The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
On January 25, 2006, Plaintiffs American Academy of Religion ("AAR")*fn1 , American Association of University Professors ("AAUP")*fn2 , PEN American Center ("PEN")*fn3 , and Tariq Ramadan*fn4 (collectively, "Plaintiffs") filed this lawsuit against Michael Chertoff and Condoleezza Rice, in their official capacities as Secretary of the Department of Homeland Security ("DHS") and Department of State, respectively, challenging the continued exclusion of Professor Tariq Ramadan ("Ramadan") from the United States. Plaintiffs' lawsuit has two parts: (1) a First Amendment challenge to the Government's continued exclusion of Ramadan on the basis of his political views; and (2) a broader constitutional attack on Section 411(a)(1)(A)(iii) of the Patriot Act, 8 U.S.C. § 1182(a)(3)(B)(i)(VII), which permits DHS to exclude from the United States any alien that has used a "position of prominence within any country to endorse or espouse terrorist activity."*fn5
Plaintiffs now move pursuant to Rule 65(a) of the Federal Rules of Civil Procedure for a preliminary injunction so that Ramadan may enter the United States to attend their annual conferences. Plaintiffs seek an injunction in four parts: (i) enjoining DHS from denying a visa to Ramadan on the basis of 8 U.S.C. § 1182(a)(3)(B)(i)(VII); (ii) enjoining DHS from denying a visa to Ramadan on the basis of speech that U.S. residents have a constitutional right to hear; (iii) requiring DHS to immediately adjudicate Ramadan's pending visa application; and (iv) requiring DHS to immediately restore Ramadan's eligibility to rely on the visa waiver program.*fn6
Professor Ramadan's Resume
Ramadan is a Swiss-born scholar of Arab descent. (Declaration of Tariq Ramadan, Mar. 10, 2006 ("Ramadan Decl.") ¶ 1.) He holds Masters Degrees in Philosophy and French Literature and a Ph.D. in Islamic Studies, all from the University of Geneva. (Id. ¶ 3.) After receiving his Ph.D., Ramadan taught taught Islamic Studies and Philosophy at the University of Fribourg in Switzerland. (Id. ¶ 2.) Since July 2005, Ramadan has served as a Senior Research Fellow at the Loahi Foundation in London and a Visiting Fellow at Oxford University. (Id.)
Ramadan is a well-known scholar of the Muslim world. He has published more than 20 books, 700 articles, and 170 audio tapes, most of which focus on the subject of Muslim identity and the practice of Islam in the Western world, particularly Europe. (Id. ¶¶ 4-10.) Ramadan is perhaps best known for his vision of an independent European Islam. Specifically, Ramadan encourages Europe's Muslims to "reject both isolation and assimilation," and instead explore "the possibility of a 'third path' that would allow European Muslims to be both fully European and fully Muslim."*fn7 (Id. ¶ 5.)
Ramadan also advocates the development of an Islamic feminism and condemns the harsh penalties prescribed by the Islamic penal code. (Id. ¶¶ 7, 8 & Ex. A-C.) He shuns violence as a form of activism and has consistently spoken out against terrorism and radical Islamists. (See id. ¶¶ 17-21 & Exs. A, CU.)
Ramadan is equally critical of Western governments. Ramadan openly opposed France's law banning female students from wearing religious head scarves and has criticized the French government's approach to the 2005 riots. (See id., Exs. A & E.) He has also criticized U.S. foreign policy towards the Middle East as "misguided and counterproductive," condemned the current war in Iraq as "illegal," and lamented the "deleterious worldwide effects of unregulated American consumerism." (See id., Ex. E.)
Ramadan's scholarship has had a strong influence on Europe's Muslim population. In December 2000, Time magazine labeled Ramadan "the leading Islamic thinker among Europe's second- and third-generation Muslim immigrants." (Deconcini Decl., Ex. A (Nicholas Le Quesne, Trying to Bridge a Great Divide, Time, Dec. 11, 2000).) In September 2004, a journalist for the Forward newspaper wrote that Ramadan "may be the most well-known Muslim public figure in all of Europe," and that Ramadan "has used his prominence to urge young Muslims in the West to choose integration over disaffection." (Id., Ex. D (Jonathan Laurence, Is This How the U.S. Engages Muslims?, Forward, Sept. 3, 2004).)
