American Academy of Religion, et al. v. Michael Chertoff, et al.
463 F.Supp.2d 400 (2006)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
When the government's exclusion of a foreign national implicates the First Amendment rights of U.S. citizens, the government must provide a facially legitimate and bona fide reason for its decision; it cannot evade judicial review by indefinitely delaying the adjudication of a visa application.
Facts:
- Tariq Ramadan, a Swiss scholar of Islam, frequently visited the United States for lectures and conferences prior to 2004.
- In January 2004, the University of Notre Dame offered Ramadan a tenured professorship.
- After his H-1B work visa was approved in May 2004, the U.S. Embassy in Switzerland informed Ramadan in July 2004 that his visa was revoked, just one week before he was scheduled to move.
- A Department of Homeland Security (DHS) spokesman subsequently told the media that the visa was revoked under a Patriot Act provision concerning aliens who use a 'position of prominence...to endorse or espouse terrorist activity.'
- Due to the indefinite delay in resolving his visa status, Ramadan resigned his position at Notre Dame in December 2004.
- In September 2005, Ramadan applied for a temporary B visa to attend academic conferences hosted by the plaintiff organizations.
- The government took no action on his B visa application for over nine months, telling Ramadan a decision could take up to two years.
Procedural Posture:
- American Academy of Religion, American Association of University Professors, PEN American Center, and Tariq Ramadan (Plaintiffs) filed a lawsuit in the U.S. District Court for the Southern District of New York.
- The defendants were the Secretary of the Department of Homeland Security and the Secretary of State, in their official capacities (Government).
- The complaint challenged the exclusion of Ramadan from the United States, alleging violations of the First Amendment and attacking the constitutionality of a provision of the Patriot Act.
- Plaintiffs moved for a preliminary injunction to compel the Government to grant Ramadan a visa or, in the alternative, to immediately adjudicate his pending visa application.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a federal court have the authority under the Administrative Procedure Act to compel the Executive Branch to adjudicate a visa application that has been pending for an unreasonable amount of time when the delay implicates the First Amendment rights of U.S. citizens?
Opinions:
Majority - Crotty, District Judge
Yes, a federal court has the authority to compel a decision. While the Executive Branch has broad, plenary power over the admission of aliens, this power is not absolute and is subject to constitutional limitations and statutory requirements. The government cannot use indefinite inaction on a visa application as a de facto method of exclusion, thereby evading the limited judicial review established in Kleindienst v. Mandel, which requires the government to provide a 'facially legitimate and bona fide reason' for an exclusion that implicates the First Amendment rights of U.S. citizens. Under the Administrative Procedure Act (APA), federal agencies have a duty to adjudicate matters within a 'reasonable period of time.' The nine-month delay in this case, following a previous revocation and years of government monitoring, is unreasonable. Therefore, the court can grant a writ of mandamus compelling the government to issue a formal decision on the pending visa application.
Analysis:
This decision affirms the core principle of Kleindienst v. Mandel while extending its logic to circumstances of government inaction. It establishes that executive deference in immigration matters does not permit the government to use bureaucratic delay to achieve an otherwise reviewable exclusion. By applying the Administrative Procedure Act's 'reasonableness' requirement, the court provides a crucial check on the Executive's power, preventing it from indefinitely sidelining visa applicants and thereby chilling the First Amendment rights of Americans to receive information and ideas from foreign speakers. The case signals that courts will intervene not to dictate the outcome of a visa decision, but to ensure a decision is actually made, thus forcing the government to either justify an exclusion or grant entry.
Unlock the full brief for American Academy of Religion, et al. v. Michael Chertoff, et al.