United States Second Circuit

District court's grant of summary judgment to defendants on plaintiffs' claim that the denial of a visa for an Islamic scholar violated their First Amendment rights is vacated and remanded where: 1) the district court had jurisdiction to consider the claim, despite the doctrine of consular nonreviewability; 2) the Immigration and Nationality Act provision expanding visa ineligibility to those who contributed funds to a terrorist organization before the provision was enacted was validly applied; 3) the knowledge requirement of the statute required the consular officer to find that the applicant knew his contributions provided material support; and 4) the record does not establish that the consular officer who denied the visa confronted the with applicant with the allegation that he knowingly rendered material support to a terrorist organization, thereby precluding the applicant for an opportunity to satisfy the provision that exempts exclusion if the he can demonstrate that he did not know, and should not reasonably have known, that the organization was a terrorist organization.

Appellate Information

• Decided 07/17/2009
• Published 07/17/2009

Judges

• JON O. NEWMAN, Circuit Judge., Before FEINBERG, NEWMAN, and RAGGI, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Jameel Jaffer, New York, N.Y. (Melissa Goodman, Nasrina Bargzie, Judy Rabinovitz, 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., (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.).


• For Appellees:
  
• Davis S. Jones, Asst. U.S. Atty., New 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.