Posted by Eugene Volokh:
Revocation of visa based on alien's speech:
[1]Venkat Balasubramani (Begging to Differ) points to what appears to
be a [2]revocation of a visa based on an alien's speech:
The US administration came under fire for barring prominent
European Muslim scholar Tariq Ramadan from entering the country to
take a post at the renowned Notre Dame University.
Ramadan, rated by Time magazine as one of the 100 most influential
people in the world, was granted a visa in May only to have it
revoked on August 2 by the US State Department on the
recommendation of the Department of Homeland Security (DHS). . . .
Russ Knocke, a Department of Homeland Security spokesman, told
Reuters on Tuesday, that the work visa was taken back because of a
section in federal law applying to aliens who have used a "position
of prominence within any country to endorse or espouse terrorist
activity." . . .
(I say "appears" because the article is clearly an opinion piece, not
an objective news account -- note the reference to "the Board of
Deputies of British Jews [launching] a vile campaign against prominent
moderate Muslim scholar Youssef Qaradawi's visit" -- but I'll assume
that the account is complete and accurate for purposes of this post.)
Balasubramani calls this "a good example of Patriot Act abuse"
(because "The Patriot Act added the following clause which provides an
additional ground of inadmissibility with respect to an alien who . .
.'has used the alien's position of prominence within any country to
endorse or espouse terrorist activity, or to persuade others to
support terrorist activity or a terrorist organization, in a way that
the Secretary of State has determined undermines United States efforts
to reduce or eliminate terrorist activities'"); he also says that
"[i]t's definitely not a no-brainer as to whether this passes First
Amendment scrutiny," though in an update he suggests that "the case
may be a bit less strong, and maybe because of the standing issue,"
and may present only an as-applied challenge.
But as a doctrinal matter, this is a "no brainer" in favor of the
government; there's a 1972 Supreme Court case, [3]Kleindienst v.
Mandel that's quite squarely on point:
It is clear that Mandel [a self-described "revolutionary Marxist"
foreign academic] personally, as an unadmitted and nonresident
alien, had no constitutional right of entry to this country as a
nonimmigrant or otherwise. . . . The case, therefore, comes down to
the narrow issue whether the First Amendment confers upon the
appellee professors, because they wish to hear, speak, and debate
with Mandel in person, the ability to determine that Mandel should
be permitted to enter the country or, in other words, to compel the
Attorney General to allow Mandel's admission. . . .
Recognition that First Amendment rights are implicated, however, is
not dispositive of our inquiry here. In accord with ancient
principles of the international law of nation-states, the Court . .
. [has] held broadly . . . that the power to exclude aliens is
"inherent in sovereignty, necessary for maintaining normal
international relations and defending the country against foreign
encroachments and dangers - a power to be exercised exclusively by
the political branches of government . . . ." . . . The Court
without exception has sustained Congress' "plenary power to make
rules for the admission of aliens and to exclude those who possess
those characteristics which Congress has forbidden." . . .
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 [sec.] 212(a)(28), 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. . . .
One can debate whether the Court got it right in Kleindienst; I think
it did, but that is a story for another day. One can also debate
whether it's a good idea for Congress and the Executive Branch to
exclude such aliens -- though note that the Patriot Act is not an
innovation in this respect. But as a matter of existing First
Amendment doctrine, the government has a clear winner of a case here
(again, even if the press account that Balasubramani quotes is
entirely accurate).
References
1. http://www.beggingtodiffer.com/archives/2004_08.html#001641
2. http://www.islamonline.net/English/News/2004-08/25/article06.shtml
3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=753
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