge that the assisted alien had

been convicted of an aggravated felony. See id. at 1896 (citing United

States v. Flores-Garcia, 198 F.3d 1119, 1121-23 (9th Cir. 2000);

United States v. Figueroa, 165 F.3d 111, 118-19 (2d Cir. 1998)).

Although the issue is not free from doubt, we are persuaded that

-36- the normal approach discussed in Flores-Figueroa does not apply to the

first knowledge component of clause (VI) of subsection

1182(a)(3)(B)(iv). That subsection must be read, in context, as an

integrated whole, and the comparisons we have discussed between clause

(VI) and clauses (IV) and (V), and between subclauses (VI)(bb) and

(VI)(dd) powerfully indicate that the first knowledge component of

clause (VI) requires only knowledge that the alien knew he was

rendering material support to the recipient of his support. Cf.

Nijhawan v. Holder, 129 S. Ct. 2294, 2301-02 (2009) (construing

subparagraph (M)(i) of INA § 1101(a)(43) by reference to other

subparagraphs of subsection (43)).

(C) The “unless” clause. The third statutory issue concerns the

proper application of the “unless” clause. This clause specifies the

circumstance under which an alien can exclude himself from

§ 1182(a)(3)(B)(iv)(VI)(dd), which would otherwise render him

ineligible for a visa because he provided material support to a

terrorist organization “unless [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.” The

existence of the opportunity for the visa applicant to prove that he

lacked actual or constructive knowledge that the recipient of his

funds was a terrorist organization implies that, before a decision on

the visa application is made, the alien must be confronted with the

-37- allegation that he knew he had supported a terrorist organization.

Otherwise, he has no way of understanding what it is that he must show

he did not know or should not have known.

We have agreed with the Government that Clause (VI) imposed no

requirement that the consular officer find that Ramadan knew that ASP

had funded Hamas, and that ASP was therefore itself a terrorist

organization. But the “unless” clause, properly construed, required

the consular officer to confront Ramadan with the claim that he knew

that his donations to ASP constituted material support to a terrorist

organization because it had funded Hamas, and then afford him the

opportunity to negate such knowledge.13 Ramadan’s case is different

from typical situations, likely contemplated by Congress in enacting

the “unless” clause, where the recipient of funds is a terrorist

organization because of its own terrorist activities. See

§ 1182(a)(3)(B)(iv)(I)-(III). ASP is a conduit for funds to Hamas.

Thus, for Ramadan to have a meaningful opportunity to negate

knowledge, he had to be confronted with the claim that he knew or

should have known that ASP provided funds to Hamas.

13 We have no occasion to consider how the “unless” clause should be interpreted in a case where, because of criminal or security grounds, the consular officer uses the authority provided in section 1182(b)(3) not to inform a visa applicant of an adverse determination or the specific provisions under which a determination of inadmissibility was made. In Ramadan’s case, he was notified of the adverse determination and the provisions under which it was made.

-38- Our record is unclear as to whether the consular officer

confronted Ramadan with a claim that he had knowingly supported a

terrorist organization, ASP, before affording him an opportunity to

satisfy the “unless” clause. The Declaration of Martz, the consular

officer, does not say that he did so. What the record thus far

discloses are the following circumstances. On July 28, 2004,

Ramadan’s H-1B visa was “prudentially” revoked. See Kinder Decl., ¶ 7.

“Prudential” revocation occurs when some derogatory information is

received, but the revocation is not a determination of

inadmissibility. See id. ¶¶ 5, 6. On August 25, 2004, a spokesperson

for the DHS stated publicly that the visa had been revoked “because of

a section in federal law that applies to aliens who have used a

position of prominence within any country to endorse or espouse

terrorist activity.” See Ramadan Aff. II ¶ 6.

In September 2005, Ramadan applied for a B1/B2 non-immigrant

visa at the U.S. Embassy in Bern. He was interviewed at the Embassy

in December (and perhaps in September as well), where he was asked

questions. See Ramadan Aff. II ¶ 8. As far as the current record

discloses, his only prior awareness of grounds for inadmissibility was

the 2004 claim, since abandoned, that he had endorsed or espoused

terrorism.