Ramadan's scholarship has also captured the attention of academics and political leaders throughout Europe and the United States. In 2003, shortly before the French government imposed a ban on the display of the Islamic head scarf and other religious symbols in public schools, Ramadan debated the proposed law with France's Interior Minister, Nicolas Sarkozy, live on French national television. (Deconcini Decl. ¶ 19.) While the United States has not granted Ramadan a visa to enter the country, Great Britain, its one staunch ally in the battle against terrorism, has not only admitted him into England so that he may teach at Oxford, but has enlisted him in the fight against terrorism. Notably, the London Metropolitan Police invited Ramadan to speak at a conference immediately after the bus and subway bombings in London in July 2005, and Prime Minister Blair recently asked Ramadan to join a Government task force to combat extremism in the United Kingdom. (Ramadan Aff. ¶ 20, 21 & Ex. C, D).
Despite his popularity (or perhaps because of it), Ramadan is not without critics. Some Westerners have accused Ramadan of "double talk," advocating a liberal vision when speaking in French and English, but advocating a radical vision when speaking to the Muslim world, one that encourages, or at least justifies, Islamic terrorism.*fn8 (See id., Exs. C, E, R.) But Ramadan is equally condemned within the Arab world. While Westerners criticize Ramadan's pro-Muslim (rather than fully assimilationist) vision, Arab Muslims criticize Ramadan's pro-Western sensibilities. In fact, in addition to his exclusion from the United States, Ramadan is currently banned from entering Saudi Arabia, Egypt, and Tunisia.*fn9 (Id., Ex. C.)
Ramadan's Exclusion from the United States
Prior to August 2004, Ramadan visited the United States on numerous occasions to give lectures, attend conferences, and meet with other scholars. Ramadan spoke in the United States twice in 2000, four times in 2001, eleven times in 2002 and nine times in 2003. (Id. ¶ 12.) Ramadan lectured at numerous academic institutions, including Princeton, Harvard, and Dartmouth, attended a meeting in January 2003 organized by former President William Clinton on the subject of "Islam and America in a Global World," and even delivered a speech at the Department of State in October 2003. (Id. ¶ 12, Exs. N & W, Attachment 2.)
As a Swiss citizen, Ramadan did not need to apply for a temporary nonimmigrant visa to enter the United States to attend these lectures and conferences. In January 2004, however, Ramadan accepted a long-term tenured teaching position at University of Notre Dame,*fn10 prompting the need for an H-1B visa. (Id. ¶ 13.) The University of Notre Dame submitted a visa petition on Ramadan's behalf, which was approved by the U.S. Citizenship and Immigration Services on May 5, 2004. (Id.; Dilworth Decl. ¶ 3.)
With the H-1B visa approved, Ramadan and his family made arrangements to move to South Bend, Indiana. (Ramadan Decl. ¶ 14.) On July 28, 2004, however, only one week before Ramadan was scheduled to move (and after all his furniture had already been shipped to Indiana), the U.S. Embassy in Bern, Switzerland informed Ramadan by telephone that his visa had been revoked. (Id. ¶¶ 14, 32.) Consular officials did not provide an explanation for the revocation, but told Ramadan that he was welcome to reapply. (Id.) One month later, on August 25, 2004, the Los Angeles Times reported on the revocation of Ramadan's visa:
Russ Knocke, a spokesman for the Immigration and Customs Enforcement Division of the Department of Homeland Security, said the work visa was 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.'
He said the revocation was based on 'public safety or national security interests,' but would not elaborate.
(Id., Ex. G.) DHS's statement is the only explanation on record for the revocation. As will be explained later, the Government now states, without explanation or elaboration, that this statement was "erroneous."
In reliance on the consul's representation that Ramadan could reapply, the University of Notre Dame submitted a new visa petition on October 4, 2004. (Id. ¶ 24.) Originally, Department of State officials told the University that a decision would be imminent. (Id.) When the University contacted the Department of State in December 2004 to check on the status of Ramadan's application, however, it was told that no decision would be made in the near future. (Id.)
Owing to the indefinite delay, on December 13, 2004, Ramadan resigned his teaching post at University of Notre Dame. (Id. ¶ 25.) DHS was apparently monitoring Ramadan, and noted that Indystar.com, the on-line edition of the Indianapolis Star, reported that Ramadan had resigned his position at the University of Notre Dame. In sharp contrast to the dilatory pace at which DHS has considered Ramadan's B-visa application for the last two years, DHS immediately wrote to Notre Dame on December 21, 2004:
This refers to the Petition for Non-Immigrant Worker which you filed on behalf of Tariq Ramadan on Febrauary (sic) 13, 2004. The petition was approved on February 19, 2004.
It has now come to the attention of this Service that the approval of the petition should be revoked for the following reason:
The Indystar.com, the on-line edition of the Indianapolis Star, has reported that Tariq Ramadan has resigned his appointment with the University of Notre Dame du Lac. . . .
In view of the above, it appears that the approval of the petition should be revoked.
(Id., Ex. V.) The DHS letter made no reference to the May 5, 2004 approval or the July 28, 2004 revocation. (Id.)
The revocation cost Ramadan more than just the tenured position at Notre Dame. Once DHS revoked Ramadan's H-1B visa, Ramadan could no longer rely on the visa-waiver program to enter the United States, even for a short period. As a result, Ramadan was forced to cancel or decline a number of appearances at conferences in the United States, including the 41st Annual Islamic Society of North America Convention in September 2004, a meeting hosted by former Defense Secretary William Cohen in February 2005, a Georgetown University conference in April 2005, and the annual meetings of the Plaintiffs' organizations held in 2004, 2005 and 2006. (Id. ¶¶ 23, 26-27, 31.)
On September 16, 2005, at the urgings of various organizations within the United States, Ramadan applied for a B visa, a nonimmigrant visa that would permit Ramadan to enter the United States to participate in various conferences. (Id. ¶ 28.) He submitted the application to the U.S. Embassy in Bern, Switzerland (the "Embassy"), as required by U.S. immigration law, and appended to the application invitations to a number of upcoming conferences. (Id.) Ramadan appeared at the Embassy for an interview on December 20, 2005, at which representatives from the Department of State and DHS asked him questions about his political views and associations. (Id.) After the interview, Ramadan asked the interviewers whether his visa would be granted and, if so, when. (Id.) He was told by a consular officer at the Embassy that he could expect that a decision "would take at least two days but no more than two years." (Declaration of Christopher K. Derrick, Apr. 24, 2006 ("Derrick Decl.") ¶ 5.) To date, the Government has not acted on Ramadan's visa.
This delay is not typical. According to the U.S. Department of State website, the typical wait time (in calendar days) at the Bern Embassy for a nonimmigrant-visa interview appointment is 9 days. (Ramadan Decl. ¶ 29.) The typical wait time for a nonimmigrant visa to be processed is 2 days. (Id.) While the website warns that the 2-day wait time does not include "the time for additional special clearance or administrative process," it advises that "most special clearances are resolved within 30 days of application." (Id.)
The Government's revocation of Ramadan's H-1B visa has been criticized by numerous organizations, including Plaintiffs AAR and AAUP. (Deconcini Decl., Ex. E; Buck Decl., Ex. F-G.) Other groups, including the American Arab Anti-Discrimination Committee, the Jewish Council on Urban Affairs, and the Notre Dame Jewish Law Students Society, issued statements in support of admitting Ramadan into the United States (Ramadan Decl., Ex. H-K); and major newspapers throughout the United States have commented on Ramadan's visa saga. (See Ramadan Decl., Ex. E (New York Times), F & M (Chicago Tribune), G (Los Angeles Times), N & U (Washington Post).) Despite this public criticism, the Government has neither granted Ramadan's visa application, nor provided any explanation as to ...