On September 19, 2006, Martz denied the visa because of

“Ramadan’s provision of material support to undesignated terrorist

-39- organizations, ASP and CBSP.”14 See Kinder Decl. ¶12. Nearly a year

after being interviewed in Bern, Ramadan learned for the first time

from Kinder’s letter dated September 19, 2006, that the visa had been

denied because of Ramadan’s donations to organizations “which you

knew, or reasonably should have known, provided funds to Hamas.”

Martz has stated the following concerning Ramadan’s knowledge:

With respect to Mr. Ramadan’s relevant knowledge, I concluded that:

(a) Mr. Ramadan knew, or reasonably should have known, that providing funds directly to a group would afford “material support” to that group . . .; and

(b) . . . Mr. Ramadan did not, and could not, demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that ASP . . . raised money for Hamas.

See Martz Decl. ¶ 3.15

However, when the officer stated that Ramadan did not satisfy the

“unless” clause, he gave no indication that he had confronted Ramadan

with the claim that Ramadan knew that ASP funded Hamas. Without such

an indication, we have no way of knowing whether the officer correctly

applied the “unless” clause, and hence the proffered reason for the

14 The Government seems to place no reliance on donations to CBSP, donations that Ramadan has denied. See [page 10 n.5], supra. 15 Whereas the District Court thought the first component of the knowledge requirement concerned only whether Ramadan knew that he had contributed money to ASP, the consular officer properly understood that component to require that Ramadan knew that providing money to ASP would afford material support to ASP.

-40- denial has not yet been shown to conform to the relevant statute and

to be facially legitimate.16

The need to confront Ramadan with a claim that he knew ASP funded

Hamas is especially important in this case because of the timing of

Ramadan’s contributions. Ramadan’s contributions were made between

1998 and 2002, before the Government officially listed ASP as a

“Specially Designated Global Terrorist” in 2003. See Press Release,

U.S. Dep’t of Treasury, Office of Public Affairs, “U.S. Designates

Five Charities Funding Hamas and Six Senior Hamas Leaders as Terrorist

Entities” (August 22, 2003). That designation was motivated in part

by the fact that “too many innocent donors who intend for their money

to be used to provide humanitarian services here or abroad, are

unwittingly funding acts of violence when these funds are diverted to

terrorist causes.” Id. Thus, Ramadan’s claim that he lacked the

requisite knowledge cannot be dismissed out of hand. Moreover,

Ramadan had previously been told that he was suspected of being

inadmissible because of the “endorse or espouse” provision. He

therefore had no reason to think, in the 2005 interview, that he

needed to negate knowledge that he knew ASP had funded Hamas.

16 In requiring adequate indication that the “unless” clause was properly applied, we point out that, while consular officers should apply the clause properly in all instances of visa applications, judicial review of whether proper application occurred is limited to cases cognizable in a federal court under Mandel.

-41- Confronting him with a claim of knowledge was necessary to make the

“unless” clause meaningful, especially in a case where Ramadan, now

alerted to the Government’s claim, has evidence negating his

knowledge, at the time he made contributions to ASP, that ASP had

funded Hamas.

In construing the “unless” clause to require confronting the visa

applicant with the allegation of the knowledge he needs to negate, we

are not requiring the consular officer to conduct 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.17 Unless the allegation

17 In assessing the applicant’s evidence, we would expect the consular officer to avoid the District Court’s apparent rejection of Ramadan’s denial of knowledge as “self-serving.” When a person’s knowledge is at issue, that person’s denial of knowledge, though obviously self-serving, is not for that reason automatically lacking in evidential weight. The denial might, in appropriate circumstances, be found not credible, but, if credible, it is probative and should be considered along with all other evidence bearing on knowledge. See In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 37 F.3d 804, 838 (2d Cir. 1994) ("It is well established that a person's state of mind is a fact question to be proved the same as any other fact. . . . [E]vidence [of state of mind] cannot be excluded on the ground that it is self-serving.”) (citations omitted), rev'd on other grounds by Zicherman v. Korean Airlines, 516 U.S. 217 (1996).

The Foreign Affairs Manual helpfully advises consular officers that “your assessment of the credibility of an applicant’s response to questions concerning possible provision of material support to a terrorist organization can be the key factor in determining whether the alien is inadmissible.” 9 U.S. Department of State, Foreign

-42- of knowledge has been conveyed to the applicant prior to his

appearance before the consular office, it will normally be advisable

to afford the applicant at least a brief opportunity to return with

his available evidence.18

We will therefore remand to afford the Government an opportunity

to ascertain whether the consular officer can assure the District

Court that he confronted Ramadan with the allegation of knowledge that

ASP had funded Hamas and provided him some opportunity thereafter to

negate such knowledge, or, if not, to conduct a renewed visa hearing

Affairs Manual (“FAM”) § 40.32, N1.2 (Note) (May 3, 2005). 18 The Department of State might wish to consider amending the Foreign Affairs Manual to make clear the consular officer’s responsibilities in properly applying the “unless” clause. That manual currently states:

In cases where consular officers must determine whether an alien knows or should have known that an organization is a terrorist organization, officers must consider several factors. First, facts particular to the individual, such as his or her residence, profession, or education, may permit a conclusion that the applicant[] knows, or should have known, that the organization is a terrorist organization. Secondly, officers must consider whether information about the organization is so widely known in the area that most persons know that the organization is engaged in terrorist activities. Other factors may also be relevant. . . .

FAM § 40.32, N2.3 (Note) (May 3, 2005).

The Manual does not advise that the officer should confront the alien with an allegation of knowledge that the recipient of his funds is a terrorist organization before affording him an opportunity to satisfy the “unless” clause.

-43- now that Ramadan is aware of the knowledge he must negate.

(b) The adequacy of evidence to support the reason. The second

issue concerning scope of review is whether, on a First Amendment

challenge to a visa denial, a reviewing court need only satisfy itself

that the conduct alleged fits within the statutory provisions relied

upon as the reason for the visa denial, or may determine if there is

evidence that either supports the reason or at least supports the

consular officer’s reasonable belief that the reason exists. See

§ 1201(g).

Mandel appears to foreclose any inquiry as to supporting evidence

by stating that courts will not “look behind” the decision of the

Executive Branch. See 408 U.S. at 770. This statement was made with

respect to the Attorney General’s decision to deny a waiver of

inadmissibility. The Court did not explicitly state whether the

decision of the consular officer to deny the visa was similarly

insulated from an evidentiary inquiry, but nothing in the Court’s

opinion suggests that such inquiry would be permitted. The absence of

an explicit statement precluding an evidentiary inquiry as to the

consular officer’s decision appears to be due to the Mandel

plaintiffs’ concession that the Government was entitled to “conclude

that Dr. Mandel’s Marxist economic philosophy falls within the scope

of” subsection 212(a)(28)(D), which rendered inadmissible an alien who

advocates “the economic, governmental, and international doctrines of

-44- world communism.” See id. at 756 n.3.19

The court of appeals’ decisions entertaining First Amendment

challenges to visa denials have varied as to the appropriateness of an

evidentiary inquiry into whether the facts support the consular

officer’s reason. In Bustamante, the Ninth Circuit made no inquiry as

to whether the facts supported the consular officer’s conclusion that

the visa applicant was a drug trafficker. Acknowledging that

Bustamante denied drug trafficking, see 531 F.3d at 1062, the Court

stated, “Under Mandel’s limited inquiry, the allegation that the

Consulate was mistaken about [Bustamante’s] involvement with drug

trafficking . . . fails to state a claim upon which relief could be

granted.” Id. at 1063.

In Adams, the First Circuit made some examination of evidence

proffered by the Government, but did so only for the limited purpose

of determining whether the evidence was sufficient “to support a

finding of ‘reasonable belief’” that the visa had been denied on a

valid statutory ground. See Adams, 909 F.2d at 649. Although the

19 In dissent, Justice Marshall decried the Court’s unwillingness to take “[e]ven the briefest peek” behind the reason for the Attorney General’s waiver denial. See id. at 778 (Marshall, J., with whom Brennan, J. joins, dissenting). In his view, the Attorney General’s reason–that Mandel had exceeded the terms of his prior visa–was completely unsupported by the record and put in issue by the Department of State’s acknowledgment that Mandel “‘may not have been aware of the conditions and limitations attached to the [previous] visa issuance.’” Id. (quoting Department’s letter to Mandel’s counsel).

-45- District Court had made findings that the visa applicant made

statements providing a facially legitimate basis for his exclusion,

the First Circuit declined to review those findings, concluding only

that “the State Department had competent evidence upon which it could

reasonably find that Adams participated in terrorist activities.” Id.

at 648 n.4.

In Abourezk II, the D.C. Circuit’s ruling explicitly concerned

only the issues of statutory interpretation. The Court concluded that

the District Court had erred in its construction of the provision

under which the visa had been denied. See Abourezk II, 785 F.2d at

1053-1060. Nevertheless, the Court of Appeals appears to have

contemplated some examination of evidence underlying the reason for

the visa denial. At the outset the Court stated that “questions of

material fact remain.” Id. at 1047. Later the Court expressed concern

about the District Court’s reliance on “in camera ex parte evidence,”

id. at 1060, and cautioned the Court, in the proceedings on remand,

“to make certain that plaintiffs are accorded access to the decisive

evidence to the fullest extent possible, without jeopardizing

legitimately raised national security interests,” id. (emphasis

added).

Two district court decisions declined to make any inquiry as to

evidence supporting reasons for a visa denial. In El-Werfalli v.

Smith, 547 F. Supp. 152 (S.D.N.Y. 1982), the Court initially ruled

-46- that the reasons provided for a visa denial were “so general,” id. at

154, that examination of classified materials was required to

determine if the specific reasons fit within the statutory ground of

inadmissibility. Having satisfied itself that they did, however, the

Court undertook no examination of evidence to determine whether the

facts supported the asserted reasons. The Court noted that the Mandel

standard permits the Court “to inquire as to the Government’s reasons,

but proscribes its probing into their wisdom or basis.” Id. at 153

(emphasis added); see also Azzouka v. Sava, 777 F.2d 68, 76 (2d Cir.

1985) (noting with approval the “procedures and standards applied in

El-Werfalli”).

Similarly, in Abourezk I, prior to the D.C. Circuit’s remand

because of disagreement as to construction of the relevant statutory

ground of inadmissibility, see Abourezk II, 785 F.2d at 1053-1060, the

District Court examined the Government’s in camera submission only to

identify the Government’s particularized reason, in light of the

“conclusory” reason that the aliens’ entry “‘would have been

prejudicial to the conduct of the foreign affairs of the United

States,’” Abourezk I, 592 F. Supp. at 886 (quoting affidavit of Under

Secretary of State). There was no inquiry as to whether the

particularized reason–that the aliens were officials of governments or

organizations hostile to the United States–was factually supported.

See id. at 888. See also NGO Committee on Disarmament v. Smith, 1982

-47- U.S. Dist. LEXIS 13583 (S.D.N.Y.) (June 10, 1982) (Leval, J.) (inquiry

as to specific reasons for exercise of discretion not to waive

inadmissibility, but not as to evidence supporting reasons), aff’d

mem., 697 F.2d 294 (2d Cir. 1982).

The Appellants endeavor to draw support for an evidentiary

inquiry from the First Circuit’s decision in Allende. However, that

decision declared a visa denial invalid because the supporting

affidavit made clear that the denial had been based on the applicant’s

prior speeches, activity that the Court ruled was an impermissible

basis under then-existing law. See Allende, 845 F.2d at 1120-21. The

Court had no occasion to consider whether the proffered reason was

supported by evidence.

The Appellants urge an evidentiary inquiry in reliance on

decisions that did not concern visa denials. They contend that our

Court required “some degree of factual review,” Reply Br. for

Appellants at 8 n.5, in Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982).

However, that decision, involving discretionary denials of parole for

aliens with pending asylum applications, required only a record

indicating that discretion had been exercised, and stated that the

parole denials would be upheld even on the assumption that some of the

reasons for the denials were “inaccurate.” See id. at 213.

Nevertheless, our Court did not fault the District Court for taking

evidence, some of which appears to have concerned whether the District

-48- Director’s reasons were factually supportable. What required reversal

of the District Court’s decision rejecting the denials of parole was

our Court’s conclusion that the District Judge had substituted his

judgment for that of the District Director. See id. at 213-18.

Ultimately, we remanded, not for an evidentiary inquiry, but to permit

the District Director to exercise his discretion again in light of

changed circumstances.20 See id. at 219.

More persuasive is the Tenth Circuit’s decision in Marczak v.

Greene, 971 F.2d 510 (10th Cir. 1992), concerning denial of parole

pending exclusion proceedings. On review of the parole denial

decision, the Court applied the Mandel standard of a “facially

legitimate and bona fide” reason. See id. at 516-17. In doing so, the

Court said that it was “tempting to conclude from the broad language

of the test that a court applying the ‘facially legitimate and bona

fide’ standard would not even look to the record to determine whether

the agency’s statement of reasons was in any way supported by the

facts.” Id. at 517. However, the Court rejected such a restricted

20 Some uncertainty as to the approach used in Bertrand is created by Judge Kearse’s concurring opinion, in which she stated, “To the extent that the district court was making credibility assessments, its review was consistent with the strictures of Kleindienst v. Mandel, 408 U.S. 753 (1972).” Bertrand, 684 F.2d at 220 (Kearse, J., concurring). It is not clear whether the credibility assessment concerned the District Director’s testimony presenting the reasons for his exercise of discretion or his testimony about the facts supporting those reasons.

-49- review and concluded that the District Director’s decision to deny

parole “must be at least reasonably supported by the record,” id., and

remanded to afford the Director an opportunity to persuade the

District Court that the reasons for the decision were “factually

supportable,” id. at 519.

Somewhat helpful to the Appellants, but less supportive than

Marczak, is the First Circuit’s decision in Amanullah v. Nelson, 811

F.2d 1 (1st Cir. 1987), which also concerned review of a decision

denying parole pending exclusion proceedings. The Court appears to

have equated Mandel’s standard of “a facially legitimate and bona fide

reason” with an “abuse of discretion” standard, implying that some

inquiry is permissible to see if the reasons advanced are not

arbitrary in the sense of lacking at least some factual support.

However, the Court confined judicial inquiry to the facts appearing in

the administrative record, see id. at 17, and rejected the aliens’

claim to an evidentiary hearing in the District Court, see id. at 16-

17.

The Ninth Circuit’s decision in Nadarajah v. Gonzales, 443 F.3d

1069 (9th Cir. 2006), also cited by the Appellants, is less helpful.

First, the Court stated that if “a facially legitimate and bona fide

reason” is given for a denial of parole pending immigration

proceedings, “the denial of parole is essentially unreviewable.” Id.

at 1082. Second, in granting parole, the Court ruled that continued

-50- detention after five years was unlawful and that the evidence favoring

release was undisputed. See id. at 1083.

We doubt that the judicial decisions reviewing administrative

denial of parole are even applicable to consular denial of a visa.

Although several courts purport to apply the Mandel standard when

reviewing denials of parole, the parole and visa decisions are

significantly different. Parole concerns release from detention; a

visa concerns admission into this country. It is understandable that

some courts exercising habeas jurisdiction would make at least a

limited factual inquiry as to a local District Director’s ground for

confining an alien. But a similar inquiry does not seem appropriate

concerning the visa decisions of consular officers stationed

throughout the world.

We conclude that we have to take literally the statement in

Mandel that courts may not “look behind” exclusion decisions, whether

the decision is the Attorney General’s exercise of discretion to waive

inadmissibility or the consular officer’s decision that a statutory

ground of inadmissibility applies to the visa applicant, at least in

the absence of a well supported allegation of bad faith, which would

render the decision not bona fide. Thus, to whatever extent the

District Court may have assessed Ramadan’s evidence negating

knowledge, it exceeded its proper role.

-51- III. The “Endorse or Espouse” Provision

The only remaining issue is the District Court’s dismissal of the

challenge to the “endorse or espouse” provision. The Court correctly

rejected this claim for lack of standing.

Conclusion

Since Ramadan’s undisputed conduct–making donations that he knew

afforded material support to ASP–fits within the statute relied upon

to deny him a visa, the only issue requiring a remand is further

consideration of whether the consular officer properly construed and

applied the “unless” clause of § 1182(a)(3)(B)(iv)(VI)(dd) by

confronting Ramadan with the allegation that he knew that ASP provided

funds to Hamas and then providing him with a reasonable opportunity to

demonstrate, by clear and convincing evidence, that he did not know,

and should not have reasonably known, of that fact. Accordingly, we

remand for further proceedings consistent with this opinion.

-52-